Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from the judgment of the Superior Court of Los Angeles County Super. Ct. No. VA084101. Dewey L. Falcone, Judge. Affirmed.
Jean F. Matulis, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Keith H. Borjon and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
RUBIN, J.
Defendant and appellant Michael Thomas Goforth appeals from his conviction of second degree robbery and unlawful taking of a vehicle. He contends: (1) the trial court erred in excluding certain evidence; (2) the personal firearm use enhancement was not supported by substantial evidence; (3) the instructions on grand theft as a lesser included offense within robbery were inadequate; (4) even if individually harmless, these errors were cumulatively prejudicial; and (5) he was denied access to the court because reasonable accommodations were not made for his mental disabilities. We affirm.
Defendant was charged by amended information with second degree robbery and unlawful taking of a vehicle; enhancements for personal firearm use and prior convictions were also alleged. A jury convicted defendant as charged and found true the personal firearm use enhancement. He was sentenced to a total of 13 years in prison, comprised of 3 years for second degree robbery, plus a consecutive 10 years for the personal use of a firearm; a concurrent 2-year term was imposed on the unlawful taking count.
FACTUAL AND PROCEDURAL BACKGROUND
A. Prosecution Case
Viewed in accordance with the usual rules on appeal (People v. Kraft (2000) 23 Cal.4th 978, 1053), the evidence established that defendant came into Downey Ford late in the morning on April 26, 2004. He told assistant sales manager Luis Gutierrez that he wanted to buy an inexpensive car for cash. Gutierrez gave defendant the keys to a 2001 red Geo Metro, when Gutierrez walked away to bring a salesperson to help defendant, defendant drove off in the car. Based on the VIN number given to him by Gutierrez, a police assistant with the Downey Police Department obtained the car’s license plate number.
At about 4:00 p.m. on May 19, 2004, defendant entered Jorge Rodriguez’s small computer store on Slauson Ave. in Santa Fe Springs. Defendant was carrying a laptop case against his chest in such a way that his right hand was concealed behind the case. In response to defendant’s inquiry, Rodriguez showed defendant a laptop. When defendant grabbed the laptop from Rodriguez with his left hand, Rodriguez saw that defendant was holding a gun in his right hand. Defendant ran out of the store and got into a red car, the license plate number of which Rodriguez communicated to the police officer who took Rodriguez’s robbery report.
Defendant’s fingerprints were found in a 2001 red Geo Metro abandoned about 300 feet from defendant’s last known address.
When detective Michael Redmon interviewed defendant on June 23, 2004, Redmon told defendant that he was investigating the May 19, 2004, robbery of a computer store on Slauson Ave. in Santa Fe Springs. Defendant said he knew nothing about this robbery and expressed disbelief when Redmon said witnesses had identified defendant as the perpetrator from a photograph.
When Redmon told defendant that his fingerprints had been found on an abandoned red Geo Metro (at the time, Redmon was unaware of the Downey Ford incident), defendant denied ever driving a red Geo Metro but said his girlfriend owned a burgundy Geo Metro that had been stolen a few weeks before.
B. Defense Case
Defendant admitted taking a car from Downey Ford in April 2004. During the interview with Redmon, he denied having done so and made up the story about his girlfriend’s car because he did not want to get into trouble.
Defendant also admitted going into Rodriguez’s computer store in May 2004. But in defendant’s version of events, he stole a power cord, not a computer, and he did not have a gun. Defendant denied owning or ever possessing a hand gun and denied using one or threatening Rodriguez. In the interview with Redmon defendant had denied knowing anything about a computer store robbery because Redmon asked about a robbery of a computer store on Mulberry; because the computer store from which defendant stole the power cord was on Slauson, not Mulberry, and because defendant did not believe he had committed a robbery, he did not know what Redmon was talking about.
DISCUSSION
A. No Error in Excluding Evidence of Defendant’s Reasons for Taking the Vehicle
Defendant contends he was denied his constitutional right to present a defense to the unlawful taking charge as a result of the trial court having sustained a relevance objection to a question about defendant’s reasons for taking the car. He argues that his reasons were relevant to the specific intent element of the charged offense. We disagree.
Only relevant evidence is admissible and, with certain statutory exceptions not applicable here, all relevant evidence is admissible. (Evid. Code, §§ 350, 351.) Evidence is relevant if it has “any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) However, the erroneous exclusion of relevant evidence cannot be the basis of a reversal unless the error resulted in a miscarriage of justice. (Evid. Code, § 354.) “A miscarriage of justice should be declared only when the reviewing court is convinced after an examination of the entire case, including the evidence, that it is reasonably probable a result more favorable to the appellant would have been reached absent the error. [Citations.] Prejudice from error is never presumed but must be affirmatively demonstrated by the appellant. [Citations.]” (Brokopp v. Ford Motor Company (1977) 71 Cal.App.3d 841, 853-854.)
A person is guilty of violating “Vehicle Code section 10851, subdivision (a) (§ 10851(a)) when he or she ‘drives or takes a vehicle not his or her own, without the consent of the owner thereof, and with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle.’ ” Thus, the specific intent to deprive the owner of title or possession of the vehicle is an element of the offense. (People v. Moon (2005) 37 Cal.4th 1, 26.)
But specific intent is not synonymous with the reason why a person chooses to commit a crime; i.e. the perpetrator’s motive. (People v. Hillhouse (2002) 27 Cal.4th 469, 504.) Evidence of motive may, however, be probative of intent. (See e.g. CALJIC No. 2.51 [“Motive is not an element of the crime charged and need not be shown. However, you may consider motive or lack of motive as a circumstance in this case. Presence of motive may tend to establish the defendant is guilty. Absence of motive may tend to show the defendant is not guilty.”]; CALCRIM No. 370.)
Here, defendant was charged with “unlawful driving or taking of a vehicle” in violation of section 10851(a). The trial court sustained a relevance objection to the following question: “Why did you” take off with a car? Defendant made no offer of proof as to what evidence this question was intended to elicit; i.e., what evidence was being excluded as a result of the ruling. Accordingly, he has not shown how his reasons for taking the car would have been probative of the issue of his specific intent to permanently or temporarily deprive the owner of possession, much less that that the result of the trial would have been different had this evidence been admitted. On this record, defendant has failed to demonstrate any error in excluding evidence of his reason for taking the car.
Defendant’s reliance on Moon for a contrary result is misplaced. The issue in that case was whether the trial court erred in failing to instruct sua sponte on joy riding in violation of former Penal Code section 499b as a lesser included offense of violating section 10851(b), where the accusatory pleading charged “driving and taking.” (Italics added.) The court in Moon found no error, reasoning that there was no evidence that the defendant’s intent was to return the car after driving it temporarily, and not to deprive the owner of possession. (Moon, supra, 37 Cal.4th at pp. 26-27.) Thus, Moon does not stand for the proposition that it is error to exclude evidence of a defendant’s reasons for taking a vehicle, as opposed to evidence of his or her intent.
Former section 499b made it a misdemeanor to, without permission of the owner, take a vehicle for the purpose of temporarily using or operating it. (See People v. Howard (1997) 57 Cal.App.4th 323, 326, fn. 2.)
B. Substantial Evidence Supported the Gun Use Enhancement
Defendant contends the Penal Code section 12022.53, subdivision (b) (§ 12022.53(b)) gun use enhancement was not supported by substantial evidence. He argues that Rodriguez testified that defendant never pointed the gun at him. We disagree.
In assessing a challenge to the sufficiency of the evidence “ ‘[we] review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence -- that is, evidence which is reasonable, credible, and of solid value -- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.]’ ” (Hillhouse, supra, 27 Cal.4th at p. 496.) To warrant rejection of testimony believed by the trier of fact, the testimony must be inherently improbable; there must exist either a physical impossibility that it is true, or its falsity must be apparent without resorting to inferences or deductions. “ ‘Conflicts and even testimony that is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.]’ ” (People v. Mayberry (1975) 15 Cal.3d 143, 150; People v. Meals (1975) 48 Cal.App.3d 215, 221-222.)
As with a substantive offense, each element of a sentencing enhancement must be proven beyond a reasonable doubt. (People v. Sengpadychith (2001) 26 Cal.4th 316, 324-326 (Sengpadychith).) The question is whether “any rational trier of fact could have found the elements of the underlying enhancement beyond a reasonable doubt.” (People v. Alvarez (1996) 14 Cal.4th 155, 225.)
Section 12022.53(b) provides for an additional 10 year term for any person who, in the commission of a robbery “personally uses a firearm . . . . The firearm need not be operable or loaded for this enhancement to apply.” (See CALJIC No. 17.19 [“The term ‘personally used a firearm,’ as used in this instruction, means that the defendant must have intentionally displayed a firearm in a menacing manner, intentionally fired it, or intentionally struck or hit a human being with it.”].)
In People v. Carrasco (2006) 137 Cal.App.4th 1050, the issue was whether there was sufficient evidence to support a section 12022.53(b) enhancement imposed on the underlying robbery conviction. The court noted that the crime of robbery begins with the commission of any of the defined elements and continues, not just until all the elements have been satisfied, but until the robber reaches a place of relative safety. (Id. at p. 1059.) It held that the personal use of a firearm element of a section 12022.53(b) enhancement may be found “where the defendant intentionally displayed a firearm in a menacing manner in order to facilitate the commission of an underlying crime. [Citations.] [¶] ‘Thus when a defendant deliberately shows a gun, or otherwise makes its presence known, and there is no evidence to suggest any purpose other than intimidating the victim (or others) so as to successfully complete the underlying offense, the jury is entitled to find a facilitative use rather than an incidental or inadvertent exposure. The defense may freely urge the jury not to draw such an inference, but a failure to actually point the gun, or to issue explicit threats of harm, does not entitle the defendant to judicial exemption . . . .’ [Citation.]” (Id. at pp. 1059-1060, italics added.)
Here, the evidence was conflicting as to whether defendant used a firearm in the computer store robbery and, if so, the manner in which he did so.
· Officer Wolfe testified that when he took Rodriguez’s robbery report immediately after the incident, Rodriguez told him that defendant simultaneously picked up the stolen computer and pulled a gun out of the computer bag he was carrying; defendant pointed the gun at Rodriguez’s chest as he backed out of the store.
· Rodriguez testified that, when defendant leaned forward to grab the laptop, the gun was pointed at him.
· But at defendant’s preliminary hearing, Rodriguez testified that defendant did not point the gun at him.
· Rodriguez explained the discrepancy between his preliminary hearing and trial testimony as follows: “When I refer to not pointing the gun to me, he never did this to me (indicating). He never point the gun to me or put the gun straight to me. [¶] . . . When I’m talking about pointing the gun to me, when he turned to grab the laptop, the gun was pointing to me. He never separate the gun from the chest to point it at me. [¶] . . . That’s what -- That’s what I think that’s what happened. He never pointed like, let me have the laptop. He point the gun to me when he turned to grabbing the laptop. [¶] I don’t know if he was pointing to me or by coincidence when he turned to get the laptop, the gun was pointing to me. I have no idea.” Rodriguez clarified that what he meant was that defendant never held his arm out with the gun pointed at Rodriguez as though defendant were going to shoot, but when defendant reached for the laptop, the gun, which defendant was holding to his chest, was, in fact, pointed at Rodriguez.
Although the evidence was conflicting, the conflict was for the jury to resolve, not this court. (Mayberry, supra, 15 Cal.3d at p. 150.) And if the jury’s determination is supported by substantial evidence, it must be affirmed. Here, from Wolfe’s testimony that Rodriguez told him immediately after the robbery that defendant kept a gun pointed at Rodriguez’s chest as he backed out of the computer store, the jury could reasonably infer that defendant displayed the gun in a menacing manner to keep Rodriguez from grabbing the computer back and/or from following defendant out of the store. In other words, that defendant “intentionally displayed a firearm in a menacing manner in order to facilitate the commission of an underlying crime.” (Carrasco, supra, 137 Cal.App.4th at p. 1059.) Although Rodriguez’s preliminary hearing and trial testimony were in conflict, the jury could have reasonably found that Rodriguez’s recollection of events was clearer when he spoke to Wolfe immediately after the incident, and less clear at the preliminary hearing and trial several months later.
Defendant also suggests that because he is left handed, it was unlikely he was holding a gun in his right hand as Rodriguez testified. Assuming the jury believed defendant was left handed, it could nevertheless have found that on this occasion defendant held the computer case in his left hand and the gun in his right.
C. The Court Adequately Instructed on Lesser Included Offenses
Defendant contends his conviction must be reversed because the trial court failed to adequately instruct on grand theft as a lesser included offense of robbery, although it did instruct on the lesser included offense of petty theft. We disagree.
“The proper test for judging the adequacy of instructions is to decide whether the trial court ‘fully and fairly instructed on the applicable law . . . .’ [Citation.] ‘In determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a whole . . . [and] assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given. [Citation.]’ [Citation.] ‘Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation. [Citation.]’ ” (People v. Martin (2000) 78 Cal.App.4th 1107, 1111-1112.)
Here, the jury was instructed on the elements of theft pursuant to CALJIC No. 14.02 and of petty theft pursuant to CALJIC No. 16.300. Pursuant to CALJIC Nos. 17.10 and 17.49, the jury was instructed that if not satisfied beyond a reasonable doubt that defendant was guilty of robbery, they could convict him of a lesser crime and that petty theft is a lesser crime to robbery. During a recess after instructions had been given but before closing arguments, defense counsel brought to the trial court’s attention that there had been no instruction on grand theft as a lesser included offense of robbery. The trial court agreed that such an instruction was warranted. Accordingly, the trial court gave CALJIC No. 14.21 which, as given, reads: “When property is taken by theft and the value of the property exceeds $400, the crime is grand theft. If the value is $400 or less, the crime is petty theft. Those two thefts are lesser includeds [sic] as to count 1, the robbery.” A copy of CALJIC No. 14.21 was included in the instructions given to the jury.
On appeal, defendant has failed to explain what instruction should have been given, but was not. Viewing the instructions given as a whole, we find they fully and fairly instructed on the applicable law, including the elements of grand theft, the fact that it is a lesser included offense of robbery, and the distinction between it and petty theft, another lesser included offense of robbery. Accordingly, defendant has failed to demonstrate any instructional error.
We note that CALJIC No. 14.20 was not given. That instruction reads: “Theft is either grand theft or petty theft. If you find the defendant guilty of theft, you must determine whether the crime was grand theft or petty theft and state which it is in your verdict. [¶] [If you find the defendant guilty of theft, but unanimously have a reasonable doubt as to whether it is grand theft, you must find it to be petty theft.]”
D. Cumulative Error
Inasmuch as we have found no error, defendant’s contention that there was cumulative error must necessarily fail.
E. Reasonable Accommodation
Defendant contends he was denied due process as a result of the trial court’s “denial of his requests for reasonable accommodations relating to his mental disabilities.” He argues that he was entitled to a mental health advocate. We find no error.
At the time of defendant’s request, the Americans with Disabilities Act (42 U.S.C. § 12101 et seq.) was implemented in California by California Rules of Court, former rule 989.3 (rule 989.3), which set forth the procedures for persons with disabilities, including “mental impairment,” to request accommodations to ensure their “equal and full access to the judicial system.” Rule 989.3(b)(3) defined accommodations as including “actions that result in court services, programs, or activities being readily accessible to and usable by persons with disabilities. Accommodations may include, but are not limited to, making reasonable modifications in policies, practices, and procedures; furnishing, at no charge, to persons with disabilities, auxiliary aids, and services, equipment, devices, materials in alternative formats, readers, or certified interpreters for persons with hearing impairments; relocating services or programs to accessible facilities; or providing services at alternative sites.”
All undesignated rule references are to the California Rules of Court. Former rule 989.3 was renumbered rule 1.100 effective January 1, 2007. We refer to former rule 989.3 because it was the operable rule at the time defendant made his accommodation request on January 17, 2006.
Rule 989.3(e), which sets forth the trial court’s obligations in responding to a request for accommodation, provides: “(2) The court shall inform the applicant in writing of findings of fact and orders, as may be appropriate, that the request for accommodations is granted or denied, in whole or in part, and the nature of the accommodations(s) to be provided if any.” Trial court rulings are reviewed by petition for extraordinary writ. (Rule 989.3(g)(2).)
Here, the jury rendered its verdict on May 12, 2005. In a motion for new trial filed on July 22, 2005, defendant asserted that, although diagnosed as bipolar, he had been denied all his medications during trial.
Some time prior to January 13, 2006, before the new trial motion was heard, defendant submitted to the Superior Court a Request for Accommodations by Persons With Disabilities on an approved Judicial Council form. (Rule 989.3(c).) Therein, defendant averred that he suffered from the following impairments: “mentally ill, homeless, incarcerated, drug addict, off of my medication at the time of alleged crime, problems -- working & learning.” For all further hearings, defendant requested: “Due to my mental illness, I will be requiring a program such as AB2034 (Assembly Bill 2034) as soon as possible . . . .”
On January 13, 2006, the trial court continued the hearing on the new trial motion because defense counsel was engaged elsewhere. Defendant, however, was in court and asked the trial court about his request for accommodation. Defendant explained that he was seeking “a representative from the Americans with Disabilities Act to come in and help me with certain things in my court case. . . . [¶] . . . A court advocate.” The trial court promised to look at the request and “make an order on that.”
The motion for new trial was argued on February 3, 2006. At the time, there does not appear to have been any formal response to defendant’s request for accommodation. During the hearing, in reply to defense counsel’s inquiry about a mental health advocate, the trial court stated: “You’ve asked that question. There’s nobody in the courtroom. It’s now approximately 9:20.”
Proceeding on to the motion for new trial, the trial court characterized the motion as follows: “[T]he basis for the motion for new trial was that defendant was not competent during the trial within the meaning of Penal Code section 1368; and the basis of that theory is that because he had not been given his medications during the trial.” It denied the motion, observing that at no time during the proceedings leading up to trial, or during the trial itself, did defense counsel raise the issue of defendant’s competence; nothing about defendant’s demeanor in the proceedings leading up to the trial or when he testified at trial suggested defendant was incompetent; and section 1368 does not provide for a retroactive determination of a defendant’s competence at trial (People v. Day (1988) 201 Cal.App.3d 112).
Although the trial court made no further reference to defendant’s accommodation request and did not subsequently inform defendant in writing that it was denying the request in whole or in part (see rule 989.3(e)), the parties do not dispute that the trial court’s comments at the February 3, 2006, hearing constituted a denial of the request. Defendant did not file a petition for extraordinary relief within 10 days of notice of the determination of his accommodation request. (Rule 989.3(g)(2).) Since rule 989.3(g)(2) makes seeking review by writ discretionary, not mandatory, this is not fatal to defendant’s appeal. But defendant must still demonstrate both error and prejudice. (Cal. Const., art. 6, § 13 [no judgment shall be set aside on ground of error in procedure unless the error resulted in a miscarriage of justice].) This, he has failed to do as he has not demonstrated how the failure to appoint a mental health advocate at the hearing on the motion for new trial and at sentencing resulted in a denial of his access to the court or that the ruling on the motion for new trial or sentence likely would have been different. On the contrary, the record demonstrates that defendant was present in court and, as the trial court noted in its ruling on the motion for new trial, did not give any indication of mental incompetence. He did not seek ADA accommodation during trial. On this record, defendant has failed to demonstrate any error in denying the request for accommodation.
DISPOSITION
The judgment is affirmed.
WE CONCUR: COOPER, P. J., FLIER, J.