People v. Carlos CA2/4 ( 2021 )

Filed 5/26/21 P. v. Carlos CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
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opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B305614
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. PA093425
v.
ALEXANDER CARLOS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, David W. Stuart, Judge. Reversed in part,
remanded with instructions.
Michael C. Sampson, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Attorney General, Scott A. Taryle and Michael R. Johnsen,
Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
A jury convicted defendant and appellant Alexander
Jonathan Carlos of attempted second degree robbery, two counts
of second degree robbery, and battery with serious bodily injury.
The jury also found true three deadly or dangerous weapon
enhancements. The trial court sentenced him to eight years and
four months in state prison. On appeal, Carlos raises four
arguments: (1) the record contains insufficient evidence to
support the jury’s true findings on two of the deadly or dangerous
weapon enhancements; (2) two of the deadly or dangerous
weapon enhancements must be reversed because the trial court
instructed the jury with a legally erroneous theory; (3) the
attempted robbery conviction must be reversed because trial
counsel was prejudicially ineffective in failing to object to
inadmissible hearsay; and (4) the sentence imposed on count one
was unauthorized and must be corrected. We agree with Carlos’s
second argument. We reverse the dangerous or deadly weapon
enhancements on counts two and three. In all other respects, the
judgment is affirmed.
PROCEDURAL BACKGROUND
The Los Angeles County District Attorney filed an
information charging Carlos with attempted second degree
robbery (Pen. Code,1 §§ 664, 211; count one), two counts of second
degree robbery (§ 211; counts two and three), and battery with
serious bodily injury (§ 253, subd. (d); count four). The
1 All further undesignated statutory references are to the
Penal Code.
2
information further alleged Carlos used a deadly or dangerous
weapon in the commission of counts one through three. (§ 12022,
subd. (b)(1).)2
The jury found Carlos guilty on all counts and found true
the weapon enhancements. The trial court sentenced him to eight
years and four months in state prison, calculated as follows: (1) a
five-year upper term for one of the robberies (count two), plus one
year for the weapon enhancement; (2) a consecutive one-year
sentence for the other robbery (count three), plus a four-month
weapon enhancement; and (3) a consecutive eight-month
sentence for the attempted robbery (count one), plus a
consecutive four-month weapon enhancement.3
Carlos timely appealed.
FACTUAL BACKGROUND
I. Counts one and four
In the early morning of September 8, 2019, Oscar J. was
working as a security guard at La Vida Gentlemen’s Club in Sun
Valley. Around midnight, a man with a t-shirt covering his face
approached Oscar J., pointed a crossbow at him, and demanded
money. When Oscar J. said he did not have any money, the
robber ordered him to “take me where the money is.” After they
2 The information alleged Carlos sustained two prior prison
term convictions under section 667.5, subdivision (b), but the trial
court dismissed those allegations under section 1385.
3 The court stayed sentencing on count four under
section 654.
3
entered the club, a struggle ensued over the crossbow. The two
men fell to the ground, Oscar J.’s head hit the floor, and the
robber landed on top of him. The robber then ran away, leaving
the crossbow and t-shirt behind. After the attack, Oscar J.
suffered from headaches and pain in his right knee that made it
difficult to walk. At the time of trial, he was on medical leave
from work because of his knee.
II. Count two
That same morning, Harpreet S. was working at a 7-Eleven
in Pacoima, about three miles from the La Vida club. Around 2:20
a.m., a man walked in, showed Harpreet S. a knife, and
demanded money. The man took $236 in cash from two registers,
as well as two packs of American Spirit cigarettes, and then left.
Surveillance video captured the robbery, and a recording of it was
played for the jury.
III. Count three
Nancy R. was working at a 7-Eleven in Sun Valley the
same morning, about three-and-a-half miles from the Pacoima 7-
Eleven. At around 2:40 a.m., a man approached her with a knife
and demanded money. Nancy R. gave the man cash from two
registers and he left. Again, surveillance video captured the
robbery, and a recording of it was played for the jury.
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IV. Police investigation
Police examined surveillance video from the three locations.
The videos captured the suspect arriving at each location in a
small SUV and going into each establishment just before the
robberies.
The morning after the crimes, at around 2:30 a.m., officers
stopped Carlos because his taillights were not working. He was
driving a 1997 Toyota RAV4. There was a butcher knife with an
eight-inch blade on the passenger-side floorboard of the car.
Because Carlos could not produce identification, had no
paperwork for the vehicle, and because of the presence of the
knife, the officers detained him. Upon patting him down, they
found $207 in his pocket. They also found a pack of American
Spirit cigarettes in the car. The officers did not immediately
connect Carlos to the robberies, and they ultimately released him
after obtaining his home address.
Officers later executed a search warrant at Carlos’s
apartment. Police retrieved a sweatshirt, pants, and a pair of
shoes that appeared similar to what the suspect in the 7-Eleven
videos had been wearing. They also retrieved the knife from
Carlos’s RAV4. They recovered the crossbow, an arrow, and the
robber’s t-shirt from the La Vida club.
DNA on the t-shirt was later scientifically matched to
Carlos. Harpeet S. identified the knife, sweatshirt, pants, and
shoes as similar to the robber’s. He also identified Carlos as the
robber from a six-pack photographic lineup. He was unable to
5
identify Carlos in court. Nancy R. also identified Carlos as the
robber from a photographic lineup.4
DISCUSSION
I. Carlos’s sufficiency argument
Carlos first argues the record contains insufficient evidence
to support the jury’s findings that he used a deadly or dangerous
weapon in the commission of the two robberies (counts two and
three). The crux of Carlos’s argument is that because he merely
displayed the knife, the evidence was insufficient to prove he
used the weapon in a manner likely to cause death or great bodily
injury. The Attorney General argues Carlos’s display of the knife
during the robberies was sufficient to allow the jury to reasonably
find the enhancements true. We agree with the Attorney General.
“We review the sufficiency of the evidence to support an
enhancement using the same standard we apply to a conviction.
[Citation.]” (People v. Wilson (2008) 44 Cal.4th 758, 806.) We
review the record in the light most favorable to the judgment to
determine if there is substantial evidence from which any
rational trier of fact could find each element of the crime [or
enhancement] beyond a reasonable doubt. (Jackson v. Virginia
(1979) 443 U.S. 307, 318-319 [99 S.Ct. 2781, 61 L.Ed.2d 560]
(Jackson); People v. Staten (2000) 24 Cal.4th 434, 460.)
Substantial evidence is evidence that is “reasonable in nature,
credible, and of solid value. [Citation.]” (People v. Johnson (1980)
26 Cal.3d 557, 576.) In reviewing a sufficiency claim, we
4 Carlos did not testify at trial or present witnesses in his
defense.
6
“presume in support of the judgment the existence of every fact
that the trier of fact could reasonably deduce from the evidence.
[Citation.]” (People v. Medina (2009) 46 Cal.4th 913, 919.)
Section 12022, subdivision (b)(1) provides for a one-year
enhancement when an offender “personally uses a deadly or
dangerous weapon in the commission of a felony or attempted
felony . . . .”5 As the jury was correctly instructed, “[i]n order to
find ‘true’ a section 12022(b) allegation, a fact finder must
conclude that, during the crime or attempted crime, the
defendant himself or herself intentionally displayed in a
menacing manner or struck someone with an instrument capable
of inflicting great bodily injury or death. [Citations.]” (People v.
Wims (1995) 10 Cal.4th 293, 302-303 (Wims), overruled on other
5 The full language of section 12022, subdivision (b)(1)
provides: “A person who personally uses a deadly or dangerous
weapon in the commission of a felony or attempted felony shall be
punished by an additional and consecutive term of imprisonment
in the state prison for one year, unless use of a deadly or
dangerous weapon is an element of that offense.” A “deadly or
dangerous weapon” for purposes of this enhancement is an object
that is either inherently deadly or “‘which is used in such a
manner as to be capable of producing and likely to produce, death
or great bodily injury.’ [Citation]” (In re B.M. (2018) 6 Cal.5th
528, 532-533 (B.M.); see People v. Aledamat (2019) 8 Cal.5th 1, 6,
fn. 2 (Aledamat) [the same rule regarding inherently and non-
inherently deadly weapons that applies to assault under section
245, subdivision (a)(1) applies to section 12022, subdivision
(b)(1)].) An inherently deadly weapon is an object that is deadly
as a matter of law, by virtue of the ordinary use for which it is
designed, but a knife is not such an object. (Aledamat, supra, 8Cal.5th at p. 6.)
7
grounds in People v. Sengpadychith (2001) 26 Cal.4th 316, 325-
326.)
Applying the above-stated principles, we conclude
substantial evidence supports the jury’s true findings on the
weapon enhancements. As Carlos points out in his opening brief,
the victims of the two robberies both testified he displayed a knife
when asking for the money. And as the instructions correctly
explained, a jury may properly find the enhancement true if the
defendant intentionally displayed the weapon in a menacing
manner during the commission of the crime. (Wims, supra, 10Cal.4th at p. 302.) We therefore reject the contention that the
enhancements on counts two and three were not supported by
substantial evidence.
We likewise reject Carlos’s argument that reversal is
required under B.M. and In re Brandon T. (2011) 191
Cal.App.4th 1491 (Brandon T.). In B.M., the juvenile, in an effort
to scare her sister, made several downward slicing motions in the
area around her sister’s blanket-covered legs with an unsharp
butter knife. (B.M., supra, 6 Cal.5th at p. 531.) Under those
circumstances—because the knife was not sharp, the assault was
directed only toward the sister’s blanket-covered legs, and the
juvenile used only moderate pressure—the object was not likely
to cause great bodily injury and therefore was not used as a
deadly or dangerous weapon. (Id. at pp. 536-537.) In Brandon T.,
the juvenile attempted to cut the victim’s face with a small butter
knife, but the handle broke off and the knife became ineffective.
(Brandon T., supra, 191 Cal.App.4th at p. 1494-1495.) The Court
of Appeal concluded that, under those circumstances, the knife
was not even capable of producing great bodily injury had the
juvenile tried, and therefore it did not qualify as a deadly or
8
dangerous weapon. (Id. at pp. 1497-1498.) In contrast with the
benign objects used in B.M. and Brandon T, Carlos used a
butcher knife with an eight-inch blade.
II. Carlos’s instructional error argument
Carlos next contends the trial court prejudicially erred by
instructing the jury that it could find he used a deadly or
dangerous weapon under either of two theories, one of which was
legally erroneous. The Attorney General agrees that the court
erred, but argues the error was harmless. We agree with Carlos.
Using CALCRIM No. 3145, the trial court instructed the
jury that it could find Carlos guilty of using a deadly or
dangerous weapon under either of the following two theories: (1)
a knife is an inherently deadly weapon; or (2) Carlos used the
knife in a manner likely to cause death or great bodily injury.6
The first theory was legally erroneous because a knife, as a
matter of law, is not an inherently deadly weapon. (See
Aledamat, supra, 8 Cal.5th at p. 6.) The trial court therefore
erred in instructing the jury on the first theory.
The question is whether the prosecution can sustain its
burden of proving the error was harmless beyond a reasonable
doubt. (Aledamat, supra, 8 Cal.5th at pp. 3-4, 9-13, citing
Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct.824; 17
L.Ed.705].) We conclude the prosecution cannot sustain its
burden. (See Ibid.)
6 The instruction provided: “A deadly or dangerous weapon is
any object, instrument, or weapon that is inherently deadly or
dangerous or one that is used in such a way that it is capable of
causing and likely to cause death or great bodily injury.”
9
People v. Stutelberg (2018) 29 Cal.App.5th 314 is
instructive. The instructional error in that case was the same as
the one here. (Id. at p. 317.) The Court of Appeal concluded the
error was harmless in relation to the weapon enhancement
attached to a mayhem conviction, explaining the evidence showed
Stutelberg used a box cutter to slice the back of the victim’s head
from her temple to her hairline. (Id. at p. 321.) In relation to an
assault with a deadly weapon conviction, however, the court
concluded the error was prejudicial. (Id. at pp. 322-323.) The
court explained that the victim of the assault, unlike the mayhem
victim, was not harmed. (Id. at p. 322.) The Court of Appeal held:
“The jury could reasonably conclude that [Stutelberg’s] ‘flicking’
motion was more of a threat, as opposed to an act likely to cause
death or great bodily injury. Under these circumstances, we
cannot say that the court’s error in instructing the jury regarding
an inherently dangerous weapon was harmless beyond a
reasonable doubt.” (Ibid.) The same is true here. The jury could
reasonably conclude Carlos’s display of the knife in the
commission of counts two and three was “more of a threat, as
opposed to an act likely to cause death or great bodily injury.”
(Ibid.) “Given the factual uncertainty as to whether [Carlos] used
the [knife] in a manner likely to cause [ ] serious physical injury,
we cannot say beyond a reasonable doubt that a properly
instructed jury would have found [ ] [Carlos] necessarily used the
[knife] in a deadly or dangerous manner.” (Id. at p. 323.) We
therefore reverse Carlos’s section 12022, subdivision (b)(1)
enhancements on counts two and three.
We disagree with the Attorney General’s argument that the
error was harmless because the prosecution only argued the
legally valid theory to the jury (i.e., that Carlos used the knife in
10
a manner likely to cause death or great bodily injury). The
prosecution argued the issue to the jury as follows: “We have the
knife. It’s not like a butter knife, it’s a large kitchen knife. We
saw that in court. That was displayed to these victims. It doesn’t
mean that the defendant needs to be pointing it at them, at these
victims, or stabbing them. It means that he is displaying it and
that that itself is an object that could cause some damage. We
have that here.” (Italics added.) In the above-italicized language,
the prosecution suggested to the jury it could find the
enhancement true based on the legally invalid theory that a knife
is an inherently deadly weapon.
III. Carlos’s ineffective assistance of counsel claim
Carlos next argues his attempted robbery and battery
convictions (counts one and four) must be reversed because trial
counsel was ineffective in failing to object to prejudicial hearsay
that was inadmissible under state law and under the
Confrontation Clause. The Attorney General counters that
counsel was not ineffective, and even assuming she was, there
was no prejudice. We conclude the evidence was admissible, and
as a result, we reject the contention that trial counsel was
ineffective in failing to object.7
7 Carlos filed a petition for writ of habeas corpus
concurrently with his opening brief raising this same issue (case
no. B307801). Because we conclude the evidence was admissible,
we dismiss his habeas corpus petition as moot in a separate
order.
11
A. DNA evidence
A criminalist collected and analyzed the DNA from the La
Vida suspect’s t-shirt. That analyst’s written notes were then
sent to criminalist Crisely Abral, who reviewed the notes and
wrote a report.8 Ms. Abral testified that the DNA test results
indicated that Carlos’s DNA was on the t-shirt. Defense counsel
did not object to Ms. Abral’s testimony.
B. Applicable legal principles
1. Ineffective assistance of counsel
To establish ineffective assistance of counsel, a criminal
defendant must show both that counsel’s performance was so
deficient that it amounted to a failure to function as the “counsel”
8 Ms. Abral explained her lab’s “quality control” or “technical
review” process as follows:
[A]t every step, there is another criminalist that also
reviews the paperwork, making sure everything, the
reagents that we use, everything is [in] proper status.
And then after that also when I write a report, I have
to review everything at the end, again, after it’s been
reviewed in every single step, and then after I write
my report, somebody else does a technical review,
meaning somebody, another criminalist like me, will
look at my paperwork and will review all that
paperwork, and also do like—do I agree with your
findings, then they sign it, and then it goes through a
third review, administrative review, which is the
final review before it gets released to [the] detective.
12
guaranteed by the Sixth Amendment, and that counsel’s
deficiencies were so prejudicial that the defendant was deprived
of a fair trial whose result was reliable. (Strickland v.
Washington (1984) 466 U.S. 668, 687 [104 S.Ct. 2052, 80 L.Ed.2d
674] (Strickland); People v. Pensinger (1991) 52 Cal.3d 1210,
1252.) An attorney’s performance is deficient under Strickland if
his or her conduct fell below objective standards of
reasonableness under prevailing professional norms. (Strickland,
supra, 466 U.S. at pp. 687-688.) Prejudice under Strickland is
established where there is a reasonable probability that, absent
counsel’s alleged errors, the result of the proceeding would have
been different. (Id. at p. 694.) A reasonable probability is a
probability sufficient to undermine confidence in the verdict.
(Ibid.)
2. State hearsay law
Hearsay is “evidence of a statement that was made other
than by a witness while testifying at the hearing and that is
offered to prove the truth of the matter stated.” (Evid. Code,
§ 1200, subd, (a).)
3. Confrontation Clause
Both the United States and the California Constitutions
provide that “[i]n all criminal prosecutions, the accused shall
enjoy the right . . . to be confronted with the witnesses against
him[.]” (U.S. Const., 6th Amend.; see U.S. Const., 14th Amend.;
see Cal. Const., art. I, sec. 15.) “[T]he Sixth Amendment’s
confrontation right bars the admission at trial of a testimonial
13
out-of-court statement against a [ ] defendant unless the maker of
the statement is unavailable [ ] at trial and the defendant had a
prior opportunity” to cross-examine that person. (People v. Lopez
(2013) 55 Cal.4th 569, 580-581 (Lopez); see Crawford v.
Washington (2004) 541 U.S. 36, 59 [124 S.Ct. 1354, 158 L.Ed.2d
177] (Crawford).) “To be considered testimonial, the out-of-court
statement (1) must have been made with some degree of
formality or solemnity[,] and (2) must have a primary purpose
that pertains in some fashion to a criminal prosecution.” (People
v. Barba (2013) 215 Cal.App.4th 712, 720-721 (Barba); see Lopez,
supra, 55 Cal.4th at pp. 581-582.) “However, the United States
Supreme Court has been unable to agree on a precise definition of
those requirements. [Citation.]” (Barba, supra, 215 Cal.App.4th
at p. 721; see Lopez, supra, 55 Cal.4th at pp. 581-582.)
C. Analysis
Applying the above-stated principles, we conclude Ms.
Abral’s testimony was admissible. Barba is analogous to Carlos’s
case. In Barba, DNA analysist Linda Wong tested hairs
discovered on a sweatshirt at the crime scene and concluded they
were consistent with Barba’s DNA. (Barba, supra, 215Cal.App.4th at p. 718.) Wong did not testify at Barba’s trial; her
supervisor Jennifer Reynolds testified instead. (Ibid.) Dr.
Reynolds’s duties included “performing technical reviews of case
folders created by the lab’s test analysts, independently drawing
conclusions from the test results based on her own expertise and
training, and either cosigning the reports or testifying about
them in court.” (Ibid.) Our colleagues in Division Eight held Dr.
Reynolds’s testimony admissible, explaining: “[I]t makes no sense
14
to exclude evidence of DNA reports if the technicians who
conducted the tests do not testify. So long as a qualified expert
who is subject to cross-examination conveys an independent
opinion about the tests results, then evidence about the DNA
tests themselves is admissible.” (Barba, supra, 215 Cal.App.4th
at p. 742.) We agree with Barba and conclude Ms. Abral’s
testimony did not violate Carlos’s confrontation rights. (See id. at
p. 743.)
We likewise reject Carlos’s contention that Ms. Abral’s
testimony was inadmissible under state law. As our Supreme
Court made clear in People v. Sanchez (2016) 63 Cal.4th 665(Sanchez), an expert may “still rely on hearsay in forming an
opinion, and may tell the jury in general terms that he did so.”
(Id. at p. 685, italics in original.) That is what happened here.
Ms. Abral relied on the analyst’s findings in forming her own
opinion that the DNA was Carlos’s. Her testimony was therefore
admissible under Sanchez. (See also People v. Garton (2018) 4
Cal.5th 485, 505-506 [coroner’s testimony was admissible under
Sanchez even though she did not perform the autopsy herself, but
rather exercised her own independent judgment to arrive at her
conclusions, which were based on the autopsy report written by
and photographs taken by the coroner who performed the
autopsy].)
Because the testimony was admissible under state law and
the Confrontation Clause, it follows that counsel was not
ineffective in failing to object.9
9 Having concluded trial counsel was not ineffective, we need
not address whether the failure to object was prejudicial.
15
IV. Carlos’s unauthorized sentence argument
Carlos lastly contends his eight-month sentence for
attempted robbery (count one) must be modified to a six-month
sentence. The Attorney General counters that Carlos’s sentence
on count one was correct. Carlos makes no mention of this
argument in his reply brief. We agree with the Attorney General.
Section 213, subdivision (b) states: “Notwithstanding Section 664,
attempted robbery in violation of paragraph (2) of subdivision (a)
is punishable by imprisonment in the state prison.” Section 18,
subdivision (a) states that an unspecified punishment of
imprisonment for a felony is sixteen months, two years, or three
years. The trial court selected count two as the principal term,
and under the above-referenced statutes, was correct in imposing
an eight-month subordinate term on count one (i.e. one-third the
middle term of two years). (See § 1170.1, subd. (a).)
16
DISPOSITION
Carlos’s section 12022, subdivision (b)(1) enhancements are
reversed on counts two and three, and the matter is remanded for
further proceedings consistent with the opinion, which may
include a retrial on those enhancements. In all other respects, the
judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURREY, J.
We concur:
WILLHITE, Acting P.J.
COLLINS, J.
17