P. v. Tinajero

Filed 12/13/06 P. v. Tinajero CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE,
Plaintiff and Respondent,
v.
OSVALDO TINAJERO,
Defendant and Appellant.
2d Crim. No. B182757
(Super. Ct. No. BA271590/PA046893)
(Los Angeles County)
This appeal involves two separate cases. In case number BA271590, appellant
appeals from the judgment entered after a jury had convicted him on one count of second
degree attempted robbery (Pen. Code, §§ 664, 211),1 two counts of second degree
robbery (§ 211), and one count of possession of a firearm by a felon. (§ 12021, subd.
(a)(1).) As to the attempted robbery, the jury found true an allegation that appellant had
personally and intentionally discharged a firearm within the meaning of section
12022.53, subdivision (c). As to each of the two robbery counts, the jury found true an
allegation that appellant had personally used a firearm within the meaning of section
12022.53, subdivision (b).
1 All statutory references are to the Penal Code unless otherwise stated.

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2
In the other case, number PA046893, appellant appeals from the judgment entered
after a jury had convicted him of resisting an executive officer. (§ 69.)2 (Augmented CT
filed 9/14/05 In both cases, the trial court found true an allegation that appellant had
been convicted of a "strike" within the meaning of California's "Three Strikes" law. (§§
1170.12, subds.(a)-(d), 667, subds. (b)-(i).)
In case number BA271590, the trial court sentenced appellant to prison for 41
years, 8 months. In case number PA046893, the trial court sentenced appellant to a
consecutive term of 16 months. Accordingly, the total prison term for both cases was 43
years.
Appellant contends that the trial court erroneously (1) refused to exclude in-court
identifications that were tainted by an unduly suggestive photo lineup; (2) imposed, in
violation of section 654, a concurrent sentence for the conviction of possession of a
firearm by a felon; (3) imposed, in violation of Blakely v. Washington (2004) 542 U.S.
296 (Blakely), the upper term for the attempted robbery conviction; and (4) instructed the
jury on the mens rea required for a violation of section 69.
We affirm the judgments. However, at respondent's request, we direct the trial
court to correct its minutes and the abstract of judgment in case number PA046893 to
conform to the judgment pronounced by the court.
Facts
Case Number BA271590
On October 21, 2003, Kyung Yoon was working at a market. (RT 1202)
Appellant entered the market, approached Yoon, pointed a gun at her, and demanded
money. Appellant had a white handkerchief on his head. Yoon sat on the floor. A
female accomplice tried to open the cash register, but it would not open. Appellant fired
2 Appellant originally filed a notice of appeal only as to case number BA271590. On
August 10, 2005, we granted his motion to amend the notice of appeal nunc pro tunc to
include case number PA046893.

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a shot at Yoon, but the bullet missed her. Appellant and his accomplice then left the store
without taking any property. (This is the attempted robbery.)
On October 21, 2003, Everardo Castaneda was working at a food store. Appellant
and a female accomplice entered the store. Appellant had "a white thing on his head."
Appellant approached Castaneda, "pulled out a gun from his pocket," and demanded
money. Castaneda gave money to the female accomplice. Appellant and the accomplice
then left the store.
On October 21, 2003, Alberto Alferez and Armando Ochoa were working at a
restaurant. Appellant and a male accomplice entered the restaurant. Appellant, who had
a white garment "tied around his head," was holding a gun. Appellant said: "Do you
want to die[?]" Appellant continued to hold the gun while his accomplice took money
from a cash register. Appellant and his accomplice then left the restaurant.
Case Number PA046893
On August 17, 2004, Deputy Sheriff Omar Chavez was working at a correctional
facility. Appellant was an inmate in a "disciplinary dorm." Chavez tried to conduct a
pat-down search of appellant, but appellant refused to cooperate. When Chavez tried to
handcuff appellant, appellant elbowed him in the face. Appellant also threw a punch at
Chavez's face, but missed. Chavez forced appellant down to the ground. While on the
ground, appellant was throwing punches and kicking. Three other deputies helped
Chavez subdue appellant. During the struggle, appellant scratched Chavez's right
forearm. The wound left a scar.
Discussion – Case Number BA271590
Photo Lineup
Appellant contends that the trial court erred in refusing to exclude in-court
identifications of him because they were tainted by an unduly suggestive six-man photo
lineup. Appellant argues that the photo lineup was unduly suggestive for two reasons:
(1) his facial image was "noticeably larger" than the facial images of the other five
subjects, and (2) "his complexion was also darker" than their complexions.

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" ' "In deciding whether an extrajudicial identification is so unreliable
as to violate a defendant's right to due process, the court must ascertain (1) 'whether the
identification procedure was unduly suggestive and unnecessary,' and, if so, (2)
whether the identification was nevertheless reliable under the totality of the
circumstances." ' [Citation.] 'The defendant bears the burden of demonstrating the
existence of an unreliable identification procedure.' [Citation.] . . . [¶] We review
deferentially the trial court's findings of historical fact, . . . but we independently review
the trial court's ruling regarding whether, under those facts, a pretrial identification
procedure was unduly suggestive. [Citation.]" (People v. Gonzalez (2006) 38 Cal.4th
932, 942-943.) A photo lineup is unduly suggestive if " 'anything caused defendant to
"stand out" from the others in a way that would suggest the witness should select him.'
[Citation.]" (Id., at p. 943.)
The photo lineup here consisted of six photographs of equal size, each of which
showed the face of a Hispanic man with a moustache. All of the men appear to be of
approximately the same age. Their foreheads and hair have been whited out. (This was
apparently done because the suspect with a gun was wearing a white garment on his
head.) Appellant's face is somewhat larger than the other faces. His face is
approximately 1 3/8 inches wide and 1 1/2 inches long. (Length is measured from the
bottom of the chin to just above the eyebrows.) The smallest face is approximately 1
1/16 inches wide and 1 1/8 inches long. Appellant's complexion appears darker than that
of four of the other men, but this difference is not marked and seems to be due to lighting
conditions. (Exhibit 5)
Exercising our independent review, we conclude that there is nothing in the photo
lineup that would cause appellant " 'to "stand out" from the others in a way that would
suggest the witness should select him.' " (People v. Gonzalez, supra, 38 Cal.4th at p.
943.) Accordingly, the identification procedure was not unduly suggestive, and we need
not consider " ' "whether the identification was nevertheless reliable under the totality of

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the circumstances." ' " (Id., at p. 942.) The trial court, therefore, did not err in refusing to
exclude the in-court identifications.
Concurrent Sentence
Appellant contends that the trial court erroneously imposed a concurrent sentence
for the conviction of possession of a firearm by a felon. Appellant argues that, pursuant
to section 654, the trial court should have stayed the sentence because appellant's
"possession of the gun was an indivisible part of each robbery."
Section 654 " ' "precludes multiple punishment for a single act or for a course of
conduct comprising indivisible acts. 'Whether a course of criminal conduct is
divisible . . . depends on the intent and objective of the actor.' [Citations.] (People v.
Jones (2002) 103 Cal.App.4th 1139, 1143.)" ' " " ' "Whether a violation of section
12021, forbidding persons convicted of felonies from possessing firearms concealable
upon the person, constitutes a divisible transaction from the offense in which he employs
the weapon depends upon the facts and evidence of each individual case. Thus where the
evidence shows a possession distinctly antecedent and separate from the primary offense,
punishment on both crimes has been approved. On the other hand, where the evidence
shows a possession only in conjunction with the primary offense, then punishment for the
illegal possession of the firearm has been held to be improper where it is the lesser
offense." ' [Citations.]" (Id., at pp. 1143-1144, fn. omitted.)
"It is clear that multiple punishment is improper where the evidence 'demonstrates
at most that fortuitous circumstances put the firearm in the defendant's hand only at the
instant of committing another offense . . . . ' [Citation.]" (People v. Jones, supra, 103
Cal.App.4th at p. 1144.) "On the other hand, it is clear that multiple punishment is proper
where the evidence shows that the defendant possessed the firearm before the crime, with
an independent intent." (Ibid.) "Based upon these principles, . . . section 654 is
inapplicable when the evidence shows that the defendant arrived at the scene of his or her
primary crime already in possession of the firearm." (Id., at p. 1145.)

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Here appellant arrived at the scene of each robbery already in possession of the
firearm. "It was therefore a reasonable inference that [appellant's] possession of the
firearm was antecedent to the primary crime. [Citation.]" (People v. Jones, supra, 103
Cal.App.4th at p. 1147.) "The evidence likewise supported an inference that [appellant]
harbored separate intents in the two crimes. [Appellant] necessarily intended to possess
the firearm when he first obtained it . . . . That he used the gun [in the robbery] required
a second intent in addition to his original goal of possessing the weapon. [Appellant's]
use of the weapon after completion of his first crime of possession of the firearm thus
comprised a 'separate and distinct transaction undertaken with an additional intent which
necessarily is something more than the mere intent to possess the proscribed weapon.'
[Citation.]" (Ibid.) The trial court, therefore, did not violate section 654 by imposing a
concurrent sentence for the conviction of possession of a firearm by a felon.
Imposition of Upper Term
Based on appellant's having served a prior prison term, the trial court imposed the
upper term for the attempted second degree robbery conviction. Appellant contends that,
pursuant to Blakely, supra, 542 U.S. 296, imposition of the upper term violated his
constitutional right to a jury trial.
Appellant forfeited his right to raise this issue because he failed to object on
Blakely grounds in the trial court. Appellant was sentenced after Blakely was decided, so
there is no excuse for his failure to object. (People v. Hill (2005) 131 Cal.App.4th 1089,
1103.) Furthermore, appellant's contention was rejected by our Supreme Court in People
v. Black (2005) 35 Cal.4th 1238, 1244: "[T]he judicial factfinding that occurs when a
judge exercises discretion to impose an upper term sentence or consecutive terms under
California law does not implicate a defendant's Sixth Amendment right to a jury trial." In
any event, Blakely does not apply when a prior conviction is used to increase a
defendant's sentence. (Blakely, supra, 542 U.S. at p. 301.)

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Discussion – Case Number PA046893
Jury Instructions
Appellant contends that the trial court erroneously instructed the jury on the mens
rea required for a violation of section 69, which provides: "Every person who attempts,
by means of any threat or violence, to deter or prevent an executive officer from
performing any duty imposed upon such officer by law, or who knowingly resists, by the
use of force or violence, such officer, in the performance of his duty, is punishable by a
fine not exceeding ten thousand dollars ($10,000), or by imprisonment in the state prison,
or in a county jail not exceeding one year, or by both such fine and imprisonment."
"[S]ection 69 which actually describes two related offenses, attempting to deter
and actually resisting an officer. These two offenses have different elements." (People v.
Lopez (2005) 129 Cal.App.4th 1508, 1530, fn. omitted.) For example, "a willful attempt
to deter or prevent involves a specific intent. [Citations.]" (Ibid.) On the other hand, a
resisting violation of section 69 is a general intent crime. (People v. Roberts (1982) 131
Cal.App.3d Supp. 1, 9.)
Appellant contends that the trial court erred in failing to instruct the jury on the
specific intent required for the "attempt to deter" offense. We need not decide this issue.
Assuming that the trial court erred, the error was harmless beyond a reasonable doubt.
The jury's verdict form shows that it convicted appellant of the resisting offense, not the
"attempt to deter" offense. The form states: "We, the Jury in the above entitled action,
find the defendant, Osvaldo Tinajero, GUILTY of the crime of RESISTING
EXECUTIVE OFFICER, in violation of Penal Code section 69, a felony, as charged in
Count 1 of the information." The verdict form does not mention the "attempt to deter"
offense.
Remand
In case number PA046893, the trial court sentenced appellant to prison for 16
months and directed that this term run consecutively to the sentence of 41 years, 8
months, imposed in case number BA271590. However, the trial court's minutes and the

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abstract of judgment in case number PA046893 state that the 16-month sentence shall run
concurrently with the sentence imposed in case number BA271590. (ACT 37; ACT filed
2/16/06 20) "[I]f the minutes or abstract of judgment fails to reflect the judgment
pronounced by the court, the error is clerical and the record can be corrected at any time
to make it reflect the true facts. [Citation.]" (People v. Little (1993) 19 Cal.App.4th 449,
452.) We must therefore remand the matter to the trial court with directions that it
correct the minutes and abstract of judgment in case number PA046893.
Disposition
The judgments in case numbers BA271590 and PA046893 are affirmed. The trial
court is directed to correct the minutes and abstract of judgment in case number
PA046893 to conform to the judgment pronounced by the court. As corrected, the
minutes and abstract of judgment shall show that the 16-month sentence pronounced in
case number PA046893 shall run consecutively to the sentence pronounced in case
number BA271590. The court shall transmit the corrected abstract of judgment to the
Department of Corrections.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P.J.
COFFEE, J.

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Sam Ohta, Judge
Superior Court County of Los Angeles
______________________________
Robert L. S. Angares, under appointment by the Court of Appeal, for
Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant
Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Kenneth N.
Sokoler, Russell A. Lehman , Deputy Attorneys General, for Plaintiff and Respondent.

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