P. v. Pineda

Filed 1/16/07 P. v. Pineda CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 opinions not certified for
publication or ordered published, except as specified by rule 8.1115(a). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
VIVIANO IBARRA PINEDA,
Defendant and Appellant.
F049498
(Super. Ct. No. MCR018755)
OPINION
APPEAL from a judgment of the Superior Court of Madera County. Jennifer R.
S. Detjen, Judge.
Sylvia Koryn, under appointment by the Court of Appeal, for Defendant and
Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney
General, Mary Jo Graves, Assistant Attorney General, Charles A. French and David
Andrew Eldridge, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-

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2.
PROCEDURAL AND FACTUAL HISTORIES
Appellant Viviano Ibarra Pineda was convicted by jury trial of four counts of
second degree robbery (Pen. Code,1 § 211, counts 1, 3-5) and one count of commercial
burglary (§ 459, count 2). In a bifurcated proceeding, the trial court found true the
alleged prior prison-term enhancement. (§ 667.5, subd. (b).) Appellant was sentenced to
an aggregate term of nine years as follows: the upper term of five years on count 1, plus
a consecutive one-year term (1/3 the mid-term) for counts 3 through 5, and one year for
the prior prison-term enhancement. The sentence on count 2 was stayed pursuant to
section 654.
Counts 1 and 2
On June 7, 2004, appellant entered the La Oaxacana jewelry store in Madera and
asked the owner, Antonia Herrera, to show him wedding rings. Herrera recognized
appellant as the man who had a few days earlier offered to sell her CDs. When appellant
had previously visited the store, he was driving a white Ford Tempo. When Herrera
opened the glass case to show appellant the rings, appellant pointed a gun at Herrera and
ordered her to put everything in a bag quickly. Herrera screamed and grabbed her young
child, who was also at the store. She tried to escape out a front door and, in doing so,
turned over a glass case, breaking the glass. Appellant grabbed bracelets and watches
and ran out.
Counts 3 and 4
On May 27, 2004, appellant entered the Hugo’s Fructose store in Madera.
Hortencia Padilla and Hilda Hernandez were working that day. Appellant walked up to
the counter and asked Padilla if she could change a $10 bill. Hernandez was standing
three feet away. When Padilla went to give the change, appellant pointed a gun at Padilla
1All further references are to the Penal Code unless other noted.

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3.
and demanded that she give him all the money she had. Padilla put money on the
counter, and appellant left with the bills. Hernandez recognized appellant as a former
customer.
Count 5
On May 26, 2004, appellant watched Diego Pascual pay for a purchase with a
$100 bill. When Pascual left the store, appellant approached him in a red Camaro-like
car. Appellant got out of the car and pointed a gun at Pascual demanding first his money
and then his watch.
All of the victims identified appellant as the robber in photo lineups and at trial.
Appellant was arrested near the jewelry store. He was wearing three gold bracelets taken
from the store and had a hypodermic syringe in his pants pocket. He said he was a drug
user. He also had $66 in cash. When the officers seized the money, appellant said, “Why
are you taking my money? They are not part of the robbery. Only the bracelets are part
of the robbery, not the money.” Appellant also told police the woman at the jewelry store
could verify that no money was taken in the jewelry store robbery. Appellant said he
used a toy gun, not a real gun. Appellant was the registered owner of a white Ford
Taurus. His wife is the registered owner of a red Ford Probe. A tray of CDs and a toy
gun were found in the white Ford. Appellant’s wife was in possession of a bracelet and a
watch stolen from the jewelry store. Appellant’s forearms were scarred with track marks,
which were clearly visible when he was arrested.
Defense
At trial, appellant claimed he did not rob any of the victims. He said he bought the
watch and bracelets from a street vendor who was tattooed. Both Hernandez and Padilla
said the robber had a tattoo on his left forearm. Appellant displayed his arms to the
jurors showing that he had no tattoos.

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4.
DISCUSSION
I. Admission of drug evidence
It is fundamental that only relevant evidence is admissible. (Cal. Const., art. I,
§ 28(d); Evid. Code, § 351.) “Evidence is relevant if it has any tendency in reason to
prove a disputed material fact. (Evid. Code, § 210.)” (People v. Guerra (2006) 37
Cal.4th 1067, 1113.) The trial court has broad discretion in determining the relevance of
evidence. (Ibid.) Evidence Code section 352 precludes admission of evidence, which,
although relevant, is more prejudicial than probative. It is designed for situations in
which evidence of little evidentiary impact evokes an emotional bias. (People v. Gionis
(1995) 9 Cal.4th 1196, 1214.) A trial court’s decision pursuant to Evidence Code
section 352 is also subject to an abuse-of-discretion analysis. (People v. Ramirez (2006)
39 Cal.4th 398, 453-454.) A trial court’s decision to admit evidence under either of these
sections will be reversed only upon a clear showing of abuse. (Ibid; People v. Turner
(1990) 50 Cal.3d 668, 703-705.)
Appellant claims the evidence that he was a drug user, possessed a hypodermic
syringe, and had track marks was irrelevant because there is no evidence that a drug user
is more likely than others to commit robberies. Evidence that a defendant has a drug
habit requiring expenditures beyond his apparent means may be relevant to prove a
motive to commit a theft-related offense if there is evidence establishing the extent of the
drug habit, how expensive the individual habit is, and what drugs were used and how
often. (People v. Valentine (1988) 207 Cal.App.3d 697, 703; People v. Reid (1982) 133
Cal.App.3d 354, 362-363.)
Here, we do not have to decide whether the evidence about appellant’s drug use is
sufficient to infer that appellant was motivated to commit the robbery. It was relevant for
another purpose—to explain statements made by victims Padilla and Hernandez. Both
told police that the robber had a tattoo on his left forearm; however, appellant has no

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5.
tattoos on his arms. The defense theory seized on this evidence to argue that appellant
had been misidentified. The defense attorney attempted to impeach Padilla’s and
Hernandez’s identification of appellant as the robber by focusing on their earlier
statements to police that appellant had a tattoo. In order to rebut this attack on their
credibility, the prosecution offered evidence of appellant’s intravenous drug use and the
track marks on his arms. Under these circumstances, this evidence was highly relevant to
explain the discrepancy between the victims’ description of the robber and their
identification of appellant as the robber at trial. (See People v. Gonzalez (2006) 38
Cal.4th 932, 946 [evidence is relevant if it helps jury decide whether eyewitnesses
identification is credible].) It was well within the discretion of the trial court to find this
evidence to be more probative than prejudicial, as required by Evidence Code
section 352.
Further, even if there was error, we would conclude that it is not reasonably
probable that the exclusion of the evidence would have resulted in a verdict more
favorable to appellant. (People v. Watson (1956) 46 Cal.2d 818, 836.) There was strong
evidence of guilt. Appellant was identified by each of the victims, all of whom had
observed him in some capacity before the robbery. When arrested, appellant was in
possession of several items from the jewelry store robbery. His wife owned a red car,
matching the description given by Pascual. Appellant owned a white car, and a toy gun
was found in the car, along with a box of CDs, which corroborated Herrera’s
identification. Appellant made incriminating statements to law enforcement when he was
arrested. It is highly unlikely the jury would have returned a more favorable verdict had
the court excluded the evidence of appellant’s drug use.
II. Sufficiency of evidence on count 3
Appellant claims there is no evidence to show that Hernandez had constructive
possession of the store’s property. We disagree.

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6.
To evaluate a challenge to the sufficiency of the evidence on appeal, we evaluate
the entire record and draw all reasonable inferences in support of the judgment to
determine whether there is evidence that is reasonable, credible, and of solid value from
which a trier of fact could find the defendant guilty beyond a reasonable doubt. (People
v. Wader (1993) 5 Cal.4th 610, 640.) Padilla testified that her job at Hugo’s Fructose
was to take care of customers and make the natural juices and diced fruit sold at the
business. The store is small—about eight feet square. Padilla described Hernandez as a
“co-worker.” Both Hernandez and Padilla were working when the robbery occurred.
Appellant entered the store and asked Padilla if she could change a $10 bill. Hernandez
was with Padilla when appellant pulled out a gun and ordered Padilla to give him all the
money, which she did. Padilla said she waited on appellant, but Hernandez was standing
just three feet away. Both were behind the counter. Hernandez testified, “I couldn’t
believe it because that had never happened to us.”
This is sufficient evidence to establish that Hernandez had constructive possession
of the money stolen. Robbery is an offense against the person. California courts have
consistently held that a store employee may be the victim of a robbery, even though he or
she is not the store’s owner and not at the moment in immediate control of the stolen
property, if he or she is in constructive possession of the store’s property. (People v.
Nguyen (2000) 24 Cal.4th 756, 761-762; People v. Miller (1977) 18 Cal.3d 873, 880.)
Section 211 is “applicable to any servant or servants left in sole occupation of the
premises or particular part thereof by the employer.” (People v. Downs (1952) 114
Cal.App.2d 758, 766.)
Robbery convictions have been upheld where the victim holds a variety of job
functions: employees servicing customers, as well as those stocking shelves; night
watchmen as well as janitorial staff. (People v. Frazer (2003) 106 Cal.App.4th 1105,
1119-1120; People v. Jones (2000) 82 Cal.App.4th 485, 491.) Appellant is correct that
the California Supreme Court has granted review in a case where the appellants claimed

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7.
the trial court misinstructed the jury on the law of constructive possession in the context
of a restaurant robbery. In that case, the Supreme Court has delineated the issues as,
“Did the trial court err in instructing the jury that all employees have constructive
possession of their employer’s property during a robbery, and, if so, what is the proper
standard for determining whether an employee has constructive possession of the
employer’s property during a robbery?” (People v. Scott (review granted Nov. 16, 2005,
S136498) [nonpub. opn.]; 2005 Calif. Daily Op. Service 9813.) This is not the
instruction given to the jury in this case, however. The jury here was instructed with
CALJIC No. 9.40.3, which states, “Constructive possession does not require actual
possession, but does require that a person knowingly exercise control over or the right to
control a thing, either directly or through another person or persons.” The instruction
also explains that “[o]ne person may have possession alone, or two or more persons
together may share actual or constructive possession. [An [employee] … exercises
control or the right to control store property if the employee under the circumstances has
either express or implied authority over the store property.] [¶] A [store employee] …
may be the victim of a robbery even though he or she is not the owner and not at the
moment in immediate control of the allegedly stolen property, so long as that employee is
in constructive possession of the property at the time of the taking.” (CALJIC No. 9.40.3
(2004 rev.).) In Scott, unlike the case currently under review, the jury was told that
employees of a business are in constructive possession of the business’s property during a
robbery. Here, the jury was not told that employee status alone is sufficient to establish
constructive trust as a matter of law.
Regarding the second prong of the issues under review in Scott, appellant, citing
People v. Jones (1996) 42 Cal.App.4th 1047, 1054 and People v. Frazer, supra, 106
Cal.App.4th at page 1115, argues that there must be substantial evidence that the
employee has actual possession or acts in some representative capacity with respect to the
owner of the property and must have express or implied authority over the property

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8.
taken. The decisions in Jones and Frazer provide no assistance to appellant. First, the
robbery convictions in Jones and Frazer were affirmed—Jones as to a truck driver
present in a store at the time of a robbery, and Frazer as to the entire staffs at two auto
parts stores. (People v. Jones, supra, 42 Cal.App.4th at pp. 1054-1055; People v. Frazer,
supra, 106 Cal.App.4th at pp. 1119-1120.) Second, regardless of the standard applied,
there is substantial evidence to support the robbery conviction relating to Hernandez.
A reasonable inference can be drawn from the evidence that both Padilla and
Hernandez shared the same job functions. The store is very small and both were behind
the counter. They were co-workers, and Padilla made a point of stating that, although it
was she who waited on appellant, Hernandez was “there with us.” Given the nature of
the business, and Hernandez’s close proximity to Padilla behind the counter during the
robbery, the evidence supports a finding that Hernandez and Padilla were both available
to serve customers, and it was only a matter of chance that Padilla waited on appellant
rather than Hernandez. Under these circumstances, the evidence supports a finding that
both had constructive possession of the money stolen from Hugo’s Fructose. (See People
v. Ramos (1982) 30 Cal.3d 553, 589 [when two or more persons are in joint possession of
single item of property, each may be a separate victim of the same taking]; People v.
Miller, supra, 18 Cal.3d 873, 881 [more than one employee may be in constructive
possession of store’s property at same time].)
III. Sufficient evidence to support the prior-prison-term finding
Appellant claims the California Law Enforcement Telecommunications System
(CLETS) rap sheet submitted as proof of his prior conviction was insufficient to prove
the enhancement allegation that he had served a prison term after being convicted of
second degree burglary in April 2001 and had failed to remain out of custody. (§ 667.5,
subd. (b).) Appellant argues that the common method of proving a prior conviction is to
introduce the record of conviction certified by an official custodian.

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9.
A CLETS record is admissible to prove a prior conviction. (See People v.
Martinez (2000) 22 Cal.4th 106, 116 (Martinez); People v. Dunlap (1993) 18
Cal.App.4th 1468, 1471-1481 (Dunlap) [Evid. Code, § 1280 permits admission of
official record without evidence of identity and mode of preparation if court takes judicial
notice or if sufficient independent evidence shows it was prepared to assure
trustworthiness].) In Dunlap, we pointed out the significance of a document which, on
its face, showed it is an official record. (Dunlap, supra, at p. 1481 [face of printout
indicates it was generated by CLETS system (leave article in statutorily authorized
program) and is certified as being received from CLETS].) As we observed in Dunlap,
there is a difference between going outside the record of conviction to establish the
nature of a prior conviction and simply proving the existence of a prior conviction and its
subsequent prison term. (Id. at p. 1476.) We noted that other types of evidence, other
than the record of conviction, could be used to establish a prior conviction, assuming the
applicable rules for admissibility have been met, even though these other types of
evidence (e.g., official records such as CLETS printouts) could not be used to establish
the nature of the prior conviction. (Ibid.)
Appellant attempts to distinguish Dunlap by arguing that in Dunlap, and also in
Martinez, there was additional evidence to establish the prior conviction (in Dunlap,
abstracts of judgment, and in Martinez, testimony from a paralegal in the District
Attorney’s office and testimony of a deputy sheriff to whom defendant made admissions
regarding his criminal history). This challenge to the evidence, however, is not one to the
sufficiency of the CLETS document itself, but to its admissibility (foundation) as an
official record, which goes to the issue of trustworthiness. (Dunlap, supra, 18
Cal.App.4th at p. 1479.) Appellant did not object to the authenticity of the document or
its status as an official record at the trial court. He raised no objection at all. Any
objection to the admission of the CLETS document on these grounds is waived by a
failure to raise the objection in the trial court. (Evid. Code, § 353; People v. Visciotti

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10.
(1992) 2 Cal.4th 1, 53, fn. 19.) Even if the objection had not been waived, appellant’s
argument still fails. The document is certified by the Madera County District Attorney’s
Office as the true and official document received from CLETS. The procedure is similar
to the certification provided in the Dunlap case. (Dunlap, supra, 18 Cal.App.4th at
p. 1472.)
The CLETS rap sheet shows that appellant was convicted of second degree
burglary in Orange County case No. 00CF3161 and sentenced to three years in state
prison. He was placed in the custody of the “CDC” on April 25, 2001, at “CORR
WASCO.” The report shows that he was transferred to “USIS Sacramento” on July 22,
2002, on a “8 1227 US-DEPORTABLE ALIENS.” The next entry is for June 9, 2004,
showing his arrest for the underlying offenses. These entries support the trial court’s
finding that appellant “was received at the Department of Corrections state prison on
April 25, 2001, for second degree felony burglary on a three-year state prison sentence”
and that he “was then transferred into federal custody on July 22nd, 2002, for [an]
immigration issue and sometime between July 22nd, 2002, and June 9th, 2004, he was
then out of custody again because [the CLETS document] shows an arrest on June 9th,
2004, for this case, which is less than five years.” There is sufficient evidence to support
the prior prison term enhancement. (§ 667.5, subd. (b).)
IV. Blakely
Appellant contends that imposing the upper term on count 1 and the consecutive
terms on counts 4 and 5 based on factors including the use of a weapon, the number and
increasing seriousness of his prior convictions, and unsatisfactory behavior on probation,
violated his Sixth and Fourteenth Amendment rights to a jury trial and proof beyond a
reasonable doubt. He cites to Blakely v. Washington (2004) 542 U.S. 296.
The California Supreme Court has now resolved the Blakely issue and rejected the
arguments made by appellant. The imposition of a consecutive sentence based on facts
determined by the trial court, not admitted by appellant or found by a jury, does not

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deprive appellant of his constitutional right to a jury trial or his rights to have all facts
legally essential to his sentence proved beyond a reasonable doubt. (People v. Black
(2005) 35 Cal.4th 1238, 1244, 1265.) No further discussion is required. (We are aware
that the United States Supreme Court is reviewing the question of the applicability of
Blakely to California sentencing in People v. Cunningham (Apr. 18, 2005, A103501),
cert. granted sub nom. Cunningham v. California (2006) 126 S.Ct. 1329.
DISPOSITION
The judgment is affirmed.
_____________________
Wiseman, J.
WE CONCUR:
_____________________
Vartabedian, Acting P.J.
_____________________
Gomes, J.

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