California Court of Appeal Jun 25, 2013 No. E053755Unpublished
Filed 6/25/13 P. v. Vasquez CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E053755
v. (Super.Ct.No. FWV902589)
CRUZ RODRIGUEZ VASQUEZ et al., OPINION
Defendants and Appellants.
APPEAL from the Superior Court of San Bernardino County. Shahla Sabet,
Judge. Affirmed as modified.
Nancy L. Tetreault, under appointment by the Court of Appeal, for Defendant and
Appellant Cruz Rodriguez Vasquez.
Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant
and Appellant Jose Antonio Rivera.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Collette C.
Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.
1
A jury convicted defendant and appellant Jose Antonio Rivera of 27 counts of
§§ 664, 211), and found true 31 allegations that he personally used a handgun in the
attached counts (§ 12022.5, subd. (a)).2 Another jury convicted defendant and appellant
Cruz Rodriguez Vasquez of 22 counts of second degree robbery (counts 3-6, 8, 10, 15,
18-24, 26, 28, 29, 33, 37-40—§ 211), six counts of attempted second degree robbery
(counts 9, 11, 27, 34-36), and found true 25 allegations a principal was armed with a
handgun in the attached counts (§ 12022, subd. (a)(1)).3
The court sentenced Rivera to an aggregate term of 86 years, 8 months’
incarceration. It sentenced Vasquez to a total term of 39 years’ imprisonment.
On appeal Rivera challenges the sufficiency of the evidence on the true finding
that he personally used a handgun with respect to count 38, the lawfulness of the term
imposed on count 34, and maintains the abstract of judgment does not accurately reflect
the custody credits awarded on the date of his conviction. Vasquez contends insufficient
evidence supports his conviction of attempted robbery on count 36 because one of the
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 The jury also found not true allegations Rivera personally used a handgun in counts 14 and 33. The People earlier dismissed counts 12, 13, 16, and 30. It also dismissed the personal use allegations attached to counts 17 and 34; and that a coparticipant was armed, attached to counts 17 and 34.
3 The jury deadlocked on counts 1, 2, 7, 14, 17, 25, 32 and the allegations attached to counts 21 and 22; therefore, the court declared a mistrial as to those counts and allegations.
2
complaining witnesses was not administered the oath before testifying, the court
erroneously failed to instruct on the lesser included offense of attempted grand theft on
count 9, and the People’s failure to disclose a pending felony charge against one of its
witnesses violated Brady4 and deprived him of his constitutional right to confrontation.
Defendants join in each others’ arguments. We shall direct the superior court to modify
and correct the sentencing minute order and abstract of judgment with respect to Rivera.
In all other respects, we affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
On June 8, 2009, at 9:30, Guadalupe Bracamontes was working at Taqueria
Tamazulena, when defendants came in. Vasquez stayed by the door on his cell phone
while Rivera ordered tacos. When Bracamontes told Rivera the total, Rivera handed her a
paper reading that “it was a robbery and that it was best that [she] cooperated with them
and to put all the money in the bag that they had”; Rivera lifted up his shirt to show her
his gun, said he had a gun, gave her a black plastic bag, and told her to give him all the
money; she did so.
On June 12, 2009, at 7:20 p.m., Norma Garcia was working at Mundo Musical
Metro PCS in Ontario with her supervisor Oralia Marquez. Defendants walked in
together. Rivera walked up and asked Marquez “to put the money in the bag that he had
with him.” Marquez put the money in the bag and handed it to him. Rivera then pulled
up his shirt, showed his gun to her, and told her they should not call the police because
4 Brady v. Maryland (1963) 373 U.S. 83 (Brady).
3
“they knew who we were and they knew where we lived.” The People played a video of
the robbery during trial.
On June 14, 2009, at 5:30 p.m., Azucena Sanchez was working at Tropical Island
Fruit in Ontario with her coworker, Viky Laura Dorado. Vasquez came in, purchased a
drink from Dorado, and walked out. Rivera entered the store as Vasquez left. Rivera
lifted up his shirt to show a gun at his waist and asked Sanchez for the money in the
register; Vasquez reentered the store. Dorado gave Rivera the money from one cash
register and Sanchez gave Vasquez the money from a second cash register. The People
played a video of the robbery during trial.
On June 23, 2009, at 4:30 p.m., Obdulia Hernandez was working at an ARCO gas
station in Ontario. Rivera walked up to her cash register, lifted up his shirt to reveal a
gun, told her to open the cash register, and told Vasquez to get all the money; Vasquez
came to her cash register and took the money. Rivera told her not to call the police
because he knew where she lived and he could go look for her. The People played a
video of the robbery during trial.
On July 17, 2009, at 5:00 p.m., Carmen Valadez was working at Aloha Barbeque
Grill. Defendants walked up to her at the cash register. Vasquez asked her to give him
change for a dollar. She turned around to open the register and both Vasquez and Rivera
came around the counter beside her. Vasquez asked for the money in the drawer; Rivera
lifted his shirt and showed her a gun. Vasquez took the money from the drawer and
placed it in a black plastic bag. Rivera told her not to call anyone as they left.
4
On July 17, 2009, at 3:30 p.m. Jemima Corona, Guadalupe Rivas, and Blanca
Lucero were working at Lucy’s Salon, a beauty shop. Martin Gomez was waiting to get
his hair cut. Refugio Calderon had already received a haircut and was waiting for his
friend. Juan Carlos Gonzalez Martinez was there with his two children. Defendants
walked in. Vasquez told the cashier to give him all the money in the register. Rivera
pulled a gun from his waistband.
Rivera told Gomez to empty all the money he had in his pockets. Gomez told him
he didn’t have any money; Gomez pulled out his wallet to show him; nothing was taken
from him. Rivera told Calderon to give his money to Vasquez; Rivera gave Vasquez
$20. Vasquez told Martinez to give him his money; he did so. Vasquez asked Rivas for
her money; she did not have any to give him. Rivera collected money from Rivas’s
client. Vasquez asked Lucero for her money, but she told him she did not have any.
Vasquez put all the money he collected in a small plastic bag. Vasquez said that no one
should call the police because they knew where everyone lived and if they called,
defendants would go to their homes.
On July 20, 2009, at 4:30 p.m., Monirul Haque was working at Red Hill Gas
Station in Rancho Cucamonga. Defendants came into the store. Rivera came behind the
register, removed a gun from his waist, and pointed it at Haque’s neck. Rivera told him
to give him the money in the register. Vasquez told him to put the money in their bag.
He took the money out of the cash register and put it in the bag. Vasquez told him not to
call the police because he knew where Haque lived. The People played a video of the
robbery during trial.
5
On July 27, 2009, Alejandra Gomez was working at a Chevron Gas Station in
Claremont at 2:30 p.m. Vasquez walked up to her and told her to put all the money in the
cash register into a bag he was carrying. After Vasquez asked for the cash, Gomez
looked over and saw Rivera was standing next to her brother, Juan Carlos Gomez, who
also worked at the gas station; Rivera pointed a gun at the ground. Alejandra opened the
cash register and gave Vasquez all the money inside.5 Vasquez also asked for two packs
of cigarettes. After she handed them over, Rivera told her to put up her arms and stand
with her brother. Rivera told them not to call the police because they knew where they
lived. The People played a video of the robbery during trial.
On August 4, 2009, Yessica Contreras was working at Zapp Wireless in Upland.
Defendants entered the store together. Rivera lifted up his shirt and showed her a gun at
his belt. They told her to open the register. Vasquez removed the money from the
register and placed it in a bag he had. Contreras was told to go into the restroom and not
come out.
On August 9, 2009, at 2:20 p.m., Francisco Abril was working at a Metro PCS
store on West Philadelphia Street in Ontario with Genesis Mireles. Defendants walked
into the store. Rivera pulled out a gun from his waist. He pointed it directly at Abril.
Rivera told him to give Rivera the money from the register. Vasquez pulled out a bag.
Vasquez started grabbing the cash out of the register after Abril opened it. Vasquez told
5 For clarity and convenience, we refer to the victims of the Chevron robbery by their first names. We do not intend this informality to reflect a lack of respect.
6
them to lock themselves in the restroom and not to call the police or they would go to
their homes and kill them.
On August 16, 2009, at 2:45 p.m., Karina Jara was working at a Metro PCS store
on Central Avenue in Montclair with Arturo Gonzalez. Defendants walked into the store.
Rivera came behind the counter and told Jara to open the register and give him the
money. Vasquez acted as a lookout. Rivera had his hand by his waist. She told him she
didn’t have the key; the manager had it. Rivera told her to get the manager. As she
opened the back door, Rivera pulled out a gun from his waist and placed it on her waist.
She asked Gonzalez to open the resister. Rivera cursed, pointed the gun directly at
Gonzalez, and told him to open the register. Gonzalez came out and opened the register.
Vasquez came around the counter, retrieved the cash, and put it in a bag. Rivera told
them to go into the restroom, walked them back with the gun in his hand, and told them
to stay inside. The People played a video of the robbery during trial.
On August 16, 2009, Ivette Siqueiros was working at a Metro PCS store on Valley
Boulevard in Fontana with her supervisor Jose Sanchez. Defendants walked in. Rivera
walked behind the counter, told Siqueiros to move away, told Sanchez not to move;
Rivera had a gun in his belt. Vasquez came up with a black bag and told Sanchez to
empty the money from the register into it. Sanchez did so. Rivera told them to go in the
back for five minutes and not call the police because they knew where they lived and
would do something to them. The People played a video of the robbery during trial.
On August 21, 2009, at 5:00 p.m., Hector Funes was working at a Metro PCS store
on Holt Boulevard in Montclair with Adan Pereschica. Defendants walked in together.
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Vasquez pulled out a black bag and demanded the money from the register. Rivera
pulled up his shirt, pulled out a gun, and pointed it at them. Funes opened the cash
register and let Vasquez take the money. Vasquez asked each of them for their wallets;
they showed them to him; neither of them had any money. Vasquez told them not to call
the police because they would be watching them. Rivera took them to the back where he
closed the door on them. The People played a video of the robbery during trial.
On August 30, 2009, Juan Devis was working at a Metro PCS store located at 931
West Holt Boulevard in Ontario at 2:00 p.m. with two female employees. The women
came into the back room and told him someone was looking for him. He went out onto
the sales floor where he saw defendants. Vasquez pulled out a bag and said to put the
money from the register in the bag. Rivera lifted up his shirt to show him a gun. Devis
put the money in the bag. Rivera told them to go into the back room; they did so. The
People played a video of robbery during trial.
On September 18, 2009, at 2:00 p.m., Juan Devis was working at a different Metro
PCS store located at 326 East Holt Boulevard in Ontario. Defendants walked in. Devis
immediately recognized them. Devis took a customer outside with him. Vasquez
signaled him to come back into the store. Devis called 911. Rivera was trying to fix
what looked like a gun under his shirt. Defendants then left together. The People played
a video of the attempted robbery during trial.
On September 18, 2009, at 2:30 p.m., Isabel Gonzalez was working at the Metro
PCS store on Sierra Avenue in Fontana with her district managers Hector Ortiz and Juan
Caratachea. She was already aware that other Metro PCS stores had been robbed; she
8
had watched videos of the robberies. She saw defendants enter the store. Gonzalez
immediately recognized them from the videos and walked to the back room where her
managers were. Gonzalez told Ortiz and Caratachea that suspicious persons were on the
sales floor. She and her managers walked back out onto the sales floor. Rivera came
around the counter; he lifted his shirt to show a gun tucked into his waistband. Vasquez
told Gonzalez to put the cash from the register in a bag he gave her; she did so. Rivera
asked Caratachea and Ortiz for their money; Ortiz pulled out his wallet to show Rivera he
did not have any money. Rivera escorted them to the back, told them not to come out,
and not call the police for five minutes or he would shoot them. The People played a
video of the robbery during trial.
On September 18, 2009, Miguel Garcia was shopping at the Metro PCS on Sierra
Avenue in Fontana. Defendants walked in. The employee at the counter walked to the
back of the store; defendants followed her. Rivera lifted his shirt to reveal a firearm in
his waistband. Vasquez asked the employee for the money in the register; she opened the
drawer. He pulled out a black bag and she gave him the money. Vasquez told Garcia
and the other customers to stay in the corner; then he asked them for their money. Garcia
did not give them any; he told them all he had was his debit card. Vasquez then escorted
everyone into the restroom in the back.
On September 30, 2009, at 1:45 p.m. Carmen Devey was at her A&A Cellular and
Accessories Store in Ontario with a customer named Cesar Gertrudis. Defendants
walked into the store. Devey immediately recognized defendants from a flyer a police
detective had shown her as individuals who had robbed a number of stores. Vasquez
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pulled out a bag and told her to put all the money in it. Rivera lifted his shirt to show her
a gun at his waist. She handed over the money. Rivera told Gertrudis to get on his knees.
Rivera then took Gertrudis’s money. Rivera told Devey to go in the back room; she did
so. The People played a video of the robbery during trial.
On September 30, 2009, at 2:00 p.m., Edith Rebollar was working at Discoteca
Mama Rumba which sells phones, music, and rents movies. Defendants walked in
together. Vasquez asked Rebollar for the money in the register. Rivera lifted his shirt
and showed her a gun. Rebollar gave Vasquez the money from the register. Vasquez
then told her to go the bathroom and wait five minutes; he said if she left they would
shoot her. The People played a video of robbery during trial.
Ali Ferdaous, the owner of a Metro PCS store named Zapp Wireless in Upland
testified that when the store was initially robbed on August 4, 2009, there were no video
cameras. He added them thereafter. On October 8, 2009, at 5:00 p.m., he was working at
the store when Rivera walked in. Rivera told him it was a holdup and showed him a gun
at his belt. Rivera then pulled the gun out and pointed it at him and a customer. Vasquez
then walked in. Ferdaous was told to open the cash register; he did so. He was then told
to move away from the register; Vasquez took the money from the register and put it in a
black bag. Defendants left. Ferdaous hit a panic button, which called the police. Within
40 minutes of the robbery, he was taken by the police to a location within two miles of
the store where he identified defendants. The People played a video of the robbery
during trial.
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Upland Police Officer Maurice Duran was out on patrol on October 8, 2009, at
5:14 p.m. when he heard a dispatch that a robbery had just occurred. He knew the type of
vehicle the robbers had been using from previous reports; he saw a vehicle matching its
description and the driver, Vasquez, matching the description of one of the suspects.
Officer Duran let dispatch know he had found a possible match of the vehicle and
suspects. He maneuvered his vehicle behind Vasquez’s and initiated a traffic stop. The
car immediately pulled over. Officer Duran pulled out his weapon, told the occupants to
put their hands on their heads, and waited for more officers to arrive. After several more
officers arrived, they ordered the occupants out one by one. Vasquez told one of the
officers a gun was under the front passenger seat of the vehicle. Under the front
passenger seat, Ontario Police Detective Jason Langford found a black plastic bag
containing $225, and an operable, black .45-caliber semiautomatic Colt handgun with
two rounds in the magazine.
Ontario Police Detective Roger Planas testified before Vasquez’s jury that during
a video-recorded interview, Vasquez admitted robbing the following locations with
Rivera, while the latter was armed: Zapp Wireless (count 40); two Metro PCS stores in
Fontana (counts 23-24, 33-36); two Metro PCS stores in Montclair (counts 25-26, 27-28);
a Chevron Gas Station in Claremont (counts 18-19); Discoteca Mama Rumba in Pomona
(count 39); three Metro PCS stores in Ontario (counts 21-22, 29, 32); A&A Cellular in
Ontario (counts 37-38); and the Red Hill Gas Station in Rancho Cucamonga (count 17).
Vasquez admitted driving the getaway car in most of the robberies. He said the gun was
11
a .45-caliber, which belonged to Rivera and was used by Rivera during the robberies;
Vasquez denied ever being armed. Vasquez wrote an apology letter to the victims.
Detective Planas also testified before Rivera’s jury that during his interview with
Rivera, Rivera admitted being armed with the .45-caliber handgun during the robberies of
can clearly determine the court’s intent, it may order modification of the sentence without
remand].) Therefore, we will direct the court to modify the minute order dated April 11,
2011, and the abstract of judgment, to reflect the imposition of a consecutive term of
eight months, one third the midterm of two years, with respect to Rivera on count 34.
F. RIVERA: CORRECTION OF CUSTODY CREDITS AND DATE OF
CONVICTION
Rivera contends the abstract of judgment fails to reflect the court’s award of
custody credits, and incorrectly states the date of his conviction for each of his offenses.
He requests the abstract of judgment be corrected to accurately reflect the court’s
judgment and the date of his convictions. The People fail to respond. We agree with
Rivera and shall direct the superior court to correct the abstract of judgment to accurately
reflect the award of custody credits and the date of his convictions.
“It is well settled that ‘[a]n abstract of judgment is not the judgment of conviction;
it does not control if different from the trial court’s oral judgment and may not add to or
modify the judgment it purports to digest or summarize. [Citation.]’ [Citation.] When
an abstract of judgment does not reflect the actual sentence imposed in the trial judge’s
verbal pronouncement, [a reviewing] court has the inherent power to correct such clerical
27
error on appeal, whether on our own motion or upon application of the parties.
[Citation.] We [may] therefore order that the abstract of judgment be corrected to
conform to the actual sentence imposed by the trial court . . . .” (People v. Jones (2012)
54 Cal.4th 1, 89.)
The court awarded Rivera 604 days of actual and 90 days of conduct credit for a
total of 694 days of custody credit. The abstract of judgment for Rivera does not reflect
the award of any custody credit. We shall therefore direct the superior court to correct
the abstract of judgment to reflect the award of 694 days of custody credit consisting of
604 days of actual credit and 90 days of conduct credit.
The abstract of judgment also incorrectly reflects that the jury convicted Rivera on
April 12, 2011. The jury actually convicted Rivera on April 11, 2011. Thus, we shall
also direct the superior court to correct the abstract of judgment to reflect Rivera’s
conviction date as April 11, 2011.
DISPOSITION
The superior court is directed to modify the minute order dated June 2, 2011, and
the abstract of judgment with respect to defendant Rivera to reflect the imposition of a
consecutive term of eight months, one third the midterm of two years, on count 34. This
would result in an aggregate sentence of 86 years, 4 months. The superior court is
additionally directed to correct the abstract of judgment with respect to defendant Rivera
to reflect the award of 604 days of actual and 90 days of conduct credit, for a total award
of 694 days of custody credit. Furthermore, the superior court is directed to correct the
abstract of judgment with respect to defendant Rivera to reflect a conviction date of April
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11, 2011. The modified and corrected abstract of judgment and minute order shall be
forwarded to the Department of Corrections and Rehabilitation. In all other respects, the
judgments are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER J.
We concur:
KING Acting P. J.
CODRINGTON J.
29
AI Brief
AI-generated · verify before citing
Holding. The court affirmed the defendants' convictions for multiple counts of robbery and attempted robbery, holding that substantial evidence supported the firearm use enhancements and that the failure to administer an oath to a witness was forfeited by the lack of a timely objection. The court also ordered a modification to the sentencing minute order and abstract of judgment for defendant Rivera.
Issues
Whether sufficient evidence supports the personal use of a firearm enhancement on count 38.
Whether the failure to administer an oath to a witness constitutes reversible error or ineffective assistance of counsel.
Whether the trial court erred in failing to instruct on the lesser included offense of attempted grand theft.
Whether the People's failure to disclose a pending felony charge against a witness violated Brady.
Disposition. Affirmed as modified.
Quotations verified verbatim against the opinion
“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”