(San Francisco County Super. Ct. No. 199002), Hon. Teri L. Jackson.
The opinion of the court was delivered by: Needham, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Jason Quiles appeals from a judgment of conviction and sentence imposed after a jury convicted him of multiple crimes. He contends: (1) his constitutional rights were violated when the court imposed the upper term of sentence based on his prior juvenile adjudications; (2) testimony that Quiles told a nurse he was going to ―have one of the witnesses smacked‖ improperly tainted the case against him; (3) his defense attorney provided ineffective assistance of counsel by failing to object to the prosecutor's closing argument; and (4) the court should have severed a grand theft charge from his more serious charges.
In the published portion of our opinion, we conclude that the trial court did not err in imposing the upper term of sentence. Prior juvenile adjudications may be used in imposing the upper term under California Rules of Court, rule 4.421(b)(2). In evaluating whether juvenile adjudications are of increasing seriousness, the court may consider the elements of the respective offenses. In the unpublished portion of our opinion, we conclude that the remainder of Quiles' contentions lack merit. We will affirm the judgment.
I. FACTS AND PROCEDURAL HISTORY
A second amended information charged Quiles as follows: count one, grand theft (Pen. Code, § 487, subd. (c)) on October 8, 2005; counts two three, four, and nine, second degree robbery (§ 212.5) on October 18, 2005; counts 6 and 11, assault with a firearm (§ 245, subd. (a)(2)) on October 18, 2005; count 7, attempted robbery (§§ 212.5, 664) on October 18, 2005; and counts 12 and 13, second degree robbery (§ 212.5) on October 14, 2005.*fn2 Additional counts for attempted murder (§§ 187, 664) and dissuading a witness (§ 136.1, subd. (c)(1)) were dismissed under section 995.
The second amended information further alleged that the robberies were serious offenses (§ 1192.7, subd. (c)(19)), Quiles was armed with a firearm during five of the robberies (§ 12022, subd. (a)(1)), and he personally used a firearm (§ 12022.53, subd. (b)) during the commission of count four and count 12.
The trial court denied Quiles' motion to sever the charges. The matter proceeded to a trial by jury.
A. Evidence at Trial 1. Grand Theft of Sundin (Count 1)
Around 3:30 p.m. on October 8, 2005, Kelly Sundin was in a coffee shop working on her laptop computer. A young African-American man (Quiles) ―swooped in and grabbed‖ the laptop from her hands. Sundin reached out to grab the laptop back, but Quiles ran out of the coffee shop with the computer. Sundin ran after Quiles but was unable to catch him.
Jeremy Tooker, the owner of the coffee shop, saw the ―tussle‖ between Sundin and Quiles over the laptop. After Quiles ran out the door, Tooker chased him for two blocks and saw him get into a white hatchback car, with an African-American woman in the driver's seat. Tooker told Quiles to ―give it up‖ because he had memorized the car's license plate. Quiles responded ―so what‖ and instructed the driver to leave. A car had stopped on the street, blocking Quiles' vehicle from leaving the parking place; the driver of Quiles' car drove onto the sidewalk for about a half a block before returning to the street and speeding away.
Inspector Steve Mulkeen investigated the theft and issued a teletype with a description of the getaway car and its license plate. About ten days after the crime, he learned the getaway car had been towed. Quiles' interim driver's license was found inside the car.
Tooker identified Quiles in a photographic lineup, at the preliminary hearing, and at trial.
2. Robbery of Hyde and Casillas (Counts 2-3)
Around 4:15 p.m. on October 18, 2005, Alexander Hyde and Diego Casillas were walking on Haight Street planning to take pictures for a photography class. A white car pulled up and screeched to a halt. Quiles got out of the car and walked towards Casillas. Getting so close to Casillas that their foreheads touched, Quiles yelled profanities at Casillas and took his camera.
At Quiles' prompting, the driver of Quiles' vehicle displayed the grip of a black, automatic handgun in his pocket. Quiles grabbed Hyde's camera and pushed him, saying, ―Give me some money.‖ Hyde claimed he did not have any and gave Quiles his wallet, which contained no money. Quiles pushed him again and said, ―Where is the money.‖
Quiles eventually returned to the car and told the driver that Hyde and Casillas had seen the car's license plate. Quiles approached Hyde again, took the driver's license from Hyde's wallet, and told Hyde that if he went to the police, ―someone would come to [his] house.‖ Quiles then got in the car and left, and Hyde telephoned the police.
Later that afternoon, the police took Hyde and Casillas to a location where a white Chevy Caprice had crashed. The car was registered to Quiles. Casillas and Hyde identified the car as the one used in the robbery and saw their cameras on the car's floorboard. The car contained an insurance payment coupon and insurance identification card in Quiles' name, as well as Hyde's driver's license.
Hyde and Casillas identified Quiles in a photographic lineup and in court.
3. Robbery of Rabahat and Reynoca (Counts 4, 6, 7, 9, 11)
Around 4:25 p.m. on October 18, 2005-about ten minutes after the robbery of Hyde and Casillas-Nael Rabahat observed two African-American males enter his store. One of the men (purportedly Quiles) held a gun about two inches from Rabahat's head and said, ―Give us all the money.‖ The robbers emptied the cash register of approximately $1,400-$1,500. While Quiles held Rabahat at gunpoint, his accomplice went to the back of the store and filled a green garbage can with about 30 cartons of cigarettes. When the accomplice returned with the cigarettes, he said, ―I'm done. Shoot the son of a bitch.‖ The gun Quiles was pointing at Rabahat's head then made a ―ticking sound.‖ Terrified, Rabahat pushed Quiles away and ran out of the store. Quiles and his accomplice fled.
After viewing a video lineup, Rabahat was 100 percent sure Quiles was one of the two robbers and about 75 percent sure Quiles was the man who had the gun. Rabahat also identified Quiles in court. In addition, Rabahat identified a trashcan full of cartons of cigarettes that were found in Quiles' car.
Mark Brown testified that he pulled up to the store and saw Rabahat run outside, screaming, ―Call the police. Dial 911.‖ Brown dialed 911 as he was parking his car. Suddenly an African-American man ―threw himself‖ into the passenger side of his car and tried to grab Brown's phone. The man also knocked Brown's glasses off and ―went for‖ Brown's car keys. Brown managed to hang on to his cell phone and drove away without his glasses.
Marlon Reynoca had parked his oxygen delivery truck nearby around 4:30 p.m. While he was at his truck, he was accosted by Quiles, who ordered him to hand over his money. Reynoca handed Quiles $40. Reynoca then saw Quiles take a telephone from Reynoca's customer and throw it toward a Caucasian man. The Caucasian man tackled Quiles, and they briefly fought on the ground. About a month after the incident, Reynoca identified Quiles in a video lineup as his assailant; he was unable to identify the assailant at trial.
Cathy Choy, Reynoca's oxygen delivery customer, looked out her window and saw Quiles and Reynoca. Choy grabbed her cordless telephone and went to her doorway to see what was happening. As Choy emerged from her home, Quiles grabbed the phone away from her. Choy went back inside and slammed the door shut. Choy then heard two gunshots. Choy identified Quiles in a video ...