P. v. Herod 9/28/04 CA2/4

SUPREME COURT CASES

Laws-info.com » Cases » California » Court of Appeal » 2004 » P. v. Herod 9/28/04 CA2/4

State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B167962

Case Date: 12/01/2004

Preview:Filed 9/28/04 P. v. Herod CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 FOUR THE PEOPLE, Plaintiff and Respondent, v. ANTHONY TERRIL HEROD, Defendant and Appellant. APPEAL from a judgment of the Superior Court of Los Angeles County, James M. Ideman, Judge. Reversed in part, affirmed in part. Michele A. Douglas, 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, Margaret E. Maxwell and Jason C. Tran, Deputy Attorneys General, for Plaintiff and Respondent. _______________________ B167962 (Super. Ct. No. YA051893)

Anthony Herod challenges his carjacking conviction, claiming the court abused its discretion in allowing a police detective to testify that he included appellant's picture in a photographic lineup based on an anonymous telephone call to the police station. He also claims that, in light of the Supreme Court's recent decision in Blakely v. Washington (2004) 124 S. Ct. 2531, imposition of the upper term was unlawful because the aggravating factors were not found by a jury. We affirm his conviction, but remand the cause to the trial court for resentencing. FACTUAL AND PROCEDURAL SUMMARY Around 1:00 a.m. on March 3, 2002, Mark Edwards drove into a gas station at the corner of Century and Crenshaw in Los Angeles for gas. He opened the door of his car, reached into the ashtray for money, and noticed a white Jeep Cherokee pull up on the other side of the pump. A woman was driving. A man, later identified as appellant, got out of the Jeep, walked over to the cashier, then over to the open driver's side door of Edwards's car. Appellant asked Edwards, who was still seated in his car, where he was from. Edwards replied, "I'm not with that." Appellant then asked, "Well, where do you stay?" He reached under his shirt, withdrew a gun from his waistband, pointed it at Edwards, and demanded Edwards's car keys. Edwards gave appellant the keys and got out of the car. The Jeep drove off while appellant had the gun pointed at Edwards. Appellant got into the car, then moved the gun from his right to his left hand so it was still pointing at Edwards. Appellant closed the car door, and Edwards started to walk away. The car door opened again, and appellant called Edwards back to start the vehicle. Edwards returned to the car, started it, then exited. Appellant drove off, grinding the gears as he went. Edwards reported the incident to the police. On March 15, 2002, Detective Scott Collins of the Inglewood Police Department showed Edwards a photographic lineup. Edwards identified appellant as the person who took his car on March 3.

2

On March 19, 2002, Donna Alarcon and Rollan Macadangdang were working at the front desk of the Hampton Inn on La Cienega Boulevard. Appellant came to the counter and demanded money. He had his right hand in his pocket, and it seemed as though he might have a gun. The clerks gave appellant approximately $500, which he stuffed into his pocket and inside his vest. Alarcon identified appellant from photographs taken of him on videotape during the robbery. She also identified appellant in a photographic lineup. Appellant was arrested and charged with one count of carjacking with personal use of a firearm, and two counts of robbery. It was alleged that appellant had a serious felony prior, and three prison priors. He was convicted as charged, and the priors were found to be true. Appellant was sentenced to a total term of 35 years, 4 months, which included the upper term of nine years on the carjacking, and consecutive sentences of eight months for each robbery. This is a timely appeal from the judgment of conviction. DISCUSSION I Appellant claims the trial court abused its discretion in admitting evidence regarding an anonymous telephone tip received by the Inglewood Police Department. According to the offer of proof by the prosecution, an anonymous caller told an officer at the station: "Anthony Herod carjacked some guy at the 76 gas station on Century and Crenshaw, and he's the guy you're looking for." The officer gave that information to Detective Collins, who put together a six-pack photo lineup which included five random photographs and a photograph of appellant. The prosecutor did not intend to bring in the contents of the call, just that "there was a phone call that came in to the station that Detective Collins, in his investigation, learned of the phone call, spoke to some detectives, and because of that he went on to make a six-pack and to explain how the six-pack came to be. That is all." Defense counsel objected: "[M]y objection is simply that I didn't feel that how Mr. Herod got into the six-pack was relevant, just that he did some investigation and put him in the six-pack and he was identified."

3

The court disagreed: "Well, I think it is relevant, otherwise, the jury is going to wonder how they ever came up with Herod because the victims evidently didn't know him, and they might think that they picked him out just because he got a record or whatever they might imagine. So I think that is germane and relevant to the case." In accordance with this ruling, Detective Collins was asked on direct examination: "In investigating this case did a phone call come into your police station?" He answered, "Yes." He was then asked, "And based on your investigation, what did you do?" He replied, "I was able to obtain a photo off of a computer at work." Collins identified appellant as the person whose photograph he obtained, and testified that he placed it in a six-pack with five other photos. He showed the six-pack to Mark Edwards, the victim of the carjacking. Edwards "almost immediately" identified appellant's photograph as that of the perpetrator. Appellant claims evidence of the anonymous telephone call was irrelevant and "clearly insinuated excluded hearsay statements." We disagree. First, to the extent appellant is arguing the evidence was inadmissible hearsay, the issue is forfeited. At the time of the prosecution's offer of proof, defense counsel argued, "[M]y objection is simply that I didn't feel that how Mr. Herod got into the six-pack was relevant, just that he did some investigation and put him in the six-pack and he was identified." The court clarified, "Well, your objection is relevance, then. It wouldn't be hearsay because they're not offering the content." Defense counsel replied, "Right." The issue of hearsay has not been preserved. (See People v. Lewis (2001) 25 Cal.4th 610, 664.) More importantly, there was no hearsay. The evidence was that in response to a telephone call to the station, Detective Collins obtained appellant's photograph from the computer and showed it to the victim. There was no evidence of the contents of the telephone call or its truth. A trial court has broad discretion in determining the relevance of evidence. (People v. Heard (2003) 31 Cal.4th 946, 973.) "`Relevant evidence' means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of 4

the action." (Evid. Code,

Download P. v. Herod 9/28/04 CA2/4.pdf