Filed 2/8/21 P. v. Duarte CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent, C088532
v. (Super. Ct. No. 15F07345)
OSHEA DUARTE,
Defendant and Appellant.
THE PEOPLE,
C088674
Plaintiff and Respondent,
(Super. Ct. No. 13F05061)
v.
OSHEA DUARTE,
Defendant and Appellant.
In case No. 15F07345, a jury convicted defendant Oshea Duarte of conspiracy to
commit robbery (count one), assault with a semiautomatic firearm (count two), robbery
(count three), and possession of a firearm by a person who has been convicted of a felony
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(count four). The jury found true that defendant committed the offenses for the benefit
of, at the direction of, or in association with a criminal street gang (the Oak Park Bloods),
with the specific intent to promote, further, or assist in any criminal conduct by gang
members. (Pen. Code, § 186.22, subd. (b)(1).)1 With respect to count three, the jury also
found true that at least one principal intentionally and personally used a firearm. (§
12022.53, subd. (e)(1).)
The trial court sentenced defendant to 12 years in prison based on the low term of
two years for the robbery conviction (count three), plus a ten-year enhancement under
section 12022.53, subdivision (e)(1). The court also sentenced defendant to a concurrent
term of three years plus a three-year enhancement under section 186.22, subdivision
(b)(1) for count four, and imposed and stayed terms on counts one and two under section
654.
Defendant was sentenced to a concurrent term of four years in case No. 13F05061
for violating probation by possessing a firearm and the related enhancement under section
186.22, subdivision (b)(1).
On appeal, defendant contends: (1) his convictions in case No. 15F07345 should
be reversed because they are based on the uncorroborated testimony of accomplices; (2)
his sentence for possession of a firearm by a convicted felon should be reduced to two
years; (3) he should have received additional days of presentence credit; and (4) the
abstract of judgment and minute order should be amended to strike all of the fees and
fines that were not orally pronounced by the trial court. Additionally, defendant asks us
to conduct an independent review of the sealed records regarding his Pitchess2 motion.
1 Undesignated statutory references are to the Penal Code.
2 Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
2
We will remand for the trial court to clarify the sentence on his conviction for
possession of a firearm by a convicted felon, correct the award of presentence credit, and
determine victim restitution pursuant to section 1202.4, subdivision (f). We will direct
the court to correct the abstract of judgment and sentencing minute order by deleting all
other fees and fines except the $160 court operations assessment and the $120 court
facilities assessment. The judgments are otherwise affirmed.
I. BACKGROUND
The victim testified that, on November 15, 2015, he made plans to meet a young
woman he had met on Facebook at a restaurant. While he was walking to the restaurant,
three men who seemed to be following him asked if he wanted to buy some marijuana.
The men were African-American and had dreadlocks. He described two as “light
skinned” and one as “dark skinned.” After the victim declined their offer, the three men
walked away, but eventually the victim realized they were still following him. When the
victim met the woman at the restaurant, she had brought another woman who asked if he
was going to buy her dinner too. He said no. The second woman suggested going to her
house, and so the victim and both women began to walk away from the restaurant.
As they started walking, three men with guns ran toward the victim. The light-
skinned man who was a lot taller than him and had dreadlocks from the ear to the mid-
neck threw him to the ground.3 The victim was also hit with a gun. He was not sure
which light-skinned man hit him with the gun. The men took two cell phones and a belt
worth $500 from the victim.
The victim testified that no one in the courtroom looked like the men who attacked
him.
3 The victim is 5 feet 5 inches tall.
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At trial, the parties stipulated that if a certain officer who spoke to the victim
shortly after the incident was called to testify, the officer would state, in part, that the
victim described the man who tackled him as “a light-skinned black male with black
short . . . dreadlocks. He was wearing a black beanie and a black hoodie. He was about
18 to 21 years old and about five feet eight inches.”4 The parties also stipulated that the
officer would have testified that the victim was extremely emotional and had a hard time
communicating what happened, answering clarifying questions, and remembering details.
A different officer testified that, two days after the robbery, the victim described
his attacker as a tall, skinny man with dreadlocks going down between the mid-ear and
the neck level.
A detective testified she showed the victim a photo lineup that included defendant
in the second position. When the detective was asked if the victim was able to identify
someone from the photo lineup, she responded, “He said none of them.” The detective
also testified that the victim indicated one person looked like the person who tackled him.
The victim pointed to the person in the second position and said that he had the same face
shape, dreadlocks, and light skin. The victim did not remember seeing any tattoos
because the person who tackled him was wearing a coat and thus may or may not have
had tattoos. The victim said this photograph looked the closest of all the pictures to the
person who tackled him.
A.J., V.C., and Z.A. each testified at trial. A.J. pled guilty to the robbery. A.J.
testified that she was the person who had been communicating with the victim over
Facebook and planned to meet him at the restaurant. She told her plans to V.C., Z.A.,
defendant, and “Gleeco,” all of whom were at her house. They decided to rob the victim.
A.J. testified that V.C. came with her to meet the victim at the restaurant. A.J. told law
4 Defendant was 21 years old at the time of the offense.
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enforcement that defendant was the one who tackled the victim. A.J. and V.C. sold the
victim’s phone, and V.C. kept the money.
Z.A. was convicted of robbery for his participation in the crime. He also testified
that V.C., Gleeco, and defendant were at A.J.’s house when they decided to rob the
victim. Z.A. confirmed that the three men who approached the victim asking if he
wanted to buy marijuana, and then subsequently robbed him, were Gleeco, defendant,
and himself. Defendant tackled the victim and then ran off. Z.A. took the victim’s belt
and went through his pockets. Gleeco held a gun to the victim and hit him with it. Z.A.
said he and defendant did not have guns. They all ran back to A.J.’s house after the
robbery. Z.A. gave her the victim’s phone.
V.C. was not charged and testified pursuant to a subpoena. The jury was shown
an interview in which V.C. identified defendant as participating in planning the robbery
and personally body slamming the victim.
Defendant posted a picture on Instagram of a portion of a police report mentioning
Z.A., A.J., Gleeco, and himself. The accompanying text indicated there was a better
picture of “his” name on the paperwork and, “He tellen on my brother–he is telling on my
brother–I need this posted. He got to get dubbed out.” In another post, defendant linked
to Z.A.’s Facebook page.5 A detective in the gang unit of the Sacramento Police
Department testified that defendant’s postings were trying to get information out on
someone believed to be cooperating with law enforcement who needed to be dealt with.
Another post from defendant’s Instagram account showed him boasting that he
had made it another year and saying, “Catch me if you can.” He also said, “free Gleeco.”
The detective testified that he believed defendant, Gleeco, and Z.A. were all
currently members of the Oak Park Bloods, and defendant had a ranking within the gang
5 One of the officers who testified said that he talked to Z.A.
5
that was “substantially higher than most.” The detective indicated defendant is about six
feet three inches tall.
A warrant was issued for defendant’s arrest, and police learned that he was living
in Santa Barbara. A detective from the Santa Barbara County Sheriff’s Department took
defendant into custody. Defendant said he knew of the warrants and had been on the run
for about two years. He asked the detective how they had found him. The detective
explained that defendant had posted on Instagram that he was on the run, and they had
used Instagram to track him down. The detective said defendant “kind of shrugged it
off.”
II. DISCUSSION
A. Corroboration of Accomplice Testimony
Defendant contends his convictions in case No. 15F07345 should be reversed
because they are based on the uncorroborated testimony of accomplices. We disagree
and conclude the accomplice testimony was sufficiently corroborated by independent
evidence of defendant’s guilt.
Section 1111 provides: “A conviction can not be had upon the testimony of an
accomplice unless it be corroborated by such other evidence as shall tend to connect the
defendant with the commission of the offense; and the corroboration is not sufficient if it
merely shows the commission of the offense or the circumstances thereof.” The parties
agree that A.J., Z.A., and V.C. were all accomplices. Indeed, the court instructed the jury
that defendant could not be convicted based on their statements or testimony alone.
“The requirement that accomplice testimony be corroborated is an ‘ “exception[ ]”
to the substantial evidence’ rule. [Citation.] It is based on the Legislature’s
determination that ‘ “because of the reliability questions posed by” ’ accomplice
testimony, such testimony ‘ “by itself is insufficient as a matter of law to support a
conviction.” ’ [Citations.] Section 1111 does not affect the admissibility of accomplice
testimony but rather ‘reflects a legislative determination of how accomplice testimony
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must be treated.’ ” (People v. Romero and Self (2015) 62 Cal.4th 1, 32 (Romero and
Self).)
“Thus, for the jury to rely on an accomplice’s testimony about the circumstances
of an offense, it must find evidence that ‘ “without aid from the accomplice’s testimony,
tend[s] to connect the defendant with the crime.” ’ [Citations.] ‘The entire conduct of
the parties, their relationship, acts, and conduct may be taken into consideration by the
trier of fact in determining the sufficiency of the corroboration.’ [Citations.] The
evidence ‘need not independently establish the identity of the victim’s assailant’
[citation], nor corroborate every fact to which the accomplice testifies [citation], and
‘ “may be circumstantial or slight and entitled to little consideration when standing
alone” ’ [citation]. ‘The trier of fact’s determination on the issue of corroboration is
binding on the reviewing court unless the corroborating evidence should not have been
admitted or does not reasonably tend to connect the defendant with the commission of the
crime.’ ” (Romero and Self, supra, 62 Cal.4th at pp. 32-33.)
We conclude sufficient evidence other than the accomplice testimony connected
defendant with the crime. In particular, the victim’s description of his attacker was not
definitive but suggestive, and defendant’s subsequent Instagram posts indicated he had
indeed been the attacker.
Defendant argues his statements in his Instagram posts did not tie him any closer
to the crime than any other gang member. He notes that he complained about someone
telling on his “brother” and not himself. Additionally, defendant suggests that to the
extent we can conclude from his Instagram posts that he was hiding from law
enforcement, he was absconding from parole. We disagree. Defendant posted a portion
of a police report with his name on it. Further, the juxtaposition of “[c]atch me if you
can” and “[f]ree Gleeco” in another post suggests defendant thought he had gotten away
with something in connection with a new proceeding. It was clear from his postings that
defendant was aware law enforcement was interested in Gleeco and himself. It was
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reasonable to infer defendant was boasting about not being caught while Gleeco
presumably had been. Moreover, defendant admitted to law enforcement that he had
been on the run for about two years at the time of his arrest in July 2017. It was thus
reasonable to infer from defendant’s own statements that he went on the run after the
robbery.6 To the extent he absconded from parole, the record suggests he did so because
of the robbery and not because he thought he was being wrongly accused.
Defendant would have us disregard all of the victim’s statements about his
appearance because the victim did not identify him in court or with certainty in the photo
lineup. Defendant also discredits the victim’s description on the basis of one statement to
law enforcement that defendant was 5 feet 8 inches tall despite the fact the victim
testified defendant was “a lot” taller than him and agreed that he was really tall. We
cannot conclude the evidence must be disregarded. (Cf. People v. Cuevas (1995) 12
Cal.4th 252, 257 [sufficiency of uncorroborated out-of-court identification to support a
conviction must be determined under the substantial evidence test].) The victim’s
descriptions of defendant as consistent with his attacker may be slight or entitled to little
consideration on their own and do “ ‘not independently establish the identity of the
victim’s assailant,’ ” but together all the evidence the non-accomplice testimony
presented was sufficient to connect defendant to the commission of the crimes charged.
(Romero and Self, supra, 62 Cal.4th at pp. 32-33.)
B. Pitchess Motion
Prior to trial, defendant filed a Pitchess motion seeking discovery of certain law
enforcement personnel records of one officer, including any complaints of false arrest,
fabrication of charges or evidence, illegal searches, or dishonesty. The trial court granted
the motion and conducted an in-camera hearing. Following the in-camera hearing, the
6 A.J. testified that, after being contacted by the police, she contacted Gleeco and
defendant and warned them that the police were investigating the crime.
8
court explained that the only relevant document was related to an incident defense
counsel was already aware of. The court ordered the disclosure of the name and contact
information of the witness. The transcripts were sealed and a protective order was issued.
Defendant asks this court to conduct an independent review of the sealed records
of the trial court’s hearing on his Pitchess motion. (People v. Mooc (2001) 26 Cal.4th
1216, 1228-1229, 1232.) The People do not oppose the request.
We will not disturb a trial court’s ruling on a Pitchess motion absent an abuse of
discretion. (Alford v. Superior Court (2003) 29 Cal.4th 1033, 1039, disapproved on
another ground in Facebook, Inc. v. Superior Court (Touchstone) (2020) 10 Cal.5th 329,
345, fn. 6.) We have reviewed the sealed transcript of the in camera proceeding in which
the trial court questioned the custodian of records under oath. Based on our review the
sealed records, we find no procedural or substantive error. The court did not abuse its
discretion in finding no additional disclosable evidence.
C. Sentence on Count Four
Before he pronounced judgment, the trial court stated, “I’m not going to follow
either probation’s recommendation or the People’s recommendation because . . . there is
not a need in this case to max the defendant out, but I do think the conduct was very
serious.” With respect to count four, defendant was convicted of possession of a firearm
by a convicted felon under section 29800, subdivision (a)(1). The court said, “I’m going
to impose the middle term of three years on Count Four, plus the three-year enhancement.
I’ll pick the three years out of the triad on the enhancement, but I’m going to run that
concurrently as well.”
The parties agree that the middle term for a violation of section 29800, subdivision
(a)(1) is two years, and the upper term is three years. (§ 18, subd. (a).) Accordingly,
defendant argues we should reduce the term imposed by the court because it was
unauthorized, or remand for resentencing. The People note the abstract of judgment
contains the same discrepancy and argue we should remand to the trial court to clarify its
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sentence. Because we conclude the record is unclear as to the trial court’s intent, we will
remand.
D. Custody Credits
Defendant asserts, and the People agree, that in case No. 15F07345, he is entitled
to an additional five days of actual presentence custody credit and an additional day of
conduct credit (15 percent pursuant to section 2933.1) because the record indicates that
he was taken into custody in Santa Barbara on July 12, 2017, but he was credited only for
time served in the Sacramento County Jail (506 days). We accept the concession in
principle. (People v. Bravo (1990) 219 Cal.App.3d 729, 735.) However, the parties have
miscalculated its impact. The record indicates defendant was credited for time spent in
the Sacramento County Jail from July 27, 2017, not July 17 as stated in defendant’s
briefing. Thus, defendant is entitled to an additional 15 days of actual presentence
custody credit and an additional two days of conduct credit. On remand, the court should
correct the sentencing minute order and abstract of judgment to reflect 521 days of actual
custody credit plus 78 days of conduct credit.
The People note that in case No. 13F05061, the court awarded defendant 506 days
of custody credit, plus 506 days of conduct credits (pursuant to section 4019), plus 365
days of credit for time served as a condition of his original probation. That totals 1,377
days, but the abstract of judgment indicates defendant was awarded 1,842 days of credits
in that case. The People contend the trial court should correct or clarify this disparity.
Defendant offers no response. On remand, the court must clarify the disparity, taking
into account the 521 days of actual custody credit to which defendant was entitled.
E. Fines and Fees
The minute order and abstract of judgment reflect various fines and fees, including
a $5,600 restitution fine under section 1202.4, subdivision (b); a $5,600 parole revocation
restitution fine under section 1202.45, suspended pending successful completion of
parole; a $670 victim restitution payment under section 1202.4, subdivision (f); a $160
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court operations assessment under section 1465.8; a $120 court facilities assessment
under Government Code section 70373; and a $453.62 booking fee pursuant to
Government Code section 29550.2. However, no fines and fees were orally pronounced.
Because the oral pronouncement of judgment generally controls over the minutes and
abstract of judgment (People v. Zackery (2007) 147 Cal.App.4th 380, 385), defendant
argues we should strike all of the fines and fees reflected in the abstract of judgment and
the minutes.
The People contend we should impose the $160 court operations assessment and
the $120 court facilities assessment because they are both mandatory. Until recently it
appeared settled that the court operations and court facilities assessments are mandatory
“and may be added on review.” (People v. Rodriguez (2012) 207 Cal.App.4th 1540,
1543, fn. 2.) The rule that these assessments are mandatory regardless of ability to pay
was analyzed in People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), which held
“due process of law requires the trial court to conduct an ability to pay hearing and
ascertain a defendant’s present ability to pay before it imposes court facilities and court
operations assessments under [ ]section 1465.8 and Government Code section 70373.”
(Id. at p. 1164.) The Dueñas court also held “that although [ ]section 1202.4 bars
consideration of a defendant’s ability to pay unless the judge is considering increasing the
fee over the statutory minimum, the execution of any restitution fine imposed under this
statute must be stayed unless and until the trial court holds an ability to pay hearing and
concludes that the defendant has the present ability to pay the restitution fine.” (Ibid.)
Defendant argues we should assume the court struck the fines pursuant to Dueñas. This
argument assumes the court could have done so. We disagree. Instead, we agree with
those authorities that have concluded that the principles of due process and equal
protection do not afford a defendant a hearing on and determination of his ability to pay
before imposing the assessments at issue in Dueñas and in this proceeding. (E.g., People
v. Kingston (2019) 41 Cal.App.5th 272, 279-282; People v. Hicks (2019) 40 Cal.App.5th
11
320, 326-329, review granted Nov. 26, 2019, S258946; People v. Aviles (2019) 39
Cal.App.5th 1055, 1068-1069; People v. Caceres (2019) 39 Cal.App.5th 917, 928.)7 As
a result, the assessments remain mandatory, and we will not strike them from the minutes
or the abstract of judgment based on the trial court’s failure to orally pronounce them at
sentencing.
The People contend we should remand to allow the trial court to award victim
restitution pursuant to section 1202.4, subdivision (f). Defendant argues remand is
inappropriate because, under People v. Tillman (2000) 22 Cal.4th 300, the prosecution
has forfeited any objection to the failure to impose victim restitution. Tillman is
inapplicable because it involved the consequence of the trial court not imposing a
restitution fine under section 1202.4, subdivision (b) without articulating its reasons for
doing so. (Tillman, supra, at p. 302.) Unlike the imposition of a restitution fine, an
award of victim restitution is not a discretionary sentencing choice. (People v. Moreno
(2003) 108 Cal.App.4th 1, 8-9.) The trial court must award victim restitution or the
sentence is unauthorized and invalid. (Id. at p. 10.) The forfeiture bar to appellate review
discussed in Tillman does not apply to victim restitution pursuant to section 1202.4,
subdivision (f). (See People v. Smith (2001) 24 Cal.4th 849, 852-853 [explaining that an
invalid parole revocation fine is exempt from the waiver rule].)
We will direct the trial court to address the issue of victim restitution on remand
and to correct the sentencing minutes and the abstract of judgment to delete all other fees
7 Our Supreme Court is now poised to address the issue, having granted review in
People v. Kopp (2019) 38 Cal.App.5th 47, review granted November 13, 2019, S257844,
which agreed with the court’s conclusion in Dueñas that due process requires the trial
court to conduct an ability to pay hearing and ascertain a defendant’s ability to pay before
it imposes court facilities and court operations assessments under section 1465.8 and
Government Code section 70373, but not restitution fines under section 1202.4. (Kopp,
supra, at pp. 95-96.)
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and fines except the $160 court operations assessment and the $120 court facilities
assessment.
III. DISPOSITION
The case is remanded to the trial court to clarify the sentence for possession of a
firearm by a convicted felon, correct the calculations of presentence custody credit as
described in this opinion, and for a determination of victim restitution pursuant to section
1202.4, subdivision (f). The trial court is directed to correct the abstract of judgment and
sentencing minute orders by deleting all other fees and fines except the $160 court
operations assessment and the $120 court facilities assessment. The court shall forward a
certified copy of the corrected abstract of judgment to the Department of Corrections and
Rehabilitation. In all other respects, the judgments are affirmed.
/S/
RENNER, J.
We concur:
/S/
HULL, Acting P. J.
/S/
HOCH, J.
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