Wednesday, August 14, 2019
Court of Appeal:
By a MetNews Staff Writer
Div. Three of the Fourth District Court of Appeal has reversed a conviction for conspiracy to commit robbery and attempted robbery because the judge required the defense to proceed although one prosecution witness, home sick with the flu, had not yet testified.
The prosecution’s case was completed on Jan. 30, 2018, except for the testimony of Ana Sambrano, a manager of Sonic, a drive-in restaurant in Anaheim, who was allegedly ordered to open a safe by two after-hours intruders, identified by her and others as defendant Emilio Alejandro Rojas-Chavez and one Chris Mullins. Over an objection by Rojas-Chavez’s attorney, Orange Superior Court Judge John Conley compelled the defense to put on its case immediately.
The defendant opted to take the stand and testified that he simply followed his friend Mullins, after he “stormed into” the establishment—where Mullins had been a cook until an acrimonious parting of the ways earlier that month—to make certain he did not harm anyone. Rojas-Chavez vowed that he was not even present at the point where Mullins stole Sambrano’s purse, that act being the subject of one of the two counts against him.
Sambrano testified the following day and, Acting Presiding Justice Eileen Moore said in an unpublished opinion filed Monday, “she filled in crucial gaps in the prosecution’s case, and she was the only witness who testified to a rather damning statement that negated defendant’s version of what had happened.”
Moore added that “it appears from the record that the prosecutor used defendant’s testimony in crafting his questions for this critical witness.”
The “damning statement” by Rojas-Chavez, which Sambrano quoted in her testimony, was his telling Mullin, after he had instructed Sambrano to open the safe—which she could not do, being a trainee lacking the combination: “No, not her, Trini.” This indicated that he was advising that Trinidad Garcia, also a manager, had to be called upon because she did have the combination.
“The defendant was deprived of due process by not being able to hear all of the evidence against him before deciding whether to testify, and because his counsel was not able to control the presentation of the defense,” Moore wrote, adding:
“A short continuance would have avoided this situation entirely, and it was error not to grant it.”
Hamless Error Asserted
The Office of Attorney General agreed that Conley erred in the procedure he followed, but urged that the conviction not be reversed on the ground that the error was harmless. Evidence against Rojas-Chavez, aside from Sambrano’s testimony, included testimony that he was wearing a stocking mask while in the premises and evidence that he, as well as Mullin, inquired of an employee, after Mullins threw Sambrano to the ground, as to the whereabouts of Garcia.
The inquiry by Rojas-Chavez was recorded on videotape via a security camera.
“The Attorney General argues that the error was harmless beyond a reasonable doubt because defendant does not claim that his testimony would have been different if he had decided whether to testify after Sambrano’s testimony, and further, that the jury still would have found defendant guilty because of the significant evidence against him.
“But the burden here is not on defendant to show what he would have done differently—it is on the Attorney General to show that what did happen was not unduly prejudicial. What happened was that the named victim of the attempted robbery charged in count two testified out of order. She filled in some important gaps in the testimony of other witnesses. Key among them is that Sambrano was the only witness to testify that defendant was an active participant at Sonic.”
The jurist said that Sambrano, in testifying that Rojas-Chavez told Mullins, “No, not her, Trini’” conflicted with the “defendant’s testimony the previous day, in which defendant portrayed himself as someone who was only out to protect others from Mullins’s out-of-control conduct.” Moore declared:
“This testimony was a major blow to defendant’s credibility.”
“Our conclusion that reversal is compelled here should not be mistaken for a belief that we found the evidence against defendant weak. The evidence was quite strong, given the testimony by the prosecution’s witnesses and the surveillance footage. Defendant’s self-serving tale of heroism was quite farfetched. It is possible, even more likely than not, that the jury would have found defendant guilty anyway. But we cannot conclude, based on this record, that the error was harmless beyond a reasonable doubt.”
The case is People v. Rojaz-Chavez, G056057.
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