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People v. Scott6/21/2002
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.
A jury found defendant Craig Wesley Scott and his co-defendant Michael Steven Renteria guilty of attempted robbery (Pen. Code §§ 664, 211/212.5). In a separate proceeding, the trial court found true allegations that defendant had suffered three separate prior felony convictions; each had been alleged both as a "strike" (§§ 667, subd. (b), 1170.12) and as a serious felony (§§ 667, subd. (a), 1192.7). After denying a request to strike the priors, the trial court sentenced defendant to state prison for a term of 40 years to life. On appeal defendant contends his Sixth Amendment right to confront witnesses was violated by admission of his co-defendant's hearsay remark made prior to the attempted robbery; in a concomitant argument, he claims his trial counsel provided ineffective assistance by failing to object to the admission of the co-defendant's statement. He also claims there was insufficient evidence to convict him of attempted robbery. In addition, defendant contends the trial court made the following instructional errors: (1) instructing the jury on self defense; (2) giving an instruction on "reasonable doubt" which impermissibly reduced the prosecutor's burden of proof; (3) instructing pursuant to CALJIC No. 1.00 because it impermissibly lessened the prosecutor's burden of proof; and (4) failing to instruct sua sponte on the definition of "material part" as used in CALJIC No. 2.21.2. In his final argument, defendant contends his sentence constitutes cruel and unusual punishment.
FACTS
Shortly after 3 p.m. on July 16, 1999, Mary Lou Hernandez went to Las Animas Park in Gilroy. There, she met Robert "Bullwinkle" Reed and William "Billy" Smith. The three friends socialized at the lakeside picnic area, sharing two cans of beer. At about 4:30 or 5 p.m., defendant and co-defendant Michael Renteria joined them. Hernandez had known Renteria for about 20 years.
At one point, Hernandez heard defendant tell Renteria that he "needed some money." Renteria replied that they should go "to the wetbacks on the other side" of the hill because they "probably have money in their pocket ." Hernandez testified she had understood Renteria to be referring to "Mexican people" and that she had seen Mexican people lying on the grass on the far side of a nearby hill when she had gone to the park restroom. After the exchange, defendant and Renteria together walked over the hill and out of the sight.
Ten minutes later, Renteria returned alone, removed his sweatshirt, and put it under the park bench. He then threatened Hernandez by saying "not to be a snitch," which she understood to mean she should not be a "tattletale."
At approximately 4:40 p.m. that afternoon, while Cesario Jimenez and his friend Angel Reyes sat in the park, they noticed an Hispanic man sitting alone about 15 meters away, "relax " in the shade of a tree. It later was determined that the man's name was Mariano Alcantaro Flores.
About ten minutes later, Jimenez saw defendant and Renteria approach together from "far away" and come up to Flores's "side." They spoke, and then Flores, who was shorter than defendant, moved to stand up. At that point, defendant "grabbed" Flores and "threw him on the ground" while Renteria stood nearby "watching what was happening."
Flores started to yell for someone to call the police, and Jimenez
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