Filed 7/28/15 P. v. Betancourt CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,                                                          B259043

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA415177)
         v.

LEROY BETANCOURT,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Drew E.
Edwards, Judge. Affirmed as modified.
         Donna Ford, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Scott A. Taryle,
Supervising Deputy Attorney General, and John Yang, Deputy Attorney General, for
Plaintiff and Respondent.
                                             ——————————
       A jury convicted Leroy Betancourt of two counts of robbery and one count of
assault with a firearm. He appeals, and we affirm as modified.
                                      BACKGROUND
       An information filed October 22, 2013 charged Betancourt with three counts of
second degree robbery against Sona Gevorgian (count 1), Raymond Aladadyan (count 2),
and Arsen Ter (count 3), all in violation of Penal Code section 211.1 The information
also alleged in count 4 that Betancourt committed assault with a firearm on Gevorgian in
violation of section 245, subdivision (a)(2). As to all four counts, the information alleged
that Betancourt personally used a firearm (§§ 1203.06, subd. (a)(1), 12022.5, subd. (a)),
served a prior prison term (§ 667.5, subd. (c)), and had a prior conviction for a serious
felony (§ 667, subd. (a)(1)), which constituted a strike (§§ 1170.12, subd. (b), 667,
subds. (b)–(j)). The trial court granted Betancourt’s motion for judgment of acquittal as
to count 3.
       After trial, the jury convicted Betancourt of count 1 (robbery of Gevorgian),
count 2 (robbery of Aladadyan), and count 4 (assault with a firearm on Gevorgian). The
jury found true that Betancourt personally used a handgun against Gevorgian in counts 1
and 4, and found not true that Betancourt personally used a handgun against Aladavyan
in count 2. Betancourt admitted his prior conviction.
       At sentencing, the trial court granted Betancourt’s motion to strike his prior
conviction under section 1385. The court imposed a total of 20 years in state prison:
three years on count 1 plus 10 years on the firearm enhancement, and five years for the
prior serious felony enhancement; one year on count 2; and one year on count 4.
Betancourt was ordered to pay fines and penalties, and was awarded custody credits. He
filed this timely appeal.
       At trial, Gevorgian testified that she worked as a receptionist at a medical
marijuana clinic on South Crenshaw Boulevard in Los Angeles. At 4:00 p.m. on
August 6, 2013, Betancourt entered the lobby. Betancourt approached the glass partition

       1   All further statutory references are to the Penal Code unless otherwise indicated.

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behind which Gevorgian worked, and where she could buzz clients through a security
door and into the actual dispensary. She told Betancourt to fill out a form, and he
returned the form to her with his doctor’s recommendation and an identification card.
Gevorgian was not sure what kind of identification it was, but “[i]t wasn’t California,”
and she told him she could not accept it. Betancourt said his girlfriend had his California
identification, and he could get it in a few days. Ter, who also worked there, came to the
lobby and explained things to Betancourt, who thanked them and left.
       A couple of hours later, Betancourt returned, came back to Gevorgian’s window,
and presented a valid California identification. She said, “‘Oh, I am glad you got it,’”
made a copy of the card, and buzzed him in, prepared to give him back his identification.
A photograph of the identification was introduced into evidence. Betancourt took a quick
glance to his right, grabbed Gevorgian’s left arm with his left arm, and with his right arm
pointed a small black handgun at her neck by her jaw line. Gevorgian was terrified.
Betancourt told her to stay calm and asked if there was anyone else inside; she said no.
He asked where the cash and the safe were, and she pointed toward the safe. Betancourt
said, “‘Stay on the floor. This will all be over quick.’” Gevorgian got on the floor, and
Betancourt grabbed cash and a big bag of marijuana from the safe. Betancourt buzzed
the door open and went back into the lobby, letting a second man in from outside.
Betancourt asked, “‘Is there any other way out of here? . . . You better not be fuckin’
lying to me.”
       Ter and another employee, Aladadyan, entered the lobby, asking why the door was
locked. The second man pistol-whipped Aladadyan; Gevorgian heard him fall and heard
a shot fired. With Betancourt waiting by the buzzer door, the second man entered from
the lobby. Telling Gevorgian to keep her head on the ground, the second man grabbed 10
to 12 jars of marijuana from the shelves and took two laptops. He wanted to take her
phone, and she begged him not to. He said, “‘You better not call the fuckin’ cops.’”
Betancourt and the second man left together.
       Los Angeles Police Department Detective Ryan Williams testified that Betancourt
was the primary suspect because the fraudulent California driver’s license left at the

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scene bore his name, date of birth, and photograph (and someone else’s driver’s license
number). A surveillance team picked up Betancourt, and Detective Williams and another
detective interviewed him at the police department on August 14, 2013; a videotape of
the interview was played for the jury. In the interview, Betancourt said he committed the
robbery because he needed rent money and had just had a baby. He planned the robbery
over several days with someone named Kevin who he met at a bus stop, and who had
been a customer of the dispensary. On the day of the robbery, Betancourt tried to enter
the dispensary with “[his] prison id that [he] paroled with in 2009. And they told [him]
they can’t use that.” (When Betancourt again referred to his “[p]rison ID,” Detective
Williams responded, “Your CDC [California Department of Corrections] card basically,”
and Betancourt said, “Right.” Betancourt later referred to it as “the CDC card.”)
Betancourt left and bought fake paperwork for about $60. When he returned, a woman
buzzed him in. He told her “just lay down, and you’re gonna be fine. All I want is a little
bit of cash, and whatever else you got.” Kevin came in behind him, and the gun was
Kevin’s. They took around $500 and “a little bit of weed.” Betancourt did not know
about anyone getting beaten, and he thought Kevin probably fired a shot in the air. After
he and Kevin left the dispensary, they split the money and the marijuana, and Betancourt
jumped on a bus.
       Aladadyan testified that he worked with Ter and Gevorgian at the dispensary. On
the day of the robbery, he left the dispensary for about 10 minutes to get something to
eat. When he and Ter returned, the front door was locked, which was unusual. Ter
screamed to open the door. When the door opened, Ter walked in first. Aladadyan
followed, was hit on the head from behind with a gun, fell to the floor, and blacked out.
When he came to, he was missing $4,000 of his own money that he had had with him
when he left the store. Also gone were cash from the store and $10,000 worth of
marijuana. Gevorgian was scared and crying.
       In closing, Betancourt’s counsel repeated his concession in opening argument that
Betancourt committed a commercial burglary, but argued the evidence did not show
beyond a reasonable doubt that he personally used a firearm.

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                                        DISCUSSION
I.       Admitting evidence of Betancourt’s prison identification card was harmless
error.
         Before testimony began, Betancourt’s counsel moved to exclude Betancourt’s
statements in the police interview in which he described the first identification he showed
at the dispensary as his prison identification, and subsequent references to the
identification as his CDC or prison card by Detective Williams and by Betancourt. The
court denied the motion, stating that the evidence was not more prejudicial than
probative. Counsel renewed the motion the next day, arguing that the card was not in
evidence. Gevorgian had testified at the preliminary hearing that she did not know what
kind of an identification it was, and she would testify only that she would not accept the
first identification. Allowing testimony that it was a prison identification card would
“essentially say[] that [he has] been to prison before.” The court stated it would not
change its ruling, and admitted the references to the document as Betancourt’s prison
identification. In his opening statement, the prosecutor stated that Betancourt
“present[ed] the clerk or the receptionist at the front area with a state prison I.D.,” and the
jury heard the entire interview with Detective Williams.
         On appeal, Betancourt argues that the statements that the rejected identification
was Betancourt’s prison identification card were more prejudicial than probative, and the
trial court abused its discretion in admitting the evidence. We review for an abuse of
discretion the trial court’s determination that the evidence was more probative than
prejudicial under Evidence Code section 352. (People v. Covarrubias (2015) 236
Cal.App.4th 942, 947.) An objection under the statute should fail “‘[u]nless the dangers
of undue prejudice . . . “‘substantially outweigh’” the probative value of relevant
evidence.’” (Id. at p. 948.)
         We see no probative value in the evidence that the identification card that
Betancourt initially attempted to use at the dispensary was from the CDC. The card itself
was not in evidence. Gevorgian testified that Betancourt’s first identification card was
not a standard California identification, although she did not know what kind it was, and

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so she did not accept it. The only evidence that the card was from the CDC were
Betancourt’s statements and Detective Williams’s references to the CDC in the videotape
of the detective’s interview with Betancourt. These subsequent references to the
identification as from the California prison system added nothing to the strength of
Gevorgian’s testimony and were not probative in themselves.
       Allowing references to the identification as a prison or CDC card, however, was
unduly prejudicial, as the term constituted evidence that Betancourt had been in prison,
which “‘“‘“uniquely tends to evoke an emotional bias against the defendant as an
individual and . . . has very little effect on the issues.”’”’” (People v. Covarrubias, supra,
236 Cal.App.4th at p. 948.) The jury heard in opening argument that Betancourt
attempted to gain entry with a prison identification card. The subsequent references to
the CDC card tended to prove only that Betancourt had been convicted of a crime and
had served prison time. The source of the identification card was not relevant to any
permissible fact such as motive, intent, or knowledge, and as the card was not in evidence
it was not proof of identity. (Evid. Code, § 1101, subd. (b).) The evidence that the first
identification was from the CDC was substantially more prejudicial than probative, and it
was an abuse of discretion to admit it.
       We also conclude, however, that the error was harmless under any conceivable
standard. (People v. Covarrubias, supra, 236 Cal.App.4th at p. 951.) Even without the
admission of evidence that the first identification was from the CDC, there was strong
evidence supporting the jury’s guilty verdict. Gevorgian identified Betancourt at trial.
Betancourt left behind at the scene his second identification, the false driver’s license
carrying his name, birthdate, and photograph. A photograph of the false license was in
evidence. In his interview with the police Betancourt confessed to the robbery, giving
details similar to Gevorgian’s testimony. Betancourt would have been convicted even
without the CDC references.




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II.    Betancourt’s motion to suppress his interview statements was properly
denied.
       Before trial, Betancourt’s counsel also moved to suppress the entire interview by
Detective Williams on the ground that Betancourt never expressly waived his right to
remain silent. The court stated, “this is the classic case of an implied waiver,” and denied
the motion. On appeal, Betancourt argues that the motion should have been granted
because he was not advised of his rights “contemporaneously with, or even close in time
to, [his] arrest,” and in any event he did not make an implied waiver of his rights.
       Betancourt was arrested on August 14, 2013. Officer Williams testified that
Betancourt did not flee from the surveillance team that arrested him, signed a consent to
search his house, and sat down to talk voluntarily. The interview took place in an
interview room at the detectives bureau. Detective Williams told Betancourt to take a
seat, and “He’ll put the cuffs in front.” Betancourt asked, “It wouldn’t be too much if I
call somebody and let [th]em know where I’m at?” Detective Williams responded,
“You’re gonna get an opportunity for all that. I promise you . . . We just gotta get
through some things first . . . . [¶] . . . Cause you are in custody I gotta read you your
rights, alright. I need a yes or no answer, alright. You have the right to remain silent.
Do you understand?” Betancourt answered, “Yes.” Detective Williams continued,
“Anything you say may be used against you in court. Do you understand?” Betancourt
answered, “Mmm, sorta. You know part ***.” Detective Williams continued, “Do you
understand anything that you say . . . [¶] . . . [¶] [c]an be [used]
against . . . [¶] . . . [¶] . . . you in court,” with Betancourt responding “yeah” four times.
Detective Williams went on, “Okay. You have the right to a presence of an attorney
before and during any questioning. Do you understand?” and Betancourt responded,
“Um, yes.” The detective continued, “If you can’t afford an attorney one will be
appointed for you free of charge before any questioning if you want. Do you
understand?” and Betancourt answered, “Yes.” After a short exchange about
Betancourt’s handcuffs, Detective Williams asked Betancourt what happened, and
Betancourt began to describe the robbery.

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       “In general, if a custodial suspect, having heard and understood a full explanation
of his or her Miranda [v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694]]
rights, then makes an uncompelled and uncoerced decision to talk, he or she has thereby
knowingly, voluntarily, and intelligently waived them. [Citation.] Law enforcement
officers are not required to obtain an express waiver of a suspect’s Miranda rights prior
to a custodial interview. [Citation.] Rather, a valid waiver of Miranda rights may, as
here, be inferred from the defendant’s words and actions.” (People v. Cunningham
(July 2, 2015, S051342) __ Cal.4th __ [2015 Cal. Lexis 4523, 56].) We evaluate
“whether the Miranda waiver is shown by a preponderance of the evidence to be
voluntary, knowing and intelligent under the totality of the circumstances surrounding the
interrogation.” (People v. Sauceda-Contreras (2012) 55 Cal.4th 203, 219.)
       Betancourt argues that his “Mmm, sorta” response to Detective Williams’ question
whether he understood that anything he said could be used against him in court shows
that he did not understand his right to appointed counsel. “‘“[W]hen a suspect under
interrogation makes an ambiguous statement that could be construed as an invocation of
his or her Miranda rights, ‘the interrogators may clarify the suspect’s comprehension of,
and desire to invoke or waive, the Miranda rights.’”’” (People v. Sauceda-Contreras,
supra, 55 Cal.4th at p. 217.) The transcript shows that Detective Williams then repeated
the question, and Betancourt answered “yeah” and “yes” several times. His actions imply
a knowing and intelligent waiver of his rights.
       Betancourt argues that his statement was not voluntary, because when he asked if
he could call someone, Detective Williams responded he could do so but first Detective
Williams had to “get through some things first,” including reading Betancourt his rights.
Because the interview took place after his arrest by the surveillance team, after he signed
a consent to search his home, and after the search of his residence, Betancourt
characterizes his interrogation as following a “[l]engthy and [i]ncommunicado
[i]ncarceration.” Betancourt did not make this voluntariness argument in the trial court.
As a result, there are no findings of fact to support or disprove his claim that there was a
lengthy period between his arrest and the interview that same day, or that the search of

                                              8
his house took place prior to the interview. Further, there is no requirement that a suspect
be allowed to make a telephone call before he is given Miranda warnings and
interviewed while in custody. Betancourt stated he just wanted to advise someone of his
whereabouts, and he does not claim he was denied an opportunity to do so later.
       Most importantly, Miranda warnings are not required at the time of arrest, but
only before a suspect is questioned while deprived of his freedom: “Absent ‘custodial
interrogation,’ Miranda simply does not come into play.” (People v. Mickey (1991) 54
Cal.3d 612, 648.) However short or long the period between Betancourt’s arrest and his
interview by Detective Williams, there is no evidence that he was interrogated earlier.
The transcript supports a conclusion that before Betancourt was interrogated at the
detectives bureau, he acted voluntarily, knowingly, and intelligently in making an implied
waiver of his Miranda rights.
III.   Betancourt’s sentence on count 4 must be stayed.
       Betancourt argues, and respondent agrees, that the trial court should have stayed
the prison term he received for count 4 (assault with a firearm on Gevorgian), as that
count was predicated on the same act and the same victim as count 1 (robbery of
Gevorgian), both with an allegation of personal use of a firearm.
       Section 654, subdivision (a), provides: “[a]n act or omission that is punishable in
different ways by different provisions of law shall be punished under the provision that
provides for the longest potential term of imprisonment, but in no case shall the act or
omission be punished under more than one provision.” Section 654, subdivision (a)
permits multiple convictions, but bars multiple punishments, for a single, indivisible
course of criminal conduct. (Neal v. State of California (1960) 55 Cal.2d 11, 18–19.)
“Whether a course of criminal conduct is divisible . . . depends on the intent and
objective of the actor. If all the offenses were incident to one objective, the defendant
may be punished for any one of such offenses but not for more than one.” (Id. at p. 19;
People v. Latimer (1993) 5 Cal.4th 1203, 1208.) We review this contention even though
it was not raised in the trial court. (People v. Scott (1994) 9 Cal.4th 331, 354 & fn. 17.)



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      Betancourt’s robbery and assault with a firearm on Gevorgian were an indivisible
course of criminal conduct. The assault charge was based on Betancourt’s holding a gun
to Gevorgian’s jaw line during the robbery, and a single intent and objective underlay the
series of acts comprising the assault and the robbery. The two-year sentence on count 4
must be stayed.
                                     DISPOSITION
      The judgment is modified to stay, pursuant to Penal Code section 654, the
sentence on count 4. The superior court is directed to prepare an amended abstract of
judgment reflecting this modification and to forward a copy to the Department of
Corrections and Rehabilitation. As so modified, the judgment is affirmed.
      NOT TO BE PUBLISHED.


                                                 JOHNSON, J.


We concur:


             ROTHSCHILD, P. J.


             CHANEY, J.




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