Filed 7/21/16 P. v. Magallon CA2/4
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION FOUR


THE PEOPLE,                                                             B260596

         Plaintiff and Respondent,                                      (Los Angeles County
                                                                        Super. Ct. No. KA106035)
         v.

ANDREW JOSHUA MAGALLON,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County, Douglas
W. Sortino, Judge. Affirmed.
         Janet Gusdorff, 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, Assistant Attorney General, Victoria B. Wilson and Jessica C.
Owen, Deputy Attorneys General, for Plaintiff and Respondent.
       Defendant Andrew Magallon and an accomplice stole approximately $67,000
worth of merchandise from a Don Roberto jewelry store. A jury found defendant guilty
of four counts of second degree robbery (Pen. Code, § 211),1 one count for each of the
four workers present in the store during the robbery. The court sentenced defendant to a
total of eight years in state prison: the high term of five years on count one, and
consecutive sentences of one-third the midterm of three years on each of counts two,
three, and four.
       Defendant challenges both his conviction and sentence. He argues the conviction
cannot stand because he was prejudiced by the court’s improper admission of three
photographs: a self-portrait, commonly referred to as a “selfie,” from his cell phone, and
two surveillance photos showing him at different Don Roberto locations after the
robbery. He contends his sentence cannot stand because the court relied on improper
aggravating factors to support imposition of the upper term. We are not persuaded by
either argument and accordingly affirm the judgment of the trial court.
                                 PROCEDURAL HISTORY
       On July 24, 2014, the Los Angeles County District Attorney (“the People”) filed
an information charging defendant with four counts of second degree robbery (§ 211,
counts 1-4), three counts of false imprisonment (§ 236, counts 5-7), one count of second
degree commercial burglary (§ 459, count 8), one count of grand theft of personal
property (§ 487, subd. (a), count 9), and one count of possession of a firearm by a felon
(§ 29800, subd. (a)(1), count 10). The People further alleged that defendant personally
used a firearm within the meaning of sections 12022.53, subdivision (b) and 1203.06,
subdivision (a)(1) in connection with the robbery counts and personally used a firearm
within the meaning of section 12022.5, subdivision (a) in connection with the false
imprisonment counts. The People also alleged, as to all counts, that defendant suffered
two prison priors within the meaning of section 667.5, subdivision (b). Defendant
pleaded not guilty and denied the allegations.


       1
           All further statutory references are to the Penal Code unless otherwise indicated.
                                               2
       Prior to defendant’s jury trial, the People dismissed the false imprisonment,
commercial burglary, and grand theft counts (counts 5-9) pursuant to section 1385.
Defendant stipulated that he suffered a prior felony conviction and proceeded to jury trial
on the remaining counts: robbery and felon in possession. The court granted defendant’s
motion to bifurcate trial of his priors.
       The jury found defendant guilty on all four robbery counts. It acquitted him of the
gun possession count, however, and also found all of the firearm allegations to be untrue.
The People subsequently dismissed the allegations relating to defendant’s prison priors.
       The court sentenced defendant to a total of eight years in state prison, calculated as
the upper term of five years on count one plus one-third the midterm of three years (i.e.,
one year) on each of counts two through four, to run consecutively. The court also
imposed various fines and fees, and awarded defendant 220 days of custody credits.
       Defendant timely appealed.
                                 FACTUAL BACKGROUND
       On July 2, 2013, Aurelia Tapia, Bibiana Gil, Tiffany Lucero, and Mirtha Caldera
were working at a Don Roberto store in Azusa. Miritha and, at least once, Myrna. The
preliminary hearing transcript, probation report, and information spell it Mirtha. Witness
Gil also spelled the name Mirtha while she was testifying. At around 2:00 p.m., Tapia
and Gil saw two males wearing hooded sweatshirts enter the store. One of the men was
wearing a white hoodie, and the other was wearing a black hoodie. At trial, Tapia, Gil,
and Lucero2 all identified defendant as the male wearing the white hoodie. Although
both individuals wore their hoods over their heads, Gil and Lucero could see that
defendant’s hair was braided.
       Tapia testified that the men told the store employees not to touch anything. Tapia
nonetheless pressed the silent alarm button. Tapia, Gil, and Lucero all testified that




       2
           Caldera was not called as a witness at trial.
                                                3
defendant brandished what appeared to be a gun3 at them and told them to get on the
floor where he could see their hands.
       Defendant asked Tapia where the money was and asked her to give it to him. She
told him there was no money. Defendant then told Tapia, Lucero, and Caldera to go into
the bathroom, and directed Gil, who had an elastic keychain on her wrist, to open the
jewelry cases. Tapia, Lucero, and Caldera went into the bathroom, and Gil began
removing items from the jewelry cases. She placed the items on the counter, and
defendant’s cohort put them into a black bag. Defendant called Gil a “bitch” and told her
to hurry up. Gil remembered having seen defendant and the other perpetrator in the store
the week before. She recognized defendant based on his face; she did not remember
seeing a tattoo.
       Defendant walked back and forth between the bathroom and the front of the store,
telling the women in the bathroom not to move. Tapia was able to look directly at his
face but did not see a tattoo on his neck. Lucero saw a tattoo on defendant’s neck when
he turned his head. Gil eventually came to the bathroom and told the others that
defendant and his accomplice had left. The police responded to the scene shortly
thereafter. Don Roberto loss prevention officer Attisdei Arroyo testified that an
inventory revealed that roughly $67,000 worth of jewelry was missing.
       Several months after the robbery, Azusa Police Department detective Chris Franks
separately showed Tapia, Gil, and Lucero a six-pack photo array containing defendant’s
photograph. All three women identified defendant as the person who robbed the Don
Roberto store in July 2013. Although defendant’s photo was the only one depicting a
man with a neck tattoo, neither Tapia nor Gil—both of whom had been told about but had
not personally seen defendant’s tattoo—relied on that characteristic in selecting his

       3
         All three percipient witnesses unequivocally testified that defendant had a gun.
Defendant cross-examined them about their lack of firearm knowledge and presented
expert testimony that it is not possible to ascertain whether a weapon satisfies the Penal
Code definition of a “firearm” without performing a series of tests on the weapon in
question. The jury acquitted defendant of the felon-in-possession charge and found the
firearm allegations not true.
                                             4
photo. Tapia testified that she identified defendant based on “the elongated shape of his
face, his pointed nose, and the way his eyes look,” while Gil recognized his face and hair.
The court admitted into evidence a selfie retrieved from defendant’s cell phone. It
showed defendant wearing a white hoodie and smoking something. His neck tattoo was
not visible in the selfie.
       Loss prevention officer Arroyo testified that he obtained surveillance videos dated
June 26, 2013 and July 2, 2013 from the Azusa store. He also obtained a surveillance
video dated July 30, 2013 from the Santa Fe Springs location, and one dated November 8,
2013 from the La Puente store. All of the videos were played for the jury, and one still
photo from each of them was admitted into evidence. Gil identified defendant in the June
26, 2013 and July 2, 2013 videos. Monrovia Police Department detective Sarah
Bushmeyer received the still photos when detective Franks sought identification
assistance from other law enforcement agencies. She recognized defendant, with whom
she had several previous contacts, in all four still photos. Detective Franks testified that
defendant identified himself in the still photos. Franks further testified that defendant
explained his repeated presence in multiple Don Roberto locations by stating that he had
“a lot of friends that are females” and suggesting, “Maybe I was there for an
anniversary.”
                                       DISCUSSION
I.     Admission of Evidence
       Defendant contends the court erroneously admitted inflammatory and minimally
probative photographs of him “appearing to smoke marijuana, and visiting multiple
branches of Don Roberto’s in Southern California after the July 2 robbery.”
We are not persuaded. The court did not abuse its discretion in admitting the selfie of
defendant smoking, and defendant forfeited his objection to the admission of the
surveillance photographs. Even if he had not, we find no error in their admission.
       A.       Governing Principles
       All relevant evidence generally is admissible. (Evid. Code, § 351.) Evidence
Code section 352 vests in the trial court the discretion to exclude relevant evidence “if its

                                              5
probative value is substantially outweighed by the probability that its admission will . . .
create substantial danger of undue prejudice, of confusing the issues, or of misleading the
jury.” “In ruling on the admissibility of photographs and videotapes under Evidence
Code section 352, ‘the court enjoys broad discretion in deciding whether prejudice
substantially outweighs probative value.’ [Citation.]” (People v. Michaels (2002) 28
Cal.4th 486, 532.) “A trial court’s exercise of discretion in admitting or excluding
evidence is reviewable for abuse [citation] and will not be disturbed except on a showing
the trial court exercised its discretion in an arbitrary, capricious, or patently absurd
manner that resulted in a manifest miscarriage of justice [citation].” (People v. Rodriguez
(1999) 20 Cal.4th 1, 9-10.)
       B.     Analysis
              1.      Selfie
       At trial, defendant contested the victims’ identifications of him. To corroborate
the victims’ testimony about defendant’s appearance on the day of the robbery, the
prosecution sought to admit a selfie retrieved from defendant’s cell phone. The
photograph, which we have examined, is a close-up depicting defendant from the
shoulders up. He is wearing a light-colored hoodie, with the hood up, and is holding an
object between his teeth and with his left hand. Defendant objected to the admission of
the selfie on the ground that it appeared to depict him “smoking an object which most
people, if they look at it, would presume was marijuana” and was therefore unduly
prejudicial under Evidence Code section 352.
       The court disagreed. It noted that the item in defendant’s mouth was not
necessarily marijuana and “could be a cigarillo or a small cigar.” The court
acknowledged that “[t]here may be some prejudicial effect that it’s marijuana, but again,
it’s not definitively that.” The court reasoned that any prejudicial effect would be
“extremely minor” because marijuana “as far as society is concerned, is almost legal in
the state of California” and is “almost considered no different than alcohol.” The court
further concluded that any minimal prejudice would be outweighed by the probative
value of the selfie, namely that it showed defendant “wearing a light-colored hoodie

                                               6
that’s similar to the hoodie that is displayed by one of the robbers on the surveillance
video,” and “goes to his ownership of the phone,” from which the People obtained other
photos that were admitted without objection.
       This ruling was not an abuse of discretion. Identification was the primary issue in
the trial, and the selfie was highly probative on this issue. It showed how defendant—
and his neck tattoo—looked while he was wearing a light-colored hoodie and served to
corroborate Tapia’s and Gil’s testimony that no tattoo was visible when defendant was so
dressed. The selfie also provided the jury with a close-up view of defendant’s face
against which it could weigh the witnesses’ observations regarding his eyes, nose, and
hair. Defendant argues that the selfie “was not necessary for proving the obvious
common sense inference that wearing a hoodie may obscure a neck tattoo,” and that it
was cumulative because the prosecution introduced “multiple points of corroboration that
appellant was the robber, other than Exhibit 16 (the selfie).” These contentions are not
sufficiently persuasive to impugn the court’s analysis, particularly in light of defendant’s
trial strategy to argue that “[t]here’s a misidentification in this particular case” because
“none of the witnesses described a tattoo on the side of his neck except for one person.”
       On the other side of the scale, the court reasonably concluded that the risk of
undue prejudice associated with the selfie was quite low. Even if, as defendant suggests,
“some jurors were more ‘old school’ than the trial judge and would have found smoking
illegal drugs to be reprehensible criminal activity,” it is unclear from the selfie what,
exactly, defendant was smoking, and no mention of the smoking or the nature of the
substance was made during trial. Defendant also argues the selfie was unduly prejudicial
because the court ruled on its admissibility mid-trial and therefore “prevented [him] from
conducting voir dire as to the issue” of jurors’ attitudes regarding marijuana. We are not
persuaded by this contention, for, as the trial court explicitly confirmed in open court,
defendant had access to the selfie before trial. He could have brought the motion to
exclude earlier, and crafted his voir dire accordingly.




                                               7
               2.     Post-Robbery Surveillance Photos
       During defendant’s interview with Detective Franks, he identified himself in two
Don Roberto surveillance photos that post-dated the robbery and explained that perhaps
he visited those stores to search for anniversary presents. The People sought to introduce
defendant’s statements as party admissions, and the court held a conference on that issue
before the start of trial. Defendant objected on relevance grounds, arguing that
defendant’s presence in other stores and explanations therefor were not at issue in this
case. The People argued that the photos showed a pattern and, moreover, were crucial to
law enforcement’s ultimate identification of defendant as a perpetrator of the July 2, 2013
robbery. They further explained that “when he was interviewed by the detective why he
was going to those places so often, his answer simply doesn’t make sense. It was
consciousness of guilt.” Defendant reiterated his objections, stating, “I don’t think the
court should allow these subsequent jewelry store visits of Mr. Magallon to come into
evidence, certainly shouldn’t let the jury hear. I think it’s irrelevant and also under 352
it’s not relevant.”
       The court ruled, “I am going to allow it. It seems to me it has relevance. It does
shows [sic] a pattern of returning to the store. He identifies himself as being the person
in the videos, he comes up with an explanation the People argue is not logical and not
valid. I think it is relevant to the issue of whether or not he committed these other
robberies and I do not believe it’s any prejudicial effect - - pardon me - - I believe the
probative value substantially outweighs any possible prejudicial effect, so the court will
allow it, assuming you can lay foundation under Miranda.” Detective Franks
subsequently testified about defendant’s self-identification and explanatory statements.
The People introduced the still photos themselves through Detective Bushmeyer, who
testified that she received the photos from another law enforcement agency and
recognized defendant due to her prior contacts with him. Defendant did not object to the
photos during Bushmeyer’s testimony regarding them or otherwise challenge the
admission of the photos themselves; his objections prior to trial explicitly were directed
at “the admission of the statement.”

                                              8
       Defendant now argues that the court erred in concluding that the photographs were
relevant to his participation in the July 2, 2013 robbery. He further contends that the
photos did not make his “explanation (for visiting multiple locations to purchase an
anniversary gift) any more or less logical,” and that his visits to other jewelry stores were
prejudicial because they “served only to suggest that he was visiting Don Roberto’s
branches to ascertain his next target.” The People respond that defendant forfeited these
contentions by failing to make them below, and we agree. Defendant did not object to
the admission of the surveillance photographs; his objections were aimed at the
admission of his statements regarding those photographs. His challenge to the
photographs on appeal accordingly is not cognizable. (See Evid. Code, § 353, subd. (a);
People v. Demetrulias (2006) 39 Cal.4th 1, 20.)
       Even if it were, however, we are not persuaded that the photographs were
irrelevant or unduly prejudicial. The photographs were important to and highly probative
of the identification of defendant, a key issue at trial. The prosecutor did not mention any
dates when discussing the photographs with Detective Bushmeyer or Detective Franks,
and neither did the witnesses. Any prejudice associated with the post-robbery nature of
the photographs accordingly was minimal. Defendant claims the prosecutor
“prejudicially suggested” during closing argument that defendant intended to rob
additional Don Roberto locations, but statements of counsel are not evidence. (In re Zeth
S. (2003) 31 Cal.4th 396, 414, fn. 11.) Furthermore, defendant did not object to those
statements at trial.
II.    Sentencing
       Defendant argues that the trial court abused its discretion by sentencing him to the
upper term of five years on the base count of robbery because it relied on “aggravating
factors that were either legally or factually inapplicable.” Defendant points specifically
to the court’s conclusions that the victims were particularly vulnerable and that the crime
involved the threat of great bodily harm, and further contends that the court improperly
considered prior crimes of which he had been charged but not convicted. We are not
persuaded.

                                              9
        A.     Governing Principles
        Under California’s determinate sentencing law, which specifies three terms for
most offenses, the decision to impose an upper term rests within the broad discretion of
the trial court. (People v. Sandoval (2007) 41 Cal.4th 825, 836, 847.) A trial court may
base an upper term sentence upon any aggravating circumstance that the court deems
“significant,” and that is “‘reasonably related to the decision being made.’” (Id. at p.
848.) “A single aggravating factor will support an upper term sentence.” (People v.
Weber (2013) 217 Cal.App.4th 1041, 1064; see also People v. Osband (1996) 13 Cal.4th
622, 728.) “The trial court’s sentencing discretion must be exercised in a manner that is
not arbitrary and capricious, that is consistent with the letter and spirit of the law, and that
is based upon an ‘individualized consideration of the offense, the offender, and the public
interest.’ [Citation.]” (People v. Sandoval, supra, 41 Cal.4th at p. 847.) California Rules
of Court Rule 4.421 sets forth a non-exclusive list of appropriate aggravating
circumstances the court may consider. (Cal. Rules of Court, Rule 4.408(a); People v.
Crabtree (2009) 169 Cal.App.4th 1293, 1325-1326.) A trial court abuses its discretion if
“relies upon circumstances that are not relevant to the decision or that otherwise
constitute an improper basis for decision.” (People v. Sandoval, supra, 41 Cal.4th at p.
847.)
        B.     Analysis
        The trial court articulated numerous aggravating factors listed in California Rules
of Court Rule 4.421 in support of its high term sentence. First, it found that the crime
involved a threat of great bodily harm or violence or disclosed a high degree of
viciousness. (Cal. Rules of Court, Rule 4.421(a)(1).) The court reasoned that even if
defendant’s gun were fake, its presence could have prompted law enforcement officials
responding to the silent alarm to use deadly force. Second, the court concluded that the
female victims were “particularly vulnerable given the number of men and the great
monetary loss.” (Cal. Rules of Court, Rule 4.421(a)(3).) Third, the court found that
defendant occupied a position of leadership in the commission of the crime in light of his
commands to the victims upon entry into the store and his participation in casing the store

                                              10
the week prior to the robbery. (Cal. Rules of Court, Rule 4.421(a)(4).) Fourth, the court
found that defendant’s pre-robbery reconnaissance of the store evinced planning,
sophistication, and professionalism. (Cal. Rules of Court, Rule 4.421(a)(8).) Fifth, the
court found that the robbery involved the taking of a large amount of money. (Cal. Rules
of Court, Rule 4.421(a)(9).) Sixth, the court found that defendant’s criminal convictions
were numerous and increasing in seriousness. (Cal. Rules of Court, Rule 4.421(b)(1).)
In doing so, the court mentioned that some of his convictions originally were charged as
more serious offenses. Finally, the court found that defendant had served prior custodial
terms, although they were in county jail rather than state prison due to realignment. The
court also considered the mitigating factors listed in California Rules of Court Rule 4.423
and concluded that the only potentially relevant factor, defendant’s age, did not outweigh
the “many factors in aggravation.”
       Defendant challenges the validity of only three of the court’s seven reasons for
selecting the upper term, evidently conceding that the court cited four proper bases for
imposing the upper term. The court’s reliance upon multiple undisputedly valid
aggravating factors undermines defendant’s claim of error. “A single aggravating factor
will support an upper term sentence.” (People v. Weber, supra, 217 Cal.App.4th at p.
1064.) Courts accordingly have concluded that a defendant’s challenge to three of four
aggravating factors cited by a trial could not succeed where “the trial court relied on a
fourth reason that adequately supports the upper term.” (Ibid.) We similarly conclude
that the court’s invocation of four plainly valid aggravating factors in support of an upper
term sentence in this case was not an abuse of its discretion.
       Moreover, we are not persuaded that the three reasons defendant attacks were
invalid or unsupported by the record. Defendant argues that the court’s conclusion about
the victims’ particular vulnerability was based on “stereotype, not fact,” because the
female employees outnumbered the male perpetrators two to one, “acted rationally and
calmly under pressure,” and “were not in any weakened condition of health or body.”
This argument disregards testimony that victim Caldera was “old” and did not speak
English and further ignores the unprotected and accessible nature of the jewelry store.

                                             11
“Particularly, as used here, means in a special or unusual degree, to an extent greater than
in other cases. Vulnerability means defenseless, unguarded, unprotected, accessible,
assailable, one who is susceptible to the defendant’s criminal act. An attack upon a
vulnerable victim takes something less than intestinal fortitude. In the jargon of football
players, it is a cheap shot.” (People v. Smith (1979) 94 Cal.App.3d 433, 436.) It was not
an abuse of discretion for the court to conclude that four female employees of a jewelry
store housing thousands of dollars of merchandise, at least one of whom was elderly and
did not speak the language used by the perpetrator, were unusually susceptible to an
apparent armed robbery.
       Defendant also challenges the court’s conclusion that the robbery involved a threat
of great bodily harm. He contends the court improperly relied upon a “hypothetical
scenario” of responding law enforcement officials that is “nothing more than conjecture
and speculation, divorced from the facts of this case.” He does not cite any legal
authority in support of this contention, which we find unpersuasive in any event. It was
not unreasonable for the court to conclude that an apparent armed robbery carried out in
broad daylight by two young men posed a threat of great bodily harm or evinced a high
degree of viciousness.
       We find no more persuasive defendant’s contentions that the court improperly
relied “upon the nature of appellant’s prior initial charges, as opposed to prior
convictions,” and periods of incarceration in county jail to justify the high term. During
its comprehensive recitation of the relevant aggravating factors, the court noted that
defendant had “a grand theft person originally charged as a robbery from Glendora,
October of 2011” and “a conviction for grand theft reduced from a robbery.” There is no
suggestion in the court’s statements that the court relied on the original charges rather
than the offenses of conviction to conclude that defendant’s “criminal activity is ongoing,
essentially nonstop, and increasing in seriousness,” a finding paraphrasing California
Rules of Court Rule 4.421(b)(2). Likewise, the fact that defendant served his felony
sentences in county jail rather than state prison due to realignment does not render the


                                             12
court’s conclusion that defendant “didn’t get the message that he should stay out of
trouble” an abuse of discretion.
                                     DISPOSITION
       The judgment of the trial court is affirmed.
             NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS



                                       COLLINS, J.


We concur:



EPSTEIN, P. J.



WILLHITE, J.




                                            13
