P. v. Acosta

Filed 10/5/06 P. v. Acosta CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. Clarence Westra, Jr., Judge.

Barbara Coffman, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Louis M. Vasquez and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury convicted appellant Leonardo Encinas Acosta of robbing Juan Davalos and Carlos Jimenez and assaulting Davalos. It also found Acosta used a knife when robbing Davalos. Acosta challenges (1) his convictions for robbery and assault of Davalos; (2) the trial court’s failure to stay the weapons enhancement appended to the robbery conviction; and (3) the order for payment of restitution to Jimenez. Acosta also contends, and the People agree, that the trial court erroneously imposed a term of imprisonment for an enhancement that was found not true. We agree with this last contention and will vacate the improper sentence on the enhancement. We will affirm the remainder of the judgment.

FACTUAL AND PROCEDURAL SUMMARY

On December 31, 2004, Jimenez went to a local bar where he met Davalos. Jimenez and Davalos left the bar about 2:00 a.m. with two women and headed to a party in Shafter. After arriving at the party, three men, one of whom was Acosta, asked for a ride.

Davalos, Jimenez, the women, Acosta, and the two other men drove to an apartment where one of the men wanted to buy some “crank.” Everyone exited the car except Davalos and Jimenez, who waited in the car. After a period of time, a group of six or seven people, including Acosta, approached the car and demanded that Davalos and Jimenez give them all their money.

Acosta threatened both Davalos and Jimenez with a switchblade. Davalos identified Acosta as the person who robbed him. Three people attacked and beat Davalos; four people climbed into the back of the car and attacked and beat Jimenez. Jimenez saw Acosta grab Davalos and saw Davalos hand his wallet to Acosta. Acosta then pulled Jimenez from the car; $300 was taken from Jimenez.

When Acosta pulled Jimenez from the car, Jimenez saw horns tattooed on Acosta’s head. Davalos also remembered seeing horns tattooed on Acosta’s head. A photograph of Acosta taken February 26, 2005, depicted tattoos of horns on Acosta’s head.

On August 3, 2005, an amended information was filed charging Acosta with two counts of second degree robbery and two counts of assault with a deadly weapon. Appended to the robbery counts were allegations that Acosta personally used a dangerous or deadly weapon in the commission of the offenses. It was further alleged as to all counts that Acosta had a prior strike conviction and a prior serious felony conviction.

Acosta’s mother, Rosa Acosta, testified that Acosta was home with her all evening on December 31, 2004, and that he did not get the horn tattoos until February 8, 2005.

Tanya Robles testified that Acosta was not one of the men at the party she went to with Davalos and Jimenez. Robles testified that she left the party with Davalos and Jimenez and went to her brother’s house. She claimed it was her brother, Leo Barboza, who used a knife to rob Davalos and Jimenez. According to Robles, Acosta was not involved in the robbery or assault. Robles denied previously identifying a man known as Chano, Acosta’s nickname, as the person who perpetrated the robberies and assault.

Officer Moises Martinez testified that he interviewed Davalos and Jimenez after the incident. Davalos told the officer he could not remember very well because he had consumed a lot of alcohol. Jimenez told Martinez that Chano, Boo, and Alejandro robbed and assaulted them.

The jury found Acosta guilty of both robbery counts and of assaulting Davalos. It found one weapons enhancement true. In a bifurcated trial, the court found the prior conviction allegations true.

At sentencing, the trial court imposed a term of imprisonment for each of the robbery convictions and a stayed term for the assault conviction. Terms of imprisonment also were imposed for the weapons enhancement and for the prior conviction findings.

DISCUSSION

Acosta contends there was insufficient evidence to support his convictions for robbing and assaulting Davalos. He also claims the trial court erred when it failed to stay execution of the term of imprisonment for the weapons enhancement appended to the robbery conviction pursuant to Penal Code section 654.^[1] Because he was acquitted of the charge of assaulting Jimenez, Acosta challenges the order to pay restitution to Jimenez for injuries Jimenez suffered. Finally, Acosta contends the trial court erred when it imposed punishment for two weapons enhancements because the jury found true only one enhancement. The People concede this last issue.

I. Sufficiency of the Evidence

Acosta contends the jury unreasonably rejected all of the defense’s evidence supporting his innocence and that the prosecution’s evidence was insufficient to support his convictions for robbing and assaulting Davalos. We disagree.

In determining the sufficiency of the evidence, we review the entire record to determine whether there was evidence that was reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Catlin (2001) 26 Cal.4th 81, 139.) The trier of fact reasonably may rely on the testimony of a single witness, unless the testimony is physically impossible or patently false. (Evid. Code, § 411; People v. Cudjo (1993) 6 Cal.4th 585, 608.) We resolve all conflicts in the evidence and questions of credibility in favor of the verdict and indulge every reasonable inference the jury could draw from the evidence. (People v. Autry (1995) 37 Cal.App.4th 351, 358.) Reversal on this ground is unwarranted unless “‘upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.)

Acosta maintains that the trial testimony of Davalos and Jimenez conflicts with their statements to Martinez. He argues that because of these conflicting statements, their trial testimony lacks credibility and should have been rejected.

First, the trial testimony and the statements to Martinez do not undermine the evidence establishing that Acosta robbed and assaulted Davalos. Martinez testified that Jimenez told him that someone named Chano punched Davalos “in the face while demanding that he give them his wallet and jewelry.” Jimenez also told Martinez that someone named Boo held a knife to his throat and demanded his money while Chano and Alejandro were assaulting and robbing Davalos. Tanya Robles testified that Acosta was known as Chano. We see no significant conflict between the statements made to Martinez and the trial testimony of Davalos and Jimenez that a group of men, including Acosta, robbed and attacked Davalos.

Second, Acosta’s contention on appeal essentially asks us to reweigh the evidence. In assessing a sufficiency of the evidence claim, we do not reweigh evidence or reevaluate a witness’s credibility. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)

Resolving all conflicts in the evidence and questions of credibility in favor of the verdict, it is clear that substantial evidence supports the convictions for robbing and assaulting Davalos. (People v. Autry, supra, 37 Cal.App.4th at p. 358.)

II. Weapons Use Enhancement

Acosta contends that the trial court was required to stay execution of the term of imprisonment imposed for the section 12022, subdivision (b)(1), enhancement appended to count 1, robbery. He is mistaken.

Section 12022, subdivision (b)(1), provides:

“Any person who personally uses a deadly or dangerous weapon in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for one year, unless use of a deadly or dangerous weapon is an element of that offense.”

If use of a deadly or dangerous weapon is an element of the offense of robbery, then section 12022, subdivision (b)(1), would require a stay of execution of the additional punishment for the enhancement. Use of a weapon is an element of an offense only if it is “‘an essential component of the legal definition of the crime considered in the abstract.’ [Citation.]” (People v. Ross (1994) 28 Cal.App.4th 1151, 1156.)

Use of a deadly weapon is not one of the elements of second degree robbery. (§ 211.) “It [is] not necessary for [a] jury to find that defendant was armed with or used a deadly weapon to find him guilty of robbery by force or fear.” (People v. Federico (1981) 127 Cal.App.3d 20, 33.) Because use of a weapon is not an element of the crime of second degree robbery, section 12022, subdivision (b)(1), mandates the imposition of a term of imprisonment for the enhancement.

Even so, Acosta argues that section 654 should apply to stay execution of punishment on the weapons enhancement. Enhancements generally may not be stayed. Unless a statute provides otherwise, an enhancement may be imposed or stricken, but it may not be stayed. To do so constitutes an illegal sentence. (People v. Harvey (1991) 233 Cal.App.3d 1206, 1231.)

Furthermore, when use of a weapon is not an element of an offense, staying the enhancement would be contrary to the legislative policy of discouraging the use of deadly weapons. (See People v. Ross, supra, 28 Cal.App.4th at p. 1159.) The legislative intent behind section 12022 was to impose additional punishment for the use of a deadly weapon where the use of the weapon is not an element of the offense because in those instances the crime is “‘more dangerous because of the probability of death or physical injury being inflicted by the weapon.’” (People v. Pheaster (1963) 215 Cal.App.2d 754, 758.) The very language of section 12022 discloses that the Legislature intended for the additional punishment to be imposed and executed unless the use of a weapon was an element of the offense.

Finally, the question of whether section 654 prohibits multiple punishment is a question of fact for the trial court, which is vested with broad latitude. (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.) A trial court’s determination on the applicability of section 654 is reviewed in the light most favorable to upholding the finding. (Ibid.) The element of force or fear required for a robbery conviction is present independent of any use of a weapon. There were several people, including Acosta, who participated in robbing Davalos, and the number was sufficient to effect a forceful taking irrespective of the presence of any weapon. Our review of the record discloses no basis upon which to reverse the trial court’s discretionary finding.

III. Restitution

Acosta challenges the order to pay restitution to Jimenez because he was acquitted of the charge of assaulting Jimenez.

At the time of sentencing, Acosta failed to object to the restitution order. “[C]omplaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal.” (People v. Scott (1994) 9 Cal.4th 331, 356.) This waiver principle applies to restitution orders. (People v. O’Neal (2004) 122 Cal.App.4th 817, 820.) By failing to object, Acosta has waived appellate review.

Regardless, a restitution order is reviewed for abuse of discretion. (People v. Baker (2005) 126 Cal.App.4th 463, 467.) Acosta’s contention ignores his being convicted of robbing Jimenez. Section 1202.4, subdivision (f), mandates that the trial court require a defendant to make restitution for economic losses suffered by a victim. The trial court specifically referenced section 1202.4, subdivision (f), in ordering that Acosta pay restitution to Jimenez “for any injuries or losses.”

Compensation for those who suffer economic losses as a result of being a victim of a crime may include compensation for the cost of psychological counseling or other medical care. (§ 1202.4, subd. (f)(3); People v. Keichler (2005) 129 Cal.App.4th 1039, 1045.) A victim of a robbery may suffer physical injuries as a result of the taking by force and ordering restitution to compensate for the injuries is not an abuse of the trial court’s discretion. (Keichler, at p. 1046.)

IV. Erroneously Imposed Enhancement

The jury found the weapons enhancement appended to count 2, robbery of Jimenez, not true. The trial court erroneously imposed a term of imprisonment for this enhancement.

We will vacate the imposition of punishment for this enhancement and direct the preparation of a corrected abstract of judgment.

DISPOSITION

The imposition of punishment for the section 12022, subdivision (b)(1), enhancement appended to count 2 is vacated. In all other respects the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and transmit the same to the appropriate authorities. The amended abstract should reflect defendant’s full name -- Leonardo Encinas Acosta.

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CORNELL, J.

WE CONCUR:

_____________________

HARRIS, Acting P.J.

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HILL, J.

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^[1] All further statutory references are to the Penal Code unless otherwise specified.