Filed 4/20/22 P. v. Alvarado CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, James Edward Rogan, Judge. Affirmed in part, reversed in part, and remanded with directions.

Kevin Smith for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Nora S. Weyl, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

After Daniel James Alvarado shoplifted a bottle of rum and some cell phone accessories from a grocery store, he brandished a large knife while fleeing from store security officers. He was charged with two counts of robbery (one as to each security officer) and one count of petty theft. The information alleged Alvarado used a deadly weapon to commit both robberies: specifically, the knife as to count 1 and the bottle of rum as to count 2.

A jury acquitted Alvarado of the robbery charge in count 2, but found him guilty of the lesser included offense of petty theft. The jury also found him guilty of the petty theft charged in count 3. The jury was unable to reach a verdict on the other robbery count (count 1), resulting in a mistrial. A new jury later found Alvarado guilty of count 1 and found true the deadly weapon allegation involving his use of the knife. Alvarado appeals.

Alvarado first asserts the trial court erred by not giving a unanimity instruction requiring the second jury to unanimously agree which weapon Alvarado used to instill fear in his victim on count 1. He also argues insufficient evidence supported the true finding on the deadly and dangerous weapon enhancement on count 1. We reject both contentions for the reasons set forth below.

Alvarado further contends his conviction of petty theft on count 3 is the same offense that he was convicted on for count 2 and therefore violates Penal Code[1] section 954. The Attorney General agrees these are identical convictions for the same act. We therefore remand this matter to the trial court with directions to vacate Alvarado’s conviction on either count 2 or count 3 and to resentence Alvarado consistent with this opinion. The judgment is otherwise affirmed.

FACTS

One afternoon in November 2019, Alvarado walked into a grocery store, took a bottle of rum and some cell phone accessories, and left the store without paying. Two loss prevention officers, K.V. and M.T., confronted Alvarado outside, identified themselves as loss prevention officers, and asked Alvarado to return the items he had taken. Alvarado raised the bottle of rum aggressively and yelled, “Get back”; he then took off running in the parking lot.

M.T. chased Alvarado. According to M.T., Alvarado stopped and turned to face him while holding a knife with a black handle and a six-inch blade in a “ready to strike” position.[2] Alvarado yelled, “back off,” and then ran again. M.T., only five feet from Alvarado, was afraid he would be stabbed, so he stopped his pursuit. Alvarado ran through the parking lot toward a black SUV.

Meanwhile, the grocery store director went out to the parking lot, hoping to photograph Alvarado’s license plate and recover the stolen merchandise, and he happened to stand near Alvarado’s vehicle. Alvarado ran toward him, and when Alvarado was about six to ten feet away, the store director saw that Alvarado was holding up what he described as a 10-inch knife with a black handle and a six-inch serrated blade. The store director stepped back, and Alvarado got into the vehicle and drove away.

The store director later identified Alvarado from a photographic lineup. After he was arrested, Alvarado admitted stealing the rum and cell phone accessories, but he denied raising the rum bottle in a threatening way, brandishing a knife, or telling the loss prevention officers to “get back.”

An information charged Alvarado with two counts of second degree robbery (count 1 as to M.T. and count 2 as to K.V.; §§ 211, 212.5, subd. (c)) and one count of misdemeanor petty theft (count 3 as to Vons (§§ 484, subd. (a), 488)).[3] The information also alleged Alvarado used a deadly weapon in committing both robberies—specifically, that he used a knife when robbing M.T. and a glass bottle when robbing K.V. (§ 12022, subd. (b)(1)).

The defense asked the trial court to give the jury a unanimity instruction (CALCRIM No. 3500),[4] requiring the jury to agree on each robbery count whether that particular robbery was effectuated using the knife or the bottle. The court denied the request, finding each charge was already distinct, with count 1 alleging robbery by use of a knife against M.T., and count 2 alleging robbery by use of a bottle against K.V.

The jury acquitted Alvarado of the robbery of K.V. (count 2)[5] but convicted him of the lesser included offense of misdemeanor petty theft. It also found Alvarado guilty of misdemeanor petty theft (count 3). That jury hung on the charge for robbery of M.T. (count 1), resulting in a mistrial.

Count 1 was retried to a new jury, along with the deadly weapon enhancement. The parties stipulated that Alvarado was convicted of petty theft in the previous trial.

During deliberations in the second trial, the jury sent a note asking, “If we believe there was no knife and the defendant attempted to use the liquor bottle to create fear, is it still robbery?” Rather than respond directly to the question, the trial court allowed counsel to reopen their closing arguments to address that issue.

Given the jury’s question referencing both the knife and the bottle, the defense again asked the trial court to give a unanimity instruction requiring the jury to agree on a single act by which Alvarado induced fear in M.T. in order to convict Alvarado on count 1. The court denied the request. It explained, “f there was one robbery alleged but there were two potential victims to the robbery, clearly the court would have an obligation to give a unanimity instruction, but . . . if you have 12 jurors sitting on a robbery case and if six of them believe that the robbery was accomplished by the use of a knife and four of them believe the robbery was by use of a bottle and two of them believe the robbery was accomplished by no weapon and just by threat of force, there would be no need for the court to give a unanimity instruction as long as all 12 of them believe beyond a reasonable doubt that the robbery was accomplished by force or fear.”

1. [i]The Lack of a Unanimity Instruction

Alvarado first contends the trial court erred in denying his request in the second trial for a unanimity instruction. According to Alvarado, because the first jury acquitted him of count 2 (robbery of K.V.), they must have determined Alvarado did not use a bottle to instill fear in either loss prevention officer; thus, the court should have informed the second jury it had to unanimously agree Alvarado used a knife to instill fear in M.T. in count 1 and could not consider his alleged use of the bottle at all.

“In a criminal case, a jury verdict must be unanimous. [Citations.] . . . [Citation.] Additionally, the jury must agree unanimously the defendant is guilty of a specific crime. [Citation.] Therefore, cases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. [Citations.] [¶] This requirement of unanimity as to the criminal act ‘is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed.’” (People v. Russo (2001) 25 Cal.4th 1124, 1132 (Russo).)

“On the other hand, where the evidence shows only a single discrete crime but leaves room for disagreement as to exactly how that crime was committed or what the defendant’s precise role was, the jury need not unanimously agree on the basis or, as the cases often put it, the ‘theory’ whereby the defendant is guilty. [Citation.] The crime of burglary provides a good illustration of the difference between discrete crimes, which require a unanimity instruction, and theories of the case, which do not. Burglary requires an entry with a specified intent. (Pen. Code, § 459.) If the evidence showed two different entries with burglarious intent, for example, one of a house on Elm Street on Tuesday and another of a house on Maple Street on Wednesday, the jury would have to unanimously find the defendant guilty of at least one of those acts. If, however, the evidence showed a single entry, but possible uncertainty as to the exact burglarious intent, that uncertainty would involve only the theory of the case and not require the unanimity instruction.” (Russo, supra, 25 Cal.4th at pp. 1132‑1133.)

“The key to deciding whether to give the unanimity instruction lies in considering its purpose. The jury must agree on a ‘particular crime’ [citation]; it would be unacceptable if some jurors believed the defendant guilty of one crime and other jurors believed her guilty of another. But unanimity as to exactly how the crime was committed is not required. Thus, the unanimity instruction is appropriate ‘when conviction on a single count could be based on two or more discrete criminal events,’ but not ‘where multiple theories or acts may form the basis of a guilty verdict on one discrete criminal event.’ [Citation.] In deciding whether to give the instruction, the trial court must ask whether (1) there is a risk the jury may divide on two discrete crimes and not agree on any particular crime, or (2) the evidence merely presents the possibility the jury may divide, or be uncertain, as to the exact way the defendant is guilty of a single discrete crime. In the first situation, but not the second, it should give the unanimity instruction.” (Russo, supra, 25 Cal.4th at pp. 1134‑1135.)

The problem in this case arose not from the instructions provided by the trial court to the jury; it arose because in the second trial, which focused exclusively on Alvarado’s alleged robbery of M.T (count 1) and his use of a knife in committing that offense (the deadly weapon allegation), the jury asked a question during deliberations that the trial court failed to properly address. The jury sent a note asking, “If we believe there was no knife and the defendant attempted to use the liquor bottle to create fear, is it still robbery?” Rather than respond directly to the question, the trial court allowed counsel to reopen their closing arguments to address that issue.

In response to this pointed question, the trial court should have informed the jury that the only weapon at issue in count 1 was a knife and the jury could not consider use of a bottle to satisfy the weapon element. In the absence of such clarification, a unanimity instruction was likely warranted; that instruction would have required the jury to unanimously agree Alvarado used a knife to instill fear in M.T. in count 1 in order to convict him.

We find the court’s error to be harmless under any arguable standard, however, due to the jury’s unanimous finding on the section 12022, subdivision (b)(1) enhancement, which specified that Alvarado used a knife in committing count 1. Regardless of whether any juror may have thought a bottle was in some way involved in Alvarado’s commission of his robbery on M.T., the jury ultimately agreed unanimously and beyond a reasonable doubt that Alvarado employed a knife to accomplish the robbery, as confirmed by their true finding with respect to the dangerous weapon enhancement related to count 1. Accordingly, the trial court’s failure to properly answer the jury’s question and its refusal to give a unanimity instruction constituted harmless error.

Alvarado alternatively argues the denial of the unanimity instruction resulted in a violation of his constitutional protection against double jeopardy because some or all of the jurors in the second trial may have convicted him of robbery by use of the bottle, a charge on which he had been previously acquitted in the first trial. This argument also fails. Alvarado ignores the fact that the robbery charges each related to a different victim, and each involved the alleged use of a different weapon. His acquittal in the first trial on count 2 was for the robbery of K.V., which involved Alvarado’s alleged use of a bottle as a weapon. His conviction in the second trial on count 1 was for the robbery of M.T., which involved Alvarado’s alleged use of a knife as a weapon. These are discrete crimes. We find no double jeopardy issue.

2. The Deadly or Dangerous Weapon Enhancement

Alvarado next challenges the jury’s true finding related to the deadly and dangerous weapon enhancement on count 1, asserting the prosecution failed to prove he used the knife as a deadly or dangerous weapon in a manner capable of causing and likely to cause death or great bodily injury to M.T. According to Alvarado, M.T. conceded the closest he got to Alvarado was five feet and Alvarado never raised the knife above his waist, so M.T. was never in any real danger. We cannot agree.

Although a knife is not among the few objects that are inherently dangerous as a matter of law, a knife “‘may assume such characteristics, depending upon the manner in which it was used.’” (People v. Aledamat (2019) 8 Cal.5th 1, 6.) Our Supreme Court has established the following guidelines for determining whether a non-inherently dangerous object, such as a knife, was used in a manner likely to produce death or great bodily injury: (1) the object must have been used in a manner that was not only capable of producing, but also likely to produce, death or great bodily injury (In re B.M. (2018) 6 Cal.5th 528, 533 (B.M.)); (2) the determination of whether the object is a deadly weapon must rest on evidence of how the defendant actually used the object, not on conjecture as to how it could have been used (id. at p. 534); and (3) relevant factors include not only the injury that could have resulted, but also the extent or lack of actual injury (id. at pp. 535-536; id. at p. 536 [evidence did not support finding that butter knife was a “deadly weapon”]).

“Whether a perpetrator . . . uses an object in a manner that renders it a deadly weapon [is a] question[ ] for the trier of fact, the resolution of which we review for substantial evidence. [Citations.] [¶] “‘When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’”” (In re Raymundo M. (2020) 52 Cal.App.5th 78, 87 (Raymundo M.).)

Applying those guidelines here, we conclude substantial evidence established Alvarado used the knife as a deadly or dangerous weapon in a manner capable of causing and likely to cause death or great bodily injury to M.T. Three witnesses—M.T., K.V., and the store director—testified Alvarado brandished a large knife with a six-inch serrated blade at M.T. According to M.T., he was only five feet from Alvarado when Alvarado held the knife by his side in a “ready to strike” position and yelled “[B]ack off!” Easily distinguishable from the dull butterknife at issue in B.M., supra, 6 Cal.5th at p. 544, this knife had a six-inch serrated blade; it was capable of puncturing the skin and, therefore, had a significant potential to inflict great bodily injury. And M.T.’s response, abandoning the chase to avoid being stabbed, further supports the inference that the knife was capable of inflicting death or great bodily injury on him in the way it was employed. Applying the deferential substantial evidence standard as we must, and viewing the record in the light most favorable to the judgment, we conclude the evidence supports the enhancement. (See Raymundo M., supra, 52 Cal.App.5th at p. 89 [“an assault with a deadly weapon can occur even when the defendant never swings the weapon”].)

3. The Petty Theft Convictions

Alvarado’s final argument is that his conviction of misdemeanor petty theft on count 3 must be reversed because it is the same offense for which he was convicted on count 2 and thus violates section 954. Section 954 generally permits multiple convictions for crimes arising from the same act or course of conduct, but a judicially created exception prohibits multiple convictions based on necessarily included offenses. (People v. Reed (2006) 38 Cal.4th 1224, 1227.) Thus, “[w]hen a defendant is found guilty of both a greater and a necessarily lesser included offense arising out of the same act or course of conduct, and the evidence supports the verdict on the greater offense, that conviction is controlling, and the conviction of the lesser offense must be reversed.” (People v. Sanders (2012) 55 Cal.4th 731, 736.)

In this case, the first jury acquitted Alvarado of robbery of K.V. (count 2) but convicted him of the lesser included offense of misdemeanor petty theft. It also found Alvarado guilty on misdemeanor petty theft (count 3). The Attorney General concedes these are “identical convictions for the same act of taking personal property from Vons.” Consequently, one of the duplicate convictions must be stricken.

DISPOSITION

The matter is remanded to the trial court with directions to vacate Alvarado’s conviction on either count 2 for the lesser included offense of misdemeanor petty theft, or count 3 for misdemeanor petty theft, and to resentence Alvarado consistent with this opinion. In all other respects, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation.

GOETHALS, J.

WE CONCUR:

O’LEARY, P. J.

ZELON, J.*

*Retired Justice of the Court of Appeal, Second Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

[1] All further undesignated statutory references are to this code.

[2] According to K.V., who was somewhere between 40 and 70 feet from Alvarado and M.T., the knife was actually 12‑to‑15-inches in length with an orange handle and a five- or six-inch chrome serrated blade. During cross-examination, the defense elicited this was roughly the same size and color as the rum bottle Alvarado was holding. However, K.V. insisted he did not confuse the bottle with a knife.

[3] Alvarado was also initially charged with two counts of assault with a deadly weapon (§ 245, subd. (a)(1)), but the prosecution dismissed those counts before trial.

[4] CALCRIM No. 3500 states: “The defendant is charged with <insert description of alleged offense> [in Count __] [sometime during the period of ____ to _____]. [¶] The People have presented evidence of more than one act to prove that the defendant committed this offense. You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act (he/she) committed.”

[5] Because of that acquittal, the allegation on count 2 that Alvarado personally used a deadly weapon (the bottle) in committing the robbery was dismissed by operation of law.