P. v. Garcia

Filed 9/27/07 P. v. Garcia CA2/4

On remand from U.S. Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Ronni B. MacLaren, Judge. Affirmed on remand.

Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Ana R. Duarte and Michael R. Johnsen, Deputy Attorneys General, for Plaintiff and Respondent.

Appellant Arturo Garcia appealed from his conviction and sentence for second degree robbery and assault with a deadly weapon or by means of force likely to produce great bodily injury, contending that the trial court erred in imposing the upper term for the robbery and that the conviction for assault should have been vacated. We issued an opinion dated April 24, 2006 affirming the judgment.

This case is now on remand from the United States Supreme Court for reconsideration in view of its decision in Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856], which held Californias determinate sentencing law (DSL) unconstitutional, disagreeing with the California Supreme Courts decision in People v. Black (2005) 35 Cal.4th 1238, judg. vacated and cause remanded sub nom. Black v. California (2007) __ U.S. __ [127 S.Ct. 1210] (Black I). We recalled the remittitur, vacated the opinion, and granted the parties leave to file supplemental briefs addressing the effect, if any, of Cunningham on the trial courts decision to impose the upper term sentence for the robbery. While the case was pending, counsel for appellant sought leave to file an additional supplemental brief to discuss People v. Nguyen (2007) 152 Cal.App.4th 1205. In addition, the California Supreme Court issued its post-Cunningham analysis of the DSL in People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825, and we afforded the parties additional time to address those opinions.

Another issue raised in the original appeal was whether the charge against appellant for assault with a deadly weapon was a lesser included offense or necessarily included offense of robbery, the other charge. In our original opinion, we concluded the answer was no based on clear Supreme Court precedent. Shortly after resubmission, the California Supreme Court issued its opinion in People v. Sloan (2007) 42 Cal.4th 110, reaffirming People v. Wolcott (1983) 34 Cal.3d 92, on which we had relied in our original opinion. After review of Cunningham, Nguyen, Black II, Sandoval, Sloan, and the parties supplemental briefs, we conclude that the trial courts sentencing choices were in accord with Supreme Court precedent, and that remand to the trial court for reconsideration of the sentence is not required.

FACTUAL AND PROCEDURAL BACKGROUND

Information

Appellant was charged, along with codefendant Jesus Soto, with second degree robbery in violation of Penal Code section 211,^[1]a serious felony within the meaning of section 1192.7, subdivision (c). In addition, appellant was charged with personal use of a bat in committing the offense, and Soto was charged with personal use of a knife in committing the offense. Count 2 of the information charged appellant and Soto with assault with a deadly weapon or by means of force likely to produce great bodily injury and referenced the knife as the weapon for purposes of that charge. This offense was also said to be a serious felony under section 1192.7, subdivision (c).

Evidence at Trial

1.Prosecution Case

Salvador Moreno Godoy testified that on July 6, 2003, at around 4:00 oclock in the morning, he was walking to work on San Pedro Street. He noticed a sporty red car, which he described as a Mustang or Camaro, pull into an alley ahead of him. He saw three people inside the car. He did not see anyone get out of the car. When he got to the corner of 43rd Street and San Pedro, one of the men--later identified as Soto--asked if he knew where a store was. Godoy turned to point toward a nearby liquor store. When Godoy turned back, Soto put a knife to Godoys neck and told Godoy to give him money. Another man--later identified as appellant--was standing in front of Godoy, a bit to the side. He was holding an aluminum or metal bat in a swinging position. A third person was standing farther away.^[2]

Godoy testified that, as far as he could remember, neither appellant nor Soto had facial hair.^[3] Appellant was wearing a brown jacket and cap. Soto had on a green or blue trench coat and cap. Godoy believed that Soto was taller than Godoy, and appellant was shorter.^[4]

Godoy told Soto he had no money. Soto said, you better. Soto searched Godoy and found his wallet. After taking the wallet, Soto and the others left in the red car.

Godoy went to a nearby payphone and called the police to report what had happened. Approximately two weeks later, on July 19, he was contacted by officers and taken to see a car. He identified it as the car used by his assailants, although he had initially told the officers that the car he saw was a two-door Mustang and the car he was shown was a four-door Honda. He also was shown a bat that was similar to the one appellant had been holding, except it had graffiti or paint marks on it. Sometime later, Godoy was shown three six-packs of photographs and identified appellant, Soto and another man as the men who robbed him. However, he misidentified which man had the bat and which man had the knife.

Mynerva Gramillo, a police officer for the Los Angeles Police Department (LAPD), testified that she was on patrol on July 6, 2003, at around 4:15 a.m. with her partner when she responded to Godoys call. Godoy told her that he would be able to identify the men if he saw them again. He described the car they were driving as a two-door, red vehicle. Godoy seemed very confused. He told her that the assailants were wearing black jackets and pants. He told her the man with a bat was taller than the man with a knife. Two weeks later, she took Godoy to identify a car and an aluminum bat.

Ronnie R. Fisher, an LAPD officer, was on patrol on July 19, 2003, at around 8:50 p.m. performing traffic enforcement duties. He stopped a red Honda for speeding. There were four people in the car. Soto, who was the registered owner of the vehicle, was in the passenger seat. Appellant was driving. There were two other passengers in the back seat along with an aluminum baseball bat. No knife was found. The four people were taken to the station.

2. Defense Case

The defense called Silvia Soto (Sotos sister), Prescilla Jimenez (Sotos girlfriend), Jose Garcia (Sotos neighbor), Erica Garcia (appellants sister), Denise Villareal (appellants fianc), and Christina Garcia (appellants sister). They all testified that they had attended a wedding reception in Alhambra on the evening of July 5, 2003, with appellant and Soto. They arrived sometime between 8:00 and 10:00 p.m. and left around midnight.

When leaving the reception, Jimenez rode with Soto in his car, accompanied by Jose Garcia. A group of other people, including Villareal, Erica Garcia, and Jimenezs sister, were following them in a different car, driven by appellant. The two groups stopped at a fast food restaurant at approximately 3:00 a.m., and Jimenez used Sotos cell phone to call her mother. Afterward, appellant drove back to his house and Soto drove Jimenez and her sister home, accompanied by Jose Garcia. The two men returned to appellants house, where they spent the night.

Christina Garcia, who had driven in her own car so that she could go to her night job directly from the reception, arrived home from work at approximately 3:30 a.m. She saw and heard both appellant and Soto arrive in the early hours of the morning. When she woke up at around 10:00 a.m., they were still there.

The defense introduced a group photograph which Jimenez identified as having been taken at Sotos house on July 5, 2003, prior to the reception. Soto was in the picture. The defense also introduced Sotos cell phone records.

Verdict and Sentencing

The jury found appellant guilty of robbery and of personal use of a bat. He was also found guilty of assault with a deadly weapon or by means of force likely to produce great bodily injury, with no reference to a weapon in the jurys finding.

The probation report indicated that appellant had suffered three prior juvenile convictions on August 14, 1999, May 20, 2002, and June 10, 2002, the first for burglary ( 459) and the latter two for taking a vehicle without the owners consent (Veh. Code, 10851, subd. (a)). The report listed two circumstances in aggravation: 1) appellants prior convictions were numerous or of increasing seriousness, and 2) the victim was particularly vulnerable. There were no circumstances in mitigation.

The trial court sentenced appellant to a total prison term of six years, calculated as follows: the upper term of five years for the robbery, plus one year consecutive for the deadly weapon finding, and one-third the midterm, viz., one year, for the assault, stayed pursuant to section 654. In imposing the upper term for the robbery, the courts orders stated that the following aggravating factors supported the ruling: 1. The crime involved a threat of great bodily harm; 2. Manner in which crime occurred indicates some advanced planning; 3. [Appellant] was 19 years old at time crime occurred; and 4. [Appellant] has prior sustained petitions as a juvenile. At the hearing, the court elaborated on these factors, stating, among other things that [t]he victim was approached on the street at 4:30 in the morning by the two defendants and an accomplice who demanded money and physically removed the victims wallet from his pocket . . . .  They were out in the street in the early morning hours looking for unwitting victims to rob, and they had a car nearby to allow them to flee quickly after the robbery . . . . In fact, theyve worked together before as partners in crime, having committed a burglary together in 1999.

DISCUSSION

I

In his original brief, appellant contended that the trial court committed sentencing error under Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), because it imposed the upper term after making factual findings concerning aggravating and mitigating factors at the sentencing hearing. The United States Supreme Court held in Blakely and Apprendi that facts, other than a prior conviction, that increase the maximum penalty for a crime must, if not admitted by the defendant, be charged in an indictment, submitted to a jury, and proved beyond a reasonable doubt. The question whether Californias determinate sentencing law (DSL) violated the Blakely/Apprendi rule was the issue in Black I, supra. There, our Supreme Court had concluded that the judicial factfinding that occurred when a judge exercised discretion to impose an upper term sentence or consecutive terms under Californias DSL did not implicate a defendants Sixth Amendment right to a jury trial or otherwise violate Blakely or Apprendi.

Based on appellate decisions from other states, appellant contended that Black I was wrongly decided and urged us to reverse the sentence imposed without regard to its holding. As we are bound by the decisions of our Supreme Court, we declined to do so.^[5]

In Cunningham v. California, supra, 549 U.S. __ [127 S.Ct. 856], the United States Supreme Court disagreed with Black I, holding that Californias DSL violated a defendants federal constitutional right to a jury trial by permitting the trial judge to make factual findings that subjected the defendant to an upper term sentence. (549 U.S. __ [127 S.Ct. at p. 871].) In Apprendi, the court had held: Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. (530 U.S. at p. 490, italics added.) In Blakely, the court explained that the statutory maximum for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. (542 U.S. at p. 303, italics omitted.) In Cunningham, the court found that the middle term prescribed in Californias DSL, not the upper term, was the relevant statutory maximum for purposes of determining the constitutionality of sentences imposed. (549 U.S. at p. __ [127 S.Ct. at p. 871].)

Following Cunningham, the California Supreme Court revisited its analysis of the DSL in Black II. The trial court there had sentenced the defendant to an upper term for the offense of continuous sexual abuse of a child based on the nature, seriousness and circumstances of the crime. The court found that the defendant had forced the victim to have intercourse with him on numerous occasions, that the victim was particularly vulnerable because she was the defendants stepdaughter, that the defendant had abused a position of trust, and that the defendant had inflicted emotional and physical injury on the victim. (Black II, supra, 41 Cal.4th at p. 807.) Finding the defendants use of force supported by the jurys verdict, the Supreme Court held: [A]s long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional factfinding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendants right to jury trial. (Black II, at p. 812.) Noting that [u]nder Californias determinate sentencing system, the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term, the court explained: [S]o long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury. (Black II, supra, at p. 813.) Accordingly, if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not legally entitled to the middle term sentence, . . . the upper term sentence is the statutory maximum, and judicial factfinding on . . . additional aggravating circumstances is not unconstitutional. (Id. at p. 815.)

Here, the trial court relied in part on appellants prior sustained juvenile petitions to support its sentencing choice. Although the court discussed other aggravating factors and made factual findings with respect to such factors, those findings cannot invalidate the sentence because, for the reasons discussed in Black II, the existence of the prior juvenile adjudications made appellants statutory maximum sentence the upper term and rendered judicial factfinding on the other factors permissible. Citing U.S. v. Tighe (9th Cir. 2001) 266 F.3d 1187 and People v. Nguyen, supra, 152 Cal.App.4th 1205, appellant contends a trial court could not consider previous juvenile adjudications as predicate offenses for purposes of increasing punishment beyond the statutory maximum because appellant, being a juvenile, had not had the benefit of a jury trial on the issue of his innocence or guilt of the statutory offense.

In U.S. v. Tighe, the Ninth Circuit held in a split opinion that the prior conviction exception to Apprendis general rule did not include juvenile adjudications. (Tighe, supra, 266 F.3d at p. 1194.) The holding in Tighe has been rejected by the majority of both federal and state appellate courts.^[6] In People v. Bowden (2002) 102 Cal.App.4th 387, this Court analyzed whether a prior juvenile adjudication could be used to increase a sentence under the Three Strikes law, and found the reasoning in Tighe erroneous[]. (102 Cal.App.4th at p. 393.) Noting that in California, juvenile offenders are afforded most of the constitutional protections afforded an adult offender -- notice of charges, right to counsel, a privilege against self-incrimination, right to confrontation and cross-examination, double jeopardy, proof beyond a reasonable doubt -- we concluded instead that prior convictions could properly be treated as sentencing factors whenever the defendant received all the process that was due when he was convicted of the predicate crime. (Ibid., quoting U.S. v. Tighe, supra, 266 F.3d at p. 1200 (dis. opn. of Brunetti, J.).) For adults, this would indeed include the right to a jury trial. For juveniles, it does not. (102 Cal.App.4th at pp. 393-394, quoting U.S. v. Tighe, supra, 266 F.3d at p. 1200 (dis. opn. of Brunetti, J.).) Accordingly, as a juvenile constitutionally -- and reliably [citation] -- can be adjudicated a delinquent without being afforded a jury trial, there is no constitutional impediment to using that juvenile adjudication to increase a defendants sentence following a later adult conviction. (102 Cal.App.4th at p. 392, quoting People v. Fowler (1999) 72 Cal.App.4th 581, 585-586.)

In People v. Nguyen, supra, the Sixth District disagreed with the majority of courts. It concluded that only jury factfinding by six or more persons deliberating together is reliable enough to afford due process in nonpetty criminal cases, where the outcome of the adjudicative process is imprisonment. (152 Cal.App.4th at p. 1232, italics omitted.) This led the court to hold that using a juvenile adjudication to enhance the sentence in a criminal case is a constitutionally impermissible use of a nonjury judgment to prove the fact of recidivism under Apprendi. (Id. at p. 1236.) To support its holding, the court relied on the United States Supreme Court decision in Ballew v. Georgia (1978) 435 U.S. 223, that an adult offender had the right to a jury of at least six people because a smaller group was less reliable. As respondent points out, however, Ballew does not stand for the proposition that juries are more reliable fact finders than judges or that judicial factfinding is unreliable; it merely holds that a jury of fewer than six may not function properly. Accordingly, the reasoning in Nguyen does not persuade us to alter our position on this issue. We continue to adhere to the views expressed in Bowden that the absence of a jury does not impinge on a juveniles constitutional rights or undermine the reliability of the adjudication, and that there is, therefore, no constitutional impediment in using such an adjudication to support increasing the criminal sentence of an adult.

II

In a supplement to the original appeal, appellant contended that the trial court erred in sentencing appellant for both the forcible robbery and the assault, even though the sentence for the assault was stayed under section 654. Appellant theorized that he was convicted of assault with a knife based on aiding and abetting Sotos personal use of a knife and that the jury could have also believed that Sotos assault with the knife satisfied the force element for the robbery. Accordingly, under appellants theory, count two was a necessarily included offense of count one, and the sentence and conviction violated the prohibition on convicting a defendant of two offenses arising from a single criminal act when one is a lesser offense necessarily included in the other. (People v. Montoya (2004) 33 Cal.4th 1031, 1033.)^[7]

As appellant acknowledged, our Supreme Court rejected a similar contention in People v. Wolcott, supra, 34 Cal.3d 92, where the court held that assault with a deadly weapon is not a lesser included offense or necessarily included offense of robbery, even when the robbery charge includes an enhancement for use of a deadly or dangerous weapon. (Id. at p. 98.) The court explained that [w]hen the accusatory pleading describes a crime in the statutory language, the test to be applied considers whether the charged offense cannot be committed without necessarily committing another offense. (Id. at p. 99, quoting People v. Greer (1947) 30 Cal.2d 589, 596.) If so, the latter is a necessarily included offense. (Ibid.)

Applying the test to the case before it, the court concluded that [n]either an attempt to inflict violent injury, nor the present ability to do so, is required for the crime of robbery. (People v. Wolcott, supra, 34 Cal.3d. at p. 99.) Noting that under the statute, the force or fear needed to accomplish a robbery could be provided by fear of an unlawful injury to the . . .  property of the person robbed, or of any relative of his or member of his family or fear of an immediate and unlawful injury to . . . anyone in the company of the person robbed, the court stated: Although a threat to injure the victim personally may involve an assault, a threat to injure his relatives, family members, or companions would not necessarily take that form. And it is clear that a threat to damage the victims property, or the property of a relative, family member, or companion, would not come within the statutory definition of assault. (People v. Wolcott, supra, 34 Cal.3d. at p. 100.)

The court then turned to whether the allegation that appellant personally used a firearm in the commission of the robbery should alter its conclusion: [E]ven if California could constitutionally consider enhancement allegations as part of the accusatory pleading for the purpose of defining lesser included offenses, we see no reason to adopt that course. Not only is the weight of authority against it, but the result would be to confuse the criminal trial. Present procedure contemplates that the trier of fact first determines whether the defendant is guilty of the charged offense or a lesser included offense, and only then decides the truth of any enhancements. [Citation.] The sentencing judge then decides whether to use the fact found as an enhancement to impose the upper term of the sentence, or to enhance the sentence. [Citation.] This orderly, step-by-step procedure would become muddled if evidence of the enhancement must be considered in determining guilt of a lesser offense. (People v. Wolcott, supra, 34 Cal.3d. at p. 101.)

The court also observed that there were various ways that a firearm could be used to facilitate a robbery without all the elements of an assault having occurred: The menacing display of a firearm to intimidate a victim is sufficient to prove use of the firearm . . . [citation], but insufficient to prove assault with a deadly weapon [citation]. The use of an unloaded or inoperable gun justifies an enhanced sentence [citations], but . . . does not support a conviction for assault. [Fn. omitted.] Finally, a gun may be used in a robbery . . . without it being used to threaten or injure the victim. If, for example, a defendant robbed one man, then drew a gun and shot a bystander who tried to obstruct his escape, the defendant would be guilty of both robbery (with use of a firearm) and assault with a deadly weapon, but neither crime would be included in the other. (People v. Wolcott, supra, 34 Cal.3d. at p. 102.)

At the time appellant filed his supplemental brief, the Third District had taken a somewhat divergent view, holding that where the defendant was convicted of three serious felonies based on a single incident in which he threw his wife to the ground, kicked her, and broke her leg -- (1) inflicting corporal injury on a spouse ( 273.5, subd. (a)), (2) assault with force likely to cause great bodily injury ( 245, subd. (a)(1)), both with enhancements for personally inflicting great bodily injury, and (3) battery with serious bodily injury ( 243, subd. (d)) -- the enhancements should be considered in determining whether a single or multiple offenses occurred. (See People v. Sloan, supra, 42 Cal.4th 110.) The Court of Appeal agreed with the defendant that his convictions for assault by means of force likely to produce great bodily injury and battery with serious bodily injury were necessarily included offenses of willful infliction of corporal injury on a spouse resulting in a traumatic condition when enhanced with a great bodily injury finding. (Id. at p. 115.) However, the Supreme Court has since reversed that decision. Citing People v. Wolcott, the court reaffirmed that enhancements are neither recognized nor considered in determining whether the defendant can be convicted of multiple charged crimes based on necessarily included offenses (Id. at p. 114.)

Alternatively, appellant contended that the principle of double jeopardy forbidding a second prosecution for the same offense after an earlier conviction was violated when he was convicted of the two closely related offenses, even though the convictions occurred at the same trial. With respect to this contention, in a companion case to People v. Sloan, People v. Izaguirre (2007) 42 Cal.4th 126, the Supreme Court specifically addressed the issue whether double jeopardy is implicated when punishment is imposed for two counts, but stayed as to one under section 654 because both offenses arise out of the same indivisible course of criminal conduct. The court held that double jeopardy has no application where a defendant is convicted in a single, unitary action of multiple overlapping crimes because, in that situation, the defendant is not threatened with a second prosecution for the same offense after acquittal or conviction. (People v. Izaguirre, supra, at p. 134.) Accordingly, there was no constitutional bar to the trial courts decision to sentence appellant on both counts.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MANELLA, J.

We concur:

WILLHITE, Acting P. J.

SUZUKAWA, J.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Property line attorney.

^[1] All statutory references herein are to the Penal Code.

^[2] The record reflects that a third man who was taken into custody at the same time as appellant and Soto accepted a plea bargain prior to trial.

^[3] Appellant had a mustache at the time of trial and apparently also when he was taken into custody.

^[4] Standing side by side in court, appellant and Soto were shown to be the same height.

^[5] In a slightly different vein, appellant contended in his original brief that the trial court improperly utilized the fact that he and Soto were armed to support both the upper term and a one-year enhancement under section 1170, subdivision (b). Appellants charge was not supported by the record. During the sentencing hearing, the court referred to the fact that [t]he evidence showed . . . that each defendant personally used a deadly weapon in the commission of a robbery to justify its ruling that appellant and Soto were presumptively ineligible for probation and further found nothing unusual about this case that would warrant a grant of probation for either defendant. The court then went on to discuss the aggravating and mitigating factors that had an impact on its selection of the upper term. As we have seen, these were that the crime involved a threat of great bodily harm, the evidence of advance planning, appellants age, and the fact that appellant had prior sustained petitions as a juvenile. Neither in its order nor in its discussion on the record did the court indicate that appellants personal use of a weapon was an aggravating factor that led to the upper term.

^[6] See, e.g., United States v. Burge (11th Cir. 2005) 407 F.3d 1183, 1190-1191; U.S. v. Jones (3d Cir. 2003) 332 F.3d 688, 696; U.S. v. Smalley (8th Cir. 2002) 294 F.3d 1030, 1033; People v. Superior Court (Andrades) (2003) 113 Cal.App.4th 817, 833-834; People v. Lee (2003) 111 Cal.App.4th 1310, 1316; People v. Smith (2003) 110 Cal.App.4th 1072, 1077-1079. Although the issue addressed in Andrades, Lee and Smith was whether a prior juvenile adjudication could be utilized to increase an adult criminal sentence under the Three Strikes law, resolution of that issue required essentially the same analysis as resolving whether the adjudication could be used to enhance a sentence. (See also People v. Palmer (2006) 142 Cal.App.4th 724, 733 [Nevada convictions for driving under the influence could be used to enhance a sentence, although there had been no right to jury trial in the Nevada proceedings.].)

^[7] Respondent disagrees with appellants theory, contending the two counts were entirely separate, because the verdict on the robbery count was based on appellants personal use of the bat and the verdict on the assault count was based on aiding and abetting Sotos use of the knife. We need not resolve this dispute. Even if appellant is correct in his analysis of the basis for the jurys verdict, it is clear that assault with a deadly weapon is not an included offense of robbery, even if only a single weapon is at issue.