P. v. Gonzalez

Filed 9/7/06 P. v. Gonzalez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

THE COURT^*

APPEAL from a judgment of the Superior Court of Fresno County. Lawrence Jones, Judge.

Robert Derham, 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, and Stan Cross, Deputy Attorney General, for Plaintiff and Respondent.

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INTRODUCTION

Appellant Raul Gonzalez was found guilty after a jury trial of attempted forcible kidnapping (Pen. Code, §§ 664 & 207, subd. (a), count one), attempted carjacking (Pen. Code, §§ 664 & 215, subd. (a), count two), robbery (Pen. Code, § 211, count three), and failing to notify authorities of his status as a registered sex offender (Pen. Code, § 290, subd. (f)(1), count four).^[1] The jury found true allegations that appellant suffered a prior serious felony conviction within the meaning of the three strikes law (§§ 667, subds. (b) – (i) & 1170.12, subds. (a) – (d)) and that appellant had a prior serious felony conviction (§ 667, subd. (a)(1)).

The trial court sentenced appellant to prison for the midterm of three years on count three which it doubled to six years pursuant to the three strikes law. The court imposed consecutive terms of one year eight months on count one and one year four months on count four.^[2] The court added an additional five-year term for appellant's prior serious felony conviction.^[3] Appellant's total prison term is 14 years. The court awarded applicable custody credits and imposed a restitution fine.

Appellant contends the trial court failed to instruct the jury on theft, the lesser included offense to robbery. Appellant also contends the attempted kidnapping and robbery counts were part of an indivisible course of conduct and the court violated section 654 in sentencing him on both counts.

DISCUSSION

On June 14, 2005, at 12:30 p.m., Reyna Cardenas had just finished an adult school class and was walking to her car. Cardenas saw appellant walking around the campus without a shirt and acting weirdly. As Cardenas walked past appellant, she overheard security guards asking him to leave.

Appellant followed Cardenas, who was carrying her cell phone and car keys. Cardenas unlocked her car with a remote control as she approached it. When Cardenas opened the driver's door, appellant rushed her and pushed her into the car. Cardenas landed with her head just past the center console. Cardenas's feet were still hanging outside the car. She ended up with appellant on top of her, face-to-face with her. Appellant ordered Cardenas to move over to the passenger side and to give him her car keys.

Cardenas screamed for someone to help her. Appellant punched Cardenas in the face with his fist about seven times and told her to stop screaming and to be quiet. She dropped her car keys during the struggle. Appellant put his hand over Cardenas's mouth and choked her. When Cardenas tried to dial 911 on her cell phone, appellant took the phone out of her hand. Cardenas was not able to complete the call. The two continued to struggle.^[4]

David Valenzuela came to Cardenas's assistance, pulling appellant off of her. Appellant ran toward a McDonald's. Another man tried to stop him. Cardenas saw appellant drop her cell phone. As a result of appellant's attack, Cardenas suffered bruises on her cheek, and marks on her neck and shoulder from being choked. A security guard found Cardenas's cell phone in pieces and returned it to her.

David Valenzuela was with his wife when they heard the high-pitched screams of a young woman. Valenzuela saw a man and a young woman struggling in the front seat of a car parked in front of the adult school. As Valenzuela approached the car, he saw a man halfway on top of the woman. The man was in the driver's seat, leaning into the car with his legs sticking out. The woman was on her back across the center console of the car. The man had his hands on the woman's shoulder and her neck.

Valenzuela reached into the car and tried to grab appellant, who let loose of Cardenas. Valenzuela grabbed appellant's left hand and jerked him out of the car. Valenzuela clearly saw appellant. Appellant hit Valenzuela on the side of his body and neck. Valenzuela fell against the car and appellant ran across the street. Valenzuela asked a young man nearby to chase and retain appellant. Valenzuela saw appellant trip, or fall, in a struggle with the young man. The police arrived and struggled with appellant before handcuffing him.

Ramon Sandoval was pumping gas into his car when he heard a young woman screaming. He got into his car and drove to the adult school where he saw people struggling inside a parked car. A girl was on her side inside the car, appellant, who was not wearing a shirt, was trying to get inside the car. Half of appellant's body was inside the car. Another man ran over with his wife to pull appellant out of the car. The two men began to struggle. The other man's wife asked Sandoval to help her husband. Sandoval pulled up to Cardenas's car, parked, and exited his car. Appellant starting running away. Sandoval tried to grab appellant, who slipped and fell, got up, and swung at Sandoval. Appellant ran again toward McDonald's restaurant. Ramon followed. Appellant fell again near the drive-through lane. The police arrived and arrested appellant.

Arresting officers found a man pursuing appellant. The two began fighting. The officers ordered them to stop. The pursuing man let go of appellant, who tried to run away. The officers were able to subdue appellant, who dropped an object later determined to be a Nokia cell phone.

Appellant testified that he had been partying for two days, drinking and taking illegal drugs. He was with two females. They were traveling by taxi to a party near the adult school. One of the women identified Cardenas as someone who had recently beat her up near the adult school. Being intoxicated, appellant jumped out of the taxi and chased after Cardenas to grab her so they could fight.

Appellant denied pushing Cardenas into her car, punching her, or choking her. Appellant heard his companions yelling to him that Cardenas was not the right person. Appellant explained he was guilty only of trying to pull Cardenas out of her car so his friends could fight her. Appellant denied trying to kidnap Cardenas or to take her car. Appellant said he was sure he did not take Cardenas's phone because he has one of his own.

LESSER INCLUDED INSTRUCTION

The prosecutor argued that the robbery occurred when appellant used force to take Cardenas's cell phone from her. Appellant contends there was evidence from which a reasonable jury could infer he formulated his intent to steal Cardenas's cell phone only after he used force on her. Appellant believes he was entitled to an instruction, therefore, on the lesser included offense of theft. Respondent argues there is no factual support for appellant's theory and an instruction on theft was not necessary. We concur with respondent.

If appellant applied force and later formulated the intent to take Cardenas's cell phone, he was guilty only of theft and was entitled to a lesser included offense instruction on theft. (People v. Turner (1990) 50 Cal.3d 668, 688.) The trial court did not instruct the jury on the lesser included offense of theft. When there is substantial evidence that the robbery element of force or fear is missing, the court must instruct on the lesser included offense of theft even absent a request to do so. (People v. Webster (1991) 54 Cal.3d 411, 443.)

In the instant action, however, there was no evidence that appellant applied force and later decided to take Cardenas's cell phone. Cardenas testified that appellant threw her into her car and ended up on top of her. Appellant began hitting and strangling Cardenas. Cardenas testified that when she tried to call 911, appellant grabbed her cell phone from her and the two continued to struggle. Valenzuela testified that appellant was struggling with Cardenas when Valenzuela pulled appellant out of Cardenas's car.

Appellant provided no evidence that he struggled with Cardenas and then later decided to take her cell phone. Appellant denied even taking the cell phone and further denied hitting or strangling Cardenas. There was no evidence from the prosecution or the defense from which the jury could reasonably have inferred that appellant applied force or fear and later decided, after ceasing to apply force or fear, to take the victim's cell phone.

In his reply brief, appellant posits the theory that during the course of the carjacking, he merely took the victim's cell phone to prevent her from making an emergency call for help and formulated the intent to take the cell phone after running away from the victim's car. With this theory as well, appellant can provide no factual support. Had appellant merely sought to prevent the victim from contacting the police, he did not have to keep the cell phone. He could have thrown it out of the victim's reach, or out of her car. Appellant denied taking the phone at all.

Although he does not expressly say so in his briefs, appellant's argument is based on the legal point that the trial court has a sua sponte duty to instruct on lesser included offenses if there is any substantial evidence to support such an instruction. The trial court, however, has no sua sponte duty to give instructions on a legal theory for which there is no substantial evidence but only speculation concerning the defendant's intent. (People v. Waidla (2000) 22 Cal.4th 690, 733-735.)

Appellant represented himself at trial. In closing argument to the jury, appellant denied taking the victim's cell phone. He argued that the police report noted the only item found was a cell phone cover, not a cell phone.^[5] There is no evidence in the record, and appellant did not argue in his closing statements to the jury, that he formulated the intent to take the cell phone at a time after leaving the victim's car.

From the record it is unclear what appellant did with the victim's cell phone after taking it from her. He managed to engage in a brief fight with Valenzuela before running away and falling down at least twice before the police arrested him. Only after his flight did witnesses see appellant drop the cell phone. Had appellant only intended to keep the phone away from the victim, he could have accomplished that goal by throwing the phone away from the victim or her car.

The only reasonable inference for the jury to draw from the evidence adduced at trial is that the appellant intended to take and keep the cell phone as he struggled with the victim. The jury clearly rejected appellant's testimony that he never took the cell phone. The trial court did not have an obligation to instruct the jury sua sponte that appellant only formulated the intent to take the victim's cell phone after fleeing from her car because appellant's theory is mere speculation, unsupported by any evidence.

When a trial court erroneously fails to give a lesser included instruction, the error is measured pursuant to the standard of review set forth in People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Breverman (1998) 19 Cal.4th 142, 178.) The prosecution's case was very strong. The defense case was weak. Even if we were to conclude that it was error for the trial court to fail to give the lesser included instruction here, it is not reasonably probable on this record that the jury would have reached a different verdict had the trial court instructed it with the lesser included theft instruction.

SECTION 654

Appellant also contends the trial court erred in sentencing on both attempted kidnapping (count one) and robbery (count three) because these offenses constituted a continuous course of conduct. Respondent argues appellant harbored multiple criminal objectives and that section 654 does not apply. We agree with respondent.

Section 654 bars multiple punishments for a single act or an indivisible course of conduct. (People v. Harrison (1989) 48 Cal.3d 321, 335.) It is the defendant's intent and objective that determine whether a course of conduct is divisible. (People v. Britt (2004) 32 Cal.4th 944, 951-952.) If the defendant harbored multiple criminal objectives, he may be punished for each statutory violation committed, even though the violations shared common acts or were part of an indivisible course of conduct. The question of whether a defendant harbored multiple criminal objectives or a single criminal intent is a factual one. (People v. Harrison, supra, 48 Cal.3d 321, 335.) A trial court is vested with broad latitude in making a determination whether section 654 applies and its findings will not be disturbed on appeal if there is any substantial evidence to support them. (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)

Although appellant's crimes occurred during a single course of conduct, it appears that his robbery of the victim's phone was a completely separate objective from his attempted kidnapping and carjacking. Appellant argues in his reply brief that the robbery of the cell phone was part of a single criminal objective. We disagree. The robbery of the cell phone was not necessary to accomplish appellant's other criminal purposes. As noted above, appellant could have taken the phone away from the victim without applying force and without stealing it if his goal was only to stop her from calling for help.

There was substantial evidence before the trial court that during the course of appellant's offenses, he formulated a new and separate intent to rob the victim of her cell phone. Having acted with multiple criminal objectives, section 654 does not preclude imposition of punishment for the criminal offenses committed in pursuit of each objective, even though the violations may have been part of an indivisible course of conduct. (People v. Alvarado (2001) 87 Cal.App.4th 178, 196.)

DISPOSITION

The case is remanded to the trial court to amend clerical errors in the clerk's minutes and abstract of judgment and to forward them to the appropriate authorities. The amended documents shall reflect appellant's sentence on count three was doubled pursuant to the three strikes law and that he received a five-year enhancement pursuant to section 667, subdivision (a). The judgment is affirmed.

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^* Before Harris, Acting P.J., Cornell, J., and Kane, J.

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

^[2] The court stayed appellant's sentence on count two pursuant to section 654.

^[3] Respondent points out that the total amount of appellant's prison term appears in the abstract of judgment. Although the jury found the section 667, subdivision (a)(1) enhancement true and the trial court pronounced sentence on the enhancement, neither the clerk's minutes nor the abstract of judgment expressly indicate that appellant was sentenced on this enhancement. The abstract of judgment sets forth appellant's correct sentence on count three, but also fails to indicate that his sentence was doubled pursuant to the three strikes law. We will remand with instructions to the trial court to prepare and to forward to the appropriate authorities amended clerk's minutes and an abstract of judgment including the missing information.

^[4] Cardenas did not give appellant permission to take her phone.

^[5] The police report was not admitted into evidence. This portion of appellant's argument to the jury was based on facts not in evidence.