P. v. Gutierrez

Filed 3/22/07 P. v. Gutierrez CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Abraham Khan, Judge. Affirmed in part and reversed in part.

Linda Casey Mackey, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Robert F. Katz, Supervising Deputy Attorney General, and Peggie Bradford Tarwater, Deputy Attorney General, for Plaintiff and Respondent.

____________________________________

Luis Gutierrez appeals from the judgment entered following a jury trial in which he was convicted of robbery with a further finding that he personally and intentionally discharged a firearm (Pen. Code,  211, 12022.53, subd. (c), count 2) and shooting at an occupied motor vehicle (id.,  246, count 3). (Further section references are to the Pen. Code.) The jury acquitted defendant on a charge of attempted murder ( 664/187, count 1). Defendant was sentenced to the middle term of three years on count 2, with an enhancement of 20 years for firearm use. Sentence on count 3 was stayed under section 654.

Defendant contends that (1) the evidence was insufficient to support the robbery conviction and that the trial court prejudicially erred in (2) instructing on count 2, (3) failing to instruct on a lesser included offense of count 3, and (4) responding to a jury question on count 3. We find merit in defendants third contention and reverse count 3 on that basis, rendering it unnecessary to address defendants fourth contention. In all other respects, we affirm.

BACKGROUND

Around 2:30 a.m. on June 1, 2005, Linda Craven stopped at the post office in Diamond Bar to pick up her mail on the way home from work. She parked near the front entrance and got out of her car, leaving her purse inside. As she did so, Craven saw a blue van enter the post office parking lot. While inside the post office squatting down at her mailbox, Craven heard sounds of the van approaching, the door of the van sliding open, shouting, and screeching tires. Craven looked up and from a distance of about 18 feet saw defendant getting out of her car. Craven ran out of the post office, yelling at defendant. Defendant fled, carrying Cravens purse. When defendant got to the corner, he stopped and was swinging [the] purse, taunting Craven. Craven lost sight of defendant as he went around the corner, but she heard a van door slide open, then close, and saw the van drive away.

Craven next got back into her car and pursued the van. While doing so, Craven called 911 on her cell phone, described what had happened, and reported the vans license number. She also observed that, in addition to defendant, there was a driver and another person in the van. At one point, the van pulled into the driveway of an apartment complex. As Craven approached, she saw defendant standing outside the van, again holding her purse and taunting her. Defendant then got back into the van, which drove away, with Craven still in pursuit.

The van next turned onto a residential street and stopped. Craven, who thought defendant and his companions were high school students going to one of their houses, planned to stop, knock on the door, and explain that her purse had been stolen.^[1] But before Craven could stop her car, she saw defendant standing on the street with his feet spread apart and his hands pointed in her direction as if holding a gun. She next saw flashes of light and heard three banging sounds. In response, Craven drove away to a place of safety.

The police soon arrived and found an expended bullet casing by the curb where the shooting had occurred. A hole consistent with a bullet strike was found on the fascia board over the garage door of a residence in a direct line with where Cravens car had been. (A decision was made not to probe the hole for the suspected bullet because doing so would have required cutting into the header above the garage door, possibly compromising the integrity of the entire structure.) Later that day, Craven noticed that one of her tires was flat. Investigation led officers to defendants residence, where a loaded handgun, as well as Cravens wallet, were found.

Testifying in his own defense, defendant admitted taking the purse from Cravens car and fleeing in the van. He asserted that during the pursuit he remembered that there was a gun in the van and just thought maybe if I would get out of the van and shoot in the air one time maybe this woman would stop following us. So thats what I did. I jumped out of the van and I pointed the gun in the air and I discharged the firearm one time. My intentions were never to aim at [Craven] or to hurt her in any way. I just shot [the gun] in the air.

DISCUSSION

1. Sufficiency of the Evidence of Robbery

Defendant contends that the evidence was insufficient to support his conviction of robbery because the stolen property was not taken nor was the victim prevented from regaining the property by force or fear from her immediate presence. We disagree.

At the outset, we note that in People v. Gomez (2005) 134 Cal.App.4th 1241, review granted March 22, 2006, S140612, and People v. Johnson (2006) 141 Cal.App.4th 1161, review granted November 15, 2006, S146207, the Supreme Court has stated that it will address the following issue: Can a defendant be convicted of robbery for using force or fear in the victims immediate presence while carrying away stolen property, or does such a conviction require that the defendant use force or fear in the victims immediate presence while taking the property or preventing the victim from regaining it? (Judicial Council of California, News Release (Mar. 24, 2006) No. S.C. 12/06; id. (Nov. 17, 2006) No. S.C. 46/06.) Nevertheless, the current state of California law permits a finding of robbery under the circumstances of this case.

In People v. Cooper (1991) 53 Cal.3d 1158, 1165, the Supreme Court instructed that [t]he taking element of robbery itself has two necessary elements, gaining possession of the victims property and asporting or carrying away the loot. [Citation.] The Supreme Court continued: Although, for purposes of establishing guilt, the asportation requirement is initially satisfied by evidence of slight movement [citation], asportation is not confined to a fixed point in time. (Ibid.) This reasoning is consistent with a long line of Court of Appeal cases, left undisturbed by this court, holding that mere theft becomes robbery if the perpetrator, having gained possession of the property without use of force or fear, resorts to force or fear while carrying away the loot. (See, e.g., People v. Estes (1983) 147 Cal.App.3d 23, 2728 []; [citations].) In order to support a robbery conviction, the taking, either the gaining possession or the carrying away, must be accomplished by force or fear. [Citation.] Thus, these cases implicitly hold that the asportation component of the taking continues while the loot is carried away, and does not end on slight movement. (Id. at p. 1165, fn. 8.)

Here, Craven was prevented from regaining her property by defendant pointing a gun and shooting at her while the asportation component of the robbery was in progress. Under the reasoning of People v. Cooper, supra, 53 Cal.3d 1158, 1165, this conduct was sufficient to satisfy the force and immediate presence elements of robbery. (See also People v. Harris (1994) 9 Cal.4th 407, 424; People v. Webster (1991) 54 Cal.3d 411, 440; Miller v. Superior Court (2004) 115 Cal.App.4th 216, 224.) Accordingly, defendants sufficiency-of-the-evidence argument must be rejected.

2. Instructions on Robbery

Defendant contends that the trial court prejudicially erred by instructing on robbery with modified versions of CALJIC Nos. 9.40.1 (RobberyAiding and AbettingWhen Intent to Abet Must be Formed)^[2]and 9.40.3 (Store Employee as Victim of Robbery).^[3] Relying on the well established rule that [i]t is error to give an instruction which, while correctly stating a principle of law, has no application to the facts of the case (People v. Guiton (1993) 4 Cal.4th 1116, 1129), defendant argues that the modified instructions had no application in this case because there was no evidence to show that there was any question as to Cravens ownership of the stolen property, and [defendant] was the direct perpetrator not an aider and abettor of the robbery.

As the prosecutor noted to the trial court regarding his request for CALJIC No. 9.40.3, the suggested modifications were a reflection of People v. Estes, supra, 147 Cal.App.3d 23, and Miller v. Superior Court, supra, 115 Cal.App.4th 216. In addition, CALJIC Nos. 9.40 (Robbery (Pen. Code,  211)), 9.41 (RobberyFearDefined), and 9.43 (Second Degree Robbery as a Matter of Law) were also given.

Defendant did not object to either instruction about which he now complains and is therefore entitled to relief only if he can establish violation of a substantial right. ( 1259.) But given our conclusion, above, that the prosecution presented sufficient evidence to establish robbery, coupled with defendants testimonial admission of the conduct on which the prosecution relied to prove that crime, defendants substantial rights were not affected because he cannot demonstrate prejudice based on the modified instructions.

3. Instructions on Shooting at an Occupied Motor Vehicle

Defendant contends that the trial court prejudicially erred in refusing his request to instruct on grossly negligent discharge of a firearm ( 246.3) as a lesser included offense of shooting at an occupied motor vehicle ( 246). We agree.

Section 246 provides felony punishment for [a]ny person who shall maliciously and willfully discharge a firearm at an inhabited dwelling house, occupied building, [or] occupied motor vehicle . . . . Section 246.3, an alternative felony/misdemeanor, applies to any person who willfully discharges a firearm in a grossly negligent manner which could result in injury or death . . . . In People v. Overman (2005) 126 Cal.App.4th 1344, the court addressed as an issue of first impression whether section 246.3 is a lesser included offense of section 246. (Although defendant was tried several months after Overman was decided, the case was apparently not cited to the trial court.) The Overman court reasoned:

When a defendant shoots at an inhabited dwelling house, occupied building, or other target listed in section 246, the defendant discharges a firearm in a manner that has the potential for culminating in personal injury or death. Shooting at an inhabited dwelling house, for example, whether occupied or not, necessarily poses a significant likelihood or high probability that personal injury or death will result, because people are generally in or around the premises. [Citation.] The same significant risk of personal injury or death is present when a defendant shoots at any other target listed in section 246.

Unlike section 246, section 246.3 does not require that an inhabited dwelling, occupied building, or any other specific target be in the defendants firing range. But like section 246, section 246.3 involves discharge of a firearm under circumstances presenting a significant risk that personal injury or death will result. Section 246 proscribes discharging a firearm at specific targets, the act of which presumably presents a significant risk that personal injury or death will result. Section 246.3 proscribes discharging a firearmin any grossly negligent manner which presents a significant risk that personal injury or death will result.

The only difference between sections 246 and 246.3 is that section 246 requires that a specific target (e.g., an inhabited dwelling or an occupied building) be in the defendants firing range. Section 246[.3] does not include this requirement. Both crimes, however, involve the intentional discharge of a firearm in a grossly negligent manner which presents a significant risk that personal injury or death will result. (People v. Overman, supra, 126 Cal.App.4th at pp. 13611362.) Thus, section 246.3 is a lesser included offense of section 246. (Overman, at p. 1360.)

The Attorney General posits that Overman was incorrectly decided. But nothing in the Attorney Generals argument persuades us that Overman is wrong. We therefore elect to follow it.

The Attorney General next asserts that, because Craven testified she saw defendant standing with his hands outstretched and heard three shots, and a bullet hole was found in line with where her car had been, the error in failing to instruct under section 246.3 was harmless under Peoplev.Watson (1956) 46 Cal.2d 818, 836. (See People v. Breverman (1998) 19 Cal.4th 142, 178 [applying Watson to failure to instruct on lesser included offenses].) We do not agree.

In closing argument, defendant emphasized evidence that the hole in the fascia board had not been tested to establish if it was truly the result of a bullet and that, consistent with his admission to having fired one shot, only one bullet casing was found. During deliberations, the jury asked whether shooting in the direction of an occupied motor vehicle [is] considered to be shooting at the occupied motor vehicle. (The court responded that this issue is a question of fact for the jury to resolve.) The jury further requested a readback of Cravens testimony regarding how the firearm was aimed and the events surrounding the flashes and gunshots, as well as testimony of two police witnesses regarding the scene of the shooting. Later, the jury sent a note stating, We have been deliberating count 3 for the past 2 days. As of right now we cannot come to a unanimous decision. What is your recommendation and advice for us? Only after the court gave further instructions, over defense objection, was a verdict reached.

Given defendants understandable arguments that the physical evidence did not support the prosecutions theory of how the shooting occurred and the jurys difficulty in reaching a verdict, we conclude it is reasonable that a result more favorable to defendant would have been reached had the jury been instructed on the lesser included offense of grossly negligent discharge of a firearm under section 246.3. (Peoplev.Watson, supra, 46 Cal.2d at p. 836; People v. Overman, supra, 126 Cal.App.4th at p. 1363.)

DISPOSITION

The judgment is reversed with respect count 3. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED.

MALLANO, Acting P. J.

We concur:

ROTHSCHILD, J.

JACKSON, J.^*

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^[1]The probation officers report indicates that defendant was 23 years old at the time of the incident.

^[2]CALJIC No. 9.40.1 was modified with deletions, as follows: [For the purposes of determining whether a person is guilty as an aider and abettor to robbery, the] [The] commission of the crime of robbery is not confined to a fixed place or a limited period of time and continues so long as the stolen property is being carried away to a place of temporary safety.

^[3]CALJIC No. 9.40.3 was modified to delete references to store and substitute person in place of employee, as follows:

Robbery, among other things, requires that the victim be in possession of the property stolen. There are two kinds of possession: actual and constructive possession.

Actual possession requires that a person knowingly exercise direct physical control over a thing.

Constructive possession does not require actual possession, but does require that a person knowingly exercise control over or the right to control a thing, either directly or through another person or persons.

One person may have possession alone, or two or more persons together may share actual or constructive possession. [An [employee] [__________]A person exercises control or the right to control store property if the employeeperson under the circumstances has either express or implied authority over the store property.]

A [store employee] [__________]person may be the victim of a robbery even though he or she is not the owner and not at the moment in immediate control of the allegedly stolen property, so long as that employeeperson is in constructive possession of the property at the time of the taking. (Italics added.)

^*Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.