P. v. Robles

Filed 5/16/06 P. v. Robles CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION SIX

Juan Romero Robles appeals from the judgment entered after a jury convicted him of grand theft person, a lesser included offense to second degree robbery, (count 1; Pen. Code, § 487, subd. (c))^[1] and dissuading a witness (count 2; § 136.1, subd. (b).(1)). In a bifurcated trial, the trial found that appellant had suffered three prior strike convictions within the meaning of the Three Strikes law (§§ 667, subds. (b) –(i); 1170.12, subds. (a) –(d)), that the prior convictions were serious felony convictions within the meaning of section 667, subdivision (a)(1)), and that appellant had suffered a prior prison term (§ 667.5, subd. (b)). Appellant was sentenced to 40 years to life.^[2] We affirm.

Facts and Procedural History

On December 10, 2004, appellant approached Guadalupe Jaquez at a bus stop in West Valinda. Appellant was in a wheelchair and asked for a cigarette. Jaquez did not have one and told appellant that smoking was bad for him. Appellant became upset and asked Jaquez where she worked and how much money she earned. She told him that she was a nurse and made $11 an hour.

Appellant drew a replica handgun from his pants and held it to Jaquez's temple. He ordered her to give him her California Identification Card and to write down her name and address. Jaquez was scared and did not want appellant to know her real name. She wrote " Mary" and her work address on a piece of paper. Appellant kept the identification card and piece of paper. He said that if she called the police, he would go to her workplace and kill her no matter who got in the way.

Jaquez ran home, told her sister-in-law what had happened, and that the police were notified. Before the police arrived, appellant attempted to rob 17 year old Juan Zoquiapa. Appellant showed him the replica handgun and told him to hand over his shoes and watch. Zoquiapa said " No" and got on the bus.

Appellant tried to board the bus. Los Angeles County Deputy Sheriff Jose Duran drew his firearm and ordered appellant to show his hands. Appellant threw gang signs at the officer, reached inside his waistband, and said " Mexican Mafia, 18th Street, Mother Fucker." Appellant pulled out the replica handgun, tossed it, pointed his finger at the deputy, and said " 187." Deputy Duran thought it was a real handgun.

Jaquez returned to the bus stop, saw appellant, and said: " That's him. That's him. He just robbed me." The identification card and piece of paper with her work address were in appellant's pocket. After appellant was handcuffed, he rocked his wheelchair back and forth, and said, " I know where you live, bitch. Mara Salva Trucha. We're going to kill you." " Mara Salva Trucha" referred to a Salvadorian gang.

The jury deliberated several days, deadlocked on count 3 (Zoquiapa, attempted robbery), and returned a guilty verdict on count 2 (Jaquez; dissuading a witness). On count 1 (Jaquez, second degree robbery), it found appellant guilty of the lesser related offense of grand theft person.

Alleged Coerced Verdict

Appellant argues the verdict on count 1 was coerced because the trial court directed the jury to resume deliberations after it returned defective verdicts on counts 1 and 3. It is settled that a trial court may ask a jury to continue deliberating where, in the exercise of its discretion, it finds a reasonable probability of agreement. (People v. Pride (1992) 3 Cal.4th 195, 265,) " Any claim that the jury was pressured into reaching a verdict depends on the particular circumstances of the case. [Citations.]" (Ibid.)

On counts 1 and 3, the jury was instructed on the greater and lesser included offenses. The trial court gave CALJIC 17.10 which stated in pertinent part: " If you are not satisfied beyond a reasonable doubt that the defendant is guilty of the crime charged, you may nevertheless convict him of any lesser crime, if you are convinced beyond a reasonable doubt that the defendant is guilty of the lesser crime. [¶] . . . [¶] . . . . . [¶] Thus, you are to determine whether [he] defendant [is] guilty or not guilty of the crime[s] charged in [Counts 1 or 3] or of any lesser crimes[.] In doing so, you have discretion to choose the order in which you evaluate each crime . . . . You may find it productive to consider and reach a tentative conclusion on all charges and lesser crimes before reaching any final verdict[s]. However, the court cannot accept a guilty verdict on a lesser crime unless you have unanimously found the defendant not guilty of the [charged] [greater] crime."

After several readbacks, the jury foreperson advised the trial court that " it appears that one juror is not able to link the facts presented in the trial, and presents (or appears to present) a bias or previous experience . . . ."

The trial court determined there was no problem with the juror. Defense counsel believed the jury might be deadlocked and asked the trial court to inquire.

The trial court denied the request remarking that " [t]hey never said they were

deadlocked . . . . I am not going to do that, I think it would be premature." The trial court reread CALJIC 17.40 (individual opinion required-duty to deliberate) and CALJIC 17.41 (how jurors should approach their task).

The jury resumed deliberations, requested a read back of Zoquiapa's testimony, and indicated that it had a verdict.

The trial court reviewed the verdict forms and determined there was a problem. The guilty verdict on count 2 (Jaquez, dissuading a witness) was proper but the jury had not reached a verdict on count 3 (Zoquiapa, attempted robbery). On count 1 (Jaquez; second degree robbery), the jury had returned a verdict on the lesser included offense of grand theft person without reaching a unanimous verdict on the greater offense.

As to count 1, the trial court said that it would advise the jury that it could not accept a verdict on the lesser offense unless there was a unanimous verdict on the greater offense as charged. The court advised counsel: " I am going to seal the verdict on count 2 because there is a verdict, so I'll seal those forms. I am going to seal the lesser on count 1 first received so it's clear. I am going to send back blank forms for count 1, the lesser on count 1, and I am just going to send back the forms on count 3."

Appellant objected on the theory that the jury was " about a week into deliberations, [and] has made it fairly clear on count 3 they are deadlocked and they made it clear that they are deadlocked on count 1. I think that an instruction -- the type of instruction that the court is intending to engage in is going to basically tell them to get to the lesser on count 1, they need a unanimous not guilty on the greater on count 1. By virtue of that instruction they may just . . . do it just to get to the lesser, not because that is where they are, because they are apparently deadlocked on the greater on count 1 . . . ."

Appellant wanted to ask the jury if it was deadlocked. The trial court denied the request because the jury " did not indicate they were deadlocked on count 1. They said they were – the note says they couldn't reach a verdict on count 3."

The trial court called the jury back and stated: " I received another note saying that the verdict forms be returned to the jury. Based upon the conversation earlier and that note, I just want to advise you that the court cannot accept a verdict on the lesser charge unless there is a unanimous decision on count 1, and if you cannot reach -- if you cannot reach a unanimous verdict on count 1, do not fill out the verdict on the lessers. [¶] I am sending back blank forms to you now both on the greater and lesser, also as to count 3, because we got a form back that said " void" on it[.] [S]o I am just sending all those blank forms back to you [on] counts 1 and 3 greater and lesser." ^[3]

The jury deliberated about an hour and returned the following verdicts: On count 1 (Jaquez), it found appellant not guilty of second degree robbery and guilty of the lesser offense of grand theft person. On count 3 (Zoquiapa), it found appellant not guilty of attempted robbery and deadlocked on the lesser offense of attempted grand theft.

Appellant contends that the trial court erred in not asking the jury if it was deadlocked on count 1, as requested by defense counsel. The argument is without merit. The jury notes and first set of verdict forms indicate that the jury was deadlocked on count 3 but not count 1. The trial court did not coerce the jury in advising it to reach a unanimous verdict on the greater offense before returning a verdict on the lesser offense. This was a correct statement of the law and consistent with the CALJIC 17.10 instruction already given. (People v. Kurtzman (1988) 46 Cal.3d 322, 324-325.) To avoid confusion, the trial court provided blank verdict forms on counts 1 and 3 and directed the jury to resume deliberations.

" Section 1161 provides in pertinent part: 'When there is a verdict of conviction, in which it appears to the court that the jury have mistaken the law, the court may explain the reason for that opinion and direct the jury to reconsider their verdict, and if after the reconsideration, they return the same verdict, it must be entered. . . .' If, contrary to Kurtzman, the jury renders only a verdict of conviction on the lesser included offense, without a corresponding verdict of acquittal on the greater offense, its verdict of conviction is incomplete 'under the law and the instructions.' [Citations.] Under these circumstances, the trial court is permitted, pursuant to section 1161, to direct the jury to reconsider its verdict of conviction in light of the acquittal-first rule." (People v. Fields (1996) 13 Cal.4th 289, 310.)

Appellant makes no showing that the trial court, by its actions or comments, " displace[d] the independent judgment of the jury in favor of considerations of compromise and expediency" or exerted undue influence on the jury to reach a verdict. (People v. Gainer (1977) 19 Cal.3d 835, 850; People v. Sheldon (1989) 48 Cal.3d 935, 959-960.) We accordingly reject the argument that the verdict was coerced or that appellant was denied the constitutional right to a unanimous verdict.

Motion to Reduce Felony Convictions to Misdemeanors

Appellant argues that the trial court abused its discretion in not reducing the felony convictions to misdemeanors pursuant to section 17, subdivision (b). Grand theft person (§ 489, subd. (a) [county jail or state prison]) and dissuading a witness (§ 136.1, subd. (a) [county jail or state prison]) are wobbler offenses, which in the trial court's discretion, may be punished as felonies or misdemeanors. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 974.) In order to reduce a wobbler to a misdemeanor, the trial court must consider " all relevant factors, including the defendant's criminal past and public safety. . . ." (Id., at pp. 981-982.) The trial court also considers " 'the nature and circumstances of the offense, the defendant's appreciation of and attitude toward the offense, or his traits of character as evidenced by his behavior and demeanor at the trial.' [Citations.]" (Id., at p. 978.)

Appellant claims that the felony convictions should be reduced to misdemeanors because he was acquitted of second degree robbery and the theft did not involve money. Appellant argues that there was no threat to the victim because he was in a wheelchair and the handgun was a toy replica.

The trial court rejected the argument and so do we. Appellant scared Jaquez by holding the look-alike handgun to her temple and threatening to kill her. Appellant said: " I know where you work now. I will go over there, and I will go kill you no matter who gets in my way." After he was arrested, he threatened to have a gang kill her. Appellant said, " I know where you live, bitch. Mara Salva Trucha. We're going to kill you." Appellant made a similar threat to the arresting officer.

The trial court considered the nature and circumstances of the offense and appellant's extensive criminal history which included prior convictions for robbery, attempted robbery, burglary, assault with intent to commit rape, two grand thefts, exhibiting a deadly weapon, driving under the influence, and possession of a controlled substance. Appellant had been sentenced to state prison three times and was on parole when he committed the current offenses. The trial court considered appellant's propensity for violence, the threat to public safety, and whether reducing the offenses to misdemeanors would deter appellant and encourage him to lead a law abiding life. (Cal. Rules of Ct., rule 4.410; People v. Superior Court (Alvarez), supra, 14 Cal.4th at p. 978.)

Appellant has not demonstrated that the trial court abused its discretion in denying the motion to reduce the felony convictions to misdemeanors. On review, we may not substitute its judgment for that of the trial court. (Id., at pp. 977-978.)

Motion to Strike Prior Strikes

Appellant argues that the trial court erred in not striking the prior strike convictions in the interests of justice. (§ 1385, subd. (a); People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 531.) The trial court considered the nature and " circumstances of the present case, the Defendant's criminal record which dates from January 1986, defendant's background, . . . his medical condition, . . . [and] the fact that he was on parole when the current offenses were committed. . . ."

The trial court reasonably concluded that appellant's age (45) and medical problems did not place appellant outside the spirit of the Three Strikes sentencing scheme, either in whole or in part. (People v. Williams (1998) 17 Cal.4th 148, 161.) Appellant argues that the offenses are nonviolent, but it is uncontroverted that he threatened to kill the victim and arresting officer. Appellant claimed that he no longer associated with gangs, yet threw gang signs at the officer and said " Mexican Mafia, 18th Street." He told the victim that a Salvadorian gang would kill her. The replica handgun, the death threats, and the confrontation at the bus stop posed an eminent risk of harm to the arresting officers, the bus passengers, and the public.

The Three Strikes law presumes that a repeat offender with serious or violent prior offenses should be subject to greater punishment. (People v. Carmony (2004) 33 Cal.4th 367, 378,) Striking a prior serious felony conviction is an extraordinary exercise of discretion, reserved for extraordinary circumstances. (People v. Strong (2001) 87 Cal.App.4th 328, 332.) Given the circumstances of the offenses and appellant's background, character, and prospects, the trial court acted well within it's discretion in denying the motion to strike the prior felony convictions. (People v. Carmony, supra, 33 Cal.4th at pp. 378-379.)

Cruel And Unusual Sentence

Appellant finally contends that his sentence of 40 years to life is cruel and unusual punishment under the federal and California Constitutions. (U.S. Const., 8th Amend.; Cal. Const., art. 1, § 17.) We reject the argument because appellant is not merely being punished for the current offense, but also for his recidivism. (People v. Mantanez (2002) 98 Cal.App.4th 354, 366; People v. Romero (2002) 99 Cal.App.4th 1418, 1432.)

The Eighth Amendment to the United States Constitution " prohibits imposition of a sentence that is grossly disproportionate to the severity of the crime. [Citations.]" (Rummel v. Estelle (1980) 445 U.S. 263, 271 [63 L.Ed.2d 382, 389].) But the " gross disproportionality principle reserves a constitutional violation for only the extraordinary case." (Lockyear v. Andrade (2003) 538 U.S. 63, 77 [155 L.Ed.2d 144, 159] [two consecutive 25-year-to-life terms for two petty thefts not grossly disproportionate].) Under the California Constitution, punishment is disproportionate if it " shocks the conscience" considering the offender's history and the seriousness of his offenses. (In re Lynch (1972) 8 Cal.3d 410, 424.)

We cannot say that the sentence is constitutionally disproportionate given appellant's recidivism, his propensity for violence, his failed attempts at parole and probation, and the seriousness of the present offenses. Appellant has been sentenced to state prison three times, has served a prior prison term, and committed the current offenses while on parole. Increased penalties, advancing age, and debilitating medical problems have not deterred appellant from committing more crimes.

" When faced with recidivist defendants such as [appellant], California appellate courts have consistently found the Three Strikes law is not cruel and unusual punishment. [Citations.]" (People v. Mantanez (2002) 98 Cal.App.4th 354, 359; see also Ewing v. California (2003) 538 U.S. 11, 29-30 [155 L.Ed.2d 108, 122-123] [rejecting similar claims of cruel and unusual punishment; 25 years to life for theft of golf clubs].) Appellant's sentence conforms to sentences for repeat offenders under the Three Strikes Law and is proportionate to sentences for repeat offenders in other states. (See e.g., People v. Romero, supra, 99 Cal.App,4th at p. 1433 [25 years to life for theft of magazine].)

Even if we assumed that the Eight Amendment to the United States Constitution contains a proportionality guarantee outside the context of capital punishment, this is not one of those exceedingly rare cases in which the sentence is grossly disproportionate to the severity of the crime. (Ewing v. California, supra, 538 U.S. at p. 21 [155 L.Ed.2d at p. 117]; Harmelin v. Michigan (1991) 501 U.S. 957, 994-995 [115 L.Ed.2d 836, 864-865].) Nor is the punishment so severe that it shocks the conscience or offends fundamental notions of human dignity. (In re Lynch, supra, 8 Cal.3d at p. 424.)

The judgment is affirmed.

NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P.J.

COFFEE, J.

Monica Bachner, Judge

Superior Court County of Ventura

______________________________

Julie Schumer, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Robert F. Katz, Supervising Deputy Attorney General, Lauren E. Dana, Deputy Attorney General, for Plaintiff and Respondent.

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

^[2] Selecting count 2 as the principal term, the trial court sentenced appellant to 25 years to life and imposed three consecutive five-year enhancements pursuant to section 667, subdivision (a)(1)). On count 1, appellant was sentenced to 25 years to life, to run concurrent to the sentence on count 2.

^[3] During further deliberations, the jury sent the following note: " How do we let your Honor know that we are unable to come to a decision on count 3 of 'Attempted Grand Theft of Person'?"

The trial court answered: " You have already told us that you cannot reach a verdict on count 3 which charges attempted robbery. If you cannot reach a verdict on count 3 -- attempted robbery -- you should not fill out the forms on the lesser offense, namely attempted grand theft of person."