Filed 8/24/18 P. v. Heinze CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

This criminal prosecution is the result of multiple charges brought against three codefendants, including Kenneth Ray Heinze (Heinze or appellant), in connection with an October 2012 home invasion robbery. On appeal, Heinze argues that his conviction for the attempted robbery of Donald M.—one of the victims present at the home during the incident—is not supported by the evidence. Heinze further claims that his sentence should be reviewed due to certain changes to the statutes on which his multiple firearm enhancements were based, a contention with which the Attorney General agrees. Finding ample evidence in the record to support it, we affirm the challenged conviction for attempted robbery. However, we agree with the parties that the trial court should reconsider Heinze’s sentence in light of recent amendments to Penal Code sections 12022.5 and 12022.53,[1] and therefore remand the matter for possible resentencing.

I. FACTUAL BACKGROUND

On the night of October 11, 2012, Amy E. had a number of friends over at her house, including Donald. After dinner, Dennis O. was in the living room watching television when he heard a knock at the door. When Dennis answered the door, three men with guns—including appellant—barged into the house. The intruders ordered Dennis to get down on the ground, which he did. Donald and Jay S. were on the back patio playing ping pong when an armed individual, identified as Heinze, told them to get into the house. They were then also instructed to lie on the floor. The remaining three victims—Amy, Stacy D. and Kelly G.—were in the computer room when they heard a bang and then a man yelling: “ ‘We’re robbing you mother fuckers. Lay on the ground. Everybody get on the ground.’ ” The women locked themselves in the computer room and called 911. The phone line remained open throughout the incident, and a tape recording of the 911 call was played for the jury.

The intruders demanded entry into the computer room, eventually breaking open the door. Amy, Stacy, and Kelly were ordered to lie down on the floor, and Jay, Donald, and Dennis were also brought into the computer room and told to lie down. The assailants demanded money and valuables, and took Amy, the homeowner, through the house searching for cash and jewelry. Ultimately, the police arrived, and they arrested Heinze and his two codefendants as they were attempting to leave the house.

As a result of this incident, an amended information was filed by the Solano County District Attorney on April 20, 2015, charging Heinze with four counts of attempted home invasion robbery (§§ 664, 211, 213, subd. (a)(1)(A)), two counts of home invasion robbery (§§ 211, 213, subd. (a)(1)(A)), first degree burglary with a nonaccomplice present (§§ 459, 462, subd. (a)), false imprisonment by violence (§ 236), and kidnapping (§ 207, subd (a)). The information further alleged that Heinze personally used a firearm during the commission of these crimes (§§ 12022.5, subd. (a)(1), 12022.53, subd. (b)), and that he had a prior strike conviction within the meaning of sections 667.5 and 1192.7.

On April 30, 2015, the jury found Heinze guilty on all counts of attempted home invasion robbery, home invasion robbery, and first degree burglary. The jury found Heinze not guilty of kidnapping, but convicted him on two counts of the lesser included offense of false imprisonment by violence. The jury further found that Heinze used a firearm during the commission of all of these offenses, except for one count of home invasion robbery, on which the jury deadlocked.[2] Thereafter, the trial court declared a mistrial on the single firearm enhancement with respect to which the jury could not reach a verdict and dismissed it. It also found Heinze’s prior strike to be true.

On July 23, 2015, the trial court struck the prior conviction allegation. It then sentenced Heinze to 16 years in state prison.[3] Heinze’s timely notice of appeal now brings the matter before this court.

II. DISCUSSION

A. Sufficient Evidence Supports the Challenged Attempted Robbery Conviction

As stated above, Heinze’s primary complaint on appeal is that he was improperly convicted of the attempted robbery of Donald. Specifically, he posits that, once Donald’s cell phone had been removed from Donald’s possession at gunpoint, it was a completed robbery that had occurred, not an attempted one. Heinze further stresses that, once a robbery has actually been carried out, a necessary element of an attempted crime—an ineffectual act towards the crime’s commission—can no longer reasonably be found by the jury.

Robbery is the felonious taking of personal property in the possession of another, from his or her person or immediate presence, and against his or her will, accomplished by means of force or fear. (§ 211; People v. Lindberg (2008) 45 Cal.4th 1, 24 (Lindberg).) “To be convicted of robbery, the perpetrator must intend to deprive the victim of the property permanently.” (People v. Huggins (2006) 38 Cal.4th 175, 214.) In contrast, “ ‘[a]n attempted robbery requires a specific intent to commit robbery and a direct, ineffectual act (beyond mere preparation) toward its commission.’ ” (Lindberg, supra, 45 Cal.4th at p. 24.) Conviction of the crime of attempted robbery “ ‘requires neither the commission of an element of robbery nor the completion of a theft or assault.’ ” (People v. Sánchez (2016) 63 Cal.4th 411, 470.) While, as stated above, the act required must be more than mere preparation—showing that the perpetrator is putting his or her plan into action—it need not be “ ‘the last proximate or ultimate step toward commission of the crime.’ ” (Ibid.)

On this record, we find appellant’s argument with respect to Donald’s cell phone beside the point. Donald specifically testified at trial that his assailants “asked for our cell phones so we couldn’t call out.” He additionally confirmed that he later recovered his cell phone from Amy because it had been left at the house. Given this testimony, the jury reasonably could have inferred that the cell phone was not taken with the requisite intent to deprive Donald of it on a permanent basis, and thus its temporary removal so that the police would not be called did not constitute a robbery.

In contrast, appellant and his codefendants clearly entered the home with the intent to rob its inhabitants of any available valuables. Indeed, as detailed above, they announced as much. Moreover, the three assailants, including Heinze, gathered everyone into a back room, took wallets from some of the victims, and then escorted Amy through the home at gunpoint, demanding to be shown where other valuables were kept. Donald, however, did not live in the house and had nothing of value on him. When asked at trial if he had given them his wallet, Donald responded: “I showed them my—my—my wallet was empty, that they saw, all I had in there was my identification and—and credit card, and they let me keep it because, I guess, no money so—.” Since the three codefendants had the specific intent to rob Donald of his cash and made an ineffectual attempt at doing so by demanding his wallet and looking through it, the facts support the jury’s conclusion that an attempted robbery occurred. On this basis, we conclude that Heinze was not convicted in error.

B. Remand for Resentencing is Necessary

We must, however, also consider a sentencing issue brought to our attention in this case via supplemental briefing from the parties. At the time it sentenced Heinze, the trial court had no discretion to strike firearm enhancements imposed under sections 12022.5 and 12022.53. (Former §§ 12022.5, subd. (c), 12022.53, subd. (h).) Thereafter, in October 2017, the Legislature passed Senate Bill 620, which took effect on January 1, 2018. Pursuant to this legislation, amended section 12022.53 now provides that “[t]he court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section.” (§ 12022.53, subd. (h); People v. McDaniels (2018) 22 Cal.App.5th 420, 424–425 (McDaniels).) An identical amendment was made to subdivision (c) of section 12022.5. The authority provided by both amended statutes “applies to any resentencing that may occur pursuant to any other law.” (§§ 12022.5, subd. (c), 12022.53, subd. (h).) Recently, our colleagues in Division One of this District concluded that newly amended subdivision (h) of section 12022.53 applies retroactively to nonfinal judgments, such as the one at issue in this appeal. (See McDaniels, supra, 22 Cal.App.5th at pp. 424–425.) Other Districts have reached a similar conclusion with respect to both subdivision (h) of section 12022.53 and subdivision (c) of section 12022.5. (See, e.g., People v. Billingsley (2018) 22 Cal.App.5th 1076, 1079–1080; People v. Vela (2018) 21 Cal.App.5th 1099, 1113–1114.) And, as mentioned above, both parties concur that remand for possible resentencing is appropriate in this case.

We agree. Under these circumstances, “remand is required unless the record shows that the trial court clearly indicated when it originally sentenced the defendant that it would not in any event have stricken a firearm enhancement.” (McDaniels, supra, 22 Cal.App.5th at p. 425.) Thus, remand is appropriate here because the record contains no clear indication of an intent by the trial court not to strike one or more of the firearm enhancements at issue. To the contrary, the record reflects that the trial court made efforts to mitigate Heinze’s sentence. It granted Heinze’s motion pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, so that it could “impose a sentence on the current case which [was] more consistent with [Heinze’s] role in it.” In addition, the court imposed the midterm of six years on one count of home invasion robbery and a corresponding 10-year firearm enhancement for an aggregate term of 16 years in prison, but then stayed the remainder of Heinze’s sentences or ordered them to run concurrently. Indeed, the trial court indicated that it felt “compelled” to do so given Heinze’s lesser level of culpability in the case. Nothing in the record, then, rules out the possibility that the trial court would exercise its discretion on remand to strike some or all of Heinze’s firearm enhancements. “While we express no opinion on how the court should exercise its discretion on remand, that discretion is for it to exercise in the first instance.” (McDaniels, supra, 22 Cal.App.5th p. 428.)

III. DISPOSITION

Heinze’s convictions are affirmed, but the case is remanded for the trial court to consider whether to strike some or all of the firearm enhancements imposed under sections 12022.5 or 12022.53.

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REARDON, J.

We concur:

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STREETER, ACTING P. J.

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SMITH, J.*

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