Filed 12/3/18 P. v. Johnson CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. Michael E. Dellostritto, Judge.

Peter Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Amanda C. Cary and Jennifer Oleska, Deputy Attorneys General, for Plaintiff and Respondent.

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An amended information filed November 10, 2015, charged defendant with four counts of second degree robbery (counts 1, 2, 4, 8; Pen. Code, § 212.5, subd. (c)),[1] one count of transporting methamphetamine (count 3; Health & Saf. Code, § 11379, subd. (a)), two counts of making criminal threats (count 5, 9; § 422), one count of possessing of methamphetamine for sale (count 6; § Health & Saf. Code, § 11378), one count of failing to notify of property damage after a vehicle accident (count 7; Veh. Code, § 20002, subd. (a)); and one count of felony vandalism (count 10; § 594, subd. (b)(1).)

The information also alleged the following enhancements: a deadly weapon enhancement (§§ 667, subd. (e)(2)(C)(iii); 1170.12, subd. (c)(2)(C)(iii)) as to count 6; an enhancement for a prior controlled substance conviction (see Health & Saf. Code, § 11370.2, subd. (c)) as to counts 3 and 6; an on-bail enhancement (§ 12022.1) for counts 4 through 6; two on-bail enhancements (§ 12022.1) for counts 8 through 10; nine prior serious felony conviction enhancements (§ 667, subd. (a)); two prior prison term enhancements (§ 667.5, subd. (a)) as to counts 1, 2, 4, 5, 8, and 9; nine prior strike convictions (§ 667, subds. (c)–(j); 1170.12, subds. (a)–(e)); and four prior prison term enhancements (§ 667.5, subd. (b)) as to counts 1 through 6, and 8 through 10.

A jury convicted defendant as charged on counts 1, 2, 4, 5, 7, 8, 9, 10. The jury acquitted defendant on count 6 but convicted him on the lesser included offense of possession of a controlled substance. (Health & Saf. Code, § 11377, subd. (a).) The jury was unable to reach a verdict on count 3, which was subsequently dismissed by the prosecution.

The court dismissed the following enhancements: the section 667.5, subdivision (a) enhancements to count 5; one section 667.5, subdivision (a) enhancement to count 9; one section 667, subdivision (a) enhancement to count 9; and all the enhancements to count 6. The court found the remaining enhancements true.

The court sentenced defendant to 100 years to life, plus 62 years.

We remand for resentencing pursuant to Senate Bill No. 1393 (2017-2018 Reg. Sess.) (S.B. 1393), but otherwise affirm the judgment.

DISCUSSION

Because this case involves unrelated incidents – some occurring months apart – we set forth the facts of each incident separately, in connection with the appellate issues to which they pertain.[2]

1. Appellate Issues Concerning Rite Aid Incident on January 24, 2014

1. Facts Concerning the Robbery and Criminal Threat

Ryan Arias was working as a supervisor at a Rite Aid on January 24, 2014. Arias went to a register to collect the “extra cash” to put in a safe in the back office. Arias heard someone come in and ask for ice cream. Arias did not think much of it and walked into the office. Suddenly, defendant was behind him demanding all the money. Defendant told Arias “not to try anything” because he had a gun on him. Arias initially thought it was a joke. He smirked and “just stood there.” Defendant then said, “ ‘[N]ow you – you f[**]ked up.’ ” Arias saw the barrel of a gun defendant had wrapped in a towel. Arias backed up slowly and let defendant take the money. Arias was frightened.

Defendant admitted to law enforcement he went into the store and demanded money. But defendant claimed the gun was fake, and that he initially said he “don’t want to hurt nobody.” Defendant claimed he then heard someone “on the microphone” say, “[S]ecurity dial 1.” “And I was like, see now somebody gonna get hurt.”

1. Defendant’s Conviction on Count 5 for Criminal Threats is Supported by Substantial Evidence

Defendant argues that his conviction on count 5 for making a criminal threat is not supported by substantial evidence.

In evaluating defendant’s challenge, we “ ‘ “review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence – that is, evidence which is reasonable, credible, and of solid value – such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” ’ [Citation.] ‘ “ ‘The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. [Citation.] “ ‘Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court[,] which must be convinced of the defendant’s guilt beyond a reasonable doubt. “ ‘If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.’ ” ’ ” ’ ” ’ [Citations.]” (People v. Ghobrial (2018) 5 Cal.5th 250, 277–278.)

A defendant makes a criminal threat when he or she “willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family’s safety,…” (§ 422, subd. (a).)

Defendant argues the statements, “ ‘[N]ow you f[**]ked up’ ” and “ ‘Don’t try anything – I’ve got a gun,’ ” do not clearly express an intent to inflict death or great bodily injury. We hold that there is substantial evidence that defendant made a criminal threat when he told Arias “not to try anything … ‘cause he … had a gun on him.”[3]

When someone tells you to do something because they have a gun, the clearest (and perhaps only) reasonable inference is that you will be shot if you do not comply. Because that inference is reasonable and supports the judgment, we accept it. Defendant’s counterarguments, discussed below, do not dissuade us from this straightforward conclusion.

Defendant says his threat was ambiguous, like the threat in In re Ricky T. (2001) 87 Cal.App.4th 1132 (Ricky T). We disagree. In Ricky T., the minor had said, “ ‘I’m going to get you.’ ” (Id. at p. 1135.) The court held that statement was “vague” and “ambiguous on its face.” (Id. at p. 1138.) The court then looked to the “context” of the threat and found a “lack of surrounding circumstances information.” (Id. at p. 1137.) Here, however, defendant’s threat was not ambiguous. Defendant told Arias “not to try anything” because he “had a gun.” Defendant was clearly communicating that any attempt to frustrate the robbery would be met with defendant using his gun. Additional circumstantial evidence was not necessary to clarify defendant’s threat.

Defendant asserts that he “never came that close to Arias,” in contrast to cases like People v. Butler (2000) 85 Cal.App.4th 745. But defendant’s physical distance does not negate the threatening nature of defendant’s statement. Defendant essentially threatened to use his gun, which does not require close proximity to be deadly.

Defendant says it is “unclear if he ever exposed what he intimated was a gun in his possession.” But Arias plainly testified he saw the barrel of a gun defendant had wrapped in a towel. We will not indulge an inference unfavorable to the judgment on substantial evidence review.

Defendant also argues that his crime was a “vanilla” robbery because he simply entered the office and asked for money. But a criminal threat can accompany a “vanilla” robbery as much as any other kind of robbery. There is nothing mutually exclusive about criminal threats and garden-variety robberies.

2. Facts Concerning Hit and Run (Count 7) After the Rite Aid Robbery

Immediately after robbing the Rite Aid, defendant got into a dark colored vehicle

with a female occupant.[4] As defendant backed out, he hit another vehicle belonging to Althea Henderson. Henderson jumped out of the car to tell him to stop, but defendant “just kept going.” Henderson observed part of defendant’s license plate and called the police.

1. The Sentencing Court did not Violate Section 654 in Imposing a Concurrent Sentence on Count 7

Defendant was convicted of misdemeanor hit and run with property damage (count 7). (Veh. Code, § 20002, subd. (a).) The court imposed a concurrent sentence on count 7. He argues that under section 654, should not have been punished for both the robbery of the Rite Aid (count 4) and the subsequent hit and run (count 7).

Under section 654, no single “act or omission” shall be punished under more than one provision of law. (§ 654, subd. (a).) In 1960, our Supreme Court expanded the reach of section 654 to also prohibit multiple punishment for multiple offenses “ ‘incident to one objective .…’ ” (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) “ ‘Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor.’ [Citation.]” (Ibid., original italics.)

Here, defendant argues there was only one apparent intent: “to rob the persons at the Rite Aid pharmacy and to escape with the proceeds.” But defendant has identified two objectives, not a single objective. The physical acts of demanding the money and taking the money were done with the apparent objective of robbing the Rite Aid. The physical act of hitting another car and failing to stop was done with the apparent intent to escape with the proceeds. These are two separate objectives, so the single course of conduct rule does not apply. (See People v. Rodriguez (2015) 235 Cal.App.4th 1000, 1006 [trial court can reasonably find that objective of robbery was to obtain money while objective of evading arrest was to avoid capture] (Rodriguez).[5]) The fact that defendant’s acts in furtherance of his escape may have occurred while the crime of robbery was still technically ongoing does not alter this conclusion. (Id. at p. 1007.)

2. Appellate Issues Related to the Marijuana Dispensary Incident on June 13, 2014

1. Facts

On June 23, 2014, Biancha A. was working as a volunteer receptionist at a marijuana dispensary. A man named Anthony S. entered the dispensary. Shortly thereafter, another man – later identified as Greg Jacobs – rushed through the door and tried to break down a second door where patients entered. Jacobs said he had a gun. Biancha was scared she was going to die. Biancha got onto the floor. “[P]robably about two or three minutes” later, defendant entered the dispensary. Defendant took cash out of the register. Blair A., the owner of the marijuana dispensary, testified that under $500 was stolen (“400, or something”).

Blair also testified about damage to the dispensary’s surveillance system. Wires had been cut and cameras had been damaged. Blair testified “there was probably three to $5,000 worth” of physical damage to equipment in the dispensary, including the surveillance system.

1. That Jacobs’s Threat was Technically “Conditional” Does not Warrant Reversal of Defendant’s Conviction for Criminal Threats in Count 9

In count 9, defendant was charged with criminal threats. (§ 422.) That charge was based on Jacobs’s statement that he had a gun. The prosecutor argued that defendant was liable for Jacobs’s threat because it was a natural and probable consequence of robbery.

Defendant argues the statement, “I’ve got a gun” is not so unequivocal, unconditional, immediate and specific as to convey to the person threatened a gravity of purpose and an immediate prospect of execution of the threat. (See § 422, subd. (a).) But defendant does not explain how the statement is equivocal, nonurgent or nonspecific.

However, the threat is arguably conditional. When Jacobs said he had a gun, the clear implication was that he would shoot anyone who resisted or failed to comply with his demands. By definition, such a threat would be conditional.

This gets at a broader issue: it is interesting that section 422 includes the word “unconditional” at all. Prototypical threats are conditional – e.g., “if you snitch, I will kill you.” It is therefore unusual for section 422 to penalize only those “threat[s]” that are “so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat,…” (§ 422, subd. (a), italics added.) However, courts have explained that a threat need not be absolutely unconditional to violate section 422. (People v. Hamlin (2009) 170 Cal.App.4th 1412, 1433; see generally People v. Stanfield (1995) 32 Cal.App.4th 1152 (Stanfield); People v. Brooks (1994) 26 Cal.App.4th 142.)

Section 422 was drafted to comport with language from United States v. Kelner (2d. Cir. 1976) 534 F.2d 1020 (Kelner). (Stanfield, supra, 32 Cal.App.4th at p. 1159.) The phrase “so unequivocal, unconditional, immediate and specific as to the person threatened, as to convey a gravity of purpose and imminent prospect of execution” comes from Kelner. (Kelner, supra, 534 F.2d at p. 1027.) California courts have interpreted Kelner’s language as follows: “[T]he Kelner court’s use of the word ‘unconditional’ was not meant to prohibit prosecution of all threats involving an ‘if’ clause, but only to prohibit prosecution based on threats whose conditions precluded them from conveying a gravity of purpose and imminent prospect of execution.” (Stanfield, supra, 32 Cal.App.4th at p. 1161.)

In other words, the ultimate issue is whether the threat conveys a gravity of purpose and immediate prospect of execution. That ultimate issue is resolved by looking to whether and to what extent a threat is equivocal, conditional, immediate or specific. The fact that a threat is conditional can undermine the gravity of purpose conveyed and the immediacy of its prospective execution, but it does not always do so. A conditional threat “contingent on an act highly likely to occur may convey to the victim a gravity of purpose and immediate prospect of execution.” (Stanfield, supra, 32 Cal.App.4th at p. 1158.) For example, if the speaker demands the hearer join a particular political party or the speaker will hire “gang bangers” to kill the hearer, the statement may constitute a criminal threat in spite of its conditional nature. (Id. at p. 1155, 1162–1163.) In contrast, if a threat is made conditional on a contingency which the speaker expressly intends to avoid, then the speaker has not conveyed an immediate prospect of execution and has not made a criminal threat. (Id. at pp. 1159–1160, citing Watts v. United States (1969) 394 U.S. 705.)

Here, Jacobs’s statement was made during an apparent robbery. Nothing suggested his statement was equivocal or lacked immediacy. Given these circumstances, there was substantial evidence to support the inference that Jacobs’s statement conveyed a gravity of purpose and immediate prospect of carrying out the threat even though the threat was arguably conditional.

In his reply brief, defendant claims he “is not arguing here that his actions were conditional” but instead “contends that his actions were so ambiguous that they did not amount to sufficient evidence of a threat so as to” convey gravity of purpose and an immediate prospect of execution. But the purported ambiguity of defendant’s actions is not relevant; the threat at issue was made by Jacobs, not defendant.

To the extent defendant intended to argue that Jacobs’s statement was ambiguous, we disagree. It is eminently reasonable for a jury to conclude the statement was clear enough to convey that if anyone in the dispensary did not do as Jacobs wanted, they would be shot.

2. Defendant has not Established Error with Respect to this Convictions for Criminal Threat and Vandalism Under the Natural and Probable Consequences Doctrine
   1. Natural and Probable Consequences Doctrine

The prosecutor argued defendant was liable for Jacobs’s criminal threat under the natural and probable consequences doctrine. Under that doctrine, “ ‘an aider and abettor is guilty not only of the intended crime, but also “for any other offense that was a ‘natural and probable consequence’ of the crime aided and abetted.” ’ [Citations.]” (People v. Chiu (2014) 59 Cal.4th 155, 158.)

1. 2. Criminal Threats (Count 9)

Defendant argues that “although there was evidence that appellant knew that Jacobs was planning to perpetrate a robbery … there was no evidence that appellant knew that Jacobs was likely, in addition, to commit the crime of criminal threat by stating to anyone in the dispensary that he had a gun.” Similarly, defendant says his acts did not assist in the “achievement” of the criminal threat; he was not in the dispensary when Jacobs made the threat; and that there was no evidence Jacobs had a gun, or that defendant knew Jacobs would make a threat.[6] (Citing People v. Butts (1965) 236 Cal.App.2d 817.)

But these are not the relevant questions. The question “ ‘is not whether the aider and abettor actually foresaw the additional crime, but whether, judged objectively, it was reasonably foreseeable. [Citation.]’ ” (People v. Medina (2009) 46 Cal.4th 913, 920, original italics.) It is reasonably foreseeable that perpetrating a robbery will involve criminal threats. Consequently, reversal is not warranted because defendant may not have actually predicted a criminal threat would occur. Nor is reversal warranted because defendant did not participate in the criminal threat because liability under the natural and probable consequences doctrine is vicarious. (People v. Chiu, supra, 59 Cal.4th at p. 164.)

1. 3. Vandalism (Count 10)

Defendant argues there was no evidence any of his acts “assisted the achievement of … the vandalism.” But such evidence was not necessary under the natural and probable consequences doctrine. An aider and abettor is guilty “not only of the intended, or target, offense, but also of any other crime the direct perpetrator actually commits that is a natural and probable consequence of the target offense. [Citation.]” (People v. Mendoza (1998) 18 Cal.4th 1114, 1123, italics added.) Because defendant aided and abetted the robbery, and vandalism to the surveillance system was a natural and probable consequence of the robbery, the prosecution was not required to show defendant’s acts “assisted the achievement of … the vandalism.”[7]

Defendant also observes that there was no evidence he knew the marijuana dispensary had surveillance equipment. But, again, the issue “is not whether the aider and abettor actually foresaw the additional crime, but whether, judged objectively, it was reasonably foreseeable. [Citation.]’ ” (People v. Medina, supra, 46 Cal.4th at p. 920, original italics.) In other words, the question is not whether defendant knew there was surveillance equipment at the marijuana dispensary. Rather, the questions is whether it is reasonably foreseeable that a robbery could result in vandalism of surveillance equipment.

3. Defendant has not Shown the Trial Court Improperly Considered the Federal Plea Agreement and Factual Basis Exhibit in Making Findings on the Sentence Enhancement Allegations

1. Background

For defendant’s court trial on the sentencing enhancements, the prosecution offered into evidence a plea agreement from a federal district court case (case No. S 00-277-WBS). In that case, defendant had been charged with four counts of bank robbery in violation of 18 U.S.C. § 2113, subdivision (a) and two counts of armed bank robbery, in violation of 18 U.S.C. § 2113, subdivisions (a) and (d), among others. A “Factual Basis for Plea” was appended to the plea agreement as Exhibit A. The exhibit described Johnson’s role in each crime charged.

18 U.S.C. § 2113, subdivision (a) describes several distinct crimes. For one, it prohibits taking or attempting to take – by force and violence or intimidation – from the presence of another anything of value belonging to or in the care, custody, control, management or possession of any bank or similar entity. (18 U.S.C. § 2113, subd. (a) [first paragraph].) This crime “constitute[] the California serious felony of bank robbery. ([] § 1192.7, subds.(c) (19), (d).” (People v. Miles (2008) 43 Cal.4th 1074, 1077.)

Second, 18 U.S.C. § 2113, subdivision (a) also prohibits obtaining or attempting to obtain any such thing “by extortion.” (18 U.S.C. § 2113, subd. (a) [first paragraph].)

Finally, 18 U.S.C. § 2113, subdivision (a) also prohibits entering a bank or similar entity with intent to commit a felony affecting the bank or similar entity. (18 U.S.C. § 2113, subd. (a) [second paragraph].) This crime, which “includes many of the traditional elements of nonresidential burglary … does not correspond to any California serious felony.” (People v. Miles, supra, 43 Cal.4th at p. 1077.) Consequently, when a prosecutor attempts to use a prior conviction for violating 18 U.S.C. § 2113, subdivision (a), as a “strike” in state court, it must show the defendant had committed the robbery version of the crime (not the extortion or burglary versions).

At the court trial in the present case, the prosecutor argued that the exhibit to the plea agreement showed that the federal bank robbery convictions were “strikes.” The court found the strike allegations true.

2. Analysis

Defendant argues the court violated Descamps v. United States (2013) 570 U.S. 254 (Descamps), by improperly considering the plea agreement and exhibit.[8] Defendant argues that Descamps limits the type of documents that may be considered in making findings on sentence enhancements and that “here the trial court went beyond this limitation, and utilized the plea agreement to determine the facts of the offenses.”

However, the California Supreme Court has clearly held that when “the mere fact of conviction under a particular statute does not prove the offense was a serious felony, otherwise admissible evidence from the entire record of the conviction may be examined to resolve the issue. [Citations.]”[9] (People v. Miles, supra, 43 Cal.4th at p. 1082.) The record of conviction includes a defendant’s guilty plea. (People v. Thoma (2007) 150 Cal.App.4th 1096, 1101.)

Defendant “recognizes” the issue he raised “is presently determined by People v. Miles[, supra,] 43 Cal.4th 1074,” and that we are “bound to follow this precedent.” However, defendant “wishes to preserve the issue for possible further review of the issue by the California Supreme Court.”

Because the trial court here permissibly consulted the record of conviction – including the plea agreement and factual basis exhibit – to determine which facts defendant admitted in his guilty plea, we reject defendant’s claim.

4. Defendant has not Shown Error with Respect to Penalties Imposed by the Trial Court

1. Background

The court ordered defendant to pay a “fine of $50.00 plus $155.00 penalty assessment and state surcharge pursuant to [Health & Safety Code §] 11372.5.”

2. Analysis

Health and Safety Code section 11372.5 provides that the court shall impose a $50 criminal laboratory analysis fee on everyone convicted of certain crimes, including the crime defendant was convicted of on count 6: Health & Safety Code section 11377. (Health & Saf. Code, § 11372.5, subd. (a).)

Section 1464, subdivision (a)(1) provides that the court shall also levy “a state penalty in the amount of ten dollars ($10) for every ten dollars ($10), or part of ten dollars ($10), upon every fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses,…”[10] Similar penalties increase the total amount imposed.[11] In a very brief argument, defendant contends the criminal laboratory analysis fee of Health and Safety Code section 11372.5 is not subject to penalty surcharges or assessments under People v. Watts (2016) 2 Cal.App.5th 223. However, the Supreme Court disapproved Watts after briefing was completed in this case. (People v. Ruiz (2018) 4 Cal.5th 1100, 1122, fn. 8.) Because defendant bases his claim on Watts, we reject his argument.

5. Matter to be Remanded for Resentencing Under Senate Bill No. 1393

S.B. 1393, which becomes effective January 1, 2019, gives “courts discretion to dismiss or strike a prior serious felony conviction for sentencing purposes.” (People v. Garcia (2018) 28 Cal.App.5th 961, 965.) The parties agree this matter should be remanded for resentencing under this new law. “Because it is highly unlikely that defendant’s judgment will … be final by January 1, 2019, we remand the matter to the trial court for resentencing.” (Id. a p. 973, fn. omitted.)

DISPOSITION

The matter is remanded to the trial court with directions to resentence defendant after January 1, 2019, pursuant to sections 667, subdivision (a) and 1385, subdivision (b), as amended by S.B. 1393. In all other respects, the judgment is affirmed.

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POOCHIGIAN, Acting P.J.

WE CONCUR:

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FRANSON, J.

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MEEHAN, J.