Opinion
G053400 G053710
03-27-2018
THE PEOPLE, Plaintiff and Respondent, v. GERMANI JERMAINE MACKIE and LARRY BERNARD TARVER, Defendants and Appellants.
Julie Sullwold, under appointment by the Court of Appeal, for Defendant and Appellant Germani Jermaine Mackie. Buckley & Buckley and Christian C. Buckley for Defendant and Appellant Larry Bernard Tarver. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Michael Pulos, and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING; NO CHANGE IN JUDGMENT
Defendant Tarver filed a petition for rehearing on April 3, 2018. On April 4, 2018, defendant Mackie joined in the petition.
The opinion filed in this case on March 27, 2018, is ordered modified as follows:
1. On page 8, delete the last word of the first paragraph, "Bernard" and replace it with "Benard."
2. On page 14, under the heading "2. Cell Phone Evidence," delete the word "Bernard" in the last line of the first paragraph and replace it with "Benard."
3. On page 15, delete the word "'Bernard'" in the seventh line and replace it with "'Benard.'"
4. On page 15, under the heading "a. Relevance," delete "Bernard" in the first line and replace it with "Benard."
5. On page 15, under the heading "a. Relevance," delete the word of the first sentence, "Bernard" and replace it with "Benard."
6. On page 16, delete the word "Bernard" in the second line and replace it with "Benard."
7. On page 16, under the heading "b. Hearsay," delete the last word of the first paragraph, "Bernard," and replace it with "Benard."
8. On page 18, delete the word "Bernard" in fourth and sixth line of the first full paragraph and replace each with "Benard."
9. On page 19, delete the word "Bernard" in the third line and replace it with "Benard."
10. On page 19, insert the following footnote at the end of third line: "In a footnote of his opening brief, Tarver contends admission of the names associated with the 323 cell phone violated an agreement between the parties and People v. Aranda (1965) 63 Cal.2d 518, and Bruton v. United States (1968) 391 U.S. 123. 'We do not have to consider issues discussed only in a footnote. [Citation.]' (Evans v. Centerstone Development Co. (2005) 134 Cal.App.4th 151, 160; see Cal. Rules of Court, rule 8.204(a)(1)(B).)"
These modifications do not change the judgment. The petition for rehearing is DENIED.
THOMPSON, J. WE CONCUR: MOORE, ACTING P. J. FYBEL, J.
NOT TO BE PUBLISHED IN 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. (Super. Ct. No. 15CF1013) OPINION Appeals from judgments of the Superior Court of Orange County, Cheri T. Pham, Judge. Affirmed in part as amended, reversed in part, and remanded for resentencing. Julie Sullwold, under appointment by the Court of Appeal, for Defendant and Appellant Germani Jermaine Mackie. Buckley & Buckley and Christian C. Buckley for Defendant and Appellant Larry Bernard Tarver. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Michael Pulos, and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
INTRODUCTION
Defendants Germani Jermaine Mackie, Kyle Yarber, and Larry Bernard Tarver were charged in a consolidated amended information with kidnapping to commit robbery (Pen. Code, § 209, subd. (b)(1); count 1), robbery (§§ 211; 212.5, subd. (c); count 2), false imprisonment by menace or violence (§§ 236, 237, subd. (a); count 3); commercial burglary (§§ 459, 460, subd. (b); count 4), criminal threat (§ 422, subd. (a); count 5), attempting to dissuade a witness (§ 136.1, subd. (a)(2); count 6), and receiving stolen property (§ 496, subd. (a); count 7). The information further alleged Yarber personally used a firearm in the commission of the charged offenses (§§ 12022.5, subd. (a), 12022.53, subd. (b)), Mackie personally used a deadly weapon, a knife, (§ 12022, subd. (b)(1)), each of the defendants was armed with a firearm (§ 12022, subd. (a)(1), and Mackie and Tarver were vicariously armed with a firearm (§ 12022, subd. (d)). Additionally, the information alleged Mackie served a prior term in state prison; and Tarver suffered two prior strike convictions, had two prior serious felony convictions, and served a prior term in state prison.
Yarber is not a party to this appeal.
All undesignated statutory references are to the Penal Code.
The jury acquitted the defendants of the kidnapping, and found all weapon enhancements not true, but convicted them of the remaining charges. Trials on the prior conviction allegations were bifurcated from the trial on the substantive charges. The court found Mackie served a prior term in state prison, and found Tarver's prior conviction allegations true, with the exception of the prior prison term allegation.
The court sentenced Mackie to an aggregate term of eight years, consisting of a five-year upper term for the robbery (count 2), plus a consecutive one-year term for the prior prison term enhancement, and consecutive eight-month terms (one-third the middle term) for the burglary, criminal threat, and attempted dissuading of a witness convictions.
After denying Tarver's invitation to exercise its discretion to strike his prior strike convictions for sentencing purposes pursuant to section 1385, the court sentenced him to 25 years to life on the robbery charge (count 2) with a concurrent 25 years to life term on the section 422 conviction (count 5). The court imposed six years (upper term doubled) on the burglary conviction (count 4) and six years (upper term doubled) on the attempting to dissuade a witness conviction (count 6), and ordered those terms to run concurrently with the sentence on count 2. Two additional five-year terms were imposed on Tarver's two serious felony prior convictions for an aggregate sentence of 25 years to life plus 10 years.
The defendants' convictions for receiving stolen property were dismissed pursuant to People v. Stephens (1990) 218 Cal.App.3d 575, 586 [a defendant cannot generally be convicted of stealing and receiving the same property].
Mackie contends his conviction for attempting to dissuade a witness is not supported by the evidence, the trial court violated his due process rights when it failed to instruct the jury on the elements of dissuading a witness, and the sentence on the burglary charge must be stayed pursuant to section 654. Tarver joined in Mackie's arguments to the extent they inure to his benefit, and asserts the trial court erred in admitting certain cell phone evidence, all his present convictions must be set aside because they are not supported by the evidence, the trial court erred in denying his Marsden motions, and the sentence on the burglary must be stayed pursuant to section 654. The Attorney General concedes section 654 applies to the burglary convictions.
People v. Marsden (1970) 2 Cal.3d 118.
We agree section 654 applies to the convictions for burglary and will order the matter remanded for resentencing. We also agree with the Attorney General that the guilty verdict forms for count six must be amended to reflect conviction for section 136.1, subdivision (b)(1), instead of section 136.1, subdivision (a)(2). We will order the superior court to stay the sentences on count six pursuant to section 654 and will remand the matter for resentencing.
FACTS
On May 11, 2015, Erika G. arrived to work at Ace Cash Express (Ace) on Tustin Avenue, in Orange, a "couple minutes" after 8:20 a.m. Normally, she would arrive at 8:20 a.m. and open the store 40 minutes later, after she counted the money in the safe. On this day, she entered Ace, put her purse on the safe, clocked in, and turned off the alarm system. After clocking in, she saw dust coming from the ceiling. She looked up and saw the "ceiling cracking." A square of the ceiling had already come off. A foot appeared on top of the safe's keypad. She heard a male voice and pressed the panic button she had been provided by Ace and carried with her.
She ran for the entrance where two interior doors create a man trap. She got through the first door and had the second door open, when she was grabbed by the hair from behind by an African-American male, and thrown to the floor inside the man trap. The male pulled her pants leg and asked where she was going. A second African-American male entered the man trap. He had a beard. Both men were dressed in black and had something covering their mouths. When the door closed behind the bearded man, all three were trapped inside the man trap. The bearded man kicked open the door leading to the interior of the store. The man who had pulled Erika G.'s hair took her to the restroom, while the bearded man went to the safe. The face of the man who took Erika G. into the restroom remained covered throughout the incident. Erika G. was frightened.
The bearded intruder directed the masked man to bring Erika G. to the safe. The masked man dragged her to the safe. When asked to open the safe, Erika punched into the safe's key pad the "ambush code" that would notify police, and her code. She told the men they had to wait five minutes. The men said something about it being a trap. The masked man dragged Erika G. back to the restroom, and the bearded man asked her for the code to the safe. Erika G. asked for a piece of paper to write down the combination. She was not given any paper. Instead, she was dragged back to the safe a second time.
There was also a dial lock on the safe.
When Erika G. was taken to the restroom a second time, she was duct taped. The bearded man retrieved some duct tape from his backpack and threw the tape to the masked man. The masked man taped her ankles, wrists, and mouth. He told her he was going to kill her. She was afraid.
At some point in time, Erika G. asked for some water. Inside a cup in the office was a knife and a spoon. She was given a cup of water as the bearded intruder held the knife. Later, the masked man held a knife inside the restroom while the bearded man remained at the safe. Erika G. said at one point she saw what appeared to be a gun resting in the lap of the bearded man as he was working on the safe.
During the intrusion, Erika G. saw the bearded man on a cell phone. It was on speaker mode. She heard a male on the other end tell the bearded man to "hurry up."
Erika G. heard the safe open while she was in the restroom. The men put the money from the safe into a backpack and made their escape while Erika G. lay on the floor, duct taped. She said they escaped through the hole in the ceiling and that one of them slipped and fell back through the ceiling. As they left, she was told to remember they had her identification (I.D.). Erika G. did not identify any of the defendants.
At approximately 8:35 a.m., Officer Miguel Zamora of the Orange Police Department responded without lights and siren to a radio call of a robbery alarm at Ace. On the way, he observed a chubby, medium build, African-American male in dark clothing with a do-rag on his head, talking on a cell phone. He had seen the man earlier that morning, between 8:15 a.m. and 8:20 a.m. sitting on the bus bench directly in front of Ace. He identified the man as Tarver. Zamora identified a photograph of Tarver walking in the parking lot of Ace while talking on a cell phone.
The photograph was taken from a surveillance video.
Zamora parked his patrol vehicle away from Ace and approached the business. He saw Erika G. exit Ace with duct tape over her mouth and around her ankles and wrists. He asked for a description of the suspects and she said they were African-American males wearing dark clothing, and last seen heading toward the roof.
Officer Brian Thaete received a call about the alarm when he was at Tustin and Chapman Avenues in Orange. He responded by heading northbound on Wayfield Street. On the way, he received a call and was told someone had seen possible suspects running northbound on Wayfield. He drove north until he got to a cul-de-sac, at which point he stopped his patrol car, got out, and started looking for suspects. He walked westbound on Orange Grove Avenue. He spotted an African-American male on his knees, poking his head through some bushes and talking on a cell phone. Thaete crept up behind him (Yarber) and ordered Yarber to the ground. As an officer was handcuffing Yarber, Thaete spotted another African-American male (Mackie) lying in the bushes. Thaete ordered Mackie to remain prone. A search of Mackie revealed two cell phones and $2,759 in his pockets. A cell phone was also found near Yarber.
Thaete searched the area after helping take the suspects into custody. In a front yard of a residence just south of the cul-de-sac, he found a backpack. It contained $1,620. Also found during the search was a backpack containing more than $6,700 and a VISA debit card in Erika G.'s name. No weapons were found. In the back yard of a residence abutting the strip mall where Ace is located, police found approximately $1,500 in bills and $120 in change. In the residence's trash can were a number of pieces of black clothing, including a pair of jeans and a pair of sweatpants, all with a white powdery substance on them. The powdery substance appeared to be drywall. The occupants had not put the clothing in the cans, but one of the occupants reported having seen two African-American males walking quickly past the residence, on the sidewalk. One appeared to be talking on a cell phone.
Detective Brian Stanley of the Orange Police Department has special training in digital forensics, including their use on cell phones. He is certified by Cellebrite as an analyst and operator of Cellebrite equipment. Cellebrite developed technology to extract data from cell phones. Stanley used Cellebrite equipment on cell phones recovered in this matter. He downloaded the contents of a Samsung Galaxy cell phone, including e-mail addresses listed under the user account settings. Stanley said the e-mail accounts are usually in the name of the subscriber registered to the cell phone. An e-mail account on the phone was in the name of Kyle Yarber.
The physical image obtained from the cell phone also contained a call log for May 11, 2015. It showed at 8:30 a.m. on that date a call from "Nard," with a telephone number of (323) 434-XXXX (the 323 cell phone). Nard was the name in the cell phone's contacts list associated with the 323 cell phone number that made the incoming call. If a name for a number is not contained in the contacts list, only the number of the calling phone would be displayed.
Stanley also used Cellebrite equipment to download the physical image of a cell phone containing "selfies" of Mackie. It too, showed a call from the 323 cell phone. The name from this contacts list associated with the 323 cell phone was Bernard.
Detective Shawn Haydon testified the 323 cell phone was registered to an unidentified pre-paid cell phone. Police refer to such phones as a "burner phone." These phones may be purchased at a 7-Eleven store, along with a card that puts available minutes onto the phone. The detective said these phones are cheap, can be purchased anywhere, and can be purchased without providing a name or Social Security number. Burner phones can be used to avoid police detection.
All three defendants lived in San Bernardino. A video from an Arco station in San Bernardino County showed Tarver and Mackie together early on the morning of the robbery.
DISCUSSION
1. Tarver's Motions to Discharge Appointed Counsel
"The Sixth Amendment right to counsel, of course, guarantees more than just a warm body to stand next to the accused during critical stages of the proceeding; an accused is entitled to an attorney who plays a role necessary to ensure that the proceedings are fair. [Citation.]" (United States ex rel. Thomas v. O'Leary (7th Cir. 1988) 856 F.2d 1011, 1015.) Because appointed counsel is meant to be the personification of a criminal defendant's Sixth Amendment right to counsel, the trial court must appoint substitute counsel upon a proper showing. (Marsden, supra, 2 Cal.3d at p. 123) A criminal defendant is entitled to have appointed counsel relieved and substitute counsel appointed "'if the record clearly shows that the appointed counsel is not providing adequate representation or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.'" (People v. Taylor (2010) 48 Cal.4th 574, 599.) "On appeal, we review a trial court's decision denying a Marsden motion to relieve appointed counsel under the deferential abuse of discretion standard. [Citations.]" (People v. Lara (2001) 86 Cal.App.4th 139, 151-152.)
Ten days after the robbery at Ace, Tarver was charged as the sole defendant in a May 21, 2015 felony complaint with a number of felonies alleged to have occurred on May 11, 2015. A warrant for Tarver's arrest was issued. He was subsequently arraigned on the complaint on June 8, 2015. The court appointed Michael Currier to represent Tarver after the public defender and the alternate defender's office declared conflicts of interest. Currier subsequently declared a conflict of interest on June 29, 2015. The court relieved Currier and appointed Roger Sheaks to represent Tarver. That same day, Tarver's case was consolidated with the felony complaint charging Yarber and Mackie with the same crimes. Tarver entered not guilty pleas to the consolidated felony complaint. The court found Tarver knowingly and voluntarily waived time for the preliminary examination and set the hearing for July 21, 2015. On that date, Tarver brought his first motion to relieve counsel pursuant to Marsden, supra, 2 Cal.3d 118.
The public defender represented Yarber. The alternate defender represented Mackie.
Tarver asserted he was in custody and had not talked with an attorney. He said he told Sheaks on the day Sheaks was appointed that he wanted the police reports and did not want the case consolidated with the other defendants. Tarver complained that Sheaks did not argue against consolidation and had not visited him in custody in the three weeks since he had been appointed. He said he would rather represent himself than be represented by Sheaks.
Sheaks responded to Tarver's comments. Sheaks said he was not provided the discovery on the date of his appointment and while he had some discovery for Tarver, he told Tarver he could not provide the names and contact information of witnesses. (See § 1054.1, subd. (a)(1) [defense counsel prohibited from disclosing to client the address or telephone number of a victim or witness whose name was disclosed pursuant to section 1054.1].) Sheaks also represented he was ready to proceed with the preliminary examination. Sheaks said there were no grounds to oppose consolidation and the law favors consolidation.
The court denied Tarver's Marsden motion, stating the court did not find counsel was ineffective or that Tarver and counsel were embroiled in an irreconcilable conflict such that ineffective representation was likely to follow. This ruling was not an abuse of discretion. The Marsden hearing was held approximately three weeks after Sheaks's appointment. Counsel said he was not provided discovery on the date of his appointment, he presently had discovery to provide Tarver, but consistent with the Penal Code discovery rules, he could not disclose witness contact information to Tarver. Sheaks informed the court he had been preparing the case, including researching possible appellate issues, and was ready to proceed with the preliminary examination. To the extent Sheaks's statements concerning discovery were at odds with Tarver's representations, the court was entitled to accept counsel's version. (People v. Jones (2003) 29 Cal.4th 1229, 1245.)
Tarver's other complaint was that counsel did not oppose consolidation of his case with the felony complaint filed against Mackie and Yarber. Whether to oppose consolidation involves tactical considerations. Counsel, not the client, makes the tactical decisions. (People v. Barnett (2012) 54 Cal.4th 1081, 1105.) As Sheaks stated in response to Tarver's complaint, he had no legal basis for opposing consolidation and consolidation is favored by the law. "When two or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they must be tried jointly, unless the court order separate trials." (§ 1098; see People v. Burney (2009) 47 Cal.4th 203, 236 [Legislature has voiced a preference for joint trials].) The court did not abuse its discretion. Tarver failed to demonstrate counsel was ineffective or that an irreconcilable conflict existed making ineffective assistance likely.
Tarver made a second Marsden motion on January 4, 2016, the date scheduled for trial. Tarver stated his grounds for the motion: he had not been supplied discovery, counsel waived time over his objection, and counsel failed to file motions he wanted filed. Tarver did not discuss continuances over his objection. The record shows the trial had been continued over Tarver's objection, but the court found good cause for the continuance. On one of those occasions, the district attorney had new video discovery for the defense.
The trial was eventually continued to January 25, 2016.
In response to Tarver's allegations, Sheaks said the case was moving along quickly, that he does not remember what motions Tarver wanted filed, but that he has run the motions he thought were meritorious and certain other motions are not made until the trial begins. (See Evid. Code § 402.) Sheaks said the facts of the case did not involve a search or seizure and a motion to suppress evidence pursuant to section 1538.5 was not viable. Sheaks said he attempted to provide Tarver with discovery, but that much of the discovery is contained on 40 compact discs (CD's) and that he cannot go into the jail and play the 40 CD's for his client. He added that he sought to continue the case to permit an investigator time to go to the jail and speak with Tarver, but Tarver refused. Sheaks said he has provided Tarver with certain discovery, and added he is hesitant to provide discovery to in custody clients, because the discovery seems to get passed around to other inmates, as occurred earlier that morning when Tarver was provided with some discovery.
Tarver again complained about his case being tried with his codefendants. He said he asked counsel to sever his case, but that counsel does not want the cases severed. Sheaks said he did not intend to attempt to sever Tarver's case from the other codefendants, because he believes it is better for Tarver to be tried in a joint trial. For example, if the defendants are tried jointly, Mackie's statement to the effect that Tarver helped plan the break-in, participated in every aspect of the crime, and acted as a lookout, could not be admitted into evidence. (See People v. Aranda (1965) 63 Cal.2d 518; Bruton v. United States (1968) 391 U.S. 123.) The court stated it understood counsel's tactical decision, as it would be easier to deflect in a joint trial than in a separate trial. Counsel said Tarver did not appreciate the "reluctance in the law to sever cases," and that there was no demonstrable prejudice to Tarver in proceeding in a joint trial.
The court did not abuse its discretion in finding there was no showing of an irremediable breakdown of the attorney-client relationship. Tarver said he liked Sheaks; he just wanted to see the discovery. Moreover, a disagreement over strategy is not a ground to relieve appointed counsel, absent an irremediable breakdown of the attorney-client relationship. (People v. Crandell (1988) 46 Cal.3d 833, 859-860.) Counsel's tactics were not shown to have been unreasonable. Tarver did not provide a reason for the court to even suspect facts existed which tended to indicate he would suffer prejudice were his trial to remain joined with the trial of Mackie and Yarber.
Sheaks subsequently moved to sever Tarver's trial from the trial of the other defendants. The motion was denied by Judge Cheri Pham, the trial judge.
Tarver made his third Marsden motion at his sentencing hearing. This time, Tarver claimed: Zamora lied about having seen his face for eight seconds; counsel failed to submit a modified jury instruction he requested; counsel did not ask for a judgment of acquittal for lack of evidence, as requested; his probation officer had his telephone number and it was not the 323 cell phone number, but his attorney did not call his probation officer to testify to that fact.
The court addressed each of Tarver's complaints and asked him about the evidence he claimed showed Zamora lied. Tarver said Zamora taped his interview with Erika G., and in the interview she said she did not know what the two robbers inside Ace looked like, but Zamora testified at the preliminary examination that she recognized the robbers' height, weight, and skin tone. However, as the court noted, Erika G. did not identify any of the defendants at trial.
Tarver explained that because Zamora identified him as having been at a bus stop in front of Ace, defense counsel should have brought out that Zamora lied at the preliminary examination about what Erika G. had told him because that evidence reflected on Zamora's credibility. The court asked Tarver if he saw the still photograph taken from the surveillance video. Tarver admitted he was the person in the photograph.
Tarver said counsel did not bring out evidence about a fourth suspect who was arrested a couple of days after him. He said evidence of the fourth suspect should have been brought out, apparently so he would not be thought to have been the person on the telephone who told the robbers to hurry up. Tarver said he rode in the car with the other defendants and the fourth suspect to Orange County on the morning of the robbery. He said they did not stay together once they arrived. Sheaks stated he did not recall seeing that the fourth subject had been arrested. He said that individual, "Mr. Nelson," had been interviewed, but was never charged, and was associated with Tarver. Tarver did not demonstrate counsel was ineffective in failing to introduce evidence of the fourth suspect.
When the court asked Sheaks to address Tarver's concerns, it stated there was no need to address any issue regarding Zamora's testimony, but that counsel should address why he did not have the probation officer testify to Tarver's cell phone number. Counsel did not call the probation officer to testify because counsel had successfully moved to keep out evidence of the fact that Tarver was on probation at the time of the charged crimes. When he weighed the possible prejudice to Tarver by bringing out the fact he was on probation against the limited benefit of having the probation officer testify Tarver had another cell phone number—the prosecution would argue it did not matter whether Tarver had another phone because he also had a burner phone—counsel decided against introducing evidence of the other phone. This tactical cost-benefit analysis was properly made by counsel (People v. Reil (2000) 22 Cal.4th 1153, 1202) and was not unreasonable.
The court noted Tarver's attorney submitted a modified jury instruction, but the court refused to give it because the subject was covered by another instruction. Tarver said that was not the instruction he personally wrote and provided counsel. As Tarver did not say what his proposed instruction stated, the court could not conclude counsel had been ineffective.
Lastly, Tarver complained that counsel failed to bring a motion for a judgment of acquittal. (§ 1118.1.) The court corrected him, stating such a motion had been made and denied. Tarver then said he remembered the court denying the motion.
The court did not abuse its discretion in denying Tarver's third Marsden motion.
2. Cell Phone Evidence
Tarver challenges the admission of the cell phone evidence, specifically the fact that the cell phones in Mackie's and Yarber's possession contained contact lists which included the 323 cell phone number associated with a name: Nard in Yarber's cell phone, and Bernard in Mackie's cell phone. Mackie did not raise or join in these issues.
We review a trial court's decision on the admissibility of evidence, including evidence objected to on Evidence Code section 352 grounds, for an abuse of discretion. (People v. Fuiava (2012) 53 Cal.4th 622, 663 [application of Evid. Code § 352]; People v. Alvarez (1996) 14 Cal.4th 155, 201.) Abuse of discretion is demonstrated when the trial court "exercised its discretion in an arbitrary, capricious, or patently absurd manner." (People v. Rodriguez (1999) 20 Cal.4th 1, 9.) Reversal based on the erroneous admission of evidence is required only when admission "resulted in a manifest miscarriage of justice." (Id. at pp. 9-10.)
The evidence demonstrated Ericka G. was robbed by two men, Mackie and Yarber, who entered Ace through the ceiling. A third man, Tarver, was outside of Ace and was observed talking on a cell phone. While Mackie and Yarber were robbing Ericka G., at least one of them spoke on a cell phone in speaker mode and was told by the person on the other end of the line to "hurry up." Yarber's cell phone showed he received a telephone call at 8:30 a.m. from a person designated in his contacts list as Nard. Data on a cell phone taken from Mackie, and found to contain "selfies" of Mackie, showed a call from the same number. Mackie's contact list designated the caller as "Bernard." The prosecutor argued the evidence was relevant because Tarver's middle name is Bernard and Tarver was seen outside of Ace, on a cell phone. Tarver contends the trial court prejudicially erred in admitting this evidence.
a. Relevance
Tarver claims the contacts information (Nard, Bernard, & the 323 cell phone) was not relevant because the prosecution did not prove he possessed the 323 cell phone, or that he used the names Nard and Bernard. "'Relevant evidence' means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) The contacts list information was relevant. Taken in conjunction with other evidence, it tended to prove Tarver was acting as a lookout during the robbery.
Mackie and Yarber were obviously acquainted—they broke through Ace's ceiling together. The same 323 cell phone was in both their phones. Therefore, it is reasonable to infer the owner of the 323 cell phone was someone Mackie and Yarber knew well enough to put the number in their respective cell phones. All three of the defendants lived in San Bernardino County. The person with the 323 cell phone called Yarber during the robbery and presumably was the same person who told Yarber to "hurry up." Tarver was not only with Mackie early that morning in San Bernardino prior to the robbery, he was on a cell phone outside Ace while the robbery was being committed inside. The jury was entitled to conclude that was not a coincidence. The evidence obtained from Mackie and Yarber's cell phones, even without considering the names attached to the 323 cell phone (Nard & Bernard), taken in conjunction with Tarver having been in San Bernardino earlier that morning with Mackie, Tarver's presence at the scene of the robbery while Mackie was committing the robbery inside Ace, Tarver's use of a cell phone during the robbery, and Yarber speaking on his cell phone to someone during the robbery and being told to "hurry up," tended to prove Tarver acted as a lookout. It is much more likely Yarber took the call from the 323 cell phone because the caller played a part in the robbery, than Yarber decided to chat with a friend while struggling to open the safe and steal thousands of dollars. These inferences are not mere speculation; they are rational inferences and circumstantially prove Tarver aided and abetted the robbery. The evidence was relevant.
b. Hearsay
Tarver contends the names associated with the 323 cell phone do not qualify as computer generated data because they are statements input by people, and constitute inadmissible hearsay. Tarver concedes evidence of the calls made between cell phones and the numbers of the cell phones involved in the calls was generated by the cell phones and was admissible. What he objects to is the evidence that the 323 cell phone involved in those calls belonged to Nard or Bernard.
"'Hearsay evidence' is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." (Evid. Code, § 1200, subd. (a).) "'Statement' means (a) oral or written verbal expression or (b) nonverbal conduct of a person intended by him as a substitute for oral or written verbal expression." (Evid. Code, § 225, italics added.) A computer generated image—that is to say, a record created by an electronic device—is not a statement because it was not made by a person. "'The printout of the results of [a] computer's internal operations is not hearsay evidence. It does not represent the output of statements placed into the computer by out of court declarants. Nor can we say that this printout itself is a "statement" constituting hearsay evidence. The underlying rationale of the hearsay rule is that such statements are made without an oath and their truth cannot be tested by cross-examination. [Citations.] Of concern is the possibility that a witness may consciously or unconsciously misrepresent what the declarant told him or that the declarant may consciously or unconsciously misrepresent a fact or occurrence. [Citation.] With a machine, however, there is no possibility of a conscious misrepresentation, and the possibility of inaccurate or misleading data only materializes if the machine is not functioning properly.' [Citations.]" (People v. Hawkins (2002) 98 Cal.App.4th 1428, 1449 (Hawkins), italics added.)
In People v. Hawkins, the computer generated information admitted into evidence concerned the dates certain files on a computer were accessed. (Hawkins, supra, 98 Cal.App.4th at pp. 1433, 1437.) When the files were last accessed was information generated and recorded by the computer; it was not information placed into the computer by a person. In the present matter, however, the 323 cell phone was associated with a given name in Yarber and Mackie's cell phones. In both instances, the name and telephone number were "'placed into the [cell phones] by out of court declarants.'" (See Hawkins, at p. 1449.) In each instance, the person who input that information into one of the cell phones made the representation that the 323 cell phone belonged to the person named in the contacts list.
The Attorney General argues the contacts list information was admissible under Evidence Code section 1220, as statements of a party opponent. "Evidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party in either his individual or representative capacity, regardless of whether the statement was made in his individual or representative capacity." (Evid. Code, § 1220.) It is quite reasonable to infer the owner of a cell phone is the person who associated names with particular telephone numbers in the contacts list on the cell phone, or if he did not, the association was at least done with his consent. If the entries were made without Mackie's or Yarber's consent, it seems reasonable they would have deleted the entries. Therefore, Evidence Code section 1220 would appear to authorize admission of the contacts list information as against Mackie and Yarber, but there are no facts suggesting Tarver made the entries on the cell phones. Consequently, Tarver was not "the declarant" and Evidence Code section 1220 would not authorize admission of this evidence as against him.
Although the evidence does not show when the contacts information was put into Mackie's and Yarber's cell phones, we know it was done before the robbery. The telephone call log showed calls on the date of the robbery involving the 323 cell phone. If a name was not associated with the number making the call, only the number would have shown up on the call log.
In opposing admission of the contacts information, Tarver argued it would be admissible for one who viewed the cell phones while looking over the owner's shoulder to testify to having seen the contacts information and the names Nard and Bernard, but admission of the Cellebrite document was improper. We fail to see a distinction. In any event, we need not decide this issue, for even if we were to assume admission of the names (Nard & Bernard) associated with the 323 cell phone was error, any such error was harmless.
All the defendants were from San Bernardino. Early in the morning of the robbery, Tarver was with Mackie in San Bernardino. Hours later, Tarver was in Orange County, outside of Ace, while Mackie was inside of Ace with Yarber, committing a robbery after having entered through the ceiling. Tarver was observed on a cell phone while outside of Ace. One of the robbers was on his cell phone during the robbery and was told to "hurry up" by the caller. Ignoring the name associated with the 323 cell phone number, it is more reasonable to conclude the caller with the 323 cell phone was in cahoots with the robbers inside the store, than to conclude a robber decided to take a call from a friend just to talk in the middle of a robbery. And when the police arrived just minutes later, after receiving the alarm from within Ace, Mackie, Yarber, and Tarver were gone. The evidence of Tarver's involvement in the robbery was overwhelming. The fact that the 323 cell phone that called during the robbery was associated with Nard and Bernard, did not prejudice Tarver.
c. Evidence Code section 352
Tarver next contends the cell phone contacts information should not have been admitted because its relevance was substantially outweighed by its prejudicial effect. "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.) Evidence is properly excluded under this section if "'it poses an intolerable "risk to the fairness of the proceedings or the reliability of the outcome" [citation].' [Citation.] 'The admission of relevant evidence will not offend due process unless the evidence is so prejudicial as to render the defendant's trial fundamentally unfair.' [Citation.]" (People v. Jablonski (2006) 37 Cal.4th 774, 805.)
Evidence of the 323 cell phone was not more prejudicial than probative. Tarver was observed outside Ace and photographic evidence showed him on a cell phone while he was in the parking lot of Ace. Evidence of the 323 cell phone circumstantially connected Tarver with the robbery going on inside Ace at the same time he was outside of Ace on a cell phone. It explains why Yarber accepted a cell phone call from the 323 cell phone during the robbery, and why the caller told Yarber to "hurry up."
d. Burner Phone
As noted above, Haydon testified the 323 cell phone did not have a registered owner. Haydon testified such cell phones are commonly purchased from a 7-Eleven store without the need of providing a name or Social Security number. Police often refer to such a phone as a "burner phone." Stanley said burner phones can be used to avoid police detection.
"A profile is a collection of conduct and characteristics commonly displayed by those who commit a certain crime. One court has described profile evidence as 'a listing of characteristics that in the opinion of law enforcement officers are typical of a person engaged in a specific illegal activity.' [Citation.]" (People v. Robbie (2001) 92 Cal.App.4th 1075, 1084 (Robbie).) In Robbie, the defendant was charged with a number of sex offenses against a 16-year-old girl. (Id. at p. 1077.) The trial court permitted the prosecution, over the defendant's objections, to introduce testimony of a law enforcement expert to the effect that the defendant's statements to the alleged victim consisted of "'the most prevalent type of behavior pattern that I have seen with sex offenders.'" (Id. at p. 1083.)
The Robbie court explained why profile evidence is inadmissible and prejudicial. Profile evidence uses the following syllogism: "criminals act in a certain way; the defendant acted that way; therefore, the defendant is a criminal. Guilt flows ineluctably from the major premise through the minor one to the conclusion. The problem is the major premise is faulty. It implies that criminals, and only criminals, act in a given way. In fact, certain behavior may be consistent with both innocent and illegal behavior, as the People's expert conceded here." (Robbie, supra, 92 Cal.App.4th at p. 1085.) As a result of profile evidence, a jury is led to conclude that if a guilty person engages in the same conduct the defendant engaged in, then the defendant is guilty too, notwithstanding the fact that the defendant's conduct is also consistent with innocence. (Ibid.)
In People v. Martinez (1992) 10 Cal.App.4th 1001, the appellate court disallowed profile evidence in an auto theft case to the effect that the defendant's conduct was consistent with the conduct of others who have been involved in the theft of vehicles. (Id. at pp. 1003-1006.) In finding the evidence inadmissible, the appellate court stated, "While the similarities may be a proper consideration for law enforcement in investigating criminal activity, they are inappropriate for consideration on the issue of guilt or innocence for the very reason given in the drug courier profile cases: the potential of including innocent people as well as the guilty." (Id. at p. 1006.)
The brief reference to burner phones in the present case does not compare with the prohibited profile evidence found in Robbie, supra, 92 Cal.App.4th 1075, and People v. Martinez, supra, 10 Cal.App.4th 1001. Haydon said he had experience with drug dealers using burner phones when he worked in narcotics. He said those dealing drugs used the phones to elude police detection. Unlike the situation presented in Robbie, Haydon was not presented with facts in a hypothetical question and asked his opinion about those facts. (Robbie, at pp. 1082-1083.) And unlike the situation in Martinez, Haydon did not testify about his experience with individuals charged with the same crime as Tarver. Haydon did not "profile" Tarver's conduct or compare it with conduct of others he investigated for similar crimes. (Martinez, at p. 1006.)
Still, the faulty syllogism used in profiling exists here to a lesser extent. The initial premise—that drug dealers use burner phones to allude police detection—is equally flawed here. While burner phones may be used to avoid police detection by drug dealers, they are also a cheaper means of acquiring and using a cell phone, something that appears to be a necessity in today's society. It is fair to say innocent individuals, including those with credit issues that may prevent them from purchasing an iPhone or other smart phone and a data plan from a network provider, may also purchase "burner" phones because these phones are a cheaper means of owning and using a cell phone. The testimony about the burner phone and their use to elude police detection did not amount to profile evidence because Haydon did not testify to any conduct of Tarver being consistent with Haydon's experience. Neither was he asked a hypothetical question, concerning whether Tarver's use of a cell phone was consistent with using a burner phone to elude the police.
Even if the court erred in permitting Haydon to briefly testify to his experience with burner phones, any error was harmless. Wrongfully admitted profile evidence is not reversible per se. (Robbie, supra, 92 Cal.App.4th at p. 1088.) Reversal is mandated only when "after an examination of the entire cause, including the evidence,' is of the 'opinion' that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (People v. Watson (1956) 46 Cal.2d 818, 836; Robbie, supra, 92 Cal.App.4th at p. 1088.) That showing has not been made here, Haydon's comment concerning "burner" phones and their use to elude police attention was brief and limited. He did not opine that Tarver's conduct was consistent with one who has committed a robbery or burglary, or one who has undertaken to act as a look out. Also, the prosecutor did not bring up in his arguments to the jury the issue of burner phones being used to elude the police. 3. Count 6 (§ 136.1, subd. (a)(2))
a. Sufficiency of the Evidence
Tarver contends the evidence does not support any of the guilty verdicts because it failed to show he aided and abetted the acts inside Ace. That contention will be addressed in the next section, infra.
Mackie and Tarver contend the evidence does not support their convictions for attempting to dissuade a witness in violation of section 136.1, subdivision (a)(2), as charged in count 6 and reflected in the jury's verdicts. Subdivision (a)(2) of section 136.1 makes it an offense for one to "[k]nowingly and maliciously attempt[] to prevent or dissuade any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law." The Attorney General counters that while the information charged a violation of section 136.1, subdivision (a)(2), the defendants knew they were being tried for a violation of section 136.1, subdivision (b)(1), and the jury was instructed pursuant to subdivision (b)(1) of that section without defendants' objections. Subdivision (b)(1) of section 136.1 makes it an offense for one to attempt to dissuade a victim of or a witness to a crime from making a report to law enforcement. The Attorney General requests that we order the subdivision on the verdict forms for count 6 and the abstract of judgment amended to reflect a conviction for a violation of section 136.1, subdivision (b)(1).
Tarver joined in Mackie's argument.
The defendants were charged in the felony complaint with a violation of section 136.1, subdivision (a)(2). At the preliminary examination, a police officer testified Erika G. told him one of the men said to her before leaving, "I have your I.D. so you better fucking watch it." Thereafter, the information and the amended information again charged a violation of section 136.1, subdivision (a)(2). At trial, Erika G. testified one of the two robbers told her, "I have your I.D. You better fucking watch it." Although the pertinent jury instruction purported to set forth the elements of section 136.1, subdivision (a)(2), it instructed on the elements of subdivision (b)(1) of section 136.1: "To prove that a defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant maliciously tried to discourage Erika G. from making a report that she was a victim of a crime to the police; [¶] Erika G. was a witness or crime victim; [¶] [and] [¶] 3. The defendant knew he was trying to discourage Erika G. from reporting the crime to the police and intended to do so." The jury returned guilty verdicts on count 6 for attempting to dissuade a witness in violation of section 136.1, subdivision (a)(2).
The testifying officer referred to Erika G. as Jane Doe. --------
In reviewing a sufficiency of the evidence claim, an appellate court's obligation is to view "'the evidence in the light most favorable to the prosecution'" and determine whether "'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" (People v. Johnson (1980) 26 Cal.3d 557, 576, quoting Jackson v. Virginia (1979) 443 U.S. 307, 318-319.) For the evidence to support the challenged conviction, the evidence must be "'of ponderable legal significance . . . reasonable in nature, credible, and of solid value.' [Citations.]" (Ibid.)
The evidence does not support a conviction for violation of subdivision (a)(2) of section 136.1. As there was no case pending at the time the statement was made to Erika G., it cannot be the statement was made with the intent to prevent her from appearing in court to testify. (See People v. Fernandez (2003) 106 Cal.App.4th 943, 945 [threat as effort to dissuade victim from reporting crime does not include an attempt to dissuade the person from testifying].) There was sufficient evidence to support a conviction for violation of subdivision (b)(1) of section 136.1, the crime the jury was instructed on and which the jury found beyond a reasonable doubt. The statement made to Erika G. could reasonably be interpreted as an effort to dissuade her from reporting the incident to the police. (§ 136.1, subd. (b)(1).) Next we address whether the verdicts should be modified to reflect a conviction for a violation of subdivision (b)(1) of section 136.1, as suggested by the Attorney General.
b. Modification of the Verdicts
As a general rule, other than a necessarily included lesser offense, a defendant may not be convicted of an offense not charged in the information or indictment. (In re Fernando C. (2014) 227 Cal.App.4th 499, 502-503.) This restriction is based on a defendant's due process right to notice of the charge that must be defended against. (Ibid.) The due process right to adequate notice in order to prepare for trial "is satisfied when the accused is advised of the charges against him so that he has a reasonable opportunity to prepare and present a defense and is not taken by surprise by the evidence offered at trial." (People v. Ramirez (2003) 109 Cal.App.4th 992, 999.)
A charging allegation in an information is not the sin qua non of the notice required by due process. "A mistake in designating the statute on which a charge is based or in naming an offense is "'immaterial unless the defendant is misled thereby . . . .'" [Citation.] Consistent with this authority, we may not conclude that a [charging document] is insufficient, or set aside a guilty plea or sentence unless we first determine that a "defect or imperfection in matter of form' has 'prejudice[d] a substantial right of the defendant upon the merits.' [Citation.]" (People v. Ramirez, supra, 109 Cal.App.4th at p. 999.) The evidence presented at the preliminary examination provided the defendants with the notice of the evidence to defend against. "'[I]n modern criminal prosecutions initiated by informations, the transcript of the preliminary hearing, not the accusatory pleading, affords defendant practical notice of the criminal acts against which he must defend.'" (People v. Jones (1990) 51 Cal.3d 294, 317.) The transcript of the preliminary examination, taken in conjunction with the information, notified the defendants the prosecution was charging them in count six based on the statement made to Erika G. about having her I.D. and the need for her to "watch it" because the defendants knew where she lived.
Section 1009 permits a prosecutor to amend an information "at any stage of the proceedings" with leave of court. There are two limitations to the ability to amend an information at any time. First, the amended charge must be supported by evidence from the preliminary examination. (See § 739 [information "may charge the defendant with either the offense or offenses named in the order of commitment or any offense or offenses shown by the evidence taken before the magistrate to have been committed"].) Second, the amendment must not prejudice the defendant. (People v. Graff (2009) 170 Cal.App.4th 345, 361-362.) Thus, the prosecution could have amended the information in this case at trial, unless the defendants established they would be prejudiced by the amendment. There is nothing in the briefs suggesting defendants were somehow misled by count six in the information, such that the charge could not have been amended at trial. Defendants did not object to the jury being instructed on the elements of section 136.1, subdivision (b)(1) instead of the elements of subdivision (a)(2) of that same section. Neither did defense counsels' arguments to the jury demonstrate any prejudice. They did not argue the existence or nonexistence of the elements of section 136.1, subdivision (a)(2).
We agree with the Attorney General that defendants forfeited the issue in this matter. The preliminary examination transcript provided defendants with sufficient notice of the theory of prosecution. They knew the threat made to Erika G. inside the store was the basis of a criminal charge. The defendants did not object to the proposed instruction on count 6. That instruction set forth the elements of the crime of attempting to dissuade a victim from reporting a crime to the police. (See People v. Toro (1989) 47 Cal.3d 966, 970 [defendant found to have impliedly consented to conviction on a lesser-related offense when he did not object to the jury being instructed on that offense].) Neither did defense counsel argue to the jury that defendants were not guilty on count 6 because the attempt was not to dissuade Erika G. from testifying, but to dissuade her from reporting the crime.
The fact that the court instructed the jury on count 6 pursuant to section 136.1, subdivision (b)(1), and our finding that modifying the verdicts to reflect conviction for a violation of that section instead of section 136.1, subdivision (a)(2), renders moot Mackie's contention that the trial court prejudicially erred by failing to instruct the jury pursuant to subdivision (a)(2) of section 136.1. 4. There Was Sufficient Evidence of Aider and Abettor Liability on Tarver's Part.
Tarver argues: (1) the prosecution's theory was that he intended to aid and abet the robbery; (2) without proof of an intent to aid and abet any of the remaining charged crimes, his liability must be based on the natural and probable consequences theory of aider and abettor liability; and (3) there was no evidence Tarver aided and abetted Mackie and Yarber in the commission of any offense. According to Tarver, all the prosecution proved was he was on a cell phone outside of Ace while Mackie and Yarber were inside. He contends the prosecution failed to show he knew what Mackie and Yarber were doing and that he aided and abetted them. Not so.
Section 31 provides in relevant part: "All persons concerned in the commission of a crime, . . . whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission, . . . are principals in any crime so committed." Thus, generally "'an aider and abetter [must] act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.' [Citation.]" (People v. Prettyman (1996) 14 Cal.4th 248, 262.)
In the early morning hours of May 11, 2015, Tarver was with Mackie in San Bernardino County, where they—and Yarber—lived. Hours later, Mackie and Tarver are together in Orange. Tarver was outside Ace at the same time Mackie and Yarber broke into the store and were committing the robbery. Although Tarver claims any conclusion that he aided and abetted the robbery and burglary is the result of impermissible speculation, the jury was entitled to infer Tarver's presence at the scene of the burglary/robbery was not a coincidence and that he aided and abetted Mackie's purpose, knowing Mackie's criminal intent. Not only was Tarver outside of Ace while his codefendants were inside committing the robbery, Tarver was on his cell phone while the crimes were being committed. Moreover, Yarber was on his cell phone during the robbery too, and was told by the other person on the line to "hurry up," something a lookout could be expected to advise his crime partner. That it is but a coincidence that Tarver was only outside the Ace store during a robbery by the person he had been with in another county just hours earlier strains credulity. (See People v. Campbell (1994) 25 Cal.App.4th 402, 409 [presence at scene of crime together with companionship before the crime may be considered in determining whether evidence supports conviction based on aiding and abetting].) There is substantial evidence Tarver aided and abetted the robbery and burglary with the requisite intent.
Burglary was clearly intended because the object was to steal the money from inside Ace. Robbery, too, was clearly intended. The money was in a safe and Mackie and Yarber did not have safe-cracking items with them. The burglars needed an employee to help them open the safe by giving them the combination to the safe. If robbery was not intended, the burglary would have been committed at a time when the store was closed, and not when an employee was scheduled to open the store for business. That robbery was intended is further evidenced by Yarber and Mackie having duct tape with them and using it to tie up Erika G. Duct tape has many useful purposes. Opening a safe is not one of them. Binding people apparently is. (See People v. Bonilla (2007) 41 Cal.4th 313, 322 [victim's head was duct taped]; People v. Jablonski, supra, 37 Cal.4th at p. 785 [duct tape used to cover victim's mouth and nose]; People v. Coffman and Marlowe (2004) 34 Cal.4th 1, 33 [duct tape used to bind victim's ankles].)
There is, however, no substantial evidence that Tarver intended to aid and abet Mackie or Yarber in committing the remaining crimes for which all the defendants were convicted (false imprisonment, attempting to dissuade a victim from reporting a crime, & making a criminal threat). Any liability on Tarver's part for these offenses must be based on the natural and probable consequences theory of aider and abetter liability.
An aider and abetter is liable not only for those offenses he knew about and intended to encourage or facilitate, but also for offenses committed by the perpetrator which are the natural and probable consequences of committing the underlying intended offense. (People v. Medina (2009) 46 Cal.4th 913, 921.) Under the natural and probable consequences theory of aider and abetter liability, "the trier of fact must find that the defendant, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of a predicate or target offense; (3) by act or advice aided, promoted, encouraged or instigated the commission of the target crime. But the trier of fact must also find that (4) the defendant's confederate committed an offense other than the target crime; and (5) the offense committed by the confederate was a natural and probable consequence of the target crime that the defendant aided and abetted." (People v. Prettyman, supra, 14 Cal4th at p. 262, fn. omitted.)
For purposes of our analysis, the issue is whether false imprisonment, attempting to dissuade a victim from reporting a crime, and making a criminal threat are natural and probable consequences of robbery or burglary, the crimes Tarver intended to aid and abet. "Liability under the natural and probable consequences doctrine 'is measured by whether a reasonable person in the defendant's position would have or should have known that the charged offense was a reasonably foreseeable consequence of the act aided and abetted.' [Citation.]" (People v. Medina, supra, 46 Cal.4th 913, 920.)
False imprisonment of the victim of a robbery inside an enclosed place like Ace was a natural and probable consequence of the robbery. A victim's natural reaction may very well be to flee. As the robber's intent is to steal from the victim using force or fear, it is reasonable to foresee the victim attempting to flee and force being used to prevent the flight. The evidence supports Tarver's conviction for false imprisonment on a natural and probable consequences theory of aider and abettor liability.
Likewise, the evidence supports Tarver's conviction for a criminal threat in violation of section 422. Again, robbery involves the use of force or fear. Making threats instills fear in the victim. It is reasonably foreseeable that a robber will threaten his victim during the course of a robbery. The evidence supports Tarver's convictions for criminal threats and attempting to dissuade the victim from reporting the crimes on a natural and probable consequences theory of aider and abettor liability.
A reasonable person in Tarver's position would have or should have known that an attempt to dissuade the Ace employ from reporting the robbery was a foreseeable consequence of the robbery he aided and abetted. The threat was made in an effort to successfully escape from the store and avoid prosecution. The connection between the robbery and the attempt to dissuade Erika G. from reporting the robbery (the target crime) is close. The evidence supports Tarver's conviction for attempting to dissuade Erika G. from reporting the robbery and burglary on a natural and probable consequences theory of aider and abettor liability.
5. Section 654
a. Count 4 (Burglary)
In sentencing Mackie, the trial court imposed a consecutive eight-month term of imprisonment based on his burglary conviction. In sentencing Tarver, the court imposed a six-year concurrent term of imprisonment based on his burglary conviction. Mackie and Tarver contend the trial court erred in not staying the punishment imposed on their respective burglary convictions pursuant to section 654. The Attorney General rightfully concedes the issue.
"An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." (§ 654.) Section 654 does not bar multiple convictions; it prohibits multiple punishment where two crimes "were part of an indivisible course of conduct directed to the objective of committing the lesser of the crimes." (People v. Beaumaster (1971) 17 Cal.App.3d 996, 1008.)
The trial court erred in not staying the sentences on the burglary convictions (count 4) pursuant to section 654. The court's error came in concluding section 654 did not apply because the burglary was completed when Mackie and Yarber made their entry into Ace, and the robbery occurred after the burglary had been completed. As the Attorney General acknowledges, the defendants harbored the specific intent to steal when they entered Ace. Robbery was the intended method of committing the theft. The thieves intended to steal at the time of the entry into Ace. More specifically, the thieves intended to steal by means of robbery. The money was in the store's safe and it is evident Mackie and Yarber did not intend to crack the safe. They intended to force an employee to assist them in opening the safe. Thus, there was but one intent and course of action. (See People v. Perry (2017) 154 Cal.App.4th 1521, 1527-1528 [robbery and burglary had same intent and section 654 applied].)
The sentences imposed on the burglary convictions (count 4) are reversed. The matter is remanded for sentencing. Any sentence on count 4 shall be ordered stayed pursuant to section 654.
DISPOSITION
The convictions on count 6 (violation of § 136.1, subd. (a)(2)) are amended to reflect conviction for violation of section 136.1, subdivision (b)(1). The sentences imposed on the convictions for burglary (count 4) are reversed. The matters are remanded for resentencing. Any sentence on count 4 must be stayed pursuant to section 654. In all other respects the judgments are affirmed.
THOMPSON, J. WE CONCUR: MOORE, ACTING P. J. FYBEL, J.