Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from judgments of the Superior Court of Los Angeles County No. BA212836. William R. Pounders, Judge.
Verna Wefald, under appointment by the Court of Appeal, for Defendant and Appellant Manuel Rodriguez.
Janyce Keiko Imata Blair, under appointment by the Court of Appeal, for Defendant and Appellant Victor Pena.
Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant Jose Soto
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Ana R. Duarte and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
CHAVEZ, J.
This case is before us for a second time, following remand from the Supreme Court of the United States for further consideration in light of Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham), which held that California’s determinate sentencing law (DSL) violates a defendant’s federal constitutional right to a jury trial by assigning to the trial judge, rather than the jury, the authority to make factual findings that subject a defendant to the possibility of an upper term sentence.
In their initial consolidated appeal, Victor Pena (Pena), Jose Soto (Soto), and Manuel Rodriguez (Rodriguez) (collectively, appellants), appealed from judgments entered upon their convictions by jury of robbery (Pen. Code, § 211) and related counts. On April 27, 2006, we filed an opinion affirming the judgments in all respects. Thereafter, appellant Rodriguez filed a petition for writ of certiorari before the United States Supreme Court. The Supreme Court granted Rodriguez’s petition, vacated the judgment of this court, and remanded the matter to us for further consideration in light of Cunningham. We again affirm the judgments in their entirety.
All further statutory references are to the Penal Code unless otherwise indicated.
The Supreme Court’s order only concerned appellant Rodriguez. With the exception of the discussion of the recent decisions in Cunningham and related California Supreme Court decisions, and the effect of these cases on Rodriguez’s sentence, this opinion is substantially the same as the opinion filed on April 27, 2006.
FACTS AND PROCEDURAL HISTORY
1. The robberies and arrests
Between June 2000 and January 2001, appellants participated in a series of armed robberies of Wherehouse Music and Radio Shack stores. In addition to robbing the establishments of both money and merchandise, appellants took money, cellphones, and other personal property from employees and customers. Appellants brandished guns during the robberies, and threatened the victims with these weapons. During this time period, Soto and Rodriguez also carried out a carjacking, and Rodriguez robbed a Sav-On store.
Acting on a tip which they received following a press conference, the Los Angeles Police Department set up a surveillance of Pena’s residence. On January 24, 2001, police detectives observed Soto and Rodriguez leaving the residence. The detectives followed the two men and witnessed them carry out a carjacking. Soto and Rodriguez, who were documented Harpys gang members, were arrested later that day as they dined in a restaurant.
Pena was arrested as he exited his home on January 24, 2001, and was interviewed by police detectives at the police station that same day. Audiotapes of the interview were played at trial, and the jury was given a transcription of the interview. In the interview, Pena stated that he grew up with the Harpys gang and associated with them. Pena denied that he was a gang member. During the interview, Pena also admitted that a suspect in a photograph taken from surveillance videos of one of the Wherehouse stores looked like him, and indicated that he thought he had participated in robberies of four Radio Shack stores and two Wherehouse stores.
In a 111-count information filed by the Los Angeles County District Attorney, appellants were jointly charged with numerous crimes, including robbery, carjacking, assault with a deadly weapon, and possession of a firearm by a felon. As to all counts, it was further alleged that each crime was committed for the benefit of a street gang and that a principal to each offense was armed with a firearm. The trial court ordered dual juries, one for Pena and the other for Rodriguez and Soto.
2. Pena’s convictions and sentences
Pena’s jury found him guilty of seven counts of second degree robbery (§ 211, subd. (a)(1)), and one count of attempted robbery (§§ 664/211). The jury further found the gang sentencing allegations under section 186.22, subdivision (b)(1) and the principal armed sentencing allegations under section 12022, subdivision (a)(1) to be true. Additionally, the jury found the personal firearm sentencing allegations under sections 12022.5, subdivision (a)(1) and section 12022.53, subdivision (b) to be true as to all but one of the robbery counts and the attempted robbery count.
In sentencing Pena, the trial court selected count seven, a robbery count, as the base term. It imposed the upper term of five years for this offense, plus 10 years pursuant to the personal firearm use enhancement under section 12022.53, subdivision (b), and three years pursuant to the gang-related enhancement under section 186.22, subdivision (b)(1). The court stayed sentencing for section 12022, subdivision (a) and section 12022.5. The court imposed subordinate consecutive terms for the remaining counts as follows: for five of the remaining robbery counts, as to each count, one year, plus three years four months for the section 12022.53, subdivision (b) enhancements; for the remaining robbery count, one year; and for the attempted robbery count, eight months. The sentences were imposed consecutively for an aggregate term of 46 years four months.
3. Soto’s convictions and sentences
The second jury found Soto guilty of 46 counts of second degree robbery (§ 211, subd. (a)(1)), eight counts of being a felon in possession of a firearm (§ 12021, subd. (a)(1)), one count of carjacking (§ 215, subd. (a)), and one count of assault with a firearm (§ 245, subd. (a)(2)). As to each of the crimes, the jury found the principal armed enhancements under section 12022, subdivision (a)(1) to be true. As to 28 of the robbery counts, the jury found the personal firearm enhancements under section 12022.5, subdivision (a)(1) and section 12022.53, subdivision (b) to be true.
In sentencing Soto, the trial court selected count one, a robbery count, as the base term. It imposed the upper term of five years for this offense, plus 10 years pursuant to the personal firearm use enhancement under section 12022.53, subdivision (b). On each of the remaining robbery counts, Soto was sentenced to one year. On 27 of those counts, the court also imposed three years four months for the section 12022.53, subdivision (b) enhancements. The trial court further sentenced Soto to one year eight months for the carjacking count, one year for the assault with a firearm count, and eight months for each of the eight felon in possession of a firearm counts. The sentences were imposed consecutively for a total term of 158 years.
4. Rodriguez’s convictions and sentences
The second jury found Rodriguez guilty of 61 counts of second degree robbery (§ 211, subd. (a)(1)), eight counts of being a felon in possession of a firearm (§ 12021, subd. (a)(1)), and one count of assault with a deadly weapon (§ 245, subd. (a)(2)). With the exception of three of the robbery counts, the jury found the principal armed enhancements under section 12022, subdivision (a)(1) to be true as to each of the crimes. Additionally, as to 14 of the robbery counts, the jury found the personal firearm enhancements under section 12022.5, subdivision (a)(1) and section 12022.53, subdivision (b) to be true.
In sentencing Rodriguez, the trial court used count two, a robbery count, as the base term. It imposed the upper term of five years for this offense, and 10 years pursuant to the personal firearm use enhancements under section 12022.53, subdivision (b). On each of the remaining robbery counts, Rodriguez was sentenced to one year. The trial court further sentenced Rodriguez to eight months for each of the eight felon in possession of a firearm counts, one year for assault with a deadly firearm count, and three years four months for each of the firearm enhancements. The sentences were imposed consecutively for a total term of 118 years.
CONTENTIONS
Appellants contend that the trial court’s imposition of upper and/or consecutive terms of punishment on the basis of aggravating factors not specifically found to be true by a jury or admitted to by appellants was unconstitutional under Blakely v. Washington (2004) 542 U.S. 296 (Blakely). In addition, Soto and Rodriguez contend that the sentences on seven of their eight firearms possession counts should be stayed under section 654 because they arose out of the same conduct supporting the related robbery counts and the section 12022.53 firearm enhancements to those counts.
In addition to these common issues, Pena and Soto each raise further individual contentions. Pena contends that: (1) the trial court erred in admitting statements he made to police after he asserted his right to counsel during an interview following his arrest; and (2) the trial court’s imposition of the upper term as to count seven, the base term, should be reversed because the trial court failed to state reasons for imposing the upper term.
Soto contends that: (1) there was insufficient evidence to support his carjacking conviction; (2) the trial court committed prejudicial error in failing to instruct the jury that the force necessary for carjacking is more than that necessary to simply take the car from the victim; and (3) there was insufficient evidence to support the robbery count as to the victim William Doe.
On remand from the United States Supreme Court, Rodriguez argues that the court’s imposition of the upper term for the base count (count 2) because of the number and seriousness of Rodriguez’s prior convictions violates the Sixth Amendment to the United States Constitution, and that the error should not be subject to a harmless error analysis. Rodriguez further argues that the court’s imposition of consecutive sentences, rather than concurrent sentences, violates the Sixth Amendment.
DISCUSSION
I. Rodriguez’s sentence after Cunningham
We first address the issues raised by Rodriguez following remand of his case from the United States Supreme Court. In this section, we discuss the effect of the United States Supreme Court’s decision in Cunningham, as well as the subsequent decisions of the California Supreme Court in People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval), on Rodriguez’s sentence.
A. Applicable case law
At the time of the issuance of our previous opinion in this matter, People v. Black (2005) 35 Cal.4th 1238, 1246 (Black I) was the controlling authority regarding the constitutionality of California’s DSL, which allowed the trial court to rely on aggravating facts that have not been found true by a jury in selecting the upper term sentence or imposing consecutive sentences. (Id. at p. 1248.) Black I held California’s sentencing scheme to be constitutional, reasoning that “the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence or consecutive terms under California law does not implicate a defendant’s Sixth Amendment right to a jury trial.” (Id. at p. 1244.)
Cunningham is the most recent in a line of United States Supreme Court cases considering the Sixth Amendment right to trial by jury in the context of sentencing law. In Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), the United States Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Id. at p. 490.) The high court subsequently stated that “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. [Citations.]” (Blakely, supra, 542 U.S. at p. 303.) The high court recently made it clear that, “[i]n accord with Blakely, . . . the middle term prescribed in California’s statutes, not the upper term, is the relevant statutory maximum. [Citation.]” (Cunningham, supra, 127 S.Ct. at p. 868.) The court therefore held that the California determinate sentencing law was unconstitutional to the extent it authorized the trial court to impose an upper term sentence based on facts that were found by the court, rather than by a jury beyond a reasonable doubt. (Id. at p. 871 [“[b]ecause the DSL authorizes the judge, not the jury, to find the facts permitting an upper term sentence, the system cannot withstand measurement against our Sixth Amendment precedent”].)
The United States Supreme Court remanded Black I to the California Supreme Court for reconsideration in light of its holding in Cunningham. On remand in Black II, the California Supreme Court made it clear that “under the line of high court decisions beginning with [Apprendi], and culminating in [Cunningham], the constitutional requirement of a jury trial and proof beyond a reasonable doubt applies only to a fact that is ‘legally essential to the punishment’ [citation], that is, to ‘any fact that exposes a defendant to a greater potential sentence’ than is authorized by the jury’s verdict alone [citation].” (Black II, supra, 41 Cal.4th at p. 812.) Thus, “as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial.” (Ibid.)
The California Supreme Court further explained that the right to a jury trial does not apply to the fact of a prior conviction. (Black II, supra, 41 Cal.4th at p. 818; Sandoval, supra, 41 Cal.4th at pp. 836-837.) Moreover, the “‘prior conviction’ exception” must not be read too narrowly; it includes “not only the fact that a prior conviction occurred, but also other related issues that may be established by examining the records of the prior convictions. [Citations.]” (Black II, at p. 819.)
With these principles in mind, we turn to Rodriguez’s specific claims of error.
To the extent that the issue of forfeiture is properly before us, Rodriguez forfeited this claim. Rodriguez concedes that he did not raise this issue during his sentencing hearing. However, Rodriguez argues that he did not forfeit his claim by failing to object because “the law as to whether prior convictions may be relied on to increase sentences was and is in a state of flux.” We disagree. Rodriguez was sentenced on January 7, 2005, more than six months after the United States Supreme Court’s decision in Blakely was issued, but five months before the California Supreme Court’s decision in Black I was handed down. The trial court specifically stated that it was being conservative as to what factors it was considering as aggravating factors in light of Blakely. As noted in Black II, “[i]n determining whether the significance of a change in the law excuses counsel’s failure to object at trial, we consider the ‘state of the law as it would have appeared to competent and knowledgeable counsel at the time of trial.’ [Citation].” (Black II, supra, 41 Cal.4th at p. 811.) Competent and knowledgeable trial counsel would have been aware of Blakely and asserted a proper objection at the time of the trial court’s purported sentencing error. However, as we will discuss, even if these claims were not forfeited, Rodriguez’s claims of sentencing error lack merit.
B. Rodriguez’s assertions of sentencing error
In sentencing Rodriguez, the trial court imposed the upper term of five years on count 2 (robbery), citing the number and seriousness of Rodriguez’s prior convictions. In his supplemental brief, Rodriguez acknowledges that “the jury did find he had prior felony convictions when it found him guilty of being a felon in possession of a firearm on counts 20, 30, 42, 45, 60, 64, 94, and 108-110.” Citing Black II, Rodriguez also acknowledges that “the California Supreme Court has rejected the claim that prior convictions may not be used to impose the upper term without violating the Sixth Amendment.” Rodriguez concedes that we are required to follow the authority of Black II on this issue, but raises it solely to “preserve the constitutional issue.”
Rodriguez has two prior adult felony convictions: auto theft (Veh. Code, § 10851) and assault with a deadly weapon (§ 245, subd. (a)(1)).
As acknowledged by Rodriguez, the trial court’s reliance on Rodriguez’s criminal history in imposing the upper term was permissible under Black II.
Rodriguez further argues that the trial court’s imposition of consecutive sentences, rather than concurrent sentences, runs afoul of the Sixth Amendment requirements set forth in the Apprendi-Blakely-Cunningham line of cases. Rodriguez claims that the imposition of consecutive sentences after the trial court’s finding that “there were separate victims of violence” violates Rodriguez’s Sixth Amendment rights. However, Rodriguez acknowledges that in Black II, the California Supreme Court rejected the notion that the Sixth Amendment principles set forth in Cunningham applies to consecutive sentencing under section 669. (Black II, supra, 41 Cal.4th at p. 821.)
In light of contrary holdings in the state of Ohio (State v. Foster (Ohio 2006) 845 N.E.2d 470) and Washington (In re Van Delft (Wash. 2006) 147 P.3d 573), Rodriguez asserts that the decision in Black II with respect to consecutive sentences is incorrect. Nevertheless, this court is bound to follow the controlling authority of the Supreme Court (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455). We therefore conclude that Rodriguez’s sentence comports with the legal principles set forth in Cunningham, Black II, and Sandoval, and we decline to disturb it.
II. The asserted Blakely error
This portion of the opinion applies only to Pena and Soto. Because the prior judgment was not vacated as to Pena or Soto, neither of these appellants is properly before this court at this time. Therefore, this section remains substantially the same as initially set forth in the April 2006 opinion. Pena and Soto may seek relief on their Cunningham claims by bringing a petition for writ of habeas corpus in the superior court.
Appellants contend that pursuant to Blakely, supra, 542 U.S. 296, the trial court’s imposition of upper and consecutive sentences on the basis of aggravating factors not specifically found true by a jury or admitted to by the appellants violates their constitutional right to a jury trial.
The record shows that the trial court imposed appellants’ sentences in accordance with the guidelines set forth in California’s determinate sentencing law in place at the time. In conformity with those guidelines, the trial court relied on aggravating facts not specifically found by a jury in imposing the upper term and consecutive sentences on all three appellants.
In Blakely, the United States Supreme Court held that a defendant in a criminal case is entitled to a jury trial on any fact that increases the maximum sentence to which the defendant is exposed for a particular offense, unless that fact has been admitted by the defendant or is based on the defendant’s prior convictions. (Blakely, supra, 542 U.S. at pp. 304-305.) Appellants claim that California’s determinate sentencing law is unconstitutional under Blakely in that it permits imposition of upper and consecutive terms without factual findings by a jury. This contention was rejected by the California Supreme Court in Black I, which concluded that “the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence or consecutive terms under California law does not implicate a defendant’s Sixth Amendment right to a jury trial.” (Black I, supra, 35 Cal.4th at p. 1244.)
At the time that this opinion was issued in April 2006, this court was bound by the decision in Black I. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455 [“Courts exercising inferior jurisdiction must accept the law declared by courts of superior jurisdiction”].) Appellants Pena and Soto presented no issues not resolved by the Supreme Court in Black I. At this time, our prior decision that there was no error in the trial court’s imposition of upper and consecutive terms remains in effect as to Pena and Soto. As set forth above, appellants may seek relief on their Cunningham claims by bringing a petition for writ of habeas corpus in the superior court.
III. Multiple punishment claims
Soto and Rodriguez contend that the trial court’s failure to stay the sentences on seven of their eight felon in possession of a firearm counts was impermissible under section 654. Soto and Rodriguez advance two arguments in support of this contention. First, they argue that the sentences for these possession charges must be stayed because the conduct underlying the possession offenses was the same as the conduct giving rise to the corresponding robbery convictions. Alternatively, they contend that the sentences for these possession charges must be stayed because the conduct underlying the possession offenses was the same as the conduct which resulted in imposition of the section 12022.53, subdivision (b) enhancements for use of a firearm in connection with the corresponding robberies. We reject these arguments and hold that the trial court did not violate section 654 by failing to stay the sentences imposed for the relevant possession charges.
Section 654 provides in part: “(a) 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.” “The ‘act’ necessary to invoke section 654 need not be an act in the ordinary sense of a separate, identifiable, physical incident, but may instead be a ‘course of conduct’ or series of acts violating more than one statute and comprising an indivisible transaction . . . .” (People v. Liu (1996) 46 Cal.App.4th 1119, 1135.) The Liu court then defined a course of conduct in terms of objective: “[i]f all the offenses are incidental to one objective, the defendant may be punished for any one of them, but not for more than one.” (Ibid.)
“Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. [Citations.]” (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)
A. The applicability of section 654 to the robbery sentences
In determining whether to stay the term imposed for the offense of felon unlawfully possessing a firearm, a trial court must decide “‘[w]hether a violation of section 12021, forbidding persons convicted of felonies from possessing firearms concealable upon the person, constitutes a divisible transaction from the offense in which he employs the weapon.’” (People v. Bradford (1976) 17 Cal.3d 8, 22.) This determination “‘depends upon the facts and evidence of each individual case. Thus where the evidence shows a possession distinctly antecedent and separate from the primary offense, punishment on both crimes has been approved. On the other hand, where the evidence shows a possession only in conjunction with the primary offense, then punishment for the illegal possession of the firearm has been held to be improper where it is the lesser offense.’” (Ibid.)
By sentencing Soto and Rodriguez consecutively on the firearm possession charges, the trial court impliedly found that they had an intent and objective for each of the possession offenses that was distinct from each corresponding robbery charge. (People v. Blake (1998) 68 Cal.App.4th 509, 512.) In fact, during the sentencing proceedings, the trial court indicated that “the crimes and objectives were predominantly independent of each other.” We must uphold this finding if it is supported by substantial evidence. (Ibid.)
In determining whether substantial evidence exists, we review the trial court’s determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312-1313 (Hutchins).)
Circumstantial evidence supports the inference that Soto and Rodriguez obtained the weapons at issue prior to the robberies and had the weapons in their possession before entering the stores that they robbed. Because they possessed the weapons in connection with each crime, a justifiable inference is that the appellants’ gun possession was not merely simultaneous with the robberies but continued before, during, and after the crimes. (People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1413.) Based on all of the evidence before it, the trial court reasonably deduced a separate intent and objective for each possession.
Soto and Rodriguez cite People v. Kane (1985) 165 Cal.App.3d 480 (Kane) in support of their argument that the trial court committed error in failing to stay their sentences on felon in possession of firearm charges. We find that Kane is factually distinguishable. In Kane, the defendant was convicted of assault with a deadly weapon (§ 245, subd. (a)), discharging a weapon at an occupied motor vehicle (§ 246) and possession of a firearm by a felon (§ 12021). (Kane, supra, at p. 483.) The People conceded error under section 654 for imposition of separate, consecutive sentences for the section 246 conviction and the section 12021 conviction. (Kane, supra, at p. 488.) The Kane court’s acceptance of the People’s concession does not support appellants’ contentions on the facts before us. Similarly, in People v. Cruz (1978) 83 Cal.App.3d 308, the court ruled that the defendant could not be separately punished for his convictions of assault with a deadly weapon (§ 245) and possession of a concealable firearm by a felon (§ 12021), noting that the People impliedly conceded the error on appeal. (Cruz, supra, at p. 333.) Again, this apparent acceptance of the People’s concession does not provide authority for appellants’ position.
People v. Burnett (1967) 251 Cal.App.2d 651, is also distinguishable. In Burnett, the defendant was convicted of and sentenced for both armed robbery (§ 211) and two counts of possession of a concealable firearm by a felon (§ 12021). The court held that section 654 barred a separate sentence for the section 12021 conviction that was based on the defendant’s use of a revolver in the robbery. However, the court upheld a separate sentence for the second section 12021 count which was based on the defendant’s possession of a different weapon two weeks later. (Burnett, supra, at pp. 657-658.) Burnett is distinguishable in that the facts show a single robbery, and no evidence existed to support a finding that the defendant possessed the gun used in the robbery other than during the commission of that crime. Unlike Burnett, the facts before us show numerous crimes over a span of several months. Thus, there is strong circumstantial evidence that the gun possessions were not merely simultaneous with the corresponding robberies.
We find that substantial evidence supports the trial court’s finding that each of the gun possessions were independent crimes. Section 654 does not prohibit separate punishments for appellants’ possession offenses.
B. The applicability of section 654 to the section 12022.53, subdivision (b) enhancements
Soto and Rodriguez further contend that their gun possession sentences must be stayed under section 654 because the conduct underlying the possession convictions is the same as the conduct underlying the sentencing enhancements imposed under section 12202.53, subdivision (b). Appellants and respondent point out that California courts of appeal have disagreed on the applicability of section 654 to sentencing enhancements such as section 12022.53, subdivision (b).
At the time that we filed our initial opinion in this matter in April 2006, this question was before the Supreme Court. (People v. Carter (2005) 36 Cal.4th 1215, 1269, fn. 36 [“The question whether section 654 applies to enhancements is before us in People v. Palacios (review granted, May 11, 2005, S132144)”].) On July 12, 2007, the Supreme Court issued an opinion in People v. Palacios (2007) 41 Cal.4th 720. While Palacios did not address the specific issue presented here, the court stated that “in enacting section 12022.53, the Legislature made clear that it intended to create a sentencing scheme unfettered by section 654.” (Id. at pp. 727-728.) Because the case thus supports our original analysis of this issue, we leave this section substantially unchanged from the previous opinion.
Soto and Rodriguez argue that an enhancement based on a defendant’s criminal conduct is subject to the section 654 prohibition against multiple punishment when the same conduct underlies both the enhancement and an offense for which the defendant has been separately sentenced. They rely upon People v. Coronado (1995) 12 Cal.4th 145 (Coronado), as well as People v. Martinez (2005) 132 Cal.App.4th 531 (Martinez), to urge that enhancements based on the defendant’s conduct are subject to section 654. These cases draw a distinction between enhancements related to the defendant’s status, such as recidivist enhancements, versus enhancements related to the defendant’s conduct. (Coronado, supra, at p. 157.) However, neither case addresses the question of whether section 654 bars imposition of a conduct-related enhancement where the same conduct underlies both the enhancement and an offense for which the defendant was separately punished. Coronado held only that a single prior conviction and resulting prison term may be used both to elevate a violation of Vehicle Code section 23152 to a felony under Vehicle Code section 23175 and to enhance the sentence for such conviction under section 667.5, subdivision (b), without violating section 654. (Coronado, supra, at p. 159.) Martinez, which upheld the trial court’s imposition of both a serious felony enhancement and a gang enhancement, is also inapplicable.
We find that we need not address the issue of whether conduct-based enhancements are subject to section 654, because we conclude that even if section 654 does apply to such enhancements, it does not preclude imposition of the section 12022.53, subdivision (b) enhancements here.
It is well settled that the Legislature may create exceptions to the application of section 654. (People v. Cartwright (1995) 39 Cal.App.4th 1123, 1139.) That is plainly the case in the enactment of section 12022.53. The intent of the Legislature in enacting section 12022.53 was to protect citizens and deter violent crime by imposing longer prison terms on persons using firearms in the commission of their offenses. (People v. Perez (2001) 86 Cal.App.4th 675, 680.) Subdivision (b) of section 12022.53 provides that a defendant convicted of a felony specified in subdivision (a) “shall be punished by an additional and consecutive term of imprisonment in the state prison for 10 years.” (Italics added.) It also provides that such punishment shall be imposed “[n]otwithstanding any other provision of law.” (§ 12022.53, subd. (b).) In Hutchins, supra, 90 Cal.App.4th at page 1313, the court held that this language “indicates the Legislature’s intent that section 654 not apply to suspend or stay execution or imposition of such enhanced penalties.”
Soto and Rodriguez were convicted of numerous counts of “Section 211 (robbery),” which is specified as subdivision (a)(4) of section 12022.53. Unlike section 12022.5, subdivision (a)(1), which provides that the firearm use set forth in that section shall be imposed unless use of the firearm is an element of the offense, considered in the abstract (People v. Hansen (1994) 9 Cal.4th 300, 317), the Legislature has thus expressed its intent that the section 12022.53 enhancement be imposed in addition to the penalty imposed for the enumerated felonies, including robbery, without exception. Since the intent of the Legislature in enacting the section 12022.53 enhancement for the specified felonies, including robbery, was “to mandate the imposition of substantially increased penalties,” giving effect to appellants’ analysis would undermine the intent of the legislation. (Hutchins, supra, 90 Cal.App.4th at p. 1313.)
What the Legislature has done by enacting section 12022.53 is not to punish the same criminal act more than once or in more than one way. Instead, in determining that a criminal offender may receive additional punishment for any single crime committed with a firearm, the Legislature has chosen to enhance or expand the punishment imposed on a single underlying crime, where committed by use of a firearm, in order to deter a particular form of violence judged especially threatening to society.
In short, we agree with respondent that the law is not punishing Soto and Rodriguez twice for the same act.
IV. The trial court’s failure to state reasons for imposition of the upper term as to Pena
Pena contends that the trial court’s sentence as to count seven, the base term, must be reversed because the trial court failed to state reasons for its imposition of the upper term.
Respondent contends that because Pena failed to raise this issue at the trial level, he has forfeited this claim. We agree. The forfeiture doctrine applies to claims regarding a trial court’s failure to properly make or articulate discretionary sentencing choices including cases in which the court failed to state reasons or give a sufficient number of valid reasons. (People v. Scott (1994) 9 Cal.4th 331, 353; People v. Bautista (1998) 63 Cal.App.4th 865, 868.) Pena does not address the question of forfeiture. By failing to raise his objection at sentencing, Pena has forfeited his right to claim it here. (People v. de Soto (1997) 54 Cal.App.4th 1, 8.)
V. Admission of Pena’s statements to police
Pena further contends that the trial court erred in admitting at trial certain statements to the police in an interview following his arrest on January 24, 2001. Specifically, Pena asserts that he unequivocally asserted his right to counsel during the custodial interrogation, and therefore under Edwards v. Arizona (1981) 451 U.S. 477 (Edwards), the detectives were required to immediately cease the interrogation.
The facts show that after his arrest, Pena was interrogated by Detectives Timothy Williams and Marcella Winn. After a preliminary interrogation, Detective Winn advised Pena of his rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). Winn informed Pena that he had the following rights: (1) to remain silent, and if he gave up that right, that anything he said could be used against him in a court of law; (2) to speak to an attorney and to have the attorney present during questioning; and (3) if he could not afford an attorney, to have one appointed for him, without charge, before questioning. Detective Winn asked Pena if he understood each of these rights. Pena stated, “I understand.” Detective Winn asked Pena if he wished to give up his right to remain silent and speak to her. Pena stated, “Yes.” Detective Winn then asked Pena if he wished to give up the right to speak to an attorney. Pena responded “No, I don’t need an attorney.” Detective Winn then asked, “You don’t need an attorney?” Pena responded, “No.”
During the exchange that followed, Detective Winn told Pena that she and Detective Williams were investigating a series of robberies at Wherehouse and Radio Shack stores and that he had been identified as one of the robbers in a Wherehouse store. Winn told Pena that the police had a lot of information about the robberies, including a photograph of him. Winn then produced a photograph and asked Pena who was depicted there. Pena replied, “Looks like me.”
Detective Winn suggested that if Pena cooperated, the district attorney might “be easy” with him. In response, Pena expressed concern that if he “snitched,” he would die. The following colloquy then took place between Pena and Detective Williams:
“DETECTIVE WILLIAMS: Victor, I appreciate what you’re saying. I appreciate it. And I understand what you’re saying. You understand what I’m saying?
“I understand what you’re saying. And as I understand what you’re saying, I want you to understand what we’re saying, okay?
“Now, we’re not – we’re not trying to make you a snitch. We’re not trying to do anything like that. Only thing we want to know, what you have done. That’s all we ask. That’s all we’re asking.
“VICTOR PENA: (Inaudible) but can I get a lawyer though?
“I can’t pay for one.
“DETECTIVE WILLIAMS: You want – you want a lawyer?
“VICTOR PENA: Your information can’t help me, sir.
“DETECTIVE WILLIAMS: What information?
“VICTOR PENA: (Inaudible).
“DETECTIVE WILLIAMS: No.
“VICTOR PENA: (Inaudible) what I’m saying.
“DETECTIVE WILLIAMS: Did you listen to what my partner said?
“I think she was very clear. She said you can help you.
“VICTOR PENA: Yeah, but I’m going to do jail time regardless, even though they send me to another state.
“DETECTIVE WILLIAMS: You can help you.
“VICTOR PENA: But I’m telling you, even though I get sent to another state, will put me in a room by myself with nobody – with police custody or, you know, the – the jails inside. (Italics added.)
In Miranda, the United States Supreme Court held that law enforcement agencies must warn the accused “prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney, one will be appointed for him prior to any questioning if he so desires.” (Miranda, supra, 384 U.S. at p. 479.) Statements obtained in violation of Miranda are generally inadmissible in a criminal trial. (Ibid.) In Edwards, supra, 451 U.S. at pages 484-485, the court further held that once a suspect has asserted his or her right to counsel during custodial interrogation, the interrogation must cease and the suspect “is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.”
However, Edwards’s holding, by its own terms, applies only where “the accused in custody . . . has clearly asserted his right to counsel.” (Edwards, supra, 451 U.S. at p. 485.) In order to invoke the Fifth Amendment privilege after it has been waived, and in order to halt police questioning after it has begun, the suspect must unambiguously assert his right to silence or counsel. (Davis v. United States (1994) 512 U.S. 452, 459.) “It is not enough for a reasonable police officer to understand that the suspect might be invoking his rights. [Citation.] Faced with an ambiguous or equivocal statement, law enforcement officers are not required under [Miranda] either to ask clarifying questions or to cease questioning altogether.” (People v. Stitely (2005) 35 Cal.4th 514, 535, citing Davis, supra, at pp. 459-462.) The question, therefore, is whether Pena’s statements above constituted an unequivocal request for counsel.
In analyzing this issue, a reviewing court must ask “whether, in light of the circumstances, a reasonable officer would have understood a defendant’s reference to an attorney to be an unequivocal and unambiguous request for counsel, without regard to the defendant’s subjective ability or capacity to articulate his or her desire for counsel, and with no further requirement imposed upon the officers to ask clarifying questions of the defendant.” (People v. Gonzalez (2005) 34 Cal.4th 1111, 1125 (Gonzalez).) The reviewing court independently determines “from the undisputed facts and the facts properly found by the trial court whether the challenged statement was illegally obtained.” (People v. Cunningham (2001) 25 Cal.4th 926, 992.)
Both parties provide citations to California case law analyzing the question of whether a statement by a defendant constitutes an unequivocal request for counsel, thus triggering Edwards’s requirement that the interrogation immediately cease. For example, in Gonzalez, supra, 34 Cal.4th at page 1119, the Supreme Court held that the defendant’s statement that “if for anything you guys are going to charge me I want to talk to a public defender too, for any little thing” was not an unequivocal request for counsel. In Stitely, supra, 35 Cal.4th at page 535, the Supreme Court held that the defendant’s statement, “‘I think it’s about time for me to stop talking,’” was similarly ambiguous. And in People v. Roquemore (2005) 131 Cal.App.4th 11, 19, the question, “‘can I call a lawyer or my mom to talk to you?’” was determined to be unclear.
We find on the facts before us that Pena’s statement was ambiguous. The record shows that he had already clearly waived his Miranda rights and agreed to talk with the detectives. His subsequent inquiry regarding the possibility of obtaining counsel given his financial condition was not an unequivocal request that the interrogation end or an indication of his desire to speak to counsel before proceeding. Instead, Pena’s question could reasonably have been interpreted to be an inquiry regarding the possibility of obtaining counsel at a future time.
That Detective Williams found it necessary to ask the clarifying question, “You want – you want a lawyer?” lends further support to our conclusion that Pena’s request was not unambiguous. Under Gonzalez, supra, 34 Cal.4th at page 1125, in order for his statements to be inadmissible, Pena’s request must have been unequivocal such that the interviewing officer had no need to ask a clarifying question. Pena, by not responding in the affirmative to Detective Williams’s clarifying question, further confirmed the officer’s reasonable understanding that Pena was not invoking his right to counsel. Thus, cessation of the interrogation was not required under Edwards.
The trial court’s admission of Pena’s statements to police was not error.
VI. Sufficiency of evidence regarding Soto’s carjacking conviction
Soto contends that his conviction for carjacking should be reversed because there was insufficient evidence that he used force beyond that required for movement of the vehicle.
The evidence shows that on January 24, 2001, the Los Angeles Police Department was conducting surveillance at the residence of Pena, who was suspected in the string of robberies for which appellants have been convicted. At approximately 3:30 p.m., a black Nissan pickup driven by a man later identified as Soto arrived at Pena’s residence. At approximately 4:15 p.m., Soto and a man later identified as Rodriguez departed from the residence in the Nissan truck. The Los Angeles Police Department conducted a routine stop in order to identify the men. After they were released, Soto and Rodriguez proceeded to the Toyota of North Hollywood car dealership where they parked approximately a block away.
Soto went out to the car lot and posed as a customer looking to purchase a vehicle. A salesman, Morteza Hooshiar, approached Soto, and he and Soto left for a test drive in a Toyota Camry. At one point, Mr. Hooshiar stopped the Camry in front of a McDonald’s restaurant so that Soto could take over and test drive the car. As he attempted to reenter the vehicle on the passenger side, Soto drove off. As Soto drove away, Mr. Hooshiar’s hand was caught in the door of the vehicle, and he was dragged about 10 to 15 feet, suffering injury to his hands and shoulders.
Following this incident, Soto and Rodriguez, who had been following Soto during the test drive, pulled over to the side of the road and pulled off the Toyota dealership’s paperwork from the front passenger window. The two then returned to Pena’s house. Both were arrested later that day at a restaurant.
Carjacking is defined in section 215, subdivision (a) as “the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence . . . against his or her will and with the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession, accomplished by means of force or fear.” Soto’s argument that there was insufficient evidence that he used the requisite force is dependent upon our acceptance of his legal argument that force, as defined within the carjacking statute, requires more than the force necessary to simply cause movement of the vehicle.
Soto relies on People v. Morales (1975) 49 Cal.App.3d 134, 139 (Morales) as support for this interpretation of the term “force” within section 215, subdivision (a). In Morales, the defendant had snatched the purse of a 79-year-old woman, pushing her in the process. The victim fell to the ground, suffering a dislocation and fracture of her elbow. (Morales, supra, at p. 137.) Two weeks later she died suddenly of a blood clot in the lung, which medical testimony showed was caused by her physical inactivity while recuperating from the injury.
On appeal, Morales contended that the trial court erred in failing to instruct the jury on the lesser offenses of grand theft from the person and second degree murder. In its discussion of robbery, the court set forth the definition of robbery, which is “‘the taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.’” (Morales, supra, 49 Cal.App.3dat p. 139 [citing § 211].) The court explained that, where the element of force or fear is absent, a taking from the person is only a theft. Noting that no California case purported to define specifically how much force is required to elevate a taking from the person to the status of a robbery, the court nevertheless concluded that “something more is required than just that quantum of force which is necessary to accomplish the mere seizing of the property.” (Morales, supra, at p. 139.)
Soto urges that the Morales standard, requiring more than merely the force necessary to commit the underlying theft, should also apply to carjacking. While he admits that some differences exist between the two crimes, Soto argues that the robbery statute and the carjacking statute are identical as to the force and fear element. Citing People v. Lopez (2003) 31 Cal.4th 1051, 1060, he further argues that “[w]hen legislation has been judicially construed and a subsequent statute on a similar subject uses identical or substantially similar language, the usual presumption is that the Legislature intended the same construction, unless a contrary intent clearly appears.”
Based on this enhanced standard of “force,” Soto argues that the evidence establishes that Soto used no force whatsoever to take the vehicle from the salesman. While acknowledging that the salesman’s hand somehow got caught in the door as he attempted to get into the passenger side of the vehicle, Soto nevertheless contends that he merely drove off in the vehicle – an act, he argues, that does not constitute the use of force as defined in Morales.
Respondent correctly notes that the Morales decision has been distinguished on several occasions. (See, e.g., People v. Jones (1992) 2 Cal.App.4th 867 (Jones); People v. Cooksey (2002) 95 Cal.App.4th 1407.) In Jones, Division Five of this district affirmed a conviction of robbery where the victim’s purse was grabbed in such a way as to cut her finger (“a little blood”) and injure her shoulder (“a little bit”). (Jones, supra, at p. 870.) The court stated that “[a]lthough the injuries were minor, the inference that force was used is compelling. The degree of force is immaterial.” (Id. at p. 871.) In a recent decision, Division Four of this district reaffirmed that in the context of robbery “[a]ll the force that is required to make the offense a robbery is such force as is actually sufficient to overcome the victim’s resistance.” (People v. Thomas (2005) 133 Cal.App.4th 488, 494 [affirming conviction of robbery where the thief grabbed the victim’s purse, broke the strap that was over the victim’s shoulder and pulled the strap with enough strength to defeat efforts to hold on to the purse].)
Respondent argues that Morales’s definition of force as applied to the crime of robbery should not be extended to the crime of carjacking. Respondent points to the differences between the two crimes, including that “robbery can involve any type of personal property, while carjacking involves only vehicles” (Lopez, supra, 32 Cal.4th at p. 1058), and that the degree of harm and risk to a victim is greater during a carjacking than during a robbery. (Id. at p. 1057.)
Respondent further argues that even assuming that the Morales definition of the force required to constitute a robbery applies to carjacking, the evidence showed sufficient force to support the jury’s conviction on the carjacking charge. We agree with this analysis of the facts related to the carjacking. We find that we need not address the issue of whether the Morales definition of force applies to carjacking, because we conclude that even if it does, the evidence was sufficient to uphold the jury’s finding of guilt.
In determining whether a conviction is supported by substantial evidence, we presume in support of the judgment the existence of every fact the jury could reasonably infer from the evidence to determine whether there is substantial evidence upon which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054.) “Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder. [Citations.]” (People v. Jones (1990) 51 Cal.3d 294, 314.) A judgment will not be reversed for insufficiency unless “‘upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’” (People v. Bolin (1998) 18 Cal.4th 297, 331.)
Here, Mr. Hooshiar’s uncontradicted testimony shows that Soto did not merely drive away with the vehicle. He drove away in the vehicle while dragging Mr. Hooshiar 10 to 15 feet and causing him injury. There is sufficient circumstantial evidence to support a finding that Soto knew of Mr. Hooshiar’s proximity to the vehicle and drove the vehicle in a manner likely to cause, and actually causing, the injuries that Mr. Hooshiar suffered. Soto’s actions in causing the vehicle to injure Mr. Hooshiar constitute force under the Morales definition. Thus, even under the definition of force that Soto advocates, there was sufficient evidence to support the jury’s finding that Soto committed a carjacking.
VII. The jury instructions regarding carjacking
In connection with his carjacking conviction, Soto further contends that the trial court had a sua sponte duty to give a clarifying definition of the term “force” in the context of carjacking because the term has a technical meaning peculiar to the law. This contention is again dependent upon our acceptance of Soto’s argument that force, as defined within the carjacking statute, requires something more than “just that quantum of force which is necessary to accomplish the mere seizing of the property.” (People v. Morales, supra, 49 Cal.App.3d at p. 139.) We reject these arguments.
The record reflects that the trial court gave the standard jury instruction regarding carjacking to Soto and Rodriguez’s jury. The jury submitted a question to the court, stating: “Section 9.46#4. Please define force. Mr. Hooshiar didn’t know, he had no choice, the car was just taken so this constitutes force.” The trial court discussed the request with the prosecutor and Soto’s counsel. The trial court stated it had discovered that there was no legal definition for the force involved in a carjacking, but the term only had a “common definition.” The trial court stated it would do the following: (1) give the jurors two partial definitions from two dictionaries; and (2) add a paragraph, based on cases which it would not cite to the jury, that a carjacking victim need not be inside or touching the vehicle at the time of the taking and that the victim need not be aware of the use of force or fear. The trial court asked the parties to comment. The prosecutor and Soto’s counsel each stated the trial court’s response was “appropriate.”
Relying on People v. Beardslee (1991) 53 Cal.3d 68, 97 (Beardslee), Soto argues that the trial court had the responsibility to help the jury understand the legal principles it was asked to apply. However, Beardslee goes on to state: “This does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion . . . to determine what additional explanations are sufficient to satisfy the jury’s request for information.” (Ibid.)
Several cases have held that the definition of “force” has no technical meaning peculiar to the law and jurors are presumed to understand the meaning of the term. (People v. Anderson (1966) 64 Cal.2d 633, 639-640 (Anderson); People v. Mungia (1991) 234 Cal.App.3d 1703, 1708; People v. Hays (1983) 147 Cal.App.3d 534, 543.) Because the word “force” has no technical meaning peculiar to the law, jury instructions as to the meaning of the term were not required. (Anderson, supra, at p. 639.)
We reject Soto’s contention that the present case is distinguishable because the jury needed to be informed that the level of force had to be substantially greater than that required to simply take the car. Soto has provided no authority for the application of the Morales definition of force in the carjacking context. The trial court did not commit error in failing to sua sponte instruct the jury on the definition of force.
We further find that even if the trial court did err in failing to instruct the jury on the definition of “force,” the error was harmless. The facts showed that Soto used a degree of force sufficient to drag the car salesman 10 to 15 feet and inflict injury upon him. Thus there is no reasonable probability that, even if the court had instructed the jury that the force used in the carjacking had to be substantially greater than that required simply to take the car, the verdict would have been different. (People v. Watson (1956) 46 Cal.2d 818, 836.)
VIII. Sufficiency of evidence regarding Soto’s conviction for the second degree robbery of William Doe
Soto’s final contention is that there was insufficient evidence to support his conviction for the second degree robbery of William Doe, an employee of the Wherehouse music store on Olive Avenue in Burbank.
Two witnesses testified regarding the robbery in question, which took place on November 3, 2000. One was another Wherehouse employee, Julie Villalta. Her testimony was that William Doe was working with her at the front register area, “two registers away.” Villalta testified that Soto pulled out a handgun, placed it on the counter and stated, “Open up the counters and give me all the money” and “Open the registers or I’ll shoot you.” Rodriguez then walked to Villalta’s side of the counter, ordered her to open three registers, including William Doe’s, and remove the money. Rodriguez then asked Villalta if she had access to the safe to which she responded, “No.” In total, Rodriguez and Soto took between $500 and $700. When asked what William Doe was doing during this time, Villalta responded that “William was completely oblivious to what was happening. He was helping another customer in the duration of the time.”
The other witness to the robbery was Cesar Guevara, a customer in line at the front register area at the time of the crime. In recounting the events, Guevara recalled seeing the female cashier crying. When asked whether the cashier was alone, Guevara responded, “No. There was a man, there was another guy, a bald headed guy next to her, and I think next to her right was another cashier.” Guevara later testified that he heard the man who was with the two cashiers say, “give me some certificates as well.”
Soto admits that under California law multiple counts of robbery can arise from a single taking of property where the property was in the joint possession of employees of a business. (People v. Galoia (1994) 31 Cal.App.4th 595, 597.) This is because employees of a business constructively possess the business owner’s property during a robbery. (People v. Nguyen (2000) 24 Cal.4th 756, 761.) Evidence that William Doe was an employee, and that money was taken from his register, was therefore sufficient to demonstrate he possessed the money which was taken by Soto.
However, relying on People v. Ramos (1982) 30 Cal.3d 553, 589, reversed on other grounds sub nom. California v. Ramos (1983) 463 U.S. 992, Soto contends that he may only be convicted for the robberies of two employees in joint possession of property where force or fear is applied to each victim. He argues that because there was insufficient evidence that any force or fear was applied to William Doe to accomplish the taking of Wherehouse property, his conviction for this robbery must be reversed.
As set forth above, we must presume in support of the judgment the existence of every fact the jury could reasonably infer from the evidence to determine whether there is substantial evidence upon which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. (People v. Kraft, supra, 23 Cal.4th at pp. 1053-1054.) A judgment will not be reversed for insufficiency unless “‘upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’” (People v. Bolin, supra, 18 Cal.4th at p. 331.)
The element of taking by force or fear may be proved by direct or circumstantial evidence. (People v. Holt (1997) 15 Cal.4th 619, 690.) Here, there was sufficient circumstantial evidence to support the jury’s finding that Soto applied force or fear to William Doe. Cesar Guevara testified that William Doe was standing next to Julie Villalta, the cashier who was crying. Villalta herself testified that she emptied Doe’s register of cash and provided the money to the robbers. Based on his apparent close proximity to the perpetrators of the crime, the jury could have reasonably concluded that the robbery as to William Doe was committed by use of force or fear. The jury was free to determine what weight to give Villalta’s statement that William Doe was “oblivious.” We therefore hold that sufficient evidence supported Soto’s conviction for the robbery of William Doe.
DISPOSITION
The judgments are affirmed.
We concur: DOI TODD, Acting P. J., ASHMANN-GERST, J.