Opinion
G043944 Super. Ct. No. 08NF0834
10-26-2011
THE PEOPLE, Plaintiff and Respondent, v. RAUL ROJAS, Defendant and Appellant.
Kurt David Hermansen, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gary W. Brozio and William M. Wood, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from a judgment of the Superior Court of Orange County, Dan McNerney, Judge. Affirmed as modified.
Kurt David Hermansen, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gary W. Brozio and William M. Wood, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant Raul Rojas of all three counts alleged against him: (1) carjacking (Pen. Code, § 215, subd. (a)); (2) street terrorism (§ 186.22, subd. (a)); and (3) second-degree robbery (§§ 211, 212.5, subd. (c)). The jury also found true various enhancements to counts 1 and 3, including the commission of the carjacking and robbery while personally armed in violation of section 12022.53, subdivision (b). The trial court imposed a sentence of 20 years in prison, which consisted of 9 years for carjacking, 10 consecutive years for a firearm enhancement, and one consecutive year for robbery. The court also imposed a concurrent two year sentence for street terrorism.
All statutory references are to the Penal Code.
Defendant challenges his carjacking and robbery convictions, claiming there is insufficient evidence in the record to support the jury's finding of "force or fear," which is a necessary element for both crimes. Relatedly, defendant asserts the court erred by failing to instruct the jury that it could convict defendant of the lesser included crime of theft. Finally, defendant posits the court should have stayed execution of sentence under section 654 with regard to his street terrorism conviction, rather than simply running this sentence concurrently. While we agree with defendant's section 654 argument, we reject his other assertions of error.
FACTS
On April 17, 2007, Jonathan Rodriguez and his cousin were driving a vehicle owned by Rodriguez's wife. While parked in an alley in Anaheim, California, the pair of men were approached by a group of six individuals. One of the approaching individuals had a gun. According to Rodriguez, the six individuals "just took the jeep." One of the individuals also grabbed an iPod from Rodriguez's hand. Rodriguez claimed he was not scared by the incident. But asked why he told his cousin to get out of the car, Rodriguez responded: "Because they had a gun." Rodriguez asked for the iPod back but was rebuffed. Three of the six assailants drove away in the vehicle (the other three ran away).
Rodriguez had suffered previous convictions and provided an alias to the officer when reporting the crime because he had an outstanding warrant for his arrest.
In conflict with his trial testimony (wherein he denied that the perpetrators pointed a gun at him), Rodriguez told a police officer immediately after the crime that the individual who took the iPod pointed a gun at both victims. Rodriguez could not identify defendant as a perpetrator on the night of the incident or at trial.
Anaheim Police Officer Gregg Snell spotted the missing vehicle shortly after hearing a report of a carjacking. Snell observed three occupants inside the vehicle. Snell followed the vehicle. The occupants jumped out of the moving vehicle and began running. Snell apprehended the driver of the vehicle — defendant. Defendant admitted to Snell that he possessed a gun and associated with Underhill Street, a gang. Defendant admitted the two other individuals in the vehicle had asked him to go along with them to rob two men who were selling electronics. Defendant admitted he displayed his handgun to the victims of the robbery and then drove the vehicle away.
Anaheim Police Officer Mike Brown testified in the capacity of an expert witness. After establishing his credentials and discussing his knowledge of Underhill Street's activities, Brown opined defendant was an active participant in the Underhill Street criminal street gang on April 17, 2007. Brown also opined (answering a "hypothetical" question) a carjacking and robbery like that committed in this case would be committed for the benefit of, at the direction of, or in association with a criminal street gang. Moreover, the parties stipulated to the following: "'On November 4th of 2006 defendant Raul Rojas admitted under penalty of perjury that he actively participated in a criminal street gang called Underhill Street. He further agreed that this was a gang with three or more members that engaged in a pattern of criminal gang activity and which committed as some of its primary activities such as assault with a deadly weapon and felony vandalism.'"
Defendant testified on his own behalf. Defendant denied taking part in the carjacking/robbery, denied he made the admissions testified to by Officer Snell, and denied taking part in crimes with the Underhill Street gang. Defendant claimed he was in the stolen vehicle because he was approached by an individual driving the vehicle for help in locating marijuana.
DISCUSSION
Force or Fear
The crimes of carjacking and robbery both include an element of "force or fear." Although his trial counsel did not pursue this strategy in his closing argument, defendant asserts no rational trier of fact could have found the existence of "force or fear" because: (1) force requires "more than 'just the quantum of force which is necessary to accomplish the mere seizing of the property'" (People v. Garcia (1996) 45 Cal.App.4th 1242, 1246, disapproved on other grounds in People v. Mosby (2004) 33 Cal.4th 353, 365, fn. 2); and (2) Rodriguez clearly disavowed the notion that he was afraid during the taking of the vehicle and iPod.
"'Carjacking' is the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence, or from the person or immediate presence of a passenger of the motor vehicle, 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:" (§ 215, subd. (a), italics added.)
"Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means offorce or fear." (§ 211, italics added.)
"In resolving sufficiency of the evidence claims, 'an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.'" (People v. Gomez (2008) 43 Cal.4th 249, 265.)
"'The element of fear for purposes of robbery is satisfied when there is sufficient fear to cause the victim to comply with the unlawful demand for his property.'" (People v. Morehead (2011) 191 Cal.App.4th 765, 774.) "When the People rely upon the use of fear, rather than force, it 'is not necessary that there be direct proof of fear.'" (People v. Gomez (2011) 192 Cal.App.4th 609, 623.) "Actual fear may be inferred from the circumstances, and need not be testified to explicitly by the victim." (People v. Cuevas (2001) 89 Cal.App.4th 689, 698.) "Moreover, the jury may infer fear '"from the circumstances despite even superficially contrary testimony of the victim."'" (Morehead, at p. 775.)
Here, there is adequate circumstantial evidence of fear with regard to the victims, Rodriguez and his cousin. The victims were outnumbered by a group of individuals in possession of a firearm. The victims allowed the perpetrators to abscond with a vehicle and an iPod without resistance. (People v. Borra (1932) 123 Cal.App. 482, 484 ["Prompt compliance with the commands of an armed person, who by words or demonstration threatens bodily harm for failure to do so, furnishes some evidence of fear"].) The jury was entitled to dismiss Rodriguez's denial of fear on the witness stand as mere bravado or as an assertion that he was not afraid he would be harmed if he complied with the demands of the robbers. (See People v. Renteria (1964) 61 Cal.2d 497, 499 [jury may disregard or interpret victim's denial of fear].) In sum, there is substantial evidence in the record supporting defendant's convictions for carjacking and robbery.
Lesser Included Offenses
Defendant also contends the court erred by not instructing the jury that it could convict defendant of theft as a lesser included offense of either carjacking or robbery. Defendant notes that if the jury did not conclude there was force or fear, it should have been able to convict defendant of grand theft. "Grand theft is theft committed in any of the following cases: [¶] . . . [¶] (c) When the property is taken from the person of another. [¶] (d) When the property taken is any of the following: [¶] (1) An automobile . . . ." (§ 487.)
"'In criminal cases, even absent a request, the trial court must instruct on general principles of law relevant to the issues raised by the evidence. [Citation.] This obligation includes giving instructions on lesser included offenses when the evidence raises a question whether all the elements of the charged offense were present, but not when there is no evidence the offense was less than that charged. [Citation.] The trial court must so instruct even when, as a matter of trial tactics, a defendant not only fails to request the instruction, but expressly objects to its being given.'" (People v. Moye (2009) 47 Cal.4th 537, 548.)
Theft is not a lesser included offense of carjacking. (People v. Ortega (1998) 19 Cal.4th 686, 693, disapproved on a different point in People v. Reed (2006) 38 Cal.4th 1224, 1228, 1231.) "Carjacking requires two elements that are not required for theft: that the vehicle be taken from the possession or immediate presence of another, and that the taking be 'accomplished by means of force or fear.' [Citations.] Theft requires an element — the specific intent to permanently deprive a person of property — that is not required for carjacking. [Citations.] Accordingly, neither carjacking nor theft is a necessarily included offense of the other, because it is possible to commit either offense without committing the other." (Ibid.)Thus, the court did not err with regard to its instructions pertaining to the carjacking count.
"Theft is a lesser included offense of robbery, which includes the additional element of force or fear." (People v. Webster (1991) 54 Cal.3d 411, 443.) Thus, if there was substantial evidence defendant was only guilty of the lesser offense (i.e., the force or fear element was not proven), the court was required to instruct the jury upon the lesser included offense of grand theft. (See Moye, supra, 47 Cal.4th at p. 556 ["In deciding whether evidence is 'substantial' in this context, a court determines only its bare legal sufficiency, not its weight"].) As discussed above, Rodriguez, the victim whose iPod was taken, testified he was not afraid during the incident at issue. Given the circumstances of the crime, Rodriguez's testimony on this point was either incredible (if he meant he had no concern with the potential consequences were he to resist) or an unwarranted narrowing of the meaning of the word "fear" (if he meant he remained courageous in the face of danger notwithstanding the threat presented). Nevertheless, the evidentiary record should have compelled the court to provide an instruction on count 3 for the lesser included offense of grand theft.
But the court's error was harmless "as it is not reasonably probable defendant would have obtained a more favorable outcome had the jury been" properly instructed. (Moye, supra, 47 Cal.4th at p. 556.) In determining whether harmless error occurred, an appellate court "focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration. In making that evaluation, an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result. Accordingly, a determination that a duty arose to give instructions on a lesser included offense, and that the omission of such instructions in whole or in part was error, does not resolve the question whether the error was prejudicial." (People v. Breverman (1998) 19 Cal.4th 142, 177-178.)
Here, the evidence overwhelming suggests Rodriguez was coerced through the threat of force to submit to the robbery of his iPod. The jury made a specific finding that defendant personally utilized a firearm in the commission of the robbery. Despite defendant's unwillingness to admit to subjective fear, it is exceedingly unlikely the jury would have classified defendant's crime as grand theft rather than robbery had it been given the option to do so.
Section 654The jury convicted defendant of street terrorism under section 186.22, subdivision (a), which states: "Any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished by imprisonment in a county jail for a period not to exceed one year, or by imprisonment in the state prison for 16 months, or two or three years." (Italics added.) "[S]ection 186.22[, subdivision] (a) imposes criminal liability not for lawful association, but only when a defendant 'actively participates' in a criminal street gang while also aiding and abetting a felony offense committed by the gang's members." (People v. Castenada (2000) 23 Cal.4th 743, 750-751.)
Defendant claims the court erred by failing to stay his sentence for street terrorism pursuant to section 654. Section 654, subdivision (a), provides: "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 statute 'literally applies only where [multiple] punishment arises out of multiple statutory violations produced by the "same act or omission." [Citation.] However, . . . its protection has been extended to cases in which there are several offenses committed during "a course of conduct deemed to be indivisible in time."'" (People v. Hicks (1993) 6 Cal.4th 784, 789.) "'Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.'" (People v. Latimer (1993) 5 Cal.4th 1203, 1208.)
Defendant contends he cannot be punished for street terrorism because the felony offenses providing the basis for his street terrorism conviction consisted of the carjacking and robbery for which defendant was also convicted and sentenced.
Since People v. Herrera (1999) 70 Cal.App.4th 1456, 1468 (Herrera), a line of cases has held that a trial court may (if substantial evidence supports a finding of separate intents and objectives) punish a defendant for street terrorism (§ 186.22, subd. (a)) based on the same "felonious criminal conduct" supporting other substantive convictions and punishments. (See People v. Garcia (2007) 153 Cal.App.4th 1499, 1514, fn. omitted ["The evidence shows defendant knew he was in possession of a firearm in public, and intended to commit that crime to promote or assist the gang. While he might have pursued these objectives simultaneously, they were independent of each other," fn. omitted]; People v. Ferraez (2003) 112 Cal.App.4th 925, 935 ["Here, defendant possessed the drugs with the intent to sell, and he also intended to commit that felony to promote or assist the gang. While he may have pursued both objectives simultaneously, they were nonetheless independent of each other"]; In re Jose P. (2003) 106 Cal.App.4th 458, 470 ["even presuming that the robbery was the basis for the minor's section 186.22[, subdivision] (a) liability, section 654 does not require that punishment for that crime be stayed"]; Herrera, supra, 70 Cal.App.4th at p. 1468 ["The evidence supports the finding that Herrera intended to aid his gang in felonious conduct, irrespective of his independent objective to murder"].)
This court, in People v. Vu (2006) 143 Cal.App.4th 1009, purported to distinguish, not disagree with, Herrera: "Vu committed different acts, violating more than one statute, but the acts of conspiracy and street terrorism constituted a criminal course of conduct with a single intent and objective. That single criminal intent or objective was to avenge [a fellow gang member's] killing by conspiring to commit murder. Although that intent or objective could be parsed further into intent to promote the gang and intent to kill, those intents were not independent. Each intent was dependent on, and incident to, the other." (Vu, at p. 1034.)
But recently, the Herrera rule has been called into question directly. (See People v. Sanchez (2009) 179 Cal.App.4th 1297, 1315-1316 (Sanchez)[disagreeing with Herrera and its progeny; holding defendant could not be punished for street terrorism for same felonious conduct used to support underlying robbery convictions]; see also People v. Hunt (2011) 196 Cal.App.4th 811, 824 [following Sanchez].) Sanchez reasoned: "Here, the underlying robberies were the act that transformed mere gang membership — which, by itself, is not a crime — into the crime of gang participation. Accordingly, it makes no sense to say that defendant had a different intent and objective in committing the crime of gang participation than he did in committing the robberies." (Sanchez, at p. 1315.)
The issue presented by the parties — whether to follow Herrera or Sanchez — is currently before the California Supreme Court. (See People v. Duarte, review granted Feb. 23, 2011, S189174; People v. Mesa, review granted Oct. 27, 2010, S185688.) Nevertheless, we must resolve the case before us.
We first note an argument could be made that defendant has been convicted and punished for two distinct acts (the carjacking and the robbery) and therefore cannot be punished twice for either of these distinct acts. Just as a defendant cannot be punished for arson and murder for the same act of lighting a building on fire (Neal v. State of California (1960) 55 Cal.2d 11, 19-21), a defendant cannot be punished for carjacking, robbery, and street terrorism for two discrete acts (here, the straightforward transfer of possession of a vehicle and iPod). It appears some cases addressing section 654 issues have bypassed a determination of whether a single act or omission is being punished twice, proceeding directly to an analysis of whether a defendant possesses multiple intents or objectives.
Even assuming this is a "course of conduct" case (i.e., the series of events resulting in defendant carjacking and robbing his victims was a course of conduct rather than two single, physical acts), we agree with Sanchez. "[T]he crucial fact is that the [carjacking and/or robbery] were necessary to satisfy an element of the gang participation charge. [Citation.] Accordingly, almost by definition, defendant had to have the same intent and objective in committing all of these crimes." (Sanchez, supra, 179 Cal.App.4th at p. 1316.) Defendant cannot be punished twice for the same "felonious" conduct, regardless of multiple criminal objectives (i.e., defendant intended to rob/carjack the victims for personal monetary gain, and he intended to aid his gang and terrorize the community by doing so).
The court must stay execution of sentence for defendant's street terrorism conviction pursuant to section 654. Of course, as the court already ran this sentence concurrently, there will be no practical impact on the amount of time actually served by defendant.
DISPOSITION
We modify the judgment as follows: The two year term imposed on count 2, street terrorism, is ordered stayed pursuant to section 654. The trial court is directed to prepare an amended abstract of judgment consistent with this opinion and forward it to the Department of Corrections and Rehabilitation. The judgment is affirmed as modified.
IKOLA, J. I CONCUR: O'LEARY, ACTING P. J. FYBEL, J. concurring.
I concur in the opinion but write separately on the issue whether execution of sentence on defendant Raul Rojas's street terrorism conviction must be stayed under Penal Code section 654. While I agree with the majority's conclusion on that issue, in my view, it is unnecessary to address People v. Herrera (1999) 70 Cal.App.4th 1456 and People v. Sanchez (2009) 179 Cal.App.4th 1297.
The first question presented by Penal Code section 654 is whether defendant committed a single criminal act or committed different acts comprising an indivisible course of criminal conduct. The majority opinion correctly points out that some cases addressing section 654 have bypassed that question. As explained in Neal v. State of California (1960) 55 Cal.2d 11, 19: "'If only a single act is charged as the basis of the multiple convictions, only one conviction can be affirmed, notwithstanding that the offenses are not necessarily included offenses. It is the singleness of the act and not of the offense that is determinative.' Thus the act of placing a bomb into an automobile to kill the owner may form the basis for a conviction of attempted murder, or assault with intent to kill, or malicious use of explosives. Insofar as only a single act is charged as the basis for the conviction, however, the defendant can be punished only once."
In this case, defendant committed two distinct and separate acts—he carjacked the victim's vehicle and took the victim's iPod. Each distinct act is the basis for defendant's conviction under separate criminal statutes for carjacking, Penal Code section 215, subdivision (a), and for second degree robbery, Penal Code sections 211 and 212.5, subdivision (c). Defendant received separate and consecutive prison sentences for each crime, demonstrating the trial court concluded these were two distinct acts. Defendant cannot be punished again for street terrorism because the acts constituting street terrorism were the distinct acts of carjacking and robbery for which he had already received punishment. Thus, under Penal Code section 654, the trial court should have stayed execution of sentence for defendant's street terrorism conviction.
FYBEL, J.