Opinion
NOT TO BE PUBLISHED
APPEAL from judgments of the Superior Court of Los Angeles County. No. NA068609, Joan Camparet-Cassani, Judge.
Christine C. Shaver, under appointment by the Court of Appeal, for Defendant and Appellant Alejandro Saavedra.
Jennifer Peabody, under appointment by the Court of Appeal, for Defendant and Appellant Victor Amarillas.
Murray A. Rosenberg, under appointment by the Court of Appeal, for Defendant and Appellant Miguel A. Garcia.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott Taryle and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
RUBIN, J.
Defendants and appellants Victor Amarillas, Miguel A. Garcia and Alejandro Saavedra appeal from the judgments entered following a jury trial that resulted in each of them being convicted of multiple counts including attempted premeditated murder, second degree robbery and/or attempted second degree robbery.
All three defendants were jointly charged in a second amended information with multiple counts of attempted murder, robbery and attempted robbery. Following a jury trial, they were convicted as follows: Amarillas was convicted of second degree robbery (counts 1, 2, 3, 4, 5, 7, 8, 9, 10, 11, 12, 13, 16, 17, 19, 25, 26, 27, 32); attempted, premeditated murder (counts 21, 24, 28, 30); and attempted second degree robbery (counts 22, 23, 29, 31). Garcia was convicted of second degree robbery (counts 1, 2, 3, 4, 5). Saavedra was convicted of attempted premeditated murder (counts 21, 24); attempted second degree robbery (count 22, 23); and second degree robbery (counts 25, 26). Amarillas was sentenced to a total of 285 years 8 months to life in prison. Saavedra was sentenced to a total of 104 years to life in prison. Garcia was sentenced to a total of 32 years 4 months in prison. Each of the defendants filed a timely notice of appeal.
Amarillas contends his convictions for attempted premeditated murder (counts 21, 24, 28 and 30) were not supported by substantial evidence, and the trial court committed two sentencing errors.
Saavedra contends: (1) his convictions for attempted, premeditated murder (counts 21 and 24) were not supported by substantial evidence, and (2) it was error to impose a full consecutive sentence on one count.
Garcia contends: (1) his conviction for robbery (count 5) was not supported by substantial evidence, and (2) the trial court erred in failing to give CALJIC No. 17.00 dealing with separate verdicts against multiple defendants.
Each of the defendants also joins in the contentions of his codefendants.
As the People concede two sentencing errors, we modify those judgments. In all other respects, we affirm the judgments.
FACTUAL AND PROCEDURAL BACKGROUND
Viewed in accordance with the usual rules on appeal (People v. Zamudio (2008) 43 Cal.4th 327, 357-358 (Zamudio)), the evidence established that Amarillas, along with Saavedra on some occasions and Garcia on other occasions, engaged in a series of robberies and attempted robberies beginning on October 7, 2005, and ending on December 24, 2005. Two of the incidents escalated into the shootings which formed the basis of the attempted premeditated murder convictions. We limit our summary of the evidence to that relevant to those counts as to which there is some contention on appeal (counts 1, 2, 3, 4, 5, 21, 24, 28 and 30).
A. Count 1 (Arias Robbery), Count 2 (Velasco Robbery), Count 3 (Ruess Robbery) and Count 4 (Townsend Robbery)
At about 9:00 p.m. on October 7, 2005, Amarillas and Garcia were both armed when they entered a 7-Eleven in the City of Lynwood and robbed the two cashiers and two customers at gun point. The prosecutor showed the jury images taken by a security camera at the store.
Customer Octavio Arias testified that he was in the 7-Eleven that night paying the cashier for a soda and some chips, when he saw two men, whom Arias later identified as Amarillas and Garcia, enter the store waiving guns. Garcia, the shorter of the two men, was wearing a dark hoodie; Amarillas was wearing a white hoodie. Arias recalled that Garcia pointed a gun at him and said, “Don’t move, don’t look at me;” Garcia then made a general announcement to the people in the store that, “This is a robbery, this is a robbery.” When Garcia told him to get on the floor, Arias got down on his knees because he was afraid. And when Garcia told Arias to give him all the money he had, Arias gave him his wallet. Arias heard Garcia say to a female customer, “Give me whatever you have, ” before Garcia snatched the woman’s purse. Meanwhile, Arias saw Amarillas go around the cashier’s counter. Arias heard Garcia tell Amarillas to grab the money from the cash registers. Arias saw Amarillas behind the counter and heard him tell the store clerks to hurry up and open the register. Both at photo lineups and at trial Arias identified Garcia and Amarillas.
Tanya Velasco was also a customer in the 7-Eleven that night. She recalled standing at the cash register to make her purchase when two armed men entered the store. Velasco identified Amarillas at a photo lineup and at trial as the person who demanded money from the clerks but could not identify the person who held a gun to her head either from the photographs or at trial because, she explained, she had been too afraid to look at him during the event.
Mindy Ruess testified that she and Trayvon Townsend were working as cashiers at the 7-Eleven that night when, at about 9:00 p.m., Ruess saw a man wearing a dark hoodie enter the store, followed by a second man in a white hoodie. The man in the white hoodie came around the counter, pointed a gun at Trayvon and either told him to get in the safe or to get down on his knees, Ruess could not remember which. Meanwhile, the man in the dark hoodie stood in front of Ruess, pointed a gun at her and told her to get the cash out of the drawer and to open the safe. Ruess was unable to identify either man from photographs shown to her by the police. At a prior court proceeding, Ruess identified Amarillas as the person in the white hoodie. At trial, Ruess identified the man in the “lighter gray shirt” as the man who was wearing the white hoodie. Although the record is unclear, this appears to be a reference to Amarillas, who another witness that day described as wearing a gray-white shirt. Garcia and the People stipulated that no fingerprints matching Garcia’s were recovered at the 7-Eleven.
B. Count 5 (Cavazos Robbery)
Louis Cavazos testified that at about 9:00 p.m. on October 28, 2005, he was working as the cashier at the Cork and Bottle Liquor Store in the City of Lynwood, when Amarillas and Garcia entered the store. Amarillas jumped over the counter, pointed a black semi-automatic weapon at Cavazos and demanded Cavazos give him the money in the cash register. Cavazos could hear Garcia, who was holding a revolver, robbing a customer in the store. Fearful of being shot, Cavazos put the money from the cash register in a bag. As Amarillas started to jump back over the counter with the money, Garcia told him to get some cigarettes. To keep Amarillas from breaking the cigarette display rack, Cavazos grabbed another bag and threw some cigarettes into it. Amarillas then jumped over the counter and left the store with Garcia. Cavazos identified Amarillas and Garcia from photographs shown to him by the police and at trial. Witness Fidel Ramirez generally corroborated Cavazos’s testimony and identified Amarillas and Garcia either by photo lineup or at trial. Garcia and the People stipulated that no fingerprints matching Garcia’s were recovered from the Cork and Bottle Liquor Store.
C. Count 21 (Arnold Attempted Murder) and Count 24 (Ramirez Attempted Murder)
At about 9:45 p.m. on December 12, 2005, Fidel Ramirez was once again working at the Cork and Bottle; on this night, Darryn Arnold was the cashier. Ramirez saw Amarillas and Saavedra enter the store together, but he did not immediately recognize Amarillas from the prior robbery. After Amarillas placed a six pack of beer on the counter, he and Saavedra both pulled out handguns and Amarillas announced, “This is a robbery.” Amarillas and Saavedra both looked at Arnold and told him to give them the money. When Arnold laughed, Amarillas and Saavedra both fired towards Arnold. Arnold fired back, but was shot in the arm and fell to the ground. Amarillas and Saavedra next turned and fired at Ramirez, who was about 10 feet away. When the shooting stopped, Amarillas and Saavedra fled. Ramirez called the police.
Arnold recalled that at about 9:45 p.m., he left the store to chase away a pan handler from in front of the store. While Arnold was away from the cash register, Amarillas and Saavedra entered the store and walked toward the beer. Arnold returned to the cash register and sold some things to another customer. As that customer was leaving the store, Amarillas and Saavedra pulled out guns and announced, “This is a robbery.” Arnold started to laugh. Saavedra asked Arnold what he was laughing at, then pointed his gun at Arnold and started to pull the trigger. Arnold bent down and pulled out his own gun, but Saavedra fired first. When Arnold ducked down to take cover, Amarillas and Saavedra were both shooting at him. As Arnold tried to retrieve more ammunition, Amarillas leaned over the counter and fired multiple shots at Arnold, hitting him once in the arm.
When interviewed by the police about this incident, Amarillas said that he shot at the store clerk only after the store clerk fired at him first. Then, Amarillas fired to the side, in the direction from which he heard shots coming. As he was running out of the store, Amarillas fired into the store several more times. Amarillas told the officers that he knew that someone would probably die if he hit them.
D. Count 28 (Cisneros Attempted Murder) and Count 30 (Gay Attempted Murder)
David Cisneros testified that at about 8:00 p.m. on December 22, 2005, he was working inside the cooler at the Amigos Liquor Market in Long Beach. Through the cooler’s glass doors, Cisneros saw Amarillas holding a gun to the back of his coworker, David Gay. Cisneros also saw a masked man in the store. When Cisneros opened the door to the cooler, Amarillas shot at him; the bullet hit about 20 inches from Cisneros’s head. After Gay broke free and ran outside, Cisneros shot back at Amarillas. Cisneros went back into the cooler and shut the door, but Amarillas continued shooting through the cooler’s glass doors. When Cisneros left the cooler, he saw the masked man was holding a gun, which the masked man fired at Cisneros several times. Cisneros could not identify Amarillas from photo lineups shown to him by the police. About a week after the shooting, Cisneros gave the police two bullets which Cisneros found in the cooler. On January 2, 2006, the Long Beach police detective assigned to investigate the incident showed Cisneros a crime bulletin containing a photograph of Amarillas; the detective’s purpose was to warn Cisneros that the man in the photograph was being sought by the police. Cisneros identified Amarillas as the shooter from the bulletin. A criminalist analyzed the bullets Cisneros found in the store and determined that they were shot from a gun recovered from Amarillas when he was arrested.
David Gay generally corroborated Cisneros’s testimony, but he was too afraid to look at who was firing at him and could not identify anyone in court.
When interviewed by the police about this incident, Amarillas said that while he was behind the counter with the store clerk, he heard a door open; when he looked in the direction of the sound, he saw a man with a gun. Amarillas and this man fired at each other simultaneously. As he left the store, Amarillas heard more shots; he turned around and fired several times into the store.
E. The Investigation
Amarillas was under surveillance by the Los Angeles County Sheriff Department deputies when he was arrested on December 27, 2005. A loaded.38-caliber Titan Tiger revolver was recovered from his pocket. He was also carrying additional ammunition for that gun. While surveilling Amarillas, Deputy Sherriff Quintero had seen him on the balcony of an apartment in a Lakewood apartment complex. After Amarillas was arrested, Quintero returned to the apartment where he had seen Amarillas and arrested Saavedra as Saavedra was coming out of that apartment.
On December 28, 2005, Quintero and a detective from the Long Beach Police Department interviewed Amarillas at the jail. Amarillas admitted committing various crimes including: the October 7, 2005 robbery at the 7-Eleven in Lynwood (counts 1 through 4); the October 28, 2005 robbery at the Cork and Bottle (count 5); the December 12, 2005 shooting at the Cork and Bottle Liquor Store (counts 21 and 24); and the December 22, 2005 shooting at the Amigos Liquor Store (counts 28 and 30).
DISCUSSION
A. Substantial Evidence
Amarillas, Saavedra and Garcia each challenge the sufficiency of the evidence to support certain counts. As we shall explain, there is no merit in any of these contentions.
We begin with the well established test for sufficiency of the evidence: we review the whole record, in the light must favorable to the prosecution and presuming in support of the judgment every fact the jury could reasonably have deduced from the evidence, to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. To be sufficient, the evidence must be reasonable, credible, and of solid value. The reviewing court does not resolve credibility issues or evidentiary conflicts. Conflicts in the evidence, even testimony that is subject to justifiable suspicion, do not justify reversal. A reversal for insufficient evidence is warranted only where it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the jury’s verdict. (Zamudio, supra, 43 Cal.4th at pp. 357-358.) We next turn to the specific contentions of each defendant.
1. Amarillas
Amarillas contends there was insufficient evidence to support the finding that the attempted murders were premeditated. He argues that there was no evidence that the crimes were the products of reflection, consideration or thought. We disagree.
Premeditation and deliberation occur when a defendant weighs and considers the attempted killing and proceeds nevertheless. (People v. Prieto (2003) 30 Cal.4th 226, 253; People v. Wright (1985) 39 Cal.3d 576, 588; People v. Steger (1976) 16 Cal.3d 539, 545.) “ ‘The three categories of evidence for a reviewing court to consider with respect to premeditation and deliberation are: (1) prior planning activity; (2) motive; and (3) the manner of killing. “The process of premeditation and deliberation does not require any extended period of time. ‘The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly....’ [Citations.]” ’ [Citation.]” (People v. Ibarra (2007) 151 Cal.App.4th 1145, 1152.) Typically, a verdict predicated upon a finding of premeditation and deliberation will be sustained when it is supported by some evidence from all three categories, by extremely strong evidence of planning, by evidence of motive and planning, or by evidence of motive and manner of killing. (People v. Anderson (1968) 70 Cal.2d 15, 27.) Planning activity can be inferred from the fact that the defendant obtained a weapon and used it on the victim. (People v. Koontz (2002) 27 Cal.4th 1041, 1082.) Motive can be inferred from evidence that the shooting was to effectuate a robbery. (Ibid.) A manner of killing indicating premeditation can be inferred from evidence that multiple shots were fired at close range (see, e.g., People v. Thomas (1992) 2 Cal.4th 489, 518), and from the absence of any provocation by the victim (People v. Miller (1990) 50 Cal.3d 954, 993).
Here, the jury could reasonably infer premeditation from the evidence that Amarillas came to both crime scenes armed, that he fired multiple shots at the victims at close range, that he did so to effectuate a robbery and acted without provocation. The fact that events unfolded in perhaps an unexpected way does not suggest otherwise. (People v. Brito (1991) 232 Cal.App.3d 316, 323-324.)
2. Saavedra
Like Amarillas, Saavedra contends there was insufficient evidence of premeditation to support his convictions of attempted premeditated murder. The contention fails for the same reasons that Amarillas’s contention failed. Evidence that Saavedra came to the crimes scene armed for the purpose of effectuating a robbery, fired multiple shots at close range, without provocation, is sufficient to support a finding of premeditation.
3. Garcia
Garcia contends the identification evidence was insufficient to support his conviction of the Cavazos robbery (count 5). He argues that Cavazos’s and Ramirez’s identifications of defendant “were tentative and contradicted by other testimony by them and other evidence.”
Garcia’s contention fails because, as we have already explained, conflicts in the evidence, even testimony that is subject to justifiable suspicion, does not justify reversal. The conflicting identification evidence does not establish that upon no hypothesis whatever is there sufficient substantial evidence to support the jury’s verdict. (Zamudio, supra, 43 Cal.4th at pp. 357-358.)
B. Instructional Error
Garcia contends the trial court erred in failing to give CALJIC No. 17.00, which reads: “You must decide separately whether each of the defendants is guilty or not guilty. If you cannot agree upon a verdict as to all the defendants, but do agree upon a verdict as to any one or more of them, you must render a verdict as to the one or more as to whom you agree.” The People concede error but argue it was not prejudicial.
When multiple defendants are being tried, the trial court has a sua sponte duty to give CALJIC No. 17.00. (People v. Mask (1986) 188 Cal.App.3d 450, 457 (Mask).) In Mask, the court found the failure to give CALJIC No. 17.00 harmless under both the Chapman and Watson standards, reasoning that the evidence against the appellant was strong and no evidence was improperly used against the appellant. (Mask, supra, at p. 457.)
Chapman v. California (1967) 386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818, 836.
Here, Garcia and Amarillas were jointly charged with the four robberies occurring at the 7-Eleven on October 7, 2005 (Arias, Velasco, Ruess and Townsend; counts 1 through 4, respectively), and the October 28, 2005 robbery of Cavazos at the Cork and Bottle Liquor Store (count 5). At their joint trial, victims Velasco and Ruess could not identify Garcia (and Townsend did not testify), but Arias positively identified Garcia from a photographic lineup and at trial. Cavazos also positively identified Garcia from a photographic lineup and at trial. Garcia has not pointed to any evidence that was improperly used against him and we have found none. Under Mask, the failure to give CALJIC No. 17.00 in these circumstances was harmless under both the Chapman and Watson standards.
We also observe that, considering the instructions as a whole (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088), other instructions correctly informed the jurors that they must separately decide each defendant’s guilt. For example, the trial court gave: CALJIC No. 2.90, instructing that a defendant in a criminal action is presumed innocent; CALJIC No. 2.72, instructing that no person may be convicted unless there is proof of each element of the crime; and CALJIC No. 2.91, instructing that it was the People’s burden to prove that “the defendant is the person who committed the crime with which he is charged. [¶] If, after considering the circumstances of the identification and any other evidence in this case, you have a reasonable doubt whether defendant was the person who committed the crime, you must give the defendant the benefit of that doubt and find him not guilty.” Finally, separate verdict forms were used for each defendant. We conclude that, based on the instructions as a whole, including the separate verdict forms, no rational juror would conclude that one defendant was guilty simply because another defendant was.
C. Sentencing Error
1. Trial Court Correctly Imposed a Consecutive Sentence on Count 25
Saavedra contends the full consecutive sentence imposed on count 25 (second degree robbery) is an unauthorized sentence. He argues that, because count 25 was tried in the same proceeding as the attempted murders charged in counts 21 and 24, of which he was also convicted, a one-third the midterm sentence should have been imposed on count 25 in accordance with Penal Code section 1170.1, subdivision (a). He is incorrect.
All subsequent statutory references are to the Penal Code.
The principal/subordinate terms methodology set forth in section 1170.1, subdivision (a) applies to determinate terms only. Offenses for which an indeterminate life sentence can be imposed are not subject to section 1170.1. “Consequently there are no principal and subordinate terms to be selected. (§ 1168, subd. (b).) The court simply imposes the statutory term of imprisonment for the indeterminate sentence crime, which in this case is [life with the possibility of parole. (§ 664, subd. (a)]. [¶] Once the court determines what sentence is to be imposed for the indeterminate term offenses and the determinate term offenses, it combines the two to reach an aggregate total sentence. Nothing in the sentencing for the determinate term crimes is affected by the sentence for the indeterminate term crime.” (People v. Neely (2009) 176 Cal.App.4th 787, 798.)
Here, Saavedra was convicted of attempted murder (counts 21 and 24), attempted robbery (counts 22 and 23) and robbery (counts 25 and 26). He was sentenced to a total of 104 years to life in prison, comprised of consecutive indeterminate terms for the attempted murders and consecutive determinate terms for each of the robberies and attempted robberies. The trial court properly calculated the indeterminate and determinate terms separately, and combined them to reach an aggregate total sentence. (Neely, supra, 176 Cal.App.4th at p. 798.)
On the attempted murders, the trial court sentenced Saavedra to an indeterminate term of 70 years to life comprised of the following consecutive terms:
2. Additional Sentencing Errors
The People concede that the trial court made two sentencing errors vìs-a-vìs Amarillas. First, the abstract of judgment incorrectly reflects a stayed section 12022.53, subdivision (d) enhancement on count 32 (robbery), which was neither charged nor found true by the jury. Count 32 of the second amended information charged Amarillas with second degree robbery and alleged a section 12022.53, subdivision (b) (personal use of a firearm) enhancement. The jury found Amarillas guilty of the robbery and found true the enhancement. The People’s sentencing memorandum correctly stated that the jury found true a section 12022.53, subdivision (b) enhancement on count 32, and recommended imposing 3 years 4 months (one-third of 10 years; i.e., 40 months) on that enhancement. According to the minute order from the sentencing hearing, the trial court correctly sentenced Amarillas to 40 months on the count 32 enhancement. The abstract of judgment indicates that sentence. However, the abstract of judgment also identifies a stayed section 12022.53, subdivision (d) enhancement on count 32.
Second, the trial court improperly sentenced Amarillas to 15 years to life for attempted, premeditated murder (counts 21, 24, 28 and 30) when the correct sentence for that crime is life with the possibility of parole (see § 664, subd. (a)). This second contention is equally applicable to Saavedra, who was also improperly sentenced to 15 years to life for attempted murder (counts 21, 24).
We agree with these contentions and order the judgment modified accordingly.
DISPOSITION
As to Amarillas, the abstract of judgment is modified to reflect a sentence of life in prison with the possibility of parole on counts 21, 24, 28 and 30 for a total sentence of 225 years 8 months to life in prison; and to strike the reference to section 12022.53, subdivision (d) on count 32. As to Saavedra, the abstract of judgment is modified to reflect a sentence of life in prison with the possibility of parole on counts 21 and 24 for a total sentence of 74 years to life in prison. The trial court is directed to modify the abstracts of judgment to reflect these changes and to send a copy of the modified abstracts to the Department of Corrections. In all other respects, the judgments are affirmed.
WE CONCUR: BIGELOW, P. J., GRIMES, J.
Count 21 (attempted murder): 15 years to life; plus a consecutive 20 years pursuant to section 12022.53, subdivision (c).
Count 24 (attempted murder): 15 years to life; plus a consecutive 20 years pursuant to section 12022.53, subdivision (c).
On the robberies and attempted robberies, the trial court sentenced Saavedra to a determinate term of 34 years comprised of the following consecutive terms:
Count 22 (attempted robbery): 8 months (one-third the 24-month midterm); plus a consecutive 6 years 8 months (one-third of 20 years) pursuant to section 12022.53, subdivision (c).
Count 23 (attempted robbery): 8 months (one-third the 24-month midterm); plus a consecutive 6 years 8 months (one-third of 20 years) pursuant to section 12022.53, subdivision (c).
Count 25 (robbery): 5-year upper term, plus a consecutive 10 years pursuant to section 12022.53, subdivision (b).
Count 26 (robbery): 1 year (one-third the 3-year midterm); plus a consecutive 3 years 4 months (one-third of 10 years) pursuant to section 12022.53, subdivision (b).