Opinion
B160428.
7-30-2003
THE PEOPLE, Plaintiff and Respondent, v. ROLANDO SORIANO, Defendant and Appellant.
Linda Acaldo, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Kenneth N. Sokoler and Juliet H. Swoboda, Deputy Attorneys General, for Plaintiff and Respondent.
STATEMENT OF THE CASE
In an amended information, Rolando Soriano, appellant, was charged with two counts of criminal threats, a serious felony (Counts 1 and 3, Pen. Code §§ 422; 1192.7, subd. (c)), one count of misdemeanor brandishing of a weapon (Count 2, § 417,
All undesignated statutory references are to the Penal Code.
subd. (a)(2)), and one count of robbery, a serious felony. (Count 4, §§ 211; 1192.7, subd. (c).) It was further alleged that in the commission of the offenses, a principal in the offense was armed with a firearm (§ 12022,subd. (a)(1)), and that the appellant personally used a firearm (§§ 12023.06 subd. (a)(1) and 12022.5, subd. (a)(1)) making the crime a violent felony (§ 667.5 subd. (c)(8)). As to counts 3 and 4 a special allegation was added that appellant was released from custody on bail at the time of the commission of those offenses. (§ 12022.1.)
Appellant pled not guilty and denied the special allegations. Appellants motion to bifurcate the matter of the special allegations was granted. Appellants motion pursuant to section 1118.1 was denied. A five-day jury trial was conducted and appellant was found not guilty of counts 1 and 3, and guilty as charged in counts 2 and 4. The special allegation that appellant had been out on bail was dismissed by the prosecution.
Probation was denied and the court sentenced appellant to five years in state prison on the robbery conviction and six concurrent months in jail on the brandishing conviction.
Appellant filed a timely notice of appeal.
STATEMENT OF FACTS
Count 1
Viewed in accordance with the usual rule of appellant review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206, 864 P.2d 103), the evidence revealed that Satnam Singh Thiara owned the Silversun Liquor Store at 2901 Sunset Blvd. in Los Angeles. He had owned the store since 1997 and worked there seven days a week from noon to 2:00 a.m. or, sometimes, from 1:00 p.m. to 2:00 a.m. His wife ordinarily opened the store at 7:00 a.m. and worked there until he arrived to start his shift. Appellant came into the store many times.
On October 20, 2000, appellant came into the store around 11:30 p.m. Singh said to appellant, "First and foremost you are dressed like a cholo. Others customers dont like to be around when you are here. And when you are standing behind my counter dressed like this, customers wonder what you are doing back there. Doesnt look good. Please dont come into this area." Appellant responded: "This is the area of Silverlake. We are the owners of Silverlake, and we will do whatever we want in this area."
Appellant walked over to a VCR and took out the cassette. He returned to the counter and pulled up his shirt and displayed a gun in his waistband. Appellant told Singh, "I will shoot you. I will kill you." Appellant then took some liquor and beer and left without paying for them. Singh believed that either he or his employee pushed the alarm button. Mr. Singh testified that he was "not afraid at all for [his] life, because [his] life is in gods hand. He also testified that he was afraid appellant may cause harm to him or his family.
Count 2
On October 28, 2000, Cesaria Gonzalez was at home on Silverlake Avenue in Los Angeles. Her home was situated on the rear of a lot with two houses on the same lot. Gonzalez had seen appellant several times before when he visited the people in the front house. On occasion appellant had visited with Gonzalez boyfriend, who lived with her.
On October 28, 2000, Ms. Gonzalez had a confrontation with appellant regarding a noisy party occurring in the yard between the two residences. On a number of prior occasions appellant held parties in the yard that went on into the night. Gonzalez boyfriend attended some of the parties, but often the parties would occur when he was out of town or working nights. On October 28, appellant and others were drinking in the backyard around 3:00 a.m. without her permission. Gonzalez heard loud music, loud talking and screaming. Gonzalez went to her front porch and started screaming at them.
Appellant and others answered back and profanities were exchanged. Gonzalez and appellant approached each other. Appellant pulled a gun out of his waistband and showed it to her. Appellant held the gun in front of him with the muzzle facing to his left side, but did not point the gun at Gonzalez. The gun was stainless steel and looked like a .38 caliber snub nose revolver. Gonzalez daughter said she was going to call the police and everyone dispersed. She called 911.
Count 3 (Criminal Threats - Acquittal) and Count 4 (Robbery - Conviction)
On September 16, 2001, at approximately 11:30, appellant entered in Singhs liquor store with another person. Mr. Aldrich, who worked for Singh, and two or three other customers were already in the store. Appellant approached them and began talking to them. Appellant told Singh to tell those people that he, appellant, was the owner of the store. Singh thought appellant was drunk or trying to create trouble. He said, "It is Silverlake, but it is my store." Appellant became very angry and his voice became loud. He walked the length of the counter in order to go behind the counter to the employee side. Appellant came up to where Mr. Singh was waiting on customers and pushed him three or four times. He struck Mr. Singh on the chest and hit him on the left shoulder. He then began to hit the counter with both hands very hard and starting curing at Singh. He said things like "You sister fuckers, you Hindi people - Indian people." He probably said "Fucking Indian" at least 25 times. He kept striking the counter and telling Mr. Singh to "tell all these people that I am the owner of this liquor store. Tell everybody that Silverlake gang is the one that is the owner of this liquor store."
Appellants companion tried to stop him, saying, "Why are you fighting? Stop it. Stop it." Appellant then went to the store VCR, pulled out the wires and broke them. He also took the cassette out of the machine. He then told Singh "we are gangsters. We can kill your whole family. We can kill you. We can stand outside and shoot you from there. You cant do a thing to us. Neither can the police of this area. We dont leave evidence of any sort."
Appellant exposed his penis and said to Singh, "Fuck me, what can you do to me." Appellant broke the lock on a beer cooler door and took two liquor bottles. He returned to the customer side of the counter and hit the counter with the bottles. He threw one bottle to the floor and took the other bottle with him. Appellant also told Singh, "If we throw a bomb, what will you do to us? Nothing." Appellant went out to the parking lot and told customers entering the store "Fucking Indians. They are fucking Indians. They are fucking Indians." Appellant was in the store for about 20 minutes and was continually shouting and threatening.
Singh was afraid for his life and for that of his wife. He did not want to testify against appellant. He testified that appellant said many, many times, "You should know . . . we can kill your whole family. We can kill you. We can stand outside and shoot you from right there. You cant do a thing to us. Neither can the police of this area do anything to us. We dont leave any evidence of any sort. What are they going to do to us? Nothing."
Later LAPD Detective Varga showed Singh a six-pack of pictures and Singh selected the picture of appellant as that of the assailant. Mr. Aldrich also recognized appellant.
Defense Testimony
The following stipulations were agreed to by the parties: 1) Los Angeles Police Department had no record of a 911 call made regarding the October 20, 2000 incident;
2) that ADT security conducted a search of its records and found no record of an alarm activation on October 20 or 21, but there was a record on September 16, 2001, and
3) Singh had not told police appellant had a gun in his hand on September 16, 2001.
Prosecution Rebuttal
LAPD Officer Albert Polehencksi met with Singh on November 15, 2000 to interview him about the October 20 event. Singh told the officer that a person entered his store and displayed a gun. Singh also said that the person threatened to shoot and kill him. Singh told that Polehencksi the gun was a large caliber, blue steel automatic handgun. He told Polehencksi that the gun was different from the one that Polehencksi carries which is a .38 revolver. Singh never told the officer that appellant had exposed himself in the store.
LAPD Detective Luis Vargas spoke to Singh about the September 16, 2001 incident. Singh did not tell Vargas that appellant had threatened to kill Singh and bomb his store. Singh told Vargas he was very afraid of this gang.
CONTENTIONS ON APPEAL
Appellant raises the following contentions on appeal: 1) The court erred in refusing to instruct upon petty theft as to Count 4; 2) The trial court erred in instructing pursuant to CALJIC No. 17.41.1; and, 3) the trial court erroneously considered the evidence underlying the acquitted counts in deciding to impose the upper base term on Count 4.
Respondent disagrees with every contention raised by appellant.
Instruction On Petty Theft
Appellant contends that the trial court erred when it denied appellants request to instruct the jury with the crime of petty theft as a lesser included offense to robbery. 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 of force or fear." (§ 211.) Petty theft is a robbery without the use of force or fear, and is a lesser included offense of robbery. (People v. Ramkeesoon (1985) 39 Cal.3d 346, 351, 216 Cal. Rptr. 455, 702 P.2d 613; People v. Brito (1991) 232 Cal. App. 3d 316, 325, 283 Cal. Rptr. 441.)
It is axiomatic that "in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] . . . [Citation.] That obligation has been held to include giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citation] . . . ." (People v. Sedeno (1974) 10 Cal.3d 703, 715, 112 Cal. Rptr. 1, 518 P.2d 913, overruled on other grounds by People v. Breverman (1998) 19 Cal.4th 142, 960 P.2d 1094.) The question of whether a lesser included offense instruction should have been issued by the trial court is reviewed de novo on appeal. (People v. Waidla (2000) 22 Cal.4th 690, 733, 996 P.2d 46.)
"When there is evidence from which the jury could find the lesser included offense was committed, the trial court must instruct on it even if inconsistent with the defense elected by the defendant." (People v. Brito, supra, 232 Cal. App. 3d 316, 326, fn. 9, citing People v. Sedeno, supra, 10 Cal.3d at p. 717, fn. 7.) Failure to instruct on a lesser included offense requires reversal if it is reasonably probable that the jury would have returned a verdict more favorable to the defendant absent the error. (People v. Breverman, supra, 19 Cal.3d at pp. 164-178.) An instruction regarding a lesser included offense is not necessary where the evidence indicates the defendant was either guilty of the greater offense or was not guilty at all. (People v. Ordonez (1991) 226 Cal. App. 3d 1207, 1233, 277 Cal. Rptr. 382; People v. Kelly (1990) 51 Cal.3d 931, 958-959, 275 Cal. Rptr. 160, 800 P.2d 516.)
Appellant argues that the facts adduced at trial called for instruction on petty theft because a jury could have found that no force or fear occurred during the taking of liquor bottles. Appellant argues that Mr. Aldrich, who worked at Singhs store, did not describe a robbery and if you ignore the testimony of Mr. Singh, the remaining evidence is insufficient to establish a robbery and therefore the petty theft instruction should have been given. We disagree with appellant that the testimony of Mr. Singh is to be ignored. The fact that the jury acquitted appellant on the charges of criminal threats does not mean that the jury discredited his testimony in all aspects. Singhs testimony was that there was a verbal altercation between himself and appellant, that appellant displayed a gun, broke the lock on the beer locker and removed the liquor without permission. This describes a robbery, not a petty theft.
Based on the evidence in this trial, no factual basis existed for the jury to conclude that appellant did seize the liquor bottle without the use of force and/or fear and, accordingly, the trial court was not required to give a petty theft instruction. (See People v. Dorsey (1995) 34 Cal.App.4th 694, 704 [holding that the trial court did not err in failing to instruct on theft related offenses rather than robbery because the evidence could only support a finding of robbery].)
CALJIC 17.41.1
Appellant contends that the trial judge erred when instructing the jury with CALJIC No. 17.41.1. Appellant argues that this instruction: "(1) improperly chilled jury deliberations; (2) improperly empowered the majority jurors to impose their will on the minority; and (3) impermissibly infringed on the power of jury nullification." Appellant acknowledges awareness of the California Supreme Courts recent ruling in People v. Engelman (2002) 28 Cal.4th 436, but nevertheless presents the argument for consideration.
CALJIC No. 17.41.1 provides: The integrity of a trial requires that jurors, at all times during their deliberations, conduct themselves as required by these instructions. Accordingly, should it occur that any juror refuses to deliberate or expresses an intention to disregard the law or to decide the case based on [penalty or punishment, or] any [other] improper basis, it is the obligation of the other jurors to immediately advise the Court of the situation."
As acknowledged by appellant, our Supreme Court recently rejected similar arguments in People v. Engelman, supra, 28 Cal.4th 436. Although it found no merit in the defendants state and federal constitutional claims (id. at pp. 441, 444), the court in Engelman nevertheless concluded the instruction posed too great a risk of intruding on the jurys deliberative processes and ordered that it no longer be used. (Id. at pp. 446-449.)
Appellant does not contend and the record here does not show that the instruction had any such effect on the jurys deliberations. Jury deliberations commenced on June 25 at approximately 11:55 a.m. and continued on June 26, 2002. The jury reached a verdict at 2:15 on June 26, 2002. During their deliberations, the jury asked for a clarification of what turned out to be a typographical error in the jury instructions on the criminal threats counts and asked for clarification of the alleged dates of certain offenses.
Nothing in the record indicates any jurors were reported for refusing to follow the courts instructions, that the jury had any difficulty in reaching a verdict, or that the court in any way improperly intruded into its deliberations. Moreover, in the present case, there was no jury deadlock, no juror holdout, and no report of any juror refusing to follow the law, and therefore no indication the instruction affected the verdict in any way. To the extent any error might have occurred by the giving of CALJIC No. 17.41.1, we therefore hold that it was harmless. (People v. Molina (2000) 82 Cal.App.4th 1329, 1335-1336.)
Evidence On Acquitted Counts.
Appellant argues that when sentencing a defendant, "a trial court must not utilize counts of which the defendant was acquitted to increase the defendants sentence." (People v. Takencareof (1981) 119 Cal. App. 3d 492, 174 Cal. Rptr. 112; see also People v. Richards (1976) 17 Cal.3d 614, 131 Cal. Rptr. 537, 552 P.2d 97.)
Respondents reply is that:
"when sentencing, the court may indeed consider the entire record. Respondent submits that the trial court properly concluded that the prosecution proved by a preponderance of the evidence that appellant committed the two charged offenses of criminal threats. Upon such a finding, the trial court obviously could not have imposed a separate sentence for those counts of which appellant was acquitted. However, the facts of these offense, reliability of witnesses at trial, and other factors could be considered by the judge in setting the term for the offense for which a guilty verdict was rendered."
A sentencing court may impose the upper term if, "after a consideration of all the relevant facts, the circumstances in aggravation outweigh the circumstances in mitigation." (Rule 4.420(b).) On appeal, we may reverse a trial courts discretionary sentencing decision only if the court has abused its discretion. (People v. Cruz (1995) 38 Cal.App.4th 427, 433-434; People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831.) "The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review. [Citations.]" (Du, at p. 831.)
Furthermore, a court may rely upon a single factor in aggravation to support imposition of an upper term (Cruz, supra, 38 Cal.App.4th at p. 433; People v. Castellano (1983) 140 Cal. App. 3d 608, 615, 189 Cal. Rptr. 692) and reject all mitigating factors, either expressly or impliedly (People v. Salazar (1983) 144 Cal. App. 3d 799, 813, 193 Cal. Rptr. 1). Lastly, a courts reliance upon an impermissible or unproven aggravating factor will not require reversal or modification of a sentence if it is not reasonably probable that the trial court would have imposed a more favorable sentence in the absence of the alleged error. (People v. Scott (1994) 9 Cal.4th 331, 355, 885 P.2d 1040.)
Appellant argues that in this case, the trial judge erroneously considered the evidence regarding criminal threats offered in support of dismissed counts in selecting the upper term. Appellant cites People v. Takencareof, supra, 119 Cal. App. 3d 492, 495-497 as support for his position. In Takencareof, the defendant was charged with two counts of burglary and one count of arson. He pleaded guilty to one count of burglary, but he was acquitted of the other charges after a jury trial. When sentencing the defendant for the burglary, the trial court referred to the great harm caused by the arson as a circumstance that warranted denial of probation. (Id. at p. 497.) The appellate court held that, inasmuch as the defendant was acquitted of the arson, the trial court could not base its burglary sentence upon the conclusion that the defendant actually committed arson. (Id . at p. 500.)
In this case, during the sentencing proceedings the trial judge made numerous references to the threats allegedly made by appellant to Mr. Singh. The trial judge made the following remark when defense counsel made a reference to probation:
"But, you know, he - the testimony I heard is just - theres no way that I would give him probation based on the facts I heard in the trial. This gentleman is, essentially, from my opinion, someone who is terrorizing a neighborhood, either pretending to be or presently thinking he is a gang member.
"Whether he is or isnt doesnt make any difference. I heard the testimony. He went into a liquor store, and he terrorized the liquor store owner. If you think Im going to give him probation, its not going to happen.
The court went on:
"Well, he was found not guilty of making certain kinds of threats. I dont know that I have to disregard all of the conduct that was in the record, which - for example, fucking Indian, and, Im going to come back or my gang, Silverlake 13 . . . is going to do certain things. I dont think I have to disregard all of that."
During the actual imposition of sentence, the trial court stated:
"The court is prepared to sentence now. The court does not agree with the defense that this individual is someone that should be given probation.
"And, essentially, looking at the factors which affecting probation under Rule 4.14, it finds a number of them which would prevent or at least affect the courts ability to grant probation, including the fact that —the nature and seriousness and circumstances of the crime as compared to other crimes . . . I believe there is some criminal sophistication, the way this crime was carried out - specifically, the destruction of the VCR tape.
"And more significantly, the overall attempt by this defendant, on numerous occasions to threaten and intimate the victim in this matter . . . .
"The prior record of criminal conduct Ive already indicated, but he has had an escalating record as both a juvenile and adult. . . . I am considering some of the juvenile matters.
"In addition, as has been already pointed out by the prosecution, he had two victims in this case, so he has found it possible to sort of act in this violent, intimidating manner with not one person, but two people.
"And finally, his prior performance has not been really good, whether you call it summary probation or not. The court looked at the file and found a number of bench warrants, found a number of cases where the defendant did not comply initially with terms of his probation.
"So I am rejecting probation under Rule 4.14 and I am now moving to what state prison sentence I should give the defendant."
The court went on to sentence appellant to state prison for the high term of five years. Regarding his election to sentence to the high term, the trial judge stated:
"The court makes the following findings regarding - First of all, these are the circumstances in aggravation that the court finds: The court does find that the crime involved great violence, great bodily harm, and I emphasize this one: threat of great bodily harm. Even though the defendant did not hurt the liquor store owner, he certainly threatened to do that.
"And I will indicate: I think theres lots of factors, but, although the jury did not find the defendant guilty of 422, there is conduct and activity that is less than 422 which I would put in the box of verbal threats, and I believe your client engaged in that.
[P] . . . [P]
"So I find the factor in aggravation, number one, to be true.
[P] . . . [P]
"Overall, the court has the following comments to make - and I11 talk briefly about mitigation, but I really do accept factually that there were a number of attempts made on this store owner to intimidate him. I also was very much taken with the fact that the defendant used the fact that he was part of a gang — or alleged that he was part of a gang - to further intimidate the store owner, which to me makes the crime more serious. [re the two victims]
[P] . . . [P]
"I note that in each of the incidents with the two victims, the threats were clear, they were unmistakable and this defendant, certainly in a verbal manner, was extremely violent.
"Then we have the actual charge itself, which was robbery and this is a serious criminal charge.
[P] . . . [P]
"I find that this crime is unacceptable. This is what I want to call, for want of a better word, street terrorism at its worst. It is just not proper for a regular, ordinary citizen who is trying to make a living to have to combat and withstand attempts at intimidation on a regular basis. This is unacceptable, so I am going to choose the high-term to sentence the defendant . . . ."
Although the trial judge is entitled to consider the totality of the circumstances is deciding the appropriate sentence to impose on a convicted defendant, the evidence in this case indicates that the trial judge had a preoccupation with the alleged threats against and intimidation of Mr. Singh. His remarks throughout sentencing make repeated reference to these facts, both in reference to the denial of probation and again with reference to the selection of the high term as the base term for sentencing.
Based on this record we will reverse the sentence and remand the case to the trial court for re-sentencing with direction to the trial judge that although he can consider the totality of the facts surrounding this incident including facts underlying the acquitted charges, he may not base his sentencing decision on the dismissed counts themselves and should clarify the basis on which he makes his sentencing determinations. In making this remand, we are not suggesting or commenting on what the appropriate sentence for appellant should be.
DISPOSITION
The judgment of the trial court is reversed and remanded for re-sentencing.
We concur: RUBIN, J., BOLAND, J.