Opinion
G035580
12-14-2006
THE PEOPLE, Plaintiff and Respondent, v. MARCO ANTONIO MONROY, Defendant and Appellant.
Tonja R. Torres, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Holly D. Wilkens and William M. Wood, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Marco Antonio Monroy was convicted of eight counts involving the attempted murder, kidnapping and carjacking of one victim, and the robbery or attempted robbery of four others. He claims there is insufficient evidence on a number of the charges and that he was improperly sentenced under Penal Code section 654. We find no error and affirm.
Subsequent statutory references are to the Penal Code.
I
FACTS
A. Janosik Kidnapping/Attempted Murder
Brenda OCampo was the girlfriend of codefendant Mynor Rolando Cordon-Suchitz. On February 3, 2002, OCampo, who was pregnant, moved in with Cordon-Suchitz at the apartment where he rented a room. Defendant and codefendant Antonio Muratalla Coyazo also stayed at the apartment, and slept on the floor that night and the following night.
On the morning of February 5, Cordon-Suchitz used his cell phone to make a five-minute call to the home of Paul Janosik. That afternoon, OCampo dropped defendant, Cordon-Suchitz and Coyazo at a convenience store in Santa Ana.
Cordon-Suchitzs phone bill showed three more calls to Janosiks residence between 12:00 and 12:30 p.m. OCampo next saw Cordon-Suchitz a few hours later at their apartment.
Janosik worked as a dentist in Santa Ana and lived in Laguna Niguel. Janosiks cousin, Matthew Janosik (Matthew), was living with Janosik at the time. Matthew saw Janosik on the evening of Monday, February 4. On Tuesday morning, Janosiks bedroom door was closed, and Matthew believed he was still asleep. Later that day, when Matthew returned, the door was open and Janosik was gone.
On Tuesday afternoon, Danica Carrillo was in her car with her mother and daughter in a parking lot on the U.C. Riverside campus. She saw a man, Janosik, stumbling from the orange groves near the parking lot. Janosik was severely injured, with blood gushing from his head and his eye bulging. Carrillo helped Janosik to a sidewalk and called 911. Janosik was initially mumbling hysterically, but then said three men had beaten him and stolen his car.
Paramedics treated Janosik at the scene. A police officer saw duct tape wrapped around Janosiks wrists, which he removed and preserved.
At the hospital, Janosik was treated by an ophthalmologist, who testified Janosik had extensive skull and facial fractures, including fractures of both eye sockets. His left eye had been destroyed by a gunshot wound that entered at the left temple and exited over the right eye. He also had a gunshot wound to the right arm.
At the U.C. Riverside parking lot, the police found pooled blood and an expended casing at the bottom of a ravine next to the parking lot. There was also a trail of blood drops across the parking lot.
On Tuesday evening, OCampo and Cordon-Suchitz went shopping, and OCampo locked her keys in her car. She and Cordon-Suchitz called defendant and Coyazo, and they arrived with Coyazo driving a car later identified as Janosiks. OCampo did not know where the car had come from.
B. February 7 Robberies
Defendant was also convicted of being involved in a series of robberies in the Garden Grove area on the night of February 7. We note these only briefly because the facts of the robberies themselves do not relate directly to any of the issues on appeal. Suffice to say that on February 7, in fairly quick succession, Steve Tran was robbed in the parking lot of a Costco, Robert Rosales was robbed in front of a condominium complex, David Bella was the victim of an attempted robbery in front of his home, and Chanh Tang was robbed in the parking lot of the Garden Grove Target store.
C. Detention, Investigation and Trial
On the night of February 7 and early in the morning on February 8, Santa Ana Police Officer Raul Rivera was on patrol. He noticed a Ford Focus behind him, and took note that the car did not pass him, even though Rivera was traveling very slowly. When the car finally passed him, Rivera radioed in the license plate and was advised the plate had been reported lost or stolen. Rivera activated his overhead lights, but before the car stopped, he saw an object come out of the window and heard a crashing sound. After making the stop, Rivera returned to the area and located a .45 caliber semiautomatic handgun in the bed of a parked truck.
Coyazo was driving the Focus, and defendant was the passenger. Defendant identified himself as Robert Garcia, and was carrying $ 152 in cash. The car contained paper work in Janosiks name and its vehicle identification number established it was registered to Janosik. The police also found three expended .45 caliber shell cases and a roll of duct tape in the back seat area.
At trial, a forensic firearm examiner testified that the three shell casings found in the car and the bullet taken from Janosiks arm came from the .45 caliber handgun that was thrown from the car. A forensic supervisor testified that a latent fingerprint lifted from the roll of duct tape matched Cordon-Suchitzs left index finger. Other fingerprints in the car matched Coyazo.
After Cordon-Suchitz was arrested, he admitted he shot Janosik during a police interview. At the time, he had two check cashing cards belonging to Janosik in his possession.
Defendant was interviewed by Santa Ana Police Officer Dean Fulcher, and a videotape of the interview was played for the jury. He initially claimed he had met Coyazo on the street in Santa Ana the previous week, that they had found the car on Tuesday, and the gun had been under the cars seat. He stated he needed money and admitted committing several robberies. Defendant asked about Janosik, but claimed he was not present when Janosik was shot. He said that someone shot Janosik, but he did not know why, and his back had been turned. When police left the room, he made several incriminating statements in Spanish, such as "Im [explicative]."
Defendant, Coyazo and Cordon-Suchitz were charged by the district attorney on December 8, 2003, in an amended information. They were charged with attempted premeditated murder (Pen. Code, §§ 664, 187; count one); kidnapping for robbery (§ 209, subd. (b), count two); kidnapping for carjacking (§ 209.5, subd. (a), count three); carjacking (§ 215, subd. (a), count four); and robbery (§ 211, count five). Counts one through five referred to the assault on Janosik. Defendant and Coyazo were also charged with three counts of robbery (§ 211, counts six, seven and eight) and one count of attempted robbery (§§ 664, 211, count nine.) Those counts referred to the robberies of Tran, Rosales, and Tang, and the attempted robbery of Bella. The information also alleged that as to counts one through five, defendant was armed with a firearm (§ 12022, subd. (a)(1)) and that as to counts six through nine, defendant personally used a firearm.
Defendant was tried separately from his codefendants. Pursuant to defendants motion under section 1181.1, the court dismissed the kidnapping for carjacking charge in count three and the associated enhancement, and also dismissed the enhancement on count six. The jury found defendant guilty of all the remaining charges and found the associated enhancement allegations true.
There is some confusion as to whether the court dismissed the enhancement on count six (Tran robbery) or count eight (Tang robbery). Respondent states the minutes, which indicate the enhancement on count eight was dismissed, are wrong, and the jury was instructed it was the enhancement on count six that was to be disregarded. The courts statements reflect that it intended to dismiss the enhancement as to the Tran robbery. We therefore find the minute order was a typographic error and that the court dismissed the enhancement on count six. (The jury found the enhancement true as to count eight.)
On the peoples motion, the court dismissed count five and its associated enhancement. The court sentenced defendant to state prison for life with the possibility of parole, plus 25 years 4 months.
II
DISCUSSION
A. Sufficiency of the Evidence
Defendant claims that his due process rights were violated because there was insufficient evidence to support the convictions on counts one (attempted murder), two (kidnapping for robbery) and four (carjacking). Despite defendants choice to couch these arguments in constitutional terms, he offers nothing different from any case in which a defendant argues the sufficiency of the evidence.
"Our role in considering an insufficiency of the evidence claim is quite limited. We do not reassess the credibility of witnesses [citation], and we review the record in the light most favorable to the judgment [citation], drawing all inferences from the evidence which supports the jurys verdict. [Citation.] By this process we endeavor to determine whether `"any rational trier of fact" could have been persuaded of the defendants guilt. [Citations.]" (People v. Olguin (1994) 31 Cal.App.4th 1355, 1382.) Our review, however, is not an empty exercise. The record must contain substantial evidence, "`i.e., evidence that is credible and of solid value." (People v. Jennings (1991) 53 Cal.3d 334, 364.)
1. Kidnapping for Robbery
The crime of kidnapping for robbery requires that a kidnapping be in furtherance of a robbery. (§ 209.) Thus, at the time the kidnapping is committed, the intent to commit a robbery must already be formed. Defendant claims there is insufficient evidence that an intent to rob Janosik existed before the moment of the kidnapping — in this case, the movement of Janosik from the car to the ravine. Defendant points to the lack of direct evidence about what occurred between Santa Ana and Riverside and argues it was possible that defendant and his codefendants never considered robbing Janosik until after he was shot.
When reviewing the evidence, we presume "in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.] The same standard applies when the conviction rests primarily on circumstantial evidence. [Citation.] Although it is the jurys duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendants guilt beyond a reasonable doubt. [Citation.] `"If the circumstances reasonably justify the trier of facts findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. [Citation.]" [Citation.]" (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054.)
The evidence established that at the time of the events, defendant, by his own admission, needed money. He was sleeping on someone elses floor. The jury had evidence from which it could infer that that Cordon-Suchitz knew Janosik — he had his telephone number and made a five-minute call to him. Defendant, Cordon-Suchitz and Coyazo were dropped off together in Santa Ana, and did not reappear for several hours. Janosik appeared in the parking lot several hours later, shot in the head and saying that three men had beaten him and stolen his car. Defendant and Coyazo were seen by OCampo in Janosiks car that night, and then after a string of similar robberies two days later, are stopped while driving Janosiks stolen car.
The jurys apparent inference that the main, if not the only, reason that the three men ever met Janosik on the day in question was to rob him was entirely reasonable. Indeed, any other explanation belies logic. Defendant offers only his own vague statement to the police that the reason for the shooting was that Janosik "disrespected" him, but does not indicate when this allegedly occurred. The jury was free to find this statement lacked all credibility.
The evidence more than supports the contention that the intent to rob Janosik formed before Cordon-Suchitz placed the initial phone call to him that morning. Defendants contention that events could have occurred in other ways does not undermine the reasonableness of the jurys conclusion that the intent to rob Janosik was formed well before he was moved from the car to the ravine. (People v. Kraft, supra, 23 Cal.4th at pp.1053-1054.)
2. Carjacking
"`Carjacking is 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."
(§ 215, subd. (a).) Carjacking is a form of robbery, and therefore, the intent to steal must arise prior to or during the application of force or fear, and force or fear be used to accomplish the theft. (People v. Bolden (2002) 29 Cal.4th 515, 556.)
Defendant does not argue that there was insufficient evidence of his involvement, rather, that there was insufficient evidence that the intent to steal Janosiks car arose prior to or during the application of force. He argues it was equally reasonable to infer that the intent to take the car was "an afterthought" formed subsequent to the shooting. He again asserts the limited amount of circumstantial evidence presented regarding what happened between Santa Ana and Riverside lent itself to "rampant speculation and numerous reasonable interpretations" about what might have happened.
As discussed with respect to the kidnapping for robbery charge, it was entirely reasonable for the jury to conclude that the plan — at a minimum, to rob Janosik and steal his car — was formed before Cordon-Suchitz made the initial phone call to Janosik early that morning. The evidence supports an inference that the three men had, at least, a gun with them at the time they met Janosik, bolstering the argument that their intent to steal the car was formed well before the use of any force or fear. Defendants claims that other conclusions might also have been formed does not undermine the reasonableness of the jurys inferences or the sufficiency of the evidence. (People v. Kraft, supra, 23 Cal.4th at pp.1053-1054.)
3. Attempted Murder
Defendant does not contend that the attempted murder of Janosik was not premeditated and deliberated, but that there was insufficient evidence of his personal liability. At trial, the prosecution conceded that Cordon-Suchitz shot Janosik. The jury was instructed on theories of both aiding and abetting and conspiracy.
Aiding and abetting creates liability for the natural and probable target consequences of other crimes, in this case, robbery and carjacking. "The actual perpetrator must have whatever mental state is required for each crime charged . . . . An aider and abettor, on the other hand, must `act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense. [Citation.] [O]nce the necessary mental state is established, the aider and abettor is guilty not only of the intended, or target, offense, but also of any other crime the direct perpetrator actually commits that is a natural and probable consequence of the target offense. [Citation.]" (People v. Mendoza (1998) 18 Cal.4th 1114, 1123.) Thus, if there is sufficient evidence that defendant had knowledge and the intent to commit, encourage, or facilitate the commission of either robbery or carjacking, and the natural and probable consequence of either crime was attempted murder, defendant may be held liable.
Under a conspiracy theory, each conspirator is jointly responsible for the acts of any of the others in carrying out the common purpose, including all natural and probable consequences therefrom. (People v. Flores (2005) 129 Cal.App.4th 174, 182.) Thus, if there was sufficient evidence of a conspiracy to commit either robbery or carjacking, and the attempted murder was the natural or probably consequence, defendant may be held liable for the attempted murder.
Because of the natural and probable consequences doctrine, it is not required, under either a conspiracy or an aider and abettor theory, that defendant knew Cordon-Suchitz intended to kill Janosik. Thus, his entire argument that he was unaware of any such intent is irrelevant if the attempted murder was the natural and probable consequence of either the robbery or the carjacking, if defendant conspired to commit or aided and abetted either crime.
As discussed above, with respect to the carjacking charge, there was sufficient evidence that defendant intended to commit carjacking. The same facts apply equally to the evidence of defendants guilt of the crime of robbery. Under an aiding and abetting theory, nothing more is required to establish that defendant had a culpable mental state.
All that is left is to determine whether attempted murder is the natural and probable result of either robbery or carjacking. The jury found it was, and that conclusion was entirely reasonable. Any robbery committed with a gun might obviously lead to the use of that gun. "[M]urder is generally found to be a reasonably foreseeable result of a plan to commit robbery and/or burglary despite its contingent and less than certain potential." (People v. Nguyen (1993) 21 Cal.App.4th 518, 530.) Thus, we find there was sufficient evidence to support defendants conviction for first degree murder.
B. Section 654
The court sentenced defendant to an indeterminate term of life for count one, premeditated and deliberated attempted murder. Defendant was also sentenced for count four, carjacking, to a determinate term of one year eight months. Defendant claims the court erred by not staying the sentence on count four pursuant to section 654.
The purpose of section 654 is to ensure that a defendants punishment is commensurate with his culpability. (People v. Perez (1979) 23 Cal.3d 545, 550-556.) It requires that an act or omission that is made punishable in different ways by different provisions of the Penal Code may be punished under either of such provisions, "but in no case shall [it] be punished under more than one . . . ." (§ 654, subd. (a).) This provision bars multiple punishment when a defendant is convicted of two or more offenses that are incident to one objective. (Neal v. State of California (1960) 55 Cal.2d 11; People v. Latimer (1993) 5 Cal.4th 1203 [reaffirming Neal].)
"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." (Neal v. State of California, supra, 55 Cal.2d at p. 19.) "On the other hand, if the evidence discloses that a defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for the independent violations committed in pursuit of each objective even though the violations were parts of an otherwise indivisible course of conduct. [Citations.]" (People v. Perez, supra, 23 Cal.3d at pp. 551-552, fn. omitted.)
"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.] Its findings will not be reversed on appeal if there is any substantial evidence to support them. [Citations.] We review the trial courts 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. [Citation.]" (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.) Even if the trial court makes no express finding on the issue, a finding that the crimes were divisible may be implied in the judgment imposing multiple punishments, and such an implied finding will likewise be upheld if supported by substantial evidence. (People v. Nelson (1989) 211 Cal.App.3d 634, 638.)
Defendant points to the general rule that an assault committed during a robbery is usually part of a single crime, the assault comprising the force or fear necessary to accomplish the robbery. He argues that carjacking is analogous, and therefore, the "attempted murder was incidental to, or was the means of accomplishing or facilitating the single objective of stealing the credit cards and car from Janosik."
This is singularly unpersuasive. The evidence supports the trial courts implied finding that gratuitous violence inflicted on Janosik when he was shot in the head was motivated by a separate intent than the intent to steal the car. The evidence, particularly the phone calls to Janosik before the assault, supports the view that Cordon-Suchitz knew Janosik and that releasing Janosik alive would place the carjackers in danger of being caught. The conclusion that the decision to kill Janosik was not motivated by the intent to steal the car, but the intent to avoid capture, is amply supported by the evidence.
The evidence does not, in any manner, demonstrate an indivisible course of conduct, or that the attempted murder was necessary to accomplish the goal of carjacking. "[A] separate act of violence against an unresisting victim or witness, whether gratuitous or to facilitate escape or to avoid prosecution, may be found not incidental to robbery for purposes of section 654." (People v. Nguyen (1988) 204 Cal.App.3d 181, 193.) Carjacking is no different in this context, and sufficient evidence supports the trial courts implied finding of separate intent.
Defendant further claims that finding the shooting was a natural and probable consequence of a robbery, one of the prosecutions theories at trial, forecloses a finding that the act of shooting the victim was divisible for purposes of punishment. It does not, and the case defendant cites does not stand for that proposition. (People v. Nguyen, supra, 204 Cal.App.3d at p. 191.)
As noted, the purpose of section 654 is to punish a defendant commensurately with his culpability. There was no inherent reason that stealing Janosiks car had to necessarily result in the attempt to kill him. It is only by happenstance that defendant and his accomplices did not succeed, and it is within the purposes behind section 654 that he suffer separate punishment for each offense.
III
DISPOSITION
The judgment is affirmed.
We Concur:
OLEARY, Acting P. J.
IKOLA, J.