Opinion
E040532
5-4-2007
THE PEOPLE, Plaintiff and Respondent, v. RALPH RUBEN MORALES, Defendant and Appellant.
Michael B. McPartland, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, and Robert M. Foster, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Defendant and appellant Ralph Ruben Morales appeals after he was convicted of three counts of first degree robbery and one count of second degree robbery. He raises issues of lesser included offense instructions as to the second degree robbery count and consecutive sentencing. We affirm.
FACTS
In September 2002, Arlene Carrion was living in a house in San Bernardino with her four children and baby granddaughter. A friend was staying in the garage, off and on. Carrion used drugs and another friend sometimes sold drugs from Carrions home.
Mark Eldredge, who was acquainted with Carrion, introduced defendant to Carrion on or about September 12, 2002. Defendant asked Carrion if the rings she was wearing were real gold. Carrion told defendant it was "none of his business."
A few days later, on September 26, 2002, at approximately 10:00 or 11:00 a.m., Carrion was in a bedroom of her home with some other family members, watching television. Defendant and another man entered the house through a sliding glass door. Defendant entered the bedroom and ordered everyone to lie on the floor. The other man proceeded through the rest of the house. Defendant demanded Carrions jewelry. She had difficulty taking the rings off her fingers; she told defendant she could probably get them off if she went into the bathroom and used some soap and water. Defendant crowded into the bathroom behind Carrion, as she used some soap to lubricate her fingers.
Once Carrion had removed the rings, she distracted defendant by slamming them onto the counter, so that they fell to the floor. While defendant bent down to pick up the rings, Carrion fled from the house. She ran to a neighbor and asked her to call the police.
Defendant and his accomplice stole a stereo, a television, and a VCR from Carrions home. Carrion and one of her daughters saw the two men place the stolen items into their car. Defendant and his accomplice then drove away.
As a result of the September 26, 2002, incident, defendant was charged in count 1 of the first amended information with the first degree robbery of Carrion.
In the early evening hours of October 10, 2002, Anthony Jones was standing on the sidewalk, with his bicycle, in front of a friends home. Defendant approached Jones and said Jones had "disrespected" him. Defendant demanded Joness bicycle, and said that if Jones did not give him the bicycle, defendant would "blast" Jones. Defendant held one hand underneath his shirt as if he had a gun.
Jones quickly mounted his bicycle and began to ride away. Defendant chased after him. A short distance away, some other young men threw their own bicycles to the ground, blocking Joness path. Jones was unable to avoid the obstacle and fell to the ground. He felt a sharp pain in his back.
Defendant took possession of Joness bicycle and announced that the bicycle was now his. Defendant rode off on the stolen bicycle with his companions. Later that night, Jones went to the doctor for the injury to his back; the treating doctor opined that the injury may have been a stab wound.
The result of the October 10, 2002, events were charges of second degree robbery of Jones (count 2) and assault with a deadly weapon by means likely to produce great bodily injury (count 3).
Five days later, on October 15, 2002, Carrion was at home in the evening. Several other persons, including Marlene Sanchez, a young man named Mario, and Carrions children were also present in the home. Defendant and another man again entered the house. Defendant ordered everyone to get on the floor and to shut up.
Defendant and the other man took a portable radio, a VCR, a video camera, a video game system, a telephone, and cash from the house. They also took $15 in cash from Sanchezs pockets. The events of October 15, 2002, resulted in charges of first degree robbery of Carrion (count 4) and first degree robbery of Sanchez (count 5).
Defendant waived a jury trial on allegations of numerous prior convictions. On the new substantive charges, a jury found defendant guilty of counts 1, 2, 4 and 5 (first degree robbery of Carrion, second degree robbery of Jones, a second incident of first degree robbery of Carrion, and first degree robbery of Sanchez, respectively), and acquitted him on the charge of assault on Jones.
The trial court found true allegations that defendant had suffered four prior serious felony convictions (robbery in each instance) for purposes of Penal Code section 667, subdivision (a)(1) (five-year enhancement), and six prior serious and violent felonies (all robberies, including the four prior five-year enhancement convictions) for purposes of the "Three Strikes" law.
Defense counsel requested the court to exercise its discretion to dismiss one or more of the strike priors; the court denied that request.
The court imposed sentence as follows: On count 1, first degree robbery, a term of 25 years to life as a third-striker, plus five years for each of the prior serious or violent felony enhancements, or 20 years consecutive to the Three Strikes sentence; on count 2, the same, 25 years to life for second degree robbery as a third-striker, plus 20 years consecutive for the four violent or serious priors; on count 4, the same, 25 years to life for first degree robbery as a third-striker, plus 20 years consecutive for the four priors; and on count 5, the same, 25 years to life for first degree robbery, plus 20 years consecutive for the priors. The sentence on each of the new third-strike felonies was run consecutive to the remainder, for a total prison commitment of 180 years to life.
Defendant now appeals. He raises two issues: The court should have offered a sua sponte instruction on a lesser included offense in count 2, the robbery of Joness bicycle; and his trial counsel was ineffective with respect to sentencing.
DISCUSSION
1.
NO SUA SPONTE INSTRUCTION ON A LESSER INCLUDED OFFENSE OF GRAND THEFT WAS REQUIRED
Defendant was accused in count 2 of the second degree robbery of Jones in the taking of Joness bicycle. The defense theory of that crime, based on defendants statements to police, was that defendant had not taken the bicycle from Jones and he had no intent to permanently deprive Jones of the bicycle. Rather, defendant had seen the other young men throw down their bicycles in front of Jones, Jones fell, and the other men took Joness bicycle. Defendant admitted having Joness bicycle afterward, but he told police that he had gotten it from the other men. He left it on the porch of a house nearby (where Jones ultimately found it).
In discussing jury instructions, defendants trial counsel told the court that he did not wish to have any lesser included instructions given. Defendant nonetheless now urges that the trial court had a sua sponte duty to instruct on the lesser included offense of grand theft with respect to the robbery of Jones.
Defendants contention is without merit. Defense counsel specifically requested that no lesser included offense instructions be given. The defense theory as to count 2 was "all or nothing"—defendant was either guilty of robbery in taking the bicycle by force, or he was not involved and was guilty of no crime. There is a clear and obvious tactical reason for counsel to purposely decline lesser included offense instructions under the circumstances. The "error," if any, was plainly invited. (People v. Chaney (2005) 131 Cal.App.4th 253, 256, fn. 5.)
2.
COUNSEL WAS NOT INEFFECTIVE AT SENTENCING
Defendant next contends that his counsel rendered constitutionally ineffective representation at sentencing, because counsel failed to object that the trial court did not state specific reasons for running the sentences on counts 4 and 5 consecutively to one another. Defendant points out that, because the robberies in counts 4 and 5 occurred on the same occasion and arose out of the same set of facts, even third-strike sentencing permitted the trial court to exercise its discretion to run those terms concurrently. (See People v. Deloza (1998) 18 Cal.4th 585, 592-600.)
To prevail on a claim of ineffective assistance of counsel, however, a defendant must show not only that counsels performance fell below an objective standard of reasonableness, but also that defendant was prejudiced by the alleged error. (Strickland v. Washington (1984) 466 U.S. 668, 684-685.) We need not dwell on any question of counsels performance, as defendants claim fails on the prejudice prong. Defendant cannot show that it is reasonably probable that the result would have been any different, had counsel requested the court to state reasons for its sentencing choice. Defendants criminal record stretched back many, many years. As the prosecutor pointed out in its sentencing memorandum, the only time when defendant was not harming others was when he was incarcerated. Indeed, he had six prior strike convictions for robbery and those were not his only convictions. In the current case, he added four additional robberies to his record. There is utterly no possibility the trial courts sentencing choice would have been any different had counsel called the matter to the courts attention.
DISPOSITION
For the reasons stated, the judgment is affirmed.
We concur:
RICHLI, J.
MILLER, J.