Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 08CF1354, Patrick Donahue, Judge.
Diana M. Teran, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
BEDSWORTH, ACTING P. J.
Victor Garcia Rocha was charged with six counts of robbery (Pen. Code, § 211). Additionally, it was alleged he knew the principal in the robberies alleged in counts 1 and 2 was armed, and he himself was personally armed in the robberies alleged in counts three through six, punishment enhancements under Penal Code sections 12022, subdivision (d) and 122022.53, subdivision (b) respectively. A jury convicted him of all six counts and found the firearm enhancements to be true. He was sentenced to 20 years and 4 months in state prison.
Rocha appealed, and we appointed counsel to represent him. Counsel filed a brief which set forth the facts of the case and points counsel had considered as possible appellate issues. Counsel did not argue against his client, but advised the court he could find no issues to argue on appellant’s behalf. Appellant was given 30 days to file written argument in his own behalf. He filed a lengthy brief raising several points. We have considered those points and the ones considered by appointed appellate counsel. We find ourselves in agreement with appellate counsel that there are no appellate issues with a reasonable prospect of success with respect to appellant’s guilt or the judgment imposed upon him.
PROCEDURAL HISTORY
Appellant was arrested and charged in May 2008 for crimes committed the previous month. After waiving his statutory rights, his preliminary hearing took place in August 2008 and his trial date was stipulated as day 10 of 10 on July 27, 2009 (Monday).
On July 24, 2009 (Friday), the Orange County Men’s Central Jail (Central Jail) was placed on quarantine due to an outbreak of H1N1. Appellant was housed in Central Jail at this time. The lockdown lasted until the evening of July 29, 2009 (Wednesday).
The events take place between Friday July 24th and Thursday July 30th. For the sake of readability, these dates are referred to as Friday through Thursday.
On Monday, appellant was in the first round of inmates held back from transport due to the quarantine. Defense counsel objected to postponing the start of trial and filed a section 1382 motion on Tuesday. The court decided to hear the motion when appellant was present again in court.
On Tuesday, the case of People v. Grout was randomly selected to be the lead case dealing with the speedy trial rights of the quarantined inmates and assigned to a judge for hearing. The public defender and alternate public defender’s offices were invited to send attorneys to represent their affected clients’ interests. The proceedings were also televised in the other courthouses for the benefit of other interested parties.
The court called Dr. Jack Palmer to the stand to testify about the quarantine. Dr. Palmer was the assistant medical director for the Orange County Healthcare Agency and the person who made the call to initiate the lockdown. He was questioned by the hearing judge, two attorneys from the district attorney’s office, the deputy public defender representing the defendant, and an attorney from the alternate defender’s office. The alternate defender’s office made a special appearance to represent the interests of those clients affected by the quarantine – including appellant, who was represented at trial by a conflict attorney from the alternate defender’s office.
Dr. Palmer testified the H1N1 outbreak in Central Jail started in mid- to late- June 2009. Central Jail houses between 800 and 900 inmates. These inmates share a general dining hall area and intermix at different times during the day. As the weeks passed, the number of infected inmates grew and the jail swiftly began to run out of isolation cells. Prison life increases the spread of infectious disease because the inmates are kept in enclosed areas with each other for long periods of time. H1N1 has a 48 hour incubation period and is not always symptomatic, making it difficult to spot inmates carrying the disease. There were no records of which inmates visited or ate with each other in the dining hall, and only symptomatic inmates were being tested. Thus prison staff could not identify who had been exposed to the virus.
On Friday, Dr. Palmer made the call to place the entire Central Jail on lockdown to help stem the growing number of infections. His primary concern was the spread of the disease to other jails in the area. Although most flu strains have a risk of death for the oldest and youngest portions of the population, H1N1 is particularly dangerous for individuals in their 30s to 40s – the general age of the prison population. Dr. Palmer was insistent that any transportation of inmates to court during the lockdown period would defeat the purpose of the quarantine. The goal was to keep the general population of Central Jail away from the general population of the other prisons. As Dr. Palmer explained, “Well, you know, it’s just trying to limit the movement.... [B]asically those people can all be considered to be in one way, or another exposed; so why put them in another – send them to another jail and expose all those people?... [I]n an institutional setting, you’re much more likely to infect many more people.”
Since the initiation of the quarantine on Friday, Dr. Palmer believed the number of new infections had already begun to diminish. Assuming the test results from Monday came back favorably, Dr. Palmer expected the quarantine to be lifted soon, and expected to have inmates traveling back to court by Thursday.
The defense attorneys attacked the decision to lock the prison down. First, the disease was characterized as “just the flu” and thus not serious enough to be a real public health concern. Second, the attorneys questioned the necessity of the quarantine. For example, the attorneys suggested the inmates could wear protective clothing such as masks to prevent the spread of the virus. The doctor identified three problems with this solution: 1) the masks only stay effective for a short period of time and would need to be replaced frequently; 2) the jail did not have the number of masks that would be needed to implement this solution immediately on hand; and 3) it was unlikely the prisoners would voluntarily continue wearing the masks in the holding cells.
Defense counsel attempted to elicit inmate-specific information from Dr. Palmer, but the doctor was unable to provide any. He did not know whether any of the inmates who had been kept from transport were living near any of the infected inmates, and did not know if any of those inmates were among the list of individuals presently infected with the virus. The medical staff is not provided with information on who is subject to transport on any given day.
The hearing judge determined that, while the quarantine would not constitute a public calamity, this was a “dangerous situation” and a “significant public health event.” The quarantine necessitated the balancing of the inmates’ rights to speedy trial and the public interest in minimizing the spread of a dangerous infectious disease. He found good cause to hold the trials over for a few days. He felt that, although H1N1 was not bubonic plague, calling it “just the flu” was misleading – people die from the flu every year.
But the finding of good cause was limited. Dr. Palmer was given until Thursday to either transport the inmates back to court or provide an individualized determination for each inmate as to why they could not be transported. Judge Goethals then took objections on behalf of all the clients of the public defender and alternative defender’s offices to holding over the trials until Thursday, and applied his finding to all the affected inmates under the various statutory time limits over the objection of the attorney from the alternate defender’s office whose clients included appellant.
On Wednesday night, Dr. Palmer lifted the quarantine and Thursday morning the inmates were once more transported to court. Appellant was back in his originally assigned courtroom and the parties were prepared for appellant’s section 1382 hearing. The trial judge had read the Grout minute order but had not yet read the transcript. He therefore tentatively denied the motion based on the minute order and moved on to jury selection to allow counsel and the court time to review the transcript.
Voir dire commenced, and a jury was empanelled to hear the case. The parties then came back to appellant’s section 1382 motion. Appellant’s trial counsel objected to the use of Dr. Palmer’s testimony on Confrontation Clause grounds. He argued the People bore the burden of proof on a showing of good cause, and the People had not met that burden. The court acknowledged the Confrontation Clause concern, but implicitly overruled that objection. It noted the generalized nature of Dr. Palmer’s testimony and explicitly assumed all possible facts in favor of appellant – he was not infected and did not have contact with anyone who was infected.
The court looked to the three day continuance and balanced that with the general health concern embodied by the quarantine. It determined that – considering the short nature of the delay – there was good cause shown and appellant’s section 1382 motion was dismissed. The court then commenced trial.
FACTS
Appellant was a homeless man living in the Santa Ana Riverbed (the Riverbed). Some time around late March or early April 2008, appellant and the other inhabitants of the Riverbed came into possession of a small chrome handgun. The gun had no magazine and part of the handle was missing. The trigger and hammer both moved and caused a clicking noise, but – since no one had bullets – it was uncertain whether the gun was functional.
On April 5, 2008, appellant and Juan Duarte walked into H & H Liquor around 4:55 p.m. Eid Elwir was working behind the counter with his brother Osama Elwir. H & H Liquor was owned by the Elwir family and the brothers were both owners and regular employees of the store. Duarte approached the brothers and demanded alcohol and cigarettes, pointing the gun in various directions. Appellant approached the counter and asked for alcohol. Eid gave appellant and Duarte the money, alcohol, and cigarettes. The robbery was recorded by surveillance cameras.
On April 10, 2008, appellant entered Wal-Mart around 11:30 a.m. wearing a Batman logo hat. He placed an item of clothing from one of the shelves into his jean jacket and left the store. Dominiq Alvarez, a Loss Prevention Associate at Wal-Mart, saw appellant place the item in his coat and followed him out of the store. Alvarez approached appellant and identified himself. He then asked appellant to go back inside with him. Appellant denied being able to speak English and pulled out the gun when Alvarez continued to try and persuade him to re-enter the store. Alvarez retreated inside where he watched appellant flee back to the Riverbed.
On April 16, 2008, appellant and Mayra Gutierrez entered Joker Liquor around 7:55 p.m. Appellant was once more wearing the Batman logo hat. Appellant approached the counter and pointed a gun at employee and owner Yeon Su Kang. Kang stepped back and allowed Gutierrez to take cash from the register. Appellant asked for liquor and took a bottle of tequila with him.
On April 18, 2008, Nancy Nguyen and her sister Ha Thi Thu Nguyen were working at the 98¢ Store. Nancy Nguyen owned the store and also worked there as a regular employee. Nancy was arranging flowers by the front door when appellant entered and placed the gun against her head. He told her he needed money and asked her to keep quiet. She grew hysterical and attempted to drag herself out the front door to where help might be waiting. Ha Thi was sitting next to the cash register when appellant took hold of Nancy. Ha Thi dove from her chair to land at appellant’s feet and took hold of his leg, trying to help her sister. Gutierrez proceeded to the cash register and attempted to open it. Nancy was getting closer to the door and appellant grew concerned about the people present outside the store. He shouted to Gutierrez that they needed to leave. The two fled the area on their bicycles. They left without taking anything because Gutierrez was unable to open the cash register.
Some time between the April 2008 robberies and appellant’s arrest the following month, the gun disappeared. The fate of the weapon is unknown.
The victims were all shown photographic lineups by the police in an attempt to identify appellant. Each victim was able to narrow the possibilities to appellant and one other person, but none was able to positively identify appellant as the perpetrator. The victims were able to identify Duarte and Gutierrez respectively.
Police brought Gutierrez in for questioning. She admitted to committing the robberies and informed police that appellant was her partner in crime. During questioning, she told police that appellant and Duarte had invited her to join them when they robbed H & H Liquor, but she had declined. She also told police about an incident in which appellant returned from shop-lifting clothing at Wal-Mart and explained he had been forced to pull out the gun to get away.
At trial, Gutierrez claimed she could not remember her conversation with the detectives because she had been continually under the influence of alcohol and narcotics at the time. The People elicited this testimony using the questioning officer and a transcript of the interview.
Appellant was brought in for questioning regarding the robberies and advised of his Miranda rights. Detectives showed him still photographs from the H & H Liquor surveillance video and asked if he was depicted in the photographs. Appellant looked away and responded that he did not know.
Miranda v. Arizona (1966) 384 U.S. 436.
At trial all the victims testified to having seen a chrome or silver gun and believing the gun was real. Defense counsel relied on a simple defense strategy: while the robberies were real, the gun was not. Defense counsel had a private investigator locate a realistic looking replica handgun. Each of the victims stated they were not familiar with guns and believed the replica looked to be a real gun. The private investigator testified that he had trouble locating a realistic looking replica. He went to a gun store in Westminster and made five phone calls to other local shops before he resorted to looking for a replica online. He located one on Amazon.com for $99 plus $20 for shipping and handling.
Appellant was convicted of four counts of robbery, (Count 1: robbery of Eid Elwir; Count 2: robbery of Osama Elwir; Count 3: robbery of Dominiq Alvarez; Count 4: robbery of Yeon Su Kang), two counts of attempted robbery (Count 5: Nancy Nguyen; Count 6: Ha Thi Thu Nguyen), and received enhancements for vicarious (Counts 1 and 2) and personal (Counts 3 through 6) use of a firearm. Appellant was sentenced consecutively on counts 3, 4, and 5, and concurrently on the remaining counts for a total of 20 years and 4 months in state prison. Counsel stipulated to victim restitution amounts, and the court imposed a $200 state restitution fine, $180 in criminal conviction fees and $180 in security fees on appellant.
I
Appellant suggests the dismissal of his section 1382 motion may constitute reversible error because his right to a speedy trial was stifled by the procrastination and neglect of public officials. This argument is without merit.
The right to a speedy trial is protected by both the Sixth Amendment to the United States Constitution and article I, section 15 of the California Constitution. (Rhinehart v. Municipal Court (1984) 35 Cal.3d 772, 776.) This right is “supplemented” by statutes, including section 1382. (Greenberger v. Superior Court (1990) 219 Cal.App.3d 487, 492-493.) Section 1382, subdivision a, provides that “[t]he court, unless good cause to the contrary is shown, shall order the action to be dismissed... when a defendant is not brought to trial within 60 days of the defendant’s arraignment on an indictment or information....” The 60-day period may be extended at the request or consent of the defendant, but “the defendant shall be brought to trial on the date set for trial or within 10 days thereafter.” (Ibid.)
In order to obtain reversal for his convictions on speedy trial grounds, appellant must show both a lack of good faith and prejudice. “Prejudice becomes an issue for a statutory speedy trial claim only when the defendant waits until after the judgment to obtain appellate review. ‘[O]nce a defendant has been tried and convicted, the state Constitution in article VI, section 13, forbids reversal for nonprejudicial error, ’ and so on appeal from a judgment of conviction a defendant asserting a statutory speedy trial claim must show that the delay caused prejudice, even though the defendant would not be required to show prejudice on pretrial appellate review.” (People v. Martinez (2000) 22 Cal.4th 750, 769, quoting People v. Johnson (1980) 26 Cal.3d 557, 575.)
There is nothing in the record to show appellant was prejudiced by the three day delay. (See People v. Wilson (1963) 60 Cal.2d 139, 154 [after seven months of continuances granted at defendant’s request or with his consent, defendant was unable to show how a much shorter delay “could have affected in any respect the fairness of his subsequent trial.”].) Although appellant claims prejudice because the denial of his motion deprived him of a “defense” to prosecution, this appears to be untrue. A dismissal under section 1382 does not bar further prosecution for the same offenses. (People v. Johnson, surpa, 26 Cal.3d at p. 573.) Even if the trial court had granted appellant’s section 1382 motion, the People would have had nearly three years in which to file new charges against appellant. (See §§ 213, 801, 804.)
However, because failure to appeal the decision prior to trial might raise an ineffective assistance of counsel claim, it is necessary to look next to whether or not the quarantine constituted “good cause” for the delay.
Although section 1382 prohibits delay without “good cause” it does not define what constitutes good cause. Instead a finding of “good cause for the delay of a criminal trial is a matter that lies within the discretion of the trial court.” (People v. Johnson, supra, 26 Cal.3d 557, 570.) The purpose of the speedy trial right is “(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.” (Barker v. Wingo (1972) 407 U.S. 514, 532; People v. Martinez, supra, 22 Cal.4th at p. 768.) The ultimate goal is, “‘to protect those accused of crime against possible delay, caused either by willful oppression, or the neglect of the state or its officers.’” (People v. Johnson, supra, 26 Cal.3d at pp. 570-571.)
Thus, delay attributable to the fault of the prosecution, law enforcement, or improper court administration does not constitute good cause. For example, good cause is not shown by a prosecutor’s desire for a vacation (People v. Wilson (1963) 60 Cal.2d 139), the arresting officer’s desire for sleep (People v. Thompson (1980) 27 Cal.3d 303), a prosecutor’s congested calendar (Batey v. Superior Court (1977) 71 Cal.App.3d 952), the sheriff department’s difficulties with transportation logistics (Jackson v. Superior Court (1991) 230 Cal.App.3d 1391), or chronically congested courts and overburdened appointed counsel. (People v. Johnson, supra, 26 Cal.3d 557; Sanchez v. Superior Court (1982) 131 Cal.App.3d 884; People v. Escarcega (1986) 186 Cal.App.3d 379; People v. Cooper (1989) 216 Cal.App.3d 830.)
Good cause exists where the delay was caused by the defendant, is for the benefit of the defendant, or is the result of “unforeseen circumstances, such as the unexpected illness or unavailability of counsel or witnesses.” (People v. Johnson, supra, 26 Cal.3d at p. 570.) Good cause has also been found to exist when the delay is caused by the outbreak of a dangerous infectious disease. (In re Venable (1927) 86 Cal.App. 585.)
In Venable, all jury trials were put on hold due to an infantile paralysis epidemic in the community. No one was called in to serve on a jury, and the defendant had to wait an additional 15 days to have his case heard. On appeal, the court found good cause to wait until after the epidemic ended to hold trial. (Id. at p. 588.)
Contrary to appellant’s contention, the delay in this case was not due to neglect or procrastination by public officials. The trial court was ready, the jury was ready, counsel was ready, all the witnesses were ready, and there was no indication that jail staff logistically could not have transported appellant to trial. The trial was put on hold for the sole purpose of preventing the spread of H1N1, a disease Dr. Palmer explained was particularly dangerous for individuals the age of the general prison population. Although no individual inquiries were undertaken, the inmates could “all be considered to be in one way, or another exposed.” Like Venable, the delay was due to an unforeseen public health event, and constituted good cause for a brief three day delay.
II
Appellant claims in his supplemental brief that his Confrontation Clause rights were violated by the admission of Dr. Palmer’s testimony in his section 1382 hearing. He further asserts the failure of his trial counsel to pursue the matter further and of appellate counsel to brief the issue fully constituted ineffective assistance of counsel. These claims lack merit.
The Sixth Amendment guarantees the criminal defendant the right to be confronted with the witnesses against him “[i]n all criminal prosecutions.” (U.S. Const., 6th Amend.; Alvarado v. Superior Court (2000) 23 Cal.4th 1121, 1137.) This right attaches only to “criminal prosecutions” and is not a blanket right covering all hearings within the criminal justice system. (People v. Rodriguez (1990) 51 Cal.3d 437, 441, 445, 447.) For example, parole and probation revocation hearings do not afford “‘the full panoply of rights due a defendant in [a criminal] proceeding....” (People v. Shepherd (2007) 151 Cal.App.4th 1193, 1198.) While the defendant maintains the right to confront and cross-examine adverse witnesses, this right may be vitiated if the hearing officer finds good cause for not allowing the confrontation. (Id. at p. 1199.)
We have been unable to find any cases in which an appellant contended his Confrontation Clause rights were being violated during a speedy trial hearing. However, we find the hearing conducted in this case less critical than a parole or probation violation hearing and conclude the confrontation right afforded appellant would be at least as circumscribed as those applicable to such a hearing.
Although the prosecution bears the burden of proof in parole and probation revocation hearings, the requisite showing is less than that required in a criminal prosecution. (People v. Rodriguez, supra, 51 Cal.3d at p. 441.) These types of hearings only require “‘“enough evidence to satisfy the district judge that the conduct of the petitioner has not met the conditions of [probation or parole].”‘“ (Ibid.) In other words, the People only must show the facts by a preponderance of the evidence to support the revocation. (Ibid.)Like the probation revocation hearing, the burden of proof regarding good cause in the speedy trial context may be met by a preponderance of the evidence. (People v. Posey (2004) 32 Cal.4th 193, 212.)
The speedy trial hearing also does not bear on the issue of a defendant’s guilt or innocence. Only statements “that declarants would reasonably expect to be used prosecutorily” are covered by the Sixth Amendment right to confrontation. (Crawford v. Washington (2004) 541 U.S. 36, 51.) All other statements are subject to the lesser due process confrontation right. In the due process setting, “‘[t]he weight to be given the right to confrontation in a particular case depends on two primary factors: the importance of the hearsay evidence to the court’s ultimate finding and the nature of the facts to be proven by the hearsay evidence. [Citation.] “[T]he more significant particular evidence is to a finding, the more important it is that the [defendant] be given an opportunity to demonstrate that the proffered evidence does not reflect ‘verified fact.’” [Citation.] So, too, the more subject to question the accuracy and reliability of the proffered evidence, the greater the [defendant’s] interest in testing it by exercising his right to confrontation.’ [Citations.]” (People v. Stanphill (2009) 170 Cal.App.4th 61, 78-79.)
Here, there was nothing remotely prosecutorial about Dr. Palmer’s statements. He simply discussed the circumstances at the jail and his decision to impose a quarantine. There was no information provided regarding appellant or the crime he committed. Indeed there was no information provided regarding any particular inmate. While the information provided by the doctor was the sole factor informing the court’s decision to find good cause, it is also noteworthy that the information was not really subject to questions regarding its accuracy and reliability. Dr. Palmer testified in court and under oath. His testimony was subject to rigorous cross-examination by an attorney on behalf of appellant – even if it was not appellant’s normal attorney.
To counterbalance appellant’s concerns about confrontation, the trial court determined that it would expressly make findings in appellant’s favor – appellant was not personally exposed to the virus and was not at risk of exposure based on his location in the prison. Even then, and taking into consideration Dr. Palmer’s lack of individualized information as to any inmate, the court determined there was no need to bring Dr. Palmer in to provide what would essentially be the same testimony. Its conclusion was well within the exercise of its sound discretion.
While “live testimony, with full cross-examination and the opportunity to view the demeanor of the declarant” is preferable (United States v. Inadi (1986) 475 U.S. 387, 394), given that the trial court presumed in favor of appellant all issues of fact that could be deduced in his favor, there was little benefit to be gained by allowing appellant the opportunity to cross examine Dr. Palmer. There was no error in considering the hearing testimony.
III
Appellate counsel considered whether the evidence might be insufficient to uphold the jury’s true finding on the firearm enhancements. This claim is without merit. When a challenge to the sufficiency of evidence is raised, the court reviews “the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson, supra, 26 Cal.3d at p. 562.)
The jury was instructed with CALCRIM Nos. 3146 (Personally Used Firearm) and 3117 (Armed With Firearm: Knowledge That Coparticipant Armed). The primary contention in the case centered on the authenticity of the weapon. The evidence was uncontested that a “gun” was used during each of the crimes. The victims who took the stand testified to having seen a chrome gun they believed to be real, but admitted to having no prior experience with guns. Gutierrez told police officers that the gun at one point made a clicking noise when the trigger was pulled and had moving parts, but she had never seen the gun fire as there were no bullets. The People were unable to locate the actual gun used in the crimes. Defense counsel hypothesized the gun may have been a realistic looking replica gun acquired by a private investigator to discredit the witnesses’ testimony on that point. It was thus left to the jury to determine whether the gun appellant used was an actual firearm.
The jury was instructed with CALCRIM No. 3146 in relevant part as follows: “If you find the defendant guilty of the crimes charged in Counts 3, 4, 5 or 6, you must then decide whether, for each crime, the People have proved the additional allegation that the defendant personally used a firearm during the commission of that crime.... [¶] A firearm is any device designed to be used as a weapon, from which a projectile is discharged or expelled through a barrel by the force of an explosion or other form of combustion. [¶] A firearm does not need to be in working order if it was designed to shoot and appears capable of shooting. A firearm does not need to be loaded.
The jury was instructed with CALCRIM No. 3117 in relevant part as follows: “If you find the defendant guilty of the crimes charged in Counts 1 or 2, you must then decide whether, for each crime, the People have proved the additional allegation that the defendant knew that someone who was a principal was armed with a firearm in the commission of that crime.... [¶] To prove this allegation, the People must prove that: [¶] 1. Someone who was a principal in the crime was armed with a firearm during the commission of that crime; [¶] AND [¶] 2. The defendant was also a principal in the crime and knew that the other person was armed with a firearm.... [¶] A principal is armed with a firearm when that person: [¶] 1. Carries a firearm or has a firearm available for use in either offense or defense in connection with the crimes charged in Counts 1 and 2 [¶] AND [¶] 2. Knows that he or she is carrying he firearm or has it available....”
Defense counsel argued the People needed to prove beyond a reasonable doubt the gun was real in order to meet their burden of proof. In response, the People claimed the defense focus on the replica was designed to create “imaginary doubt.” The People pointed to the low probability that homeless men would go online to purchase a $120 fake gun, the low probability of someone losing a replica weapon (that was not even sold locally), and the much higher likelihood that the gun had been discarded by someone else in order to escape discovery after a crime – particularly considering the gun was found by inhabitants of the Riverbed.
There was enough circumstantial evidence to support an inference that the gun was real. Contrary to defense arguments, the jury could logically have agreed with the People that the odds of appellant happening upon a realistic looking replica weapon were small enough to render this an unreasonable conclusion. Thus there was sufficient evidence to support the firearm enhancements.
IV
Appellant believes the evidence may be insufficient to support his convictions on counts 2 and 6 for the robbery and attempted robbery of Osama Elwir and Ha Thi Thu Nguyen, respectively.
The jury was instructed with CALCRIM 1600 in relevant part as follows: “A store or business employee may be robbed if property of the store or business is taken, even though he or she does not own the property and was not at that moment in immediate physical control of the property. If the facts show that the employee was a representative of the owner of the property and the employee expressly or implicitly had authority over the property, then that employee may be robbed if property of the store or business is taken by force or fear.”
Robbery is an offense against the person. California courts have consistently held that a store employee may be the victim of a robbery, even though he or she is not the store’s owner and not at the moment in immediate control of the stolen property, if he or she is in constructive possession of the store’s property. (People v. Nguyen (2000) 24 Cal.4th 756, 761-762; People v. Miller (1977) 18 Cal.3d 873, 880.) Section 211 is “applicable to any servant or servants left in sole occupation of the premises or particular part thereof by the employer.” (People v. Downs (1952) 114 Cal.App.2d 758, 766.)
Robbery convictions have been upheld where the victim holds a variety of job functions: employees servicing customers, as well as those stocking shelves; night watchmen, as well as janitorial staff. (People v. Frazer (2003) 106 Cal.App.4th 1105, 1119-1120; People v. Jones (2000) 82 Cal.App.4th 485, 491.)
Both Osama and Ha Thi were employees working behind the counter at the time appellant entered their respective stores. Ha Thi was located next to the cash register when appellant placed the gun to Nancy’s head. As such, she was clearly in constructive possession of the money Gutierrez attempted to steal. Thus there was sufficient evidence to support the attempted robbery conviction on count 6.
Although Osama was not the person directly behind the cash register, the evidence suggests it was only a matter of chance that Eid waited on appellant rather than Osama. This was a small family owned liquor store, and Osama was located within five feet of his brother during the robbery. It stands to reason that both brothers were available to serve customers. Under these circumstances, the evidence supports a finding that both Osama and Eid had constructive possession of the money stolen from H & H Liquor. (See People v. Ramos (1982) 30 Cal.3d 553, 589 [when two or more persons are in joint possession of single item of property, each may be a separate victim of the same taking]; People v. Miller (1977) 18 Cal.3d 873, 881 [more than one employee may be in constructive possession of store’s property at same time].) Thus there was sufficient evidence to support appellant’s conviction on count 2.
V
Appellant’s trial counsel described his defense strategy as follows: “The crime was real, the fear was real, the gun was not.” Appellate counsel considered arguing that admitting appellant committed the crimes may have constituted ineffective assistance of counsel. We think not.
To show ineffective assistance of counsel, appellant would need to show: 1) that his trial counsel’s performance “fell below an objective standard of reasonableness, i.e., that counsel’s performance did not meet the standard to be expected of a reasonably competent attorney, and (2) that there is a reasonable probability that defendant would have obtained a more favorable result absent counsel’s shortcomings.” (People v. Cunningham (2001) 25 Cal.4th 926, 1003.) This argument fails on both grounds.
First, it was a valid tactical decision to focus on the firearm enhancements rather than on whether appellant committed the robberies. Although the robbery and attempted robbery charges were the primary offenses facing appellant, the lion’s share of his sentence came from the firearm enhancements. Nearly seventeen of the twenty years appellant was sentenced with stemmed from the enhancements. Trial counsel may well have determined that going for a full acquittal – especially based on the extraordinarily strong identity evidence against appellant – may have been off-putting to the jury. Thus it was logical to focus on the portion of the evidence most likely to result in a reduction of appellant’s overall sentence exposure.
Even if there were no valid tactical decision behind defense counsel’s choice of theories, there would not be error. The evidence supporting appellant’s convictions was overwhelming. Appellant made a potentially incriminating false statement when faced with the surveillance video in the first robbery – committed with Duarte. Gutierrez mentioned that appellant had invited her to go with him to rob that store. Although appellant was alone on his second robbery, he was wearing the same Batman baseball cap that he wore on his third robbery – committed with Gutierrez. He also discussed this robbery with Gutierrez later on; information she provided to the police. In the third and fourth robberies, Gutierrez identified appellant as being the person who committed the robberies with her. All of this information was supported by the victims’ tentative identification of appellant. Although none of the victims were able to identify appellant positively as the person who robbed them, they all flagged appellant’s photo in the lineups as someone they thought may be the perpetrator. Thus it is unlikely the jury would have found appellant not guilty of the crimes absent the statements by his attorney to the contrary. There was no prejudice to appellant.
VI
The People requested that CALCRIM 362 (Consciousness of Guilt: False Statements) be given to the jury. Defense counsel objected to the instruction on the ground it was not warranted by the evidence. This contention is without merit. The evidence supports an instruction on consciousness of guilt when there is evidence the defendant intentionally made a false statement that could lead to an inference of guilt, (People v. Atwood (1963) 223 Cal.App.2d 315, 333-334) and the statement appears to have been made for self-protection purposes. (People v. Rankin (1992) 9 Cal.App.4th 430.)
When appellant was brought in for questioning, police officers showed him the surveillance video from the H & H Liquor robbery. Appellant was asked if he was the man in the video, to which he responded he did not know and looked away from the officer. This statement – coupled with the nonverbal conduct at the time it was made – could have led to an inference of guilt. Accordingly, the statement provided a sufficient factual basis for CALCRIM No. 362.
VII
Appellant argues the imposition of consecutive sentences may have been error under sections 654 and 1170.1, subdivision (a). This claim is without merit. Section 654 provides that “[a]n 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 section “applies when a course of conduct violates more than one statute but constitutes an indivisible transaction.” (People v. Saffle (1992) 4 Cal.App.4th 434, 438.)
The trial court applied consecutive sentences for counts 3, 4 and 5 relating to the robberies of Alvarez, Kang, and Nancy Nguyen respectively. Each robbery took place against a different victim, at a different location, and on a different day. These are clearly distinct and divisible transactions and therefore do not fall within the gambit of section 654’s prohibition on double punishment.
Additionally, the trial court designated count 3 as the principal term and correctly applied 1/3 the consecutive terms and enhancements for the remaining consecutive counts. There was no error under section 1170.1 subdivision (a) in the calculation of the sentence.
VIII
Appellant claims there may be error in imposing both restitution fines and security and criminal conviction fines. That is not the case.
Whenever a person is convicted of a crime, section 1202.4, subdivision (b) provides, “the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record.” This fine is distinct from the security fee imposed under section 1465.8 (designed “[t]o ensure and maintain adequate funding for court security”) and the criminal conviction fine under Government Code section 70373 (designed “[t]o ensure and maintain adequate funding for court facilities”).
Not only is there nothing erroneous about imposing all of these fines and fees, this court would be required to impose those fees had the trial court failed to do so. (See People v. Walz (2008) 160 Cal.App.4th 1364, 1372.)
CONCLUSION
There are no issues that have a reasonable possibility of success in this case. Appellate counsel was correct. The judgment is affirmed.
WE CONCUR: ARONSON, J., IKOLA, J.
“Someone personally uses a firearm if he or she intentionally does any of the following: [¶] 1. Displays the weapon in a menacing manner; [¶] 2. Hits someone with the weapon; [¶] OR [¶] 3. Fires the weapon....”