Opinion
F071990
02-26-2018
THE PEOPLE, Plaintiff and Respondent, v. EDGAR SOLIS, Defendant and Appellant.
Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BF157889B)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Charles R. Brehmer, Judge. Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
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An amended information filed May 21, 2015, charged Edgar Solis with four separate incidents of second degree robbery in counts 1, 2, 4, and 7 (Pen. Code, § 212.5, subd. (c)); attempted robbery in counts 5 and 6 (§§ 664, 212.5, subd. (c)); conspiracy to commit robbery in counts 3 and 8 (§§ 182.1, subd. (a)(1), 212.5, subd. (c)); and gang participation in count 9 (§ 186.22, subd. (a)). Counts 1 through 8 also alleged a gang enhancement (§ 186.22, subd. (b)(1)); and in counts 1 through 9 alleged that Solis had suffered a prior strike conviction (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e)), a prior serious felony conviction (§ 667, subd. (a)), and had served two separate prior prison terms (§ 667.5, subd. (b)). The prosecution subsequently dismissed count 4.
All further statutory references are to the Penal Code unless otherwise stated.
With the exception of count 2, the information also named Maximino Hernandez, Jr., as a codefendant, but that fact has no relevance to this appeal except as explained later.
At trial, the jury first heard evidence on counts 1 through 3, and 5 through 8, and found Solis guilty of the substantive offenses as charged. The prosecution then dismissed the gang enhancement as to count 2 (§ 186.22, subd. (b)(1)).
At a trial on the remaining gang enhancements and count 9, the jury found Solis guilty as to count 9, but found the gang enhancement allegations not true. In return for the dismissal of one of his prior convictions, Solis admitted that the remaining recidivist enhancements were true.
The trial court sentenced Solis to 17 years eight months in prison as follows: On count 1, the middle term of three years, doubled to six years for the prior strike; on count 2, a subordinate term of one year, doubled to two years for the prior strike; on count 5, a subordinate term of eight months, doubled to 16 months for the prior strike; on count 6, a subordinate term of eight months, doubled to 16 months for the prior strike; on count 7, the subordinate term of one year, doubled to two years for the prior strike; plus five years for the prior serious felony allegation. The trial court imposed the following terms and stayed them pursuant to section 654: On count 3, the upper term of five years, doubled to 10 years for the prior strike; on count 8, the upper term of five years, doubled to 10 years for the prior strike; and on count 9, the upper term of three years, doubled to six years for the prior strike. The trial court also imposed various fines and fees and awarded Solis 348 days presentence confinement credits.
On appeal, Solis contends one of his second degree robbery convictions must be reduced to grand theft as the evidence is insufficient. He also contends the evidence is insufficient to uphold his convictions for conspiracy to commit robbery. Finally, he requests that we modify his sentence. We will remand for resentencing, but in all other respects affirm.
STATEMENT OF FACTS
At some point, Melissa Solis (Melissa), Solis's sister-in-law, lent her white minivan to Solis's mother because she was having difficulties with her own vehicle, a Suburban. According to Melissa, Solis and his mother both used the minivan to get to work. After the Suburban was repaired, the minivan was returned to Melissa on October 20, 2014.
All further date references are to 2014 unless otherwise stated.
Solis's parole officer testified Solis had a GPS monitor on his ankle in October.
Robbery (Count 1) and Conspiracy to Commit Robbery (Count 3)
On October 8, Eva Coronado left a 99 Cent Store and was pushing her shopping cart in the parking lot when a bald, tattooed Hispanic man, codefendant Hernandez, approached her, speaking in both English and Spanish. As Hernandez walked next to her, Coronado grabbed her bag. Hernandez then pulled her chain from her neck and ran off.
Surveillance footage from the store showed Solis and Hernandez were both at the store at the time the robbery took place. The video also showed a white van, which was identified as the van used in another robbery.
Robbery (Count 2) and Conspiracy to Commit Robbery (Count 3)
Also on October 8, at approximately 3:30 p.m., Eva Enriquez was walking home from a bus stop. Her neighbor, Velia Navarro, was walking with her. As they were walking, Enriquez stepped aside to let Solis pass her. Solis stopped and asked directions, but then claimed he did not understand Enriquez. He then grabbed a chain off her neck and ran. Enriquez testified it "took strength" to pull the chain from her neck. Solis ran to a white minivan parked nearby and got into the passenger side door. The driver was a bald Hispanic man. The van was the same one used in the robbery of Coronado.
Data taken from Solis's GPS ankle monitor showed he was in the area at the time the robbery took place.
Attempted Robbery (Count 5) and Conspiracy to Commit Robbery (Count 8)
On October 21, after shopping at Target, Austrbertha Barrientos went outside to wait for her ride. While she was waiting, Solis came up behind her and attempted to take her necklace, causing one of her earrings to come off in the process. Barrientos was "really scared," and shaking.
Solis, who took the earring, ran towards a gray SUV, which was waiting for him, and got into the front passenger seat. The SUV belonged to Solis's mother. Data taken from Solis's GPS ankle monitor confirmed he was at Target at the time the attempted robbery took place.
Attempted Robbery (Count 6) and Conspiracy to Commit Robbery (Count 8)
On October 21, Silvia Montoya was shopping at Vallarta Market with her sister-in-law, Martha Zamarron. As they were returning to the car with their groceries, Montoya saw Solis approaching them from about 32 feet away. He appeared to be talking to himself. When Montoya turned away from Solis to load her groceries into her car, Solis grabbed her necklace and tore it off of her, leaving four scratch marks on the back of her neck. Montoya was able to catch the necklace as it fell. Montoya stooped down, grabbed herself in fear and screamed. Zamarron screamed at Solis, who ran off.
Data taken from Solis's GPS ankle monitor confirmed that he was at Vallarta Market at the time the attempted robbery took place.
Robbery (Count 7) and Conspiracy to Commit Robbery (Count 8)
On October 21, Olaya Camacho was shopping at Food Maxx when Solis approached her to question her about an item. Later, when Camacho was paying for her items, she noticed Solis was about 30 feet behind her in the store.
Camacho took her groceries and put them in her car; she put her purse between the seats. After she put her seatbelt on, she noticed Solis standing next to her car. He asked her about going somewhere, but Camacho did not understand him and told him she did not know. Solis then reached into the half-opened window and grabbed a pendant off Camacho's neck, yanking her clothing in the process. The pendant's chain broke and fell into Camacho's clothes. Camacho was afraid when Solis grabbed the pendant. Solis ran away and got into the passenger seat of a large SUV and drove away.
Video surveillance footage from the store showed Solis and Hernandez at the store at the time of the robbery. It also showed the gray SUV that was used in the attempted robbery of Barrientos. Data taken from Solis's GPS ankle monitor confirmed that he was at Food Maxx at the time the robbery took place.
Gang Participation (Count 9)
Solis is a member of the Colonia Bakers street gang; Hernandez a member of the Colonia Bakers' subset Dark Side. The primary activities of the Colonia Bakers include robbery, homicide, illegal firearm possession, narcotic sales, and burglary. At the time of the offenses, Solis had a parole condition restricting him from having contact with other gang members; wearing gang clothes, colors, or other indicia; and possessing photographs and other writings associated with gang activities.
DISCUSSION
I. Was there sufficient evidence of robbery in count 2?
Solis contends that the evidence is insufficient to sustain a finding of robbery on count 2, the robbery of Enriquez, because the evidence was only sufficient to sustain a conviction of grand theft of a person. We disagree.
The standard of review of an insufficiency of the evidence claim is well established. We review the whole record in the light most favorable to the judgment to decide whether substantial evidence supports the conviction, so that a reasonable fact finder could find guilt beyond a reasonable doubt. (People v. Young (2005) 34 Cal.4th 1149, 1175.) We presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence and make all reasonable inferences that support the finding of the trial court. (Ibid.; People v. Kelly (1992) 1 Cal.4th 495, 528.) Substantial evidence is "evidence that is reasonable, credible and of solid value." (People v. Kraft (2000) 23 Cal.4th 978, 1053.)
"The robbery statute, Penal Code section 211, describes robbery as '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.'" (People v. Burns (2009) 172 Cal.App.4th 1251, 1258.) "[T]he aggravating factors that elevate a theft to a robbery [are] the use of force or fear and the taking from the victim's presence." (People v. Gomez (2008) 43 Cal.4th 249, 255.)
There is no question here that the necklace was taken from Enriquez's presence. The only question is whether the theft was accomplished by the use of force or fear. Solis contends that no such showing was made here because the force used was only the force necessary to seize the necklace, and Enriquez testified that Solis's conduct did not leave her in fear.
"When actual force is present in a robbery, at the very least it must be a quantum more than that which is needed merely to take the property from the person of the victim...." (People v. Wright (1996) 52 Cal.App.4th 203, 210.) "An accepted articulation of the rule is that ' [a]ll the force that is required to make the offense a robbery is such force as is actually sufficient to overcome the victim's resistance....'" (People v. Burns, supra, 172 Cal.App.4th at p. 1259.)
Here, the evidence is that Solis used more force than necessary to take the chain from Enriquez's neck. Enriquez herself testified that "[i]t took strength" to yank the chain from her neck, whether the chain broke or whether the action caused the clasp to come undone. In People v. Roberts (1976) 57 Cal.App.3d 782, 787, (disapproved on other grounds by People v. Rollo (1977) 20 Cal.3d 109), in which the handle of the victim's purse broke when the appellant grabbed it from her arm, the court held that the evidence of force was sufficient to sustain the robbery conviction, stating that "[c]ertainly, the evidence that the purse was grabbed with such force that the handle broke supports the jury's implied finding that such force existed." (People v. Roberts, supra, at p. 787.)
As for Solis's claim that his actions did not put Enriquez in fear, she testified she was not afraid, but "in shock" and "couldn't believe it happened around the corner" of her house, where she lived with her three- and six-year-old daughters.
We also note that the jury was instructed on grand theft from a person as a lesser included offense on this count, but rejected that theory. We find the evidence sufficient to sustain Solis's conviction for robbery and reject his claim to the contrary. II. Was there sufficient evidence that Solis conspired with Hernandez to commit robbery?
Solis next contends there was insufficient evidence to support his conspiracy convictions, arguing there was no evidence he and Hernandez agreed to take the necklaces by force. We disagree.
A. Applicable Law
The law of conspiracy serves dual purposes in the criminal arena. It is a substantive crime that, if charged, is punishable according to the crime the defendant conspired to commit. It also serves as a basis for vicarious liability even though the crime of conspiracy is not charged as a separate offense. "A conviction of conspiracy requires proof that the defendant and another person had the specific intent to agree or conspire to commit an offense, as well as the specific intent to commit the elements of that offense, together with proof of the commission of an overt act 'by one or more of the parties to such agreement' in furtherance of the conspiracy." (People v. Morante (1999) 20 Cal.4th 403, 416, quoting § 184.) "Other than the agreement, the only act required is an overt act by any of the conspirators, not necessarily the defendant, and that overt act need not itself be criminal." (People v. Smith (2014) 60 Cal.4th 603, 616.)
"Evidence is sufficient to prove a conspiracy to commit a crime 'if it supports an inference that the parties positively or tacitly came to a mutual understanding to commit a crime. [Citation.] The existence of a conspiracy may be inferred from the conduct, relationship, interests, and activities of the alleged conspirators before and during the alleged conspiracy.'" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1134-1135.)
B. Analysis
Solis contends there was no evidence he and Hernandez "specifically agreed to commit robbery," as they did not agree, either formally or informally, to "employ force or fear to carry out [the] larcenies," as evidenced by the fact that there was no "pattern of threats or serial displays of a weapon, let alone a single instance of such."
However, neither threats nor brandishing a weapon are necessary to commit robbery, but instead are accomplished by force or fear. And, as chronicled above, the circumstances of the robberies clearly show a pattern of intent to carry out the thefts by force. Each involved similar circumstances: in each, the robber approached a woman who was walking, or just finished shopping, or asked questions as a pretext; the robber then would try to yank the necklace off of the victim's neck, using force to break the necklace; the robbery then escaped in a vehicle driven by the other party. Solis personally committed most of the robberies; Hernandez personally committed at least one.
The similarities between the method used in all of the robberies and attempted robberies, and that both parties personally committed or attempted to commit at least one, shows that Solis and Hernandez had a tacit agreement to take the necklaces by force. Because there is substantial evidence, we reject Solis's challenge to his conspiracy convictions. III. Is Solis's sentences on the conspiracy counts unauthorized?
Finally, Solis contends the trial court was not authorized to sentence him to more time on the conspiracy counts than he received on the underlying robbery offenses, citing the wording of section 182, subdivision (a). We subsequently requested further briefing on the issue and specifically on the applicability of section 654 in this case. For reasons stated below, we remand for resentencing.
A. Background
Solis was convicted in counts 3 and 8 of conspiracy to commit second degree robbery. The conspiracy charged in count 3 relates to the second degree robberies charged in counts 1 and 2, and the conspiracy charged in count 8 relates to the attempted robberies in counts 5 and 6, and the second degree robbery in count 7.
On June 18, 2015, prior to sentencing, the People filed a sentencing statement recommending fully consecutive sentences. Letters from the various victims were attached.
Solis's probation report, dated June 22, 2015, lists no factors in mitigation and four factors in aggravation. The probation report recommends, inter alia, the upper term of 10 years (five years doubled) on the principal robbery term, count 1, and the upper term of 10 years (five years doubled) on both conspiracy convictions, counts 3 and 8, to be stayed pursuant to section 654.
The probation report for codefendant Hernandez recommends the midterm for the robberies and midterm for the attached conspiracy counts.
On July 2, 2015, Solis filed a statement in mitigation requesting the low term be imposed, due to Solis's "numerous and severe psychological and neuropsychological factors [which] substantially contributed to his crimes in this case." Attached to the statement was a confidential psychological evaluation by a clinical psychologist who had seen Solis.
At sentencing, the trial court designated the count 1 second degree robbery as the principal term and, contrary to the recommendation of the probation report, sentenced Solis to the midterm of six years, enhanced by five years for his strike prior. The trial court then imposed consecutive sentences of one-third the doubled midterm on counts 2, 5, 6, and 7: two years each for the second degree robberies in counts 2 and 7, and 16 months each for the attempted robberies in counts 5 and 6. The trial court imposed the upper term of 10 years each on the counts 3 and 8 conspiracy convictions and stayed those sentences under section 654.
Second degree robbery is punishable by two, three, or five years in state prison. (§ 213, subd. (a)(2).)
All of the determinate terms were doubled based on Solis's prior strike conviction. (§ 667, subd. (e)(1).)
Attempted robbery is punishable by one-half the term of imprisonment prescribed upon a conviction of the offense attempted. (§§ 213, subd. (a)(2)/664, subd. (a).) --------
In sentencing Solis, the trial court stated it had considered all factors in aggravation and mitigation, "everything that's been submitted to me, as well as argument." However, in imposing sentence, the trial court, without explanation, chose the midterm instead of the upper term on the principal robbery count, and made no mention of its reasoning to keep the recommended upper term on the conspiracy counts. Notations by the trial court on the probation report itself on the date of sentencing simply strike the recommendation of the upper term of 10 years on the principal robbery term and instead note the midterm of six years, without further written explanation.
B. Applicable Law and Analysis
Section 182, subdivision (a), provides that, when two or more people conspire to commit a felony other than certain listed exceptions, the crime is "punishable in the same manner and to the same extent as is provided for the punishment of that felony." As explained in People v. Baker (1999) 74 Cal.App.4th 243, this would mean, for example, a person who conspires to commit felonious assault "shall be punished to the same extent that person would have been if that person had committed (or aided and abetted) such an assault." (Id. at p. 255 (conc. opn. of Borne, P.J.); see also People v. Birdwell (1967) 253 Cal.App.2d 621, 633 ["Under sections 182 and 213, the punishment to commit armed robbery and for armed robbery is the same].)
Since second degree robbery is not one of the listed exceptions in section 182, subdivision (a), Solis's conspiracy convictions are punishable by the same sentencing range as second degree robbery-two, three, or five years. (§ 213, subd. (a).) Where, as here, the defendant has a prior strike, the base term is doubled, thus the range applicable in this case is four, six or 10 years. (§ 667, subd. (e)(1).)
Section 1170.1, subdivision (a) provides, in relevant part, that if a defendant is convicted of more than one offense carrying a determinate term, and the trial court imposes consecutive sentences, the term with the longest sentence is the principal term; any term consecutive to the principal term is a subordinate term. "The court imposes the full term, either lower, middle, or upper for the principal term. However ... the court imposes only 'one-third of the middle term' for subordinate terms." (People v. Felix (2000) 22 Cal.4th 651, 655.) This rule is limited in that "[t]he one-third-the-midterm rule of section 1170.1, subdivision (a), only applies to a consecutive sentence, not a sentence stayed under section 654." (People v. Cantrell (2009) 175 Cal.App.4th 1161, 1164.)
Section 654, subdivision (a), in turn, 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 statute prohibits punishment for two crimes arising from a single, indivisible course of conduct. (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) Because of the section 654 prohibition against multiple punishment, a defendant may not be punished for both a conspiracy to commit a crime and the crime itself where the conspiracy and the substantive offense shared the same objectives. (People v. Briones (2008) 167 Cal.App.4th 524, 529; People v. Ramirez (1987) 189 Cal.App.3d 603, 615.) "'If section 654 applies to a particular count, the court should impose the term normally applicable to the crime, including any count-specific enhancements, then stay the sentence.'" (People v. Alford (2010) 180 Cal.App.4th 1463, 1469.)
Sentencing judges are directed to stay, not dismiss or reverse, such counts, in the event a sentenced count is reversed upon appeal or otherwise, upon remand, the imposition of sentence on a stayed count is preserved and ensures that the defendant's punishment is commensurate with his criminal liability. (People v. Cantrell, supra, 175 Cal.App.4th at p. 1164.) Staying the counts rather than reversing, dismissing, or setting them aside also prevents double jeopardy violations. (People v. Cavanaugh (1983) 147 Cal.App.3d 1178, 1183.)
Here, the trial court chose count 1 as the principal term and counts 2, 5, 6, and 7 as the subordinate terms. The terms for counts 3 and 8 were stayed pursuant to section 654. The robbery and conspiracy convictions shared the same objectives and Solis could not be punished for both, nor was he. However, the trial court erroneously imposed the greater term for the stayed convictions in counts 3 and 8, than it did for the underlying offenses, which makes the sentence unauthorized under section 654.
Solis asks that we reduce the sentence on the conspiracy counts to six years each, based on the wording of section 182, subdivision (a); respondent contends we must remand for resentencing because the sentence is unauthorized pursuant to section 654. Because the record before us is devoid of reasons why the upper term was imposed on the stayed counts (or even why the midterm was imposed on the principal second degree robbery count), we will remand the case to the trial court to impose a legal sentence. (People v. Massengale (1970) 10 Cal.App.3d 689, 693.) In doing so, the trial court may choose, following applicable limits, whether to stay sentence on the conspiracy counts or on the second degree robbery offenses. (People v. Cavanaugh, supra, 147 Cal.App.3d at p. 1183.)
DISPOSITION
Judgment affirmed; remand for resentencing consistent with this opinion.
/s/_________
SMITH, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________
GOMES, J.