Opinion
C084043
10-23-2018
THE PEOPLE, Plaintiff and Respondent, v. RUEBEN J. AMARO, JR., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15F04183)
A jury found defendant Rueben J. Amaro, Jr., guilty of robbery (count one) and assault by force likely to produce great bodily injury (count two). (Pen. Code, §§ 211, 245, subd. (a)(4).) The trial court sentenced defendant to the lower term of two years in prison for the robbery and a consecutive year (one-third the middle term) for the assault. On appeal, defendant argues the court erred in refusing to give CALCRIM No. 3425, on the complete defense of unconsciousness, and in declining to stay the sentence for assault pursuant to section 654.
Undesignated statutory references are to the Penal Code.
We agree that the trial court erred in failing to apply section 654 and shall remand for resentencing.
FACTS
Defendant was a regular customer at a Circle K convenience store in Sacramento. On July 2, 2015, at approximately 10:30 p.m. while the victim (K.S.) was working as a cashier on the night shift, defendant entered the store wearing a white cloth over his face and a black hat and carrying what looked like a gun wrapped in a towel. He told K.S., "open the drawer, I came to rob you, and I'm not playing games." Defendant came around the counter, pushed K.S. into the window, and said, "I'm not playing around, I'm not joking, I came to rob you." K.S. was scared because he believed a gun was pointed at him. When K.S. stood up from the push, defendant hit him on the head with the object he was holding; K.S. saw the object was a drill rather than a gun. As defendant finished emptying the register, K.S. knocked the drill out of defendant's hand and tried to recover the cash. He pushed defendant several times, and defendant punched him. Defendant tried to run away, but K.S. managed to grab him and pin him on the floor; he then bit K.S., drawing blood. K.S. released him and he fled. During the scuffle, K.S. uncovered defendant's face and recognized him as a regular customer. The jury viewed several videos of the incident, taken from various camera angles.
Defendant testified that he got up at 6:00 a.m. that morning, and his mother drove him to the methadone clinic and then to his job as a tile setter, where he worked until around 11:30 a.m. After work, he had three or four large beers with his uncle, then went back home around 3:30 p.m. At home, he argued with his mother; he called her names and she hit him. He left home in tears and went to his cousin's house where other family members were socializing and drinking. He testified he did not recall what he drank, but while at his cousin's house he got into an argument with his uncle. Defendant's father then drove him to a friend's house where defendant purchased and consumed five Xanax pills. Defendant testified that he did not remember much after the argument he had with his uncle. He woke up the next day at his mother's boyfriend's house. He did not remember the events at Circle K. A friend's neighbor told him about the robbery; he was scared when he learned what he had done so he cut his hair short to make himself more difficult to identify from the surveillance video.
The parties stipulated that defendant was the registered owner of the car shown in the surveillance video leaving the robbery scene.
Defendant's mother testified that defendant arrived home in the late afternoon on the day of the robbery; he smelled of alcohol and cursed her. He returned home that night around 11:00 p.m.; he was shirtless and looked like he had been in a fight; he had glazed eyes and smelled of alcohol. He began arguing with his mother and also with his girlfriend; he was loud and out of control.
Defendant's mother's boyfriend saw defendant come home around 11:00 p.m. and park his car with difficulty. Defendant was arguing with his girlfriend and became confrontational with his mother's boyfriend. As the two men talked, defendant's speech began to slow and he no longer made sense. Eventually, he became lethargic, slumped over in his chair, and passed out.
Psychologist Eugene Roeder testified about alcohol-induced amnesia. Roeder explained that "in order to remember something, you first have to be aware, consciously aware that it's happening. Then the memory becomes encoded." Once a memory gets into the brain, then the memory is stored. The third stage of memory is recall or retrieval. With alcohol-induced amnesia, the memory does not become encoded in the brain. Alcohol-induced amnesia occurs when one rapidly consumes large quantities of alcohol. It primarily impacts the memory--rather than the consciousness or ability to engage in behavior. The person is not able to remember for a block of time, although they can consciously engage in behavior such as speaking or driving a car, appear to be normal, and are "otherwise conscious." But they cannot remember anything because they are "not conscious." Roeder had not seen any literature discussing whether methadone has any effect on alcohol-induced amnesia, but Xanax dramatically accelerates the impact of alcohol and the onset of alcohol-induced amnesia.
DISCUSSION
I
CALCRIM No. 3425 -- Complete Defense of Unconsciousness
As we have described, defendant presented evidence that he was voluntarily intoxicated at the time he committed the offenses and suffered alcohol-induced amnesia.
The trial court instructed the jury with CALCRIM No. 3426--entitled Voluntary Intoxication--as follows: "You may consider evidence, if any, of the Defendant's voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the Defendant acted with the specific intent or mental state required for robbery as charged in Count 1, specifically in deciding whether the Defendant intended to deprive the owner of the property permanently as set forth in element 6 of instruction 1600 above. [¶] A person is voluntarily intoxicated if he or she becomes intoxicated by willingly using any intoxicating drug, drink or other substance knowing that it could produce an intoxicating effect, or willingly assuming the risk of that effect. [¶] In connection with the charge of robbery, the People have the burden of proving beyond a reasonable doubt that the Defendant acted with the intent to permanently deprive the owner of his property. If the People have not met this burden, you must find the Defendant not guilty of robbery. [¶] You may not consider evidence of voluntary intoxication for any other purpose. Voluntary intoxication is not a defense to Assault with force likely to produce great bodily injury."
The court also instructed with CALCRIM No. 252 in relevant part that as follows: "The following crime requires a specific intent or mental state: Robbery as charged in Count 1. For you to find a person guilty of this crime, that person must not only intentionally commit the prohibited act, but must do so with a specific intent or mental state. [¶] [T]he specific intent required for the crime of robbery is that when the Defendant used force or fear to take the property, he intended to deprive the owner of it permanently." --------
Defense counsel requested the jury be given CALCRIM No. 3425 as well. Defendant contends the trial court erred in refusing to give it. We disagree.
CALCRIM No. 3425 provides a complete defense to criminal conduct, based on unconsciousness. It provides that a defendant is not guilty of the charged crime if he or she "acted while unconscious." "Unconsciousness may be caused by (a blackout[,]/ [or] an epileptic seizure[,]/ [or] involuntary intoxication[,]/ [or] <insert a similar condition>)." The instruction itself provides that the "defense of unconsciousness may not be based on voluntary intoxication." (CALCRIM No. 3425, italics added.)
Voluntary intoxication may negate specific intent, and here there was some evidence that defendant was voluntarily intoxicated to the point that he suffered from alcohol-induced amnesia and was unable to form the specific intent to permanently deprive K.S. and the store of the money from the register. He was entitled to, and received, instructions to the jury that explained this theory of defense. There was no evidence of involuntary intoxication or any other condition that could possibly qualify defendant for the complete defense of unconsciousness, and he was not entitled to that instruction. The trial court did not err in refusing to provide the jury with CALCRIM No. 3425.
II
Section 654Defendant next contends the trial court erred in declining to stay the sentence on his assault conviction (count two) pursuant to section 654. We agree.
Section 654, subdivision (a) provides: "An 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." While the statute literally applies to multiple punishment arising from the same act or omission, it has been extended to cases where there are several offenses committed during an indivisible course of conduct. (People v. Hicks (1993) 6 Cal.4th 784, 789.)
"Whether a course of 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. [Citation.] If all of the offenses are incident to one objective, the court may punish the defendant for any one of the offenses, but not more than one. [Citation.] If, however, the defendant had multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct. [Citation.]" (People v. Cleveland (2001) 87 Cal.App.4th 263, 267-268.)
"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 court's 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.)
Here, the assault conviction was based on defendant's hitting, kicking, and biting K.S. while trying to free himself. The trial court found that biting K.S. was "separate conduct." It found section 654 did not apply because "[t]he robbery was already taking place and had probably taken place because [defendant] had already pulled the money out of the till. And he had already started to move away. No matter how far the distance, no matter how short, the robbery is complete at that time." The court reasoned that the biting of K.S. was "unnecessary to the robbery."
Whether the bite was necessary to the robbery is not the test; here, defendant had the same goal and objective when biting as he did when emptying the register--to take the money by force or fear. While we agree that "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, italics added), here, K.S. was not an unresisting victim. He was resisting the ongoing robbery at the time he was assaulted.
Defendant's criminal activities were directed to the single goal and objective of taking the money from the store. Shortly after he demanded the money in the register, he shoved K.S. and hit him in the head. Then, when K.S. tried to prevent him from leaving the store with the money, defendant struggled and finally bit K.S., all the while trying to leave the store with the money. When defendant succeeded in leaving the store, he ceased the assaultive conduct. The robbery and assault comprised a course of conduct facilitating a single objective of robbery--to permanently deprive the store of money. The sentence for the assault count must be stayed pursuant to section 654.
The one-third the middle term rule does not apply to a sentence stayed under section 654. (People v. Relkin (2016) 6 Cal.App.5th 1188, 1197-1198.) Therefore, we vacate the sentence and remand for resentencing so the trial court may resentence on both counts of conviction, and stay the new sentence on count two.
DISPOSITION
The sentence is vacated and the matter is remanded for resentencing consistent with this opinion. The judgment is otherwise affirmed.
/s/_________
Duarte, J. We concur: /s/_________
Mauro, Acting P. J. /s/_________
Hoch, J.