Opinion
2d Crim. No. B296293
07-15-2020
THE PEOPLE, Plaintiff and Respondent, v. JUAN AYALA, Defendant and Appellant.
Gregory T. May, under appointment by the Court of Appeal for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, Roberta L. Davis, Deputy Attorney 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 2018000266)
(Ventura County)
Juan Ayala appeals from the judgment entered after his conviction by a jury of second degree robbery (count 1 - Pen. Code, §§ 211, 212.5, subd. (c)), assault with a firearm (count 2 - § 245, subd. (a)(2)), and discharge of a firearm in a grossly negligent manner (count 3 - § 246.3, subd. (a)). As to the robbery, the jury found true an allegation that appellant had discharged a firearm within the meaning of section 12022.53, subdivision (c). As to the assault, the jury found true an allegation that he had used a firearm within the meaning of section 12022.5, subdivision (a). The trial court struck the firearm allegation as to the assault. It sentenced appellant to an aggregate term of 24 years, eight months, consisting of the middle term of three years for the robbery plus the following consecutive terms: 20 years for the firearm enhancement, one year for assault with a firearm, and eight months for the grossly negligent discharge of a firearm.
All further statutory references are to the Penal Code. --------
Appellant contends that the evidence is insufficient to support the force or fear element of robbery because there is no substantial evidence that, when he discharged the firearm, he intended to permanently deprive the owner of its property (a 12-pack case of beer). Appellant argues that, before discharging the firearm, he abandoned the property. Appellant further contends that (1) the trial court erred in failing to instruct the jury sua sponte that theft is a lesser included offense of robbery; and (2) section 654 precludes punishment for both robbery and assault with a firearm. Only the latter contention has merit. We modify the judgment to stay execution of the sentence imposed for assault with a firearm and affirm the judgment as modified. The modification reduces appellant's aggregate term by one year.
Facts
Alan Mauricio and Micah Spragg were working as loss prevention employees at a Vons market in Oxnard. They saw appellant and an accomplice take cases of beer from the alcohol aisle and run out of the store without paying. Spragg yelled, "'I'm loss prevention,'" and ran after them. Appellant's accomplice dropped both cases of beer that he was carrying.
Spragg chased appellant into a parking lot and grabbed his arms. Appellant dropped the case of beer he was carrying, "reach[ed] in the front of his belt," and grabbed a revolver. According to Spragg, appellant pointed the revolver "backwards" and fired it "[a]n inch" away from Spragg's head. He was not hit. Spragg "turned around[,] . . . heard another shot and dove under [a] car."
Mauricio testified: He also ran after appellant. He was "[p]robably a little bit closer" than 40 feet behind Spragg when Spragg grabbed appellant by the shirt. Appellant "reached for his waistband and pulled out a gun and started shooting [backwards] over his shoulder." Spragg "was right behind" appellant, "still holding onto his shirt." Appellant turned around, pointed the gun at Mauricio, and fired a second shot that "sounded like" it went "past . . . [Mauricio's] head." Mauricio sought shelter "behind [a] car and . . . went to the ground." After the second shot, Mauricio heard one or two more shots.
Immediately after the robbery, Mauricio told the police: Spragg "grabs [appellant from] behind. . . . Well, [appellant] . . . pulls [the gun] out. Shoots at my partner. Then he goes and shoots at me. Which I heard it go past my ear. I go running . . . to hit the ground and try to get away. [Appellant] shoots again. BOOM. And then after that, . . . they [appellant and his accomplice] start running. . . . I don't know where they went."
Joshua Lemieux witnessed the incident. He saw "somebody dropping a 12-pack of beer. Three beers spilled out, one exploded. And then the guy that dropped the beer pulled out a gun, and . . . said, 'Mother-F[ucke]r' and fired off the gun at what looked like somebody right next to him." The gun, which "looked like a silver revolver," was "pointed right at the guy that was just in front of him." The shooter fired two additional "wild" shots. "It looked like somebody that just wasn't taking aim too well and popped off shots as quickly as they could."
Lemieux saw the shooter and his accomplice jump into a white SUV, which exited the parking lot. When they entered the vehicle, they were not carrying anything.
After he was arrested, appellant told the police: "[T]hey grabbed me from the back of my shirt and my hand. So I reached real quick and . . . shot in the air so they'll let go of me." Officer Jason Radcliffe asked, "He [Spragg] grabbed a hold of you, told you to hold up. At which time you dropped the beer and you grabbed a gun out of your waistband." Appellant responded, "Yeah." But appellant earlier told the police that he had dropped the beer "way before" Spragg grabbed him. In response to Officer Radcliffe's question, "[W]hy did you pull the gun out and bring it into a struggle over the beer," appellant said, "Oh, I let the beer go. I let the beer go. No, no beer is worth it."
Substantial Evidence Supports the Robbery Conviction
"Robbery is defined 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.' (Pen. Code, § 211.) . . . In California, '[t]he crime of robbery is a continuing offense that begins from the time of the original taking until the robber reaches a place of relative safety.' [Citation.] It thus is robbery when the property was peacefully acquired, but force or fear was used to carry it away." (People v. Anderson (2011) 51 Cal.4th 989, 994 (Anderson); see People v. Estes (1983) 147 Cal.App.3d 23, 27 ["a robbery occurs when defendant uses force or fear in resisting attempts to regain the property"].)
"The intent required for robbery has been described as the specific intent to deprive the victim of the property permanently. [Citations.] Thus, 'the act of force or intimidation by which the taking is accomplished in robbery must be motivated by the intent to steal . . . .' " (Anderson, supra, 51 Cal.4th at p. 994.) "[T]he requisite forcible act may be an act committed after the initial taking if it is motivated by the intent to retain the property." (Id. at p. 995.)
Appellant claims that the evidence is "insufficient to support a finding that [he] intended, at the time he used force or fear, to permanently deprive the owner of the beer." He asserts: "[T]he undisputed evidence showed that appellant and his cohort dropped all the beer before the shooting." "[A]ppellant . . . broke free of his pursuer and left without the goods despite the opportunity to retrieve them." "On this evidence, it is pure conjecture to say that when appellant fired the gun, he was doing so with the intent to permanently deprive the owner of the beer."
"In resolving sufficiency of the evidence claims, 'an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.'" (People v. Gomez (2008) 43 Cal.4th 249, 265.) "We draw all reasonable inferences in support of the judgment." (People v. Wader (1993) 5 Cal.4th 610, 640.) "Reversal . . . is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].'" (People v. Bolin (1998) 18 Cal.4th 297, 331.)
A rational trier of fact could find beyond a reasonable doubt that, when appellant fired the gun at Spragg, he still had the intent to permanently deprive the owner of the beer. That he dropped the case of beer before firing does not prove he had abandoned his intent to steal. One may reasonably infer that he dropped it to free his hands so he could draw the gun and shoot his pursuer. Lemieux testified that, after dropping the beer, appellant "immediately turned around and pulled a gun . . . out of his waistband and fired it off immediately." Appellant responded in the affirmative to the following statement by Officer Radcliffe: "He [Spragg] grabbed a hold of you, told you to hold up. At which you dropped the beer and you grabbed a gun out of your waistband." Moreover, appellant intended to steal not only the case of beer he was carrying, but also the two cases of beer that his accomplice had taken. At the time of the shooting, appellant may not have realized that his accomplice had dropped both cases of beer.
After firing the gun, appellant did not retrieve the case of beer he had dropped. This does not prove that, at the time of the shooting, he had abandoned his intent to steal. Retrieving the case of beer would probably have been difficult because, according to Lemieux, when appellant dropped it "[t]hree beers spilled out, [and] one exploded." Appellant must have heard the explosion. It is reasonable to infer he realized that retrieving the case of beer and carrying it to the SUV would hinder his escape. "[R]obbery does not require that the loot be carried away after the use of force or fear." (People v. Pham (1993) 15 Cal.App.4th 61, 65 (Pham).)
The Trial Court Was Not Required to Instruct
Sua Sponte on the Lesser Included Offense of Theft
Appellant asserts, "The robbery conviction must be reversed because the trial court failed to instruct the jury on the lesser included offense of theft." (Bold omitted) "'Theft is a lesser included offense of robbery, which includes the additional element of force or fear.'" (People v. Bradford (1997) 14 Cal.4th 1005, 1055-1056.)
"'[I]t is the "court's duty to instruct the jury not only on the crime with which the defendant is charged, but also on any lesser offense that is both included in the offense charged and shown by the evidence to have been committed." [Citation.]' [Citations.] 'Conversely, even on request, the court "has no duty to instruct on any lesser offense unless there is substantial evidence to support such instruction[.]" [Citation.]' [Citation.] Substantial evidence 'is not merely "any evidence . . . no matter how weak" [citation], but rather "'evidence from which a jury composed of reasonable [persons] could . . . conclude[]'" that the lesser offense, but not the greater, was committed. [Citations.]' [Citation.] '"On appeal, we review independently the question whether the court failed to instruct on a lesser included offense." [Citation.]' [Citation.]" (People v. Castaneda (2011) 51 Cal.4th 1292, 1327-1328; see also People v. Breverman (1998) 19 Cal.4th 142, 162, italics added [instruction on lesser included offense "required whenever evidence that the defendant is guilty only of the lesser offense is 'substantial enough to merit consideration' by the jury"].)
Appellant argues, "Here, the evidence would have allowed the jury to find [him] guilty of theft, rather than robbery, because there was evidence that [he] used force or fear only after abandoning the stolen property." (See Pham, supra, 15 Cal.App.4th at p. 68 ["If defendant truly abandoned the victims' property before using force, then, of course he could be guilty of theft, but not of . . . robbery"].) It is reasonable to infer, appellant alleges, that he "fired the gun solely to escape without the beer."
The trial court did not have a duty to instruct sua sponte on the lesser included offense of theft. There is no substantial evidence from which a jury could reasonably conclude that appellant truly abandoned the property before firing the gun so that he was guilty of theft but not robbery. We recognize that appellant told the police, "I let the beer go. No, no beer is worth it." But in view of the totality of the circumstances, appellant's self-serving statement does not constitute substantial evidence that his intent to steal suddenly vanished when he dropped the beer. He dropped it because the 12-pack case was an encumbrance that impeded his ability to use the firearm against Stragg. (See People v. Hendricks (1988) 44 Cal.3d 635, 643 [in view of physical evidence establishing that defendant intentionally shot victim, his "self-serving tape-recorded statements denying an intent to kill cannot be deemed substantial in character" so as to warrant the giving of requested instruction on involuntary manslaughter].)
Section 654 Bars the Consecutive
Sentence for Assault with a Firearm
The information alleged that Spragg was the sole victim of both the robbery and the assault with a firearm. Appellant was not charged with robbing or assaulting Mauricio. Appellant maintains that the one-year consecutive sentence for the assault conviction must be stayed pursuant to section 654 because "the act constituting use of force or fear that is the basis for [the] robbery count[, i.e., the act of firing the gun,] is also the basis for [the] assault count."
"Section 654 prohibits multiple punishment for a single act that violates different provisions of law." (People v. Mitchell (2016) 4 Cal.App.5th 349, 352.) "It has long been recognized that where a defendant is convicted of robbery and other crimes incidental to the robbery such as assault, section 654 precludes punishment for both crimes." (Id. at p. 354; see also In re Jesse F. (1982) 137 Cal.App.3d 164, 171 ["if an assault is committed as the means of perpetrating a robbery, section 654 requires the sentence for the assault to be stayed"].)
The People contend that section 654 does not apply here because "the court could have concluded that [the shots fired after the first shot] were gratuitous acts of violence and not incidental to the robbery." The People rely on People v. Nguyen (1988) 204 Cal.App.3d 181, 191 (Nguyen), in which the appellate court stated: "It is one thing to commit a criminal act in order to accomplish another; Penal Code section 654 applies there. But that section cannot, and should not, be stretched to cover gratuitous violence or other criminal acts far beyond those reasonably necessary to accomplish the original offense. Once robbers have neutralized any potential resistance by the victims, an assault or attempt to murder to facilitate a safe escape, evade prosecution, or for no reason at all, may be found by the trier of fact to have been done for an independent reason."
In Nguyen the defendant and his accomplice committed an armed robbery of a market. "While Nguyen remained at the store's till, his crime partner took the [store clerk] into a back room, relieved him of his valuables, and then forced him to lie on the floor in an obvious attempt to forestall any resistance. Only after the clerk assumed that position did Nguyen's accomplice shoot him." (Nguyen, supra, 204 Cal.App.3d at p. 190.) The trial court imposed consecutive sentences for robbery and attempted murder. Nguyen claimed that the consecutive sentences violated section 654 "because the facts suggest the clerk was shot in order to eliminate him as a witness or to facilitate the assailants' escape." (Id. at p. 191.) The appellate court disagreed: "This act [of shooting the clerk] constituted an example of gratuitous violence against a helpless and unresisting victim which has traditionally been viewed as not 'incidental' to robbery for purposes of Penal Code section 654." (Id. at p. 190.)
The People argue: "[T]he evidence demonstrated that appellant fired three to four shots. It is reasonable to infer that appellant fired the first shot to prevent Spragg from retrieving the beer appellant and his cohort were carrying and effectuate their escape. It is also reasonable to infer that the subsequent shots were independent acts of gratuitous violence. . . . There was no evidence that the subsequent shots were necessary to effectuate the robbery."
The People's "gratuitous violence" argument lacks merit because the assault charge was based on appellant's firing of the first shot at Spragg. Appellant aimed the second shot at Mauricio, who "heard [the bullet] go past [his] ear." But Spragg, not Mauricio, was the victim of the assault charged in the information. Lemieux testified that the shooter fired two additional "wild" shots. The basis for the assault charge - the first shot - cannot be characterized as "an example of gratuitous violence against a helpless and unresisting victim." (Nguyen, supra, 204 Cal.App.3d at p. 190.) Instead of being a separate act of violence, the first shot was incidental to the commission of the robbery because it constituted the force or fear element of the offense. (Cf. People v. Coleman (1989) 48 Cal.3d 112, 162-163 [no violation of section 654 where defendant sentenced for both assault and robbery of the same victim because "[p]rior to the assault, defendant had essentially completed the robbery"].)
The trial court therefore violated section 654 when it imposed a consecutive one-year sentence for assault with a firearm. "[W]hen a court determines that a conviction falls within the meaning of section 654, it is necessary to impose sentence but to stay the execution of the duplicative sentence . . . pending completion of service of sentence upon the greater offense, with the stay to become permanent upon completion of that sentence." (People v. Duff (2010) 50 Cal.4th 787, 796.)
Request for Remand
Appellant requests that we remand the matter to the trial court "with instructions to stay the punishment imposed for the assault with a firearm" (count 2). The People agree that the matter should be remanded but "the trial court should be permitted to exercise its discretion to restructure appellant's entire sentence." (See People v. Hill (1986) 185 Cal.App.3d 831, 834 ["an aggregate prison term is not a series of separate independent terms, but one term made up of interdependent components. The invalidity of one component infects the entire scheme"].)
After a defendant's successful appeal, the trial court cannot restructure the sentence so that the defendant is punished more severely than he was under the judgment from which he appealed. (People v. Hanson (2000) 23 Cal.4th 355, 357 ["When a defendant successfully appeals a criminal conviction, California's constitutional prohibition against double jeopardy precludes the imposition of more severe punishment on resentencing"].)
The trial court concluded that the aggregate term imposed - 24 years, eight months - was the correct sentence for appellant's crimes. Had it believed that a lesser sentence was warranted, it would have run the subordinate terms concurrently instead of consecutively to the principal term for the robbery. Thus, if the trial court could restructure appellant's sentence to maintain the aggregate term at 24 years, eight months, it would be appropriate to remand the matter for resentencing.
The sentence cannot be so restructured. The only term that could be increased is the three-year middle term imposed for second degree robbery. The upper term is five years. (§ 213, subd. (a)(2).) Imposition of the upper term would mean that appellant's new aggregate term would exceed by one year the aggregate term originally imposed. (The section 654 stay reduces the aggregate term by one year, and the imposition of the five-year upper term would increase the aggregate term by two years.) Instead of imposing an eight-month consecutive term for the grossly negligent discharge of a firearm (count 3), the trial court could run the sentence for this offense concurrently. But the new aggregate term would still exceed the original aggregate term by four months.
Accordingly, it would be futile to remand the case to the trial court with directions to resentence appellant. We need not remand with directions to stay the sentence imposed for assault with a firearm; we can do this ourselves. (§ 1260.)
Disposition
Pursuant to section 654, the judgment is modified to stay execution of the sentence imposed on count 2 for assault with a firearm pending completion of the sentence imposed on count 1 for second degree robbery. Upon completion of the sentence imposed on count 1, the stay shall become permanent. This modification reduces appellant's aggregate term by one year. As modified, the judgment is affirmed. The trial court shall prepare an amended abstract of judgment and send a certified copy to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED.
YEGAN, J. We concur:
GILBERT, P. J.
TANGEMAN, J.
Michele M. Castillo, Judge
Superior Court County of Ventura
Gregory T. May, under appointment by the Court of Appeal for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, Roberta L. Davis, Deputy Attorney General, for Plaintiff and Respondent.