Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Los No. BA276341, Robert J. Perry, Judge.
Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and Appellant Jose Luis Carbajal.
Robert E. Boyce, under appointment by the Court of Appeal, for Defendant and Appellant Juan Delgado.
Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant Edward Malaquias.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General of the State of California, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec, Ellen Birnbaum Kehr and Susan Sullivan Pithey, Deputy Attorneys General, for Plaintiff and Respondent.
ARMSTRONG, Acting P. J.
Appellants Jose Luis Carbajal, Juan Delgado, and Edward Malaquias were convicted, following a jury trial, of five counts of second degree robbery in violation of Penal Code section 211, one count of attempted second degree robbery in violation of sections 664 and 211, and one count of second degree commercial burglary in violation of section 459. The jury found true the allegations as to all defendants that a principal was armed in the commission of the offenses within the meaning of section 12022, subdivision (a)(1). The jury also found true the allegation that Carbajal personally used a firearm in the commission of the offenses within the meaning of section 12022.53, subdivision (b).
All further statutory references are to the Penal Code unless otherwise specified.
Appellants appeal from the judgment of conviction, contending that the trial court's imposition of the upper term and consecutive sentences violated their federal constitutional right to a jury trial as set forth in Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856]. Delgado and Carbajal also contend that the evidence is insufficient to support their convictions. We affirm Malaquias's and Carbajal's judgments of conviction in all respects. We remand this matter as to Delgado for resentencing, as set forth in more detail in our disposition. We affirm Delgado's conviction in all other respects.
Facts
About 6:45 p.m. on December 23, 2004, Anselmo Flores, Silvio Morales and Elizio Hernandez were working around the knitting machines at Wintex, a fabric manufacturing company located on East 30th Street. Dae Song and Jae Hwang were in their respective offices, as was Jeff Kim, Wintex's owner.
Appellant Malaquias and co-defendant Mayo, both armed with guns, entered the business and tied up Flores, Morales and Hernandez. The men took Flores's and Morales's cell phones and wallets. Song observed the robbery, called a friend to report it, then walked out to where the employees were tied up. Song was tied up at gunpoint by Malaquias. Song heard a forklift being operated and believed that the operator was not a Wintex employee because all the employees were tied up.
Song spoke only Korean and called a Korean-speaking friend.
Mayo entered the office of Jae Hwang, a Wintex manager. Kyung Kim was in the office with Hwang. Mayo took Kim's cell phone. Appellant Carbajal then entered the office carrying a shotgun. Carbajal moved Hwang and Kyung Kim away from the desks.
Mayo left Hwang's office and went to the office of Jeff Kim, the owner of Wintex. Mayo told him to walk out of his office, then took his wallet, cell phone and watch. Outside his office, Jeff Kim saw Carbajal pointing a shotgun at Hwang and Kyung Kim. Mayo and Carbajal told Hwang, Kyung Kim and Jeff Kim to get on the ground. One of the robbers tied up all three men and took Hwang's and Kyung Kim's wallets and cell phones.
The victims heard the sound of helicopters. About 7:10 p.m., Los Angeles Police Officers Gamboa and Oseguera arrived at Wintex. Officer Gamboa saw a white truck parked at Wintex's loading dock. There were three or four Hispanic males on the loading dock. They ran away as the officers approached.
Officers Gamboa and Oseguera detained Malaquias and Mayo as they ran out of the building.
Officers Garcia, Zolezzi, and Marr chased the men who ran away from the loading dock. Officer Garcia drove his patrol car around the Wintex building and saw two men work their way through a hole in the fence just north of the loading dock. Officer Garcia and his partner got out of their patrol car, chased the two men on foot and apprehended them. One of the men was Delgado and the other was Enrique Sanchez. Delgado discarded a pair of gloves and a black beanie as he ran. Delgado was not an employee of Wintex.
Sanchez was tried separately.
More officers arrived at Wintex, including a canine unit. That unit eventually located Carbajal hiding in the building.
A police search of Mayo uncovered various items of personal property belonging to Jeff Kim, Kyung Kim and Flores. A search of Malaquias uncovered Morales's cell phone.
Police impounded the large white truck parked at the loading dock, and a large yellow truck parked on the street in front of the business. The trucks did not belong to Wintex. No one had permission to park the white truck at the loading dock.
Delgado testified on his own behalf that he did not participate in the robbery. He was working nearby at Union Fabric for someone named Solomon. It was part-time work and he was paid in cash. At the time of the robbery, Delgado was on his way to a nearby restaurant when he heard someone yell. He became nervous, started running and dropped his beanie. He was initially running because he was in a hurry to get the food. He had work gloves because it was cold.
Discussion
1. Motion to acquit
Delgado contends that the trial court erred in denying his motion for acquittal made pursuant to section 1118.1. Carbajal joins in this contention to the extent that it inures to his benefit.
Like Delgado, Carbajal made a motion for acquittal pursuant to section 1118.1 at the close of the People's case. Both motions were denied.
Section 1118.1 provides in pertinent part: "In a case tried before a jury, the court on motion of the defendant or on its own motion, at the close of the evidence on either side and before the case is submitted to the jury for decision, shall order the entry of a judgment of acquittal . . . if the evidence then before the court is insufficient to sustain a conviction of such offense or offenses on appeal."
The standard applied by a trial court in ruling on a motion for acquittal made pursuant to section 1118.1 is the same as the standard applied by an appellate court in reviewing the sufficiency of the evidence to support a conviction, that is, whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged. (People v. Mincey (1992) 2 Cal.4th 408, 432, fn. 2.)
The victims' testimony showed that Carbajal directly participated in the robbery of the Kims and Hwang. Carbajal's cohort in the crime was Mayo, who also participated in the robbery of Song and the other Wintex employees. Thus, Carbajal was clearly part of the robbery as a whole. He was found hiding in the building after the robbery, and was identified by the victims. This is more than sufficient evidence to support his convictions.
None of the victims identified Delgado as one of the robbers inside the building. Thus, his liability is based on an aiding and abetting theory.
An aider and abettor is one who, with knowledge of the unlawful purpose of the perpetrator, aids, promotes, encourages, or instigates the commission of the crime with the intent or purpose of facilitating, encouraging, or committing the crime. (People v. Mendoza (1998) 18 Cal.4th 1114, 1123.)
While the victims were on the ground, Song heard the forklift being operated. All the Wintex employees were tied up at that time, so the forklift was being operated by an outsider. When officers arrived at the scene, there was a truck in the loading dock area of the business and another truck parked nearby. These trucks were not associated with Wintex. Thus, it is reasonable to infer that the robbers also intended to steal Wintex fabric or equipment and transport such items in the trucks.
When Officer Garcia arrived at the business's parking lot, he saw three or four men running away from the loading dock toward the north. He drove his patrol car around the building and saw two men work their way through a hole in the fence just north of the loading dock. Officer Garcia and his partner got out of their patrol car, chased the two men on foot and apprehended them. One of the men was Delgado and the other was co-defendant Sanchez. Delgado discarded a pair of gloves and a black beanie as he ran. Delgado was not an employee of Wintex.
We cannot agree with Delgado that the jury could only speculate about his purpose in being on the loading dock. His presence on Wintex's loading dock was certainly suspicious. His flight at the sight of police officers demonstrated a consciousness of guilt. (People v. Navarette (2003) 30 Cal.4th 458, 502; People v. Mendoza (2000) 24 Cal.4th 130, 179-180.) Further, his act of discarding his gloves and beanie also indicated a consciousness of guilt. (People v. Coffman (2004) 34 Cal.4th 1, 102-103; People v. Hart (1999) 20 Cal.4th 620-621.) It is more than reasonable to infer from this evidence that Delgado was on the loading dock for the purpose of assisting in the robbery by loading stolen merchandise into the truck.
2. Cunningham claim
Appellants claim the trial court's imposition of the upper term and consecutive sentences violated their federal constitutional right to trial by jury as set forth in Cunningham v. California, supra, 549 U.S. ____ and Blakely v. Washington (2004) 542 U.S. 296.
To the extent that appellants contend that the imposition of consecutive terms violated their Sixth Amendment right to a jury trial, appellants are mistaken. The decision to sentence consecutively need not be based on facts found true by a jury. A jury's verdict finding the defendant guilty of two or more crimes authorizes a consecutive sentence. (People v. Black (2007) 41 Cal.4th 799, 820-821.) Factual findings are not required under California law to support the imposition of consecutive sentences, and the trial court may consider the relationship between the two crimes and any circumstance in aggravation or mitigation. (Id. at pp. 822-823.)
In Cunningham, supra, the U.S. Supreme Court held that California's procedure for selecting an upper term violated a defendant's Sixth and Fourteenth Amendment right to jury trial because it gave the judge, not the jury, the authority to find facts that exposed a defendant to an elevated upper term sentence. The court explained that "the Federal Constitution's jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant." (Cunningham v. California, supra, 549 U.S. at p. __ [127 S.Ct. at p. 860].)
The California Supreme Court has explained the application of Cunningham to California's sentencing law: "Cunningham requires us to recognize that aggravating circumstances serve two analytically distinct functions in California's current determinate sentencing scheme. One function is to raise the maximum permissible sentence from the middle term to the upper term. The other function is to serve as a consideration in the trial court's exercise of its discretion in selecting the appropriate term from among those authorized for the defendant's offense. Although the DSL does not distinguish between these two functions, in light of Cunningham it is now clear that we must view the federal Constitution as treating them differently. Federal constitutional principles provide a criminal defendant the right to a jury trial and require the prosecution to prove its case beyond a reasonable doubt as to factual determinations (other than prior convictions) that serve the first function, but leave the trial court free to make factual determinations that serve the second function. It follows that imposition of the upper term does not infringe upon the defendant's constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant's record of prior convictions." (People v. Black, supra, 41 Cal.4th at pp. 815-816.)
In order to preserve the claim, Malaquias and Carbajal argue that People v. Black, supra, 41 Cal.4th 799 is wrongly decided.
In sentencing Carbajal, the trial court found as a mitigating factor that he had no significant criminal history. In aggravation, the court found that the robberies involved planning and sophistication and were "take over" robberies involving several perpetrators, and that Carbajal played a major role. To support consecutive sentences, the court found that there were numerous victims. The trial court's findings were identical as to Delgado.
In sentencing Malaquias, the trial court found as a mitigating factor that he had no significant criminal history. In aggravation, the court found that the robberies involved planning and sophistication, and that Malaquias, although not a leader, was an active participant in what he knew was sophisticated criminal activity. The court also found that Malaquias was on probation at the time of the current offenses. To support consecutive sentences, the court found that there were numerous victims.
The trial court's finding that Malaquias was on probation at the time of the current offenses falls within the prior conviction exception of Almendarez-Torres v. United States (1998) 523 U.S. 224. Thus, Malaquias was not entitled to a jury trial on this aggravating factor. The trial court's imposition of the upper term complied with the requirements of Cunningham, supra. (People v. Towne (2008) 44 Cal.4th 63.)
The aggravating factors found by the trial court in sentencing Carbajal and Delgado do not relate to any prior convictions. Thus, they do not comply with the requirements of Cunningham, supra. In such a case, we ask whether the jury, "applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury." If we conclude beyond a reasonable doubt that the jury would have done so, any Sixth Amendment error is harmless. (People v. Sandoval (2007) 41 Cal.4th 825, 839-840.)
We conclude, beyond a reasonable doubt that, as to Carbajal, a jury would have found that "the manner in which the crimes were carried out indicated planning, sophistication, or professionalism." The robberies involved the invasion of a business in the evening. There were at least five perpetrators and five victims. Three robbers went inside the business to subdue and rob the employees; others were on the loading dock, apparently awaiting instructions. Carbajal was among the three who went inside. He carried a gun. The employees were tied up and guarded in two separate groups. The robbery appeared to have two phases. The robbers took the wallets and cell phones of the employees. It is reasonable to infer from the presence of the white truck on the loading dock and the sound of a forklift being operated while all the employees were tied up that the robbers also intended to take fabric from the business, but were interrupted by the arrival of the police. The robberies showed coordination, planning and sophistication. The above-summarized evidence concerning the commission of the crimes was overwhelming and essentially uncontested by Carbajal. Thus, any error in the imposition of the upper terms as to Carbajal was harmless.
Malaquias was also among the three who went inside and also carried a gun. Thus, any error would have been harmless as to Malaquias as well.
We cannot reach a similar conclusion as to Delgado, however. His role in the crime did not show sophistication, professionalism or involvement in planning, and he contested his involvement in the robberies. Delgado was simply waiting outside to load merchandise into the truck. He was not armed. Thus, the upper term was not validly imposed as to Delgado.
Our Supreme Court has now determined a procedure to be followed when the trial court's finding of a sentencing factor is not valid. (People v. Sandoval, supra, 41 Cal.4th at pp. 843-848.) We remand this matter for resentencing Delgado in accordance with that procedure.
Disposition
We affirm the judgments of conviction for appellants Malaquias and Carbajal in all respects. We remand this matter for resentencing of appellant Delgado under the procedures outlined in People v. Sandoval, supra, 41 Cal.4th 825. We affirm Delgado's judgment of conviction in all other respects.
We concur: MOSK, J., KRIEGLER, J.