Opinion
E064998
07-03-2017
THE PEOPLE, Plaintiff and Respondent, v. STARLON CHRISTIAN, Defendant and Appellant.
Robert F. Somers, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., Randall D. Einhorn and Susan Elizabeth Miller, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.Nos. RIF1501417 & RIF1408137) OPINION APPEAL from the Superior Court of Riverside County. Charles J. Koosed, Judge. Affirmed in part; reversed in part with directions. Robert F. Somers, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., Randall D. Einhorn and Susan Elizabeth Miller, Deputy Attorneys General, for Plaintiff and Respondent.
In 2015, defendant and appellant Starlon Christian went to a 99 Cent Store, stuffed her bag with items from the store and walked out without paying for them. The alarm on the store sounded and the store owner and another employee chased after defendant. The owner grabbed the strap of defendant's bag trying to wrestle it away from her. Defendant pulled a knife on the owner and the employee. Defendant was found guilty of two counts of robbery with the use of a deadly and dangerous weapon. In 2014, defendant took liquor bottles from a Stater Bros. Supermarket without paying for them, was confronted by an employee and threw one of the bottles at the employee while displaying a box cutter. She was placed on probation but that probation was revoked when she was convicted in this case.
Defendant makes several claims on appeal as follows: (1) insufficient evidence was presented to support her conviction of the two counts of robbery; (2) the instructions on the lesser included offense of attempted robbery were erroneous; (3) the erroneous instruction on attempted robbery removed an element from the greater offense of robbery; (4) CALCRIM No. 1600 is erroneous; (5) the trial court erred by admitting evidence of her prior robbery conviction pursuant to Evidence Code section 1101, subdivision (b); (6) cumulative errors warrant reversal; (7) the trial court erred by denying her Romero motion; (8) the trial court failed to exercise its discretion at sentencing by imposing the middle term instead of the low term; and (9) her sentence on the probation revocation was improper. The People claim the clerk's transcript should be corrected to reflect the trial court's oral pronouncement at sentencing.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL HISTORY
Defendant was charged in an information filed by the Riverside County District Attorney's office in case No. RIF1501417 with two counts of robbery (Pen. Code, §§ 211) (counts 1 and 2). She was additionally charged with having personally used a deadly and dangerous weapon, a knife, during the commission of the offenses (§ 12022, subd. (b)(1)). Defendant was also charged with having suffered one prior serious and violent felony conviction (§§ 667, subds. (a), (c) & (e)(2)(A), 11701.12, subd. (c)(2)(A)) and having served one prior prison term (§ 667.5, subd. (b)).
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant's motion to bifurcate the prior convictions was granted. The jury found defendant guilty of two counts of robbery, and that she personally used a dangerous or deadly weapon during the commission of both robberies. She waived her right to a jury trial on the prior convictions. The trial court found the prior conviction within the meaning of section 667, subdivisions (a), (c) and (e)(2)(A) and 1170.12, subdivision (c)(2)(A) true. The People dismissed the section 667.5, subdivision (b) allegation.
Defendant was sentenced to the middle term of three years, doubled due to her strike, plus one year for the use of the knife on count 1. She was sentenced to an additional five years for the section 667, subdivision (a) prior conviction. The sentence on count 2 was ordered to run concurrent to the sentence on count 1. She received a total sentence of 12 years in state prison.
The trial court also found in case No. RIF1408137 that defendant violated her probation. Defendant was sentenced to four years in state prison. The sentence was ordered to run concurrent to the instant case.
B. FACTUAL HISTORY
1. CURRENT ROBBERY AT 99 CENT STORE
On March 30, 2015, Soo Kang owned a 99 Cent Store located on Van Buren Boulevard in Riverside. Juan Coronado was working as an employee at the store that day. Kang explained that some items in the store had a sensor on them and would activate the alarm if taken out of the store without being paid for. Normally, when a customer pays for an item, the sensor is removed by the cashier. Kang ran after the person who left the store with the items; Coronado followed him.
Kang observed defendant running and carrying a bag bulging with items. Kang initially stated that she was carrying a green cooler bag that belonged to the store. He later clarified she was carrying her own bag in which she stuffed the cooler bag and other items. Kang caught up with defendant and grabbed the strap of the bag. The cooler bag was a green color and the purse recovered from defendant was multicolored. Coronado told defendant to return the items she had, because she had not paid for them, and they would let her go. Coronado described the bag as being black.
Kang told defendant he had to look at the items in the bag. Defendant held onto the bag and they struggled over possession of the bag. Defendant took out a knife and held it in her hand. Coronado heard defendant tell Kang to let her go when she pulled out the knife. She threatened to hurt him if he did not let go. Kang let go of the bag. Defendant held the knife up in the air and motioned toward Kang. Kang grabbed her hand to avoid getting hurt. Coronado grabbed for the knife and was able to get it out of her hand. Coronado stated that defendant still had the bag when she had the knife. It was either in her hand or just off to the side of her. Kang saw the bag still in defendant's hand.
Defendant and Coronado took defendant back into the store. Coronado took the knife back into the store. They held her there until the police arrived. Kang thought it was dangerous when defendant had the knife. Kang was not wearing anything identifying him as a store owner or employee.
Monica Peltier was outside the store sitting in her car that day. She observed two men and defendant struggling over a bag, which she described as a multicolored purse, starting inside the store and moving to the outside of the store. One of the men was wearing a 99 Cent Store T-shirt. The two men finally got the purse away from defendant and defendant tried to run. They caught up to her and she had a knife in her hand. They somehow got the knife away from her and took her back into the store. She was still struggling to get away. Peltier never saw defendant pull out the knife; she just noticed she had one in her hand when she got away from the two men.
Riverside Police Officer Michael Foster responded to the 99 Cent Store. Defendant was inside the store when he arrived. Kang gave Officer Foster the knife. Several items were laid out on a green cooler bag inside the store. Kang indicated these were the items that defendant took out of the store. These items included an air freshener, stickers, cosmetics, a flashlight and several other items. They totaled $48.95.
Kang and Coronado did not tell Officer Foster when he spoke with them that they had any verbal exchanges with defendant during the struggle. There was a multicolored purse by the items laid out in the store but Kang indicated it did not belong to the store. Defendant took the purse to jail with her. There was $1.42 in the purse and no credit cards or debit cards.
2. PRIOR ROBBERY AT STATER BROS. SUPERMARKET
On June 9, 2014, at approximately 5:15 p.m., Alicia Negrete was working as a clerk at the Stater Bros. Supermarket located on La Sierra in Riverside. She was in a store uniform. She and her manager followed defendant outside the store because defendant had taken two liquor bottles without paying for them. Negrete told defendant to return the bottles she took and defendant responded to "get out of the way." Defendant walked away and Negrete followed her. Negrete again told her to return the bottles and defendant got upset. She threatened to throw the bottles at Negrete.
Negrete did not leave. Defendant threw one of the bottles at her. It shattered on the ground and glass hit Negrete's leg. Negrete told defendant to return the other bottle. Defendant was frustrated and agitated. Negrete then saw a blade, which was a box cutter, in defendant's hand; she backed away from defendant. Defendant was apprehended by police near the store. She had a liquor bottle and box cutter in her possession. The jury was played the video surveillance tape from the incident.
DISCUSSION
A. SUFFICIENT EVIDENCE: ROBBERY
Defendant contends the evidence presented was insufficient to support her convictions of robbery. She alleges that Kang grabbed her purse but there was no evidence it contained the items Kang claimed to have recovered, which were stolen from the store. Moreover, Peltier testified that defendant no longer had possession of the purse when she saw defendant first display the knife. Consequently, the evidence is insufficient to prove defendant showed the knife to retain possession of the property or while she intended to permanently deprive Kang of the merchandise. Further, there was no evidence she used the knife against Coronado to retain possession of the stolen items.
"To determine sufficiency of the evidence, we must inquire whether a rational trier of fact could find defendant guilty beyond a reasonable doubt. In this process we must view the evidence in the light most favorable to the judgment and presume in favor of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence." (People v. Johnson (1993) 6 Cal.4th 1, 38, overruled on other grounds in People v. Rogers (2006) 39 Cal.4th 826.) "Evidence that is '"'reasonable in nature, credible, and of solid value'"' is substantial evidence." (People v. Frye (1998) 18 Cal.4th 894, 1004, disapproved of on other grounds in People v. Doolin (2009) 45 Cal.4th 390.) "'Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact.'" (People v. Brown (2014) 59 Cal.4th 86, 106.)
"'Robbery is the taking of 'personal property in the possession of another against the will and from the person or immediate presence of that person accomplished by means of force or fear and with the specific intent permanently to deprive such person of such property.'"'" (People v. Clark (2011) 52 Cal.4th 856, 943.) "'The taking element of robbery has two necessary elements, gaining possession of the victim's property and asporting or carrying away the loot.'" (People v. Hill (1998) 17 Cal.4th 800, 852, overruled on another ground by Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.)
"'Gaining possession or . . . carrying away' includes forcing or frightening a victim into leaving the scene, as well as simply deterring a victim from preventing the theft or attempting to immediately reclaim the property.'" (People v. Flynn (2000) 77 Cal.App.4th 766, 771.) "The use of force or fear to escape or otherwise retain even temporary possession of the property constitutes robbery." (Id. at p. 772.) "To establish a robbery was committed by means of fear, the prosecution 'must present evidence '. . . that the victim was in fact afraid, and that such fear allowed the crime to be accomplished."'" (People v. Morehead (2011) 191 Cal.App.4th 765, 772.) "It follows from these principles, . . . that the willful use of fear to retain property immediately after it has been taken from the owner constitutes robbery." (Flynn, at p. 772.) "If the aggravating factors are in play at any time during the period from caption through asportation, the defendant has engaged in conduct that elevates the crime from simple larceny to robbery." (People v. Gomez (2008) 43 Cal.4th 249, 258.)
In People v. Estes (1983) 147 Cal.App.3d 23, a security guard at a Sears store saw the defendant take clothing from a rack and leave the store without paying for the items. The guard followed the defendant outside into the parking lot. Once outside, the guard identified himself and confronted the defendant about the items taken. The defendant refused to return to the store and began walking away. The guard grabbed him and tried to detain him. The defendant pulled out a knife, swung it at the guard, and threatened to kill him. (Id. at p. 26.) The defendant was brought back into the store and the items were recovered. (Ibid.)
On appeal, the defendant argued his conviction could not stand because his assaultive behavior was not contemporaneous with the taking of the clothes. (People v. Estes, supra, 147 Cal.App.3d at p. 28.) The court of appeal concluded that a robbery had occurred. "The 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. It is sufficient to support the conviction that appellant used force to prevent the guard from retaking the property and to facilitate his escape. The crime is not divisible into a series of separate acts. Defendant's guilt is not to be weighed at each step of the robbery as it unfolds. The events constituting the crime of robbery, although they may extend over large distances and take some time to complete, are linked by a single-mindedness of purpose. [Citation.] Whether defendant used force to gain original possession of the property or to resist attempts to retake the stolen property, force was applied against the guard in furtherance of the robbery and can properly be used to sustain the conviction." (Ibid.)
Here, the jury was given a special instruction explaining "A robbery is not completed at the moment the defendant obtains possession of the stolen property. The crime of robbery includes the element of asportation. The defendant's escape with the loot being considered as important in the commission of the crime as gaining possession of the property. Thus a robbery can occur when a defendant uses force or fear in resisting attempts to regain the property."
This court recognizes that the presentation of evidence in the trial court was not overly clear. However, there was evidence presented to support the robbery counts in this case, and although there were some conflicts in the testimony of the witnesses, we must resolve the case in favor of the verdict. (People v. Brown, supra, 59 Cal.4th at p. 106.)
Kang testified he heard the alarm at the front door of the store go off, which he explained occurred when an item was taken from the store with a sensor still on the item. Normally, the sensor was taken off by a cashier when the item was purchased. Kang immediately went out the front door and saw defendant carrying a bag "bulging" with items. Kang grabbed the strap of the bag and struggled with defendant. Coronado arrived and told defendant to return the items and they would let her go. Both Coronado and Kang saw defendant with a knife in her hand. When Kang saw the knife, he released the strap on the bag fearing he was going to be hurt. Coronado grabbed for defendant's hand holding the knife and was able to get her to drop the knife. Coronado testified defendant had the bag in her hand or it was right next to her.
There was conflicting testimony regarding which bag Kang and defendant struggled over. During his initial testimony, the prosecutor asked Kang to identify the bag that defendant was carrying. He stated it was "yellowish" but was not sure. The prosecutor then had defendant identify a cooler bag that still had a sensor on it, which Kang stated belonged to the store. Kang then testified that when he first encountered defendant he grabbed the strap on the "bag" she was carrying. The prosecutor then asked several questions about how Kang grabbed the "strap to the food chest."
However, later in Kang's testimony, Kang made it clear that the green cooler bag that belonged to the store was inside defendant's own bag. Kang was asked, "Okay. When you brought the woman back inside to the store, do you remember what happened to the bag?" Kang responded, "What do you mean back of the store?" The prosecutor asked, "Showing you again People's 2 for identification, this green bag that she had in her hand, what happened to that after you brought her to the store." "Kang responded, "Yeah, it was in her bag." Kang was asked, "Okay. So did she have her own bag, and you found that bag in her bag? Kang responded, "Yes, that's correct." As such, it was clear the bag they were struggling with was defendant's own bag (the multicolored purse) that she had stuffed with the green bag containing the items from the store. Defendant fails to acknowledge this testimony in her argument that the evidence was insufficient.
While Kang and defendant were struggling over the bag containing the stolen items, defendant displayed a knife. Coronado was nearby and grabbed defendant's hand. Kang grabbed defendant's other hand fearing that she was going to stab them. Kang relinquished the strap on the bag. Once he let go of the strap, the robbery was complete. Defendant caused fear in Coronado and Kang by displaying the knife so that she could retain possession of the stolen property.
Defendant claims that the evidence presented was unclear because Peltier described the bag as multicolored, Kang said it was yellowish, and Coronado indicated it was black. Further, it was unclear if defendant left the store with the items, what bag they struggled over and whether she had displayed the knife while holding the bag containing the items. However, as stated, Kang clarified that the green cooler bag was inside of defendant's own bag, which would explain the differences between the testimonies. This was the most reasonable interpretation of the evidence. It was reasonable for the jury to rely on Kang's testimony that defendant had the cooler bag inside her purse because she would want to secret the merchandise in order to get out of the store undetected. The testimony of one witness is sufficient to support the verdict. (People v. Young (2005) 34 Cal.4th 1149, 1182 ["[U]nless the testimony is physically impossible or inherently improbable, [the] testimony of a single witness is sufficient to support [the verdict]"].) Moreover, even if there were conflicts in the evidence, such as Peltier testifying that she saw the knife after defendant dropped the purse, we must resolve such conflicts in favor of the verdict. (People v. Brown, supra, 59 Cal.4th at p. 106.)
We have reviewed the exhibits. Although the cooler bag was large, it was not "physically impossible" to fit it into defendant's purse.
Further, defendant states that even the prosecutor admitted the evidence was insufficient. The prosecutor stated in argument, "Mr. Kang testified that [h]e saw that the defendant had a green bag. I showed the picture of the green bag. He said yes, that's the bag she had. Now, maybe I did not clarify with Mr. Kang whether he actually saw that as she was walking out of the store or he eventually saw it in her person because clearly the other two witnesses—Mr. Coronado identified a black purse that the defendant had, and Ms. Peltier, who seemed to have got it the most accurate given the photo that we saw, had a dark purse with different-colored designs on it, and that's actually what was in the photo. So all three had a little bit different account of what color the bag was that defendant had."
It is unclear why the prosecutor ignored Kang's testimony that the cooler bag was inside defendant's purse. However, the fact that the prosecutor did not argue this evidence is not fatal to a finding of sufficient evidence. The jury was instructed that argument was not evidence and it should rely on the evidence presented. We presume the jurors followed the instructions. (People v. Danielson (1992) 3 Cal.4th 691, 722, overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046.) The evidence was before the jury and it could reasonably rely upon Kang's testimony in reaching its verdict.
Additionally, defendant contends that the evidence was insufficient to support the robbery conviction involving Coronado. Coronado was asked when he grabbed defendant's hand holding the knife, "Did she still have the bag with her at that time?" Coronado responded, "Yes. It was—it fell right there. It was just off to the side there, but she had it in her hands. That's when they went back inside towards the store." "'[I]mmediate presence' is 'an area over which the victim, at the time force or fear was employed, could be said to exercise some physical control' over his property." (People v. Gomez, supra, 43 Cal.4th at p. 257.) Here, the testimony supports the bag containing the stolen items was in the immediate presence of Coronado when defendant displayed the knife. Coronado had asked defendant to return the items but she refused, instead continuing to struggle with Kang and grabbing a knife. This evidence was sufficient to support the finding of robbery against Coronado.
Based on the foregoing, substantial evidence supports the robbery convictions in this case.
B. INSTRUCTIONAL ERRORS
Defendant provides lengthy arguments as to why the jury was improperly instructed in this case, and argues such error in the instructions requires reversal of her convictions in counts 1 and 2. She first contends that the instruction on attempted robbery was erroneous and removed attempted robbery from the jury's consideration. In addition, the erroneous instruction created an ambiguity in the instruction on the greater offense of robbery (CALCRIM No. 1600). She insists that the jury could have convicted her of robbery without finding she used forced to maintain or regain possession of the store's merchandise and that it need not find she intended to permanently deprive Kang of the items. Respondent concedes there were errors in the attempted robbery instruction given to the jury but that any error was harmless and that the jury was properly instructed on robbery. We address all of these arguments together.
The standard instruction on attempted robbery, CALCRIM No. 460, provides in pertinent part as follows: "[A person who attempts to commit __________ <insert target offense> is guilty of attempted __________ <insert target offense> even if, after taking a direct step towards committing the crime, he or she abandoned further efforts to complete the crime of his or her attempt failed or was interrupted by someone or something beyond his or her control." Here, the trial court instructed the jury "A person who attempts to commit robbery—a person who attempts to commit robbery is guilty of robbery even if after taking a direct step towards committing the crime he or she abandoned further efforts to complete the crime, or if his or her attempt failed or was interrupted by someone or something beyond his or her control." (Boldface added.) As such, the trial court erroneously excluded the word "attempted."
Further, the standard CALCRIM No. 460 instruction provides "A direct step requires more than merely planning or preparing to commit __________ <insert target offense> or obtaining or arranging for something needed to commit __________ <insert target offense>." Here, inexplicably, the jury was instructed "A direct step requires more than merely planning or preparing to commit grand theft or obtaining or arranging for something needed to commit grand theft by false pretenses." (Boldface added.) The jury was improperly advised that the target offenses were grand theft and grand theft by false pretenses rather than robbery.
The CALCRIM No. 460 instruction given to the jury also advised them that "To decide whether the defendant intended to commit robbery, please refer to the separate instructions that I have given you on that crime." That instruction was CALCRIM No. 1600. It provided, "The defendant is charged in Counts 1 and No. 2 with robbery in violation of Penal Code Section 211. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] (1) The defendant took property that was not her own; [¶] (2) The property was in the possession of another person; (3) The property was taken from the other person or his or her immediate presence; [¶] (4) The property was taken against that person's will; [¶] (5) The defendant used force or fear to take the property or to prevent the person from resisting; and (6) When the defendant used force or fear to take the property, she intended to deprive the owner of it permanently. The defendant's intent to take the property must have been formed before or during the time she used force or fear. If the defendant did not form this required intent until after using the force or fear, then she did not commit robbery." The instruction further provided, "A person takes possession when he or she gains possession of it and moves it some distance. The distance moved may be short." The instruction defined fear and immediate presence. The jury was also given the special instruction provided ante, which in pertinent provided "Thus a robbery can occur when a defendant uses force or fear in resisting attempts to regain the property."
The inaccuracies in the attempted robbery instruction are not grounds for reversal as it is not reasonably probable a result more favorable to defendant would have been reached had the jury been properly instructed. (People v. Watson (1956) 46 Cal.2d 818, 836.) Here, the jury was instructed, "It is up to you decide the order in which you consider each crime and the relevant evidence, but I can accept a verdict of guilty of a lesser crime only if you have found the defendant not guilty of the corresponding greater crime." A trial court's failure to instruct on a lesser included offense is not prejudicial if the jury necessarily resolved the factual question adversely to the defendant under other instructions. (People v. Lewis (2001) 25 Cal.4th 610, 646.) Here, the jury had to first determine if defendant was guilty of the greater crime of robbery, and was specifically instructed to refer to the instructions on robbery. The jury clearly believed the testimonies of Kang and Coronado, that as they were struggling with defendant over the purse she had pulled out the knife. The jury necessarily had to conclude that defendant was in possession of the bag when she used the knife, in finding her guilty of robbery. (See Ibid.) Kang and Coronado clearly testified that defendant had the knife in her hand while they were trying to get the bag containing the stolen items from defendant. A reasonable jury could rely on the testimonies of Kang and Coronado.
We disagree with defendant that the jury was improperly instructed on robbery. Initially, defendant never objected to the standard instructions on robbery. "The trial court must instruct even without request on the general principles of law relevant to and governing the case [including] instructions on all of the elements of a charged offense." (People v. Cummings (1993) 4 Cal.4th 1233, 1311.) "Once the court has instructed on the general principles of law, a defendant must request additional instructions if he or she believes amplification or explanation is necessary." (People v. Morehead, supra, 191 Cal.App.4th at p. 772.)
Here, defendant made no objection to the standard CALCRIM No. 1600 instruction. The instruction has been upheld by other appellate courts. (People v. Morehead, supra, 191 Cal.App.4th at p. 774.) Further, the jury was specifically instructed to look to the instructions on robbery in making its decision on robbery, and it was to find defendant not guilty of robbery before addressing the lesser offenses. Defendant has forfeited any challenge to the standard jury instruction, and the jury necessarily relied upon the robbery instructions in reaching its decision on the greater offense. The robbery instruction properly informed the jurors that they had to find defendant used force or fear at the time she sought to retain the property and permanently deprive Kang and Coronado of the property. We reject defendant's instructional error claims.
C. ADMISSION OF PRIOR ROBBERY CONVICTION PURSUANT TO EVIDENCE CODE SECTION 1101, SUBDIVSION (B)
Defendant contends the trial court erred by admitting her prior conviction of robbery suffered in 2014.
1. ADDITIONAL FACTUAL BACKGROUND
Prior to trial, defendant sought to exclude any mention of her prior robbery conviction. In their trial brief, the People made an offer of proof as to the prior robbery: On June 19, 2014, defendant took liquor bottles off the shelf at a Stater Bros. Supermarket and walked out without paying for them. When confronted by one of the store employees, she threw one of the bottles at the employee. Defendant then brandished a box cutter and motioned with it to the employee, to convince the employee to get away from defendant. Defendant was detained by police and found in possession of one of the liquor bottles and the box cutter. The People sought to admit the evidence to prove intent and motive under Evidence Code section 1101, subdivision (b).
The parties discussed the matter prior to trial. The People intended to present evidence of the prior robbery and not the fact of the conviction. The People intended to call two witnesses and show a surveillance video. The trial court found that the facts of the prior robbery were extremely similar to the instant case. The trial court also found that the probative value outweighed any prejudice. It was clearly relevant to show her intent. The trial court asked the prosecution to limit the amount of time it spent on presenting the evidence.
2. ADMISSION OF PRIOR ROBBERY
"With certain exceptions not relevant here, Evidence Code section 1101, subdivision (a), provides that 'evidence of a person's character'—whether in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct—'is inadmissible when offered to prove [the person's] conduct on a specified occasion.' This prohibition, however, does not preclude 'the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact . . . other than [the person's] disposition to commit such an act,' including 'motive, opportunity, intent, preparation, [or] plan.' (Evid. Code, § 1101, subd. (b).)" (People v. Valdez (2012) 55 Cal.4th 82, 129.)
The similarity of the offenses is central to the trial court's "evaluation of whether the evidence tended to prove motive, intent, a common design, defendant's identity as the perpetrator, or the victim's lack of consent, under Evidence Code section 1101." (People v. Lewis (2009) 46 Cal.4th 1255, 1285.)
Courts must additionally determine that the probative value of the proffered evidence is not substantially outweighed by the probability that its admission would create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. (Evid. Code, § 352.) Factors to be considered by the court in evaluating the evidence under Evidence Code section 352 include the inflammatory nature of the uncharged conduct, the possibility of confusion of issues, remoteness in time of the uncharged offenses and the amount of time involved in introducing and refuting the evidence of the uncharged offenses. (People v. Branch (2001) 91 Cal.App.4th 274, 282.)
A trial court is accorded broad discretion concerning the admission and exclusion of evidence under Evidence Code sections 1101 and 352. (People v. Heard (2003) 31 Cal.4th 946, 973.) A trial court's decision to admit prior conviction evidence pursuant to Evidence Code section 1101 is reviewed for abuse of discretion. (People v. Celis (2006) 141 Cal.App.4th 466, 476.)
Here, the trial court did not abuse its discretion by admitting the prior robbery committed at a Stater Bros. Supermarket. The two crimes were remarkably similar. In the prior crime, defendant took items from the store without paying, was confronted by a store employee and displayed a box cutter when the store employee attempted to gain possession of the stolen items. The evidence was relevant to show defendant's intent in this case, as she insisted she was acting in self-defense and did not steal any items.
Additionally, the probative value outweighed any potential prejudice. Here, the presentation of evidence did not involve an undue consumption of time. Only one witness testified and only a portion of the video surveillance was shown to the jury. Moreover, the evidence of the prior crime was certainly no more inflammatory than the instant crimes. Finally, the prior crime had been committed less than one year prior to the instant crimes. As such, the trial court did not abuse its discretion under Evidence Code section 352.
3. PREJUDICE
Even if the trial court erred by admitting the prior conviction, such admission was harmless. (People v. Perkins (1984) 159 Cal.App.3d 646, 652; see also People v. Watson, supra, 46 Cal.2d at p. 836.)
Initially, the jury was instructed with CALCRIM No. 375, which provided "The People presented evidence of other behavior by the defendant that was not charged in this case. [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged act. [¶] Proof by a preponderance of the evidence is a different burden of proof than proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. If the People have not met this burden, you must disregard this evidence entirely. [¶] If you decide that the defendant committed the uncharged act, you may but are not required to consider that evidence for the limited purpose of deciding whether or not the defendant acted with the intent to deprive the owner of their property permanently or the defendant had a motive to commit the offenses alleged in this case. Do not conclude from this evidence that the defendant has a bad character or is disposed to commit crime. [¶] If you conclude that the defendant committed the uncharged act, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of robbery or that the allegation of personal use of a dangerous or deadly weapon had been proved. The People must still prove each charge beyond a reasonable doubt."
We presume the jurors understood and followed the instructions. (People v. Williams (2009) 170 Cal.App.4th 587, 607.) Moreover, as set forth extensively ante, there was substantial evidence presented in this case that defendant committed robbery against Coronado and Kang. Defendant was not prejudiced by the admission of the prior robbery.
C. CUMULATIVE ERROR
Defendant contends that the cumulative effect of the instructional errors and admission of her prior robbery require reversal. Although we found errors in the attempted robbery instruction, we have found "no error that, either alone or in conjunction with others, prejudiced defendant." (People v. Williams (2013) 56 Cal.4th 165, 201, overruled on other grounds in People v. Elizalde (2015) 61 Cal.4th 523, 538.)
D. DENIAL OF ROMERO MOTION
Defendant contends the trial court erred by denying her motion to strike her prior conviction of robbery suffered within one year of the instant crimes, and for which she was still on probation when she robbed the 99 Cent Store.
1. ADDITIONAL FACTUAL BACKGROUND
Defendant brought a motion to strike her prior conviction of robbery. She argued she would receive a lengthy sentence if the trial court struck the prior conviction because she would still be subject to sentencing for the prior conviction pursuant to section 667, subdivision (a). Further, she had prospects outside of prison including caring for her children and wanting to take classes.
According to the probation report, defendant had committed several prior drug offenses for which she received probation. She had prior violations of probation. Defendant stated she was placed in foster care at the age of five. She claimed her foster father sexually molested her. She blamed her current troubles on that traumatizing event. Despite these events, she graduated from high school with honors. In her 20s, she had a physically abusive husband and lost custody of a son. She admitted regularly using marijuana, alcohol and occasional use of methamphetamine.
The trial court addressed the Romero motion at the time of sentencing. The trial court expressed that it had "a significant amount of sympathy for" defendant. The trial court stated, "[U]nfortunately for her I don't think her record falls outside of the [T]hree [S]trikes law." The trial court stated that if she did, it would not hesitate to strike the strike. The trial court pointed to the fact that defendant was on probation when she committed the instant robbery. Even if the trial court considered that defendant had led a tough life, it was not itself enough to strike the prior conviction. Further, it was not fair to the People to strike the prior conviction just because the sentence involved seemed long.
The trial court concluded, "And so for all of those reasons, the motion to strike the strike will be denied. I don't think she falls outside of [the T]hree [S]trikes law. I don't . . . believe I should exercise my discretion and strike the strike for the reasons I indicated."
2. ANALYSIS
A trial court has discretion to dismiss a prior felony conviction allegation under section 1385. (Romero, supra, 13 Cal.4th at pp. 529-530) The touchstone of the Romero analysis is "'whether, in light of the nature and circumstances of his [or her] present felonies and prior serious and/or violent felony convictions, and the particulars of his [or her] background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he [or she] had not previously been convicted of one or more serious and/or violent felonies.'" (People v. Williams (1998) 17 Cal.4th 148, 161.) "[T]he circumstances must be 'extraordinary . . . by which a career criminal can be deemed to fall outside the spirit of the . . . scheme.'" (People v. Carmony (2004) 33 Cal.4th 367, 378.)
"[A] trial court's refusal or failure to dismiss or strike a prior conviction allegation under section 1385 is subject to review for abuse of discretion." (People v. Carmony, supra, 33 Cal.4th at pp. 375.)
Here, the trial court did not abuse its discretion. Defendant had committed several prior drug offenses and violated her probation. The prior conviction here involved defendant throwing a bottle at an employee and displaying a box cutter. Defendant was on probation for that offense at the time she committed the robberies at the 99 Cent Store. Defendant had been shown leniency by a grant of probation for the prior conviction and was unable to complete her probation. The fact that she had a difficult childhood and had not actually hurt anyone in the prior or current offenses, did not take her outside the spirit of the Three Strikes law. The trial court properly considered defendant's background, record and prospects. We cannot conclude the trial court abused its discretion in denying defendant's motion to strike her prior conviction.
E. SENTENCING TO MIDDLE TERM
Defendant contends the trial court did not take into account all of the mitigating factors such as her traumatic childhood; that she made an effort not to hurt her victims; she had a relatively minor criminal history; and her crime was disproportionate to the sentence, in sentencing her to the middle term on count 1.
At the time of sentencing, the trial court stated it was going to impose the midterm sentence of three years on count 1 doubled under the Three Strikes law. "I'm imposing the mid-term as opposed to the upper term primarily because, you know, I think this particular transaction, we'll call it, [defendant] I think sort of bit off more than she could chew. She found herself in a situation where she pulled the knife. It's clear that the jury convicted her of using the knife. It was essentially exactly the same thing she did at the Stater Bros. Supermarket. One might argue as the People did that's sort of what she does. I believe I let that in to the trial to show her intent in this particular case of, hey, when confronted by the store owner, I'll pull the knife to essentially effectuate my getaway. It's a robbery. Now, is it the most heinous robbery ever seen? It is not. It is clearly not. Nobody was hurt. You know, I don't think it's as serious, I think less serious than a lot of other robberies I have seen. So those are mitigating factors I think, [defense counsel], you did point out."
The trial court further found that the crime did involve some planning. Defendant knew she was going to pull the knife out when she was confronted. The jury rejected she was defending herself and that she had a right to the property. The trial court weighed the mitigating factors mentioned against the aggravating factors that defendant had a prior record and that she pulled a knife on the victims, which was an act of violence. The trial court noted defendant was lucky that no one got stabbed. The trial court concluded, "So it exponentially changes when she pulled the knife out. There is nothing I can do about it. As bad as I feel for her, there is nothing I can do about it. She chose to do that. So the mid-term is selected because I do think on balance the aggravating and mitigating cancel each other out essentially. There's not one that stands out to mitigate it down or aggravate it up."
"When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court. . . . The court shall select the term which, in the court's discretion, best serves the interests of justice." (§ 1170, subd. (b).) Sentencing courts have wide discretion in weighing aggravating and mitigating factors. (People v. Avalos (1996) 47 Cal.App.4th 1569, 1582.)
"'The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.'" (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.)
Defendant has failed to show that the trial court's sentencing decision was irrational or arbitrary. The trial court carefully considered the aggravating and mitigating factors. It considered defendant's background and the fact that no one was hurt during the commission of her crimes. However, it also recognized that the crime involved planning and that defendant had a prior record. The trial court did not abuse its discretion by sentencing defendant to the midterm sentence on count 1.
F. SENTENCING ON PROBATION REVOCATION
Defendant contends the trial court erred by sentencing her to four years on the probation revocation. We agree that the trial court erred by resentencing defendant on the probation revocation and remand for resentencing.
1. ADDITIONAL FACTUAL BACKGROUND
Defendant signed a plea form in case No. RIF1408137. It stated, "I will enter a guilty plea to the following charges and enhancements: Count 1) PC 211 Felony [¶] Admit 12022(b)(1) Allegations x 2, Punishment Stayed." The form stated under plea agreement, Item 2 that "The maximum possible custody commitment for the admitted charges and enhancements is: 7 yrs." In Item 3, it stated "My guilty pleas are conditional on receiving the following considerations as to sentence: [¶] . . . [¶] The custody term will be : 3FP, 365 CJ, 2yrs Suspended."
At the time the trial court took the plea, it stated, "Punishment is going to be stayed. The plea form indicates that the plea—the custody term would be that you would be given two years low-term suspended in state prison on the 211 charge. That would be suspended, and you would be—in order to grant you three years' formal probation with 365 days in custody in a local facility." She was further advised "You would admit to two of the 12022(b)(1) allegations that are set forth in the amended information—you understand that—and those carry one year apiece with a prison commitment."
Sentencing was imposed as follows: "In this matter, initially, I'm going to sentence you to state prison for the low term of two years with respect to Count 1. And on the admissions of the [Penal Code section] 12022[, subdivision] (b) allegations, I will impose but stay one year apiece for the commitment under [Penal Code section] 12022[, subdivision] (b) to be served consecutively; however, those are stayed. In other words, they're imposed but you don't have to serve them." The sentenced was suspended and she was placed on three years of probation. According to the minute order, the sentence was "imposed" but the "Execution of Sentence Suspended." The court imposed a restitution fine of $300 pursuant to Penal Code section 1202.4, subdivision (b); ordered victim restitution pursuant to Penal Code section 1203.1, subdivision (a)(3); imposed an assessment fee of $40 pursuant to Penal Code section 1465.8; and imposed an assessment fee of $30 pursuant to Government Code section 70373.
After defendant was found guilty in the instant case, the trial court found that defendant had violated her probation in case No. RIF1408137. The trial court imposed a sentence of the midterm of three years. In addition, the trial court imposed one additional year for one of the section 12022, subdivision (b)(1) enhancements and the other enhancement was stayed. The sentence was ordered to run concurrent to the instant case. Defendant was ordered to pay a restitution fine to the victim but she was found unable to pay. The trial court set the restitution fine pursuant to section 1202.4, subdivision (b) at the minimum of $300 and a parole revocation fine in the same amount was suspended. In addition, a criminal conviction fee of $30 and court operations of $40 were imposed.
2. ANALYSIS
Section 1203.2, subdivision (c) provides, "Upon any revocation and termination of probation the court may, if the sentence has been suspended, pronounce judgment for any time within the longest period for which the person might have been sentenced. However, if the judgment has been pronounced and the execution thereof has been suspended, the court may revoke the suspension and order that the judgment shall be in full force and effect. In either case, the person shall be delivered over to the proper officer to serve his or her sentence, less any credits herein provided for." California Rules of Court Rule 4.435(b) similarly provides that if the execution of sentence was previously suspended, the trial court must order the previously pronounced judgment to be in full force and effect.
In People v. Martinez (2015) 240 Cal.App.4th 1006, the defendant was sentenced to eight months but the execution of sentence was suspended and he was placed on probation. When his probation was revoked, the trial court imposed a sentence of three years rather than the agreed upon eight months. (Id. at p. 1010-1011) On appeal, the defendant argued that the trial court had to impose the eight-month sentence. After reviewing several previous cases, including People v. Howard (1997) 16 Cal.4th 1081, the court held "From the foregoing cases, we conclude that when, as here, a lawful sentence is imposed but execution thereof is suspended and the defendant is placed on probation, the exact sentence must be ordered executed if probation is subsequently revoked. A trial court is without jurisdiction to do anything else, even if, during the probationary period, circumstances change so that the sentence would be unauthorized if it were being imposed in the first instance." (Martinez, at p. 1017, fn. omitted.)
In People v. Howard, supra, 16 Cal.4th 1081, the court acknowledged the differences between a case in which the sentence has been imposed but the execution of sentence suspended, and when the imposition of sentence is suspended. It noted, "if the trial court has suspended imposition of sentence, it ultimately may select any available sentencing option. However, if, . . . , the court actually imposes sentence but suspends its execution, and the defendant does not challenge the sentence on appeal, but instead commences a probation period reflecting acceptance of that sentence, then the court lacks the power, . . . , to reduce the imposed sentence once it revokes probation." (Id. at p. 1084.)
Here, the record supports that, at the time of the plea agreement, the trial court imposed the two-year sentence on the robbery, stayed the punishment on the enhancements and suspended execution of that sentence. Defendant was placed on probation. As such, this situation is akin to Martinez, supra. The trial court here was required to impose the exact sentence as contemplated by the plea agreement. We will remand for resentencing so the trial court can impose the sentence that was imposed but execution was suspended.
Both parties noted that the minute order improperly reflected that the trial court imposed six-year terms on counts 1 and 2. Since we are remanding for resentencing, we need not address this issue as we assume the trial court will properly impose the sentence on remand. --------
DISPOSITION
Defendant's sentence is vacated and that matter is remanded to the trial court for further proceedings consistent with this opinion. We otherwise affirm the judgment in its entirety.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: RAMIREZ
P. J. FIELDS
J.