Opinion
F076383
11-13-2019
THE PEOPLE, Plaintiff and Respondent, v. JOSE FERNANDEZ, Defendant and Appellant.
Denise M. Rudasill, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BF167378A)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kern County. John D. Oglesby, Judge. Denise M. Rudasill, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Poochigian, J. and Meehan, J.
-ooOoo-
A jury convicted appellant Jose Fernandez of second degree robbery (Pen. Code, § 212.5 subd. (c)/count 1); misdemeanor assault (§ 240), a lesser included offense of the assault with a deadly weapon offense (§ 245, subd. (a)(1)) charged in count 2; conspiracy to commit robbery (§§ 182, subd. (a)(1), 212.5, subd. (c)/count 3); and misdemeanor resisting arrest (§ 148, subd. (a)(1)/count 8).
All statutory citations are to the Penal Code, unless otherwise indicated.
On appeal, Fernandez contends: (1) the court abused its discretion when it imposed upper terms on his second degree robbery and conspiracy convictions; (2) the sentence on his assault conviction should be stayed; and (3) his abstract of judgment contains a clerical error. We find merit to these last two contentions and modify the judgment accordingly. In all other respects, we affirm.
FACTS
Fifty-two-year-old Roberto Y. would ride his three-wheel bicycle food cart from his home to the east side of Bakersfield to sell crushed ice and other food items. On October 17, 2016, he had worked four hours and had $160 in cash when he quit for the day at 8:00 p.m. It was dark as he sat on a street corner curb waiting for his wife to pick him up when Fernandez drove by in a Honda with passengers Marcelo Sanchez and Maurice Hill. Hill asked Roberto if he had crushed ice and Roberto responded that he did. Fernandez drove away but at the next corner he made a U-turn, returned to Roberto's location, and parked. The three men got out and ordered something from Roberto. As Roberto prepared the order, Fernandez positioned himself in front of Roberto and his cart and held what appeared to be a firearm as he looked through the cart. Hill positioned himself behind Roberto, drew a BB gun that looked like a firearm, and pointed it at Roberto's head before putting it against his back. Sanchez approached Roberto, held what appeared to be a gun inside his sweater, and asked him for his wallet. Roberto told Sanchez he did not understand English. Sanchez pulled his hand out from the sweater and displayed a gun and with the other hand motioned for Roberto to give him his wallet. The three men took Roberto's money and cell phone before leaving when people walked out of their houses and Roberto's wife arrived to pick him up.
There was a street light located near the corner on the opposite side of the street.
Later that evening, a Kern County Sheriff's deputy attempted to stop Fernandez as he drove the Honda, but he accelerated, ran through red lights and stop signs, and reached speeds of 100 miles per hour while he drove on a freeway. The chase ended after Fernandez drove off the freeway and crashed into a light post. Hill remained in the car as Fernandez and Sanchez ran away. Fernandez was captured a short time later with the help of a sheriff's department canine. In the back of the Honda, deputies found Roberto's cell phone and a black BB gun that resembled a sheriff's department firearm.
Fernandez's Probation Report and Sentencing
Fernandez's probation report indicates that when he committed the underlying offenses he was 20 years old, he had a prior conviction for driving with a suspended license (Veh. Code, § 14601.1, subd. (a)), he had pending cases involving two first degree burglaries (§§ 459/460) and a hit and run (Veh. Code, § 20002, subd. (a)), and he had an outstanding arrest warrant.
The probation report cited Fernandez's minimal prior record as a circumstance in mitigation (California Rules of Court, rule 4.423(b)(1)). As an aggravating circumstance, it cited Fernandez's commission of the underlying offenses while he had an outstanding arrest warrant. The report recommended the court impose the middle term of three years on the robbery count.
All further references to rules refer to the California Rules of Court.
On August 16, 2017, at Fernandez's sentencing hearing, defense counsel argued for the mitigated term based on Fernandez's lack of a prior criminal record and the absence of aggravating circumstances. The prosecutor argued that Fernandez's role as the driver of the car used in the robbery warranted the upper term because the robbery would not have occurred if he had not parked the car and allowed his passengers to get out.
The court found in aggravation that Fernandez was the "driver and would have some control over it, selected—apparently as the driver, would be involved in the selection of the victim." The court also found as an aggravating circumstance that the robbery involved planning, sophistication and professionalism and it cited Fernandez's conviction for conspiracy as a basis for its conclusion that it involved planning. In support of the above circumstances, the court noted that the three men "approached and turned around after identifying the victim," they inquired about a purchase "as a way to get close to the [victim] without arousing suspicion" and they approached him at the end of the day when he would have more money on him. The court also noted that the three men quickly exited the Honda, surrounded the victim, and each man had different roles—one man got behind the victim and placed an object at his back, another got in front of the victim and maintained control of him, and the third man searched the cart. The court further found that the use of a BB gun was indicative of planning and sophistication because the apparent presence of a firearm would result in a quicker and more efficient robbery by making the victim less likely to resist and it would not subject the user to a firearm enhancement.
As an additional aggravating circumstance, the court found the victim was particularly vulnerable because of his age, he was unaware of the perpetrator's intent to rob him, he was a stranger in the neighborhood where the robbery occurred, and his ability to flee was limited because he had just finished his work shift and was loaded down with a cart. Thus, in imposing the aggravated term the court stated that the factors in aggravation it discussed outweighed "the factors in mitigation, essentially, that he has no significant prior convictions[.]"
The court then sentenced Fernandez to the aggravated term of five years on his robbery conviction in count 1, a stayed aggravated term of three years on his conspiracy conviction in count 3, and a concurrent local term of six months on each of his misdemeanor convictions for assault in count 2 and resisting arrest in count 8.
DISCUSSION
Imposition of the Aggravated Terms on Counts 1 and 3
Introduction
Fernandez contends that in addition to his lack of a prior record, his youthful age was also a mitigating circumstance. He further contends the record does not support the court's finding of aggravating circumstances based on the planning and sophistication of the robbery or the vulnerability of the victim. Therefore, according to Fernandez, since there were two mitigating circumstances and no aggravating circumstances, the court erred when it imposed the aggravated term on counts 1 and 3. We disagree.
A trial court's exercise of its discretion in selecting a lower, middle, or upper term sentence under section 1170.1 is reviewed for abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) To determine the appropriate sentence, the trial court weighs the factors in aggravation, found in rule 4.421, against those in mitigation, found in rule 4.423. (See rule 4.420(b) [trial court may consider circumstances in aggravation and mitigation "and any other factor reasonably related to the sentencing decision"].) The relevant rules also permit the trial court to consider factors not specifically enumerated in rules 4.421 and 4.423. (Rules 4.408 & 4.420(b).) A single factor may be determinative in the sentencing decision. (People v. Black (2007) 41 Cal.4th 799, 813 ["Under California's determinate sentencing system, the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term."]; People v. Forster (1994) 29 Cal.App.4th 1746, 1758 [single factor is sufficient to justify the court's sentencing choice].) The Planning , Sophistication and Professionalism of the Robbery
Rule 4.421(a) allows the court to find an aggravating circumstance if "[t]he manner in which the crime was carried out indicates planning, sophistication, or professionalism[.]"
Fernandez and his cohorts pretended they were interested in purchasing something from the victim, which allowed them to approach him later without arousing his suspicion that they intended to rob him. They left, but soon returned and quickly exited the car and assumed positions that allowed them to control the victim while they took his money and cell phone and Fernandez searched his cart. Additionally, Hill pressed a fake gun to the victim's back which hastened the victim's compliance and the completion of the robbery while minimizing the trio's criminal exposure because they did not use a firearm to commit the robbery. (See, e.g., section 12022.53 [10-year enhancement imposed for use of a firearm during robbery, 20 years if the firearm is discharged, and 25 to life if discharged and causes great bodily injury].) Further, the robbery was committed when it was apparent from the darkness and lateness of the hour and the victim sitting on the curb that he had quit working and would likely be in possession of a substantial amount of money. These circumstances support the trial court's finding that the robbery offense involved planning and was sophisticated.
Moreover, "[p]rofessionalism does not so much import the notion of expertise as it does experience." People v. Mathews (1980) 102 Cal.App.3d 704, 710. Given the coordinated efforts of Fernandez and his cohorts in committing the robbery, which suggested prior experience in such matters, the record also supports a finding of professionalism.
Fernandez relies on some of the trial court's sentencing comments to contend that its finding that the robbery involved planning was based on the jury convicting him of conspiracy to commit robbery. He further contends that since planning is not an element of conspiracy, there is no merit to the court's finding that the robbery involved planning because the jury's verdict finding him guilty of conspiracy did not constitute a finding of planning. Fernandez is wrong.
"A conviction for conspiracy requires proof of four elements: (1) an agreement between two or more people, (2) who have the specific intent to agree or conspire to commit an offense, (3) the specific intent to commit that offense, and (4) an overt act committed by one or more of the parties to the agreement for the purpose of carrying out the object of the conspiracy." (People v. Vu (2006) 143 Cal.App.4th 1009, 1024.)
In determining what term to impose, rule 4.420(b) allowed the court to consider any relevant circumstances, which it may obtain "from the case record, the probation officer's report, other reports and statements properly received, statements in aggravation or mitigation, and any evidence introduced at the sentencing hearing." Thus, the court was not limited to the jury's findings in determining whether there were mitigating or aggravating circumstances.
Further, even though planning is not an element of conspiracy, it can occur as part of the conspiracy, as the court found here, and in any case, the court's finding that the robbery involved planning is amply supported by the record.
In People v. Charron (1987) 193 Cal.App.3d 981 (Charron), the court "observed that '[the] essence of "aggravation" relates to the effect of a particular fact in making the offense distinctively worse than the ordinary.' " (Id. at p. 994.) Fernandez cites Charron to contend the court erred in using planning and sophistication as a factor in aggravation because the level of planning and sophistication in carrying out the robbery and conspiracy to commit robbery and assault were not distinctively worse than ordinary when compared to other ways the crimes can be committed. There is no merit to this contention.
As previously noted, rule 4.421 allows the court to consider certain specified aggravating circumstances in its decision of which term to impose. (Rule 4.421(b).) The presence of an aggravating circumstance is what makes a case distinctively worse than one in which the circumstance is not present. Further, the court's reliance on an aggravating circumstance will be upheld on appeal if the circumstance is supported by substantial evidence. (Cf. People v. Searle (1989) 213 Cal.App.3d 1091, 1096.) Thus, the court was not required, as Fernandez suggests, to determine that the planning, sophistication, or professionalism of his offenses were distinctively worse than other similar offenses in which these circumstances are present before it could rely on these circumstances to impose the aggravated term. The Vulnerability of the Victim
Fernandez contends the victim was not isolated in the neighborhood where the robbery occurred and he was not a stranger there because it was part of his regular route. He further contends it is not unusual for robberies to occur late at night when there are less witnesses and more money in the store or for a store clerk to not be able to flee, and that the victim's age was unremarkable. Thus, according to Fernandez, the evidence does not support the court's finding that the victim was particularly vulnerable because he was no more vulnerable that the average robbery victim. We disagree.
Rule 4.421(a)(3) allows the court to find an aggravating circumstance if "the victim was particularly vulnerable[.]" The "particularly vulnerable victim" factor supports imposition of the upper term if the victim is vulnerable "in a special or unusual degree, to an extent greater than in other cases [and is] defenseless, unguarded, unprotected, accessible, assailable ... susceptible to the defendant's criminal act." (People v. Smith (1979) 94 Cal.App.3d 433, 436.)
The victim was a 52-year-old man, who would have been in a weakened physical state when the robbery occurred from having pedaled his bicycle cart during his four-hour shift. Further, it was dark when the robbery occurred, Fernandez and his cohorts appeared to be armed with firearms, they outnumbered the victim, they gained the victim's confidence by pretending they were going to purchase something from him, and they prevented him from fleeing. Thus, even if some of the circumstances Fernandez cites do not support a finding that the victim was particularly vulnerable, the court did not abuse its discretion in relying on the vulnerability of the victim to impose the aggravated term. (Cf. People v. Lindberg (2008) 45 Cal.4th 1, 24 [Supreme Court held the robberies were sufficiently similar to charged murder to show intent to rob, in part, because each victim was vulnerable due to being alone, elderly, and/or outnumbered].) Fernandez Occupied a Position of Leadership or Dominance in Commission of the Robbery
Rule 4.421(a)(4) allows the court to find an aggravating circumstance if "[T]he defendant ... occupied a position of leadership or dominance of other participants in its commission." Although the court did not expressly state that it found an aggravating circumstance based on this criterion, it impliedly did when it stated that as the driver, Fernandez had some control over the robbery, including selecting the victim. Further, Fernandez's conduct in searching through the victim's cart while the others held the victim at bay provides additional support for the court's implicit finding that Fernandez occupied a position of leadership or dominance over the other participants. Fernandez's Youthful Age
Because Fernandez was only 20 years old when he robbed the victim, Fernandez contends the court erred by its failure to consider his youthful age as a mitigating circumstance. We disagree.
"Sentencing courts have wide discretion in weighing aggravating and mitigating factors. [Citation.] Indeed, a trial court may 'minimize or even entirely disregard mitigating factors without stating its reasons.' " (People v. Lai (2006) 138 Cal.App.4th 1227, 1258.) The court is not required to review in detail each of the mitigating factors upon which the defendant relies. It can reject all mitigating factors without explanation. (See People v. Avalos (1996) 47 Cal.App.4th 1569, 1583 [court need not explain its reasons for rejecting mitigating factors].) " 'Further, unless the record affirmatively indicates otherwise, the trial court is deemed to have considered all relevant criteria, including any mitigating factors.' " (People v. King (2010) 183 Cal.App.4th 1281, 1322, fn. omitted.)
Although the trial court did not expressly mention Fernandez's age, his birthdate was included in the probation report, which the court read and considered, and there is no indication in the record that the court ignored or overlooked it. Further, the mere failure to mention Fernandez's age simply indicates the court did not consider his age to have appreciable mitigating weight. (Cf. People v. Samayoa (1997) 15 Cal.4th 795, 860.) Only one aggravating circumstance is needed to justify imposition of the aggravated term. (People v. Osband (1996) 13 Cal.4th 622, 728.) Since the court found three aggravating circumstances that are supported by the record, the court did not abuse its discretion when it imposed aggravated terms on Fernandez's robbery conviction in count 1 and his conspiracy to commit robbery conviction in count 3.
Fernandez contends that if he forfeited his right to challenge the court's finding of two aggravating circumstances or its failure to consider his youthfulness because of defense counsel's failure to object or raise these issues in the trial court, he was denied the effective assistance of counsel. This contention is moot in light of our consideration of the issues on the merits. --------
The Assault Conviction
Fernandez contends that because he committed the simple assault and robbery during a continuous course of conduct, with the same intent, and against the same victim, the court should have stayed the term it imposed on his assault conviction. Respondent concedes.
Section 654, subdivision (a) provides, in pertinent part:
"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."
"Case law has expanded the meaning of section 654 to apply to more than one criminal act when there is a course of conduct that violates more than one statute but nevertheless constitutes an indivisible transaction. [Citation.] 'Section 654 precludes multiple punishment for a single act or indivisible course of conduct punishable under more than one criminal statute. 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 shared common acts or were parts of an otherwise indivisible course of conduct.' " (People v. Hairston (2009) 174 Cal.App.4th 231, 240.) Section 654 does not allow the court to impose concurrent or consecutive terms. (People v. Deloza (1998) 18 Cal.4th 585, 592.)
Fernandez committed the assault during a continuous course of conduct that included the robbery. During closing arguments, the prosecution argued that the greater charge of assault with a deadly weapon was based on Fernandez or one of his cohorts pointing a BB gun at the victim during the robbery. Thus, we agree with the parties that section 654 prohibited the court from imposing a concurrent term on Fernandez's assault conviction in count 2. (People v. Martinez (1984) 150 Cal.App.3d 579, 606 [defendant can be punished for only one crime if assault committed in order to accomplish robbery].)
The Abstract of Judgment
Fernandez contends that his abstract of judgment erroneously states he was convicted of conspiracy in violation of section 182.22, subdivision (b)(1) instead of in violation of section 182, subdivision (a)(1).
Appellate courts may correct clerical errors and order correction of abstracts of judgment that do not accurately reflect the oral judgments of sentencing courts. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
Since Fernandez was convicted in count 3 of conspiracy to commit a crime, i.e., robbery, in violation of section 182, subdivision (a)(1), his abstract of judgment erroneously states he was convicted of violating section 182.22, subdivision (b)(1). Therefore, we will direct the trial court to issue an amended abstract of judgment that corrects this error.
DISPOSITION
The judgment is modified to stay the local term the trial court imposed on Fernandez's conviction for misdemeanor assault in count 2. Additionally, the trial court is directed to prepare an amended abstract of judgment that indicates that in count 3 Fernandez was convicted of violating section 182, subdivision (a)(1) and to forward a certified copy of the abstract to the appropriate authorities. In all other respects, the judgment is affirmed.