Opinion
F083475
03-20-2023
THE PEOPLE, Plaintiff and Respondent, v. ROSENDO GARCIA, Defendant and Appellant.
Denise Marie Rudasill, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Kari Mueller, and Joseph Penney, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F21903849 Alvin M. Harrell III, Judge.
Denise Marie Rudasill, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Kari Mueller, and Joseph Penney, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
SNAUFFER, J.
INTRODUCTION
Appellant Rosendo Garcia was found guilty by a jury of second-degree robbery, with a use of a deadly weapon enhancement. The jury also found true Garcia had previously been convicted of a serious felony. The trial court sentenced him to an aggregate prison term of 12 years.
Garcia raises several claims on appeal. Garcia argues that (1) his second-degree robbery conviction is not supported by substantial evidence; (2) the trial court improperly answered a jury question, the effect of which removed a factual issue from the jury's consideration; and (3) Senate Bill No. 567's (2021-2022 Reg. Sess.) (SB 567) amendments to Penal Code section 1170 require remand for resentencing to allow the trial court to exercise its informed discretion.
Undesignated statutory references are to the Penal Code.
We vacate the sentence and remand the matter for a new sentencing hearing in compliance with SB 567, but otherwise affirm the judgment.
PROCEDURAL HISTORY
On June 23, 2021, an information charged Garcia with second-degree robbery (§ 211) with a personal use of a deadly and dangerous weapon allegation (§ 12022, subd. (b)(1)). The information further alleged Garcia suffered a prior serious felony conviction (§ 667, subd. (a)(1)) - a 1992 conviction for assault with a firearm (§ 245, subd. (a)(2)).
On September 10, 2021, a jury convicted Garcia of the robbery and found true the deadly weapon enhancement. At a bifurcated bench trial, the court found true that Garcia had a prior serious felony conviction.
On October 4, 2021, prior to sentencing, Garcia filed a statement in mitigation, an application for probation, and an invitation for relief pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
On October 26, 2021, the trial court denied Garcia's Romero motion, and sentenced Garcia to the middle term of six years for the second-degree robbery, one year for the use of a deadly weapon enhancement, and five years for the prior serious felony, for a total sentence of 12 years in state prison.
Garcia filed a timely notice of appeal.
STATEMENT OF FACTS
The Robbery
I.P. was working as a sales driver for a snack company. His job involved delivering snacks to various gas stations and "mom and pop shops" around the Fresno and Clovis area. He would unload boxes from his truck onto a dolly, unpack them, and stock the store shelves.
On May 13, 2021, at approximately 3:00 a.m., I.P. was at a convenience store making a delivery. He was in the cargo area of his truck, stacking boxes on a dolly, when he heard a rattling at the back door. The back door was not locked, and I.P. could see the handle jiggling. After about 30 seconds to a minute, the door swung open.
I.P. saw Garcia standing at the door. Garcia immediately said, "Give me some chips, mother fucker." I.P. stood up, took several steps back, and said "Hey, you can't do that. You need to back away[.]" Garcia looked angry, and said, "What did you say to me? I'll kill you right now. I'll kill you right now, mother fucker." He was sweating a bit and appeared to be intoxicated. Garcia pulled a knife out of his waistband and held it with the blade facing I.P.
Fearing for his safety, I.P. moved to the cab of the truck and locked himself in by closing the sliding metal door between the cab and the cargo area. He called 911, thinking Garcia might kill him. Garcia said, "Call the cops, I'll kill them too." While on the phone with dispatch, I.P. saw Garcia walk over to the convenience store and speak with some people in that area. Garcia appeared to be showing the knife to the people to whom he was speaking. I.P. then lost track of Garcia.
I.P. attempted to go back into the cargo area in order to shut the cargo doors and leave. He checked the cargo area to make sure it was clear, but as he stepped out of the cab, he saw Garcia at the back of the truck again. I.P. estimated that it was less than 10 seconds between his seeing Garcia by the convenience store and seeing Garcia at the back of his truck. I.P. told dispatch that he thought Garcia was trying to get into his truck again and saw Garcia reaching into the cargo area, yanking at one of the boxes from a stack before I.P. locked himself in the cab area again.
After 10 to 15 seconds, the commotion stopped and I.P. peeked out of the cab area. He saw boxes on the ground behind his truck, and saw Garcia pull two or three bags out of the boxes before taking off towards the nearby train or bus station.
Officers arrived and located Garcia in front of a bus station near the convenience store. He was sweaty, acting erratically, talking very fast, and not following the officers' commands. Officers also observed a knife in his front left pocket. Garcia was saying things that didn't make sense, and at one point ripped off his shirt. He was ultimately apprehended.
Questions Submitted by the Jury
After the presentation of evidence, while deliberating, the jury transmitted three questions to the judge.
First, the jury asked:" 'Question for Judge. The enhancement used a firearm within the meaning of 12022(b) code, prove/not proved. Is knife considered firearm for these purposes?' "
The trial court noted that there appeared to be a typo-the verdict form stated
"firearm" as opposed to "deadly weapon." The trial court instructed the jury that there was a typo on the form, had the prosecutor prepare a revised verdict form with a correction, and instructed the jury that the case had nothing to do with a firearm.
Second, the jury asked," 'May we find guilty of second degree robbery without the amendment?'" The trial court replied, "The answer to that is, yes. That's totally up to you."
Third, the jury requested" 'Judge, what is considered commission of crime? Threaten the driver, or is it when he took the chips from the box, or is it all one crime?'" The trial court responded:
"All right. Here's the deal. You all have to decide whether or not the defendant is guilty of the crime charged in count one. If you find he's not guilty, this is all moot. You don't have to worry about the enhancement. If you find that he's guilty, then and only then do you have to be concerned with the enhancement.
"Now in dealing with the enhancement, the question really boils down to this. If you find him guilty of the crime, during the crime, did he use a deadly or dangerous weapon? Yes or no?
"You don't breakdown, as you all did - there must be a lawyer on this group somewhere. You all broke down various elements or various times of an alleged offense. You don't have to do that. The question is, during this offense, not during different parts, but during this offense, did the defendant use a deadly or dangerous weapon?"
The jury indicated this answered their question, resumed deliberations, and arrived at a verdict shortly thereafter.
DISCUSSION
I. Substantial Evidence Supports the Second-Degree Robbery Conviction
Garcia argues that there is insufficient evidence to support his conviction for second-degree robbery because he did not form the requisite intent to steal prior to threatening I.P. We conclude the robbery conviction is supported by substantial evidence.
A. Legal Standard
On appeal, this court" 'must determine whether a reasonable trier of fact could have found the prosecution sustained its burden of proving the defendant guilty beyond a reasonable doubt.'" (People v. Johnson (1980) 26 Cal.3d 557, 576.) We "examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence-evidence that is reasonable, credible and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Kraft (2000) 23 Cal.4th 978, 1053.)
Robbery is 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. (§ 211.)
"[T]he crime of robbery begins with the commission of any of the defined elements and is completed when all of the remaining elements have been committed. It is a continuing offense that concludes not just when all the elements have been satisfied but when the robber reaches a place of relative safety." (People v. Carrasco (2006) 137 Cal.App.4th 1050, 1059 (Carrasco).)
B. Analysis
Garcia argues that his robbery conviction is not supported by substantial evidence, because he did not form the necessary intent to steal until after he threatened I.P. with a knife. Garcia asserts that the interaction was actually two separate encounters. The first occurred when Garcia threatened I.P. with a knife but did not take any chips, and therefore did not have an intent to steal, and the second occurred when he did not threaten I.P. but took the chips and therefore had an intent to steal. According to Garcia, each act was insufficient to separately constitute a robbery.
Garcia's contention is without merit. A reasonable trier of fact could find that Garcia harbored an intent to steal from the moment he came into contact with I.P. A review of the evidence shows that Garcia, uninvited, approached and opened the cargo door of the delivery truck. Further, Garcia's first statement was a demand: "Give me some chips, mother fucker." A reasonable trier of fact could find that this constituted an intent to steal, given the circumstances.
Robbery is a continuing offense. (People v. Gomez (2008) 43 Cal.4th 249, 261.) Garcia's attempt to parse his interaction with I.P. into two separate encounters is not compelling. After threatening I.P. with a knife, Garcia stepped away from the truck for only a very brief amount of time. I.P. stated that less than 10 seconds after he saw Garcia at the convenience store, Garcia reappeared at the back of his truck. I.P. remained in fear for his safety the entire time. Thus, a reasonable trier of fact could find that Garcia's entire interaction with I.P., from initially opening the cargo door to absconding with the chips, constituted a continuous crime of robbery.
Carrasco, supra, 137 Cal.App.4th 1050, is instructive. In Carrasco, the defendant asked for money from the victim, and when the victim refused, the defendant threatened the victim with a firearm over the course of several hours. Ultimately, the defendant approached the victim and again requested money without an accompanying threat, at which point the victim complied and gave him $5. The appellate court found substantial evidence supported the robbery conviction arising from these facts. (Id. at 1057.)
This case poses a similar scenario - a demand followed by threats and a subsequent taking. But in this case, unlike in Carrasco, Garcia's encounter with I.P. took place over the course of minutes, not hours. (Carrasco, supra, 137 Cal.App.4th at 1057.) The evidence is more than sufficient to support the robbery conviction.
II. The Trial Court's Supplemental Jury Instruction was not Erroneous
Garcia argues that the trial court's supplemental instruction, given in response to the jury's third question, which asked "Judge, what is considered commission of crime? Threaten the driver, or is it when he took the chips from the box, or is it all one crime?", was erroneous because it removed a factual issue from the jury's consideration. For purposes of our discussion, we presume that despite his failure to raise this claim below, Garcia has not waived his argument. We conclude the instruction was not erroneous.
A. Legal Standard
"When a jury asks a question after retiring for deliberation, '[s]ection 1138 imposes upon the court a duty to provide the jury with information the jury desires on points of law.'" (People v. Eid (2010) 187 Cal.App.4th 859, 881-882.) Any such instruction is reviewed for abuse of discretion. (Id. at p. 882.)
Whether an instruction correctly states the law or effectively directs a finding adverse to a defendant by removing an issue from the jury's consideration is reviewed de novo. (People v. Posey (2004) 32 Cal.4th 193, 218.)
B. Analysis
Garcia argues the trial court improperly instructed the jury regarding what acts constituted the commission of a crime, rather than instructing the jury to decide which of the two incidents, if any, constituted the commission of a crime. Garcia relies on People v. Sakarias (2000) 22 Cal.4th 596 (Sakarias) in support of his argument.
In Sakarias, the jury asked," 'Does burglary begin when a structure is entered and continue until the structure is left? If during the process of a burglary, a robbery begins, does the crime of burglary continue until the structure is left?' Over defense objection, the court answered as follows: 'Although it is alleged that the killing in the present case occurred sometime after it is alleged the defendant entered the house, if the jury finds that the defendant committed burglary by entering the house with the intent to steal, the homicide and the burglary are parts of one continuous transaction.'" (Sakarias, supra, 22 Cal.4th at p. 623.)
The error, as described by the Supreme Court, was "that evidence sufficient to show a single continuous transaction justifies an instruction or conviction on felony murder, is not to hold that the judge, rather than the jury, decides whether the existence of such a single transaction and, hence, a murder in the perpetration of the felony, was proven beyond a reasonable doubt." (Sakaris, supra, 22 Cal.4th at p. 624.)
In this case, the trial court did not abuse its discretion in providing an answer to the jury's third question. The jury asked "[W]hat is considered commission of [a] crime?" That phrase previously appeared in the trial court's jury instructions as follows: "If you find the defendant guilty of the crime charged in count one, you must then decide whether the People have proved the additional allegation that the defendant personally used a deadly or dangerous weapon during the commission of that crime."
It was therefore reasonable for the trial court to presume that the jury's question pertained to the deadly or dangerous weapon enhancement, and to answer it accordingly.
The instruction itself is an accurate statement of the law. The trial court repeatedly directed the jury to determine whether Garcia was "guilty of the crime charged." Unlike in Sakarias, the trial court did not instruct the jury when "the crime" began or ended, or what act or acts constituted "the crime." (Sakarias, supra, 22 Cal.4th at p. 623.) Thus, no factual issue was removed from the jury's consideration.
The trial court ultimately stated, "during this offense, not during different parts, but during this offense, did the defendant use a deadly or dangerous weapon?" It is this language Garcia argues is particularly erroneous. However, this is also an accurate statement of the law. A section 12022, subdivision (b)(1) enhancement requires that a person personally use a deadly weapon in the commission of a felony. The trial court instructed the jury that, if they decide that an offense has been committed, they must decide whether Garcia used a deadly weapon "during this offense." The trial court did not abuse its discretion, nor was there legal error in its instruction.
III. SB 567 Requires Remand for Resentencing
In late 2021, SB 567 was signed into law, and in relevant part amended section 1170, subdivision (b)(6) to state:
"Notwithstanding paragraph (1), and unless the court finds that the aggravating circumstances outweigh the mitigating circumstances that imposition of the lower term would be contrary to the interests of justice, the court shall order imposition of the lower term if any of the following was a contributing factor in the commission of the offense: (A) The person has experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence."
Absent evidence to the contrary, amendments to statutes that reduce punishment for a particular crime apply to all defendants whose judgments are not yet final on the amendment's operative date. (In re Estrada (1965) 63 Cal.2d 740.) It is well established that SB 567 does not contain a provision intending only prospective application, and therefore applies to all cases not yet final on January 1, 2022. (People v. Dunn (2022) 81 Cal.App.5th 394, 402, review granted Oct. 12, 2022, S275655; People v. Lopez (2022) 78 Cal.App.5th 459, 465.)
Garcia argues his case was not final on January 1, 2022, and the Romero motion he filed presented evidence of trauma which would require the trial court to exercise its discretion pursuant to section 12022, subdivision (b)(6)(A).
Garcia's case was not final as of January 1, 2022, and the amendments enacted by SB 567 therefore apply retroactively to his case. The Attorney General concedes that following the enactment of SB 567, remand for a new sentencing hearing is required. The existing record does not clearly indicate that the trial court would have made the same sentencing decision following the changes made to section 1170, subdivision (b) as a result of the enactment of SB 567. (See People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 [remand for resentencing is the appropriate remedy "unless the record 'clearly indicate[s]' that the trial court would have reached the same conclusion 'even if it had been aware that it had such discretion' "].) We conclude that Garcia is entitled to a sentencing where the trial court exercises its informed discretion, and remand for resentencing is therefore appropriate in this case.
DISPOSITION
The sentence is vacated and the matter remanded for a new sentencing hearing. The judgment is otherwise affirmed.
WE CONCUR: LEVY, Acting P. J., DE SANTOS, J.