Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. No. KA072922 Charles E. Horan, Judge.
Danalynn Pritz, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and David F. Glassman, Deputy Attorneys General, for Plaintiff and Respondent.
CHAVEZ J.
A jury convicted Jose Robert Gomez (appellant) of three counts of second degree robbery (Pen. Code, § 211) (counts 1-3), attempted second degree robbery (§§ 664/211) (count 4), first degree burglary (§ 459) (count 5), and the unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a)) (count 6). The jury found true the allegation that in the commission of counts 1, 2, 3, and 4, appellant personally used a firearm within the meaning of section 12022.53, subdivision (b). The jury found true the allegation that the victim was present in the residence during the commission of the burglary in count 5 within the meaning of section 667.5, subdivision (c).
All further references to statutes are to the Penal Code unless stated otherwise.
Section 667.5, subdivision (c) lists certain crimes considered to be violent felonies, including “[a]ny burglary of the first degree, as defined in subdivision (a) of Section 460, wherein it is charged and proved that another person, other than an accomplice, was present in the residence during the commission of the burglary.” (§ 667.5, subd. (c)(21).)
The trial court found true the allegations that appellant had suffered three prior strike convictions within the meaning of sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i) and one prison prior within the meaning of section 667.5, subdivision (b). After denying appellant’s Romero motion, the trial court sentenced him to a total of 95 years to life in state prison. The sentence consisted of 25 years to life on count 1 and 10 consecutive years for the firearm use in that count, an identical consecutive sentence in count 3, and a consecutive sentence of 25 years to life in count 5. Concurrent sentences of 35 years to life were imposed in count 2 and count 4. The court imposed and stayed a term of 25 years to life in count 6 pursuant to section 654.
People v. Superior Court (Romero) 13 Cal.4th 497.
Appellant appeals on the grounds that: (1) count 5 and the special finding under section 667.5, subdivision (c) should be reversed because appellant’s conviction for burglary rests on insufficient evidence; (2) reversal of count 2 is required because the trial court failed to sua sponte instruct the jury that attempted robbery was a lesser included offense of robbery; and (3) the trial court abused its discretion in denying appellant’s Romero motion.
FACTS
As mandated by the traditional rule of appellate review, we recite the evidence in the light most favorable to the judgment. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
Robbery at Leo’s Hair Salon
On the evening of October 20, 2005, Leonard Gardea (Gardea), the owner of Leo’s Hair Salon in the City of Industry, was doing the hair of his customer, Carmen Aguilar (Aguilar). Appellant entered the salon and said, “This is a robbery.” When Gardea remarked that appellant must be kidding, appellant pulled out a shotgun that was concealed underneath his sweatshirt and his trousers. Appellant told Gardea to give him Gardea’s money. Gardea gave appellant the money he had on his person, and appellant told Gardea to give him all the money or appellant would shoot him. Appellant turned the gun on Aguilar and told her to give him her purse. When Aguilar refused, appellant said he would shoot her if she did not give him her purse. Aguilar told him to go ahead. Appellant seemed surprised by her response and walked toward her holding the gun upright. Aguilar grabbed the gun and the two began struggling. At various times during the struggle appellant put the gun to the back of Aguilar’s neck. Gardea watched, terrified that appellant would shoot Aguilar and then him. Appellant regained control of the gun from Aguilar, and Gardea grabbed the gun. As the two men struggled, Aguilar grabbed her purse and cell phone and ran to the bathroom where she called the police. Appellant got away from Gardea and ran outside.
Robbery at Rose Garden Flora
On the evening of October 20, 2005, Rosario Seara-Ko (Seara-Ko) was at her shop, Rose Garden Flora, with her 13-year-old son, A. Appellant entered the shop, pulled out a gun, and demanded the money from the cash register. When Seara-Ko complied, appellant demanded the money from Seara-Ko’s purse. Seara-Ko had to go to the back room for her purse, and appellant followed her. Appellant noticed a surveillance camera and told Seara-Ko to remove the tape and give it to him. Appellant held her and her son at gunpoint while she removed the tape. Appellant noticed a wallet next to the cash register. He grabbed it, took the $2 inside, and threw the wallet back. Appellant thanked Seara-Ko, put his gun inside his trousers, and left.
Appellant’s Flight and Subsequent Burglary and Vehicle Theft
On the same evening as the robberies, Deputy Sheriff Scott Johnston and his partner, Deputy Dan Brownell, were on patrol in Hacienda Heights. Deputy Johnston saw a car speeding towards the patrol car and swerving in and out of lanes. The patrol car made a U-turn in order to follow and stop the speeding car. The officers activated the patrol car’s lights and siren. The speeding vehicle accelerated instead of pulling over, running through stop signs. After a short time the vehicle pulled into a driveway at high speed, and the driver and the front passenger jumped out and fled. Both were males. Two other persons emerged from the vehicle and said they had been kidnapped. Deputy Johnston saw a shotgun wedged between the center console and the front seat. Deputy Johnston radioed for help and set up a containment area.
The area where the fleeing vehicle came to rest was near Marie Cahill’s (Cahill) residence. Cahill owned a 1989 Pontiac LeMans, which was parked in her driveway. She went to bed at approximately 6:00 p.m. on October 20, 2005, and was later awakened by police activity. She could not see what was happening from her window and returned to bed. The next morning, Cahill discovered that her car was missing. Her car keys, her roommate’s keys, a can of nuts, a lighter, and some cigarettes were missing from a table near the front door. Cahill thought the intruder must have entered the residence from the back, going from the patio through the garage and into the house. Cahill believed that all the doors were locked, and no windows had been broken. Cahill neither heard nor saw anyone in the house. Cahill recovered her car five days later.
The Investigation and Arrest
On October 25, 2005, Detective David Smiley, the investigating officer in this case, went to a tow yard in Whittier and photographed Cahill’s car. The car had already been tested for prints, and Detective Smiley requested that the prints be compared to those of appellant, who had already been identified as a suspect. At trial, the parties stipulated that one of three prints lifted from the car matched appellant’s. Appellant’s print was on the rear-view mirror of Cahill’s car.
Appellant was arrested and taken to the sheriff’s station where he agreed to speak with the detective. He admitted committing the robbery at Seara-Ko’s flower shop. He admitted the details of the robbery but denied taking anything from the child. Appellant acknowledged the police pursuit and told the detective that the juveniles who remained inside the vehicle had nothing to do with his crimes. He admitted the robbery at the hair salon and gave details of the robbery. He said he ran from the salon to the waiting car and ordered the driver to go to the freeway. They were trying to find a freeway on-ramp when the police began to pursue him. He claimed that he switched places with the driver and drove the car until he entered a cul-de-sac. He decided to leave the car and make a run for it. He scaled a wall and hid in some bushes for a time. He then made his way to a residence that he entered through an unlocked door in the rear. He stayed inside the residence until the helicopter noise was gone and there was no more commotion. He found a set of keys, cigarettes, lotion, and some nuts and took those items. He tried the keys in the car in the driveway and started the car. He then drove the car to an area of Los Angeles that was familiar to him. A few days later he drove the car to the Whittier area and parked it where the kids who had been in the car would see it and know he got away.
DISCUSSION
I. Sufficiency of the Evidence of Burglary in Count 5
A. Appellant’s Argument
Appellant contends the evidence is insufficient to establish that he had the specific intent to steal at the time he entered Cahill’s house. Instead, the evidence showed that he entered the house seeking temporary safety from the police and later decided to take Cahill’s car in order to facilitate his escape. Appellant claims he was denied due process and a fair trial, and his conviction on count 5 and the special finding on that count must be reversed.
B. Relevant Authority
In assessing a sufficiency-of-the-evidence argument, the test on appeal is whether substantial evidence supports the conclusion of the trier of fact, not whether the reviewing court believes the evidence established guilt beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 576.) The court must view the evidence in light of the whole record, drawing all inferences in favor of the judgment, and must presume the existence of every fact in support of the judgment that could reasonably be deduced from the evidence. To uphold the conviction, the record must contain evidence that is reasonable, credible, and of solid value such that any rational trier of fact could have been persuaded of the defendant’s guilt. (In re Jose P. (2003) 106 Cal.App.4th 458, 466; see also Jackson v. Virginia (1979) 443 U.S. 307, 318-319.) The standard of review is the same in cases in which the People rely mainly on circumstantial evidence. (People v. Bean (1988) 46 Cal.3d 919, 932.)
“Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant’s guilt beyond a reasonable doubt. ‘“If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.”’ [Citations.]” (People v. Bean, supra, 46 Cal.3d at pp. 932–933.)
C. Evidence Sufficient
In count 5, the jury was instructed that in order to find appellant guilty of the crime of burglary, it had to find the following elements were proved: a person entered a building, and at the time of the entry, the person had the specific intent to steal and take away someone’s property and intended to permanently deprive the owner of this property. Using these principles, the jury found appellant guilty of burglary.
Defense counsel argued that appellant told Detective Smiley he entered Cahill’s residence trying to find a safe haven. The prosecutor disputed this, noting that Detective Smiley stated that appellant left when it became quiet, but not that he had entered to find a safe haven. The prosecutor argued that appellant was still in the commission of a robbery and trying to get to a safe haven, which was not someone else’s house in the middle of the night.
“‘Although the People must show that a defendant charged with burglary entered the premises with felonious intent, such intent must usually be inferred from all of the facts and circumstances disclosed by the evidence, rarely being directly provable. [Citations.] When the evidence justifies a reasonable inference of felonious intent, the verdict may not be disturbed on appeal.’” (People v. Price (1991) 1 Cal.4th 324, 462.)
The record shows that appellant unlawfully entered the home, removed items found there, and then used the keys he took from the home to steal the car in the driveway. Because appellant was in flight from police at the time he entered the home, the jury reasonably inferred that he entered the home for the purpose of taking something to aid in his escape, or anything of obvious value that was portable. Appellant had just stolen, or attempted to steal, from four people.
Moreover, a reasonable jury could have determined that appellant chose a house that had a car conveniently parked in the driveway, and that he entered the house with the intent to steal the keys to the car and then the car. Appellant told the detective that he entered through an unlocked door at the back of the house, and Cahill believed that the intruder entered through the door from the garage, which in turn one could enter from a patio area. If appellant’s plan were only to hide, he might easily have hidden in the garage. (See, e.g., People v. Martin (1969) 275 Cal.App.2d 334, 339; People v. Jordan (1962) 204 Cal.App.2d 782, 786 [“Burglarious intent can reasonably be inferred from an unlawful entry alone”].) And, “‘[t]here is no better proof that [appellant] entered the [victim’s house] with intent to commit [theft] than a showing he did in fact commit [theft] after his entry.’” (People v. Abilez (2007) 41 Cal.4th 472, 508-509.) Although the nature of what appellant took suggests no intention to ransack the home, it was hardly necessary for the jury to accept defendant’s suggestion that he was seeking nothing more than a hiding place when he entered the home. As stated previously, whatever other conclusions the jury might have drawn from the evidence, “it is the jury, not the appellate court which must be convinced of the defendant’s guilt beyond a reasonable doubt.” (People v. Bean, supra, 46 Cal.3d at p. 933.)
We conclude substantial evidence showed defendant intended to commit a theft-related offense at the time he entered Cahill’s home. For the same reasons we reject appellant’s claim under the due process clause of the United States Constitution, which bars criminal convictions except on proof sufficient to establish guilt beyond a reasonable doubt. (In re Winship (1970) 397 U.S. 358, 362–364.)
II. Lack of Instruction on Attempted Robbery in Count 2
A. Appellant’s Argument
Appellant contends that the trial court should have instructed the jury on attempted robbery as a lesser included offense of the robbery of A. as charged in count 2. According to appellant, “[c]ontrary to Seara-Ko’s testimony, Detective Smiley testified that appellant said he did not take any money from [A.].” Appellant argues that his statement negated one of the elements of robbery in count 2 and constituted sufficient evidence to warrant instruction on the lesser included offense of attempted robbery.
B. Relevant Authority
“When there is substantial evidence that an element of the charged offense is missing, but that the accused is guilty of a lesser included offense, the court must instruct upon the lesser included offense, and must allow the jury to return the lesser conviction, even if not requested to do so. [Citations.]” (People v. Webster (1991) 54 Cal.3d 411, 443; People v. Melton (1988) 44 Cal.3d 713, 746.) The instruction shall not be given when there is no evidence the offense was less than that charged. (People v. Pham (1993) 15 Cal.App.4th 61, 69.)
C. No Error
Seara-Ko testified that appellant, just before he left, saw A.’s wallet lying next to the cash register. He asked her what it was, and Seara-Ko replied that it was her son’s wallet. Appellant said, “‘You lie to me, ma’am. You lie to me.’” He then said, “‘Give me the wallet.’” She gave him the wallet, and appellant took out her son’s $2 and threw the wallet back.
Detective Smiley testified that appellant acknowledged taking Seara-Ko to the back room to get her purse and having her remove a video tape from the VCR in that room. He said that he then concealed the shotgun and left the store. Detective Smiley said, “He denied taking anything from the child.”
We disagree with appellant and conclude that appellant’s reported denial of “taking anything from the child” did not constitute substantial evidence that would support an instruction on the lesser included offense of attempted robbery. If appellant’s statement were true and credited by the jury, appellant would have been acquitted of the robbery of A. The statement contains no scenario that justifies an instruction on attempted robbery.
We also conclude that, even if the failure to instruct on attempted robbery constituted error, appellant was not prejudiced thereby. It is not reasonably probable that a result more favorable to appellant would have resulted in the absence of the alleged error. (People v. Breverman (1998) 19 Cal.4th 142, 165, 178 (Breverman).) Appellant argues that he was honest with the detective and admitted the essence of the other robberies and the burglary, leaving no reason for him to lie about taking $2 from A.’s wallet. Therefore, “a reasonable juror could have believed appellant when he said that he did not take any money from [A.].” He adds that “[i]t is reasonably probable that a properly instructed jury could have found appellant guilty of the lesser, rather than the greater offense.”
We note that appellant’s general statement that he did not take anything from the child does not contain a denial that he took money from the wallet. Seara-Ko’s testimony established that the wallet and money belonged to her son. Even if the jury had been instructed on attempted robbery, the only reasonable inference to be drawn from the evidence was that a completed robbery of A. took place. As stated in Breverman, the test focuses on what the jury is likely to have done in the absence of the error, not on what a reasonable jury could do. (Breverman, supra, 19 Cal.4th at p. 177.) Appellant’s argument is without merit.
III. Denial of Romero Motion
A. Appellant’s Argument
Appellant contends that the trial court’s decision to deny his Romero motion was impermissibly based on his criminal history. He argues that the trial court did not adequately consider appellant’s individual characteristics, including his behavior and demeanor at trial.
B. Relevant Authority
We review the trial court’s ruling for abuse of discretion. (People v. Williams (1998) 17 Cal.4th 148, 162 (Williams); Romero, supra, 13 Cal.4th at p. 530.) The burden is on the party attacking the sentence to establish that the sentencing decision was irrational or arbitrary. (People v. Romero (2002) 99 Cal.App.4th 1418, 1434; People v. Myers (1999) 69 Cal.App.4th 305, 309-310.) “It is not enough to show that reasonable people might disagree about whether to strike one or more of his prior convictions. Where the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court’s ruling, even if we might have ruled differently in the first instance.” (People v. Myers, supra, at p. 310.)
The Romero court stated that a court’s power to dismiss a prior conviction is to be limited by the concept that the dismissal should be in the “‘“furtherance of justice.”’” (Romero, supra, 13 Cal.4th at p. 530.) According to Williams, in order to “render Penal Code section 1385(a)’s concept of ‘furtherance of justice’ somewhat more determinate,” justice should be sought within the “interstices” of the particular sentencing scheme, because the scheme itself suggests its spirit. (Williams, supra, 17 Cal.4th at p. 160.) This search must be “informed by generally applicable sentencing principles” relating to matters such as the defendant’s “background, character, and prospects,” which are intrinsic to the scheme. (Id. at pp. 160, 161.) The court cautioned that the standard for review of an exercise of discretion is “deferential,” although not “empty,” requiring the reviewing court to determine whether a ruling exceeds the bounds of reason under the law and relevant facts. (Id. at p. 162.)
C. No Abuse of Discretion
In making its ruling, the trial court amply demonstrated that it was following the precepts of Romero and Williams in denying appellant’s Romero motion. To summarize the trial court’s words would diminish their plain eloquence, and we quote the trial court in full: “. . . It’s pretty clear that the court cannot just willy-nilly strike a strike just to do it. There needs to be something about the offender, the facts of the old case, the facts of the new case, something about his prospects, something that a court, a reasonable court could point to to say, ‘Hey, we’re going to take the very unusual step to pull you outside the reach of the law.’ That occasionally happens, but rarely. Typically if someone has got priors that are very, very, very old, a guy comes through here and he’s 50 years old and he’s got a 30-year-old case that was not factually serious but may be legally such, and he picks up a low grade felony, things like that, or somebody who has at some point in his life done some sort of heroic deed to counterbalance the bad, or someone who is working extremely hard or gets loaded and slips. You don’t have any, I hate to tell you. But you started out, I’m not going to rub your nose in it, and I’m not trying to, but I need to make a record why this motion isn’t a good one. We didn’t even talk about all your cases. ’89 you had a burglary that you went to camp on. At least one. Then you had a drug case when you were younger back in 1990, I believe, and a false report to the police. Either a false bomb threat or something of the like. It was a 148.5, which is a false report of a crime. You went back to camp on that. You had another burglary. You went back to camp on that. False information to the police again. Camp. Robbery. Camp. Attempted murder, two counts. I know you’re not the shooter, You’re the driver. Takes two. He’s a driver and a shooter, as you know. Yes, your role was lesser, but still crucial. Luckily nobody got killed. But you’re out there involved in gunplay. You get out of that one. My lord, one would hope that at some point you would have gotten the message. But while in custody – and I know things happen in a custody setting that sometimes require you to act in certain ways to survive. But nonetheless you’ve got another matter that you got convicted of while in there and they sent you up to prison. That’s another case involving force or violence. I know you characterize it as self-defense, but it comes down as a conviction of a felony, 245. No weapon apparently involved. Then you got out and you’re drinking and driving. Driving, no license, and drunk driving. Not the worse offense in the world, but not a trivial one. And a dangerous one. And now we’re back again just a couple years after your discharge from parole and now you’re involved in very, what I consider very serious activity. I don’t doubt that gun may have been unloaded, that shotgun. But those victims didn’t know it. And I’ll tell [you what] strikes me about the case. You sat here right along and listened with me. I didn’t look at you at the moment. But you remember when the woman was testifying about what happened with her son? And the little boy in there, he’s about 13 or 14 years old. And I tell you I didn’t like what I heard. That you told him that if he didn’t obey, you’d kill his mother. You had that shotgun pointed at her, had her on her knees. There are degrees of depravity and meanness, and that was up near the top in the court’s humble opinion. You wouldn’t want someone doing that to your mother, I know darned well. Or to you when you were 14 years old. You can’t do that sort of stuff and come in and expect you’re going to get leniency. And when you behave that way, you’re going to be removed, if that’s what’s going to happen to you. I don’t know why you decided to toss your life in the garbage can. So, no, it would not be appropriate just to do it, to start striking strikes and so forth. No. Romero motion is denied.”
We believe it is not necessary to reiterate the “particulars of [appellant’s] background, character, and prospects,” since the trial court clearly was aware of its obligation to consider these factors and did so with great thoroughness. (Williams, supra, 17 Cal.4th at p. 161.) The trial court followed the principles that must guide a court that seeks to comply with section 1385, subdivision (a) -- principles that were explained and reaffirmed in Romero, supra, 13 Cal.4th at pages 530-531 and elaborated upon in Williams, supra, 17 Cal.4th at pages 160-161. We cannot say that the court’s assessment of appellant’s background, character, and prospects was arbitrary or capricious. The trial court clearly believed appellant was a danger to society, and as emphasized in People v. Garcia (1999) 20 Cal.4th 490, when deciding whether to strike prior convictions under section 1385, the trial court must consider not only the constitutional rights of the defendant, but also “‘“the ‘interests of society represented by the People . . . .’”’” (People v. Garcia, supra, at pp. 497-498.) The trial court did not abuse its discretion.
DISPOSITION
The judgment is affirmed.
We concur: BOREN P. J., DOI TODD J.