Opinion
A147260
06-28-2018
THE PEOPLE, Plaintiff and Respondent, v. JUAN GONZALEZ-ORTIZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Sonoma County Super. Ct. No. SCR-656895)
Defendant Juan Gonzalez-Ortiz appeals a judgment entered upon a jury verdict finding him guilty of attempted robbery and assault with a firearm. He contends the evidence is insufficient to support the attempted robbery conviction. We shall remand the matter to the trial court to address three sentencing issues and otherwise affirm the judgment.
I. BACKGROUND
Defendant was charged by information with felony attempted robbery (Pen. Code, §§ 211, 664; count I), with allegations that he personally used a firearm, making the offense a serious and violent felony (§§ 12022.53, subd. (b), 1192.7, subd. (c)(8), 667.5, subd. (c)(8)) and that he was armed with a rifle within the meaning of section 12022, subdivision (a)(2); assault with a firearm (§ 245, subd. (a)(2); count II), with allegations that he personally used a firearm (§§ 12022.5, 1192.7, subd. (c), 667.5, subd. (c)); and attempted carjacking (§§ 215, subd. (a), 664; count III), with allegations that the offense was a serious and violent felony (§§ 1192.7, subd. (c), 667.5, subd. (c)) and that defendant personally used a firearm (§§ 12022.53, subd. (b), 1203.06, subd. (a)(1)) and was armed with a firearm (§ 12022, subd. (a)(2)).
All statutory references are to the Penal Code.
The victim of the crimes, J.A., was in his vehicle, a Honda CRV, in the parking lot of the apartment complex where he lived on the night of July 26, 2014, waiting for his wife. The key was in the ignition, and he had started the engine. A truck pulled into the parking lot, carrying two men, and parked about 15 feet away from J.A.'s vehicle. One of the men approached J.A., holding a beer, and asked for directions to U.S. Highway 101. J.A. gave directions, and the man returned to the truck. He got out of the truck again, approached J.A.'s CRV, and told J.A. in an aggressive tone of voice to get out of the car. J.A. thought the men wanted a drink, and he got out of his car, leaving the driver's side door open. The man pushed J.A. toward the back of the CRV. J.A. looked up and saw defendant at the back of his car, pointing a gun at him.
Still holding the gun, defendant told J.A. he was going to "fuck [him] up," and that J.A. was coming with him. The other man was still behind J.A. J.A. asked defendant why he was doing that, and defendant and the other man told him to turn off the car and hand them the keys. J.A. thought they were going to take the car. He got into the car, put the transmission into reverse, and began honking the horn. The other man tried to pull J.A. out of the car. As J.A. backed the car up, the other man let go of him and ran toward the truck. Defendant had also returned to the truck, and the pair drove away. Before they left, defendant told J.A. they would come back.
J.A. recognized defendant as a friend of his neighbor, who sometimes parked in J.A.'s parking space. J.A. had asked defendant to move his truck in the past.
After defendant and the other man drove away, J.A. went back to his apartment and told his wife someone had aimed a gun at him. When he spoke with an officer shortly after the incident, he did not mention that anyone had tried to rob him or steal his car. He gave a statement to a detective, and he testified at defendant's preliminary hearing. On neither occasion did he volunteer that he thought his car was going to be stolen.
Defendant told a police officer he believed J.A. had stolen the hubcaps from his truck. He said he aimed the gun at J.A. in order to frighten him.
The jury found defendant guilty of attempted robbery and assault with a firearm, and found the associated enhancement allegations true. It found him not guilty of attempted carjacking.
II. DISCUSSION
A. Sufficiency of Evidence to Support Conviction of Attempted Robbery
Defendant contends the evidence does not support his conviction of attempted robbery. Our standard of review is well settled. "When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] . . .We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] A reviewing court neither reweighs evidence nor reevaluates a witness's credibility." (People v. Lindberg (2008) 45 Cal.4th 1, 27.)
Robbery is defined as "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.) The crime "requires a 'felonious taking' which means a specific intent to permanently deprive the victim of the property." (People v. Torres (1995) 33 Cal.App.4th 37, 50; see People v. Dominguez (1995) 38 Cal.App.4th 410, 417 ["The specific intent required for robbery is the intent to permanently deprive."].) This requirement " 'is satisfied by the intent to deprive temporarily but for an unreasonable time so as to deprive the person of a major portion of its value or enjoyment.' " (People v. Aguilera (2016) 244 Cal.App.4th 489, 500.) "An attempt to commit a crime requires a specific intent to commit the crime and a direct but ineffectual act done toward its commission." (Torres, at p. 50.)
Defendant argues there is no evidence he intended to deprive J.A. permanently of either his vehicle or his keys. We bear in mind that "[e]vidence of intent to commit a theft 'is rarely demonstrated by direct proof, and as a result, may be inferred from facts and circumstances.' " (People v. Hussain (2014) 231 Cal.App.4th 261, 273.) After defendant's companion ordered J.A. out of his vehicle, defendant pointed a gun at J.A. and the two men told him to hand them the keys. From defendant's action in ordering J.A. at gunpoint to surrender his keys, the jury could reasonably conclude he intended to deprive J.A. of his property permanently or for so extended a period of time as to deprive him of a major portion of its value or enjoyment.
The instruction regarding robbery informed the jury that to prove robbery, the People must prove, inter alia, that defendant "intended to deprive the owner of [the property] permanently or to remove it from the owner's possession for so extended a period of time that the owner would be deprived of a major portion of the value or enjoyment of the property." Defendant argues that the prosecutor did not discuss this requirement in his closing statement. The jury was instructed on this element of robbery, and we presume it followed the instructions. (See People v. Letner and Tobin (2010) 50 Cal.4th 99, 152.)
Against this conclusion, defendant points out that, although J.A. testified at trial that he believed the two men were trying to steal his car, he did not express this view either in his statements to police officers or in his preliminary hearing testimony. This argument is unpersuasive. It is not our role to reevaluate the credibility of witnesses. (People v. Lindberg, supra, 45 Cal.4th at p. 27.) In any case, the question before us is not whether J.A. expressed this belief in the past, it is whether there is sufficient evidence to support the jury's factual finding.
Defendant argues, however, that his conviction of robbery is inconsistent with his acquittal on the attempted carjacking charge, which does not require an intention to deprive a person permanently of possession of the vehicle. (§ 215; People v. Scott (2009) 179 Cal.App.4th 920, 928, disapproved on another point in People v. Vargas (2014) 59 Cal.4th 635, 649, fn. 10 ["a carjacking conviction can be based on the intent to permanently or temporarily deprive the victim of a car, whereas a robbery requires the intent to permanently deprive a person of property"].) We disagree. J.A. testified that defendant and his companion told him to hand over his keys. The jury could well have decided the evidence showed defendant intended to deprive him permanently of the keys but did not show beyond a reasonable doubt that he intended to use the keys to drive the car away.
" 'Carjacking' is the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence, or from the person or immediate presence of a passenger of the motor vehicle, against his or her will and with the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession, accomplished by means of force or fear." (§ 215, subd. (a).)
In any case, "[i]t is well settled that, as a general rule, inherently inconsistent verdicts are allowed to stand." (People v. Lewis (2001) 25 Cal.4th 610, 656; see § 954 ["An acquittal of one or more counts shall not be deemed an acquittal of any other count."].) In People v. Hussain, supra, 231 Cal.App.4th at page 273, the defendant, who was acquitted of theft by false pretenses, relied on inconsistent verdicts to support his argument that he lacked the specific intent necessary to support his conviction of theft by larceny. The appellate court rejected this contention, reasoning, "Inconsistent verdicts alone do not establish insufficient evidence. . . . [¶] 'The law generally accepts inconsistent verdicts as an occasionally inevitable, if not entirely satisfying, consequence of a criminal justice system that gives defendants the benefit of a reasonable doubt as to guilt, and juries the power to acquit whatever the evidence.' [Citation.] '[I]f an acquittal of one count is factually irreconcilable with a conviction on another, or if a not true finding of an enhancement allegation is inconsistent with a conviction of the substantive offense, effect is given to both. [Citations.]' [Citation.] 'The jury may have been convinced of guilt but arrived at an inconsistent acquittal or not true finding "through mistake, compromise, or lenity . . . ." ' " (Ibid.) Even if defendant's conviction of attempted robbery were inconsistent with his acquittal of attempted carjacking, we would not reverse his conviction.
B. Sentencing
1. Sentencing Errors
In the respondent's brief, the Attorney General draws our attention to a sentencing error. The trial court sentenced defendant to a term of 12 years for count I, attempted robbery, calculated as the midterm of two years, and an additional 10 years for the firearm enhancement (§ 12022.53, subd. (b)). The court went on, "The sentence on Count 2 is stayed pursuant to [section] 654 of the Penal Code." The court did not impose a term for count II, the assault conviction, before staying it. Nor did it impose sentence on the enhancement allegation, found true by the jury, that defendant personally used a firearm in the commission of that offense (§ 12022.5, subd. (a)).
As the Attorney General points out, the trial court had a duty to impose sentence on count II before staying the sentence. " 'Upon conviction it is the duty of the court to pass sentence on the defendant and impose the punishment prescribed. [Citations.] Pursuant to this duty the court must either sentence the defendant or grant probation in a lawful manner; it has no other discretion.' [Citation.] [¶] A sentence must be imposed on each count, otherwise if a nonstayed sentence is vacated, either on appeal or in a collateral attack on the judgment, no valid sentence will remain." (People v. Alford (2010) 180 Cal.App.4th 1463, 1468-1469.) Thus, a court should impose sentence on all counts, and then stay execution of sentence as necessary pursuant to section 654 to avoid multiple punishment. (Alford, at p. 1469.) Failure to do so results in an "unauthorized absence of sentence." (Id. at p. 1472.)
In addition, the trial court failed to impose sentence on an enhancement allegation that defendant was personally armed with a rifle during the commission of the robbery. (See People v. Vizcarra (2015) 236 Cal.App.4th 422, 432 [trial court's failure to pronounce statement on statutory sentence-enhancement allegation found true by the jury results in unauthorized sentence].)
As the Attorney General notes, the operative information alleges defendant was armed with a rifle within the meaning of section 12022, subdivision (a)(2), and the verdict cites the same subdivision. Subdivision (a)(2) establishes an additional three-year term when a defendant is armed with an assault weapon, machinegun, or .50 BMG rifle. There is no evidence the weapon defendant carried fell within one of these categories. Subdivision (a)(1) of the same statute establishes an additional term of one year when a defendant is armed with a firearm in the commission of an offense. Despite the subdivision cited in the information and verdict form, the jury was instructed pursuant to section 12022, subdivision (a)(1) that it must decide whether the People had proved the allegation that one of the principals was "armed with a firearm in the commission or attempted commission of that crime." We express no view on the effect of the apparent clerical error in the information and verdict.
An unauthorized sentence may be corrected whenever the error comes to the attention of the appellate court even if the correction may result in a more severe punishment. (People v. Vizcarra, supra, 236 Cal.App.4th at pp. 431-432.) We shall therefore remand the matter to the trial court for resentencing.
2. Senate Bill No. 620
When it sentenced defendant, the trial court, as it recognized, had no discretion to strike the firearm enhancements imposed under sections 12022.5 and 12022.53. In October 2017, however, the Legislature enacted Senate Bill No. 620, which took effect on January 1, 2018. As to each of the firearm enhancements found true by the jury in this case, the statute provides that "[t]he court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section." (§§ 12022.5, subd. (c) & 12022.53, subd. (h).) The discretion conferred by the statute "applies to any resentencing that may occur pursuant to any other law" (§§ 12022.5, subd. (c) & 12022.53, subd. (h)), and it applies retroactively to nonfinal judgments. (People v. Woods (2018) 19 Cal.App.5th 1080, 1090-1091; see In re Estrada (1965) 63 Cal.2d 740, 745.) We conclude that a remand is necessary here for the trial court to exercise its discretion whether to strike the firearm enhancements.
The parties completed briefing in this case before Senate Bill No. 620 passed, and therefore did not address the effect of the legislation. We invited them to submit additional briefing if they opposed a remand for the trial court to exercise the discretion conferred by the law, and neither party did so. We agree with numerous other courts that have concluded under similar circumstances that a remand is appropriate to allow the trial court to exercise its discretion under sections 12022.5 and 12022.53. (E.g., People v. McDaniels (2018) 22 Cal.App.5th 420; People v. Arredondo (2018) 21 Cal.App.5th 493; People v. Mathews (2018) 21 Cal.App.5th 130, 132; People v. Robbins (2018) 19 Cal.App.5th 660, 678-679; People v. Woods, supra, 19 Cal.App.5th at pp. 1090-1091.) We express no opinion as to how the trial court should exercise its discretion.
At least one court has declined to enter such an order where it was clear from the record that the trial court would not exercise its discretion to strike an enhancement and a remand therefore would be an idle act. (People v. Chavez (2018) 22 Cal.App.5th 663, 712-713.) This is not such a case.
III. DISPOSITION
The matter is remanded to the trial court for resentencing in accordance with this opinion. In all other respects, the judgment is affirmed.
/s/_________
Schulman, J. We concur: /s/_________
Streeter, Acting P.J. /s/_________
Reardon, J.
Judge of the Superior Court of California, City and County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------