Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. LA 045957. John S. Fisher, Judge.
Alan Siraco, 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, Lance E. Winters, Jason C. Tran and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.
ROTHSCHILD, J.
A jury found defendant Theodore J. Hagan guilty of one count of robbery and two counts of assault with a firearm. It also found that Hagan personally used a firearm in committing the assaults and that he inflicted great bodily injury in the commission of the robbery. The trial court sentenced Hagan to a prison term of 24 years, 4 months, including an upper term of 9 years for one of the assaults and an upper term of 10 years for the gun use enhancement on that assault.
FACTS AND PROCEEDINGS BELOW
On the day of the robbery Raffi Baltekian was standing behind the showroom counter of Pascal Jewelers and Isaac Ohannessian, the owner, was in his office.
Hagan entered the store and asked to look at some rings. Ohannessian, looking into the show room through the one way mirror in his office, saw Hagan draw a handgun, point it at Baltekian and pull Baltekian to the floor behind the counter. Ohannessian immediately arose from his desk, grabbed his own gun and fired at Hagan through the window, striking him in the shoulder. Ohannessian then entered the showroom and fired at Hagan again. Hagan charged at Ohannessian, dropping his gun as he did so. He attempted to grab Ohannessian’s gun and the two men grappled for control of the weapon. In the course of this struggle Hagan gained control of the gun, stepped away and shot Ohannessian. Hagan then fled from the store taking Ohannessian’s gun with him. One of the bullets fired from Ohannessian’s gun pierced Ohannessian’s heart, a lung and a kidney. He was unconscious for 36 days and underwent eight surgeries.
Testifying in his own defense, Hagan admitted the facts described above. He also testified that he never intended to steal Ohannessian’s gun; his only thought was to take the gun away so that Ohannessian would stop shooting at him. He stated that he did not even realize he was holding the gun until after he ran out of the store and tried to open the door of his getaway car.
A jury acquitted Hagan of attempted murder but convicted him of robbing and assaulting Ohannessian. The jury found Hagan inflicted great bodily injury on Ohannessian in the course of the robbery and the assault, and personally used a firearm in committing the assault. It also convicted Hagan of assault on Baltekian and found Hagan personally used a firearm in the commission of that assault.
The trial court sentenced Hagan to the upper term of 9 years for the assault on Baltekian enhanced by the upper term of 10 years for the gun use. The court imposed a term of 2 years for the robbery of Ohannessian, enhanced by 1 year for infliction of great bodily injury. Finally, the court sentenced Hagan to a term of 1 year for the assault on Ohannessian plus 16 months for the gun use and 1 year for infliction of great bodily injury. Hagan filed a timely notice of appeal.
Hagan contends that (1) his robbery conviction should be reversed because there was insufficient evidence that he intended to permanently deprive Ohannessian of his gun and because the trial court failed to instruct the jury sua sponte on the lesser included offense of theft; (2) his conviction for assault on Ohannessian should be reversed for insufficient evidence and because the court allowed the prosecution to add that count after both sides had rested; (3) his upper term sentence for the assault on Baltekian was unconstitutional under Cunningham v. California (2007) 549 U.S. ___, 127 S.Ct. 856; (4) the trial court erred in its response to the jury’s question regarding personal gun use in the commission of the assault on Ohannessian; and (5) the gun use and great bodily injury enhancements for the assault on Ohannessian and the great bodily injury enhancement for the robbery of Ohannessian should be set aside for insufficiency of the evidence.
We find no merit to these contentions and affirm the judgment.
DISCUSSION
I. THE CONVICTION FOR ROBBERY.
“‘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.’ ([Pen. Code, ]§ 211.) To be convicted of robbery, the perpetrator must intend to deprive the victim of the property permanently. [Citations.]” (People v. Huggins (2006) 38 Cal.4th 175, 214.)
Hagan contends that his conviction of robbery should be reversed for two independent reasons: there was insufficient evidence to convict him of robbery, and the court should have instructed on the lesser included offense of theft. We reject both contentions.
Hagan maintains no evidence showed that at the time he wrested the gun from Ohannessian he intended to permanently deprive him of his weapon. He argues that the only evidence of intent was his own testimony that when he was using force to try to get the gun away from Ohannessian, his sole intent was to disarm Ohannessian, not to permanently deprive Ohannessian of the weapon. His intent to steal the weapon, he testified, only arose when, upon fleeing from the store, he discovered he was still holding Ohannessian’s gun and decided to take it with him rather than leave it at the scene.
Robbery requires the joint operation of act and intent. (People v. Green (1980) 27 Cal.3d 1, 54.) “If intent to steal arose after the victim was assaulted, the robbery element of stealing by force or fear is absent. [Citations.]” (People v. Webster (1991) 54 Cal.3d 411, 443.) According to Hagan, his intent to steal the gun did not arise until after he had forced it out of Ohannessian’s hands. Therefore, he maintains, at most the evidence showed he was guilty of theft and the trial court erred in failing to instruct the jury sua sponte on that lesser included offense.
The problem with Hagan’s argument, aside from the fact that the jury did not have to believe his testimony, is that the joint operation of an act of force and an intent to steal occurred when Hagan pointed a gun at the salesperson with the intent to steal the jewelry belonging to Ohannessian. It does not matter that in the course of the robbery Hagan switched his focus from stealing the jewelry to stealing the gun. People v. Brito (1991) 232 Cal.App.3d 316, illustrates this point.
Intent is frequently shown by circumstantial evidence. Here, the jury reasonably could have concluded that at the time Hagan fought Ohannessian for the gun he intended to take it and keep it in order to prevent Ohannessian from shooting him with it.
In Brito, the victim offered a ride to the defendant who was hitchhiking on a freeway onramp. When the victim opened the passenger door, defendant leaned into the car, pointed a gun at the victim’s face and demanded gold and money. When the defendant became distracted by other cars honking their horns, the victim fled through the driver’s door. Defendant then drove away in the victim’s car. (People v. Brito, supra, 232 Cal.App.3d at p. 320.) On appeal from his conviction of robbery, defendant argued that the trial court erred in not giving an instruction on the lesser included offense of theft because “the jury could have found he did not intend to steal the vehicle when he held the gun on his victim, but rather formulated his intent to steal the vehicle only after his victim had fled from the vehicle.” (Id. at p. 324.) The court rejected this argument, pointing out that the defendant “attempted to commit a robbery and during the course of events stole the vehicle.” (Ibid.) In holding the theft of the vehicle constituted robbery, the court reasoned: “We know of no requirement that a robber’s intent to steal must be directed towards items he has identified at the time he applies the force, as opposed to items he identifies during the same transaction. [Fn. omitted.] . . . We see no rationale for limiting the scope of the robbery only to the specific items on which the defendant has focused at the time he initially applies the force. [Citation.]” (Id. at pp. 325-326.)
In the case before us, Hagan admitted he entered the store with the intent to permanently deprive Ohannessian of his jewelry. He pointed his gun at the salesperson, Baltekian, and pulled him to the floor. Hagan concedes that if he had then followed his plan to take the jewelry he would be guilty of robbery. Before Hagan could grab the loot and run, however, he was confronted by Ohannessian who had a gun and was shooting at Hagan. At that point Hagan diverted his attention from taking the jewelry to taking the gun. But, as the court held in Brito, the crime of robbery is not limited “to the specific items on which the defendant has focused at the time he initially applies the force. [Citation.]” (People v. Brito, supra, 232 Cal.App.3d at p. 326.) Therefore, even if the jury believed Hagan’s testimony that he did not form the intent to permanently deprive Ohannessian of the gun until he reached his getaway car, Hagan would still be guilty of robbery, not theft, because he formed the intent to steal the gun while the robbery was still in progress. (See People v. Jones (2003) 30 Cal.4th 1084, 1112 [“The crime of robbery continues until the perpetrators have reached a place of safety.”].)
For these reasons, the evidence was sufficient to convict Hagan of robbery and he was not entitled to an instruction on the lesser included crime of theft.
II. THE CONVICTION OF ASSAULT WITH A FIREARM ON OHANNESSIAN.
Hagan contends that his conviction of assaulting Ohannessian with a firearm must be reversed for two independent reasons: the evidence was insufficient to sustain the conviction and the court erred by allowing the prosecutor to add this charge after both sides had rested and the court was in the process of instructing the jury. These contentions lack merit.
A. The Sufficiency Of The Evidence Of Assault With A Firearm.
Hagan argues the insufficiency of the evidence of assault is shown by his acquittal of attempted murder, thereby demonstrating that the jury did not believe Ohannessian’s statement to the police that after Hagan gained control of the gun he stepped back, extended his arm and fired at Ohannessian.
This argument is not persuasive. There are at least two reasons why the jury might have acquitted Hagan of attempted murder that are not inconsistent with their verdict on the assault: the jury might have believed that Hagan didn’t intend to kill Ohannessian but only to injure him sufficiently to disable him, or the jury might have believed Ohannessian and nonetheless acquitted him of attempted murder. “The jury may have been convinced of guilt but arrived at an inconsistent acquittal or not true finding ‘through mistake, compromise, or lenity[.]’” (People v. Santamaria (1994) 8 Cal.4th 903, 911, quoting United States v. Powell (1984) 469 U.S.57, 65.) Indeed, “it is impossible to know exactly why a jury found a defendant not guilty on a certain charge.” (United States v. Watts (1997) 519 U.S. 148, 155.)
B. The Late Amendment Adding The Assault Charge.
The case was tried on charges of attempted murder and robbery of Ohannessian and assault with a firearm on Baltekian. After all the evidence was presented and while the jury was being instructed, the prosecution moved to amend the information to add a fourth count charging assault with a firearm on Ohannessian with enhancements for personal use of a firearm and personal infliction of great bodily injury. The court permitted the amendment over Hagan’s objection. We review the court’s ruling for abuse of discretion. (People v. Bolden (1996) 44 Cal.App.4th 707, 716.)
Penal Code section 1009 states in relevant part: “The court in which an action is pending may order or permit an amendment of an . . . information . . . for any defect or insufficiency, at any stage of the proceedings . . . and the trial or other proceeding shall continue as if the pleading had been originally filed as amended, unless the substantial rights of the defendant would be prejudiced thereby, in which event a reasonable postponement, not longer than the ends of justice require, may be granted.”
Hagan argues the trial court abused its discretion in allowing the last-minute amendment to the information because its ruling denied him his due process rights to notice and an opportunity to be heard. We find no abuse of discretion.
Hagan did not ask to reopen his defense to produce additional evidence on the new charge of assaulting Ohannessian. Nor did he dispute the trial court’s comment that his defense to the new charge would be the same as his defense to the charge of attempted murder—that the gun went off by accident. The only claim of prejudice Hagan made in the trial court was that he had not had a chance to revamp his closing argument, scheduled for that afternoon, to address the new assault charge. Hagan did not ask for a continuance, however, in order to revise his closing argument. Ordinarily, the failure to seek a continuance precludes a showing of prejudice from the late introduction of a new charge. (Cf. People v. Medina (1995) 11 Cal.4th 694, 771.)
Hagan also contends that allowing the prosecution to amend the information to add the charge of assault with a firearm violated the spirit of People v. Birks (1998) 19 Cal.4th 108, 112-113, which held the defendant does not have the right to demand instructions on uncharged lesser related offenses. If the defendant cannot demand such an instruction, Hagan reasons, neither can the prosecution. He further argues that because assault with a firearm is a lesser related charge to the charge of attempted murder, allowing the prosecution to amend the information to add such a charge is the same as allowing the prosecution to demand an instruction on an uncharged lesser related offense. We disagree.
The holding in Birks is inapplicable to the case before us. The prosecution did not demand an instruction on an uncharged related offense of assault. Rather the prosecution requested and received leave of court to amend the information to charge the related crime of assault. The issues of fairness and notice to the opposing party which concerned the court in Birks were necessarily resolved by the trial court in permitting the amendment which, as we discussed earlier, was not an abuse of discretion. (See discussion at p. 7, ante.)
III. THE UPPER TERM SENTENCE.
The trial court sentenced Hagan to the upper term of 9 years for the assault with a firearm on Baltekian and the upper term of 10 years for the gun use enhancement. The court based the upper term sentences on its findings that the crime involved great violence, Hagan had served a prior prison term, he had performed unsatisfactorily on parole and there was planning involved in the robbery. Hagan acknowledges the fact of a prior conviction can be used to impose an upper term without being submitted to a jury and proved beyond a reasonable doubt. (People v. Black (2007) 41 Cal.4th 799, 818.) He contends, however, service of a prior prison term is a different aggravating factor from a prior conviction and is therefore subject to a jury determination beyond a reasonable doubt. He further contends the court’s sentencing denied him due process of law because he was not given prior notice of the aggravating factors the court would use to impose the upper term and there is no showing in the record that the court found any of the aggravating factors true beyond a reasonable doubt. We reject these contentions.
A prior felony conviction is a factor the trial court may consider in imposing an upper term sentence. (Cal. Rules of Court, rule 4.421, subds. (b) and (b)(3).) Hagan admitted a prior felony conviction for receiving stolen property. The record thus establishes the presence of an aggravating circumstance which required no jury finding and allowed the court lawfully to select the upper term for the assault on Baltekian and for the gun use enhancement. Hagan’s Sixth Amendment right to a jury trial was not triggered by the court’s reference to Hagan’s prior prison term, cited in the probation report but not admitted by Hagan, instead of his prior conviction for a different offense which he did admit. In Black, our Supreme Court held that “so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term . . . .” (People v. Black, supra,41 Cal.4th at p. 813.)
Although California Rules of Court, rule 4.421.1, subdivision (b)(3) lists a prior “prison term” as an aggravating factor, but not a “prior conviction,” the factors listed in rule 4.421.1 are not exclusive and the court may rely on other factors that are “reasonably related to the decision being made.” (Cal. Rules of Court, rule 4.408, subd. (a).) California courts routinely uphold the use of a prior conviction as an aggravating factor. (See, e.g. People v. Black, supra, 41 Cal.4th at p. 819.)
We find no merit in Hagan’s due process argument. Hagan was already on notice that a prior conviction could be considered as an aggravating factor in his sentencing. Furthermore, there was no need for the trial court to find beyond a reasonable doubt that Hagan had suffered a prior conviction because Hagan admitted it. (People v. Sandoval (2007) 41 Cal.4th 825, 836 [aggravating factors admitted by the defendant need not be tried].)
IV. THE ENHANCEMENTS FOR PERSONAL USE OF A FIREARM AND PERSONAL INFLICTION OF GREAT BODILY INJURY.
The jury found that in committing the assault on Ohannessian, Hagan personally used a firearm and inflicted great bodily injury and that in committing the robbery Hagan personally inflicted great bodily injury on Ohannessian.
Hagan contends the jury’s finding of personal use of a firearm in the assault is attributable to the trial court’s erroneous answer to a jury question and that the findings of personal gun use and infliction of great bodily injury are unsupported by the evidence. We conclude that Hagan forfeited the first contention by failing to raise it in the trial court before the court responded to the jury’s question. We further conclude substantial evidence supports both enhancements.
A. Personal Use Of A Firearm.
During the course of their deliberations the jurors asked: “In regards to the personal use of a firearm, if the firearm is being dually possessed, can either party be personally using the weapon?” The court and the parties agreed that the question referred to the struggle between Hagan and Ohannessian over Ohannessian’s gun. Hagan suggested that if the court intended to answer the question yes “it might be helpful . . . that maybe the court should just remind them that . . . they should consider the accident instruction again.” The prosecutor stated that he did not believe the court needed to reinstruct on accident and should answer the question yes. The court agreed with the prosecution and stated it would simply answer the question yes. Hagan responded, “All right” and the court so instructed.
Hagan forfeited his right to challenge the court’s answer because he did not object to it. Although instructional errors may be reviewed even though no objection was made in the lower court (Pen. Code, § 1259), errors in responses to questions from the jury are subject to the general rule that an appellate court will only review trial court rulings to which an objection was made (ibid.). (People v. Roldan (2005) 35 Cal.4th 646, 729 [“When a trial court decides to respond to a jury’s note, counsel’s silence waives any objection[.]”; People v. Kageler (1973) 32 Cal.App.3d 738, 746 [failure to object or move for mistrial could be construed as “‘tacit approval’” of the court’s response].)
B. Infliction Of Great Bodily Injury.
Penal Code section 12022.7, subdivision (a) states: “Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three years.”
Hagan maintains that the evidence was insufficient to support an enhancement for infliction of great bodily injury with respect to the robbery of Ohannessian. Under Hagan’s view of the evidence, Ohannessian’s injury resulted from his struggle with Hagan over Ohannessian’s gun. We do not find this argument convincing, however, because it ignores Ohannessian’s statement to the police that Hagan took the gun from him, stepped away and shot him.
DISPOSITION
The judgment is affirmed.
We concur: VOGEL, Acting P. J., JACKSON, J.
(Judge of the L. A. S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)