Opinion
G057389
04-02-2020
THE PEOPLE, Plaintiff and Respondent, v. GREGORY BERNARD HENKEL, Defendant and Appellant.
Sheila O'Connor, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Michael C. Keller and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 18NF0271) OPINION Appeal from a judgment of the Superior Court of Orange County, Larry Yellin, Judge. Affirmed and remanded with directions. Sheila O'Connor, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Michael C. Keller and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Defendant Gregory Bernard Henkel challenges his conviction for robbery and portions of his sentence.
Substantial evidence that defendant took a bottle of alcohol and a bag of cashews from a drugstore supported his conviction. Given the facts of the case, a unanimity instruction regarding the items taken was not required.
The trial court did not orally pronounce the imposition of fines and assessments against defendant, although these fines and fees are reflected in the court's minute order and in the abstract of judgment. The People did not object to the failure to impose the fines, which are mandatory unless the court states on the record its findings that there are compelling and extraordinary reasons not to impose them. The issue has therefore been waived, and we will direct the trial court to correct the minute order and the abstract of judgment to remove reference to the fines. The assessments, however, are mandatory in all circumstances. Even if the trial court were required to conduct an ability to pay hearing before imposing the assessments, we would find the error harmless because defendant will have ample ability to pay off the assessments during his incarceration.
We will direct the trial court to correct the abstract of judgment and minute order regarding defendant's fines, but otherwise affirm the judgment.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
During the afternoon of January 26, 2018, customer Linda Williams saw defendant yelling at a woman and hitting her car in the parking lot of a drugstore in Buena Park. Williams and defendant entered the store separately. Williams saw defendant place a bottle of alcohol into his pants; Williams told the drugstore manager, Gina Segura, what she had seen.
Segura first saw defendant in the snack aisle, where she observed him grab a bag of cashews and open the bag with his teeth. She did not see him eat any of the cashews. Segura approached defendant and told him he needed to pay for the cashews. Defendant mumbled and then said, "well what if I f---ing kill you?" Defendant moved toward Segura, who backed away as defendant continued cursing and threatening her. When Segura told defendant to stop and turned away from him, he grabbed her neck and made lewd remarks to her. Defendant eventually let go of Segura, put down the bag of cashews, and walked away. Segura told other employees that if defendant were to return to the store, they should call the police. Segura went to her office for about 15 minutes to compose herself because she was crying, scared, and upset.
Catherine Thomas, another drugstore employee working that afternoon, saw defendant leave the store, and return a few minutes later. Defendant yelled, "I'm going to f---ing kill you if you call the police." Defendant was holding a bottle of alcohol and threatening to throw it; Williams testified defendant was holding the same bottle she had seen him put down his pants earlier. Defendant put down the bottle of alcohol and again left the store.
Segura later told Thomas a security cap had been removed from an alcohol bottle and was found in the alcohol aisle. Thomas testified the bottle defendant was holding when he reentered the store did not have a security cap.
Defendant was arrested in the drugstore parking lot. Defendant swore and spit at the arresting officers. While being transported to the jail, defendant made several crude and threatening statements to the arresting officer; she testified she was not scared but was annoyed and potentially concerned due to his comments.
A jury convicted defendant of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)), making a criminal threat (§ 422, subd. (a)), resisting a peace officer (§ 148, subd. (a)(1)), and attempted criminal threats (§§ 664, subd. (a), 422, subd. (a)). In a bifurcated proceeding, the trial court found true allegations that defendant had two prior felony "strike" convictions (§§ 667, subds. (d), (e)(2)(A), 1170.12, subds. (b) & (c)(2)(A)), and two prior serious felony convictions (§ 667, subd. (a)(1)), and had served two prior prison terms (§§ 667.5, subd. (b)).
All further statutory references are to the Penal Code, unless otherwise noted.
The trial court sentenced defendant to a prison term of eight years four months. The minute order and the abstract of judgment reflect that the court imposed a restitution fine (§ 1202.4, subd. (b)), imposed and suspended a parole revocation fine (§ 1202.45), and ordered defendant to pay court operations and criminal conviction assessments (§ 1465.8, subd. (a)(1); Gov. Code, § 70373, subd. (a)(1)). The court's oral pronouncement of sentence does not mention the fines and assessments, however.
DISCUSSION
I.
SUFFICIENCY OF THE EVIDENCE OF ROBBERY
Defendant contends that there was insufficient evidence that he stole either the cashews or the alcohol. In addressing a sufficiency of the evidence claim, we review the entire record in the light most favorable to the trial court's judgment to determine whether it discloses substantial evidence from which a reasonable trier of fact could find defendant guilty beyond a reasonable doubt. (People v. Brooks (2017) 3 Cal.5th 1, 57.) Substantial evidence is evidence that is reasonable, credible, and of solid value, and includes circumstantial evidence and reasonable inferences that can be drawn from it. (Ibid.)
"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 force or fear." (§ 211.) Even if the defendant does not use force or fear when initially taking the property, he or she may be guilty of robbery if force or fear is used to retain the property or carry it away. (People v. McKinnon (2011) 52 Cal.4th 610, 686; People v. Estes (1983) 147 Cal.App.3d 23, 27-28.)
With respect to the bag of cashews, defendant contends that his actions opening the bag and then threatening the store manager were two separate offenses. Defendant also contends that he never intended to keep the cashews; he left them in the store before walking out. Segura testified, however, that defendant threatened her and grabbed her around the neck before setting the bag of cashews down and leaving the store. Segura also testified she observed defendant open the bag of cashews in the store with his teeth, from which a reasonable inference can be made that he intended to claim them for himself.
Defendant contends there was no evidence that he took the bottle of alcohol from the drugstore. Williams testified she saw defendant put the bottle of alcohol in his pants. Williams saw defendant threatening to throw the same bottle when he reentered the store. Thomas testified Segura told her a security cap from an alcohol bottle was left in the liquor aisle, and the bottle defendant was later holding did not have a security cap. The security alarm did not sound when defendant left the store, which supports the inference that the security cap had been removed. All of this is evidence that defendant intended to and did take the bottle of alcohol. Substantial evidence supported the claim of robbery of the bottle of alcohol, despite Segura's inability to remember the alcohol incident at trial.
Although Williams could not identify defendant at trial, she testified that the person she saw take the bottle of alcohol was the same person who grabbed Segura around the neck and threatened her, and was also the same person who came back into the drugstore brandishing the bottle of alcohol and making threats.
II.
UNANIMITY INSTRUCTION
Defendant was charged with a single count of robbery. Neither the information, nor the jury instructions, nor the verdict form specified which item was alleged to have been taken in the robbery—the bottle of alcohol or the bag of cashews. Defendant contends that under these circumstances, the trial court erred by failing to give the jury a unanimity instruction. During closing argument, defendant's trial counsel asked:
"So are we here for the theft of the bottle or the theft of the nuts? I don't know. That's not clear to me, and it's going to have to be clear to you when you go back to the jury room, and you're all going to have to agree.
"If some of you say I think he robbed with the bottle, and some of you say no, it was the nuts, then you can't convict him on that. You guys have to come to a meeting of the minds on what it is you're going to convict him of."
The prosecutor argued in rebuttal that defendant intended to take both the alcohol and the cashews, and he did so by force or fear.
"In a criminal case, 'the jury must agree unanimously the defendant is guilty of a specific crime. [Citation.] Therefore, cases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act.' [Citation.] Yet 'where the evidence shows only a single discrete crime but leaves room for disagreement as to exactly how that crime was committed or what the defendant's precise role was, the jury need not unanimously agree on the basis or, as the cases often put it, the "theory" whereby the defendant is guilty.' [Citation.] 'In deciding whether to give the instruction, the trial court must ask whether (1) there is a risk the jury may divide on two discrete crimes and not agree on any particular crime, or (2) the evidence merely presents the possibility the jury may divide, or be uncertain, as to the exact way the defendant is guilty of a single discrete crime. In the first situation, but not the second, it should give the unanimity instruction.'" (People v. Covarrubias (2016) 1 Cal.5th 838, 877-878.)
"A unanimity instruction is required if there is evidence that more than one crime occurred, each of which could provide the basis for conviction under a single count." (People v. Grimes (2016) 1 Cal.5th 698, 727.)
"Where, however, the evidence suggests that a defendant committed only one discrete criminal action—but may have done so in one of several different ways—no unanimity instruction is required. [Citations.] Unanimity is not required in this situation even if the jurors might conclude that the defendant is guilty based on different facts, or on different findings about the acts the defendant committed or his mental state. [Citations.] That is because, in this situation, the jury's guilty verdict will still reflect unanimous agreement that the defendant committed a single crime." (People v. Quiroz (2013) 215 Cal.App.4th 65, 73-74.)
In People v. Kent (1981) 125 Cal.App.3d 207, 211, the defendant and another man entered the victim's home to use the phone. After using the phone, the defendant used the victim's bathroom. (Ibid.) The victim discovered that several $1 bills were missing from her purse, which had been near the telephone. (Ibid.) When the victim questioned the defendant about the missing money, the defendant struck her in the face, brandished a knife, and demanded more money. (Ibid.) The victim then saw the other man emerge from her bedroom, carrying something. (Ibid.) After the two men left, the victim found other items missing. (Ibid.)
On appeal, the defendant argued the trial court erred by failing to give the jury a unanimity instruction. (People v. Kent, supra, 125 Cal.App.3d at p. 212.) The appellate court rejected his argument that all jurors must agree on at least one of the items taken in order to sustain his conviction for robbery. (Id. at pp. 212-213.) The appellate court also concluded that any error would have been harmless because the victim's uncontradicted testimony had to have been believed by the jury in order to convict defendant. (Id. at p. 214.)
In this case, the evidence showed that defendant committed a single count of robbery, in which two items were taken through one distinct use of force or fear.
In addition, a unanimity instruction was not required because the acts of taking the bottle of alcohol and taking the bag of cashews were so closely connected that they formed part of a single criminal act. "[A] '"unanimity instruction is not required when the acts alleged are so closely connected as to form part of one transaction."' [Citation.] Specifically, '[t]he "continuous conduct" rule applies when the defendant offers essentially the same defense to each of the acts, and there is no reasonable basis for the jury to distinguish between them.'" (People v. Williams (2013) 56 Cal.4th 630, 682; see People v. Curry (2007) 158 Cal.App.4th 766, 773-774 [unanimity instruction not required when two items taken from the victim by spraying her with mace and hitting her in the head with a garbage can].) Defendant took the bottle of alcohol by removing the security cap and placing the bottle in his pants, then took the bag of cashews by opening the bag with his teeth. Defendant then used force or fear to retain both by grabbing Segura around the neck and making threats. His defense was the same with respect to both takings—that he was too inebriated to form the necessary intent. The taking of both items was part of one continuing criminal act.
III.
PRONOUNCEMENT OF SENTENCE
The parties agree that the trial court did not include any fines, fees, or assessments when it orally pronounced sentence on defendant. The minute order, however, reflects imposition of a $300 restitution fine (§ 1202.4, subd. (b)), imposition and stay of a $300 parole revocation fine (§ 1202.45), an order to pay four $40 court operations assessments (§ 1465.8, subd. (a)(1)), and an order to pay four $30 criminal conviction assessments (Gov. Code, § 70373, subd. (a)(1)). Defendant argues that the minute order and abstract of judgment should be modified to delete the references to the fines and assessments. The Attorney General counters that the matter should be remanded for resentencing to allow the trial court to orally pronounce the fines and assessments.
The failure to impose a mandatory fine results in an unauthorized sentence. (People v. Rodriguez (2000) 80 Cal.App.4th 372, 376.) The restitution fine under section 1202.4 is mandatory unless the trial court finds "compelling and extraordinary reasons for not doing so and states those reasons on the record." (People v. Wall (2017) 3 Cal.5th 1048, 1075-1076.) The parole revocation fine under section 1202.45 must be imposed in the same amount as the restitution fine and stayed. (People v. Smith (2001) 24 Cal.4th 849, 851-852.)
In a case in which the trial court failed to impose fines under sections 1202.4 and 1202.45 and failed to state on the record any reasons for not imposing those fines, the Supreme Court held that the People had waived any objection to the trial court's omission. (People v. Tillman (2000) 22 Cal.4th 300, 303 (Tillman).) The Supreme Court had previously held that the waiver doctrine "should apply to claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices." (Id.at p. 302, quoting People v. Scott (1994) 9 Cal.4th 331, 353 (Scott).) The court explained its reasoning thus: "Although the court is required to impose sentence in a lawful manner, counsel is charged with understanding, advocating, and clarifying permissible sentencing choices at the hearing. Routine defects in the court's statement of reasons are easily prevented and corrected if called to the court's attention. As in other waiver cases, we hope to reduce the number of errors committed in the first instance and preserve the judicial resources otherwise used to correct them." (Tillman, supra, 22 Cal.4th at p. 303, quoting Scott, supra, 9 Cal.4th at p. 353.) While Scott and the case on which it relied, People v. Welch (1993) 5 Cal.4th 228, involved defendants who had waived the right to challenge discretionary sentencing errors, the Tillman court found no reason to treat the People's failure to challenge a discretionary sentencing error in the trial court any differently. (Tillman, supra, 22 Cal.4th at p. 303.)
Based on this Supreme Court authority, we conclude the People forfeited the right to challenge the trial court's failure to orally pronounce a restitution fine and a parole revocation fine under sections 1202.4 and 1202.45. We remand the matter with directions to correct the minute order and the abstract of judgment to delete the restitution and parole revocation fines.
The court operations and criminal conviction assessments are mandatory. The trial court does not have any discretion to reduce or eliminate these assessments, meaning that the orally pronounced sentence without assessments was unauthorized. Citing People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), defendant argues the trial court's failure to orally pronounce these assessments means that the court implicitly found defendant did not have the ability to pay them.
Defendant argues on appeal the finding required by Dueñas is mandatory. Because we have no horizontal stare decisis in California (People v. Kisling (2014) 223 Cal.App.4th 544, 547-548), we are not required to follow the Dueñas holding.
On a vastly different set of facts, the Dueñas court held that due process of law requires that a trial court determine a defendant's "present ability to pay" before imposing court facilities and operations assessments. (Dueñas, supra, 30 Cal.App.5th at p. 1164.) Assuming for purposes of this opinion only that Dueñas was correctly decided, any error in failing to hold an ability to pay hearing is harmless where, as here, the defendant's sentence is long enough that he or she would be able to earn enough in prison wages while incarcerated to pay off the assessments. (See, e.g., People v. Jones (2019) 36 Cal.App.5th 1028, 1035 [six years, with 332 days of presentence credits]; People v. Johnson (2019) 35 Cal.App.5th 134, 139-140 [eight years].)
Recently, the California Supreme Court granted a petition for review of an opinion addressing a Dueñas argument, on the following issues: (1) "Must a court consider a defendant's ability to pay before imposing or executing fines, fees, and assessments?"; and (2) "If so, which party bears the burden of proof regarding defendant's inability to pay?" (People v. Kopp (Nov. 13, 2019, S257844) 2019 Cal. Lexis 8371.) --------
The minute order and abstract of judgment correctly state the assessments imposed against defendant.
DISPOSITION
We direct the trial court to (1) correct the minute order and prepare an amended abstract of judgment to delete reference to the fines imposed against defendant under sections 1202.4 and 1202.45, and (2) forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
FYBEL, J. WE CONCUR: BEDSWORTH, ACTING P. J. ARONSON, J.