Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F06229
Retired Associate Justice of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
A jury found defendant Senica Rayshawn Hill guilty of two counts of second degree robbery (Pen. Code, § 211) and one count of making terrorist threats (§ 422), and found he personally used a firearm during the commission of both robberies (§ 12022.53, subd. (b)). The same jury found defendant Antonio Young guilty of two counts of second degree robbery (§ 211), also finding he was armed with a firearm during the commission of those offenses (§ 12022, subd. (a)(1)). The court found Young had a prior “strike” conviction. (§ 667, subd. (b)-(i).) Hill was sentenced to an aggregate term of 20 years in state prison and Young to an aggregate term of 13 years four months in state prison.
Hereafter, undesignated section references are to the Penal Code.
On appeal, defendant Hill contends: (1) the trial court’s failure to conduct a section 1368 competency hearing was prejudicial error; (2) the reasonable doubt instructions were erroneous; (3) imposition of the upper term violated his Sixth and Fourteenth Amendment rights; and (4) the minute order and the abstract of judgment are not consistent with the court’s oral pronouncement of judgment. Young also appeals, contending: (1) his conviction for the robbery of Ashok Chandra was not supported by substantial evidence, and (2) imposition of the upper term violated his Sixth and Fourteenth Amendment rights. Each defendant joins in the claims raised by the other. As to defendant Hill, we shall direct that the abstract of judgment be corrected, remand for further hearing on the issue of payment of victim restitution, as well as his ability to pay authorized fees, and otherwise affirm the judgment. As to defendant Young, we shall correct a clerical error in the abstract of judgment and affirm the judgment.
Facts and Procedural History
These cases arise from robbery incidents at two different locations, involving two different victims.
On June 22, 2006, Ashok Chandra pulled into a Valero Gas Station on 47th Avenue near 47th Street in Sacramento. Chandra went inside the station to buy a soda while he waited for his gas to pump. As he stood in line, he noticed Hill and Young standing together talking and looking at him. Chandra noticed Hill change his T-shirt.
Chandra paid for his soda, walked back outside and stood by his truck, filling a gas container he brought with him. Hill approached Chandra and asked if he had change for a $20 bill. Chandra said he did not. Hill asked several more times, to no avail. Hill said he knew Chandra had change because he had seen Chandra’s wallet. He reached toward Chandra’s pocket several times, but Chandra pushed his hand away each time. Hill lifted his shirt, revealing a handgun stuck in his waistband. Fearing for his life, Chandra let Hill take his wallet and cell phone. Hill ran across the street to another gas station, where he got into a light blue, four-door sedan and sped away.
At trial, Chandra testified that he later remembered a second individual from inside the store was standing behind him and holding him during the robbery. However, he admitted his memory was not clear on that point.
Chandra identified Hill on the gas station’s surveillance videotape. The tape showed that Hill and Young entered the store at the same time, and focused on Chandra as they stood together talking. Chandra left the store, followed by Hill. Young briefly remained in line, watching Hill, and then left the store a minute later. Videotape from a store camera shows a light blue, four-door sedan moving through the Valero parking lot approximately 20 seconds later. Chandra told detectives the vehicle depicted in the video leaving the Valero station looked similar to the one Hill got into following the robbery. Photographs and registration documents confirmed that Young owned a light blue, four-door sedan. Detective Mike French later identified Hill and Young in the Valero surveillance videotape.
On June 30, 3006, Richard Rosa walked to his job at DD Discounts on Stockton Boulevard in Sacramento. His walk took him past Der Weinerschnitzel, where he noticed two men standing outside. When he arrived at DD Discounts, the store was still closed. As he waited to be let in, three individuals, including the two who had been standing outside Der Weinerschnitzel, approached. One of them, whom Rosa later identified as Hill, stood in front of Rosa and made small talk while the other two men positioned themselves behind Rosa. Hill pulled a gun out of his pocket, stuck it in Rosa’s ribs, and demanded his “loot” and a ring Rosa was wearing. Rosa gave Hill his money and the ring, and Hill and the other two men ran off. Rosa identified Hill in the store’s surveillance videotape and in a subsequent photo lineup.
Just prior to the robbery that morning, Nancy Skow, a manager at Der Weinerschnitzel, had a confrontation with Hill and two other men in the restaurant. Skow eventually told Hill and his two cohorts “not to come back in the [restaurant] again.” After the three men left the restaurant, Skow noticed them walking toward DD Discount and, four to five minutes later, saw them running from the store. Skow first identified Hill in the restaurant’s surveillance videotape, identified him a second time with “one hundred percent” certainty in a subsequent field showup, and ultimately identified him at trial. Skow identified Young with “eighty percent” certainty in the field showup, and again at trial.
Mike French, a detective who was also working on the Rosa robbery, identified Hill and Young in the Valero Gas Station surveillance videotape.
Hill and Young were charged together by consolidated complaint. Count one charged both defendants with the robbery of Chandra and specially alleged that Hill personally used a firearm and Young was armed with a firearm. Count two charged both defendants with the robbery of Rosa, specially alleging personal use of a firearm as to Hill and an arming enhancement as to Young. Count three charged Hill with making terrorist threats against another victim. The complaint also alleged Young had a prior serious felony conviction. (§§ 667, subd. (b)-(i), 1170.12.)
On the eve of trial, at defendant Hill’s request, the court held a Marsden hearing. Hill explained the bases for his request, including that he had expressed to his attorney “that I’m not understanding and things have to be explained to me very carefully” and told counsel “numerous times that I was hearing voices, and I have nightmares of being found guilty of a crime that I didn’t commit.” The court rejected all of the bases for the motion with the exception of one related to a potential alibi witness. The matter was continued to allow counsel time to gather information on that issue.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
The following morning, defense counsel informed the court he had a doubt as to defendant Hill’s competency. The court first completed the Marsden hearing, denying defendant’s request for substitute counsel, and then turned to the competency issue. Defense counsel explained that the basis for his doubt was the fact that defendant had told him the prior morning, during the Marsden hearing, that “he was hearing voices.” The following discussion took place between the court and Hill’s counsel, attorney Hansen:
“THE COURT: Tell me how the subject came up and what he said in the morning.
“MR. HANSEN: Mr. Hill was talking to me about what was happening today, and that he was hearing voices, and that he wanted a Marsden [h]earing. And there were probably a couple of other comments that I can’t recall exactly what he said but it was in the context of preparing today or getting ready to start the trial.
“THE COURT: All right. And then yesterday during the Marsden [h]earing I heard him say something about hearing voices. Is that what you’re referring to?
“MR. HANSEN: I am, Your Honor.
“THE COURT: Anything else?
“MR. HANSEN: The fact that he indicated that he was filing a lawsuit against me caused me some concern.
“THE COURT: Concern about what?
“MR. HANSEN: Well, I haven’t been served with any lawsuit. I don’t know if that is true. It’s an odd statement. I find it to be an odd statement.
“THE COURT: Have you noticed any other indication of a possible mental disorder before yesterday in your interactions with Mr. Hill, Mr. Hansen?
“MR. HANSEN: I would say that I’m not a doctor, but I will inform the court now that I discussed this issue with others last night in contemplation of expressing the doubt. But I believe there is a condition of fixation that may be occurring. But I
“THE COURT: Would you please answer my question, Mr. Hansen[?]
“MR. HANSEN: Other than that, I have not observed anything else that I would say is a mental disorder.
“THE COURT: Do you remember what my question was?
“MR. HANSEN: I believe your question was, have I observed any other activities or behaviors that indicate there [were] any mental problems.
“THE COURT: Before yesterday morning.
“MR. HANSEN: Correct.
“THE COURT: I take it your answer is no?
“MR. HANSEN: The answer is no.
“THE COURT: Anything you would like to add, Mr. Hansen?
“MR. HANSEN: No.”
The court found, “[b]ased on what I heard from Mr. Hill yesterday, and based on what I heard from Mr. Hansen this morning,” that defendant was engaging in “manipulative malingering,” and concluded there was no substantial evidence of incompetence and no need to suspend the proceedings.
The jury found defendants guilty of all charges and found all of the special allegations true. In a separate court trial, the court found the allegation of Young’s prior serious felony conviction true. The court imposed sentence as follows: Hill was sentenced to an aggregate prison term of 20 years, comprised of five years (the upper term) as to count one, one year (one-third the middle term) on count two, and eight months (one-third the middle term) on count three, plus 10 years for the firearm use enhancement on count one and three years four months for the firearm use enhancement on count two. Young was sentenced to an aggregate prison term of 13 years four months, comprised of 10 years (the upper term, doubled pursuant to the prior strike) on count one, two years (one-third the middle term, doubled pursuant to the prior strike) on count two, plus one year for the arming enhancement as to count one and four months for the arming enhancement as to count two.
Young’s sentence included time imposed on two additional cases pending against him. That time was either stayed pursuant to section 654 or ordered to be served concurrently.
The abstract of judgment incorrectly reflects the sentence on count two as two years four months, and the term on the arming enhancement for count two as one year. However, the total sentence is correct. We will address this error in part VI of the Discussion.
The court ordered Hill to pay various fees and fines, including a $200 restitution fine pursuant to section 1202.4, subdivision (b), and a $200 restitution fine (suspended) pursuant to section 1202.45.
The court also ordered Young to pay various fees and fines, including a $200 restitution fine pursuant to section 1202.4, subdivision (b), a $200 restitution fine (suspended) pursuant to section 1202.45, and $1,788 in victim restitution “to be jointly and severally liable for that amount with the codefendant pursuant to [s]ection 1202.4.” All other fees, fines, and assessments were waived.
Defendants filed timely notices of appeal.
Discussion
I
Section 1368 Competency Hearing
Defendant Hill contends the trial court erred by failing to conduct a section 1368 hearing after he informed his counsel he was hearing voices.
Section 1368, subdivision (b) states, in pertinent part: “If counsel informs the court that he or she believes the defendant is or may be mentally incompetent, the court shall order that the question of the defendant’s mental competence is to be determined in a hearing which is held pursuant to Sections 1368.1 and 1369.”
“Whether to order a present sanity hearing is for the discretion of the trial judge, and only where a doubt as to sanity may be said to appear as a matter of law or where there is an abuse of discretion may the trial judge’s determination be disturbed on appeal. But, when defendant has come forward with substantial evidence of present mental incompetence, he is entitled to a section 1368 hearing as a matter of right under Pate v. Robinson[ (1966)] 383 U.S. 375 [15 L.Ed.2d 815].” (People v. Pennington (1967) 66 Cal.2d 508, 518 (Pennington).)
“[T]his doubt which triggers the obligation of the trial judge to order a hearing on present sanity is not a subjective one but rather a doubt to be determined objectively from the record.” (People v. Sundberg (1981) 124 Cal.App.3d 944, 955-956.)
Defendant Hill first raised the issue of competency during the hearing on his Marsden motion, at which time counsel informed the court that defendant had, the prior day, indicated that he had been hearing voices. After inquiring further of defense counsel and learning counsel had observed no other behavior indicating mental incompetency, the court satisfied itself as to defendant’s competency to stand trial.
Under the substantial evidence test, more is required to raise a doubt than mere bizarre actions, bizarre statements, statements of defense counsel that defendant is incapable of cooperating in his defense, or psychiatric testimony that defendant is immature, dangerous, psychopathic, or homicidal or some reference to defendant’s resulting inability to assist in his own defense. (People v. Laudermilk (1967) 67 Cal.2d 272, 285; People v. Halvorsen (2007) 42 Cal.4th 379, 403.)
Here, the statement made by defendant Hill’s counsel to the court, while significant, in our view cannot raise the requisite doubt. Counsel told the court defendant had told him he was hearing voices. He did not, however, indicate that defendant was not able to understand the nature and purpose of the proceedings against him or assist in his defense. (See Pennington, supra, 66 Cal.2d at p. 518 [present mental incompetence means the defendant is “incapable, because of mental illness, of understanding the nature of the proceedings against him or of assisting in his defense”].) The objective evidence before the court indicated the contrary, as defendant Hill demonstrated his ability to understand the proceedings and articulate, in a coherent manner, the basis for his Marsden motion and his desire that certain witnesses be called to testify. Absent any other objective indicia of mental incompetency, or any evidence to suggest that defendant’s alleged hearing of voices somehow rendered him incapable of understanding the proceedings or assisting in his defense, defense counsel’s representation to the court does not rise to the level of substantial evidence of a doubt as to defendant’s competence. In that case, the decision whether or not to order a section 1368 competency hearing was within the court’s discretion. (Pennington, supra, 66 Cal.2d at p. 518.) Given defendant Hill’s ability to participate in the motion proceedings and the timing of the competency claim on the eve of trial and during a Marsden hearing, as well as the court’s finding of “manipulative malingering,” the trial court did not abuse its discretion.
II
Reasonable Doubt Instructions
Defendants contend it was error to instruct the jurors to decide the facts based solely on the evidence presented in court as opposed to the absence of evidence, and that use of the “abiding conviction” language in CALCRIM No. 220 constitutes reversible error per se. In People v. Guerrero (2007) 155 Cal.App.4th 1264, we rejected these same contentions of error. We continue to believe that Guerrero was correctly decided. Accordingly, we reject both contentions.
III
Imposition of Upper Term Sentences
Defendants contend the trial court’s imposition of an upper term sentence as to count one denied them their constitutional right to due process and to have a jury determine factors in aggravation beyond a reasonable doubt as set forth in Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856] (Cunningham), Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely), and Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi). We disagree.
In People v. Black (2007) 41 Cal.4th 799 (Black II), the California Supreme Court applied the Apprendi line of cases, as interpreted in Cunningham, to California’s Determinate Sentencing Law. It concluded “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 by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury.” (Black II, supra, 41 Cal.4th at p. 813.)
Defendant Young acknowledges that we are bound by our Supreme Court’s decision in Black II, as well as its companion case, People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval), but nonetheless asserts his claim of sentencing error for the purpose of “exhausting his state remedies and preserving the issues for federal review.”
The presence of a single aggravating circumstance found in accordance with the Apprendi rule renders a defendant eligible for the upper term. (Black II, supra, 41 Cal.4th at p. 815.) Therefore, “imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Id. at p. 816.) “[A]ny additional factfinding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial.” (Id. at p. 812.)
The Supreme Court further held that the prior conviction exception rendering the defendant eligible for an upper term sentence is not to be read “too narrowly.” (Black II, supra, 41 Cal.4th at p. 819.) Numerous cases have interpreted this exception “to include not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions,” such as whether defendant’s prior convictions were “‘numerous or of increasing seriousness’” (Cal. Rules of Court, rule 4.421(b)(2)).” (Black II, supra, 41 Cal.4th at pp. 819, 820.)
Here, in sentencing Hill to the upper term, the trial court relied on two facts: (1) the fact that “defendant’s prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous and of increasing seriousness,” and (2) the fact that “defendant was on parole when the crimes were committed.” Based on those facts together, or either fact alone, defendant Hill was eligible to receive the upper term. (Black II, supra, 41 Cal.4th at p. 816.) Any additional factfinding by the court does not render defendant’s sentence unlawful. (Id. at p. 812.)
Similarly, the trial court sentenced Young to the upper term based on several facts, including the fact that: (1) “[defendant’s] prior convictions as an adult and sustained petitions in juvenile delinquency proceedings are numerous and [of] increasing seriousness,” and (2) “[defendant was] on . . . probation on the present crime[s] he committed.” Either of those facts alone rendered defendant Young eligible to receive the upper term (Black II, supra, 41 Cal.4th at p. 816), and any additional factfinding by the court does not render his sentence unlawful (id. at p. 812).
Defendants urge that Apprendi, Blakely, and Cunningham were wrongly interpreted by the California Supreme Court, and that Black II and Sandoval were wrongly decided. As defendants correctly concede, however, we are bound by our Supreme Court’s decisions in those cases. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) There is no sentencing error here.
IV
Sufficiency of Evidence to Support Young’s Conviction as Aider and Abettor in Robbery
Defendant Young contends the evidence was insufficient to support his conviction as an aider and abettor in the robbery of Chandra at the Valero gas station. We disagree.
“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.) Robbery can be committed by frightening a victim into surrendering property. (People v. Carrasco (2006) 137 Cal.App.4th 1050, 1057.)
“To prove that a defendant is an accomplice, . . . the prosecution must show that the defendant acted ‘with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.’ [(People v. Beeman (1984) 35 Cal.3d 547,] 560 [(Beeman)], italics in original.) When the offense charged is a specific intent crime, the accomplice must ‘share the specific intent of the perpetrator’; this occurs when the accomplice ‘knows the full extent of the perpetrator’s criminal purpose and gives aid or encouragement with the intent or purpose of facilitating the perpetrator’s commission of the crime.’ (Ibid.)” (People v. Prettyman (1996) 14 Cal.4th 248, 259 (Prettyman).)
“[A]n act which has the effect of giving aid and encouragement, and which is done with knowledge of the criminal purpose of the person aided, may indicate that the actor intended to assist in fulfillment of the known criminal purpose.” (Beeman, supra, 35 Cal.3d at p. 559.)
There is substantial evidence that Young knew of Hill’s criminal purpose and aided him in fulfilling that purpose. Young and Hill entered the Valero station together. As they stood in line together, they talked with each other, focusing their attention on Chandra as he completed his transaction. Hill changed his shirt and then followed Chandra out of the store. Meanwhile, Young remained inside, keeping his eyes on Hill and paying the cashier. Within minutes, Young hurriedly paid and left the station. Although the surveillance videotape does not show Young outside the store, it does show a car identical to the one Young owns leaving the station 20 seconds after Young leaves the store. Moments later, Hill robs Chandra and flees to another gas station across the street, where he gets into a car identical to Young’s and speeds away. From that series of events, it is reasonable to infer defendants spotted Chandra in line paying and decided to rob him, and that Young would leave and ready the getaway car once Hill set the wheels in motion by initiating contact with Chandra outside the store.
Young argues neither the victim nor anyone else identified him at the scene. While that may be true, Detective French placed Young at the scene with Hill when he identified him on the store’s surveillance videotape.
Young argues further that, because there is no evidence he knew Hill had a gun or knew Hill intended to use the gun in some way during the robbery, “at most the evidence can suggest that he may have intended to assist in a theft of Chandra’s wallet.” Not so. As the jury was instructed, robbery requires that the perpetrator take the property of the victim against the victim’s will and that the perpetrator use force or fear to take the property or to prevent the victim from resisting. (CALCRIM No. 1600.) As the People correctly point out, firearm use is not an element of the crime. That is, Hill need only have used force or fear to take Chandra’s property, which he did, and Young need only have had knowledge of Hill’s plan to take property from Chandra and then aided or encouraged Hill to facilitate that crime. (Prettyman, supra, 14 Cal.4th at p. 259.) Young’s actions from the time he entered the store until the time Hill jumped in the getaway car after the robbery is sufficient circumstantial evidence that Young aided in and abetted the robbery. Young’s conviction on count one is supported by substantial evidence.
V
Imposition of Victim Restitution as to Defendant Hill
Defendant Hill contends that neither the $1,799 victim restitution, $213.37 main jail booking fee, nor the $23.50 main jail classification fee reflected in the minute order on the judgment and sentencing and the abstract of judgment were part of the court’s oral pronouncement of judgment and must be stricken. The People agree that the abstract of judgment must be corrected, but contend that the matter must be remanded for further hearing on victim restitution and authorized fees.
“‘It is well established that when the trial court pronounces a sentence which is unauthorized by the Penal Code that sentence must be vacated and a proper sentence imposed whenever the mistake is appropriately brought to the attention of the trial court or the reviewing court.’ This rule also applies to sentences which are unauthorized because of an error in the matter of restitution.” (People v. Rivera (1989) 212 Cal.App.3d 1153, 1163-1164, quoting People v. Benton (1979) 100 Cal.App.3d 92, 102; see also People v. Rowland (1988) 206 Cal.App.3d 119, 126-127.) Penal Code section 1202.4, subdivision (f) requires victim restitution unless certain findings are made; authorized fees are conditioned on a defendant’s ability to pay. (Gov. Code, § 29550.2.) Defendant Hill must be remanded for a hearing regarding victim restitution and his ability to pay authorized fees. (People v. Zackery (2007) 147 Cal.App.4th 380, 389.) The unpronounced victim restitution and booking and classification fees that were mistakenly entered in Hill’s abstract of judgment must be stricken.
VI
Clerical Error in Abstract of Judgment
The People point out an error in the abstract of judgment regarding defendant Young: the total sentence of 13 years four months is correct; however, defendant Young’s sentence in count 2 should be two years, not two years four months, and the arming enhancement should be four months, not one year. The record of the court’s oral pronouncement of judgment bears that error out. We shall direct the trial court to amend the abstract of judgment accordingly.
Disposition
Defendant Young’s judgment is affirmed. The trial court is directed to prepare a corrected abstract of judgment for Young showing a sentence of two years for count 2 and four months for the arming enhancement, and to forward a certified copy of defendant Young’s corrected abstract to the Department of Corrections and Rehabilitation.
As to defendant Hill, the unpronounced $1,799 in victim restitution, the $213.37 booking fee and the $23.50 classification fee mistakenly entered in Hill’s abstract of judgment are stricken. Defendant Hill is remanded to the trial court for a hearing on victim restitution and his ability to pay authorized fees. In all other respects defendant Hill’s judgment is affirmed.
We concur: SCOTLAND, P. J., SIMS, J.