Opinion
D073325
12-19-2018
THE PEOPLE, Plaintiff and Respondent, v. SERGIO ONEY LOPEZ, Defendant and Appellant.
Allison H. Ting, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Kelly Johnson and Christine Levingston Bergman, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SWF1300090) APPEAL from a judgment of the Superior Court of Riverside County, Bernard J. Schwartz, Judge. Affirmed in part, reversed in part and remanded with directions. Allison H. Ting, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Kelly Johnson and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found Sergio Lopez guilty of 46 counts of burglaries, robberies, and false imprisonment, and several carjacking counts. The crimes arose during numerous incidents over a six-month period in Riverside County. The jury was unable to reach a verdict on charges relating to one additional incident. On four carjacking counts, the jury found Lopez personally used a deadly and dangerous weapon (a knife). (Pen. Code, § 12022, subd. (b)(2).)
All statutory references are to the Penal Code. For readability, we shall omit the word "subdivision" when referring to section 12022, subdivision (b)(2).
The court imposed a sentence of 48 years 6 months. Of relevance here, the sentence included one-year terms for each of the three knife-use enhancements attached to the subordinate carjacking offenses. (§ 12022(b)(2).)
On appeal, Lopez challenges the jury's findings that he committed robberies, burglary, and false imprisonment at a Payless Shoe Source store (Payless) in March 2011. Lopez contends there was insufficient evidence to show he was the perpetrator of these crimes. We reject this contention. The jury had a factual basis to find the prosecution met its burden on the Payless counts based on eyewitness testimony and facts showing these crimes bore strong similarity to other crimes committed by Lopez during the same six-month period in the same general location.
On his sentence, Lopez contends the trial court improperly imposed the one-year terms on the subordinate term knife-use enhancements, and argues the court should have instead imposed one-third the two-year midterms (eight months). (§ 12022(b)(2).) The Attorney General responds that we should remand to permit the trial court to clarify its intent regarding the sentence on these enhancements. We conclude a remand is the appropriate disposition on this discrete sentencing issue. As explained below, on remand, the court shall (1) exercise its discretion to select the upper, middle, or lower term for the section 12022(b)(2) enhancements; (2) explain reasons for this sentencing choice; and (3) impose one-third of these selected terms, consecutive to the subordinate terms. We affirm the judgment in all other respects.
FACTUAL SUMMARY
Between November 2010 and May 2011, Lopez committed numerous robberies and related crimes in small retail stores in the Riverside County area. The victims were generally female employees and/or female customers, and the robberies occurred in the early evening hours shortly before store closing. In most of the robberies, Lopez required some or all of the victims to move to a back room or back bathroom. In many of the robberies, Lopez also stole personal items from his female victims.
Although Lopez challenges the sufficiency of the evidence on only one of these incidents (the Payless crimes), to properly resolve this appellate challenge it is helpful to summarize the evidence of the other incidents for which Lopez was also found guilty. This description will place the Payless crimes in context and show Lopez's pattern of criminal conduct was repeated during this incident. We describe the crimes in chronological order.
1. Angelina's Shoes
In the late afternoon of November 5, 2010, Lopez entered Angelina's Shoes in Hemet, wearing all dark clothing including a black hoodie, a black hat, and a black bandanna or other type of cloth over his face. He approached the female employee, who was standing behind the cash register counter. After saying he had a gun, Lopez said, "You know what this is. You know what to do. Where's the safe?"
The employee opened the cash register and said there was no safe. After Lopez took the money out of the cash register, he told her to go in the back room, and said something like do "not . . . move for ten minutes." Before leaving the store, Lopez stole the employee's wallet from her purse. The employee's identification card was later found at Lopez's residence. The employee told officers the perpetrator had distinctive, light colored eyes, appearing to be "greenish-blueish."
2. California Furniture
The next day, on November 6, shortly before 6:00 p.m., Lopez walked into a California Furniture store in Cathedral City. As he entered, he put a cloth over his mouth and put on some type of glasses. He was wearing a dark blue hooded sweatshirt and dark blue pants. Lopez pointed a gun at the store owner, asked her if she had car keys and for the location of the cash register. She said she did not have car keys, and the store did not have a cash register.
Lopez told the owner to go to the back of the store and lay down on her stomach. After walking back into the middle of the store, Lopez returned and told the owner to go into the restroom and not come out. Lopez left the store soon after. He took the store owner's purse, laptop computer, and cell phones. The owner reported the crime shortly after, and said the robber was a Hispanic male. Several months later, police located the owner's purse and laptop computer during a search of Lopez's residence.
3. True Republic
Two months later, at about 6:00 p.m. on December 30, Lopez robbed a True Republic clothing store in Hemet. The store owner and her daughter were in the front of the store near the cash register. Wearing a hoodie with a checkered-type pattern and black gloves, Lopez put a black mask or bandanna over his face, entered the store, and pointed a gun at the two women.
Lopez told the owner to give him all of the money from the cash register, and when she dropped some of the money, he began yelling at her. Lopez then directed the daughter to the safe (located in the back of the store) to get additional money. When the daughter had trouble opening the safe, Lopez became upset and accused her of stalling. The store owner then opened the safe, and gave Lopez all of the money.
While Lopez was in the back room with the owner and daughter, a female customer entered the store and began shopping. Lopez pointed his gun at her, and ordered her to the back of the store. Lopez then put the customer into the bathroom with the owner and daughter, and told them to lock the door and stay for 15 minutes. Before leaving, Lopez stole the daughter's wallet. Video surveillance of the incident was shown to the jury.
4. Juice It Up (Rancho Mirage)
The next week, on January 5, 2011, Lopez entered a Juice It Up store in Rancho Mirage near closing time. He was wearing a black hoodie, jeans or pants, and the lower part of his face was covered with a bandanna or cloth material. Two female employees were working that night. He approached one of the employees, who was sweeping in the front part of the store, pointed a gun at her, and ordered her to the back of the store.
As Lopez was forcing this employee to the back of the store, he told the co-employee to take the money out of the cash register and put it in a bag. After Lopez left the employee in the back, he went to the cash register area to get the money.
When Lopez returned to the back room with the co-employee, he told both women to put their belongings into a hamper and then go into the back office. He asked if there was any other money in the store. Lopez took one employee's wallet when he left the store.
One employee told responding police officers that the perpetrator's eyes were light brown. She said he appeared to be Hispanic, and later identified Lopez in a photographic lineup because she "remember[ed] the eyes." In another photographic lineup, the other employee identified two possible individuals, one of whom was Lopez. Video surveillance of the incident was shown to the jury.
5. Sally's Beauty Supply
Six days later, on January 11 around 8:00 p.m., Lopez walked into a Sally's Beauty Supply store in Banning, wearing a hoodie and a black bandanna over his face. Two female employees were working in the store. Lopez pointed a gun at one employee and said something like, "don't move," and to do what he said or he would kill them. Lopez then directed the employees to the back room, and asked who was in charge. After being told which employee was in charge, Lopez told her to get the money from the cash register or he would shoot the other employee in the head. Lopez then put the other employee into the bathroom, and went through the women's purses. When the employee returned with the money, he put her into the bathroom and told both women to stay in there for something like 15 minutes.
6. Juice It Up (Riverside)
Five days later, on January 16, in the late afternoon or early evening, Lopez entered a Juice It Up store in Riverside. Two female employees were working. Lopez was wearing a tan/brown hoodie and a bandanna or cloth over his face and had a black gun. He directed one of the employees to the front of the store and told her to give him the money from the cash register. He also stole $3 from her wallet. Lopez asked the employees if they knew the code to the safe, but neither did. Lopez then put the employees in the walk-in freezer and told them to stay in there for a certain amount of time.
The employees observed that the robber's eyes were light brown. Video surveillance of the incident was shown to the jury. When she was later shown a photographic lineup, the employee who gave Lopez the money said two photographs looked most like the robber; one of the photographs was Lopez. She also identified a photograph of a jacket as the same one worn by the robber. At trial, this employee said Lopez's height and physique were the same as the robber, and she recognized his eyes as the eyes of the person who robbed her.
This employee was working at the same location the previous month when a similar robbery occurred. Lopez was charged with this prior robbery, but the jury was unable to reach a verdict on the prior incident.
7. Bobaloca
One week later, on January 23 just before closing time (7:00 p.m. or 8:00 p.m.), Lopez entered a Bobaloca smoothie shop in Riverside, wearing dark clothing, a beanie, and a black mask or bandanna over his lower face. A male employee and a female employee were working. Lopez pointed a gun at the male employee and walked him to the back of the shop. Lopez ordered both employees to the ground. Lopez then pulled up the female employee and told her to get all the money from the cash register.
The female employee took the cash out of the register, returned to the back room, and handed the money to Lopez. Lopez then pushed her up against the refrigerator and asked for the code to the safe. The employee replied that she did not know the code. Lopez threatened to shoot the male employee if they did not tell him the code.
Video surveillance of the incident was shown to the jury. The female employee later identified Lopez in a photographic lineup.
8. Supercuts
The next day, on January 24, in the late afternoon or early evening, two female hairstylists were working at Supercuts in Riverside. Lopez walked into the salon, wearing a black ski mask, a black sweatshirt with the hood over his head, black baggy pants, and gloves. Lopez pointed a black handgun at one of the employees, and said not to move or he would shoot her. Lopez then told this employee to go to the cash register and give him the money. He told the other employee to get money out of the safe. He then ordered the two employees and the female customer into the bathroom and said to close the door and stay there for about 25 minutes. Lopez was identified as being about five feet eight inches tall, and a light-skinned Hispanic male. One of the employees later identified Lopez in a six-pack photographic line-up.
9. La Moda
Six days later, on January 30, in the late afternoon or early evening, Lopez robbed a La Moda clothing store in Hemet, where one female employee was working. Lopez was wearing dark pants, a black hoodie with a lighter color lining in the hood, gloves, white shoes, and some kind of handkerchief or bandanna covering his lower face. Lopez walked behind the employee, and ordered her to put the money from the cash register into a bag. Lopez then told the employee to go into the back fitting room, close the door, and wait there.
Video surveillance of the incident was shown to the jury. The employee later identified the black hoodie (with the gray lining) found in Lopez's girlfriend's car. The prosecution presented evidence that Lopez's girlfriend worked in the same shopping mall.
10. Cold Stone Creamery
Nine days later, on February 9 at about 5:00 or 6:00 p.m., three female employees were working at a Cold Stone Creamery in Palm Desert. Lopez entered the store and approached the employee who was standing at the cash register. Lopez was wearing a black hoodie, black sweatpants, black shirt, black gloves, and a black shirt over his lower face. He displayed a black gun, and told the employee to "go to the back" and that "no one is going to get shot." The employee walked to the back of the store where the other two employees were, and Lopez told them they were being robbed.
Lopez told the women to line up and face the wall. He then told one of the employees to go up front and give him all of the money from the registers. This employee emptied the money from the cash registers into a paper bag. When she returned with the money, Lopez told the women to get into the freezer and to stay there for 10 minutes. Lopez then searched the employee lockers. He took a purse and some tips.
Video surveillance of the incident was shown to the jury. One of the employees described the suspect's eyes as brown with black eyebrows. She said his weapon looked like a "toy" gun.
11. Baskin Robbins
Twelve days later, on February 21 at about 6:00 p.m., a female employee was working alone at a Baskin Robbins in Perris. Lopez entered the store holding a black handgun and told this employee to give him all of the money. He said, "You're going to do what I say or I'm going to shoot you." Lopez was wearing a black-and-white checkered hoodie, and had a bandanna over his lower face.
After the employee gave Lopez the money from the cash register, he asked where the safe was, but she said she did not know. Lopez got frustrated and said, "Where's the fucking safe? I'm tired of this shit." He then said that he was going to look for it, and he told her to go into the freezer for a certain amount of time. Lopez left shortly after.
Video surveillance of the incident was shown to the jury. The employee believed that the perpetrator was Hispanic; that he was about five feet nine inches tall and 180 pounds; and that he had light brown or hazel eyes.
12. La Moda Plus Clothing
Two days later, on February 23 at about 7:00 p.m., a female employee was working at the La Moda Plus clothing store in Hemet (three stores away from the La Moda store that was robbed on January 30). Lopez went into the store holding a black handgun, and wearing a black hoodie with grey lining, black pants, white shoes, and a black mask over his lower face. Lopez approached the employee at the cash register, and told her to put money from the register into a bag. He asked for the safe, but the employee told him the store did not have one. Lopez then directed her to the back room, and told her to stay there for 10 minutes. Before leaving, Lopez stole the employee's credit cards and cash from her purse. Her identification cards and credit cards were found during a later search of Lopez's house.
Video surveillance of the incident was shown to the jury. The employee remembered that the robber's eyes were "light." Shortly after the incident, she told responding officers that the suspect was in his 20's with a medium build (about five feet eight inches).
13. Payless (Counts Challenged on Appeal)
About two weeks later, on March 11, shortly before 7:00 p.m., a store manager and employee (both females) were working at a Payless shoe store in La Quinta. Lopez walked into the store with a black gun. Lopez was wearing a black hoodie, khaki shorts, black gloves, white shoes, and some sort of black face mask, bandanna or cloth over his lower face. Lopez said that no one would get hurt if they followed his directions and that he "just want[ed] the money." He then directed the two employees and three female customers to the back room. Lopez asked who was in charge, and after the manager said that she was, he guided her to the cash registers and demanded all the money. Lopez also asked for the location of the safe, and then told the manager to give him the money from the safe. After the manager had put all the money from the safe in a bag, Lopez returned with the manager to the back room, and told all five women to stay there for 10 or 15 minutes. Lopez then fled the store.
Although the store manager initially testified the shorts were "dark," she later clarified they were khaki cargo-style shorts. The other store employee also described the shorts as khaki-colored.
The store manager told responding officers that the robber looked Hispanic, and that she thought he was about 150 to 160 pounds (matching descriptions from the other robberies and matching Lopez's appearance). She testified that his eye color appeared to be "[h]azel-greenish." Two of the customers testified that his gun did not appear to be real. One customer said she thought the gun looked "fake" because it "looked like plasticy."
As explained in more detail below, when the store manager was later shown a photographic lineup, she could not positively identify a suspect, but she pointed to Lopez's photograph and said that she recognized the eyes and that he looked familiar. She said that when she saw Lopez's photograph, she "got nervous chills" because the photograph brought back "feelings" of the robbery.
14. Quiznos
About one month later on April 10 at about 8:00 p.m., Lopez entered a Quiznos in Beaumont, where two female employees (LV and LA) were working. Lopez told the employees to go to the back of the store. Lopez was wearing a black hoodie, khaki baggy pants, and a bandanna over his lower face. Lopez pointed a gun at LV and told her to give him money from the cash register, but she refused to comply. LA then gave Lopez the money. After getting the money, Lopez directed the two employees into the walk-in freezer for five minutes until he was gone. LV refused to go in the freezer, and Lopez punched her in the face.
Video surveillance of the incident was shown to the jury. LV identified Lopez in a photographic lineup. At trial she said that his eyes had stood out to her and he had "colored eyes" similar to a green color. She was not able to definitely identify him at trial because he looked thinner and had more hair. LA identified Lopez in a pretrial photographic lineup.
15. Anna's Linens
Nineteen days later, on April 29, at 8:12 p.m., Lopez entered Anna's Linen's store in Indio, where two female employees were working. Lopez was wearing a black hoodie, a torn black shirt over his lower face, and khaki cargo shorts. He pointed a gun at one of the employees, and told her she was being robbed. The employee gave Lopez the money from the cash register. The other employee walked up and Lopez pointed the gun at her and said that he wanted the money from the safe. Lopez took the second employee to the back of the store, where the safe was located. The employee gave Lopez the money from the safe. Lopez then directed both women to the back office and told them to stay there for 10 minutes.
While the employee was giving Lopez money from the safe in the back, a customer with children entered the store. The cash register employee told them they were being robbed. The customers left the store and called 911. As they sat in their car, they saw Lopez walk out of the store and then saw a Honda vehicle drive away. Although police chased the Honda, Lopez was able to get away after crashing the car and running away on foot.
Video surveillance of the Anna's Linens incident was shown to the jury.
16. Carjacking Crimes (Counts 55-58)
The next week, on May 4, Lopez used a knife in attempting to carjack a woman in the parking lot of a Cathedral City market, but the woman was able to run away.
Lopez later approached a family with a knife and carjacked their truck.
Arrest
About one week later, sheriff's deputies arrested Lopez. In an interview after waiving his Miranda rights, Lopez admitted he was the perpetrator in the Anna's Linens robbery/burglary crimes and that he took items from the California Furniture store.
Trial
During the lengthy trial, the prosecution presented 77 witnesses, mainly eyewitnesses to the burglaries/robberies/carjackings and the responding law enforcement officers. Lopez's defense theory was that the prosecution did not meet its burden to show he was the person who committed the crimes.
At the conclusion of the prosecution case, Lopez moved for judgment under section 1118.1 on the counts involving a December 2010 juice shop incident (on which the jury later could not reach a verdict), Sally's Beauty Supply, and Payless, arguing there was no evidence linking Lopez to these crimes. The court denied the motion, finding the strong similarities between all of the incidents supported a reasonable inference that the same person committed each of them. Based on his careful evaluation of the trial evidence (including taking "94 pages of handwritten notes") and on his many years of experience in presiding over criminal cases, the trial judge observed that the crimes were similar and had numerous distinctive qualities, including the type of stores targeted and the manner in which the crimes were carried out. The court explained in part:
"And then, of course, all of the robberies are similar in nature in that persons are taken to the back of the store. On many of the occasions, one of the employees is told to go to the front to grab money and bring it back . . . if it's convenient. If not, sometimes it's just taken right from that location.
"And then on almost each and every one of these occasions—not all of them—the individuals are either walked to the back of the store or told to go walk to the back of the store into a room, a bathroom, a freezer . . . . And all of those are identical. And then they are told to remain there for a period of time while the robber leaves.
"So there is just a general uniqueness or a common theme that goes through each and every one of these incidents that occurs. And I think you can't just look at one of these in a vacuum. You have to view all of them in their totality. And in my mind, each and every one that was presented were identical in the way they were perpetrated. If not exactly identical, 95 percent of what went on each and every time that a perpetrator goes to the store was recreated in a subsequent robbery. [¶] . . . [¶]
"As to [the Payless robbery counts] wherein there were a number of individuals who were victims. . . . [T]here are a number of things that are striking . . . . The commonality again. The description of the individual, weight, height, build type, color of eyes which is identified by [the store manager]. . . . [A]nd [the store manager] is important because when she sees the photo lineup, while she could not identify anyone, she does pick the defendant's photograph, which is No. 4 in the lineup, as being the individual that looked most like the individual because of the eyes. And we know that the defendant has fairly distinctive eyes from prior descriptions and subsequent
descriptions given by robbery victims and just by having looked at the photo lineups that were utilized by law enforcement.
"So I think that . . . the common nature and the identical nature, if not 100 percent, very close. The timing when the incidents occur and the description of the individual and how the individual acts when he goes into the store to commit these robberies and what he does with the victims in moving them to another location is all identical in nature.
"And so I do believe that based on [the store manager's] testimony and based on the clothing of the perpetrator and the other facts that I've [described], I think there is sufficient evidence such that a reasonable jury could convict the defendant [of the Payless counts] and that such convictions would be sustained on appeal."
After instructions and arguments, the jury found Lopez guilty of all charged crimes on each of the incidents, except crimes occurring at a Riverside juice shop in December 2010 (see fn. 2, ante). On the Payless incident, the jury found Lopez guilty of two counts of robbery, three counts of false imprisonment, and one count of second degree burglary.
DISCUSSION
I. Sufficiency of the Evidence
Lopez contends his convictions arising from the Payless store incident should be reversed because there was insufficient evidence to establish his identity as the perpetrator of the crimes.
An appellant challenging the sufficiency of the evidence bears a heavy burden. (People v. Powell (2011) 194 Cal.App.4th 1268, 1287.) " 'A reversal for insufficient evidence "is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support' " the jury's verdict. [Citation.]' " (People v. Manibusan (2013) 58 Cal.4th 40, 87; see People v. Zaragoza (2016) 1 Cal.5th 21, 44 ["the relevant inquiry on appeal is whether, in light of all the evidence, 'any reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt' "].) In conducting this review, we evaluate "the entire record in the light most favorable to the judgment to determine whether it contains evidence that is reasonable, credible, and of solid value from which a trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] Our review must presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence." (Zaragoza, at p. 44; accord, People v. Brady (2018) 22 Cal.App.5th 1008, 1014.)
Substantial evidence established that Lopez committed the Payless crimes. First, the store manager's testimony supported that Lopez was the robber. Although the bottom of his face was covered, the manager said she was able to observe his eyes. She spent several minutes with him as he required her to walk with him to the cash register and then to the safe, and then to return with him to the back store area. Shortly after the incident, she gave responding officers a description that matched Lopez's appearance, including that he looked Hispanic; he weighed about 150 to 160 pounds; and he had hazel-greenish eyes.
Additionally, about three months after the incident, the store manager identified Lopez as "familiar" in a photographic lineup. In this lineup, the store manager was shown six large color photographs. Each photograph showed only the man's face. Each of the men were of the same approximate age, had dark hair, similar skin coloring, and similar eye color. Before examining the photographs, the store manager signed a document cautioning her that she was under no obligation to identify anyone from the photographs; she should be objective; the suspect may or may not be included in the photographs; and the purpose of the lineup was to determine whether she could identify the suspect or to eliminate anyone who was not a suspect.
After considering these admonitions and physically covering each of the faces so that only the eyes and forehead were showing, the store manager said she recognized the suspect's eyes in photograph No. 4 (Lopez's photograph) and that the eyes looked "familiar." She said she could not be certain of the identification, but that when she looked at Lopez's eyes she got "nervous chills" and it brought back "feelings" of the robbery. The store manager did not identify any other photograph as familiar.
Additionally, as with some of the other robberies, the Payless customers thought the gun looked fake, and, in his interview, Lopez said that he never used a real gun during the robberies.
In addition to the eyewitness testimony pertaining to Lopez's appearance and the weapon used, the similarities between the Payless incident and the other 13 robbery/burglary incidents for which Lopez was found guilty provided a logical basis to draw a reasonable inference that the same person who committed the other crimes also committed the Payless crime. "A modus operandi or criminal signature, creating an inference of identity, is demonstrated ' "when the marks common to the [crimes], considered singly or in combination, logically operate to set the . . . offenses apart from other crimes of the same general variety . . . ." ' " (People v. Felix (1993) 14 Cal.App.4th 997, 1005.) The inference of identity does not necessarily require a "signature" in the sense that certain conduct occurred only in the crimes at issue. (People v. Vines (2011) 51 Cal.4th 830, 856-857.) Rather, a fair inference can arise that the same person committed multiple crimes if "features of substantial but lesser distinctiveness . . . yield a distinctive combination when considered together." (Id. at p. 857.)
As found by the trial court, there were numerous commonalities among the offenses to allow an inference that the same person also committed the Payless crimes. The robberies occurred about the same time (early evening, close to closing hours), in similar types of stores (places that do not generally maintain large amounts of cash, generally have no security personnel, and are typically frequented by women), employing generally female workers (a male was the victim in only one of the 14 robbery incidents), during the same six-month period, and in the same general areas. Additionally, Lopez carried out the robberies in a similar manner. He would generally walk in the store with a gun and with something over his face; he would immediately tell the store employees that he was committing a robbery; he would bring the employees (and any customers) to the back of the store; he would then ask one employee to remove the cash from the cash register; he would ask about a safe and demand the money from the safe if the employees could open it; he would then tell the women to stay in a back room (storage room, bathroom, freezer) for a certain about of time, allowing him time to escape. He did not engage in violence in committing the robberies, except in one incident in which an employee refused to comply with his demands.
Additionally, the perpetrator wore similar types of clothing in most of the robberies. For example, the clothing worn by the robber at the Payless store (khaki cargo shorts, black gloves, and some sort of black cloth over his face) was the same outfit Lopez wore during the robbery of Anna's Linens, which occurred about six weeks later and of which Lopez later admitted he was the perpetrator. Although the clothing worn was not unusual for a male in his age group and there were slight differences in the color and patterns on the clothing in the other robberies, the similarities were a valid factor in deciding whether the same person committed each of the crimes.
The eyewitness description of the Payless robber was also similar to the eyewitness descriptions in the other robberies. The store manager's description of the robber—Hispanic with hazel-greenish eyes and weighing about 150-160 pounds—was close to eyewitness descriptions of the perpetrator from the other robberies and Lopez's description of himself during his interview.
Viewing the totality of the circumstances, the jury could conclude the crimes were sufficiently similar and distinctive that they were set apart from others of the same general variety and thus support that Lopez was the perpetrator of the Payless crimes. A large number of common marks may, when viewed in combination, establish the required distinctive pattern. (People v. Elliott (2012) 53 Cal.4th 535, 581; see People v. Miller (1990) 50 Cal.3d 954, 988-989.) "The likelihood of a particular group of geographically proximate crimes being unrelated diminishes as those crimes are found to share more and more common characteristics." (Miller, at p. 989.) Similarly, a stronger pattern is shown when there is a greater number of crimes committed in a similar manner.
Based on the Payless manager's eyewitness identification and the similarity of the crimes, we conclude substantial evidence supports the jury's findings that Lopez was the perpetrator of the Payless crimes. Lopez's arguments to the contrary are unpersuasive.
First, he focuses on the lack of certain categories of evidence, such as physical evidence, an admission, or a surveillance tape. This type of evidence is not necessary in every case. Based on the eyewitness testimony and the strong similarities in the crimes, the jury had a reasonable basis to conclude Lopez was the person who committed the Payless crimes.
Second, Lopez claims there was "no identification . . . at all" with respect to the Payless store crimes. This contention is factually unsupported. As noted, the store manager picked Lopez in a photographic lineup as someone whose eyes she recognized and thought looked familiar. She said that when she looked at the eyes in Lopez's photograph, she got "nervous chills" and it brought back "feelings" of the robbery. She did not identify any other photograph as familiar. Her description of the perpetrator also fit Lopez's physical appearance. Although the store manager was not certain of the identification, certainty is not required. (People v. Jackson (1960) 183 Cal.App.2d 562, 568.) If the circumstances of an eyewitness identification are explored at trial and the trier of fact finds the eyewitness identification credible, that determination is binding on the reviewing court. (In re Gustavo M. (1989) 214 Cal.App.3d 1485, 1497.)
Additionally, we find unhelpful Lopez's reliance on the officer's testimony that the store manager "didn't identify anyone as the suspect." Read in context, the officer was stating that the store manager could not definitively identify Lopez as the perpetrator. This statement does not eliminate the probative value of the store manager's testimony. It is not essential that a witness be free from doubt in identifying a suspect or identifying a suspect's appearance; a witness may testify that it is merely his or her belief or opinion, and the lack of certitude goes to the weight of the testimony. (See People v. Mohamed (2011) 201 Cal.App.4th 515, 522.)
We also find unavailing Lopez's focus on the different ways the victims described Lopez's eyes. Although the various store employees did not always describe the color of his eyes in an identical fashion (some described hazel, some green, some light brown, one dark brown), the descriptions were similar in that most believed that the eyes were distinctive and light-colored. On our review of Lopez's photograph (Exhibit 79), the record supports that Lopez's eyes can be fairly described as hazel, green, or light brown.
On the issue of the similarity between the various incidents, Lopez faults the prosecutor for failing to call an expert witness to testify that the features of the crimes reflect a unique signature or modus operandi. However, there is no authority requiring such expert evidence. Moreover, the experienced trial judge carefully evaluated the evidence and concluded that the similar types of stores and manner in which Lopez committed the crimes constituted a recognizable pattern and differed in various ways from typical commercial robberies.
Finally, Lopez discusses various differences between the Payless incident and some of the other crimes, including that Lopez did not take any personal items from the Payless victims and there was a white truck outside the store during the Payless robbery. However, these differences did not preclude a reasonable conclusion that the crimes were committed by the same person. An individual generally will not commit a crime in precisely the same manner, as the actions will depend on the particular location, the victims, and the criminal's mindset at the time. Likewise, contrary to Lopez's assertions, the fact that all five victims in the Payless incident did not agree on some details of the incident does not show the jury's decision was unsupported. It was for the jury to decide whether the minor variations in the circumstances of each crime and/or in the Payless witnesses' testimony eliminated any rational inference that the crimes were committed by the same person. We do not reweigh the evidence or substitute our evaluation for the jury's factual determination.
II. Knife-use Enhancements Attached to Carjacking Counts (Counts 55, 56, and 58)
The court imposed a sentence of 48 years 6 months. Lopez raises only one challenge to the sentence. The challenge involves the one-year consecutive terms imposed on three knife-use enhancements found true under section 12022(b)(2). These enhancements were attached to three subordinate carjacking counts (counts 55, 56 and 58). We conclude the case must be remanded to permit the court to state its intent regarding the selected term for the section 12022(b)(2) enhancements; state reasons for this selection; and then impose one-third these terms consecutive to the subordinate terms on the predicate carjacking offenses. (See § 1170.1, subd. (d).)
A. Summary of Sentence
In calculating the sentence, the court selected count 57 (one of the carjacking counts) as the base term, and imposed the upper term of nine years. (§ 1170.1, subd. (a).) On the remaining subordinate robbery and carjacking counts, the court imposed consecutive terms of one-third the middle term applicable to each crime. (Ibid.) On the burglary counts, the court stayed execution of the sentence under section 654. On the knife-use enhancements (§ 12022(b)(2)), the court imposed a consecutive three-year term on the enhancement attached to the base term (count 57), and imposed consecutive one-year terms on the three other knife-use enhancements attached to the subordinate carjacking counts (for counts 55, 56, and 58).
B. Section 12022(b)(2)
Section 12022(b)(2) requires the court to impose an additional and consecutive term of "one, two, or three years" for personal use of a deadly or dangerous weapon when a person has been convicted of carjacking or attempted carjacking. Under this code section, the trial court had the discretion to select one, two, or three years for the enhancement attached to the principal term (count 57). (See §§ 12022(b)(2), 1170.1, subd. (d).) The court did this by selecting the upper term of three years. Lopez does not challenge this portion of the sentence.
But Lopez challenges the consecutive one-year terms on the knife-use enhancements (§ 12022(b)(2)) attached to the subordinate carjacking counts (counts 55, 56, and 58). He contends the court should have imposed for each of these enhancements one-third the two-year middle term (or eight months each).
Generally, for any enhancement attached to a subordinate term, the sentence enhancement is limited to one-third of the term selected. (See § 1170.1, subd. (a); People v. Sasser (2015) 61 Cal.4th 1, 16; People v. Moody (2002) 96 Cal.App.4th 987, 990-994.) Thus, when only one term is provided for an enhancement attached to a subordinate offense, the court must impose one-third of that term.
However, when the enhancement statute provides alternatives (often referred to as "a triad"), the court has the discretion to choose one of the identified terms for the enhancement. (See § 1170.1, subd. (d); People v. Hill (2004) 119 Cal.App.4th 85, 91.) After the court chooses a term from the triad, it must impose one-third of that chosen "term" when the enhancement is added to a subordinate term. (§ 1170.1, subd. (a); Hill, at pp. 88-92.) Contrary to Lopez's contention, the chosen term for an enhancement attached to a subordinate offense need not be the middle term. (Hill, at p. 87.) A court has "the discretion to use any of the enhancement's terms of imprisonment—upper, middle, or lower—in calculating the subordinate term." (Ibid.)
Lopez cites two decisions in support of his assertion that the court must impose one-third the middle term for the enhancement on a subordinate term. (People v. Felix (2000) 22 Cal.4th 651, 655; Moody, supra, 96 Cal.App.4th at pp. 990.) Neither of these courts addressed the issue concerning a court's discretion to select among alternative terms identified in an enhancement statute before reducing that term to one-third and adding that term to a determinate subordinate term. Interpreting the plain language of section 12022(b)(2) and examining its legislative history, Hill held a trial court is not limited to the middle term when selecting the term for the enhancement. We agree with Hill's reasoning and find its conclusion applies here.
C. Analysis
The trial court imposed one-year terms for the section 12022(b)(2) knife-use enhancements attached to the three subordinate carjacking counts. However, the record is not clear as to the basis for these one-year terms. The result could have been derived from: (1) a finding that the three-year upper terms were appropriate, and then reducing those terms to one-third; (2) a finding that the lower terms were appropriate and then failing to reduce these terms by one-third; or (3) a finding that the middle term was appropriate (the term requested by the prosecution for these enhancements) and then improperly calculating one-third those terms.
The Attorney General recognizes the record is unclear on this issue and requests that this court remand the matter to permit the trial court to identify which term (one year, two years, or three years) it intended to select for the enhancements on the subordinate terms and to provide reasons for the selection, and then to impose one-third of these selected terms consecutive to the subordinate kidnapping terms.
We agree with the Attorney General that a remand is the appropriate procedure under the circumstances of this case to allow the court to clarify its intent regarding the imposition of the consecutive terms on the enhancements attached to the subordinate carjacking offenses on counts 55, 56, and 58.
DISPOSITION
With respect to the knife-use enhancements (§ 12022(b)(2)) attached to the subordinate terms for counts 55, 56, and 58, we remand for the court to identify the term for these enhancements selected from the one-, two-, or three-year alternatives set forth in section 12022(b)(2), and then to impose one-third these selected terms consecutive to the subordinate terms. In all other respects we affirm the judgment.
If any modifications are made to the Abstract of Judgment, a copy shall be forwarded to the Department of Corrections and Rehabilitation.
HALLER, J. WE CONCUR: NARES, Acting P. J. GUERRERO, J.