Opinion
C082436
04-09-2018
THE PEOPLE, Plaintiff and Respondent, v. LAWRENCE DAVID MAREZ, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 13F08048)
Defendant Lawrence David Marez stole bicycles from a Walmart store and locked them in his car. Store employees confronted him and he left the car and the Walmart parking lot on foot and went across the street with the employees in pursuit. Defendant fired a gun at the employees before he was arrested. A jury found him guilty of robbery and negligently discharging a firearm, and it found true a firearm enhancement pursuant to Penal Code section 12022.53, subdivision (c).
Further undesignated statutory references are to the Penal Code.
On appeal, defendant contends: (1) insufficient evidence supported the trial court's modifying the form instruction on robbery to state the crime is a continuing offense until the defendant reaches a point of temporary safety, as defendant asserts he effectively abandoned the bikes before he used force, and thus the crime ended at that point in time; (2) insufficient evidence supports the robbery conviction for the same reason; and (3) we should remand the matter for resentencing on the firearm enhancement in light of Senate Bill No. 620's amendment to section 12022.53. We agree with the last point, as does the Attorney General; we will remand for the trial court to consider exercising its newly acquired discretion and otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A Walmart employee saw a man and a woman pushing a cart of boxed bicycles out of the Truxel Road store. The couple put the bikes in the trunk of a small car, reentered the store, and came out a second time with carts full of boxed bicycles. The employee saw them put the second load into a Dodge Durango. The employee notified the store manager, Franklin Jackson, and pointed out the man (defendant). The female had walked away in a different direction.
Jackson walked up to defendant and asked where the bicycles were. Defendant responded that he did not know what Jackson was talking about. He walked away from Jackson, who followed him. By that time, the store's assistant manager, Sean Yendes, had joined Jackson. They followed defendant as he walked toward Truxel Road and a Del Taco restaurant. He went inside the restaurant, and Jackson and Yendes waited outside for him.
Defendant came out of the restaurant about a minute later, and was aggressive towards the men. He said, "Hey, I didn't take your bikes." "[G]et away from me. [¶] I'll beat your ass." Jackson asked for the bikes back, and defendant said he was just helping the lady put the bikes into her car. He said he was not going anywhere with Franklin and began to walk away. Jackson told Yendes to follow defendant while he went to retrieve his truck.
Defendant began crossing Truxel Road. He got to the other side of the road as Yendes got to the median. Yendes saw defendant crouching down in some bushes across the road. Then defendant faced Yendes, stood up, and fired a gun. Yendes ducked behind a car stopped in the turning lane, and he heard two more shots. As the car moved, he saw defendant running away. Yendes crossed to the other side of Truxel Road, but he lost sight of defendant when defendant ran toward a hotel and other businesses. During the pursuit through the time of the shooting, Jackson and Yendes knew only that the bikes were in a vehicle in the Walmart parking lot.
A police officer apprehended defendant near the hotel and removed a .45-caliber semiautomatic gun from his waistband. There was a live round in the gun's chamber and four live rounds in its magazine, and its hammer was cocked and ready to fire.
Police found a Dodge car key and key fob on defendant's person. The key fob activated the alarm for a Dodge Durango in the Walmart parking lot. Inside, the officers found four bicycles belonging to Walmart. The Dodge Durango was registered to defendant and his wife.
Defendant pleaded no contest to possession of a firearm by a felon. (§ 29800, subd. (a)(1).) A jury found him guilty of robbery (§ 211) and negligently discharging a firearm (§ 246.3). The jury also found true a firearm enhancement under section 12022.53, subdivision (c), for personally and intentionally discharging a firearm during the commission of a felony.
The trial court sentenced defendant to state prison for a term of 22 years, calculated as follows: the low-term of two years on the robbery count, plus a then-mandatory 20-year consecutive term for the firearm enhancement. The court imposed the mid-term of two years, concurrent, on the firearm possession count, and it stayed sentencing on the negligent discharge count under section 654.
DISCUSSION
I
Modification of Robbery Instruction
When the trial court instructed the jury on the elements of robbery, at the prosecution's request it modified CALCRIM No. 1600, the form instruction on robbery, to discuss the crime's duration. It added the following line: "The crime of robbery is a continuing offense that begins from the time of the original taking until the perpetrator reaches a place of temporary safety." During deliberations, the jury asked the court to define "temporary safety." In response, the court instructed the jury with a portion of CALCRIM No. 3261, the escape rule instruction, which defines "a place of temporary safety."
The court originally indicated it would instruct the jury with the entire escape rule instruction found in CALCRIM No. 3261. After the close of evidence, however, it concluded the escape rule did not apply to this case with the exception of the rule's duration clause.
Defendant contends insufficient evidence supported modifying the robbery instruction and instructing with CALCRIM No. 3261 in response to the jury's question. He does not claim the instructions misstated the law. Rather, he argues the additional language was irrelevant and not supported by the evidence. He admits he committed theft by taking the bicycles and placing them in his car, but he contends he used force only to escape, not to continue the robbery; that is, he argues that he did not use force to permanently deprive Walmart of its property. He asserts that by the time he shot his gun, he had effectively abandoned the bikes and no longer intended to maintain their possession. He argues he had abandoned the bikes because by the time he used force, he was being pursued and could not return to his car to retrieve them; the Walmart employees would direct the police to his car and they would impound it. He asserts it was unreasonable for the jury to believe he intended to return to his car to retrieve the bikes under those circumstances. He thus contends because he used force after he abandoned the bikes, he never committed robbery, and instructing on the robbery's duration was prejudicial error.
The Attorney General contends defendant forfeited this argument by not objecting to the court's modifying CALCRIM No. 1600. We disagree. Defendant objected to instructing with the escape rule and its duration clause for the same reason he objects here; that it defined the duration of the crime to continue beyond when he believed the crime ended. His objection sufficiently preserved his argument. The Attorney General notes the court at one point referred to the request to instruct on duration as coming from both parties, but there is nothing in the record that indicates defense counsel joined in the prosecutor's request. --------
Section 211 defines robbery as "the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." To be a felonious taking, the perpetrator must have the specific intent to deprive the victim of his or her property permanently. (People v. Mumm (2004) 98 Cal.App.4th 812, 817.)
Robbery is " ' "a species of aggravated larceny." ' " (People v. Ortega (1998) 19 Cal.4th 686, 694, quoting Perkins & Boyce, Criminal Law (3d ed. 1982) p. 350.) "In robbery, the elements of larceny are intertwined with the aggravating elements to make up the more serious offense. . . . [R]obbery, like larceny, is a continuing offense. All the elements must be satisfied before the crime is completed. However, . . . no artificial parsing is required as to the precise moment or order in which the elements are satisfied." (People v. Gomez (2008) 43 Cal.4th 249, 254, fn. omitted (Gomez).) There is no "temporal point at which the elements must come together." (Ibid.)
"Larceny requires the taking of another's property, with the intent to steal and carry it away. [Citation.] 'Taking,' in turn, has two aspects: (1) achieving possession of the property, known as 'caption,' and (2) carrying the property away, or 'asportation.' [Citations.] Although the slightest movement may constitute asportation [citation], the theft continues until the perpetrator has reached a place of temporary safety with the property. [Citation.]" (Gomez, supra, 43 Cal.4th at pp. 254-255, footnote omitted.)
The same holds true with robbery. " 'The taking element of robbery' consists of both a caption and an asportation. [Citation.] Therefore, to determine the duration of a robbery, the focus must be on its final element, asportation. We emphasized that '[a]lthough, for purposes of establishing guilt, the asportation requirement is initially satisfied by evidence of slight movement [citation], asportation is not confined to a fixed point in time. The asportation continues thereafter as long as the loot is being carried away to a place of temporary safety.' [Citation.]" (Gomez, supra, 43 Cal.4th at p. 256.)
" 'This reasoning is consistent with a long line of Court of Appeal cases, left undisturbed by this court, holding that mere theft becomes robbery if the perpetrator, having gained possession of the property without use of force or fear, resorts to force or fear while carrying away the loot. [Citations.] In order to support a robbery conviction, the taking, either the gaining possession or the carrying away, must be accomplished by force or fear. (See § 211.) Thus, these cases implicitly hold that the asportation component of the taking continues while the loot is carried away, and does not end on slight movement.' [Citation.]" (Gomez, supra, 43 Cal.4th at p. 257.)
In the case of robbery, at least two courts have held the asportation does not continue, and indeed, there is no robbery, if the defendant uses force or fear after surrendering or abandoning the stolen items before reaching a place of temporary safety. (People v Etheridge (2015) 241 Cal.App.4th 800, 803-804, 810 (Etheridge); People v. Hodges (2013) 213 Cal.App.4th 531, 543 (Hodges).) This is because if the perpetrator uses force without possessing the property, there may be no evidence he intended to permanently deprive the victim of the property. (Ibid.)
Defendant relies on these cases to argue there was no evidence to support instructing his jury on the duration of robbery because he effectively abandoned the stolen property before he used force by walking away and leaving the bikes in his car. He thus contends whether a robbery continued until asportation reached a place of temporary safety was irrelevant in his case. He claims giving the instruction was prejudicial error because it erroneously extended the completion of his theft offense beyond the time he had the means or intention to keep his pursuers from regaining the bikes. He also asserts the evidence shows the jury relied on the irrelevant instruction to reach its verdict, as its only question to the court concerned that instruction.
Defendant interprets the possession element of robbery too narrowly. The trial court did not err in giving the instruction because there was substantial evidence from which the jury could determine defendant maintained dominion or control over the bikes at the time he fired his gun. When a legally correct instruction is requested, "it should be given 'if it is supported by substantial evidence, that is, evidence sufficient to deserve jury consideration.' [Citation.]" (People v. Wilkins (2013) 56 Cal.4th 333, 347.)
"There is no requirement that the robber have manual possession of the property. [Citation.]" (People v. Pham (1993) 15 Cal.App.4th 61, 65.) A robbery "is complete when the perpetrator obtains dominion over the property, even if the owner still has some measure of nominal control." (In re Travis W. (2003) 107 Cal.App.4th 368, 376.) " 'A taking occurs when the offender secures dominion over the property, while a carrying away requires some slight movement away of the property.' [Citations.]" (People v. Alvarado (1999) 76 Cal.App.4th 156, 161, overruled on another ground in People v. Lopez (2003) 31 Cal.4th 1051, 1063, fn. 2.) Robbery does not necessarily entail the robber's manual possession of the loot. It is sufficient if he acquired dominion over it, though the distance of movement is very small and the property is moved by a person acting under the robber's control, including the victim. (Etheridge, supra, 241 Cal.App.4th at pp. 803-804.)
A jury could conclude from the evidence described ante that defendant had gained dominion and control over the bikes and was acting to maintain that control when he fired the gun. He removed the bikes from Walmart and placed them in his car. When the Walmart manager approached him, defendant did not open the car and surrender the bikes. He did not give the manager the car key. Instead, he maintained possession of the key and denied he had taken anything from the store. It was not until police retrieved the car key--after defendant had fired his gun--and located and accessed the car that anyone other than defendant had dominion or control over the stolen bikes. From this evidence, a jury could reasonably conclude the robbery continued beyond the time defendant placed the bikes in his car and beyond the shooting. The evidence thus supported the trial court instructing the jury on the robbery's duration in order for the jury to determine whether defendant intended to permanently deprive Walmart of its property, i.e., whether he used force to maintain his control over the bikes or just to escape after effectively abandoning them.
Defendant's reliance on Hodges and Etheridge is misplaced. In each of those cases, the defendant truly abandoned the stolen property before he used force. Hodges arose out of a shoplifting. A grocery store security guard approached Hodges, who was entering his car. The guard advised him he had not paid for the items and needed to return to the store. Hodges claimed he lost the receipt, but he told the guard he did not want the items and tossed them at the guard's partner, who had just approached. (Hodges, supra, 213 Cal.App.4th at pp. 535-536.) Hodges also pushed the partner back, causing the security officer to land against another car. The pushing and relinquishment of the groceries took place after Hodges announced he did not want the goods from the store. (Id. at p. 536.)
The trial court refused to advise the jury regarding the impact of abandonment of the property before Hodges exercised force. (Hodges, supra, 213 Cal.App.4th at p. 537.) During deliberations, the jury sent out a specific question on the effect of abandoning the stolen property before the first instance of force or fear occurred. The court advised the jury that the incident in the parking lot, even with Hodges's abandonment of the stolen property, could be viewed as a continuation of the robbery because Hodges had not reached a place of temporary safety. (Id. at p. 538.)
Division Three of the First Appellate District held this was error. (Hodges, supra, 213 Cal.App.4th at pp. 542-543.) It reasoned the trial court's instruction "was misleading because it allowed the jury to conclude defendant was guilty of robbery without regard to whether defendant intended to permanently deprive the owner of the property at the time the force or resistance occurred. Otherwise stated, this aspect of the court's instruction . . . permitted the jury to find defendant guilty of robbery based on defendant's confrontation with security guards, without also finding . . . that defendant used force with the intent to retain the property or prevent its recovery by the lawful owner. Finally, the court's instruction . . . improperly resolved the factual conflict inherent in the jury's inquiry regarding the impact of defendant's surrender of the goods prior to the use of force." (Id. at p. 543.)
Etheridge discussed the issue in the context of a habeas proceeding. Etheridge carried a packaged steak from a store's meat department, placed it in a bag, and slipped it underneath the loading dock door at the back of the store. He left the store, went to the exterior side of the loading dock door, and picked up the package of meat he had slipped there under the door. Two security guards approached, and Etheridge ran. As he did, he threw the bag with the steak onto the roof of a nearby store. One guard overtook Etheridge, but Etheridge struck him with a large rock. A jury found him guilty of robbery. (Etheridge, supra, 241 Cal.App.4th at p. 803.)
Some years later, Etheridge filed a petition for writ of habeas corpus, contending insufficient evidence supported his robbery conviction and the jury was improperly instructed on robbery. Division One of the Second Appellate District agreed with Etheridge and granted the petition. Relying on Hodges, the appellate court wrote: " 'Etheridge did not use force or fear to take possession of the steak or to resist attempts by the grocery store security personnel to retake the stolen steak. He abandoned the steak by throwing it on the roof before the guards caught up to him. He used force only after he abandoned the steak. Thus, he did not "rel[y] on force or fear to gain possession or to maintain possession." [Citation.] His crimes were assault and theft, but not robbery, yet the trial court's special instruction permitted the jury to convict Etheridge of robbery based upon his use of force to facilitate his escape attempt after he abandoned the steak. As in [Hodges] (citation), the court's instruction was erroneous because "it allowed the jury to conclude defendant was guilty of robbery without regard to whether defendant intended to permanently deprive the owner of the property at the time the force or resistance occurred." [Citation.]' " (Etheridge, supra, 241 Cal.App.4th at pp. 803-804, quoting In re Etheridge (Nov. 22, 2013, B244852) 2013 Cal. App. Unpub. LEXIS 8488 [nonpub. opn.].)
Neither Hodges nor Etheridge apply to this case. In both cases, the defendant clearly abandoned the property before he used force. Here, there is evidence from which a jury could determine defendant did relinquish dominion or control over the stolen bikes, much less abandon them, before he fired his gun. A reasonable juror could conclude he shot at Yendes with the intent to evade capture so he could later return to his car and, with his key, drive himself and the bikes away to a place of temporary safety. Accordingly, the trial court did not err when it instructed on the duration of robbery.
II
Sufficiency of Evidence Supporting Robbery Conviction
Defendant next contends insufficient evidence establishes he used force with the intent to permanently deprive Walmart of its property. He relies on the same arguments he made against the trial court's modification of the robbery jury instruction. We, too, rely on our explanation ante to reject defendant's claim of insufficient evidence. As we have already explained, sufficient evidence supports the jury's determination that defendant used force to maintain possession of the bikes already locked in his car, and that he had the intent to permanently deprive Walmart of them.
III
Senate Bill No. 620
After briefing in this case was finished, the Legislature passed and the Governor signed into law Senate Bill No. 620, which amended section 12022.53, subdivision (h) to give trial courts discretion to strike certain firearm enhancements in the interest of justice. (Stats. 2017, ch. 682, § 2.) Defendant filed a supplemental brief, asserting Senate Bill No. 620 applies retroactively to cases not yet final and, therefore, we should remand for the trial court to determine in its discretion whether to strike the firearm enhancement in his case. The Attorney General agrees with defendant on this point, and so do we.
Effective January 1, 2018, Senate Bill No. 620 authorizes a court to exercise its discretion under section 1385 to strike or dismiss a firearm enhancement allegation or finding made pursuant to sections 12022.5 and 12022.53. (§§ 12022.5, subd. (c), 12022.53, subd. (h).) However, the legislation does not expressly declare whether it applies to cases not yet final as of January 1, 2018, in which firearm enhancements were imposed.
Generally, amendments to the Penal Code apply prospectively. But California law recognizes an exception for amendments that reduce the punishment for a specific crime. Courts presume the Legislature intends those amendments to apply retroactively to all nonfinal judgments absent a saving clause or other clear evidence the Legislature intended otherwise. (In re Estrada (1965) 63 Cal.2d 740.) The presumption applies to amendments that give the superior court discretion to impose a lower sentence. (See People v. Francis (1969) 71 Cal.2d 66, 75-76.)
We agree with the parties that Senate Bill No. 620 applies retroactively to defendant's case, which is not yet final. Further, the Attorney General commendably concedes that "because the sentencing record does not affirmatively show that the trial judge would not have exercised his discretion to dismiss or strike the firearm enhancement, remand is appropriate." The Attorney General notes, as do we, that the sentencing court commented that the sentence was "pretty much . . . tied up in terms of the Legislature. There is not a lot of discretion involved anyway, even if I were to consider it." We add that the trial court imposed low term and concurrent sentences where it was permitted to do so.
"Generally, when the record shows that the trial court proceeded with sentencing on the erroneous assumption it lacked discretion, remand is necessary so that the trial court may have the opportunity to exercise its sentencing discretion at a new sentencing hearing." (People v. Brown (2007) 147 Cal.App.4th 1213, 1228.) Here, the trial court had no discretion at sentencing regarding the 20-year consecutive term for the section 12022.53, subdivision (c) enhancement. Thus, we will remand to permit the trial court to consider exercising the discretion conveyed by Senate Bill No. 620.
DISPOSITION
The judgment is affirmed. The matter is remanded to the trial court to consider exercising its discretion under section 12022.53, subdivision (h), as amended by Senate Bill No. 620, and, if appropriate following exercise of that discretion, to resentence defendant accordingly.
/s/_________
Duarte, J. We concur: /s/_________
Robie, Acting P. J. /s/_________
Hoch, J.