Opinion
E064788
02-07-2017
THE PEOPLE, Plaintiff and Respondent, v. RICHARD ANTHONY NARTATES et al., Defendants and Appellants.
John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant Richard Anthony Nartates. Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant Yevette Knadine Nieves. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Scott C. Taylor, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SWF1402519) OPINION APPEAL from the Superior Court of Riverside County. Stephen J. Gallon, Judge. Affirmed as modified. John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant Richard Anthony Nartates. Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant Yevette Knadine Nieves. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
This case concerns two defendants and appellants: Richard Anthony Nartates (Richard) and Yevette Knadine Nieves (Yevette). A jury found Richard and Yevette guilty of (1) three counts of robbery (Pen. Code, § 211), and (2) two counts of misdemeanor burglary (§ 459). The jury also found Richard guilty of making a criminal threat. (§ 422.) Additionally, the jury found true the allegations that Richard used a deadly weapon during one of the robberies and when making the criminal threat. (§§ 12022, subd. (b)(1), 1192.7, subd. (c)(23).) Richard admitted suffering two prison priors. (§ 667.5, subd. (b).) The trial court sentenced Richard to prison for a term of 10 years. The trial court granted Yevette 60 months of formal probation, with the condition she serve one year in the custody of the Riverside County Sheriff.
We use first names for the sake of clarity. No disrespect is intended.
All subsequent statutory references will be to the Penal Code, unless otherwise indicated.
Richard raises six issues on appeal. First, Richard contends there is not substantial evidence to support the sustained fear element for the criminal threat conviction (§ 422). Second, in the alternative, Richard contends the trial court erred by failing to instruct the jury on the lesser included offense of attempted criminal threat. Third, Richard contends there is not substantial evidence of intent for the burglary convictions (§ 459). Fourth, Richard asserts his burglary convictions must be modified to shoplifting convictions (§ 459.5). Fifth, in the alternative, Richard contends the trial court erred by not instructing the jury on the lesser included offense of shoplifting. Sixth, Richard asserts the trial court erred by admitting gang evidence. We affirm the judgment against Richard as modified.
Yevette contends substantial evidence does not support her robbery convictions (§ 211), and she adopts Richard's contentions. We affirm the judgment against Yevette as modified.
FACTUAL AND PROCEDURAL HISTORY
A. KOHL'S
Matthew Herring is a loss prevention officer at Kohl's department store in Menifee and wears plain clothes when working, i.e., not a uniform. On July 17, 2014, at approximately 6:00 p.m., Herring noticed Richard, Yevette, Jennifer Garcia, and three children in the store. Herring saw Richard pick up four tank tops, a shirt, and two watches. Richard removed the tank tops from their hangers, left the hangers on the rack, and placed the tank tops in a shopping cart. It is unusual for people to remove items from hangers; it is usually done to make an item easier to conceal. Richard placed the watches in the shopping cart.
Richard continued walking around the store until he encountered Yevette and Jennifer in the boys' department. A video recording showed Yevette use her index and middle fingers to point at her eyes, she then moved her index finger in a circle. The movement indicated that Jennifer should watch the area for store employees. A video recording showed Richard discarding a store security tag and concealing an item in his right front pocket. Richard and Yevette moved to the infants' section of the store. A second loss prevention officer, David Sandoval saw Richard place items from the shopping cart into Yevette's purse.
Herring went to the area where Richard discarded the security tag. Herring found hard plastic security sensor tags cut from the watches, as well as an empty watch box. Boxes are typically discarded so items are easier to conceal. Security tags are typically discarded so alarms are not triggered.
Richard exited the store, passing by manned registers. The three children were with Richard. He made no attempt to pay for the items he had picked up. Herring approached Richard. Herring identified himself as a loss prevention officer. Richard aggressively rushed toward Herring with closed fists, and told Herring "to go away. Get away from [me]." Richard came within one or two feet of Herring, which caused Herring to be afraid. Herring thought Richard was going to assault him.
Herring said, "Listen, . . . you don't have to do this. You just need to go back inside." Herring continued to tell Richard, "Please go back inside the store." In the meantime, Yevette and Jennifer exited the store and went to a car. Sandoval then exited the store. Sandoval identified himself as a loss prevention officer at a distance of 10 feet from Richard. Richard rushed toward Sandoval. At a distance of five feet, Richard said, "Get away from me." Richard spoke in an aggressive manner with closed fists while "charging" at Sandoval. Sandoval was afraid Richard might strike him and harm him. Richard then rushed toward Herring in an aggressive manner. Richard moved toward the car and got into driver's seat. As Richard drove the car out of the parking stall, the car came within five feet of striking Herring. The approximate value of the items taken by Richard and Yevette was $215.
B. WINCO
Julio Santos is a loss prevention agent with Winco Foods in Hemet. Santos wears plain clothes while at work. Winco has security cameras installed in the store. On July 17, 2014, at approximately 7:00 p.m., Santos saw Richard, Yevette, and Jennifer, as well as children (collectively, the group) enter the Winco and go to the aisle containing baby products. The group stood together, as though using their bodies to conceal merchandise. The group placed items in a shopping cart.
The group then moved to the health and beauty aisle. One of the women placed items into the shopping cart. The group traveled to the chip and candy aisle where they placed candy in the cart. While in the "paper towel" aisle, Yevette placed her purse in the shopping cart. Yevette then looked around to see if other people were nearby and she spoke to Richard. Richard then leaned over the shopping cart. When Richard moved back, the shopping cart was significantly emptier than it had been and Yevette's purse was still in the cart. Items were concealed in a diaper bag and two purses.
The group passed by manned cash registers without stopping to pay for the concealed items; Jennifer exited the store. Santos and a second loss prevention agent, Angel de la Rosa also exited the store. Rosa showed his badge to identify himself as a loss prevention agent to Jennifer. Rosa told Jennifer to stop. Jennifer continued walking away. Rosa reached for Jennifer's purse, inside the shopping cart, but Jennifer pulled away and continued walking. Ultimately Rosa took the purse from the shopping cart and began walking toward the store.
Richard exited the store as Rosa was reaching for Jennifer's purse. Richard aggressively rushed toward Rosa and came within inches of him. Rosa backed away. Jennifer took the purse from Rosa, or Rosa dropped it and Jennifer retrieved it. Richard said to Rosa, "What's up, Homie?" Rosa said to Richard, "Just give us back our stuff and you can go."
Yevette exited the store, and walked toward the car. Rosa went after Yevette and asked her to return the merchandise; he reached for her purse. Yevette told Rosa that he was assaulting her. Rosa heard "something" and turned around. Rosa saw Richard holding a knife in the vicinity of Santos.
Richard held a red and silver pocket knife in his clenched fist with his arm extended out to his side. Richard stepped aggressively toward Santos. Richard told Santos he was going to "cut [Santos's] 'fuckin' throat." Richard's threat caused Santos to fear that Richard would harm Santos. Santos backed away from Richard. Richard also said "[h]e'll come back and kill [Santos]. He's from SSC. He'll come back and kill [Santos] and [Santos's] family." Santos believed SSC was a gang. Santos believed Richard might kill him.
The group entered a car and left. Santos continued to be afraid that Richard would return to kill him. Santos reported the license plate of the group's vehicle to law enforcement.
B. ARREST
On July 17, 2014, Riverside County Sheriff's Deputy McQueeney was on patrol in the City of San Jacinto as well as in the unincorporated area of Riverside County near Hemet. While on patrol, McQueeney heard dispatch broadcast the license plate number of the group's vehicle. During the night, McQueeney saw the car with three adults inside. McQueeney stopped the car. The group, including the children, were inside. The adults were handcuffed and placed in patrol cars.
Hemet Police Officer Baily searched the group's vehicle. Inside the vehicle Baily found a purse. Inside the purse, Baily found unopened make-up. Inside a toiletries bag and a second bag, Baily found various candies. The items came from Winco. Baily also found a silver and red knife inside the car.
DISCUSSION
A. RICHARD'S APPEAL
1. CRIMINAL THREATS
(a) Substantial Evidence
Richard contends substantial evidence does not support the finding that Santos was in sustained fear as a result of Richard threatening to kill Santos and Santos's family.
"'A substantial evidence inquiry examines the record in the light most favorable to the judgment and upholds it if the record contains reasonable, credible evidence of solid value upon which a reasonable trier of fact could have relied in reaching the conclusion in question. Once such evidence is found, the substantial evidence test is satisfied. [Citation.] Even when there is a significant amount of countervailing evidence, the testimony of a single witness that satisfies the standard is sufficient to uphold the finding.'" (People v. Fuiava (2012) 53 Cal.4th 622, 711.)
For a defendant to be guilty of the offense of making a criminal threat, the threat must cause the victim "reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety." (§ 422, subd. (a).) Fear is sustained "where there is evidence that the victim's fear is more than fleeting, momentary or transitory." (People v. Culbert (2013) 218 Cal.App.4th 184, 190.)
Richard told Santos "he was going to cut [Santos's] 'fuckin' throat.' He'll come back and kill [Santos]. He's from SSC. He'll come back and kill [Santos] and [Santos's] family." Richard's statements caused Santos to be afraid that Richard would harm him and/or kill him. During Santos's testimony, the following exchange took place:
"[Prosecutor]: Did you think at that moment he might actually kill you?
"[Santos]: Yes.
"[Prosecutor]: Were you worried even later he might come back to the store?
"[Santos]: Yes, I was."
Santos's testimony reflects fear in the moment that he was threatened, and ongoing fear that Richard would return to the store and harm him. This continued fear of Richard returning to the store reflects a sustained fear that Richard would carry out his threat of "com[ing] back" to kill Santos. Accordingly, there is substantial evidence of sustained fear.
Richard asserts the sustained fear element was not established because an exact timeframe was not ascribed to the fear felt by Santos. The law does not require a minimum amount of minutes in order for fear to be sustained. Therefore, proof of a particular timeframe is not required. The evidence reflects Santos's fear was "more than fleeting, momentary or transitory," because he felt fear in the moment of the threat, and that fear continued after Richard left the parking lot. (People v. Culbert, supra, 218 Cal.App.4th at p. 190.)
(b) Jury Instruction
In the alternative, Richard contends the trial court erred by not instructing the jury on the lesser included offense of attempted criminal threat because the jury could have found Santos did not suffer sustained fear.
"'"It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case." [Citation.] That obligation has been held to include giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged.'" (People v. Breverman (1998) 19 Cal.4th 142, 154.) We apply the de novo standard of review. (People v. Cole (2004) 33 Cal.4th 1158, 1218.)
The crime of attempted criminal threat occurs when a defendant makes a criminal threat, but is thwarted from completing the crime due to an event beyond the defendant's control. (People v. Chandler (2014) 60 Cal.4th 508, 515.) For example, a defendant makes a criminal threat that is intended to cause fear, and would cause fear in a reasonable person; but, for whatever reason, the victim is not scared by the threat. (Ibid.)
In the instant case, Richard told Santos "he was going to cut [Santos's] 'fuckin' throat.' He'll come back and kill [Santos]. He's from SSC. He'll come back and kill [Santos] and [Santos's] family." Santos was present during the threats, heard the threats, and was in fear due to the threats. Santos testified that his fear continued after Richard left the store's parking lot. Santos feared Richard would return to the store and harm him. The evidence reflects that Santos suffered fear in the moment, which continued after Richard left the parking lot. There is no evidence that Santos was unafraid or only momentarily frightened by Richard's statements. As a result, the inchoate crime of attempted criminal threat is not applicable in this case. Therefore, the trial court did not err.
2. BURGLARY
(a) Substantial Evidence
Richard contends his burglary convictions should be reversed because there was insufficient evidence of his intent at the time he entered the Kohl's and Winco.
"An appellate court reviewing a conviction for sufficiency of the evidence must determine 'whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged.'" (People v. O'Dell (2007) 153 Cal.App.4th 1569, 1577.)
In order to be guilty of burglary, Richard had to enter the Kohl's and Winco with the intent to commit larceny. (§ 459.) "The requisite proof of specific intent to commit theft or some felony at the time of entering the building is normally established inferentially by the facts and circumstances surrounding the crime. [Citations.] Any conflicts in the evidence must be resolved in favor of the express or implied findings of the trier of fact." (People v. Huber (1964) 225 Cal.App.2d 536, 541.)
The group entered Kohl's "[a]t about 6:00 [p.m.]" Richard selected four tank tops. He took each tank top off the hanger and left the hangers on the rack. People who take items off of hangers tend to do so in order to conceal the items. Richard selected two watches. Richard moved through the store until he encountered Yevette and Jennifer. At that point, Richard can be seen on the store's video recording discarding a security tag from a watch. The timestamp on the video is 6:05 p.m. By 6:17 p.m., Richard was in the store's parking lot. Given that Richard was in the store for approximately 20 minutes, and most of that time was consumed by removing hangers, security tags, and a watch box, so as to more easily conceal items, a trier of fact could reasonably conclude Richard entered the store with the intent to steal. All of Richard's actions in that short time period reflected that he planned to steal the items he selected. Thus, it can reasonably be inferred that Richard planned to steal merchandise when he entered the store. Therefore, there is substantial evidence supporting the intent finding for the Kohl's burglary.
The group entered Winco "a little after 7:00 [p.m.]" The group went to the baby products aisle and huddled together in what appeared to be an attempt to conceal items. They then went to the health and beauty aisle, the chip and candy aisle, and the paper towel aisle. One of the women selected items in the health and beauty aisle. The group selected candy in the candy aisle. Richard concealed items inside purses in the paper towel aisle. At approximately 7:10 p.m. the group was exiting the store.
Given that the group was in the store for approximately 10 minutes, and most of the activity during that time concerned concealing items, and the group was huddling together so as to conceal items from the first aisle entered, the jury could reasonably conclude Richard's intent when he entered the store was to take items. Substantial evidence supports the inference that Richard entered the Winco with the intent to steal.
(b) Shoplifting
Richard contends his misdemeanor burglary convictions (§ 459) must be modified to shoplifting convictions (§ 459.5) pursuant to Proposition 47 (§ 1170.18).
References to section 1170.18 are to former section 1170.18, effective November 5, 2014, to December 31, 2016
Section 1170.18, subdivision (a), provided, "A person currently serving a sentence for a conviction, whether by trial or plea, of a felony or felonies . . . ." Thus, Prop 47 applied to felony convictions. It provided a means for felony sentences to be reduced to misdemeanor sentences. (§ 1170.18, subd. (b).)
Richard's burglary convictions are already misdemeanors. The burglaries were charged as misdemeanors in the amended information, and the jury convicted Richard of the crimes "as charged." Proposition 47 did not permit a court to exchange one misdemeanor conviction for another misdemeanor conviction. (§ 1170.18, subd. (b).) Accordingly, Richard's misdemeanor burglary convictions cannot be transmuted into shoplifting convictions under section 1170.18.
(c) Jury Instruction
Richard contends the trial court erred by not sua sponte instructing the jury on the necessarily lesser included offense of shoplifting.
There are two tests for "determining whether an uncharged offense is necessarily included within a charged offense: the 'elements' test and the 'accusatory pleading' test. Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former. Under the accusatory pleading test, if the facts actually alleged in the accusatory pleading include all of the elements of the lesser offense, the latter is necessarily included in the former." (People v. Reed (2006) 38 Cal.4th 1224, 1227-1228.)
We begin with the accusatory pleading test. The amended information charged Richard with two counts of burglary as follows: "[O]n or about July 17, 2014, in the County of Riverside, State of California, [he] did willfully and unlawfully enter a certain building located at KOHL'S . . . with intent to commit theft and a felony"; and "[O]n or about July 17, 2014, in the County of Riverside, State of California, [he] did willfully and unlawfully enter a certain building located at WINCO . . . with intent to commit theft and a felony." Shoplifting requires a defendant to enter a commercial establishment "during regular business hours." (§ 459.5, subd. (a).) The accusatory pleading does not allege Richard entered the stores during regular business hours. Therefore, shoplifting is not a necessarily lesser included offense under the accusatory pleading test.
We now turn to the statutory elements test. A burglary is committed when a person enters a shop or "other building" with the intent to commit grand or petit larceny. (§ 459.) Shoplifting occurs when a person enters a commercial establishment with the intent to commit larceny while the establishment is open during regular business hours, and where the value of the property taken, or intended to be taken, does not exceed $950. (§ 459.5, subd. (a).)
Both crimes require an entry with the intent to commit larceny. (§§ 459, 459.5, subd. (a).) A burglary can occur at a shop or "other building," while shoplifting is limited to "commercial establishment[s]." There is no limit on the hours for burglary, but shoplifting is limited to the regular business hours of the victimized establishment. Burglary can occur whether the business is open or closed. Shoplifting is limited to when a business is open. There is no requirement for burglary that items be taken. Similarly, there is no requirement for shoplifting that items be taken. Burglary has no monetary limits, while shoplifting is limited to $950. Burglary is defined more broadly than shoplifting—all the limits and details are within the lesser shoplifting offense. As a result of burglary's broad definition, burglary encompasses all of the elements of shoplifting. Therefore, shoplifting (§ 459.5) is a necessarily lesser included offense of burglary (§ 459).
The People contend the trial court was not obligated to instruct on shoplifting (§ 459.5) because the crime did not exist in July 2014 when Richard committed his offense. In In re Estrada (1965) 63 Cal.2d 740, the court held that where a statute has been amended to lessen the punishment for an offense and there is no clear indication of an intent to apply the amendment prospectively only, it must be presumed that the Legislature intended the mitigated punishment to apply to all judgments not yet final as of the effective date of the amended statute. (Id. at pp. 744-747.) There is a six-month difference in sentence between a shoplifting conviction and a misdemeanor burglary conviction. (§§ 19 [six months for shoplifting] & 461, subd. (b) [one year for burglary].)
Section 459.5 provides, "(a) Notwithstanding Section 459, shoplifting is defined as entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours, where the value of the property that is taken or intended to be taken does not exceed nine hundred fifty dollars ($950). Any other entry into a commercial establishment with intent to commit larceny is burglary. Shoplifting shall be punished as a misdemeanor, except that a person with one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290 may be punished pursuant to subdivision (h) of Section 1170.
"(b) Any act of shoplifting as defined in subdivision (a) shall be charged as shoplifting. No person who is charged with shoplifting may also be charged with burglary or theft of the same property."
There is nothing in the statutory language reflecting that it is only prospective. The statute commands that all offenses meeting the shoplifting definition be charged as shoplifting, and does not exclude pending cases. For example, the statute does not read "shall be charged as shoplifting, but pending misdemeanor burglary cases are excluded." Because there is no language indicating an intent for the shoplifting offense to be prospective only, and it provides a lesser punishment, we conclude it is retroactive. Therefore, the trial court had a duty to instruct the jury on the necessarily lesser included offense of shoplifting. (See People v. Breverman, supra, 19 Cal.4th at pp. 154-155 [trial court has a sua sponte duty to instruct on lesser included offenses].)
The People assert Proposition 47 is prospective because section 1170.18 requires a defendant to petition the trial court for a recall of his/her sentence. Section 1170.18 concerned people "currently serving" prison terms. (§ 1170.18, subd. (a).) Section 1170.18 does not apply to Richard because he was not serving a prison sentence at the time this error occurred. To the extent the People are suggesting Richard needed to wait for his conviction and sentence to be finalized and then file a petition, there would arguably be forfeiture issues if he waited beyond the appeal to raise the issue. Moreover, Richard cannot file a petition due to the burglary conviction being a misdemeanor. (§ 1170.18, subd. (a) [petitions are for felony convictions].) Thus, we cannot rely on section 1170.18 because it is not relevant to the facts and procedure of this case. The issue is whether the shoplifting statute (§ 459.5) contains language reflecting it is prospective only. We see no such language in the statute.
The People contend Richard forfeited the issue by failing to raise it in the trial court. Richard's argument is that the trial court had a sua sponte duty to instruct on shoplifting. Richard did not forfeit this issue because it was the trial court's obligation to give the instruction whether or not Richard requested the instruction. (People v. Breverman, supra, 19 Cal.4th at p. 154.)
The People argue the offense of shoplifting might not apply to the Winco burglary because no evidence was presented concerning the value of the items taken from Winco. It was the People's burden to prove the value of the items taken. We cannot fault defendant for failing to provide evidence of the property's value. (People v. Anderson (1989) 210 Cal.App.3d 414, 428-429 [it would violate due process to shift the burden of proof to a defendant].) Because defendant was charged with and convicted of misdemeanor burglary it is unlikely the value of the property exceeded $950. (See generally People v. Moomey (2011) 194 Cal.App.4th 850, 856 [second degree burglary is a wobbler].) This conclusion is further supported by the evidence reflecting Richard primarily took candy, along with some makeup and baby items. It is highly improbable the items totaled more than $950.
The People contend that if the trial court erred by not instructing on the lesser included offense, then the burglary convictions should be modified to shoplifting convictions, rather than reversed. Richard agrees it would be appropriate to modify the convictions. We will modify the convictions and associated sentences. (See People v. Adams (1990) 220 Cal.App.3d 680, 688 [reviewing court's authority to modify convictions].)
3. GANG EVIDENCE
(a) Procedural History
During the direct examination of Santos the following exchange occurred:
"[Prosecutor]: Did [Richard] say anything else to you?
"[Santos]: He mentioned a gang name.
"[Prosecutor]: Okay. And what gang name do you believe he mentioned?
"[Santos]: It was SSC.
"[Prosecutor]: Okay. Did [Richard] say anything else when he invoked that gang name?
"[Santos]: That he would come back and kill me and my family as well.
"[Prosecutor]: And can you tell the jury exactly how it is that that statement is made as if you were [Richard]? Tell the jury what [Richard] did and said.
"[Santos]: He said he was going to cut 'my fuckin' throat.' He'll come back and kill me. He's from SSC. He'll come back and kill me and my family.
"[Prosecutor]: Okay. So he's shouting, 'I'm from SSC. I'll kill you and your family?'
"[Santos]: Yes.
"[Prosecutor]: And did you understand that to be a direct threat?
"[Santos]: Yes.
"[Prosecutor]: And were you afraid?
"[Santos]: Yes."
(b) Analysis
Richard contends the trial court erred by admitting gang evidence because it was more prejudicial than probative. (Evid. Code, § 352.)
"The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.) We apply the abuse of discretion standard of review. (People v. Peoples (2016) 62 Cal.4th 718, 743.) A trial court abuses its discretion when its ruling is "'arbitrary, capricious, or patently absurd.'" (Id. at p. 745.)
The evidence that Richard said, "I'm from SSC" was relevant because those are the words Richard said to Santos. It was relevant for the jury to know exactly what happened during the encounter between Richard and Santos because the jury needed to determine what Richard said, and did, in order to make its finding of guilt or innocence. The evidence that Santos believed SSC to be a gang was relevant to determining if Santos was reasonably in sustained fear. (§ 422.) It is helpful for the jury to understand what Santos thought in the situation so they could better understand his mental/emotional state for the purpose of the fear element.
Richard's statement that he was associated with SSC and Santos's belief that SSC was a gang were prejudicial because gang evidence can be "'"highly inflammatory."'" (People v. Williams (1997) 16 Cal.4th 153, 250.) However, because Richard discussed SSC when committing the threat offense, the trial court could reasonably conclude the gang evidence was more probative than prejudicial because it went to the conduct/words that constituted the threat offense. Accordingly, we conclude the trial court did not err.
Richard contends the gang evidence was not relevant because there was no evidence of other gang members being present or of Santos having knowledge of gangs. The lack of evidence on these points is something for the trier of fact to consider when determining whether Santos was reasonably in sustained fear, but it does not mean the gang evidence was irrelevant. A small amount of evidence on gangs does not render irrelevant the evidence that does exist.
B. YEVETTE'S APPEAL
1. ROBBERY
Yevette contends substantial evidence does not support her robbery convictions (§ 211) because robbery is not a natural and probable consequence of burglary/shoplifting.
"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.)
"Aider-abettor liability exists when a person who does not directly commit a crime assists the direct perpetrator by aid or encouragement, with knowledge of the perpetrator's criminal intent and with the intent to help him carry out the offense." (People v. Miranda (2011) 192 Cal.App.4th 398, 407 (Miranda).) "Under the natural and probable consequences doctrine, an aider and abettor is guilty of not only the offense [s]he intended to facilitate or encourage, but also of any reasonably foreseeable offense committed by the actual perpetrator." (Id. at pp. 407-408.)
"The elements of aider and abettor liability under this theory are: the defendant acted with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of a predicate or target offense; (3) the defendant by act or advice aided, promoted, encouraged or instigated the commission of the target crime; (4) the defendant's confederate committed an offense other than the target crime; and (5) the offense committed by the confederate was a natural and probable consequence of the target crime that the defendant aided and abetted." (Miranda, supra, 192 Cal.App.4th at p. 408.)
"'The issue "is not whether the aider and abettor actually foresaw the additional crime, but whether, judged objectively, it was reasonably foreseeable."'" (Miranda, supra, 192 Cal.App.4th at p. 408.) "Under the applicable substantial evidence standard of review, we view the evidence in the light most favorable to the judgment, and will affirm if there is reasonable and credible evidence from which the jury could have relied in reaching its verdict." (Ibid.)
Inside Kohl's, Yevette used her index and middle fingers to point at her eyes; she then moved her index finger in a circle. The movement indicated that Jennifer should watch the area for store employees. A video recording showed Richard discarding a store security tag and concealing an item in his right front pocket. A second loss prevention officer, Sandoval, saw Richard place items from the shopping cart into Yevette's purse. Richard exited the store. When Richard encountered loss prevention agents, he moved toward them aggressively with closed fists. Yevette and Jennifer exited the store and went to a car.
The evidence reflects a reasonable person would have or should have known the robbery was a foreseeable consequence of the burglary. The group entered Kohl's while employees were present and took multiple items. A reasonable person intending to steal from a store would reasonably contemplate that one or more security agents would attempt to stop the theft, that a confrontation might ensue, and that the security agents might be intimidated and fearful. Therefore, we conclude the robbery was a natural and probable consequence of the Kohl's burglary.
Inside Winco, Yevette placed her purse in the shopping cart. Yevette then looked around to see if other people were nearby and said something to Richard. Richard then leaned over the shopping cart, which had various items in it. When Richard moved back, the shopping cart was significantly emptier than it had been, and Yevette's purse was still in the cart. The group exited the store without stopping to pay for the items inside Yevette's purse.
Yevette walked toward a car. Rosa, a loss prevention agent, went after Yevette, asked her to return the merchandise, and reached for Yevette's purse. Yevette told Rosa that he was assaulting her. Rosa heard "something" and turned around. Rosa saw Richard holding a knife in the vicinity of Santos.
The evidence of the Winco burglary also reflects a reasonable person would have or should have known the robbery was a foreseeable consequence of the burglary. The group entered Winco while employees were present and took multiple items. A person intending to steal from a store would reasonably contemplate that one or more security agents would attempt to stop the theft, that a confrontation might ensue, and that the security agents might be intimidated and fearful. Therefore, we conclude the robbery was a natural and probable consequence of the Winco burglary.
2. JURY INSTRUCTION
Yevette joins in Richard's arguments, including the contention about the trial court failing to instruct on the necessarily lesser included offense of shoplifting (§ 459.5). As explained ante, the trial court erred by failing to instruct on the necessarily lesser included offense of shoplifting. Yevette agrees with the People's suggestion that her burglary convictions could be modified to shoplifting convictions. Therefore, we will modify Yevette's misdemeanor burglary convictions (§ 459) so they become shoplifting convictions (§ 459.5).
When the trial court granted Yevette probation, it stated it was doing so, in part, "because we're dealing with this situation now because of Prop 47. And under Prop 47, the voters—the voters of California passed Prop 47 indicating a desire on behalf of the voters to make certain offenses misdemeanors." Because the trial court took Proposition 47 into account when granting Yevette probation, we will not remand the case for her to be resentenced, due to the trial court already considering the effects of Proposition 47 when granting probation.
DISPOSITION
Counts 5 and 6 for Richard Anthony Nartates and Yevette Knadine Nieves are modified to shoplifting convictions (§ 459.5). Richard Anthony Nartates's sentence on Count 5 is modified from a one-year sentence to a six-month sentence (§ 19). Richard Anthony Nartates's sentence on Count 6 is modified from a one-year sentence to a six-month sentence (§ 19). Richard Anthony Nartates's modified six-month sentences on Counts 5 and 6 remain stayed pursuant to section 654. In all other respects the judgments against Richard Anthony Nartates and Yevette Knadine Nieves are affirmed.
The record does not include a misdemeanor abstract of judgment. Accordingly we do not direct the trial court to issue an amended abstract of judgment. --------
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: HOLLENHORST
Acting P. J. SLOUGH
J.