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People v. Noel

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Apr 25, 2018
E066474 (Cal. Ct. App. Apr. 25, 2018)

Opinion

E066474

04-25-2018

THE PEOPLE, Plaintiff and Respondent, v. JODY WAYNE NOEL, Defendant and Appellant.

Eric S. Multhaup, 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, and Collette C. Cavalier and Teresa Torreblanca, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. INF1402497) OPINION APPEAL from the Superior Court of Riverside County. W. Charles Morgan, Judge. (Retired Judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. Eric S. Multhaup, 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, and Collette C. Cavalier and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.

I. INTRODUCTION

A jury convicted defendant and appellant, Jody Wayne Noel, of carjacking (Pen. Code, § 215, subd. (a)), robbery (§ 211), possessing a firearm in a public building (§ 171b, subd. (a)), resisting an executive officer (§ 69, subd. (a)), and four counts of being a violent offender in possession of a firearm (§ 29900, subd. (a)). The jury also found defendant personally used a firearm in the commission of the robbery. (§ 12022.53, subd. (b).) For these offenses and a number of status enhancements that defendant admitted (§§ 667, subds. (a), (c), (e)(1), 667.5, subd. (b), 1170.12, subd. (c)(1), 12022.1, subd. (b)), the court sentenced him to a total of 32 years plus 50 years to life in prison.

All further statutory references are to the Penal Code.

Defendant contends there was insufficient evidence that he knew of or controlled two of the firearms the jury convicted him of possessing. He also contends the court erred in failing to instruct the jury sua sponte on constructive possession of the firearms. His last arguments relate to the robbery conviction. A Walmart asset protection associate confronted him as he was leaving a Walmart store with stolen merchandise. He argues the prosecution had to prove that he knew the asset protection associate was a store employee, the court failed to so instruct the jury, and there was insufficient evidence that he knew the associate was a store employee. We reject each of these contentions and affirm.

II. FACTS

A. The August 12, 2014, Incident at the Palm Springs International Airport

On August 12, 2014, a taxi driver picked up two men from an address on Luna Way in Palm Springs. The driver picked up a woman approximately five miles away, and then he drove all three passengers to the car rental location at the Palm Springs International Airport. All three passengers sat in the back seat of the taxi. After the passengers exited the taxi, the driver picked up another passenger at the airport. As the driver was pulling away from the airport, the new passenger drew his attention to some bullets on the floorboard in the rear of the taxi. The driver immediately went to a nearby police station and reported the incident. He also described to the officer the three passengers he had just dropped off at the airport car rental counter.

Officer Tarina Adams of the Palm Springs Police Department was stationed at the police department's airport office that day and received a message from dispatch about the bullets found in the taxi. Dispatch described three passengers, two males and one female who had tattoos and "look[ed] like gang members." Officer Adams went to the car rental counter and located three people who appeared to match the description. She asked the two males—one of whom she later identified as defendant—if they arrived in a taxi; one said "yes" and the other said "no." She asked the question again, and they both said "yes." She asked for their names and birth dates, and defendant gave her false information in response. She noticed that he was reaching towards his back as if in pain, and was pushing or pulling at his right pocket. The officer explained what she had heard about the bullets on the taxi floorboard and said she was going to pat him down for her safety. He said she could not search him. She then asked him to face away from her and interlock his hands behind his head, and he complied.

As Officer Adams was reaching for his hands, defendant pulled away from her and ran. She and others chased and eventually apprehended him. Once she handcuffed him, she searched him and found a nine-millimeter Glock pistol in his right pocket. During a later interview, defendant indicated that he knew it was illegal for him to possess the gun, but "he would always carry a firearm" to protect himself and his family, "regardless of whether it was . . . illegal or not." B. The August 22, 2014, Robbery

Roberto Hernandez is an asset protection associate at a Walmart store in Palm Springs. He does not wear a uniform and walks the floor looking for shoplifters. On August 22, 2014, Hernandez was working and observed defendant select a computer and put it in his shopping cart. Defendant walked to another area of the store and left the shopping cart with a female while he exited the store. The female took the cart to the entrance of the store. Defendant returned to the store through that same entrance, took the computer out of the cart, and started walking out with it.

The store's electronic alarm system went off as defendant was exiting. Walmart has one set of doors leading to a vestibule area, then a set of main doors leading outside. Hernandez was standing in the vestibule approximately five feet from the main doors when defendant set off the alarm system. He was facing defendant as defendant entered the vestibule carrying the computer. When defendant was only a few feet from Hernandez, Hernandez told him, "I'm asset protection." Hernandez was about to ask defendant to come back inside when defendant pulled a gun from his left pocket and said, "Don't mess with me." He did not point the gun at Hernandez but pulled it completely out of his pocket, "basically showing it to" Hernandez. It appeared to be a black revolver. Hernandez feared for his safety and stood back to let defendant exit. Defendant drove off with the computer and his female companion. The prosecution played surveillance footage of Hernandez's encounter with defendant for the jury. C. The September 2, 2014, Carjacking

Jesse Lerma met defendant a few days before September 2, 2014. On September 2, Lerma was sitting in his Audi in the driveway of a friend. His friend had just left the house, and he was getting ready to leave also. Defendant and another man, whom Lerma had known for a few years, pulled up to the house and parked on the street. They got out of their car, and defendant's companion asked Lerma if defendant could borrow his Audi. Defendant's companion offered Lerma $100, but Lerma refused. Lerma was about to turn on the Audi and drive off when defendant got into the passenger seat. Lerma then offered to give defendant a ride, but defendant said he had "some things to take care of" and pulled up his shirt to display a gun tucked into his waistband. Defendant put his hand on the handle of the gun. Lerma responded, "It's fine . . . here's the car." He feared for his safety and did not want the situation to escalate. Lerma got out of the driver's seat and defendant drove off with the Audi. Defendant's companion handed Lerma a hundred dollar bill and left in the car in which he had arrived.

While the jury convicted defendant of this carjacking, it found not true the allegation that he personally used a firearm in the commission of this crime, and it found him not guilty of unlawfully possessing a firearm on this date. --------

Lerma called the police the following day. He did not immediately call the police because he was giving defendant "the benefit of the doubt he would come back," and he "'[d]idn't want any shit.'" Lerma has a criminal history, including a 1994 felony conviction for possession of drugs or alcohol in a jail, a 2000 felony conviction for possession of a controlled substance for sale, a 2002 misdemeanor conviction for disturbing the peace, a 2003 felony conviction for vehicle theft, and a 2006 misdemeanor conviction for battery of a spouse or cohabitant. D. The September 4, 2014, Search of the Luna Way House

Officers used the GPS tracking system on Lerma's Audi to locate the car on September 4, 2014. The car was at the same address on Luna Way where the taxi had picked up defendant on August 12, 2014, to go to the airport.

Nora Chagolla lived at the Luna Way house. On previous occasions, officers had also contacted her boyfriend, Robert Hood, at that house. On September 4, 2014, police observed Chagolla leaving the house with a baby in a stroller. The officer who made contact with Chagolla said she seemed surprised to see him. He asked about Lerma's Audi, and Chagolla told him the Audi was parked in her garage. She consented to a search of the garage. As Chagolla and the officer were talking, the front door opened and defendant appeared at the threshold. Defendant said, "Oh, shit," and closed the door. Officers had set up a perimeter around the house at this point. Approximately three minutes after defendant closed the front door, Officer Donald Benstead observed defendant open the back door and step out. Defendant completely exited the house except for his right hand, which was concealed behind the sliding glass door. Officer Benstead said, "Show me your hands." Defendant ignored the command, went back inside, and closed the door. The officer could not see what was going on inside because blinds or drapes covered the windows. Another three minutes passed, and defendant came out of the house through the front door. There were no other people found in the house, to Officer Benstead's knowledge.

Officers searched the house and found Lerma's Audi in the garage. They discovered the key to the Audi on the bed in the master bedroom of the house. They also found a gun cleaning kit on the same bed and a .38-caliber casing in the toilet bowl of the master bedroom's bathroom. They found two guns in a crib in another bedroom. Someone had stuffed the guns inside a pillow that had been torn open. The tear in the pillow was clearly visible. Some pillow stuffing was falling out and a portion of one gun was visible through the tear. One gun was a .40-caliber Iberia semiautomatic firearm, and the other was a .40-caliber Smith & Wesson semiautomatic firearm.

III. DISCUSSION

A. Substantial Evidence Supported Defendant's Conviction for Unlawful Possession of the Guns Found at the Luna Way House

The jury convicted defendant of unlawfully possessing the guns found in the crib at the Luna Way house. Defendant contends insufficient evidence showed he constructively possessed these firearms. We disagree.

Our standard of review is well settled. "On appeal we review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] The standard of review is the same in cases in which the People rely mainly on circumstantial evidence." (People v. Stanley (1995) 10 Cal.4th 764, 792.) We "'presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.'" (People v. Johnson (1980) 26 Cal.3d 557, 576.) We do not resolve credibility issues or evidentiary conflicts. (People v. Young (2005) 34 Cal.4th 1149, 1181.) The trier of fact resolves such issues or conflicts. (Ibid.) "Even if we might have made contrary factual findings or drawn different inferences, we are not permitted to reverse the judgment if the circumstances reasonably justify those found by the jury." (People v. Perez (1992) 2 Cal.4th 1117, 1126.)

The jury convicted defendant under section 29900. This section states that people who have been convicted of specified violent offenses may not possess, or have under their custody or control, any firearm. (§§ 29900, subd. (a)(1), 29905.) "Possession may be physical or constructive, and more than one person may possess the same" firearm. (People v. Miranda (2011) 192 Cal.App.4th 398, 410.) "A defendant has actual possession when he himself has the weapon." (In re Daniel G. (2004) 120 Cal.App.4th 824, 831.) A defendant has "constructive possession when the weapon, while not in his actual possession, is nonetheless under his dominion and control, either directly or through others." (People v. Pena (1999) 74 Cal.App.4th 1078, 1083-1084.) While presence or opportunity of access, standing alone, is not sufficient evidence of constructive possession, it is one factor the jury may consider to find possession. (People v. Zyduck (1969) 270 Cal.App.2d 334, 336.) The "additional circumstances" required to infer dominion and control "may, in some fact contexts, be rather slight." (Ibid.)

Here, defendant contends the "only evidence" supporting his possession was "[his] mere presence as an apparent visitor in the Chagolla-Hood residence . . . ." He is incorrect. Substantial evidence showed more than his mere presence—it showed he exercised control over the two guns found in the crib. After the incident at the airport when Officer Adams caught defendant with a gun, he told her he would "always carry" a gun, even knowing it was illegal for him to do so. This was not just talk. Ten days later, he displayed a gun while stealing a computer from Walmart. Eleven days after that, he carjacked Lerma, and police tracked Lerma's Audi to Chagolla's house. Defendant was no stranger to that house. Not only did he hide a stolen car there, but the taxi driver picked defendant up from that house several weeks earlier. When defendant discovered an officer at the house, he expressed surprise ("Oh, shit") and shut the front door. He tried to leave through the back door after three minutes, and Officer Benstead caught him concealing his right hand behind the sliding glass door. He refused to show the officer his right hand when commanded to do so and immediately reentered the house. After another three minutes, he surrendered by coming out the front door. There was no evidence others were in the house when defendant surrendered. Chagolla never went back into the house once confronted by the officer. After defendant's six minutes alone in the house—during which he knew police were outside—officers found the two guns and a bullet casing under circumstances suggesting they were hidden. The guns, in particular, looked hastily hidden. They were stuffed inside a torn-open pillow, stuffing was falling out, and one gun was partially exposed. Officers found the bullet inside the toilet bowl in the master bedroom's bathroom—the same bedroom where they found the key to the car defendant had carjacked. The jury could reasonably infer from the totality of this evidence that defendant, true to his earlier words to Officer Adams, had guns on him and knew this was unlawful, then hid them in the crib in the six minutes between the time he saw the first officer and his surrender. The evidence showed he exercised control over the guns and thus possessed them within the meaning of section 29900.

Nothing in the case on which defendant relies convinces us otherwise. He argues this case is analogous to People v. Sifuentes (2011) 195 Cal.App.4th 1410, but it is distinguishable. Sifuentes and his codefendant were gang members, and the prosecution relied on gang expert testimony to establish constructive possession of the subject gun. (Id. at p. 1415.) Officers had knocked on a motel room door and entered the room after receiving no response, seeing the blinds move, and hearing movement inside. (Id. at pp. 1413-1414.) They found Sifuentes laying on a bed nearest the door. (Id. at p. 1414.) His codefendant was kneeling on the floor on the far side of a second bed, facing the officers. (Ibid.) One officer ordered the codefendant to raise his hands; he raised only his left hand and looked down at his right hand. (Ibid.) He eventually raised his right hand after three demands by the officer. (Ibid.) An officer later found the gun under the mattress next to the codefendant. (Ibid.) The court held no substantial evidence showed Sifuentes "had the right to control the firearm, even if [he] knew a weapon was in the room." (Id. at p. 1417.) The gang expert's testimony was insufficient. (Ibid.) The expert testified that gang members freely pass around "'gang guns,'" and subject to "'certain restrictions'" on which he did not elaborate, a gang gun is accessible to all members "'[a]t most times.'" (Id. at p. 1415.) But he did not say "all gang members always have the right to control a gang gun." (Id. at p. 1417.) Further, there was no evidence the gang members were about to engage in offensive or defensive actions, such that they might need joint access to the gun. (Id. at pp. 1417-1418.) The court concluded the expert did not link Sifuentes to the particular gun found next to his codefendant. (Id. at p. 1419.)

Defendant is in a position much more like Sifuentes's codefendant than Sifuentes. The evidence showed Sifuentes's codefendant hid the gun and therefore had control over it—he raised one hand, looked down, then belatedly raised the other, and the officers found the gun under the mattress next to which he was kneeling. Similarly, as we have explained, the evidence in this case showed defendant had the guns and hid them in the crib. There was no deficient attempt to link defendant to the gun based solely on expert testimony about relations between gang members and so-called gang guns. B. The Court Did Not Err in Instructing the Jury on Constructive Possession

The court instructed the jury with a modified version of CALCRIM No. 2511, "Possession of Firearm by Person Prohibited Due to Conviction." The instruction stated, in pertinent part: "Defendant is charged in Counts 2, 4, 5, 8 and 9 with unlawfully possessing a firearm in violation of [section] 29900 of the Penal Code. [¶] To prove the defendant is guilty of this crime, the People must prove that: [¶] One. The defendant possessed a firearm. [¶] And two. The defendant knew that he possessed the firearm." Defendant contends the court erred by omitting the portion of the pattern jury instruction that explains constructive possession, which states: "A person does not have to actually hold or touch something to possess it. It is enough if the person has (control over it/ [or] the right to control it), either personally or through another person)." (CALCRIM No. 2511.) Looking at the instructions as a whole, we disagree the court erred.

We review a claimed instructional error de novo. (People v. Posey (2004) 32 Cal.4th 193, 218.) The trial court must instruct sua sponte "on general principles of law that are closely and openly connected with the facts of the case." (People v. Perez, supra, 2 Cal.4th at p. 1129.) It is well established that the "'correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.' [Citation.] '"The absence of an essential element in one instruction may be supplied by another or cured in light of the instructions as a whole."'" (People v. Castillo (1997) 16 Cal.4th 1009, 1016.) "Jurors are presumed able to understand and correlate instructions . . . ." (People v. Sanchez (2001) 26 Cal.4th 834, 852.) Thus, "[t]here is no error in a trial court's failing or refusing to instruct on one matter, unless the remaining instructions, considered as a whole, fail to cover the material issues raised at trial." (People v. Dieguez (2001) 89 Cal.App.4th 266, 277.)

Here, the court did not err because it explained constructive possession to the jury when it instructed on carjacking and robbery. As to carjacking, the court instructed that the prosecution had to prove defendant took the vehicle "from the immediate presence of a person who possessed the vehicle or its passenger." (CALCRIM No. 1650.) The court also added: "A person does not have to actually hold or touch something to possess it. It is enough if that person has control over it or the right to control it, either personally or through another person." (Ibid.) The court instructed the jury similarly with regard to robbery. It explained the prosecution had to prove defendant took property "in [the] possession of another person." (CALCRIM No. 1600.) Then the court told the jury: "A person does not have to actually hold or touch something to possess it. It is enough if the person has control over it or the right to control it, either personally or through another person." (Ibid.) Accordingly, the court instructed the jury twice that possession includes actual and constructive possession, and specifically instructed the jury on the meaning of constructive possession, using the exact language defendant contends the court should have used. Given the entirety of the charge to the jury, the court did not err. C. Defendant's Knowledge of Hernandez's Status as a Store Employee Was Not an Element of Robbery

Lastly, defendant charges error with respect to his conviction for robbing the Walmart. He asserts the prosecution had to prove that he knew Hernandez, the asset protection associate, was a store employee. He argues the court failed to instruct the jury on this purported element of robbery, and moreover, the evidence showing his knowledge of this fact was "constitutionally insufficient." We conclude this was not an element of the offense, but even if it were, substantial evidence showed that defendant knew Hernandez was a store employee.

Defendant's contention as to the necessary elements of robbery raises a question of law, which we review de novo. (People v. Louis (1986) 42 Cal.3d 969, 985.) Robbery "is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (§ 211.) "Robbery is a crime of violence committed against a person. . . . [¶] A person from whose immediate presence property was taken by force or fear is not a robbery victim unless, additionally, he or she was in some sense in possession of the property." (People v. Scott (2009) 45 Cal.4th 743, 749.) "A person who owns property or who exercises direct physical control over it has possession of it, but neither ownership nor physical possession is required to establish the element of possession for the purposes of the robbery statute." (Id. at p. 749.)

"'California follows the long-standing rule that the employees of a business constructively possess the business owner's property during a robbery.'" (People v. Scott, supra, 45 Cal.4th at p. 752.) Therefore, "the prosecution may meet its burden of proving the element of possession by establishing that the alleged victim, from whose immediate presence the property was taken by force or fear, was an employee of the property owner and was on duty when the robbery took place." (Id. at p. 756.) Additionally, courts have expanded the theory of constructive possession to include even nonemployee victims who have the authority or responsibility to protect stolen property on behalf of the property's owner. (Id. at pp. 750, 753.)

Consistent with these principles, the court instructed the jury here that "[a] store employee who is on duty has possession of the store owner's property." (CALCRIM No. 1600.) Defendant contends there was an "implicit element" of robbery on which the court also had to instruct the jury—the prosecution had to prove he knew the store employee was an employee. Defendant cites no authority for this "implicit element," nor have we found any. It was sufficient that the prosecution prove he took store property from the immediate presence of an on-duty store employee through force or fear. (People v. Scott, supra, 45 Cal.4th at p. 756.) And there was no dispute that Hernandez was, in fact, an asset protection associate of Walmart. He thus constructively possessed Walmart property, including the computer defendant stole.

Defendant likens his situation to someone charged with assaulting a police officer. He points out the pattern jury instruction requires the prosecution to prove the defendant "knew, or reasonably should have known, that the person assaulted was a (firefighter/peace officer) who was performing (his/her) duties." (CALCRIM No. 860.) But defendant's case is not analogous. The plain language of the statute defining assault on a police officer requires this knowledge. (§ 245, subd. (c) [mandating that the assailant "knows or reasonably should know that the victim is a peace officer or firefighter engaged in the performance of his or her duties . . . ."].) By contrast, the plain language of the robbery statute requires no such knowledge. (§ 211.)

Even assuming defendant were correct about the "implicit element" of the offense, we would reject his argument that the evidence showing his knowledge was constitutionally insufficient. As defendant acknowledges, constitutional principles simply require that the record disclose substantial evidence of the fact in question. (People v. Johnson, supra, 26 Cal.3d at pp. 575-577.) The record does that here. Hernandez was only a few feet away from defendant when he identified himself as an asset protection associate. Defendant, who was in the process of stealing a computer, should have fully expected that someone identifying himself as store security would confront him. Indeed, defendant seemed prepared for a confrontation, because he responded by immediately pulling out his gun and saying, "Don't mess with me." The jury could reasonably infer from this evidence that defendant heard what Hernandez said and, hence, knew he was a store employee or someone with "authority or responsibility to protect the stolen property on behalf of the owner." (People v. Scott, supra, 45 Cal.4th at p. 753.)

IV. DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS

J. We concur: McKINSTER

Acting P. J. MILLER

J.


Summaries of

People v. Noel

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Apr 25, 2018
E066474 (Cal. Ct. App. Apr. 25, 2018)
Case details for

People v. Noel

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JODY WAYNE NOEL, Defendant and…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

Date published: Apr 25, 2018

Citations

E066474 (Cal. Ct. App. Apr. 25, 2018)