Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. YA067282. Mark S. Arnold, Judge.
Gerald Peters, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Theresa A. Patterson and Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.
BOREN , P.J.
A jury convicted Derrick J. Oden (appellant) of eight counts of second degree robbery (Pen. Code, § 211) (counts 1, 15-18, 21-23), one count of assault with a firearm (§ 245, subd. (a)(2)) (count 19), and one count of attempted second degree robbery (§§ 664, 211) (count 20). In all counts with the exception of count 18, the jury found that appellant personally used a firearm (§ 12022.53, subd. (b), 12022.5, subds. (a), (d)).
All further references to statutes are to the Penal Code unless otherwise indicated.
The firearm-use allegation was not printed on the verdict form for count 18.
In a bifurcated proceeding, the trial court found that appellant had suffered three prior serious felony convictions within the meaning of the three strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and two prior serious felony convictions (§ 667.5, subd. (a)(1)). The trial court struck the allegations under section section 667.5, subdivision (b).
The trial court sentenced appellant to a term of 440 years to life in prison. The sentence consisted of 45 years to life (25 years to life for the robbery, 10 years for the firearm enhancement, 10 years for the prior serious felony) in counts 1, 15, 16, 17, 18, 20, 21, 22, and 23, and 35 years to life (25 years with a 10-year firearm enhancement) in count 19.
Appellant appeals on the grounds that: (1) the trial court abused its discretion at the preliminary hearing by refusing to grant standby counsel a continuance in order to prepare for trial; (2) there is insufficient evidence to support the verdicts of multiple robberies in counts 16, 22, and 23, resulting in a violation of appellant’s federal constitutional right to due process; (3) there is insufficient evidence to support appellant’s conviction for attempted second degree robbery in count 20; (4) there was insufficient evidence to support the conviction in count 19 for assault with a deadly weapon; (5) the trial court erred in failing to instruct the jury in count 19 that it was required to determine that the firearm was loaded as an element of the offense, and (6) the trial court failed to exercise its discretion in imposing consecutive sentences for certain convictions, and, even if the exercise of discretion is found, the trial court failed to state its reasons for imposing consecutive rather than concurrent sentences.
Respondent argues that: (1) the judgment must be modified to impose the section 667, subdivision (a)(1) enhancements on count 19; and (2) the trial court erroneously imposed a 10-year firearm enhancement in count 18.
FACTS
Prosecution Evidence
I. Robbery on January 21, 2006, at Lomita Sizzler Restaurant (Counts 15 and 16)
Aymen Ghabrial (Ghabrial), the general manager of the Sizzler restaurant in Lomita, and Jose Ramirez (Ramirez), a cook, were leaving the restaurant at approximately 10:45 p.m. As they passed through the door leading to the parking lot, a man jumped out from behind a wall. He pointed a revolver at the two men and told them to freeze. He told them to go back inside. Ramirez remembered him saying, “Hands up, this is a robbery.” The man told Ghabrial and Ramirez to go to the office. When the three of them entered the office, the robber told Ghabrial that he had 30 seconds to open the safe, or he would be shot. Ghabrial opened the safe, and the robber ordered Ghabrial to put all the money in a bag the robber was carrying. The man left, telling Ghabrial and Ramirez to stay inside the office.
Ghabrial said the robber was approximately six feet tall. Ghabrial believed the robber was Black because of the dark skin around the man’s eyes and the sound of his voice. Ramirez also thought the man was Black. Ghabrial said that the man’s mask was made of knit cloth that was faded black or dark gray. It was long and had eye holes cut out. The robber was wearing black gloves. Ghabrial believed the mask shown in People’s exhibit 9 was the same mask the robber wore, but he was not sure.
II. Robbery on April 14, 2006, at Lomita Sizzler Restaurant (Counts 17, 18, and 19)
Ghabrial and the owner of the Sizzler, Ohannes Georgian (Georgian) were at the restaurant cashier station at approximately 9:00 p.m. The cashier, Melonie Walton (Walton), was in the back of the restaurant. A man wearing a mask entered the area behind the cashier’s counter and pointed a revolver at Georgian and Ghabrial. The man said to Ghabrial, “You, come here.” Ghabrial “froze”, and the man cocked his revolver. When Ghabrial approached the man, the man gave Ghabrial a plastic bag he extracted from his pocket and told Ghabrial to put the money from the safe into the bag. The man took Ghabrial to the office, apparently knowing the location of the office, and told him, “Ten seconds, ten seconds.” The man told Georgian to get the money from the cash register.
As the man stood outside the office door, he had his back to a swinging door. Walton came through the swinging door and pushed it into the man’s back. The man turned and pointed his gun at Walton, who “froze.” Ghabrial and Georgian brought the man the money and put it in his plastic bag. The man fled with the bag.
Georgian and Ghabrial said the man was wearing dark gloves, a dark jacket with white stripes, and other dark clothing. Ghabrial recognized the man as the same robber from January. Ghabrial and Georgian identified the man’s mask as the one in People’s exhibit 9.
III. Attempted Robbery on May 10, 2006, at Lomita Sizzler Restaurant (Count 20)
Ghabrial was beginning to eat his dinner at approximately 8:30 p.m. when he saw the same man who had previously robbed him walk into the restaurant. The man had a revolver and a plastic bag, and he was wearing a mask. Ghabrial got down on the floor to hide. He saw the man trying to open the office door. Maria Porter (Porter) was serving Ghabrial, and she saw the man shaking the office door. Porter told Ghabrial, “Look, that guy with a ski mask [is] trying to open the office.” The man saw Porter and signaled to her with his right arm while holding a gun in his right hand. The man was staring at Porter, apparently wanting her to walk to him, but Porter just stood still because she was afraid. As Ghabrial tried to call 911, the man ran out the back door. He had not taken anything. Ghabrial saw the man going over a chain-link fence atop a brick wall in the parking lot. Porter described the man as wearing a black jacket with white stripes and a black ski mask. Ghabrial recognized the jacket as the one he had seen on the robber on April 14, 2006.
IV. Robbery on May 10, 2006, at Sansai Restaurant (Counts 21, 22, and 23)
At approximately 10:30 p.m., Cesar Pena (Pena) was counting the money at the cash register in the El Segundo restaurant. Employees Uriel Rosario and Rene Rojas were cleaning in the back of the restaurant. A tall man in a black mask and cape-like garment pointed a pistol at Pena and demanded the money, which Pena gave him. The man asked Pena to open the safe. Because the safe was well hidden, Pena said they did not have one. The man “pointed at” Pena and told him to open the safe. Pena did so and gave the two bags inside to the robber. The man told Pena and the other employees to throw themselves on the floor and not get up. He then left. After the man went outside, Pena looked through the back door and saw a black four-door car in the alley.
Prior to trial and at trial, Porter saw videos of the Sansai restaurant robbery. She believed the man seen in the videos was the same man who had robbed the Lomita Sizzler on May 10, 2006, and the Gardena Sizzler.
V. Robbery on May 14, 2006, at the Gardena Sizzler Restaurant (count 1)
Porter worked at both the Lomita and Gardena Sizzler restaurants. She was waiting for the last customers to leave the Gardena restaurant at approximately 9:40 p.m. when she saw a man walk by the front windows. He glanced at Porter and she became suspicious. As the man walked on, Porter noticed the back of his head, his upper body, and the side of his face. The man was Black, bald, and wearing a dark green sweater. Porter said to Shoaib Zuberi (Zuberi), the manager: “Watch out,... this guy just walked by and he kind of looked towards the window, looking inside to see if there was people there, and I didn’t like the way he was looking.”
Within 10 to 15 minutes, Porter heard a man yell, “Hey, you.” Porter saw a man wearing a mask and holding a gun and a blue plastic bag walk toward her and some other employees. Porter thought the man was wearing the same sweater as the man she had seen outside the restaurant. Porter said the man’s mask appeared to be of knitted polyester and was long with eye holes cut out. The mask covered the man’s head and chest. Porter believed the robber was the same man she had seen at the Lomita Sizzler restaurant.
The man told Zuberi to take him to the safe and give him the money. He grabbed Zuberi by the back of his collar and walked behind him to the office. The man told Zuberi to put the money in the plastic bag. The robber got approximately $200 in small bills and rolled coins. The man ran out the back door and Zuberi pressed the silent alarm. Zuberi saw the man jump the wall behind the Sizzler. He did not see any sign of limping in the man.
Kumi Musella (Musella) was at her mother’s apartment, which was near the Gardena Sizzler. Musella saw a man climb over a wall in the driveway and walk toward the street. The wall was approximately six feet high. It was very dark outside. The man was wearing black clothing and a ski mask. As he walked down the driveway he partially lifted the mask. The man tucked something into his shirt as he turned his face in Musella’s direction. Musella saw his profile. Musella called 911. Musella described the person as a dark-skinned male Hispanic, approximately six feet tall. Musella made a tentative identification of appellant as the man she saw when police showed her a photographic lineup.
After the robbery, Porter and the other employees of the Gardena Sizzler ran across the street where Porter called 911. Police responded to the Gardena Sizzler at approximately 9:50 p.m. Gardena Police Officer John Francis found a blue plastic trash bag in the parking lot behind the restaurant. Appellant’s latent palm print was found on the bag.
On the following day, Gardena Police Sergeant Jocelyn Hillard recovered a mask from a roadway about two blocks from the Gardena Sizzler. It was made of what appeared to be a brown sweater and had two holes cut out for the eyes. It looked like a ski mask. DNA analysis was conducted on a stain inside the mask at the location where the mouth would be. The DNA profile matched appellant’s genetic profile. The probability of the same genetic profile being found in another person was in the quadrillions. Two days after the robbery Porter identified appellant’s photograph in a photographic lineup. She also identified appellant at trial.
A surveillance video of the robbery was played for the jury. Porter and Zuberi identified the mask in People’s exhibits 9 and 10 as the mask they saw that day. They identified the plastic bag in People’s exhibit 11.
On May 23, 2006, police searched appellant’s residence, which was less than five miles from the Gardena Sizzler. Police found several blue plastic trash bags. When searching appellant’s Cadillac, police found $500 in $5 bills, two and a half rolls of quarters, and a pair of black gloves. The coins were wrapped in the same plastic wrappers as the coins Zuberi had obtained at the bank and had given to the robber.
Defense Evidence
Appellant made a living by selling hair, chauffeuring limousines, and detailing cars for a living. When he chauffeured, he wore black gloves. Appellant owned a black Cadillac.
Sabrina Johnson (Johnson) had known appellant for four years, and they had a child together. She was convicted of forgery in 1996. On May 14, 2006 (the day of the Gardena Sizzler robbery), which was Mother’s Day, she and appellant celebrated by going to dinner and then getting a room at La Mirage Inn. Appellant did not leave the room the entire evening. She did not tell the police about staying at the inn until the day before she testified at trial. Johnson said appellant limped a little from time to time. She had seen a cane in his car and a walker where he worked.
The manager of the La Mirage Inn testified that the hotel had two floors and no elevator. Room 209, where appellant had stayed on May 14, 2006, was on the second floor. One had to climb the stairs to get to the room.
Latanya Adamsel dated appellant from August 2005 to March 2006 and had a child with him. She knew appellant to have pain on his right side between his hip and back. She never saw him lift anything heavy.
On April 14, 2006, Levandia Hayes (Hayes) was eating at a Sizzler restaurant when a robbery occurred. Before the robbery, Hayes had seen a Hispanic man in the parking lot. He was approximately 5 feet 10 inches tall and was wearing black clothing. Ten minutes later, the robber entered the restaurant with a.38-caliber gun, wearing a ski mask and black clothing. When Hayes was asked at trial if the man he saw with the gun was the same man he had seen earlier that day in the parking lot, Hayes said that he did not think so because the robber was a little taller. Hayes was not sure if he was correct when he told police it was the exact same fellow. Hayes said the robber was six feet two inches tall.
Appellant’s medical records were admitted into evidence.
Rebuttal Evidence
On the day of his arrest, appellant got out of a car without the aid of a cane, walker, or crutches.
Stipulation
In response to a jury request, it was stipulated that appellant was six feet tall and weighed 200 pounds at the time of his arrest.
DISCUSSION
I. Denial of Continuance at Preliminary Hearing
A. Proceedings Below
Appellant’s preliminary hearing began on February 20, 2007, with appellant acting in propria persona (pro. per.). The hearing was to continue on the following day, but it did not. On February 22, 2007, with appellant present, the trial court stated that appellant had been injured in lockup on the previous day and may have had a seizure. Although appellant had previously declined to waive his right to a continuous preliminary hearing, the trial court stated that appellant was requesting not to proceed because he felt light-headed. Appellant then waived his right to a continuous hearing and stated he needed approximately two days to recover. The prosecutor stated that he was willing to waive a preliminary hearing in order to avoid further inconvenience to the numerous witnesses, but appellant did not agree. The trial court continued the preliminary hearing to March 6, 2007.
On March 6, 2007, the trial court granted appellant’s request for standby counsel. When the trial court asked if both sides were ready, appellant said he was not, and his medical condition and medications were causing complications. Appellant said he had not been able to “pick up” his case since the last meeting. The trial court denied appellant’s request for a continuance, stating that a dozen witnesses had been on call since the last proceeding and were present.
The trial court asked appellant if he wanted his materials brought out, and appellant replied that he did not because he could not go forward. The trial court found that appellant’s request for a continuance was dilatory and that appellant was capable of proceeding. Prior to the first witness being called, appellant’s standby counsel, Mr. Garber (Garber), informed the court that there were some items of discovery that he lacked. He also informed the court that if he had to step in, it was important for him to know what had gone on to date, and he had no transcripts of prior proceedings.
The prosecutor called four witnesses during the morning session. After the midday recess, appellant told the court that he wished to make a record that he had been asleep during the morning proceedings and did not know what happened. The trial court stated, “The fact that you feigned sleep, yes, the record will reflect that you feigned sleep, and that you’re not participating.” After the prosecutor’s first afternoon witness testified, the trial court asked appellant if he had any questions. There ensued what appeared to be a contentious exchange between the trial court and appellant, who was eventually removed from the courtroom. The trial court revoked appellant’s pro. per. privileges, and Garber was substituted in as counsel for the defense.
Garber told the court that he did not feel prepared because he had not been able to go through the materials he had obtained more than once and had not organized them. He requested a brief continuance to be able to fully digest the case because there was a great deal of discovery.
The trial court denied the request, noting that appellant had asked for a continuance before the preliminary hearing began, and this request had been denied. The day after the hearing started, appellant became ill. The court granted him a continuance at the next meeting because he complained about his condition and his medications. The court believed it was now very clear that appellant was behaving in an obstreperous manner in an attempt to inject error into the record. The court stated that appellant was dilatory, and his claims of sleeping and inability to concentrate were designed to manipulate the court into granting a continuance. The court noted that appellant had been admonished in the form granting him pro. per. status, which he signed, that he was not entitled to a continuance if he gave up his pro. per. privileges, or if they were otherwise revoked. The court stated, “I have revoked his pro. per. privileges based upon his conduct in this court and the dilatory behavior, and his attempt to inject error into the proceedings. So to the extent it puts you at somewhat of a disadvantage, Mr. Garber, because you would have liked more time to prepare, I appreciate that, and I apologize to you, but I’m not about to grant a continuance in this matter when we have had a dozen witnesses subpoenaed multiple times who have been present in the court, because to do so is to reward the defendant for his conduct.”
At the beginning of the next day’s proceedings, appellant was present with Garber. Garber again requested a continuance for time to prepare and stated that appellant believed counsel had not had enough time to prepare properly. The trial court replied that appellant did not have a right to use the court as a forum to be disrespectful to the court to interrupt or delay the proceedings. Appellant was in this situation because of his conduct. Appellant requested to leave the courtroom, and the preliminary hearing continued.
B. Appellant’s Argument
Appellant contends that it was unreasonable for the trial court to refuse defense counsel’s request for a short continuance after the trial court revoked appellant’s pro. per. status. Defense counsel stated he was not familiar with the discovery materials and was not prepared to properly represent appellant. Counsel was not present during the first day of the preliminary hearing and did not know what testimony had been given and what exhibits had been introduced. As a result, appellant was not afforded adequate legal assistance at the hearing.
C. Relevant Authority
Continuances are disfavored in criminal proceedings, and they are granted only upon a showing of good cause. (§1050, subds. (a) & (e).) The trial court has wide discretion to grant or deny a defendant’s request for a continuance. (People v. Jenkins (2000) 22 Cal.4th 900, 1037.) “Once a continuance has been denied, the burden is on appellant to establish an abuse of discretion. [Citation.]” (People v. Strozier (1993) 20 Cal.App.4th 55, 60.) “‘In deciding whether the denial of a continuance was so arbitrary as to violate due process, the reviewing court looks to the circumstances of each case, “‘particularly in the reasons presented to the trial judge at the time the request [was] denied.’” [Citations.]’” (People v. Froehlig (1991) 1 Cal.App.4th 260, 265.) “‘Discretion is abused only when the court exceeds the bounds of reason, all circumstances being considered.’” (Ibid.) “In the absence of a showing of an abuse of discretion and prejudice to the defendant, a denial of his or her motion for a continuance does not require reversal of a conviction.” (People v. Samayoa (1997) 15 Cal.4th 795, 840.)
“Our review is an independent one where our task is to determine whether the defendant was denied a substantial right at the preliminary examination. [Citations.]” (People v. Luu, supra, 209 Cal.App.3d at p. 1401.) Substantial rights within the meaning of section 995 have been held to include, inter alia, the right to counsel and to present an affirmative defense at the preliminary hearing. (People v. West (1990) 224 Cal.App.3d 1337, 1342; see also Jennings v. Superior Court (1967) 66 Cal.2d 867, 874-875; People v. Pennington (1991) 228 Cal.App.3d 959, 964.)
D. No Abuse of Discretion or Denial of a Substantial Right
Based on the foregoing principles, we conclude the trial court did not abuse its discretion in denying the requested continuance and did not deny appellant his right to effective assistance of counsel.
Appellant’s conduct demonstrated that the trial court was accurate when it found that appellant wished to delay the proceedings. The record shows that appellant had attempted to delay the preliminary hearing from its inception. On February 20, 2007, when it began, appellant said he was not ready to move forward. He said he wished to have a hearing under section 1538.5, and the trial court said the hearing could be conducted concurrently with the preliminary hearing. Appellant then said he had an alibi witness who could not be in court that day. Upon learning that appellant had not subpoenaed the witness, the trial court denied appellant a continuance. Appellant then complained about certain discovery he had not received, and the trial court stated that, since appellant had not filed a motion under section 1050, the hearing would proceed.
After a recess, appellant presented more discovery issues that the trial court found were not sufficient to delay the preliminary hearing. The hearing was to continue on February 21, 2007, but the record indicates it was continued after the trial court found good cause. On February 22, 2007, the court made a record of appellant’s injury and possible seizure, and granted a continuance.
As recounted previously, when the preliminary hearing resumed, appellant feigned sleep and refused to cross-examine witnesses. He complained in a disrespectful manner to the court merely because the court asked him if he had any questions for each witness after the prosecution finished his direct examination. Appellant’s insistence on not being even asked to cross-examine supports the trial court’s finding that appellant was attempting to create error in the proceeding.
Moreover, appellant had been warned that no continuances would be granted in the event of his pro. per. status being revoked. Standby counsel had been appointed at appellant’s request, and the court clearly believed that Garber was more than capable of defending appellant after having once gone through all the materials he had received the day before. We conclude that the trial court’s denial of appellant’s request for a continuance did not exceed “the bounds of reason, all circumstances being considered.” (People v. Froehlig (1991) 1 Cal.App.4th 260, 265.)
In addition, given the circumstances of this case, Garber effectively represented appellant, and appellant was not denied his right to counsel. As noted, Garber said he was able to go through the materials one time in full. Although he wished to have more time to prepare, he was not in a situation where he had not prepared at all. The record shows that Garber was able to effectively cross-examine the remaining witnesses.
Finally, appellant suffered no prejudice from the denial of a continuance on the second day of his preliminary hearing. The only prejudice appellant alleges he suffered was that he “necessarily was not afforded adequate legal assistance at the preliminary hearing.” We have concluded counsel was effective. Furthermore, a conviction generally “will not be reversed because of errors or irregularities that occurred at a preliminary hearing or grand jury proceeding, absent a showing that the asserted errors ‘deprived [the defendant] of a fair trial or otherwise resulted in any actual prejudice relating to [the] conviction.’” (People v. Carrington (2009) 47 Cal.4th 145, 178, citing, inter alia, People v. Stewart (2004) 33 Cal.4th 425, 461-463 [alleged misconduct of the prosecutor at the preliminary hearing did not require reversal of conviction absent a showing that trial was unfair]; Coleman v. Alabama (1970) 399 U.S. 1, 11 [denial of the defendant’s right to counsel at the preliminary hearing subject to harmless error review].) Appellant does not allege he was denied a fair trial, and the issues he raises on appeal do not implicate an unfair trial. We find no evidence that the trial was unfair. Even if we were to conclude counsel was ineffective at the preliminary hearing, we would find appellant suffered no prejudice as a result.
II. Sufficiency of the Evidence: Counts 15 and 16, and Counts 21, 22, and 23
A. Appellant’s Argument
Appellant contends he was wrongfully convicted of multiple robberies instead of a single robbery for two of the crimes: the January 21, 2006, robbery at the Lomita Sizzler and the May 10, 2006, robbery at the Sansai Restaurant. In the Lomita robbery, appellant was convicted of robbing both the manager and the cook (counts 15 and 16). In the Sansai robbery, appellant was convicted of robbing Pena, who was in charge of closing the register, and two cleaners (counts 21, 22, and 23). Appellant asserts there was no evidence the Lomita cook and the Sansai cleaners had any responsibility for, or control over, restaurant money, and their employee status alone is an insufficient basis for holding that they had constructive possession of the employer’s property.
B. Evidence Sufficient
People v. Scott (2009) 45 Cal.4th 743 (Scott) resolved the conflict in the Courts of Appeal regarding whether all employees of a business may be separate victims of a robbery. (Id. at p. 746.) The court disapproved People v. Frazer (2003) 106 Cal.App.4th 1105, relied upon by appellant. (Scott, supra, at p. 746.) In Scott, of the three employees who were named victims of the robbery, two hid themselves during the duration of the crime. (Id. at p. 747.) Only the manager had access to the safe, and it was she whom the robbers confronted and who handed over the money. (Ibid.) Scott affirmed the decision of the Court of Appeal, which determined that the trial court had correctly instructed the jurors that “all employees on duty during a robbery have constructive possession of their employer’s property.” (Id. at p. 746.)
“Although not every employee has the authority to exercise control over the employer’s funds or other property during everyday operations of the business, any employee has, by virtue of his or her employment relationship with the employer, some implied authority, when on duty, to act on the employer’s behalf to protect the employer’s property when it is threatened during a robbery.” (Scott, supra, 45 Cal.4th at p. 754.) An employee’s authority to protect the employer’s property is recognized in Civil Code section 50. (Scott, supra, at p. 754.) In addition, “it is reasonable to infer that the Legislature intended that all on-duty employees have constructive possession of the employer’s property during a robbery, because such a rule is consistent with the culpability level of the offender and the harm done by his or her criminal conduct.” (Id. at p. 755.)
Civil Code section 50 provides: “Any necessary force may be used to protect from wrongful injury the person or property of oneself, or of a wife, husband, child, parent, or other relative, or member of one’s family, or of a ward, servant, master, or guest.” (Italics added.)
Appellant’s arguments are without merit.
III. Sufficiency of the Evidence in Count 20, Attempted Robbery
A. Appellant’s Argument
Appellant contends that there was no attempted robbery of Ghabrial on May 10, 2006, since there was no evidence that appellant attempted through force or fear to take the property of another. Instead, it appears appellant attempted to take restaurant money by stealth, since he unsuccessfully tried to open the office and left the restaurant without taking anything.
B. Relevant Authority
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.) Attempted robbery is a lesser included offense of robbery; it requires “‘a specific intent to commit [robbery] and a direct but ineffectual act (beyond mere preparation) done toward its commission.’” (People v. Medina (2007) 41 Cal.4th 685, 694; People v. Vizcarra (1980) 110 Cal.App.3d 858, 861.) An intent to rob is an intent to steal by means of force or fear. (People v. Bradford (1997) 14 Cal.4th 1005, 1055-1056.) An attempted robbery is not committed by a person who merely intends to steal without the use of force or fear. (see People v. Dillon (1983) 34 Cal.3d 441, 455-456 [intent to rob rather than attempt to steal demonstrated, inter alia, by defendant’s and cohorts’ act of arming themselves, knowing that armed guards were at targeted property].)
On appeal, we “‘review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citations.]” (People v. Ceja (1993) 4 Cal.4th 1134, 1138.) The same standard applies when the prosecution relies on circumstantial evidence. (Ibid.) We do not reweigh the evidence; even if the circumstances “might reasonably be reconciled with a contrary finding[, this] would not warrant reversal of the judgment.” (People v. Proctor (1992) 4 Cal.4th 499, 529; accord, People v. Ceja, supra, at p. 1139.) A judgment will not be reversed for insufficiency unless “‘upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’” (People v. Bolin (1998) 18 Cal.4th 297, 331.)
C. Evidence Sufficient
The jury was instructed with CALCRIM No. 460, which provides in pertinent part: “The defendant is charged in Count 20 with attempted robbery. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant took a direct but ineffective step toward committing a robbery; [¶] AND [¶] 2. The defendant intended to commit a robbery.”
The full text of CALCRIM No. 460 is as follows: “The defendant is charged in Count 20 with attempted robbery. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant took a direct but ineffective step toward committing a robbery; [¶] AND [¶] 2. The defendant intended to commit a robbery. [¶] A direct step requires more than merely planning or preparing to commit robbery or obtaining or arranging for something needed to commit a robbery. A direct step is one that goes beyond planning or preparation and shows that a person is putting his or her plan into action. A direct step indicates a definite and unambiguous intent to commit robbery. It is a direct movement towards the commission of the crime after preparations are made. It is an immediate step that puts the plan in motion so that the plan would have been completed if some circumstance outside the plan had not interrupted the attempt. [¶] A person who attempts to commit a robbery is guilty of attempted robbery even if, after taking a direct step towards committing the crime, he or she abandoned further efforts to complete the crime or if his or her attempt failed or was interrupted by someone or something beyond his or her control. On the other hand, if a person freely and voluntarily abandons his or her plans before taking a direct step toward committing a robbery, then that person is not guilty of attempted robbery. [¶] To decide whether the defendant intended to commit robbery, please refer to the separate instructions that I will give you on that crime.”
The evidence showed that appellant entered the Lomita Sizzler at dinner time carrying a gun and a plastic bag and wearing a ski mask. The manager, however, hid from appellant’s view. Appellant went to the office and shook the door, trying to open it. He then went to the server’s station and looked through the window into the kitchen. He saw Porter and motioned to her with the hand holding the gun. Porter said there were people screaming that the restaurant was being robbed. There were customers trying to hide behind a divider. Instead of going toward the robber as ordered, Porter stood there, dumbstruck. Appellant then ran out the door.
Given these circumstances, a reasonable jury could infer that appellant had the intent to rob the manager and/or the waitress at the Sizzler restaurant. He was foiled in his attempt because the manager had hidden, and the waitress was too stunned to approach him. Appellant, faced with a situation where restaurant patrons were screaming and hiding, decided to leave. “Our courts have repeatedly ruled that persons who are charged with attempting to commit a crime cannot escape liability because the criminal act they attempted was not completed due to an impossibility which they did not foresee: ‘factual impossibility is not a defense to a charge of attempt.’ [Citations.]” (People v. Reed (1996) 53 Cal.App.4th 389, 396.)
It is not reasonable to infer that a person who enters a restaurant openly carrying a gun and wearing a mask and who proceeds to shake the office door in an attempt to open it has the intent to commit theft by stealth. Appellant’s act of openly arming himself is a clear indication of his desire to instill fear. Furthermore, on the same night, at approximately 10:30 p.m., appellant committed the robberies at the Sansai restaurant in El Segundo. Evidence of a defendant’s subsequent conduct may be considered in proving his guilt. (People v. Ruiz (1988) 44 Cal.3d 589, 611; People v. Campbell (1994) 25 Cal.App.4th 402, 410.) Appellant’s claim is without merit.
IV. Sufficiency of the Evidence in Count 19, Assault With a Firearm
A. Appellant’s Argument
Appellant contends that, since there was no evidence that his gun was loaded, there was insufficient evidence he committed assault with a firearm upon Walton as charged in count 19.
B. Relevant Authority
As set out in CALCRIM No. 875, the elements of the crime of assault with a firearm in violation of section 245, subdivision (a)(2) are: “1. The defendant did an act with a firearm that by its nature would directly and probably result in the application of force to a person; 2. The defendant did that act willfully; 3. When the defendant acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone; AND 4. When the defendant acted, he had the present ability to apply force with a firearm to a person.”
“A long line of California decisions holds that an assault is not committed by a person’s merely pointing an (unloaded) gun in a threatening manner at another person. [Citations.]” (People v. Rodriguez (1999) 20 Cal.4th 1, 11, fn. 3 (Rodriguez).) This is because there is no present ability to inflict violent injury with an unloaded firearm. (Ibid.)
C. Evidence Sufficient
The record shows that count 19 was charged as an assault with a deadly weapon upon Melonie Walton in relation to a robbery that occurred on April 14, 2006. Walton, the cashier that evening, did not testify. Georgian testified that a masked man entered carrying a revolver in his right hand. The masked man went behind the cashier’s station and pointed a gun at Georgian and Ghabrial. Ghabrial testified that when appellant first pointed the gun at him and told him, “You, come here,” Ghabrial was afraid and did not move for a few seconds. At that point, appellant cocked the gun and repeated his command. Ghabrial said appellant had the gun cocked during the entire robbery.
Moments before, Walton had gone through a swinging door into the back to get ice. While Ghabrial was in the office getting money from the safe, the robber stood with his back to the swinging door. Walton came out and hit appellant in the back with the swinging door. Appellant turned and pointed the gun at Walton, and Walton froze.
As noted in Rodriguez, the act of merely pointing an unloaded gun at someone has long been held to fall short of assault with a firearm. (Rodriguez, supra, 20 Cal.4th at p. 11, fn. 3.) Rodriguez limited its discussion to the degree of circumstantial evidence required to demonstrate present ability to inflict injury and thus to uphold a conviction of assault with a firearm. (Ibid.) Rodriguez emphasized the standard of review in cases where the prosecution relies mainly on circumstantial evidence: “‘“it is the jury, not the appellate court [,] which must be convinced of the defendant’s guilt beyond a reasonable doubt,”’” and “‘“[i]f the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.”’ [Citations.]” (Rodriguez, supra, at p. 11.) The Supreme Court criticized the appellate court, which had reversed the defendant’s conviction for assault with a firearm, for focusing on what it found lacking in the prosecution case and rejecting logical inferences the jury might have drawn. (Id. at p. 12.)
Rodriguez declined to address “[t]he continuing viability of this rule,” since it was not questioned in the case, and the parties did not address it. (Rodriguez, supra, 20 Cal.4th at p. 11, fn. 3.)
Citing several examples, the Supreme Court stated that “California courts have often held that a defendant’s statements and behavior while making an armed threat against a victim may warrant a jury’s finding the weapon was loaded.” (Rodriguez, supra, 20 Cal.4th at pp. 12-13.) The basic principle is that a “defendant’s own words and conduct in the course of an offense may support a rational fact finder’s determination that he used a loaded weapon.” (Id. at p. 13.)
As in Rodriguez, we cannot say the jury could not reasonably make the determination that appellant used a loaded weapon. (Rodriguez, supra, 20 Cal.4th at p. 13.) Appellant’s act of cocking the reolver when Ghabrial did not immediately obey appellant’s orders is conduct that reasonably leads to the inference that the handgun was loaded. Ghabrial said that appellant kept the handgun loaded throughout the robbery. Therefore, there was sufficient evidence to find appellant guilty of assault with a deadly weapon.
V. Jury Instruction on Assault With a Firearm
A. Appellant’s Argument
Appellant contends that the jury instruction for count 19—the assault with a firearm upon Walton—was deficient because the term “present ability” was not defined for the jury. Specifically, the jury was not told that, as part of a guilty verdict, it was required to find that the handgun was loaded. Appellant claims that the instruction, as given, allowed the jury to convict appellant of the charged offense even if the jury did not consider whether appellant’s gun was loaded. The error was compounded by the next instruction the jury heard, CALCRIM No. 3146 on personal use of a firearm, which stated that the firearm did not need to be in working order and did not need to be loaded in order for the allegation to be true.
B. Relevant Authority
We conduct independent review of issues pertaining to instructions. (People v. Waidla (2000) 22 Cal.4th 690, 733, 737.) “‘A trial court has a sua sponte duty (1) to instruct on general principles of law relevant to issues raised by the evidence [citation]; and (2) to give explanatory instructions when terms used in an instruction have a technical meaning peculiar to the law [citation]. A defendant has a constitutional right to have the jury determine every material issue presented by the evidence, and a denial of that right constitutes a miscarriage of justice regardless of the strength of the prosecution’s case.’” (People v. Shoals (1992) 8 Cal.App.4th 475, 489-490.)
On the other hand, a trial court does not have a sua sponte duty to instruct the jury when “‘terms [] are commonly understood by those familiar with the English language,’” but only to define terms that have “‘a technical meaning peculiar to the law.’” (People v. Hoyos (2007) 41 Cal.4th 872, 915; People v. Miller (1999) 69 Cal.App.4th 190, 207.) If a defendant wants clarification of terms a reasonable juror would understand, it is “his duty to request such a clarification.” (People v. Kinsey (1995) 40 Cal.App.4th 1621, 1629.)
C. Trial Court Did Not Err
The record shows no objection to the reading of CALCRIM No. 875. Therefore, the issue has been forfeited on appeal. If appellant believed that clarifying language was necessary to specifically instruct the jury that it had to find that the firearm was loaded, he should have proposed that language at trial. (People v. Hillhouse (2002) 27 Cal.4th 469, 503 [“A party may not argue on appeal that an instruction correct in law was too general or incomplete, and thus needed clarification, without first requesting such clarification at trial”].)
Even if waiver principles were inapplicable, we would find appellant’s claim to be without merit. The court did instruct the jury on all the elements of the offense of assault with a firearm, as quoted ante, including the requirement that the defendant have the present ability to apply physical force. The trial court gave the standard instruction for a violation of section 245, choosing the bracketed options specific to use of a firearm rather than other weapons or a deadly weapon in general.
CALCRIM No. 875 told the jury in pertinent part that the crime of assault with a firearm required that the assault consist of “an act with a firearm that by its nature” would probably result in the application of force to someone. In the same instruction, the jury was told that the term “firearm” includes “any device designed to be used as a weapon, from which a projectile is discharged or expelled through a barrel by the force of an explosion or other form of combustion.” The most reasonable understanding of this instruction is that an assault with a firearm occurs when the firearm can be used as designed, i.e., to fire a projectile.
The same instruction told the jury that an element of assault with a firearm is that the defendant had the present ability to apply force with a firearm to the victim when he acted. The most reasonable understanding of the instruction is that the firearm must contain a projectile to fire at the victim. Furthermore, given the evidence in this case, the most reasonable way appellant could have used the firearm was to fire at Walton (rather than bludgeon her, for example), since she hit appellant with the swinging door and appeared behind him while he was trying to watch both Ghabrial and Georgian—who were in two different places—at the same time. The only reasonable interpretation of the instruction entails an understanding that the gun was loaded.
Moreover, the omission was harmless under any standard. (Chapman v. California (1967) 386 U.S. 18, 24 [standard of harmless beyond a reasonable doubt employed for federal constitutional error]; People v. Watson (1956) 46 Cal.2d 818, 836 [reasonable probability of a more favorable result is standard for assessing state law error]; People v. Flood (1998) 18 Cal.4th 470, 490, 502–503 [instructional error subject to harmless error analysis].) The jury was fully instructed concerning the elements of the charged offense. Given the circumstances of the assault on Walton, as discussed in this and the previous section, the trial court’s alleged failure to instruct the jury that the gun had to be loaded was harmless.
Finally, the fact that the trial court read CALCRIM No. 3146 after CALCRIM No. 875 did not cause prejudice. CALCRIM No. 3146 told the jury that if it found appellant guilty of the crimes, then only was it required to decide whether it was true that appellant personally used a firearm during the commission of the crimes. The language of CALCRIM No. 3146 clearly indicated that the firearm-use allegation was to be considered only after the jury had found appellant guilty or not guilty of the charged crimes, and it is presumed that the jurors understood and followed the trial court’s instructions. (People v. Holt (1997) 15 Cal.4th 619, 662.)
VI. Imposition of Consecutive Sentences
A. Appellant’s Argument
Appellant contends the trial court failed to exercise its discretion to determine whether the terms of 25 years to life imposed in several counts—those that arose on the same occasion and from the same set of operative facts—would be served concurrently or consecutively. If the trial court did exercise discretion, it abused its discretion. In addition, the trial court failed to state reasons for its sentencing decisions.
B. Relevant Authority
“In order to encourage prompt detection and correction of error, and to reduce the number of unnecessary appellate claims, reviewing courts have required parties to raise certain issues at the time of sentencing. In such cases, lack of a timely and meaningful objection forfeits or waives the claim.” (People v. Scott (1994) 9 Cal.4th 331, 351.) The forfeiture doctrine applies to claims “involving the trial court’s failure to properly make or articulate its discretionary sentencing choices,” including cases in which the trial court’s stated reasons allegedly do not apply and cases in which the court allegedly erred because it double-counted a sentencing factor, misweighed factors, or failed to state reasons or to provide a sufficient number of valid reasons. (Id. at pp. 353-357.)
When a defendant is sentenced on multiple felony counts under the three strikes law because he or she has previously been convicted of one or more serious or violent felony offenses, the trial court must impose consecutive sentences for all the current convictions unless the current offenses were “committed on the same occasion” or “aris[e] from the same set of operative facts.” (§§ 667, subds. (c)(6), (7); 1170.12, subds. (a)(6), (7).) However, the trial court retains discretion to impose either concurrent or consecutive sentences for crimes committed “on the same occasion” or arising from the “same set of operative facts,” even though they involved different victims. (People v. Deloza (1998) 18 Cal.4th 585, 591, 595, 596; People v. Lawrence (2000) 24 Cal.4th 219, 226-228, 233 (Lawrence).)
“While there is a statutory presumption in favor of the middle term as the sentence for an offense [citation], there is no comparable statutory presumption in favor of concurrent rather than consecutive sentences for multiple offenses.... The trial court is required to determine whether a sentence shall be consecutive or concurrent but is not required to presume in favor of concurrent sentencing.” (People v. Reeder (1984) 152 Cal.App.3d 900, 923.) Even where the trial court determines the same occasion/same operative facts underlie the defendant’s offenses, the court may impose consecutive sentences. (§ 669; Lawrence, supra, 24 Cal.4th at p. 233.) Although the sentencing court is required to state its reasons for imposing consecutive sentences (see Cal. Rules of Court, rule 4.406(b)), this requirement does not create a presumption or entitlement to a particular result. Rather, the statement of reasons provides for meaningful appellate review and serves to ensure that the sentencing court itself engages in an analysis of the sentencing problem. (In re Podesto (1976) 15 Cal.3d 921, 937.)
A single valid factor is sufficient to justify a sentencing choice, whether it is an aggravated term of imprisonment or a consecutive sentence. (People v. Dancer (1996) 45 Cal.App.4th 1677, 1695-1696 (Dancer), overruled on other grounds in People v. Hammon (1997) 15 Cal.4th 1117, 1123.) “Moreover, the same factor can support numerous consecutive sentences and a single proper statement of reasons will support them.” (Dancer, supra, 45 Cal.App.4th at p. 1696.)
C. No Abuse of Discretion
Appellant’s failure to object at the time to the imposition of consecutive sentences or to the lack of a statement of reasons forfeits any error on appeal. (People v. Scott, supra, 9 Cal.4th at p. 356.) In any event, appellant’s contentions lack merit.
After imposing sentence in count 1, the trial court stated that counts 15, 16, 17, and 18 “involved different acts of violence and different crimes, an identical sentence to the sentence imposed in count 1 is imposed in counts 15, 16, 17, and 18, each sentence to run consecutively to the others.... As to count 19, Penal Code section 245(a)(2)—that’s the assault with a firearm count—the defendant is sentenced to 25 years to life. The court went on to state, “Regarding counts 21, 22, and 23, these are all separate acts of violence.”
Counts 15 and 16 occurred at the Lomita Sizzler on January 21, 2006, and the victims were Ghabrial (robbery) and Ramirez (robbery). Counts 17, 18, and 19 occurred at the Lomita Sizzler on April 14, 2006, and the victims were Ghabrial (robbery), Georgian (robbery), and Walton (assault with a firearm).
Counts 21, 22, and 23 occurred at the Sansai restaurant on May 10, 2006, and the victims were Pena, Rojas, and Rosario—all robbery victims.
Thus we see that the trial court was aware of its discretion, exercised its discretion, and gave reasons for choosing consecutive sentences. Section 669 gives the trial court wide discretion to impose consecutive sentences when a person is convicted of two or more crimes (People v. Shaw (2004) 122 Cal.App.4th 453, 458), and California Rules of Court, rule 4.425 directs the sentencing court to consider facts relating to the crimes in deciding whether to impose concurrent or consecutive sentences. One factor for the court to take into account is that the “crimes involved separate acts of violence or threats of violence.” (Cal. Rules of Court, rule 4.425(a)(2).) In citing this factor, the trial court here was clearly referring to the fact that appellant used his gun against several persons while he committed the crimes in question, which is another way of stating that there were multiple victims. “[M]ultiple offenses committed against multiple individuals are distinctively worse than multiple offenses committed against a single individual.” (People v. Leung (1992) 5 Cal.App.4th 482, 504, rev. denied (Leung).) In that case, the three defendants entered a restaurant with weapons and took the restaurant receipts and money from three of the four victims. (Id. at pp. 488-489.) They were convicted of three counts of robbery, one count of attempted robbery and four counts of false imprisonment. (Id. at p. 489.) The trial court imposed consecutive sentences because “[t]hey were separate offenses” and “separate victims.” (Id. at p. 502.) The Leung court rejected one defendant’s argument that they were not separate offenses because they “took place at the same time and place and no single count charged defendant with an offense against more than a single victim.” (Ibid.) The Leung court stated, inter alia, that the “culpability of the defendant who victimizes multiple individuals is greater than the culpability of a defendant who victimizes a single individual,” and consecutive sentences were justified. (Id. at pp. 504-505; see also People v. Calhoun (2007) 40 Cal.4th 398, 408; [although the factor of multiple victims was deleted from Cal. Rules of Court, rule 4.425 in the 1991 revision, the trial court may “consider the fact of multiple victims as a basis for imposing either the upper term or a consecutive sentence”]; People v. Valenzuela (1995) 40 Cal.App.4th 358, 365 [same]; People v. Calderon (1993) 20 Cal.App.4th 82, 87 [acts of violence against different persons may be punished separately even though they occurred on the same occasion].)
Moreover, the probation report, which the trial court is presumed to have considered (Evid. Code, § 664), listed 11 circumstances in aggravation and none in mitigation. The aggravating factors could be used to justify consecutive sentences as well as the upper term (Cal. Rules of Court, rules 4.408(a)), 4.425(b)), and the court mentioned some of them, such as appellant’s prior convictions and the fact that he was on parole. The trial court noted appellant’s “life of crime that began young and continued all the way through into his adult life.” Given the dangerous nature and the extent of appellant’s crime spree, we believe the trial court adequately justified the imposition of consecutive terms and did not abuse its discretion. No remand for resentencing is required.
VII. Respondent’s Issues Regarding Sentencing
Respondent points out that the trial court found true the allegations that appellant previously had suffered two serious felony convictions pursuant to section 667, subdivision (a)(1). The trial court imposed the resulting sentence enhancements on all counts except count 19, in which the jury found appellant committed assault with a firearm and personally used a firearm, a serious felony. (§ 1192.7, subd. (c)(8); see People v. Dotson (1997) 16 Cal.4th 547, 555 [felony must be serious for five-year enhancement to apply].) Respondent argues that the section 667, subdivision (a)(1) enhancement should have been imposed in count 19 also.
In addition, in count 18, the trial court erroneously imposed a 10-year firearm enhancement under section 12022.53, subdivision (b). Because the verdict form did not contain the firearm allegation, the jury did not find it to be true.
When a defendant is sentenced to multiple indeterminate terms, section 667, subdivision (a) enhancements must be imposed separately on each indeterminate term. (People v. Williams (2004) 34 Cal.4th 397, 404-405; see People v. Garcia (2008) 167 Cal.App.4th 1550, 1560.) Accordingly, the trial court should have imposed the section 667, subdivision (a) enhancements on count 19 as well as in the other counts. The trial court’s failure to impose the enhancements on count 1 was a jurisdictional error that may be corrected for the first time on appeal. (People v. Dotson, supra, 16 Cal.4th at p. 554, fn. 6; People v. Purata (1996) 42 Cal.App.4th 489, 498; see People v. Garcia, supra, 167 Cal.App.4th at p. 1562.)
In addition, it is true that the allegation that appellant used a firearm was not printed on the verdict form in count 18. Therefore, there was no true finding, and the sentence for that enhancement was erroneously imposed.
DISPOSITION
The judgment is modified to impose two 5-year enhancements pursuant to section 667, subdivision (a)(1) in count 19. The 10-year firearm enhancement imposed in count 18 pursuant to section 12022.53, subdivision (b) is reversed. In all other respects the judgment is affirmed. Appellant’s total prison term remains the same. The superior court is directed to correct the abstract of judgment to reflect the modifications and to forward an amended abstract to the Department of Corrections and Rehabilitation.
We concur: DOI TODD , J., ASHMANN-GERST , J.