Opinion
G044583
05-23-2012
THE PEOPLE, Plaintiff and Respondent, v. ELMORE VICTOR PORCHE III, Defendant and Appellant.
Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Susan Miller, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 09CF1218)
OPINION
Appeal from a judgment of the Superior Court of Orange County, Gary S. Paer, Judge. Affirmed in part as amended and reversed in part.
Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Susan Miller, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant Elmore Victor Porche III guilty of two counts of second degree robbery, and found it to be true he personally used a gun within the meaning of Penal Code section 12022.5, subdivision (a) when he committed the robberies. (All statutory references are to the Penal Code.) The jury also found it to be true defendant personally used the firearm within the meaning of section 12022.53, subdivision (b). He was also found guilty of three counts of false imprisonment by violence and one count of second degree commercial burglary, with true findings he violated section 12022.5, subdivision (a) while committing the crimes. The jury convicted him of one count of receiving stolen property as well.
Pursuant to section 654, the court stayed imposition of sentence on several of the counts, including the receiving stolen property conviction, and sentenced defendant to 12 years in state prison. Defendant was ordered to pay restitution to the victim AT&T in the amount of $23,615.32.
Because he was convicted twice for the same theft, once in count two for robbery, and the second time in count eight for receiving stolen property, we reverse count eight. Regarding his argument the trial court erred by not making defendant jointly and severally liable for victim restitution, we deem that argument to be waived. Other than reversing his conviction on count eight, we affirm.
I
FACTS
On January 30, 2009, Maria Aboytes and Jaime Flores arrived to clean an AT&T store on West First Street in Santa Ana at 8:25 a.m. Aboytes was cleaning when she "saw Jamie, the person had him with a weapon." The weapon was a black gun. The man "pointed that I go down to the floor." Then Aboytes "saw a tall guy go by that had Frida, the employee." She was kneeling in the restroom and "Frida went by. A guy had her. And I was able to see that Frida kneeled down on the floor. And he pulls her up, pulls her sweatshirt. And he takes her a little more towards the front." Flores was ordered into the restroom, too. Aboytes was facing down when one of the men pulled out her cell phone clipped onto a case she had on her pants pocket and took it. He also took Flores's phone.
Frida Vazquez was a 23-year-old sales consultant at the store on that date. She was the first to arrive that morning. She "saw two people very suspicious" come into the store. The taller one showed her something under his sleeve that looked like a knife. They asked where the money was, and she said it was in the back. Both men were wearing gloves. They "proceeded to go to the back and get the money, . . . [Vazquez] told him it is a three-minute time safe, so they were going to have to wait." As they waited for the safe to open, one of the men "pulled his shirt up" so Vazquez could see his gun. "The short guy" took the money, about $11,000, "in a deposit bag that goes to the bank."
In the same back room, there were two other safes that contained "brand new phones." The two men took 31 iPhones. The taller man took Vazquez's personal phone, too. They ordered Vazquez to give them the keys to the store and she complied, and then "the taller guy asked me if I was going to call the cops, and I told him no, and he told me he was going to put me in the bathroom because that's where the cleaning people were already, and he said you are not going to try to do anything, or something like that. He said do we need to tie you up? I said no. So he just put me in there, told me to get on the floor in the bathroom, he closed the door and I don't know where they went." The three stayed in the bathroom until a coworker came and opened the door. The police arrived shortly thereafter.
Ayman Mousa testified his cousin Nasmy "told [him] that one of her friends has an iPhone in the bag, in the box, sealed, wrapped, never used it. It was given as a gift for his birthday and that he wanted to sell this iPhone, and I said I would be interested." Mousa asked his cousin to have her friend call him. The friend called and said his name was Elmore and that he would sell the phone for $300. On February 12, 2009, after Mousa activated the iPhone, police officers knocked on his door
Nasmy Jalil testified under a grant of immunity by the district attorney. She said defendant was her boyfriend. Jalil told police defendant brought three phones with him when they went to dinner and told her to select one for herself. She had a birthday on January 26, and defendant gave her an iPhone as a present. She said "And then he told me that, um, he did take them. And, um, after that I got really upset, and I said what's going on, and like can you tell me what's going on. And then when he told me that, uh, he had stolen the phones . . . ." When Mousa gave her $300 for his iPhone, she turned the money over to defendant.
During the sentencing hearing, the court stated: "And [the probation report] says AT&T would like to have restitution. So I'm going to order that. [$]23,615 and 32 cents. That's to the AT&T store in . . . Santa Ana." Despite the court ordering $23,615.32 as restitution to AT&T, both the minute order and the abstract of judgment state the amount as $23,615.32 plus $10,615.63. We note the probation report states "the exact amount of the loss was $23,615.32, of which $10,615.63 was in cash and $12,999.69 was in phones and other equipment."
II
DISCUSSION
Robbery/Receiving Stolen Property
Defendant first contends his dual conviction for robbery as alleged in count two and for receiving stolen property as alleged in count eight requires a reversal of his conviction for receiving stolen property. The Attorney General argues he was properly convicted of both.
Count two of the amended information reads: "On or about January 30, 2009, in violation of Section 211/212.5(c) of the Penal Code (2d degree robbery), a FELONY, ELMORE VICTOR PORCHE III did unlawfully by means of force and fear take the personal property against the will of and from the person, possession, and immediate presence of Frida . . . ." Count eight states: "On or about February 12, 2009, in violation of Section 496(a) of the Penal Code (RECEIVING STOLEN PROPERTY), a FELONY, ELMORE VICTOR PORCHE III did unlawfully buy, receive, conceal, sell, withhold, and aid in concealing, selling and withholding CELL PHONE, property which had been stolen and obtained by theft and extortion, knowing that the property had been stolen and obtained by theft and extortion."
During final argument, the prosecutor argued: "Force or fear was used to get the property. [¶] And when the force or fear was used, the intent was to keep it. [¶] So for Frida . . . Vazquez, she is the agent or employee at AT&T. So she has everything in that store is within her control or possession. So when they go in and they take her to the back where the safes are and have her use the combination to get into that safe, that is a robbery of Frida through AT&T. So she's the victim in this count. [¶] and this has to do with the fact that they did get away with the 10 grand that was in the safe and the additional $1,000 that was in that lower safe where the money was in thousand dollars increments to go out to each register. So they actually got 11 grand. And that has to do with the property. [¶] Alternatively, she also had her cell phone taken. That is also a robbery of Frida. . . . [¶] As a jury, you have to unanimously decide which one. It doesn't matter. You know they both happened. [¶] I submit to you consider it the robbery of the safes. The taking of the 11 grand and the 31 phones. Use that as what constitutes the robbery in count 2." The prosecutor further argued: "Count 8 is the fact that Mr. Porche took some of that property and sold it. So this has to do with Ayman Mousa . . . ."
In January 2009, the receiving stolen property statute stated: "Every person who . . . sells . . . or aids in . . . selling . . . any property . . . knowing the property to be stolen . . . shall be punished by imprisonment in a state prison, or in a county jail for not more than one year . . . ." (Former § 496, subd. (a) [Stats. 1997, ch. 161, § 1].) It also contained the words: "However, no person may be convicted both pursuant to this section and of the theft of the same property." (Ibid.) The California Supreme Court has stated that the rule against dual convictions "is based on the premise that a theft conviction operates as a bar to a receiving conviction." (People v. Ceja (2010) 49 Cal.4th 1, 3.)
Here the jury found defendant guilty of robbery and receiving stolen property. The court stayed imposition of sentence for the receiving stolen property conviction. The evidence demonstrates four different thefts: $11,000; 31 iPhones, Vazquez's personal cell phone; and the keys to the store. But the prosecutor's theory, as argued to the jury, involved only three of those items. The keys were not mentioned. The prosecutor told the jury "it doesn't matter" which of the three items it used to decide defendant robbed Vazquez, and one of those items, an iPhone, is precisely what the charge involved. A party is not permitted to change theories on appeal. (Saville v. Sierra College (2005) 133 Cal.App.4th 857, 872-873.) Under the circumstances we find in this record, we must conclude defendant was improperly convicted of both stealing and selling the same property.
Restitution Order
Defendant next argues the trial court erred "in failing to impose victim restitution jointly and severally." He says it's clear from the testimony he did not act alone, and cites People v. Leon (2004) 124 Cal.App.4th 620, 622, when he states in his brief: "If two defendants cause a victim to suffer an economic loss, the sentencing court may impose liability on each defendant to pay the full amount of the economic loss; however, a victim may not obtain a double recovery." He further argues that under People v. Blackburn (1999) 72 Cal.App.4th 1520, 1535, the sentencing "court has the authority to order direct victim restitution to be paid jointly and severally."
The appellant's brief contains no authority for the proposition that the word "defendant" means an alleged perpetrator who is not part of the proceedings. He does not explain why we should conclude another defendant exists; there is no indication anyone else has been charged. Nor does he cite to anything in the record to demonstrate there is another defendant somewhere. Accordingly, we deem this argument waived. (Calif. Rules of Court, rule 8.204(1)(B), (C).)
III
DISPOSITION
The judgment of conviction on count eight, receiving stolen property, is reversed. With regard to the discrepancy between the court's oral pronouncement and the clerk's documentation of the amount of restitution to be paid to AT&T, the clerk is ordered to correct the minute order and the abstract of judgment to state the total amount is $23,615.32. (People v. Mitchell (2001) 26 Cal.4th 181, 185-186.) A copy of the amended abstract shall be forwarded forthwith to the Department of Corrections and Rehabilation. In all other respects, the judgment is affirmed.
MOORE, J. WE CONCUR: BEDSWORTH, ACTING P. J. ARONSON, J.