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People v. Rebollar

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR
Jan 24, 2012
B230280 (Cal. Ct. App. Jan. 24, 2012)

Opinion

B230280

01-24-2012

THE PEOPLE, Plaintiff and Respondent, v. JOSE SANTACRUZ aka GUILLERMO REBOLLAR, Defendant and Appellant.

Adrian K. Panton, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Victoria B. Wilson and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. BA373342)

APPEAL from a judgment of the Superior Court for Los Angeles County, Rand S. Rubin, Judge. Affirmed in part, reversed in part.

Adrian K. Panton, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Victoria B. Wilson and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Jose Santacruz (also known as Guillermo Rebollar) was convicted of two counts of attempted robbery (Pen. Code, § 664/211), robbery (§ 211), and mayhem (§ 203), with special allegations related to weapons use and great bodily injury, arising from an incident that occurred in 1984, and two counts of perjury related to applications he made for a California identification card in 2002 and 2003 (§ 118, subd. (a)). He appeals from the judgment sentencing him to 11 years in state prison, asserting three errors regarding the counts related to the 1984 incident. The Attorney General concedes two of the asserted errors: (1) the weapon enhancements imposed on one of the attempted robbery counts and the robbery count were improper because robbery was not a "violent felony" under the relevant statutes in 1984; and (2) the conviction on one of the attempted robbery counts must be reversed because it involved the same victim (Marta Espana) as the robbery count. As to the third asserted error -- that section 654 precludes punishment for both mayhem and the other attempted robbery count (involving victim Oscar Grijalva) -- we conclude substantial evidence supports the trial court's implied finding that defendant harbored divisible intents in committing mayhem and attempted robbery against Grijalva. Accordingly, we reverse the judgment as to the attempted robbery count involving Espana and order that the weapons enhancement on the robbery count be stricken, but affirm the judgment in all other respects.

The information identifies defendant as "Guillermo Rebollar aka Jose Santacruz Cervantes." Evidence was presented at trial (including a birth certificate that defendant's sister testified was defendant's) that defendant's true name was Guillermo Rebollar, but defendant testified that he was adopted and his real name was Jose Santacruz or Jose Santacruz Cervantes.

Further undesignated statutory references are to the Penal Code.

PROCEDURAL BACKGROUND

In a second amended information, defendant was charged with attempted second degree robbery of Grijalva on April 2, 1984 (count 2), attempted second degree robbery of Espana on April 2, 1984 (count 3), perjury related to applications for identification cards he made in 2002 (count 4) and 2003 (count 5), mayhem against Grijalva on April 2, 1984 (count 6), and robbery of Espana on April 2, 1984 (count 7). The information also alleged that defendant personally inflicted great bodily injury on Grijalva in committing the attempted robbery alleged in count 2 (§ 12022.7, subd. (a)), that he personally used a deadly weapon, a knife, in committing the attempted robbery and robbery of Espana alleged in counts 3 and 7 (§ 12022, subd. (b)), and that a principal was armed with a firearm during the commission of both attempted robberies, the robbery, and mayhem alleged in counts 2, 3, 6, and 7 (§ 12022, subd. (a)(1)).

The original and first amended informations also included a murder count (count 1) related to an incident in 1982. That charge was dismissed before trial because the only identifying witnesses had died and the prosecution was unable to proceed. As to the counts related to the April 2, 1984 incident (counts 2, 3, 6, and 7), the second amended information alleged that prosecution commenced on May 4, 1984 with the issuance of an arrest warrant for defendant, and was pending until April 30, 2010, within the meaning of section 804, subdivision (d) and former section 802.5. The second amended information also alleged with regard to the perjury counts (counts 3 and 4) that the violations were not discovered until January 6, 2010, and that no law enforcement agency chargeable with the investigation and prosecution of the violations had actual or constructive knowledge of them within the meaning of section 803, subdivision (c).

A jury found defendant guilty of all counts and found all of the special allegations alleged in the second amended information to be true. The trial court sentenced defendant to a total term of 11 years, computed as follows. The court chose count 6 as the base term, and imposed the middle term of four years, plus one year for the firearm enhancement. As to count 2, the court imposed a consecutive subordinate term of eight months for the attempted robbery (one-third the middle term) plus 12 months for the great bodily injury allegation. As to count 3, the court imposed a consecutive subordinate term of eight months for the attempted robbery plus four months for the deadly weapon allegation. As to count 7, the court imposed a consecutive subordinate term of 12 months for the robbery (one-third the middle term) plus four months for the deadly weapon allegation.Finally, on each of the perjury counts, counts 4 and 5, the court imposed a consecutive subordinate term of one year.

We note that the verdict form for count 6 (mayhem) included a paragraph asking the jury to determine whether defendant personally used a deadly weapon, a knife, in the commission of the offense, even though the information did not include that allegation. This discrepancy is irrelevant, however, because the jury found that allegation was not true.

As to counts 2, 3, and 7, the court also imposed and stayed four-month terms on the firearm allegations (§ 12022, subd. (a)(1)).

Defendant timely filed a notice of appeal from the judgment.

FACTUAL BACKGROUND

Because the issues defendant raises in this appeal relate only to counts 2, 3, 6, and 7, our discussion of the factual background will focus primarily on the facts related to the April 2, 1984 incident.

On April 2, 1984, Espana was working at the Taxi Bar in Los Angeles, serving beer. Grijalva was a customer. When Grijalva, who had just cashed a check from his employer, ordered a beer and tried to pay for it with a $100 bill, Espana told him to pay with a smaller bill. A few seconds later, two or three men approached Grijalva and asked him to buy beer for them. Espana recognized one of the men because he was a regular customer who went by the name "Memo." She identified him as defendant at trial. Grijalva had not seen the men before, but he told Espana to serve them some beer because he was afraid.

One of the men (Grijalva later learned his name was Roberto Nunez Tregosa) pulled out a gun, put it to Grijalva's ribs, and told him to go into the bathroom, where Tregosa told him to take out his money. Grijalva grabbed Tregosa's wrist and put his finger in the trigger area of the gun to prevent it from firing while Tregosa was pulling him into the bathroom. While Grijalva struggled with Tregosa, defendant and the other man followed them into the bathroom and began beating Grijalva. At one point, Grijalva said to the men, "Don't hit me anymore, I'm going to give you the money." He took out his money, and then remembered he had a knife, so he took out his knife and threw it at them. Eventually, Grijalva heard a voice say, "He's bleeding a lot. . . . Let's go because this so-and-so is armed." When the men who beat Grijalva came out of the bathroom, defendant approached Espana, showed her a knife and said he wanted her ring. She pleaded with him not to hurt her. He then took money from the cash register and the men left.

Grijalva suffered a broken nose, broken teeth, deep cuts to his eyebrow and right temple, and an injury to his knee. He lost consciousness, and was in a coma for five days; he has permanent injuries to his eyes, nose, and knee, and has a plate in his skull. When he awoke from the coma at the hospital, he did not have any of the money that was in his possession at the bar; he did not, however, have any specific memory of the money being taken.

Detective John Murphy of the Los Angeles Police Department tried to locate Guillermo Rebollar, but was unable to find him despite many attempts between April 1984 and sometime in 1989, when Detective Murphy became a detective supervisor and was taken off on-scene investigations.

Guillermo Rebollar was a suspect in a murder that took place near the Taxi Bar in November 1982 (the subject of count 1, which was dismissed before trial). Although the jury was not presented with any evidence regarding this alleged murder, evidence was presented that a person who identified himself as "Memo" Rebollar was arrested for public drinking near the Taxi Bar in July 1982 and that the fingerprints taken from that arrest matched defendant's fingerprints.

In January 2010, defendant's sister, Maria Rebollar, contacted the police in Santa Ana, and told them that Guillermo (or Memo) Rebollar was living in the United States and using the name Jose Santacruz. Maria, who was 12 years younger than defendant (she was 38 years old at the time of trial in 2010), was born in Mexico and lived there until 1989, when she came to California. She testified that defendant left Mexico for the United States in 1979 or 1980, and returned to Mexico twice; she last saw him in Mexico when his wife was pregnant with their son Marco, who was born in March 1984. When Maria next saw defendant, in 1989 after she came to California, she learned that he had changed his name from Guillermo Rebollar to Jose Santacruz. By late 2009, her relationship with defendant had become strained, and Maria reported his name and location to a detective with the Santa Ana Police Department.

With regard to the perjury counts, evidence was presented that defendant applied for a California driver's license or identification card under the name Guillermo Rebollar in 1980. He also applied for a California identification card under the name Jose Santacruz in 2002 and again in 2003. The application forms he filled out in 2002 and 2003 included a question that asked whether he had ever applied for a driver's license or identification card in California using a different name. Defendant answered "no" to that question on both applications; he testified that he had not remembered applying for an identification card in 1980.

DISCUSSION

A. Weapon Enhancements in Counts 3 and 7

Defendant argues that the trial court improperly imposed weapon enhancements under section 12022, subdivision (b), to the subordinate consecutive sentences imposed on counts 3 and 7, i.e., the attempted robbery and robbery counts involving Espana. He argues that under the law in effect at the time of those offenses, enhancements were excluded from a consecutive subordinate term unless the offense was a violent felony, and robbery (or attempted robbery) did not qualify as a violent felony in 1984. (Citing former section 1170.1, subd. (a), Stats. 1982, ch. 1551, § 1.5, p. 6048, and former section 667.5, subd. (c), Stats. 1983, ch. 229, § 1, p. 706.) The Attorney General concedes that attempted robbery and robbery did not qualify as violent felonies under the version of section 667.5 in effect in 1984 unless a great bodily injury enhancement (§ 12022.7) or personal use of a firearm enhancement (§ 12022.5) was proved, and that neither of those enhancements was proved as to counts 3 and 7. We agree. Therefore, we will strike the four-month enhancement imposed on each of those counts under section 12022, subdivision (b).

We note that neither party addressed the four-month enhancements under section 12022, subdivision (a)(1), that the trial court imposed and stayed in counts 3 and 7, even though the same reasoning applies to these enhancements. Because those enhancements are unauthorized under the law as it existed in 1984, they also must be stricken. (People v. Scott (1994) 9 Cal.4th 331, 354 [unauthorized sentence may be corrected by appellate court when the error is "'clear and correctable'"].) B. Attempted Robbery and Robbery of Espana

Defendant contends he could not be convicted of both the attempted robbery of Espana and the robbery of Espana because the charges were based upon a single indivisible act involving one victim, even though the property at issue (Espana's ring and the Taxi Bar's money from the cash register) belonged to different owners. (Citing People v. Marquez (2000) 78 Cal.App.4th 1302, 1307-1308; People v. Ramos (1982) 30 Cal.3d 553, 589.) The Attorney General concedes that defendant is correct, noting that "[t]he evidence . . . indicates that appellant used force or fear against a single victim in an attempt to take two separate items of property belonging to two owners at the same place and during the same time period." We agree, and therefore reverse the judgment as to count 3, the attempted robbery count.

C. Application of Section 654 to Mayhem and Attempted Robbery of Grijalva

Defendant contends that the trial court improperly imposed separate sentences for both mayhem and attempted robbery of Grijalva. He asserts that under section 654, he could not be punished for both offenses because the conduct underlying the mayhem offense was incidental to the attempted robbery. We disagree.

In 1984, section 654 provided in relevant part: "An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one." (Stats. 1977, ch. 165, § 11, p. 644.) Although the language of section 654 has changed some since 1984, its effect remains the same. Section 654 "'"precludes multiple punishment for a single act or for a course of conduct comprising indivisible acts. 'Whether a course of criminal conduct is divisible . . . depends on the intent and objective of the actor.' [Citations.] '[I]f all the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once.' [Citation.]" [Citation.]' [Citations.] However, if the defendant harbored 'multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct. [Citation.]' [Citations.]" (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)

In this case, the prosecutor argued in the People's sentencing memorandum that section 654 did not apply for three reasons: (1) the beating defendant and his accomplices inflicted on Grijalva was punishment for Grijalva's attempt to grab Tregosa's gun; (2) the extent of the beating went well beyond what was necessary to obtain Grijalva's money; and (3) the attempted robbery was completed when Tregosa drew his gun and defendant and the other man surrounded Grijalva, so that threat of force was separate from the gratuitous application of force used to commit mayhem. Defense counsel did not address the prosecutor's sentencing memorandum or the section 654 issue at the sentencing hearing, and simply asked the court to impose the middle term on the mayhem count and stay all other sentences. The trial court imposed sentence on all counts without commenting on the application of section 654.

Given that the jury found that defendant personally inflicted great bodily injury in committing the attempted robbery of Grijalva, we question the prosecutor's assertion that the attempted robbery was completed once Tregosa threatened Grijalva with the gun while demanding his money.
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On appeal, defendant challenges the trial court's implied determination that section 654 did not prohibit imposition of separate sentences on the attempted robbery and mayhem counts. He argues the evidence showed only a single intent and objective with regard to the attempted robbery and mayhem -- the theft of Grijalva's money -- and that the beating of Grijalva, which was the basis for the mayhem conviction, was incidental to the attempted theft. (Citing People v. Flowers (1982) 132 Cal.App.3d 584, 589 [finding trial court improperly imposed concurrent sentences for robbery and assault because "uncontradicted evidence" showed assault was committed to perfect robbery].)

Defendant's challenge fails to take into account the standard of review on appeal. "Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. [Citations.] Its findings will not be reversed on appeal if there is any substantial evidence to support them. [Citations.] We review the trial court's determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence. [Citation.]" (People v. Jones, supra, 103 Cal.App.4th at p. 1143.)

Here, the evidence showed that the beating inflicted on Grijalva was extreme, and he suffered significant injuries as a result. From this evidence, the trial court reasonably could conclude that defendant harbored a different intent and objective than mere robbery when he participated in the vicious beating. As one court observed, "at some point the means to achieve an objective may become so extreme they can no longer be termed 'incidental' and must be considered to express a different and more sinister goal than mere successful commission of the original crime." (People v. Nguyen (1988) 204 Cal.App.3d 181, 191; accord, People v. Cleveland (2001) 87 Cal.App.4th 263, 272.) Therefore, we affirm the trial court's implied finding that section 654 does not require that the sentence for the attempted robbery be stayed.

DISPOSITION

The judgment with regard to count 3 is reversed. With regard to count 7, the four-month enhancement to the sentence imposed under section 12022, subdivision (b), and the four-month enhancement imposed (although stayed) under section 12022, subdivision (a)(1), are stricken. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, J.

We concur:

EPSTEIN, P. J.

MANELLA, J.


Summaries of

People v. Rebollar

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR
Jan 24, 2012
B230280 (Cal. Ct. App. Jan. 24, 2012)
Case details for

People v. Rebollar

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JOSE SANTACRUZ aka GUILLERMO…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR

Date published: Jan 24, 2012

Citations

B230280 (Cal. Ct. App. Jan. 24, 2012)