Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Lisa M. Chung, Judge, Los Angeles County Super. Ct. No. MA028210.
Marylou Hillberg, 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, Senior Assistant Attorney General, Lawrence M. Daniels and Sharlene A. Honnaka, Deputy Attorneys General, for Plaintiff and Respondent.
TURNER, P. J.
Defendant, Arthur J. Ross, was originally convicted of: kidnapping to commit robbery (Pen. Code, § 209, subd. (b)(1)); second degree robbery (§ 211); three counts of attempted second degree robbery (§§ 211, 664); and two counts of assault with a semiautomatic firearm. (§ 245, subd. (b).) In an unpublished opinion (People v. Jones and Ross (March 15, 2006, B179610) [nonpub. opn.]), we reduced defendant’s conviction for kidnapping to commit robbery to false imprisonment by violence (§ 237, subd. (a)) and remanded the matter to allow the trial court to resentence him on all counts. Thereafter, the trial court: selected count 6 (assault with a semiautomatic firearm) as the principal term; imposed the upper term of nine years; and doubled that term pursuant to section 667, subdivision (e)(1). The trial court also imposed a consecutive term as to count 3, attempted robbery. Defendant argues the trial court improperly imposed the upper term as to count 6. We affirm with modifications.
All further statutory references are to the Penal Code unless otherwise indicated.
As set forth in our prior unpublished opinion (People v. Jones and Ross, supra, (March 15, 2006, B179610), the facts established at trial that Mr. Ross is co-defendant Robert Jones’ uncle. Vyron Harris, the named victim in count 2 of the amended information, was employed as a cashier at the Sam’s Club store in Palmdale on January 5, 2004. Mr. Harris’s sister, Valon Harris, had known Mr. Ross and Mr. Jones, for approximately three years. Mr. Ross was a personal friend. Ms. Harris worked with Mr. Jones at the TJ-Maxx store in Palmdale in 2003. Ms. Harris occasionally smelled the odor of marijuana in the break room of the TJ-Maxx store. Mr. Jones was present on one of those occasions.
Mr. Ross was employed as a team leader at the Sam’s Club store in Palmdale on January 5, 2004. Mr. Ross was in charge of the hard lines section. Mr. Ross’s responsibilities included: stocking and moving merchandise; insuring merchandise is displayed properly; and bailing boxes in the receiving area of the store. Mr. Ross was supervised by a merchandising manager. Mr. Ross worked from 2 to 10 p.m. on January 5, 2004. Mr. Ross took his lunch break from 6:30 to 7:02 p.m. that day.
Delia Contreras, the count 4 victim, was a closing manager at the Sam’s Club store on January 5, 2004. In that capacity, she was responsible for the cashiers and their handling of money within the store. When a cashier closed out for the evening, she or he walked upstairs to a counting room to count their money. Thereafter, the money would be delivered to a cash office. Each of those rooms has a pass-code lock. Most employees had the access code to the counting room door. However, only the managers and the employees working in the cash office have access to that pass code. Approximately 20 to 30 cashiers work at a given time. The Sam’s Club store has surveillance cameras throughout, including: upstairs; on the registers; in the receiving department; and on the working floor. In addition, there are cameras positioned at the front doors facing the street. The second floor, which is accessed by stairway toward the back of the store, contains the managers’ office, a personnel break room, a marketing room, the counting room, and a cash office.
Ms. Rivas, the victim named in count 1 of the information, was working at the Sam’s Club on January 5, 2004. At approximately 7:45 p.m., Ms. Rivas walked upstairs to the break room and took a seat facing the television, with her back to the lockers and stairway. Ms. Rivas began checking the voicemail on her cellular telephone. Mr. Jones came up behind Ms. Rivas and grabbed her around the neck. Ms. Rivas believed someone was “playing around.” Ms. Rivas intended to tell the individual, “‘I’m on my phone, leave me alone[.]’” However, as Ms. Rivas turned around, Mr. Jones placed the barrel of a gun against her temple. The rest of the firearm was covered with a purple and white bandana. Mr. Jones, who smelled of marijuana, told Ms. Rivas: “‘Put your cell phone down. Don’t say a word. Take me to the cash office.’” Ms. Rivas thought it was unusual that Mr. Jones knew the term “cash office.”
Ms. Rivas, who was very afraid, put her cell phone down and walked the approximate 17 feet to the cash office door. Mr. Jones walked behind Ms. Rivas with the gun against her back. Mr. Jones asked, “‘Do you know the code for the first door?’” Ms. Rivas responded that she did and opened the counting room door. Once inside, Mr. Jones walked behind Ms. Rivas to the second door, where he asked, “‘Do you know the code for this door?’” The second door led to the cash office. Ms. Rivas replied: “‘No, I don’t. I don’t know it. I never go in there. We’re not allowed to see. I don’t know nothing in there.’” Mr. Jones ordered Ms. Rivas, “‘Knock on the door and tell them to open the door.’” Ms. Rivas knocked repeatedly on the door to the cash office. Ms. Rivas tried to open the door to the cash office. As she knocked, Ms. Rivas noticed that Mr. Jones wore “Sean John” brand pants. The pants were faded baggy black with white stitching on the side and big long pockets in the back. The pants were the same as those in exhibit No. 10. Ms. Rivas identified Mr. Jones at trial as the individual who forced her at gunpoint into the counting room.
Ms. Rivas continued to attempt to open the door to the cash office by trying to contact Ms. Contreras and Stephanie Puckett, the count 3 victim, who were working inside. Ms. Rivas went to the window where money could be handed inside. Ms. Rivas was crying and asking, “‘Please open the door.’” Ms. Contreras and Ms. Puckett told Ms. Rivas: “‘Hold on. Wait a minute. Hold On.’” Ms. Rivas was afraid. Mr. Jones was standing next to the door to the cash office. Mr. Jones held the gun with both hands at his waistline. Mr. Jones told Ms. Rivas: “‘Don’t worry. I’m not going to hurt you.’” Mr. Jones waited another minute, walked to the door of the counting room, and asked, “‘Does that camera work?’” Ms. Rivas told him: “‘I don’t know. I don’t know if it works.’” Mr. Jones looked out the small window of the door, while still holding the gun in both hands. Defendant asked again whether the women in the cash office were going to open the door to the cash room. Ms. Rivas responded: “‘I’m sorry. I’m trying. I’m trying.’” Ms. Rivas screamed: “‘Please open the door. Please.’” Defendant left the counting room. As defendant left, Ms. Contreras pulled Ms. Rivas inside the cash office, closing the door behind them. Ms. Contreras asked, “‘Are you okay?’” Ms. Rivas told Ms. Contreras: “‘No. He has a gun.’”
Ms. Contreras had gone into the cash office to complete some paperwork. Ms. Puckett, who was inside the cash office, requested Ms. Contreras’s assistance. The door was closed behind them. Ms. Contreras saw by way of a video monitor that Ms. Rivas had entered the counting room with an individual who was “all covered up.” Ms. Puckett also saw Ms. Rivas and the man enter the count room. Based on her experience with a prior robbery, Ms. Contreras told Ms. Puckett to call the police. Ms. Rivas repeatedly pounded at the door. Ms. Rivas’s voice, which sounded fearful, kept breaking and she was crying. Ms. Rivas repeatedly asked them to please open the door and let her inside. Ms. Contreras told Ms. Rivas to wait. Ms. Contreras explained the door was an “automatic lock” and she would open it when she had the opportunity to do so. The man paced back and forth behind Ms. Rivas. The man kicked the cash office door then returned to pacing. Ms. Rivas continued to ask to come inside the cash office. Thereafter, the man looked at the camera. The man approached Ms. Rivas and said something to her. Ms. Contreras called her general manager on her cellular telephone and advised him of what was occurring. The man then opened the exit door to the counting room, placed his foot between the door jamb, momentarily, then walked outside. Both Ms. Contreras and Ms. Puckett were afraid. Ms. Contreras could hear the hopelessness in Ms. Puckett’s voice during a telephone conversation with the police. Once the man left the counting room, Ms. Contreras opened the cash room door and pulled Ms. Rivas inside. Ms. Rivas was frightened and crying. Ms. Contreras explained she was sorry for not opening the door to the cash room earlier. Ms. Rivas said that she had been in the break room on her cell phone when someone approached from behind with a gun. Ms. Contreras heard the exit door alarm sound, causing her to believe the man was out of the building.
A videotape of these events was played at trial. The videotape depicted Ms. Rivas entering the counting room at 19:45:44 hours with the man in dark clothing behind her. It depicted Ms. Rivas knocking on the door of the cash office and repeatedly bending to speak through the box where cash is deposited. At 19:48:20 hours, the man had left the room. Ms. Contreras was able to observe all that was depicted in the videotape through the video monitor in the cash office at the time of the incident. The videotape also depicted the man leaving the staircase and entering another hallway that led to an emergency exit.
At approximately 7:45 p.m., Mr. Harris took the tray from his cash register and walked up the stairway to the counting room to count the money. While walking up the stairs, Mr. Harris encountered a man that did not work at Sam’s Club. The man was putting a gun into the waistband of his pants. Mr. Harris later identified Mr. Jones as the man with the gun. Mr. Jones demanded, “‘Give me that.’” Mr. Harris responded, “‘Give you what?’” Mr. Jones pulled out the gun. Mr. Harris began to remove the money from the till a portion at a time and placing it into a pillow case. Mr. Jones said, “‘Just give me the whole thing.’” Mr. Harris put the whole cash tray into the pillow case. Mr. Harris believed there was approximately $300 as well as checks and money orders in the tray. Mr. Jones told Mr. Harris to turn around and walk upstairs. Mr. Harris complied. Mr. Harris noted Mr. Jones was approximately six feet, one or two inches tall. Mr. Jones wore a big black jacket with a hood and smelled of marijuana. Mr. Harris knew Mr. Ross. Mr. Harris also knew several of Mr. Jones’s family members.
After the incident was over, Mr. Ross inquired of Ms. Contreras if everything was okay. Mr. Ross said he overheard Ms. Contreras’s request for the merchandisers to come upstairs on another team leader’s radio. Ms. Contreras believed that was an unusual thing for Mr. Ross to say because once the exit alarm had sounded, she had used a walkie talkie radio to call all available merchandisers with radios to come to the cash office. Thereafter, many of the merchandisers did come up to the cash office. However, Mr. Ross later explained where he had been rather than ask how everyone was. Sometime thereafter, Mr. Ross asked Ms. Contreras about the robbery. Mr. Ross also made a comment about Ms. Contreras being a “scared ass” when she was required to go outside to open a section outside of the building.
Los Angeles County Sheriff’s Department Detective Steven Lankford was assigned to investigate the robbery. Detective Lankford took possession of the surveillance tapes from January 5, 2004. After reviewing the videotapes, Detective Lankford became suspicious of Mr. Ross. The videotape depicted Mr. Ross standing at the bottom of the stairwell that led up to the offices just prior to the robbery. Mr. Ross was wearing the orange vest worn by employees. Mr. Ross took a step toward the restroom and then looked back up the stairwell. Mr. Ross walked in the direction of the pharmacy, where the man in dark clothing eventually entered. Mr. Ross was alone at the time he looked up the stairway. Mr. Ross had a walkie talkie in his hand. Mr. Ross walked up and down the stairs and then into the restroom. The man in dark clothing came from the area of the pharmacy and entered the restroom. Both men were inside the restroom at the same time. Mr. Ross came out of the restroom, walked past the stairwell and out of the camera’s view. Soon thereafter, the man in dark clothing came out of the restroom and walked toward the stairway. When a group of customers walked in his direction, the man stopped at a drinking fountain. Once the group departed, the man went upstairs and the robbery ensued.
Detective Lankford’s investigation led to names associated with Mr. Ross’s home address, including that of Mr. Jones. Detective Lankford obtained driver’s license photographs. Thereafter a photographic six-pack display was assembled that included Mr. Jones’s photo. Detective Lankford met with Ms. Rivas on January 16, 2004. Detective Lankford admonished Ms. Rivas prior to showing her the photographic lineup. Ms. Rivas identified Mr. Jones, stating, “‘That looks like the guy.’” When asked how she identified Mr. Jones, Ms. Rivas wrote “I think 50 percent of his eyes, nose and lips” on the photo display. Ms. Rivas had not identified anyone from a previous photo display that did not include Mr. Jones’s photo.
On January 14, 2004, Detective Lankford and Deputy Loren Brown went to Mr. Ross’s home. They went to Mr. Ross’s residence to question him about the robbery. Mr. Ross seemed surprised and nervous. Detective Lankford asked Mr. Ross about a time depicted on the videotape when he was speaking to Ms. Contreras in the stairwell. Mr. Ross said that he was “joking around” with Ms. Contreras about taking time off. Mr. Ross recalled that Ms. Contreras was holding a brown coffee cup at that time. Mr. Ross indicated that he went back to the receiving area after their conversation. Mr. Ross denied going upstairs after the conversation with Ms. Contreras. Mr. Ross also denied going into the restroom after their conversation. Mr. Ross stated that he had his walkie talkie with him during the entire shift. Mr. Ross stated he heard the call for help over the walkie talkie and proceeded with “Alex” to the office area.
Detective Lankford arrested Mr. Jones on January 29, 2004, at Edwards Air Force Base. Mr. Jones was told that he was being arrested for robbery. During the drive from Edwards Air Force base to the Palmdale sheriff’s station, Mr. Jones denied any involvement in the robbery. At the time of his arrest, Mr. Jones was wearing dark-colored, baggy Sean John jeans with large rear pockets with white stitching. As noted earlier, Ms. Rivas had described the robber’s pants as having large rear pockets with white stitching. Mr. Jones was taken to an interview room at the Palmdale sheriff’s office by Detective Lankford and Deputy Brown. Mr. Jones was advised of his constitutional rights, acknowledged that he understood them, signed the advisement form, and agreed to speak with the investigators. Detective Lankford prepared a tape recorder prior to the interview. However, before the tape was activated, Mr. Jones asked how much time he could expect to serve. Mr. Jones stated he wanted to spend as little time as possible in jail. Mr. Jones then indicated that he preferred to write out a statement rather than have it tape recorded. At trial, the parties stipulated to the reading of the following portion of that statement: “‘The night of the robbery, I don’t remember much. I went in the room, and I ran out with the money. I got in a car. I don’t know what kind it was. I throw the money in the back and drove off. I didn’t receive any of the money or even heard about its whereabouts.’” Detective Lankford had not provided any details regarding the robbery to Mr. Jones. Detective Lankford did not tell Mr. Jones that: the money at Sam’s Club was kept in a room; that the robbery suspect went into a room to get the money; or that any money had actually been taken during the robbery. Detective Lankford did not mention that the robbery suspect had gone outside with the money, got into a car, or an automobile had even been involved in the robbery.
During the January 29, 2004 interview, Mr. Jones was asked where he was on January 5, 2004. Mr. Jones said he could not remember where he was or whether he was with someone. When Detective Lankford showed Mr. Jones magnified still photos captured from the surveillance videotape, Mr. Jones said, “‘What can I say?’” Mr. Jones said that he was probably smoking marijuana on January 5. At the time Mr. Jones was booked, he gave his height as 6 feet, 2 inches and his weight as 180 pounds. On January 29, 2004, the day Mr. Jones was arrested, Mr. Ross made nine telephone calls to Ms. Harris between 9:15 p.m. and 12:28 p.m.
Mr. Jones’s mother, Mary Jones, offered to provide the names of several individuals that would confirm that he was not the one who committed the robbery; one of the individuals provided by Ms. Jones was Carlos Ross. Detective Lankford spoke to Carlos. But Carlos refused to make a statement as long as Mr. Jones remained in custody. Detective Lankford made several attempts to secure a videotape in the possession of Erica Martinez that would allegedly demonstrate that Mr. Jones could not have committed the robbery. Months after Mr. Jones’s arrest, Ms. Martinez provided an edited videotape that had a two-minute segment which depicted Mr. Jones and another individual sitting on a couch. Detective Lankford later received the unedited version of the tape from the attorneys. The videotape contained two hours of segments that were obviously filmed on different dates. Ms. Jones never made arrangements for the other individuals to meet with Detective Lankford as she had promised. Ms. Jones was Mr. Ross’s sister.
For purposes of clarity and not out of any disrespect, Carlos Ross will be referred to as Carlos.
In December 2003, Mr. Ross introduced an individual to Helen Hall, an optician employed at Sam’s Club, and two other employees. The person was identified as Mr. Ross’s nephew. Ms. Hall had previously identified Mr. Jones from a photographic display shown to her by Detective Lankford. But, Ms. Hall could not identify Mr. Ross’s nephew as the man she met in December 2003. Ms. Hall was uncomfortable about testifying because of the presence of defendants’ family.
First, citing Cunningham v. California (2007) 549 U.S. ___, ___ [127 S.Ct. 856, 868-871] and Blakely v. Washington (2004) 542 U.S. 296, 301, defendant argues that his Sixth and Fourteenth Amendment right to a fair and impartial trial by jury was violated by the trial court’s imposition of the upper term as to count 6 and a consecutive term on count 3 because the terms were based on facts not determined to be true by a jury. In the recent case of People v. Black (July 19, 2007, S126182) ___ Cal.4th ___, ___, the California Supreme Court examined the imposition of an upper term under the state determinate sentencing law in light of Cunningham v. California, supra, ___ U.S. ___ [127 S.Ct. at pp. 863-864]. Our Supreme Court held: “[A]s long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi [v. New Jersey (2000) 530 U.S. 466] and its progeny, any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial.” (People v. Black, supra, ___ Cal.4th at p. ___, original italics.) The Black court further held: “It follows that imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (People v. Black, supra, ___ Cal.4th. at p. ___.)
In this case, the information alleged and the jury found beyond a reasonable doubt, as to counts 1 through 7, that a principal used a firearm in the commission of the false imprisonment, robbery, attempted robberies, and assaults with a semiautomatic firearm pursuant to sections 12022, subdivision (a)(1). The crimes of false imprisonment, robbery, and attempted robbery can be committed without the use of a firearm. Therefore, the jurors’ findings constituted one “legally sufficient aggravating circumstance” that justified the imposition of the upper term as to count 6. In addition, defendant was previously convicted of a serious felony. As a result, defendant’s constitutional right to a jury trial was not violated by the trial court’s imposition of the upper term sentence for his conviction of assault with a semiautomatic firearm. The “‘statutory maximum’” sentence to which defendant was exposed was the upper term. (People v. Black, supra, ___ Cal.4th at p. ___.)
Defendant’s contention that the trial court improperly imposed a consecutive term on count 3 upon facts not found by a jury is also meritless. (People v. Black, supra, ___ Cal.4th at p. ___.)
Second, the Attorney General argues that the trial court should have imposed additional state court construction penalties. We agree. The trial court imposed a $10,000 section 1202.4, subdivision (b)(1) restitution fine and stayed the $10,000 section 1202.45 parole revocation restitution fine. These two restitution fines are not subject to section 1464, subdivision (a) and Government Code section 76000, subdivision (a) penalty assessments. (§ 1202.4, subd. (e); People v. Sorenson (2005) 125 Cal.App.4th 612, 617; People v. McHenry (2000) 77 Cal.App.4th 730, 734.) However, the fines are subject to a Government Code section 70372, subdivision (a) state court construction penalty which, states in part, “[T]here shall be levied a state court construction penalty, in addition to any other state or local penalty including, but not limited to, the penalty provided by Section 1464 of the Penal Code and Section 76000 of the Government Code, in an amount equal to five dollars ($5) for every ten dollars ($10) or fraction thereof, upon every fine, penalty, or forfeiture imposed and collected by the courts for criminal offenses . . . .” The state court construction penalty applies to “every fine, penalty, or forfeiture imposed and collected by the courts for criminal offenses . . .” which includes restitution fines applicable to those counts. Therefore, a state court construction penalty of $5,000 is to be added to both the section 1202.4, subdivision (b)(1) and 1202.45 restitution fines. (Needless to note, the additions to the section 1202.45 parole revocation restitution fines are stayed.)
The Attorney General further argues that the trial court should have imposed a $20 court security fee pursuant to section 1465.8, subdivision (a)(1) as to each count. We agree. (See People v. Schoeb (2005) 132 Cal.App.4th 861, 865-866.) The trial court imposed only one section 1465.8, subdivision (a)(1) court security fee. Defendant was convicted on seven counts. As a result, six additional section 1465.8, subdivision (a)(1) fees shall be imposed. The trial court is to personally insure the abstract of judgment is corrected to comport with the modifications we have ordered. (People v. Acosta (2002) 29 Cal.4th 105, 109, fn. 2; People v. Chan (2005) 128 Cal.App.4th 408, 425-426.)
The judgment is affirmed as modified to impose the state court fees and penalties as noted. The trial court is to personally insure a corrected abstract of judgment is prepared and forwarded to the Department of Corrections and Rehabilitation.
We concur: ARMSTRONG, J., KRIEGLER, J.