Opinion
D073024
06-25-2018
THE PEOPLE, Plaintiff and Respondent, v. JESSIE DANIEL SANCHEZ, Defendant and Appellant.
James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Nora S. Weyl, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCE371779) APPEAL from a judgment of the Superior Court of San Diego County, John M. Thompson, Judge. Affirmed. James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Nora S. Weyl, Deputy Attorneys General for Plaintiff and Respondent.
A jury convicted Jessie Daniel Sanchez of one count of robbery in violation of Penal Code section 211. Sanchez admitted to having suffered a serious felony prior conviction and a prior strike conviction. The court sentenced Sanchez to a total term of imprisonment of nine years. On appeal, Sanchez contends there is insufficient evidence to sustain a robbery conviction, and his conviction should be reversed or reduced to attempted theft. In addition, he contends the trial court abused its discretion in denying his Romero motion to dismiss his prior strike conviction. We affirm the judgment, finding there is substantial evidence to support Sanchez's robbery conviction and the trial court did not abuse its discretion in denying Sanchez's Romero motion.
Unless otherwise specified, further statutory references are to the Penal Code.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
FACTUAL BACKGROUND
One afternoon in June 2017, a property manager noticed Sanchez wandering in an apartment complex's parking lot. The property manager asked Sanchez if he was a resident or knew anyone in the complex, and Sanchez only mumbled in response. After telling Sanchez to leave, the property manager called the police and then drove around the block to enter the parking lot through the main entrance.
At about that time, M.G., his wife R.G., and their two young daughters were returning home to the apartment complex in one of their family vehicles. They parked in the parking lot near their other family vehicle, a Toyota. M.G. testified that he was the last person to drive the Toyota, and, to the best of his knowledge, he had left it locked. M.G. and R.G. noticed Sanchez sitting on a rock underneath a tree nearby. R.G. then saw Sanchez getting into the Toyota. She yelled at him, saying, "What are you doing in my car?" and called the police.
M.G., a firefighter with extensive military training while in the Navy, ran to the driver's side of the Toyota, where Sanchez was standing holding a plastic bag. M.G. slammed Sanchez with the car door and used the car door to hold Sanchez in place. M.G. explained he took this action in an attempt to "disorient, to confuse or overpower" Sanchez because he was confronting an "unknown entity or unknown situation" and wanted to "alleviate" the situation and "make it safer" in case Sanchez had any weapons. M.G. asked Sanchez, "Why are you in my car?" Sanchez replied, "This is my car." Sanchez dropped the plastic bag and was able to move away from the car door area. He had the opportunity to run away, but instead he put his hands up in closed fists and assumed a boxing stance. As the men circled each other, Sanchez repeatedly told M.G., "I know who you are" and that the car belonged to Sanchez. Sanchez struck the first blow, punching M.G. on his left cheek. M.G. testified that he was concerned for his and his family's safety because Sanchez kept repeating, "I know who you are" and because Sanchez knew where they lived. Fearing for his safety and for the safety of his family, M.G. decided at that point that he needed to apprehend and hold Sanchez to prevent him from coming back to either harm M.G. or his family, or to steal his vehicle. M.G. ran toward Sanchez and pulled Sanchez's shirt over his head, but Sanchez ran toward the parking lot exit. M.G. was able to chase after Sanchez and ultimately detained Sanchez on the street outside the parking lot, using a choke hold, until the police arrived.
The property manager was just pulling up from circling the block when he saw M.G. chase, tackle, and restrain Sanchez. He called the police again.
When the police arrived, they found a child's wallet in the street near where M.G. was restraining Sanchez. The wallet belonged to M.G. and R.G.'s daughter and was previously located in the daughter's purse in the Toyota. The police also located the plastic bag Sanchez dropped near the Toyota, which contained other items from the Toyota belonging to the family.
M.G. sustained minor injuries that were treated at the scene by paramedics.
An amended information charged Sanchez with one count of robbery in violation of section 211 and alleged that Sanchez suffered six prior prison convictions (§§ 667.5, subd. (b), 668), two prior serious felony convictions (§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)), and two prior strike convictions (§§ 667, subds. (b)-(i), 1170.12, 668).
After hearing the testimony of M.G., R.G., the property manager, and the responding police officers, a jury found Sanchez guilty of robbery in violation of section 211. Sanchez admitted he suffered a prior strike conviction and a prior serious felony conviction. The People dismissed the allegations related to the prior prison convictions. Sanchez requested that the trial court exercise its discretion to dismiss the prior strike conviction; however, the trial court did not dismiss the prior strike. The trial court sentenced Sanchez to a total term of imprisonment of nine years, consisting of the lower term of two years, doubled to four years due to the prior strike, plus five years for the prior serious felony conviction.
Sanchez appeals, asserting there was insufficient evidence to support a robbery conviction, and the trial court abused its discretion in denying his Romero motion.
DISCUSSION
I. Substantial Evidence Supports Sanchez's Robbery Conviction
Sanchez contends there is insufficient evidence to support the jury's determination that he committed robbery, such that his conviction should be reversed, or, alternatively, reduced to attempted theft. Sanchez claims there was no evidence he used force or instilled fear in attempting to take property because the evidence established that M.G. was the first to impose force. Only in response to M.G.'s "aggression," Sanchez argues, did he "exchange punches."
In response to an appellant's challenge to the sufficiency of the evidence supporting his conviction, we must determine " 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " (People v. Nguyen (2015) 61 Cal.4th 1015, 1055 (Nguyen).) "The record must disclose substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Zamudio (2008) 43 Cal.4th 327, 357 (Zamudio).) "[W]e review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence." (Ibid.) " 'Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence.' " (Ibid.) "A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support" ' the jury's verdict." (Ibid.)
Robbery is "the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (§ 211.) "Robbery is larceny with the aggravating circumstances that 'the property is taken from the person or presence of another . . .' and 'is accomplished by the use of force or by putting the victim in fear of injury.' " (People v. Anderson (2011) 51 Cal.4th 989, 994.) "The 'taking' of property has two components, 'caption' (achieving possession of the property) and 'asportation' (carrying the property away), where 'the slightest movement' may constitute asportation and 'the theft continues until the perpetrator has reached a place of temporary safety with the property.' " (People v. Hodges (2013) 213 Cal.App.4th 531, 540 (Hodges).) However, "[t]here is no requirement that defendant escape with the loot or that he reduce the property to his sole possession by chasing the victims away." (People v. Pham (1993) 15 Cal.App.4th 61, 67 (Pham).)
A defendant who uses force or fear in an attempt to escape with property taken by larceny has committed robbery. (People v. Williams (2013) 57 Cal.4th 776, 786-787.) Similarly, when a defendant uses force or fear in an attempt to prevent the rightful owner from regaining possession of the property, he has committed robbery. (Pham, supra, 15 Cal.App.4th at pp. 65-67; People v. Estes (1983) 147 Cal.App.3d 23, 27 (Estes).) Once the taking by force or fear is completed, it is no defense that the property taken was restored, even if restoration occurs almost immediately. (People v. Hill (1998) 17 Cal.4th 800, 852.) However, when the force or fear is applied only after the stolen property has been abandoned, such that the defendant no longer intended to permanently deprive the owner of the property at the time the force or fear was imposed, the defendant may be guilty of theft, but not of robbery. (Hodges, supra, 213 Cal.App.4th at p. 543; Pham, at p. 68.)
Here, there was substantial evidence to establish that Sanchez used both force and fear in committing the charged robbery offense. When confronted by M.G., Sanchez dropped a bag containing property that had been inside the family's Toyota. Rather than fleeing, Sanchez assumed a fighting stance and punched M.G. in the face—aggressive actions which clearly demonstrated the requisite use of force. (People v. Mullins (2018) 19 Cal.App.5th 594, 604 ["To establish force for the purpose of a robbery conviction, 'something more is required than just that quantum of force which is necessary to accomplish the mere seizing of the property.' [Citation.] But the degree of force need only be sufficient to overcome the victim's resistance."].) Sanchez also kept asserting control over the vehicle, brazenly insisting it belonged to him, in conjunction with his use of physical force against M.G.
There is also substantial evidence that Sanchez's actions caused the victim to experience fear. "[F]ear may be inferred from the circumstances in which the property is taken." (People v. Morehead (2011) 191 Cal.App.4th 765, 775 (Morehead).) "If there is evidence from which fear may be inferred, the victim need not explicitly testify that he or she was afraid." (Ibid.) Rather than retreating from the crime scene, Sanchez repeatedly said, "I know who you are," which M.G. perceived as a threat (reasonably so). M.G. further testified that he was concerned for his and his family's safety because Sanchez knew where they lived. "The requisite fear need not be the result of an express threat or the use of a weapon." (Ibid.) In this case, Sanchez's conduct, words, and the circumstances surrounding his actions were all reasonably calculated to produce fear. (Ibid.)
Sanchez claims M.G. acted as an "aggressor," and contends this shows he was not in fear. The fact that M.G. initially approached Sanchez and attempted to disorient him by slamming the vehicle door closed does not negate Sanchez's subsequent use of force and fear during the ongoing course of the robbery. Had Sanchez fled upon M.G.'s initial contact, the situation might have been different. Instead, Sanchez maintained his ground, and in fact escalated the situation—he assumed a fighting stance with closed fists, he threatened M.G. by telling him he knew who he was, he insisted the car belonged to him, he punched M.G. in the face, he struggled and fought with M.G., and he left with property belonging to M.G.'s daughter. This constitutes substantial evidence of force and fear to allow a reasonable jury to find Sanchez guilty of robbery beyond a reasonable doubt. The victim's initial effort to disorient Sanchez and thwart the ongoing crime does not exonerate Sanchez. (See, e.g., People v. Gomez (2008) 43 Cal.4th 249, 256 (Gomez) [robbery is a continuing offense; it is not complete until defendant has reached a place of temporary safety]; Pham, supra, 15 Cal.App.4th at pp. 64-68 [defendant properly convicted of robbery where victim confronted him as he was getting ready to flee with items taken from victim's car; after victim chased him, defendant dropped the items and started to physically attack the victim]; People v. O'Neil (1997) 56 Cal.App.4th 1126, 1131-1132 [a defendant may be found guilty of carjacking where the victim confronts the defendant after the theft and the defendant uses force or fear to retain possession of the vehicle].)
M.G. testified that he was concerned for his safety and that of his family after Sanchez punched him. Even absent M.G.'s express testimony, the jury could reasonably infer fear from the circumstances of the offense. (See Morehead, supra, 191 Cal.App.4th at p. 775 ["[T]he jury may infer fear ' "from the circumstances despite even superficially contrary testimony of the victim." ' "]; accord, People v. Renteria (1964) 61 Cal.2d 497, 498-499.) Moreover, the People only need to establish the use of force or fear, and the evidence is sufficient on the use of force even if we assume M.G. was not afraid of Sanchez.
Sanchez also contends his robbery conviction should be reduced to the lesser included offenses of theft or attempted theft. Theft, a lesser included offense of robbery, "may be committed without force or the threat of violence and may be completed without the victim ever being present." (Gomez, supra, 43 Cal.4th at p. 254.) Pursuant to section 1181, subdivision (6), we may modify the judgment of conviction to a lesser included offense if we "find[] that insufficient evidence supports the conviction for a greater offense." (People v. Bailey (2012) 54 Cal.4th 740, 748.) Under this statute, we consider whether substantial evidence supports the judgment; we do not reweigh the evidence. (People v. Drake (1992) 6 Cal.App.4th 92, 98 (Drake).)
To support his claim that he only committed a theft offense, Sanchez again argues he did not use the requisite force or fear to support a robbery conviction. As set forth ante, Sanchez's argument lacks merit. Substantial evidence supports the jury's finding that Sanchez committed robbery through force or fear, and it is not the province of this court to disturb the conviction by reweighing the evidence. (See Nguyen, supra, 61 Cal.4th at pp. 1055-1056 [" 'it is the jury, not the appellate court which must be convinced of the defendant's guilt' "]; Drake, supra, 6 Cal.App.4th at p. 98 ["an appellate court will not modify or set aside the verdict [under section 1181, subd. (6)] if there is any substantial evidence to support it"].)
Sanchez also contends the evidence supports a conviction for attempted theft rather than robbery because "[t]here was no evidence Sanchez ever gained control over the property so as to have gained possession or control over it." There is substantial evidence to the contrary. The crime of robbery "occurs whether a perpetrator relies on force or fear to gain possession or to maintain possession against a victim who encounters him for the first time as he carries away the loot." (Gomez, supra, 43 Cal.4th at p. 265, italics added.) A reasonable jury could conclude that, although Sanchez dropped a bag containing some of M.G.'s property near the vehicle, he only did so in order to punch the victim, intimidate the victim, and prevent the victim from regaining the property. (See Estes, supra, 147 Cal.App.3d at pp. 27-28 [robbery committed when defendant uses force or fear to prevent victim from regaining property, and to facilitate defendant's escape regardless of the means by which defendant originally acquired the property].) Moreover, there was evidence that Sanchez did gain control over some of the property, given that a wallet taken from the Toyota was found in the street where M.G. ultimately restrained Sanchez.
In sum, there was ample evidence to support Sanchez's robbery conviction. "Although, as defendant maintains, the jury could have found otherwise . . . because the circumstances reasonably justify the jury's verdict, reversal would be inappropriate." (Zamudio, supra, 43 Cal.4th at p. 359.)
II. The Trial Court Did Not Abuse Its Discretion in Denying Sanchez's Romero Motion
Sanchez contends the trial court erred when it denied his Romero motion to dismiss a prior strike because (1) the court failed to explicitly rule on the motion, and (2) the remoteness of the prior conviction and Sanchez's history of drug abuse take his case outside the spirit of the "Three Strikes" law. Both of Sanchez's arguments lack merit.
In the trial court below, Sanchez filed a Romero motion under section 1385 to dismiss his prior strike in the furtherance of justice. The prior strike involved a 2007 robbery conviction in which Sanchez struck the 14-year-old victim in the face, splitting his lip, before taking his bicycle.
The record indicates that Sanchez also suffered prior felony convictions for unlawfully taking and driving a vehicle (Veh. Code, § 10851, subd. (a)) in 2006 and corporal injury to a spouse (Pen. Code, § 273.5, subd. (a)) in 2007, as well as misdemeanor convictions for driving under the influence (Veh. Code, § 23152, subds. (a) and (b)) in 2013 and 2015.
After hearing argument from counsel, the court did not make an express ruling on the Romero motion, but indicated that Sanchez was "not a suitable candidate for probation" and that "the ends of justice would not be met by a grant." Implicitly denying the Romero motion, the court imposed the low term of two years, doubled based on his strike prior, and added five years for the serious felony prior conviction, for a total sentence of nine years.
Section 1385, subdivision (a), empowers the trial court with discretion to dismiss a prior conviction, including a qualifying strike conviction, "in furtherance of justice." (Romero, supra, 13 Cal.4th at p. 530; In re Large (2007) 41 Cal.4th 538, 543 ["trial courts in cases charged under the Three Strikes law may, in the exercise of their sound discretion, dismiss prior felony conviction allegations in furtherance of justice under section 1385, subdivision (a)"].) "[W]hen facing a motion to dismiss a strike allegation, the trial court 'must consider whether, in light of the nature and circumstances of [the defendant's] present felonies and prior serious and/or violent felony convictions, and the particulars of [the defendant's] background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.' " (People v. Vargas (2014) 59 Cal.4th 635, 641 (Vargas).)
" '[T]he three strikes law not only establishes a sentencing norm, it carefully circumscribes the trial court's power to depart from this norm and requires the court to explicitly justify its decision to do so. In doing so, the law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper.' " (In re Large, supra, 41 Cal.4th at p. 550.) " '[B]ecause the circumstances must be "extraordinary . . . by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack" [citation], the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary.' " (Vargas, supra, 59 Cal.4th at p. 641.)
"[A] trial court's refusal or failure to dismiss or strike a prior conviction allegation under section 1385 is subject to review for abuse of discretion." (People v. Carmony (2004) 33 Cal.4th 367, 375 (Carmony).) " 'The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. . . . In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.' " (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.) Sanchez has not established the trial court abused its discretion in denying his Romero motion.
There is no legal support for Sanchez's first argument, that we should reverse and remand to direct the trial court to make a "reasoned judgment" on the motion. Only when the trial court grants a Romero motion is it required to state "[t]he reasons for the dismissal . . . orally on the record" and, if requested by a party or in the case of unrecorded proceedings, to "set forth the reasons in an order entered upon the minutes." (§ 1385, subd. (a).) The denial of a Romero motion does not impose the same requirement on the trial court. (See In re Coley (2012) 55 Cal.4th 524, 560 ["although a trial court is required to state on the record its reasons for striking a prior conviction [citation], there is no similar statutory requirement of an on-the-record statement of reasons when a court declines to strike a prior"].) In the absence of an affirmative record to the contrary, the trial court is presumed to have considered all the factors relevant to deciding a Romero motion. (People v. Myers (1999) 69 Cal.App.4th 305, 310.) We thus reject Sanchez's contention that the trial court's implicit denial of his Romero motion was insufficient or otherwise constitutes error.
We also reject Sanchez's second argument, claiming that the trial court abused its discretion in denying his Romero motion. Sanchez emphasizes the prior strike conviction is remote in time, his age and maturity indicate he falls outside the spirit of the Three Strikes law, and the instant offense was minor as it did not involve assaultive contact or injury to the victim. That Sanchez committed his prior robbery approximately 10 years before the current offense and remained free of any felony convictions during the interim time period was certainly a factor the court could consider. However, the court's failure to be persuaded by these facts does not evidence an abuse of discretion. There is no indication that the trial court's refusal to dismiss Sanchez's prior strike was irrational or arbitrary. (Alvarez, supra, 14 Cal.4th at pp. 977-978.)
Similarly, there is nothing extraordinary about Sanchez's age, maturity, and history of drug abuse to demonstrate the trial court abused its discretion in refusing to strike the prior conviction. (See Carmony, supra, 33 Cal.4th at pp. 378-379 [trial court properly balanced relevant factors in concluding defendant fell within the spirit of the Three Strikes law, including that defendant had "done little to address his substance abuse problems"]; People v. Leavel (2012) 203 Cal.App.4th 823, 837 [trial court properly exercised its discretion under Romero where defendant failed to cite evidence showing "treatment for his mental health and substance abuse problems that he claims led to the crimes"].)
Finally, we disagree with Sanchez's characterization of the instant offense as minor and his continued insistence that the crime did not involve assaultive contact or injury to the victim. As discussed ante, the evidence adduced at trial is to the contrary. Sanchez entered M.G.'s vehicle while M.G. was with his wife and two young children. Sanchez struck M.G. during the robbery, insisted the vehicle belonged to him and repeatedly told the victim "I know who you are," causing M.G. to be concerned for his and his family's safety. The trial court could properly credit these facts rather than Sanchez's efforts to minimize his conduct and blame M.G. for being the "aggressor."
In his reply, Sanchez cites two cases to support his claim that the trial court abused its discretion, In re Saldana (1997) 57 Cal.App.4th 620 and People v. Bishop (1997) 56 Cal.App.4th 1245. Even if Sanchez's claim had not been forfeited by his failure to address these authorities in his opening brief, Sanchez's reliance on these cases is misplaced. In each case, the appellate court affirmed the trial court's decision to dismiss one or more prior strike convictions. The fact that a trial court properly exercised its discretion in granting a Romero motion does not establish that the trial court abused its discretion in denying Sanchez's Romero motion here. A showing that reasonable people might disagree about whether to strike a prior conviction allegation is insufficient to establish an abuse of discretion. (Carmony, supra, 33 Cal.4th at p. 377 ["[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it."].) Based on our review in this case, there was no abuse of discretion.
We conclude that the trial court's refusal to dismiss Sanchez's prior strike was not an abuse of discretion.
DISPOSITION
The judgment is affirmed.
GUERRERO, J. WE CONCUR: HUFFMAN, Acting P. J. IRION, J.