Opinion
E052835 Super.Ct.No. RIF132478
01-05-2012
THE PEOPLE, Plaintiff and Respondent, v. DERICK RABON THORNTON, Defendant and Appellant.
Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lise S. Jacobson and Kristine A. Gutierrez, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge. Affirmed as modified.
Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lise S. Jacobson and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant Derick Rabon Thornton guilty of first degree robbery in concert (Pen. Code, §§ 211, 213, subd. (a)(1)(A)) and first degree burglary (Pen. Code, §§ 459, 460, subd. (a)).
After the jury hung on a personal firearm use enhancement (Pen. Code, § 12022.53, subd. (b)) to the robbery charge, defendant waived a jury trial; thus, the enhancement allegation was retried to the court, which found it true.
Defendant was sentenced to a total of 16 years in prison, plus the usual fines and fees, including a $5,000 restitution fine. (Pen. Code, § 1202.4.)
Defendant now contends:
1. There was insufficient evidence to support the personal firearm use enhancement.
2. The trial court erroneously believed it lacked discretion regarding the amount of the restitution fine.
We will hold that there was sufficient evidence to support the personal firearm use enhancement. However, as the People concede, the trial court did err by failing to exercise its discretion regarding the amount of the restitution fine. In the interest of judicial economy, instead of remanding, we will modify the amount of the restitution fine (and the related parole revocation restitution fine) to the statutory minimum of $200. We will affirm the judgment as modified.
I
FACTUAL BACKGROUND
As defendant is challenging the sufficiency of the evidence to support the firearm enhancement, we summarize the evidence from the bench trial held on that enhancement. Moreover, we focus, not on the evidence relevant solely to guilt or innocence, but on the evidence relevant to the enhancement.
On September 20, 2006, around 3:15 p.m., Casandra Blocker, then aged 16, heard a knock at the door of her Riverside apartment. When she opened the door, three Black men forced their way inside.
Blocker identified defendant as one of the three men. Defendant pulled a revolver out of his waistband and held it in his hand. He also "waved it in the air." A second man also had a gun — a semiautomatic. The three men gathered up a laptop, music equipment, video games, electronic items, and jewelry, then left.
A neighbor heard Blocker screaming and called police. An officer who responded saw three Black males running from the apartment. He identified one of them as defendant. They dropped their loot, then ran into a nearby Target store. The officer ran in after them.
Angel Chapparo, a manager at the Target, saw three Black men run into the store. A police officer ran in behind them. One of the men, who was wearing a white t-shirt, dropped a revolver onto a merchandise shelf. Other officers found defendant, who was wearing a white t-shirt, hiding under a display. A semiautomatic was later found inside a golf bag at the Target.
Defendant, testifying on his own behalf, admitted participating in the crimes, but he denied having a gun. He identified his two coperpetrators as Mark Overman and "Jay." He testified that they had guns, but he did not.
Mark Overman also testified on defendant's behalf. He had previously pleaded guilty to the crimes. He testified that he had the revolver and Jay had the semiautomatic; defendant did not have a gun.
II
THE SUFFICIENCY OF THE EVIDENCE OF PERSONAL FIREARM USE
Defendant contends that there was insufficient evidence to support the personal firearm use enhancement. (Pen. Code, § 12022.53, subd. (b).) Defendant acknowledges that there was sufficient evidence that he had a gun. He even concedes that "the gun was displayed." He merely claims that he did not display the gun in a menacing manner.
In this context, to "'use' means 'to display a firearm in a menacing manner, to intentionally fire it, or to intentionally strike or hit a human being with it.' [Citations.]" (In re Tameka C. (2000) 22 Cal.4th 190, 197.) "The obvious legislative intent to deter the use of firearms in the commission of the specified felonies requires that 'uses' be broadly construed." (People v. Chambers (1972) 7 Cal.3d 666, 672.)
"By employing the term 'uses' instead of 'while armed' the Legislature requires something more than merely being armed. [Citation.]" (People v. Chambers, supra, 7 Cal.3d at p. 672.) Accordingly, case law distinguishes "use" from "mere possession" (People v. Granado (1996) 49 Cal.App.4th 317, 326, 329) or "passive display." (People v. Hays (1983) 147 Cal.App.3d 534, 548.) "The litmus test for the distinction is functional: did the defendant take some action with the gun in furtherance of the commission of the crime? If so the gun was 'used' . . . . If, on the other hand, the defendant engaged in no weapons-related conduct, or such conduct was incidental and unrelated to the offense, no 'use' occurred . . . . [Citations.]" (People v. Granado, supra, 49 Cal.App.4th at p. 324, fn. 7.)
Recently, in People v. Bryant (2011) 191 Cal.App.4th 1457, the court found sufficient evidence that the defendant had personally used a firearm in robbing the victim of her cell phone. (See id. at pp. 1461-1462.) It noted that "the prosecution was not required to prove that defendant pointed the gun at [the victim] or expressly threatened her with the weapon. '" . . . [W]hen a defendant deliberately shows a gun, or otherwise makes its presence known, and there is no evidence to suggest any purpose other than intimidating the victim (or others) so as to successfully complete the underlying offense, the jury is entitled to find a facilitative use rather than an incidental or inadvertent exposure. The defense may freely urge the jury not to draw such an inference, but a failure to actually point the gun, or to issue explicit threats of harm, does not entitle the defendant to a judicial exemption from [the enhancement]." [Citations.]' [Citation.]" (Id. at p. 1472.)
In the case before it, it explained: "Defendant confronted [the victim] at 1:45 a.m., while she was alone outside of the car. Defendant had the gun by his side, deliberately within [the victim]'s view. The display of the firearm, along with defendant's menacing tone of voice, served to intimidate [the victim] into giving up possession of her phone. Whether defendant's conduct amounted to use of a firearm, or merely being armed, was an issue for the jury to decide." (People v. Bryant, supra, 191 Cal.App.4th at p. 1472.)
Here, defendant pulled a gun out of his waistband and "waved it in the air." There was no evidence that his purpose was to do anything other than to intimidate the victim. Thus, he took action with the gun in furtherance of the crime. Indeed, there was more evidence of firearm use than in Bryant.
Defendant argues that we are essentially holding that any display of a firearm during a robbery is necessarily menacing, thus effectively eliminating the "menacing" requirement. Not so. In People v. Hays, supra, 147 Cal.App.3d 534, the court found insufficient evidence that the defendant had personally used a firearm where he had a rifle slung across his chest or over his shoulder, but he did not touch it or verbally threaten to use it. (Id. at p. 548.) Similarly, in Alvarado v. Superior Court (2007) 146 Cal.App.4th 993, the clerk of a minimart found the defendant in the store and a shotgun lying on a candy rack about a foot away. The defendant asked the clerk to call the police. (Id. at p. 997.) He intended to commit suicide by shooting a police officer, causing police officers to shoot him. (Id. at p. 998.) The court found insufficient evidence that the defendant had personally used a firearm. (Id. at p. 1005.) Here, by contrast, defendant did not just passively display a firearm; he affirmatively drew it and waved it around.
Finally, defendant also argues that the use of the gun did not "facilitate" the robbery, "given the intimidation that occurred when three men burst in on a sixteen year old girl who was alone at home." The fact that defendant's use of a gun was arguably overkill does not detract from the fact that he did use a gun. If anything, it makes his gun use more culpable.
We therefore conclude that there was sufficient evidence that defendant personally used a firearm.
III
FAILURE TO EXERCISE DISCRETION
REGARDING THE AMOUNT OF THE RESTITUTION FINE
Defendant contends that the trial court erroneously believed it did not have discretion regarding the amount of the restitution fine. The People concede the error.
A. Additional Factual and Procedural Background.
The probation report recommended a $5,000 restitution fine (Pen. Code, § 1202.4) and a $5,000 parole revocation restitution fine (Pen. Code, § 1202.45). At sentencing, the trial court imposed both of these fines, as recommended.
This dialogue followed:
"[DEFENSE COUNSEL]: . . . [M]y client's wondering, and so am I, whether you'd be willing to waive or suspend any of the fines or fees or the — any of the money amounts. He's going to be in prison for a substantial amount of time. I don't know whether the $5,000 could be reduced to something less.
"THE COURT: You understand that the $5,000 [i.e., the parole revocation restitution fine] will be suspended unless he has his parole revoked?
"[DEFENSE COUNSEL]: Sure.
"THE COURT: The other one [i.e., the restitution fine] I don't think I have discretion on. I don't believe I do."
B. Analysis.
In the absence of "compelling and extraordinary reasons for not doing so" (Pen. Code, § 1202.4, subd. (c)), the trial court was required to impose a restitution fine in an amount between $200 and $10,000. (Pen. Code, § 1202.4, subds. (b), (c), (d).)
The amount of the fine is in "the discretion of the court . . . ." (Pen. Code, § 1202.4, subd. (b)(1).) In setting the amount of the fine, the trial court was required to consider "any relevant factors, including, but not limited to, the defendant's inability to pay . . . ." (Pen. Code, § 1202.4, subd. (d).)
The trial court was also required to impose a parole revocation restitution fine in the same amount as the restitution fine. This fine had to be suspended unless and until defendant's parole was revoked. (Pen. Code, § 1202.45.)
The trial court evidently did not understand that it had discretion to set the restitution fine in an amount less than $5,000. It also evidently did not consider defendant's ability to pay, much less any other relevant factors. As the People concede, this was error. "A failure to exercise discretion also may constitute an abuse of discretion. [Citations.]" (People v. Sandoval (2007) 41 Cal.4th 825, 847-848.)
Ordinarily, the appropriate appellate remedy would be to remand with directions to redetermine the amount of the restitution fine (and the matching parole revocation restitution fine). We have discretion, however, to modify both fines to the statutory minimum of $200. (People v. Walker (1991) 54 Cal.3d 1013, 1029; People v. Barrera (1999) 70 Cal.App.4th 541, 556; People v. Vasquez Diaz (1991) 229 Cal.App.3d 1310, 1316.) As this will avoid a remand — and as defendant's ability to pay, at least as shown by the probation report, appears to be minimal — we choose to exercise this discretion.
IV
DISPOSITION
The amount of the restitution fine and the amount of the parole revocation restitution fine are both reduced to $200. The judgment, as thus modified, is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
J.
We concur:
McKINSTER
ACTING P.J.
MILLER
J.