Opinion
NOT TO BE PUBLISHED
APPEAL from judgments of the Superior Court of Los Angeles County, Ct. No. KA081206 Robert M. Martinez, Judge.
Gerald Peters, under appointment the Court of Appeal, for Defendant and Appellant, Gabriel Trujillo.
Janice Wellborn, under appointment the Court of Appeal, for Defendant and Appellant, George Arturo Morachis.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Stephanie C. Brenan and Sarah J. Farhat, Deputy Attorneys General, for Plaintiff and Respondent.
CROSKEY, J.
Defendants and appellants Gabriel Trujillo and George Morachis appeal from judgments after a jury trial in which they were convicted of two counts of robbery (Pen. Code, § 211) and one count of assault with a firearm (Pen. Code, § 245, subd. (a)(2)). Defendants contend that the evidence is insufficient to support their convictions on one of the two robbery counts, and also contend their sentences were improperly calculated. We modify the sentences to correct a sentencing error and otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
This case involves the robbery, at gunpoint, of Damien Howe and his girlfriend, Christina Brewer. Howe and Brewer live in Oregon. They were robbed when on a road trip through California with two friends, one of whom, Katie Makana Hills’sete, testified at trial.
The robbery occurred on November 5, 2007, at a gas station/mini-mart near the freeway in El Monte. Howe had been driving Brewer’s car, and pulled off the freeway for gas and a rest stop. Brewer and Hills’sete immediately attempted to use the restroom at the mini-mart; they were told they could not use it, so went across the street to a nearby restaurant. In the meantime, Howe pumped gas into the car, then drove over to the air hoses to check the tire pressure. Brewer and Hills’sete then returned to the car. Hills’sete sat in the rear passenger seat; Brewer stood near the open passenger-side doors.
Three men drove up in a Toyota SUV. Two of them, defendants Trujillo and Morachis, exited the SUV, leaving the driver in the vehicle. Defendant Trujillo approached Howe, who was then near the left front wheel of Brewer’s car, checking the tire. Defendant Trujillo attempted to engage Howe in conversation. He then pulled a gun and held it against Howe, saying, “Give me everything you got.” Howe said, “No.” By this time, the driver of the SUV had moved it so that it was parked somewhat behind Brewer’s car, blocking it in.
Howe grabbed for defendant Trujillo’s gun, and a struggle ensued. Defendant Trujillo fired the gun repeatedly during the struggle, but Howe was not hit. Defendant Trujillo then stepped back. Howe believed that he was backing away, so took the opportunity to throw his wallet inside the car. Howe stood in front of the car door and said, “No, ” again. Defendant Trujillo continued shooting at Howe. Defendant Morachis, who was standing near the rear of the SUV, also shot repeatedly at Howe. As soon as defendant Morachis began shooting, Brewer and Hills’sete, who were still on the passenger side of the car, ran to the rear of the mini-mart and hid behind a small bush. Howe also ran to avoid getting shot. He circled to the opposite side of the SUV in order to put the vehicle between himself and the shooters.
He did, however, suffer temporary hearing loss.
Defendant Trujillo then shot out the driver’s window of Brewer’s car, reached in, and grabbed Howe’s wallet. Defendant Trujillo took the cash from the wallet, and threw the wallet on the ground. Defendant Trujillo took approximately $2000 from the wallet; $1000 of the stolen money had belonged to Brewer. Both defendants returned to the SUV and it was driven off. An eyewitness followed the SUV for some distance and gave the SUV’s license plate number to the police.
Two days later, police spotted the SUV and attempted to stop it. Defendant Trujillo was driving the SUV, and attempted to evade police by leading them on a high speed chase. Defendant Trujillo was unsuccessful, and was eventually caught and arrested. At one point in the chase, defendant Morachis’s sister stopped her vehicle directly in front of the police car, in an apparent attempt to cut off pursuit. Hills’sete and Howe were shown photographic displays containing pictures of defendants Trujillo and Morachis. Hills’sete identified both defendant Trujillo and defendant Morachis as the shooters; Howe identified defendant Trujillo.
It is unclear whether defendant Morachis was in the fleeing SUV. Defendant Trujillo and one passenger were arrested after they jumped from the still-moving SUV; a second passenger, who met Morachis’s general description, was not caught.
Defendants were charged by information with the robberies of Howe and Brewer. They were also charged with assaulting Howe with a firearm. It was further alleged that both defendants personally used (Pen. Code, § 12022.53, subd. (b)) and intentionally discharged (Pen. Code, § 12022.53, subd. (c)) firearms during the course of the robberies. Each defendant was alleged to have suffered one prior felony conviction within the meaning of Penal Code section 667, subdivisions (b) through (i), and one prior serious felony conviction within the meaning of Penal Code section 667, subdivision (a). Trial was bifurcated on the prior conviction allegations. A jury found defendants guilty as charged; and, after defendants waived jury trial on the prior conviction allegations, the trial court found them to be true.
It was also alleged that each defendant had served one or more prior prison terms within the meaning of Penal Code section 667.5. Although these allegations were proven true, they were stricken at sentencing.
Defendants were given identical sentences, which were calculated as follows: For the robbery of Howe, defendants were sentenced to the upper term of five years, doubled pursuant to Penal Code section 667, subdivision (e)(1) (a so-called second strike), enhanced by 20 years for the intentional discharge of a firearm. A five-year enhancement for the Penal Code section 667, subdivision (a) prior serious felony conviction was also imposed, for a total sentence of 35 years. For the robbery of Brewer, a consecutive sentence of 1 year (one-third the middle term) was imposed, doubled (second strike), enhanced by 6 years, 8 months for the firearm enhancement (one-third the enhancement term). A five-year enhancement for the Penal Code section 667, subdivision (a) prior serious felony was also imposed, for a total consecutive term of 13 years, 8 months. For the assault with a firearm of Howe, the upper term of 4 years was imposed, doubled (second strike), again enhanced by five years for the prior serious felony conviction. The 13 year term for the assault with a firearm count was stayed under Penal Code section 654. Defendants filed timely notices of appeal.
ISSUES ON APPEAL
On appeal, defendants contend: (1) the evidence is insufficient to support their convictions of robbing Brewer; (2) the trial court erred in imposing the five-year prior serious felony enhancement (Pen. Code, § 667, subd. (a)) once on each count, rather than once for each defendant; and (3) the trial court erred in imposing a full-term sentence (which was stayed), rather than one-third the middle term, for the assault with a firearm. We agree with the second contention only.
DISCUSSION
1. Evidence of Robbery of Brewer is Sufficient
Defendants contend their convictions for the robbery of Brewer cannot stand, as the evidence is insufficient. Specifically, they contend that there is insufficient evidence that Brewer was in possession of any of the money they stole from Howe’s wallet, and insufficient evidence that the money was taken from Brewer as the result of force or fear. In short, they argue that they were convicted of robbing Brewer simply because of the fact that she happened to own some of the money which they took, by force, from Howe. We disagree. As we shall explain, Brewer was not a robbery victim based on her mere ownership of the money, but due to the fact that her money was taken from her immediate presence by force or fear.
“In assessing a claim of insufficiency of evidence, the reviewing court’s task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, 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. Johnson (1980) 26 Cal.3d 557, 578.) The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, 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. (Jackson v. Virginia (1979) 443 U.S. 307, 317-320.) The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. (People v. Stanley (1995) 10 Cal.4th 764, 792.) ‘ “Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court[, ] which must be convinced of the defendant’s guilt beyond a reasonable doubt. ‘ “If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.” ’ [Citations.]” ’ [Citation.]” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
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.” (Pen. Code, § 211.) At issue here are two elements of robbery: (1) possession; and (2) force or fear.
Robbery is an offense against the person, and applies only to those victims who are in actual or constructive possession of the property. (People v. Weddles, supra, 184 Cal.App.4th at p. 1369; People v. Ugalino (2009) 174 Cal.App.4th 1060, 1064.) “A person who owns property or who exercises direct physical control over it has possession of it, but neither ownership nor physical possession is required to establish the element of possession for the purposes of the robbery statute.” (People v. Scott, supra, 45 Cal.4th at p. 749.) “It is enough if the person has control over it or the right to control it, either personally or through another person.” (CALCRIM No. 1600.) “Two or more people may possess something at the same time.” (Ibid.)
There is a lengthy body of law regarding constructive possession, a doctrine by which an individual who does not own the property can be deemed in possession of it for the purposes of robbery. Under this doctrine, the alleged victim of a robbery must have a “special relationship” with the owner of the property such that the victim had authority or responsibility to protect the property on behalf of the owner. (People v. Scott (2009) 45 Cal.4th 743, 750.) For example, all employees may have constructive possession of their employer’s property while on duty. (Id. at p. 746.) Similarly, a victim may have constructive possession of an immediate family member’s property. (People v. Weddles (2010) 184 Cal.App.4th 1365, 1370.) Although defendant Trujillo exhaustively briefs the doctrine of constructive possession, it is not directly relevant to this case. Constructive possession would apply if, for example, none of the money in Howe’s wallet belonged to Howe, and the issue on appeal was whether defendants could be convicted of robbing Howe when all of the money that they took from him had, in fact, belonged to Brewer. In this case, it is clear that defendants took from Howe some money that Howe both owned and possessed; constructive possession is not at issue.
In this case, there was substantial evidence that both Howe and Brewer jointly possessed the money in Howe’s wallet. Howe and Brewer had each contributed $1,000 to the total amount in Howe’s wallet, and the funds were used to pay the joint expenses of the road trip. While Brewer was not in physical possession of the money, she still owned the money, and had the right to control it. Brewer therefore possessed some of the money taken in the robbery.
Hills’sete testified that, in general, when they would stop for gas, Brewer would pay for it. She stated, “It came out of [Howe]’s wallet, but I believe it was [Brewer]’s money and his money, too.”
When the owner of property taken in a robbery was not present at the time of the robbery, the issue of the owner’s possession generally does not arise; the owner cannot be a robbery victim because the property was not taken from the owner’s person or immediate presence. In this case, defendants do not challenge that the money was taken from Brewer’s immediate presence. They cannot. Brewer stood near the open passenger door of the car when Howe and defendant Trujillo battled for the wallet on the driver’s side. Much greater distances have been considered sufficient to establish immediate presence as long as the taking was accomplished by force or fear. (E.g., People v. Harris (1994) 9 Cal.4th 407, 422 [victim held in car 80 feet from building where loot was stolen]; People v. Douglas (1995) 36 Cal.App.4th 1681, 1691 [victim in bar remained 30 feet away when defendant entered with a gun].)
Defendants next contend there is no evidence that the money was taken from Brewer by force or fear. “ ‘[W]hen two or more persons are in joint possession of a single item of personal property, the person attempting to unlawfully take such property must deal with all such individuals. All must be placed in fear or forced to unwillingly give up possession. To the extent that any threat may provoke resistance, and thus increase the possibility of actual physical injury, a threat accompanied by a taking of property from two victims’ possession is even more likely to provoke resistance. [¶] We view the central element of the crime of robbery as the force or fear applied to the individual victim in order to deprive him of his property. Accordingly, if force or fear is applied to two victims in joint possession of property, two convictions of robbery are proper.’ [Citation.] Because robbery is an offense of violence against the person, the number of counts is limited by the number of persons against whom force or fear is used to remove the property.” (People v. Scott, supra, 45 Cal.4th at pp. 756 757.) The issue is simply whether a reasonable juror could have believed that defendants’ acts frightened Brewer into not trying to prevent the theft of her money. (People v. Prieto (1993) 15 Cal.App.4th 210, 215.) “ ‘Although the victim need not explicitly testify that he or she was afraid in order to show the use of fear to facilitate the taking [citations], there must be evidence from which it can be inferred that the victim was in fact afraid, and that such fear allowed the crime to be accomplished.’ ” (People v. Davison (1995) 32 Cal.App.4th 206, 212.)
The evidence is sufficient. Here, once defendant Morachis joined defendant Trujillo in shooting at Howe, Brewer fled from the car and hid behind the mini-mart. While there was no direct testimony that Brewer was afraid, a reasonable jury could certainly infer that Brewer hid with Hills’sete behind a bush when bullets were flying because she was afraid she or Hills’sete would be injured. Brewer’s fear then facilitated the taking of the property; with Howe on the far side of the SUV and Brewer and Hills’sete hiding behind the mini-mart, Brewer’s car was left unattended and Trujillo was able to obtain the wallet therein unhindered by any resistance.
“Fear” for the purposes of robbery includes fear of immediate and unlawful injury to the person or anyone in the company of the person robbed. (Pen. Code, § 212, subd. 2.)
In his reply brief on appeal, defendant Trujillo states that he is unaware of any cases outside the employment context holding that more than one person can be the victim of a single robbery. We note that People v. Prieto, supra, 15 Cal.App.4th 210 is such a case, and it is largely indistinguishable from the instant matter. In People v. Prieto, one woman, D, was pushed in a wheelchair by her employer, P. D held her own purse in her lap, and held P’s purse as well, so that P would have her hands free to push the wheelchair. When P was distracted by one of her children, and standing some four or five feet away, the defendant approached D and forcibly took both purses from her. (Id. at p. 212.) The defendant was convicted of two counts of robbery, and the appellate court affirmed the convictions against the defendant’s assertion that he had robbed only D. (Id. at pp. 214-216.) People v. Prieto dictates the result in this matter. As defendants took, by force or fear, property owned by two victims from the immediate presence of both victims, they are guilty of two counts of robbery.
2. Only One Penal Code Section 667, Subdivision (a) Enhancement May Be Imposed
It was alleged and proved that each defendant had suffered one prior serious felony conviction within the meaning of Penal Code section 667, subdivision (a). That subdivision provides that each defendant who is convicted of a serious felony who has been previously convicted of a serious felony “shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction....” (Pen. Code, § 667, subd. (a)(1).) The trial court imposed the five-year sentence enhancement once for each count. Defendants contend, the prosecution concedes, and we agree that the term is to be imposed once for each offender, not once for each count. (People v. Williams (2004) 34 Cal.4th 397, 400.) We therefore will modify the judgment to strike the additional enhancements imposed, so that each defendant is subject only to a single enhancement under Penal Code section 667, subdivision (a).
The enhancement imposed in connection with the assault with a firearm count was stayed under Penal Code section 654, along with the term imposed for that offense.
The prosecution suggests the additional enhancements should not be stricken, but only imposed and stayed. We disagree. The Penal Code section 667, subdivision (a)(1) enhancement relates to the offender, not the offense. As such, it is to be “ ‘added only once as a step in arriving at the aggregate sentence.’ ” (People v. Williams, supra, 34 Cal.4th at p. 402.)
3. There is No Error in Defendants’ Stayed Sentence for Assault With a Firearm
Defendants were sentenced to full-term sentences for assaulting Howe with a firearm. The sentences were then stayed pursuant to Penal Code section 654. Defendants assert that the stayed sentences should have been calculated as one-third the middle term, rather than the full term.
Pursuant to Penal Code section 1170.1, subdivision (a), when a consecutive determinate term of imprisonment is imposed for an additional offense, that term is to be one-third the middle term plus one-third the enhancement terms. There is no such restriction for concurrent sentences. In this case, the trial court did not expressly indicate whether the sentence for the assault with a firearm count was to run concurrently or consecutively to the principal term imposed (for robbery of Howe). However, there are three reasons to believe the sentence was imposed concurrently. First, we presume concurrent sentences were intended when the trial court fails to state whether sentences are concurrent or consecutive. (Pen. Code, § 669.) Second, the imposition of the full term would only be appropriate if the sentence were to run concurrently. Third, the trial court indicated that the sentences on the two robberies were to run consecutively because those crimes involved different victims; the assault with a firearm, however, was against the same victim as the robbery which was selected for the principal term of imprisonment. Thus, the trial court’s stated justification for consecutive sentences does not apply to this count. In short, the stayed sentence for assault with a firearm was a concurrent term, and a full-term sentence was therefore appropriate.
DISPOSITION
The judgments are modified to indicate, with respect to each defendant, only a single five-year enhancement under Penal Code section 667, subdivision (a), and not three such enhancements (one of which is stayed). The abstracts of judgment, which indicate only two such enhancements (and make no mention of the third, stayed enhancement) are to be corrected by the clerk of the superior court to delete one of the two Penal Code section 667, subdivision (a)(1) enhancements, resulting in an overall prison term of 43 years, 8 months, rather than 48 years, 8 months. The clerk of the superior court is directed to forward the corrected abstracts of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgments are affirmed.
We Concur: KLEIN, P. J., KITCHING, J.