Opinion
E068173
12-17-2018
THE PEOPLE, Plaintiff and Respondent, v. ANTONIO VILLANUEVA, Defendant and Appellant.
Marianne Harguindeguy, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos, A. Natasha Cortina, and Adrian R. Contreras, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.Nos. RIF1600283 & RIF1601564) OPINION APPEAL from the Superior Court of Riverside County. Elaine M. Kiefer, Judge. Affirmed with directions. Marianne Harguindeguy, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos, A. Natasha Cortina, and Adrian R. Contreras, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
A jury convicted defendant and appellant, Antonio Villaneuva, of carrying a concealed dirk and dagger on January 19, 2016 (Pen. Code, § 21310; count 1) and of robbing an "asset protection" store employee, Jorge N. (Jorge), on December 3, 2014 (§ 211; count 2). The jury found not true an allegation that defendant personally used a firearm in count 2. (§ 12022.53, subd. (b).) The court found defendant was out on bail when he committed count 1 (§ 12022.1) and had two prison priors (§ 667.5, subd. (b)) and one prior strike/prior serious felony conviction (§ 667, subds. (a), (c), (e)(1)). Defendant was sentenced to 16 years four months in prison, including five years based on his prior serious felony conviction.
Undesignated statutory references are to the Penal Code unless otherwise indicated.
Defendant's 16-year four-month sentence is comprised of six years on count 2 (the middle term of three years, doubled based on the prior strike), plus 16 months on count 1 (one-third the middle term of two years, doubled), plus two years for the out-on-bail enhancement, two years for the two prison priors, and five years for the prior serious felony conviction.
In this appeal, defendant claims (1) insufficient evidence supports the theft element of his robbery conviction, (2) the trial court abused its discretion in denying his motion to sever the charges and the joinder of the charges denied him a fair trial, and (3) the matter must be remanded for resentencing, so the court may exercise its discretion to strike the five-year term imposed based on defendant's prior serious felony conviction, pursuant to Senate Bill No. 1393 (2017-2018 Reg. Sess.) (S.B. 1393).
We reject defendant's first and second claims, but we agree the matter must be remanded for resentencing on his prior serious felony conviction. We affirm the judgment in all other respects.
II. FACTUAL BACKGROUND
A. Prosecution Evidence
In 2014 through 2016, Jorge worked as an "asset protection" employee for a retail store. His duties included surveilling the store to prevent shoplifting and tracking persons as they walked through the store using the store's "pan-tilt-zoom" camera system. On June 29, 2014, Jorge saw defendant in the store, took a still photograph of him, and got within several feet of him, "due to an investigation of shoplifting."
Around six months later, on December 3, 2014, Jorge again saw defendant in the store with a female companion. Defendant had "a shopping cart full of toys" and was "rapidly selecting the toys as if he didn't care about the prices . . . ." Jorge began tracking defendant on the camera system as defendant walked through different areas of the store. Defendant and his female companion went into the automotive section of the store together, and at that time the female companion was pushing the cart. Defendant was "empty-handed" when he went into the automotive section, and he walked out of the automotive section with "automotive merchandise in [his] hand." He then walked past the cash registers and through "the grocery exit doors" "with the unpaid merchandise."
Jorge contacted defendant as defendant was leaving the store through its "grocery exit doors," identified himself to defendant, and told defendant to "'come back inside the store with the unpaid merchandise.'" Defendant had the automotive product in his right hand, switched it to his left hand, then, using his right hand, pulled a handgun out of his back pocket and pointed the gun at Jorge's face. Jorge feared for his safety and stopped pursuing defendant. Defendant then backed out of the store and went to his vehicle with the automotive product still in his left hand.
On cross-examination, Jorge testified that defendant's female companion left the store with defendant and left the cart she had been pushing by the grocery exit doors. Jorge rang up the items in the cart, and the receipt for the items showed the cart contained a single item identified as "Armor All," a car cleaning product. When asked whether this changed his testimony that defendant left the store with an automotive product in his hand, Jorge said, "No, it doesn't."
Around 15 months later, on January 5, 2016, Jorge saw defendant enter the store and recognized defendant as the person who had robbed him in December 2014. Jorge called the police, but defendant left the store before the police arrived. On January 19, 2016, Jorge saw defendant in the store again, called the police, and an officer arrived and contacted defendant outside the store. The officer asked defendant whether he had any weapons on him, and defendant said he had two knives in his back pocket. The officer found a knife with a six-inch blade concealed in defendant's back pocket. B. Defense Case
Defendant did not testify or present any affirmative evidence.
III. DISCUSSION
A. Substantial Evidence Supports the Theft Element of Defendant's Robbery Conviction
Defendant claims insufficient evidence supports the theft element of his robbery conviction. Essentially, he challenges the credibility of Jorge's testimony that he had an automotive product in his hand when he left the store. We find no merit to this claim.
Our standard of review is settled. In considering a claim that insufficient evidence supports a criminal conviction, we review the entire record in the light most favorable to the prosecution in order to determine whether it contains substantial evidence—evidence that is reasonable, credible, and of "solid value"—from which a rational trier of fact could have found the defendant guilty of the crime beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 576-578.) In reviewing the entire record, we presume in support of the judgment the existence of every fact the trier of fact could have reasonably deduced from the evidence. (People v. Jackson (2014) 58 Cal.4th 724, 749.)
That is, we resolve neither credibility issues nor evidentiary conflicts; instead, we look for substantial evidence. (People v. Harris (2013) 57 Cal.4th 804, 849.) "Consequently, '[c]onflicts and even testimony which 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.]' [Citation.] 'Testimony may be rejected only when it is inherently improbable or incredible, i.e., "'unbelievable per se,'" physically impossible or "'wholly unacceptable to reasonable minds.'"' [Citation.]" (People v. Ennis (2010) 190 Cal.App.4th 721, 729.)
"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; People v. Jackson (2016) 1 Cal.5th 269, 343.) The taking element of robbery has two aspects: achieving possession of the property, known as caption, and carrying the property away, known as asportation. (People v. Gomez (2008) 43 Cal.4th 249, 254-255.) The "slightest movement" of the property may constitute asportation (id. at p. 255), and the asportation and robbery continue until the perpetrator has reached a place of temporary safety (People v. Cooper (1991) 53 Cal.3d 1158, 1165).
Jorge's testimony sufficiently supports the challenged theft element of defendant's robbery conviction. Jorge testified that, after he contacted defendant as defendant was leaving the store through the grocery exit doors, defendant had an automotive product in his right hand, switched it to his left hand, then pulled a handgun out of his back pocket with his right hand and pointed the gun at Jorge's face. Jorge stopped pursuing defendant, and defendant backed out of the store—with the automotive product still in his left hand. Jorge's testimony was reasonable, credible, and of solid value, and based on Jorge's testimony, a rational jury could have found the theft element of the robbery charge true beyond a reasonable doubt.
Defendant claims Jorge's testimony that he had an automotive product in his hand when he left the store was not of "solid value" because "it was contradicted by much stronger evidence that the automotive product did not leave the store." He points out that Jorge rang up the items in the cart that defendant's female companion had been pushing through the store and left near the exit doors, and the items in the cart included an Armor All automotive product.
Defendant suggests that the automotive product left in the cart had to be the same automotive product he had in his hand when he left the automotive section of the store and when he pointed the gun at Jorge near the grocery exit doors. But the jury reasonably could have inferred that defendant left the store with another automotive product. Jorge testified defendant and his female companion went into the automotive section together, and when they did so the female companion was pushing the cart. No evidence showed the female companion did not put the Armor All automotive product in the cart or that defendant did not pick up a different automotive product in the automotive section—other than the Armor All automotive product later found in the cart. In addition, Jorge was certain he saw defendant leave the store with an automotive product in his hand. When defense counsel asked whether the evidence that an Armor All product was in the cart changed his testimony that defendant left the store with an automotive product in his hand, Jorge said, "No, it doesn't."
Jorge did not recall what type of automotive product defendant had in his hand when he left the automotive section of the store, other than that it was in a box. Jorge also acknowledged that Armor All makes "car care kits" and "gift packs" that come in boxes, and the store carried some of those boxed Armor All items, but no evidence showed that the Armor All product in the cart was in a box.
Defendant also claims Jorge's testimony is insufficient to show that defendant left the store with an automotive product because the testimony "contained other contradictions," namely, contradictions concerning defendant's ethnicity and the "nature of the handgun" used in the robbery.
At trial the defense established that, at the May 20, 2016, preliminary hearing, one year before trial in March 2017, Jorge described defendant as a "[B]lack male," but at trial Jorge acknowledged defendant was not "[B]lack" or "African-American." And in a report he wrote around the time of the robbery, Jorge described the robbery suspect as "an unknown/Hispanic/Indian male."
Regarding the handgun, Jorge testified at the preliminary hearing that he was unable to see the entire gun; he did not recall seeing its barrel and could not recall the color of the barrel; and he could not identify the gun as a revolver or semiautomatic because it was in a holster and he was unfamiliar with guns. At trial, Jorge recalled more details about the gun. He testified he saw part of the barrel and part of the handle; he believed the handle was black and the gun was a semiautomatic, not a revolver. But Jorge consistently testified at the preliminary hearing and at trial that the gun was in a holster.
Defendant also challenges Jorge's credibility on several other grounds. He claims "issues with [Jorge's] perception of the incident would be expected due to the high stress nature of having a handgun pointed at him." And he notes that, near the end of his cross-examination testimony at trial, Jorge acknowledged having just discussed his testimony with a person in the courtroom audience during a break. Jorge said he and the person discussed what he had just testified about, but they did not discuss "problems with the case," or "what was said incorrectly or what was said correctly." Finally, defendant points out that Jorge testified he reviewed a video of the robbery shortly after it occurred, but only screen shots from the video were preserved, and none of them showed the firearm or the theft of the automotive product from the store.
None of these matters undermine the legal sufficiency of Jorge's testimony. To the contrary, the significance of these matters was for the jury to weigh in assessing the credibility of Jorge's testimony. But none of them render Jorge's testimony inherently improbable or incredible, or insufficient as a matter of law. As noted, testimony must be rejected as insufficient to support a criminal conviction "'only when it is inherently improbable or incredible, i.e., "'unbelievable per se,'" physically impossible or "'wholly unacceptable to reasonable minds.'"' [Citation.]" (People v. Ennis, supra, 190 Cal.App.4th at p. 729.) B. Defendant's Motion to Sever Counts 1 and 2 Was Properly Denied
Defendant next claims the trial court abused its discretion in denying his pretrial motion to sever counts 1 and 2. He also claims the joinder of the counts violated his due process right to a fair trial. We find no merit to these claims.
1. Relevant Background
Counts 1 and 2 were originally charged in separate cases, but the court granted the People's pretrial motion to consolidate the cases. The People then filed the amended information, charging defendant with both counts—possessing a concealed dirk or dagger on January 19, 2016 (§ 21310; count 1) and robbing Jorge on December 3, 2014 (§ 211; count 2). The amended information also alleged that defendant personally used a firearm in count 2. (§ 12022.53, subd. b).)
Shortly before trial in March 2017, defendant filed a motion to sever counts 1 and 2, arguing the joinder of the charges was prejudicial and would deprive him of a fair trial because counts 1 and 2 occurred on separate occasions, over one year apart, the evidence supporting the charges was not cross-admissible, and the evidence supporting the robbery charge was especially inflammatory because it would show defendant personally used a firearm. The People opposed the motion, arguing Jorge's testimony was cross-admissible on both charges because he would identify defendant as the person who robbed him in December 2014 and who returned to the store on January 19, 2016, when a concealed dirk or dagger was found in his possession.
The court denied the motion on the grounds counts 1 and 2 charged similar classes of crimes, the crimes shared similar characteristics, and the possession of the dirk or dagger in count 1 was not unduly inflammatory or prejudicial because it was alleged in count 2 that defendant personally used a firearm in the robbery. The court also noted that the law favored a consolidated trial.
2. Analysis
Section 954 addresses the joinder of charges. It provides: "An accusatory pleading may charge two or more different offenses connected together in their commission . . . or two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated. . . . [P]rovided, that the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately."
Section 954 reflects a legislative preference for joinder, which is intended to conserve resources and promote efficiency. (People v. Landry (2016) 2 Cal.5th 52, 75; People v. Soper (2009) 45 Cal.4th 759, 772.) When the statutory requirements for joinder are met, the defendant "must make a clear showing of prejudice to establish that the trial court abused its discretion in denying the defendant's severance motion." (People v. Mendoza (2000) 24 Cal.4th 130, 160.)
Here, the statutory requirements for joining the robbery charge (count 2) with the charge of possessing a concealed dirk or dagger (count 1) were met, because the charges were "connected together in their commission." (§ 954.) Offenses are "'connected together in their commission'" when they are linked by a "'"'common element of substantial importance.'"'" (People v. Mendoza, supra, 24 Cal.4th at p 160.)
Counts 1 and 2 share at least two common elements of substantial importance: (1) the crimes occurred in the same location; and (2) in each crime, it was alleged that defendant possessed or personally used a weapon. (See People v. Landry, supra, 2 Cal.5th at p. 76 [crimes are connected together in their commission when they involve the use or possession of a weapon, and not necessarily the same weapon].) In addition, Jorge was a witness to both crimes. He identified defendant as the perpetrator of the December 2014 robbery (count 2) and as the person who returned to the store in January 2016, when the concealed dirk or dagger was found on his person (count 1).
Defendant has not made a clear showing that he was prejudiced by the joinder of counts 1 and 2, and that the trial court therefore abused its discretion in denying his severance motion. (People v. Mendoza, supra, 24 Cal.4th at p. 160.) "'Refusal to sever may be an abuse of discretion where: (1) evidence on the crimes to be jointly tried would not be cross-admissible in separate trials; (2) certain of the charges are unusually likely to inflame the jury against the defendant; (3) a "weak" case has been joined with a "strong" case, or with another "weak" case, so that the "spillover" effect of aggregate evidence on several charges might well alter the outcome of some or all of the charges; and (4) any one of the charges carries the death penalty or joinder of them turns into a capital case.' [Citation.] In determining whether denial of the severance motion was an abuse of discretion, we examine the record before the trial court at the time of its ruling. [Citation.]" (People v. Scott (2015) 61 Cal.4th 363, 395-396.)
None of the four factors that militate against severance were present here. First, the counts involved cross-admissible evidence. As the People point out, a disputed issue in both counts was defendant's intent and lack of mistake in possessing a concealed dirk or dagger (count 1) and in personally using a firearm (count 2).
"To be admissible to prove intent, the charges must be sufficiently similar to support the inference that the defendant probably harbored the same intent in each instance. [Citations.] '[T]he recurrence of a similar result . . . tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act . . . .' [Citations.]" (People v. Scott (2011) 52 Cal.4th 452, 471.)
To prove the allegation that defendant personally used a firearm in the robbery, the People had to prove he intentionally displayed a firearm in a menacing manner. (See CALCRIM No. 3146; People v. Carrasco (2006) 137 Cal.App.4th 1050, 1059 ["Personal use of a firearm may be found where the defendant intentionally displayed a firearm in a menacing manner" and "there is no evidence to suggest any purpose other than intimidating the victim . . . so as to successfully complete the underlying offense . . . ."].) And to prove count 1, the People had to prove defendant knew he was carrying a concealed dirk or dagger on his person. (CALCRIM No. 2501.)
Jorge's testimony that defendant had the firearm in his back pocket and threatened Jorge with the firearm during the robbery was admissible to prove that, when defendant possessed the dirk or dagger in his back pocket over one year later, he knew he was carrying a concealed dirk or dagger, and the concealment was not accidental. (People v. Roldan (2005) 35 Cal.4th 646, 706 ["'"[I]f a person acts similarly in similar situations, he probably harbors the same intent in each instance" . . . .'"].)
In addition, Jorge's testimony identifying defendant as the person who returned to the store a year after the robbery (when defendant was found in possession of the concealed dirk or dagger) was admissible to bolster the credibility of Jorge's testimony identifying defendant as the person who robbed him in December 2014. (Evid. Code, § 780 [in determining witness's credibility, jury may consider any matter tending in reason to prove the truthfulness of the witness's testimony].)
Second, the joinder of the charges was not "'unusually likely to inflame the jury against the defendant.'" (People v. Scott, supra, 61 Cal.4th at p. 396.) As the People point out, neither charge involved physical injury to a victim. Additionally, consolidating the later concealed weapons charge, which was not inflammatory at all, with the earlier robbery charge did not in any way make the robbery charge more inflammatory than it already was.
Third, neither charge involved evidence that was substantially weaker or stronger than the other. Each case was based on eyewitness testimony—Jorge's and the officer who found the dirk or dagger on defendant. Thus, a "'"weak"'" case was not joined with a "'"strong"'" case, such that the "'"spillover"'" effect of aggregate evidence might have altered the outcome unfavorably to defendant. (People v. Scott, supra, 61 Cal.4th at p. 396.) Fourth, joinder did not promise to turn either charge into a capital offense. (Ibid.)
Lastly, the joinder did not deprive defendant of his due process right to a fair trial. "Even if a trial court's severance or joinder ruling is correct at the time it was made, a reviewing court must reverse the judgment if the 'defendant shows that joinder actually resulted in "gross unfairness" amounting to a denial of due process.'" (People v. Mendoza, supra, 24 Cal.4th at p. 162.) Defendant has not made this showing. The joinder did not actually result in any "gross unfairness" to defendant. C. Remand for Resentencing
On September 30, 2018, the Governor signed S.B. 1393 which, effective January 1, 2019, amends Penal Code sections 667, subdivision (a) (§ 667(a)) and 1385, subdivision (b) (§ 1385(b)) to allow a court to exercise its discretion to strike or dismiss a prior serious felony conviction for sentencing purposes. (Stats. 2018, ch. 1013, §§ 1-2; Cal. Const., art. IV, § 8; Gov. Code, § 9600; People v. Camba (1996) 50 Cal.App.4th 857, 865 [statute enacted at regular session of Legislature becomes effective on January 1 of the year following its enactment, except when the statute is passed as an urgency measure and becomes effective sooner].) Under the current versions of Penal Code sections 667(a) and 1385(b), in effect until December 31, 2018, courts are required to impose a five-year consecutive term for "any person convicted of a serious felony who previously has been convicted of a serious felony . . . ." (Pen. Code, § 667(a).) The court has no discretion "to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under Section 667." (Pen. Code, § 1385(b).)
Defendant claims the matter must be remanded for resentencing pursuant to S.B. 1393, so the court may exercise its discretion to strike the five-year term it previously imposed based on his prior serious felony conviction. The People argue defendant's claim is not ripe for adjudication or justiciable, because S.B. 1393 is not effective until January 1, 2019. But the People agree that S.B. 1393 will be retroactive to judgments not final on its effective date, January 1, 2019, and they also agree defendant's conviction "should not become final until after January 1, 2019."
As a panel of this court recently determined in People v. Garcia (2018) 28 Cal.App.5th 961, S.B. 1393 will be retroactive to judgments of conviction which are not yet final on January 1, 2019. (Id. at p. 973 ["[U]nder the Estrada[] rule, as applied in Lara[] and Francis,[] it is appropriate to infer, as a matter of statutory construction, that the Legislature intended [S.B.] 1393 to apply to all cases to which it could constitutionally be applied, that is, to all cases not yet final when [S.B.] 1393 becomes effective on January 1, 2019."]; see id. at pp. 971-973.)
In re Estrada (1965) 63 Cal.2d 740.
People v. Superior Court (Lara) (2018) 4 Cal.5th 299.
People v. Francis (1969) 71 Cal.2d 66. --------
It is highly unlikely that defendant's judgment of conviction will be final on January 1, 2019. "'[F]or the purpose of determining retroactive application of an amendment to a criminal statute, a judgment is not final until the time for petitioning for a writ of certiorari in the United States Supreme Court has passed.'" (People v. Vieira (2005) 35 Cal.4th 264, 306.) Even if our opinion in this case is filed and final in this court before January 1, 2019 (see Cal. Rules of Court, rule 8.264(b)), it is highly unlikely that defendant will exhaust his other state and federal appeal rights before January 1, 2019. Thus, we remand the matter for resentencing pursuant to S.B. 1393, after January 1, 2019. (People v. Garcia, supra, 28 Cal.App.5th at p. 973.)
IV. DISPOSITION
The matter is remanded to the trial court with directions to resentence defendant pursuant to S.B. 1393 after January 1, 2019. That is, the court is directed to exercise its discretion whether to strike the five-year consecutive term the court previously imposed based on defendant's prior strike conviction, under sections 667(a) and 1385(b) as those statues were amended, effective January 1, 2019, pursuant to S.B. 1393. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: McKINSTER
Acting P. J. SLOUGH
J.