Filed 5/10/17 P. v. Brandon CA4/3





NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,

Plaintiff and Respondent,

v.

ANDREA SHANELLE BRANDON,

Defendant and Appellant.


G053045

(Super. Ct. No. 13CF0897)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Michael J. Cassidy, Judge. Affirmed in part and reversed in part.
John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Scott C. Taylor and Samantha L. Begovich, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
INTRODUCTION
Defendant Andrea Shanelle Brandon appeals from the judgment entered after a jury found her guilty of one count of carjacking, two counts of second degree robbery, one count of first degree robbery, and one count of receiving stolen property. Brandon argues insufficient evidence supported her convictions for carjacking and for committing second degree robbery. She also argues she was wrongfully convicted of receiving stolen property because that offense was based on the taking of the same property as was involved in her commission of second degree robbery, for which she was also convicted.
Based on substantial evidence, we affirm the judgment of conviction as to the carjacking offense, both second degree robbery offenses, and the first degree robbery offense. As conceded by the Attorney General, we reverse Brandon’s conviction for receiving stolen property pursuant to Penal Code section 496, subdivision (a) and People v. Ceja (2010) 49 Cal.4th 1, 9-10, because it was based on Brandon taking the same property, for which Brandon was convicted of taking in the commission of second degree robbery. (All further statutory references are to the Penal Code.)

FACTS
At 10:00 a.m. on November 19, 2012, Arnold Feria manually opened the door to his garage in the alley near his Anaheim apartment building to retrieve his car to run an errand. After opening the garage door, he drove his black four door Honda Accord out of the garage, and left the car in park while he got out of the car to close the garage door.
As he was closing the garage door, Feria noticed a “couple,” later identified as Ricardo Perez and Brandon, walking up the alley toward him. Feria described them as a couple because “[t]hey were walking close together, very close, like a couple would.” Brandon stopped walking when she reached the front passenger side of Feria’s car. Perez continued walking to the rear of the car on the driver’s side where, about three or four feet away from Feria, Perez pulled out a semiautomatic black metallic gun and aimed it at Feria, cursed at Feria in Spanish, and said, “give [me] the car keys.” While “[s]tanding there looking,” Brandon did not say or do anything that would indicate she was surprised by what was happening.
Feria fumbled in his pockets, forgetting that the car key was in the ignition of his running car. Feria handed over his house keys. As Perez started to get into the driver’s seat of Feria’s car, and while continuing to point the gun at Feria, he demanded Feria’s wallet; Feria turned over his wallet. Meanwhile, Brandon tried to open the door to the front passenger side of Feria’s car. She told Perez, “let me in, let me in.” Perez leaned over to manually unlock the front passenger side door for Brandon. She opened the door, and, as she entered the car, smiled at Feria. Feria found it odd that Brandon would be so “calm and collected” to smile at him under the circumstances.
Feria watched Perez and Brandon drive away in his car.
That same day, around 3:00 p.m., Sarah Arias and her mother-in-law were in the parking lot of a shopping mall, putting bags in the trunk of her mother-in-law’s car, when a black Honda pulled up and parked next to them. Arias thought it odd that the car had pulled up next to them because they had parked far away from the mall and there were many empty parking spots in the area. She saw the side profile of a woman in the driver’s seat; the woman did not get out of the car. Arias identified Brandon as that woman in a photographic lineup.
As she was putting bags into the trunk, Arias felt someone tugging her black leather Coach purse and heard a male voice say, “give me your purse.” She looked up and saw a man, whom she later identified as Perez, holding a gun with both hands on the trigger. Arias released her grip on the purse so he could take it. Perez took Arias’s purse and got into the car on the passenger side; the car drove off.
The following morning, Juana Perez was walking in Santa Ana when a person came quickly toward her from a parking lot where she saw a black car was parked. The person said to her, “[g]ive me your handbag.” The person pointed a gun at Juana Perez’s forehead. The person then grabbed Juana Perez’s purse containing her identification, makeup, and money, and got into the car.

BACKGROUND
Brandon was charged in an information with one count of carjacking Feria, in violation of section 215, subdivision (a) (count 1); one count of committing second degree robbery against Feria, in violation of sections 211 and 212.5, subdivision (c) (count 2); one count of committing second degree robbery against Arias, in violation of sections 211 and 212.5, subdivision (c) (count 3); one count of committing first degree robbery against Juana Perez, in violation of sections 211 and 212.5, subdivision (a) (count 4); one count of receiving stolen property (Feria’s and Arias’s belongings) in violation of section 496, subdivision (a) (count 5); and one count of theft of lost property in violation of section 485 (count 6). As to counts 1, 2, and 3, the information alleged Brandon was armed with a firearm pursuant to section 12022, subdivision (a)(1). As to count 4, the information alleged, pursuant to section 12022.53, subdivision (b), Brandon personally used a firearm within the meaning of sections 1192.7 and 667.5, in the commission and attempted commission of that offense.
During trial, the court granted the prosecution’s motion to dismiss count 6. The jury found Brandon guilty on counts 1, 2, 3, 4, and 5, and found the enhancement allegations true.
The trial court sentenced Brandon to a total prison term of 16 years four months. Brandon appealed.

DISCUSSION
I.
SUBSTANTIAL EVIDENCE SUPPORTED BRANDON’S CONVICTIONS ON COUNT 1 (CARJACKING) AND COUNT 2 (SECOND DEGREE ROBBERY OF FERIA)
ON AN AIDING AND ABETTING THEORY OF LIABILITY.
“‘In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses 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.’ [Citation.]” (People v. Steele (2002) 27 Cal.4th 1230, 1249.) We presume in support of the judgment the existence of every fact that could reasonably be deduced from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) We may reverse for lack of substantial evidence only if “‘upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’” (People v. Bolin (1998) 18 Cal.4th 297, 331.)
“‘[A] person aids and abets the commission of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime.’ [Citation.]” (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 295-296.) Mere presence at the scene of a crime, or failure to prevent the crime from being committed, is insufficient to establish liability as an aider and abettor. (People v. Richardson (2008) 43 Cal.4th 959, 1024.) However, the factors to be considered in determining whether a defendant is liable as an aider and abettor “include presence at the scene of the crime, companionship, and conduct before and after the crime, including flight.” (People v. Haynes (1998) 61 Cal.App.4th 1282, 1294.)
The direct and circumstantial evidence of Brandon’s involvement in the carjacking and robbery of Feria was strong. Brandon and Perez appeared to Feria to be a “couple,” given how closely they walked together as they approached Feria. That Brandon immediately walked to the front passenger side door of Feria’s car, without words exchanged between Brandon and Perez, supported the finding she was aware of and part of the plan to rob Feria at gunpoint and drive away with Feria’s car and other belongings. When she was unable to open the locked car door, she directed Perez to unlock the door so she could get in and drive away with him. Her calm and collected demeanor and smile at Feria before she and Perez drove away further supported the finding she intended to commit, encourage, or facilitate the crimes and aided, encouraged, or instigated the commission of those crimes. Substantial evidence therefore supported Brandon’s convictions for aiding and abetting the carjacking and robbery of Feria.
II.
WE REVERSE BRANDON’S CONVICTION ON COUNT 5 FOR RECEIVING STOLEN PROPERTY BECAUSE SHE WAS CONVICTED ON COUNT 3 OF ROBBING ARIAS OF THE SAME PROPERTY.
Brandon argues her conviction for receiving stolen property in count 5 must be reversed “because it concerned the same property as the Arias’ robbery charged in count three.” (Boldface & some capitalization omitted.) She argues, “[a]lthough the court reduced count five to a misdemeanor pursuant to proposition 47 and stayed the sentence on that count pursuant to section 654 . . . ; it should have stricken the conviction because a defendant cannot be convicted both of robbery and receiving that same stolen property.” In the respondent’s brief, the Attorney General agrees that Brandon “cannot be guilty of both stealing and receiving the same property, and the appropriate remedy is to reverse her conviction for receiving stolen property and let stand her conviction for robbery.”
Section 496, subdivision (a) provides that a criminal defendant cannot be convicted of both stealing and receiving the same property. The California Supreme Court has extended the rule to robbery (which requires a theft) and receiving the same property taken. (People v. Smith (2007) 40 Cal.4th 483, 522.) The proper remedy is to reverse the conviction for receiving stolen property while allowing the robbery conviction to stand. (People v. Ceja, supra, 49 Cal.4th at pp. 9 10.)

DISPOSITION
The judgment is reversed as to Brandon’s conviction on count 5 (receiving stolen property). The judgment is otherwise affirmed in full.



FYBEL, J.

WE CONCUR:



ARONSON, ACTING P. J.



IKOLA, J.