P. v. Castro
Filed 9/11/13 P. v. Castro CA2/5
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
DIEGO VEGA CASTRO,
Defendant and Appellant.
B246557
(Los Angeles
County
Super. Ct.
No. VA124235)
APPEAL from
a judgment of the Superior Court
of
County, John A. Torribio, Judge. Affirmed as modified with directions.
Rachel
Varnell, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, and Susan Sullivan Pithey, Deputy
Attorney General, for Plaintiff and Respondent.
>
I. INTRODUCTION
A jury
convicted defendant, Diego Vega Castro, of:
attempted robbery (Pen. Code,
§§ 664, 211, count 1)
name="_ftnref1" title="">[1];
second degree commercial burglary (§ 459, count 2); controlled substance
possession (Health & Saf. Code, § 11377, subd. (a), count 3); and
4). The jury found defendant used a
knife in the commission of the attempted robbery. (§ 12022, subd. (b)(1).) The trial court struck the knife use
enhancement and sentenced defendant to three years in state prison. We modify the judgment and affirm as
modified.
II. EVIDENCE
A. The Prosecution Case
1. January 19, 2012
On January
19, 2012, defendant attempted to steal two Cannon cameras, each worth $400,
from a Walmart store in the City of Lakewood.
A struggle ensued after he was confronted by store personnel. During the struggle, defendant dropped the
bags containing the cameras. The
struggle ended when defendant brandished a knife. Defendant ran to a white truck and fled. Store personnel obtained the truck’s license
plate number.
Loss
prevention officer Jose Pena described the incident with defendant. Defendant and a companion were spotted
stealing items inside the Lakewood Walmart store. Mr. Pena was waiting outside the store
when defendant and the unidentified accomplice exited. Mr. Pena identified himself verbally and
displayed his badge. Defendant instantly
started to struggle with Mr. Pena.
Mr. Pena grabbed defendant’s upper shirt area. Defendant took hold of Mr. Pena. Mr. Pena testified: “As soon as I say ‘asset protection Walmart
security,’ he instantly tries to struggle with me. We both grab each other, start
struggling.†Mr. Pena pushed
defendant up against the exit door.
Mr. Pena testified, “[I used] enough force to try to control him,
to hold him.†Mr. Pena’s partner
approached and joined the struggle.
Mr. Pena got behind defendant.
Mr. Pena’s partner yelled, “‘Knife, knife, knife.’†Mr. Pena saw a four to five-inch blade
in defendant’s right hand. Mr. Pena
pushed defendant away and stepped back.
Defendant swung the knife at Mr. Pena and then made two forward
stabbing motions. While still pointing
the knife at Mr. Pena, defendant ran away.
During the struggle, the bags containing the cameras had ripped
open. The cameras fell to the
ground. Defendant dropped the cameras
after the struggle with Mr. Pena commenced. Mr. Pena testified it was “[p]robably
towards the end of the struggle†that the parcels tore open. Defendant did not have the bags in his hands
when he brandished the knife.
On January
19, 2012, or in the early morning hours of January 20, 2012, Officer Daniel
Melendez stopped a truck driven by defendant.
Officer Melendez searched defendant and found a folding knife in
defendant’s pants pocket. Defendant also
possessed a solid substance containing methamphetamine.
2. March 17, 2012
On March
17, 2012, defendant attempted to steal three shirts and one pair of women’s
shoes from a Nordstrom Rack store in the Lakewood Mall. He was confronted by store personnel after he
exited without paying for the items.
During an ensuing struggle, defendant dropped the bag containing the
shirts. Defendant pulled a knife from
his pocket. He fled the scene with the
pair of women’s shoes tucked in his waistband.
Loss prevention
officer Vikram Gadiok described the altercation with defendant. Mr. Gadiok approached defendant 5 to 10
feet from the store’s exit. The loss
prevention manager, Michael Salazar, was with Mr. Gadiok. Mr. Gadiok identified himself verbally
and displayed his badge. Mr. Gadiok
said they needed to talk about the unpaid merchandise. Mr. Gadiok asked defendant to come back
inside the store. Defendant looked
surprised and resisted. It was clear
defendant did not want to return to the store.
Mr. Salazar grabbed defendant’s arms from behind. Mr. Gadiok intended to handcuff
defendant once Mr. Salazar got control of the situation. Defendant pulled a red screwdriver from his
right pocket. The screwdriver fell to
the ground. Defendant then pulled a folding
knife from the same pocket.
Mr. Gadiok told Mr. Salazar that defendant had a knife. Mr. Salazar released defendant. Defendant ran to a green vehicle and left the
area. Ten seconds into the encounter,
defendant had dropped the shopping bag.
He dropped it before he ran away.
Mr. Salazar
testified that after they identified themselves as loss prevention officers,
defendant became resistant.
Mr. Salazar could see defendant was about to walk away. Mr. Salazar immediately grabbed
defendant. Mr. Salazar
testified: “He kind of moves to the
side. At that point I grab him and put
[his] arms behind his back.â€
Mr. Gadiok and Mr. Salazar tried to handcuff defendant. Mr. Salazar had control of defendant’s
arms. Defendant’s arms were held behind
his back. Mr. Gadiok tried to
handcuff defendant. As this was
occurring, defendant was trying to get out of Mr. Salazar’s grasp. Mr. Salazar pushed defendant against a
pillar. At the same time,
Mr. Salazar leaned his body against defendant who had dropped the shopping
bag. Mr. Salazar heard
Mr. Gadiok say defendant had a knife.
Mr. Salazar released defendant who ran off and got into a vehicle.
B. The Defense Case
Defendant
testified in his own defense. He
admitted he was a methamphetamine user. He admitted he was guilty of the drug offense
charged in count 3. He admitted
attempting to steal from the Nordstrom Rack and Walmart stores. He denied, however, that he had taken a pair
of women’s shoes from the Nordstrom Rack store.
Defendant denied that he was in possession of a knife at any time. Defendant’s denial of possessing a knife
extended to the time of his January 19, 2012 arrest. Defendant testified that on both occasions it
was the store personnel who were the aggressors. Defendant said that in both instances he
dropped the stolen merchandise as soon as he was physically confronted by the
store employees. With respect to the
Walmart robbery, defendant testified, “As soon as they tried to put my hands
behind my back, I dropped [the bags].â€
During the struggle, defendant was not holding the bags. Defendant stated, “As soon as [Mr. Pena]
put [his] hands on me, the bag swung out of my hand . . . .â€
C. Jury Instructions
The jury
was instructed that robbery has five elements:
“To prove that the defendant is guilty of [robbery], the People must
prove that: [¶] 1. The
defendant took property that was not (his/her) own; [¶]
2. The property was taken from
another person’s possession and immediate presence; [¶]
3. The property was taken against
that person’s will; [¶] 4.
the property or to prevent the person
from resisting; [¶] AND
[¶] 5. When
the defendant used force or fear to take the property, (he/she) intended (to deprive the owner of it permanently/ or to
remove it from the owner’s possession for so extended a period of time that the
owner would be deprived of a major portion of the value or enjoyment of the
property). [¶] The
defendant’s intent to take the property must have been formed before or during
the time (he/she) used force or fear.
If the defendant did not form this required intent until after using the
force or fear, then (he/she) did not commit robbery.†(Italics added.) The jury was further instructed that attempted
robbery requires evidence that: “1. The defendant took a direct but ineffective
step toward committing robbery [¶] AND
[¶] 2. The defendant intended to commit
robbery.†(Italics added.)
The jury
was also instructed on theft by larceny.
“The following is the definition of petit theft. [¶] To
prove that the defendant is guilty of this crime, the People must prove
that: [¶] 1. The
defendant took possession of property owned by someone else; [¶] 2. The defendant took the property without the
owner’s or owner’s agent’s consent;
[¶] 3. When the defendant took the property (he/she)
intended (to deprive the owner of it permanently/ or to remove it from the
owner’s or owner’s agent’s possession for so extended a period of time that the
owner would be deprived of a major portion of the value or enjoyment of the
property); [¶] AND
[¶] The defendant moved the
property, even a small distance, and kept it for any period of time, however
brief.â€
D. Defense Counsel’s Argument
While
arguing to the jury, defense counsel, Greg Gonzales, asserted: defendant did not use force to prevent store
personnel from retaking the property; instead, defendant dropped the stolen
property as soon as loss prevention officers confronted him; and defendant used
force only to escape. Mr. Gonzales
argued: “In this case, even without
Mr. Castro’s testimony, this is not a robbery because no force o[r] fear
was used after he abandoned the property.
The property was no longer in Mr. Castro’s possession. [¶] As
you heard with Pena, Pena contacted him outside the store where he identified
himself, as [loss prevention] officer or not.
He struck him. He flew back
against the glass and force was used.
After that, whether or not you believe he had a knife or not, that’s
solely up to you. You have two different
people who don’t know each other say that he had a knife. [¶] If
he had a knife and that knife involved Mr. Pena that was used to escape to
get out of there. Again, he didn’t have
property. Let’s say when he made the
swipes. Pena said he made swipes and
jabs. Let’s say if he made the swipes
and jabs bare handed, there is no property.
The property is over there. So he
is trying to escape. [¶] Let’s say he does the swipes and jabs but the
property is still in his hand. He’s then
using physical force to retain the property or keep the property. If he was doing swipes and jabs to get the
property, but he’s not doing that. [¶]
. . . [¶] . . . The People agree the
bag was dropped [at Nordstrom Rack] too when confronted with Gadiok and
Salazar. [And defendant did not steal
any women’s shoes and did not have them in his waistband.] . . . [¶] If there was any force or fear, any element
of that, it was used for him to get out of there. It was not used for him to get out of there
with property. . . . [¶] . . . [¶]
. . . If any force was used by Mr. Castro, it was
used to get out of there, not to get beat up, and to get away from the situation
he was in, or as drug users do, they just run.â€
III. DISCUSSION
A. Instruction Issue
Defendant
contends the trial court had a sua sponte duty to give a jury instruction
consistent with his defense. We
disagree. Moreover, we find no
prejudice.
Robbery
is a type of aggravated theft by larceny.
(People v. Gomez (2008) 43
Cal.4th 249, 254-257; People v. Hodges (2013)
213 Cal.App.4th 531, 539-540.) As our
Supreme Court has explained: “To elevate
larceny to robbery, the taking must be accomplished by force or fear and the
property must be taken from the victim or in his presence.†(People
v. Gomez, supra, 43 Cal.4th at p. 254, fn. omitted.) As our Supreme Court further explained: “[A] robbery can be accomplished even if the
property was peacefully or duplicitously acquired, if force or fear was used to
carry it away.†(People v. Gomez, supra, 43 Cal.4th at p. 256; see
__ [2013 LEXIS 6899 *18].) As our
Supreme Court held in People v. McKinnon (2011)
52 Cal.4th 610, 686-687: “‘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; see People
v. Scott (2009) 45 Cal.4th 743, 749 [].)
A defendant who does not use force or fear in the initial taking of the
property may nonetheless be guilty of robbery if he uses force or fear to
retain it or carry it away in the victim’s presence. (People v. Gomez[, supra,] 43 Cal.4th [at pp.
256, 264]; People v. Estes (1983) 147 Cal.App.3d 27.)’ (People v. Bradford (2010) 187
Cal.App.4th 1345, 1349.) That is, ‘[a]
robbery is not completed at the moment the robber obtains possession of the
stolen property. The crime of robbery
includes the element of asportation, the robber’s escape with the loot being
considered as important in the commission of the crime as gaining possession of
the property . . . .
[A] robbery occurs when defendant uses force or fear in resisting
attempts to regain the property or in attempting to remove the
immediate presence regardless of the means by which defendant originally
acquired the property.’ (People v.
Estes[, supra,] 147 Cal.App.3d
[at pp.] 27–28.)†(Accord,
pp. 255-256; People v. Webster (1991)
54 Cal.3d 411, 441; People v. Anderson (1966)
64 Cal.2d 633, 638-639.) In other words,
a defendant is guilty of robbery if he or she uses force or fear to
retain possession of the property and to escape with it. This rule of robbery culpability applies even
if force or fear is not used during the initial taking of the property. (People
v. Gomez, supra, 43 Cal.4th at p. 256; People
v. Webster, supra, 54 Cal.3d at p. 441; People
v. Hodges, supra, 213 Cal.App.4th at pp. 541-543; People v. Pham (1993) 15 Cal.App.4th 61, 64-67;
at p. 28.)
Defendant
argues the trial court had a sua sponte duty to instruct that if he abandoned
the stolen property in advance of
using force, he was guilty of only theft not robbery. Our review is de novo. (People
v. Fenderson (2010) 188 Cal.App.4th 625, 642; People v. Russell (2006) 144 Cal.App.4th 1415, 1424; see
218; People v. Berryman (1993) 6
Cal.4th 1048, 1089, disapproved on another point in People v. Hill (1998) 17 Cal.4th 800, 822-823.) The trial court did not have a sua sponte
duty to so instruct. As our Supreme
Court has held: “‘[W]hen a defendant
presents evidence to attempt to negate or rebut the prosecution’s proof of an
element of the offense, a defendant is not presenting a special defense
invoking sua sponte instructional
duties. While a court may well have a
duty to give a “pinpoint†instruction relating such evidence to the elements of
the offense and to the jury’s duty to acquit if the evidence produces a
reasonable doubt, such “pinpoint†instructions are not required to be given
request. [Citations.]’†(People
v. Saille (1991) 54 Cal.3d 1103, 1117; accord, People v. Anderson (2011) 51 Cal.4th 989, 996-997.) Here, the prosecution presented evidence and
argument defendant used force to prevent store personnel from retrieving the
stolen merchandise and to retain possession of it. Defendant presented evidence and argument he
dropped the stolen goods when confronted by store personnel and used force only
to escape. In other words, defendant
sought to negate the prosecution’s proof of the force element of robbery. Under these circumstances, the trial court
had no sua sponte duty to instruct as defendant asserts. (People
v. Anderson, supra, 51 Cal.4th at pp. 996-997; People v. Saille, supra, 54 Cal.3d at p. 1117.)
The
failure to give a legally correct pinpoint instruction is a state law error
subject to review under People v. Watson (1956)
46 Cal.2d 818, 836. (
325 & fn. 9; People v. Hughes (2002)
27 Cal.4th 287, 362-363; see People v.
Wilkins (2013) 56 Cal.4th 333, 348-349.)
Here, even if there was error, it is not reasonably probable the result
would have been more favorable to defendant.
The jury was properly instructed on the elements of robbery and of theft
by larceny. A reasonable juror would
have understood that a theft was elevated to a robbery by the use of force
in: taking the property; preventing a
person from resisting the taking of the property; or resisting an attempt by
store personnel to regain possession of the property. In closing argument, Mr. Gonzales argued
defendant was not guilty of robbery because the stolen merchandise was abandoned
before the two fracases broke out.
Mr. Gonzales argued defendant used force not to retain the items
taken but only to escape. But there was
no evidence defendant intentionally and voluntarily relinquished possession of
the stolen merchandise. He did not offer
verbally or by his actions to return the items to store personnel. Moreover, the jury necessarily resolved the
use of force issue adversely to defendant when it chose between robbery and
theft by larceny. Had the jury believed
defendant abandoned the stolen items and resorted to force only to make his
escape, it would have convicted him of theft by larceny.
Nor was
defense counsel ineffective for failing to request a pinpoint instruction. The pivotal issue was properly before the
jury through correct instruction and argument.
Defense counsel could reasonably conclude further instruction was
unnecessary. (People v. Castillo (1997) 16 Cal.4th 1009, 1018; see
986-987; People v. Dominguez (1992)
11 Cal.App.4th 1342, 1352-1353.) Even if
the pinpoint instruction should have been requested, there is no reasonable
probability of a different result. (
668, 694; People v. Lawley (2002) 27
Cal.4th 102, 136; see People v. Linton (2013)
56 Cal.4th 1146, 1167 [defendant must show both deficient performance and
prejudice].) Having found no prejudice
in the absence of the defense instruction, we reject defendant’s ineffective
assistance claim. (People v. Carter (2003) 30 Cal.4th 1166, 1222; People v. Lewis (2001) 25 Cal.4th 610, 646.)
B. Sentencing And Abstract Of Judgment
The trial
court orally imposed a $40 court operations assessment (§ 1465.8, subd. (a)(1))
and a $30 court facilities assessment (Gov. Code, § 70373, subd. (a)(1)) as to
counts 1, 3 and 4, but not count 2. As
the Attorney General correctly contends, the trial court should have imposed
those assessments on count 2 notwithstanding the stay imposed pursuant to
section 654, subdivision (a). (
Cal.App.4th 1293, 1327; People v. Crittle
(2007) 154 Cal.App.4th 368, 370-371.)
The judgment must be modified to so provide. (People
v. Sencion (2012) 211 Cal.App.4th 480, 484-485; People v. Crabtree, supra, 169 Cal.App.4th at p. 1328.)
Additionally, because defendant was
convicted of controlled substance possession (Health & Saf. Code, § 11377,
subd. (a)), the trial court should have imposed a $50 criminal laboratory
analysis fee (Health & Saf. Code, § 11372.5, subd. (a)) plus penalties and
a surcharge. (People v. Sharret (2011) 191 Cal.App.4th 859, 863-864; see
269, 274.) The criminal laboratory
analysis fee was subject to: $50
state penalty (§ 1464, subd. (a)(1)); $35 county penalty (Gov. Code, § 76000,
subd. (a)(1)); $10 state surcharge (Pen. Code, § 1465.7, subd. (a)); $25 state
court construction penalty (Gov. Code § 70372, subd. (a)(1), Stats. 2011, ch.
304, § 5, eff. Jan. 1, 2012); $10 emergency medical services penalty (Gov.
Code, § 76000.5, subd. (a)(1)); $5 deoxyribonucleic acid penalty (Gov. Code, §
76104.6, subd. (a)(1)); and $15 state-only deoxyribonucleic acid penalty (Gov.
Code, § 76104.7, subd. (a); Stats. 2011, ch. 36, § 16, eff. June 30, 2011–June
26, 2012).
IV. DISPOSITION
The judgment
is modified to impose a $40 court operations assessment (Pen. Code, § 1465.8,
subd. (a)(1)) and a $30 court facilities assessment (Gov. Code, § 70373, subd.
(a)(1)) as to count 2. The judgment is
further modified to impose a: $50
criminal laboratory analysis fee (Health & Saf. Code, § 11375.2, subd.
(a)); $50 state penalty (Pen. Code, § 1464, subd. (a)(1)); $35
county penalty (Gov. Code, § 76000, subd. (a)(1)); $10 state surcharge (Pen.
Code, § 1465.7, subd. (a)); $25 state court construction penalty (Gov. Code §
70372, subd. (a)(1)); $10 emergency medical services penalty (Gov. Code, §
76000.5, subd. (a)(1)); $5 deoxyribonucleic acid penalty (Gov. Code, § 76104.6,
subd. (a)(1)); and $15 state-only deoxyribonucleic acid penalty (Gov. Code, §
76104.7, subd. (a)). In all other respects, the
judgment is affirmed. Upon remittitur
issuance, the clerk of the superior court is to prepare an amended abstract of
judgment that includes the $50 criminal laboratory analysis fee plus the
penalties and the surcharge. The clerk of the superior court is to
deliver a copy of the amended abstract of judgment to the
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
TURNER,
P.J.
We concur:
MOSK, J. KUMAR,
J.
Code except where otherwise noted.
assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
