P. v.
Filed 8/3/12 P. v. Dawson CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
SECOND APPELLATE
DISTRICT
DIVISION EIGHT
THE PEOPLE,
Plaintiff
and Respondent,
v.
GARY OSBOURNE DAWSON,
Defendant
and Appellant.
B229991
(Los
Angeles County
Super. Ct.
No. LA065402)
APPEAL
from judgment of the Superior
Court of
County.
Elizabeth A. Lippitt, Judge. Affirmed in part, reversed in part and
remanded.
Lynne
S. Coffin, 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, Marc A. Kohm and Thomas C. Hsieh, Deputy Attorneys
General, for Plaintiff and Respondent.
___________________________
A jury convicted Gary Dawson of six
counts of robbery (Pen. Code, § 211),
assault with a semiautomatic firearm (§ 245, subd. (b)), and three counts
of assault with a firearm (§ 245, subd. (a)(2)). The crimes were committed during three
separate incidents, on three separate days, each incident involving two
victims. In a bifurcated part of trial,
the jury found that Dawson had suffered a prior conviction for residential
burglary; the prior conviction qualified as a strike and a prior serious felony
(§§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d); 667, subd. (a)(1)). Also, the trial court found Dawson committed a felony while released on
bail in another case (§ 12022.1). Dawson was sentenced to state prison for an
aggregate term of 38 years. We find one
of Dawson’s convictions for
we otherwise affirm the remaining convictions.
We remand for resentencing.
Counts 1, 2 and 3
On
July 28, 2009, Dylan Roby
and Royce Park drove to an apartment building
on Woodley
Avenue
in the San
Fernando Valley
to check out a BMW that was advertised for sale on “craigslist.” When they arrived at the address, Dawson greeted them at the curb, and told
them to follow him to an alley behind the apartment building. Once in the alley, two other men
approached. One of the men, later
identified as Jaime Valencia, had a baseball bat. The second man, later identified as Bradley
Chapman, wielded a “semi-automatic type gun.”
Chapman pulled the slide on the gun back to show Roby a bullet in the
chamber, then pointed the gun at Park.
Chapman hit Park in the face with the hand that held his gun. The robbers took Roby’s car keys, and Park’s
wallet, keys, watch and iPhone. The
robbers then went to Roby’s car, and took his iPod, Bluetooth headset, and
$4,000 that Roby had brought with him to buy the advertised BMW.
On
July 31, 2009, Satoshi Mochizuki and Michitaka Toba
drove to an apartment building on DeSoto Avenue in the San Fernando to check out a car that was advertised
for sale on craigslist. When they
arrived at the address, they did not see anyone there. Shortly thereafter, the
“seller” called Mochizuki’s cell phone, and told him to wait in alley behind
the apartment building. After Mochizuki
and Toba walked to the alley, two men approached. They were later identified as Chapman and
Julio Moratoya. Chapman was armed with a
revolver. The robbers took Mochizuki’s
cell phone, and Toba’s cell phone and wallet, which contained $9,500 that
Mochizuki had given Toba to hold. There
was a struggle. Mochizuki grabbed
Chapman, then fell to the ground. Chapman
struck Mochizuki in the head with the gun, causing Mochizuki to bleed “a
lot.” The robbers ran away.
Counts 7, 8, 11, and 12
On August 3, 2009, Phillippine Nguyen and his brother,
Jimmy Phan, drove to an apartment building on DeSoto Avenue in the San Fernando Valley to check out a car that had been
advertised for sale on craigslist. When
they arrived at the address, the “seller” called Nguyen and told him to go to
an alley behind the building to see the car.
After Nguyen and Phan went into the alley, two armed men
approached. They were later identified
as Chapman and Valencia.
Chapman pointed a revolver at Nguyen, and told him to get on the
ground. Valencia had a semi-automatic
handgun. The robbers took Nguyen’s
wallet, keys and $4,500. Valencia pointed
the gun at Phan. The robbers took Phan’s
wallet. Chapman and Valencia ran
away. Nguyen and Phan went to their car
and followed Valencia and Chapman, who entered a car. Valencia and Chapman made a u-turn. Chapman exited the car and pointed the gun at
Nguyen and Phan. Nguyen stopped
following them.
Los
Angeles Police Department (LAPD) Detective Pam Pitcher investigated the series
of robberies. On August 4, 2009, police
arrested a suspect based on the telephone number used by the craigslist
“seller” in connection with the crimes.
On August 5, 2009, Dawson called Detective Pitcher, and stated that he
had placed the advertisements on craigslist.
During a subsequent recorded interview, Dawson said that he knew both
Chapman and Moratoya. Dawson further
stated he had placed an ad on craigslist for Chapman and another for Moratoya
as a favor. Dawson denied knowing that
Chapman and Moratoya were going to commit robberies. Dawson was arrested.
LAPD
Officer Kyle Douglas transported
Dawson to jail. At the jail, Officer
Davis overheard Dawson and a female talking about why they were in custody. The female said that she was being booked for
shoplifting. Dawson said, “What’s the
point of coming to jail for shoplifting
You probably only got two dollars.
I am probably going to do about 10 years, but at least it’s for
something worth it. If you’re going to
do something to get in jail, at least get $20,000, not two.”
The Criminal Proceedings
Dawson,
Chapman, Moratoya and Valencia were initially held to answer on the charges
related to the three robbery and assault incidents described above. Chapman, Moratoya and Valencia eventually
pleaded guilty, and the criminal case went forward against Dawson. The People filed an amended information
charging Dawson with six counts of robbery (§ 211; counts 1, 3, 4, 6, 7
and 8, as to victims Roby, Park, Mochizuku, Toba, Nguyen and Phan,
respectively); assault with a semiautomatic firearm on Park (§ 245, subd.
(b); count 2); and three counts of assault with a firearm (§ 245, subd. (a)(2);
counts 5, 11 and 12, as to victims Mochizuki, Nguyen and Phan, respectively). Further, the information alleged that Dawson
suffered a 2008 conviction for residential burglary which qualified as a prior
strike and as a prior serious felony.
(§§ 667, subds. (a)(1) & (b)–(i), 1170.12, subds.
(a)-(d).) As to all counts, the
information alleged that a principal was armed with a handgun. (§ 12022, subd. (a)(1).) The information alleged Dawson was released
on bail in a Riverside case at the time he committed the second degree robbery
of Phillippine Nguyen as alleged in count 7.
(§ 12022.1.)
The
charges were tried to a jury. The trial
was prosecuted for the most part on a theory of aiding and abetting liability,
and the prosecution evidence at trial established Dawson’s involvement in each
of the three robbery and assault incidents as summarized above. Dawson testified on his own behalf. He admitted he posted classified
advertise-ments on craigslist, but said he did so only as a favor to Chapman
and Moratoya because they did not have their own computers. Dawson denied knowing that Chapman and
Moratoya planned to commit robberies.
Dawson admitted being present at the incident on July 28, 2009, but said
he was only there to help arrange paperwork so Moratoya could sell his car. Dawson testified he saw Chapman and another
man commit the robbery, but he denied any further involvement. Dawson denied any involvement in posting the
craigslist advertisement related to the incident on July 31, 2009. He admitted he posted the craigslist
advertisement related to the incident on August 3, 2009, but said he knew
nothing about the robbery.
The
jury returned verdicts finding Dawson guilty of all counts, but found all of
the principal armed allegations to be not true.
Following a bifurcated part of trial, the jury returned a verdict
finding true the allegations that Dawson suffered a prior serious felony
conviction in 2008 for residential burglary.
Dawson waived jury trial on the bail allegation, and the court found the
allegation to be true.
On
November 17, 2010, the trial court sentenced Dawson to an aggregate term of 38
years in state prison as
follows: on count 2 (assault with a semiautomatic firearm): nine
years, the upper term, doubled to 18 years for the prior strike. As to each and all of the remaining nine
counts: a term of one year (one-third the mid-term of three years), doubled to
two years for a prior strike. The court
further imposed a two year term for the out-on-bail allegation. The court ordered Dawson to pay various
restitution fines and penalties and assessments, none of which are at issue on
appeal.
DISCUSSION
Instructional Issue
Dawson argues his conviction for
assault with a semiautomatic firearm as alleged in count 2 and his convictions
for assault with a firearm as alleged in counts 5, 11 and 12 must be reversed
because the trial court did not instruct sua sponte on the lesser included
offense of simple assault. We disagree
as to the assault with a semiautomatic firearm as alleged in count 2, and the
assaults with a firearm as alleged in counts 11 and 12; we agree as to the
assault with a firearm as alleged in count 5.
A
trial court is required to instruct sua sponte on all lesser included offenses when the evidence warrants
such instruction. (People v. Breverman (1998) 19 Cal.4th 142, 148-149 (
required when a reasonable jury could find that the defendant committed the
lesser offense. (Id. at p. 162.) On the other hand, there is no duty to
instruct on a lesser included offense when there is no substantial evidence to
support it. (People v. Cunningham (2001) 25 Cal.4th 926, 1008.)
At trial,
Dawson raised the issue whether the firearms wielded in the three crime
incidents were “real” and loaded firearms, or look-alike, “fake” firearms. The victims, none of whom were firearms
specialists granted the opportunity to fully examine the weapon, could not say
real. As Dawson’s counsel argued in
connection with “the counts that involve firearms,” the prosecution “didn’t
bring in any evidence that it was an actual [firearm] or testimony to prove to
you beyond a reasonable doubt that it was [a firearm].”
As to the
assault charges alleged in counts 2, 5, 11 and 12, the trial court properly
instructed the jury that the People were required to prove Dawson “did an act
with a firearm that by its nature would directly and probably result in the
application of force to a person.” On
appeal, Dawson argues there was “scant” evidence that the “firearms” used in
the three sets of crimes were real firearms.
Further, he argues that, because the jury could have found that the
“firearms” used in any of the three crime incidents were “fake firearms,” i.e.,
not firearms at all, then instruction on the lesser included offense of simple
assault were required. Further, Dawson
contends the failure to give instructions on the lesser offense of simple
assault requires that all of his assault convictions be reversed.
Assault
A threat of
injury from pointing an unloaded firearm, or a fake firearm,
the assailant does not, in fact, have the present ability to inflict injury by
the act of shooting. (
11, fn. 3 (Rodriguez); and see also
121, 124-125; People v. Sylva (1904)
143 Cal. 62, 64.) Under the instructions
given at trial, if the jury found Dawson did an act with an instrument that was
not a firearm, i.e., a fake firearm, then he was not guilty of the charged
crime of assault with a firearm.
Counts 11 and 12
Dawson was
convicted in counts 11 and 12 of assaults with a firearm on victims Philippine
Nguyen and Jimmy Phan during the incident on August 3, 2009. The trial evidence as to these counts showed
that, after Nguyen and Phan were robbed at gunpoint by Chapman and a cohort,
they followed the robbers. The robbers
made a turn, and Chapman exited the car and pointed the gun at Nguyen and Phan.
Instruction
on simple assault was not required as to counts 11 and 12 because Dawson was
either guilty as an aider and abettor of assault with a firearm by Chapman’s
use of a real firearm, or he was not guilty of an assault crime at all because
the instrument that Chapman used could not, in fact, have inflicted any
injury. (Rodriguez, supra, 20 Cal.4th at p. 11, fn. 3; People v. Vaiza, supra, 244 Cal.App.2d at pp. 124-125;
64.) In short, Chapman either pointed a
real firearm at the victims, or a non-shootable instrument that was not a
firearm. If the latter was the
situation, there was no assault. If the
jurors believed no firearm had been used, then they would have acquitted
Dawson. Because there was no evidence to
support an instruction on the lesser offense of simple assault as to counts 11
and 12, there was no instructional error.
Count 5
Dawson was
convicted in count 5 of assault with a firearm on victim Satoshi Mochizuki
during the incident on July 31, 2009.
The trial evidence as to count 5 showed the following: Chapman and a cohort were the direct
perpetrators, and Chapman used what was testified to be a “revolver.” The robbers took Mochizuki’s cell phone, and
took from victim Michitaka Toba a cell phone and wallet. The wallet contained $9,500 that Mochizuki
had given Toba to hold. There was a
struggle, and Chapman hit Mochizuki in the head with the gun, causing Mochizuki
to bleed “a lot.”
Count 5 was
submitted to the jury as a charge of assault with a firearm based upon evidence
showing that Dawson’s cohort in crime, Chapman, pointed a revolver at victim
Mochizuki, and hit Mochizuki in the head with the revolver. We agree with Dawson that, if the jurors did
not believe the revolver was a “real” firearm, then they reasonably could have
found a simple assault had been committed.
In this factual scenario, the assault could have been based upon the act
of threatening Mochizuki with the gun or by hitting him with the gun. If the jury believed the assault was
committed by hitting him with a fake gun, then the assault would not have been
committed with a firearm.
name="_ftnref2" title="">[2] Accordingly, instruction on the lesser
included offense of simple assault was required. (Breverman, supra, 19 Cal.4th at pp. 148-149.)
This leaves
us to address the effect of the instructional error. In a non-capital case, the failure to
instruct on a lesser included offense is reviewed for prejudice under the test
articulated in People v. Watson
(1956) 46 Cal.2d 818, at page 836. (Breverman, supra, 19 Cal.4th at p. 178.) Here, we find a reasonable probability that
the result of his trial would have been affected as to count 5 had the trial
court instructed on the lesser offense of simple assault. As to the crime incident involving count 5,
the jury could have believed that the item Chapman was carrying was not an
actual, working firearm that he used it to hit the victim. In examining whether substantial evidence
supports a jury’s finding that a real firearm was used in a crime, the law does not require that the
firearm be recovered and tested to establish its true nature. (People
v. Hayden (1973) 30 Cal.App.3d 446, 452 [circumstantial evidence in the
form of testimony describing the weapon and its role in the crime constitutes
substantial evidence that an item which appeared to be a firearm was, in fact,
a firearm], disapproved on other grounds in People
v. Rist (1976) 16 Cal.3d 211, fn. 10.)
But the issue here is not whether there was substantial evidence in
support of the verdict. Instead, the
issue is whether there was evidence from which a reasonable juror could
conclude that the lesser offense of simple assault, and not only assault with a
firearm, was committed. Against the evidence supporting the jury’s
finding that a real firearm was used, there was some evidence to support a
different finding.
In support
of the contention that he was prejudiced by the failure to instruct on simple
assault, Dawson relies on a jury
question during deliberations, coupled with the jury’s “not true” findings on
the principal armed allegations.
Specifically, during deliberations, the jury sent the following note to
the court:
“[#1] On the assault charges, can we find the defendant guilty of assault without a firearm or semiautomatic
weapon [#2] For example, can we find
him guilty . . . and answer not true to [the principal
armed allegation].”
The court returned the
following response to the jury:
“#1 No.
#2 If you find the defendant guilty of assault
with a firearm or semiautomatic firearm, then you can answer true or not true
regarding the allegation.”
We cannot delve into the minds of the jurors to attempt to discern what they
were thinking when they posed their question to the trial court. Nevertheless, we do not believe the failure
to instruct on simple assault was harmless.
While the guilty verdict as to count 5 shows the jury necessarily found
that a real firearm had been used, we are not satisfied that the result would
have been the same as to count 5 had an instruction on the lesser offense of
simple assault been given. Dawson’s
conviction for assault with a fire-arm as alleged in count 5 must be reversed.
Count 2
Dawson was
convicted in count 2 of assault with a semiautomatic firearm on victim Royce
Park during the incident on July 28, 2009.
The evidence at trial established that Dawson’s cohort, Chapman, was
carrying a weapon that looked like a semiautomatic firearm. Chapman approached Park and the other victim,
Roby. Chapman pulled back the “slide” on
the gun to show Roby a bullet in the chamber, then pointed the gun at
Park. Chapman hit Park in the face with
the hand that held his gun.
As to this
count, we believe instruction on simple assault should have been given, but we
do not believe the error was prejudicial.
(Breverman, supra, 19 Cal.4th
at p. 178; see also, People v. Watson
(1956) 46 Cal.2d 818, 836.) Though Roby
was not a firearms expert and admitted he did not know how to identify a bullet
sitting in a chamber, the act of pulling back a slide strongly indicates it was
a firearm. Dawson gave equivocal
testimony about the nature of the weapon at trial, but he initially told police
Chapman told him the gun was real. Also,
Dawson said he saw the gun and thought it looked like a semiautomatic
weapon. The real nature of the
semiautomatic firearm in the assault on victim Park is supported by the trial
testimony showing that Chapman pulled back the “slide” on the weapon to show
that it was loaded with a bullet. We understand
that if Chapman hit victim Park with a fake firearm, then the jury could have
found a lesser (or different) assault crime had been perpetrated. We just don’t agree based on the evidence
involving this count, the error caused prejudice. (Breverman,
supra, 19 Cal.4th at pp. 148-149.) As
to count 2, we find no reasonable probability that the result of Dawson’s trial
would have been different.
II. Section 654
Dawson
contends the trial court erred in imposing consecutive terms on the assault
counts and the robbery counts. Dawson
contends that section 654 prohibits consecutive terms because the assaults were
committed to further the robberies. We
disagree.
Section
654 prohibits the imposition of multiple punishments where a single act
violates more than one criminal statute, or the defendant’s acts comprise an
indivisible course of conduct with a single intent and objective. (Neal
v. State of California (1960) 55 Cal.2d 11, 19-20, clarified on another
ground in People v. Correa (2012) __
Cal.4th __ ; 142 Cal.Rptr.3d 546.) The
corollary is that the imposition of multiple punishments is proper where a
defendant had multiple criminal objectives that were independent and not merely
incidental to each other. (
551.) Whether a defendant had multiple
criminal objectives is a factual question for the sentencing court, and its
determination will be upheld on appeal when supported by
v. Coleman (1989) 48 Cal.3d 112, 162.)
We
find substantial evidence supports the trial court’s conclusion that the
assault with a semiautomatic firearm on victim Park in count 2 was not merely
incidental to the robberies of victims Roby and Park in counts 1 and 3. And we find substantial evidence supports the
trial court’s conclusion that the assaults with a firearm as to victims Nguyen
and Phan in counts 11 and 12 were not merely incidental to the robberies of
victims Ngueyn and Phan in counts 7 and 8.
(As discussed above, the assault in count 5 must be reversed.) Substantial evidence supports the conclusion
that the assaults were gratuitous, and unnecessary to accomplish the
robberies. The robberies were
accomplished by fear; there was no need to assault the victims. (People
v. Watts (1999) 76 Cal.App.4th 1250, 1264-1265.) In the assault of Park (count 2), there was
no evidence he was resisting the robbery.
The assault was unnecessary. In
the assaults of Nguyen and Phan (counts 11 and 12), it is not subject to
question that punishment for two acts is appropriate. After the victims were robbed at gunpoint,
they followed their assailants. It was
after the robbery, when the other defendants were being followed, that they then
again pointed a gun at the victims to stop their pursuit. Where an assault occurs after the robbery, a
defendant can properly be punished for both acts. (People
v. Johnson (1969) 270 Cal.App.2d 204, 208-209; People v. Watts, supra, 76 Cal.App.4th at p. 1265.)
In
summary, we find substantial evidence supports the trial court’s findings that
the assaults were not the means to accomplish the robberies, and that the
assailant had distinct objectives in committing the robberies and the assaults.
Dawson’s
conviction for assault with a firearm as alleged in count 5 is reversed. All of his remaining convictions are
affirmed. The cause is remanded to the
trial court for retrial as to count 5 at the People’s election, or other
further proceedings as needed, and for resentencing.
BIGELOW,
P. J.
We concur:
RUBIN,
J.
SORTINO,
J.
name="_ftn1" title="">
the Penal Code.
similar reasoning, the jury also could have found that an assault with a deadly
weapon (not a firearm) had been committed by an instrument used as a club or
bludgeon, or an assault by means of force likely to produce great bodily
injury.
