P. v. Gonzalez
Filed 4/19/13 P. v. Gonzalez CA6
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opinion has not been certified for publication or ordered published for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
SIXTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
HECTOR MANUEL GONZALEZ,
Defendant and
Appellant.
H037854
(Monterey
County
Super. Ct.
No. SS100663)
Defendant
Hector Manuel Gonzalez appeals after conviction, by jury trial, of two counts
of residential burglary (Pen. Code, §
459),
one count of robbery (§ 211), and one
count of false imprisonment (§ 236). He
admitted three prior prison term allegations. (§ 667.5, subd. (b).) Defendant was sentenced to an 11-year,
four-month prison term and ordered to pay a $6,600 restitution fine.
On appeal,
defendant contends one of the burglary convictions must be reversed due to
was inhabited and because the trial court gave the wrong circumstantial
evidence instruction. Defendant contends
the robbery conviction must be reversed for three reasons: (1) because the jury might have convicted him
even if it found he used force to escape, rather than to take the property; (2)
because there was insufficient evidence that the victim had constructive
possession of the property; and (3) because the trial court directed a verdict
by telling the jury that a caretaker on duty has constructive possession of the
homeowner’s property. Defendant also
contends that pursuant to section 654, the trial court should have stayed the
one-year term imposed for his robbery conviction and a portion of the
restitution fine.
We agree
that the term for defendant’s robbery conviction should have been stayed
pursuant to section 654 and that the restitution fine should have been
$4,000. We will order the judgment
modified.
Background
The charges
in this case stemmed from two separate incidents. The first occurred at the home of Bette and
Donald Limberg and the second occurred at the home of Josephine Williams.
A. The Limberg Burglary
In November
of 2009, Donald and Bette Limberg owned a home in Carmel but did not live there
full-time. They had another residence
and visited the Carmel residence periodically.
The Carmel residence remained fully furnished, with works of art on the
walls. The Limbergs left a vehicle (a
Volvo) at the residence.
The
Limbergs continued to have the residence serviced by their long-time landscape
contractor, Doris Mitchell. Mitchell had
a key to the house and would periodically check on the condition of the
interior. On November 9, 2009, Mitchell
checked on the flower pots at the front door entrance to the residence. While doing so, she noticed that the stained
glass near the front door had a hole in it.
Plywood had been placed behind the hole.
Mitchell
contacted a neighbor and entered the residence.
The interior was in disarray, and it appeared someone had been living
there. Drawers were all open. The heat and television were on. Mattresses had been placed against windows. Art work was gone from the walls. One of the missing paintings was worth about
$47,000; a second was worth $14,500.
Other missing items included the Volvo and a $1,600 coffee table.
Although
Mitchell herself had not been inside the residence for about a month, her crew
came every week and had not noticed or reported anything amiss. Mitchell believed that the Limbergs had last been
to the residence about a year earlier.
Police
lifted fingerprints from the Limberg residence.
They found one print on some packaging tape that had been placed on an
outside window. The fingerprint matched
defendant.
Police also
ran a records check on the Limbergs’ Volvo.
Department of Motor Vehicles records showed that Natalie Flores had
filed a transfer application, which was dated October 26, 2009. The signatures on the transfer application
were not those of Bette and Donald Limberg.
The Volvo was found at Flores’s residence, and Flores stated that
defendant (her boyfriend) had purchased it for her.
Defendant
was interviewed by the police on November 17, 2009. After he was advised of his
police told him that some fingerprints had been found at the Limberg residence.
Defendant
admitted he had been inside the Limberg residence. Someone had called him and invited him over
to look at items. He had previously told
people to call him if they needed money.
After receiving a call to go to a residence, he would go over and “it’s
‘grab somethin’ if you like it.’ â€
He would take anything he would “be able to get rid of.†However, when he went to the Limbergs’
residence, he did not see anything that he could use, so he left.
Defendant
also explained why his girlfriend had the Volvo. Someone had called him about buying it a
couple of days after going to the Limberg residence. He stated that he had purchased it in
Prunedale, although he previously stated that he had purchased it in San Jose.
At the time
of trial, Bette Limberg was in an assisted living facility and Donald Limberg
had passed away.
B. Robbery, Burglary, and False
Imprisonment at the Williams Residence
Josephine
Williams lived in Carmel in November 2009.
She was in her late 80’s at the time.
Chun Kang worked as her caregiver.
Williams
had been a customer of Jim’s Window Cleaning for seven years. Defendant was employed by Jim’s Window
Cleaning during 2008 and 2009, and he had been to the Williams residence about
three times. After his termination in
April 2009, defendant did not return his uniform, which included a t-shirt and
cap.
On November
13, 2009, defendant came to the door of the Williams residence in his Jim’s
Window Cleaning uniform. Kang answered
the door. When defendant offered to
clean the windows for free, Kang allowed him to enter. She was helping Williams in the bedroom, so
she asked defendant to clean the windows in other rooms first. Kang later gave defendant access to the bedroom. Williams kept a heavy safe in her bedroom
closet.
Kang heard
a loud noise and went to investigate.
She saw the front carpet gone and saw Williams’s safe outside the front
door. Defendant was next to the safe,
dragging it. Kang asked defendant what
he was doing and yelled, saying she was going to call 911. Defendant pushed Kang to the hallway and down
onto the floor. He then ran back
outside, where someone was waiting for him in a white car. Defendant did not get away with the
safe. However, jewelry was missing from
a drawer.
C. Charges, Verdicts, and
Sentence
Defendant
was charged with second degree robbery of Kang (count 1; § 211), residential
burglary of the Williams residence (count 2; § 459), false imprisonment of Kang
(count 3; § 236), residential burglary of the Limberg residence (count 4; §
459), and grand theft auto of the Limberg vehicle (count 5; § 487, subd.
(d)(1)). The information also alleged that defendant had served three prior
prison terms. (§ 667.5, subd. (b).)
The jury found
defendant guilty of counts 1 through 4 but could not reach a verdict on count
5. The trial court declared a mistrial
on count 5 (grand theft auto) and later dismissed it. Defendant waived jury trial on the prior
prison term allegations and admitted them.
The trial
court sentenced defendant to an 11-year, four-month prison term. It imposed the six-year upper term for the
Limberg burglary (count 4); a consecutive one-year term for the robbery of Kang
(count 1); a consecutive one-year, four-month term for the Williams burglary
(count 2); and consecutive one-year terms for the three prior prison term
allegations. The trial court stayed the
term for the false imprisonment of Kang (count 3) pursuant to section 654. It also imposed a $6,600 restitution fine.
Discussion
A. Residential Burglary – Count
4
Defendant
contends there was insufficient evidence to support his conviction of count 4,
the Limberg burglary. Specifically, he
contends there was insufficient evidence that the residence was inhabited.
1. Standard of Review
The
standard of review for an appellate challenge to the sufficiency of the
evidence to support a conviction is well-established. “The role of an appellate
court in reviewing the sufficiency of the evidence is limited. The court must ‘review the whole record in
the light most favorable to the judgment below to determine whether it
discloses substantial evidence—that is, evidence which is reasonable, credible,
and of solid value—such that a reasonable trier of fact could find the defendant
guilty beyond a reasonable doubt.’ [Citations.]†(People v. Ceja (1993) 4 Cal.4th 1134,
1138.)
2. Analysis
Burglary of
“an inhabited dwelling house . . . is burglary of the first degree.†(§ 460, subd. (a).) For purposes of the burglary statutes, “
‘inhabited’ means currently being used for dwelling purposes, whether occupied
or not.†(§ 459.)
“Cases
interpreting the term ‘inhabited dwelling house’ in section 460 . . . ha[ve]
made it clear that this term should be construed to effectuate the legislative
purposes underlying the statute, namely, to protect the peaceful occupation of
one’s residence. . . . ‘[A] person is
more likely to react violently to burglary of his [or her] living quarters than
to burglary of other places because in the former case persons close to him [or
her] are more likely to be present, because the property threatened is more
likely to belong to him [or her], and because the home is usually regarded as a
particularly private sanctuary, even as an extension of the person.’ [Citation.]
Courts specifically have recognized that the distinction between first
and second degree burglary is founded upon the perceived danger of violence and
personal injury that is involved when a residence is invaded.†(People v.
Cruz (1996) 13 Cal.4th 764, 775-776 (Cruz).)
Consistent
with this legislative purpose, “[t]he term ‘inhabited dwelling house’ for many
years has been considered a broad, inclusive definition [citation], and has
been analyzed in terms of whether the dwelling was being used as a
residence.†(Cruz, supra, 13
Cal.4th at p. 776.) Accordingly, an
“inhabited dwelling house†is a place where a “ ‘person with possessory
rights uses the place as sleeping quarters intending to continue doing so in
the future’ †(ibid.) or “ ‘a structure
where people ordinarily live and which is currently being used for dwelling
purposes.’ †(People v. DeRouen
(1995) 38 Cal.App.4th 86, 91 (DeRouen), disapproved on other grounds in People
v. Allen (1999) 21 Cal.4th 846, 866.)
“The dispositive element is whether the person with the possessory right
to the house views the house as his [or her] dwelling.†(People v. Cardona (1983) 142
Cal.App.3d 481, 484.) Conversely, “[a]
structure that was once used for dwelling purposes is no longer inhabited when
its occupants permanently cease using it as living quarters, and no other
person is using it as living quarters.â€
(People v. Rodriguez (2004) 122 Cal.App.4th 121, 132.)
Courts have
upheld first degree burglary convictions in many different situations involving
temporary absences by the homeowners.
For instance, courts have found that vacation homes are inhabited
residences. (DeRouen, supra, 38 Cal.App.4th at p. 92.) Intent to use a residence as a dwelling may
exist when a tenant is in the process of moving in or in the process of moving
out. (People v. Hernandez (1992) 9 Cal.App.4th 438, 442;
355 (Hughes).) Intent to use the structure as a dwelling can
be shown by the presence of valuable personal items, the presence of the usual
furnishings, or the fact that the utilities are on. (DeRouen,
supra, at p. 92; Hughes, supra, at
p. 355.)
In several
cases, courts have upheld first degree burglary convictions where, as here, the
elderly homeowners maintained their residences during long absences.
In
and she was “confined to a boarding residence†at the time of the
burglary. (Id. at p. 799.) She had not
lived in the house for over a year, but a friend took care of the house and
entered it frequently. Although there
was a doubt as to whether the owner would ever actually return, there was
substantial evidence she intended to
do so. There was no evidence the owner
“ever vacated or abandoned her residence to live in some other place.†(Id.
at p. 802.)
In
Cal.App.4th 1257 (Meredith), the
homeowner was hospitalized and then transferred to a skilled nursing
facility. He instructed a friend to take
care of his house, and he made it clear he wanted things to stay the way they
were. The homeowner’s son testified of
the homeowner’s intent to return. The
court held that even without that direct testimony, the evidence supported a
finding that the homeowner intended to return to his residence. Noting that the homeowner had asked his
friend to “maintain the premises as is and did not direct him or authorize him
to change anything,†the court found that “[t]he only logical inference to draw
. . . is that [the homeowner] intended to return.†(Id.
at p. 1268.)
This case
shares several significant facts with the above cases. Here, the homeowners manifested an intention
to return to their residence by maintaining it in a fully-furnished manner and
leaving the utilities on. (See
355.) The Limbergs even maintained a
vehicle on the premises. They also kept
valuable art on the walls, which is consistent with an intent to continue using
the house as a dwelling. (See
92.) As in Marquez and Meredith, the
Limbergs asked someone to check on the house regularly, including the interior,
and they paid for regular outside maintenance.
Based on
the evidence at trial, a reasonable trier of fact could have found, beyond a
reasonable doubt, that the Limberg residence was inhabited at the time of the
burglary. Substantial evidence therefore
supports defendant’s first degree burglary conviction.
B. Circumstantial Evidence
Instruction
Defendant
contends his conviction of count 4, the Limberg burglary, must be reversed
because the trial court instructed the jury with the wrong circumstantial
evidence instruction. The trial court
gave CALCRIM No. 225, which pertains to circumstantial evidence of intent or
mental state,
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rather than CALCRIM No. 224, which pertains to circumstantial evidence of all
elements of an offense.
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1. Invited Error/Ineffective
Assistance of Counsel
After an
in-chambers discussion of jury instructions, both parties withdrew their
request for CALCRIM No. 224. Defendant
acknowledges that trial counsel agreed to withdraw his request for CALCRIM No.
224, but argues that this was not invited error. We agree.
“ ‘The
doctrine of invited error is designed to prevent an accused from gaining a
reversal on appeal because of an error made by the trial court at his
behest. If defense counsel intentionally
caused the trial court to err, the appellant cannot be heard to complain on
appeal.’ [Citation.] For the doctrine to apply, ‘it must be clear
from the record that defense counsel made an express objection to the relevant
instructions. In addition, because
important rights of the accused are at stake, it also must be clear that
counsel acted for tactical reasons and not out of ignorance or mistake.’ [Citation.]
However, ‘[the] existence of some conceivable tactical purpose will not
support a finding that defense counsel invited an error in instructions. The record must reflect that counsel had a
deliberate tactical purpose.’ [Citation.]â€
(People v. Bunyard (1988) 45
Cal.3d 1189, 1234.)
Here, we
cannot say that defense counsel invited the error simply by agreeing that the trial court did not
have to give the instruction. The record
does not reflect that trial counsel induced the court not to give the
instruction. Although the record is not
clear, it appears that the trial court did not believe the instruction was
appropriate, and both parties simply agreed to withdraw their request. There was no invited error. We therefore need not address defendant’s
claim that if there was invited error, he received constitutionally ineffective
assistance of counsel.
2. Analysis
CALCRIM
Nos. 224 and 225 both instruct the jury on the proper use of circumstantial
evidence. CALCRIM No. 225 is to be used
in place of CALCRIM No. 224 “ ‘when the defendant’s specific intent or
mental state is the only element of the offense that rests substantially or
entirely on circumstantial evidence.’
[Citations.]†(People v.
Samaniego (2009) 172 Cal.App.4th 1148, 1171-1172 (Samaniego).) Both instructions “provide essentially the
same information on how the jury should consider circumstantial evidence, but
CALCRIM No. 224 is more inclusive.†(Id.
at p. 1172.)
The more
general circumstantial instruction (CALCRIM No. 224 or its predecessor CALJIC
No. 2.01) is proper where issues such as identity rest primarily on
circumstantial evidence. (
885.) It is error to give the more
specific instruction on circumstantial evidence of intent or mental state
(CALCRIM No. 225 or its predecessor CALJIC No. 2.02) where the defendant’s
intent is not the only element of the prosecution’s case resting on
circumstantial evidence. (
1222.)
By the same
token, the more general circumstantial instruction (CALCRIM No. 224 or its
predecessor CALJIC No. 2.01) is only required where the prosecution’s case
substantially relies on circumstantial evidence. “ ‘[W]here circumstantial inference is not
the primary means by which the prosecution seeks to establish that the
defendant engaged in criminal conduct, the instruction may confuse and mislead,
and thus should not be given.’ [Citation.]†(People
v. Brown (2003) 31 Cal.4th 518, 562 (Brown).) Thus, in People
v. Yeoman (2003) 31 Cal.4th 93 (Yeoman),
where the defendant made incriminating extrajudicial admissions, “the trial
court reasonably determined for purposes of instructing the jury that the
People’s case did not rest substantially or exclusively on
at p. 143.)
In this
case, circumstantial evidence was not
the “primary means†by which the prosecution established defendant committed
the Limberg burglary. (
562.) Although there was some
circumstantial evidence of his involvement in the burglary (defendant’s
fingerprint and his possession of the stolen vehicle), it merely corroborated
the direct evidence of his involvement, which came from his admission to the
police. As in Yeoman, the trial court could reasonably determine that, because
defendant admitted entering the residence, “the People’s case did not rest
substantially or exclusively on circumstantial evidence.†(Yeoman,
supra, 31 Cal.4th at p. 143.) The
real question was defendant’s intent – that is, whether he entered the Limberg
residence with intent to commit a felony.
Since that question formed the crux of the case, it was appropriate for
the trial court to give CALCRIM No. 225 rather than CALCRIM No. 224. (Samaniego, supra, 172 Cal.App.4th at
p. 1171.) We find no error.
C. Robbery – Use of Force
Defendant
argues that the evidence established that he had abandoned the safe at the time
he used force on Kang, and that he used force only to facilitate his escape
from the Williams residence. He contends
there is a possibility that his robbery conviction was based on a legally
inadequate theory of guilt, because the use of force in order to flee after abandoning
property is not a robbery.
Defendant
acknowledges that the record contains substantial evidence to support the
robbery conviction, because he used force on Kang before escaping with the
jewelry. He claims, however, that the
prosecutor and trial court erroneously led the jury to believe they could
convict him of robbery of the safe even if he used force after abandoning the
safe. He contends that because the
record does not show that the jury relied on his taking of the jewelry rather
than the safe, reversal is required under People v. Guiton (1993) 4
Cal.4th 1116, 1129 (Guiton) and People
v. Green (1980) 27 Cal.3d 1 (Green),
abrogated on other grounds by People v.
Martinez (1999) 20 Cal.4th 225.
1. Proceedings Below
At the end
of the prosecution’s case, defendant brought a motion for acquittal. (§ 1118.1.) With respect to the robbery charge, defendant
argued that he did not use force or fear in an effort to steal the safe, but
rather to facilitate his flight. The
prosecutor argued that robbery was a continuing offense and that the use of
force after the movement of the safe was sufficient under People v. Estes
(1983) 147 Cal.App.3d 23 (Estes).
The trial
court denied defendant’s motion for acquittal.
It noted that defendant had to go back inside the house in order to push
Kang, so it was reasonable to believe that “he was not attempting to escape.â€
The trial
court instructed the jury, pursuant to CALCRIM No. 1600, that in order to
convict defendant of robbery, it had to find “the defendant used force or fear
to take the property or to prevent the person from resisting.†The trial court further instructed the jury,
over defense objection, that “the People are not required to prove that the
defendant escaped with the property.â€
During
closing arguments, the prosecutor argued that defendant committed robbery “when
he tried to drag that safe out of the house and he was stopped by Mrs. Kang and
used force on her.†The prosecutor
reminded the jury that “the defendant need not escape with the property†and
described a scenario where a shoplifter tries to flee with property and then
struggles when caught. The prosecutor
argued, “As soon as you take something, that theft morphs, develops into a
robbery once that force is applied.â€
In
response, trial counsel argued that defendant did not use force to take the
safe, but in his flight. Trial counsel
argued that it is “absolutely required†that the property “be removed by some
kind of force or threat of violence.â€
Trial counsel acknowledged that defendant pushed Kang, but asked, “Does
he run and pick up the safe and go? Does
he take the safe with him? No. He runs.
He is fleeing because now he’s going to get in trouble.†Trial counsel emphasized that “the force
required in robbery is the force to steal or attempt to steal the
property. Not the force to flee.†She argued that while defendant might be
guilty of theft or attempted theft, “it is not a robbery because the force was
not applied in an effort to take that safe . . . .â€
In
rebuttal, the prosecutor argued that it was a robbery if defendant used force
on Kang “to prevent her from resisting him.â€
She argued that a robbery occurs when a defendant applies force “while
they are trying to keep that owner from resisting the taking.â€
2. Law of Robbery
Robbery is
defined as “the felonious taking of personal property in the possession of
another, from his [or her] person or immediate presence, and against his [or
her] will, accomplished by means of force or fear.†(§ 211.)
In Estes,
supra, 147 Cal.App.3d 23, the court clarified that the initial taking need
not be performed in the immediate presence of the victim. Under Estes,
“a robbery occurs when defendant uses force or fear in resisting attempts to
regain the property or in attempting to remove the property from the owner’s
immediate presence regardless of the means by which defendant originally
acquired the property.†(Id. at
pp. 27-28.)
Based on
the Estes rule, courts have upheld
robbery convictions where the defendant only used force when resisting an
attempt to regain the property and ultimately abandoned the property. For instance, in People v. Pham (1993) 15 Cal.App.4th 61 (Pham), the two victims confronted the defendant when he was
stealing property from their car. The
defendant began to flee with the property, but the victims chased him. As he was caught, the defendant dropped the
property and struggled with the victims, who were eventually able to subdue the
defendant. On appeal, the defendant
argued that he did not commit robbery, since he only used force after dropping
the property. The appellate court
rejected this claim, explaining that the defendant’s asportation of the
property “continued while [he] struggled with the victims and prevented them
from immediately recovering their goods.â€
(Id. at p. 65.)
A robbery
conviction was likewise upheld in People
v. Torres (1996) 43 Cal.App.4th 1073 (Torres),
disapproved on other grounds by People v.
Mosby (2004) 33 Cal.4th 353 at page 365, footnote 3. In Torres,
the victims found the defendant in their car, unplugging the stereo. While still in the car, the defendant swung a
screwdriver at one of the victims. He
got out of the car, holding the stereo, but put it back in the car before
fleeing. On appeal, the defendant
contended “the stereo was initially obtained without threat or any use of force
and was then abandoned by defendant without any attempt to retain it through
threat or use of force.†(
court rejected the insufficiency of the evidence claim, finding that when he
swung at the victim with a screwdriver, he had “used force or fear to prevent
[the victim] from regaining the car stereo.â€
(Id. at p. 1079.)
Defendant
contends this case is unlike Pham or
safe before using any force. He asserts
that if the thief used force only in an attempt to escape rather than in an
attempt to retain the property, no robbery has been committed.
Defendant
asserts, and the Attorney General does not dispute, that a person does not
commit robbery if he or she uses force only in an attempt to escape after
abandoning the stolen property. (See
[stating, in dicta, that a defendant who “truly abandoned the victims’ property
before using force . . . could be guilty of theft, but not of an
v. Flynn (2000)
77 Cal.App.4th 766, 772 [stating, in dicta, that “The use of force or fear
to escape … constitutes robbery.â€].)
3. Legal Insufficiency and
Factual Insufficiency
According to defendant, the jury here was
erroneously permitted to convict him of robbery even if it found that he “truly
abandoned the victim[’s] property before using force.†(Pham,
supra, 15 Cal.App.4th at p. 68.) Defendant contends that his
argument concerns legal insufficiency, rather than factual insufficiency,
prosecutorial misconduct, or instructional error.
In Green, supra, 27 Cal.3d 1,
the California Supreme Court announced the following rule: “[W]hen the
prosecution presents its case to the jury on alternate theories, some of which
are legally correct and others legally incorrect, and the reviewing court
cannot determine from the record on which theory the ensuing general verdict of
guilt rested, the conviction cannot stand.†(Id. at p. 69.) Legal insufficiency exists “when the
facts do not state a crime under the applicable statute.†(Guiton, supra, 4 Cal.4th at
p. 1129.) When the “inadequacy is
legal,†reversal is required “absent a basis in the record to find that the
verdict was actually based on a valid ground.†(Ibid., fn. omitted.)
Factual insufficiency, in
contrast, is the “kind the jury is fully equipped to detect.†(Guiton, supra, 4 Cal.4th at p. 1129;
see also Griffin v. United States (1991)
502 U.S. 46, 59.) When
the inadequacy is merely factual, reversal is not required as long as “a
valid ground for the verdict remains, absent an affirmative indication in the
record that the verdict actually did rest on the inadequate ground.†(Guiton, supra, at p. 1129)
In Green, the defendant was charged with kidnapping. The evidence established three separate
movements of the victim. (
62-63.) The trial court’s instructions
and prosecutor’s arguments had permitted the jury to convict the defendant of
kidnapping based on any of the three movements, even though two movements were
in fact insufficient under the law at the time.
(Id. at p. 68.) Because there was no way to determine whether
or not the jury’s verdict rested on one of the legally insufficient movements,
reversal was required. (
In
selling or transporting narcotics, even though the evidence showed he only
transported narcotics and did not engage in any sales. (Guiton,
supra, 4 Cal.4th at p. 1120.)
Although the trial court should not have given an instruction regarding
sales, the instructions and arguments enabled the jury to weed out the improper
theory. (Id. at p. 1131.)
More
recently, in People v. Morales (2001)
25 Cal.4th 34 (Morales), the
prosecutor argued that the defendant could be found guilty of possessing
narcotics even if the evidence only established he was under the influence of
narcotics. The defendant claimed this
was a legally incorrect theory. The
question of legal insufficiency under Green
nor factual insufficiency under Guiton
– the true issue was prosecutorial misconduct.
(Id. at p. 43.) Noting that it was a “close†question whether
the prosecutor had misstated the law (id.
at p. 45), the court found no basis for reversal, since the instructions were
correct and “did not permit a conviction solely on evidence of
intoxication.†(Id. at p. 47.)
In this
case, there is no legal insufficiency as in Green. The robbery instructions were correct. The jury was properly told that in order to
convict defendant of robbery, it had to find “the defendant used force or fear
to take the property or to prevent the person from resisting.†The trial court further instructed the jury
that “the People are not required to prove that the defendant escaped with the
property,†which was also a correct statement of law. (See Pham,
supra, 15 Cal.App.4th at p. 65; People
v. Green (1979) 95 Cal.App.3d 991, 1000 [robbery does not require that the
thief “ ‘escape with the loot’ to a ‘place of temporary safety’ â€];
375, 381 [“carrying away†element of robbery is met if defendant removes the
property “from the place where it was kept by the owner†and “obtains possession
and control of the property at least for a fraction of timeâ€].)
Likewise,
the prosecutor’s argument was correct.
The prosecutor did not argue that the jury could convict defendant if he
abandoned the safe before pushing Kang.
She correctly argued that a robbery occurs when a thief applies force
“while they are trying to keep that owner from resisting the taking.†If defendant believed that the prosecutor
misstated the law, he was required to object.
(See Morales, supra, 25
Cal.4th at pp. 43-44.) “Moreover, we presume that the jury relied on
the instructions, not the arguments, in convicting defendant.†(Id.
at p. 47.)
Ultimately,
defendant’s argument is one of factual insufficiency. He argues that if the jury found that he
intended to abandon the safe before he pushed Kang, he could not have been
convicted of robbery. Yet if the jury
found that he pushed Kang with the intention of retaining possession of the
safe or escaping with the jewelry, his conviction would be proper. Based on the instructions and arguments of
both counsel, the jury here was “fully equipped to detect†that abandonment of
the safe before the application of force would not constitute a robbery. (Guiton, supra, 4 Cal.4th at p. 1129
Thus, reversal is not required as long as “a valid ground for the
verdict remains, absent an affirmative indication in the record that the
verdict actually did rest on the inadequate ground.†(Ibid.)
Here, after
hearing the evidence, instructions, and arguments of counsel, a reasonable jury
could have found, beyond a reasonable doubt, that defendant used force to
temporarily retain possession of the safe, not solely to facilitate his
escape. As the trial court pointed out,
if defendant’s sole intent was to abandon the safe and flee, he had no need to
come back into the house to push Kang. A
reasonable jury could have determined that defendant did not voluntarily
relinquish possession of the safe before he pushed Kang. The evidence supported a finding that
defendant intended to retake possession of the safe, thinking better of it only
when he realized it was too heavy to get away with quickly. Further, as defendant himself admits, the
jury could have based the robbery conviction on his taking of Williams’s
jewelry.
On the
record here, there is no affirmative indication that the jury’s verdict rested
upon the finding that defendant abandoned the safe before applying force on
Kang. (Guiton, supra, 4 Cal.4th
at p. 1129.) Thus, reversal is not required.
D. Robbery – Constructive
Possession
Defendant
also contends his robbery conviction must be reversed because there was
insufficient evidence that Kang had constructive possession of Williams’s
property. Specifically, defendant
contends that the record does not contain substantial evidence that Kang was
Williams’s employee, rather than an independent contractor.
“ ‘A
robbery cannot be committed against a person who is not in possession of the
property taken or retained. [Citation.] Possession may be actual or
constructive. [Citation.] “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
purposes of the robbery statute.â€
[Citation.] “ ‘[T]he theory of constructive possession has been used to
expand the concept of possession to include employees and others as robbery
victims.’ †[Citation.] [¶] .
. . [A]ll employees on duty have
constructive possession of their employer’s property and may be separate
victims of a robbery.’ [Citation.] In addition, ‘persons other than employees
may be robbery victims if they have a “ ‘special relationship’ with the owner
of the property such that the victim had authority or responsibility to protect
the stolen property on behalf of the owner.â€
[Citation.] Formulated another
way, the question is whether the prospective victim “may be expected to resist
the taking.†[Citation.]’ [Citation.]â€
(People v. McKinnon (2011) 52
Cal.4th 610, 687.)
Defendant
asserts that only true employees can have constructive possession of property,
and that independent contractors cannot, because only employees have the
requisite special relationship with the employer. For this proposition, defendant relies on
In Scott, the California
Supreme Court held that “all employees have constructive possession of the
employer’s property while on duty and thus may be separate victims of a robbery
of the employer’s business.†(
that “the employee’s relationship with his or her employer constitutes a
‘special relationship’ sufficient to establish the employee’s constructive
possession of the employer’s property during a robbery.†(Id.
at p. 754.)
Defendant
asserts that the “implication†of the
court’s holding in Scott “was that
the close working relationship between employer and employee is one that
automatically can be characterized as ‘special’ within the context of
constructive possession and robbery.â€
Defendant then jumps to the further conclusion that an independent
contractor does not have the requisite special relationship with the employer.
Defendant’s
claim is not supported by case law. In
several cases, independent contractors were found to have constructive
possession of property. In
Cal.App.4th 1345, security guards employed by a shopping mall had constructive
possession of property that was owned by one of the stores in the mall. (Id.
at p. 1350.) In People v. Gilbeaux (2003) 111 Cal.App.4th 515 (Gilbeaux), janitors employed by an independent cleaning service had
“a special relationship†with the store “that made them akin to employees,â€
since they were “part of the group of workers in charge of the premises at the
time of the robbery.†(
Contrary to
defendant’s claim, Scott does not
establish a distinction between employees and independent contractors. Rather, Scott
recognizes a distinction between persons who have a special relationship with
the actual property owner and persons who are simply “bystanders who have no
greater interest in the property than any other member of the general
population.†(Scott, supra, 45 Cal.4th at p. 758; see Sykes v. Superior Court (1994) 30 Cal.App.4th 479, 484 [security
guard employed by a neighboring business had no special relationship with
property owner; he was simply acting as “a neighbor and good citizenâ€].)
Thus, we
need not determine whether Kang’s actual employment relationship with Williams
was one of employee or independent contractor, but merely whether she had a
special relationship with Williams, in which she was “in charge of the premises
at the time of the robbery.†(
523; see People v. Downs (1952) 114
Cal.App.2d 758, 766 (Downs) [robbery
statute is “applicable to any servant or servants left in sole occupation of
the premises or particular part thereof by the employerâ€].)
Contrary to
defendant’s contention, the record does not need to contain specific evidence
of Kang’s working hours or the regularity with which she worked for Williams in
order to provide substantial evidence that Kang had a special relationship with
Williams at the time of the robbery.
(See People v. Neely (2009)
176 Cal.App.4th 787, 794 [although not an official employee with regular hours
or pay, victim’s “presence in the store performing services for the store,
coupled with his relationship to the store owner, provided substantial evidence
that he constructively possessed the store’s property for purposes of the
robbery statuteâ€].) Whether employee or
independent contractor, Kang was the caregiver for Williams, helping her with
household tasks that included personal care for Williams as well as directing
an apparent window washer to the rooms that could be cleaned. The record contains substantial evidence that
Kang was not a mere bystander (see Scott,
supra, 45 Cal.4th at p. 758) but a household servant with authority over
the premises. (See Gilbeaux, supra, 111 Cal.App.4th at p. 523; Downs, supra, 114 Cal.App.2d at p. 766.)
In sum, we
reject defendant’s claim that there was insufficient evidence that Kang had
constructive possession over Williams’s property.
E. Robbery – Caretaker
Instruction
Defendant
contends his robbery conviction must be reversed because the trial court
directed a verdict for the prosecution when it told the jury that “[a]
caretaker who is on duty has possession of the owner’s property.â€
1. Proceedings Below
When the
parties discussed the jury instruction for robbery, the prosecutor noted that
CALCRIM No. 1600 had an optional paragraph pertaining to constructive
possession of a store or business owner’s property. The optional paragraph provides: “A (store/ [or] business) (employee/
business) owner’s property.†(CALCRIM
No. 1600.)
The
prosecutor asked the trial court to fill in “caretaker†where the instruction
provided “a blank spot.†Trial counsel
stated, “I don’t think it’s inappropropriate to put ‘caretaker.’ I would
prefer ‘employee,’ but I can understand the request for ‘caretaker’ because
that’s what Mrs. Kang said she was.†The
trial court asked, “So you want ‘a caretaker who is on duty has possession of
the owner’s property,’ is that what you’re looking for?†The prosecutor responded, “Yes,†and trial
counsel did not object.
The trial
court later instructed the jury, “A caretaker who is on duty has possession of
the owner’s property.â€
2. Analysis
“Under
established law, instructional error relieving the prosecution of the burden of
proving beyond a reasonable doubt each element of the charged offense violates
the defendant’s rights under both the United States and California
Constitutions.†(People v. Flood (1998) 18 Cal.4th 470, 479-480 [error to instruct
jury that particular officers were “peace officers†in prosecution for evading
a peace officer].)
“[T]he
constitutional right to a jury trial means that ‘no matter how conclusive the
evidence, a trial court cannot directly inform the jury that an element of the
crime charged has been established.
Absent a stipulation by the defendant that an element is established or
is admitted, the trial court must submit that question to the jury.’ [Citations.]
‘ “The prohibition against directed verdicts ‘includes perforce
situations in which the judge’s instructions fall short of directing a guilty
verdict but which nevertheless have the effect of so doing by eliminating other
relevant considerations if the jury finds one fact to be true.’ [Citation.] ... ‘[N]o fact, not even an
undisputed fact, may be determined by the judge.’ [Citations.]â€
[Citation.]’ [Citations.] ‘[I]t matters not whether the issue in
question is one of fact or law. Due
process requires that it be submitted to the jury.’ [Citation.]
‘If a judge were permitted to instruct the jury on the basis of
assertedly “undisputed†evidence that a particular element had been established
as a matter of law, the right to a jury trial would become a hollow
guarantee.’ [Citations.]†(People
v. Yarbrough (2008) 169 Cal.App.4th 303, 315 (Yarbrough).)
Cases have
carefully distinguished between (a) instructions that tell the jury that
particular facts satisfy an element of the offense and (b) instructions that
allow the jury to determine whether such facts exist. For instance, in People v. Thorn (2009) 176 Cal.App.4th 255 (Thorn), the defendant took property from a car that was parked in a
carport underneath an apartment building.
The trial court added the following sentence to the burglary
instruction: “ ‘A carport that is
attached to an inhabited dwelling house is part of the inhabited dwelling
house.’ †(Id. at p. 266.) On appeal,
the defendant contended that this instruction directed a verdict on the element
of habitation, but the appellate court disagreed. The court explained that the jury still had
to make a number of findings in order to convict the defendant. Specifically, the jury could not return a
guilty verdict unless it found that the apartment complex was inhabited and
that the carport was attached to the inhabited structure. (Id.
at p. 268.) “[H]ad the jury determined
the apartment structure was not inhabited or the garage was not attached to it,
it would have been obligated to return a not guilty verdict on the first degree
burglary charge.†(Ibid.)
In
of carrying a loaded firearm in a public place.
(§ 12031, subd. (a)(1).) While
possessing the firearm, he had been part of a group “clustered near the
‘sidewalk area’ †in front of a driveway.
(Yarbrough, supra, 169
Cal.App.4th at p. 307.) In response to a
jury question, the trial court instructed the jury that “ ‘[t]he area in front
of a home, including a private driveway, is a public place if it is reasonably
accessible to the public without a barrier.’ â€
(Id. at p. 315.) Contrary to the defendant’s claim, this
instruction did not direct a verdict on the “public place†element of section
12031, subdivision (a)(1). “Instead, the
instruction left the jury with the task of making two essential factual
determinations based upon the evidence as a prerequisite to a guilty verdict on
count 2: first, that defendant was on the driveway; and second, that the
driveway was reasonably accessible to the public.†(Yarbrough,
supra, at p. 316.)
In the
instant case, the jury was told, “A caretaker who is on duty has possession of
the owner’s property.†The trial court
did not tell the jury that Kang was a caretaker or that she was on duty at the
time of the robbery. The jury still had
to make those determinations. Although
these elements were not subject to much dispute at trial, nevertheless they
were not conclusively established by the evidence. Had the jury determined that Kang was not a
caretaker and/or that she was not on duty at the time of the robbery, it would
have been obligated to return a not guilty verdict on that count. (See Thorn,
supra, 176 Cal.App.4th at p. 268.)
Thus, we find no instructional error.
F. Section 654
Defendant
contends that the trial court should not have separately punished the Williams
burglary and Kang robbery. He claims
that section 654 precludes multiple punishment because those two offenses were
committed pursuant to the same objective:
taking property from the Williams residence. For the same reason, he claims that the
restitution fine must be reduced.
1. Section 654 Principles
Section
654, subdivision (a) provides in relevant part: “An act or omission that is
punishable in different ways by different provisions of law shall be punished
under the provision that provides for the longest potential term of
imprisonment, but in no case shall the act or omission be punished under more
than one provision.â€
“The
purpose of section 654 is to prevent multiple punishment for a single act or
omission, even though the act or omission violates more than one statute and
thus constitutes more than one crime.
Although the distinct crimes may be charged in separate counts and may
result in multiple verdicts of guilt, the trial court may impose sentence for
only one offense – the one carrying the highest punishment. [Citation.]†(People v. Liu (1996) 46
Cal.App.4th 1119, 1135, fn. omitted.)
“Section 654 bars multiple punishment for an indivisible course of
conduct which violates more than one statute, and divisibility depends in turn
on the defendant’s intent: if all his
offenses were ‘incident to one objective,’ the defendant may be punished only
once. [Citation.]†(People v. James
(1977) 19 Cal.3d 99, 119.)
Whether
there was a single intent and objective within the meaning of section 654 is a
factual determination that must be upheld on appeal if it is supported by
substantial evidence. (People v.
Osband (1996) 13 Cal.4th 622, 730.)
2. Application of Section 654
in Burglary-Robbery Cases
Defendant
relies on two cases also involving burglary and robbery charges in which
section 654 required the stay of one count.
In People v. Le (2006) 136
Cal.App.4th 925 (Le), the defendant
was the driver in the burglary of a drugstore.
The store managers came out to the vehicle and struggled with the
defendant while trying to prevent him from driving away. The trial court separately punished the
burglary and robbery, but on appeal the People conceded that section 654
applied. This court found the concession
appropriate, since both offenses were committed pursuant to the objective of
stealing merchandise from the store. (
Likewise,
section 654 precluded separate sentences for burglary and robbery charges in
1023 (Guzman). In Guzman,
the defendant was one of a group who took a motorcycle from the victim’s
garage, then drove it away in a truck.
The victim followed the group and managed to block their vehicle. The defendant and others then assaulted the
victim, in response to his effort “to retain the motorcycle.†(Id.
at p. 1028.) Thus, “the burglary was
still in progress when [the defendant] committed robbery and both offenses were
committed pursuant to one objective and there was but a single continuous
course of conduct.†(
The People
rely on two cases involving section 654’s application to burglary and assault
convictions. In People v. Vidaurri (1980) 103 Cal.App.3d 450 (Vidaurri), the defendant
was stopped by two security guards in a parking lot, after he left a store with
two blouses. The defendant pulled a
knife and used it to assault the security guards as well as two other men in
the parking lot. Convicted of assaulting
each of the four victims as well as burglary of the store, the defendant
claimed that section 654 precluded separate punishment for the burglary. The court held that multiple punishment was
permissible because “the assaults were committed in response to the unforeseen
circumstance[,] the approach of the Sears security guards.†(Vidaurri,
supra, at pp. 465-466.)
In People v. McGahuey (1981) 121 Cal.App.3d 524 (McGahuey), the victim
awoke after the defendant entered her home and stole money from her wallet. As she called the police, the defendant threw
a hatchet through a window, “narrowly missing her.†(Id.
at p. 528.) On appeal, he claimed his
burglary and assault convictions were incident to a single intent and
objective. The court disagreed,
explaining that the evidence supported a finding that the burglary was complete
when the defendant left the victim’s home and that “[h]e then formed the intent
to prevent [the victim] from calling the police by throwing the hatchet through
the window at her.†(
One court
has addressed “the apparent distinction between†the burglary/robbery cases (
v. Perry (2007) 154 Cal.App.4th 1521, 1526 (Perry).) The
between the intent necessarily reflected in convictions of robbery and
assault.†(Ibid.) “Assault reflects an
intent to perform an act that, by its nature, will probably and directly result
in the application of physical force to another person. [Citation.]
Robbery, while involving the use of force or fear, reflects an intent to
deprive the victim of property. Accordingly,
a conviction of assault committed during an escape with property taken during a
burglary reflects, in essence, an intent to apply, attempt to apply, or
threaten to apply force to a person, rather an intent to steal property. The objective of such an assault generally
will be to deter, interrupt or put a stop to a pursuit or other effort to
capture the defendant and any property taken during the burglary. However, if property is taken during a
burglary and a robbery pertaining to the same property is committed during the
escape, the objective is still essentially to steal the property. Admittedly, an additional objective of
preventing the victim or another person from taking back the property generally
will exist, but may be incidental to, rather than independent of, the objective
of stealing the property.†(
court further acknowledged that in some cases, the degree of force applied
might show a separate intent. (
In
inside his car. The defendant jumped out
of the car, holding the car stereo and a screwdriver or ice pick. He ran, but the victim chased him. During the chase, the defendant faced the
victim, holding the weapon, in a “ ‘fighting stance,’ †a number of times. (Perry,
supra, 154 Cal.App.4th at p. 1524.)
The Perry court found that
section 654 prohibited multiple punishment for the burglary and robbery
explaining that the objective of both offenses was the theft of the car
stereo. “Although the robbery entailed a
different type of action, i.e., the implied threat to use the screwdriver or
ice pick, the underlying objective was necessarily identical: to steal [the] car stereo.†(Id.
at p. 1527.) Although the defendant may
also have had “wanted to evade capture,†his attempt to escape “was merely
incidental to, or the means of completing the accomplishment of the objective
of taking the stereo.†(
Here,
defendant was convicted of burglary and robbery, not assault. He was also convicted of false imprisonment,
but the parties agreed that section 654 prohibited separate punishment for that
count. The trial court made no specific
factual findings with respect to defendant’s objective in using force on Kang. However, as discussed above, in convicting
defendant of robbery, the jury necessarily found that defendant used force to
prevent Kang from retaining the safe and/or jewelry (the objects of the
burglary). Even if defendant also wanted
to prevent Kang from calling the police immediately, his underlying objective
was still the same: to enable him to
maintain possession of the safe and/or jewelry.
Thus, defendant should not have been separately punished for the robbery
and the burglary. Because the burglary
“provides for the longest potential term of imprisonment,†the robbery count
should have been stayed pursuant to section 654.
3. Application of Section 654
to Restitution Fines
At
sentencing, the trial court specified that it was imposing a $6,600 restitution
fine (§ 1202.4, subd. (b)) calculated by multiplying $200 by 11 years and by
the number of convictions for which it was imposing sentence (three). It imposed a parole revocation fine
(§ 1202.45) in the same amount.
Defendant contends that under section 654, both fines should be reduced
to $4,000.
In
this court held “that the section 654 ban on multiple punishments is violated
when the trial court considers a felony conviction for which the sentence
should have been stayed pursuant to section 654 as part of the court's
calculation of the restitution fine under the formula provided by
section 1202.4, subdivision (b)(2).â€
Here, under
the principles established in Le, we
agree that defendant’s restitution fine and parole revocation fine should be
reduced to $4,000 each because the robbery should have been stayed pursuant to
section 654.
disposition
The
judgment is ordered modified to provide that the punishment for the conviction
of robbery (count 1; § 211) is ordered stayed pursuant to Penal Code
section 654. The judgment is
further ordered modified to provide that the restitution fine imposed pursuant
to Penal Code section 1202.4, subdivision (b) is $4,000, and that the parole
revocation fine imposed pursuant to Penal Code section 1202.45 is $4,000. As so modified, the judgment is
affirmed. The superior court is ordered
to send a certified copy of the corrected abstract of judgment to the
Department of Corrections and Rehabilitation.
___________________________________________
Bamattre-Manoukian, J.
WE CONCUR:
__________________________
ELIA, ACTING P.J.
__________________________
Márquez,
J.
name="_ftn1" title=""> [1]
Unspecified section references are to the Penal Code.
As given, CALCRIM No. 225 provided: “The
People must prove not only that the defendant did the acts charged, but also
that he acted with a particular intent or mental state. The instruction for each crime explains the
intent or mental state required.
[¶] An intent or mental state may
be proved by circumstantial evidence.
Before you may rely on circumstantial evidence to conclude that a fact
necessary to find the defendant guilty has been proved, you must be convinced
that the People have proved each fact essential to that conclusion beyond a
reasonable doubt. [¶] Also, before you may rely on circumstantial
evidence to conclude that the defendant had the required intent or mental
state, you must be convinced that the only reasonable conclusion supported by
the circumstantial evidence is that the defendant had the required intent or
mental state. [¶] If you can draw two or more reasonable
conclusions from the circumstantial evidence and one of those reasonable
conclusions supports a finding that the defendant did have the required intent
or mental state and another reasonable conclusion supports a finding that the
defendant did not, you must conclude that the required intent or mental state
was not proved by the circumstantial evidence.
[¶] However, when considering
circumstantial evidence, you must accept only reasonable conclusions and reject
any that are unreasonable.â€
