P. v. Hassan

Filed 10/4/07 P. v. Hassan CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Defendant was convicted following a jury trial of second degree robbery (Pen. Code,  211),[1] with an associated enhancement that he personally used a knife in the commission of the offense (12022, subd. (b)(1)). Defendant admitted allegations that he suffered a prior serious felony conviction ( 667, subd. (a)(1)) and served a prior prison term ( 667.5, subd. (b)). The trial court found that the alleged prior felony conviction was a strike ( 1170.12, subd. (c)(1), 667, subd. (e)(1)). Defendant was subsequently sentenced to an aggregate term of 16 years in state prison. In this appeal he claims that the evidence does not support the finding on the knife enhancement, and the court violated his due process and jury trial rights under Blakely v. Washington (2004) 542 U.S. 296 (Blakely), and Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856, 127 S.Ct. 856](Cunningham), by imposing an upper term on count 1. We conclude that the knife use enhancement must be reversed for lack of supporting evidence, but no prejudicial sentencing error occurred in the imposition of an upper term on count 1.

STATEMENT OF FACTS

On the afternoon of August 25, 2005, defendant drove a van owned by his brother to a liquor store on Foothill Boulevard in Oakland, where he encountered his friend Esmir, who lived in the neighborhood.[2] Defendant bought a beer at the liquor store and unsuccessfully attempted to obtain change from Esmir and others in the area. He then told Esmir that he needed money. Esmir advised defendant that he had none, whereupon defendant asked Esmir if he wanted to ride with him. Esmir agreed, but before he entered the van he retrieved a yellow-handled fishing knife he kept for protection under a nearby door. When Esmir got into the front passenger seat of the van he showed the knife to defendant and placed it on the floor between the driver and passenger seats.

Defendant drove the van to 35th Avenue and Allendale, where he parked behind Renes Oriental Market. He said, Im about to rob the store, and asked Esmir for the knife. Defendant was laughing, so Esmir thought perhaps he was not really serious about it. Esmir handed defendant the knife. Defendant then went into the store while Esmir waited in the van.

Esmir became concerned that defendant was really thinking he was going to rob the store. He moved to the drivers seat, started the van, and made a U-turn to get out of there.

Meanwhile, defendant, dressed entirely in black and wearing a black beanie, was inside Renes Oriental Market, where he asked the cashier, Omer Alguhem, if he sold beer and wine. When Alguhem said no, defendant immediately left the store.

As Esmir turned the van around, defendant appeared in the street and angrily told Esmir to return to the same spot he had parked before. Esmir made another U-turn and parked where defendant directed. From inside the store, Alguhem observed a van with a broken rear window covered by cardboard make a U-turn on Allendale and park. Esmir remained in the drivers seat of the van.

According to Alguhem, two or three minutes after defendant left the store, he returned with an African-American man. The two men approached Alguhem and ordered him to the floor. Defendant stood directly in front of Alguhem. From about two feet away, defendant held a silver gun in front of the victims face and warned him, Dont look at me or Ill shoot. Alguhem feared for his life. He laid on the floor behind the cash register with his face toward Allendale Street. Defendant took bills and rolls of quarters in the amount of $400 to $500 from the cash register. The other man did not speak, but held a gold-colored gun on Alguhem.

Defendant returned to the van and ordered Esmir to go. Esmir testified that he did not then see his knife in defendants possession.

Two or three minutes after the two men left the store, Alguhem got up from the floor and called the police. He gave a description of the robbers and the van, and stated that the van drove away from the store east on Allendale.

Police officers arrived at the store within three minutes. Alguhem told them what happened, and the officers made some calls. Alguhem described the two suspects for the police: one was a male Black, approximately six foot, muscular build, wearing a white T-shirt and blue jeans; the other was a male Hispanic, thin, approximately five foot seven, wearing a black T-shirt, black beanie, and blue jeans. Both were carrying revolvers; one gold and one silver.

As directed by defendant from the front passenger seat, Esmir drove the van away from Renes Oriental Market to a gas station on High Street near Fremont High School. When they got out of the van defendant showed Esmir a wad of bills that he counted. Esmir also thought he saw defendant put the knife in the back of the van after they reached the gas station on High Street. Defendant told Esmir that he robbed the liquor store. They bought gas, cigarettes and a soft drink, and defendant gave Esmir a total of $29 in bills. Defendant placed the remainder of the money in a glove compartment between the passenger and driver seats.

From the gas station, Esmir drove the van to Foothill Boulevard and Fairfax Avenue in Oakland, where defendant told Esmir to stop at Isaacs liquor store. Thinking defendant was going to rob it, Esmir declined to stop. Instead, he drove on to Bancroft Avenue, where defendant directed him to park in front of a house. Defendant went to the front door and talked to some Mexican guy with long hair. They carried on an animated conversation for about two minutes, then shook hands before defendant returned to the van.

From there, Esmir drove the van on Bancroft to 73rd Avenue, where they were detained by the police in a parking lot at Churchs Chicken. Before Esmir left the van as ordered by the police, defendant told him, Dont say nothing. Esmir and defendant were apprehended and placed in handcuffs.

Alguhem was transported to the detention scene to look at some possible suspects on Bancroft Avenue. Alguhem was advised that the police would bring out the suspects one by one. He was also told to keep an open mind, and that it may or may not be the suspect. Alguhem first looked at Esmir and said, I never saw him. He then took a good look at defendant and said, yeah, thats the guy who robbed me. He was specific and positive of his identification of defendant.

An ensuing search of the van resulted in seizure of a knife of 14 and one-half inches in length inside a gold sheath found on the floorboard between the driver and passenger seats, along with two rolls of coins and paper currency in the amount of $171 in the center console. Cash in the amount of $18 was seized from defendant; $39 was seized from Esmir.

After his arrest, Esmir received two telephone calls from professed friends of defendant during which he was advised not to say anything and not to come to court. Esmirs father intercepted a letter sent to Esmir from Said and last name Ahmed which told him not to worry, and that someone would contact him. The last line of the letter stated whats going to happen with the snitches in our hood. Esmirs father became very angry when he read the letter, and threw it away without showing it to his son.

DISCUSSION

I. The Evidence in Support of the Knife Use Enhancement.

Appellant complains that the knife use enhancement finding must be reversed for lack of supporting evidence. He argues that the victim of the robbery never saw a knife at any time in defendants possession during the commission of the offense. Rather, defendant points out, the victim testified without dispute or contradiction that he was threatened by a silver revolver held in defendants hand, not a knife. He adds that the victim did not perceive that he was being threatened with a knife nor feared being harmed by one, as required to prove a section 12022, subdivision (b)(1) enhancement.

Section 12022, subdivision (b), states, in pertinent part: Any person who personally uses a deadly or dangerous weapon in the commission of a felony . . . shall be punished by an additional and consecutive term of imprisonment in the state prison for one year . . . . The statute does not define deadly or dangerous weapon. To find a section 12022, subdivision (b) allegation true, the fact finder must conclude that the defendant himself intentionally displayed an instrument capable of inflicting great bodily injury or death in a menacing manner during the crime. (In re Bartholomew D. (2005) 131 Cal.App.4th 317, 322; see also People v. Wims (1995) 10 Cal.4th 293, 302303.)   [T]here need not be conduct which actually produces harm but only conduct which produces a fear of harm or force by means or display of a [weapon] in aiding the commission of one of the specified felonies. Use means, among other things, to carry out a purpose or action by means of, to make instrumental to an end or process, and to apply to advantage. [Citation.] . . .  (Alvarado v. Superior Court (2007) 146 Cal.App.4th 993, 1001, citing People v. Bland (1995) 10 Cal.4th 991, 997.) Behaviors which justify a use finding include the mere display of the weapon in a menacing or threatening way. (People v. Brookins (1989) 215 Cal.App.3d 1297, 1304.)

In assessing the evidence to support the finding on the use enhancement we are guided by the standard rules on sufficiency of the evidence in a criminal case. (People v. Howard (1995) 33 Cal.App.4th 1407, 1417.) [T]he reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidenceevidence that is reasonable, credible and of solid valuesuch that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053; see also People v. Farnam (2002) 28 Cal.4th 107, 143.) And on appeal, we must view the facts in the light most favorable to the judgment, drawing all reasonable inferences in its support. (People v. Cochran (2002) 103 Cal.App.4th 8, 13; see also People v. Bento (1998) 65 Cal.App.4th 179, 193; People v. Hayes (1992) 3 Cal.App.4th 1238, 12491250.) The question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the elements of the underlying enhancement beyond a reasonable doubt. (People v. Alvarez (1996) 14 Cal.4th 155, 225, italics omitted.) In evaluating the sufficiency of evidence, the relevant question on appeal is not whether we are convinced beyond a reasonable doubt [citation], but whether  any rational trier of fact  could have been so persuaded [citation]. (People v. Hernandez (2003) 30 Cal.4th 835, 861.)

Although the victims testimony convincingly proves that defendant threatened him with a gun in the commission of a robbery, he was not charged with an enhancement under section 12022, subdivision (b) based on use of a firearm. The information charged defendant with personal use of a deadly and dangerous weapon, to wit: KNIFE, within the meaning of section 12022, subdivision (b)(1) and the jury specifically found this to be true. The prosecutor did not claim that defendant used a gun to commit the robbery of Alguhem, but rather consistently argued that he used a knife.

The prosecution adduced evidence that defendant may have possessed a knife when he first entered Renes Oriental Market. Esmir testified that he was asked for the knife by defendant before he left the van. Defendant also proclaimed that he was about to commit a robbery. Defendant then entered the store alone, did nothing more than ask the cashier about beer and wine, and immediately left without committing any crime.

After defendant spoke with Esmir in the van briefly, he returned to the store with a companion, whereupon the robbery was committed. The victim never saw a knife while the robbery was in progress, and testified unequivocally that both robbers threatened to shoot him with guns. We also know from the record that a knife was found on the floorboard of the van when defendant and Esmir were subsequently detained, but nothing in the record indicates that it was in any way used in the commission of the offense.

Any inference of defendants use of a knife in the commission of the robbery falls into the realm of speculation, and in fact is inconsistent with the victims testimony. Evidence is substantial only if it  reasonably inspires confidence and is of solid value.   [Citation.] (People v. Cluff (2001) 87 Cal.App.4th 991, 1002.) By definition, substantial evidence requires evidence and not mere speculation. In any given case, one may speculate about any number of scenarios that may have occurred . . . . A reasonable inference, however, may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. . . . A finding of fact must be an inference drawn from evidence rather than . . . a mere speculation as to probabilities without evidence. [Citation.] (People v. Thomas (1992) 2 Cal.4th 489, 545 (conc. & dis. opn. of Mosk, J.); see also People v. Cluff, supra, at p. 1002.) Defendants possession of a knife before and after the offense does not constitute solid evidence that he displayed the knife in a menacing manner during the crime, particularly where the victim indisputably testified that the weapon defendant used to threaten him was a gun.

Even if we assume that defendant was also in possession of the knife during the commission of the robbery, by   employing the term uses instead of while armed the Legislature requires something more than merely being armed. . . .   (Alvarado v. Superior Court, supra, 146 Cal.App.4th 993, 1001, citing People v. Bland, supra, 10 Cal.4th 991, 997.) Use of a weapon within the meaning of section 12022   connotes something more than a bare potential for use . . . .   (Alvarado v. Superior Court, supra, at p. 1001, citing People v. Bland, supra, at p. 997; see also People v. Arzate (2003) 114 Cal.App.4th 390, 399; People v. Camacho (1993) 19 Cal.App.4th 1737, 1747.) Without any evidence that defendant made threats with the knife or that the victim was even made aware of the presence of a knife, we cannot sustain the finding of use of a knife. (People v. James (1989) 208 Cal.App.3d 1155, 1163.)

Further, the enhancement finding cannot stand on the basis of evidence, compelling as it may be, that defendant personally used a gun in the commission of the robbery. A finding of a section 12022 enhancement for firearm use would materially vary from the charged enhancement for knife use that was found by the jury.[3] The defendant is entitled to notice that the People are seeking enhanced punishment. ( 1170.1, subd. (f); People v. Neal (1984) 159 Cal.App.3d 69, 73 [205 Cal.Rptr. 384].) When the facts supporting such enhancement are neither alleged nor found by the trier of fact, the enhancement cannot stand. (People v. Wandick (1991) 227 Cal.App.3d 918, 926.) We therefore conclude that the consecutive one-year term for the knife use enhancement must be reversed. (People v. James, supra, 208 Cal.App.3d 1155, 1163.)

II. The Sentence for the Robbery Conviction.

Defendant claims in his supplemental brief that the imposition of a five-year upper term sentence for robbery which was then doubled violated his jury trial and due process rights as elucidated in Blakely v. Washington, supra, 542 U.S. 296, 301 (Blakely), and Cunningham, supra, 127 S.Ct. 856, 866. He argues that the trial courts findings of aggravating factors other than a prior conviction which were not found to be true beyond a reasonable doubt by the jury requires that we strike the upper term sentence for robbery.

In Blakely, the United States Supreme Court revisited the rule articulated in Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi), that  [o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.  (Blakely, supra, 542 U.S. 296, 301, italics added.) The court found that an exceptional sentence beyond the standard range sentence for the offense imposed by a trial judge under Washingtons determinate sentencing based upon several specified facts found by the trial judge violated the Apprendi rule that the jury verdict alone must authorize the sentence. (Blakely, supra, at p. 305, fn. 8; see also People v. Riskin (2006) 143 Cal.App.4th 234, 241; People v. Linder (2006) 139 Cal.App.4th 75, 8384.)

The California Determinate Sentencing Law (DSL) was temporarily spared from the reach of Blakely by the decision in People v. Black (2005) 35 Cal.4th 1238 (Black I), where the California Supreme Court decided that a defendants constitutional right to a jury trial is not violated by the trial courts imposition of the upper term sentence for a conviction or by its imposition of consecutive sentences upon two or more convictions. (Id. at p. 1264.) After defendant submitted his opening brief, however, in Cunningham, supra, 166 L.Ed.2d 856 the United States Supreme Court examined the California determinate sentencing law in light of Blakely. The court in Cunningham disagreed with the Black I decision, and concluded: In accord with Blakely, therefore, the middle term prescribed in Californias statutes, not the upper term, is the relevant statutory maximum. [Blakely, supra, 542 U.S. 296, 303 ([T]he statutory maximum for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. (Emphasis in original.).).] Because circumstances in aggravation are found by the judge, not the jury, and need only be established by a preponderance of the evidence, not beyond a reasonable doubt, [citation], the DSL violates Apprendis bright-line rule: Except for a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. [Apprendi, supra, 530 U.S. 466, 490.] (Cunningham, supra, 166 L.Ed.2d 856, 873.) The court summarized: Contrary to the Black courts holding, our decisions from Apprendi to Booker point to the middle term specified in Californias statutes, not the upper term, as the relevant statutory maximum. Because the DSL authorizes the judge, not the jury, to find the facts permitting an upper term sentence, the system cannot withstand measurement against our Sixth Amendment precedent. (Cunningham, supra, at p. 876.)

A. The Claim of Forfeiture.

The Attorney General submits that defendant forfeited his challenge to the imposition of an upper term under Blakely and Cunningham by failing to object on that basis at trial. The concise answer to the Attorney Generals forfeiture argument is provided by very recent authority from the California Supreme Court in People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval). The court in Sandoval, supra, at page 837, footnote 4, concluded that where, as here, the trial and the sentencing proceedings took place after the high courts decision in Blakely and after this courts decision in Black I, an objection in the trial court would have been futile, and therefore the claim was not forfeited.

B.The Imposition of an Upper Term.

We turn to the merits of the contention that Blakely error was committed by the trial courts imposition of an upper term on count 1 based upon the following articulated factors: defendant persuaded a minor to participate in the crime; he threatened the minor with harm if he testified; and his violent conduct demonstrated he is a danger to the community. Defendant maintains that [a]s in Cunningham, the sentencing courts selection of the upper term for the robbery conviction was based entirely upon factors relating to the purported manner in which he committed this particular offense. Without an admission or jury finding on any of those factors relating to the offense, defendant argues that his sentence should be reversed on grounds that the imposition of the aggravated term in this case violated both his Sixth Amendment and due process rights.

Again, recent pronouncements by the California Supreme Court are determinative of this issue. The court in Sandoval observed that the United States Supreme Court has recognized two exceptions to a defendants Sixth Amendment right to a jury trial on an aggravating fact that renders him or her eligible for a sentence above the statutory maximum. First, a fact admitted by the defendant may be used to increase his or her sentence beyond the maximum authorized by the jurys verdict. [Citation.] Second, the right to jury trial and the requirement of proof beyond a reasonable doubt do not apply to the aggravating fact of a prior conviction. (Sandoval, supra, 41 Cal.4th 825, 836837.) In People v. Black (2007) 41 Cal.4th 799 (Black II), the court declared that as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional factfinding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendants right to jury trial. (Id., at p. 812, italics omitted.) The court added: Under Californias determinate sentencing system, the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term. [Citation.] Therefore, if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not legally entitled to the middle term sentence, and the upper term sentence is the statutory maximum.  (Id., at p. 813.) From this premise the court reasoned: It follows that imposition of the upper term does not infringe upon the defendants constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendants record of prior convictions. (Id., at p. 816, italics added.)

Moreover, the court in Black II decided that the prior conviction exception to the right to a jury trial extends to any aggravating circumstance related to the defendants criminal history or recidivism that may be determined by examining the records of the prior convictions. (Black II, supra, 41 Cal.4th 799, 818, 819.) Prior convictions listed in the probation report that were both numerous and of increasing seriousness were also found legally sufficient by the court in Black II to render the defendant eligible for the upper term sentence as an aggravating circumstance without violation of the right to a jury trial under Blakely. (Ibid.) Here, as in Black II, defendants record of prior convictions, although not expressly mentioned by the trial court in support of the sentence choice, justified the selection of the upper term as the statutory maximum sentence. Thus, despite improper reliance upon some aggravating circumstances by the trial court, we must follow the authority of the California Supreme Courts decision in Black II to find that imposition of the upper term did not infringe upon the defendants constitutional right to jury trial. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455; People v. Sullivan (2007) 151 Cal.App.4th 524, 563; People v. Scott (2000) 85 Cal.App.4th 905, 915916.)

DISPOSITION

The finding that defendant personally used a knife in the commission of the robbery is reversed; the one-year enhancement imposed pursuant to section 12022 is vacated. The clerk of the superior court is directed to modify the abstract of judgment to delete the imposition of the one-year enhancement pursuant to section 12022, subdivision (b)(1); the clerk is to then forward a copy of the amended abstract of judgment to the California Department of Corrections. In all other respects the judgment is affirmed.

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[1] All further statutory references are to the Penal Code.

[2] Esmir was a minor at the time the offenses were committed, so we will refer to him by his first name only.

[3]  The test of the materiality of variance in an information is whether the pleading so fully and correctly informs a defendant of the offense with which he is charged that, taking into account the proof which is introduced against him, he is not misled in making his defense. [Citation.] (People v. Maury (2003) 30 Cal.4th 342, 427; see also People v. White (2005) 133 Cal.App.4th 473, 482.)