Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F03604
NICHOLSON, J.
Defendants Roosevelt Heng, Kevin Anthony Morris, and Tiante Dion Scott committed a brutal home invasion robbery cut short by their own ineptitude. In their primary contention, they disclaim responsibility for their robbery convictions as related to two of their four victims. We reject these meritless claims.
A jury convicted Heng, Morris, and Scott of four counts of first degree robbery in concert (Pen. Code, §§ 211, 213, subd. (a)(1)(A) -- counts one through four; further section references are to this code unless otherwise indicated) and sustained allegations for personally using a firearm (§ 12022.53, subd. (b)) and being armed in the commission of the offenses (§ 12022, subd. (a)(1)). The jury also convicted Heng on four counts of assault with a semiautomatic firearm (§ 245, subd. (b) -- counts five through eight) with enhancements for personal use of a firearm (§ 12022.5, subds. (a) and (d)) and personally inflicting great bodily injury (§ 12022.7, subd. (a)), and convicted defendant Scott of possession of a firearm by a felon (§ 12021, subd. (a)(1) -- count nine).
Scott admitted a prior prison term allegation. The court sentenced Heng to a 40-year term, Scott to a 36-year term, and Morris to a 35-year term.
On appeal, the defendants jointly contend there is insufficient evidence to support two of the robbery convictions and their upper term sentences violate the holding in Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856] (Cunningham, while Morris separately contends there is insufficient evidence to support one of the section 12022.53 enhancements. We affirm the judgment.
BACKGROUND
On April 24, 2006, Canh Van Le, age 78; his 72-year-old wife Nhan Dang; their 32-year-old son Huyen Le; and their 20-year-old granddaughter (Huyen’s niece) Truc Anh Le lived together in a South Sacramento residence. The doorbell rang after 1:00 p.m. and Nhan answered to find a young Black man asking her questions. She did not speak English, so Nhan asked her granddaughter Truc for help.
Truc, who understood only a little English, went upstairs to get her English-speaking Uncle Huyen, but noticed she was being followed by a man with a gun. Two Black men and one Hispanic man had pushed the door open and entered the house. The victims described one of the Black robbers as short and thin while the other as big and tall. In a field identification, Truc and Huyen identified Scott as the large Black robber and Heng as the Hispanic robber. Morris is five feet five inches tall and weighed 132 pounds while Scott is five feet 10 inches tall and weighed 235 pounds. While neither Truc nor Huyen could identify Morris in a field identification, at trial all four of the victims identified the defendants as the robbers.
Truc knocked on the door of Huyen’s upstairs bedroom and told him robbers were in the house. Huyen opened the door to let her enter and call 911. He closed the door, but Morris and Scott broke the door down and entered the room. Scott and Morris, both armed, told Truc to put the phone down. Scott eventually left the room to check the rest of the upstairs.
Morris remained in the room and pointed a gun at Huyen’s head. Canh entered and threw himself on Huyen to keep his son from being shot. Huyen, Canh, and Truc were taken downstairs to join Nhan.
All four victims were tied up and made to lie face down next to each other. Heng took a pistol from Morris and questioned Huyen about whether there was any money in the house. When Huyen replied they had no money Heng said, “You Asian punk, you know we hear -- somebody told us you have the money. That’s why -- what we come here for. And if you don’t tell me the money, I’m gonna kill your dad, your mom and I gonna rape your niece. Is that what you want?” (Sic.)
Huyen pleaded with Heng. Heng asked Huyen who owned the car parked in front of the house. Huyen lied, telling Heng it was his brother’s car, and that he had no wallet, having left it in his car. Heng hit Huyen in the head three times with the gun, asking him where the money was between strikes. Heng then did the same to Huyen’s elderly parents, repeatedly striking them in the head with his gun, each time asking Huyen to look at the firearm before he struck them.
Heng told Huyen he was going to rape Truc “right now” and took off his shirt. He chambered a bullet from the magazine by pulling the slide back, put the gun to Truc’s head, telling her, “Do you feel it?” and then slowly moved the weapon down her back and to her buttocks.
Fortunately, the robbers had left their stolen SUV running in front of the house. Sacramento police officers were dispatched to the home to investigate the suspicious vehicle. Before Heng could do anything more to Truc, one of the other robbers exclaimed from upstairs, “Hey, there are cops outside. There are police outside,” which caused all of the robbers to run out of the house.
Heng was apprehended by the police officers as he tried to leave through the back door. Morris and Scott fled by jumping to the roof of the house next door before going back to the ground, where they were chased by the police on foot and separately caught.
The robbers took credit cards and $1,500 in cash belonging to Canh and Nhan. Canh kept these in a suitcase reserved for special documents hidden in his bedroom closet. The money was for the rent on the family’s house.
Officers found a nine-millimeter Beretta semiautomatic handgun and a BB gun at the residence. Cash in the amount of $950 was found on Scott. The stolen credit cards were found on Morris. The money was folded in $100 increments, just as Canh does.
DISCUSSION
I
Defendants make two claims of insufficient evidence. All three defendants jointly contend there is insufficient evidence to support the robbery convictions for the counts involving Huyen and Truc, counts three and four, while Morris separately contends there is insufficient evidence to support the section 12022.53 enhancement in count two, the robbery of Nhan. We disagree with both claims.
A.
Defendants argue they cannot be convicted of robbing Huyen and Truc because the stolen credits cards and money only belonged to Canh and Nhan.
In determining the sufficiency of the evidence, we ask “‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ [Citation.]” (People v. Hatch (2000) 22 Cal.4th 260, 272, italics omitted.) We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
“Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” (§ 211.) California follows “the traditional approach that limits victims of robbery to those persons in either actual or constructive possession of the property taken.” (People v. Nguyen (2000) 24 Cal.4th 756, 764.) “‘Robbery is an offense against the person; thus a store employee may be the victim of a robbery even though he is not its owner and not at the moment in immediate control of the stolen property.’ [Citation.]” (People v. Miller (1977) 18 Cal.3d 873, 880.) Business employees “have sufficient representative capacity to their employer so as to be in possession of property stolen from the business owner.” (People v. Jones (2000) 82 Cal.App.4th 485, 491.) Likewise, a family member acts in a representative capacity over property belonging to other family members.
In People v. Gordon (1982) 136 Cal.App.3d 519 (Gordon), the defendants entered a residence by ruse, threatened a couple with a firearm, and took drugs and money belonging to the couple’s absent adult son. (Id. at pp. 523-524.) The appellate court noted neither parent physically possessed the items taken nor knew about the marijuana or money, and the only evidence to support a finding of possession was the couple’s ownership and residence in the home where the crime occurred. (Id. at p. 529.) The court upheld the jury’s determination the parents were robbery victims who possessed their son’s items for purposes of the robbery statute. (Ibid.) The court noted various individuals have been designated as victims in a robbery such as a purchasing agent in charge of payroll, store clerks, barmaids, janitors in sole occupation of premises, watchmen, and gas station attendants. (Ibid.) “Clearly, if those individuals . . . were responsible for the protection and preservation of the property entrusted to them, parents have at least the same responsibility to protect goods belonging to their son who resides with them in their home.” (Ibid.)
There was ample evidence for the jury to find that Huyen and Truc had a responsibility to protect the money and credit cards of their parents and grandparents. Defendants stole the family’s rent money. Indeed, all four victims were forced to the ground next to each other and serially threatened by Heng in an effort to locate the family’s valuables. Huyen was pistol-whipped and led to believe he would be shot if he did not tell Heng where the money was located. He was then forced to watch his elderly parents being beaten in another unsuccessful attempt to get him to reveal the location of the money. In a last attempt to get the family’s money, Truc was threatened with rape, with the timely arrival of the police foreclosing an even greater tragedy. Taking the entire incident into account, all four victims were equally threatened and equally brutalized, and the stolen money was intended for the family’s general welfare.
All the foregoing separates Huyen and Truc from the Good Samaritan or casual business visitor found not to constructively possess the stolen property. (See, e.g., Sykes v. Superior Court (1994) 30 Cal.App.4th 479, 480-481 [security guard employed at different store not in constructive possession of property]; People v. Nguyen, supra, 24 Cal.4th at p. 764 [visitor at business not in constructive possession of property taken from business and its employees].) Although the victims in Gordon were parents rather than children, Huyen and Truc are adults, fully capable of protecting the property of the elderly Canh and Nhan. Moreover, defendants made no distinction between the four victims in their impositions on each as they sought the location of the money and other valuables. Having been personally and directly victimized by three robbers, the defendants, and holding a critical interest and shared responsibility in keeping the family’s rent money, Truc and Huyen were in constructive possession of the stolen $1,500.
B.
Section 12022.53, subdivision (b), provides: “Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), personally uses a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 10 years. The firearm need not be operable or loaded for this enhancement to apply.” Morris claims there is insufficient evidence to support the section 12022.53 enhancement for his conviction in count two because there is no substantial evidence that Nhan knew he possessed a firearm.
When Nhan answered the door she saw Scott was armed with a firearm. She saw Scott and Morris go upstairs after her granddaughter Truc while Heng pushed her to the ground and tied her up. When she knocked on her uncle’s door and cried for help, Truc said, “There are robbers and they have guns.” Nhan testified that she heard her granddaughter say the two robbers upstairs had guns.
Nhan also testified that as she “kneeled down, the young Black man run back and forth and use the gun, threaten my son to shoot if he doesn’t tell him where the money is.” According to Nhan, this was the “short, skinny” Black man, clearly referring to the five foot five inch, 132-pound Morris.
As there is substantial evidence Nhan knew Morris was armed, we need not address Morris’s contention that the victim must know the defendant is armed in order to support the enhancement.
II
Defendants contend their upper term sentences must be vacated as they violate the Sixth and Fourteenth Amendments to the United States Constitution in light of Cunningham, supra, 549 U.S. 270 [166 L.Ed.2d 856]. Finding any Cunningham error harmless, we disagree.
The United States Supreme Court held in Cunningham, supra, 549 U.S. at page ___ [166 L.Ed.2d at p. 873] that under California’s determinate sentencing law, the middle term is the statutory maximum which a judge may impose solely based on the facts reflected in the jury verdict or admitted by the defendant. Thus, except for a prior conviction, any fact that increases the penalty for a crime beyond the middle term must be submitted to the jury and proved beyond a reasonable doubt. (Ibid.)
Applying Cunningham, People v. Black (2007) 41 Cal.4th 799 (Black II) held 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 [v. New Jersey (2000) 530 U.S. 466 (147 L.Ed.2d 435)] and its progeny, any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial.” (Id. at p. 812, original italics.) Therefore, “imposition of the upper term does not infringe upon the defendant’s 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 defendant’s record of prior convictions.” (Id. at p. 816.)
Here, the defendants contend the trial court violated their rights under Cunningham by imposing the upper term sentences for count one for Morris and Scott, and counts one through five for Heng. For the reasons that follow, we disagree with Heng and Scott’s contentions, but find merit in Morris’s while concluding it is harmless beyond a reasonable doubt.
A.
In sentencing Heng to upper terms on counts one through five, the court relied on the following aggravating factors: the crimes involved great violence and other acts disclosed a high degree of cruelty; they were carried out in a manner showing planning, sophistication, or professionalism; and that Heng was on probation at the time of the offenses. He also received an upper term for the section 12022.5 enhancement in count five based on the victim’s vulnerability. The aggravating factors cited by the court as justification for Scott’s upper term sentences were: the crime’s high degree of cruelty; the vulnerability of the victims; the planning, sophistication, and professionalism of the crime; Scott is a serious danger to society; and his prior convictions.
The exception regarding a prior conviction applies not only to the fact of a prior conviction, but also to “an issue of recidivism which enhances a sentence and is unrelated to an element of a crime.” (People v. Thomas (2001) 91 Cal.App.4th 212, 223.) For instance, the trial court may determine and rely on the defendant’s probation or parole status to impose the upper term. (See People v. Yim (2007) 152 Cal.App.4th 366, 371 [parolee status and prior performance on parole]; United States v. Corchado (10th Cir. 2005) 427 F.3d 815, 820 [“the ‘prior conviction’ exception extends to ‘subsidiary findings’ such as whether a defendant was under court supervision when he or she committed a subsequent crime”].)
In Black II, the Supreme Court took a broad view of the scope of the prior conviction exception. (Black II, supra, 41 Cal.4th at pp. 819-820.) Mindful of the California Supreme Court’s directive not to read the recidivism exception to Blakely “too narrowly” (Black II, supra, at p. 819), we conclude Heng’s poor performance on probation is a factor which is not subject to the rule of Cunningham. Thus, notwithstanding the other factors the court relied on in imposing the upper term sentence, the trial court relied on at least one legally sufficient aggravating factor to sentence Heng to the upper term. Heng, therefore, was not entitled to a jury trial on his upper term sentences for the offenses in counts one through five. As Scott’s upper term sentence was based in part on his prior convictions, he too was not entitled to a jury trial on his sentence, notwithstanding the other aggravating factors invoked by the court.
The upper term sentence for Heng on the firearms enhancement in count five is another matter. The factor relied on by the court, the victim’s vulnerability, is not an exception to Cunningham. Since the jury did not find this fact beyond a reasonable doubt, the court’s reliance on this single factor is error.
However, we find such error was harmless under the standard announced in People v. Sandoval (2007) 41 Cal.4th 825. That is, we conclude, “beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury . . . .” (Id. at p. 839.)
Count five involved Heng’s assault on Canh. There is overwhelming evidence to support the finding that he was particularly vulnerable, as he was 78 years old at the time of the crime. California law recognizes a statutory enhancement for some crimes, such as robbery, committed against certain classes of inherently vulnerable people, including “a person who is 65 years of age or older.” (§ 667.9, subd. (a).) Applying this objective evidence of vulnerability, we are convinced beyond a reasonable doubt that the jury would have found, themselves using the beyond-a-reasonable-doubt standard, that Canh Van Le was a particularly vulnerable victim.
B.
In sentencing Morris to an upper term for robbery, the court considered his youth and lack of criminal record in mitigation but found several factors in aggravation: the crimes involved a high degree of cruelty, viciousness, or callousness; the crime was carried out in a manner showing planning; and the two elderly victims were particularly vulnerable.
As with Heng’s upper term sentence on the firearm enhancement, the trial court was not authorized to impose an aggravated term based on these facts. The People claim the jury’s finding that Morris took the property from Canh by force or fear while personally using a firearm is an implicit finding that this robbery involved a high degree of cruelty, rendering him eligible for an upper term. Generally, a court is prohibited from using a fact both to impose an aggravated term and an enhancement to enhance the sentence. (§ 1170, subd. (b).) Thus, the firearm enhancement cannot be used to impose an upper term. The People’s argument simply asserts that all robberies with a firearm enhancement are aggravated, which is not possible under the determinate sentencing law.
Morris’s upper term sentence was for count one, the robbery of Canh. As we have already discussed, there is overwhelming evidence to support the finding that the elderly Mr. Le was particularly vulnerable. Applying Sandoval, we find beyond a reasonable doubt the jury would have found, themselves using the beyond-a-reasonable-doubt standard, that Canh was a particularly vulnerable victim.
DISPOSITION
The judgment is affirmed.
We concur: BLEASE, Acting P.J., HULL, J.