Opinion
B160659. B166238.
11-21-2003
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY JIMENEZ, Defendant and Appellant. In re ANTHONY JIMENEZ on Habeas Corpus.
Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant, Appellant, and Petitioner. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec and Alan D. Tate, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Appellant and petitioner Anthony Jimenez challenges his convictions of second degree robbery, criminal threats, and attempted second degree robbery on grounds the trial court erred in denying his motion for acquittal on the attempted robbery count, his request for jury instructions on the effect of voluntary intoxication, and his motion to vacate findings of prior serious or violent felony convictions. He also contends the length of his sentence is unconstitutionally disproportionate; the instruction with CALJIC No. 17.41.1 violated his rights to due process and juror unanimity; and his attorney rendered ineffective assistance of counsel in failing to request a jury instruction and his failure to raise federal constitutional claims in opposition to the trial courts refusal to instruct upon voluntary intoxication.
We conclude the trial court properly denied Jimenezs motion for acquittal, as the evidence was sufficient to support an attempted robbery conviction. Defense counsel did not render ineffective assistance by failing to request an instruction on abandonment of attempt to commit robbery because the evidence did not support the instruction. Because no evidence showed the effect of Jimenezs purported intoxication on his actual formation of specific intent, the trial court properly refused to instruct on voluntary intoxication, and defense counsel was not ineffective for failing to raise constitutional claims regarding the instructions. The court did not err by instructing with CALJIC No. 17.41.1 or denying Jimenezs motion to vacate the serious or violent prior felony conviction findings. Appellant forfeited his disproportionality claim by failing to raise it in the trial court. Finally, the abstract of judgment must be corrected to eliminate reference to a non-existent enhancement.
BACKGROUND AND PROCEDURAL HISTORY
Jimenez approached Ernie Vega and said he was "strapped" and intended to rob the first person he saw. Vega laughed at Jimenez, who left. Jimenez then went into Jesus and Estanislada Villars beauty shop, which was about a block away. He demanded their money and jewelry. He had an object resembling a gun tucked in his waistband, and later waved a knife at them. He attempted to take the Villars to an automatic teller machine, but Vega was walking past the beauty shop as they stepped out the door. Vega and Jimenez argued, and Estanislada Villar begged Vega not to leave them. Vega entered the beauty shop with the Villars and told Jimenez to leave. Jimenez left after taking Estanislada Villars purse and mobile phone, which the police used to locate and capture him.
A jury convicted Jimenez of two counts of second-degree robbery, one count of criminal threats, and one count of attempted second-degree robbery. It found Jimenez personally used a knife in the commission of both robberies and in making the criminal threats. It acquitted him of a second count of making criminal threats. In a bifurcated trial on the prior conviction and prison term allegations, the jury found Jimenez had suffered two prior serious or violent felony convictions, served a prison term for each conviction, and did not remain free of prison custody for five years. The trial court denied Jimenezs motion to dismiss the prior conviction findings that he might be sentenced more leniently; and imposed terms of 25 years to life on each count. It enhanced the terms for the two robberies and the criminal threats count by one year for use of a knife, and imposed two five-year Penal Code section 667, subdivision (a)(1) enhancements. However, the court stayed the term on the criminal threats count under Penal Code section 654 and made the terms on the robbery counts concurrent. The aggregate sentence imposed therefore was 61 years to life.
Jimenez appealed and subsequently filed a petition for writ of habeas corpus. We agreed to consider his habeas corpus petition with his appeal and solicited and received informal responses from respondent and petitioner.
DISCUSSION
1. The trial court properly denied the motion for acquittal.
At the conclusion of the Peoples case, Jimenez moved for acquittal under Penal Code section 1118.1 with respect to gun-use allegations and all counts except the robbery of Jesus Villar. The trial court granted the motion with respect to all gun-use allegations and count eight, which charged possession of a firearm by a felon. Jimenez contends the court erred by denying the motion with respect to count six, which charged Jimenez with attempting to rob Vega.
When reviewing a claim the trial court erred by denying a motion for acquittal under Penal Code section 1118.1, we apply the same standard as when evaluating the sufficiency of evidence to support a conviction, except that we consider only the evidence in the record at the time the motion was made. (People v. Augborne (2002) 104 Cal.App.4th 362, 371; People v. Smith (1998) 64 Cal.App.4th 1458, 1464.) We review the evidence in the light most favorable to the judgment to decide whether substantial evidence supports the conviction, so that a reasonable jury could find guilt beyond a reasonable doubt. (People v. Ceja (1993) 4 Cal.4th 1134, 1138.)
An attempt to commit a crime occurs when the perpetrator, with the specific intent to commit the crime, performs a direct but ineffectual act towards its commission. (Pen. Code, § 21a; People v. Dillon (1983) 34 Cal.3d 441, 452-453.) Mere antecedent preparations, such as planning the crime and arranging the means or measures to commit it, are insufficient to constitute the required direct, ineffectual act. (People v. Memro (1985) 38 Cal.3d 658, 698.) Instead, the acts "must go so far that they would result in the accomplishment of the crime unless frustrated by extraneous circumstances." (Ibid.)
Vega testified that he was sitting at a bus stop on Whittier Boulevard at 11:30 p.m. when Jimenez, whom he did not know, rode past him on a bicycle. Jimenez then turned around and came up behind Vega at the bus stop. He told Vega that his intentions were to rob the first person he saw that evening on Whittier Boulevard. He also told Vega he was "strapped," i.e., carrying a weapon. Jimenez appeared to be very nervous, confused, shaky and sick. Vega understood that Jimenez was asking him for money and trying to rob him, but he found the circumstances humorous and laughed at him. Jimenez said it looked like Vega was also "strapped." Vega smiled and Jimenez said, "Yeah, youre strapped." Jimenez then apologized and asked if it would be okay if he left. Vega told Jimenez he should leave, and Jimenez complied.
Jimenezs act in returning to Vega after he had passed on his bicycle and approaching him from behind, his statement that he was "strapped," and his statement that he intended to rob the first person he saw on Whittier, which was where Vega was sitting, constitute substantial evidence of an intent to rob Vega. Vega understood Jimenezs statements as a demand for money and an expression of intent to take it by force or fear, using the unidentified weapon Jimenez claimed to be carrying. The mere fact that Vega was not intimidated by Jimenez, laughed at him, and succeeded in intimidating him to the extent that he apologized and asked to leave did not negate the intent evidenced by Jimenezs conduct and statements.
Jimenezs conduct went far beyond mere preparation for the crime. He approached Vega, claimed to be armed, and effectively demanded money. If Vega had been intimidated, rather than self-confident and calm, and had surrendered his property, the robbery would have been complete. Thus, Jimenezs conduct constituted a direct, ineffectual act towards commission of robbery.
Accordingly, the evidence in the record at the time the motion for acquittal was made was sufficient to support an attempted robbery conviction, and the trial court properly denied the motion for acquittal with respect to count six.
2. Defense counsel did not render ineffective assistance by failing to request CALJIC No. 6.02.
Jimenez contends his attorney rendered ineffective assistance by failing to ask the trial court to instruct the jury with CALJIC No. 6.02, which states, "If a person intends to commit a crime but, before committing any act toward the ultimate commission of the crime, freely and voluntarily abandons the original intent and makes no effort to accomplish it, that person has not attempted to commit the crime."
A claim that counsel was ineffective requires a showing, by a preponderance of evidence, of objectively unreasonable performance by counsel and a reasonable probability that, but for counsels errors, appellant would have obtained a more favorable result. (People v. Ledesma (1987) 43 Cal.3d 171, 216-218.)
Abandonment is a defense to a charge of an attempted crime, but only if the attempt to commit the crime is freely and voluntarily abandoned before the commission of the direct ineffectual act toward the commission of the offense. (People v. Claborn (1964) 224 Cal.App.2d 38, 41.) Subsequent events tending to show abandonment are irrelevant once the requisite intent and act are proved. (People v. Dillon, supra, 34 Cal.3d at p. 454.) As discussed in the previous issue, because the evidence showed Jimenezs intent to rob Vega and his direct, though ineffectual acts towards robbing Vega, his subsequent decision to abandon that attempt when he realized Vega was not intimidated and might harm him was irrelevant. Accordingly, defense counsels failure to request CALJIC No. 6.02 was not an objectively unreasonable performance, as the evidence did not support the giving of the instruction. The trial court need not give a requested instruction unless it is supported by substantial evidence. (People v. Marshall (1997) 15 Cal.4th 1, 39-40.) Because the evidence negated the application of the defense of abandonment, the trial court would not have been obligated to give CALJIC No. 6.02, and indeed properly would have refused to give it. Counsels failure to make an unmeritorious request is not ineffective assistance. (People v. Price (1991) 1 Cal.4th 324, 387.)
Similarly, counsels failure to request the instruction resulted in no prejudice to Jimenez because, by its terms, it was inapplicable to the evidence. Had the jury been instructed with CALJIC No. 6.02, it would necessarily have found the instruction inapplicable because Jimenez did not abandon his attempt to rob Vega "before committing any act toward the ultimate commission of the crime." Accordingly, there is no reasonable probability Jimenez would have obtained a more favorable result had counsel successfully requested instruction with CALJIC No. 6.02.
3. The court properly refused to instruct on voluntary intoxication.
Jimenez asked the court to instruct with CALJIC Nos. 4.21, 4.21.1, and 4.22, which define voluntary intoxication and address its effect on the formation of specific intent and other required mental states. After expressly reviewing the law and evidence on this point, the trial court refused to give these instructions. Jimenez contends this was error and violated his constitutional right to instructions on his theory of defense.
A defendant is entitled to an instruction on intoxication only when there is substantial evidence of the defendants voluntary intoxication and the effect of the intoxication on the defendants actual formation of the relevant mental state. (People v. Williams (1997) 16 Cal.4th 635, 677.) Merely showing that the defendant drank alcohol before committing a crime is insufficient to warrant an instruction. (People v. Williams (1988) 45 Cal.3d 1268, 1312.)
Defense witness Annie Silva testified Jimenez began drinking "hard liquor" about 5:00 p.m. on the evening in question. He continued to do so at least until Silva retired for the evening about 9:00 p.m. Silva testified Jimenez began "acting differently" after he began drinking. Vega testified Jimenez did not appear to have been drinking, and did not smell of alcohol during either of their encounters. Based upon Jimenezs demeanor and his statement that he was sick and hurting and needed money to cure himself, Vega concluded Jimenez was a drug addict who needed another dose. Jesus Villar thought Jimenez might be under the influence of drugs or alcohol because he did not look normal. Jimenez did not testify.
The evidence showed, at most, that Jimenez had been drinking alcohol from 5:00 to 9:00 p.m. and may have been "under the influence" at the time of the crimes, which began at about 11:30 p.m. The evidence did not show, however, the crucial fact required for instruction on voluntary intoxication: that, as a result of intoxication, Jimenez did not form the specific intents required for conviction. Indeed, the only evidence reflecting on specific intent showed Jimenez harbored the necessary intent. With respect to the robbery and attempted robbery counts, Jimenez told Vega of his intent to rob the first person he saw on Whittier Boulevard, and his first words to the Villars were "This is a holdup, give me all your money that you have." He demanded their money, jewelry, and truck keys, and then decided to take them to an automated teller, which strongly suggests he intended to force them to withdraw cash and surrender it to him. With respect to the criminal threats count, which requires a specific intent that a statement be taken as a threat (Pen. Code, § 422), Jimenez waved a knife at the Villars and said, "This doesnt make any noise. Give me your car keys." The combination of the statement and the conduct shows Jimenez intended that the Villars take his statement as a threat to harm them with the knife if they did not comply with his demands.
Jimenez argues his inability to form specific intent is shown by his abandonment of his attempt to rob Vega, his "repeated[] and random[]" placement of the Villars in and out of the restroom in their beauty shop, and his repeated requests for the Villars truck keys in the face of Jesus Villars explanation that he did not have the keys. While these facts demonstrate Jimenez was not a very menacing, skillful, or efficient robber, they do not show he lacked the capacity to form the required specific intents. Because no evidence showed the effect of Jimenezs purported intoxication on his actual formation of specific intent, the trial court properly refused the requested instructions.
4. Defense counsel did not render ineffective assistance by failing to raise constitutional claims regarding the requested voluntary intoxication instructions.
In his petition for writ of habeas corpus, Jimenez contends defense counsels failure to raise federal constitutional grounds in asserting his right to instruction on the effect of voluntary intoxication. As discussed in the prior section, because the evidence did not support instruction on voluntary intoxication, defense counsels failure to assert constitutional claims was not an objectively unreasonable omission and caused no prejudice. Indeed, it would have been futile to raise the claims, as the trial court properly concluded the evidence did not support a theory that voluntary intoxication precluded Jimenez from forming the requisite mental states. Jimenez had no right, born of constitution or other origin, to instruction on a theory unsupported by the evidence. Accordingly, his ineffective assistance of counsel claim has no merit.
5. Instruction with CALJIC No. 17.41.1 was not error.
Jimenez contends the trial court erred by instructing the jury with CALJIC No. 17.41.1. In People v. Engelman (2002) 28 Cal.4th 436, the California Supreme Court disapproved of CALJIC 17.41.1 and forbade trial courts giving it in future trials. (Id. at p. 449.) The Court expressed concern that the instruction created "a risk of unnecessary intrusion on the deliberative process." (Id. at p. 441.) Nonetheless, the Court concluded that giving the instruction did not infringe upon federal or state constitutional rights and was not error. (Id. at pp. 441, 449.)
As in Engelman, there was no indication the jury encountered any problems during deliberations. The jury did not deadlock or report that any juror refused to deliberate or follow the law. The jury did not request further instruction or ask any questions. In short, there was no indication that the potential risk created by CALJIC No. 17.41.1 was realized in this case. Accordingly, Jimenezs claim has no merit.
6. Appellant forfeited his disproportionality claim by failing to raise it in the trial court.
Jimenez contends the length of his sentence is unconstitutionally disproportionate under the state and federal constitutions. However, he did not assert this claim in the trial court. Accordingly, he is precluded from raising it on appeal. (People v. DeJesus (1995) 38 Cal.App.4th 1, 27.)
7. The trial court did not abuse its discretion by denying appellants Romero motion.
A trial court has discretion under the Three Strikes Law to dismiss or vacate prior conviction allegations or findings in the furtherance of justice. (Pen. Code, § 1385, subd. (a);People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530.) In exercising this power, the trial court must consider the defendants background, his constitutional rights, the nature of the current offense, and the interests of society. (Id. at pp. 530-531.) The court should not dismiss or vacate a "strike" unless it concludes that the defendant may be deemed to be outside the anti-recidivist "spirit" of the Three Strikes Law. (People v. Williams (1998) 17 Cal.4th 148, 161.)
Jimenez made a motion under Romero prior to trial, but the trial court did not rule upon it until sentencing. The court expressly recognized its discretion, but found that Jimenez was "precisely the type of person the Three Strikes Law was meant to apply to." Accordingly, the court declined to vacate any of the prior serious or violent felony conviction findings. Jimenez contends the court abused its discretion in failing to do so.
Jimenez cannot reasonably be characterized as being outside the spirit of the Three Strikes Law. When he was 16, a juvenile petition alleging a "drug-related offense" was sustained against him and he was sent to a juvenile detention camp. Five months later, a juvenile petition alleging he committed an assault with a deadly weapon and an unlawful taking of a vehicle was sustained, and Jimenez was again sent to camp. Three years later, in December 1992, he suffered his first adult conviction, for second-degree robbery, and was sentenced to two years in prison. In November 1993, he was arrested for misdemeanor driving under the influence and was subsequently convicted. He received summary probation on conditions including service of 30 days in jail. In August 1994, he was convicted of carjacking with use of a firearm and exhibiting a firearm to a motor vehicle occupant (Pen. Code, § 417.3) and sentenced to 11 years in prison. He was released on parole at an unknown date, returned to custody for a parole violation on October 26, 2000, and re-released on parole on June 19, 2001. He was on parole at the time of the current offenses, which occurred late at night on September 30 and in the early morning hours of October 1, 2001. His current offenses clearly fit his pattern of recent behavior, and there were no apparent mitigating factors. He was 29 years old at the time they were committed. The trial court noted that he "seem[ed] to be at the beginning of a life of crime," and nothing suggested he could be rehabilitated. The court was well aware of Jimenezs substance abuse problems and character references. It did not abuse its discretion in concluding Jimenez fell squarely within the anti-recidivist spirit of the Three Strikes Law and in denying his motion.
8. The abstract of judgment must be corrected.
Jimenez contends, and respondent agrees, that the abstract of judgment incorrectly indicates the trial court imposed a one-year Penal Code section 12022, subdivision (b)(1) enhancement on count six. However, no enhancement allegation was pled, proved, or found true, and the court did not enhance the sentence on count six. Accordingly, the abstract of judgment must be corrected.
DISPOSITION
The trial court is directed to issue an amended abstract of judgment reflecting the absence of any enhancement to count six. The judgment is affirmed, and the petition for writ of habeas corpus is denied.
We concur: COOPER, P.J. RUBIN, J. --------------- Notes: Jesus Villar testified that after Jimenez demanded their money and jewelry, looked in the cash register, and ransacked the shop, he ordered them to wait in the restroom. After about five minutes, Jimenez opened the restroom door, showed Villar the knife, said it did not make noise, and asked for the car keys. The keys were inside the truck, and Villar told Jimenez he did not have them. Jimenez closed the restroom door, but returned about five minutes later and ordered them to come out. He asked for Villars wallet again and said they were all going to an ATM. Vega arrived, and all four went inside the store. Jimenez told the Villars and Vega to wait inside the restroom. Three or four minutes later, Jimenez opened the restroom door and again asked Villar for his car keys. Villar repeated that he did not have the keys, and appellant closed the door and left.