Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. Los Angeles County Super. Ct. No. BA334527 Sam Ohta, Judge.
Ralph Robinson, in pro. per.; Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
INTRODUCTION
Ralph Robinson appeals his conviction of one count of attempted second degree robbery and one count of grand theft. His appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, raising no issues. After Robinson was notified, he submitted a supplemental brief challenging the trial court’s denial of his motion to invalidate 18 prior convictions as unconstitutional. Robinson also claims that he was prejudiced by instructional error and ineffective assistance of counsel. We have reviewed the entire record, and find no merit in Robinson’s contentions. Further, we find no other arguable issues and affirm the judgment.
BACKGROUND
On February 11, 2008, after a preliminary hearing, Robinson was charged with two counts of second degree robbery, with the special allegations that he had suffered 21 prior serious or violent felony convictions, and that he had not remained free from custody on numerous prior convictions when he committed the current offenses. Nineteen of the prior convictions had been entered pursuant to guilty pleas in a single proceeding in 1986. Robinson moved to invalidate 18 of them on the ground that he had not been advised of the future consequences of his pleas. The trial court denied the motion.
On August 5, 2008, the first day of Robinson’s jury trial, an amended information was filed. Counts 1 and 2 remained unchanged, but the information charged three additional offenses: two counts of grand theft and one count of petty theft with two prior convictions (a 1983 robbery and a 1986 robbery), all arising from the same incident as the robberies alleged in counts 1 and 2. It was specially alleged with regard to all counts that Robinson had suffered 21 prior serious or violent felonies, making the current offenses punishable as third strikes under Penal Code sections 1170.12, subdivisions (a) through (d), and 667, subdivisions (b) through (i). With regard to count 1, the amended information alleged the same 21 prior convictions for purposes of the five-year sentence enhancement of section 667, subdivision (a)(1). It was further alleged with regard to count 1 that Robinson had suffered 22 prior convictions for which he had not remained free of custody for five years prior to the current offense, for purposes of the one-year sentence enhancement of section 667.5, subdivision (b). The court granted the defense motion to bifurcate trial on the prior convictions, including the two predicate convictions alleged in count 5, petty theft with priors.
All further statutory references are to the Penal Code, unless otherwise stated.
At trial, the court admitted without objection a short video of the incident leading to the current charges. The jury saw the video during the prosecution’s opening statement and saw it two more times when the prosecution showed it to two of the witnesses during their testimony. Counsel stipulated that Robinson was the person depicted in the video, and that the taking shown in the video was done with the specific intent to permanently deprive the owner of the property.
The theory of the defense was that the victims were not afraid during the incident, and although they touched Robinson’s hand, there was no force. Consequently, the robbery elements of both force and fear were missing.
See Penal Code section 211; CALCRIM No. 1600(4).
The prosecution played the video for the first witness, Nilson Gomez, who verified that it accurately depicted the events of January 3, 2008, when Robinson entered the McDonald’s restaurant where Gomez worked. Gomez testified that at approximately 4:20 p.m., as he was giving change to a customer, Robinson approached and told him to give him the money in the cash register or he would “blow [his] brains out.” Robinson claimed to have a gun, but Gomez saw no weapon and did not believe him. Robinson reached into the cash register, and as Gomez attempted to push his hand away, Robinson resisted by pushing back with the same hand as he continued to attempt to take the money. Gomez called for Maria Soto, the manager, who was working the cash register next to him on his right. Soto struggled with Robinson and managed to close Gomez’s register.
When Robinson failed to take money from Gomez’s register, he reached over the counter and into Soto’s register. Thinking that Robinson might jump over the counter, Gomez stepped back for a moment and then moved forward to help Soto. Gomez saw Robinson taking money; he put his hand on Robinson’s hand; Robinson grabbed three or four bills, then dropped some but managed to take away $10. When Gomez put his hand on Robinson’s hand, he felt that a struggle was going on between them. Guillermo, another employee, then slammed Soto’s register shut.
Although Gomez said that he was not scared during the incident, he did testify that he felt “intimidated.” Explaining what he meant by “intimidated,” Gomez testified that although he thought Robinson was trying to scare him, he did not succeed.
Los Angeles Police Officer Dominick Fuentes testified that he responded to a radio call regarding a robbery at McDonald’s and went to the restaurant. He apprehended Robinson approximately 10 minutes later, a little more than a block away, and recovered two $5 bills from his left hand, plus some change. Fuentes found no weapons of any kind on Robinson.
Maria Soto testified that she was employed as a manager at the McDonald’s where the incident occurred on January 3, 2008. When Gomez called to her, she thought that he sounded concerned and scared. Soto shut Gomez’s cash register and grabbed Robinson’s hand as he pulled money out of her register. She tried to close the drawer, but Robinson’s hand was still in it. Robinson pressed back against her hand as she grabbed money from his. She was able to take back some of the money before he fled. During this struggle, Robinson’s right hand was covered with a jacket. Robinson said, “Be careful. I’ve got a gun.” Soto replied, “So what?” Although she did not consider whether he really had a gun, she pushed the panic button to summon the police, because she was concerned about the employees and customers. She yelled, “I’m being robbed,” or “We’re being robbed.”
Soto could not see how many bills Robinson had grabbed or how much money he fled with, but she did see that he had money in his hand. Later, when Soto reconciled her register, it was short $10.
The prosecution rested after Soto’s testimony, and the defense presented no evidence. The prosecution moved to amend the information, modifying count 1 to allege attempted second degree robbery as to victim Gomez in place of the completed offense and modifying count 3, also as to victim Gomez, to attempted grand theft in place of the completed offense.
The defense moved to dismiss all charges pursuant to section 1118.1. The motion was denied.
While the jury was deliberating, Robinson waived his right to a jury trial on the prior convictions. Before the jury reached a verdict, the bailiff informed the court that the two alternate jurors had told him and the court clerk that Officer Fuentes and another officer had approached them in the hallway outside the courtroom. One of the alternates, Juror No. 50, told them that she and the other alternate, Juror No. 53, had been alone in the hallway when the officers approached them. Fuentes told them that the defendant had an extensive record of committing similar crimes, asked them how they would vote if they were deliberating, and told them that the defendant was definitely guilty. Juror No. 50 told Fuentes that she could not talk about the case, and Juror No. 53 ignored him; however, the officer continued to talk. The court questioned the two alternates outside the presence of the deliberating jurors. Juror No. 50 denied that the incident caused her to form an opinion in the case, but Juror No. 53 told the court that this exchange had made Fuentes a less credible witness.
The court determined that the contact affected only the two jurors because the incident took place while the deliberating jurors were in the jury room. The court found that the presumption of prejudice was not rebutted and it was necessary to dismiss the two alternates. Both were excused from further service.
Before reaching a verdict, the jury sent the court a note, worded as follows: “Please clarify: in the ‘Attempted 2d degree Robbery’ charge: did the victims have to experience force or fear or was the defendant’s attempt enough.” With the approval of counsel, the court sent the following answer:
“An attempt to commit 2nd degree robbery is defined under CALCRIM [No.] 460. You are directed to CALCRIM [No.] 460. You are also directed to CALCRIM [No.] 1600 which defines the completed crime of 2nd degree robbery. You are directed to read these two instructions together.
“In the completed crime of 2nd degree robbery, one of the elements the prosecution must prove beyond a reasonable doubt is:
“‘The defendant used force or fear to take the property or to prevent the person from resisting.’
“If the prosecution relies on ‘fear’ to prove this element for the completed offense of 2nd degree robbery, the evidence must convince you beyond a reasonable doubt that the alleged victim was in fact afraid.
“In order to prove an attempt to commit 2nd degree robbery, the prosecution must prove beyond a reasonable doubt two elements. They are:
“1. The defendant took a direct but ineffective step toward committing 2nd degree robbery; and
“2. The defendant intended to commit 2nd degree robbery.
“The prosecution is not required to prove each element of the offense of a completed 2nd degree robbery beyond a reasonable doubt.”
The jury returned guilty verdicts as to count 1, the attempted second degree robbery of Nilson Gomez, and count 4, grand theft against the person of Maria Soto. The jury returned not guilty verdicts on the second degree robbery of Soto (count 2), and attempted grand theft against the person of Gomez (count 3). In addition, the jury returned a guilty verdict as to count 5, petty theft.
The court polled the jurors and questioned them regarding the inconsistent verdicts and their understanding of the court’s instruction regarding verdict forms and lesser included offenses. The foreperson, Juror No. 35, explained to the court that the jurors believed they were required to reach a verdict on every count and complete all verdict forms. All jurors agreed that was their understanding, and all affirmed that the verdicts read by the clerk were their verdicts.
The court had read CALCRIM No. 3519, explaining to the jury how to complete the verdict forms.
At the sentencing hearing of September 12, 2008, the trial court explained to Robinson the consequences of admitting all prior convictions. On motion of the prosecution, the court dismissed one of the 1986 prior convictions, and Robinson admitted the 20 remaining priors. Defense counsel asked the court to exercise its discretion under section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497, to dismiss 19 of the 20 prior convictions. After permitting counsel to argue, the court reviewed the circumstances in light of the factors set forth in People v. Williams (1998) 17 Cal.4th 148, and denied the request.
The court then turned to the issue of the inconsistent verdicts, citing People v. Caird (1998) 63 Cal.App.4th 578, and People v. Davis (1988) 202 Cal.App.3d 1009. After summarizing relevant facts in the record, the court determined that the jury intended to convict Robinson of attempted robbery (count 1) and grand theft against the person of Maria Soto (count 4), rendering surplusage the not guilty verdicts of grand theft (count 3), and the second degree robbery of Soto (count 2). The court found that the petty theft (count 5) was a lesser included offense of grand theft (count 4), and thus declared the guilty verdict as to count 5 a nullity and dismissed count 5 pursuant to section 1385. The court ruled that Robinson could be sentenced only on counts 1 and 4.
The court sentenced Robinson on count 1 to an indeterminate term of 25 years to life in prison, with a minimum term of 25 years, pursuant to sections 667, subdivision (e)(2)(A)(ii), and 1170.12, subdivision (c)(2)(A)(ii). The court added two 5-year terms pursuant to section 667, subdivision (a)(1). As to count 4, the court imposed a concurrent indeterminate life term of 25 years to life.
The court awarded 380 days custody credit, consisting of 254 actual time and 126 days local conduct credit. The court ordered Robinson to pay a $200 restitution fine, pursuant to section 1202.4, subdivision (b), and entered a $200 parole revocation fine, suspended pending any subsequent parole revocation, pursuant to section 1202.45. In addition, the court imposed a court security fee of $40, pursuant to section 1465.8
Robinson filed a timely notice of appeal the day he was sentenced.
DISCUSSION
1. Motion to Invalidate Prior Convictions
Robinson contends that the trial court erred in denying his motion to declare invalid his prior convictions entered in 1986 upon no contest pleas pursuant to a plea bargain. He argues that the prior convictions should be stricken because he was not told at the time that any future commission of a crime could expose him to a sentence enhancement pursuant to section 667, subdivision (a).
Robinson relies on People v. Sumstine (1984) 36 Cal.3d 909, in which the California Supreme Court held that a defendant may collaterally attack the validity of a prior felony conviction entered pursuant to a plea if he was not advised of his constitutional Boykin-Tahl rights at the time of the plea. Those rights, which are waived by pleading guilty or no contest, include the right to be represented by counsel, the privilege against compulsory self-incrimination, the right to trial by jury, and the right to confront one’s accusers. (People v. Sumstine, at p. 914.) Robinson also relies on People v. Zavala (1983) 147 Cal.App.3d 429, which held that a motion to vacate should have been denied, because the defendant was properly advised of his constitutional rights. Neither case held, as Robinson claims, that in addition to the enumerated constitutional rights, a defendant must be informed of all future possible consequences of his plea.
See Boykin v. Alabama (1969) 395 U.S. 238, and In re Tahl (1969) 1 Cal.3d 122, disavowed in part in Mills v. Municipal Court (1973) 10 Cal.3d 288, 306-307, fn. 16, and overruled in part in People v. Howard (1992) 1 Cal.4th 1132, 1175.
The requirement that the court inform a defendant of the consequences of a guilty or no contest plea is not a Boykin-Tahl right, but rather a judicially declared rule of California criminal procedure. (People v. Gurule (2002) 28 Cal.4th 557, 634.) Thus, the cases upon which Robinson relies are inapposite. Further, under the California rule, the defendant must be advised only of the direct consequences of his plea. “If the consequence is only collateral, no advisement is required.” (Ibid.) The possible use of a current conviction to enhance a future sentence, should a defendant commit another crime, is not a direct consequence of the prior conviction, but a collateral consequence. A defendant who pleads guilty or no contest need not be advised of collateral consequences. (Id. at pp. 634-635; People v. Bernal (1994) 22 Cal.App.4th 1455, 1457; People v. Crosby (1992) 3 Cal.App.4th 1352, 1355.)
Because the parties to the 1986 plea agreement did, in fact, consider some possible future consequences, Robinson also contends that the plea agreement or the plea colloquy should be deemed to contain all future consequences. Thus, he argues, the plea agreement should be construed as including a promise not to impose any omitted future consequence, and the use of the convictions as sentence enhancements should be deemed a breach of the agreement. We disagree. Although a plea bargain can contain implied terms, their existence must be supported by the record, and silence on the subject of a collateral consequence is insufficient to support an implied promise that such consequence will not occur. (Cf. People v. Paredes (2008) 160 Cal.App.4th 496, 512 [postconviction change in federal law rendered defendant deportable; no implied promise of “no deportation”].)
Only the direct consequences were discussed in the 1986 proceedings, and the plea agreement contained no express promise that the 19 convictions would not have future consequences. Robinson was told that he could serve a maximum prison term of 41 years and that probation could be denied. The consideration he obtained for the bargain was a psychiatric evaluation and the possibility of probation based upon such evaluation.
The authorities upon which Robinson relies, i.e., Santobello v. New York (1971) 404 U.S. 257, and Burgett v. Texas (1967) 389 U.S. 109, do not hold otherwise, and neither was decided on facts similar to those in this case. Santobello did not involve the issue of implied promises; the United States Supreme Court had merely held that promises of a plea agreement are part of the inducement or consideration for the plea and must be fulfilled. (Santobello, at p. 262.) In Burgett, there was no issue relating to the enforcement of a plea bargain; the prior conviction was stricken because the defendant had been denied his right to representation by counsel. (Burgett, at pp. 112-113, 115.) Here, Robinson was represented by counsel throughout the 1986 proceedings.
We conclude that the trial court did not err in denying Robinson’s motion to strike the 1986 prior felony convictions.
2. Jury Instructions
Robinson contends that his conviction of attempted second degree robbery must be reversed, because the trial court’s answer to the jury’s inquiry—whether it must find that the victims experienced force or fear—may have left the jury with the impression that force or fear was not an element of attempted robbery. Robinson further contends that the result of the court’s answer was that the prosecution was relieved of its burden to prove the fear element of attempted robbery, depriving him of due process under the federal Constitution.
Ordinarily, counsel must object or request a clarifying instruction to preserve the right to challenge an instruction on appeal, but where the contention is that the court erroneously omitted an element of the crime, there is no forfeiture. (People v. Hillhouse (2002) 27 Cal.4th 469, 503.)
Robinson confuses the elements of attempted robbery with those of robbery. “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.) For attempted robbery, however, “commission of an element of the crime is not necessary. [Citation.]” (People v. Medina (2007) 41 Cal.4th 685, 694.) The only two elements of any attempted crime are “‘a specific intent to commit the crime, and a direct but ineffectual act done toward its commission.’ [Citations.]” (Ibid.; see also People v. Dillon (1983) 34 Cal.3d 441, 453-454.) The direct but ineffectual act must go beyond mere preparation (People v. Dillon, at p. 454), but need not be an actual element of the crime attempted. (People v. Medina, at p. 694.)
Thus, neither force nor fear is an element of attempted robbery. (People v. Vizcarra (1980) 110 Cal.App.3d 858, 863.) For example, in Vizcarra, the defendant hid a rifle under his poncho, stood a few feet away from the entrance to a liquor store, attempted to hide when a customer left the store, and then returned to his car, which he had parked across the street. He did not enter the store or attempt to use force on anyone, and he left before he could cause the intended victim or victims to feel fear. (Id. at pp. 861-862.)
Because neither force nor fear was an essential element of attempted robbery, the trial court did not err in giving an instruction that may have left the jury with that impression.
3. Effective Assistance of Counsel
Robinson contends that he was denied effective assistance of counsel, because defense counsel did not object to the trial court’s response to the jury’s question regarding force or fear. Robinson contends that he was prejudiced by counsel’s failure to object, because an instruction that force or fear was an element of attempted second degree robbery might have resulted in an acquittal of that charge.
Counsel expressly acquiesced in the court’s answer to the jury question.
To establish ineffective assistance of counsel, Robinson must show that counsel’s performance was deficient and that counsel’s error prejudiced him. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692; In re Avena (1996) 12 Cal.4th 694, 721.) He is unable to overcome the first hurdle, because, as we have determined in the previous part, neither force nor fear is an essential element of attempted robbery. Thus, the court’s instruction was correct, and any objection most certainly would have been overruled. Counsel is not required to make useless objections. (Avena, at p. 728.) We cannot conclude that counsel’s performance was deficient for failure to do so in this case.
4. Independent Review and Analysis
We have independently and thoroughly examined the whole record before us, as well as Robinson’s written contentions. Applying the standard set forth by the California Supreme Court in People v. Kraft (2000) 23 Cal.4th 978, 1053-1054, we conclude from our examination that substantial evidence supports the jury’s verdicts in this case. Further, we find that appellate counsel has fully complied with her responsibilities, and like counsel, we have found no arguable issues. (See Smith v. Robbins (2000) 528 U.S. 259, 276, 280, 283-285; People v. Kelly (2006) 40 Cal.4th 106, 119, 123-125.)
DISPOSITION
The judgment is affirmed.
We concur: RUBIN, Acting P. J., FLIER, J.