Opinion
B230404
11-09-2011
THE PEOPLE, Plaintiff and Respondent, v. HOSNY HASSAN VENEGAS et al., Defendants and Appellants.
Gerald Peters, under appointment by the Court of Appeal, for Defendant and Appellant Hosny Hassan Venegas. Linn Davis, under appointment by the Court of Appeal, for Defendant and Appellant William Enriquez. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, David C. Cook and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA371940)
APPEAL from the judgment of the Superior Court of Los Angeles County. Anne H. Egerton, Judge. Affirmed in part, reversed in part and remanded.
Gerald Peters, under appointment by the Court of Appeal, for Defendant and Appellant Hosny Hassan Venegas.
Linn Davis, under appointment by the Court of Appeal, for Defendant and Appellant William Enriquez.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, David C. Cook and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
Defendants and appellants Hosny Hassan Venegas and William Enriquez were convicted of second degree robbery, and the jury found true the special allegations that the crime was committed for the benefit of a street gang and that a principal personally used a firearm. On appeal, both defendants claim there was insufficient evidence of the use of force or fear to support a robbery conviction and insufficient evidence of use rather than mere possession of a gun. We find substantial evidence supports the convictions and affirm the judgments. Venegas contends, and respondent concedes under People v. Sinclair (2008) 166 Cal.App.4th 848, that the trial court erred in imposing a 10-year gang enhancement and staying the 10-year gun use enhancement. We will remand the matter for the limited purpose of resentencing Venegas only, with instructions to the trial court to impose the firearm use enhancement and either impose and stay the gang enhancement or exercise its discretion to strike the gang enhancement.
The victim of the robbery, E.E., was standing outside his apartment building at 11:30 p.m. one night in May 2010, smoking a cigarette. He watched as two men in a car drove by his building; the car turned around, slowed as it passed again, then disappeared down the street. E.E. made eye contact with the two men as they drove past. He could not see into the back seat because the windows were tinted and were rolled up. A few moments later, three men suddenly appeared in front of him. He had not seen them approach; he turned around and they were surrounding him, close enough to touch him. All three were challenging him in loud voices, speaking in English and Spanish, asking where he was from, saying they were "MS," and saying E.E. was "18th Street." E.E. was not a gang member and told the three men so.
E.E.'s apartment building was in a neighborhood that he knew was disputed territory claimed by the rival gangs MS and 18th Street, and he knew the car driving up and down the street was a sign of danger. When defense counsel asked him what he was doing outside late at night in a tough neighborhood that was contested territory claimed by both the MS and 18th Street gangs, E.E. replied, "[A]nybody could stand outside and smoke a cigarette. I mean, I know it's a crazy neighborhood and, I mean -- what can I say. You take your chances being outside."
The chance E.E. took that night was unfortunate. After defendants surrounded him at close quarters yelling gang challenges at him, defendant Venegas demanded that E.E. raise his arms and lift up his shirt. His luck worsened; E.E. saw the wooden handle of a gun and the outline of the rest of the gun concealed in defendant Enriquez's pants. Enriquez was holding the gun in his hand when defendant Venegas said, "Give me the gun." E.E. testified he was "worried" and "scared." When asked why he was worried, E.E. answered, "Because they already -- one of the suspects was asking for a gun." E.E. lifted his shirt with one hand, believing he had no other choice but to comply with their demands "[b]ecause I heard the other gentleman had the gun[,]" and held his cell phone in the other hand. Defendant Venegas snatched the cell phone out of his hand. Fortunately, the crime was interrupted at this point. E.E. heard his girlfriend from behind him screaming out an open window secured by bars, crying out for defendants to leave him alone. Her screams distracted defendants, E.E. ran behind the building, and defendants ran down the street.
E.E.'s girlfriend called 911 and spoke to the operator because E.E. was too nervous and scared even to know what to say. "I was thinking about what would have happened if I would have got shot." Within about 20 minutes, police arrived and asked E.E. if he would come with them to identify suspects. The police took him in their car to the location at which they had pulled over defendants' car. E.E. recognized the car and three of the four men inside the car as the three who had committed the robbery. He also identified his cell phone, which the police had recovered. When asked if the event that night was a traumatic experience, E.E. testified, "Yes. It still is."
E.E. spoke to a police officer at the scene and related what happened. E.E. told the officer that he saw Enriquez reach into his front sweatshirt pocket, and that he appeared to be holding the wooden handle of a gun. E.E. could see the barrel bulging against the inside of Enriquez's sweatshirt. E.E. told the officer one of the suspects then told him to lift up his shirt and he complied, in fear of being shot. E.E. told the officer when he lifted up his shirt, he heard one of the suspects say, "Give me the gun," and one of the suspects took his cell phone.
"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.' [Citation.]" (People v. Mungia (1991) 234 Cal.App.3d 1703, 1707; People v. Flynn (2000) 77 Cal.App.4th 766, 771; Pen. Code, § 211.) Thus, "'to support a robbery conviction, the taking, either the gaining possession or the carrying away, must be accomplished by force or fear.' [Citation.]" (People v. Flynn, supra, at p. 771.) Whether force or fear existed is a question for the trier of fact. (People v. Mungia, supra, at p. 1707.)
If the robbery is based upon the use of force, the force employed must be more than "just that quantum of force which is necessary to accomplish the mere seizing of the property." (People v. Morales (1975) 49 Cal.App.3d 134, 139.) However, the force or fear required by Penal Code section 211 is not synonymous with a physical corporal assault, and resistance by the victim is not a necessary element. (People v. Mungia, supra, 234 Cal.App.3d at p. 1707.)
If the robbery is accomplished by means of fear, there must be evidence from which it can be inferred the victim was in fact afraid, and such fear either (1) initially allowed the crime to be accomplished (People v. Mungia, supra, 234 Cal.App.3d at p. 1709, fn. 2), or (2) enabled the robber to retain the property after the initial taking. (People v. Flynn, supra, 77 Cal.App.4th at p. 772.) The fear need not be induced by an express threat (id. at p. 771), and the victim need not explicitly testify that he or she was afraid in order to show the use of fear to facilitate the taking. (People v. Mungia, at p. 1709, fn. 2.)
In assessing a claim of insufficiency of evidence, the reviewing court's task is to "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." (People v. Johnson (1980) 26 Cal.3d 557, 578.) The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, "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." (Jackson v. Virginia (1979) 443 U.S. 307, 318-319.)
We need not consider whether the force used to "snatch" the cell phone from E.E.'s hand was sufficient to prove a robbery, because the crime of robbery is committed when either "force or fear" is present. (People v. Cooper (1991) 53 Cal.3d 1158, 1165, fn. 8.) There is ample evidence that fear was used to take E.E.'s cell phone. E.E. testified that he knew the car passing back and forth late at night in disputed gang territory was a sign of danger; and within moments of losing sight of the car, his apprehension mounted when he found himself suddenly surrounded by three men, two of whom he recognized from the car, all of them yelling gang challenges at him in English and Spanish. Defendant Venegas demanded that he raise his arms and lift his shirt, defendant Enriquez displayed a gun, and Venegas told Enriquez to give him the gun. E.E. testified he was scared, and even after he escaped to safety, E.E. could not speak to the 911 operator, so overwhelmed was he by the contemplation of his own death. He described the robbery as "traumatic," so much so that he still felt traumatized at the time of trial. This constitutes substantial evidence from which the jury could reasonably conclude that defendants used fear to accomplish the taking of E.E.'s cell phone. (People v. Renteria (1964) 61 Cal.2d 497, 499; People v. Flynn, supra, 77 Cal.App.4th at p. 771; People v. Prieto (1993) 15 Cal.App.4th 210, 215; People v. Brew (1991) 2 Cal.App.4th 99, 104; see People v. Davison (1995) 32 Cal.App.4th 206, 217.)
We also reject defendants' contention that there was insufficient evidence of the use of a gun. We apply the same standard of review in determining whether substantial evidence supports a sentencing enhancement as we apply in evaluating the evidence supporting a conviction. (People v. Carrasco (2006) 137 Cal.App.4th 1050, 1058.) Defendants and respondent agree that the law requires substantial evidence that defendants displayed a gun to facilitate the commission of the robbery, not merely that they were armed and incidentally or inadvertently exposed a gun. (People v. Chambers (1972) 7 Cal.3d 666, 672 [gun use requires more than being armed with the potential for use; the conduct need not cause harm but only produce "fear of harm or force by means or display of a firearm in aiding the commission of" a specified felony]; People v. Granado (1996) 49 Cal.App.4th 317, 325 ["Thus when a defendant deliberately shows a gun, or otherwise makes its presence known, and there is no evidence to suggest any purpose other than intimidating the victim (or others) so as to successfully complete the underlying offense, the jury is entitled to find a facilitative use rather than an incidental or inadvertent exposure."].) E.E. repeatedly testified that he saw defendant Enriquez display the handle of a gun and the outline of the barrel through his clothes, and that defendant Venegas told Enriquez to give him the gun. There is no evidence to suggest any purpose in Enriquez displaying the gun and Venegas asking for the gun other than to intimidate E.E. so as to successfully complete the robbery.
We turn last to defendant Venegas' claim of sentencing error, which respondent does not dispute. The trial court imposed the 10-year Penal Code section 186.22 gang enhancement and stayed the 10-year Penal Code section 12022.53 gun use enhancement. Relying on People v. Sinclair, supra, 166 Cal.App.4th 848, Venegas asserts this was error and seeks remand with instructions to the trial court to impose the firearm use enhancement and either impose and stay the gang enhancement or exercise its discretion to strike the gang enhancement. As respondent concedes this point, we will remand the matter as to defendant Venegas only, for the limited purpose of resentencing.
DISPOSITION
The judgments of conviction are affirmed. The judgment as to defendant Venegas is reversed as to the sentence only, and remanded for resentencing in conformance with the holding of People v. Sinclair, supra, 166 Cal.App.4th 848.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
GRIMES, J. WE CONCUR:
RUBIN, Acting P. J.
FLIER, J.