Opinion
G053943
03-27-2018
THE PEOPLE, Plaintiff and Respondent, v. KYLE XAVIER YARBER, Defendant and Appellant.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Chief Assistant Attorney General, Arlene A. Sevidal, Assistant Attorney General, Andrew Mestman, Deputy Attorney General, for Plaintiff and Respondent.
ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING; NO CHANGE IN JUDGMENT
The opinion filed in this case on March 27, 2018, is ordered modified as follows:
Insert the following footnote on page 11, at the end of the second sentence of the first full paragraph: "Contrary to Yarber's contention, the threat underlying his conviction for attempting to prevent Erika G. from reporting the robbery—the threat that the robbers know where she lives—was not the same threat upon which his conviction for making a criminal threat was based. His conviction for making a criminal threat was based on the threat made in the restroom to kill Erika G. The threat to kill was made in the course of attempting to get Erika G. to open the safe, and the threat about where she lives was made as Mackie and Yarber attempted to make good their escape."
This modification does not change the judgment. The petition for rehearing is DENIED.
THOMPSON, J. WE CONCUR: MOORE, ACTING P. J. FYBEL, J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15CF1013) OPINION Appeal from a judgment of the Superior Court of Orange County, Cheri T. Pham, Judge. Affirmed in part, modified, and remanded for resentencing. Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Chief Assistant Attorney General, Arlene A. Sevidal, Assistant Attorney General, Andrew Mestman, Deputy Attorney General, for Plaintiff and Respondent.
A jury convicted Kyle Xavier Yarber of robbery (Pen. Code, §§ 211, 212.5, subd. (c)), false imprisonment (§§ 236, 237, subd. (a)), burglary (§§ 459, 460, subd. (b)) of Ace Cash Express (Ace), making a criminal threat (§ 422, subd. (a)), attempting to dissuade a witness from testifying (§ 136.1, subd. (a)(2)), and receiving stolen property (§ 496, subd. (a)). In a bifurcated trial, the trial court found Yarber suffered two prior strike convictions (§§ 667, subds. (d), (e)(2)(A), 1170.12, subds. (b), (c)(2)(A)), had a prior conviction for a serious felony (§ 667, subd. (a)(1)), and served a prior term in state prison (§ 667.5, subd. (b));
All undesignated statutory references are to the Penal Code.
The trial court struck one of Yarber's two strike convictions pursuant to section 1385, subdivision (a). As a result, prison terms on each count were doubled. The court imposed a 10-year term on the robbery conviction and a consecutive five-year term for the serious felony prior conviction. The court then imposed a consecutive one-year four-month term (one-third the middle term, doubled) for the burglary conviction in count 4, concurrent four-year terms (middle term doubled) for the criminal threat (count 5) and dissuading a witness (count 6) convictions, for an aggregate term of 16 years and four months. Yarber's conviction for receiving stolen property was set aside pursuant to People v. Stephens (1990) 218 Cal.App.3d 575, 586 [a defendant cannot generally be convicted of stealing and receiving the same property].
Yarber argues the sentence imposed on his convictions for burglary and attempting to dissuade a witness must be stayed pursuant to section 654. We directed the parties to address whether the conviction in count 6 for attempting to dissuade a witness from testifying (§ 136.1, subd. (a)(2)) should be amended to a conviction for attempting to dissuade a victim from reporting a crime (§ 136.1, subd. (b)(1)).
We conclude the conviction on count 6 should be amended to reflect a conviction for attempting to dissuade a victim from reporting a crime and the sentence imposed on the burglary (count 4) must be stayed pursuant to section 654. We affirm the remaining convictions, and remand the matter for resentencing.
FACTS
The facts involved in this matter are more fully set forth in our unpublished opinion in People v. Mackie, (Mar. 27, 2018, G053400) [nonpub. opn.]. For purposes of this opinion, the following facts suffice.
On May 11, 2015, Ericka G. arrived at work at Ace shortly after 8:20 a.m. Two men, Yarber and Germani Mackie, broke into Ace through the roof, while codefendant Larry Tarver remained outside of Ace on a cell phone, acting as a lookout. One of the defendants inside Ace directed the other to bring Erika G. to the safe located inside Ace. She was then asked to provide the combination for the safe. The safe was opened and Mackie and Yarber left Ace through the ceiling after putting the money from the safe into a backpack. As Mackie and Yarber were leaving, one of them told Erika G., "I have your [identification] I.D. so you better fucking watch it."
DISCUSSION
1. Modification of the Verdict and Abstract of Judgment
Subdivision (a)(2) of section 136.1, the offense with which Yarber was charged and convicted makes it an offense for one to "[k]nowingly and maliciously attempt[] to prevent or dissuade any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law." While subdivision (a)(2) of section 136.1 makes it a crime to attempt to dissuade a victim or witness from testifying in a proceeding, subdivision (b)(1) of section 136.1 makes it unlawful to threaten a victim of a crime in an effort to prevent the victim from reporting the crime. "[E]very person who attempts to prevent or dissuade another person who has been the victim of a crime or who is witness to a crime from doing any of the following is guilty of a public offense and shall be punished by imprisonment in a county jail for not more than one year or in the state prison: [¶] (1) Making any report of that victimization to any peace officer or state or local law enforcement officer or probation or parole or correctional officer or prosecuting agency or to any judge." (§ 136.1, subd. (b)(1).)
The threat to Erika G. about Mackie and Yarber about having her identification was the basis for the alleged violation of section 136.1. The fact that there was no pending case at the time the threat was made means the statement was not made with the intent to prevent her from giving testimony. (See People v. Fernandez (2003) 106 Cal.App.4th 943, 945 [threat as effort to dissuade victim from reporting crime does not include an attempt to dissuade the person from testifying].) Thus, the evidence does not support a conviction for violating subdivision (a)(2) of section 136.1.
Mackie and Tarver also raised the issue of the sufficiency of the evidence in their consolidated appeals. In response, the Attorney General argued the verdict forms and the abstracts of judgments should be amended to reflect convictions for section 136.1, subdivision (b)(1) in place of the convictions for violations of section 136.1, subdivision (a)(2). Because the issue was not raised in this appeal, we ordered Yarber and the Attorney General to address it in supplemental briefs.
"'[A] person cannot be convicted of an offense (other than a necessarily included offense) not charged against him by . . . information, whether or not there was evidence at his trial to show that he had committed that offense.' [Citation.]" (People v. Toro (1989) 47 Cal.3d 966, 973 (Toro), disapproved on another ground in People v. Guiuan (1998) 18 Cal.4th 558, 568, fn. 3.) The rule prohibiting a defendant from being convicted of an uncharged offense, other than a lesser included offense, is based on the lack of notice to the defendant of the need to defend against an uncharged offense. (People v. West (1970) 3 Cal.3d 595, 612.) "Due process of law requires that 'an accused be advised of the charges against him so that he has a reasonable opportunity to prepare and present his defense and not be taken by surprise by evidence offered at his trial.' (People v. Jones (1990) 51 Cal.3d 294, 317.) The due process right to adequate notice in order to prepare for trial "is satisfied when the accused is advised of the charges against him so that he has a reasonable opportunity to prepare and present a defense and is not taken by surprise by the evidence offered at trial." (People v. Ramirez (2003) 109 Cal.App.4th 992, 999.)
The California Constitution requires felonies to be prosecuted by indictment, or by information after a preliminary examination. (Cal. Const., art., I, § 14.) "Notice of the specific charge is a constitutional right of the accused. [Citation.] . . . The information plays a limited but important role—it tells a defendant what kinds of offenses he is charged with and states the number of offenses that can result in prosecution. However, the time, place, and circumstances of charged offenses are left to the preliminary hearing transcript. This is the touchstone of due process notice to a defendant. [Citation.]" (People v. Jeff (1988) 204 Cal.App.3d 309, 341-342.)
A charging allegation in an information is not the sin qua non of the notice required by due process. "A mistake in designating the statute on which a charge is based or in naming an offense is "'immaterial unless the defendant is misled thereby . . . .'" [Citation.] Consistent with this authority, we may not conclude that a [charging document] is insufficient, or set aside a guilty plea or sentence unless we first determine that a "defect or imperfection in matter of form' has 'prejudice[d] a substantial right of the defendant upon the merits.' [Citation.]" (People v. Ramirez, supra, 109 Cal.App.4th at p. 999.) A defendant's substantial rights are affected if "the claimed error . . . resulted in a miscarriage of justice, making it reasonably probable the defendant would have obtained a more favorable result in the absence of error." (People v. Andersen (1994) 26 Cal.App.4th 1241, 1249.)
The evidence presented at the preliminary examination provided the defendants with the notice of the evidence to defend against. "'[I]n modern criminal prosecutions initiated by informations, the transcript of the preliminary hearing, not the accusatory pleading, affords defendant practical notice of the criminal acts against which he must defend.'" (People v. Jones (1990) 51 Cal.3d 294, 318.) The transcript of the preliminary examination, taken in conjunction with the information, notified the defendants the prosecution was charging them in count 6 based on the statement made to Erika G. about her identification and the need for her to "watch it" because the defendants knew where she lived. Thus, the requisite notice was supplied by the information and the evidence presented at the preliminary examination.
Section 1009 permits the district attorney to amend an information "at any stage of the proceedings," so long as the amendment does not prejudice the defendant. "The court may allow amendment of the accusatory pleading to correct or make more specific the factual allegations of the offense charged at any stage of the proceeding, up to and including the close of trial, if there would be no prejudice to the defendant. [Citations.]" (People v. Graff (2009) 170 Cal.App.4th 345, 361-362.) The amendment, however, must be for an offense "'shown by the evidence taken at the preliminary examination.'" (Barragan v. Superior Court (2007) 148 Cal.App.4th 1478, 1484.) We note that although a violation of section 136.1, subdivision (a)(2) was not supported by the evidence at the preliminary examination (People v. Fernandez, supra, 106 Cal.App.4th at p. 945), the evidence did support a violation of subdivision (b)(1) of section 136.1.
There is an exception to the rule prohibiting conviction for an uncharged offense "where a defendant expressly or impliedly consents to have the trier of fact consider a nonincluded offense . . . ." (Toro, supra, 47 Cal.3d at p. 973.) Yarber did not expressly consent to the jury deciding whether he was guilty of violating subdivision (b)(1) of section 136.1. He did, however, impliedly consent when he failed to object to the instruction setting forth the elements of a violation of section 136.1, subdivision (b)(1). (Toro, at p. 977 [failure to object to proposed instruction may be viewed as implied consent to the jury considering the charge in the instruction].) Instructing the jury on the elements of section 136.1, subdivision (b)(1) instead of the elements of a violation of section 136.1, subdivision (a)(2) constructively amended count 6 of the information to allege a violation of section 136.1, subdivision (b)(1). Yarber had "ample opportunity" (see Toro, at pp. 973-974) to object to the instruction and to offer an instruction setting forth the elements of section 136.1, subdivision (a)(2).
The amendment did not prejudice Yarber. Yarber concedes he knew the evidence he had to defend against was the threat made to Erika G. inside Ace—i.e., that the robbers had her identification, so she should be careful—and that the prosecution "was proceeding on the theory that Yarber violated subdivision (b)(1) instead of subdivision (a)(2)." This may explain why the defense did not object to the instruction setting forth the elements of subdivision (b)(1) of section 136.1, instead of subdivision (a)(2) of that section, and why counsel did not address guilt or innocence on count 6, other than to argue Yarber did not aid and abet any offense besides robbery and burglary.
The amended charge was supported by the evidence from the preliminary examination. The charge that was not supported by the evidence at the preliminary examination was the violation of subdivision (a)(2) of section 136.1. Moreover, Yarber did not argue in a section 1118.1 motion that count 6 was not supported by the evidence because no case had been filed prior to the making of the threat. Had defendant done so, he would have been prejudiced by a subsequent constructive amendment changing the offense alleged in count 6. The section 1118.1 motion was heard before the court and counsel addressed the issue of jury instructions. Because Yarber impliedly consented to the jury considering whether he violated section 136.1, subdivision (b)(1) and he suffered no prejudice from the amendment, the guilty verdict form for count 6 must be corrected to show he was convicted of violating that section.
The target of the section 1118.1 motion was the kidnap for purpose of robbery in count 1, and the gun allegations.
Yarber asserts the instruction given in connection with count 6 was "inadvertently" given. We have no reason to suspect the instruction, which set forth the elements of an offense matching the conduct of the defendants and on the theory of guilt upon which Yarber knew the prosecution was relying was inadvertent. --------
To sum up: Generally, a defendant cannot be convicted of an uncharged offense other than necessarily lesser included offenses. An exception to this rule exists when the defendant consents to the jury considering other offenses and consideration of the uncharged offense does not take the defendant by surprise. Here, Yarber concedes counsel knew count 6 was based on a threat made to Erika G. prior to the filing of any charge, and although count 6 charged a violation of section 136.1, subdivision(a)(2), counsel was aware the prosecutor's theory of liability was based on a violation of section 136.1, subdivision (b)(1). By failing to object to the jury being instructed on a violation of subdivision (b)(1) of section 136.1 instead of subdivision (a)(2) as charged in the information, he impliedly consented to the jury basing its verdict on the elements of the former subdivision. Additionally, it cannot be said Yarber was taken by surprise and denied due process. He knew he had to defend against the threat made prior to the filing of charges, and he did not argue to the jury the elements of either subdivision. Therefore, amending the count 6 verdict form to reflect his conviction on count 6 was for a violation of section 136.1, subdivision (b)(1) instead of section 136.1, subdivision (a)(2) is permitted under the particular facts of this case.
The prosecution on count 6 was sloppy. The prosecutor should have known even before filing the felony complaint that the proper charge was a violation of subdivision (b)(1) of section 136.1. When the evidence at the preliminary examination confirmed the wrong charge was made, the district attorney should have filed the proper charge in the information. Defense counsel is not without blame either. A section 995 motion attacking count 6 would have resulted in the setting aside of count 6, or more likely, in the amendment of the information to reflect the proper charge, a violation of subdivision (b)(1) of section 136.1. The defense had a number of opportunities to bring the error to the court's attention. Besides bringing a section 995 motion, counsel could have argued in his section 1118.1 motion that the evidence did not support his conviction on count 6 (as then charged). Counsel could also have objected when review of the jury instructions revealed the jury was to be charged on a violation of section 136.1, subdivision (b)(1) instead of subdivision (a)(2) of the same section. If counsel did not notice the instruction on count 6 covered a different subdivision, another opportunity to object occurred when the court read the instruction to the jury in counsel's presence. While we fully concur with the general rule prohibiting a defendant from being convicted of an uncharged offense, the facts of this case fit within the limited exception to the rule.
2. Section 654
a. Count 4 (Burglary)
As stated above, the trial court imposed a ten-year term on Yarber's robbery conviction and imposed consecutive eight-month terms on his convictions for burglary, criminal threat, and dissuading a witness.
"An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." (§ 654.) Section 654 does not bar multiple convictions; it prohibits multiple punishment where two crimes "were part of an indivisible course of conduct directed to the objective of committing the lesser of the crimes." (People v. Beaumaster (1971) 17 Cal.App.3d 996, 1008.)
The trial court erred in not staying the sentence on the burglary conviction (count 4) pursuant to section 654. The court erroneously concluded section 654 did not apply because the burglary was completed when Mackie and Yarber made their entry into Ace, and the robbery occurred after the burglary had been completed. As the Attorney General acknowledges, the defendants harbored the specific intent to steal when they entered Ace. Robbery was the intended method of committing the theft. More specifically, the thieves intended to steal by means of robbery. The money was in the store's safe and it is evident Mackie and Yarber did not intend to crack the safe. They intended to force an employee to assist them in opening the safe. Thus, there was but one intent and course of action. (See People v. Perry (2017) 154 Cal.App.4th 1521, 1527-1528 [robbery and burglary had same intent and section 654 applied].)
The sentence imposed on the burglary conviction (count 4) are reversed and the matter is remanded for resentencing where the sentence on count 4 must be stayed pursuant to section 654.
b. Count 6 (Attempting to Dissuade a Victim From Reporting Crime)
Yarber maintains the concurrent sentence imposed on count 6 should also be stayed pursuant to section 654. Yarber contends the threat, made after the robbery, was "made for the sole and express purpose of scaring the victim into not reporting the crime and/or assisting law enforcement." From that he claims there was but one criminal objective and the sentence imposed on count 6 should have been stayed. We disagree.
In People v. Nichols (1994) 29 Cal.App.4th 1651, 1654, the defendant and at least two others kidnapped a truck driver in order to steal pallets of compact discs, audiotapes, and videotapes from his trailer. As in the present case, defendant took the victim's driver's license and used his possession of the license to threaten the victim. The defendant told the victim, "If you open your mouth we are going to kill you. I know where you live." (Ibid.) The defendant argued section 654 precluded the court from sentencing him on the kidnapping for purpose of robbery and the threat under section 136.1. (Id. at p. 1656.)
The appellate court found the trial court did not violate section 654 because two different criminal objectives were punished: (1) the intent to hijack the truck and rob the victim, and (2) the intent to avoid arrest and conviction by threatening the victim. (People v. Nichols, supra, 29 Cal.App.4th at pp. 1657-1658.) In addition, the court found the means of achieving each objective was different. The robbery was committed by placing a shotgun to the victim's head, while the second offense was committed by reading the victim's address off of his driver's license and threatening future harm. (Id. at p. 1658.)
In this matter, there were two criminal objectives as well. One was to commit a robbery. Yarber and his codefendant Mackie accomplished that when they forced Erika G. to open the safe and they removed the money from within. The second intent was to scare Erika G. into not reporting the crime. This occurred after Yarber and Mackie acquired the money and were making their escape back through the ceiling of Ace. The failure to stay the sentence on count 6 did not violate section 654.
DISPOSITION
The guilty verdict form on count 6 is ordered corrected to reflect the conviction on count 6 was for a violation of section 136.1, subdivision (b)(1). The remaining convictions are affirmed. The matter is remanded for resentencing. On remand, the trial court is directed to stay the sentence on count four pursuant to section 654.
THOMPSON, J. WE CONCUR: MOORE, ACTING P. J. FYBEL, J.