David L. Polsky, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan Sullivan Pithey and David Zarmi, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
(Los Angeles County Super. Ct. No. GA077067)
APPEAL from a judgment of the Superior Court of Los Angeles County, Dorothy L. Shubin, Judge. Affirmed in part and reversed in part.
David L. Polsky, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan Sullivan Pithey and David Zarmi, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Javier Estrada Ramirez appeals from the judgment entered following his conviction by jury on four counts related to a carjacking incident. Appellant contends that the evidence was insufficient to sustain a robbery count because he did not use force or fear to take personal property from the person named in the information. Appellant's second contention is that the trial court erred in refusing to stay the sentence on the robbery count pursuant to Penal Code section 654. We conclude that the evidence was insufficient to sustain the robbery conviction, and so reverse the conviction on that count. In all other respects the judgment is affirmed.
Subsequent statutory references will be to the Penal Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
On June 14, 2009, around 7:00 p.m., Guadalupe Rivera went with Carlos Sanchez to a liquor store in Duarte. Sanchez drove them in Rivera's car, a Nissan Pathfinder, and parked in front of the entrance to the liquor store. When they arrived, they saw appellant walking out of the liquor store toward his car, a white Ford Thunderbird that was parked next to Rivera's car. Appellant's wife, Juana Cruz, was in the driver's seat of the Thunderbird, and Marisol Gutierrez was in the back seat. Rivera knew appellant because she formerly was in a relationship with appellant's cousin, and she was friends with Cruz.
Cruz and Gutierrez were charged in the same information as appellant, but they were found not guilty and are not parties to this appeal.
Rivera greeted appellant and then asked Sanchez if he wanted anything from the liquor store. Appellant overheard Rivera mention beer and asked Rivera if she would get him some. Rivera had purchased beer for appellant on other occasions, but this time she said she would not buy him any. Sanchez did not want anything. Before walking into the store, Rivera looked at Gutierrez and said, "I know you."
Rivera bought herself two beers from the liquor store, and when she came out of the store, she noticed that appellant's car was parked directly behind her car. Rivera put the two beers in her car through an open window.
Appellant and Gutierrez got out of the Thunderbird and came toward the back of Rivera's car. Rivera did not notice what appellant was doing. Gutierrez walked up to Rivera and said, "Remember when you guys jumped me in high school?" Rivera testified that 11 years earlier, a friend of hers had been in a fight with Gutierrez, but Rivera had not seen Gutierrez since then. Gutierrez hit Rivera in the face, and the two women started fighting. Rivera fell to the ground and was holding onto Gutierrez when she heard Cruz tell Gutierrez, "Let's go. Drop it already. Let's go." Gutierrez got back in the Thunderbird and after their car left, Rivera noticed her car was gone. Rivera testified that she had left her purse inside her car.
Sanchez testified that he had known appellant for a few years, so he greeted him when he saw appellant walking out of the liquor store. Sanchez saw Rivera fighting with Gutierrez, but he did not see how the fight started. While they were fighting, appellant walked up to Rivera's car and told Sanchez to get out of the car. Appellant was holding a tire iron. Sanchez got out of the car, and appellant got in the car and drove away. After Rivera stopped fighting, Sanchez told her appellant had taken her car. Because Rivera had been fighting with Gutierrez, she did not notice anything that appellant said or did.
Rivera called the police, and Los Angeles County Sheriff's Deputy Thomas Conger arrived at the liquor store around 7:24 p.m. in response to her call. While Rivera was speaking with Deputy Conger, the Thunderbird drove past and stopped at a red light. Cruz was driving, and there were two men in the car with her. Rivera pointed the Thunderbird out to Deputy Conger and told him that was the car that was involved. Deputy Conger got in his car and stopped the Thunderbird.
Susan Martell testified that she was walking to a bus stop in Duarte around 7:00 p.m. on June 14, 2009. As she approached some train tracks, she saw a telephone pole cracked in half and saw a man walking on the train tracks in the opposite direction from her. Martell described the man as Hispanic, with a shaved head and tattoos on the back of his head, and she identified appellant at trial. Martell saw skid marks, a tree and a rock that had been hit, and a car on its side. There was no one in the car, but it was still running, so Martell called 911.
Deputy Robert Jorgensen responded to Martell's call and saw a Nissan Pathfinder on its side that appeared to have hit a rock and crashed into a telephone pole, which was broken in half. The accident occurred about a mile from the liquor store.
Rivera was taken to the hospital after the incident. Sanchez went to visit her in the hospital, and he spoke with Deputy Conger there. Sanchez told Deputy Conger that when appellant first told him to get out of the car, he was not sure if he heard him correctly. Sanchez then saw that appellant was holding a tire iron, so he got out of the car, and appellant drove away in the car. According to Deputy Conger, Sanchez said that he got out of Rivera's car because he was afraid appellant was going to hit him with the tire iron; however, Sanchez did not recall making this statement when he testified at trial.
Sanchez did not speak with Deputy Conger at the liquor store and apparently was not there when Deputy Conger arrived.
Sanchez spoke with Deputy Joseph Morales on June 16, 2009, but he testified that he did not remember speaking with Deputy Morales at all. Sanchez told Deputy Morales that appellant was holding a tire iron. Deputy Morales found Rivera's car at a tow yard, and he found a tire iron on the front passenger floorboard.
On June 18, 2009, Deputy Morales arrested appellant at his home. Appellant was standing in front of his home with two men, one named Paul Portillo. Deputy Calvin Mah asked Portillo for identification, and Portillo handed Deputy Mah a sleeve or envelope containing several cards. The envelope contained Portillo's identification, but it also contained Rivera's driver's license and social security card.
After advising appellant of his Miranda rights, Deputy Morales asked appellant if he was at the liquor store on June 14, and appellant said he was. (Miranda v. Arizona (1966) 384 U.S. 436.) According to Deputy Morales, appellant told him that he took Rivera's car. Appellant did not testify at trial.
Appellant was charged by information with four counts: count 1, carjacking (§ 215, subd. (a)); count 2, second degree robbery of personal property from Rivera (§ 211); count 3, assault with a deadly weapon against Sanchez (§ 245, subd. (a)(1)); and count 4, hit-and-run driving (Veh. Code, § 20002, subd. (a)). It was further alleged as to count 1 that appellant personally used a deadly weapon within the meaning of section 12022, subdivision (b)(1), and as to counts 1, 2, and 3, that appellant had served three prior prison terms within the meaning of section 667.5, subdivision (b).
Following the close of evidence, defense counsel moved for acquittal under section 1118.1, arguing that there was insufficient evidence of robbery because there was no evidence that appellant knew Rivera's purse was in the car and intended to steal her purse and the beer she had purchased. He also argued that the evidence was insufficient to establish the use of force or fear to sustain the carjacking count because Rivera did not know Ramirez held a tire iron. The trial court denied the motion, reasoning that appellant saw Rivera put the beer in her car.
The jury found appellant guilty of all four counts and found the deadly weapon allegation to be true. Appellant admitted the allegations of 3 one-year priors. The court sentenced appellant to a nine-year prison term, calculated as follows: the midterm of five years on count 1; the midterm of three years on count 2, to run concurrent; the midterm of three years on count 3, stayed pursuant to section 654; six months on count 4, to run concurrent; 3 one-year terms pursuant to section 667.5, subdivision (b); and one year pursuant to section 12022, subdivision (b)(1). Appellant filed a timely notice of appeal.
Appellant contends that the evidence is insufficient to sustain the robbery conviction because there was no evidence he applied force or fear against Rivera, whom the information named as the victim of the robbery.
"When reviewing a judgment for sufficiency of the evidence, an appellate court 'must "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." [Citations.]' [Citation.] 'The reviewing court presumes in support of the judgment the existence of every fact the jury could reasonably deduce from the evidence.' [Citation.]" (People v. Bamberg (2009) 175 Cal.App.4th 618, 625.)
"The robbery statute, Penal Code section 211, describes robbery as '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.'" (People v. Burns (2009) 172 Cal.App.4th 1251, 1258.) "[T]he aggravating factors that elevate a theft to a robbery [are] the use of force or fear and the taking from the victim's presence." (People v. Gomez (2008) 43 Cal.4th 249, 255.)
The prosecutor's theory of the case was that appellant, Cruz, and Gutierrez formulated a plan to steal Rivera's car, purse, and beer; thus, Gutierrez started the fight with Rivera in order to distract Sanchez and to prevent Rivera from protecting her car and belongings. The information named Rivera as the victim of the robbery, alleging that appellant, Cruz, and Gutierrez used force and fear to "take personal property from the person, possession, and immediate presence of GUADALUPE RIVERA."
In support of the robbery conviction, the prosecutor argued that the property was taken from Rivera's immediate presence, stating that appellant took the property while Rivera was in the fight about five feet away. She further argued that appellant used force against Sanchez to take Rivera's property and that, because appellant "was ready to use the tire iron against Mr. Sanchez he certainly would have used it against anyone, including Ms. Rivera, to take the items that were inside the car."
The record thus indicates that, in order to establish the force or fear element of robbery, the prosecutor argued that appellant would have used force against Rivera if needed. However, there was no evidence that appellant used any force or fear against Rivera.
Respondent relies on People v. Foster (1926) 198 Cal. 112 (Foster) and People v. Silverman (1939) 33 Cal.App.2d 1 (Silverman) to argue that substantial evidence supported the robbery conviction. Respondent also cites section 956 to argue that the information's allegation that Rivera, not Sanchez, was the victim of the robbery was immaterial.
The statute provides: "When an offense involves the commission of, or an attempt to commit a private injury, and is described with sufficient certainty in other respects to identify the act, an erroneous allegation as to the person injured, or intended to be injured, or of the place where the offense was committed, or of the property involved in its commission, is not material." (§ 956.)
In Foster, an information charged the defendant with the robbery of a candy store and named as the victim, an employee of the store, Mr. Fisher. The evidence presented at the preliminary examination and at trial indicated that the defendant pointed a gun at a different employee, Freda Knuebel, and that Fisher walked into the store directly after the defendant had taken the money and was trying to leave the store. The court explained that "[i]t was these rapidly occurring incidents that caused the confusion in the pleader's mind." (Foster, supra, 198 Cal. at p. 118.) Because the robbery was committed in Knuebel's presence, not Fisher's, the trial court allowed the information to be amended to substitute Knuebel's name for Fisher's. The defendant challenged the amendment of the information.
The California Supreme Court held that the amendment was not erroneous, reasoning that the information charged the defendant with committing a robbery on a certain date in the County of Los Angeles, "and the amount of money taken by means of force and fear by the defendant was alleged to be the sum of $23, the exact amount which was proved at the trial to have been taken by the defendant by means of force and fear." (Foster, supra, 198 Cal. at p. 122.) Because the evidence at the preliminary examination and at trial "identified the offense as being the same offense in each proceeding," and the proof did not vary from the information, the court held that the defendant's substantial rights were not prejudiced by the amendment. (Id. at p. 123.)
Unlike Foster, the issue here is not the amendment of the information. The prosecutor did not move to amend the information, but instead proceeded under the theory that appellant, Cruz, and Gutierrez took personal property from Rivera.
In Silverman, the defendant was convicted of issuing a check without sufficient funds after he wrote a check to a hotel for $1,500 more than he owed the hotel and received that amount in cash. The information charged the defendant with defrauding the hotel cashier and the bank on which the check was drawn, but did not name the hotel as a victim. The court upheld the conviction, reasoning that "[i]t has been frequently held that convictions may be upheld notwithstanding the informations stated erroneous names as owners of stolen property." (Silverman, supra, 33 Cal.App.2d at p. 4.)
The instant case does not present a situation in which the information merely "stated erroneous names as owners of stolen property." (Silverman, supra, 33 Cal.App.2d at p. 4.) It is not simply a matter of error in the pleadings. (Cf. People v. Albin (1970) 9 Cal.App.3d 31, 37 [finding sufficient evidence to support a grand theft conviction where the victim was Mrs. Bradbrook, but the deputy district attorney referred to a "Mrs. Bradley" during grand jury proceedings, and the indictment did not include the victim's name]; People v. Maloney (1928) 92 Cal.App. 371, 374-375 [upholding a robbery conviction where the victim was described in the information as "Leon Ramola," but it was proved that the defendant robbed "Ramolo Leon"].) Rather, the question is whether the elements of the offense have been established.
As discussed above, the theory of the robbery charge was that appellant, Cruz, and Gutierrez took personal property from Rivera and that, because appellant was ready to use force against Sanchez, he would have used it against Rivera in order to take her personal property inside her car. However, establishing that a defendant "would have" used force against a robbery victim is not sufficient to sustain a robbery conviction. Nor may a robbery conviction be sustained based upon the defendant putting "any person in fear of immediate serious bodily injury." (People v. Nguyen (2000) 24 Cal.4th 756, 763.) Even if this were sufficient, there was no evidence that Rivera was aware appellant used force against Sanchez. The robbery conviction therefore must be reversed.
The prosecution did not rely on the theory that Sanchez had constructive possession of Rivera's property. Cases addressing whether the robbery victim had a special relationship with the owner of the property, such as employee-employer or parent-child, are therefore inapposite. (See, e.g., People v. Weddles (2010) 184 Cal.App.4th 1365, 1369-1370; People v. Ugalino (2009) 174 Cal.App.4th 1060, 1065.)
In light of our conclusion, we need not reach appellant's contention that his sentence on the robbery count should have been stayed under section 654.
The conviction on count 2, second degree robbery, is reversed, and the sentence on that count is stricken. There is no other change in the sentence. In all other respects the judgment is affirmed. The clerk of the superior court is directed to amend the abstract of judgment and to forward a copy to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, ACTING P. J. We concur: