Opinion
G044586 Super. Ct. No. 10CF1254
12-13-2011
THE PEOPLE, Plaintiff and Respondent, v. ARMANDO CARO, Defendant and Appellant.
James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Ron Jakob and Kelley Johnson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from a judgment of the Superior Court of Orange County, Gregg L. Prickett, Judge. Affirmed in part, reversed in part, and remanded.
James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Ron Jakob and Kelley Johnson, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Armando Caro of two counts of robbery and one count of commercial burglary (Pen. Code, §§ 211, 459-460; all further undesignated statutory references are to this code), and he subsequently admitted he suffered certain prior strike and prior serious felony convictions. On appeal, Caro challenges the sufficiency of the evidence to support his conviction on one of the two robbery counts, and he also contends section 654 required the trial court to stay the sentence it imposed on the burglary count instead of running the sentence concurrently. Only the latter contention has merit, and we therefore reverse that portion of the judgment, with directions on remand for the trial court to enter the requisite stay under section 654. In all other respects, we affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
Caro entered a grocery store in Santa Ana late on a Saturday afternoon. Jose Gonzalez, a loss prevention officer at the store, immediately noticed Caro because of his baggie pants and large shirt. Gonzalez's loss prevention partner, Michael Resultay, also noticed Caro's clothing, explaining that "big jackets, loose clothing, [and] big purses" draw security attention; moreover, Caro appeared "drunk" and, after a stop at the restroom, he drew added scrutiny because he "just went straight for the liquor aisle." Gonzalez and Resultay, both in plainclothes, observed Caro pull a $45 bottle of whiskey from the shelf and move to the next aisle, where he concealed the bottle in his waistband. The security officers formulated a plan over their cell phones for Gonzalez to wait outside the store to confront Caro if he did not pay for the alcohol.
Caro left the store without stopping to pay at a register. When Gonzalez approached him outside the store and identified himself as a loss prevention officer, Caro pushed him to the side. As Resultay pursued Caro out of the store, he saw Caro shove Gonzalez, who stumbled. But Gonzalez righted himself and grabbed Caro's arm. Gonzalez testified, "[T]hat's when my partner [Resultay] came out and grabbed him from the back. We asked him to stop resisting, to put his hands behind his back. He kept on resisting, so we took him down to the ground." (Italics added.) Once on the ground, it still took several minutes to subdue Caro, who was heavier than Resultay. Resultay applied a choke hold, but Caro, with the bottle tucked away in his pants, buried his hands under his body in the ongoing struggle, preventing the officers from handcuffing him.
After several minutes, Caro gave up his resistance, complied with commands to place his hands behind his back, and the officers handcuffed him and led him to the loss prevention holding room. Resultay recapped the events outside the store in a summary manner: "Caro pushed Gonzalez, and I immediately grabbed ahold of Caro, got him in a hold and we handcuffed the suspect and we got him back inside the store." (Italics added.) After a Santa Ana Police Department officer arrived and advised Caro of his rights under Miranda v. Arizona (1966) 384 U.S. 436, Caro admitted he entered the store to steal something, spotted the bottle of liquor and decided to steal it, for which he apologized. The officer arrested Caro and transported him to jail.
After the jury's verdict as noted above, the trial court sentence Caro to an 11-year prison term consisting of six years on one robbery count (midterm of three years doubled under the Three Strikes law (§§ 667, subds. (d), (e)(1), 1170.12, subd. (b)), plus five years for the serious felony prior conviction (§§ 667, subd. (a)(1), 1192.7). The trial court imposed concurrent sentences on the other robbery count and the commercial burglary count. Caro now appeals.
II
DISCUSSION
A. Substantial Evidence Supports the Robbery Conviction in Count 1
Caro concedes that in resisting Gonzalez's efforts to detain him, and specifically in pushing Gonzalez away, the evidence supports the robbery count concerning Gonzalez (count 2), but he challenges the sufficiency of the evidence for the robbery count against Resultay (count 1). As we explain, Caro's challenge fails.
Substantial evidence is defined as evidence that is reasonable, credible, and of solid value. (People v. Elliot (2005) 37 Cal.4th 453, 466.) A reviewing court faced with a claim of insufficient evidence must determine "'"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." [Citation.] . . .'" (People v. Crabtree (2009) 169 Cal.App.4th 1293, 1321-1322.) But it is the jury, not the reviewing court that must be convinced of the defendant's guilt beyond a reasonable doubt; consequently, a plausible, contrary reading of the evidence does not suffice to reverse the judgment. (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054.) Rather, our appellate role requires that we review the record in the light most favorable to the trier of fact's conclusions, draw every reasonable inference in favor of the jury's verdict (ibid.), and affirm the judgment unless under "no hypothesis whatever is there sufficient substantial evidence to support it" (People v. Redmond (1969) 71 Cal.2d 745, 755). Thus, an appellant "bears an enormous burden" when challenging the sufficiency of the evidence. (People v. Sanchez (2003) 113 Cal.App.4th 325, 330.)
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.) Robbery "begins from the time of the original taking," continues "until the robber reaches a place of relative safety," and "[the evidence] is sufficient . . . [if the defendant] used force to prevent the . . . retaking [of] the property and to facilitate his escape." (People v. Estes (1983) 147 Cal.App.3d 23, 28 (Estes).) "The use of force or fear to escape or otherwise retain even temporary possession of the property constitutes robbery." (People v. Flynn (2000) 77 Cal.App.4th 766, 772; see People v. Gomez (2008) 43 Cal.4th 249, 256 [force used to stave off one pursuer, but police arrested robber nearby]; People v. Pham (1993) 15 Cal.App.4th 61, 66 [robbery committed where the defendant forcefully "prevented the victim (i.e., security guard) from regaining the property, albeit temporarily"].) It is the use of force or fear in taking property from a victim's presence that elevates a theft by larceny to robbery. (Gomez, at p. 255; see also People v. Bradford (2010) 187 Cal.App.4th 1345, 1350 [security guards constructively possess property they are charged to protect, and thus may be robbery victims].)
Caro contends he "did not assault Resultay or employ any force upon Resultay so as to support a separate robbery count on Resultay." Caro relies on Resultay's testimony that Resultay "immediately grabbed ahold of Caro, got him in a hold and we handcuffed the suspect and we got him back inside the store." But Caro overlooks Gonzalez's explanation that the confrontation was more involved than Resultay's brief summary. Caro, who was larger than Resultay, physically resisted both men's efforts to subdue him. Gonzalez testified, "We asked him to stop resisting, to put his hands behind his back. He kept on resisting, so we took him down to the ground." (Italics added.) (See People v. Brew (1991) 2 Cal.App.4th 99, 104 [relative size of defendant and victim a factor].) Even on the ground, Caro continued to struggle with the security officers, and the jury reasonably could conclude his repeated attempts to force his way from their grasp elevated the confrontation beyond mere larceny, and constituted robbery. (Estes, supra, 147 Cal.App.3d at p. 28 [robbery occurs "[w]hether defendant used force to gain original possession of the property or to resist attempts to retake the stolen property"].) Consequently, the standard of review requires that we affirm Caro's conviction for robbing Resultay. B. Section 654 Required a Stay of Caro's Burglary Conviction
Caro contends section 654 required the trial court to stay his sentence for commercial burglary in count 3 instead of imposing a concurrent term. The Attorney General merely argues that because the trial court imposed a concurrent term, it necessarily determined the Three Strikes law did not require consecutive sentences, but did not determine whether section 654 barred multiple punishment. Consequently, the Attorney General argues that we should remand the case so the trial court may exercise its sentencing discretion in the first instance. As we explain, however, the trial court could not impose a concurrent sentence under section 654. (See People v. Guzman (1996) 45 Cal.App.4th 1023, 1028 (Guzman) [noting "that common error of imposing concurrent terms, in lieu of staying the terms subject to . . . section 654"].)
Section 654 provides, "(a) 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. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other."
It is "settled law" that section 654 bars punishment for both burglary and robbery where the defendant harbors the same purpose in committing both crimes. (People v. Smith (1985) 163 Cal.App.3d 908, 912; see also People v. Le (2006) 136 Cal.App.4th 925, 931 [section 654 barred multiple punishment where burglary and robbery were committed with single intent of stealing whiskey and diapers from a drugstore]; Guzman, supra, 45 Cal.App.4th at pp. 1027-1028 [multiple punishment for burglary and robbery where defendant stole and attempted to escape with motorcycle].)
Section 654 does not apply to the commission of two violent offenses against two different victims. (Guzman, supra, 45 Cal.App.4th at p. 1028.) But the burglary Caro committed did not constitute a violent offense. (Ibid.) Thus, section 654 applies and required the trial court to stay the burglary term.
III
DISPOSITION
The judgment is affirmed in all respects except that Caro's sentence on count 3 for commercial burglary must be stayed under section 654. On remand, the trial court is directed to prepare and forward to the Department of Corrections and Rehabilitation an amended abstract of judgment reflecting the stay under section 654.
ARONSON, ACTING P. J. WE CONCUR: FYBEL, J. IKOLA, J.