People v. Gonsalves CA3 ( 2021 )

Filed 5/5/21 P. v. Gonsalves CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Butte)
----
THE PEOPLE, C087003 & C090796
Plaintiff and Respondent, (Super. Ct. No. CM036102)
v.
LORAYNA PATRICIA GONSALVES,
Defendant and Appellant.
Defendant Lorayna Patricia Gonsalves was convicted by jury of one count of first
degree residential robbery (Pen. Code, §§ 211, 212.5, subd. (a))1 and one count of home
invasion robbery (§ 213, subd. (a)(1)(A)) based on the same conduct. With respect to
each count, the jury also found a principal was armed with a firearm (§ 12022,
subd. (a)(1)) and defendant personally used a deadly weapon, i.e., a baseball bat
1 Undesignated statutory references are to the Penal Code.
1
(§ 12022, subd. (b)(1)). In a bifurcated proceeding, the trial court found defendant had
one prior serious felony conviction (§ 667, subd. (a)), qualifying as a strike within the
meaning of the three strikes law (§§ 667, subds. (b)-(i), 1170, subds. (a)-(d)), and for
which she served a prior prison term (§ 667.5). Defendant was sentenced to serve an
aggregate determinate term of 25 years in state prison.
Defendant appeals. In case No. C087003, she argues: (1) we must reverse her
conviction for first degree residential robbery because that crime is a necessarily included
offense of home invasion robbery; (2) the evidence is insufficient to support defendant’s
conviction for either count of robbery and is also insufficient to support the attached
enhancements for personal use of a deadly weapon; (3) defendant’s trial counsel provided
constitutionally deficient assistance by failing to object to a certain question posed by the
prosecutor to a witness who lived at the residence where the robbery occurred, the
response to which supplied the only evidence that the victim had a small amount of
money taken from him during the robbery; (4) the aforementioned question also
amounted to prejudicial prosecutorial misconduct; (5) we must modify the judgment to
stay one of defendant’s weapon enhancements; and (6) we must remand the matter for a
new sentencing hearing because Senate Bill No. 1393 (2017-2018 Reg. Sess.) (Senate
Bill 1393) (Stats. 2018, ch. 1013, §§ 1, 2), giving the trial court discretion to strike five-
year prior serious felony enhancements in the interest of justice, applies retroactively to
cases not yet final on appeal.
While the appeal in C087003 was pending, the trial court recalled the sentence
pursuant to section 1170, subdivision (d), and resentenced defendant in light of Senate
Bill 1393, striking the five-year enhancement term in the interest of justice, and affirming
the previous sentence in all other respects, resulting in an aggregate determinate term of
20 years in state prison. Defendant appeals from this judgment as well, arguing in case
No. C090796 that we must also strike the one-year prior prison term enhancement
because Senate Bill No. 136 (2019-2020 Reg. Sess.) (Stats. 2019, ch. 590, § 1),
2
eliminating such enhancements for defendant’s prior crime, also applies retroactively to
cases not yet final on appeal, and the abstract of judgment must be corrected to reflect the
oral pronouncement thereof. We consolidated the appeals for purposes of argument and
disposition.
We conclude the judgments entered against defendant must be reversed because
she received constitutionally deficient representation at trial. As we explain more fully
later in the opinion, defendant’s trial counsel failed to object to inadmissible evidence
that was the only evidence supporting an essential element of the crime of robbery.
There is no conceivable tactical reason that could justify counsel’s failure to object to this
evidence. Nor are we persuaded by the Attorney General’s argument that the failure was
harmless. This conclusion obviates the need to address most of defendant’s remaining
claims in her consolidated appeals. We do, however, address her challenges to the
sufficiency of the evidence in order to determine whether this case may be remanded to
give the People the option of retrial. We conclude her convictions and enhancement
findings are supported by substantial evidence. We also consider defendant’s claim,
conceded by the Attorney General, that she was improperly convicted of both a greater
and lesser included offense in order to provide guidance on remand in the event the
People do elect to retry her. We accept the concession. Defendant may not be convicted
of both first degree residential robbery and home invasion robbery based on the same
conduct. We shall remand the matter to the trial court for retrial if the People so elect
within 30 days of the issuance of the remittitur.
FACTS
In November 2011, Y. lived in Chico with her boyfriend, V., and their two small
children. V. sold illegal drugs, often carried cash on him, and seemed to enjoy opening
his wallet in front of other people to display the money. As Y. explained, “he came from
nothing” and “liked showing it off to people.” On the night of the robbery, they had two
guests at their apartment, R. and his wife. R., who would soon become the robbery
3
victim, was both a friend and a mechanic. He was at the apartment earlier in the day to
help V. work on a car. He forgot his jacket when he left that afternoon. Returning in the
evening to pick it up, he and his wife ended up staying to watch a movie.
The robbery unfolded as follows. Y. answered a knock at the door. Defendant, “a
girl [she] had never seen in [her] life,” was on the other side. Defendant asked for V.,
who came to the door. The two briefly spoke and defendant left. A short time later, Y.
answered a second knock at the door. This time, there was a man on the other side. Y.
recognized him as one of her brother’s friends, so she let him come inside. The new
arrival went into the kitchen and started talking to R., who was also in the kitchen. While
Y. could not hear what they were saying, she later learned the man demanded money
from R., causing her to believe the man mistook R. for her boyfriend. Y. then heard
“pushing and shoving” coming from the kitchen, followed by a gunshot.
The sound of the gunshot brought additional people into the apartment. As Y.
described the intruders, there were “several males” and “the girl that first came.”
Defendant entered the apartment with a metal baseball bat. Her companions entered
demanding: “Where’s the money? Where’s the money?” Y. immediately ran to protect
her daughter, who was asleep in the living room. V. grabbed their son and took him into
a bedroom. They escaped through a window with the help of R.’s wife, who used her
body to block the door to the bedroom. As the intruders dispersed through the small
apartment in search of money, defendant stood next to R. with the baseball bat. R. had
been shot in his right hand and was lying on the kitchen floor. It appeared to Y. that
defendant was ensuring that he did not get up. Not long after they arrived, defendant said
to her companions: “There’s nothing here. There’s nothing here. Let’s go.” Following
her direction, they left as quickly as they came.
The only evidence that anything of value was taken during these events came in
the form of Y.’s answer to the following question: “And it was your understanding that
4
[R.] lost only a small amount of cash?” Y. answered: “Yeah.” We place this answer in
its proper context during the discussion portion of the opinion, to which we now turn.
DISCUSSION
I
Ineffective Assistance of Counsel
Defendant contends her trial counsel provided constitutionally deficient assistance
by failing to object to the following question: “And it was your understanding that [R.]
lost only a small amount of cash?” As previously stated, Y.’s affirmative response
supplied the only evidence anything of value was taken during the robbery. We agree
counsel’s failure to object to this question amounted to ineffective assistance of counsel.
A.
Additional Background
During Y.’s direct examination, the prosecutor asked: “At some point was
someone able to get some money from [R.]?” Y. answered: “He told me only like $10.”
At this point, a hearsay objection was sustained, and the response was stricken. The
prosecutor then asked Y. whether she remembered speaking with a detective and whether
she was truthful with him. Y. answered both questions in the affirmative. When asked
whether she remembered telling the detective “that [R.] had a few dollars taken from
him,” Y. responded: “No, I don’t remember that.” The prosecutor then moved on to
other aspects of the robbery. A short time later, the prosecutor ended the direct
examination with the question at issue here: “And it was your understanding that [R.]
lost only a small amount of cash?” Y. answered: “Yeah.” Defense counsel did not
object.
B.
Analysis
A criminal defendant has the right to the assistance of counsel under both the Sixth
Amendment to the United States Constitution and article I, section 15, of the California
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Constitution. (People v. Ledesma (1987) 43 Cal.3d 171, 215.) This right “entitles the
defendant not to some bare assistance but rather to effective assistance. [Citations.]
Specifically, it entitles him [or her] to ‘the reasonably competent assistance of an attorney
acting as his [or her] diligent conscientious advocate.’ [Citations.]” (Ibid.) The burden
of proving a claim of ineffective assistance of counsel is squarely upon the defendant.
(People v. Camden (1976) 16 Cal.3d 808, 816.) “ ‘In order to demonstrate ineffective
assistance of counsel, a defendant must first show counsel’s performance was “deficient”
because his [or her] “representation fell below an objective standard of reasonableness
. . . under prevailing professional norms.” [Citations.] Second, he [or she] must also
show prejudice flowing from counsel’s performance or lack thereof. [Citation.]
Prejudice is shown when there is a “reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” ’ ” (In re Harris (1993) 5 Cal.4th 813, 832-833; Strickland v. Washington
(1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693].)
“[R]obbery is the ‘felonious taking of personal property in the possession of
another, from his [or her] person or immediate presence, and against his [or her] will,
accomplished by means of force or fear.’ (§ 211.) First degree residential robbery is
robbery perpetrated in an ‘inhabited dwelling house.’ (§ 212.5, subd. (a).) Home
invasion robbery is first degree residential robbery committed ‘in concert’ with two or
more other people. (§ 213, subd. (a)(1)(A).)” (People v. Hutchinson (2018) 20
Cal.App.5th 539, 550 (Hutchinson).) Thus, both of defendant’s robbery convictions
required proof that a taking of personal property occurred.2
2 As we explain later in this opinion, because first degree residential robbery is a
lesser included offense of home invasion robbery, defendant should not have been
convicted of both offenses.
6
Defendant argues her trial counsel’s failure to object to the question regarding Y.’s
“understanding” that R. lost a small amount of cash during the robbery fell below an
objective standard of reasonableness because the question was objectionable for several
reasons and elicited the only evidence supporting an essential element of robbery. The
heart of defendant’s problem with the challenged question is that it lacked any foundation
for Y. having personal knowledge that a taking occurred, as opposed to her having
learned about it from R., whose statements in that regard were inadmissible hearsay. 3
We agree.
Subject to an exception for expert witnesses not applicable here, “the testimony of
a witness concerning a particular matter is inadmissible unless he [or she] has personal
knowledge of the matter.” (Evid. Code, § 702, subd. (a).) “Against the objection of a
party, such personal knowledge must be shown before the witness may testify concerning
the matter” and “may be shown by any otherwise admissible evidence, including his [or
her] own testimony.” (Id., subds. (a) & (b).)
3 Defendant also argues the question was leading. “A ‘leading question’ is a
question that suggests to the witness the answer that the examining party desires.” (Evid.
Code, § 764.) Leading questions “may not be asked of a witness on direct or redirect
examination” except in “special circumstances where the interests of justice otherwise
require.” (Evid. Code, § 767, subd. (a).) The question, “And it was your understanding
that [R.] lost only a small amount of cash?” plainly suggested the desired answer was that
this was Y.’s understanding. However, one of the special circumstances in which leading
questions are allowed on direct examination is when the question is “ ‘necessary to
stimulate or revive [the witness’s] recollection.’ [Citations.]” (People v. Collins (2010)
49 Cal.4th 175, 215.) Here, Y. testified that she did not remember telling the detective
that R. had a few dollars taken from him. Accordingly, leading questions concerning
those prior statements were permissible. (Ibid. [leading questions seeking to revive
witness’s recollection of prior conversation with detective permissible on direct
examination].) The prosecutor’s question about her understanding that R. lost a small
amount of money during the robbery is arguably about her prior statement to the
detective, i.e., “And it was your understanding [at the time you spoke to the detective]
that [R.] lost only a small amount of cash?” Thus, we cannot conclude an objection on
leading grounds would have been properly sustained.
7
Here, defendant’s trial counsel did not object to the question, so the prosecutor
was not called upon to establish Y.’s personal knowledge. It is this failure to object that
must be assessed as either reasonable or unreasonable. Based on the totality of Y.’s
testimony, it is apparent that she did not have personal knowledge of what transpired
between R. and the man who shot him in the kitchen except to the extent that she heard
the sounds of an argument and scuffle followed by a gunshot. R. later told her that he
lost a small amount of money during these events. Based on Y.’s testimony, she did not
witness the taking herself.
However, Y.’s testimony is not the only way to show she had personal knowledge
of the taking. Other admissible evidence on the matter would also suffice. (Evid. Code,
§ 702, subd. (b).) While no such evidence was offered, none was called for because no
objection was made by defense counsel. But if the prosecution possessed such evidence,
and defense counsel knew of its existence, the failure to object would not have been
unreasonable because such an objection would have been properly overruled. On the
other hand, if the prosecution was not prepared to establish Y.’s personal knowledge by
other means, we perceive no rational tactical purpose for failing to object. Indeed, Y.’s
response to the challenged question supplied the only evidence of an essential element of
robbery. (See, e.g., People v. Moreno (1987) 188 Cal.App.3d 1179, 1190-1191 (Moreno)
[no conceivable tactical reason for defense counsel’s failure to object to inadmissible
evidence that was “the only evidence the prosecution was prepared to offer” to establish
corpus delicti].)
The Attorney General argues Y.’s prior statement to the detective would have
established a taking occurred. This argument is made in connection with arguing a lack
of prejudice, but it is also relevant to deficient performance because Y.’s prior statement
is hearsay and must also be supported by personal knowledge in order to be admissible.
(People v. Cortez (2016) 63 Cal.4th 101, 123-124 [personal knowledge requirement also
applies to hearsay].) Thus, if Y.’s prior statement about R. having money taken from him
8
during the robbery was supported by personal knowledge, and was “otherwise
admissible” (Evid. Code, § 702, subd. (b)), a rational trier of fact could have concluded
she continued to possess such knowledge at the time of trial and an objection to her
testimony on these grounds would have been properly overruled. (Cortez, at p. 124
[personal knowledge objection must be overruled if there is evidence from which a
rational trier of fact could find the witness accurately perceived and remembered the
events].)
The Attorney General does not offer any argument regarding the admissibility of
Y.’s prior statement to the detective, but rather simply assumes it would have been
admitted had an objection to Y.’s testimony been made. For our purposes, we may also
assume, without deciding the matter, that the statement was otherwise admissible as a
prior inconsistent statement. But such a conclusion would not end the inquiry because
there is no indication in the statement itself, or elsewhere in the record, that Y. possessed
personal knowledge that a taking occurred when she spoke to the detective. Much like
her trial testimony, Y. provided many statements to the detective regarding the events
occurring in the apartment that night. She obviously had personal knowledge regarding
most of these events. Unlike her trial testimony, Y. stated she saw the start of the
altercation in the kitchen. The police report states: “She said the subject got close to [R.]
and then she saw him push [R.] She told me that the subject pushed [R.] and they began
fighting and she heard three gunshots.” At that point, as Y. described in her trial
testimony, defendant and her confederates came into the apartment. Y. then described
their conduct. Nowhere in this description of events did Y. say she saw anyone take
money from R. Much like her trial testimony, it was in response to a question from the
detective regarding whether anything was taken during these events that Y. “said they
only got a few dollars from [R.]” Y. did not say how she knew a taking occurred. Her
trial testimony, however, makes clear she found out from R. after the fact.
9
Given this state of the evidence, we cannot conclude Y.’s specific statement to the
detective that R. had money taken from him was supported by personal knowledge. The
Attorney General does not point us to any other evidence from which this personal
knowledge requirement could have been met in response to a proper objection from
defense counsel. Because Y.’s trial testimony and her prior statement to the detective
regarding R. having money taken from him are both unsupported by any evidence she
had personal knowledge such a taking occurred, and because “these statements appear to
be the only evidence the prosecution was prepared to offer to satisfy its burden of
establishing [the taking element of the robbery charges], we can conceive of no tactical
reason whatsoever which might have dictated trial counsel’s decision not to object.”
(Moreno, supra, 188 Cal.App.3d at p. 1191.)
Turning to prejudice, having concluded the alternative means advanced by the
Attorney General for proving a taking, i.e., Y.’s prior statement to the detective, was also
unsupported by any evidence Y. possessed personal knowledge such a taking occurred,
we must further conclude defense counsel’s failure to object resulted in prejudice. Stated
simply, without evidence establishing an essential element of the crime of robbery, there
is at least a reasonable probability that, but for defense counsel’s failure to object to this
evidence, the result of the proceeding would have been different.
The judgments entered against defendant must be reversed because she received
constitutionally deficient representation at trial.
II
Sufficiency of the Evidence
We now turn to defendant’s challenges the sufficiency of the evidence to support
her robbery convictions, and the attached enhancements for personal use of a deadly
weapon, in order to determine whether or not retrial is permissible. We conclude the
evidence adequately supports both convictions as well as the attached enhancement
findings.
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A.
The Robbery Convictions
Defendant argues the evidence is insufficient to support her robbery convictions
because there is no substantial evidence that something of value was taken from the
victim’s person or immediate presence, or that such a taking occurred in an inhabited
dwelling. She is mistaken.
The standard of review is well-settled: “When reviewing a challenge to the
sufficiency of the evidence, we ask ‘ “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.] Because the sufficiency
of the evidence is ultimately a legal question, we must examine the record independently
for ‘ “substantial evidence—that is, evidence which is reasonable, credible, and of solid
value” ’ that would support a finding beyond a reasonable doubt. [Citation.]” (People v.
Banks (2015) 61 Cal.4th 788, 804.)
As previously stated, both first degree residential robbery and home invasion
robbery require proof of a “felonious taking of personal property in the possession of
another, from his [or her] person or immediate presence, and against his [or her] will,
accomplished by means of force or fear” (§ 211), and committed in an “inhabited
dwelling house” (§ 212.5). Home invasion robbery also requires proof that the robbery
was committed “in concert” with two or more other people (§ 213, subd. (a)(1)(A)). (See
Hutchinson, supra, 20 Cal.App.5th at p. 550.)
Defendant, who was convicted of these crimes as an aider and abettor, does not
challenge the sufficiency of the evidence to support her role as an accomplice in the
criminal enterprise, so we decline to recite those elements here. Nor does she challenge
the sufficiency of the evidence to support a conclusion that a small amount of cash was
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taken from R.,4 against his will, by means of force or fear, or that defendant joined with
at least two other people. Her argument is limited to challenging the sufficiency of the
evidence to support a conclusion that the taking was (1) from R.’s person or immediate
presence, and (2) committed in an inhabited dwelling house. We conclude each element
is adequately supported by substantial evidence.
1.
Taking from R.’s Person or Immediate Presence
Viewed in the light most favorable to the judgment, as we must, the evidence
supports the following series of events. Defendant knocked on the apartment door to
make sure V., the intended target of the robbery, was home. After briefly speaking with
V., defendant left and armed herself with a baseball bat. She then returned to the
apartment with several others, one of whom was armed with a firearm. The latter person
knocked on the door and was allowed inside. In the kitchen, he demanded money from
R., whom he apparently mistook for V. A struggle ensued, during which R. was shot in
the hand and ended up on the kitchen floor. Defendant and the others then came into the
apartment to provide backup. While defendant stood guard over R. with the baseball bat,
the others searched the apartment. When defendant realized the money they had come to
forcibly take was not there, she told the others it was time to go. The intruders then
departed, but not before one of them took a small amount of cash from R.
4 As we have explained in detail, defendant successfully argues that the only
evidence R. lost anything of value should not have been admitted, and her trial counsel
provided constitutionally deficient assistance by failing to object to the admission of this
evidence. However, this conclusion does not undermine the sufficiency of the evidence
supporting this element of robbery. As our Supreme Court has explained, “ ‘ “[i]t is
settled law that incompetent testimony, such as hearsay or conclusion, if received without
objection takes on the attributes of competent proof when considered upon the question
of sufficiency of the evidence to support a finding.” ’ [Citations.]” (People v. Panah
(2005) 35 Cal.4th 395, 476.)
12
Although the precise circumstances of the taking from R. are not known, the most
reasonable explanation is the person who shot him took the money during the struggle in
the kitchen. Defendant does not dispute this would qualify as a taking from R.’s person
or immediate presence. “The generally accepted definition of immediate presence . . . is
that ‘ “[a] thing is in the [immediate] presence of a person, in respect to robbery, which is
so within his [or her] reach, inspection, observation or control, that he [or she] could, if
not overcome by violence or prevented by fear, retain . . . possession of it.” ’ ” (People v.
Hayes (1990) 52 Cal.3d 577, 626-627.) Taking money from a person during a struggle
over control of that money certainly qualifies.
Instead, relying primarily on People v. Tripp (2007) 151 Cal.App.4th 951,
defendant argues this explanation for how the money was taken is “ ‘mere speculation,’ ”
and therefore insufficient to support the jury’s finding of a taking from R.’s person or
immediate presence. Defendant’s reliance on Tripp is misplaced. There, the Court of
Appeal held the evidence was insufficient to support a conclusion the defendant knew the
small amount of loose white powder on a nightstand in his bedroom was
methamphetamine where there was no evidence he was under the influence of the
substance, no evidence of methamphetamine paraphernalia or packaging either on the
defendant’s person or near the substance on the nightstand, no evidence the defendant
used methamphetamine generally, no evidence suggesting consciousness of guilt, and
two other adults, one of whom had a history of methamphetamine use, also lived in the
residence. (Id. at p. 957.) The court concluded “there was nothing other than the
methamphetamine’s presence on the nightstand in his room and that was not enough.”
(Ibid.) Acknowledging this evidence “certainly raised a strong suspicion” that the
defendant “probably knew” the substance was methamphetamine, the court explained
such suspicion was “insufficient as a basis from which the jury could infer beyond a
reasonable doubt that he did know.” (Id. at pp. 958-959.)
13
We address and reject defendant’s argument that the taking perhaps occurred
outside the apartment immediately below. For present purposes, we simply note the
evidence supports a reasonable inference the taking occurred in the apartment. Thus,
even if we were to agree with her assertion that the evidence supports only a strong
suspicion money was taken from R. during the struggle in the kitchen, Y.’s testimony that
R. lost money during the events in the apartment supports a reasonable inference that
something belonging to R. inside the apartment contained money, e.g., the jacket he came
back to retrieve, and one of the intruders took that money before leaving. Even if the
taken money was in the living room, and not on R.’s person or beside him in the kitchen,
it was nevertheless in his immediate presence for purposes of robbery. “ ‘The zone of
immediate presence [for purposes of robbery] includes the area “within which the victim
could reasonably be expected to exercise some physical control over his property.” ’
[Citations.]” (People v. Abilez (2007) 41 Cal.4th 472, 507.) This includes adjacent
rooms. (Ibid. [where victim was killed in her bedroom, “taking her car or items from
another bedroom would qualify” as being within her immediate presence for purposes of
robbery]; see also People v. Holt (1997) 15 Cal.4th 619, 675.)
The evidence is sufficient to support the jury’s conclusion that money was taken
from R.’s person or immediate presence.
2.
Committed in an Inhabited Dwelling House
Defendant’s argument that the evidence does not support a reasonable conclusion
the taking occurred in an inhabited dwelling house need not detain us long. Based on her
“supposed statement” inside the apartment telling her cohorts to leave because, as she put
it, “[t]here’s nothing here,” defendant argues “the only logical location” for any taking to
have occurred “would be . . . outside of the apartment; e.g., presumably in or about the
vehicle that [R.] had been working on earlier that day.” She acknowledges this is
14
speculative, but argues it is no more speculative than the conclusion a taking occurred
inside the apartment. Not so.
The conclusion that a taking occurred inside the apartment is supported by Y.’s
testimony regarding a series of events that occurred inside the apartment, including R.
being shot in the kitchen after the shooter demanded money, accompanied by her further
testimony that R. “lost . . . a small amount of cash.” A reasonable inference arises that he
lost that money during these events and that it was taken from him inside the apartment.
The evidence is sufficient to support the jury’s conclusion that money was taken
from R. inside an inhabited dwelling house.
B.
Personal Use of a Deadly Weapon
Defendant also argues the evidence is insufficient to support her enhancement for
personal use of a deadly weapon because there is no substantial evidence she displayed
the baseball bat in a menacing manner. We disagree.
Section 12022, subdivision (b)(1) provides: “A person who personally uses a
deadly or dangerous weapon in the commission of a felony or attempted felony shall be
punished by an additional and consecutive term of imprisonment in the state prison for
one year, unless use of a deadly or dangerous weapon is an element of that offense.”
For this enhancement to apply, the jury must find “that, during the crime or
attempted crime, the defendant himself or herself intentionally displayed in a menacing
manner or struck someone with an instrument capable of inflicting great bodily injury or
death.” (People v. Wims (1995) 10 Cal.4th 293, 303, disapproved on another point in
People v. Sengpadychith (2001) 26 Cal.4th 316, 325-326.)
Defendant does not dispute she was armed with a baseball bat or argue the bat was
incapable of inflicting great bodily injury or death. Instead, she argues there was no
evidence of a menacing display of the weapon. On the contrary, defendant stood over R.
with the bat while her confederates searched the apartment for money. While she held
15
the bat pointing down, as opposed to holding it “up” and “ready to hit,” her presence with
the bat over R., who was lying on the kitchen floor after having been shot, indicated to Y.
that defendant was standing guard over R. with the bat. A reasonable inference arises
that she did so in order to intimidate R. and facilitate the completion of the offense. By
doing so, she put the bat to “use” within the plain meaning of section 12022, subdivision
(b). (See People v. Granado (1996) 49 Cal.App.4th 317, 325 [“as a matter of plain
English,” firearm “use” supported by substantial evidence where the defendant
“displayed a firearm in order to facilitate the commission of an underlying crime”].)
The evidence is sufficient to support the jury’s finding that defendant personally
used a deadly weapon in the commission of the robbery.
III
Necessarily Included Offense
Finally, in the event the People elect to retry defendant, in order to provide
guidance to the trial court, we also express agreement with defendant’s contention that
she was improperly convicted of both first degree residential robbery and home invasion
robbery based on the same conduct because the former crime is necessarily included
within the latter crime. This contention is properly conceded by the Attorney General.
“Multiple convictions may not be based on necessarily included offenses based on
one criminal act. [Citation.] An offense is necessarily included within another if the
statutory elements of the greater offense include all the elements of the lesser offense.
[Citation.] . . . [R]obbery is the ‘felonious taking of personal property in the possession of
another, from his [or her] person or immediate presence, and against his [or her] will,
accomplished by means of force or fear.’ (§ 211.) First degree residential robbery is
robbery perpetrated in an ‘inhabited dwelling house.’ (§ 212.5, subd. (a).) Home
invasion robbery is first degree residential robbery committed ‘in concert’ with two or
more other people. (§ 213, subd. (a)(1)(A).)” (Hutchinson, supra, 20 Cal.App.5th at p.
550.) Thus, the statutory elements of home invasion robbery include all the elements of
16
residential robbery, the only difference being the additional “in concert” element
qualifying the home invasion robber for additional punishment.
Because the same conduct supports defendant’s conviction for each offense, and
the crime of first degree residential robbery is necessarily included in the crime of home
invasion robbery, defendant may not be convicted of both offenses on retrial.
DISPOSITION
The judgments entered against defendant in C087003 and C090796 are reversed
and the matter is remanded to the trial court for retrial if the People so elect within 30
days of the issuance of the remittitur.
Based on our resolution of the ineffective assistance of counsel claim, upon
issuance of remittitur, the clerk of this court is directed to give the required notice to the
State Bar of California pursuant to Business and Professions Code section 6086.7,
subdivision (a)(2), and to defendant’s trial counsel pursuant to Business and Professions
Code section 6086.7, subdivision (b), and California Rules of Court, rule 10.1017.
/s/
HOCH, J.
We concur:
/s/
RAYE, P. J.
/s/
KRAUSE, J.
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