People v. Vandelinder CA3 ( 2023 )

Filed 8/9/23 P. v. Vandelinder 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Sacramento)
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THE PEOPLE, C096989
Plaintiff and Respondent, (Super. Ct. No. 21FE018977)
v.
MATTHEW RAY VANDELINDER,
Defendant and Appellant.
Defendant Matthew Ray Vandelinder appeals from his convictions on two counts
of second degree robbery. He argues the trial court erred in imposing the upper term of
five years on one of the counts, contending the trial court impermissibly engaged in dual
use of facts. We disagree and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The facts of defendant’s offenses and trial are largely not pertinent to the legal
issues raised in this appeal. Briefly summarized, defendant approached a teller at a Wells
Fargo Bank in November 2021, demanded money, and told the teller he had a gun while
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reaching into his fanny pack. The teller handed defendant money from the cash drawer.
That same month, defendant approached a client relationship consultant at a U.S. Bank
and directed her to take everything out of the top drawer and place it on the counter. He
again said he had a gun while having both hands in his pockets and pushing his hands
against his body.
A jury found defendant guilty of two counts of second degree robbery. In a
bifurcated proceeding, a jury found true as to both counts that “defendant engaged in
violent conduct that indicates a serious danger to society” (Cal. Rules of Court, rule
4.421(b)(1)) and, with respect to the Wells Fargo robbery only, that defendant used
planning, sophistication, or professionalism in the commission of the robbery (rule
4.421(a)(8)). At the sentencing hearing, the trial court considered the aggravating
circumstances found by the jury, as well as defendant’s criminal history and substance
abuse issues. Ultimately, the trial court imposed the upper term of five years for the
Wells Fargo robbery and one year (one-third the middle term) for the U.S. Bank robbery.
DISCUSSION
Defendant’s sole contention on appeal is that the trial court improperly relied on
the violent conduct aggravating factor to impose the upper term for the Wells Fargo Bank
robbery. He argues that because violence is inherent to the crime of robbery, it cannot
also be used as an aggravating circumstance in sentencing.
Preliminarily, the People argue defendant forfeited the claim by failing to raise it
below. Anticipating forfeiture, defendant argues his trial counsel was ineffective by not
objecting on this basis in the trial court. We exercise our discretion to reach the merits of
the sentencing claim in lieu of addressing defendant’s ineffective assistance claim. (See
People v. Crittenden (1994) 9 Cal.4th 83, 146 [reviewing merits of claim to avoid
potential claim of ineffective assistance of counsel]; People v. Williams (1998) 17 Cal.4th
148, 161, fn. 6.)
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Turning to the merits, courts “generally cannot . . . use a fact constituting an
element of the offense either to aggravate or to enhance a sentence.” (People v. Scott
(1994) 9 Cal.4th 331, 350; see also Cal. Rules of Court, rule 4.420(h).) But engaging in
“violent conduct that indicates a serious danger to society” (Cal. Rules of Court,
rule 4.421(b)(1)) is not an element of robbery (CALCRIM No. 1600). While every
robbery necessarily involves the use of force or fear (Pen. Code, § 211), not every
robbery is so violent that it indicates a serious danger to society (cf. In re Michael L.
(1985) 39 Cal.3d 81, 88 [“The particular means by which force is employed or fear
imparted is not an element of robbery”]). The jury here found that the circumstances
surrounding this particular robbery involved sufficient violence to indicate a serious
danger to society, and there is no basis to disturb that finding.
Urging a contrary conclusion, defendant points to Penal Code section 667.5,
subdivision (c), which provides in relevant part, “For the purpose of this section, ‘violent
felony’ means . . . [¶] . . . [¶] (9) Any robbery.” Section 667.5 concerns the
enhancement of a prison term based on prior prison terms when a defendant commits a
new violent felony. This provision was simply not implicated here. Even if it had been,
the definition of “ ‘violent felony’ ” under section 667.5 has no bearing on whether
aggravating a base term due to the violent conduct circumstance is a prohibited dual use
of facts.
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DISPOSITION
The judgment is affirmed.
/s/
ROBIE, J.
We concur:
/s/
HULL, Acting P. J.
/s/
HORST, J.*
* Judge of the Placer County Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
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