People v. Rodriguez CA5

Filed 3/15/16 P. v. Rodriguez CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F067806
Plaintiff and Respondent,
(Super. Ct. No. F10902527)
v.
CHRISTIAN RODRIGUEZ, et al., OPINION
Defendants and Appellants.
APPEAL from judgments of the Superior Court of Fresno County. Wayne R.
Ellison, Judge.
Michael B. McPartland, under appointment by the Court of Appeal, for Defendant
and Appellant Christian Rodriguez.
Robert Derham, under appointment by the Court of Appeal, for Defendant and
Appellant Gilbert Beltran.
Victoria H. Stafford, under appointment by the Court of Appeal, for Defendant
and Appellant Esteven Landeros.
Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Brian G. Smiley and Laura Wetzel Simpton, Deputy Attorneys General, for
Plaintiff and Respondent.
-ooOoo-
Gilbert Beltran, Esteven Landeros, and Christian Rodriguez were jointly tried and
convicted on charges of conspiracy and other felonies arising from a series of home
invasion robberies committed in the counties of Fresno and Merced in early 2010. Their
trials were severed from those of other co-conspirators with whom they were indicted in
connection with these events. Beltran was sentenced to 21 years and eight months in
prison, Landeros was sentenced to a 32-year prison term, and Rodriguez’s prison
sentence totaled 30 years and eight months.
In this consolidated appeal, Beltran challenges the sufficiency of the evidence
supporting an enhancement finding for personal use of a firearm within the meaning of
Penal Code section 12022.5, subdivision (a) (all further statutory references are to the
Penal Code). In the alternative, Beltran claims the trial court abused its discretion by
imposing the upper term of 10 years for that particular enhancement. Landeros and
Rodriguez allege error in the trial court’s imposition of consecutive sentences for the
crimes of robbery and witness intimidation, arguing punishment for the latter offense
should have been stayed pursuant to section 654. Landeros further contends that his
presentence custody and conduct credits were miscalculated.
There are no grounds for reversal. We order modification of Beltran’s abstract of
judgment to correct an uncontested clerical error identified by the Attorney General in
her briefing. Subject to this modification, we affirm the judgments.
STATEMENT OF THE CASE
The underlying events occurred in February and March of 2010 when a group of
people from Arizona, working in conjunction with an individual who lived in California,
carried out a series of home invasion robberies in the cities of Atwater, Clovis, Kerman,
and Selma. The crimes were carefully coordinated and followed the same general
pattern. The men would split up into two groups of lookouts and intruders, with the
former stationing themselves in parked cars at strategically selected locations and
maintaining communication with the intruders over cell phones and “walkie-talkies.”
2.
The intruders, meanwhile, would enter homes and force the occupants inside to surrender
cash, gold, and other items of value. Armed with guns, they threatened to kill their
victims and used violence to extract information about the location of money and
valuables.
A joint investigatory effort by law enforcement agencies in California and Arizona
led to the arrest and prosecution of nine suspects. On March 22, 2011, a grand jury
returned an 18-count indictment against appellants and their accomplices. Count 1 of the
indictment charged each defendant with criminal conspiracy in violation of section 182,
subdivision (a)(1). Landeros and Rodriguez were charged in Counts 2 through 18 for
their respective roles in five robberies. Beltran was charged in Counts 11 through 18 for
his participation in the last two of those robberies.
Appellants were tried before a Fresno County jury in October and November
2012. Several counts of the indictment were dismissed after the close of evidence on the
substantive offenses. A bifurcated trial on gang allegations which had been pleaded
pursuant to section 186.22, subdivision (b) ended with a hung jury. Appellants thereafter
entered into a negotiated settlement agreement, pleading no contest to an added count of
active participation in a criminal street gang (§ 186.22, subd. (a); Count 19) in exchange
for the dismissal of all gang enhancement allegations. Trial evidence relevant to the
claims on appeal is described within the body of our Discussion.
The first two robberies occurred on February 24, 2010 in Clovis and Atwater. The
third robbery took place in Kerman on March 15, 2010. For their part in the Clovis
robbery, Landeros and Rodriguez were each convicted of robbery in concert (§§ 211,
213, subd. (a)(1)(A); Count 2) and witness intimidation, i.e., using threats or violence to
prevent or dissuade a victim or witness from reporting a crime (§ 136.1, subd. (c)(1);
Count 4). In relation to the Atwater robbery, both were convicted of robbery in concert
(Count 5) and assault by means likely to cause great bodily injury (§ 245, subd. (a)(1);
Count 6). An enhancement allegation of personal use of a firearm (§ 12022.5, subd. (a))
3.
was found true as to Landeros in connection with Count 5. Landeros and Rodriguez were
also found guilty of robbery in concert (Count 9) for the incident in Kerman.
The fourth and fifth robberies occurred on March 16, 2010 in Atwater and Selma.
For the (second) Atwater robbery, Beltran, Landeros, and Rodriguez were convicted of
robbery in concert (Count 11), assault with a semiautomatic firearm (§ 245, subd. (b);
Count 13), and making criminal threats (§ 422; Count 14). On Count 11, enhancement
allegations were found true as to each defendant for personal use of a firearm. Appellants
suffered an additional conviction of robbery in concert in relation to the Selma incident
(Count 16), and were found guilty of conspiracy as charged in Count 1.
Beltran was sentenced to an aggregate prison term of 21 years and eight months.
The trial court imposed the upper term of nine years for the Count 11 robbery conviction
and the upper term of 10 years for the related firearm enhancement. Beltran also received
consecutive terms of two years for the Count 16 robbery conviction and eight months for
the substantive gang offense in Count 19, which represented one-third of the middle term
for each offense. A concurrent three-year term was imposed for Count 14, and
punishment on all remaining counts was stayed.
Landeros was sentenced to an aggregate prison term of 32 years as follows: The
upper term of nine years for the Count 5 robbery conviction and the upper term of 10
years for the related firearm enhancement, plus consecutive two-year terms (one-third of
the middle term) for each robbery conviction under Counts 2, 9, 11, and 16, plus a
consecutive term of 16 months (one-third of the middle term) for the second firearm
enhancement, plus the full middle term of three years for witness intimidation under
Count 4, and eight months (one-third of the middle term) for the substantive gang
offense. A concurrent three-year term was imposed for Count 14, and punishment on all
remaining counts was stayed.
Rodriguez was sentenced to an aggregate prison term of 30 years and eight months
as follows: The upper term of nine years for the Count 11 robbery conviction and the
4.
upper term of 10 years for the related firearm enhancement, plus consecutive two-year
terms (one-third of the middle term) for each robbery conviction under Counts 2, 5, 9,
and 16, plus the full middle term of three years for witness intimidation under Count 4,
and eight months (one-third of the middle term) for the substantive gang offense. A
concurrent three-year term was imposed for Count 14, and punishment on all remaining
counts was stayed.
DISCUSSION
Beltran’s Claims
Beltran’s arguments pertain to the Count 11 enhancement for personal use of a
firearm during commission of the robbery in Atwater on the morning of March 16, 2010.
He claims there is “no evidence” in the record to support the jury’s finding.
Alternatively, he contends any proven use of a firearm warranted no more than the
middle term of four years, and that imposition of the aggravated 10-year term was an
abuse of the trial court’s discretion.
Background
At trial, victim Fernando Guzman described his encounter with six to eight
robbers, each of whom was armed with a handgun. He had been holding his 10-month-
old daughter in his arms when the “leader” of the group, Landeros, pointed a gun at him
and directed him into the living room of the home.
At that point, someone took the baby from him and another person hit him in the
back of the head with what he believed was a gun. The blow knocked Mr. Guzman to the
ground and the men proceeded to punch and kick him for an extended period of time. He
was then moved to another room, tied up, and left on the floor next to his daughter.
Rodriguez held him there at gunpoint while the rest of the people ransacked his house.
When the perpetrators reconvened in the room where Mr. Guzman was being held,
Beltran said, “Let’s smoke him.” Mr. Guzman understood this to mean “let’s kill him,”
and asked Beltran not to murder him in front of his daughter. After someone else
5.
suggested that they shoot him in the leg, Rodriguez pressed a gun against the back of his
thigh and cocked the hammer. When the trigger was pulled, Mr. Guzman heard a
“click,” followed by the sound of laughter from the entire group.
Mr. Guzman’s testimony that each of the robbers had a gun was consistent with
statements he made to a 911 dispatcher on the day of the incident. During questioning
about Beltran’s statements, the prosecutor asked, “Did that person have a gun?”
Mr. Guzman replied, “I don’t recall at the time.” On cross-examination, Beltran’s trial
attorney attempted to establish that to the extent Beltran was armed, he never removed
the gun from his waistband. Mr. Guzman answered “no” when defense counsel asked,
“And other than the statement that you made that Mr. Beltran said ‘let’s smoke this
motherfucker,’ did you ever see him handling a weapon?”
At the sentencing hearing, Beltran’s lawyer argued for leniency as to the firearm
enhancement: “Mr. Beltran’s use of that firearm is a lot different than other defendants in
this case. He didn’t waive the gun in the air. He didn’t point at anybody. He didn’t
shoot the gun. The law allows the court discretion whether to impose [a] three, four or
ten-year enhancement in this case. So being mindful of the evidence in this matter and
Mr. Beltran’s involvement in particular, I would respectfully urge the court to impose a
midterm enhancement.” Unpersuaded, the trial court said, “I do recall not only the
participation of Mr. Rodriguez that we’ve been talking about here but also the fact that
Mr. Guzman was pistol whipped in front of his baby … by other participants in the
commission of that robbery. Of course[,] because of the way the robbery took place, he
was not able to identify which individuals struck him with the pistol. But under the
circumstances of the finding of the jury here, about Mr. Beltran’s personal use of a
firearm in the commission of that crime, the court finds that those circumstances of the
use of that firearm are in aggravation.”
6.
Sufficiency of the Evidence
“To determine the sufficiency of the evidence to support a conviction, an appellate
court reviews the entire record in the light most favorable to the prosecution to determine
whether it contains evidence that is reasonable, credible, and of solid value, from which a
rational trier of fact could find the defendant guilty beyond a reasonable doubt.” (People
v. Kipp (2001) 26 Cal.4th 1100, 1128.) In considering the record as a whole, we “‘must
accept logical inferences that the jury might have drawn from the circumstantial
evidence.’” (People v. Zamudio (2008) 43 Cal.4th 327, 357.) Jurors resolve any
conflicts in the evidence, so conflicting evidence is not necessarily insufficient evidence.
(People v. Martinez (2008) 158 Cal.App.4th 1324, 1331.) “‘Although it is the duty of the
jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two
interpretations, one of which suggests guilt and the other innocence [citations], it is the
jury, not the appellate court which must be convinced of the defendant’s guilt beyond a
reasonable doubt.’” (People v. Abilez (2007) 41 Cal.4th 472, 504.)
Section 12022.5, subdivision (a) provides that “any person who personally uses a
firearm 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 3, 4, or 10
years . . . .” The statute requires something more than being armed during the
commission of an offense. However, “‘[a]lthough the use of a firearm connotes
something more than a bare potential for use, there need not be conduct which actually
produces harm but only conduct which produces a fear of harm or force by means or
display of a firearm in aiding the commission of one of the specified felonies. “Use”
means, among other things, “to carry out a purpose or action by means of,” to “make
instrumental to an end or process,” and to “apply to advantage.”’” (People v. Wilson
(2008) 44 Cal.4th 758, 806 (Wilson).) “‘Thus, when a defendant deliberately shows a
gun, or otherwise makes its presence known, and there is no evidence to suggest any
purpose other than intimidating the victim (or others) so as to successfully complete the
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underlying offense, the jury is entitled to find a facilitative use rather than an incidental or
inadvertent exposure.”’ (Id. at p. 807.) “Whether a gun is ‘used’ in the commission of an
offense—‘at least as an aid’—is broadly construed within the factual context of each
case.” (Alvarado v. Superior Court (2007) 146 Cal.App.4th 993, 1002, fn. omitted.)
The evidence permits a reasonable inference that Beltran was armed with a gun
while inside of Mr. Guzman’s home and that the victim was made aware of its presence.
Mr. Guzman specifically testified to his knowledge that each of the perpetrators had a
handgun. In reference to the moment when Beltran suggested that he be shot,
Mr. Guzman’s inability to recall whether Beltran had a gun “at the time” can be
interpreted as confirming that he did in fact see Beltran in possession of a firearm at some
point during the robbery. His inability to recall seeing Beltran “handling” the weapon
does not mean Beltran did not otherwise make its presence known, e.g., as Beltran’s own
attorney suggested, by having the gun visible in the waistline of his pants. “Once
displayed in such fashion, the threat of use sufficient to produce fear of harm becomes a
use of that firearm proscribed by [section 12022.5, subdivision (a)].” (People v. Jacobs
(1987) 193 Cal.App.3d 375, 381.)
A defendant’s firearm “use” need not be strictly contemporaneous with the
underlying felony, nor must the gun be continually displayed during the course of the
offense. (Wilson, supra, 44 Cal.4th at p. 807.) The predicate crime in this case was
robbery, which is defined 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.” (§ 211.) “[F]or purposes of applying a firearm use
enhancement, theft crimes such as robbery … continue beyond the time of the physical
conduct constituting the offense until the perpetrator has reached a place of temporary
safety. Accordingly, one who employs a firearm at any time on the continuum between
the initial step of the offense and arrival at a place of temporary safety is subject to the
enhancement.” (People v. Taylor (1995) 32 Cal.App.4th 578, 582.) Pursuant to these
8.
principles, the jury could have reasonably construed Beltran’s display of the gun and his
threat to “smoke” (i.e., shoot) Mr. Guzman as a use of the firearm for purposes of
intimidating the victim in furtherance of the fear element of robbery. The jury also heard
testimony that Beltran’s statement was made in conjunction with expressions of
frustration over not finding money in the house, and that he had asked the victim, “How
much do you think your dad will pay for you if we [kidnap] you?” Viewing the record in
the light most favorable to the judgment, we conclude there is sufficient evidence to
support the jury’s true finding on the gun enhancement allegation.
Sentencing Discretion
“When a judgment of imprisonment is to be imposed and the statute specifies
three possible terms, the choice of the appropriate term shall rest within the sound
discretion of the court.” (§ 1170, subd. (b).) “In exercising his or her discretion in
selecting one of the three authorized prison terms referred to in section 1170(b), the
sentencing judge may consider circumstances in aggravation or mitigation, and any other
factor reasonably related to the sentencing decision. The relevant circumstances may be
obtained from the case record, the probation officer’s report, other reports and statements
properly received, statements in aggravation or mitigation, and any evidence introduced
at the sentencing hearing.” (Cal. Rules of Court, rule 4.420(b).) “The court shall select
the term which, in the court’s discretion, best serves the interests of justice ... [and] shall
set forth on the record the reasons for imposing the term selected….” (§ 1170, subd. (b).)
Sentencing decisions are reviewed under the abuse of discretion standard.
(People v. Jones (2009) 178 Cal.App.4th 853, 860.) “In reviewing for abuse of
discretion, we are guided by two fundamental precepts. First, ‘“[t]he burden is on the
party attacking the sentence to clearly show that the sentencing decision was irrational or
arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to
have acted to achieve legitimate sentencing objectives, and its discretionary
determination to impose a particular sentence will not be set aside on review.”’
9.
[Citation.] Second, a ‘“decision will not be reversed merely because reasonable people
might disagree. ‘An appellate tribunal is neither authorized nor warranted in substituting
its judgment for the judgment of the trial judge.’”’ [Citation.] Taken together, these
precepts establish that a trial court does not abuse its discretion unless its decision is so
irrational or arbitrary that no reasonable person could agree with it.” (People v. Carmony
(2004) 33 Cal.4th 367, 376-377.)
Respondent contends that Beltran forfeited his right to challenge the trial court’s
sentencing decision by failing to object below. We agree with part of this argument.
Since Beltran’s counsel specifically advocated against imposition of the upper term for
the firearm enhancement, he arguably preserved the issue of whether the trial court’s
decision fell outside the bounds of reason in light of the evidence in the record.
However, Beltran’s additional contention that the trial court provided an insufficient
statement of reasons by merely referencing the “circumstances of the use” of the firearm
cannot be raised for the first time on appeal. The California Supreme Court has
repeatedly held that claims involving a trial court’s failure to properly articulate the basis
for its sentencing decisions are subject to forfeiture, “including ‘cases in which the stated
reasons allegedly do not apply to the particular case, and cases in which the court
purportedly erred because it double-counted a particular sentencing factor, misweighed
the various factors, or failed to state any reasons or to give a sufficient number of valid
reasons.’” (People v. Boyce (2014) 59 Cal.4th 672, 730-731.)
The question is whether the evidence before the trial court could have reasonably
been interpreted as showing circumstances in aggravation with respect to Beltran’s use of
a firearm during the robbery of Fernando Guzman. “An aggravating circumstance is a
fact that makes the offense ‘distinctively worse than the ordinary.’” (People v. Black
(2007) 41 Cal.4th 799, 817.) Such circumstances may be found to exist where the
defendant’s conduct involved a “threat of bodily harm, or other acts disclosing a high
degree of cruelty, viciousness, or callousness.” (Cal. Rules of Court, rule 4.421(a)(1).)
10.
Only one aggravating factor is required to impose an upper term sentence. (People v.
Osband (1996) 13 Cal.4th 622, 728.)
Beltran’s remark about shooting Mr. Guzman occurred while the victim was
restrained and lying helpless on the floor next to his infant daughter. Mr. Guzman had
shown no resistance whatsoever; he told the robbers they could take anything in the
house, gave them his wallet, and even provided the passcode for his bank card. He
responded to Beltran’s use of the firearm by saying, “If you are going to kill me, just
don’t do it in front of my daughter.” Beltran’s actions evidently caused the victim to not
only fear for his life, but also to believe his child might witness her father’s murder.
Reasonable people could view such behavior as callous and gratuitously cruel. We
therefore find no abuse of discretion in the trial court’s decision to impose the upper term
for the section 12022.5, subdivision (a) enhancement.
Correction to Abstract of Judgment
The abstract of judgment for Beltran incorrectly reflects the imposition of a ten-
year term on a section 12022.5, subdivision (a) enhancement in connection with Count 1
rather than Count 11. Since no such findings were made under Count 1, the error is
obviously clerical in nature and may be corrected on appeal. (People v. Mitchell (2001)
26 Cal.4th 181, 185.) We order that the abstract of judgment be corrected to conform to
the jury’s verdict and the trial court’s oral pronouncement, i.e., to reflect that the Penal
Code section 12022.5, subdivision (a) gun use enhancement is tied to Count 11.
Claims of Landeros and Rodriguez
Landeros and Rodriguez challenge the trial court’s imposition of consecutive
three-year terms for their respective convictions of witness intimidation under Count 4.
Both argue that the sentence should have been stayed pursuant to section 654 in relation
to the Count 2 robbery. Landeros further claims the trial court abused its discretion by
ordering the sentence to be served consecutively rather than concurrently, and also
disputes the trial court’s calculation of his presentence custody and conduct credits.
11.
Background
Counts 2 and 4 stemmed from the robbery in Clovis on February 24, 2010. The
victims were Gurmukh Singh, Darshan Walia, and two of their toddler-aged
grandchildren. Mr. Singh was forced out of a shower at gunpoint, moved into the living
room of the home, and ordered to lie face down on the floor. He was then tied up with
electrical cords. Mr. Singh’s trial testimony, which was provided through a Punjabi
language interpreter, further indicated that the robbers somehow disabled the family’s
landline telephones and also made a death threat upon their departure from the residence.
Landeros’s and Rodriguez’s conviction for using threats or violence to prevent or
dissuade a victim from reporting a crime was apparently based on the following
testimony:
Prosecutor: Prior to them leaving, did any of the people say anything to you
about using the phone to call anyone?
Mr. Singh: Yes.
Prosecutor: What did they tell you?
Mr. Singh: They told me that don’t call anyone, don’t call the police at least for
half an hour.
Prosecutor: Did they say if something would happen to you if you did call the
police?
Mr. Singh: Yes, we were kill.
Prosecutor: They will kill?
Mr. Singh: Yes.
Prosecutor: They said that to you?
Mr. Singh: Yes.
Prosecutor: And this was before they left the house?
Mr. Singh: Yes.
12.
At sentencing, the trial court found that section 654 did not apply to Landeros’s
conviction under Count 4: “First of all, in the court’s view the dissuading of the witnesses
in that situation in Atwater One was not part of the crime. Was not even a necessary part
of the crime of the robberies. I would agree with probation that the use of the firearm and
the threats that took place within the residence, if there were some, were all part of a
robbery in concert. But the gratuitous threat to the family on leaving not to call the
police, threatening to come back and kill them and the children, I believe, as well as
specific reference to the kids, was not a necessary part of that robbery. And it’s
particularly offensive, in the court’s view. If the law doesn’t demand it, it’s certainly
appropriate to impose [a] fully consecutive midterm as probation has suggested under
[section] 1170.15.” Later, while sentencing Rodriguez, the court reiterated its belief that
“the circumstances of the threats conveyed to the family in the Clovis case support the
giving of a fully consecutive sentence on Count Four....”
Section 654
Section 654 prohibits multiple punishment for crimes arising out of a single act or
indivisible course of conduct. (§ 654, subd. (a); People v. Hester (2000) 22 Cal.4th 290,
294.) The statute is implicated when a defendant engages in an indivisible course of
conduct with a single objective, but in doing so violates multiple sections or provisions of
the Penal Code. “If all of the crimes were merely incidental to, or were the means of
accomplishing or facilitating one objective, a defendant may be punished only once.
[Citation.] If, however, a defendant had several independent criminal objectives, he may
be punished for each crime committed in pursuit of each objective, even though the
crimes shared common acts or were parts of an otherwise indivisible course of conduct.”
(People v. Perry (2007) 154 Cal.App.4th 1521, 1525 (Perry).) Whether a defendant
acted pursuant to multiple objectives is a question of fact for the trial court, and its
findings will be upheld on appeal if supported by substantial evidence. (People v. Islas
(2012) 210 Cal.App.4th 116, 129.) “When a trial court sentences a defendant to separate
13.
terms without making an express finding the defendant entertained separate objectives,
the trial court is deemed to have made an implied finding each offense had a separate
objective.” (Ibid.)
Appellants’ arguments rely on the continuing nature of a robbery offense, i.e., the
concept of the crime not being completed until the perpetrators reach a temporary place
of safety. They reason that attempting to dissuade Mr. Singh from contacting the police
must have been incident to and indivisible from the act of robbery because it occurred as
the robbery was in progress. However, case law makes clear that multiple intents and
objectives may exist for different crimes committed while a robbery is ongoing.
(People v. Nguyen (1988) 204 Cal.App.3d 181, 193.) It is likewise settled that section
654 “cannot, and should not, be stretched to cover gratuitous violence or other criminal
acts far beyond those reasonably necessary to accomplish the original offense.” (Id. at p.
191; see, People v. Saffle (1992) 4 Cal.App.4th 434, 439 [“[A] separate act of violence
against an unresisting victim or witness, whether gratuitous or to facilitate escape or to
avoid prosecution, may be found not incidental to robbery for purposes of section 654. If
the trier of fact determines the crimes have different intents and motives, multiple
punishments are appropriate.”].)
“At some point, the degree of force or violence used or threatened may evince ‘a
different and a more sinister goal than mere successful commission of the original crime,’
i.e., an independent objective warranting multiple punishment.” (Perry, supra, 154
Cal.App.4th at p. 1527, italics added.) Here, the record contains substantial evidence in
support of the trial court’s finding that the conduct underlying Count 4 was “gratuitous”
and done pursuant to an objective separate from that of accomplishing the robbery. As
noted, the robbers had already taken steps to prevent Mr. Singh from using the telephones
in his home. He was lying on the floor with his arms and legs tied behind his back when
the death threat was issued. Mr. Singh’s daughter-in-law testified that she found him in
the same location, fully restrained, when she arrived home after the robbers had departed.
14.
Given these circumstances, we find no error in the trial court’s conclusion that
threatening to return and kill the victim at a later point in time went beyond the means
reasonably necessary to complete the robbery.
Sentencing Discretion
Landeros’s claim regarding the imposition of a consecutive sentence for Count 4 is
based on the trial court’s reference to the so-called “Atwater One” robbery. Two
robberies occurred on February 24, 2010; one in Clovis and one in Atwater, and both
coincidentally involved victims with the surname of Singh. Young children were present
during both robberies, and in each instance the robbers threatened to return and kill the
victims shortly before fleeing the scene. Landeros thus argues that the trial court
erroneously based its sentencing decision on the facts of the “Atwater One” robbery
rather than the events in Clovis to which Count 4 actually pertained.
The claim is forfeited as a result of appellant’s failure to object at the time of
sentencing. As explained above, the forfeiture rule applies even in situations where “the
stated reasons allegedly do not apply to the particular case.” (People v. Scott (1994)
9 Cal.4th 331, 353 (Scott); accord, People v. Ortiz (2012) 208 Cal.App.4th 1354, 1371-
1372 and fn. 6 [appellate review precluded by failure to object to aggravating factors
cited and relied upon by trial court for imposition of consecutive upper term sentence];
People v. De Soto (1997) 54 Cal.App.4th 1, 6-10 [same].) The rule is intended to
promote judicial economy and is justified by the reality that defects in a trial court’s
statement of reasons “are easily prevented and corrected if called to the court’s attention.”
(Scott, supra, 9 Cal.4th at p. 353.) Challenges to a legally unauthorized sentence are
exempt from the forfeiture rule, but the errors alleged by Landeros do not give rise to this
exception. “[A] sentence is generally ‘unauthorized’ where it could not lawfully be
imposed under any circumstance in the particular case.” (Id. at p. 354.) In contrast,
“claims deemed waived on appeal involve sentences which, though otherwise permitted
by law, were imposed in a procedurally or factually flawed manner.” (Ibid.)
15.
Forfeiture aside, Landeros has not otherwise shown reversible error. Although the
trial court mistakenly referenced the “Atwater One” robbery, the evidence does not
establish that it based the Count 4 sentence on the facts of that crime instead of those of
the Clovis robbery. Out of the five robberies in which Landeros participated, only the
Clovis incident involved a charge of witness intimidation within the meaning of section
136.1, subdivision (c)(1). While it appears the trial court simply misremembered the
robbers threatening to harm Mr. Singh’s grandchildren, there was no evidence of such
threats being made in the Atwater robbery either. None of the victims testified to the
perpetrators making threats that specifically referenced the children who were present.
However, Mr. Singh’s testimony indicated that the death threat was made in front of the
other victims in the home, including his grandchildren, and his testimony is open to the
interpretation that a collective threat was made against the family as opposed to him
alone. It is also possible that the trial court relied upon the probation report, which
claimed one of the perpetrators in the Clovis robbery had directly threatened Mr. Singh’s
grandchildren, “ordering them to sit on the couch or they would be shot,” and later
“threatened to return and kill the family if they called police.” Regardless, the trial
court’s sentencing decision was expressly motivated by the unnecessary and gratuitous
nature of the threat, and this primary factor is supported by the evidence in the record.
We therefore reject appellant’s claim.
Calculation of Presentence Credits
A criminal defendant is entitled to credit against his or her sentence for all days
spent in custody while awaiting trial and sentencing, up to and including the date when
the sentence is imposed. (§ 2900.5, subd. (a); People v. Rajanayagam (2012)
211 Cal.App.4th 42, 48.) Additional presentence credit may be earned based on work
time and good behavior, which is commonly referred to as “conduct credit.” (§ 4019,
subds. (b) & (c); People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.) Pursuant to section
2900.5, presentence credits begin to accrue on the first day of custody, which in many
16.
cases will be the same day as the defendant’s arrest. However, such credit “shall be
given only where the custody to be credited is attributable to proceedings related to the
same conduct for which the defendant has been convicted.” (§ 2900.5, subd. (b).)
“[W]here a period of presentence custody stems from multiple, unrelated incidents of
misconduct, such custody may not be credited against a subsequent formal term of
incarceration if the prisoner has not shown that the conduct which underlies the term to
be credited was also a ‘but for’ cause of the earlier restraint.” (People v. Bruner (1995) 9
Cal.4th 1178, 1193-1194.)
Landeros was awarded 1,232 days of presentence credits based on 1,072 days of
custody credit and 160 days of conduct credit, calculated from the purported accrual date
of August 23, 2010 through July 29, 2013. There was little discussion of the issue at
sentencing. The trial court said, “Time credits, Mr. Landeros – I’m assuming these are
right, counsel – 1232 days, 1072 actual, 160 conduct pursuant to [section] 2933.1.”
Defense counsel replied, “Yes.” The court thereafter inquired, “Right?” Counsel
responded, “Correct.”
Landeros now contends that he was arrested in Arizona on April 20, 2010, and is
therefore entitled to additional days of presentence credit. Respondent does not disagree
that Landeros was arrested in April 2010, but claims the arrest was for a probation
violation related to a 2009 conviction. In support of her position, the Attorney General
directs us to an online case docket from the Maricopa County Superior Court and also
cites to evidence contained in the probation report from the current case. Respondent’s
theory is generally consistent with statements by a Fresno County correctional officer
whose trial testimony indicated that Landeros was admitted to the Fresno County Jail on
August 24, 2010. Appellant makes a partial concession in his reply brief by
acknowledging the out-of-state probation violation and related proceedings, but maintains
there were at least 36 days of incarceration between April 20, 2010 and August 23, 2010
17.
in which he “was neither serving his term on the probation violation nor receiving
presentence credits in this case.”
Section 1237.1 provides: “No appeal shall be taken by the defendant from a
judgment of conviction on the ground of an error in the calculation of presentence
custody credits, unless the defendant first presents the claim in the trial court at the time
of sentencing, or if the error is not discovered until after sentencing, the defendant first
makes a motion for correction of the record in the trial court…. The trial court retains
jurisdiction after a notice of appeal has been filed to correct any error in the calculation of
presentence custody credits upon the defendant’s request for correction.” An appellate
court may resolve presentence credit calculation issues in the first instance if doing so
will serve the interests of judicial economy (People v. Jones (2000) 82 Cal.App.4th 485,
493), but the appellant has the burden to affirmatively demonstrate his entitlement to
credit for any particular time period. (People v. Jacobs (2013) 220 Cal.App.4th 67, 81.)
The present claim hinges on a factual dispute which cannot be resolved by the meager
and ambiguous evidence in the record on appeal. In short, appellant has not carried his
burden. If he wishes to pursue the issue further, he may seek relief in the trial court.
(People v. Shabazz (2003) 107 Cal.App.4th 1255, 1259; People v. Culpepper (1994) 24
Cal.App.4th 1134, 1139; People v. Fares (1993) 16 Cal.App.4th 954, 958 [“There is no
time limitation upon the right to make the motion to correct the sentence.”].)
18.
DISPOSITION
The judgments are affirmed. The trial court is ordered to prepare an amended
abstract of judgment for Gilbert Beltran which accurately reflects that its imposition of a
consecutive 10-year term for the section 12022.5, subdivision (a) enhancement is tied to
Beltran’s Count 11 conviction. The trial court shall send a certified copy of the amended
abstract to the Department of Corrections and Rehabilitation.
_____________________
GOMES, J.
WE CONCUR:
_____________________
HILL, P.J.
_____________________
DETJEN, J.
19.