People v. Diego CA2/7

Filed 10/14/20 P. v. Diego CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B297572
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA145189-02)
v.
SAMUEL DIEGO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, John J. Lonergan, Jr., Judge. Affirmed in
part and reversed in part.
Johanna Pirko, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising
Deputy Attorney General, and Stacy S. Schwartz, Deputy
Attorney General, for Plaintiff and Respondent.
Samuel Diego was convicted by a jury of second degree
robbery and grand theft of a firearm after he and his brother
Fredy Diego attacked Edwin Jimenez, a security guard at a
Metro station, and fled with Jimenez’s gun. On appeal Samuel
contends there was insufficient evidence to support his
convictions as an aider and abettor of the theft offenses because
he was unconscious when Fredy took the gun and, in any event,
his conviction for grand theft must be reversed because it is a
lesser included offense of robbery. We agree with Samuel’s
second argument, as does the Attorney General, but not his first,
and affirm the judgment in part.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Amended Information and Trial
Samuel was charged in an amended information with
attempted willful, deliberate and premeditated murder (Pen.
Code, §§ 187, subd. (a), 664)1 (count 1); second degree robbery
(§ 211) (count 2); and grand theft of a firearm (§ 487, subd. (d)(2))
(count 3). The amended information specially alleged Samuel
had previously suffered a serious or violent felony conviction
within the meaning of the three strikes law (§ 667, subds. (b)-(j)),
and a serious felony conviction under section 667, subdivision (a),
and had served a prior prison term for a violent felony conviction
within the past 10 years pursuant to section 667.5,
subdivision (a).2
1 Statutory references are to this code.
2 In addition, the amended information specially alleged,
with respect to the attempted murder count, Samuel had
personally used and intentionally discharged a firearm within
the meaning of section 12022.53, subdivisions (b) and (c), and,
2
According to his testimony at trial, Jimenez was working
on October 26, 2017 as a security officer at the 103rd Street and
Graham Avenue Metro Blue Line stop. Both Jimenez and his
partner were armed. Jimenez had secured his firearm, an XD .40
caliber gun, in a locked holster attached to his gun belt on the
right side of his waist.
Sometime after 10:20 p.m. Jimenez saw two groups of men
disembark from a train. The two men in one group, Samuel and
Fredy, initially caught his attention because they were drinking
alcohol. They threw gang signs, asked the four men in the other
group what gang they were from and showed their tattoos. The
men in both groups became verbally aggressive and started
shouting. Jimenez approached them and said, if they were going
to fight, they had to leave the station. The two groups left the
Metro station platform together.
Thirty seconds later Jimenez heard shouting and the
breaking of a glass bottle. He saw Samuel and Fredy get in a
physical altercation with the other four men, who later ran
toward the ramp leading up from the sidewalk to the Metro
station platform. Jimenez, standing at the ramp’s main
entrance, told them they could not reenter; the men acquiesced
and returned to the sidewalk, where they got into another
altercation with Samuel and Fredy.
The Diego brothers then tried to come up the ramp. When
Jimenez denied Samuel and Fredy reentry to the platform, Fredy
punched Jimenez in the face with a closed fist. Jimenez started
to punch Fredy back. The fight continued; and five seconds later
with respect to all counts, the offenses had been committed for
the benefit of a criminal street gang (§ 186.22, subd. (b)).
3
Samuel joined in, punching Jimenez in the back of his head.
Before the Diego brothers attacked him, Jimenez had not used
physical force against them.
The fight moved onto the sidewalk. Jimenez used pepper
spray against the brothers, who became more aggressive. Both
Fredy and Samuel were punching Jimenez, who was trying to
fight back. Fredy at some point was knocked to the ground when
Jimenez punched him. Jimenez believed Fredy passed out
because he was on the ground for a couple of seconds, but
Jimenez was unable to go to Fredy to confirm he was
unconscious. After he knocked down Fredy, Jimenez turned
around to his left to try to address Samuel, who was attacking
him. In the process Jimenez tripped on the curb. When he fell,
he went into a “crawl position,” with his knees and palms on the
floor. Samuel was behind him to his left. Fredy was lying on the
ground to his right.
As Jimenez tried to get up, he felt a kick to his back. He
tried again to rise; but, as he did, Samuel began kicking his head.
Jimenez explained he knew it was Samuel because Samuel was
to his left and Fredy “was barely getting up.” Jimenez once again
tried to get up. At this point Fredy grabbed for Jimenez’s
weapon. Jimenez felt Fredy pulling his weapon two or three
times before Fredy succeeded in taking it. Jimenez, who by this
time had been lying on his stomach, rolled onto his back and saw
Fredy holding the gun. Fredy lowered and fired it at Jimenez’s
face. As Jimenez rolled to his left to avoid being struck by a
bullet, he heard the discharge of the gun. He rolled again,
jumped up and ran to his partner. Fredy and Samuel fled the
scene.
4
When Jimenez looked for his gun, it was not on the ground
where the incident had taken place. Later Jimenez noticed his
uniform had blood stains and a bullet hole.
Los Angeles Police Detective Rene Castro testified he had
interviewed Samuel and Fredy after they were identified.3 Fredy
told Castro he recalled an incident in October 2017 when he and
his brother had left the train at the 103rd Street stop and then
“got into it with some guys.” Explaining he had picked up a gun
that had been dropped by “this guy [who had] fall[en] down out of
nowhere,” Fredy admitted he had fired the gun (albeit to the side
“in[to] the floor”), taken off with it and sold it.
Detective Castro testified he had searched, with Fredy’s
permission, Fredy’s cellphone and found photographs of Fredy
holding a gun. One photograph, admitted in evidence, showed
the marking “XD 40” on the gun’s slide. Jimenez identified the
weapon depicted as the one he used as a security officer, with the
same color and caliber.
2. The Verdict and Sentencing
The jury found Samuel not guilty of attempted murder but
guilty of second degree robbery and grand theft of a firearm.4
After Samuel admitted his 2013 conviction for robbery, the court
sentenced him as a second strike offender to six years in state
prison (the middle term of three years for second degree robbery,
3 The transcript of Fredy’s interview was admitted into
evidence.
4 The jury also found Samuel not guilty of attempted
voluntary manslaughter as a lesser included offense to attempted
murder and found not true the criminal street gang enhancement
allegations.
5
doubled). The court stayed the sentence for the conviction of
grand theft of a firearm.5
DISCUSSION
1. Governing Law and Standard of Review
a. Robbery
Robbery 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.) “A conviction of robbery requires
evidence showing that the defendant conceived the intent to steal
either before or during the commission of the act of force against
the victim. [Citation.] ‘“[I]f the intent arose only after the use of
force against the victim, the taking will at most constitute a
theft.”’” (People v. Jackson (2016) 1 Cal.5th 269, 343.) “‘[T]he
crime of robbery is a continuing offense that begins from the time
of the original taking until the robber reaches a place of relative
safety.’” (People v. Anderson (2011) 51 Cal.4th 989, 994.)
b. Grand theft
“Every person who shall feloniously steal, take, carry, lead,
or drive away the personal property of another . . . is guilty of
theft.” (§ 484, subd. (a).) Theft committed when the property
taken is a firearm constitutes grand theft. (§ 487, subd. (d)(2).)
c. Aider-and-abettor liability
“‘A person aids and abets the commission of a crime when
he or she, (i) with knowledge of the unlawful purpose of the
5 The court at sentencing did not mention the section 667,
subdivision (a), and section 667.5, subdivision (a), enhancement
allegations.
6
perpetrator, (ii) and with the intent or purpose of committing,
facilitating or encouraging commission of the crime, (iii) by act or
advice, aids, promotes, encourages or instigates the commission
of the crime.’” (People v. Delgado (2013) 56 Cal.4th 480, 486.)
“[I]f a person in fact aids, promotes, encourages or instigates
commission of a crime, the requisite intent to render such aid
must be formed prior to or during ‘commission’ of that offense.”
(People v. Cooper (1991) 53 Cal.3d 1158, 1164.) “For purposes of
determining aider and abettor liability, the commission of a
robbery continues until all acts constituting the offense have
ceased.” (Ibid.)
d. Substantial evidence review
In considering a claim of insufficient evidence in a criminal
case, “‘we review the whole record to determine whether any
rational trier of fact could have found the essential elements of
the crime or special circumstances beyond a reasonable doubt.
[Citation.] The record must disclose substantial evidence to
support the verdict—i.e., evidence that is reasonable, credible,
and of solid value—such that a reasonable trier of fact could find
the defendant guilty beyond a reasonable doubt. [Citation.] In
applying this test, we review the evidence in the light most
favorable to the prosecution and presume in support of the
judgment the existence of every fact the jury could reasonably
have deduced from the evidence. [Citation.] “Conflicts and even
testimony [that] is subject to justifiable suspicion do not justify
the reversal of a judgment, for it is the exclusive province of the
trial judge or jury to determine the credibility of a witness and
the truth or falsity of the facts upon which a determination
depends. [Citation.] We resolve neither credibility issues nor
evidentiary conflicts; we look for substantial evidence.
7
[Citation.]” [Citation.] A reversal for insufficient evidence “is
unwarranted unless it appears ‘that upon no hypothesis
whatever is there sufficient substantial evidence to support’” the
jury’s verdict.’” (People v. Penunuri (2018) 5 Cal.5th 126, 142;
accord, People v. Zamudio (2008) 43 Cal.4th 327, 357; see People
v. Westerfield (2019) 6 Cal.5th 632, 713.)
2. Substantial Evidence Supports Samuel’s Convictions
Relying on statements Jimenez made in an interview with
Detective Castro indicating it was Samuel, not Fredy, who had
been knocked unconscious during the altercation, Samuel
contends the evidence is insufficient to support his convictions.6
If he was unconscious, he argues, he could not have had the
requisite knowledge and intent to aid Fredy’s theft of the gun;
and there was no evidence Samuel became aware Fredy had
stolen the weapon after regaining consciousness.
At trial, however, Jimenez testified he was certain it was
Fredy whom he had knocked unconscious. He explained he was
in shock after the incident. His recall of the events was now
clearer than it had been. In describing the incident Jimenez
testified he had knocked Fredy down and Fredy was lying on the
ground to his right for a couple of seconds. That description is
fully consistent with Jimenez’s testimony Fredy then made a
6 In the recorded interview, which was played for the jury,
Jimenez said the individual he punched and knocked unconscious
had a tattoo by his left eye and was wearing a “Hustler” shirt. At
trial Jimenez confirmed that Samuel had such a tattoo and that
the surveillance video from the day of the incident showed
Samuel wearing that shirt.
8
grab for his weapon at his right hip while Jimenez lay on his
stomach.
Jimenez’s trial testimony unquestionably constituted
sufficient evidence to support Samuel’s convictions. Evaluating
the credibility of that testimony in light of the inconsistent
statements made during Jimenez’s police interview was a matter
for the jury, not this court when reviewing the jury’s verdict.
(See, e.g., People v. Gomez (2018) 6 Cal.5th 243, 309 [“‘[i]n
deciding the sufficiency of the evidence, a reviewing court
resolves neither credibility issues nor evidentiary conflicts’”];
People v. Penunuri, supra, 5 Cal.5th at p. 142 [“‘“[c]onflicts and
even testimony [that] is subject to justifiable suspicion do not
justify the reversal of a judgment”’”]; People v. Brooks (2017)
3 Cal.5th 1, 57-58 [“[a]lthough the scenario defendant describes
appears plausible, this court’s role on review does not involve a
reevaluation of the evidence”].)
3. The Conviction for Grand Theft of a Firearm Must
Be Reversed
Samuel asserts, and the Attorney General concedes, that
grand theft of a firearm is a lesser included offense of robbery.
(See People v. Ortega (1998) 19 Cal.4th 686, 699 [reaffirming “the
well-established rule that a defendant may not be convicted of
both robbery and grand theft based upon the same conduct”
because “[t]heft, in whatever form it happens to occur, is a
necessarily included offense of robbery”].) Accordingly, the
conviction on count 3 must be reversed. (See People v. Sanders
(2012) 55 Cal.4th 731, 736 [“[w]hen a defendant is found guilty of
both a greater and a necessarily lesser included offense arising
out of the same act or course of conduct, and the evidence
supports the verdict on the greater offense, that conviction is
9
controlling, and the conviction of the lesser offense must be
reversed”]; People v. Milward (2011) 52 Cal.4th 580, 589 [same].)
DISPOSITION
The conviction for grand theft of a firearm is reversed, and
the sentence for that charge, stayed pursuant to section 654, is
vacated. In all other respects the judgment is affirmed. The trial
court is to prepare a corrected abstract of judgment reflecting
these changes and forward it to the Department of Corrections
and Rehabilitation.
PERLUSS, P. J.
We concur:
FEUER, J.
RICHARDSON, J.*
* Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
10