IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
February 1, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
MITCHELL ISIAH GALLIEN, DEFENDANT AND APPELLANT.
(Super. Ct. No. 06F04750)
The opinion of the court was delivered by: Hull , J.
P. v. Gallien
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
As a result of defendant Mitchell Isiah Gallien's participation in a home invasion robbery, a jury found him guilty of burglary, three counts of robbery, assault with a deadly weapon, and assault with a firearm. The jury also found defendant personally had used and discharged the firearm, and had acted in concert in the home invasion. The trial court found defendant had a prior strike conviction for robbery and sentenced him to an aggregate term of 53 years four months in prison.
On appeal, defendant contends: (1) there was insufficient evidence to prove he discharged the firearm in connection with the robbery of two of the victims; (2) the jury was improperly instructed with CALCRIM No. 3261 on the "escape rule"; and (3) the disparity between his sentence and the sentences imposed upon his cohorts violates his state and federal due process and jury trial rights. We order a correction to the abstract of judgment, but otherwise affirm the judgment.
FACTS AND PROCEEDINGS
Around 11:30 a.m. on May 5, 2006, Adolfo Harnandis was with a friend at a fast food restaurant. While there, he approached Erica Casey and Stormi Bradford and invited them to a Cinco de Mayo party that night. They exchanged phone numbers and Harnandis gave them the address of the party.
After Harnandis left, Bradford told Casey that Harnandis would be an easy target for a robbery. Casey called her sister, defendant, and Deandre McLish, and the five of them spent the day together. Harnandis called Casey several times to confirm their presence at the party. Twenty minutes before leaving for the party, Casey questioned Harnandis and learned there were four people at the party at that time.
Casey's sister drove the others to the party, dropping defendant and McLish off around the corner. When the women arrived, there were four young men in the living room: Harnandis, Francisco Martinez, Macario Perea, and Eugenio Del Angel. After introductions, Casey's sister called defendant. Two minutes later, defendant and McLish came in through the front door and the three women left and got into the car that was parked outside.
Defendant was holding a gun and McLish had brass knuckles. Defendant pointed the gun at the young men and yelled at them to lie down and take everything out of their pockets. When Harnandis resisted, McLish hit him in the face and took his wallet and $60. McLish then hit Martinez twice in the face with the brass knuckles and took his wallet, along with $250 to $300. After also being hit in the face, Perea handed over approximately $1,000. Del Angel gave the robbers over $100 to $200.
When defendant and McLish left the house, Harnandis followed them outside and saw them get into a car. Harnandis got into his truck and followed the car, jotting down the license plate number. Casey's sister was driving fast and Harnandis followed close behind. As they drove through the neighborhood, defendant leaned out the front passenger window and fired two shots at Harnandis. Harnandis decided not to follow the car any longer and went back to the house to check on his friends.
The jury found defendant guilty of residential burglary, robbery of Harnandis, robbery of Martinez, robbery of Perea, assault with a deadly weapon, and assault with a firearm. The jury also found defendant had acted in concert in a home invasion (Pen. Code, § 213, subd. (a)(1)(A); undesignated statutory references that follow are to the Penal Code) in connection with all three robberies, that he personally used (§ 12022.53, subd. (b)) and discharged (§ 12022.53, subd. (c)) a firearm in connection with all three robberies, and had personally used a firearm in connection with the assault with a firearm (§ 12022.5, subd. (a)(1)).
I Discharge of the Firearm
Defendant contends there was insufficient evidence to support the enhancements for discharging a firearm in the commission of the robberies of Martinez and Perea because, he contends, those robberies were complete by the time he fired his gun at Harnandis. We disagree.
Section 211 defines robbery as "the felonious taking of personal property in the possession of another, from his person or immediate presence . . . ." However, "the crime of robbery is not confined to the act of taking property from victims. The nature of the crime is such that a robber's escape with his loot is just as important to the execution of the crime as obtaining possession of the loot in the first place. Thus, the crime of robbery is not complete until the robber has won his way to a place of temporary safety. [Citations.]" (People v. Carroll (1970) 1 Cal.3d 581, 585.) Here, because Harnandis was still pursuing defendant, defendant had not yet made his way to a place of temporary safety at the time he fired his gun. Accordingly, the shooting occurred during the ongoing commission of the robberies.
Defendant contends that, because neither Martinez nor Perea chased him outside of the house, when he reached the car, he had reached a place of temporary safety as to them. Not surprisingly, defendant has cited no authority for the proposition that the victim must be chasing the perpetrator for application of the escape rule. To the contrary, regardless of who was chasing him, defendant had not reached a place of temporary safety while still in flight. (People v. Johnson (1992) 5 Cal.App.4th 552, 559.) Accordingly, the commission of the robberies of Martinez and Perea was continuing when defendant fired shots at the pursuing Harnandis.
Nor must the gun use be directed at the victim of the robbery for it to be used during the commission of that robbery. People v. Fierro (1991) 1 Cal.4th 173, 226-227, is instructive. There, the defendant first robbed the wife and then, before leaving, murdered and robbed her husband. Defendant argued the gun use finding should be stricken as to the robbery of the wife, because he did not display or personally use the gun during that robbery. In upholding the finding, the California Supreme Court concluded that "the jury could reasonably have inferred that defendant used the gun against the murder victim to facilitate his escape or to prevent his identification as the robber of [wife]." (Fierro, supra, 1 Cal.4th at p. 227, disapproved on a different point in People v. Letner and Tobin (2010) 50 Cal.4th 99.) The high court explained that "[i]n light of the legislative purpose to discourage the use of firearms, it would appear to be immaterial whether the gun use occurred during the actual taking or against the actual victim, so long as it occurred 'in the commission' of the robbery. (§ 12022.5, subd. (a).)" (Fierro, supra, 1 Cal.4th at p. 226, italics added.)
Here, the evidence supports the finding that defendant discharged the gun at Harnandis to aid his escape from all three victims after all three robberies. Thus, the true findings on the firearm enhancements with respect to the robberies of Martinez (count 3) and Perea (count 4) are supported by the evidence.
II CALCRIM No. 3261
The trial court instructed the jury with CALCRIM No. 3261 ("In Commission of Felony: Defined--Escape Rule") as follows:
"The People must prove that the defendant personally and intentionally discharged a firearm in the commission of Robbery. [¶] The crime of robbery continues until the perpetrators have actually reached a temporary place of safety. [¶] The perpetrators have reached a temporary place of safety if: [¶] They have successfully escaped from the scene; [¶] They are no longer being chased; and [¶] They have unchallenged possession of the property." (Italics added.)
Defendant makes several challenges to the trial court's use of CALCRIM No. 3261 in this case. First, defendant argues that the trial court prejudicially erred in failing to instruct the jury with the last sentence in the pattern instruction, which adds, as an additional requirement to finding the perpetrators have reached a temporary place of safety, that "and [¶] They are no longer in continuous physical control of the person who is the target of the robbery." (CALCRIM No. 3261.)
But this "error," if it was one, could not have made a difference to the applicability of section 12022.53, subdivision (c) as to counts three and four.
Defendant's argument here, echoing somewhat his first argument, is that, since he had reached a temporary place of safety as to the robberies of Martinez and Perea before he discharged the weapon at Harnandis, he could not be found to have discharged the weapon during the course of those robberies.
To have reached a place of temporary safety after robbing Martinez and Perea, the evidence would have to show, according to CALCRIM No. 3261, that (1) defendant had successfully escaped from the scene of the robbery, (2) defendant was no longer being chased, (3) defendant had unchallenged possession of the property, and that (4) defendant was no longer in continuous physical control of Martinez and/or Perea.
Even if one concedes that defendant had successfully escaped the scene, that he had unchallenged possession of the property that he stole, and that he was no longer in continuous physical control of the victims, the evidence that he was still being chased by Harnandis when he fired the shots was uncontroverted. As we have explained, it does not matter who defendant was being chased by and, therefore, he had not reached a place of temporary safety when he fired the shots. Omission of the fourth conjunctive element in the instruction was of no moment.
Second, defendant complains that the instruction fails to instruct the jury that the firearm enhancements must be found as to each victim. To the contrary, defendant was charged in count 2 with the robbery of Harnandis, in count 3 with the robbery of Martinez, in count 4 with the robbery of Perea, and in count 6 with assault with a firearm upon Harnandis. The jury was instructed with CALCRIM No. 3146 that "If you find the defendant guilty of the crimes charged in Counts 2, 3, 4, or 6 you must then decide whether, for each crime, the People have proved the additional allegation that the defendant personally used a firearm during the commission of those crimes. You must decide whether the People have proved this allegation for each crime and return a separate finding for each crime." (Italics added.) The jury was also instructed in CALCRIM No. 3148 that "If you find the defendant guilty of the crimes charged in Counts 2, 3, or 4 you must then decide whether the People have proved the additional allegation that the defendant personally and intentionally discharged a firearm during that offense."
"'[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.'" (People v. Castillo (1997) 16 Cal.4th 1009, 1016.) Thus, while not contained in CALCRIM No. 3261, the jury was nonetheless properly instructed with CALCRIM Nos. 3146 and 3148 that the finding had to be made with respect to each offense.
To the extent that defendant incorporates his theory that he had reached a place of safety with respect to the two victims who did not pursue him, even though he was still in flight from the scene, we rejected that argument in part I, ante. Thus, no additional or special instruction for multiple robberies or victims was required.
III Disparity in Sentences
Prior to trial, McLish entered into a negotiated plea with a stipulated prison term of three years. Casey agreed to testify against defendant at his trial and, in exchange, received a six-month jail term. Bradford entered into a negotiated plea with a lid of three years in prison. Defendant was offered, and rejected, a negotiated plea for 25 years four months (which consisted of the middle term of six years for robbery in concert, doubled because of the strike, 10 years for use of the firearm, and three years four months for assault with a firearm on a different victim).
After trial, defendant was sentenced to 53 years four months as follows: the middle term of six years for robbery, doubled to 12 years for the strike, plus 20 years for personal discharge of a firearm; two consecutive two-year terms for the two other robberies, doubled to four each for the strike, plus two firearm enhancements of six years eight months. The remaining terms were imposed and stayed pursuant to section 654.
Before imposing sentence, the trial court addressed defense counsel's argument about the "equities" of defendant's sentence compared to those of McLish, Casey, and Bradford. The court noted that Casey had pled in exchange for her testimony and that all three individuals had admitted culpability and resolved their cases long ago. Additionally, only defendant carried the "burden of a prior strike" and it was defendant's decision to fire a gun. The court concluded that equity demanded it ensure that the punishment be commensurate to the facts of the case and determined that, considering defendant's prior strike, his significant and aggressive role in the crimes, and his firearm use, his sentence was equitable.
Defendant now renews his argument that his sentence of 53 years four months is disproportionate to his culpability as compared with the punishment received by his cohorts and, therefore, constitutes an infringement upon his rights to a jury trial and due process. He argues that "his relative culpability was less than co-participants" and that he was unconstitutionally punished for exercising his right to a jury trial. The facts, however, do not support his claim.
First, unlike his cohorts, defendant had a prior strike conviction. This prior strike accounts for 10 years of his current sentence.
Second, unlike his cohorts, defendant carried, used and discharged a firearm. Thus, although he may not have come up with the home invasion idea, he engaged in additional criminal conduct and was substantially more culpable than his cohorts. His decision to carry, use and discharge the firearm accounts for 33 years four months of his current sentence.
Accordingly, 43 years four months of defendant's sentence are unique to him. Had defendant not had the prior strike, and not decided to bring his gun, he would have received a sentence of 10 years (or less, had he not had such a significant criminal history and been on probation at the time of the current offense). Absent defendant's criminal record and use of the firearm, his sentence would have been much closer to the terms imposed upon his cohorts who entered into pretrial pleas.
Additionally, the record does not support defendant's premise that his substantial sentence was due to his exercise of his jury trial right. Defendant was never offered a term comparable to those of his cohorts. The pretrial offer reflected in the record was a lengthy 25 years four months. Therefore, the record reflects that defendant was consistently exposed to a substantial sentence, not because of his decision to go to trial, but due to his criminal record and the nature of his crimes.
Finally, we reject defendant's argument that the increase from 25 years (pretrial offer) to 53 years four months (imposed after trial) demonstrates his sentence was imposed as punishment for exercising his right to a jury trial. Plea bargaining is now widely accepted. "'[W]hatever might be the situation in an ideal world, the fact is that the guilty plea and the often concomitant plea bargain are important components of this country's criminal justice system.' [¶] . . .[¶] It follows that, by tolerating and encouraging the negotiation of pleas, this Court has necessarily accepted as constitutionally legitimate the simple reality that the prosecutor's interest at the bargaining table is to persuade the defendant to forgo his right to plead not guilty." (Bordenkircher v. Hayes (1978) 434 U.S. 357, 361, 364 [54 L.Ed.2d 604, 609, 611].) "A prosecutor should remain free before trial to exercise the broad discretion entrusted to him to determine the extent of the societal interest in prosecution. An initial decision should not freeze future conduct." (United States v. Goodwin (1982) 457 U.S. 368, 382 [73 L.Ed.2d 74, 86].) Thus, the prosecution's attempt to negotiate a plea bargain does not limit its discretion to prosecute on all the charges upon which an individual is legitimately subject to prosecution and punishment--nor do we presume the decision to move forward with prosecution is a result of vindictiveness. (Id. at pp. 378-382 [73 L.Ed.2d at pp. 83-86.) Absent egregious facts not present here, we are unwilling to draw any inference from the plea bargain offered by the prosecution before trial. Moreover, it is the judge, not the prosecutor, who imposes a term of imprisonment. The prosecutor's pretrial offer does not limit the trial court's discretion to impose an appropriate sentence.
In sum, we do not find defendant's sentence was comparatively disparate or imposed as a punishment for exercising his right to a jury trial.
The judgment is affirmed.
We concur: BLEASE, Acting P. J. BUTZ, J.
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