IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
May 26, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
MARQUIS LARON IRVING, DEFENDANT AND APPELLANT.
Super. Ct. No. 09F04261
The opinion of the court was delivered by: Hoch , J.
P. v. Irving 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Marquis Laron Irving of six counts of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c); counts one through six)*fn1 and found not true allegations that he personally used a handgun (§ 12022.53, subd. (b)) and that a principal was armed (§ 12022, subd. (a)(1)). Following defendant's waiver of jury trial, the court convicted him of possession of ammunition by a convicted felon (§ 12316, subd. (b)(1); count seven) and found that he had a 2007 robbery conviction (§ 667). Defendant was sentenced to state prison for 22 years four months, consisting of six years (twice the middle term) on count one, two years (two-thirds the middle term) each on counts two through six, one year four months (two-thirds the middle term) on count seven, and five years for the prior serious felony.*fn2
On appeal, defendant contends the trial court (1) erroneously instructed the jury with CALCRIM No. 372 on flight after crime, and (2) failed to exercise its sentencing discretion, and abused that discretion when it imposed consecutive sentences on counts two through six. Finding no error on the first contention and no prejudicial error on the second contention, we affirm the judgment.
Events Preceding the Robbery
In January 2009, Jessica Mueth purchased a 1999 automobile that "look[ed] like a cop car." At the time of the purchase, the car had a red temporary registration tag instead of a license plate.
In February or March 2009, Mueth met defendant and they began "hanging out" together "[c]lose to every day."
In April 2009, defendant went to a clothing store and purchased a jacket that had an emblem on the back with a dagger, roses, and a skull.
Sometime in April 2009, defendant and Mueth decided to go their separate ways. He gathered his belongings, picked up the key to her car, and drove away. Mueth did not see the car again until she retrieved it from impound following the robbery. However, she did receive a traffic ticket through the mail from Vacaville, where defendant had told her he was from.
The May 2009 Robbery
In May 2009, four or five Black males, with their faces covered, entered a Sacramento pharmacy. The men went to the back area of the pharmacy and took OxyContin and promethazine codeine cough syrup. The men then left the pharmacy and left the area in what was described as possibly a surplus police car.*fn4
Sandie Rogers (the count two victim) testified that she was working at the pharmacy's front cash register, checking a drug order, when a man entered the pharmacy with a black shirt over his face. The man had dark skin and was wearing dark clothing. When he walked through the door, he "aggressively" said, "this is a stick up."
After the first man entered the pharmacy, two or three men came in behind him. The first man proceeded to the back of the store while the last man stayed at the front of the store and told Rogers to open and empty the cash register. Rogers, who was frightened, opened the register and gave the man approximately $100.
While Rogers was emptying the front cash register, defendant approached Nirmal Singh (the count four victim) who was working in the back of the pharmacy. Defendant yelled out, "'Don't move, Bitch.'" When Singh first heard this comment, she believed that some of her co-workers were "playing," so she continued to walk. When she did, defendant yelled, "'Bitch, don't move.'"
Singh saw that there were four other men with defendant in the pharmacy. Defendant, who was wearing a jacket with a picture on the back of it, filled a plastic bag with "promethazine with codeine" cough syrup. Singh believed that he took more than 10 bottles. At trial, Jessica Mueth identified a color still photo from the pharmacy surveillance video as depicting defendant wearing the jacket with the distinctive emblem that defendant had bought at a clothing store.
Pharmacist George Siouris (the count five victim) and clerk Shonta Master (the count six victim) also saw the men come into the pharmacy. They both saw four or five men come into the pharmacy with masks and hoods over their heads and grab drugs and medications off of the shelves. Although he did not have contact with any of the men, Siouris was fearful during the event.
Jose Alvarado (the count three victim) and Bobby Eberly (the count one victim) were also working at the pharmacy on the day of the robbery. Eberly heard the men telling people not to move.
One man was "screaming" and becoming agitated, asking, "Where's the OxyContin?" Eberly walked him over to the item and pointed it out to him.
At the same time, the other men were "shouting" and "telling everyone to shut up" as they grabbed items from the store shelves. Alvarado testified that he felt "[s]tunned" and "[s]cared" when the men entered the pharmacy. Eberly testified that he was in shock during the robbery and scared after it was over.
Patrons in the pharmacy parking lot saw "three or four black men . . . walking up to the store pulling their [hoods] over their heads, and T-shirts and stuff over their face[s]." When the patrons were about to enter the pharmacy, they observed the same three or four men running back out of the store with their faces still covered. The patrons walked in the same direction the men had fled and observed the men entering a black car that looked like "an old Highway Patrol car." The car sped away. It had a red sticker bearing the number "5" where the license plate should have been.
The owner of the business next door to the pharmacy observed five or six young men walking outside her store. The men made her nervous so she locked the door. Eventually, the owner saw the men "running" from the pharmacy to the parking lot carrying "a bunch of bags." The men entered a car that looked like a police car and took off.
Investigating officers learned that defendant had been involved in a prior traffic stop of a similar-looking car. As a result, on May 20, 2009, defendant's picture was included in photographic arrays that were shown to witnesses at the pharmacy. Singh identified defendant as the man who had robbed her.
The next day, an investigating officer saw an unoccupied "surplus law enforcement vehicle" that matched the description of the getaway car. After watching the car for about 10 minutes, the officer saw three Black men enter and start driving. The car was stopped and defendant was contacted in the front passenger seat. He initially identified himself as Eric Jerome Brown. Defendant was detained and the car was searched. The search yielded Department of Motor Vehicles paperwork for defendant, plastic bags, and a bottle of cough syrup containing promethazine with codeine.
The defense presented an investigator who had interviewed some of the witnesses to the robbery. The defense also called several Sacramento police officers and detectives to testify regarding discrepancies in the witnesses' descriptions of the robbers and regarding the evidence found in the car after it was impounded. Finally, the defense presented an expert in the area of eyewitness identification and memory.
Defendant did not testify.
Defendant contends the trial court erroneously instructed the jury with CALCRIM No. 372 on flight after crime, "because the identity of the perpetrator was the main issue in this case." We disagree.
During the instructions conference, the trial court and counsel discussed the applicability of CALJIC No. 372 regarding flight and consciousness of guilt. Defendant's counsel argued, "this instruction, or the efficacy of this only goes if identity is not an issue. If you are showing that the defendant in fact was the person fleeing, that could be considered as evidence of consciousness of guilt. But if it's at issue, and the identity of the person fleeing has not been determined or is at issue, then the fact that these people fled is not necessarily evidence of defendant's consciousness of guilt."
The court responded that "the notes indicate, 'If evidence identifies the defendant as the person who fled, and this evidence is relied on as tending to show guilt, then it is not in error to instruct the jury on flight.'" (Citing People v. Mason (1991) 52 Cal.3d 909, 943 (Mason).)
Defendant's counsel then asked whether the notes cited "a case called Anjell." The court said they did not, but agreed to look at the case if counsel presented the case to the court before the jury was instructed. The court added that, in the absence of further argument by defense counsel, CALCRIM No. 372 would be given. The record does not show that the court was presented with the case upon which defense counsel was relying.
CALCRIM No. 372 told the jury: "If the defendant fled immediately after the crime was committed, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled cannot prove guilt by itself."
Section 1127c provides: "In any criminal trial or proceeding where evidence of flight of a defendant is relied upon as tending to show guilt, the court shall instruct the jury substantially as follows: [¶] The flight of a person immediately after the commission of a crime, or after he is accused of a crime that has been committed, is not sufficient in itself to establish his guilt, but is a fact which, if proved, the jury may consider in deciding his guilt or innocence. The weight to which such circumstance is entitled is a matter for the jury to determine. [¶] No further instruction on the subject of flight need be given."
Section 1127c thus "requires a trial court in any criminal proceeding to instruct as to flight where evidence of flight is relied upon as tending to show guilt." (People v. Carter (2005) 36 Cal.4th 1114, 1182; fn. omitted.)
In Mason, supra, 52 Cal.3d 909, the defendant claimed the trial court erred by instructing the jury on flight. Citing People v. Anjell (1979) 100 Cal.App.3d 189 (Anjell), the defendant contended that such an instruction is erroneous whenever "'identity is a contested issue.'" (Mason, supra, 53 Cal.3d at pp. 942-943, quoting Anjell, at p. 199.) Mason rejected that contention, noting that the Anjell court has since retreated from the "overly broad dictum" on which the Mason defendant relied. (Mason, supra, 53 Cal.3d at p. 943.)
Citing section 1127c, the Mason court explained that, "[i]f there is evidence identifying the person who fled as the defendant, and if such evidence 'is relied upon as tending to show guilt,' then it is proper to instruct on flight." (Mason, supra, 52 Cal.3d at p. 943.) The Mason court added, "'The jury must know that it is entitled to infer consciousness of guilt from flight and that flight, alone, is not sufficient to establish guilt. [Citation.] The jury's need to know these things does not change just because identity is also an issue. Instead, such a case [only] requires the jury to proceed logically by deciding first whether the [person who fled] was the defendant and then, if the answer is affirmative, how much weight to accord to flight in resolving the other issues bearing on guilt. The jury needs the instruction for the second step.'" (Ibid., quoting People v. London (1988)206 Cal.App.3d 896, 903; fn. omitted.) Mason disapproved Anjell and its progeny to the extent they were inconsistent with the foregoing views. (Mason, supra, 53 Cal.3d at p. 943, fn. 13.)
In this case, evidence showed that four or five men entered the pharmacy with their faces covered, committed the robbery, and then fled by running out of the store, entering what appeared to be an old police or highway patrol vehicle, and driving away. Defendant was positively identified as one of the robbers by victim Nirmal Singh and by his former friend, Jessica Mueth, who viewed surveillance video from the robbery and recognized the distinctive emblem on the back of his jacket. Defendant's argument that there was "no direct substantial evidence identifying" him overlooks his positive identification by a witness with whom he previously had been acquainted. Moreover, defendant later was stopped in a car similar in appearance to the getaway car, and cough syrup similar to that stolen during the robbery was found in the car trunk.
Because there was ample evidence identifying defendant as one of the robbers and there was evidence that all the robbers fled the scene in the same car after committing the crime, the jury was properly instructed with CALCRIM No. 372.
Defendant disagrees, reasoning that if "the jury used this instruction to infer [that he] fled from the alleged robbery of the pharmacy, the logical inference is that he subjectively felt he had committed the charged offense. That is strikingly inconsistent with his misidentification defense."
However, a jury does not use the flight instruction to "infer [that the defendant] fled from the alleged robbery." Whether the defendant fled is the predicate question the jury must answer, from other evidence, before it applies the flight instruction. The instruction tells the jury that, "If the defendant fled," his flight may show his awareness of his guilt. (CALCRIM No. 372, italics added.) Contrary to defendant's argument, the instruction neither "presumes," nor tells the jury to presume, that the crime was committed or that defendant was a perpetrator.
Thus, an inference of consciousness of guilt drawn from other evidence showing that defendant fled neither "undercut[s] the credibility of" his defense nor relieves the prosecution of its burden to prove each offense beyond a reasonable doubt. CALCRIM No. 372 did not allow the jury to "bootstrap the determination" of his guilt. There was no error or constitutional violation.
Defendant contends the trial court abused its sentencing discretion when it imposed consecutive sentences on counts two through six. He argues the six counts were committed "with one singular objective" and "could be described as a non-violent, snatch-and-grab robbery where no physical contact ever took place, and no injuries were ever sustained by any of the victims." He argues "[t]he court's actions were an abuse of discretion because . . . it showed that this court, rather than looking at the individual offender, had decided that anyone found guilty of robbery was a menace and should be sentenced to prison." We find no prejudicial error.
Under the heading "Rule 4.425:[*fn5 ] Criteria Affecting Consecutive or Concurrent Sentences," the probation report stated that the "crimes and their objectives were predominantly independent of each other" and the "crimes involved separate acts of violence or threats of violence." Thus, the report recommended a six-year principal term on count one and consecutive terms on counts two through six.
At the outset of the sentencing hearing, the trial court announced its tentative decision to "follow the recommendations in the probation report," including consecutive terms on counts two through six.
Defense counsel asked the court to "seriously reconsider its intent to impose . . . consecutive sentences for these counts," which "all occurred with one objective, one incident, one occurrence."
Before imposing sentence, the trial court commented on letters it had received from several persons including defendant's grandmother and a former teacher, which described defendant as a young boy who cared for his peers and the disadvantaged and was a good grandson. The court remarked in part, "And it is very sad that [defendant] couldn't have carried on to be a big grownup like the little boy that he was. And it is sad that he can't be there to help his grandmother because she is frail now and it is hard for her to get around. [¶] But we have laws in this state that have been enacted to protect the public and to make sure that people who commit crimes upon defenseless human beings, as those in this case, that those people are kept away so they can't harm people."
The trial court imposed consecutive terms of two years each on counts two through six. The court stated it was "imposing consecutive sentencing having considered the criteria affecting the imposition of concurrent or consecutive sentences as set forth in [r]ule 4.425(a). The crimes and their objectives were predominantly independent of each other and each crime involved separate acts of violence or threats of violence."
Defendant claims the trial court "was wrong in its assessment" that the objectives of counts one through six were "independent of each other." The Attorney General does not directly address the court's assessment or claim defense counsel's objection failed to preserve the point for appellate review. The Attorney General defends the consecutive sentences based on the fact that the robbery involved violent conduct that threatened or harmed more than one victim and that such conduct may be punished with consecutive sentences even if the offenses occurred during a single course of conduct.
Our review reveals no evidence to support the court's assessment that the crimes' objectives were independent. However, while the crimes' objectives were not independent, the crimes indisputably involved six different victims. Courts repeatedly have held that violent conduct that threatens or harms more than one victim may be punished with consecutive sentences even if the offenses occurred during a single course of conduct. (E.g., People v. Calhoun (2007) 40 Cal.4th 398, 408; People v. Shaw (2004) 122 Cal.App.4th 453, 459; People v. Gutierrez (1992) 10 Cal.App.4th 1729, 1739; People v. Leung (1992) 5 Cal.App.4th 482, 502-505.) As we have noted, all six victims testified at trial and described their shock and fear as a result of the robbery. The robbery was carried out by four or five men with masks, hoods or t-shirts covering their faces; the men were yelling and screaming at the victims; the men ordered the victims not to move and to shut up; and the men were grabbing items from the shelves. The victims were threatened by the robbers' conduct. The nature of the robbery belies defendant's claim that "no violence [sic] acts took place." On this record with multiple victims, it is not reasonably probable defendant would receive a more favorable sentence on remand. (People v. Watson (1956) 46 Cal.2d 818, 836.) Thus, the trial court's unsupported finding that the crimes were predominantly independent could not have been prejudicial.
Defendant characterizes the trial court's sentencing process as a "refusal to exercise its discretion" and as an "adoption of a mechanized sentencing process." Neither characterization is correct.
There is no evidence that the trial court failed or refused to exercise its discretion. Nor did the trial court exercise its discretion in a mechanistic fashion, or pursuant to a preconceived policy, that took insufficient account of the particular facts of the case before the court. At the outset of the sentencing hearing, the trial court announced its tentative decision to "follow the recommendations in the probation report," including consecutive terms on counts two through six. Before imposing sentence, the trial court commented on letters it had received from defendant's grandmother and a former teacher describing defendant when he was young. The court remarked in part, "And it is very sad that [defendant] couldn't have carried on to be a big grownup like the little boy that he was. And it is sad that he can't be there to help his grandmother because she is frail now and it is hard for her to get around. [¶] But we have laws in this state that have been enacted to protect the public and to make sure that people who commit crimes upon defenseless human beings, as those in this case, that those people are kept away so they can't harm people." This comment responds to the dismay in the letters of how the young defendant changed and ended up with a record in such a short period of time. The comment also refers to the defenseless victims in this case, who testified about their fear and shock during and after the robbery. Contrary to defendant's characterization, this comment does not indicate that its sentencing decision was mechanistic or pursuant to preconceived policy. There was no prejudicial error.
The judgment is affirmed.
RAYE , P. J.
HULL , J.