IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
December 16, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
ZAYID WOLFE, DEFENDANT AND APPELLANT.
(Super. Ct. Nos. 09F05970, 08F05808 & 07F06487)
The opinion of the court was delivered by: Duarte , J.
P. v. Wolfe
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Zayid Wolfe was sentenced to six years eight months in state prison for conviction by jury verdict of three counts of second degree robbery, together with true findings as to three corresponding allegations that a principal was armed with a firearm.
On appeal, defendant contends the true findings must be reversed because the jury instructions failed to include the requirement that defendant know his fellow perpetrators were armed. Defendant further contends that the court erred when it imposed consecutive sentences as to two of the three counts of robbery.
As we will explain, there was no error. We shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On July 14, 2009, John Frasier, Samit Patel, and Mark Van Ornum (the victims) were using a rented music studio in Sacramento. Between 8:30 and 9:00 p.m., defendant and two other men, one of them co-defendant Peter Otten, came to the studio, talked about music for about 10 minutes and then left and went to an adjacent studio.
Shortly thereafter, the victims left the building. As they stood outside the front door, a silver Buick driven by defendant pulled quickly out of a parking space with its headlights off and stopped in the middle of the parking lot, poised to exit. Otten and an unidentified man got out of the Buick and approached the victims. Otten pushed Patel against a car, held a gun to his back and said, "Take off your pants" and "give me all your shit." Otten struck Patel with the gun several times, once in the face. Patel complied and took his pants off.
The unidentified man struck Van Ornum in the head. He took his cash and car keys. He then approached Frasier, backed him into the doorway, pointed a gun in his face, and told him to take his pants off as well. Frasier emptied his pockets and threw the contents on the ground. The man struck Frasier several times in the head and told him again to take off his pants. Frasier complied. Otten and the unidentified man got into the Buick and it sped off with defendant driving. Frasier later identified defendant and Otten in photo lineups.
Defendant ultimately admitted to detectives that he drove the Buick and was at the scene of the robbery, but denied knowing Otten and the unidentified man had guns or were planning a robbery, claiming he thought the robbery was a fight between his companions and the victims.
Defendant was charged by amended information with three counts of second degree robbery (Pen. Code,*fn1 § 211--counts 1, 2 and 3), one count of assault with a firearm (§ 245, subd. (a)(2)--count 4), and one count of being an accessory after the fact to robbery (§ 32--count 5). The information also alleged that, as to the robbery counts, a principal was armed with a firearm (§ 12022, subd. (a)(1)).
The jury convicted defendant of counts 1, 2, 3, and 5, acquitted him of count 4, and found the principal arming enhancement true. The court sentenced him to the middle term of three years on count 1, plus consecutive one-year terms on counts 2 and 3, a consecutive one-year term for the firearm enhancement as to count 1, and consecutive four-month terms for the enhancements to counts 2 and 3, for an aggregate sentence of six years eight months in state prison.
Defendant timely appeals.
Knowledge Requirement--Armed Coprincipals
Defendant contends he was denied due process and a jury determination of the facts because: (1) the jury instructions failed to specify that defendant had to know his coprincipals were armed with firearms in order to find the arming enhancements true; and (2) the prosecution argued such knowledge was not required. As we explain post, we disagree. Despite defendant's argument to the contrary, the law does not require he know his coprincipals were armed to be properly convicted under section 12022, subdivision (a)(1).
The trial court instructed the jury as follows: "If you find the defendant guilty of the crimes charged in Counts 1, 2, 3 and 4, or attempting to commit those crimes, you must then decide whether, for each crime, the People have proved the additional allegation that one of the principals was armed with a firearm in the commission of that crime in violation of Penal Code section 12022(a)(1). . . . A principal is armed with a firearm when that person (1) carries a firearm for use in either offense or defense in connection with the crimes charged in Counts . . . 1, 2, 3 and 4, . . . [and] (2) knows that he is carrying that firearm."
During rebuttal argument, the prosecutor told the jury: "As for the arming enhancement, first of all, I'd like to be clear that there is absolutely no knowledge requirement on the part of the defendant. He doesn't have to know that his buddies are packing for the arming enhancement to be true. They just need to know."
B. The Applicable Law
Section 12022, subdivision (a)(1) provides in part, "an additional and consecutive term of imprisonment in the state prison for one year" for "any person who is a principal in the commission of a felony or attempted felony if one or more of the principals is armed with a firearm, whether or not the person is personally armed with a firearm."
"[T]here is no requirement an aider and abettor know any principal is armed with a firearm to be found vicariously armed under section 12022, subdivision (a)(1)." (People v. Overten (1994) 28 Cal.App.4th 1497, 1501 (Overten); see also People v. McGreen (1980) 107 Cal.App.3d 504, 524-525, disapproved on other grounds in People v. Wolcott (1983) 34 Cal.3d 92, 101.)
Subdivision (c) of section 12022 provides an enhancement of three, four, or five years for "any person who is personally armed with a firearm" during the commission of specified narcotics offenses. Subdivision (d) of that section provides an enhancement of one, two, or three years for "any person who is not personally armed with a firearm" who knows that another principal is "personally armed" during the commission of the narcotics offenses specified in subdivision (c).
"'By specifically requiring a scienter requirement within [section 12022,]subdivision (d) for any person who is not personally armed with a firearm during the commission of an offense specified in subdivision (c) to be subject to being punished by a term of one, two or three years in the court's discretion, the Legislature inferentially was quite aware it was imposing vicarious liability without any scienter requirement in subdivision (a)(1) for those who committed felonies not specified within subdivision (c). [¶] Consequently, given the foregoing legislative intent and apparent election not to include a scienter requirement within subdivision (a)(1) of section 12022 as to those principals vicariously liable for another principal being personally armed with a firearm, other statutory language and/or decisional precedent construing statutory language containing a scienter requirement or defining "personally armed with a firearm" are irrelevant to the express vicarious arming liability for aiders and abettors of felonies in general set forth in subdivision (a)(1). . . . [T]his blanket vicarious liability of a principal who is unaware another principal is armed is not inconsistent with the legislative intent to deter the use of firearms in the commission of crimes, for it warns such coprincipals to take affirmative action to dissuade other principals from being armed with firearms during the commission of felonies.'" (Overten, supra, 28 Cal.App.4th at p. 1503.)
Defendant urges us to disregard Overten, arguing that its reasoning is flawed in a number of ways. He first claims a principal who is unaware that his coprincipal is armed is "incapable of preventing the presence of the weapon during the commission of the crime." We disagree. His argument wrongly assumes that the unarmed principal's efforts to prevent the presence of a weapon begin after the crime has started, rather than during the planning phase. Clearly, a participant can warn his coparticipants that possession and/or use of a weapon will not be tolerated before any plan is executed.
Defendant also argues that the reasoning of Overten is flawed because "a coprincipal who is not aware that his principal is armed has no reason to take steps to make sure the principal is not armed." But the coprincipal always has a reason to make sure his fellow coprincipal is not armed, that is, to avoid injury or death to victims, coconspirators or both.
Defendant also argues that the structure of section 12022 does not support the reasoning in Overten because the word "armed," as found in subdivisions (a)(1), (a)(2), (c) and (d) has been interpreted to require that a defendant who is "armed" must know the firearm is present (People v. Bland (1995) 10 Cal.4th 991, 1002-1003; People v. Pitto (2008) 43 Cal.4th 228, 240 (Pitto)), as must a principal who is in possession of a firearm (Pitto, supra, 43 Cal.4th at p. 240). It would be anomalous, he argues, to impose liability on an unknowing coprincipal for the principal's arming, but allow the principal to raise the defense that he lacked knowledge that a firearm was within close proximity. Defendant's argument ignores the fact that a coprincipal will only be vicariously liable under section 12022, subdivision (a)(1) if the principal is found to be "armed with a firearm," which by definition includes knowledge. Without a finding that the principal was armed, there can be no finding of vicarious liability as to the coprincipal.
Next, defendant argues that, given the general rule that no crime is committed unless there is a union of act and either wrongful intent or criminal negligence, and the fact that penal statutes "will often [be] construed to include an intent or criminal negligence requirement despite their failure to expressly state such a requirement," section 12022, subdivision (a)(1) should be interpreted to include a knowledge requirement. The absence of any authority supporting this argument demonstrates that this very specific conclusion does not follow from a combination of two general principles, nor does it overshadow the fact that although the Legislature saw fit to include a scienter requirement as to subdivision (d), it could have done so, but did not, with respect to subdivision (a).
We also reject defendant's claim that Pitto, supra, 43 Cal.4th 228, casts doubt on the holding in McGreen and Overten. Defendant correctly notes that Pitto dealt with vicarious liability of an unarmed coprincipal under section 12022, subdivision (c). However, we are not persuaded by his attempt to characterize the Pitto court's statement that "[t]he jury was adequately apprised of the requirements for finding that defendant was 'armed with a firearm' in the commission of the charged crimes under section 12022, subdivisions (a)(1), and (c)," as a clear articulation of a knowledge requirement. The Pitto court dealt with subdivision (c) and its application to an armed principal in possession of drugs. (Pitto, supra, 43 Cal.4th at p. 240.) It made no rulings whatsoever regarding subdivision (a)(1), nor was that subdivision at issue on appeal. (Id. at pp. 235-236.)
Finally, defendant contends exclusion of the knowledge requirement from the instructions given to the jury violated his rights under the federal and state constitutions. Given that we hold knowledge is not a required element of section 12022, subdivision (a)(1), we reject this contention.
The trial court properly instructed the jury on the section 12022, subdivision (a)(1) enhancement. The prosecutor's closing argument did not prejudicially mislead the jury regarding the absence of any scienter requirement for a true finding.
Defendant contends the trial court abused its discretion when it imposed consecutive one-year sentences for counts 2 (robbery of Frasier) and 3 (robbery of Patel) because those robberies were committed close in time to count 1 (robbery of Van Ornum) and defendant played only a peripheral role in the crimes. We disagree.
In making a determination as to whether to impose consecutive rather than concurrent sentences, a trial court may consider whether or not the "crimes involved separate acts of violence or threats of violence." (Cal. Rules of Court, rule 4.425(a)(2).)
Courts have repeatedly 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. (See, e.g., People v. Leon (2010) 181 Cal.App.4th 452, 468 [trial court has discretion to impose consecutive sentences where a single act has resulted in crimes against multiple victims]; 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.)
We review the trial court's decision to impose consecutive sentences for abuse of discretion. (People v. Leon, supra, 181 Cal.App.4th at p. 468.)
Here, defendant was convicted of three counts of robbery, each against a different victim. Conceding that courts have upheld consecutive sentences in cases involving multiple victims (People v. Shaw, supra, 122 Cal.App.4th at p. 459), defendant argues that all three robberies occurred during a single occasion in which he played only a "minimal role." He argues further that there was "no evidence [he] knew any of his companions had a gun or intended to use any violence" or to commit a robbery.
To the contrary, the evidence shows that, while defendant never got out of the car, he nonetheless significantly participated in the crimes. As the People correctly point out, the evidence showed that once the victims left the studio, defendant quickly pulled the Buick out of a parking space with the headlights off and stopped in the middle of the parking lot throughway, facing the exit. He waited in the car and watched as his two passengers got out, accosted the victims, threatened and assaulted them with guns, took their clothing and possessions, and then jumped back into the car, at which point defendant sped away from the scene.
Defendant notes that rule 4.425(b) allows the trial court "to consider other circumstances in aggravation and mitigation in deciding whether to impose concurrent or consecutive sentences," and claims that because the court did not state its reasons for imposing consecutive sentences, "it would be speculation to presume that [the trial court] chose to impose consecutive sentences for counts two and three for any reason that could have been considered under Rule 4.425, subdivision (b)." We are not persuaded. "The general rule is that a trial court is presumed to have been aware of and followed the applicable law. (Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424, 443; Corenevsky v. Superior Court (1984) 36 Cal.3d 307, 321 ['An order is presumed correct; all intendments are indulged in to support it on matters as to which the record is silent, and error must be affirmatively shown.']; Evid. Code, § 664.) These general rules concerning the presumption of regularity of judicial exercises of discretion apply to sentencing issues. (People v. Moran (1970) 1 Cal.3d 755, 762 [decision to decline to commit adult to the youth authority]; People v. Quicke (1964) 61 Cal.2d 155, 159-160 [decision to impose death penalty]; People v. Hooton (1959) 53 Cal.2d 85, 88 [determination to impose life sentence].)" (People v. Martinez (1998) 65 Cal.App.4th 1511, 1517.)
The evidence supports the trial court's decision to impose consecutive sentences. We find no abuse of discretion.
The judgment is affirmed.
We concur: BLEASE , Acting P. J. NICHOLSON , J.