Filed 1/15/20 P. v. Clark CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

ROBERT DOUGLAS CLARK III,

Defendant and Appellant.

E071028

(Super.Ct.No. 16CR061837)

OPINION

APPEAL from the Superior Court of San Bernardino County. Cara D. Hutson, Judge. Affirmed with directions.

Cynthia M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant Robert Douglas Clark III and three other males entered the home of V.J. and J.J. (collectively, the victims) demanding gold and diamonds. They ransacked the home and beat the victims. Defendant and his cohorts loaded V.J.’s Mercedes-Benz with items from the home and drove it to defendant’s house. The Mercedes was tracked to defendant’s home, and sheriff’s deputies arrived with lights and sirens. Defendant and his cohorts were near the Mercedes when deputies arrived, and they all ran. Defendant ran into the house and hid in the attic until the next morning when he finally surrendered to SWAT officers after they tore off the door and garage door of the home. Defendant was convicted of carjacking, robbery, assault with a firearm, making criminal threats and active participation in a street gang.

Defendant claims on appeal that (1) the admission of evidence of his prior criminal conduct was more prejudicial than probative in violation of his rights of due process and a fair trial; (2) his sentences for carjacking and robbery could not run consecutive and either of the sentences must be stayed pursuant to Penal Code section 654 ; (3) 10-year sentences imposed and stayed for violations of section 186.22, subdivision (b)(1)(C), must be stricken as unauthorized; (4) a 10-year enhancement imposed and stayed pursuant to section 12022.53, subdivision (e)(1) for one of the counts must be stricken; and (5) the fees imposed on his conviction must be stricken, and the restitution fine must be stayed, due to the trial court’s failure to determine his ability to pay the fines and fees.

FACTUAL AND PROCEDURAL HISTORY

A. PROCEDURAL HISTORY

Defendant was charged with codefendants Tyshon Maleke Harmon, Jr., and Saffarr Williams with two counts of home invasion robbery (§ 211; counts 1 & 2); two counts of carjacking (§ 215, subd. (a); counts 3 & 4); two counts of assault with a firearm (§ 245, subd. (a)(2); counts 5 & 6); two counts of making criminal threats (§ 422, subd. (a); counts 7 & 8) and one count of street terrorism (§ 186.22, subd. (a); count 9). In addition, it was alleged as to counts 1 and 2 that defendant acted in concert with two or more persons and entered a structure (§ 213, subd. (a)(1)(A)); the crime was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)); and a principal personally used a firearm (§ 12022.53, subds. (b) & (e)(1)). For counts 3 and 4, it was additionally alleged that the crime was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)); and a principal personally used a firearm (§ 12022.53, subds. (b) & (e)(1)). On counts 5, 6, 7 and 8, it was additionally alleged that the offenses were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C).)

Defendant was found guilty of counts 1 through 9. In addition, all of the allegations were found true except no verdict form was submitted for the firearm allegation for count 4. Defendant was sentenced to state prison for 60 years to life.

B. FACTUAL HISTORY

1. HOME INVASION ROBBERY AND CARJACKING

On October 29, 2016, V.J. lived with his wife J.J. on Apple Valley Road in Apple Valley. The house had a two-car garage and three bedrooms, one of which was converted into a prayer room. The prayer room was just inside the front door. The victims were celebrating Diwali, a Hindu celebration, by praying in the prayer room that night starting at 6:30 or 7:00 p.m. Their two cars were parked in the garage and the garage door was closed. As they were praying, they heard a “bang” at the front door.

Four Black males rushed into the house. They surrounded the victims. Two of them were short and the two others were tall. The tall males were over six feet. They wore dark clothing. One had a nylon stocking over his face and neck. Two other males had bandannas over their faces. One of the males did not cover his face.

V.J. observed that two of them had handguns; J.J. believed that all of them had handguns. A shorter male who was holding a gun asked them for diamonds and gold. V.J. told them he did not have any gold or diamonds in the house. They ransacked the house. The shorter male pulled J.J.’s wedding ring off her finger and cut off her bracelets.

When they did not find what they wanted, they got agitated. They hit the victims: V.J. was hit on the forehead with a gun and punched in the jaw; J.J. was struck with a gun on her arms, head and back. The shorter male yelled that he was going to shoot him. Another man said, “Shoot him.” One other male told V.J. to stay calm and they would not shoot him. They pushed the victims to the ground. J.J. was scared because they said they would shoot them both.

One of the four males went through V.J.’s wallet and asked for money. V.J. told them he would have to go to the bank to get more money. They told V.J. that he was going to the bank with two of them and J.J. would stay behind with the other men. J.J. cried and told them to take their cars instead.

Two of the suspects then carried electronics, televisions and computers into the garage; the other two kept guard over the victims. The victims were ordered to lay face down on the floor. The victims were told not to call the police or one of them would come back to shoot them. The victims waited two to 10 minutes and did not hear anything. They went to the garage and discovered that V.J.’s Mercedes-Benz was missing. Their Toyota was still in the garage. The assailants took cellular telephones belonging to the victims but they were able to call the police on a landline.

San Bernardino County Sheriff’s Deputies Kayla Peters and Greg Teplansky responded to the victims home. The victims were outside the home and flagged down Deputy Peters. The victims were visibly shaken, scared and crying. V.J. had a laceration on his forehead, which was bleeding. The front door had damage as though it had been kicked in. Deputy Peters went inside the home and observed that it had been ransacked. The victims told Deputy Peters that their Mercedes had been stolen from the garage but that it had a tracking system. A broadcast was sent out describing the Mercedes. The Mercedes was tracked to a home on High Vista Street in Victorville.

On that evening, San Bernardino County Sheriff’s Deputy Johnathan Gray was off duty and was headed home from a family function. He drove down High Vista Street and observed four Black males near a white Mercedes that had been parked in a cul-de-sac. One of the four males dropped a piece of paper. Deputy Gray intended to stop and tell him to pick it up but as he slowed down, one of the males made an aggressive hand gesture to him that he believed was a gang sign. The four males were between 20 to 25 years old.

Deputy Gray observed the four Black males take items out of the Mercedes and walk down the street. Deputy Gray drove down the street and parked. Once the four males had left, he got closer to the Mercedes. There were business cards and two bandannas on the ground near the car. He was approached by two of the males and one asked who had touched the Mercedes. Deputy Gray told them that the light was on inside and there was trash around the Mercedes. One of the men apologized. Deputy Gray walked back to his car.

Two of the males moved the Mercedes down High Vista Street and parked in front of a two-story house near a BMW. Deputy Gray called dispatch and reported the Mercedes. Deputy Teplansky was directed to the location where the Mercedes had been found. Other sheriff’s deputies arrived and they set up a staging area. Deputy Teplansky and other deputies approached the house in their patrol vehicles with lights and sirens; the four or five Black males around where the Mercedes was parked ran. Two of the males ran inside of the house; one ran into some nearby bushes; and another went into the backyard of the house.

James Garrett was apprehended hiding across the street and was arrested. Inside Garrett’s pocket, a key for V.J.’s Mercedes was found. Williams was found hiding in nearby bushes. He had jewelry in his pocket that belonged to J.J.

A helicopter circled overhead and the two males who entered the house were ordered out. Five minutes later, a man who identified himself as Bobby Watkins exited the house, and indicated that his wife, daughter, and two grandchildren were in the residence. They were all able to exit the house but the two male suspects who entered the house did not emerge.

The SWAT team was called to the High Vista Street house around 10:00 p.m. Attempts were made to communicate with the suspects inside the house. The SWAT team then approached the house from the front and back in armored vehicles. They used a tractor to remove the front door and the garage door. The tractor also moved the two vehicles parked in the driveway. Announcements for the suspects to surrender were continuously made. A phone was thrown into the house in order to communicate with SWAT but no one answered. Defendant emerged through the front door with his hands up at 4:30 or 5:00 a.m. the next morning Defendant had what appeared to be attic insulation in his hair and on his clothes. The attic was searched and Tyshon Harmon was found hiding under the insulation in the attic.

A truck that had been parked in the driveway of the High Vista Street house was searched. In the bed of the truck, a black suitcase, laptop bag and jacket were found. Documents inside the laptop bag bore the victims names.

The BMW that was parked at the residence was searched. It was determined to belong to the uncle of Garrett and Williams. A vase was in the front seat and a large television was in the backseat. They belonged to the victims. Videotapes with the victims name on them were also in the BMW. A Toyota key that belonged to the victims was inside the BMW as well. An Eagle Scout award belonging to the victims’ son was found. Fingerprints found on the vase and television belonged to Garrett and Harmon. J.J.’s wedding ring and bracelets were never found.

In the attic of the house, a jacket and shirt were found. There was insulation in the attic. Business cards with V.J.’s name were found “thrown about” in the neighborhood.

The victims were unable to identify anyone at the infield lineup. Neither of them could positively identify them because they never saw their faces. However, they did state that defendant and his cohorts matched the four suspects’ weight and height. Defendant was six feet, four inches tall. Garret was six feet, two inches tall. Williams was five feet, eight inches tall. Harmon was five feet, five inches tall.

After the incident, V.J. required seven stiches on his forehead, and his jaw had been dislocated. The victims never went back to their house; they moved out of California; VJ left his job of 21 years.

2. PRIOR INCIDENT

San Bernardino Police Officer Arturo Reyna was on patrol duty on September 2, 2016, when he became engaged in a chase with a van that was suspected to be involved in a shooting at an apartment complex. The driver of the van made numerous illegal traffic moves. The van reached speeds of over 100 miles an hour on surface streets. The van came to an abrupt stop in an intersection. There were four occupants in the van. The right rear passenger was apprehended as he exited the van. The passenger, later identified as defendant, was seen exiting the passenger’s side door; he was found hiding in a nearby apartment complex and was apprehended. The driver fled and got away; Officer Reyna identified Garrett as the driver through photographs and he was apprehended later. One of the occupants remained in the van and was discovered to be severely bleeding from a gunshot wound to his stomach. Several loaded handguns were found in the van.

3. GANG EVIDENCE

In 2010, 2013, and 2015, defendant had admitted to San Bernardino County Sheriff’s Deputies that he was a member of the Hustla Squad Clicc criminal street gang. His gang moniker was Dirt. He had an “HC” tattoo on his chest, which was considered a Hustla Squad tattoo. He also had a dollar sign tattoo, which was common among Hustla Squad members.

The prosecution presented evidence of several crimes committed by Hustla Squad members. In 2008, Gerardo Mayorga flagged down Rialto Police Corporal Johnathan Palmer. He had a laceration on his head. He advised Corporal Palmer he had been walking his dog and five Black males had approached him. They hit him in the head and stole his dog. The assailants were located and the five were identified by Mayorga; three of them were Hustla Squad members. Mayorga’s dog was in their vehicle. The five individuals were prosecuted.

In June 2015, Javier Joiner, a Hustla Squad member, was the subject of a traffic stop. A loaded revolver was found on the floor of his car near the driver’s seat. Joiner was prosecuted for this incident. In 2008, Garrett, who was an admitted Hustla Squad member, was prosecuted for a robbery in Rialto along with a fellow gang member.

In June 2007, defendant was stopped in a vehicle with four other people. There was a loaded handgun in the vehicle. One other Hustla Squad gang member was in the vehicle. Defendant was prosecuted. In 2015, Darren Bradford, a known Hustla Squad member, was with two other members of the gang. Their vehicle was searched and two loaded handguns were found. Bradford was prosecuted.

San Bernardino County Sheriff’s Deputy Brian Grimm was assigned to the Apple Valley gang enforcement team. He was assigned to investigate the home-invasion robbery and whether there was gang involvement. Williams and Harmon both had Facebook pages on which they had photographs of them using Hustla Squad hand signs and were wearing gang clothing. Defendant had a Facebook page and he used the name Dirt Blow Cash. Photographs of defendant with several other people from 2013 and 2014 flashing Hustla Squad gang signs were depicted on the page. Garrett was in the photograph. Garrett had Hustla Squad tattoos.

Irvine Police Corporal Gregory Marquez had previously worked for the Rialto Police Department and had testified as a gang expert numerous times, including four or five times about the Hustla Squad gang. He explained that a gang and individual members earned respect by committing crimes. The entire goal of the gang was to be the most violent and biggest gang. The Hustla Squad committed crimes such as burglary, robbery, felons in possession of firearms and shootings. They had a pattern of committing these crimes since 2005.

Corporal Marquez had previously met defendant and completed a gang card for him in September 2008. The recent crime committed by defendant, which involved being in the van with the loaded firearms and running from the police, showed his active participation in the gang. It was Corporal Marquez’s opinion that defendant was an active member of the Hustla Squad gang based on his own personal contact with defendant and his tattoos. Garrett, Williams and Harmon also were active participants in the Hustla Squad gang. In Marquez’s opinion, based on hypothetical facts similar to the instant home-invasion robbery, such a crime would be committed for the benefit of the gang.

4. DEFENSE

Antwanayia Clark was married to defendant; they lived with her five children in the High Vista Street house. At 6:00 p.m. on October 29, she was home with defendant, two of her children, her mother and her mother’s husband, Bobby Watkins. She went outside around 7:00 or 8:00 p.m. The police were in front of her house and someone ran inside the house. She went back inside. She identified the person who ran into her house as Garrett. She then said another person she did not know also ran into her house.

DISCUSSION

A. PRIOR CRIMES EVIDENCE

Defendant contends the trial court abused its discretion and violated his due process rights by admitting his prior criminal conduct.

1. ADDITIONAL FACTUAL BACKGROUND

Prior to trial, defendant brought a motion in limine to exclude the admission of prior arrests that did not result in charges being brought against him or were currently charged but no conviction had been obtained. He contended that the admission of these incidents would be more prejudicial than probative. The trial court heard the matter prior to trial. The prosecution gave an offer of proof that it was going to introduce an offense that occurred in September 2016, the high-speed chase involving the van, which contained loaded firearms, as a “pattern offense.” It was necessary to establish the elements of count 9, the street terrorism count, and the gang enhancements for counts 1 through 8. The offense occurred in San Bernardino and the charges were pending against defendant. Counsel for defendant sought to exclude the incident because it did not involve a conviction.

The trial court reviewed the police reports. The trial court ruled, “[A]fter reading the police reports under the analysis of 352, the probative value of establishing the predicate for the People’s case outweighs prejudicial [sic] that the Court saw after reading the report thoroughly.”

2. PRIOR CRIMES EVIDENCE WAS RELEVANT

Only relevant evidence is admissible and should only be admitted if the risk of undue prejudice does not outweigh the probative value. (Evid. Code, §§ 350, 352.) “Evidence that a defendant has committed crimes other than those currently charged is not admissible to prove that the defendant is a person of bad character or has a criminal disposition,” but may be admitted to prove identity or intent pursuant to Evidence Code section 1101, subdivision (b). (People v. Rogers (2013) 57 Cal.4th 296, 325.)

Other act evidence may be admitted to establish a pattern of criminal gang activity for the gang enhancement. “[W]here evidence is admitted under Evidence Code section 1101, subdivision (b), the evidence is probative because of its tendency to establish an intermediary fact from which the ultimate fact of guilt of a charged crime may be inferred. [Citations.] In prosecutions for active participation in a criminal street gang, the probative value of evidence of a defendant’s gang-related separate offense generally is greater because it provides direct proof of several ultimate facts necessary to a conviction. Thus, that the defendant committed a gang-related offense on a separate occasion provides direct evidence of a predicate offense, that the defendant actively participated in the criminal street gang, and that the defendant knew the gang engaged in a pattern of criminal gang activity.” (People v. Tran (2011) 51 Cal.4th 1040, 1046 (Tran).)

“[T]he decision on whether evidence, . . . , is relevant, not unduly prejudicial and thus admissible, rests within the discretion of the trial court. [Citation.] ‘Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion “must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]” [Citation.]’ [Citations.] It is appellant’s burden on appeal to establish an abuse of discretion and prejudice.” (People v. Albarran (2007) 149 Cal.App.4th 214, 224-225; see also People v. Gonzalez (2012) 210 Cal.App.4th 724, 736.)

Defendant was charged with having committed the home invasion robberies and carjackings at the victims’ house for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, and assist in criminal conduct by gang members within the meaning of section 186.22, subd. (b)(1). To prove the gang enhancement in section 186.22, subdivision (b)(1), the prosecution had to establish the existence of a criminal street gang, which required proof of a “ ‘pattern of criminal gang activity.’ ” (See § 186.22, subd. (e).) To show a pattern, the prosecution had to prove two or more predicate acts committed by two or more persons. (§ 186.22, subd. (e).)

In addition, defendant was charged in count 9 with street terrorism in violation of section 186.22, subdivision (a). Section 186.22, subdivision (a), is violated by, “Any person who actively participates in any criminal street gang with knowledge that its members engage in, or have engaged in, a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang.” As such, the People had to prove that defendant was an active participant in the Hustla Squad gang.

Here, the prior crime involving defendant being in the van with a loaded firearm as a convicted felon was relevant to show that the Hustla Squad gang engaged in a pattern of criminal activity. It was further relevant to show that defendant was an active member of the Hustla Squad which was necessary to prove the section 186.22, subdivision (a), crime that defendant contested.

Defendant insists that it was not necessary to admit this evidence because numerous other crimes were admitted to show this pattern. In Tran, supra, 51 Cal.4th 1040, the defendant made a similar argument that “the evidence should not be admitted when the prosecution has the ability to develop evidence of offenses committed on separate occasions by other gang members.” (Id. at p. 1049.)

The California Supreme Court rejected this argument, finding “[T]he defendant cites no authority for the argument that the prosecution must forgo the use of relevant, persuasive evidence to prove an element of a crime because the element might also be established through other evidence. The prejudicial effect of evidence defendant committed a separate offense may, of course, outweigh its probative value if it is merely cumulative regarding an issue not reasonably subject to dispute. [Citations.] But the prosecution cannot be compelled to ‘ ‘present its case in the sanitized fashion suggested by the defense.” ’ [Citation.] When the evidence has probative value, and the potential for prejudice resulting from its admission is within tolerable limits, it is not unduly prejudicial and its admission is not an abuse of discretion. Further, a rule requiring exclusion of evidence of a defendant’s separate offense on the theory the prosecution might be able to produce evidence of offenses committed by other gang members would unreasonably favor defendants belonging to large gangs with a substantial history of criminality. That the prosecution might be able to develop evidence of predicate offenses committed by other gang members therefore does not require exclusion of evidence of a defendant’s own separate offense to show a pattern of criminal gang activity.” (Tran, supra, 51 Cal.4th at p. 1049.)

Here, although the prosecution admitted other criminal acts committed by the Hustla Squad, which arguably may have been sufficient to establish the gang enhancement within the meaning of section 186.22, subdivision (b)(1), the prosecution had to further prove that defendant was an active participant to prove count 9. The evidence of defendant’s actions near the time of the instant crimes was particularly relevant in showing his active participation.

Defendant argues that the prior incident was not particularly probative as to whether he was an active participant in the gang. However, defendant was with Garrett, a known Hustla Squad gang member, in a van, which contained a loaded firearm. Defendant’s presence with a Hustla Squad member and involved in a crime with a loaded firearm tended to prove that he was actively participating in a gang in this case.

Moreover, this evidence was not more prejudicial than probative. Even where other act evidence is relevant its probative value may not be substantially outweighed by its potential “for undue prejudice under Evidence Code section 352.” (People v. Gutierrez (2018) 20 Cal.App.5th 847, 859-860.) “ ‘Prejudice for purposes of Evidence Code section 352 means evidence that tends to evoke an emotional bias against the defendant with very little effect on issues, not evidence that is probative of a defendant’s guilt.’ ” (Tran, supra, 51 Cal.4th at p. 1048.) “[T]he inherent prejudice from a defendant’s separate gang-related offense typically will be less when the evidence is admitted to establish a predicate offense in a prosecution for active participation in a criminal street gang, than when it is admitted to establish an intermediary fact from which guilt may be inferred.” (Ibid.)

Here, as noted, the evidence was particularly probative in proving both that the Hustla Squad engaged in a pattern of criminal activity but also that defendant was an active participant in the Hustla Squad gang. The probative value was not substantially outweighed by the risk of undue prejudice. Moreover, the evidence that defendant was in a van with a loaded firearm certainly was not more inflammatory than the evidence that defendant and his fellow gang members entered the home of the victims, beat them, stole their property and ransacked their home. The evidence was not more prejudicial than probative.

3. HARMLESS ERROR

Even if the trial court erred by admitting the prior acts evidence, any conceivable error was harmless. “The erroneous admission of . . . evidence requires reversal only if it is reasonably probable that appellant would have obtained a more favorable result had the evidence been excluded.” (People v. Avitia (2005) 127 Cal.App.4th 185, 194.)

The prosecution argued that it had to prove that defendant was an active participant in the Hustla Squad gang. The prosecutor pointed to the prior crime committed on September 2, 2016, in which defendant was in a van with fellow gang members, and there was a loaded firearm found in the van. The prosecutor argued this was evidence of active participation in the gang. The prosecutor argued that defendant himself was a “pattern offender.” Defense counsel advised the jurors that the prior case was given to them “for a limited purpose to show his potential continued association with certain other individuals that may be identified as members of a gang.” Based on the arguments by both counsel, it was evident to the jury that the prior offense was not to be used to prove defendant committed the current crimes against the victims, but only to prove the gang enhancements and substantive gang crime.

Additionally, the jury was also given a limiting instruction on the gang evidence. “ ‘You may consider evidence of gang activity only for the limited purpose of deciding whether the defendant acted with the intent, purpose, and knowledge that are required to prove the gang-related crimes and enhancements or the defendant had a motive to commit the crimes charged. . . . [¶] . . . [¶] You may not conclude from this evidence that the defendant is a person of bad character or that he has a disposition to commit a crime.’ ” Hence, the jury was instructed it could not consider defendant’s gang activity, which necessarily included the crime committed with Garrett, in determining defendant’s disposition to commit the crimes against the victims. We presume the jury followed the instructions. (People v. Sanchez (2001) 26 Cal.4th 834, 852.)

Finally, there was strong evidence presented that defendant was involved in the home-invasion robbery. The victims described their assailants as being two short males and two tall males. Garrett, Harmon, Williams and defendant met that description. All four were found at defendant’s home immediately following the home invasion robbery, along with the Mercedes and various other items belonging to the victims, which were found inside the Mercedes and on Garrett and Williams. Defendant hid inside his house for hours, refusing to come outside, showing his consciousness of guilt. Strong evidence was presented without consideration of the prior crime to support defendant’s guilt. Any conceivable error was harmless.

B. SENTENCING

Defendant makes three claims regarding the impropriety of his sentence: (1) his carjacking or robbery sentences must be stayed pursuant to section 654; (2) the stayed 10-year gang enhancement sentences on counts 1 through 4 must be stricken; and (3) the stayed sentence imposed pursuant to section 12022.53, subdivision (e), on count 4 must be stricken.

Defendant was sentenced on count 1, robbery, to the indeterminate life term of 15 years to life pursuant to section 186.22, subdivision (b)(4)(B). On counts 2, 3 and 4, 15-years-to-life sentences were imposed and were ordered to run consecutive to each other and the sentence on count 1. For each of these counts, the trial court imposed an additional 10-year sentence for the violations of section 186.22, subdivision (b)(1)(C), but stayed the sentences. Further, the principal armed enhancements within the meaning of section 12022.53, subdivision (e), were imposed and stayed for counts 1 through 4. The remaining counts and enhancements were stayed.

1. ROBBERY AND CARJACKING—SECTION 654

Defendant insists the trial court erred by failing to stay either his robbery or his carjacking sentence as they were all part of an indivisible course of conduct within the meaning of section 654 and involved the overall objective of taking property from the victims.

Section 654, subdivision (a), provides: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” “ ‘ “Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.” ’ ” (People v. Capistrano (2014) 59 Cal.4th 830, 885 (Capistrano), overruled on other grounds in People v. Hardy (2018) 5 Cal.5th 56.)

“Whether a defendant will be found to have committed a single physical act for purposes of section 654 depends on whether some action the defendant is charged with having taken separately completes the actus reus for each of the relevant criminal offenses.” (People v. Corpening (2016) 2 Cal.5th 307, 314 (Corpening).) The court’s implicit or express determination whether to impose consecutive sentences or find that section 654 is applicable will be upheld on appeal if supported by substantial evidence. (See People v. Osband (1996) 13 Cal.4th 622, 730-731.)

Home invasion robbery involves a robbery while acting in concert with two or more other persons within an inhabited dwelling house. Such robbery must be completed using force or fear. (§§ 211, 213, subd. (a)(1)(A).) “ ‘ “ ‘Carjacking’ is the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence, or from the person or immediate presence of a passenger of the motor vehicle, against his or her will and with the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession, accomplished by means of force or fear.”’ [Citation.] The completed offense of carjacking requires ‘asportation or movement of the motor vehicle.’ [Citation.] Carjacking is thus distinct from ordinary automobile theft because it is a crime accomplished by fear or force. . . . [C]arjacking is a crime of violence, distinct from robbery, and not merely a violation of the victims’ property interest in their motor vehicle.’ ” ’ ” (Capistrano, supra, 59 Cal.4th at pp. 886-887)

In Corpening, supra, 2 Cal.5th 307, the victim was sitting in his van in his driveway, which was loaded with valuable coins. The defendant’s coconspirator approached the van and placed a gun in the victim’s face, ordering him out of the van. The coconspirator stole the van, which contained the coins, and later picked up the defendant in the van. The defendant pleaded guilty to robbery and carjacking and was sentenced to consecutive sentences. The defendant appealed arguing he was incorrectly sentenced to consecutive sentences. (Id. at pp. 309-310.)

On appeal, the California Supreme Court agreed with the defendant. It first held, “ ‘Whether a defendant may be subjected to multiple punishment under section 654 requires a two-step inquiry, because the statutory reference to an ‘act or omission’ may include not only a discrete physical act but also a course of conduct encompassing several acts pursued with a single objective. [Citations.] We first consider if the different crimes were completed by a ‘single physical act.’ [Citation.] If so, the defendant may not be punished more than once for that act. Only if we conclude that the case involves more than a single act—i.e., a course of conduct—do we then consider whether that course of conduct reflects a single ‘intent and objective’ or multiple intents and objectives.” (Corpening, supra, 2 Cal.5th 307 at pp. 311-312.)

Corpening further explained: “Whether a defendant will be found to have committed a single physical act for purposes of section 654 depends on whether some action the defendant is charged with having taken separately completes the actus reus for each of the relevant criminal offenses. [Citations.] On these facts, the forceful taking of a vehicle on a particular occasion is a single physical act under section 654. The forceful taking of [the victim’s] van, and the rare coins contained therein, completed the actus reus for robbery—the felonious taking of another’s personal property by force. Precisely the same action, not a separate but related one taken at a separate time or in a distinct fashion, was also the basis for the contention that the defendant completed the actus reus for carjacking—the felonious taking of another’s motor vehicle by force. It was the same show of force—committed at the same time, by the same person—that yielded for [the defendant] and his coconspirators the rare coins contained within the carjacked van, giving rise to the robbery conviction. Neither offense was accomplished until completion of the single forceful taking identified by the prosecution as the basis for conviction under the carjacking and robbery statutes. These circumstances render it all but impossible to accept the contrary contention that the forceful taking in this case constitutes multiple physical acts for purposes of section 654.” (Id. at pp. 313-314, fns. omitted.) The court, after finding that the crimes were based on one single act, did not address “step two of the section 654 analysis” as to whether the defendant possessed multiple intents and objectives. (Id. at p. 314.)

In Capistrano, supra, 59 Cal.4th 830, the defendant was convicted of home-invasion robbery and carjacking. The defendant and several other men engaged in two separate crimes. First, they accosted two victims when they pulled their vehicle into the victims’ garage. One of the defendant’s associates pointed a gun in one of the victim’s faces and demanded money. The men directed the victims into the house and ransacked the house, taking several items. They sexually assaulted one of the victims. They then took the victims’ vehicle. (Id. at pp. 841-842.) In the second incident, the victim was accosted in her garage by the defendant and another man, while she was bringing in groceries. She was ordered into the house at gunpoint. They asked for her money and car keys. The men took the car keys and several Christmas presents. The victim’s vehicle was taken. (Id. at pp. 842-843.) The defendant was convicted of carjacking and robbery of each of the victims and argued on appeal that he was improperly sentenced to consecutive sentences because each incident was part of a single course of conduct. (Id. at pp. 885, 887.)

The Capistrano court found, “Defendant was charged in each incident with, and the jury convicted him of, two distinct crimes of violence against the victims, robbery and carjacking. The temporal proximity of the two offenses is insufficient by itself to establish that they were incident to a single objective. Rather, viewing the evidence in the light most favorable to the trial court’s ruling, we affirm its conclusion that defendant harbored separate objectives for each offense and was appropriately punished for both. [¶] Defendant and his cohorts confronted the victims at two points. They first accosted them at their cars and then again, inside the victims’ residences when they demanded the victims’ money and property. Had defendant simply intended to commit a carjacking, he could have done so at the initial point of contact. The evidence reveals, however, that defendant had another, distinct purpose—to rob (and commit other crimes) inside the victims’ homes. The elevation of the threat to the victims by forcing them into their homes where defendant committed additional crimes amounts to a separate criminal objective. [Citation.] Accordingly, we find no error in the court’s refusal to stay the sentence on the carjacking counts.” (Capistrano, supra, 59 Cal.4th at p. 887.)

The Capistrano court also noted, “Defendant attempts to cast his carjacking convictions as vehicle thefts that were part and parcel of a single course of conduct, beginning when the victims were removed from their cars and ending only when defendants left with the stolen items, which included the vehicles. Accordingly, defendant argues, the trial court erred when it declined to stay execution of the sentences on the carjacking counts. [Citation.] [¶] We disagree. Defendant was charged in each incident with, and the jury convicted him of, two distinct crimes of violence against the victims, robbery and carjacking. The temporal proximity of the two offenses is insufficient by itself to establish that they were incident to a single objective. Rather, viewing the evidence in the light most favorable to the trial court’s ruling, we affirm its conclusion that defendant harbored separate objectives for each offense and was appropriately punished for both.” (Capistrano, supra, 59 Cal.4th at p. 887.)

Here, defendant and his cohorts burst into the victims’ home demanding money and diamonds. The evidence established that V.J.’s Mercedes was inside the garage and the garage door was closed. Defendant and his cohorts beat the victims when they did not get what they wanted. They ransacked the house and threatened to take V.J. to the bank and leave J.J. behind. It was at this point that J.J. advised them to take their cars. Defendant and his cohorts took the keys to the Mercedes and drove away.

The People argue that the robbery and carjacking were separate and divisible acts, not a single act, as the robbery was complete before defendant and his cohorts committed the carjacking. J.J.’s bracelets and wedding ring had already been taken from her before the carjacking was complete. The acts of carjacking and robbery in the instant case were not based on one physical act like in Corpening. In Corpening, the items taken that constituted the robbery were inside the van, which was taken in the carjacking. Hence, the carjacking and robbery occurred simultaneously. Here, defendant and his cohorts were in the house for a long period of time, beating the victims and looking for property. It was only after they discussed taking V.J. to the bank because they had not gotten enough property to satisfy them, that it appears they decided to take V.J.’s Mercedes. There were multiple acts committed, none of which on their own “completed the actus reus for either robbery or carjacking.” (Corpening, supra, 2 Cal.5th at p. 315.)

As for the second step of the section 654 analysis, the People contend defendant harbored separate criminal objectives in committing the carjacking and home-invasion robbery. This case differs from Capistrano in that the court found the elevation of threat to the victims by forcing them into their houses to commit additional crimes of robbery showed that the defendant possessed a separate criminal objective. (Capistrano, supra, 59 Cal.4th at p. 887.) Here, defendant and his cohorts were already inside the home when they decided to take the car to facilitate their escape with the loot they took from the victims. Taking the vehicle from the victims did not “elevate the threat” to the victims. Moreover, in Capistrano, the defendants could have just taken the vehicle and left, completing the carjacking because they had confronted the victims next to their cars. Here, it was not entirely clear that defendant and his cohorts were aware of the vehicles in the garage until they were brought to their attention by J.J.

However, we conclude that the trial court properly imposed consecutive sentences. Here, defendant and his cohorts entered the victims home and asked for diamonds and cash. They never inquired whether the victims had any vehicles at the home. In fact, it is not entirely clearly that they knew of the existence of the vehicles until they were told by J.J. One of the men forcibly took the jewelry off of J.J.’s person and then proceeded to beat the victims. Once that was complete, they threatened to take V.J. to the bank and J.J. begged them to take their cars. It was only then that they took V.J.’s vehicle—after a long period in the house—rather than just taking the items that they had obtained and leaving in their own car.

The record supports that the robbery and carjacking were completed with separate intents and objectives. This case is unlike Corpening in which the same act constituted the robbery and carjacking. Here, defendant had multiple opportunities to reflect on the robbery and decision to take V.J.’s car. Substantial evidence supports the trial court’s sentencing decision.

2. TEN-YEAR SENTENCES IMPOSED PURSUANT TO PENAL CODE SECTION 186.22, SUBDIVISION (B)(1)(C).

Defendant contends that the 10-year enhancements imposed and stayed on counts 1 through 4 pursuant to section 186.22, subdivision (b)(1)(C), must be stricken as he was sentenced on those counts pursuant to section 186.22, subdivision (b)(4)(B). The People concede the error.

“Section 186.22, subdivision (b)(4), not subdivision (b)(1)(C), is applicable if the felony committed to benefit a criminal street gang is ‘a home invasion robbery [or] carjacking . . . .’ [Citation.] Rather than a determinate term enhancement, section 186.22, subdivision (b)(4), provides for an indeterminate life term as a mandatory alternate penalty ‘with a minimum term of the indeterminate sentence calculated as the greater of: [¶] (A) The term determined . . . pursuant to [the determinate sentencing law] for the underlying conviction . . . [or] [¶] (B) [i]mprisonment in the state prison for 15 years.” (People v. Sok (2010) 181 Cal.App.4th 88, 96; see also People v. Jones (2009) 47 Cal.4th 566, 570-571.)

Here, because defendant committed home invasion robbery and carjacking, the court correctly imposed the alternate penalty of life imprisonment in section 186.22, subdivision (b)(4)(B). However, the trial court should not have also imposed and stayed the enhancements under 186.22, subdivision (b)(1)(C). We therefore order that the four 10-year gang enhancements imposed pursuant to section (b)(1)(C), be stricken.

3. SECTION 12022.53 ENHANCEMENT

The People charged defendant on counts 1 through 4 with firearm enhancements pursuant to section 12022.53, subdivision (e)(1). The jury returned a true finding on the enhancement for counts 1, 2 and 3. No similar jury verdict for count 4 appears in the record. The parties agree that such sentence could not be imposed and that it should be stricken. However, we note a minute order from August 6, 2018, reflects that the trial court dismissed the enhancement and it does not appear on the abstract of judgment. As such, we can provide no effective relief on the claim as it has already been stricken by the trial court.

C. FINES AND FEES AFTER DUENAS

Defendant claims, relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), that the trial court violated his federal constitutional right to due process by failing to determine his ability to pay the mandatory criminal conviction assessment fee of $270 imposed pursuant to Government Code section 70373; the court security assessment fee in the amount of $360 imposed pursuant to Penal Code section 1465.8; and a restitution fine of $5,000 imposed pursuant to Penal Code section 1202.4, subdivision (b). Defendant contends this court must strike the two assessments and stay the restitution fine until the People can show that he has the ability to pay the restitution fine. The People argue that defendant forfeited the challenge by failing to request an ability to pay hearing in the trial court. Moreover, he has failed to show any due process infringement.

At the time of sentencing, the trial court found that defendant did not have the ability to pay appointed counsel or to pay the cost for the preparation of the probation report. It then ordered that defendant pay a “a CSC fee of $630 per count,” which it clearly intended to be a total amount of the Penal Code section 1465.8 and Government Code section 70373 fees. The trial court also assessed a restitution fine in the amount of $5,000 pursuant to Penal Code section 1202.4, subdivision (b). Defendant did not object. The trial court also imposed direct restitution to the victims in the amount of $22,815.01, which was to be paid jointly and severally by all four defendants pursuant to Penal Code section 1202.46.

Government Code section 70373, subdivision (a)(1) provides “To ensure and maintain adequate funding for court facilities, an assessment shall be imposed on every conviction for a criminal offense, including a traffic offense.” Penal Code section 1465.8, subd. (a)(1), provides that “[t]o assist in funding court operations, an assessment of forty dollars ($40) shall be imposed on every conviction for a criminal offense, including a traffic offense.” These sections do not include language regarding the defendant’s ability to pay the fees. Penal Code section 1202.4, subdivision (b), provides for a mandatory minimum restitution fine in the amount of $300 absent “compelling and extraordinary reasons for not doing so.” If the trial court wishes to exceed $300, it must determine if the defendant has the ability to pay the additional fine. (Pen. Code, § 1202.4, subd. (d).)

On January 8, 2019, after sentencing in this case, the Court of Appeal issued an opinion in Dueñas, supra, 30 Cal.App.5th 1157. In Dueñas, the defendant was a probationer who suffered from cerebral palsy, was indigent, homeless, and the mother of young children. She requested and received a full hearing on her ability to pay the court facilities fee, court operations fee, and the mandatory minimum restitution fine. Despite her clear inability to pay these fees and fine, the trial court mandatorily imposed them. (Id. at pp. 1162-1163.)

The appellate court held that the trial court violated the defendant’s right to due process under both the United States and California Constitutions by imposing court operations and facilities assessments pursuant to Government Code section 70373 and Penal Code section 1465.8, without making a determination as to the defendant’s ability to pay even though such determination was not required by the statute. (Dueñas, supra, 30 Cal.App.5th at p. 1168.) Further, the court concluded that the imposition of restitution fines pursuant to section Penal Code section 1202.4, subdivision (b), raises similar constitutional concerns, and therefore held that, while the trial court must impose the minimum restitution fine even if the defendant demonstrates an inability to pay, “the court must stay the execution of the fine until and unless the People demonstrate that the defendant has the ability to pay the fine.” (Dueñas, at p. 1172.)

Initially, the People contend that defendant forfeited his claim by failing to object to the imposition of these fines and fees and arguing an ability to pay at the time of sentencing. Dueñas had not been decided at the time of defendant’s sentencing. In People v. Castellano (2019) 33 Cal.App.5th 485, the court rejected this forfeiture argument and found “no California court prior to Dueñas had held it was unconstitutional to impose fines, fees or assessments without a determination of the defendant’s ability to pay. . . . When, as here, the defendant’s challenge on direct appeal is based on a newly announced constitutional principle that could not reasonably have been anticipated at the time of trial, reviewing courts have declined to find forfeiture.” (Id. at p. 489.)

In People v. Jones (2019) 36 Cal.App.5th 1028, this court concluded that an objection to fees or a minimum restitution fine on the grounds of due process would have been futile prior to Duenas and should not constitute forfeiture. (Jones, at pp 1031-1032.) However, in Jones, we did note an exception when the restitution fine is above the minimum fine. In People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153 through 1154, the defendant was found to have forfeited the challenge to his restitution fine by not objecting to fines and assessments at sentencing in a case involving a restitution fine greater than the minimum restitution fine. Relying upon section 1202.4, subdivision (d), the Frandsen court concluded that, at least with respect to the restitution fine, the defendant had forfeited that issue on appeal by failing to raise it in the trial court. (Frandsen, at p. 1154.)

In Jones, we recognized Frandsen, and found, “Because, as noted, even before Dueñas, the Penal Code indicated that inability to pay may be considered in increasing the amount of the restitution fine above the $300 minimum, Frandsen was correct to conclude that ‘[s]uch an objection would not have been futile under governing law at the time of his sentencing hearing.’ ” (Jones, supra, 36 Cal.App.5th at p. 1033.)

Here, unlike the situation in Dueñas where the court had imposed the minimum restitution fine, the trial court imposed a $5,000 restitution fine, which was above the statutory minimum, without objection. Defendant at the time of sentencing had a statutory right to object to the fine as set forth in subdivision (d), of section 1202.4, but failed to do so. The California Supreme Court has found that if a defendant could have objected at the time of sentencing to a fine imposed, based on inability to pay, such failure to object waives the claim. (See People v. Case (2018) 5 Cal.5th 1, 53l; People v. Gamache (2010) 48 Cal.4th 347, 409.) As such, we conclude defendant forfeited his inability-to-pay claim as to the restitution fine imposed pursuant to section 1202.4, subdivision (b), based on his failure to raise it below. Further, since he forfeited his ability to pay hearing on the amount of the restitution fine imposed, he cannot also claim the trial court should have stayed the amount.

Additionally, we need not determine whether Dueñas was properly decided as to the fees imposed. Even if Dueñas applies to this case, the record supports defendant has the ability to pay based on his prison wages, rendering any conceivable constitutional error harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) Defendant, who has received a sentence of 60 years to life, can earn wages in prison to pay the fines. Even defendant admits the $5,000 restitution fine could be paid in 35 years. We find that even if Dueñas was properly decided, any conceivable constitutional error was harmless.

DISPOSITION

The trial court is directed to strike the 10-year enhancements imposed and stayed pursuant to section 186.22, subdivision (b)(1)(C), on counts 1 through 4. The trial court is further directed to prepare a new abstract of judgment and forward it to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

J.

We concur:

RAMIREZ

P. J.

MENETREZ

J.