P. v. Rizo

Filed 5/2/07 P. v. Rizo CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE,
Plaintiff and Respondent,
v.
RODRIGO R. RIZO et al.,
Defendants and Appellants.
2d Crim. No. B189432
(Super. Ct. No. BA 282614)
(Los Angeles County)
Appellants Rodrigo R. Rizo and Cesar G. Gonzalez were convicted by
separate juries after separate trials for crimes they committed together on March 22,
2004. Gonzalez was convicted of two counts of home invasion robbery in concert. (Pen.
Code, § 213, subd. (a)(1)(A).) 1 Rizo was convicted of two counts of home invasion
robbery in concert and one count of carjacking. (§ 215, subd. (a).) The trial judge
sentenced Gonzalez to eight years in state prison, imposing consecutive six and two year
sentences for the two robbery counts. (§ 213, subd. (a)(1)A).) The judge sentenced Rizo
to nine years in state prison, imposing two concurrent nine year upper term sentences for
the two robbery counts and staying imposition of sentence on Rizo's carjacking
conviction pursuant to section 654.
1 All statutory references are to this code unless otherwise stated.

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Gonzalez appeals his conviction and Rizo appeals his sentence. Gonzalez
contends there was no substantial evidence to support his convictions for home invasion
robbery and that he was entitled to an instruction on the lesser included crime of
attempted robbery. Rizo contends that imposition of the upper term sentences violated
his right to a jury trial. We affirm the judgment against Gonzalez. We reverse the
judgment against Rizo and remand for re-sentencing as to Rizo.
FACTS
Cesar Cruz Becerra, Bonifacio Hernandez, and Jose Gomez Vela
("Gomez") shared an apartment. On March 22, 2005, at about 7:00 a.m., three men
entered their front door. The men woke Gomez in the living room, and held something
sharp against his neck. They asked him where the money was and threatened to pump
lead into him. They tied him up and put tape over his eyes and mouth. The men wore
hoods or masks and Gomez did not recognize their voices. He heard them ransack the
apartment for about an hour.
In the bedroom, a man woke Hernandez by pulling his hair from behind and
putting something sharp against his neck. Men put tape over Hernandez' eyes and tied
his hands and feet. They also tied up his three guests. Hernandez did not see the men or
recognize their voices. He also heard ransacking.
The men took Gomez' wallet with $450 to $500 and his car keys. They
took Hernandez' Ford Explorer, and his cash, and they took $200 of Becerra's money.
Hours before the robbery, Becerra's apartment keys had been taken from
him. He was at work at 4:30 a.m. and received a call from Cesar Gonzalez. Gonzalez
told Becerra to let him in. Becerra refused because he did not have orders to allow
anyone in. Fifteen minutes later, two men that Becerra did not recognize forced open the
back door of the restaurant. They threatened Becerra with a gun, tied him up, covered his
eyes with duct tape, put him into his own car and drove him around for about two hours.
The men took Becerra's key to the apartment and left him in his car. When Becerra
untied himself at about 8:00 a.m., he found that he was two or three blocks from his
apartment.

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After the robbery, an officer pulled over the Ford Explorer. Rodrigo Rizo
was driving it. Rizo's fingerprint was later found in the Virgil Street apartment. A
detective questioned Rizo. Rizo identified Gonzalez as a participant to the robbery.
When the detective questioned Gonzalez, Gonzalez admitted that Manuel
Martinez had called him to do a job of taking money from some "Coyotes." Gonzalez
said that Martinez sent Rizo and another man to a restaurant in Santa Monica to kidnap a
man who had keys to the apartment, which they did. Gonzalez met them at the apartment
and went inside with Rizo, Martinez and at least one other man. Gonzalez admitted that
he stood by the doorway as a lookout while Rizo pointed a handgun at the victims and
Martinez blindfolded them. He admitted that Rizo took car keys and the Ford Explorer
that belonged to one of the victims. Gonzalez said they searched for money but found
none.
Gonzalez wrote and signed a confession which stated, "Manuel called me to
do the job of taking the money from the Coyotes. He and Alex and Ricky [Rizo] went
for the key over to a friend of the Coyotes. They brought him [Becerra], and Alex stayed
with him. The rest, Manuel, Ricky, El Nino, and I went in to look for the money, but we
didn't find anything. Ricky took the keys to the Explorer. He took it. And I went home.
They went someplace else."
Gonzalez' Conviction Was Supported by Substantial Evidence
Section 213, subdivision (a)(1)(A) applies where the defendant "voluntarily
acting in concert with two or more other persons, commits the robbery within an
inhabited dwelling . . . ." Gonzalez concedes that there was sufficient evidence that a
robbery was committed in an inhabited dwelling, but he contends there was insufficient
evidence that he personally participated.
We review the whole record and uphold the jury's verdict if there is any
substantial evidence to support it. (People v. Ledesma (2006) 39 Cal.4th 641, 723.)
Gonzalez admitted that he personally participated in the robbery in concert with at least
three others. He admitted that he entered the apartment with the other robbers, and stood
at the doorway while Martinez and Rizo blindfolded the victims, pointed a handgun at

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them, and took the keys to the Ford Explorer. Becerra and Hernandez each testified that
their cash was stolen. Becerra testified that each of the occupants had personal property
taken.
There are contradictions between the details of the eyewitness accounts and
Gonzalez' written and oral statements, but the jury's verdict resolved these conflicts
against Gonzalez. On review, we may not substitute our judgment for that of the jury,
reweigh the evidence or reevaluate the credibility of witnesses. (People v. Ochoa (1993)
6 Cal.4th 1199, 1206.) Substantial evidence supports the jury's verdict.
Failure to Instruct on a Lesser Included Crime Was Not Reversible Error
An attempt to commit robbery is a lesser included offense of the crime of
robbery. (People v. Crary (1968) 265 Cal.App.2d 534, 540.) A trial court must instruct
on a lesser included offense if substantial evidence exists indicating that the defendant is
guilty only of the lesser offense. (People v. Manriquez (2005) 37 Cal.4th 547, 584.) In
deciding whether the evidence is "substantial," the court considers "the bare legal
sufficiency [of the evidence], not its weight." (People v. Breverman (1998) 19 Cal.4th
142, 177.)
Gonzalez stated that he and his accomplices went in to look for the money
but didn't find any. Gonzalez argues that this statement entitled him to an instruction on
attempted robbery because, it if were believed, it would absolve him of guilt for robbery
and support a finding that he was only guilty of attempted robbery.
We apply the de novo standard of review and independently determine
whether an instruction on the lesser crime should have been given. (People v. Hayes
(2006) 142 Cal.App.4th 175, 181.) If an instruction on the lesser crime should have been
given, we review for prejudice under People v. Watson (1956) 46 Cal.2d 818, focusing
"not on what a reasonable jury could do, but what such a jury is likely to have done in the
absence of the error under consideration." (People v. Breverman, supra, 19 Cal.4th at
p. 177.)
There was no substantial evidence that Gonzalez was guilty only of
attempted robbery of Hernandez. Gonzalez admitted that his accomplice actually took

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car keys and a vehicle from Hernandez. The jury necessarily accepted as true Gomez'
testimony that his keys and wallet (with cash) were stolen when they convicted Gonzalez
of robbery of Gomez. Attempted robbery is supported only by Gonzalez' self-serving
statement that no money was found.
Any failure to instruct on a lesser crime is harmless where "'the factual
question posed by the omitted instruction was necessarily resolved adversely to the
defendant under other, properly given instructions. In such cases the issue should not be
deemed to have been removed from the jury's consideration since it has been resolved in
another context, and there can be no prejudice to the defendant since the evidence that
would support a finding that only the lesser offense was committed has been rejected by
the jury.' [Citation.]" (People v. Wright (2006) 40 Cal.4th 81, 98.)
The evidence supporting the existing judgment is strong, and the evidence
supporting a different outcome is weak. There is no reasonable probability that any
failure to instruct on the lesser crime affected the result. (People v. Beverman, supra, 19
Cal.4th 142, 177.)
Rizo's Right To A Jury Trial Was Violated By Imposition of the Upper Term
The Sixth Amendment jury trial guarantee does not allow a judge to impose
an upper term sentence based on aggravating facts that have not been tried by a jury.
(Cunningham v. California (2007) __ U.S. __ [127 S.Ct. 856].) Except for a prior
conviction, any fact that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable doubt.
(Cunningham, at p. __ [127 S.Ct. at p. 860].)
We first reject the People's argument that Gonzalez waived this claim by
not raising it in the trial court. A defendant does not forfeit or waive a legal argument
that was not recognized at the time of his sentencing. (People v. Esquibel (2006) 143
Cal.App.4th 645, 660.) Although Blakelyv. Washington (2004) 542 U.S. 296 had been
decided at the time of Gonzalez' sentencing, there was no authority at that time
recognizing the rule announced in Cunningham: that California's determinate sentencing
law "by placing sentence-elevating factfinding within the judge's province, violates a

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defendant's right to trial by jury safeguarded by the Sixth and Fourteenth Amendments."
(Cunningham v. California, supra, __ U.S. __ [127 Sct. at p. 860].)
The trial judge imposed the upper terms against Rizo based on aggravating facts
that were not found true by a jury. The judge found that Rizo's crimes were extremely
violent, that Rizo was on parole at the time of the offense, and that his prior conduct on
probation had not been satisfactory. Because these aggravating facts were not found by a
jury to be true beyond a reasonable doubt, Rizo's sentences on the home invasion robbery
counts are unlawful.
DISPOSITION
The judgment is affirmed as to Gonzalez. The case is remanded as to Rizo for re-
sentencing on counts 1 and 2 consistent with the views expressed in Cunningham v.
California, supra, __ U.S. __ [127 S.Ct. 586].
NOT TO BE PUBLISHED.
COFFEE, J.
We concur:
GILBERT, P.J.
PERREN, J.

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Norman J. Shapiro, Judge
Superior Court County of Los Angeles
______________________________
Jan B. Norman, under appointment by the Court of Appeal, for Defendant
and Appellant, Rodrigo R. Rizo.
Joan Wolff, under appointment by the Court of Appeal, for Defendant and
Appellant, Cesar Gonzalez.
Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant
Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Robert F.
Katz, Supervising Deputy Attorney General, Michael J. Wise, Deputy Attorney General,
for Plaintiff and Respondent.

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