P. v. Bueno

Filed 10/5/18 P. v. Bueno CA2/1
Opinion on remand from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not
been certified for publication or ordered published for purposes of rule 8.1115.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 ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
GEOFFREY S. BUENO,
Defendant and Appellant.
B277399
(Los Angeles County
Super. Ct. No. MA062308)
APPEAL from a judgment of the Superior Court of
Los Angeles County. Lisa Chung, Judge. Affirmed.
______
Elizabeth K. Horowitz, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Assistant Attorney
General, Scott A. Taryle and Rene Judkiewicz, Deputy Attorneys
General, for Plaintiff and Respondent.
______

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Appellant Geoffrey S. Bueno appeals from the judgment of
conviction of two counts of second degree robbery and one count
of possession of a controlled substance. Appellant challenges
the sufficiency of the evidence supporting one of the robbery
convictions and the exclusion of evidence that one of the victims
had a prior domestic violence conviction. He also complains that
his counsel was ineffective for failing to object to the prosecutor’s
misstatement of the law during closing arguments. Finally,
appellant asserts his sentence is unauthorized because the trial
court imposed a penalty assessment in conjunction with the Health
and Safety Code section 11372.5 laboratory fee.
In the prior opinion in this case, we rejected all of
appellant’s arguments and affirmed the judgment in its entirety,
but we recognized that there was a split of authority on the
issue of whether the laboratory analysis fee is subject to a penalty
assessment. The Supreme Court granted review but held this case
pending the decision in another case raising the same issue. After
deciding that case, the Court transferred this matter to us with
directions to reconsider it in light of the new authority. Having
done so, we again affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On March 5, 2014, Scotty Southwell, a Home Depot
loss prevention officer observed appellant “act suspiciously” in a
Home Depot; Southwell saw appellant conceal several small items
of merchandise in his pockets and waistband and then select a
couple of additional items and walk toward the cash registers in the
front of the store. At the cash register, appellant paid for the items
he held in his hands, but not the items that he had hidden in
his clothing. Southwell followed appellant out of the store. Once
outside, Southwell, who was dressed in plain clothes, approached
appellant from the side and identified himself as “store security”

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and showed appellant his security badge. Appellant looked
at Southwell but did not stop; he continued to walk toward the
parking lot. Southwell then repositioned himself in front of the
appellant to prevent his movement, and Southwell told appellant
to stop and come back into the store. Southwell testified that
appellant pushed him in the chest area, and then ran toward the
parking lot. Southwell went into “detainment mode,” chasing after
appellant. He grabbed appellant’s torso from behind and knocked
appellant down. On the ground, appellant cursed, thrashed
his arms and kicked his legs, and struggled to push Southwell off.
Southwell told appellant to stop resisting and to put his hands
behind his back, but appellant continued to resist, saying, “Get the
fuck off me. Let me go.” Southwell testified that appellant used
significant force to prevent him from making an arrest. Southwell
stated that he felt in fear for his safety because he could not subdue
appellant alone and did not know whether appellant was armed.
Home Depot supervisor Mario Fernandez witnessed part of
the encounter between appellant and Southwell. Before appellant
left the store, Southwell had asked another employee to inform
Fernandez that Southwell was going to apprehend a burglary
suspect outside of the store and that Southwell needed Fernandez
to witness the detention.1
Fernandez observed Southwell approach appellant outside
the store. Fernandez also saw appellant swing his right hand out
toward Southwell, but he could not recall whether he saw appellant
strike or push Southwell. Fernandez then lost sight of Southwell
and appellant for a few moments, and Fernandez ran out of the
store to follow them. Fernandez saw Southwell struggling with
appellant on the ground as appellant continued to resist—kicking
1 Home Depot policy required the presence of an employee to
witness store security personnel detain a suspected shoplifter.

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and thrashing his arms and legs—trying to get away from
Southwell. Southwell asked Fernandez to hold appellant’s legs so
that Southwell could place handcuffs on appellant. As he tried to
hold appellant’s legs, Fernandez told appellant to stop resisting,
but he did not cooperate, and kicked Fernandez. Fernandez said
he held appellant’s legs until appellant “kicked me off.” Fernandez
assisted Southwell in placing the handcuffs on appellant.
Fernandez felt nervous and afraid during the encounter because
he did not know what would happen and did not want to get hurt.
Appellant continued to resist even after he was placed in
handcuffs and on his feet, and, therefore, two additional employees
were summoned to assist Southwell to escort appellant back into
the store. A search of appellant resulted in the discovery of store
merchandise in his pockets and waistband. The value of the items
appellant stole totaled $99.98.
Appellant was arrested and charged with two counts of
robbery in violation of Penal Code section 211 against Scotty
Southwell (count 1) and Mario Fernandez (count 2), and one count
of possession of a controlled substance (methamphetamine) in
violation of Health and Safety Code section 11377, subdivision (a)
(count 3).2 The information further alleged that appellant
had committed two strike priors per Penal Code section 667,
subdivision (d), and section 1170.12, subdivision (b), and two
serious felonies per Penal Code section 667, subdivision (a)(1).
During appellant’s trial, the prosecutor played a video from
the store’s surveillance camera that showed part of the encounter
between Southwell and appellant. The video showed Southwell
2 Appellant suffered injuries during the struggle with
Southwell and he was taken to the hospital. At the hospital, a
small baggie containing a usable amount of methamphetamine was
found in appellant’s possession, which gave rise to the drug
possession charge against appellant.

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and appellant struggling on the ground and Fernandez’s efforts
to assist Southwell, but it did not capture the initial interaction
between appellant and Southwell. Appellant presented testimony
from an eyewitness who was walking in the Home Depot parking lot
at the time of the incident. The witness observed appellant walking
quickly away and saw Southwell tackle him to the ground, but she
did not see the initial encounter between them.
The jury returned guilty verdicts on all of the counts.
The trial court sentenced appellant to 47 years to life, as follows:
On count 1, applying the two prior strikes, the court imposed
25 years to life, plus 10 years for two priors pursuant to Penal Code
section 667, subdivision (a)(1), which came to 35 years to life.
On count 2, the trial court struck the two prior strikes and imposed
the low term of 2 years, plus 10 years for the two Penal Code
section 667, subdivision (a)(1) priors, which came to 12 years, to run
consecutive to count 1. On count 3, the trial court imposed 365 days
in county jail, to run concurrently. The trial court also imposed
criminal conviction assessments, security fees, and restitution fines
and a $50 crime laboratory fine under Health and Safety Code
section 11372.5, plus penalty assessments.
Appellant timely filed a notice of appeal.

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DISCUSSION
A. Sufficient Evidence Supports the Robbery
Conviction Alleged in Count 2
Appellant asserts the evidence that he exerted force and
inflicted fear is insufficient as to the second count of robbery in
which Fernandez is the alleged victim. He claims that Southwell
was the only victim in this case, and that the force and fear to
accomplish the taking was directed only at Southwell, not
Fernandez. As discussed below, we disagree.
1. Standard of Review
“ ‘The test on appeal is whether substantial evidence supports
the conclusion of the trier of fact, not whether the evidence proves
guilt beyond a reasonable doubt.’ ” (People v. Johnson (1980)
26 Cal.3d 557, 576.) This court views the “evidence in the light
most favorable” to the verdict, and presumes the existence of every
fact the jury might reasonably deduce from it. (People v. Ochoa
(1993) 6 Cal.4th 1199, 1206.) We do not “substitute our evaluation
of a witness’s credibility for that of the fact finder.” (People v. Jones
(1990) 51 Cal.3d 294, 314.) “[T]he testimony of a single witness is
sufficient to uphold a judgment even if it is contradicted by other
evidence, inconsistent or false as to other portions.” (People v. Leigh
(1985) 168 Cal.App.3d 217, 221.)
2. Applicable Legal Principles
Penal Code section 211 defines robbery as “the felonious
taking of personal property in the possession of another, from his
person or immediate presence, and against his will, accomplished

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by means of force or fear.” (Pen. Code, § 211.)3 A defendant who
does not use force or fear in the initial taking of the property may
nonetheless be guilty of robbery if he uses force or fear to retain it
or carry it away in the victim’s presence. (People v. Gomez (2008)
43 Cal.4th 249, 256, 264; People v. Estes (1983) 147 Cal.App.3d
23, 27.) “ ‘Gaining possession or . . . carrying away’ includes
forcing or frightening a victim into leaving the scene, as well as
simply deterring a victim from preventing the theft or attempting
to immediately reclaim the property.” (People v. Flynn (2000)
77 Cal.App.4th 766, 771.)
3. Evidence of Force and Fear
Although in general it is not necessary that a robbery is
accomplished using force and fear, here because the information
alleged that appellant used force and fear to rob Fernandez,
we review the evidence supporting the conclusion that appellant
employed both.
As for the element of force, the evidence was sufficient for the
jury to conclude that appellant’s use of force while attempting to
retain Home Depot merchandise was directed not just at Southwell,
but also at Fernandez. When appellant kicked Fernandez the
robbery was in progress; Southwell could not subdue appellant
alone and appellant had not reached a place of relative safety
3 Employees, such as Southwell and Fernandez, can
be victims of robbery based on constructive possession of the
employer’s property. (People v. Jones (1996) 42 Cal.App.4th
1047, 1053.) And more than one employee may possess the
property at the same time. (People v. Miller (1977) 18 Cal.3d
873, 881, superseded by statute on other grounds as recognized
by People v. Young (1982) 98 Cal.App.3d 953.) In addition, where
two persons in joint possession of a single item of property are
subjected to force or fear, two robbery convictions are proper.
(People v. Ramos (1982) 30 Cal.3d 553.)

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required for the robbery to be complete. Fernandez testified that
had appellant not used force while retaining the merchandise,
Fernandez would not have grabbed appellant’s legs. In addition,
appellant’s directed force at Fernandez. As he tried to hold
appellant’s legs, Fernandez told him to stop resisting, but appellant
did not cooperate. In response, appellant kicked Fernandez in
the hands and on his legs. From this evidence the jury could
reasonably infer that appellant was aware of Fernandez’s efforts
to subdue him, and that appellant specifically directed his kicks at
Fernandez, intending to break free of his grasp. This use of force
to resist being restrained by Fernandez supports the verdict on
count 2.
Concerning the element of fear, the victim need not testify
that he or she was afraid or that the defendant made an express
threat. (See People v. Mungia (1991) 234 Cal.App.3d 1703, 1709,
fn. 2; People v. Morehead (2011) 191 Cal.App.4th 765, 774–775.)
There need only be evidence from which it can be inferred
that the victim felt fear and that the fear allowed the crime to
be accomplished. (People v. Anderson (2007) 152 Cal.App.4th
919, 946.) Here, appellant’s conduct caused Fernandez to
experience fear. Fernandez testified that he released appellant’s
legs because he was afraid and did not want to be injured
when appellant kicked him. Fernandez’s reaction in response
to appellant’s conduct is sufficient to support a finding that
appellant used fear to commit the robbery. (People v. Garcia (1996)
45 Cal.App.4th 1242, 1246, overruled on another ground by People
v. Mosby (2004) 33 Cal.4th 353, 365, fn. 2.)
We conclude that the prosecution presented evidence from
which a rational trier of fact could have found beyond a reasonable
doubt that appellant’s use of force and fear to retain Home Depot
property was directed at Fernandez. The jury’s guilty verdict as to
count 2 is supported by substantial evidence.

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B. The Trial Court Did Not Err in Excluding
Evidence of Southwell’s Prior Misdemeanor
Domestic Violence Conviction
Before trial, appellant sought an order allowing him to
impeach Southwell with evidence that Southwell had suffered
a Penal Code section 273.5 misdemeanor domestic violence
conviction in 2004. The prosecutor opposed the request, arguing
that Southwell’s 2004 conviction was remote and irrelevant.
The trial judge excluded the 2004 conviction under Evidence Code
section 352. The judge stated: “I have done a [section] 352
balancing. Yes, a misdemeanor [section] 273.5 is a crime of moral
turpitude, but I have also taken into consideration remoteness, and
that’s noting the [section] 243[4] arrest, which is not a conviction.
But with no other contact, I find it to be unduly remote. [¶]
Separate and apart from the remoteness issue, it . . . does not bear
as close a relationship to veracity and truthfulness as [Southwell’s]
testifying here in a different capacity as a loss prevention officer.
[Section] 273.5, just by definition, involves more a domestic violence
incident involving violence. So, for those reasons, the court is
excluding it under [section] 352.”
A witness may be impeached with any prior conduct
involving moral turpitude subject to the trial court’s exercise of
discretion under Evidence Code section 352. (People v. Clark (2011)
52 Cal.4th 856, 931-933.) In particular, when determining whether
to admit a prior conviction for impeachment purposes, the trial
court should consider, among other factors, whether it reflects on
the witness’s honesty or veracity, whether it is near or remote in
time, whether it is for the same or similar conduct as the
4 The prosecutor disclosed that although Southwell
had been arrested in 2010 for violating Penal Code section 243,
subdivision (e)(1) (misdemeanor battery against a cohabitant), no
case had been filed in that matter.

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charged offense, and what effect its admission would have
on the defendant’s decision to testify. (People v. Green (1995)
34 Cal.App.4th 165, 183.) The trial court’s discretion to admit
or exclude impeachment evidence is broad and a reviewing court
ordinarily will uphold the trial court’s exercise of discretion.
(People v. Collins (1986) 42 Cal.3d 378, 389.)
Here, appellant argues that he should have been permitted
to present evidence of Southwell’s 2004 prior domestic violence
conviction to impeach Southwell because it was probative on
the credibility of Southwell’s assertions that appellant pushed
Southwell during their initial encounter and that Southwell used
force to detain appellant only in reaction to the initial push. We
disagree.
Although domestic violence is a crime of moral turpitude
(People v. Rodriguez (1992) 5 Cal.App.4th 1398, 1401-1402),
that alone does not make it ipso facto admissible. The court must
balance its relevance against prejudice and undue consumption
of time. Here, the crime was committed 12 years earlier and,
therefore, was not highly relevant to Southwell’s credibility at the
time of trial. Thus, appellant has not demonstrated that the trial
court abused its discretion in excluding it.
C. Appellant Has Not Demonstrated Prejudicial
Error Based on His Lawyer’s Failure to Object
to the Prosecutor’s Misstatement of the Law
Appellant contends the prosecutor committed misconduct
during closing argument when she told the jury that: “If you find
the defendant not guilty of robbery, then you start deliberating
on petty theft. But if you find the defendant guilty of robbery, you
stop there. You do not consider the lesser included of petty theft.”
Appellant claims that the prosecutor’s statement
effectively instructed the jury not to consider the lesser

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included offense unless and until it found appellant not guilty
of robbery and, therefore, violated the law set forth in People v.
Kurtzman (1988) 46 Cal.3d 322, 329. In Kurtzman, the
Supreme Court held that a jury may not be instructed that
they must consider offenses in a certain sequence. (Ibid. [the
court may not “prohibit a jury from considering or discussing
the lesser offenses before returning a verdict on the greater
offense”].) Even assuming that the prosecutor’s statement
ran afoul of Kurtzman and, thus, constituted prosecutorial
misconduct (People v. Marshall (1996) 13 Cal.4th 799, 831,
italics omitted [a prosecutor commits misconduct by misstating
the law]), appellant’s counsel did not object to the prosecutor’s
statement or request the court admonish the jury to disregard
it.
A defendant cannot complain on appeal of error by a
prosecutor unless he or she objected on the same ground in a
timely fashion in the trial court and requested that the trial court
admonish the jury to disregard the error. (People v. Jones (2003)
29 Cal.4th 1229, 1262.) The only exception is for cases in which a
timely objection would have been futile or ineffective to cure the
harm. (People v. Green (1980) 27 Cal.3d 1, 34.) Nothing in the
record suggests that an objection by appellant’s counsel would not
have been sustained and followed immediately by an admonition
to the jury to disregard the prosecutor’s remark or that this remedy
would not have cured any possible prejudice. Accordingly, a timely
objection was required; and appellant’s counsel’s failure to do so
forfeits his claim of prosecutorial misconduct on appeal.
Recognizing the forfeiture problem, as an alternative to his
claim of prosecutorial misconduct, appellant urges us to conclude
that his counsel’s failure to object to the prosecutor’s misstatement
of the law constituted ineffective assistance of counsel. To prevail

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on this claim, appellant must establish his counsel’s representation
fell below an objective standard of reasonableness and there is a
reasonable probability that, but for counsel’s deficient performance,
the result of the trial would have been different. (Strickland v.
Washington (1984) 466 U.S. 668, 686-687 (Strickland); People v.
Williams (1997) 16 Cal.4th 153, 215.)
“ ‘ The burden of sustaining a charge of inadequate or
ineffective representation is upon the defendant. The proof . . .
must be a demonstrable reality and not a speculative matter.’
[Citation.]” (People v. Karis (1988) 46 Cal.3d 612, 656.) And in
considering a claim of ineffective assistance of counsel, it is not
necessary to determine “ ‘whether counsel’s performance was
deficient before examining the prejudice suffered by the defendant
as a result of the alleged deficiencies . . . . If it is easier to dispose
of an ineffectiveness claim on the ground of lack of sufficient
prejudice, which we expect will often be so, that course should
be followed.’ ” (In re Fields (1990) 51 Cal.3d 1063, 1079, quoting
Strickland, supra, 466 U.S. at p. 697.) It is not sufficient to show
the alleged errors may have had some conceivable effect on the
trial’s outcome; the defendant must demonstrate a “ ‘reasonable
probability’ ” that absent the errors the result would have been
different. (People v. Ledesma (1987) 43 Cal.3d 171, 217-218, 233.)
In this case, even if counsel had no valid tactical reason
for failing to object to the prosecutor’s misstatement of the law
and request an admonition, we would reject appellant’s ineffective
assistance of counsel claim because he has failed to demonstrate a
reasonable probability that the outcome of his trial would have been
different absent that error.
Appellant’s complaint does not concern objectionable
instructions given by the trial court or comments made by the trial
court under the cloak of its authority. Instead, this case involves
statements by a prosecutor. “ ‘[A]rguments of counsel “generally

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carry less weight with a jury than do instructions from the court.
The former are usually billed in advance to the jury as matters
of argument, not evidence [citation], and are likely viewed as the
statements of advocates; the latter, we have often recognized,
are viewed as definitive and binding statements of the law.”
[Citation.]’ ” (People v. Katzenberger (2009) 178 Cal.App.4th
1260, 1268, quoting People v. Mendoza (2007) 42 Cal.4th 686, 703.)
Here, the trial court properly instructed the jurors that if they
believed the attorneys’ comments on the law conflicted with the
court’s instructions, then the jurors were required to follow the
court’s instructions. The trial court subsequently instructed
the jury pursuant to CALCRIM No. 3517: “If all of you find the
defendant is not guilty of the greater crime, you may find him guilty
of a lesser crime, if you are convinced beyond a reasonable doubt
that the defendant is guilty of that lesser crime. A defendant may
not be convicted of both the greater and lesser crime for the same
conduct. . . . It is up to you to decide the order in which you consider
each crime and the relevant evidence, but I can accept the verdict
of guilty of a lesser crime only if you have found the defendant
not guilty of the corresponding greater crime.” (Italics added.)
“When argument runs counter to instructions given a jury, we
will ordinarily conclude that the jury followed the latter and
disregarded the former, for ‘[w]e presume that jurors treat the
court’s instructions as a statement of the law by a judge, and
the prosecutor’s comments as words spoken by an advocate in
an attempt to persuade.’ [Citation.]” (People v. Osband (1996)
13 Cal.4th 622, 717.) We presume that the jury followed the trial
court’s instructions and conclude that the instructions clarified
any misstatement of the law by the prosecutor.
Given that the instructions and the fact that evidence that
appellant committed second degree robbery—the greater offense—
was strong, no reasonable probability exists that the outcome of

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appellant’s trial would have been different absent his counsel’s
error. In short, on this record, appellant has failed to carry his
burden of demonstrating prejudice as a result of the ineffective
assistance of his trial counsel.
D. The Trial Properly Imposed Penalty
Assessments on the Health and Safety
Code Section 11372.5 Laboratory Fee
The trial court imposed a $50 laboratory analysis fee
pursuant to Health and Safety Code section 11372.5, as well as
a penalty assessment on the fee. Appellant argues that the trial
court erred in applying the penalty assessment to the Health and
Safety Code section 11372.5 laboratory analysis fee. We disagree.
Health and Safety Code section 11372.5, subdivision (a)
provides: “Every person who is convicted of a violation of [the
offenses enumerated therein including Health and Safety Code
section 11378] shall pay a criminal laboratory analysis fee in the
amount of fifty dollars ($50) for each separate offense. The court
shall increase the total fine necessary to include this increment.
[¶] With respect to those offenses specified in this subdivision for
which a fine is not authorized by other provisions of law, the court
shall, upon conviction, impose a fine in an amount not to exceed
fifty dollars ($50), which shall constitute the increment prescribed
by this section and which shall be in addition to any other penalty
prescribed by law.”
Penalty assessments must be applied to “every fine, penalty,
or forfeiture” imposed by the trial court in a criminal case. (See
Pen. Code, § 1464; Gov. Code, § 76000.) Thus, if the laboratory
analysis fee mandated by Health and Safety Code section 11372.5
is a “fine, forfeiture[] and other money[]” rather than a nonpunitive
fee, then the trial court in this case properly applied penalty
assessments to that fee.

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Recently in People v. Ruiz (2018) 4 Cal.5th 1100, the
Supreme Court resolved the split of authority among the appellate
districts on this issue, concluding that the laboratory analysis fee
imposed by Health and Safety Code section 11372.5 was a punitive
fine to which penalty assessments were required, holding that the
assessment of such penalties is mandatory. (Id. at p. 1122.)
Upon reconsidering the issue in light of Ruiz, we again
conclude the laboratory analysis fee under Health and Safety Code
section 11372.5 to be a “punishment” such that the trial court
properly imposed penalty assessments against appellant based on
the fee.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
LUI, J.

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