P. v. Gonzalez

Filed 3/29/07 P. v. Gonzalez CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
MANUEL GONZALEZ,
Defendant and Appellant.
B187922
(Los Angeles County
Super. Ct. No. VA088345)
APPEAL from a judgment of the Superior Court of Los Angeles County,
Raul A. Sahagun, Judge. Affirmed.
Jennifer A. Mannix, under appointment by the Court of Appeal, for
Defendant and Appellant.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo
Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant
Attorney General, Lance E. Winters, Michael R. Johnsen and Tita Nguyen, Deputy
Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION
Appellant Manuel Gonzalez was convicted of robbing three store clerks with
an accomplice who displayed a firearm. Appellant contends the trial court was
required to give, sua sponte, an instruction regarding aider and abettor liability,
because he was not holding the gun during the robbery. We disagree and affirm
appellant’s conviction, as the record shows that the jury necessarily found under
other correct instructions that appellant harbored the requisite specific intent, both
as an aider and abettor and as a direct perpetrator. Appellant also contends the trial
court impermissibly imposed the upper term under California’s indeterminate
sentencing law, using factors condemned by the United States Supreme Court in
Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856] (Cunningham). We
agree as to two such factors, planning and sophistication, but find the error
harmless beyond a reasonable doubt.
BACKGROUND
Appellant was charged with three counts of second degree robbery, each
count involving a separate victim in the robbery that occurred January 28, 2004, at
the J.C. Sales store in the City of Vernon. Sometime after 11:30 a.m., two men
entered the store. One pointed a gun at several employees and a customer, while
the other jumped over the counter near the cash register and demanded money.
Two store employees, Maria Carmen Luna and Rosa Vasquez, complied, giving
him money from the cash registers. He stole approximately $700 and took the
purse of a third employee, Brenda Sandoval, before fleeing with his armed

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accomplice. Appellant was identified as the robber who jumped over the counter
and took the money and purse.1
Appellant was convicted of all three counts. In addition, the jury found that
in the commission of each crime, a principal was armed with a handgun within the
meaning of Penal Code section 12022, subdivision (a)(1), as specially alleged in
the information.2 In bifurcated proceedings, appellant admitted a 2003 felony
conviction for receiving stolen property, for which he served a prison term, also
alleged in the information. Appellant admitted that a juvenile petition was
sustained in 1992, after he was found to have committed a robbery, and his motion
to strike this prior was denied. A second alleged juvenile adjudication was
stricken.
On December 15, 2005, the trial court sentenced appellant to prison for a
total of 12 years, which included the upper term of five years as to count 1,
doubled pursuant to section 1170.12 due to the juvenile robbery, with a one-year
enhancement due to the prior prison term, pursuant to section 667.5,
1 The witnesses expressed uncertainty in their identifications, with one unable
to identify appellant, and others testifying that appellant resembled the robber.
Appellant proffered an alibi defense, but does not contend the evidence was
insufficient to identify him as the robber who jumped over the counter. Other
evidence linked him to the robbery -- the getaway car belonged to appellant’s
relatives, and the gun and a J.C. Sales deposit slip were found in it. Further,
Detective Nicholas Perez testified that he had stills made from the store’s
surveillance tape and showed them to appellant’s mother, Carmen Orozco, who
upon seeing the photographs, said, “Es mi hijo” (“that’s my son”). At trial, Orozco
testified that she falsely identified the person depicted in the photograph as her son,
only because she was forced to do so under duress exercised by the interrogating
detective. Detective Perez denied that he or his Spanish interpreter, Detective
Daniel Santos, used any means to force Orozco to identify her son, and testified
that appellant was not a suspect until she identified him.
2 All further statutory references are to the Penal Code, unless otherwise
noted.

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subdivision (b), and another one-year enhancement for the finding that a principal
used a firearm, pursuant to section 12022, subdivision (a)(1). Appellant timely
filed a notice of appeal.
DISCUSSION
1. Aiding and Abetting Instruction
Appellant contends the trial court erred in failing to give, sua sponte, an
instruction defining aiding and abetting, such as CALJIC No. 3.01, in order to
“inform the jury that a person aids and abets the commission of a crime when he or
she, acting with (1) knowledge of the unlawful purpose of the perpetrator; and
(2) the intent or purpose of committing, encouraging, or facilitating the
commission of the offense, (3) by act or advice aids, promotes, encourages or
instigates, the commission of the crime.” (People v. Beeman (1984) 35 Cal.3d
547, 561.)
Initially, appellant contends that instructing the jury with CALJIC No. 3.00
always triggers an obligation to give CALJIC No. 3.01.3 The authorities upon
which appellant relies, however, hold only that both instructions are required when
the prosecution advances an aiding and abetting theory. (See, e.g., People v. Reyes
(1992) 2 Cal.App.4th 1598, 1601-1602; People v. Patterson (1989)
3 The trial court read the following instruction based upon CALJIC No. 3.00:
“Persons who are involved in committing or attempting to commit a crime are
referred to as principals in that crime. Each principal, regardless of the extent or
manner of participation, is equally guilty. Principals include, one, those who
directly and actively commit or attempt to commit the act constituting the crime;
or, two, those who aid and abet the commission or attempted commission of the
crime.”

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209 Cal.App.3d 610, 614-616; People v. Ponce (1950) 96 Cal.App.2d 327, 331.)4
Here, the prosecution did not seek appellant’s conviction as an aider and abettor,
but as a direct perpetrator of the robbery.5
Nevertheless, appellant contends that he could have been convicted of
robbery only as an aider and abettor, because it was his accomplice who held the
gun. He argues that by failing to instruct the jury on a theory of aiding and
abetting, the trial court removed an element of the crime of robbery from jury
consideration. We disagree.
“Robbery is the felonious taking of personal property in the possession of
another, from his person or immediate presence, and against his will, accomplished
by means of force or fear.” (§ 211.) In addition to defining robbery, fear,
immediate presence, taking, and against the will, the trial court instructed the jury
on the elements of robbery in the following language of CALJIC No. 9.40: “1. A
person had possession of property of some value however slight. [¶] 2. The
property was taken from that person or from his or her immediate presence. [¶]
3. The property was taken against the will of that person. [¶] 4. The taking was
accomplished by either force or fear. [¶] 5. The property was taken with the
specific intent permanently to deprive that person of the property.”
4 In the fourth authority cited by appellant, CALJIC No. 3.01 had been given.
(See People v. Campbell (1994) 25 Cal.App.4th 402, 411.)
5 Although appellant’s argument is unclear, he appears to suggest that
CALJIC No. 3.01 is required whenever it is alleged, as here, that a principal was
armed with a firearm for purposes of enhancement under section 12022,
subdivision (a)(1), and the court instructs with CALJIC No. 17.15, explaining that
both aiders and abettors and direct perpetrators are principals in the commission of
a crime. (See § 31.) We reject that argument for the same reason -- the
prosecution did not rely on an aiding and abetting theory.

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By using CALJIC No. 9.40, the trial court correctly stated the elements of
robbery. (See People v. Jones (1996) 42 Cal.App.4th 1047, 1055.) Nevertheless,
appellant contends that the absence of an aiding and abetting instruction resulted in
withholding the specific-intent element of the crime from the jury. He describes
the specific-intent element as that of having “shared his co-participant’s specific
intent to get and retain possession of the money and purse by use of force or fear.”
Appellant also describes the necessary specific intent not as his own intent to rob
the victims, but as the intent to facilitate or encourage his accomplice’s intent to
use force or fear by means of a gun. Accepting appellant’s description of specific
intent would result in the creation of a new specific-intent element of the crime of
robbery -- the specific intent to use force or to cause fear. However, appellant has
proffered no authority which suggests that it is the intended use of force or fear that
constitutes an element of the crime, rather than simply the use of force or fear to
accomplish the crime. The specific intent required to commit a robbery is the
intent to steal (see People v. Ford (1964) 60 Cal.2d 772, 792), not the intent to use
force or fear to do so. Appellant’s intent to steal was established beyond dispute
by evidence that he demanded and received money from the victims.
Aider and abettor liability is vicarious, arising from the aider and abettor’s
knowledge of the purpose of the actual perpetrator and the intent to facilitate that
purpose. (People v. McCoy (2001) 25 Cal.4th 1111, 1117-1118.) “It is the intent
to encourage and bring about conduct that is criminal, not the specific intent that is
an element of the target offense, which . . . must be found by the jury. [Citation.]”
(People v. Croy (1985) 41 Cal.3d 1, 12, fn. 5, citing People v. Beeman, supra,
35 Cal.3d at p. 556.) Thus, liability is imposed even when the aider and abettor’s
actions fall short of acts constituting the elements of the crime. (Ibid.; see People
v. Beeman, supra, at p. 559.) It follows that one who is an active participant in a
robbery, whose actions constitute the elements of the crime, and who is shown to

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harbor the specific intent to steal, is a direct perpetrator, and an aiding and abetting
instruction is unnecessary in such circumstances. (People v. Leach (1985)
41 Cal.3d 92, 105; see People v. Stankewitz (1990) 51 Cal.3d 72, 106.)
Arguing that no evidence was adduced at trial to show that he threatened
anyone or personally used force, appellant contends that if the participant who
takes the property did not personally cause the fear by which the theft is
accomplished, an aiding and abetting instruction must be given. Appellant
suggests that he could not be found to have committed the force or fear element
merely by taking advantage of the fear created by his accomplice’s use of the gun,
except as an aider and abettor who intended to facilitate the use of a gun for the
purpose of controlling the victims. We have found no authority for such a rule,
and appellant cites none. Moreover, CALJIC No. 3.01 would not have instructed
the jury that it must find appellant intended to facilitate his accomplice’s use of
force or fear, because CALJIC No. 3.01 does not define aiding and abetting as
intentionally aiding, promoting, encouraging or instigating any single element of a
crime, but as intentionally aiding, promoting, encouraging or instigating the
commission of the crime.
Force or fear is not synonymous with physical assault and has no technical
meaning beyond the common understanding of jurors. (People v. Mungia (1991)
234 Cal.App.3d 1703, 1708.) “So long as the perpetrator uses the victim’s fear to
accomplish the retention of the property, it makes no difference whether the fear is
generated by the perpetrator’s specific words or actions designed to frighten, or by
the circumstances surrounding the taking itself.” (People v. Flynn (2000)
77 Cal.App.4th 766, 772.) “Fear may be inferred from the circumstances in which
a crime is committed or property is taken. [Citations.]” (People v. Holt (1997)
15 Cal.4th 619, 690.) Evidence of assault, threats or use of a weapon is
unnecessary. (People v. Brew (1991) 2 Cal.App.4th 99, 104; see also People v.

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Flynn, at p. 771.) Although one meaning of “use” is “‘to carry out a purpose or
action by means of,’” another meaning is “to ‘apply to advantage.’ [Citation.]”
(People v. Donnell (1975) 52 Cal.App.3d 762, 778.) We conclude that knowingly
taking advantage of fear engendered by a gun displayed by an accomplice in order
to steal is a use of fear.6
Appellant anticipates respondent’s reliance upon People v. Cook (1998)
61 Cal.App.4th 1364 (Cook I), in which the appellate court held: “If the defendant
performed an element of the offense, the jury need not be instructed on aiding and
abetting, even if an accomplice performed other acts that completed the crime.”
(Id. at p. 1371.) Appellant points out that in habeas proceedings brought by the
same defendant, the federal district court criticized that language, because it
enunciated a “clearly unconstitutional” new rule that could result in conviction
without proof of the required mens rea. (Cook v. Lamarque (E.D.Cal. 2002) 239
F.Supp.2d 985, 986 (Cook II).)7 However, the criticized language in Cook I was
unnecessary, as the federal court pointed out, because “[i]n returning a guilty
6 Moreover, appellant did more than take advantage of fear engendered by his
armed accomplice. Immediately upon entering the store, he jumped over the
counter, demanded money and repeated the demand. Luna testified that she gave
him money “because I was scared and I was afraid he would hurt us.” The
remaining employees, Vasquez and Sandoval, both testified to the fear engendered
by the man with a gun. Neither victim was asked whether appellant’s conduct also
frightened them, but where it appears conduct was reasonably calculated to
produce fear, the victims’ actual fear will be inferred. (People v. Cuevas (2001)
89 Cal.App.4th 689, 698.) Similar conduct has been held to satisfy the element of
fear. (See, e.g., People v. Brew, supra, 2 Cal.App.4th at p. 104.)
7 Respondent did, in fact, rely upon Cook I, and despite appellant’s citation to
Cook II in his opening brief, respondent inexplicably failed to mention its
subsequent history, including the fact that the language respondent relied upon was
found to be unconstitutional.

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verdict on the robbery charge, the jury necessarily found that Petitioner had the
specific intent to deprive the victim of his property.” (Cook II, supra, at pp. 993-
994.) Thus, an aiding and abetting instruction was not required, and any error in
failing to give such an instruction was harmless beyond a reasonable doubt. (Ibid.)
Here too, the jury was instructed that it could not convict appellant unless it
found he had the specific intent permanently to deprive the victims of the property.
By its guilty verdict on the robbery charge, the jury necessarily found that
appellant harbored that specific intent. Thus, even assuming, arguendo, that an
aiding and abetting instruction should have been given, failure to do so was
harmless, because “no reasonable trier of fact, having actually found that defendant
acted with the requisite knowledge, ‘could at the same time have concluded that
the defendant did not act for the purpose of facilitating or encouraging the crime.’
[Citation.]” (People v. Leach, supra, 41 Cal.3d at p. 105.) As there was no
reasonable possibility that the lack of an aiding and abetting instruction affected
the verdict, its omission was necessarily harmless beyond a reasonable doubt. (Id.
at p. 106; see also People v. Stankewitz, supra, 51 Cal.3d at p. 106.)
2. Apprendi/Blakely Error
The trial court sentenced appellant to the upper term, citing several factors in
aggravation: there were multiple victims; appellant was on parole at the time of
committing the offense; and the offense involved planning and sophistication, in
that it was a coordinated robbery -- one robber held the gun while appellant
jumped over the counter and stole the property. Appellant contends his sentence
violates his federal constitutional right to due process and a jury trial, because in
choosing to impose the upper term, the court relied on factors not found by a jury.
(Blakely v. Washington (2004) 542 U.S. 296, 303 (Blakely); Apprendi v. New
Jersey (2000) 530 U.S. 466, 490 (Apprendi).)

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“[T]he Federal Constitution’s jury-trial guarantee proscribes a sentencing
scheme that allows a judge to impose a sentence above the statutory maximum
based on a fact, other than a prior conviction, not found by a jury or admitted by
the defendant. [Citations.]” (Cunningham v. California, supra, 127 S.Ct. at
p. 860.)8 In Cunningham, “the high court held that California’s determinate
sentencing law violates a defendant’s Sixth and Fourteenth Amendment right to a
jury trial to the extent it permits a trial court to impose an upper term based on
facts found by the court rather than by a jury beyond a reasonable doubt.” (People
v. Calhoun (2007) 40 Cal.4th 398, 406.)
Appellant contends that the trial court’s reliance on multiple victims as an
aggravating factor was improper, because such factor is not listed in California
Rules of Court, rule 4.421 (former rule 421). At the same time, however, appellant
recognizes that the factors listed in the rule are not meant to be exclusive.
(Cal. Rules of Court, rule 4.408; see People v. Berry (1981) 117 Cal.App.3d 184,
191.) Further, following the United States Supreme Court’s decision in
Cunningham, the California Supreme Court held that where a jury has convicted
the defendant of multiple counts involving different victims, as in this case, the
Apprendi/Blakely rule is satisfied. (See People v. Calhoun, supra, 40 Cal.4th at
pp. 406-408.)
Appellant also contends that because he was not afforded a jury trial on the
question whether he was on parole at the time of the current offense, that fact was
improperly used to impose the upper term.9 Relying on Shepard v. United States
8 Because Cunningham was decided after respondent’s brief was filed, we
permitted respondent to file a supplemental brief, and appellant to file a reply to
the supplemental brief.
9 While appellant described the aggravating factor used by the trial court as
“probation,” we treat his argument as addressing the court’s reference to parole.

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(2005) 544 U.S. 13, appellant contends that Apprendi’s exception for prior
convictions has been significantly narrowed, and applies only to the fact of the
conviction.10 Thus, he argues, it does not extend to considering whether he was on
parole at the time of the current offense. Appellant ignores the fact -- pointed out
in respondent’s supplemental brief -- that his trial counsel admitted appellant was
on parole at the time of the current offense. “It is, of course, well established that
the defendant is bound by the stipulation or open admission of his counsel and
cannot mislead the court . . . by seeming to take a position on issues and then
disputing or repudiating the same on appeal. [Citations.]” (People v. Pijal (1973)
33 Cal.App.3d 682, 697.) Aggravating factors admitted by the defendant need not
be tried to a jury. (Blakely, supra, 542 U.S. at p. 303; Apprendi, supra, 530 U.S. at
p. 488.)
In imposing the upper term, the trial court also relied upon its finding that
the offense involved planning and sophistication, because it was a coordinated
robbery, in that one robber held the gun on the victims while the other took the
money. No such finding was made by the jury; accordingly, that factor could not
properly be considered in imposing the upper term. (See Cunningham, supra,
127 S.Ct. at p. 868.)
Respondent acknowledges that Apprendi error is reviewed under the
standard applied to federal constitutional error in Chapman v. California (1967)
386 U.S. 18 (Chapman).) (See People v. Sengpadychith (2001) 26 Cal.4th 316,
10 Appellant’s contention overstates the holding in that case. The prior-
conviction exception is sufficiently broad to encompass all matters ascertainable
from the face of the prior judgment of conviction. (People v. McGee (2006)
38 Cal.4th 682, 707-709 (McGee); People v. Thomas (2001) 91 Cal.App.4th 212,
222-223.)

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326.)11 Citing People v. Osband (1996) 13 Cal.4th 622 (Osband), respondent
points out that a single factor in aggravation is sufficient to justify the imposition
of the upper term, and suggests that it is unlikely the trial court would have
imposed a lesser sentence without the additional factor of planning or
sophistication. (See Osband, at p. 728.) We agree. Here, there was not merely a
single proper factor in aggravation, but two -- multiple victims and appellant’s
parole status at the time of the crime. Further, the trial court found no factors in
mitigation. We are persuaded beyond a reasonable doubt that under the
circumstances presented here, the trial court would have imposed the same
sentence without considering the factor of planning and sophistication. (See U.S.
v. Zepeda-Martinez, supra, 470 F.3d at p. 913.)
11 The United States Supreme Court has suggested that in applying the
harmless error test to Apprendi error, courts should be guided by the analysis in
Neder v. United States (1999) 527 U.S. 1 (Neder). (Washington v. Recuenco
(2006) ___ U.S. ___ [126 S.Ct. 2546, 2548].) In the context of Apprendi error, one
court has rephrased the test as follows: “Under Recuenco and Neder, an error is
harmless if the court finds beyond a reasonable doubt that the result ‘would have
been the same absent the error.’” (U.S. v. Zepeda-Martinez (9th Cir. 2006)
470 F.3d 909, 913, quoting Neder, at p. 19.)

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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
MANELLA, J.
I concur:
EPSTEIN, P. J.
I concur in the judgment only:
SUZUKAWA, J.

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