People v. Rosales

THE PEOPLE, Plaintiff and Respondent, v. LUIS F. ROSALES, Defendant and Appellant.

B244436

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE

Filed: January 13, 2014

CERTIFIED FOR PARTIAL PUBLICATION^*

(Los Angeles County

Super. Ct. No. BA390587)

APPEAL from a judgment of the Superior Court of Los Angeles County, Laura F. Priver, Judge. Affirmed as modified with directions.

Heather L. Beugen, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr., and David F. Glassman, Deputy Attorneys General, for Plaintiff and Respondent.

I. INTRODUCTION

A jury convicted defendant, Luis F. Rosales, of three counts of first degree robbery. (Pen. Code, §§211, 212.5, subd. (a)¹.) The jury further found firearm use allegations true as to each count. (12022.53, subd. (b).) The trial court found defendant had a prior juvenile adjudication of a serious felony within the meaning of sections 667, subdivisions (b) through (i) and 1170.12. Defendant was sentenced to 30 years in state prison. We modify the oral pronouncement of judgment with respect to court facilities and court operations assessments. We affirm the judgment as modified. We direct that the abstract of judgment be amended upon remittitur issuance.

II. THE EVIDENCE

Defendant committed three robberies of hotel lobby front desk clerks. Defendant was arrested at the scene of the third robbery. His loaded semiautomatic firearm was recovered. The recovered gun was introduced in evidence at trial. Surveillance video from the robberies showed defendant using a gun.

Margaret Haynes was the victim of the first robbery, which was charged in count 2. Ms. Haynes testified that on November 2, 2011, defendant pointed a gun at her and demanded money. Ms. Haynes was scared because she thought defendant would shoot her. He was holding the gun in a way that she could see it the whole time. When asked what the firearm looked like, Ms. Haynes said, "[L]ike a gun maybe the kind a policeman would carry." Ms. Haynes was not certain the gun in evidence was the one defendant used. But she also could not say it was not the gun defendant pointed at her. Ms. Haynes identified defendant in a photographic lineup. She said, "That's the guy that robbed [me] . . . . " Ms. Haynes also identified defendant at trial.

Erick Lopez was the victim of the second robbery, which was charged in count 3. On October 23, 2011, defendant pointed a gun at Mr. Lopez and demanded cash. Mr. Lopez was scared and nervous. Mr. Lopez did not know anything about guns. He did not know the difference between a revolver and a semiautomatic gun. But he had seen a gun with a cylinder in the front that revolves. Defendant's weapon was not that type. Mr. Lopez could not say for sure that the gun in evidence was the one defendant used. But Mr. Lopez testified the weapon looked like the gun pointed at him during the robbery. Mr. Lopez identified defendant in a photographic lineup as someone who looked like the suspect. Mr. Lopez identified defendant at trial.

Mohd Rahman was the victim of the third robbery, which was charged in count 1. The robbery occurred on November 2, 2011. At trial, Mr. Rahman identified defendant as the perpetrator. Defendant pointed a gun at Mr. Rahman and demanded money. Mr. Rahman was afraid. After Mr. Rahman complied, defendant began to walk away. However, two hotel guests stopped defendant and, following a struggle, detained him until police arrived. During the struggle, defendant said the person from whom he borrowed the gun would kill defendant if he did not return it. Mr. Rahman identified the gun in evidence as the one defendant used during the robbery.

III. DISCUSSION

[Parts III A-D and F 2 are not to be published.]

A. Inhabited Dwelling

Section 212.5, subdivision (a) states in part, "[E]very robbery which is perpetrated in an inhabited dwelling house . . . or the inhabited portion of any other building is robbery of the first degree." Defendant challenges the sufficiency of the evidence the robberies occurred in an inhabited dwelling house making them of the first degree. Given the undisputed facts, we resolve that question as a matter of law. (People v. Cruz (1996) 13 Cal.4th 764, 775; People v. Villalobos (2006) 145 Cal.App.4th 310, 317; seePeople v. Thorn (2009) 176 Cal.App.4th 255, 261.) We conclude there was substantial evidence the robberies were first degree.

The terms "inhabited dwelling house" and "inhabited portion of any other building" are to be construed to effectuate the legislative purpose. (People v. Cruz, supra, 13 Cal.4th at p. 775; People v. Thorn, supra, 176 Cal.App.4th at p. 261.) Those terms are functionally equivalent. (People v. O'Bryan (1985) 37 Cal.3d 841, 844; People v. Villalobos, supra, 145 Cal.App.4th at p. 316, fn. 2.) The terms "inhabited dwelling house" and "inhabited portion of any other building" have the same meaning in both the robbery and burglary statutes. (People v. Villalobos, supra, 145 Cal.App.4th at p. 316; People v. Long (2010) 189 Cal.App.4th 826, 834; see § 460, subd. (a) [burglary].) Section 459, concerning burglary, states, "As used in this chapter, 'inhabited' means currently used for dwelling purposes, whether occupied or not." Our Supreme Court has held, "[T]he phrase 'inhabited dwelling house' is a broad, inclusive term." (People v. Cruz, supra, 13 Cal.4th at p. 768 [burglary]; People v. Long, supra, 189 Cal.App.4th at p. 834; People v. Villalobos, supra, 145 Cal.App.4th at p. 317.) It is broadly construed to effectuate the legislative purpose. (People v. Cruz, supra, 13 Cal.4th at p. 775; People v. Thorn, supra, 176 Cal.App.4th at p. 261.) So construed, it applies to hotel rooms. (People v. Long, supra, 189 Cal.App.4th at p. 838; People v. Villalobos, supra, 145 Cal.App.4th at pp. 315-321; People v. Fleetwood (1985) 171 Cal.App.3d 982, 986-988.) But the inhabited dwelling element of subdivision 459 also applies to hotel lobbies (People v. Mendoza (2004) 118 Cal.App.4th 571, 575; People v. Wilson (1989) 209 Cal.App.3d 451, 452-453).

That a hotel lobby is an "inhabited dwelling house" as the Court of Appeal held in Wilson is consistent with the legislative purpose. Historically, heightened protection has been afforded inhabited properties in the robbery context for two related reasons. (People v. Cruz, supra, 13 Cal.4th at p. 775; People v. Villalobos, supra, 145 Cal.App.4th at p. 317.) First, an inhabited dwelling as opposed to, for example, a commercial property, is a private sanctuary. (People v. Cruz, supra, 13 Cal.4th at p. 775; People v. Villalobos, supra, 145 Cal.App.4th at p. 317; see People v. Woods (1998) 65 Cal.App.4th345, 349, 350.) As our Supreme Court observed in Cruz, "[T]his term should be construed to effectuate the legislative purpose underlying the statute, namely to protect the peaceful occupation of one's residence." (People v. Cruz, supra, 13 Cal.4th at p. 775; accord, People v. Villalobos, supra, 145 Cal.App.4th at p. 317; People v. Woods, supra, 65 Cal.App.4th at pp. 349, 350.) Second, the potential for violence is greater when a robbery occurs in an inhabited place. A victim is more likely to react violently to an intrusion into an inhabited location because of the presence of others who may be harmed and personal property. (People v. Cruz, supra, 13 Cal.4th at pp. 775-776; People v. Villalobos, supra, 145 Cal.App.4th at p. 317.)

Hotels are temporary private sanctuaries for guests. They are places in which people reside for a time; to which they bring their personal property and, often, their loved ones. That a hotel lobby is also a place of business does not change the character of the property as a whole as an inhabited dwelling. Therefore, the present robberies occurred in "an inhabited dwelling house" and were of the first degree. We need not address other scenarios where a robbery occurs in a lobby disconnected from rooms or places where guests congregate.

B. Personal Firearm Use

Defendant challenges the sufficiency of the evidence he used a firearm while committing the robberies charged in counts 2 and 3. Defendant notes: the victims could not say whether the weapon introduced in evidence was the one he used; neither a gun nor bullets were recovered at the scene of the count 2 and 3 robberies; the victims did not physically feel the firearm; and defendant never threatened to kill either hotel clerk. The applicable standard of review is well-established: "[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578; accord, People v.Jones (2013) 57 Cal.4th 899, 960.) We conclude the evidence supported imposition of the enhancements.

A firearm does not have to be operable or loaded for the section 12022.53 enhancement to apply. (§ 12022.53, subd. (b); People v. Gonzalez (2008) 43 Cal.4th 1118, 1124.) The Court of Appeal for the Third Appellate District set forth the applicable law in People v. Monjaras (2008) 164 Cal.App.4th 1432, 1435-1436: "The fact that an object used by a robber was a 'firearm' can be established by direct or circumstantial evidence. (See People v. Rodriguez (1999) 20 Cal.4th 1, 11-12; People v. Lochtefeld (2000) 77 Cal.App.4th 533, 541; People v. Dominguez (1995) 38 Cal.App.4th 410, 421.) [¶] Most often, circumstantial evidence alone is used to prove the object was a firearm. This is so because when faced with what appears to be a gun, displayed with an explicit or implicit threat to use it, few victims have the composure and opportunity to closely examine the object; and in any event, victims often lack expertise to...