People v. Wilson

1

THE PEOPLE, Plaintiff and Respondent, v. MARQUESS TRAVON WILSON, Defendant and Appellant.

C096792

California Court of Appeals, Third District, Sacramento

January 22, 2024

NOT TO BE PUBLISHED

(Super. Ct. No. 21FE000917)

EARL P. J.

Defendant Marquess Travon Wilson was convicted of several offenses related to the armed robbery of a woman and her son. He was sentenced to an aggregate term of 62 years to life. On appeal, he claims instructional error deprived him of his right to a fair trial. He also claims the trial court made erroneous sentencing decisions, including that it misunderstood its discretion to impose concurrent sentences on his two robbery convictions. We agree the matter must be remanded for a new sentencing hearing so the trial court can exercise its discretion to impose concurrent or consecutive sentences on the two robbery convictions, but otherwise affirm defendant's convictions.

LEGAL AND FACTUAL BACKGROUND

When S.D.^[1] arrived at her home after 10:00 p.m. one night, a man approached her car with a handgun and put it to her head demanding money. The man followed S.D. into her home. Once inside, the man ordered her to lie down on the floor in her room while he took her watch from the dresser, her rings from her person, purses, shoes, perfume bottles, designer sunglasses, makeup bag, makeup products, and her hair straightener (collectively worth many thousands of dollars) and stuffed them into a red suitcase owned by S.D. Although the man was masked and wore gloves, S.D. was able to identify him as defendant.

Defendant then went into S.D.'s eight-year-old son E.B.'s room and took E.B.'s PlayStation5 and its controller, and E.B.'s red iPhone, both of which S.D. had bought for him. E.B. did not see a gun while defendant took the items. The defendant left the house with S.D.'s red suitcase.^[2]

S.D called 911.^[3] She told the 911 operator that she recognized the man who robbed her as "Roach,"^[4] an acquaintance whom she later learned was defendant.

Officer Ricky Lazaro took S.D.'s statement at her home, which was recorded on his body-worn camera.^[5] S.D. said she recognized the person who robbed her as "Marcus," also known as "Roach" and she identified a photo of defendant as the offender. S.D. later told Detective Bogdan Kostyuk that she recognized the gunman's voice as defendant's voice, although she also told Detective Kostyuk that she had never spoken with defendant.

At trial, S.D. said that she did not recognize defendant, claimed that she had never seen or spoken with him before, and denied having a dating relationship with him. S.D. denied that defendant had ever bought her or given her anything. S.D. testified that the watch was a gift from someone other than defendant. She also testified that she "had those rings for a really long time."

Detective Kostyuk testified that about 20 minutes before S.D. was robbed, a car associated with defendant was seen at an intersection close to S.D.'s home. Officers later found that car a few hundred feet from defendant's known address. L.D., defendant's wife, was at the car. L.D. told the officer that her cousin and her cousin's boyfriend had driven her car that day. A search of the car's trunk revealed S.D.'s red suitcase. The police later returned several items to S.D., including the suitcase, E.B.'s PlayStation5 and its controller, E.B.'s red iPhone, S.D.'s shoes, purses, and a bag of perfumes.

L.D. testified that her marriage to defendant began as an open relationship during which he had relationships with about four other women, with an implication that S.D. was one of them. L.D. knew that defendant had bought items for other women. L.D. understood that defendant supposedly had bought high-end items for S.D., but L.D. did not know what those items were. L.D. maintained that defendant did not have access to her car the night of the robberies. She asserted that she had no idea how the suitcase got into her car's trunk.

Defendant told L.D. that he had gone to S.D.'s to get his "stuff back." Defendant did not specifically tell L.D. that stuff included items that he had bought for S.D. Defendant's mother testified that she recognized S.D. from Facebook photos as someone whom she had seen defendant kiss and hug several times, while he was married to L.D.

K.A., who knew defendant and S.D. as family friends, saw them together on many occasions and he knew that they had dated on and off from the end of 2018 into 2020. On four or five occasions, K.A. dropped defendant off at S.D.'s home late at night. K.A. occasionally shopped with defendant for gifts - jackets, shoes, purses, perfume, including stolen or bootleg knockoff items - for K.A.'s girlfriend and defendant's wife and girlfriend.

K.A. never shopped with defendant at a jewelry store because "[defendant] don't really do the jewelry thing." K.A. testified that defendant would drop off some of the gifts, including non-knockoff sets of matching shoes and purses, at S.D.'s home. From what K.A. saw, defendant bought S.D. about $15,000 worth of clothes. K.A. testified that defendant's gifts to S.D. would be for her to keep because that is "usually how you do gifts."

The prosecutor charged defendant with: two counts of first degree robbery (Pen. Code, § 211;^[6] counts one &two); possessing a firearm as a prohibited person (§ 29800, subd. (a)(1); count three), and first degree burglary (§§ 459, 462, subd. (a); count four) while a person other than an accomplice was present (§ 667.5, subd. (c)(21)). Counts one and two alleged that he personally used a firearm (§ 12022.53, subd. (b)) and that he committed the offenses while released on bail (§ 12022.1) in two other cases. And the information alleged that he had prior strike convictions (§§ 667, subds. (b)-(i), 1170.12) in 2014 for battery with serious bodily injury (§ 243, subd. (d)) and in 2011 for assault with a firearm (§ 245, subd. (a)(2)).

The jury found defendant guilty on all counts and found true the firearm allegations associated with counts one and two.

During the sentencing hearing, defendant admitted both prior strike conviction allegations. The court then struck the firearm enhancement associated with count two pursuant to section 1385. The court denied defendant's motion to dismiss his prior strike convictions under People v. Superior Court (Romero) (1996) 13 Cal.4th 497. Despite defendant's earlier admission that he had been on bail on the date of the offenses, the prosecution withdrew the on-bail allegations, which the court dismissed.

The trial court sentenced defendant to prison for an aggregate term of 62 years to life: 25 years to life, plus 10 years for the firearm-use enhancement on count one; a consecutive term of 25 years to life on count two; and a consecutive term of two years on count three. On count four, the court imposed a four-year term, which it stayed pursuant to section 654.

Defendant timely filed a notice of appeal.

DISCUSSION

I Jury Instructions

Defendant argues that instructional error deprived him of his right to a fair trial. Specifically, he claims that the jury should have been instructed on his defense that he had a claim of right to the property he took from S.D.'s home (CALCRIM No. 1863) and the instruction allowing the jury to infer guilt from his flight from S.D.'s home (CALCRIM No. 372) was improper and not supported by the evidence. We disagree.

Errors in jury instructions are questions of law, which we review de novo. (People v. Guiuan (1998) 18 Cal.4th 558, 569; People v. Jandres (2014) 226 Cal.App.4th 340, 358.)

A. Claim of Right

Defendant first contends that the jury could have concluded from the evidence that he was simply retrieving his own property from S.D. Consequently, he argues, the trial court had a sua sponte obligation to instruct the jury on claim of right as a defense with CALCRIM No. 1863. Alternatively, he asserts that his attorney was ineffective in failing to request such an instruction. Neither claim has merit.

"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 People v. Tufunga (1999) 21 Cal.4th 935, 947, the California Supreme Court affirmed that, as at common law, claim of right remains a viable defense to a charge of robbery. "The claim-of-right defense provides that a defendant's good faith belief, even if mistakenly held, that he has a right or claim to property he takes from another negates the felonious intent necessary for conviction of theft or robbery." (Id. at p. 938.) Such a belief, even if mistakenly held, is sufficient to preclude felonious intent because "[f]elonious intent exists only if the actor intends to take the property of another without believing in good faith that he has a right or claim to it." (People v. Butler (1967) 65 Cal.2d 569, 573, overruled on another ground in Tufunga, at p. 956.)

The bench notes to CALCRIM No. 1863 state that there is a split of authority among appellate courts as to whether a court has a sua sponte duty to instruct on a claim of right. However this split appears to have been resolved when, several years after Tufunga was decided, our state Supreme Court clarified that because the asserted claim of right serves only to negate the intent to steal (mens rea) element of the robbery charges, where the trial court otherwise properly instructed the jury on this element, it has no sua sponte duty to instruct on the defense. (People v. Covarrubias (2016) 1 Cal.5th 838, 874.) Defendant does not argue that the instructions on mens rea were otherwise deficient. In his reply brief, defendant concedes that, in light of Covarrubias, the trial court here had no sua...