Filed 8/21/14 P. v. Fair CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,                                                          B248658

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. TA125869)
         v.

MARY JOHNNICA FAIR,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Allen J.
Webster, Jr., Judge. Modified and, as so modified, affirmed.


         Elana Goldstein, 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, Jun K. Lee, Stephanie C. Santoro
and Brendan Sullivan, Deputy Attorneys General, for Plaintiff and Respondent.
       Defendant and appellant Mary Johnnica Fair appeals from the judgment entered
following a jury trial that resulted in her convictions for second degree robbery and
dissuading a witness. Fair was sentenced to a term of three years in prison. She
contends: (1) the evidence was insufficient to support the robbery count; (2) the trial
court erred by failing to stay sentence pursuant to Penal Code section 6541 on the
dissuading a witness count; and (3) the trial court abused its discretion in allowing the
People to amend the information to add a new charge during trial. The People contend
the trial court miscalculated Fair’s custody credits, and erred by imposing only a single
court security fee and criminal conviction assessment. Fair’s second contention and the
People’s contentions have merit, and we order the judgment modified accordingly. In all
other respects, we affirm.
                   FACTUAL AND PROCEDURAL BACKGROUND
       1. Facts.
       The evidence relevant to the issues presented on appeal established the following.
On the morning of November 20, 2012, Elvira Hernandez was waiting for her bus at the
corner of Century Boulevard and Broadway Street in Los Angeles. When the bus arrived
Fair exited. As she did so, she bumped into Hernandez and pushed her. Hernandez said,
“ ‘Why did you push me?’ ” Fair told her to be quiet, or similar words, and threw a
plastic cup of cold liquid with ice at her, hitting Hernandez in the face and getting her
wet. Hernandez, who spoke only a little English, said “ ‘Stupid, . . . why did you wet
me?’ ” in a combination of English and Spanish. Hernandez took out her cellular
telephone and said, in English and Spanish, that she was calling police. When Hernandez
took out the telephone Fair started hitting her in the head with her fist, and grabbing her
hair with the other hand. When Fair started to hit Hernandez, Fair “was saying a lot of
things” to Hernandez in English, but Hernandez was “just defending” herself and was too
nervous to pay attention to her words. While Hernandez was “speaking to the police,”



1      All further undesignated statutory references are to the Penal Code.


                                              2
Fair said, “ ‘Okay. Go ahead call the police,’ ” and snatched the cell phone from
Hernandez’s hand. Fair put the phone in her purse. Once Fair had put the phone in her
purse, she stopped hitting Hernandez. Fair walked away at a fast pace. Hernandez did
not follow because she was afraid of Fair and thought Fair would hit her again.
          Carina Boyette, who had been exiting the bus with her children at the same time as
Fair did, witnessed the incident. She summoned police. According to Boyette, Fair got
off the bus with a drink in her hand. She started yelling and cursing at Hernandez, and
followed her to the stop light at the corner. Hernandez did not say anything. Fair then
threw the cup of liquid at Hernandez. Boyette heard Fair say, “ ‘You’re not calling
nobody.’ ” At the same time Fair grabbed Hernandez with one arm and used the other to
hit her in the head with her fist six or more times. Fair then walked away, across the
street.
          Los Angeles Police Department Officer Augustine Hernandez responded to the
911 call. He discovered Fair two blocks away from the bus stop, and another officer
found Hernandez’s cell phone in Fair’s purse. Hernandez identified Fair as the culprit in
a field showup, and at trial. She also identified the phone found in Fair’s purse as hers.
          2. Procedure.
          Trial was by jury. Fair was convicted of second degree robbery (§ 211) and
dissuading a witness (§ 136.1). The jury found true the allegation that Fair used force or
the threat of force in commission of the dissuading a witness count to be true. The trial
court sentenced Fair to a term of three years in prison. It imposed a restitution fine, a
suspended parole restitution fine, a court operations assessment (§ 1465.8, subd. (a)(1)),
and a criminal conviction assessment (Gov. Code, § 70373). Fair appeals.
                                        DISCUSSION
          1. There was sufficient evidence to support the robbery conviction.
          Fair contends there was insufficient evidence to prove robbery because her intent
to steal the phone arose after her use of force. She is incorrect.




                                               3
       When determining whether the evidence was sufficient to sustain a criminal
conviction, “we review the whole record in the light most favorable to the judgment
below to determine whether it discloses substantial evidence––that is, evidence that is
reasonable, credible and of solid value––from which a reasonable trier of fact could find
the defendant guilty beyond a reasonable doubt. [Citations.]” (People v. Snow (2003) 30
Cal.4th 43, 66; People v. Houston (2012) 54 Cal.4th 1186, 1215.) We presume in
support of the judgment the existence of every fact the trier of fact could reasonably
deduce from the evidence. (People v. Medina (2009) 46 Cal.4th 913, 919.) Reversal is
not warranted unless it appears “ ‘that upon no hypothesis whatever is there sufficient
substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998)
18 Cal.4th 297, 331; People v. Zamudio (2008) 43 Cal.4th 327, 357.)
       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; People v. Anderson (2011) 51 Cal.4th 989, 994; People v. Gomez
(2008) 43 Cal.4th 249, 254.) Theft is a lesser included offense of robbery, which does
not require the additional element of force or fear. (People v. Combs (2004) 34 Cal.4th
821, 856; People v. Reeves (2001) 91 Cal.App.4th 14, 51.) The intent required for
robbery is to deprive the victim of property permanently. (Anderson, at p. 994.) To
support a robbery conviction, the evidence must show that the requisite intent to steal
arose either before or during commission of the act of force, and the defendant must
apply the force or fear for the purpose of accomplishing the taking. (Anderson, at p. 994
[“ ‘the act of force or intimidation by which the taking is accomplished in robbery must
be motivated by the intent to steal’ ”]; People v. Bolden (2002) 29 Cal.4th 515, 555-556;
People v. Marshall (1997) 15 Cal.4th 1, 34; Reeves, at pp. 52-53.) The requisite forcible
act may also be an act committed after the initial taking if it is motivated by the intent to
retain the property. (Gomez, at p. 265; cf. Anderson, at p. 995.) If the intent to take the
property arises only after force or fear is applied, the offense is theft. (People v. Burney
(2009) 47 Cal.4th 203, 253.) The victim’s fear may be inferred from the circumstances in
which the property is taken. (People v. Clark (2011) 52 Cal.4th 856, 944.)

                                              4
       Here, the evidence was sufficient to prove Fair intended to permanently deprive
Hernandez of her phone, and her intent to take the phone arose either before, or
simultaneously with, her use of force. Hernandez testified: “I said ‘I call the police’ and
I took out the phone. That’s when she started to hit me.” Eyewitness Boyette testified
Fair “was saying ‘you’re not calling nobody.’ Then she took one of her arms and then
she grabbed the lady with one of her hands and she used the other one to hit her . . . .”
The most reasonable inference from the evidence is that Fair’s intent to steal the phone
arose before, or simultaneously with, her act of hitting the victim and pulling her hair.
Fair was discovered with the phone two blocks away from the bus stop, leading to the
reasonable inference that she intended to permanently deprive Hernandez of the phone.
The evidence was thus sufficient.
       Fair’s arguments to the contrary are not persuasive. She urges that her “use of
force was motivated by her desire to prohibit Hernandez from calling the police, not to
steal the phone or take Hernandez’s belongings”; that she only started to hit Hernandez
after Hernandez stated that she was going to call the police; and after she took the phone,
she “stopped using force.” Rather than proving the evidence was insufficient, this
argument has the opposite effect. The evidence described by Fair demonstrates she
formed the intent to take the phone, then used force to effectuate the taking, and stopped
hitting the victim once her goal was accomplished. As the People point out, Fair
apparently confuses intent with motivation. But there is no requirement that the taking be
committed for monetary gain. “[M]otive itself is not a necessary element of robbery”
(People v. Clark, supra, 52 Cal.4th at p. 946), and the “value of the taken property is
irrelevant.” (Ibid.)
       2. Sentence on count 2 should have been stayed pursuant to section 654.
       The trial court imposed the midterm of three years for the robbery (count 1), and a
concurrent term of three years for dissuading a witness (count 2). Fair urges that the trial
court should have stayed sentence on count 2 pursuant to section 654, because both
offenses occurred during a single course of conduct, and were committed with the same
intent, to keep Hernandez from calling police. The People concede the point.

                                              5
       Section 654, subdivision (a), provides that an act or omission punishable in
different ways by different provisions of law shall be punished under the provision that
provides for the longest potential term of imprisonment, but not under more than one
provision. Thus, section 654 bars multiple punishments for separate offenses arising out
of a single occurrence where all were incident to an indivisible course of conduct or a
single objective. (People v. McKinzie (2012) 54 Cal.4th 1302, 1368; People v. Calderon
(2013) 214 Cal.App.4th 656, 661; People v. Galvez (2011) 195 Cal.App.4th 1253, 1264.)
When section 654 applies, the court must stay one of the counts, not simply impose
concurrent sentences. (People v. Hernandez (2005) 134 Cal.App.4th 1232, 1239.)
       We agree with the parties that section 654 required a stay of sentence on count 2.
From the evidence adduced, the only reasonable conclusion was that Fair had a single
intent and objective during the incident, that is, to prevent Hernandez from calling police.
Fair’s use of force and her taking of the phone were both committed to effectuate this
objective. (See People v. Galvez, supra, 195 Cal.App.4th at p. 1264 [where victim was
robbed of his phone to prevent him from calling police, section 654 precluded
punishment for both robbery and witness dissuasion].) Accordingly, sentence on count 2
should have been stayed.
       3. Amendment of the information.
       As originally filed, the information alleged only count 1, robbery. During jury
selection, the People sought to amend the information to add the second count of
dissuading a witness by force or threat (§ 136.1). Defense counsel objected to the
amendment on the ground it was untimely. She also objected that, “had there been a
[second count] in play,” she would have advised Fair differently during plea negotiations.
Consequently, the amendment would result in Fair receiving ineffective assistance of
counsel. The prosecutor averred that the new charge was based on the same facts as the
original robbery count. The trial court overruled the defense objections and allowed the
amendment.




                                             6
       Fair contends amendment of the information after trial commenced was an abuse
of discretion and violated her due process rights. We disagree.
       Under section 1009, the trial court may permit an amendment of an information to
add another offense shown by the evidence at the preliminary hearing at any stage of the
proceedings.2 (§ 1009; People v. Tallman (1945) 27 Cal.2d 209, 213; People v. Lettice
(2013) 221 Cal.App.4th 139, 147; People v. Villagren (1980) 106 Cal.App.3d 720, 724
[amendment may be made as late as the close of trial if no prejudice is shown].) “Due
process requires that a criminal defendant be advised of the charges against him so that
he has a reasonable opportunity to prepare and present a defense and not be taken by
surprise by evidence offered against him at trial. [Citations.] But a defendant’s due
process rights are not prejudiced by amendment of the information, and the trial court
may permit amendment of the accusatory pleading ‘at any stage of the proceeding, up to
and including the close of trial,’ so long as defendant’s substantial rights are not
prejudiced.” (People v. Fernandez (2013) 216 Cal.App.4th 540, 554; People v. Graff
(2009) 170 Cal.App.4th 345, 360.) A trial court’s decision whether to permit the filing of
an amended information is reviewed for abuse of discretion. (Lettice, at p. 147; People v.
Bolden (1996) 44 Cal.App.4th 707, 716; Villagren, at p. 724.)




2       Section 1009 provides, in pertinent part: “The court in which an action is pending
may order or permit an amendment of an indictment, accusation or information, or the
filing of an amended complaint, for any defect or insufficiency, at any stage of the
proceedings, or if the defect . . . cannot be remedied by amendment, may order . . . a new
information to be filed. The defendant shall be required to plead to such amendment or
amended pleading forthwith, or, at the time fixed for pleading, if the defendant has not
yet pleaded and the trial or other proceeding shall continue as if the pleading had been
originally filed as amended, unless the substantial rights of the defendant would be
prejudiced thereby, in which event a reasonable postponement, not longer than the ends
of justice require, may be granted. An indictment or accusation cannot be amended so as
to change the offense charged, nor an information so as to charge an offense not shown
by the evidence taken at the preliminary examination.”



                                              7
       We discern no due process violation or abuse of discretion here. The dissuading a
witness count was based on the identical evidence as the robbery charge. Fair therefore
had notice of the facts giving rise to the additional count. The case was not complicated,
and the amendment was made prior to trial. Both the dissuading a witness and robbery
counts involved similar issues, that is, the circumstances under which Fair took the
phone. The jury was instructed that to prove a violation of section 136.1, the People were
required to prove Fair maliciously tried to prevent, or prevented, Hernandez from making
a report that she was a victim of a crime to any police offer; Hernandez was a crime
victim; and Fair knew she was trying to prevent, or had prevented, Hernandez from
making such a report. (CALCRIM No. 2622; see also People v. Navarro (2013) 212
Cal.App.4th 1336, 1347.) Thus, the evidence involved in proving, or refuting, both
charges greatly overlapped. The record does not suggest the defense would have needed
to marshal different evidence or witnesses to defend against the new charge.
       Fair contends that there was insufficient evidence presented at the preliminary
hearing to support the new charge of dissuading a witness. (People v. Winters (1990) 221
Cal.App.3d 997, 1005.) Specifically, she avers that the prosecutor did not establish
Hernandez was prevented from calling the police, or whether Fair understood Hernandez
was going to call 911. But, at the preliminary hearing Hernandez testified that after Fair
threw the drink on her and Hernandez called her “Stupid,” Hernandez took out her cell
phone and said, in Spanish, that she was going to call police. Fair responded by
screaming, “Go ahead. You call police” and taking the phone. This evidence showed
Fair understood Hernandez was calling police, and took the phone to prevent her from
doing so. Moreover, defense counsel at the preliminary hearing asked several questions
aimed at uncovering whether Hernandez actually told Fair she was calling police, and in
what language. Thus, contrary to her contention, the testimony was not unclear regarding
Fair’s knowledge that Hernandez was calling police. “ ‘[A] preliminary hearing
transcript affording notice of the time, place and circumstances of charged offenses “ ‘is
the touchstone of due process notice to a defendant.’ ” ’ ” (People v. Graff, supra,
170 Cal.App.4th at p. 367.) That standard was met here.

                                             8
       Fair also contends that substantial evidence was presented at trial that did not
correspond to the charges established at the preliminary hearing, requiring reversal of
count 2. (See People v. Graff, supra, 170 Cal.App.4th at p. 362 [“appellate courts are
compelled to reverse convictions where substantial evidence was presented at trial that
did not correspond to the charges established at the preliminary hearing”].) In support,
Fair cites People v. Burnett (1999) 71 Cal.App.4th 151 and People v. Dominguez (2008)
166 Cal.App.4th 858. In Burnett, the information charged an incident in which the
defendant possessed a .38-caliber firearm. At trial, a witness who had not testified at the
preliminary hearing described an additional incident, not mentioned at the preliminary
hearing, in which the defendant possessed a different type of firearm. (Id. at p. 167.) The
trial court improperly allowed amendment of the information to strike the gun type,
leaving open the possibility the defendant could be convicted of firearm possession based
on a completely different incident than that shown by the evidence at the preliminary
hearing. (Burnett, at pp. 168-171.) In Dominguez, the trial court erred by permitting
amendment of the information after the close of evidence to extend the date range within
which the crime may have occurred and to allow for an alternative factual scenario not
shown by the preliminary hearing evidence. (Dominguez, at pp. 866-867.)
       As is readily apparent, the instant case is unlike Burnett and Dominguez. The
evidence at trial and at the preliminary hearing involved the same witness, the same
incident, and the same facts. Unlike in the cited cases, amendment of the information did
not allow the jury to convict based on a different incident than that shown by the
evidence at the preliminary hearing. Contrary to Fair’s assertion, our review of the
preliminary hearing transcript does not reveal significant differences between the victim’s
trial and preliminary hearing testimony.
       Next, Fair complains she was prejudiced by the amendment. (See People v.
Superior Court (Alvarado) (1989) 207 Cal.App.3d 464, 477 [“The focus of the trial
court’s exercise of discretion in ruling on a motion to amend should be directed primarily
to determining whether, on the facts presented, the requested amendment would prejudice
[the defendant’s] substantial rights”].)

                                             9
       Fair argues the amendment prejudiced the defense in three respects. First, she
contends defense counsel lacked the opportunity to cross-examine Hernandez at the
preliminary hearing in regard to the additional count, in that she had no reason to “ask
detailed questions” related “solely to uncharged conduct.” Consequently, the defense
was handicapped in its ability to impeach Hernandez with her preliminary hearing
testimony on the newly added count. However, as we have discussed, the evidence
underlying the two crimes was very similar, if not identical, and the proof required tended
to overlap. Defense counsel did cross-examine Hernandez at the preliminary hearing
regarding her statements about calling police, and Fair’s reactions. This line of
questioning, along with that regarding the robbery charge, constituted adequate
questioning on the dissuading a witness count. Our review of the record does not reveal
significant differences in the type of cross-examination that was necessary at the two
proceedings.
       Second, Fair avers she might have “wanted to change her whole strategy in
approaching voir dire” had she had prior notice of the additional charge. We cannot
conceive how the new charge might have impelled counsel to conduct voir dire
differently, and Fair offers no specific examples.
       Third, Fair avers that “because the plea bargain offer made to appellant prior to
trial was no longer available . . . once the trial started, defense counsel was no longer able
to effectively advise [Fair] of the risks of a jury trial . . . .” Had she known before trial
that she would be charged with the additional offense, Fair hypothesizes, she might have
accepted a pretrial plea bargain.
       When the prosecutor sought to amend, the parties discussed the prior offers and
counteroffers made. While the record is not entirely clear, it appears the People made
two pretrial offers to Fair, neither of which she found acceptable. One was for a guilty
plea to robbery, a “strike,” with a two-year term; the other was for a guilty plea to assault,
a non-strike, with a three-year term and a waiver of custody credits, which amounted to
approximately seven months. Defense counsel believed the crime did not amount to
robbery and should not be charged as a strike, and Fair did not want to waive custody

                                              10
credits. The People had refused to modify the second offer to omit the waiver of custody
credits. Defense counsel represented that she had spoken with the prosecutor and the
second, “nonstrike” offer was no longer available. Nonetheless, at the hearing on the
amendment the prosecutor invited defense counsel to make another offer, and the trial
court offered to give the parties time to negotiate. Defense counsel declined to do so,
opining that further discussions would not be fruitful. She “still [had] the same position
with regard[] to the offer and the counter.” Counsel explained, “So as far as me . . .
coming up with a new offer, it’s the same. I still think that a nonstrike offer is warranted
in this case. And as far as credits, this isn’t someone who’s out of custody after
warranting. She’s been here. So I don’t really get the waive back credits . . . .” Defense
counsel reiterated that based on her conversations with the prosecutor, a “nonstrike offer
would not be given at this stage and that would be all we would be interested in.” The
prosecutor confirmed that the original two-year offer probably would not change,
“especially since we’re so far into the trial[,] picking a jury already.”
       While the parties’ conversations are not entirely clear, it appears that appellant
remained uninterested in the only plea offers the People had made prior to the
amendment. While counsel pointed out that the second, “nonstrike” offer was no longer
available, it is unclear at best that she would have advised Fair to accept it, or that Fair
would have done so, even had she been aware of the new count. Defense counsel
continued to criticize the “nonstrike” offer, and stated her position had not changed.
Accordingly, Fair has not demonstrated the amendment prejudiced her in regard to plea
negotiations.
       Nor did the amendment violate Fair’s due process rights. “Due process of law
requires that an accused be advised of the charges against him [or her] so that he [or she]
has a reasonable opportunity to prepare and present [a] defense and not be taken by
surprise by evidence offered at . . . trial. [Citation.]” (People v. Jones (1990) 51 Cal.3d
294, 317; People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1201; People v. Fernandez,
supra, 216 Cal.App.4th at p. 554.) “But a defendant’s due process rights are not
prejudiced by amendment of the information . . . so long as defendant’s substantial rights

                                              11
are not prejudiced. (Fernandez, at p. 554.) As we have explained, Fair’s substantial
rights were not prejudiced here. Fair had notice of the facts of the incident. The
amendment came at the beginning of trial, when the defense had time to make any
adjustments in the defense strategy, especially given the straightforward and relatively
simple nature of the case.
       Gray v. Raines (9th Cir. 1981) 662 F.2d 569, cited by Fair, does not assist her. In
Gray, the prosecution charged the defendant with first degree, or forcible, rape. Near the
close of the evidence the state was allowed to add second degree, or statutory, rape to the
charge. Up until that point, Gray’s defense had been that the sexual relations had been
consensual. After the addition of the new charge, the state used the evidence of consent
to obtain a conviction on the statutory rape charge. The Ninth Circuit found the
conviction “repugnant to the concept of due process and fundamental fairness.” (Id. at
p. 573.) As is readily apparent, nothing close to this happened in the instant case, and
Gray has no application here.
       4. Corrections to the custody credit calculation and other fines and fees.
       The People request that we make various modifications to the judgment in regard
to custody credits, fees, and fines.
       The trial court awarded Fair 157 days of actual custody credit, and 157 days of
presentence conduct credit. The People contend the court miscalculated Fair’s
presentence conduct credits, however, by failing to apply the 15 percent limitation in
section 2933.1, subdivisions (a) and (c). We agree. Robbery is listed in section 667.5,
subdivision (c) (9) as a violent offense, and therefore Fair’s presentence conduct credits
are limited to 15 percent, or 24 days. (People v. Nunez (2008) 167 Cal.App.4th 761, 764-
765; § 2933.1, subds. (a), (c).) We order the judgment modified accordingly. (People v.
Taylor (2004) 119 Cal.App.4th 628, 647 [a sentence that fails to award legally mandated
custody credit is unauthorized and may be corrected when discovered].)
       The People also aver that, because Fair was convicted of two offenses, the court
should have imposed two $40 assessments pursuant to section 1465.8 and two
$30 assessments pursuant to Government Code section 70373. We agree. A court

                                            12
security fee (§ 1465.8, subd. (a)(1)) and a criminal conviction assessment (Gov. Code,
§ 70373) apply to each count of which a defendant is convicted. (People v. Sencion
(2012) 211 Cal.App.4th 480, 483-484; People v. Schoeb (2005) 132 Cal.App.4th 861,
865.) Because these assessments do not constitute punishment, both must be imposed
even on counts that are stayed pursuant to section 654. (Sencion, at p. 484; People v.
Crittle (2007) 154 Cal.App.4th 368, 370-371.) We order the judgment modified
accordingly. (People v. Talibdeen (2002) 27 Cal.4th 1151, 1157.)




                                            13
                                      DISPOSITION
       The judgment is modified as follows. Sentence on count 2 is stayed pursuant to
Penal Code section 654. Fair is awarded 24 days of presentence conduct credit, not 157,
for a total of 181 days. The court security fee imposed pursuant to section 1465.8 is
increased to $80. The criminal conviction assessment imposed pursuant to Government
Code section 70373 is increased to $60. The Clerk of the Superior Court is directed to
prepare a corrected abstract of judgment and forward it to the Department of Corrections.
In all other respects, the judgment is affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                   ALDRICH, J.


We concur:


              KLEIN, P. J.




              KITCHING, J.




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