Filed 10/28/15 P. v. Hayes CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F067970
         Plaintiff and Respondent,
                                                                           (Super. Ct. Nos. MF010353A &
                   v.                                                               MF010353B)

RANDY HAYES et al.,
                                                                                         OPINION
         Defendants and Appellants.



         APPEAL from a judgment of the Superior Court of Kern County. Thomas S.
Clark, Judge.
         Marilyn G. Burkhardt, under appointment by the Court of Appeal, for Defendant
and Appellant Randy Hayes.
         James Bisnow, under appointment by the Court of Appeal, for Defendant and
Appellant Albert Brown.
         Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Catherine Chatman and Jeffrey Grant, Deputy Attorneys General, for Plaintiff
and Respondent.
                                                        -ooOoo-
       Defendants Randy Hayes and Albert Brown were two of the three perpetrators of a
home invasion robbery in Mojave. They were tried together and each was found guilty of
two counts of residential robbery and one count of making a criminal threat. They argue
now that the criminal threat counts were not supported by sufficient evidence; those
counts should have been dismissed upon defendants’ motion during trial; and (in Brown’s
case) the sentence for the criminal threat conviction should have been stayed pursuant to
Penal Code section 654.
       We agree with defendants that the evidence was insufficient to support the
criminal threat convictions. A victim was told to shut up or he would be shot, but no
witness could say which of the three perpetrators uttered this threat. There was simply no
evidence at all on the basis of which the jury could rationally find that Hayes or Brown
made the threat. There also was no evidence that either defendant aided and abetted the
making of the threat. We will reverse those convictions. This result makes it
unnecessary to address defendants’ remaining arguments about the criminal threat counts.
       Defendants also request that we examine the confidential record of a Pitchess1
hearing to determine whether the trial court abused its discretion in finding that the
officer personnel records disclosed to the court contained no discoverable material. We
have done so and conclude that there was no abuse of discretion.
                         FACTS AND PROCEDURAL HISTORY
       Steven and Sigourney Moe were at home with their two children, aged two and
four, at 9:00 p.m. on December 19, 2012. Someone knocked on the door. Steven, who
was expecting a friend, opened it. Defendants and a third man entered, each holding a
handgun and pointing it at Steven. The men ordered Steven to lie on the floor. He did
so. Sigourney, in the next room, saw what was happening and got down on the floor with
the children. At one point, Steven said something about the children and a robber told

       1Pitchess   v. Superior Court (1974) 11 Cal.3d 531.


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him to shut up or they would shoot him. Sigourney also made a statement referring to the
children, and a robber said, “‘We don’t give an F about your kids.’”
       The robbers were in the house for 10 or 15 minutes. They took some property and
left, saying, “‘Stay down until you hear us gone.’” Missing after they left were a purple
Nikon camera, a white iPhone, a red HTC cell phone, some video game consoles,
Sigourney’s purse, a wallet, and a small safe. The wallet and safe had about $200 cash in
them. The cash in the safe included a five dollar bill that was to be given to the Moes’s
son as a gift and had “Happy Birthday,” followed by the son’s name, written on it. The
safe also contained a title certificate for Steven’s car.
       Having no phones, the Moes went to Steven’s parents’ house and called the police.
Deputy Sheriff George Alwaw responded, took statements from the victims, and
processed the scene. Around 10:00 p.m. that night, Alwaw was on patrol in the same
area and saw defendants, who met the descriptions given by Steven, walking in the
parking lot of an apartment complex located immediately behind the Moes’s house.
Deputy Andrew Piuser arrived and assisted Deputy Alwaw. Defendants consented to be
searched. Hayes had a white iPhone. Brown had a wallet containing Sigourney’s Social
Security card and driver’s license along with $170 cash. The cash included the five
dollar bill with the birthday message written on it.
       Hayes told Alwaw he had come from the home of Britney Belton, which was an
apartment in the complex. Alwaw and Piuser went there and searched the apartment with
Belton’s consent. They found a purple Nikon camera and a BB gun that looked like a
real handgun. Belton said these items belonged to Brown. The deputies also found a
small black safe inside a suitcase.
       A deputy brought Steven to the apartment complex that night. Defendants were
shown to Steven and he identified them as two of the robbers. Steven also identified the
recovered items as property that had been taken from his house. The safe was locked.
Steven told the deputies one key for the safe had been stolen by the robbers, but he had

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another key, which the deputies used to open the safe. Inside was a handgun that did not
belong to Steven.
       The district attorney filed an information against both defendants. Counts 1
through 5 charged Hayes as follows: (1) residential robbery (Pen. Code,2 § 212.5,
subd. (a)) of Steven; (2) residential robbery of Sigourney; (3) a criminal threat (§ 422)
against Steven; (4) a criminal threat against Sigourney; and (5) being a felon in
possession of a firearm (§ 29800, subd. (a)(1)). Counts 6 through 9 charged Brown:
(6) residential robbery of Steven; (7) residential robbery of Sigourney; (8) a criminal
threat against Steven; and (9) a criminal threat against Sigourney.
       In each of counts 1 through 5, the information alleged sentence enhancements for
Hayes based on firearm use (§ 12022.5, subd. (a)), three prior strikes (§§ 667, subds. (c)-
(j), 1170.12, subds. (a)-(e)), and two prior prison terms (§ 667.5, subd. (b)). Counts 1 and
2 also alleged a separate firearm enhancement under section 12022.53, subdivision (b),
and three prior serious felony convictions (§ 667, subd. (a)). Counts 6 through 9 alleged
that Brown personally used a firearm (§ 12022.5, subd. (a)) and had a prior strike
conviction (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e)). Counts 6 and 7 further
alleged a separate firearm enhancement under section 12022.53, subdivision (b), and a
prior serious felony conviction (§ 667, subd. (a)). During trial, the court granted a
defense motion for judgment on count 5.
       The jury found Hayes guilty on counts 1 through 3 and found the firearm-
enhancement allegations true on those counts. It could not reach a verdict on count 4, as
to which the court declared a mistrial. The jury found Brown guilty on counts 6 through
8 and found true the associated firearm-enhancement allegations. It could not reach a
verdict on count 9 and the court declared a mistrial on that count. Thus, Hayes and
Brown were each convicted of robbing Steven and Sigourney and of threatening Steven.

       2Subsequent   statutory references are to the Penal Code unless otherwise noted.


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The court found all the prior-conviction and prior-prison-term allegations true on the
offenses of conviction, except that it found one of the prior-prison-term allegations not
true for Hayes for each count.
       The court granted Hayes’s section 1385 motion to strike two of the three prior-
strike allegations on counts 1 through 3. The parties stipulated to strike the prior-strike
allegation against Brown on counts 6 through 8 as that alleged prior strike was a juvenile
offense.
       The court sentenced Hayes to a total of 43 years, calculated as follows: 12 years
for count 1, plus enhancements of 10 years under section 12022.53, subdivision (b), and
15 years under section 667, subdivision (a), and for count 2, a consecutive term of two
years eight months, plus three years four months, for the section 12022.53,
subdivision (b) enhancement. The sentence on count 3 was stayed pursuant to
section 654, as were the enhancements on counts 1 and 2 under section 12022.5,
subdivision (a).
       Brown received a sentence of 24 years 8 months: 6 years on count 6, plus an
enhancement of 10 years under section 12022.53, subdivision (b); a consecutive term of
16 months on count 7, plus an enhancement of three years four months under
section 12022.53, subdivision (b); and a consecutive term of eight months on count 8,
with an enhancement of three years four months under section 12022.5, subdivision (a).
The enhancement under section 12022.5, subdivision (a), on count 6 was stayed pursuant
to section 654.
                                       DISCUSSION
I.     Sufficiency of evidence of criminal threat
       Hayes contends that the evidence was insufficient to support the conviction on
count 3, making a criminal threat against Steven. Brown does not specifically address
this issue, but states that he joins in all arguments made by Hayes that may benefit him.
As will be seen, Hayes and Brown are situated identically with respect to this issue, so

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our discussion applies to Brown’s conviction on count 8 as well as Hayes’s conviction on
count 3. The People argue that the insufficiency-of-evidence claim raised by Hayes “is
inapplicable to Brown because it specifically addresses the evidence pertaining to
Hayes,” but we do not agree. The portions of the record that show there was no sufficient
evidence to connect Hayes to the threat show the same about Brown. Those portions of
the record show a lack of evidence tying any of the three robbers individually to the
threat.
          When considering a challenge to the sufficiency of the evidence to support a
judgment, we review the record in the light most favorable to the judgment and decide
whether it contains substantial evidence from which a reasonable finder of fact could
make the necessary finding beyond a reasonable doubt. The evidence must be
reasonable, credible, and of solid value. We presume every inference in support of the
judgment that the finder of fact could reasonably have made. We do not reweigh the
evidence or reevaluate witness credibility. We cannot reverse the judgment merely
because the evidence could be reconciled with a contrary finding. (People v. D’Arcy
(2010) 48 Cal.4th 257, 293.)
          Subdivision (a) of section 422, the criminal threat statute, provides:

                  “Any person who willfully threatens to commit a crime which will
          result in death or great bodily injury to another person, with the specific
          intent that the statement, made verbally, in writing, or by means of an
          electronic communication device, is to be taken as a threat, even if there is
          no intent of actually carrying it out, which, on its face and under the
          circumstances in which it is made, is so unequivocal, unconditional,
          immediate, and specific as to convey to the person threatened, a gravity of
          purpose and an immediate prospect of execution of the threat, and thereby
          causes that person reasonably to be in sustained fear for his or her own
          safety or for his or her immediate family’s safety, shall be punished by
          imprisonment in the county jail not to exceed one year, or by imprisonment
          in the state prison.” (The remainder of the statute defines “immediate
          family” and “electronic communication device.”)




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       Steven gave his testimony about the threat when the prosecutor asked him what
the robbers said after ordering him to get on the floor. Steven answered: “Oh, they just
told me to stay down. And then my kids started crying, and then I told them ‘My kids,’
and they just told me to shut up or they’d shoot me.” On cross-examination, Hayes’s
counsel attempted to determine what Hayes said to Steven. Steven said he could not
connect individual robbers with specific statements:

       “Q.     … Did [Hayes] personally say anything to you?

       “A.    He just told me to stay on the ground.

       “Q.    That’s the only thing he said to you.

       “A. As far as—I couldn’t tell you whose voice was saying what because
       I was—there was two—two dudes that come in the house. No, there was
       three dudes that come in the house but two that were doing all of the force.
       They were the ones that were talking, but I couldn’t tell you who was
       saying what.”
Steven did not say which two robbers were doing the talking.
         Sigourney did not mention the threat to Steven during her testimony. When the
prosecutor gave her an opportunity to add to her remarks about the robbers’ statements,
she still did not describe the threat made to Steven:

       “Q. Okay. Besides shouting for, demanding electronics, phones and
       saying ‘We don’t give a fuck about your kids,’ did these men say anything
       else while they were in the house?

       “A.    Not that I can recall.”
       In their brief, the People cite no other evidence about the threat against Steven.
They concede there is no evidence showing which of the robbers uttered the threat.
       This evidence was insufficient to find either Hayes or Brown guilty of violating
section 422 as to Steven as direct perpetrators. A threatening statement was made to
Steven. “[T]hey just told me to shut up or they’d shoot me,” he testified. But there was




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no evidence at all on the basis of which the jury could reasonably determine whether it
was Hayes, Brown, or the third robber who said it.
       The jury was instructed on principles of aiding and abetting, and the People now
argue that there was sufficient evidence as to both Hayes and Brown to find them guilty
of violating section 422 as aiders and abettors.
       We do not see how the evidence showed this. CALCRIM No. 401, with which the
jury was instructed, states that, to prove aiding and abetting, the prosecution must show
that the defendant knew of the direct perpetrator’s intent to commit the crime; the
defendant intended to aid and abet the direct perpetrator in committing it; and the
defendant did in fact aid and abet in committing it. The instruction further stated that the
defendant must “aid, facilitate, promote, encourage, or instigate” the perpetrator in
committing the crime. There is no evidence in the record that Hayes or Brown aided,
facilitated, promoted, encouraged, or instigated the threatener—whoever it was—in
uttering the threat.
       The People argue that the evidence showed Hayes, Brown, and the third man all
participated in the robbery together and therefore shared a common purpose with one
another and thus with the speaker of the threat. Evidence of a common purpose in
committing a robbery, however, is not evidence of the knowledge, intent, and action
necessary to aid and abet the additional crime of making a criminal threat as defined in
section 422. To be guilty as direct aiders and abettors, Hayes and Brown would have to
know someone in their group intended to say something like what the threatener said to
Steven; would have to intend to help the threatener to do it; and would have to engage in
some action that would constitute helping or encouraging the doing of it. Participation in
the robbery is not enough to show all this. If it were, a robber would always
automatically be guilty of violating section 422 if a coperpetrator uttered a threat during
the robbery. The People cite no authority in support of this position, and we do not think



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it can be correct. Robbery necessarily involves force or fear, but it need not involve a
spoken or written threat, as section 422 requires.3
       For these reasons, we agree with defendants’ argument that the evidence was not
sufficient to prove counts 3 and 8. We will reverse the convictions on those counts.
II.    Pitchess
       Before trial, Brown filed a motion pursuant to Pitchess v. Superior Court, supra,
11 Cal.3d 531, and Evidence Code sections 1043 to 1045. The motion requested an order
directing the Kern County Sheriff’s Department to produce the personnel files of Deputy
Alwaw and Deputy Piuser, including citizen complaints, internal affairs complaints, and
rap sheets, among other things. More specifically, it sought materials relevant to the
deputies’ lack of credibility, acts involving moral turpitude, dishonesty, false arrests,
unbecoming conduct, neglect of duty, and racial bias or profiling. Brown based his
request for these materials on an allegation that Alwaw and Piuser fabricated evidence
incriminating him. The allegation was based exclusively on defense counsel’s
information and belief.
       The trial court ordered the county to produce records for in camera review and
then conducted a hearing outside the presence of the parties. It found that there was no
discoverable material. The parties now agree that we should review the confidential
record of this hearing, including the documents produced by the county, and determine
whether the trial court acted within its discretion in making this finding.
       A court deciding a properly noticed Pitchess motion must first determine whether
the motion shows good cause for production of any of an officer’s confidential personnel
records. (People v. Mooc (2001) 26 Cal.4th 1216, 1226.) Next, the court must obtain
potentially relevant personnel records from their custodian and review them for relevance

       3Acknowledging     that the jury was not instructed on the natural and probable
consequences doctrine, the People do not argue that the convictions could be upheld on
the basis of that doctrine, so we need not rule.


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at a hearing in camera. The court is then to order disclosure to the moving party of any
information relevant to the pending litigation. (Ibid.) We review the trial court’s ruling
for abuse of discretion. (Id. at p. 1228.)
       In this case, an employee of the Kern County Sheriff’s Office appeared at the
hearing as custodian of records and was questioned by a deputy county counsel. The
custodian testified that he had conducted a search of records on Alwaw and Piuser,
looking for “any adverse comments or internal affairs investigations and the personnel
files of” the two deputies. He brought a set of records with him to the hearing and
testified that they included all the pertinent documents he found. The court stated that it
had reviewed these records and found that none needed to be disclosed to the defense.
       We have reviewed the records that were presented to the trial court. The court did
not abuse its discretion in finding there was no discoverable material.
                                       DISPOSITION
       The convictions and sentences on counts 3 and 8 are reversed. The judgments are
affirmed in all other respects.


                                                                 _____________________
                                                                               Smith, J.
WE CONCUR:


 _____________________
 Poochigian, Acting P.J.


 _____________________
 Franson, J.




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