Filed 8/27/20 P. v. Lara CA2/2
   NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                         SECOND APPELLATE DISTRICT

                                        DIVISION TWO



 THE PEOPLE,                                                   B298582

           Plaintiff and Respondent,                           (Los Angeles County
                                                               Super. Ct. No. PA089625)
           v.

 ALVARO LARA,

           Defendant and Appellant.


     APPEAL from a judgment of the Superior Court of Los
Angeles County, Michael Terrell, Judge. Affirmed but sentence
modified.

     Jenny M. Brandt, under appointment by the Court of
Appeal, for Defendant and Appellant.

      Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Michael R. Johnsen, Deputy Attorney General,
and David W. Williams, Deputy Attorney General, for Plaintiff
and Respondent.
                             ******
      Alvaro Lara (defendant) argues that his counsel at trial
improperly conceded his guilt to two counts of robbery in
violation of McCoy v. Louisiana (2018) 138 S.Ct. 1500 (McCoy).
He also argues that the trial court erred in running most of his
sentences consecutively and in not staying two of his sentences
under Penal Code section 654.1 We conclude that his McCoy-
based challenge, his challenge to consecutive sentences, and his
654-based challenge to one of his felon-in-possession convictions
lack merit; we conclude that his 654-based challenge to his
misdemeanor possession-of-ammunition conviction is well taken.
Accordingly, we affirm his convictions and order his sentence
modified.
        FACTS AND PROCEDURAL BACKGROUND
I.    Facts
      In June 2016, Rony Azurdia (Azurdia) and Jennifer
Menjivar (Menjivar) sublet the spare bedroom in their rented
home to defendant’s estranged wife, Susana Hernandez
(Hernandez). About a week after Hernandez moved in, she told
defendant that Azurdia had tried to rape her. On hearing this
news, defendant accompanied Hernandez to Azurdia’s house to
retrieve her belongings, but not before he grabbed a gun because
he “didn’t know how big [Azurdia] was,” and wanted to be
prepared if Azurdia “pulled out a gun” of his own.
      Soon after defendant and Hernandez arrived at the house


1     All further statutory references are to the Penal Code
unless otherwise indicated.




                                2
to start packing up Hernandez’s belongings, defendant and
Azurdia got into a heated argument. At one point during the
argument, defendant displayed his tattoos while claiming that he
“kn[e]w people” and had “gente outside.”
       After defendant helped Hernandez carry her bagged-up
belongings to the car, he heard Azurdia and another man
laughing in the kitchen. The other man was Archie Cordova, who
owned the house and who had come over that day to collect
$2,933 from Azurdia and Menjivar (for rent and the outstanding
balance of a security deposit). Defendant then entered the
kitchen, pulled up his shirt so Azurdia and Cordova could see the
gun tucked into his waistband, and yelled at both men, “Get on
your knees right now.” After the men did as defendant
instructed, defendant pulled out his gun, aimed at Azurdia’s
head, and ordered both men to empty their pockets. Azurdia
emptied his wallet and gave defendant all of his money, which
included the $500 deposit Hernandez had paid the week before.
Cordova, mindful of defendant’s “tone of voice” and the “anger
[defendant] had on his face,” and thinking he was “going to die
that day,” handed defendant the rent money he had previously
collected from Azurdia. Defendant and Hernandez departed
together. The entire exchange was captured on a soundless video
camera located in the kitchen.
       Less than two weeks later, defendant was detained after a
traffic stop and a loaded handgun was found in a secret
compartment in the car.
       At the time of these offenses, defendant had prior felony
convictions and was on bail in another criminal case.
II.    Procedural Background
       For the events at the rented house, the People charged




                                3
defendant with (1) the robbery of Azurdia (§ 211), (2) the robbery
of Cordova (§ 211), (3) being a felon in possession of a firearm
(§ 29800, subd. (a)(1)). As to these events, the People alleged that
defendant personally used a firearm (§ 12022.53, subd. (b)), and
that the robberies were committed “for the benefit of, at the
direction of, and in association with a criminal street gang”
(§ 186.22, subd. (b)(1)(C)). For the subsequent detention, the
People charged defendant with being a felon in possession of a
firearm and ammunition (§§ 29800, subd. (a)(1), 30305, subd.
(a)(1)). As to all counts, the People alleged that defendant was on
bail at the time of their occurrence (§ 12022.1).
       The matter proceeded to trial. In both opening and closing
arguments, defense counsel emphasized that the People had not
proven the gang allegation because the robberies were
“motivated” by defendant’s “rage at the mistreatment of his
[estranged] wife,” not by a desire to benefit any gang.
       The jury found defendant guilty of all of the charged crimes
as well as found “true” the personal use and “on bail”
enhancements, but found the gang enhancement “not true.”2
      The trial court sentenced defendant to prison for 18 years
and 8 months. Specifically, the court imposed a sentence of 16
years for the robbery of Azurdia (comprised of a midterm base
sentence of four years, plus 10 years for the personal use of a
firearm enhancement, plus two years for the “on bail”
enhancement), plus a consecutive sentence of 16 months for the
robbery of Cordova (calculated as one-third of the midterm

2     The People had also alleged that defendant had three prior
prison terms (§ 667.5, subd. (b)), but those allegations were never
submitted to the jury and did not become a component of
defendant’s sentence.




                                 4
sentence of 48 months), plus two consecutive sentences of eight
months for each felon-in-possession conviction (calculated as one-
third of the midterm sentence of two years). The court also
treated the possession of ammunition count as a misdemeanor,
and imposed a concurrent one-year jail sentence.
       Defendant filed this timely appeal.
                            DISCUSSION
I.     Validity of Robbery Convictions Under McCoy v.
Louisiana
       In McCoy, supra, 138 S.Ct. 1500, the United States
Supreme Court clarified that the Sixth Amendment not only
“guarantees to each criminal defendant ‘the Assistance of
Counsel for his defence,’” but also defines the division of labor
between a defendant and his counsel: The defendant gets to
define “the objective of ‘his defence,’” while counsel gets to “make
strategic choices regarding how best to achieve” that objective by
making “trial management” decisions. (McCoy, at pp. 1508-1509;
People v. Frederickson (2020) 8 Cal.5th 963, 993.) A defense
lawyer oversteps his role—and thereby violates a defendant’s
Sixth Amendment right to counsel in a manner that is per se
reversible—if (1) the defendant has “expressly” and “clear[ly]”
“assert[ed]” to his counsel “that the objective of ‘his defence’ is to
maintain innocence of the charged criminal acts,” and (2) his
counsel nevertheless “override[s that objective] by conceding
guilt.” (McCoy, at pp. 1507, 1509; People v. Eddy (2019) 33
Cal.App.5th 472, 482-483 (Eddy); People v. Franks (2019) 35
Cal.App.5th 883, 891 (Franks); People v. Bernal (2019) 42
Cal.App.5th 1160, 1166 (Bernal).)
       Defendant argues that his counsel violated McCoy by
conceding his guilt as to both robberies after defendant had made
it clear that the objective of his defense was to maintain his




                                  5
innocence of both robberies. We review this argument de novo.
(People v. Mayfield (1993) 5 Cal.4th 142, 199.) Because the facts
bearing on a possible McCoy violation differ for each robbery, we
analyze them separately.
       A.     Robbery of Azurdia
       It is undisputed that defendant’s trial counsel conceded in
closing argument that defendant committed the charged robbery
of Azurdia. However, defendant’s McCoy claim lacks merit
because defendant never expressly or clearly asserted to his
counsel that the objective of his defense was to maintain his
innocence as to the robbery of Azurdia. To the contrary,
defendant took the stand at trial and testified that he satisfied
every element of the crime of robbery as to Azurdia. A defendant
commits the crime of robbery if (1) he takes property not his own;
(2) the property was in the possession of another person; (3) the
property was taken from the other person in his immediate
presence; (4) the property was taken against that person’s will;
(5) the defendant used force or fear to take the property; and (6)
at the time he used force or fear, the defendant intended to
deprive the owner of the property permanently. (CALCRIM
1600; § 211; People v. Anderson (2011) 51 Cal.4th 989, 994; People
v. Huggins (2006) 38 Cal.4th 175, 214.) During his testimony,
defendant testified to each of these elements vis-à-vis Azurdia:
He admitted that he put a gun to Azurdia’s head to “scare the
shit out of him”; he asked Azurdia for the $500 while the gun was
pointed at Azurdia’s head; Azurdia, while in fear, then gave him
the $500; and defendant had no intention of giving the money
back to Azurdia.
       On appeal, defendant proffers four reasons why, in his
view, he had clearly communicated to his lawyer that his




                                6
objective was to maintain his innocence of the crime of robbing
Azurdia.
         First, defendant argues that he maintained during his
testimony that he “didn’t rob” Azurdia because (1) his decision to
do so was spontaneous, as he had not planned on robbing Azurdia
until Azurdia’s laughing made him “angry,” (2) he had good
motives to commit the robbery, as he was only trying to get his
estranged wife’s $500 deposit back and Azurdia “deserved it,” and
(3) he was selective in what he took, as he took Azurdia’s cash but
not his wallet. We reject this argument for several reasons. To
begin, defendant’s assertion that he “didn’t rob” Azurdia is
tempered somewhat by his nearly simultaneous assertion that he
“did rob him.” More to the point, none of the reasons defendant
cites for his view he did not rob Azurdia is an element of the
crime of robbery: “[P]remeditation is not an element of the crime
of robbery” (People v. Pedel (1927) 81 Cal.App. 558, 562); “motive
. . . is not a necessary element of robbery” (People v. Clark (2011)
52 Cal.4th 856, 946 (Clark)), and the claim-of-right defense to
robbery does not apply where, as here, a person tries to get back
money for a third party, as defendant did in seeking to get the
deposit money for his estranged wife (People v. Anderson (2015)
235 Cal.App.4th 93, 102); and taking some but not all of a
victim’s property at gunpoint is not a defense to robbery (Clark,
at p. 946 [“the value of the property is irrelevant”]). A
defendant’s decision to testify to the facts satisfying all of the
elements of a crime—while refusing to admit that those facts
constitute a crime based on a mistaken view that admission to
other facts (which are not elements) is also required—in no way
“expressly” or “clearly” communicates to counsel that the
objective of the defense at trial is to maintain one’s innocence of




                                 7
that crime.
      Second, defendant contends that he clearly communicated
his objective of maintaining his innocence during a pretrial
        3
Marsden hearing. He did not. At that hearing, defendant
complained that his counsel was not effectively representing him
because, as pertinent here, counsel had only obtained “still[]
[photos]” from the video rather than the video itself. Defendant
further explained that the video was important because “the
video is going to show the truth”—namely, “it’s going to show if I
robbed them, as they’re saying, or is it just me being angry and
moving around and screaming.” Defendant anticipated that the
video would “show[] me not taking nothing.” Defendant’s desire to
get a video that he acknowledged at the time might prove him
innocent or prove his guilt is not a clear expression that the
objective of his defense is to maintain his innocence. Defendant’s
unilateral hope that the video’s contents might turn out to be
favorable to him adds nothing. Even if we construed defendant’s
complaint as constituting a clear directive to counsel to maintain
his innocence, defendant countermanded that directive—or, at a
minimum, countermanded any clarity in that directive—when he
subsequently took the stand and admitted to every element of
robbery as to Azurdia.
      Third, defendant argues that he communicated his desire
to maintain his innocence by rejecting plea offers from the People
and the court in favor of going to trial. If going to trial were
enough to constitute a clear directive to counsel to maintain
innocence as to all crimes, McCoy would apply in every case
where there is a trial. That is most certainly not the law. (E.g.,


3     People v. Marsden (1970) 2 Cal.3d 118.




                                8
People v. Palmer (2020) 49 Cal.App.5th 268, 275-283; Bernal,
supra, 42 Cal.App.5th 1165-1166; People v. Burns (2019) 38
Cal.App.5th 776, 784-785; People v. Lopez (2019) 31 Cal.App.5th
55, 63-66; Franks, supra, 35 Cal.App.5th at pp. 885, 891.) This is
true, even when the defendant testifies at that trial. (In re Smith
(2020) 49 Cal.App.5th 377, 386-390 (Smith) [no McCoy error
where defendant goes to trial and testifies that he did not commit
crime].)
       Lastly, defendant points to Eddy, supra, 33 Cal.App.5th
472 and People v. Flores (2019) 34 Cal.App.5th 270 (Flores) as
supporting his position. They do not, as the defendant in each of
these cases made his objective to maintain his innocence
abundantly clear to his attorney. In Eddy, the defendant told his
attorney “not to go th[e] route” of admitting the defendant’s guilt,
and the attorney did “it anyway”; the attorney even
acknowledged that he had overrode the defendant’s wishes.
(Eddy, at pp. 481-482, italics omitted.) In Flores, the defendant
told the court at a pretrial Marsden hearing that the attorney
was “‘trying to make him admit to something that [he didn’t]
want to admit.’” (Flores, at p. 280.) For the reasons set forth
above, the facts of this case are very different.
       B.     Robbery of Cordova
       It is undisputed that defendant, during his testimony,
maintained his innocence of robbing Cordova by repeatedly
insisting that he never took any money from him—
notwithstanding a video that showed defendant taking
something. Even if we assume that defendant’s testimony was
sufficient to clearly communicate to his lawyer that the objective
of his defense was to maintain his innocence of this crime (but see
Smith, supra, 49 Cal.App.5th at pp. 383-384, 389-390




                                 9
[defendant’s testimony denying involvement but no objection or
request to seek substitution of counsel prior to closing argument,
and counsel concedes crime during closing; no McCoy violation]),
defendant’s McCoy claim lacks merit because his counsel never
conceded defendant’s guilt as to the robbery of Cordova. During
his opening statement, defense counsel admitted that defendant
“had a gun” and “was at the house,” but otherwise admitted
neither robbery. During his closing argument, defendant noted
that defendant’s testimony “admitted almost every charge,” but
that “there [are] two that he refuses to [admit]” and “contest[s].”
Counsel went on to summarize defendant’s testimony: Defendant
“claims that he did not receive the other several thousand dollars
that allegedly was given to him [by Cordova] . . . but he admitted
taking the $500 [from Azurdia]. I’ll leave that to you. That’s his
position. He did not take the additional money from [Cordova],
that’s there.” Counsel later argued, “I’m not saying [defendant is]
. . . not guilty of the underlying crime, I’m saying he’s not guilty
of the [gang] enhancement,” but further clarified that “I think
[defendant] did an extraordinary job of telling you why he wasn’t
guilty of certain charges . . .” When defense counsel’s arguments
are considered in their totality, counsel did not concede
defendant’s guilt as to the Cordova robbery. Instead, he
repeated—and thereby respected—defendant’s assertion of
innocence of that crime.
        Defendant responds that counsel “effectively” conceded
defendant’s guilt of the Cordova robbery by referring to what
defendant “claim[ed]” in his testimony and by labeling
defendant’s claim of innocence as merely “his [that is,
defendant’s] position.” To be sure, counsel did not offer a full-
throated endorsement of defendant’s claim of innocence as to the




                                10
Cordova robbery, as doing so in the face of a videotape showing
defendant taking something from Cordova would have likely
destroyed counsel’s credibility with the jury, a credibility that
was critical to counsel’s ultimately successful argument to reject
the gang enhancement. (Accord, People v. Mitcham (1992) 1
Cal.4th 1027, 1060-1061 [counsel’s decision to be “more realistic”
in order to maintain credibility with the jury can be a “good trial
tactic[]”].) But McCoy is violated only if counsel concedes guilt in
the face of a defendant’s asserted objective of maintaining his
innocence. Counsel’s endorsement of defendant’s testimony, even
if viewed as tepid, is not a concession of guilt and thus did not
violate McCoy.
II.    Sentencing Issues
       A.     Consecutive sentences
       Unless otherwise specified by statute, a trial court has
“broad discretion” whether to run the sentences for separate
counts concurrently or consecutively. (People v. Clancey (2013)
56 Cal.4th 562, 579 (Clancey); § 669, subd. (a); Cal. Rules of
Court, rule 4.425.) A court may run all sentences consecutively if
it finds a single aggravating factor. (People v. Osband (1996) 13
Cal.4th 622, 728-729.) Defendant argues that the trial court
erred in running his robbery and felon-in-possession sentences
consecutively. We review this claim for an abuse of discretion.
(Clancey, at pp. 579-581.)
       Even if we ignore that this argument was forfeited by
counsel’s failure to object (People v. Scott (1994) 9 Cal.4th 331,
356), the trial court did not abuse its discretion in running
defendant’s sentences consecutively. The court set forth several
aggravating factors in this case, including that (1) the crime
involved “separate victims,” (2) the crime involved a “high degree




                                 11
of cruelty,” (3) the victims were unarmed, (4) defendant had an
extensive criminal history, and (5) defendant testified falsely
when he denied taking money from Cordova. Each of these are
valid aggravating factors (Cal. Rules of Court, rules 4.425, 4.421),
and any one of them was sufficient to justify consecutive
sentences.
       Defendant responds that the trial court could not rely on
any of these factors because (1) the court had already relied on
those factors to impose midterm sentences for the robbery and to
impose the firearm enhancement, and (2) the “dual use” doctrine
prevented the re-use of those factors to justify consecutive
sentences. This responsive argument lacks merit. Because no
aggravating factor is necessary to justify a midterm sentence
(Cal. Rules of Court, rule 4.425(b)(1) [aggravating factor
necessary only to impose upper-term sentence]; People v. Sperling
(2017) 12 Cal.App.5th 1094, 1104 [same]), to justify the
mandatorily consecutive firearm enhancement imposed in this
case (see People v. Coleman (1989) 48 Cal.3d 112, 164), or to
justify a refusal to strike an enhancement, the trial court did not
make use of any of the aggravating factors in imposing any other
portion of the sentence; this left all of them available for use in
imposing consecutive sentences. And even if we assume that an
aggravating factor is necessary to justify the denial of a motion to
strike the firearm enhancement, that would still leave four other
factors available to justify consecutive sentences. A trial court’s
failure to specify which aggravating factor justifies which
sentencing choice is either not error or, at a minimum, not
prejudicial error. (People v. Sanchez (1994) 23 Cal.App.4th 1680,
1684.)




                                12
       B.    Section 654
       Section 654 prohibits a court from “punish[ing]” “[a]n act or
omission”—or a “‘“course of criminal conduct”’”—“under more
than one provision.” (§ 654, subd. (a); People v. Capistrano (2014)
59 Cal.4th 830, 885 (Capistrano), overruled on other grounds in
People v. Hardy (2018) 5 Cal.5th 56, 103-104.) Generally,
““‘[w]hether a course of criminal conduct is divisible and therefore
gives rise to more than one act within the meaning of section 654
depends on the intent and objective of the actor. If all of the
offenses were incident to one objective, the defendant may be
punished for any one of such offenses but not for more than
one.’”” (Capistrano, at p. 885, quoting People v. Rodriguez (2009)
47 Cal.4th 501, 507; People v. Beamon (1973) 8 Cal.3d 625, 639-
640.) We review a trial court’s “implicit finding[s] that section
654 does not apply” for substantial evidence. (People v.
Rodriguez (2015) 235 Cal.App.4th 1000, 1005.)
             1.    Felon-in-possession count
       Defendant argues that the trial court erred in not staying
the felon-in-possession count occurring on the same day as the
robberies. This argument lacks merit. Where, as here, a
defendant “arrive[s] at the scene of . . . [his] primary crime
already in possession of [a] firearm,” that possession is “distinctly
antecedent and separate from the [ensuing] . . . crimes” and
section 654 does not bar multiple punishment. (People v. Jones
(2002) 103 Cal.App.4th 1139, 1143-1145; cf. People v. Kane (1985)
165 Cal.App.3d 480, 488 [section 654 applies where defendant’s
possession of firearm, and its use in an assault, and its discharge
are part of an “indivisible course of conduct”]; People v. Atencio
(2012) 208 Cal.App.4th 1239, 1241-1244 [section 654 applies
where defendant’s theft and possession of same firearm are one




                                 13
in the same].) Substantial evidence supports the trial court’s
implicit finding that defendant took possession of the firearm at
home as a means of protection and that his subsequent decision
to rob Azurdia and Cordova was made long after, when he heard
them laughing. Thus, his possession of the firearm was
“distinctly antecedent and separate from” the robberies.
             2.    Possession of ammunition
       As the People concede, the trial court erred when it did not
stay defendant’s sentence for possession of ammunition because
where, as here, the ammunition is loaded in the gun at the time
of possession, the crimes of possessing the firearm and possessing
the ammunition are indivisible. This result is dictated by People
v. Lopez (2004) 119 Cal.App.4th 132, 138-139.




                                14
                          DISPOSITION
      Defendant’s sentence for possession of ammunition by a
person prohibited from owning and possessing a firearm under
section 30305, subdivision (a) (count 8), is modified to reflect the
sentence is stayed pursuant to section 654. The trial court is
directed to prepare an amended abstract of judgment and to
forward a certified copy to the Department of Corrections and
Rehabilitation. In all other respects, the judgment is affirmed.
      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.


                                      ______________________, J.
                                      HOFFSTADT

We concur:


_________________________, Acting P.J.
ASHMANN-GERST


_________________________, J.
CHAVEZ




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