Filed 9/30/13 P. v. Gonzalez CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H038025
                                                                    (Monterey County
         Plaintiff and Respondent,                                   Super. Ct. No. SS091909)

         v.

ALVARO ATLAGCE GONZALEZ,

         Defendant and Appellant.



         Defendant Alvaro Atlagce Gonzalez was convicted by jury trial of first degree
                                                   1
murder (Pen. Code, § 187, subd. (a)), second degree robbery (§ 211), and driving or
taking a vehicle (Veh. Code, § 10851, subd. (a)). The jury also found true a special
circumstance allegation that the murder had been committed while defendant was
engaged in the commission of robbery (§ 190.2, subd. (a)(17)(A)). The court imposed a
25 years to life sentence for the murder count, a three-year term for the robbery count,
and a concurrent term for the driving or taking a vehicle count.
         On appeal, defendant contends that the trial court prejudicially erred in failing to
instruct on duress as a defense to robbery as the underlying felony for felony-murder
liability for the murder. He also maintains that section 654 required that the terms for the
robbery and driving or taking a vehicle counts be stayed. We find no error in the court‟s


1
         Subsequent statutory references are to the Penal Code unless otherwise specified.
refusal to instruct on duress or in its imposition of a separate sentence for the robbery
count. However, we conclude that section 654 did apply to the driving or taking a
vehicle count, and we modify the judgment accordingly.


                                I. The Prosecution’s Case
       A man‟s dead body was discovered floating in the water below a bridge over
Arroyo Seco on the morning of August 2, 2009. Blood was found on the bridge. An
autopsy revealed that the man had suffered numerous blunt force injuries to his face. He
had been struck at least 10 times in the head, and there were defensive wounds to his
hands. The cause of death was drowning; his other injuries would not have been
imminently fatal.
       It took four days for Monterey County Sheriff‟s detectives to learn that the body
was that of Crescencio Garcia. They contacted Garcia‟s stepfather who told the
detectives about Garcia‟s car. Garcia‟s car was located and searched. A receipt from a
market in Salinas for a six-pack of beer was found in the car. The receipt was from
11:11 p.m. on August 1, 2009. The detectives were able to match the time on the receipt
to video of the person who had made the beer purchase. A still photo from the video was
shown to people at Garcia‟s workplace. The man in the photo was identified as Garcia‟s
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coworker Enedino Perea. The detectives then interviewed Perea and learned of
defendant‟s possible involvement. Perea is defendant‟s uncle, his mother‟s brother.
Perea was arrested. The detectives then made contact with defendant at his residence and
took him into custody. The insurance card for Garcia‟s car was found under the pillow
on defendant‟s bed.




2
      The detectives later discovered that Perea had also purchased a case of beer at
another market in Salinas earlier that evening.

                                              2
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       Defendant was interviewed by the detectives on August 11, 2009. He told the
detectives that Perea had told him that he had invited Garcia to defendant‟s home and that
Garcia was going to pay for some beer. Perea and Garcia came to defendant‟s home
around 7:00 p.m. on August 1, picked him up in Garcia‟s car, and went to a store where
Perea purchased two 12-packs of beer. They all drank beer in the car for a couple of
hours. By midnight, Garcia was too drunk to drive. Garcia got into the back seat, and
Perea took over as the driver of the car.
       When Perea took over as driver, he told defendant “we are going to . . . take his
money and, and his car.” Perea said that Garcia had a thousand dollars. With defendant
in the front passenger seat, Perea drove the car around for a while, and then he drove to
Arroyo Seco. Defendant “fell asleep” for “a while.” He woke up shortly before Perea
pulled the car over next to a bridge at Arroyo Seco. Garcia was still sleeping in the back
seat. Defendant and Perea got out of the car, and Perea “looked” in the trunk of the car
“for something to hit him with.” Perea pulled a metal rod out of the trunk. Perea told
defendant: “We have to hit him.” “And then, uh well like that then, it was like he forced
me like that then, saying like, „Well go ahead, go ahead and give him the first hit.‟ ”
Perea leaned into the car and hit Garcia in the head with the rod. Garcia got out of the
car, and Perea handed the rod to defendant.
       Perea told defendant: “Hit him.” Perea said: “ „I am going to hold him and go
ahead and hit him a few times.‟ Then, well I hit him like this, I hit him, no three (3)
small hits.” These “hits” were “in the head” and were “as hard as I could” but were
“[n]ot very hard” given that defendant was “drunk then.” Garcia fell down, and
defendant stopped hitting him. Defendant could tell that Garcia was still breathing.
Perea began dragging Garcia. Defendant helped Perea “a little bit with the feet,” and


3
      A video recording and transcript of this interview were admitted at trial. At the
conclusion of this interview, defendant was arrested.

                                              3
they threw Garcia off the bridge into the water. After they had done so, they returned to
the car.
           Perea told defendant that he had taken Garcia‟s wallet. The wallet contained no
money, but there were two checks in it. Each of the checks was for $500. The next day,
Perea cashed one of the checks, and defendant cashed the other by signing Garcia‟s
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name. They abandoned the car after Perea removed its stereo. Perea told defendant not
to say anything about what they had done.


                                     II. The Defense Case
           The only defense witness at trial was defendant. He recounted how he had come
to Salinas from Mexico in 2008 with his uncle Perea. Perea was seven or eight years
older than defendant and had “said that . . . he could take care of me” and “get me a job.”
After he arrived in Salinas, defendant did not see Perea frequently. Defendant had met
Perea‟s coworker Garcia a few times. Garcia was also older than defendant. On the
evening of August 1, 2009, Perea and Garcia came by defendant‟s residence as defendant
was starting to have dinner, around 6:00 or 7:00 p.m. Perea said that Garcia “had invited
him out to have some beer.” Perea asked defendant if he wanted to accompany them, but
defendant “said no, I was having dinner.” Perea said he would wait for him outside and
did so. When defendant was done with his dinner, he, Perea, and Garcia left in Garcia‟s
car.
           They drove around and then went to a store where Perea bought some beer.
Defendant could not remember how many beers Perea bought, but it was more than six.
They drank beer and drove around. Defendant drank eight beers, which was more than
the one or two that he usually drank. At some point, Garcia told Perea that he was too


4
      The police obtained video showing that defendant had been with Perea when Perea
cashed Garcia‟s paycheck.

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drunk to drive, and Perea volunteered to take over driving. Perea moved to the driver‟s
seat. Garcia got into the backseat and fell asleep, and defendant moved to the front
passenger seat.
       After Perea took over as driver, Perea told defendant that Garcia “had some
money,” and “we‟re going to steal the car and the money.” Perea told defendant that
Garcia “had about a thousand dollars on him.” Defendant testified: “I thought he was
just playing around.” Defendant‟s testimony was unclear about whether he told Perea
                                                        5
that he would help him steal Garcia‟s money and car. He testified that he was “really
drunk” and tired at that point. “I felt dizzy. I could see things, but it was all very blurry,
very confusing. I didn‟t feel the same as one would feel when one is normal.” Defendant
fell asleep for a while, and when he awoke he saw a sign that said Arroyo Seco. He fell
back to sleep and awakened when the car came to a stop.
       Perea shook him and told him to “get up.” Defendant got out of the car feeling
drunk and dizzy. Perea was outside the car with a “metal thing” in his hand. Garcia
remained asleep in the back seat. Perea “woke [Garcia] up by hitting him a few times” in
the head. Garcia “got up and he was all confused or upset.” Garcia was “[v]ery, um,
riled up. Violent.” Asked to be more specific about Garcia‟s conduct, defendant testified
that Garcia was “trying to get up and looking around to see who hit him, to see what
happened.” Perea “held on to” Garcia. Perea “yell[ed]” at defendant “to hit him, that I
had to beat him.” “[H]e kept on insisting. And then he said if I didn‟t do it, that he,
[Garcia], would hit me or that he would kill me.” Perea, who was about six feet away




5
       This colloquy occurred during direct examination: “Q Did you tell him you
would help take the car and the money? [¶] A Yes. He just told me he has money,
we‟re going to take the car. And but he didn‟t tell me at that time to help him. [¶] Q
And you didn‟t say to him -- did you say to him, „I‟ll help you do that,‟ at that time? [¶]
A No.” Defendant was testifying through an interpreter.

                                               5
from defendant when he made these statements, “gave me the metal thing. He said,
„Take it. Hit him.‟ ” Garcia said nothing.
       Defendant testified: “[T]he way that [Perea] was acting, and so was [Garcia], I
was afraid of something happening to me. I was confused.” He was afraid that Perea
might “[p]erhaps beat me or something like that.” However, defendant testified that
Perea was not “being threatening and violent” but “was only acting differently from what
I know him.” Defendant was also concerned that Garcia “might harm [him] in some
way.” Defendant was afraid that Perea “might let [Garcia] go and that he would come at
me.” Perea continued to hold Garcia. “I ended up hitting him when my uncle told me
to.” Defendant hit Garcia four or five times in the head, and Garcia lost consciousness
and fell to the ground. Perea then dragged Garcia to the edge of the bridge. Defendant
could hear that Garcia was still breathing. Defendant was “very afraid,” and he followed
Perea. Defendant grabbed Garcia‟s feet, and they threw Garcia off the bridge.
       As soon as they got back in the car, defendant asked Perea if he had gotten the
money. The next day, Perea showed him the checks, and “he wanted for me to cash one
and he was going to cash another one.” They “went to the store to cash them.” Perea
cashed both of the checks. Perea told defendant “not to say anything, that nothing
happened.”


                              III. Procedural Background
       The defense asserted in its trial brief that it would present evidence that “any
participation by [defendant] in the robbery which resulted in death was due to duress or
threats of his older uncle.” The prosecution‟s trial brief “conceded that duress could be a
defense to felony murder if substantial evidence of duress is shown. And if so,
Defendant would be entitled to such a jury instruction.”
       At the instruction conference after the close of evidence, the defense requested
duress instructions (CALCRIM No. 3402). Defendant‟s trial counsel argued to the court

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that defendant‟s testimony reflected that there had been “an implied threat [from] his
uncle, not the other man . . . I‟m arguing the threat was from the uncle. And that was
based on his conduct.” The court rejected the request. “From a review of the evidence
there does not appear to be any implied or explicit threat. There is no showing that there
was an immediate threat. In fact, . . . the uncle is holding onto the victim while asking
the defendant to strike the victim.” “There is no evidence, much less substantial
evidence, of immediate danger. . . . I don‟t see how any rational, reasonable jury could
conclude that the defendant‟s belief was reasonable.” The jury was instructed on both
premeditated murder and felony murder.
       The jury returned guilty verdicts on all three counts and found the special
circumstance allegation true. The court exercised its discretion under section 190.5,
subdivision (b), due to the fact that defendant was 17 years old at the time of the murder,
and committed defendant to state prison to serve a term of 25 years to life for the murder
count. The prosecution recommended that the court impose “five years on the robbery;
and that the auto theft be ruled 654, stayed sentencing on that, pursuant to 654.” The
court imposed a three-year term for the robbery count. It rejected the prosecution‟s
assertion that section 654 applied to the driving or taking a vehicle count and imposed an
unstayed concurrent two-year term for that count. “As to Count 3, the 10851, the Court
does not find 654 is applicable here as to a 10851 as separate elements, and the robbery
was not just for the car, but other items.” Defendant timely filed a notice of appeal from
the judgment.


                                      IV. Discussion
                   A. Court’s Refusal To Give Duress Instructions
       Duress is a defense to a crime not punishable by death where the person
“committed the act or made the omission charged under threats or menaces sufficient to



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show that they had reasonable cause to and did believe their lives would be endangered if
they refused.” (§ 26.)
       “Defendant needs to raise only a reasonable doubt that he acted in the exercise of
his free will. [Citation.] In order to show that his act was not the exercise of his free
will, defendant must show that he acted under an immediate threat or menace. [Citation.]
„Because of the immediacy requirement, a person committing a crime under duress has
only the choice of imminent death or executing the requested crime. The person being
threatened has no time to formulate what is a reasonable and viable course of conduct nor
to formulate criminal intent. The unlawful acts of the person under duress are attributed
to the coercing party who supplies the requisite mens rea and is liable for the crime.
[Citation.]‟ [Citation.] Decisions upholding the duress defense have uniformly involved
„ “a present and active aggressor threatening immediate danger.” ‟ ” (People v. Petznick
(2003) 114 Cal.App.4th 663, 676 (Petznick).)
       Although duress is not a defense to murder, “duress can, in effect, provide a
defense to murder on a felony-murder theory by negating the underlying felony.
[Citations.] If one is not guilty of the underlying felony due to duress, one cannot be
guilty of felony murder based on that felony.” (People v. Anderson (2002) 28 Cal.4th
767, 784.) “Although a number of cases in this state have held that the fear must literally
be of death, . . . the fine distinction between fear of danger to life and fear of great bodily
harm is unrealistic. . . . [H]owever, the threat must be of present, immediate harm, not
future violence.” (People v. Perez (1973) 9 Cal.3d 651, 657-658, citations omitted.)
       “A trial court is required to instruct sua sponte on a duress defense if there is
substantial evidence of the defense and if it is not inconsistent with the defendant's theory
of the case.” (People v. Wilson (2005) 36 Cal.4th 309, 331 (Wilson).) “ „Substantial
evidence is “evidence sufficient „to deserve consideration by the jury,‟ not „whenever any
evidence is presented, no matter how weak.‟ ” ‟ ” (Wilson, at p. 331.)



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       The issue here is whether there was substantial evidence that Perea made “threats
or menaces” that were sufficient to create “reasonable cause” for defendant to believe
that his life would be immediately endangered if he did not participate in the robbery of
Garcia. The trial court correctly concluded that there was not.
       Defendant did not describe anything approaching a threat or menace by Perea.
When Perea first mentioned the plan to rob Garcia, Perea simply said that “we” were
going to steal Garcia‟s money and car. After Perea stopped the car at the bridge, Perea
told defendant: “We have to hit him.” Although defendant claimed in his statement that
“it was like he forced me,” the only thing he mentioned Perea doing was hitting Garcia
and telling defendant that he would hold Garcia and defendant should “ „go ahead and hit
him a few times.‟ ” No evidence of threat or menace by Perea was mentioned.
       Defendant‟s trial testimony, while more detailed, also failed to mention any threat
or menace by Perea. Defendant testified that, after Perea hit Garcia, Garcia got up and
seemed “upset,” “riled up,” and “[v]iolent,” though Garcia said nothing Perea told
defendant that “he, [Garcia], would hit me or that he would kill me” if defendant did not
hit Garcia. Because Perea was holding Garcia at that time, Garcia posed no immediate
threat to defendant. However, defendant testified that he was afraid that Perea “might let
[Garcia] go and that he would come at me” and “might harm [him] in some way.”
       Any menace that defendant may have perceived that Garcia posed to him was
irrelevant to a duress defense because Garcia was not the “ „coercing party‟ ” who was
attempting to obtain defendant‟s participation in the robbery. (Petznick, supra, 114
Cal.App.4th at pp. 675-676.) Only threats or menace by Perea could possibly supply the
requisite evidence to support a duress defense. Defendant claims that Perea made an
“implied threat to release the angry Garcia.” Yet defendant‟s testimony did not disclose
that Perea made even an implied threat to do so. Defendant testified that Perea said that
Garcia would hit or kill defendant if defendant did not hit Garcia, but his testimony
provided no reasonable basis for a belief that Perea would release Garcia if defendant did

                                             9
not hit Garcia. Defendant knew that Perea‟s goal was to steal Garcia‟s money and car.
Releasing Garcia before he had accomplished this goal would hinder this plan. As there
was no evidence that Perea had any animosity toward defendant, there was no reasonable
basis for defendant‟s speculative fear that Perea would purposely free Garcia so that
Garcia could harm defendant.
       Defendant‟s only testimony about Perea’s statements and conduct did not disclose
any threats or menace by Perea. Defendant testified that Perea “yell[ed]” at him “to hit
[Garcia], that I had to beat him.” “[H]e kept on insisting.” Defendant testified: “[T]he
way that [Perea] was acting, and so was [Garcia], I was afraid of something happening to
me. I was confused.” He was afraid that Perea might “[p]erhaps beat me or something
like that.” However, defendant testified that Perea was not “being threatening and
violent” but “was only acting differently from what I know him.”
       Thus, at most, defendant‟s testimony disclosed that he was “afraid of something
happening to me” and feared that Perea might “beat me or something like that” even
though Perea was not “being threatening or violent” and had done nothing more than
“yell[ed]” and “insist[ed]” that defendant participate. Defendant‟s subjective fears alone
were inadequate to support duress instructions. Duress is a defense only where fears
arise from “threats or menace” and are “sufficient” to provide “reasonable cause” to
believe one‟s life is in danger. Here, Perea made no threats and exhibited no menace.
Hence, there was no “reasonable” basis for defendant‟s fears. Such evidence falls far
short of raising a reasonable doubt that defendant‟s participation was coerced by “threats
or menaces sufficient to” provide “reasonable cause” for believing that his life would be
endangered if he did not comply. The trial court did not err in refusing to give duress
instructions.




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                                       B. Section 654
       “The initial inquiry in any section 654 application is to ascertain the defendant‟s
objective and intent. If he entertained multiple criminal objectives which were
independent of and not merely incidental to each other, he may be punished for
independent violations committed in pursuit of each objective even though the violations
shared common acts or were parts of an otherwise indivisible course of conduct.”
(People v. Beamon (1973) 8 Cal.3d 625, 639.) “ „The defendant‟s intent and objective are
factual questions for the trial court; . . . there must be evidence to support a finding the
defendant formed a separate intent and objective for each offense for which he was
sentenced.‟ ” (People v. Coleman (1989) 48 Cal.3d 112, 162.) “A trial court‟s express or
implied determination that two crimes were separate, involving separate objectives, must
be upheld on appeal if supported by substantial evidence.” (People v. Brents (2012) 53
Cal.4th 599, 618.)
                      1. Sentences For Both Murder and Robbery
       Defendant contends that the trial court should have stayed the term it imposed for
the robbery count because the robbery and the murder were parts of an indivisible
transaction. He claims that the jury‟s special circumstance finding necessarily
established that the jury relied on a felony-murder theory and, in his view, “Section 654
bars separate punishment for a felony when it is the basis for a first degree murder
conviction.”
       The jury‟s true finding on the special circumstance allegation did not necessarily
establish that the jury proceeded on a felony-murder theory in finding defendant guilty of
murder. The jury could have concluded that a premeditated killing occurred in the
commission of the robbery. The evidence supported a finding that, after Garcia had been
knocked unconscious to permit the taking of his wallet and car, thus accomplishing the
robbery, Perea and defendant made a willful, deliberate, and premeditated decision to
throw him off of the bridge knowing that he would drown in the water below. The fact

                                              11
that the killing was an afterthought to the robbery did not preclude a finding that the
special circumstance was true. “[T]he killing „need not occur in the midst of the
commission of the felony, so long as that felony is not merely incidental to, or an
afterthought to, the killing.‟ ” (People v. Elliot (2005) 37 Cal.4th 453, 475.) Here, the
opposite was true. The killing was an afterthought to the robbery. Therefore, the special
circumstance finding did not preclude a conclusion that section 654 did not apply,
       Substantial evidence supports the trial court‟s implied finding that the murder had
an objective separate from the robbery. The robbery was committed to obtain Garcia‟s
money and car. Before the murder, Garcia had already been knocked unconscious, and
Perea had taken unchallenged possession of Garcia‟s wallet and car. The only possible
reason for throwing Garcia off the bridge was to dispose of the sole witness to the
robbery in hopes of avoiding identification as the robbers. While these objectives are not
unrelated, the trial court could have concluded that they were sufficiently distinct to
warrant separate punishment.
          2. Sentences For Both Robbery and Driving or Taking a Vehicle
       Defendant argues, and the Attorney General concedes, that substantial evidence
does not support the trial court‟s express finding that section 654 did not preclude
separate sentences for the robbery count and the driving or taking a vehicle count. We
agree. “[T]he taking of several items during the course of a robbery may not be used to
furnish the basis for separate sentences.” (People v. Bauer (1969) 1 Cal.3d 368, 376-
377.) Perea‟s plan from the start was to take both Garcia‟s money and his car. As the
taking of the car was one of the two objectives of the robbery, section 654 applies.


                                      V. Disposition
       The judgment is modified to reflect that the concurrent term imposed for the
driving or taking a vehicle count is stayed under section 654. The trial court is directed to
prepare an amended abstract of judgment reflecting this modification and to forward a

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certified copy of the amended abstract to the Department of Corrections and
Rehabilitation. The modified judgment is affirmed.




                                        _______________________________
                                        Mihara, J.



WE CONCUR:




_____________________________
Premo, Acting P. J.




_____________________________
Grover, J.




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