Filed 6/13/14 P. v. Santos CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E057284

v.                                                                       (Super.Ct.No. RIF1105634)

MICHAEL SANTOS,                                                          OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. John W. Vineyard, Judge.

Affirmed in part; reversed in part with directions.

         Martin Kassman, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Senior Assistant Attorney General, Charles C. Ragland, and

Kimberley A. Donohue, Deputy Attorneys General, for Plaintiff and Respondent.




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       Joshua Najera met Thomas Bedolla on a dating website. Najera agreed to meet

him at a nearby house. When Najera arrived, defendant took him into a garage, which

had been converted into a seating and sleeping area. Defendant, Najera and Bedolla sat

together talking. Najera got nervous and got up to leave. Defendant grabbed Najera’s

cellular telephone. Defendant turned on a stun gun he had behind his back and threatened

to “tase” him if he tried to leave. Najera was able to escape and his phone was later

found in defendant’s backyard. Defendant was convicted of first degree robbery and

false imprisonment.

       Defendant now contends on appeal as follows: (1) The prosecutor committed

misconduct during closing argument; (2) If he waived his claim of prosecutorial

misconduct, he received ineffective assistance of counsel; and (3) He was improperly

sentenced on the robbery count.

       Although the prosecutor committed misconduct, it was not prejudicial. We

remand for resentencing in order for the trial court to properly impose the sentence on the

first degree robbery conviction.




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                                               I

                             PROCEDURAL BACKGROUND

       Defendant was found guilty by a Riverside County jury of first degree robbery

(Pen. Code, § 211)1 and false imprisonment (§ 236). The jury found true the allegations

for both counts that during the commission of the offenses, defendant personally used a

deadly and dangerous weapon, a stun gun, in violation of section 12022, subdivision

(b)(1). After waiving his right to a jury trial, in a bifurcated proceeding, the trial court

found defendant had served four prior prison terms (§ 667.5, subd. (b)). The trial court

sentenced defendant to 11 years and 8 months in state prison.

                                               II

                                FACTUAL BACKGROUND

       On November 3, 2011, Joshua Najera visited a website used by homosexual men

to make dates and meet friends. Najera met a man named Thomas Bedolla on the

website and they spoke online for 15 to 20 minutes. They both discovered they were

located less than one mile from each other. Najera agreed to meet up with Bedolla.

       Najera drove to the house which was located on Lewis Avenue in Riverside.

When he arrived, defendant emerged from a side gate and met him outside. Najera

followed defendant back through the side gate and went in a door to the garage. Inside

the garage there was a bed, couch, computer and camera mounted on a tripod. Bedolla



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


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was sitting on the couch. Najera sat down next to him. Defendant sat across from them,

about two feet away.

       Najera noticed that it was smoky in the room and he asked them what they had

been smoking. They told him that they had been smoking “crack.” This made Najera

uncomfortable. Najera told them that he was going to leave. Najera stood up to leave.

He had his keys in one hand and his cellular telephone in the other hand. Defendant

grabbed at his keys but Najera was able to hold on to them. Defendant was able to take

his phone.

       Defendant got right into Najera’s face and told him he could not leave. Najera

saw a black object in defendant’s hand and he heard a crackling noise which he

recognized as a taser. Defendant told him not to do anything to make him “tase” him.

Najera had used a taser gun before and was familiar with the sound.

       Najera asked Bedolla to help him but he just sat on the couch. Defendant told

Najera that Bedolla was his friend and wasn’t going to help him. Defendant “smirked” at

him. Najera felt that if he tried to take his phone back from defendant, he would use the

taser on him.

       Najera then jumped over the couch and ran out of the garage. Defendant followed

him. Najera stopped for a moment and asked defendant to give him his phone back.

Defendant refused and went back to the backyard. Najera walked to a neighbor’s house

across the street to call the police.




                                            4
       Bedolla also testified. Bedolla had been to defendant’s house on one occasion

prior to November 3, 2011. Defendant had invited him to his house that morning for

breakfast. Bedolla talked online to Najera and invited him over to the house.

       Bedolla and defendant were in the garage. When Najera arrived, defendant went

outside to get him. Najera sat down next to Bedolla. At some point, defendant started

getting angry and talked about someone taking money from him. Najera appeared

confused and did not seem to know what defendant was talking about. Najera tried to

stand up to leave at one point and defendant pushed him on the chest back onto the

couch. Bedolla never saw defendant take Najera’s phone but he did hear Najera ask

defendant to give his phone back.

       Bedolla heard a clicking that sounded like an electrical noise coming from behind

defendant. Bedolla did not see anything in defendant’s hand. Bedolla thought the noise

sounded like a taser, which he had heard before on television. Najera jumped over the

couch and ran out of the garage.

       Najera spoke to the 911 operator and stated that his phone had been stolen. Najera

told the operator that “they” tried to keep him in the house by using a taser. They told

him he could not leave and then took his phone. Najera also said they were smoking

crack. Najera heard a zapping noise and saw something black in the right hand of the

person who took the phone. Najera advised the operator that he believed the men were

still in the house.




                                             5
       At approximately 9:30 a.m., Riverside Police Officer Cristina Arangure responded

to Najera’s 911 call. When Officer Arangure arrived, Najera was across the street from

defendant’s house and waved her down. Najera was shaking and was scared. Najera told

her that he had been robbed and the suspects were still across the street. A helicopter

arrived and made an announcement that the occupants of the house should step outside.

Two males stepped out into the backyard but then went back in the house. Eventually,

defendant’s brother let the police officers into the house. Defendant and Bedolla were

inside the house in a bedroom.

       In the garage, Officer Arangure found what she described as a stun gun2 sitting on

a bookshelf. The stun gun was operational. Najera’s phone was found inside the

branches of a potted plant in the backyard. The area was just outside the door of the

garage. Defendant showed the hiding location to Officer Arangure. The phone was

returned to Najera. Officer Arangure found three or four other phones in defendant’s

bedroom. No drugs or paraphernalia were found in the house or garage.

       Defendant presented no evidence.

                                                 III

                              PROSECUTORIAL MISCONDUCT

       Defendant asserts that the prosecutor committed misconduct during closing

argument by vouching for the strength of the case by invoking the prestige and reputation


       2      Officer Arangure indicated that a taser has wires that shoot out at the person
while a stun gun must be directly placed on a person. The weapon found in the garage
did not have wires and was a stun gun.


                                             6
of the district attorney’s office. Respondent agrees that the prosecutor committed

misconduct but argues that the claim has been forfeited because defense counsel failed to

object at the time of the misconduct, and regardless, the misconduct was not prejudicial.

Defendant contends that if we find that his claim has been forfeited, he received

ineffective assistance of counsel.

       A.     Additional Factual Background

       During the opening argument, the prosecutor argued as follows: “What happened

in this case is clear, ladies and gentlemen. What happened is the defendant is guilty as

charged, as charged. The charges that were brought by the People in this case are true.

Those charges we wouldn’t have charged him with them if they were not. The evidence

has proven that beyond a reasonable doubt.” Defense counsel objected on the ground it

misstated the law. The trial court overruled the objection.

       B.     Prosecutorial Misconduct

       ‘“Under California law, a prosecutor commits reversible misconduct if he or she

makes use of “deceptive or reprehensible methods” when attempting to persuade either

the trial court or the jury, and it is reasonably probable that without such misconduct, an

outcome more favorable to the defendant would have resulted. [Citation.].”3 (People v.

Fuiava (2012) 53 Cal.4th 622, 679.)



       3      We note that defendant specifically states in his opening brief that there
was no federal due process violation and makes no claim that his federal constitutional
rights were violated by the prosecutorial misconduct. As such, we only evaluate his
claim under the California Constitution.


                                             7
       ‘““In order to preserve a claim of misconduct, a defendant must make a timely

objection and request an admonition; only if an admonition would not have cured the

harm is the claim of misconduct preserved for review.” [Citation.]’” (People v.

Gonzales (2011) 51 Cal.4th 894, 920.)

       Defendant’s counsel objected to the prosecutor’s comments but on the ground that

it misstated the law, not that it was misconduct. Respondent argues the argument was

forfeited by this failure to contemporaneously object and request a jury admonition.

Defendant claims that an objection to the argument would have been futile and that an

admonition would not have cured the harm. In the alternative, he claims he received

ineffective assistance of counsel due to his counsel’s failure to properly object. Rather

than engage in a lengthy discussion of these issues, and for the sake of judicial economy,

we will the address the merits of defendant’s prosecutorial misconduct claim.

       “[I]t is misconduct for prosecutors to vouch for the strength of their cases by

invoking their personal prestige, reputation, or depth of experience, or the prestige or

reputation of their office, in support of it. [Citations.]” (People v. Huggins (2006) 38

Cal.4th 175, 206-207.) “‘Impermissible “vouching” may occur where the prosecutor

places the prestige of the government behind a witness . . . or suggests that information

not presented to the jury supports the witness’s testimony.’ [Citation.]” (People v.

Williams (1997) 16 Cal.4th 153, 257.) “Specifically, a prosecutor’s reference to his or

her own experience, comparing a defendant’s case negatively to others the prosecutor

knows about or has tried, is improper. [Citation.] Nor may prosecutors offer their




                                             8
personal opinions when they are based solely on their experience or on other facts outside

the record. [Citations.].” (Huggins, at p. 207.)

       In People v. Alvarado (2006) 141 Cal.App.4th 1577, the prosecutor stated (in

response to attacks by defense counsel alleging improper coaching of a prosecution

witness) that she had “a duty and I have taken an oath as a deputy District Attorney not to

prosecute a case if I have any doubt that that crime occurred. [¶] The defendant charged

is the person who did it.” (Id. at p. 1583, italics omitted.) The appellate court found

misconduct because it “impermissibly invited the jury to convict Alvarado based on her

opinion that he was guilty and on the prestige of her office . . . . The only reasonable

inference from these comments is that (1) the prosecutor would not have charged

Alvarado unless he was guilty, (2) the jury should rely on the prosecutor’s opinion and

therefore convict him, and (3) the jurors should believe [the witness] for the same

reason.” (Id. at p. 1585.)

       The comments made in this case are similar to those made in Alvarado. Here, the

prosecutor stated in opening argument that the charges would not have been filed by the

People if they were not true. Such statement improperly invoked the prestige of the

district attorney’s office and constituted prosecutorial misconduct.

       C.     Prejudice

       Having found that the prosecutor committed misconduct, we must determine

whether it was prejudicial. “[O]ur state law requires reversal when a prosecutor uses

‘deceptive or reprehensible methods to persuade either the court or the jury’ [citation]

and “‘it is reasonably probable that a result more favorable to the defendant would have


                                              9
been reached without the misconduct’” [citation].” (People v. Davis (2009) 46 Cal.4th

539, 612.)

       Here, the evidence that defendant was guilty was overwhelming. Defendant was

convicted of first degree robbery. Section 211 defines robbery as “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.” It is first degree robbery if

committed in an inhabited dwelling. (§ 212.5, subd. (a).) “The element of force or fear is

satisfied if the force or fear caused the victim to give up his or her property.” (People v.

Smith (1995) 33 Cal.App.4th 1586, 1595.)

       Here, Najera was taken by defendant to a small garage where Bedolla was waiting

for him. As they sat very close together, Bedolla and defendant disclosed they had been

smoking crack, which made Najera nervous. According to Najera, he stood up and tried

to leave, but defendant grabbed his phone against Najera’s will. Bedolla did not see

defendant take the phone but claimed defendant pushed Najera back onto the couch.

Thereafter, defendant threatened to use the stun gun on Najera if he tried to leave. Najera

felt that if he tried to get the phone back from defendant, he would use the stun gun on

him. Strong evidence established that defendant took Najera’s phone through the use of

force or fear.

       Defendant claims that if the misconduct had not occurred, the jury would have

found him only guilty of the lesser offense of petty theft which does not require force or

fear. However, if a defendant uses force or fear to retain an item, he is guilty of robbery.

(People v. McKinnon (2011) 52 Cal.4th 610, 686-687.) The evidence clearly established


                                             10
that defendant either took the phone through the use of force, or retained the phone

through the use of force or fear. It is not reasonably probable that a result more favorable

to defendant would have been reached by the jury if the misconduct had not occurred.

       Defendant also complains that if the misconduct did not occur, the jury would

have found him not guilty of false imprisonment. He claims that there was “room for

reasonable doubt” as to whether he succeeded in confining him for an appreciable length

of time. “False imprisonment is the unlawful violation of the personal liberty of

another.” (§ 236.) It occurs when the defendant intentionally restrains, confines or

detains another person without his or her consent for “‘“an appreciable length of time,

however short.”’” (Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, 715.) Here, defendant

took Najera’s phone and then threatened him not to leave while holding a stun gun

behind his back. Najera asked Bedolla for help, but he refused. Defendant told him that

Bedolla was not going to help him. At that point, Najera escaped. This “short” amount

of time was sufficient to establish false imprisonment and it is not reasonably probable

the jury would have found otherwise if the misconduct had not occurred.

       Defendant points to the fact that the deliberations continued for almost two days in

arguing that the misconduct was prejudicial. The deliberations began in the early

afternoon at the conclusion of argument, then continued for another day, and finished at

some point on the following day. However, the length of deliberations “permits more

than a single interpretation of its meaning.” (In re Pratt (1999) 69 Cal.App.4th 1294,

1322.) Here, based on the totality of the circumstances, the length of deliberations did

not necessarily mean that this was a close case.


                                            11
       Based on the foregoing, we find that any misconduct committed by the prosecutor

was not prejudicial. It follows that if we were to conclude that defendant received

ineffective assistance of counsel due to his counsel’s failure to object, he could not

establish prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687, 694 [prejudice

is shown by “a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.”].) We reject defendant’s claim that

reversal is warranted.4

                                                    IV

                                           SENTENCING

       Defendant contends the trial court improperly sentenced him on the first degree

robbery count and that remand for resentencing is necessary. Respondent agrees remand

to the trial court for clarification of the sentence is appropriate.

       A.     Additional Factual Background

       Defendant was convicted of first degree robbery. The probation officer’s report

stated that defendant was convicted of second degree robbery. As for the exposure

calculation, the probation report stated that the robbery was second degree and that the

sentencing range was two, three and five years.

       In his sentencing memorandum, defendant requested probation, and in the

alternative, the low term of two years on the robbery. In its sentencing memorandum, the


       4      Since we conclude that the misconduct in this case is not prejudicial,
mandatory reporting of the prosecutor to the California State Bar is not required. (Bus. &
Prof. Code, § 6086.7, subd. (a)(2); Cal. Code Jud. Ethics, canon 3D(2).)


                                               12
People stated that the maximum sentence was 15 years but recommended a sentence of

11 years and 8 months. The prosecutor recommended that defendant be sentenced to the

midterm of six years on the first degree robbery, one year for the use of the stun gun,

eight months for the false imprisonment charge, and an additional four years for the prior

prison terms.

       At the time of sentencing, the trial court first noted it had read the probation report

and the sentencing memorandums filed by both defendant and the People. Defendant’s

counsel stated that the proper sentencing range was two, four and five years because it

occurred in a detached garage. Defendant’s counsel argued a second degree robbery

sentence was appropriate. The trial court responded, “I will say I did see that

discrepancy. I went back and looked at the verdict forms signed by the jury, and the

verdict was first degree. For whatever reason that may be, they apparently found the

elements of first degree, and I have used the sentencing recommendations for that first

degree.”

       The prosecutor responded that defendant should be sentenced on first degree

robbery. There was no dispute during the trial as to whether it was first or second degree

robbery.

       The trial court moved to sentencing. It stated as follows: “In selecting the

appropriate prison term for each count, Court has considered the aggravating and

mitigating circumstances pursuant to Rules of Court 4.421 and 4.423. As to Count 1,

which the Court finds that the principal term, I am going to impose the middle term of six

years.”


                                             13
       B.     Analysis

       The punishment for the commission of first degree robbery generally is three, four

or six years. (§ 213, subd. (a)(1)(B).) However, “[i]f the defendant, voluntarily acting in

concert with two or more other persons, commits the robbery within an inhabited

dwelling house,” then the punishment is three, six or nine years. (§ 213, subd. (a)(1)(A).)

Section 213, subdivision (a)(1)(A) “operates as a sentence enhancement.” (In re

Jonathan T. (2008) 166 Cal.App.4th 474, 482.) As a result, in order to be sentenced

pursuant to section 213, subdivision (a)(1)(A), the allegation must be pleaded in the

information and found true beyond a reasonable doubt by the trier of fact. (Ibid.)

       Here, the information did not allege that defendant acted in concert in committing

the robbery. The jury was instructed that in order to find defendant guilty of first degree

robbery it must find that, “[t]he robbery was committed in an inhabited dwelling. A

dwelling is inhabited if someone lives there and either is present or has left but intends to

return.” The jury did not make a finding that defendant acted in concert when

committing the robbery. Hence, the proper sentencing range was three, four or six years.

(§ 213, subd. (a)(1)(B).)

       As noted, the trial court stated that it was imposing the middle term of six years as

to first degree robbery. Remand is appropriate in order for the trial court to resentence

defendant on count 1 taking into account the proper sentencing scheme set forth in

section 213, subd. (a)(1)(B).




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                                              V

                                       DISPOSITION

       Defendant's convictions are affirmed, as are his sentences for the false

imprisonment count, the enhancements and the prior/prison enhancements. His sentence

for count 1 is reversed and the matter is remanded to the trial court in order for it to

impose the appropriate sentence as stated in this opinion. Once defendant is resentenced,

the trial court shall forward of copy of the abstract of judgment to the Department of

Corrections and Rehabilitation.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                                 RICHLI
                                                                                           J.

We concur:


HOLLENHORST
          Acting P. J.


CODRINGTON
                           J.




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