Filed 9/12/16 P. v. Santoyo CA1/5

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE




THE PEOPLE,

         Plaintiff and Respondent,                                          A144703

         v.                                                                 (Solano County
                                                                            Super. Ct. No. FCR305934)
GABRIEL H. SANTOYO,

      Defendant and Appellant.
_____________________________________/

         A jury convicted Gabriel H. Santoyo of second degree robbery (Pen. Code, § 211) 1
and the trial court found he had a prior serious felony conviction (§ 667, subd. (a)(1)
(serious felony prior)) and had served a prison term for that conviction (§ 667.5, subd. (a)
(prison prior)). The court sentenced Santoyo to three years in state prison.
         Santoyo appeals. He contends the court erred by failing to instruct the jury with
CALCRIM No. 358, which directs the jury to consider a defendant’s inculpatory
statements with caution, and with CALCRIM No. 359, the corpus delicti rule. Santoyo
also argues — and the People agree — the sentencing minute order and abstract of
judgment should be modified.


1
         Unless noted, all further statutory references are to the Penal Code.


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       We modify the sentencing minute order and abstract of judgment. As modified,
we affirm.
                   FACTUAL AND PROCEDURAL BACKGROUND
       The prosecution charged Santoyo with second degree robbery (§ 211) and alleged
a five-year enhancement for the serious felony prior (§ 667, subd. (a)(1)) and a three-year
enhancement for the prison prior (§ 667.5, subd. (a)).
Prosecution Evidence
       In February 2014, Katy Herrman was working at Sam’s Club in Vacaville when
she heard “an alarm go off[.]” Hermann walked toward a fire exit door, where customers
were not allowed, and “poked [her] head out” the door. She saw a man — later identified
as Santoyo — “grabbing merchandise” from a shopping cart and placing it into a red
Nissan sedan. Herrman was close to Santoyo and got a “good look” at him. Herrman
“grabbed” the shopping cart from Santoyo and heard him say — “clear as day” — “‘Back
off. I have a gun.’” Herrman did not see a gun, but she was afraid Santoyo could “pull
[the gun] out . . . when someone says they have a gun, that’s your life on the line.”
       Another Sam’s Club employee, Jesus Garcia, arrived and saw Santoyo loading
store items from a shopping cart into a car. He also saw Herrman wrestling the cart from
Santoyo. Garcia heard Herrman whisper, “‘get back. He has a gun.’”2 Herrman seemed
“shaken” and there was “panic in [her] voice.” Hermann pulled the shopping cart back
into the store and the fire door closed. Then Herrman and Garcia heard a door slam; they
looked out the fire door and saw Santoyo driving away. Herrman and Garcia saw the
license plate number and repeated it aloud so they “didn’t forget it.” The entire incident
lasted about “10, 20 seconds. It was fairly quick.”
       An assistant manager called the police. Shortly thereafter, police officers found
Santoyo moving Sam’s Club merchandise between a red Nissan and another car. The
officers also found a “BB look-a-like replica gun” in the trunk of Santoyo’s car. Santoyo
took $326.40 of merchandise from Sam’s Club.


2
       Garcia was not close to Santoyo and did not hear him speak to Herrman.

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Closing Argument and Jury Instructions
       During closing argument, defense counsel argued there was “no evidence”
Santoyo “possessed a gun, brandished a gun, pointed a gun . . . during this theft” and
urged the jury to “use caution in evaluating whether or not an oral statement was made.”
Counsel explained, “there is a jury instruction that’s directly on point that is the law that I
am going to refer you to. And that’s CALCRIM [No.] 358. . . . And this references a
defendant’s oral statement. [¶] . . . what it says is, ‘You have heard evidence that the
defendant made an oral or written statement before trial. You must decide whether or not
the defendant made any such statements in whole or in part. If you decide that the
defendant made such a statement, consider the statement along with all other evidence in
reaching your verdict. It is up to you to decide how much importance to give to such a
statement. You must consider with caution evidence of a defendant’s oral statement
unless it was written or otherwise recorded.’”
       Defense counsel continued: “Now, what this law cautions you to do is to be
cautious about statements that were just spoken but not otherwise written or recorded.
Does that mean we give it no weight? No. But we have to view such statements with
caution. And that’s because in everyday life when we are just talking about day-to-day
conversation, think about how many times somebody has said something to you on an
everyday basis, and you ask them, ‘What did you say?’ to clarify because you were not
accurate — you did not accurately hear what that person said.” Counsel argued
Herrman’s “memory” of the incident was “inaccurate” and “unclear” because she was
“under a significant amount of shock.” Defense counsel also “caution[ed]” the jury to
“accept whether or not Mr. Santoyo ever made those statements” to Herrman.
       The court instructed the jury with CALCRIM No. 226, which advised the jury to
consider, among other things, how well a witness could “see, hear, or otherwise perceive
the things about which the witness testified,” how well the witness was “able to
remember and describe to you what happened,” and whether the witness’s testimony was
influenced by “bias, prejudice, a personal relationship with someone involved in this case
or a personal interest in how this case is decided[.]” The court also instructed the jury


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with CALCRIM Nos. 105 and 302 on how to determine the credibility of witnesses’
statements and testimony, and how to evaluate conflicting evidence.
       After the jury began to deliberate, defense counsel requested the court instruct the
jury with CALCRIM Nos. 358 and 359. The court declined to give CALCRIM No. 358,
concluding Santoyo’s threat regarding the gun was “an element of the offense” and the
instruction applied only to admissions or confessions. The court also declined to instruct
the jury with CALCRIM No. 359.
Verdict and Sentence
       In January 2015, the jury convicted Santoyo of second degree robbery (§ 211) and
the court found both the serious felony prior (§ 667, subd. (a)(1)) and prison prior (§
667.5, subd. (a)) enhancements true. At the March 2015 sentencing hearing, the court
imposed the middle term of three years in state prison.
                                      DISCUSSION
                                             I.
                   Failing to Instruct the Jury with CALCRIM No. 358
                                   Was Harmless Error
       Santoyo claims the court erred by failing to instruct the jury to view his statement,
“Back off. I have a gun” with caution pursuant to CALCRIM No. 358. The People
concede the court erred by refusing to give the instruction, but claim the error was
harmless. We agree.
       CALCRIM No. 358 — often referred to as the “cautionary instruction” —
provides in relevant part: “You have heard evidence that the defendant made [an] oral . . .
statement (before the trial/while the court was not in session). You must decide whether
the defendant made any . . . statement, in whole or in part. If you decide that the
defendant made such [a] statement, consider the statement, along with all the other
evidence, in reaching your verdict. It is up to you to decide how much importance to
give to the statement. [¶] [Consider with caution any statement made by [a] defendant
tending to show [his] guilt unless the statement was written or otherwise recorded.]”




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       At the time of Santoyo’s January 2015 trial, the court had a sua sponte duty to give
CALCRIM No. 358. (See People v. Diaz (2015) 60 Cal.4th 1176, 1190 (Diaz).) In Diaz,
however, our Supreme Court eliminated the sua sponte duty to give the instruction. (Id.
at pp. 1189, 1195.) We need not decide whether Diaz’s holding applies retroactively
because it is not reasonably probable Santoyo would have received a more favorable
result had the instruction been given. (See id. at pp. 1195-1196 [declining to decide
whether new rule applied retroactively, and concluding the failure to instruct was
harmless]; People v. Miranda (2015) 236 Cal.App.4th 978, 990 [same].)
       The error in declining to give the cautionary instruction was harmless because
defense counsel read CALCRIM No. 358 to the jury, and the court instructed the jury
with CALCRIM Nos. 105, 226, and 302 on how to assess witness credibility. (Diaz,
supra, 60 Cal.4th at p. 1191.) “These general instructions, like the cautionary instruction,
‘aid the jury in determining whether [the defendant’s extrajudicial statement] was in fact
made.’” (Ibid.) “‘[W]hen the trial court otherwise has thoroughly instructed the jury on
assessing the credibility of witnesses,’” the courts have “‘concluded the jury was
adequately warned to view their testimony with caution.’” (Id. at p. 1196; see also
People v. Andrade (2015) 238 Cal.App.4th 1274, 1300 (Andrade) [error in declining to
give cautionary instruction was harmless in part because the trial court instructed the jury
with CALCRIM No. 226].) Under the circumstances, the court’s failure to instruct the
jury with CALCRIM No. 358 was not prejudicial. (People v. Dickey (2005) 35 Cal.4th
884, 905-906.)
       The error did not, as Santoyo contends, violate his rights to due process and a fair
trial. It is well settled “‘“[m]ere instructional error under state law regarding how the jury
should consider evidence does not violate the United States Constitution,”’” nor does
“‘“[f]ailure to give the cautionary instruction . . . make the trial fundamentally unfair.”’”
(Andrade, supra, 238 Cal.App.4th at p. 1300, quoting People v. Dickey, supra, 35 Cal.4th
at p. 905; see also Diaz, supra, 60 Cal.4th at p. 1196.)




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                                             II.
                  Any Assumed Error in Failing to Instruct the Jury with
                           CALCRIM No. 359 Was Harmless
       Santoyo argues the court erred by failing to instruct the jury with CALCRIM No.
359, the corpus delicti rule. CALCRIM No. 359 provides in relevant part: “The
defendant may not be convicted of any crime based on [his] out-of-court statement[s]
alone. You may rely on the defendant’s out-of-court statements to convict [him] only if
you first conclude that other evidence shows that the charged crime [or a lesser included
offense] was committed. [¶] That other evidence may be slight and need only be enough
to support a reasonable inference that a crime was committed. [¶] . . . [T]he identity of the
person who committed it [and the degree of the crime] may be proved by the defendant’s
statement[s] alone. [¶] You may not convict the defendant unless the People have proved
[his] guilt beyond a reasonable doubt.”
       “‘Whenever an accused’s extrajudicial statements form part of the prosecution’s
evidence, the cases have additionally required the trial court to instruct sua sponte that a
finding of guilt cannot be predicated on the statements alone. [Citations.]’ [Citation.]
‘Error in omitting a corpus delicti instruction is considered harmless, and thus no basis
for reversal, if there appears no reasonable probability the jury would have reached a
result more favorable to the defendant had the instruction been given. [Citations.]’
[Citation.]” (Andrade, supra, 238 Cal.App.4th at p. 1299.) As long as there is “‘a slight
or prima facie showing’ permitting an inference of injury, loss, or harm from a criminal
agency, after which the defendant’s statements may be considered to strengthen the case
on all issues. [Citations.]” (People v. Alvarez (2002) 27 Cal.4th 1161, 1181.) “If, as a
matter of law, this ‘slight or prima facie’ showing was made, a rational jury, properly
instructed, could not have found otherwise, and the omission of an independent-proof
instruction is necessarily harmless.” (Id. at p. 1181.)
       Here, any assumed error in failing to instruct the jury with CALCRIM No. 359
was harmless. (Andrade, supra, 238 Cal.App.4th at p. 1299.) In closing argument,
defense counsel conceded a theft occurred, and the evidence that Santoyo committed


                                              6
robbery was strong. Herrman and Garcia testified Santoyo took items from Sam’s Club
without paying for them, and Sam’s Club merchandise was found in Santoyo’s car.
Herrman testified Santoyo told her to “[b]ack off” because he had a “gun” and she
repeated this statement to Garcia. While Garcia did not hear Santoyo threaten Herrman
— possibly because he was out of earshot — Herrman seemed “shaken” and there was
“panic in [her] voice” which tended to corroborate the threat. Moreover, police found a
replica gun in Santoyo’s trunk, adding credence to Herrman’s testimony that Santoyo
made the threatening statement. We conclude any failure in instructing the jury with
CALCRIM No. 349 was harmless. (People v. Alvarez, supra, 27 Cal.4th at pp. 1181-
1182; People v. Rosales (2014) 222 Cal.App.4th 1254, 1261.)
                                             III.
                 The Sentencing Minute Order and Abstract of Judgment
                                  Must Be Modified
       As stated above, the court found true the serious felony prior (§ 667, subd. (a)(1))
and prison prior (§ 667.5, subd. (a)) enhancements.
       A.     The Sentencing Hearing
       At the sentencing hearing, the prosecutor argued sentencing Santoyo “on the
nickel prior would be . . . abusive” and requested a two-year prison sentence. At the
prosecution’s request, the court dismissed the serious felony prior (§ 667, subd. (a)(1))
“[i]n the interest of justice.”3 The court indicated its intention to impose the “low term of
two years” and stated: “. . . I am going to impose the one year for the prison prior because
he went to prison on the 211 and didn’t remain free of prison custody for a five-year
period for a total sentence of three years.” After holding an unreported conference with
the attorneys, the court remarked: “Counsel pointed out the sentencing on the prison
prior. So I will strike the prison prior and just impose the midterm of three years . . . and
I will stay — I will impose the prison prior and stay it. Can I run this concurrent?” The

3
       On page 188 of the reporter’s transcript, there is a handwritten “(a)” in pencil next
to “6678.” On page 190 of the reporter’s transcript, there is no typed or handwritten
“(a).” The parties agree the “6678” refers to section 667, subdivision (a)(1), and that the
court dismissed the serious felony prior (§ 667, subd. (a)(1)) at the sentencing hearing.

                                              7
prosecutor responded, “I think so. Although, I have to confess, I could be wrong.” The
court responded, “I [would] rather just stay it to be safe” and defense counsel replied,
“[r]ight.” Then the court responded, “654. . . . [¶] Same three years. But I will run it
midterm, finding the aggravating circumstances and mitigating circumstances balance
each other out.”
       B.     The Sentencing Minute Order and Abstract of Judgment
              Must be Modified
       The sentencing minute order and abstract of judgment contradict the reporter’s
transcript: they state the court dismissed the prison prior (§ 667.5, subd. (a)) and stayed
the serious felony prior (§ 667, subd. (a)(1)). The parties agree these documents should
be modified because they conflict with the court’s oral pronouncement of judgment.
They are correct. “‘Where there is a discrepancy between the oral pronouncement of
judgment and the minute order or the abstract of judgment, the oral pronouncement
controls.’ [Citations.]” (People v. Vega (2015) 236 Cal.App.4th 484, 506.) The
sentencing minute order and abstract of judgment must be modified to reflect the court’s
dismissal of the prior serious felony (§ 667, subd. (a)(1)) at the sentencing hearing.
       The parties also agree the court erred by staying the prison prior (§ 667.5, subd.
(a)) at the sentencing hearing. They are correct. “[W]hen the court imposes a
determinate sentence, the imposition of an additional term under section 667.5 is
mandatory unless the additional term is stricken.” (People v. White Eagle (1996) 48
Cal.App.4th 1511, 1521; People v. Haykel (2002) 96 Cal.App.4th 146, 151 [a section
667.5 enhancement may be imposed or stricken, not stayed].) The People urge us to
remand to resentence Santoyo on the prison prior. We decline to do so. It is unnecessary
to remand the matter to the trial court to decide whether to impose or strike the prison
prior pursuant to section 667.5, subdivision (a), because it is clear from comments made
by counsel and the court at the sentencing hearing that the court did not intend to impose
the prison prior and intended Santoyo serve a total prison term of three years. We will
strike the improperly stayed prior prison term enhancement (§ 667.5, subd. (a)) and




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modify the sentencing minute order and abstract of judgment. (See People v. White
Eagle, supra, 48 Cal.App.4th at p. 1521.)
                                      DISPOSITION
       The March 24, 2015 sentencing minute order and abstract of judgment are
modified to strike the serious felony prior (§ 667, subd. (a)(1)) and prison prior (§ 667.5,
subd. (a)) enhancements. The superior court clerk is directed to forward the amended
abstract of judgment to the Department of Corrections and Rehabilitation. In all other
respects, the judgment is affirmed.




                                                         _________________________
                                                         Jones, P.J.




We concur:


_________________________
Simons, J.


_________________________
Needham, J.




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