Filed 6/17/14 P. v. Padilla CA4/3




                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                  DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                     G048435

                   v.                                              (Super. Ct. No. 12NF0798)

JERALD PADILLA,                                                    OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Steven

D. Bromberg, Judge. Affirmed as modified with directions.
                   Susan S. Bauguess, 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, Assistant Attorney General, A. Natasha Cortina and

Paige B. Hazard, Deputy Attorneys General, for Plaintiff and Respondent.
                                              *              *               *
              A jury convicted defendant Jerald Padilla of assault with a semiautomatic

firearm (Pen. Code, § 245, subd. (b); count 1; all statutory references are to the Penal
Code unless otherwise stated), first degree residential burglary (§ 459; count 2) with a

nonaccomplice present (§ 667.5, subd. (c)(21)), and second degree robbery

(§§ 211/212.5, subd. (c); count 3). The jury also found true the allegation Padilla
personally used a firearm (§ 12022.5, subd. (a); counts 1-3; § 12022.53, subd. (b); count

3). Padilla complains insufficient evidence supports his robbery conviction, but we do

not find the contention persuasive. The parties agree we must modify the judgment to

stay the firearm use enhancement attached to the robbery conviction. The parties also

agree we should modify the judgment to accurately reflect presentence custody credit,

and the sentencing minutes should be amended to delete reference to the duration of

Padilla’s parole. As modified, we affirm the judgment.

                                              I

                       FACTUAL AND PROCEDURAL BACKGROUND
              On the morning of March 12, 2012, Margarita Reyes observed two young

Hispanic men, later identified as Padilla and Julian Robles, peeking into windows and

knocking at the door of her Anaheim neighbor, Alma Montes. For the previous six or
seven years, Reyes worked for Montes as a house cleaner two times per month, often

while Montes was not home, and was getting ready to clean Montes’s home when she

spotted the men. Reyes also babysat Montes’s grandchild in her own home three days a

week. Although Reyes did not have a key to Montes’s residence, she was provided one

on occasion, and knew how to gain entry without a key.

              Reyes phoned Montes. While on the phone, Reyes observed the men enter

Montes’s home through the garage, and informed Montes. Montes asked Reyes “to go



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over [there] and tell them to leave,” or “get them out of there.” Officer Gallacher

testified Montes stated she asked Reyes to go over, check on her house, see who was

inside, and find out what was happening.

              Reyes walked across the street and entered Montes’s garage through a side

door. She opened the door leading into the house and called out in Spanish, “‘Who is in

here? Because I’m going to clean the house.’” She saw the men rummaging in the

master bedroom, but they climbed through a window when they saw her. Reyes walked

outside, and saw one man run off. She encountered Padilla as she left through the garage

side door “waiting for [her] with a gun there.” He stood about eight feet from her but

said nothing. Reyes ran home. Montes arrived home to discover the burglars had stolen

wedding rings, keys, and cash.

              A neighbor living behind Montes grabbed Padilla in his front yard. Padilla

placed his hand near his pocket, and said, “‘I’m sorry. I’m sorry.’” Padilla broke free,

but a police officer found Padilla kneeling behind a trash can. He had some of Montes’s

jewelry, keys and cash. The officer found a loaded .32 caliber semiautomatic handgun

nearby. Another officer apprehended Robles.

              Following trial in February 2013, a jury convicted Padilla as noted above.
In May 2013, the trial court sentenced Padilla to an aggregate term of 19 years in prison,

comprised of the upper nine-year term for aggravated assault (count 1) plus a 10-year

firearm use enhancement (§ 12022.5, subd. (a)), a concurrent four-year midterm for

burglary (count 2), and a stayed (§ 654) three-year midterm for second degree robbery

(count 3). Padilla received presentence custody credit of 424 actual days, and 63 days of

conduct credit (§ 2933.1), for a total of 487 days.




                                              3
                                             II

                                        DISCUSSION
A.   Substantial Evidence Supports Padilla’s Robbery Conviction
              Padilla challenges both the trial court’s denial of his section 1118.1 motion

for judgment of acquittal made at the conclusion of the prosecution’s case,1 and the

sufficiency of the evidence supporting his robbery conviction involving Reyes.2 He

complains Reyes did not own the residence or the property, and did not have a special

relationship with Montes that would have given her a possessory interest or constructive

possession of the stolen property. We disagree.

              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.” We review the order denying Padilla’s motion

for judgment of acquittal, and the sufficiency of evidence to support the robbery

conviction, under the substantial evidence standard. (See People v. Cole (2004)

33 Cal.4th 1158, 1213 [appellate court reviews sufficiency of the evidence as it stood at

the time of the § 1118.1 motion].) Under this standard, we review the entire record in the

light most favorable to the judgment to determine whether it discloses evidence that is
reasonable, credible, and of solid value such that a reasonable trier of fact could have

       1
               Section 1118.1 provides: “In a case tried before a jury, the court on motion
of the defendant or on its own motion, at the close of the evidence on either side and
before the case is submitted to the jury for decision, shall order the entry of a judgment of
acquittal of one or more of the offenses charged in the accusatory pleading if the
evidence then before the court is insufficient to sustain a conviction of such offense or
offenses on appeal. If such a motion for judgment of acquittal at the close of the
evidence offered by the prosecution is not granted, the defendant may offer evidence
without first having reserved that right.”
        2
               The only evidence presented after Padilla’s motion was Officer Gallacher’s
testimony Montes stated she asked Reyes to go over, check on her house, and see who
was inside.

                                              4
found the defendant guilty beyond a reasonable doubt. (People v. Story (2009)

45 Cal.4th 1282, 1296; see Jackson v. Virginia (1979) 443 U.S. 307, 318-319 [inquiry

requires a determination whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt].)

              California follows “the traditional approach that limits victims of robbery to

those persons in either actual or constructive possession of the property taken.” (People

v. Nguyen (2000) 24 Cal.4th 756, 764.) To establish “constructive possession” the

“alleged victim of a robbery [must] have a ‘special relationship’ with the owner of the

property such that the victim had authority or responsibility to protect the property on

behalf of the owner.” (People v. Scott (2009) 45 Cal.4th 743, 750.)

              Sykes v. Superior Court (1994) 30 Cal.App.4th 479 (Sykes) and People v.

Galoia (1994) 31 Cal.App.4th 595 (Galoia) describe circumstances deemed insufficient

to show a victim had constructive possession of the stolen property because of a special

relationship with the property owner. In Sykes, a security guard employed by a business

near a music store saw the defendant leave the music store carrying a saxophone. (Sykes,

supra, at p. 481.) The security guard drew his firearm, ordered the defendant to stop,

caught the defendant as he ran, and retrieved the saxophone. During the struggle, the
defendant bit or scraped the guard’s hand. The appellate court held there was insufficient

evidence to charge the defendant with robbing the guard. (Id. at p. 484.) The court

concluded the security guard did not have actual or constructive possession of the

saxophone because the guard did not have a special relationship with the saxophone’s

owner. (Ibid.) Rather, “[h]is relationship [to the music store] was that of a neighbor and

good citizen seeking to catch a criminal.” (Ibid.)




                                             5
              In Galoia, the defendant entered a convenience store, grabbed several

items, and fled. A man servicing his video game machines inside the store pursued the

defendant and told him to stop. The defendant turned and while threatening the vendor,

the defendant’s companion hit the vendor from behind. The defendant and his

accomplice fled with the property. (Galoia, supra, 31 Cal.App.4th at p. 597.)

              Galoia held the vendor lacked a sufficient interest in the stolen property to

be a robbery victim. The court noted that unlike a store security guard (see People v.

Estes (1983) 147 Cal.App.3d 23), the vendor “was not an employee or agent of the

convenience store. Nor was he in any way responsible for the security of the items

taken.” (Galoia, supra, 31 Cal.App.4th at p. 597.) The court also rejected the Attorney

General’s argument the vendor was acting under the store’s implicit authorization when

he pursued the defendant because “no one from the store instructed [the vendor] to give

chase, and there is no evidence [he] was motivated by anything other than good

citizenship.” (Galoia, supra, at p. 598.) The court noted “just because [the vendor] and

the store mutually benefited from the video machines does not mean [the vendor] had a

legally recognized interest in or right to control store property. His relationship to the

store was far more attenuated than persons recognized by the law as potential robbery
victims, such as bailees, servants, cashiers, store managers, clerks, watch persons,

janitors, bartenders and station attendants. [Citations.] (Galoia, supra, at p. 598.) The

court explained “[l]ike the guard in Sykes, [the vendor] was well intended. But good

motives alone cannot substitute for the special relationship needed to create a possessory

interest in the goods.” (Galoia, supra, at p. 599.)

              In contrast, People v. Bekele (1995) 33 Cal.App.4th 1457 (Bekele),

disapproved on other grounds in People v. Rodriguez (1999) 20 Cal.4th 1, 13-14. depicts



                                              6
the factors necessary to show a special relationship. There, coworkers Jump and

Fernandez were driving a work vehicle when they spotted the defendant burglarizing

Jump’s truck. The defendant removed Jump’s tape deck and speakers from the truck.

Jump and Fernandez told the defendant to stop, and Fernandez gave chase. The

defendant produced a firearm, pointed it at Fernandez, and said, “‘Don’t.’” (Bekele,

supra, at p. 1460.) The appellate court upheld the robbery conviction as to Fernandez,

explaining a robbery victim “‘must have an ownership interest in the property taken, or

some representative capacity with respect to the owner of the property taken, or actual

possession of the property taken, for the taking of the property to constitute a robbery.”

[Citation.] . . . [¶] Here . . . the evidence demonstrated that Fernandez had a

representative capacity with respect to Jump’s property, in that he had implied authority

from Jump to take action to prevent its theft. When Jump saw his truck being

burglarized, he said to Fernandez, ‘Let’s stop.’ The two of them acted in concert to

interrupt the burglary: they simultaneously left the front-end loader to approach Jump’s

truck, and both told Bekele to stop. The obvious implication was that Jump wanted

Fernandez to help safeguard Jump’s property by putting a stop to the theft. Fernandez

was acting in that representative capacity when he struck Bekele and then chased after
him, yelling ‘Stop, drop the bag.’ Fernandez’s position was analogous to that of the

security guard who has constructive possession, though not immediate control, of the

property he is charged with safekeeping.” (Id. at pp. 1461-1462.)

              Here, the evidence reflects Montes and Reyes had a long-standing

employment relationship and Montes expressly directed Reyes to remove Padilla and

Robles from her home. Montes was not present to protect her belongings, and the jury

could construe Montes’s request to remove the intruders as an implicit appeal to protect



                                             7
her personal property. Reyes acted in a representative capacity, not unlike a security

guard, watchperson, or janitor, to protect Montes’s property when Padilla displayed the

firearm to escape with the loot. Montes requested Reyes to intervene and Montes agreed

based on their relationship. She therefore had the right to protect Montes’s property.

(People v. Weddles (2010) 184 Cal.App.4th 1365, 1369-1370 [property owner’s brother

constructively possessed property because he was regularly present in the home, knew

where property was hidden, and during course of the robbery the property owner

instructed his brother to show assailants where the money was kept]; People v. Neely

(2009) 176 Cal.App.4th 787, 794 [apprentice at a cellular phone store who received

profits from the sale of ringtones constructively possessed the store’s property based on

his presence in the store, performing services for the store, and his relationship to the

store owner].) The evidence therefore supported the conclusion Reyes was not a “mere

visitor” or Good Samaritan with no authority or responsibility to protect Montes’s rights

to the property. The court did not err in denying the section 1118.1 motion, and

substantial evidence supports Padilla’s robbery conviction.

B.   The Trial Court Erred by Imposing a Concurrent Term for the Section 12022.53

Firearm Use Enhancement Associated with the Count 3 Robbery Conviction

              Padilla also argues the trial court erred by imposing a concurrent 10-year

term for the section 12022.53 weapon use enhancement associated with the robbery

conviction (count 3) because the court stayed punishment for robbery under section 654.

The trial court stated “[a]s to the 654, counts 1 and 3 do merge. The offense charged in

count 3 [robbery] was necessarily incidental to the defendant’s intent to commit the

ultimate offense [assault with a semiautomatic firearm] in count 1.” The Attorney
General concedes the court erred by failing to stay the enhancement term. (People v.



                                              8
Bracamonte (2003) 106 Cal.App.4th 704, 709 [“Where the base term of a sentence is

stayed under section 654, the attendant [weapon use] enhancements must also be
stayed”].) We accept the concession. We will modify the judgment and direct the court

to correct its minutes.

C.   The Sentencing Minute Order Must Be Amended to Reflect the Court Did Not Order
a Five-Year Parole Period

              At sentencing, the court stated, “The defendant shall be placed on parole,

which I suspect he will be on parole for a period of five years, unless otherwise

determined by the Department of Parole. And he shall report to Parole within 24 hours of

release from prison.” The sentencing minute order provides, “The defendant shall be on

Parole for 5 years unless otherwise determined by the Department of Parole.” Padilla

asserts the trial court erred by imposing a five-year parole period.

              Section 1170, subdivision (a)(3), provides that “In any case in which the

punishment prescribed by statute for a person convicted of a public offense is a term of
imprisonment in the state prison of any specification of three time periods, . . . [t]he court

shall advise the defendant that he or she shall serve a period of parole and order the

defendant to report to the parole office closest to the defendant’s last legal residence,

unless the in-custody credits equal the total sentence, including both confinement time

and the period of parole.” The length of time an offender may remain on parole is

measured by statutory provisions setting the maximum parole period for most offenses,

including those suffered by Padilla, at three years. (People v. Jefferson (1999) 21 Cal.4th

86, 95-96; see § 3000, subd. (b)(1).)3 The trial court erred when it ordered Padilla to
       3
              Section 3000, subdivision (a)(1) provides in part that “A sentence resulting
in imprisonment in the state prison pursuant to Section 1168 or 1170 shall include a
period of parole supervision or postrelease community supervision, unless waived, or as
otherwise provided in this article.” Section 3000, subdivision (b)(1) provides in part that

                                              9
serve a five-year parole period following his release from prison. The Attorney General

does not oppose correcting the sentencing minute order to delete the court’s imposition of
a five-year parole period.

D.   Padilla Is Entitled to One Additional Day of Presentence Custody Credit

              Police arrested and took Padilla into custody March 12, 2012, and the court
sentenced him on May 10, 2013. This corresponds to 425 days spent in actual custody,

not the 424 days recognized by the trial court. Padilla argues, and the Attorney General

concedes, Padilla is entitled to one additional day of custody credit. We will modify the

judgment accordingly.

                                             III

                                        DISPOSITION

              The judgment is modified (§ 1260) to stay the section 12022.53,

subdivision (b), firearm use enhancement associated with count 3 under section 654, and

to award Padilla 425 days spent in actual custody for a total of 488 days of credit. In all
other respects, the judgment is affirmed. The trial court is directed to amend its May 10,

2013, sentencing minute order to reflect the stay of the section 12022.53, subdivision (b)

enhancement associated with count 3, to correct the award of custody credits, and to

delete the following: “The defendant shall be on parole for 5 years unless otherwise


“In the case of any inmate sentenced under Section 1168 for a crime committed prior to
July 1, 2013, the period of parole shall not exceed five years in the case of an inmate
imprisoned for any offense other than first or second degree murder for which the inmate
has received a life sentence, and shall not exceed three years in the case of any other
inmate, unless in either case the Board of Parole Hearings for good cause waives parole
and discharges the inmate from custody of the department.” There is no apparent
requirement that the trial court’s pronouncement of judgment include reference to the
period of parole. (See § 1170, subd. (a)(3) [court must advise the defendant he or she
shall serve a period of parole and order the defendant to report to the parole office closest
to the defendant’s last legal residence].)

                                             10
determined by the Department of Parole.” The court shall serve the amended sentencing

minute order on the parties. The trial court is directed to prepare and forward an
amended abstract of judgment to the Department of Corrections and Rehabilitation.




                                                 ARONSON, J.

WE CONCUR:



O’LEARY, P. J.



BEDSWORTH, J.




                                            11
