People v. Blake

• Decision Date: 06 April 2004
• Docket Number: No. B163498,B163498
• Citation: 11 Cal.Rptr.3d 678,117 Cal.App.4th 543
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Tom BLAKE, Defendant and Appellant.

11 Cal.Rptr.3d 678

117 Cal.App.4th 543

The PEOPLE, Plaintiff and Respondent, v. Tom BLAKE, Defendant and Appellant.

No. B163498

Court of Appeal, Second District, Division 7

April 6, 2004

Certified for Partial Publication^*

As Modified April 16, 2004

Review Denied June 16, 2004

Greg M. Kane, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters, Supervising Deputy Attorney, and Thien Huong Tran, Deputy Attorney General, for Plaintiff and Respondent.

JOHNSON, Acting P.J.

For his nine-day crime spree a jury convicted appellant, Tom Blake, of ten counts of robbery, one count of attempted robbery, one count of carjacking, one count of burglary, one count of petty theft with a prior and one count of vehicle theft. The jury also found true numerous enhancement allegations of personal use of a dangerous or deadly weapon and of personally inflicting great bodily injury. The trial court sentenced appellant to a total term of 51 years and eight months as a second "strike" offender.

Appellant contends the evidence does not support the finding he used a noxious or caustic chemical spray as a dangerous or deadly weapon and thus the enhancements must be reversed on three of the counts. He also argues evidence he pushed one of his victims is insufficient evidence of force to sustain one of the robbery convictions. Regarding the same count, appellant argues the trial court had a sua sponte duty to instruct the jury with a definition of the quantum of force required to sustain a robbery conviction. Appellant next claims the enhancement imposed for having inflicted great bodily injury must be reversed because the information failed to provide adequate notice of the enhancement allegation in connection with the robbery count on which it was imposed. Finally, appellant argues the trial court improperly used the fact of his prior conviction to both impose a five-year sentence enhancement under Penal Code section 667 and a one-year enhancement for having served a prior prison term. The People concede the latter error.

We will modify the judgment to strike the one-year enhancement imposed for having served a prior prison term. As so modified, we affirm.

FACTS AND PROCEEDINGS BELOW

La Tiendita Santa Barbara — Robbery, Dangerous Weapon, Counts 1 and 2:

In the evening of November 16, 2001, appellant entered a women's clothing store called La Tiendita Santa Barbara in West Hollywood. He was dressed in men's clothing. However, he was wearing mascara, eye shadow and had his dyed hair wrapped in a bandana. He had shaved or heavily plucked eyebrows and an effeminate manner. He had a prominent Adam's apple and a crooked nose which looked as though it had once been broken.

Sales clerks Luis and Carol Ruano were working in the store when appellant came in. They noticed appellant and both got the impression he was "high" on drugs because his eyes were red, he was sweating profusely, and he was nervous.

Appellant selected several items of clothing and brought them to the counter. Luis Ruano totaled the amount of the items which came to $78. Appellant seemed to reach for his wallet but then said, "No, fuck that." He drew two knives, a box cutter in one hand and a three-blade knife in the other, and brandished them at the sales clerks. One of the knives came within inches of Carol's face. Appellant told them, "If anybody moves, I am going to fuck you up." Appellant grabbed the clothes and ran out of the store. Appellant ran right past sales clerk, Juan Ruano, who was watching the outdoor clothes display.

All three Ruanos positively identified appellant from a photo array and again at trial.

Sabina's Wigs — Robbery, Dangerous Weapon, Count 3:

At 1:00 p.m. on November 18, 2001, Sabina Hersco was in her store, Sabina's Wigs located on Fairfax near Melrose Avenue. Hersco was then fitting a wig for Zhaleh Javanfard, an Orthodox Jewish woman whose religion and tradition requires her to cover her hair in the presence of men other than her husband. She was shocked and horrified when appellant walked into the store. Both women thought the door was locked.

Appellant started looking around the store. He wore a bandana over his hair, a woman's crop top and bell-bottom pants. Appellant had shaved or plucked eyebrows. Hersco asked appellant to leave and told him to come back some other time. Appellant pulled out a canister and told Hersco to "back up, back up." According to Hersco, appellant took the "pepper spray and he put in my eyes [sic]." He also sprayed the substance around the store. Appellant grabbed two long, human hair wigs worth several hundred dollars and fled.

The spray caused Hersco's eyes to tear. She could not see and could not breathe. She began coughing and gasping for air and her face became red. Hersco screamed her eyes were burning. When Javanfard came to her assistance she too began coughing and sneezing and could not breathe. Javanfard called 911 and the operator sent paramedics to assist them.

Javanfard identified appellant from a photo array, at the preliminary hearing, at trial and from a videotape taken by a security camera in the store.

Ultra Vixen — Robbery, Dangerous Weapon, Count 4:

Around 2:30 p.m., sales manager Jenifer Weber was working at a lingerie store called Ultra Vixen on Wilcox in West Hollywood when appellant entered the store. He was wearing a dirty crop top blouse and low cut jeans with a rope belt. He had shaved eyebrows and wore old, smeared makeup. He went in and out of the store, explaining he was waiting for his boyfriend to pay for his purchases. Appellant asked Weber how a particular belt buckle worked. As she approached to explain, appellant pulled out a canister she believed to be pepper spray. He said, "Don't move bitch," and sprayed the chemical into her eyes from about eight inches away. Appellant grabbed several rhinestone belts, jeans and other clothes worth about $400 and ran out of the store.

Weber ran outside. Her eyes burned from the spray. She also could not breathe for ten minutes.

Weber identified appellant from a photo array and at trial.

Stephen Chapek — Robbery, Dangerous Weapon, Count 6:

Around 7:00 p.m. on November 18, 2001, Stephen Chapek was in his car looking for a parking space near his residence in Silver Lake. Near Sunset Boulevard and Golden Gate he saw appellant and another person walking together. Appellant wore a tube top, makeup and had long dark hair. Both persons were dressed as women and he assumed they were streetwalkers. Appellant and his friend approached Chapek's car and asked for a ride to Hollywood. Once he spoke, Chapek realized appellant was a man. Chapek refused but appellant and his friend got into his car anyway and would not leave. Appellant claimed to be sick. Chapek testified he felt sorry for appellant and wanted to avoid a confrontation so he agreed to drive them to Hollywood. While driving, appellant asked whether Chapek wanted him to "suck his dick." Chapek declined.

Chapek stopped at a donut shop near Hollywood and Highland as appellant requested. As his companion got out of the car appellant demanded $20. Chapek refused. According to Chapek, appellant took a canister out of his purse and told him, "Give me money or I am going to mace you." Chapek gave appellant the $1 he had in his wallet and appellant left. Chapek then noticed his cell phone was missing. Chapek identified appellant from a photo array and at trial. He recognized the distinctive crook in appellant's nose.

Arsen Mkrtchyan — Carjacking, Dangerous Weapon, Count 7:

On November 20, 2001, around midnight Arsen Mkrtchyan was driving down Santa Monica Boulevard in West Hollywood, purportedly on his way to pick up his brother from his work place at Hollywood and Highland. He drove a 2000 silver Daewoo with tinted windows. He saw appellant in women's clothing. He had on black pants, a pink shirt, a longhaired wig and makeup. He stopped his car near appellant with the intention of asking for sex. Appellant walked over, got into the passenger seat and asked Mkrtchyan what he was "looking for." Appellant coughed and stated he had not worked on his voice yet. Mkrtchyan stated he wanted oral sex and appellant asked how much money he had. Mkrtchyan replied he had seven dollars. Appellant asked Mkrtchyan to take his penis out. He complied. Appellant began to fondle Mkrtchyan's penis and then suggested they go to appellant's place instead. Appellant provided directions and then told Mkrtchyan to stop in a parking lot at Tamarind and Santa Monica. Appellant started fumbling around in his purse claiming he was looking for a condom. Appellant pulled out a box cutter. Appellant brought the knife close to Mkrtchyan's face and told him to get out of the car, "or I am going to shank you." Appellant grabbed the car keys, opened the door and yelled to a man standing nearby in the parking lot. Mkrtchyan fled, fearing the two men were working together. Appellant got out of the car to speak with the man. Mkrtchyan took the opportunity to run back to his car to retrieve his wallet and cell phone. Appellant returned and drove off in Mkrtchyan's car.

Mkrtchyan used his cell phone to call 911. When police arrived he told them he had picked up a hitchhiker who had stolen his car. He was too embarrassed to admit he had been carjacked by a transgender prostitute he had picked up for the purpose of having sex. When his car was recovered days later the interior was filled with trash. There were rotting groceries in the trunk as well as numerous flyers advertising gay parties. In addition to his car key, his key ring also had numerous additional unfamiliar keys.

Mkrtchyan identified appellant at trial, stating he recognized appellant's eyes, eyebrows and crooked nose. Mkrtchyan also recalled appellant had a tattoo on his left...