People v. Floyd
| Decision Date | 20 August 2019 |
| Docket Number | B284321 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. ROBERT ELWOOD FLOYD et al., Defendants and Appellants. |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. YA093700)
APPEALS from a judgment of the Superior Court of Los Angeles County, Curtis B. Rappé, Judge. Affirmed and remanded with directions.
Verna Wefald, under appointment by the Court of Appeal, for Defendant and Appellant Floyd.
Neil Rosenbaum, under appointment by the Court of Appeal, for Defendant and Appellant Augustine.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, David E. Madeo, Noah P. Hill, and Pamela C. Hamanaka, Deputy Attorneys General, for Plaintiff and Respondent.
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Robert Elwood Floyd and Christopher Lucie Augustine were tried together on numerous charges stemming from a robbery spree of South Los Angeles businesses over several months. Floyd was tried on 18 counts and Augustine on six. Floyd appeals from his judgment of conviction of 10 counts of second degree robbery (Pen. Code, § 211)1 and two counts of attempted robbery (§§ 211, 664). Augustine appeals from his judgment of conviction of four counts of second degree robbery and two counts of attempted robbery.
Augustine contends the trial court committed prejudicial error by failing to exclude at trial his statements obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct.1602, 16 L.Ed.2d 694] (Miranda). However, Augustine waived any objection.
Both Augustine and Floyd contend the court erroneously denied their motions to sever their trials: they argue they should not have been tried together, and Floyd contends the court should have split his 18 counts into five separate trials. We find neither defendant was prejudiced by the joint trial of all counts, and the court's rulings denying their severance motions were proper.
Floyd further argues the court erred in denying his post-verdict motion to disclose the jurors' contact information so that Floyd could prepare a motion for new trial. The court did not abuse its discretion in finding Floyd failed to show good cause for such disclosure.
Augustine contends the court committed an error at sentencing by failing to state its reasons for imposing consecutive rather than concurrent sentences for his counts. Any such error was harmless, in that the court's comments during sentencing and the numerous aggravating factors cited by the prosecutor demonstrate it is not reasonably probable the court would impose concurrent sentences were we to remand the matter for resentencing.
Floyd asserts the court made several errors in sentencing him to a total of 447 years to life in prison under the three strikes law. The court did not abuse its discretion by denying his motion to strike his two prior strike convictions pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). Floyd also fails to show the court was unaware it had discretion to impose concurrent rather than consecutive sentences for multiple robbery counts committed on the same occasion. In addition, Floyd's contention that his sentence constitutes cruel and unusual punishment has no merit.
Remand for resentencing is necessary as to Floyd's case, however, to allow the trial court to exercise its discretion under new law, effective January 1, 2019, to strike or dismiss the prior serious felony conviction enhancements the court imposed pursuant to section 667, subdivision (a)(1). We affirm the convictions and, as to Floyd only, remand the matter with directions.
On July 15, 2016, the Los Angeles County District Attorney filed an 18-count information against Floyd and Augustine2 stemming from a robbery spree primarily of South Los Angeles auto parts stores from December 15, 2015 to February 2, 2016. Floyd and Augustine were jointly charged in four counts of robbery (§ 211; counts 11, 12, 15 and 16) and two counts of attempted robbery (§§ 211, 664; counts 9 and 10). Floyd was charged with 12 additional counts of robbery (counts 1 to 8, 13, 14, 17 and 18). As to counts 1, 2, 6, 7, 8, 13, 14, 15 and 16, it was further alleged that a principal was armed with a handgun (§ 12022, subd. (a)(1)). It was further alleged as to all Floyd's counts that he had served four prior prison terms for felonies (§ 667.5, subd. (b)) and had suffered two prior serious felonies (§ 667, subd. (a)) and two prior serious and/or violent felonies under the Three Strikes law (§ 667, subds. (a)(1), (b)-(j)).
Both Floyd and Augustine moved to be tried separately from each other, and Floyd moved to have various counts against him tried separately, but the trial court denied the severance motions.
The first robbery occurred at an AutoZone store in Hawthorne on December 15, 2015. At 8:58 p.m., two minutes before closing time, a man entered and asked the employee about brake pads, with a second man entering shortly after the first and joining the conversation. One of the men then pointed a gun at the employee, and the men forced him to open the cash registers and the safe at the back of the store. The men fled after taking money from the registers and the safe.
Before the man pulled out the gun, a third man wearing a construction vest had tried to enter the store but the entrance was already locked. The employee could not identify anything about this third man other than that he was wearing a construction vest, and he was a "tall-ish" African-American man. The store had a surveillance system that recorded video footage of a man in an orange construction vest attempting to enter the store after the other two men were inside. The video, which did not present a good view of the man in the vest, was played for the jury. At the close of the prosecution's case, the court granted the defense motion to dismiss for insufficient evidence the counts involving this robbery (counts 1 and 2).
Carolina Gomez and William Vinegar were working at an AutoZone store in Gardena the night of December 17, 2015. At around 9:15 p.m., 45 minutes before closing time, three men entered the store. They were all wearing sunglasses and either hoods or hats. One wore a black hoodie and the second wore a white t-shirt. The third man was wearing a reflective construction vest and a baseball hat. Thinking the men seemed suspicious, Gomez went to the back office to call 911.
The man wearing the construction vest asked Vinegar about some brakes, and when Vinegar turned to look for the part, the man grabbed him from behind. He told Vinegar, "I don't want to hurt you." Vinegar felt something against his back that he thought was a gun.
Gomez heard the commotion and saw the men had Vinegar in a chokehold. The men told Gomez and her boyfriend (who was waiting for her in the back) to get down on the floor. The men pushed Vinegar and yelled at him to open the safe. Vinegar opened the safe, and the man in the white shirt began removing money from it.
The man in the black hoodie pointed a gun at Gomez and her boyfriend as they lay on the floor. The man in the construction vest told Gomez to get up and not to do anything stupid. He walked her out to the registers, and she opened them. He then led her back to the office and told her to get back down on the floor. The three men then fled with the money and Gomez's boyfriend's wallet.
At trial, Gomez identified Floyd as the man who had been wearing the construction vest. On February 3, 2016, Gomez had also identified Floyd from a six-pack photographic lineup. She recognized his facial hair and the shape of his face. At trial, Gomez testified she was 70 percent sure that the man she identified in the photographic lineup depicted the robber who was wearing the construction vest. Gomez had also identified Floyd at the preliminary hearing as the robber who was wearing the vest.
A surveillance video capturing the robbery and still photographs from that video were shown to the jury. A stocky African-American man with facial hair and wearing an orange construction vest, a baseball hat and sunglasses was visible in the video, and Gomez again pointed out Floyd as the man on the video who was wearing the vest.
Michael Flores testified that he was working at the AutoZone in Inglewood on the night of December 19, 2015. At approximately 8:45 p.m., near the store's closing time, an African-American man with a clean-cut beard, wearing a construction vest and a black beanie, approached him in the store and asked about brakes for a particular make and model of car. After some discussion, Flores went to retrieve some brakes from the back of the store. The man snuck up behind him and grabbed his shirt. The man demanded Flores take him to the safe and then ordered Flores and his coworker, who was also present, to open it. The man became impatient with how long it was taking to open the safe and told Flores's coworker that if the safe did not open he was going to blow the coworker's brains out. Flores did not see a gun.
After the employees succeeded in opening the safe, two other men entered the office and removed the money that was in the safe. Flores was not able to see these two other men's faces or tell their ethnicity because they were wearing zipped-up hoodies. The man wearing the...
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