People v. Robinson

• Decision Date: 07 August 2012
• Docket Number: No. A126064.,A126064.
• Citation: 12 Cal. Daily Op. Serv. 8999,145 Cal.Rptr.3d 364,208 Cal.App.4th 232,2012 Daily Journal D.A.R. 10965
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Appellant, v. Carlos ROBINSON, Defendant and Appellant.

208 Cal.App.4th 232

145 Cal.Rptr.3d 364

12 Cal. Daily Op. Serv. 8999

2012 Daily Journal D.A.R. 10,965

The PEOPLE, Plaintiff and Appellant,

v.Carlos ROBINSON, Defendant and Appellant.

No. A126064.

Court of Appeal, First District, Division 5, California.

Aug. 7, 2012.

Certified for Partial Publication.^*

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Laurence K. Sullivan, Amy Haddix and Bridget Billeter, Deputy Attorneys General, for Plaintiff and Appellant.

Robert Wayne Gehring, under appointment by the Court of Appeal, for Defendant and Appellant.

SIMONS, J.

Carlos Robinson (defendant) appeals from the judgment entered following a jury trial that resulted in his conviction of assault on a peace officer with an assault weapon, possession of heroin for sale, being a felon in possession of a firearm and ammunition, and participation in a criminal street gang. The jury found true sentencing enhancements associated with various counts. On appeal, defendant contends the trial court erred in denying his motion to suppress evidence discovered following a warrantless entry into a residence. On October 28, 2011, this court filed a decision concluding denial of the suppression motion was proper under the independent source doctrine because, among other things, the police did not violate the Fourth Amendment to the United States Constitution by testing a key in the front door lock to the residence; therefore, the information gained by testing the key was properly considered in applying the doctrine. The Supreme Court granted defendant's petition for review and transferred the matter to this court with directions to reconsider the cause in light of United States v. Jones (2012) 565 U.S. ––––, 132 S.Ct. 945, 181 L.Ed.2d 911( Jones ).( People v. Robinson (2012) ––– Cal.4th ––––, 137 Cal.Rptr.3d 247, 269 P.3d 653; see Cal. Rules of Court, rule 8.528(d).) We conclude in the published portion of this decision that the Jones decision does not alter the result in the present case because, even assuming testing the key in the lock was a warrantless search, it was lawful under an exception to the warrant requirement for minimally intrusive searches.

In our October 2011 decision, we also rejected defendant's contentions the trial court erred in failing to instruct the jury on the offense of brandishing a firearm in the presence of a peace officer as a lesser included offense to the assault charge, the gang enhancement findings are not supported by substantial evidence, and the trial court committed error under Penal Code section 654.¹ In this decision, we again reject defendant's contentions relating to the absence of an instruction on the brandishing offense and the gang enhancement findings. However, based on the Supreme Court's recent decision in People v. Mesa (2012) 54 Cal.4th 191, 142 Cal.Rptr.3d 2, 277 P.3d 743( Mesa ), we conclude the trial court committed error under section 654.

Finally, in our October 2011 decision we addressed the People's cross-appeal, which contended the trial court erred in staying an enhancement to the assault charge for commission of a violent felony for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)).² We concluded in that portion of our published decision the Supreme Court's decision in People v. Rodriguez (2009) 47 Cal.4th 501, 98 Cal.Rptr.3d 108, 213 P.3d 647( Rodriguez ) did not obligate the trial court to stay the enhancement because section 12022.53, subdivision (e)(2) expressly authorized imposition of enhancements under both section 186.22(b)(1)(C) and section 12022.53, subdivision (b).³ In this decision, we reach the same conclusion and again publish that portion of the decision.

We remand for resentencing and otherwise affirm.

PROCEDURAL BACKGROUND

An indictment filed on May 20, 2005, in Contra Costa County Superior Court charged defendant in counts 1 and 2 with assault on a peace officer with an assault weapon (§ 245, subd. (d)(3)), with enhancements for personal use of a firearm (§ 12022.53(b)), carrying a firearm in the commission of a street gang crime (§ 12021.5, subd. (a)), carrying a firearm with a detachable magazine in the commission of a street gang crime (§ 12021.5, subd. (b)), and commission of a violent felony for the benefit of a criminal street gang (§ 186.22(b)(1)(C)). Count 3 charged defendant with possession of heroin for sale (Health & Saf.Code, § 11351), with enhancements for being armed with a firearm (§ 12022, subd. (c)) and commission of a crime for the benefit of a criminal street gang (§ 186.22(b)(1)), and a probation ineligibility allegation for possession of more than 14.25 grams of heroin (§ 1203.07, subd. (a)(1)). Count 4 charged defendant with being a felon in possession of a firearm (§ 12021, subd. (a)(1)), with an enhancement for commission of a crime for the benefit of a criminal street gang (§ 186.22(b)(1)). Count 5 charged defendant with being a felon in possession of ammunition (§ 12316, subd. (b)(1)), and count 7 charged him with participation in a criminal street gang (§ 186.22, subd. (a)). The indictment also included allegations relating to defendant's prior convictions.⁴

In June 2009, a jury found defendant not guilty on count 2, and guilty on counts 1, 3, 4, 5, and 7. The jury found true the enhancements alleged as to counts 1, 3, and 4.

In August 2009, the trial court sentenced defendant to a state prison term of 30 years, including consecutive 10–year terms for both the section 12022.53(b)and the section 186.22(b)(1)(C) enhancements to count 1. Subsequently, the trial court resentenced defendant and imposed a new sentence of 29 years four months in state prison, including 10 years for the section 12022.53(b) enhancement; the court stayed the count 1 section 186.22(b)(1)(C) gang enhancement.

Defendant appealed and the People filed a cross-appeal as to the trial court's order staying the count 1 section 186.22(b)(1)(C) enhancement to count 1. In our October 2011 decision, this court rejected defendant's contentions, agreed with the People's contention in the cross-appeal, and remanded for resentencing. The Supreme Court granted defendant's petition for review and transferred the matter to this court with directions to reconsider the cause in light of Jones. The parties submitted supplemental briefs under rule 8.200(b) of the California Rules of Court and also submitted supplemental letter briefs addressing a question posed by this court.

FACTUAL BACKGROUND

Around 10:00 a.m. on February 17, 2004, then Richmond Police Officer Amy Bublak was responding to a report of a burglary when she heard 13 to 15 gunshots coming from the 300 block of Sanford Avenue (Sanford). She drove her patrol car down Filbert Street (Filbert), in the direction of the gunfire, and observed a silver Volkswagen on Sanford moving toward her. As the Volkswagen entered the intersection at Sanford and Filbert, Bublak moved her patrol car forward, causing the Volkswagen to stop with its passenger door in front of the patrol car's bumper. The passenger in the Volkswagen leaned out of the window and aimed a rifle at Bublak for about 10 seconds. At trial, Bublak identified defendant as the person who pointed the rifle at her.

The Volkswagen drove off and Bublak pursued it. The Volkswagen stopped at 221 Sanford, and the driver and defendant exited the car and fled on foot. Defendant turned, briefly pointed the rifle at Bublak a second time, and then continued fleeing.

Multiple officers responded to the area to assist Bublak. Expended cartridges were recovered from in front of 319/321, 324, and 330 Sanford.⁵ A lot with two residences is located at 319/321 Sanford; 321 Sanford is behind 319 Sanford. Bublak recovered a set of keys from the ignition of the abandoned Volkswagen, and one of the keys unlocked the front door of 321 Sanford. Without obtaining a warrant, police officers entered 321 Sanford and found heroin, marijuana, drug packaging materials, and ammunition. The police also found photographs, and Bublak identified defendant in one of the photographs as the person who had pointed a rifle at her.

Two witnesses saw the shooting that preceded the incident involving Bublak. Christopher Barfield testified pursuant to a plea agreement that, on February 17, 2004, he was living at 412 Sanford. That afternoon, he saw defendant arguing with others over a drug sale. Defendant ran to a house across the street and emerged shortly thereafter holding an assault rifle (a police officer testified that Barfield told him defendant retrieved the weapon from 321 Sanford).⁶ Defendant fired at the men he was arguing with, and they returned fire with handguns. Defendant then fled up the street and encountered a police vehicle. He pointed the assault rifle at a female officer in the patrol car. Defendant then continued running on Sanford and met up with his brother, who was driving a Volkswagen.

The second witness to the shooting, Cal Harris, lived across the street from 319/321 Sanford. On February 17, 2004, he was standing at his front door when he saw a man shooting a gun directly across the street from his house. He could not identify the man. In a statement to the police, Harris said he saw the shooter go into 321 Sanford, apparently before the shooting occurred.⁷ At trial, Harris testified the shooter entered a blue full-sized car and drove off. In his earlier statement to the police, Harris said the man ran down the street after the shooting.

Cynthia Peters, a confidential informant for the police, was at a construction jobsite in February 2004 when she heard gunfire. Defendant ran by her holding an assault rifle. Peters knew defendant because she had previously purchased heroin from him about 50 times. On one such occasion, she purchased drugs from him inside 321 Sanford.⁸

Inspector Shawn Pate of the Contra Costa County District Attorney's Office testified as an expert on...