*1 Filed 7/8/25 P. v. Pacheco CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C100291
Plaintiff and Respondent, (Super. Ct. No. 19FE004190) v.
ROY DENNIS PACHECO,
Defendant and Appellant. Defendant Roy Dennis Pacheco and codefendant Monica Lopez carried out multiple armed robberies during a crime spree in March 2019. On appeal from his subsequent convictions, Pacheco challenges: (1) the sufficiency of evidence that his prior convictions qualified as “strike” offenses; (2) the sufficiency of evidence for three of his robbery convictions; (3) jury instructions; and (4) the correctness of his abstract of judgment. We agree the abstract of judgment must be corrected, but otherwise affirm.
LEGAL AND FACTUAL BACKGROUND
Pacheco and Lopez were each charged with 13 counts of second degree robbery for the armed robbery of six different business establishments. Pacheco was additionally charged with unlawful possession of a .38-caliber handgun pursuant to Penal Code section 29800, subdivision (a)(1). 1 The robberies all occurred on or between March 3, 2019, and March 6, 2019. Multiple people were inside three of the six businesses, resulting in multiple counts per each of those three establishments.
Pacheco and Lopez were tried together. Victims from three businesses testified that Pacheco entered the store unmasked before he committed the robbery. Pacheco wore a mask for the entirety of the robberies occurring at the other three locations. Lopez testified that she and Pacheco committed all six robberies, claiming Pacheco forced her to participate. 2 The jury saw surveillance video from the masked robberies. We provide greater details of the robbery of a Round Table Pizza, as it is relevant to multiple issues raised on appeal. Otherwise, we provide a summary of the other robberies for context, with more detail below as relevant to the discussion.
Round Table Pizza
At around 9:40 p.m. on March 3, Pacheco and Lopez entered a Round Table Pizza parlor and ordered a pizza. The parlor closed at 10:00 or 11:00 p.m. and at that time, two supervisors and two delivery drivers, including Christopher L. (count four), were present.
The two supervisors were at the front registers and only they had the codes necessary to open the registers. One supervisor, Kwanzaa M. (count three) took her drawer with cash to the back office and Pacheco followed her. Pacheco pointed a gun at her and ordered, “Give me the money.” Kwanzaa dropped the drawer, fell to the ground, 1 Undesignated statutory references are to the Penal Code.
2 We previously granted codefendant Lopez’s request to dismiss her appeal. *3 and screamed. Pacheco continued to hold Kwanzaa at gunpoint while she unloaded money from the office safe into a cardboard box.
Christopher and the other supervisor, Halie K., heard the scream and Christopher told Halie to stay put. As Christopher approached the back office area, Pacheco turned the gun on him, threatening to kill him. Christopher got down on the ground.
Halie saw Pacheco pointing a gun at Christopher. She ran through two sets of swinging doors separated by a hallway to the kitchen area and told another employee. That employee told her to stay in the kitchen, and she did so. Pacheco ordered the employee from the kitchen to give him the money from the second register. That employee called out to Halie for the code and Halie stayed in the kitchen while she provided it, allowing him to open the register. Pacheco took money from this second register before leaving.
Piercing Studio
Earlier that night, Pacheco and Lopez entered a body piercing studio where Hannah S. (count one) was working. After discussing the possibility of obtaining a piercing, Pacheco pulled down his hat, which served as a ski mask, pulled out a gun, and threatened to “smoke” Hannah. At Pacheco’s direction, Lopez closed the window blinds and Hannah opened the cash register. Pacheco took cash from the register, hit Hannah in the face with either the butt of the gun or his fist more than once, then took two of Hannah’s bags containing personal items before leaving.
Wienerschnitzel
Around midnight on March 6, Pacheco was “scoping” out a Taco Bell, when he and Lopez saw that a nearby Wienerschnitzel employee left a back door open. They entered the Wienerschnitzel through that door and encountered Claudia G. (count eight). Marlene M. (count seven) heard Claudia scream and saw a masked man holding a gun. Employee David C. (count nine) was at the front of the restaurant on his phone when he saw the masked gunman and heard him tell everyone to get down on the ground. The *4 gunman asked the manager for money; the manager opened the cash register and David heard money being put into a bag.
Donut Shop
A couple of hours later, Pacheco and Lopez drove to a donut shop where Yadira N. (count ten) and Mayelin C. (count eleven) were working. At Pacheco’s direction, Lopez entered the shop and asked for a dozen donuts. A masked man then came into the shop with a “small pistol” and Lopez dropped to the ground. The gunman demanded money from both Mayelin and Yadira; Yadira opened the register and gave him money. When the gunman left, Lopez was behind him.
7-Eleven
Roughly 30 minutes after leaving the donut shop, Pacheco and Lopez approached a 7-Eleven store. Shafiq M. (count twelve) was working when Lopez (at Pacheco’s direction) entered and picked up a bag of chips to buy. Pacheco then entered wearing a mask, pointed a gun at Shafiq, and demanded money. Shafiq opened two registers and put money on the counter. The man ordered Lopez to get cigarettes from behind the counter, which she did. The gunman repeatedly threatened to kill Shafiq.
Subway
Around 10:00 a.m. on March 6, Lopez entered a Subway restaurant and ordered a sandwich. Pacheco then entered the restaurant, pulled on a mask, and pointed a gun at the employee, Farhan A. (count thirteen). Pacheco demanded that Farhan place money from the register into a bag. Farhan gave Pacheco access to the money then left the store and yelled for help. Pacheco exited the store, fired a shot into the air, and left.
A jury found Pacheco guilty of 13 counts of second degree robbery (§ 211; counts one-thirteen). As to each of these counts, the jury found true the allegation that Pacheco personally used a firearm (§ 12022.53, subd. (b)). As to count thirteen, the jury found true the allegation that Pacheco personally and intentionally discharged a firearm *5 (§ 12022.53, subd. (c)). The jury also found Pacheco guilty of unlawfully possessing a firearm (§ 29800, subd. (a)(1); count fourteen).
In a bifurcated bench trial, the court found true the prosecution’s additional allegations that Pacheco suffered two prior serious felony convictions within the meaning of the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12). The court sentenced Pacheco pursuant to the Three Strikes law, imposed firearm enhancements, and awarded credit for time spent in custody.
DISCUSSION
I
Proof of Prior Strike Offenses
Pacheco first contends the prosecution failed to prove his two alleged prior convictions were (1) suffered by him and (2) constituted prior strike offenses under the Three Strikes Law. We disagree.
A. Oregon Federal Prior
At the court trial on the prior conviction allegations, the prosecution presented two exhibits to prove the convictions constituted strike offenses. People’s exhibit No. 67 contained documents pertaining to a 2010 federal conviction from Oregon. The documents included the prosecution’s request to obtain certified copies of records from the United States District Court in Oregon relating to “PACHECO, ROY DENNIS (DOB 03/13/1976 or 03/14/1976) [¶] CASE #: 3:09-CR-00344-BR” and listed the date of conviction. The exhibit also contained certified documents from the federal court pertaining to “ROY DENNIS PACHECO” with case No. CR 09-344-BR, including a copy of the indictment alleging “assault resulting in serious bodily injury” in violation of 18 United States Code section 113(a)(6). In a signed petition to plead guilty to the charge, Roy Dennis Pacheco admitted that he “intentionally wounded assaulted the *6 victim” and “[a]s a result the victim suffered serious bodily injury.” 3 The petition further stated that with respect to the charge, “I represent that I did the agree the Govt. can prove following acts , and that the following facts are true; beyond a reasonable doubt. [¶] On March 26, 2009 at the Sheridan FCI, in the District of Oregon, I intentionally wounded assaulted [the victim] by throwing hot coffee on his neck; [the victim] suffered serious bodily injury as a result. I agree the court could find me guilty beyond a reasonable doubt .” The government’s plea offer/agreement, signed by Roy Dennis Pacheco, set forth the elements of the crime and the defendant stipulated to the government’s ability to prove certain facts including, that as a result of the defendant’s “throwing hot coffee, which is a dangerous weapon, on [victim’s] neck, [victim] suffered serious bodily injury, including second degree burns and extreme pain.”
B. California Prior
People’s exhibit No. 68 contained documents pertaining to a 2008 conviction for assault with a deadly weapon in Sacramento County. This included a certified copy of records from case No. 08F06721 against defendant “Roy Dennis Pacheco.” In the complaint for that case, the prosecution charged the defendant with violating section 245, subdivision (a)(1) by willfully and unlawfully committing an assault “with a deadly weapon, to wit, a stabbing instrument, and by means of force likely to produce great bodily injury.” The offense was alleged “to be a serious felony within the meaning of Penal Code section 1192.7(c)(23) in that defendant(s) personally used a dangerous and deadly weapon” and that the defendant committed the crime for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). The abstract of judgment for case No. 08F06721 indicates the defendant pled guilty to count one, section 245, subdivision (a)(1) and admitted to violating section 186.22, subdivision (b)(1)(b). The abstract of judgment lists 3 The language struck was replaced by handwritten additions which are indicated through use of italics.
Pacheco’s full name, date of birth, and cross-reference number—all of which are the same as listed for Pacheco in the instant case.
As to whether these prior convictions constituted prior strikes, both the prosecutor and defense simply submitted on the prosecution’s exhibits. The court found “true the allegations of the prior convictions and strike status from the Information.”
C. Analysis
Under the Three Strikes law, a prior conviction for a strike offense subjects a
defendant to increased punishment. (§§ 667, subd. (b), 1170.12, subd. (a).) The
prosecution has the burden to prove both that the offense committed qualifies as a serious
felony in California and that the defendant is the person described in the records of the
prior conviction beyond a reasonable doubt. (§ 1025, subds. (b) & (c);
People v. Epps
(2001)
In determining whether there was sufficient evidence to support a finding that a
prior conviction constituted a serious felony and thus a prior strike, we review the record
in the light most favorable to the judgment to determine whether it is supported by
substantial evidence. (
People v. Miles
(2008)
1. Evidence of Identity
“[T]he question of whether the defendant is the person who has suffered the prior
conviction shall be tried by the court without a jury.” (§ 1025, subd. (c); cf.
People v.
Kelii
(1999)
Here, Pacheco contends that the prosecution relied exclusively on the fact that the
person listed in the two prior convictions shared his name and presented no actual
evidence that he is the same person. He argues that because his name is common, there
can be no presumption that a matching name establishes identity. (See
People v. Luckett
(1969)
Pacheco relies on several decisions from intermediate federal courts in support of
his argument. For example, in
U.S. v. Jackson
(2d Cir. 2004)
Even if we were to follow the federal cases, the facts here are distinguishable. First, we are not persuaded that Pacheco’s full name is so common as to render inapplicable the presumption of identity. Indeed, the use of the same first, middle, and last names together provide strong evidence that Pacheco is the same individual as the person named in the prior conviction and, in the absence of countervailing evidence offered by Pacheco, supports the trial court’s finding of identity. Nevertheless, the record provides greater specificity for each conviction than mere reliance on Pacheco’s name. As discussed below, the documents link Pacheco to the prior convictions through birth date, case number, conviction date, and through a unique identification number. Accordingly, we need not address Pacheco’s contention that the prosecution should be required to provide evidence of statistical rarity of a defendant’s name prior to applying any presumption of identity.
As to Pacheco’s 2008 prior California conviction, the abstract of judgment pertained to a person with the same first, middle and last name, date of birth, and cross- reference number 4 as Pacheco here. Thus, even if we accept Pacheco’s premise that his 4 This is a unique identifying number generated by the sheriff’s department that must be included on charging documents and is also associated with the “booking number” on the abstract of judgment. (See Super. Ct. Sac. County, Local Rules, rule 10.0(B)(3); Judicial Council Forms, form CR-290.)
name is common, the entirety of the information provided here constitutes substantial
evidence that Pacheco is the person who suffered the 2008 prior conviction. (See
People
v. Saez, supra
,
We reach the same conclusion as to the 2010 federal conviction. For that conviction, the prosecutor requested records pertaining to the federal conviction that included specific information about the federal conviction, which served to narrow the appropriate candidates. The request included the offender’s first, middle and last name, a specific case number, date of conviction, and noted that the offender’s date of birth was either the same date as, or the day after, the one associated with Pacheco. The documents produced in response to this tailored request demonstrate that a person with the same full name as Pacheco was convicted under the requested case number with the previously identified date of conviction. This is substantial evidence that Pacheco suffered the 2010 federal prior conviction.
2. Prior Convictions as Strike Offenses
Both section 667 and section 1170.12 provide that “[any] offense defined . . . in
subdivision (c) of [s]ection 1192.7 as a serious felony” qualifies as a prior strike.
(§§ 667, subd. (d)(1), 1170.12, subd. (b)(1).) To determine whether a prior conviction
from another jurisdiction qualifies as a strike under the Three Strikes law, a “court must
conduct the inquiry ‘with a focus on the elements of the offense of which the defendant
was convicted.’ ” (
People v. Gallardo
(2017)
Here, the parties apparently agree that the elements of both prior convictions do not directly correspond to a strike offense under California law. The parties disagree, however, as to whether the facts necessarily proven by the conviction constitute a strike offense. Pertinent to this case, crimes are “ ‘serious’ ” when they are felonies and “the defendant personally inflicts great bodily injury on any person, other than an accomplice” (§ 1192.7, subd. (c)(8)), or “the defendant personally used a dangerous or deadly weapon” ( id. , subd. (c)(23)), or the defendant commits any felony offense, which would also constitute a felony violation of section 186.22 (§ 1192.7, subd. (c)(28)), or commits an assault with a deadly weapon in violation of section 245 (§ 1192.7, subd. (c)(31)).
a. Prior Federal Conviction
Pacheco was convicted under federal law of committing an assault with serious
bodily injury. The elements of that offense are: (1) an assault, and (2) resulting serious
bodily injury. (18 U.S.C. § 113(a)(6);
U.S. v. Plume
(8th Cir. 2024)
“An
Alford
plea is a plea of guilty in which the defendant maintains his
innocence.” (
U.S. v. Mancinas-Flores
(9th Cir. 2009)
In this case, when petitioning to plead guilty, Pacheco agreed, “
the Govt. can
prove
following acts
,
and that the following facts are true;
beyond a reasonable doubt.
[¶] . . . I intentionally wounded
assaulted
[the victim] by throwing hot coffee on his
neck; [the victim] suffered serious bodily injury as a result.
I agree the court could find
me guilty beyond a reasonable doubt
.” This language contains Pacheco’s admission that
the facts relating to the factual basis “are true.” (See
U.S. v. Paulette
(7th Cir. 2017)
This case is distinguishable from
People v. Roberts
(2011)
The People defend the court’s determination that this prior conviction constitutes a strike offense, arguing it qualifies as such under section 1192.7, subdivision (c)(8) (personally inflicts great bodily injury) and (c)(23) (personally uses a dangerous weapon). Because we conclude his prior conviction qualifies as a strike under subdivision (c)(23), we need not address the remaining arguments.
Title 18, United States Code section 113(a) criminalizes eight variations of assault,
including assault with a dangerous weapon resulting in serious bodily injury. (18 U.S.C.
§ 113(a)(6).) Under California law, “ ‘[a]n assault is an unlawful attempt, coupled with a
present ability, to commit a violent injury on the person of another.’ ” (
People v. Robins
(2020)
Here, Pacheco admitted that he assaulted the victim by throwing hot coffee on the victim’s neck, causing second degree burns. These admitted facts demonstrate that he committed an assault under California law by attempting (with the present ability) to commit a violent injury on the victim. He also admitted he used a dangerous weapon for federal law purposes, which has the same definition as under California law. Finally, he admitted his actions caused the victim to suffer second degree burns, which establishes the hot coffee factually qualified as a weapon capable of producing and likely to produce great bodily injury. In short, Pacheco’s federal plea documents necessarily establish he admitted the elements of a serious felony for strike purposes under California law.
b. Prior State Conviction Because we conclude Pacheco’s prior state conviction satisfies subdivision (c)(31) of section 1192.7, we need not address whether Pacheco’s prior state conviction qualified as a strike under subdivision (c)(23) 5 or (c)(28).
Former section 245, subdivision (a)(1), as it existed at the time of Pacheco’s conviction in 2008, proscribed assault upon the person of another alternatively as either with a deadly weapon or instrument other than a firearm, or by any means of force likely to produce great bodily injury. 6 The parties agree that under section 1192.7, subdivision 5 Although we note that the People concede there is no evidence that Pacheco used a deadly weapon against a nonaccomplice and, thus, his prior conviction does not qualify as a strike under subdivision (c)(23) of section 1192.7.
6 The current version of section 245 splits the two versions of aggravated assault between two subdivisions. (§ 245, subd. (a)(1) & (4).)
(c)(31),
7
assault with a deadly weapon qualifies as a serious felony under the Three
Strikes law, but assault by means of force likely to produce great bodily injury does not.
(See
People v. Hudson
(2018)
Count one of the information from the prior conviction charged the defendant with violating section 245, subdivision (a)(1) not in the alternative, but cumulatively with “assault . . . with a deadly weapon . . . and by means of force likely to produce great bodily injury.” (Italics added.) Use of the conjunctive “and” in count one reflects an intent to charge Pacheco with both forms of assault as defined in section 245, subdivision (a)(1) and Pacheco’s plea of guilty to that count is effectively a plea to both, bringing Pacheco’s prior conviction within the purview of section 1192.7, subdivision (c)(31). (Cf. People v. Gallardo, supra , 4 Cal.5th at pp. 135-136 [where information alleged the defendant suffered a conviction for “assault with a deadly weapon or with force likely to produce great bodily injury,” proof of prior strike insufficient].)
We find
People v. Mendias
(1993)
II
Sufficiency of the Evidence
Robbery involves in part, the taking of property in the possession of another.
“California follows the long-standing rule that the employees of a business constructively
possess the business owner’s property during a robbery.” (
People v. Jones
(2000)
A. Additional Background
As previously mentioned, Christopher L. was a pizza delivery driver. Christopher testified that at the time of the robbery, he was working, but he explained that it was “pretty much dead,” and drivers were not in high demand. He said, “I was supposed to be off at that point. . . . I was trying to make some food and get out of there.” Remaining at the restaurant also provided a “chance for [him] to hang out with [his] co-workers, chat.” When Pacheco and Lopez came in, Christopher was getting ready to get his food ready to put in the oven, but he remained because once Pacheco and Lopez entered the restaurant, he had a bad feeling about them.
Three nights later, employees were cleaning a closed fast-food restaurant when Claudia G. 8 (count eight), who was working as a cook that night, went outside to discard something and left the back door open. Lopez was near the dumpster of the restaurant, and she and Pacheco entered the restaurant through the open door. Pacheco pointed a gun at all the employees and ordered them to get on the ground. At Pacheco’s direction, the manager opened a cash register and transferred money from the drawer into a bag for Pacheco.
At the time of that robbery, employee David C. (count nine), was taking a break and was in the front of the store, watching videos on his phone, when he saw a man with a gun come in and tell everyone to get on the ground. Pacheco and Lopez fled with the money a little after midnight. David explained the shift would have ended around 1:00 a.m.
B. Analysis
In reviewing a claim of insufficient evidence, we determine “ ‘ “whether, after
viewing the evidence in the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a reasonable doubt.”
[Citations.] We examine the record to determine “whether it shows evidence that is
reasonable, credible and of solid value from which a rational trier of fact could find the
defendant guilty beyond a reasonable doubt.” [Citation.] Further, “the appellate court
presumes in support of the judgment the existence of every fact the trier could reasonably
deduce from the evidence.” ’ [Citations.]” (
People v. Moon
(2005)
“Robbery is 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.” (§ 211.) The element of possession under the robbery statute can be 8 Claudia mostly spoke Spanish and did not testify at trial. This evidence was relayed by another employee present that night.
established in multiple ways. Possession or direct physical control over an object will
suffice but neither is essential. (
People v. Wilson
(2021)
Relying on Scott , Pacheco contends insufficient evidence supports his convictions for the robbery of Christopher, David, or Claudia because there was insufficient evidence that they were on duty during the robbery. First, he contends that because Claudia did not testify, there is no proof she was working or not on a break at the time of the robberies. We disagree. Another employee testified that Claudia worked as a cook on the night of the robbery and the employees were busy cleaning after the restaurant had closed to the public when the robbery occurred. Lopez testified that one of the employees came out of the back door to throw something away and left the door open. An employee testified it was Claudia who used that door and did not secure it upon returning. Thus, it is reasonable to infer that Claudia was working when the robbery occurred. Viewing the evidence in the light most favorable to the judgment, a reasonable jury could find that Claudia was still on duty and had constructive possession of her employer’s property at the time of the robbery. ( People v. Scott, supra , 45 Cal.4th at pp. 752-755.)
Pacheco further argues that neither Christopher nor David was on duty at the time
of the robberies and that because they were engaged in personal activities, they were not
in possession of the business’s property that was taken. We reject Pacheco’s contention
that only
on duty
employees may have constructive possession in the context of a robbery
of a business. Constructive possession requires only “that there be some type of ‘special
relationship’ with the owner of the property sufficient to demonstrate that the victim had
*19
authority or responsibility to protect the stolen property on behalf of the owner.” (
People
v. Scott, supra
,
Scott
explained that its construction of the robbery statute, “is consistent with the
culpability level of the offender and the harm done by his or her criminal conduct. As a
matter of common knowledge and experience, those who commit robberies are likely to
regard all employees as potential sources of resistance, and their use of threats and force
against those employees is not likely to turn on fine distinctions regarding a particular
employee’s actual or implied authority.” (
People v. Scott, supra
,
9 Civil Code section 50 states, “Any necessary force may be used to protect from wrongful injury the person or property of oneself, or of a spouse, child, parent, or other relative, or member of one’s family, or of a ward, servant, master, or guest.”
Indeed, persons other than employees may be robbery victims if they have a
“special relationship” with the owner of the property and may be expected to resist the
taking. (
People v. McKinnon
(2011)
Here, David, Christopher, and Claudia were employees at their respective
employer’s business at the time of the robbery under circumstances related to their
employment obligations. Statutorily, the employees had the authority to protect the
stolen property, and thus had constructive possession of it. (
People v. Hutchinson
(2018)
III Jury Instructions Pacheco contends that the trial court prejudicially erred by modifying two jury instructions. First, he contends a modified version of CALCRIM No. 376 created an unconstitutional presumption of guilt for all counts and lightened the prosecution’s burden of proof. He further contends the court erred in providing a broader definition of the term “immediate presence” than provided in the optional bracketed language in CALCRIM No. 1600 such that it impermissibly allowed the jury to consider an employee was a victim of the robbery when she hid in a different area of the restaurant when money was taken.
“Generally, a party forfeits any challenge to a jury instruction that was correct in
law and responsive to the evidence if the party fails to object in the trial court.” (
People
v. Franco
(2009)
A. CALCRIM No. 376
1. Additional Background Law enforcement arrested Pacheco almost eight hours after the last of the four robberies was committed that day. An officer found two stacks of cash wrapped in rubber bands, both about one-inch thick and described as a “significant quantity” of money in the front of Pacheco’s sweatshirt. Officers searched Pacheco’s car and found the *22 following: multiple cigarette packs, a methamphetamine pipe, 16 boxes of Swisher cigars, various coin rolls and torn coin roll wrappers, multiple cell phones, a ski mask, and a loaded firearm.
The 7-Eleven clerk testified that Lopez filled a bag with cigarettes taken from behind the counter of his shop during the robbery and he confirmed the cigarettes found in the car were the same brands as those sold in his store. The Round Table manager testified that rolled coins were included in the loot stolen from the office safe. Pacheco and Lopez took cash from every business.
The trial court instructed the jury with CALCRIM No. 376 as follows: “If you conclude that a defendant knew he or she possessed property and you conclude that the property had in fact been recently stolen, you may not convict the defendant of Counts 1- 13 based on those facts alone. However, if you also find that supporting evidence tends to prove his or her guilt, then you may conclude that the evidence is sufficient to prove he or she committed Counts 1-13. [¶] The supporting evidence need only be slight and need not be enough by itself to prove guilt. You may consider how, where, and when the defendant possessed the property, along with any other relevant circumstances tending to prove his or her guilt of Counts 1-13. [¶] Remember that you may not convict a defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt.” Pacheco did not object to this instruction.
The court also instructed the jury with CALCRIM No. 200, which provides, in relevant part: “Some of these instructions may not apply, depending on your findings about the facts of the case. Do not assume just because I give a particular instruction that I am suggesting anything about the facts. After you have decided what the facts are, follow the instructions that do apply to the facts as you find them.”
2. Analysis CALCRIM No. 376 allowed the jury to infer Pacheco was guilty of robbery from the fact that he knowingly possessed property that had been recently stolen, only if there was at least slight supporting evidence tending to prove guilt. Such an instruction contains a permissive inference. But according to Pacheco, CALCRIM No. 376 may only be given if Pacheco possessed property specifically identified from each robbery with which he is charged; a condition not met here. He argues that while the cigarettes and rolls of coins could have been stolen in one or two of the robberies, they were not specifically identified as stolen, and neither was the cash found in his possession. He further contends the modification to CALCRIM No. 376 violated due process because it permitted the jury to make an irrational permissive inference of guilt on all counts from his possession of stolen property from one or two thefts and by reducing the burden of proof when it told the jury that possession of recently stolen property along with “slight supporting evidence” is “sufficient to prove” he committed all 13 robberies.
a. Linking the property to the charge Pacheco contends CALCRIM No. 376 is inherently an incorrect statement of law because it fails to require a link between the property and the charged theft offense. He contends the error is exacerbated because, as modified to apply to all 13 robbery charges here, it allows the jury to find him guilty of charges unrelated to the property found in his possession.
A similar argument was rejected in
People v. Lopez
(2011)
In addition, to the extent Pacheco argues that the instructions were unclear and
created confusion as to how to apply the inference of guilt from his possession of stolen
property, we perceive no reasonable likelihood that the jury misunderstood or misapplied
CALCRIM No. 376. (See
People v. Smithey, supra
,
Here, the jury was separately instructed on the elements of robbery and was also instructed that, “[e]ach of the counts charged in this case is a separate crime. You must consider each count separately and return a separate verdict for each one.” The prosecution theory was that Pacheco robbed several business establishments with the use of a gun and that his identity as the robber was established through witness identification and video surveillance. This theory did not depend in any way on his possession of stolen property. Indeed, the prosecutor only mentioned stolen property once in her closing argument, when she addressed different factors that supported the conclusion that *25 Pacheco robbed the 7-Eleven convenience store, such as the fact that the same brand of cigarettes that were stolen “ends up in that car. [¶] So, you have freshly stolen property located with Mr. Pacheco when he is arrested. It’s additional information that lets you know we are talking about Mr. Pacheco.” The prosecutor’s closing arguments clarified the theory that Pacheco’s possession of recently stolen cigarettes from the convenience store, coupled with other corroborating evidence, constituted circumstantial evidence that Pacheco robbed that store. There is nothing in the record to suggest that the jury viewed CALCRIM No. 376 as an invitation to mix and match the evidence, essentially borrowing evidence of one crime to infer guilt of another. Accordingly, we reject this part of Pacheco’s challenge to the giving of CALCRIM No. 376.
b. Due Process
CALCRIM No. 376’s materially similar predecessor CALJIC No. 2.15 has been
repeatedly upheld against similar due process attacks. (
People v. Gamache
(2010)
For example, in
Lopez
, the court found the holding in
People v. Snyder
(2003)
The
Lopez
court applied
Snyder
’s reasoning and determined that CALCRIM
No. 376 similarly “makes it quite apparent that the ‘slight’ supporting evidence is not to
be considered in isolation, but together with all of the other evidence for purposes of
determining whether there is proof beyond a reasonable doubt that the defendant
committed robbery.” (
People v. Lopez, supra
,
Nevertheless, Pacheco insists that federal courts of appeals have reversed
convictions where a trial court instructed a jury that “[o]nce the existence of the
agreement or common scheme of conspiracy is shown, . . . slight evidence is all that is
*27
required to connect a particular defendant with the conspiracy.” (
U.S. v. Partin
(5th Cir.
1977)
Finally, Pacheco argues the instruction violated due process because it did not
comport with
Ulster County Court v. Allen
(1979)
We disagree. It was the jury’s prerogative to assess the evidence to determine whether the property in Pacheco’s possession was stolen. If, as Pacheco claims, there was insufficient evidence that he was in possession of stolen property, the permissive inference would not apply, and the jury was free to disregard the instruction. In this *28 regard, CALCRIM No. 200 guided the jury: “Some of these instructions may not apply, depending on your findings about the facts of the case. Do not assume just because I give a particular instruction that I am suggesting anything about the facts. After you have decided what the facts are, follow the instructions that do apply to the facts as you find them.”
If there was error, it was harmless. The California Supreme Court made clear in
People v. Gamache, supra
,
B. CALCRIM No. 1600
1. Additional Background Pursuant to CALCRIM No. 1600, the jury was instructed that robbery required proof of the following: (1) the defendant took property that was not his or her own; (2) the property was in the possession of another person; (3) the property was taken from the other person or his or her immediate presence; (4) the property was taken against that person’s will; (5) the defendant used force or fear to take the property or to prevent the person from resisting; and (6) the defendant did so with the intent to permanently deprive the owner of the property.
At the prosecution’s request, the jury was further instructed: “A thing is in the
immediate presence of a person, in respect to robbery, that is so within his or her reach,
*29
inspection, observation, or control, that he or she could, if not overcome by violence or
prevented by fear, retain possession of it.” The court and defense counsel both
acknowledged that the requested definition had been approved by the courts, citing, inter
alia,
People v. Harris
(1994)
2. Analysis Pacheco first contends the trial court erred in giving a definition of “immediate presence” because it has a commonsense definition. He notes that if the jury needed a definition of the term, CALCRIM No. 1600 provided such an option in brackets: “Property is within a person’s immediate presence if it is sufficiently within his or her physical control that he or she could keep possession of it if not prevented by force or fear.” Pacheco contends that the use of the optional bracketed language would have allowed the jury to rely on a commonsense understanding of “immediate presence”— which he speculates to be that the victim must be present near the property at the time of the robbery. Instead, the modified definition required the property be “within [the victim’s] reach, inspection, observation, or control,” which Pacheco contends impermissibly broadened the meaning of “immediate presence” and erroneously allowed the jury to consider whether the named victim “was in a position where he or she, upon becoming aware of the robbery, could respond in time to prevent the taking.” He asserts that prejudice from this erroneous instruction is demonstrated by the fact that he was convicted of robbing Halie at the pizza parlor despite the fact that she was not in the “immediate presence” of her register when Pacheco liberated its contents.
Under the robbery statute, property is within the “immediate presence” of a victim
if, but for the perpetrator’s use of force or fear, the victim would have retained possession
of it. (
People v. Abilez
(2007)
Pacheco acknowledges both that the above-cited definition of “immediate
presence” is generally accepted and that the definition given in this case mirrors it.
Nevertheless, Pacheco essentially argues that jurors should have been allowed to consider
their own personal understanding of “immediate presence” over the generally accepted
legal definition supplied by the California Supreme Court. He further contends that
providing this instruction, “invades the province of the jury and short-circuits the jury’s
commonsense factfinding function.” We disagree. The trial court may modify any
proposed instruction to meet the needs of a specific trial, so long as the instruction given
properly states the law and does not create confusion. (
People v. Beltran
(2013)
In an attempt to persuade us otherwise, Pacheco contends that the definition was
unnecessary because it was not subject to a technical meaning. (See
People v. Horning
(2004)
In sum, we find no basis for relief from instructional error.
IV
Abstract of Judgment
Pacheco contends two errors must be corrected on the abstract of judgment. We agree.
First, the abstract incorrectly indicates that the 14 convictions were pursuant to a
court trial when Pacheco was convicted following a jury trial. This likely represents a
scrivener’s error in recording the judgment rendered and may be corrected by
amendment. (
In re Candelario
(1970)
Next, the total credit for time spent in custody is incorrect. “ ‘Where there is a
discrepancy between the oral pronouncement of judgment and the minute order or the
abstract of judgment, the oral pronouncement controls.’ [Citation.]” (
People v. Clark
(2021)
Here, the court sentenced Pacheco to “1,753 actual days custody credits and 15 percent good time/work time credits for an additional 263 days for a total of 2,016 days credit.” Thus, it appears the abstract of judgment’s reference to 1,736 total credits is incorrect and should be changed to reflect 2,016 total credits.
DISPOSITION
The judgment is affirmed. The trial court is directed to prepare a corrected abstract of judgment consistent with the above and to deliver a certified copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation.
/s/ EARL, P. J. We concur:
/s/
HULL, J.
/s/
MAURO, J.