People v. Chavira CA4/1

Filed 4/3/14 P. v. Chavira CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D063089

Plaintiff and Respondent,

v. (Super. Ct. No. SCD237678)

ROBERT CHAVIRA et al., ORDER MODIFYING OPINION
[NO CHANGE IN JUDGMENT]
Defendants and Appellants.

THE COURT:

It is ordered that the opinion filed herein on March 26, 2014, be modified as

follows:

1. On page 10, in the first sentence of the first full paragraph's complete quote,

delete all the words between "crime . . ." and "beyond a reasonable doubt" so the entire

quote reads:

"In reviewing a claim for sufficiency of the evidence, we must 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. We review the entire record in the light most
favorable to the judgment below to determine whether it discloses sufficient
evidence—that is, evidence that is reasonable, credible, and of solid value—
supporting the decision, and not whether the evidence proves guilt beyond a
reasonable doubt. [Citation.] We neither reweigh the evidence nor reevaluate the
credibility of witnesses. [Citation.] We presume in support of the judgment the
existence of every fact the jury reasonably could deduce from the evidence.
[Citation.] If the circumstances reasonably justify the findings made by the trier of
fact, reversal of the judgment is not warranted simply because the circumstances
might also reasonably be reconciled with a contrary finding." (People v. Jennings
(2010) 50 Cal.4th 616, 638-639.)

There is no change in the judgment.

MCCONNELL, P. J.

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Filed 3/26/14 (unmodified version)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D063089

Plaintiff and Respondent,

v. (Super. Ct. No. SCD237678)

ROBERT CHAVIRA et al.,

Defendants and Appellants.

APPEALS from judgments of the Superior Court of San Diego County, Louis R.

Hanoian, Judge. Judgment against Chavira affirmed as modified. Judgment against

McKnight affirmed.

Sharon M. Jones, under appointment by the Court of Appeal, for Defendant and

Appellant Robert Chavira.

Siri Shetty, under appointment by the Court of Appeal, for Defendant and

Appellant Ryan Alan McKnight.
 Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Ronald A.

Jakob, Deputy Attorneys General, for Plaintiff and Respondent.

Recidivist offenders Robert Chavira and Ryan Alan McKnight (collectively,

defendants) appeal judgments sentencing them to lengthy prison terms after a jury found

them guilty of multiple armed robberies and associated crimes. Defendants challenge the

sufficiency of the evidence to support some of their convictions and the denial of a

motion for judgment of acquittal on one count, and they also complain of instructional

error. McKnight further contends the trial court abused its discretion in refusing to

dismiss the allegations concerning his prior conviction for sentencing purposes. We

modify the judgment against Chavira to correct a sentencing error and otherwise affirm.

I.

FACTUAL BACKGROUND

This case arises out of defendants' four-month crime spree in late 2011. Because

the details of all the crimes are not relevant to the issues raised on appeal, we here

describe the crimes and the related investigations only briefly. We provide additional

details in the Discussion section as needed to resolve particular claims of error.

A. The Jewelry Store Robberies

Robberies occurred at the following four jewelry stores in California on the dates

indicated: The Watch Connection in Costa Mesa (Aug. 2, 2011); Ben Bridge Jeweler,

Inc. in San Diego (Sept. 16, 2011); Ben Bridge Jeweler, Inc. in San Jose (Oct. 15, 2011);

and Leeds & Son in Palm Desert (Oct. 26, 2011). At each location, the robbers used the

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same modus operandi: They stole a Honda Accord from the vicinity, drove to the jewelry

store, entered the store during business hours wearing ski masks and gloves and carrying

firearms, ordered the employees and customers to get on the floor, smashed display cases

with sledgehammers, stole expensive watches and other jewelry, and then fled in and

later abandoned the stolen Honda.

Forensic and video surveillance evidence linked defendants to these robberies. A

ski mask containing DNA that matched Chavira's profile was found on the ground near

the Honda abandoned after the robbery at The Watch Connection. Blood left at the San

Diego Ben Bridge store and in the Honda abandoned after the robbery of that store

contained DNA that matched McKnight's profile. At the San Jose Ben Bridge store, a

video recorder captured the robbery, and one of the robbers had tattoos that matched

McKnight's. Blood found at that store on broken glass and on a sledgehammer the

robbers left behind contained DNA matching McKnight's profile. A sledgehammer left

behind after the robbery at Leeds & Son also contained DNA matching McKnight's

profile, and DNA matching Chavira's profile and McKnight's fingerprints were found in

the Honda abandoned after the robbery.

B. The Turner's Outdoorsman Store Burglary

Around midnight on October 24, 2011, a Turner's Outdoorsman store in San Diego

was burglarized. The metal gate across the glass emergency exit door was pulled off by a

chain, and the door was shattered. Video surveillance showed the burglar using a

sledgehammer in an attempt to smash open a handgun display case. When the attempt

proved unsuccessful, the suspect stuffed seven semiautomatic rifles into a bag and exited

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the store. The store manager testified two of the stolen rifles looked "very similar" to

rifles depicted in video surveillance of the robbery at Leeds & Son. Shortly after the

break-in at Turner's Outdoorsman, police found a stolen Honda Accord abandoned in the

alley behind the store.

C. The Barona Casino Robbery and Associated Arson

At 2:00 a.m. on November 9, 2011, a house under construction on an Indian

reservation near the Barona Casino in Lakeside caught fire and eventually burned to the

ground. Investigators found a nozzle from a gasoline can at the site and determined the

fire had been deliberately set using gasoline as an accelerant.

While the fire was blazing, a Ford Explorer drove up to and parked at the entrance

of the Barona Casino. Four men wearing ski masks and bulletproof vests exited the

vehicle. The driver kept a rifle trained on casino employees outside the casino and

ordered them to get on the ground, while the three other men hauled a chain from the

back of the Explorer into the casino. After they entered the casino, one of the masked

men fired a gun into the air and told everyone to get on the ground. The men then tried to

wrap the chain around a display case advertising a $250,000 cash giveaway and

containing stacks of cash. When they discovered the chain was too short, they knocked

the display case over, smashed it open, stuffed stacks of cash into a bag, and fled in the

Explorer.

Shortly after the robbers left the Barona Casino, a patrol officer found the Ford

Explorer abandoned near the casino. In a duffel bag inside the vehicle, an investigator

found a box of .22 caliber bullets. Chavira's fingerprints were found on the box. The

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bullets were of the same caliber as that of a shell casing found on the floor of the casino

near the smashed display case.

D. Arrest of Defendants and Subsequent Searches

Police stopped defendants as they were traveling in Chavira's car and arrested

them on November 9, 2011. Police searched the vehicle and found a black ski mask and

several mobile telephones inside the vehicle. One of the telephones contained text

messages written in Spanish that concerned the sale of watches and were dated between

October 15 and 26, 2011. Tracking data on the telephones placed defendants in the

vicinity of the San Jose Ben Bridge store and the Leeds & Son store on the dates those

stores were robbed.

Police searched the motel room in which defendants were staying on the date of

the Barona Casino robbery. They found bulletproof vests, ski masks, gloves, and two

semiautomatic handguns. One of the handguns was "distinctive" and "appeared to match

up perfectly" with a handgun depicted in video surveillance of the robberies at the two

Ben Bridge stores and the Barona Casino. Police also found a pair of sneakers that

contained gasoline residue and DNA matching McKnight's profile. A Walmart receipt

found on a nightstand recorded a purchase of two gasoline cans and a lighter on

November 8, 2011. Video surveillance from the Walmart showed McKnight buying

those items. The gasoline cans had nozzles that matched the one found during the

investigation of the fire that destroyed the house under construction near the Barona

Casino.

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 Police also searched two apartments leased by Chavira. In one, police found

diamonds stolen in the robbery of Leeds & Son. In the other, police found four of the

rifles stolen during the burglary of the Turner's Outdoorsman store and numerous

watches and other pieces of jewelry stolen in the robberies at the Ben Bridge stores and at

Leeds & Son.

E. McKnight's Trial Testimony

McKnight testified at trial. He admitted committing the robberies at the four

jewelry stores and the burglary at the Turner's Outdoorsman, as well as stealing the

Hondas used in those crimes. McKnight also admitted he robbed the Barona Casino and

started the fire at the nearby house to create a distraction for the tribal police. According

to McKnight, Chavira was "innocent" and did not participate in any of the crimes.

II.

PROCEDURAL BACKGROUND

In a consolidated amended information/indictment, the People charged defendants

with conspiracy to commit robbery (count 1) (Pen. Code, § 182, subd. (a)(1); subsequent

undesignated section references are to this code), 11 counts of robbery (counts 2, 3, 8-11,

13, 14, 25-27) (§ 211); two counts of assault with a deadly weapon or by means of force

likely to produce great bodily injury (counts 4 & 5) (§ 245, subd. (a)(1)); nine counts of

false imprisonment effected by violence, menace, fraud, or deceit (counts 6, 7, 15-21)

(§§ 236, 237, subd. (a)); burglary (count 12) (§ 459); arson (count 22) (§ 451); and two

counts of assault with a semiautomatic firearm (counts 23 & 24) (§ 245, subd. (b)). The

robbery counts included firearm enhancement allegations (§ 12022.53, subd. (b)), as did

6
the false imprisonment counts (§ 12022.5, subd. (a)). The People charged Chavira with

receiving stolen property (§ 496, subd. (a)). The People also alleged that Chavira had

prior convictions for robbery (§ 211) and witness intimidation (§ 136.1) that constituted

serious felonies for purposes of five-year enhancements (§§ 667, subd. (a)(1), 1192.7,

subd. (c)(19), (37)) and strikes for purposes of the "Three Strikes" law (§§ 667,

subds. (b)-(i), 1170.12), and that McKnight had a prior conviction of burglary that

constituted a serious felony and a strike (§§ 459, 1192.7, subd. (c)(18)).

The case proceeded to trial by jury on all counts. During the trial, the court

dismissed count 4 (assault with a deadly weapon or by means of force likely to produce

great bodily injury) and count 28 (receiving stolen property). The jury found defendants

guilty of count 1 (conspiracy) and counts 6 through 27 (false imprisonment, robbery,

burglary, arson, and assault with a semiautomatic firearm). The jury found Chavira

guilty of counts 2 and 3 (robbery), but found McKnight not guilty of those counts. The

jury did not reach a verdict on count 5 (assault with a deadly weapon or by means of

force likely to produce great bodily injury), which was dismissed. As to McKnight, the

jury found true the firearm enhancement allegations attached to all counts on which it

returned guilty verdicts. As to Chavira, the jury found true the firearm enhancement

allegations attached to all counts on which it returned guilty verdicts, except as to count

11, on which it found the allegations not true.

While the jury was deliberating, McKnight admitted the allegations concerning his

prior serious felony conviction. Chavira requested a bench trial on the allegations

7
concerning his prior serious felony convictions, and the trial court found the allegations

true.

After the jury returned its verdicts, defendants requested that the trial court dismiss

the allegations concerning their prior convictions for purposes of the Three Strikes law.

The court denied the requests. The court then sentenced McKnight to prison for 87 years

eight months, and sentenced Chavira to prison for a determinate term of 288 years eight

months, plus a consecutive indeterminate term of 425 years to life.

III.

DISCUSSION

Defendants raise two claims of error each, and each joins in the other's claims

(Cal. Rules of Court, rule 8.200(a)(5)). Chavira contends the evidence was insufficient to

support three of his convictions, and the trial court committed prejudicial instructional

error. McKnight contends the trial court erred by denying his motion for acquittal on the

burglary charge and abused its discretion by refusing to dismiss the allegations of his

prior conviction for sentencing purposes. As we shall explain, these contentions have no

merit.

A. Sufficient Evidence Supports the False Imprisonment Convictions on Counts 15,
20, and 21

Defendants challenge the sufficiency of the evidence supporting three of the

convictions for false imprisonment arising out of the robbery at Leeds & Son (counts 15,

20, & 21). Specifically, defendants argue that because the victims hid in a back office

during the robbery, defendants could not have known of the victims' existence and

8
therefore could not have intended to restrict their personal liberty. After setting forth

additional background and the applicable standard of review, we shall analyze this

argument.

1. Additional Background

Darlene Bingham, Christine Stein, and Kim Fuerst were working at Leeds & Son

when defendants robbed the store. While Bingham and Stein were in the back office and

Fuerst was on the sales floor, three armed men wearing ski masks and body armor

entered the store, ordered all present to get on the floor and not move, and threatened to

shoot them if they did not comply. Fuerst heard a security guard shout a code word

indicating trouble, saw one of the masked men holding "a big gun," and then ran to the

back office. Stein heard loud noises, glanced at a video surveillance monitor of the sales

floor, saw people moving about quickly, and suspected the store was being robbed. After

Fuerst ran to the back office, Bingham or Stein closed the vault, and secured the office

door, and all three hid under a desk until police arrived a few minutes later. While they

were hiding in the back office, Bingham, Stein, and Fuerst were "scared" and did not feel

free to leave the office.

Based in part on these facts, the People charged defendants with false

imprisonment of Bingham (count 15), Stein (count 20) and Fuerst (count 21) by means of

violence, menace, fraud, or deceit. (§§ 236, 237, subd. (a).) The jury returned guilty

verdicts against both defendants on each count.

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 2. Standard of Review

"In reviewing a claim for sufficiency of the evidence, we must 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 . . .!(KURT: DELETION

MADE AT SUGGESTION OF PANEL MEMBER AFTER ROUTING/INITIALING)!

beyond a reasonable doubt. We review the entire record in the light most favorable to the

judgment below to determine whether it discloses sufficient evidence—that is, evidence

that is reasonable, credible, and of solid value—supporting the decision, and not whether

the evidence proves guilt beyond a reasonable doubt. [Citation.] We neither reweigh the

evidence nor reevaluate the credibility of witnesses. [Citation.] We presume in support

of the judgment the existence of every fact the jury reasonably could deduce from the

evidence. [Citation.] If the circumstances reasonably justify the findings made by the

trier of fact, reversal of the judgment is not warranted simply because the circumstances

might also reasonably be reconciled with a contrary finding." (People v. Jennings (2010)

50 Cal.4th 616, 638-639.)

3. Legal Analysis

To establish the false imprisonment offenses charged in counts 15, 20, and 21, the

People had to present evidence that defendants committed an "unlawful violation of the

personal liberty of" Bingham, Stein, and Fuerst by means of "violence, menace, fraud, or

deceit." (§§ 236, 237, subd. (a).) "[T]he essential element of false imprisonment is

restraint of the person. Any exercise of express or implied force which compels another

person to remain where he does not wish to remain, or to go where he does not wish to

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go, is false imprisonment." (People v. Bamba (1997) 58 Cal.App.4th 1113, 1123

(Bamba).) False imprisonment requires only general criminal intent, i.e., the defendant

must intend to commit an act the natural, probable, and foreseeable consequence of

which is the nonconsensual confinement of another person. (People v. Olivencia (1988)

204 Cal.App.3d 1391, 1399-1400 (Olivencia).) As used in section 237, subdivision (a),

" 'violence' means ' "the exercise of physical force used to restrain over and above the

force reasonably necessary to effect such restraint," ' " and " 'menace' means ' "a threat of

harm express or implied by word or by act." ' " (Bamba, at p. 1123.)

The evidence the People presented at trial was sufficient to support the challenged

false imprisonment convictions. The testimony of percipient witnesses and video

surveillance established that three armed men wearing ski masks entered Leeds & Son

during regular business hours when several employees were in the store, pointed guns at

them, ordered them to get on the floor and not move or risk being shot, and then

proceeded to smash display cases and steal watches and other jewelry. We think it a

natural, probable, and foreseeable consequence of these intentional acts by the robbers

that individuals already in the store would be so frightened that they would suffer

nonconsensual confinement by obeying the robbers' orders to get on the floor and remain

motionless, or by fleeing to a location in the store they deemed safe and remaining there

until help arrived. Indeed, Fuerst, Bingham, and Stein each testified to such fear and

confinement. The testimony of these and other percipient witnesses and the video

surveillance of the robbery thus established defendants committed an "unlawful violation

of the personal liberty of another" by means of "violence" or "menace." (§§ 236, 237,

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subd. (a); see Bamba, supra, 58 Cal.App.4th at p. 1123.) The People did not also have to

prove, as defendants erroneously contend, that the robbers knew Bingham, Stein, and

Fuerst were in the back office during the robbery or that "the robbers intended to violate

the personal liberty of these women." (See Olivencia, supra, 204 Cal.App.3d at p. 1399

["No specific state of mind is required."]; People v. Swanson (1983) 142 Cal.App.3d 104,

110 ["No such mental state [analogous to specific intent] is involved in a false

imprisonment charge."].)

B. The Trial Court Properly Denied the Motion for Judgment of Acquittal on the
Burglary Charge

Defendants complain the trial court erroneously denied their motion for judgment

of acquittal on the Turner's Outdoorsman burglary charge (count 12). They contend that

at the close of the People's case, "there was no evidence from which a reasonable trier [of

fact] could find beyond a reasonable doubt that [they] had participated in the burglary,

either directly or as an aider or abettor." We again set out additional background and the

applicable standard of review before analyzing this contention.

1. Additional Background

After the close of the People's presentation of evidence, defendants moved for a

judgment of acquittal on several charges, including the burglary of the Turner's

Outdoorsman store charged in count 12. Defendants argued there was no evidence

linking them to the burglary except the discovery of some of the stolen rifles in an

apartment leased to Chavira several months after the burglary. The prosecutor opposed

the motion, pointing out that the burglary shared common characteristics with the

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robberies, and that some of the rifles stolen from Turner's Outdoorsman were used in the

robbery at Leeds & Son and later were found in Chavira's apartment. The trial court

concluded there was enough circumstantial evidence to go to the jury and denied the

motion.

2. Standard of Review

In a case tried by a jury, at the close of the People's evidence the defendant may

move for a judgment of acquittal on any charged offense "if the evidence then before the

court is insufficient to sustain a conviction of such offense . . . on appeal." (§ 1118.1.)

"An appellate court reviews the denial of a section 1118.1 motion under the standard

employed in reviewing the sufficiency of the evidence to support a conviction." (People

v. Houston (2012) 54 Cal.4th 1186, 1215 (Houston); see pt. III.A.2., ante.) The same

standard of review applies to cases in which the People rely primarily on circumstantial

evidence, but review focuses on the state of the evidence as it stood at the close of the

People's case-in-chief. (Houston, at p. 1215.)

3. Legal Analysis

To establish the burglary charge, the People had to prove defendants entered the

Turner's Outdoorsman store with the intent to commit a felony. (§ 459.) The People

introduced testimony and video surveillance establishing the store was forcibly broken

into and rifles were stolen by a man wearing a ski mask and gloves and wielding a

sledgehammer. The People's evidence also showed many similarities between the

burglary and the robberies of which defendants were convicted: perpetrators wearing

gloves and ski masks, theft and abandonment of a Honda Accord, use of a chain, and use

13
of the same type of sledgehammer. Where, as here, multiple crimes share a distinctive

modus operandi, an inference arises that the same person committed the crimes. (People

v. Maury (2003) 30 Cal.4th 342, 392-393; People v. Matson (1974) 13 Cal.3d 35, 40.)

Defendants do not challenge the sufficiency of the evidence to support the jury's findings

that they committed the robberies, and that evidence supports the inference that

defendants committed the burglary as well. In addition, video surveillance of the robbery

at Leeds & Son showed defendants used some of the rifles stolen in the burglary to

commit the robbery, and some were later found in an apartment leased to Chavira. A

defendant's possession of property stolen in a burglary shortly after the burglary occurred

supports an inference that defendant committed the burglary. (People v. Mendoza (2000)

24 Cal.4th 130, 175-176; People v. Weems (1961) 197 Cal.App.2d 405, 409.) Hence,

although at the close of the People's case there was no direct evidence either defendant

burglarized the Turner's Outdoorsman store, the trial court properly denied the

section 1118.1 motion because there was ample circumstantial evidence from which a

reasonable jury could infer they committed the burglary. (Houston, supra, 54 Cal.4th at

p. 1215; see People v. Reed (1952) 38 Cal.2d 423, 431 ["Circumstantial evidence is as

adequate to convict as direct evidence."].)

C. The Trial Court Did Not Violate Defendants' Due Process Rights by Instructing
the Jury with CALCRIM No. 376

Defendants contend the trial court committed prejudicial error and violated their

due process rights by instructing the jury with CALCRIM No. 376 that it could find

defendants guilty of robbery or burglary if they knowingly possessed recently stolen

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property and other evidence tended to prove their guilt.1 Defendants complain the

instruction "permitted an inference of guilt without a rational basis," "intruded on the

fact-finding process, inadequately guided the jury's deliberations, was misleading and

confusing," and "created an unbalanced charge to the jury." These complaints have no

merit.

California appellate courts repeatedly have held CALCRIM No. 376 and its

predecessor, CALJIC No. 2.15, do not violate a defendant's due process rights by

lowering or shifting the People's burden of proof or by permitting an irrational inference

of guilt. For example, the California Supreme Court held that CALJIC No. 2.15 "does

not create a mandatory presumption that operates to shift the People's burden of proof to

the defense," and does "not create a permissive presumption that violate[s] due process,

because ' "reason and common sense" ' justifi[y] the suggested conclusion that

defendant's conscious possession and use of recently stolen property tend[] to show his

guilt of robbery and burglary." (People v. Parson (2008) 44 Cal.4th 332, 355, 356; see

People v. Letner and Tobin (2010) 50 Cal.4th 99, 188, 189 [CALJIC No. 2.15 "did not

1 The trial court instructed the jury with the following adaptation of CALCRIM
No. 376: "If you conclude that either defendant knew he possessed property and you
conclude that the property had in fact been recently stolen, you may not convict a
defendant of Robbery and/or Burglary based on those facts alone. However, if you also
find that supporting evidence tends to prove his guilt, then you may conclude that the
evidence is sufficient to prove he committed Robbery and/or Burglary. [¶] 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 guilt of Robbery and/or
Burglary. [¶] Remember that you may not convict a defendant of any crime unless you
are convinced that each fact essential to the conclusion that a defendant is guilty of that
crime has been proved beyond a reasonable doubt."
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shift the burden of proof" or "invite [an] irrational inference"]; People v. Lopez (2011)

198 Cal.App.4th 698, 711 [CALCRIM No. 376 "expressly requires the jury to be

'convinced that each fact essential to the conclusion that the defendant is guilty of that

crime has been proved beyond a reasonable doubt' " and "does nothing to diminish the

prosecution's burden of proof"]; People v. Solórzano (2007) 153 Cal.App.4th 1026, 1036

["Like CALJIC No. 2.15, CALCRIM No. 376 neither undermines the presumption of

innocence nor violates due process."].) Defendants here have merely "dust[ed] off the

old, hackneyed arguments that were thoroughly discredited under similarly worded

CALJIC instructions and recycle[d] them before this court." (People v. Campos (2007)

156 Cal.App.4th 1228, 1239.) We reject those arguments and agree with the conclusion

reached by our colleagues in the Second District: "CALCRIM No. 376 itself accurately

describes the law regarding mental state inferences to be drawn from possession of stolen

property. The instruction did not infringe on [defendants'] constitutional rights." (People

v. O'Dell (2007) 153 Cal.App.4th 1569, 1577.)

D. The Trial Court Did Not Abuse Its Discretion by Refusing to Dismiss the
Allegations Concerning McKnight's Prior Conviction

McKnight complains the trial court abused its discretion by refusing to dismiss the

allegations of his prior serious felony conviction for purposes of sentencing him under

the Three Strikes law. McKnight contends the court "did not adequately consider the

particular circumstances of [his] background and the offense," and "a proper examination

indicated that he is not the type of unrepentant and unrelenting violent offender

16
contemplated by the Three Strikes law." We shall analyze McKnight's contentions after

providing some additional background and articulating the applicable standard of review.

1. Additional Background

After the jury returned its verdicts, a probation officer prepared a report on

McKnight and filed it with the court prior to the sentencing hearing. The report

contained a section describing McKnight's criminal history, which included convictions

of public intoxication, contributing to the delinquency of a minor, multiple thefts,

multiple burglaries, and multiple forgeries over the 15 years preceding his commission of

the current offenses. According to the report, McKnight served two prior prison terms

and escaped from prison during the second term. The report described as "abysmal"

McKnight's performance while he was on probation or parole for his prior convictions.

With respect to McKnight's current convictions, the probation officer reported that during

an interview, McKnight claimed he was the " 'mastermind' " behind each robbery and

"still had guns, money and jewelry hidden where 'no one will find them.' " He admitted

he was under the influence of alcohol during each robbery, but had no interest in

addressing his alcohol abuse. McKnight denied he had any intention to hurt anyone in

the robberies, but he admitted "he was prepared to 'shoot it out' with police if [he had

been] confronted upon exiting a store."

McKnight filed a sentencing statement in which he invited the trial court to dismiss the

allegations concerning his prior burglary conviction for purposes of sentencing under the

Three Strikes law. McKnight argued dismissal was appropriate because he had a difficult

childhood and suffered from substance abuse problems; neither the prior burglary nor any

17
of his other previous offenses involved violence; and punishment under the Three Strikes

law would be "disproportionate to [his] criminal history." At the sentencing hearing,

McKnight's counsel emphasized that McKnight had no record of violent crimes.

At the sentencing hearing, the court acknowledged its discretion under section 1385 to

dismiss allegations of prior convictions in the interest of justice and framed the issue as

"whether or not [McKnight] should be treated outside the provisions of the Three Strikes

law." The court noted McKnight "claimed a leadership role in the crime spree" in which

most of the offenses were committed with firearms and therefore "involved . . . extreme

threats of violence," especially in light of McKnight's admitted willingness "to get

involved in a gunfight if confronted by the police." The court also noted McKnight's

lengthy list of convictions dating back to 1996. The court therefore concluded McKnight

"is the reason why there's a Three Strikes law" and denied the motion to dismiss the prior

serious felony conviction allegations.

2. Standard of Review

A trial court may dismiss prior conviction allegations when sentencing a defendant

under the Three Strikes law if dismissal is "in furtherance of justice." (§ 1385, subd. (a);

see People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530.) We review a

trial court's refusal to dismiss prior conviction allegations "under the deferential abuse of

discretion standard." (People v. Carmony (2004) 33 Cal.4th 367, 374 (Carmony).) "[A]

trial court does not abuse its discretion unless its decision is so irrational or arbitrary that

no reasonable person could agree with it." (Id. at p. 377.)

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 3. Legal Analysis

The Three Strikes law "establishes a sentencing norm" for recidivist offenders and

"creates a strong presumption that any sentence that conforms to [its] sentencing norms is

both rational and proper." (Carmony, supra, 33 Cal.4th at p. 378.) In deciding whether

to depart from these sentencing norms by dismissing allegations of a defendant's prior

conviction, the court "must consider whether, in light of the nature and circumstances of

his present felonies and prior serious and/or violent felony convictions, and the

particulars of his background, character, and prospects, the defendant may be deemed

outside the scheme's spirit, in whole or in part, and hence should be treated as though he

had not previously been convicted of one or more serious and/or violent felonies."

(People v. Williams (1998) 17 Cal.4th 148, 161.) "Because the circumstances must be

'extraordinary . . . by which a career criminal can be deemed to fall outside the spirit of

the very scheme within which he squarely falls once he commits a strike as part of a long

and continuous criminal record, the continuation of which the law was meant to attack'

[citation], the circumstances where no reasonable people could disagree that the criminal

falls outside the spirit of the three strikes scheme must be even more extraordinary."

(Carmony, at p. 378.)

Under these standards, the trial court properly refused to dismiss the allegations of

McKnight's prior burglary conviction. The court's remarks at the sentencing hearing

indicate it was aware of its discretion to dismiss the allegations of the prior serious felony

conviction and of the factors it was to consider in exercising that discretion. Information

regarding those factors was presented at trial, in the probation report (which the trial

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court read and signed), and in McKnight's sentencing statement. Those sources

established that throughout his entire adult life, McKnight has engaged in a continuous

course of progressively more serious criminal activity culminating in numerous and

potentially deadly armed robberies in which he played a leadership role. Previous

punishment, including two prison terms, was insufficient to deter McKnight from further

criminality. His poor performance while on probation or parole for prior convictions,

attempt to escape from prison, and unwillingness to deal with his alcohol abuse also bode

poorly for his future. The fact McKnight's " 'record is devoid of violence' . . . cannot, in

and of itself, take him outside the spirit of the Three Strikes law when [he] is a career

criminal with a long and continuous criminal history." (People v. Strong (2001) 87

Cal.App.4th 328, 345.) "Indeed, [McKnight] appears to be 'an exemplar of the

"revolving door" career criminal to whom the Three Strikes law is addressed.' [Citation.]

As such, the court's decision not to strike [his] prior[] [burglary conviction] is neither

irrational nor arbitrary and does not constitute an abuse of discretion." (Carmony, supra,

33 Cal.4th at p. 379.)

E. The Trial Court Imposed Unauthorized Sentences on Firearm Enhancements
Attached to Two of Chavira's Convictions

After briefing was completed, we noticed the trial court imposed consecutive

prison terms of one year four months each for the firearm enhancements attached to two

of Chavira's false imprisonment convictions arising out of the Leeds & Son robbery

(counts 18 & 19). The reporter's transcript indicates the court selected one-third the

middle term for each enhancement. (See § 12022.5, subd. (a) [mandating additional

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consecutive term of 3, 4, or 10 years for personal use of firearm in commission of

felony].) We solicited supplemental briefs from the parties on the propriety of prison

terms imposed for these enhancements.

In response, the parties agree the trial court imposed unauthorized sentences on the

enhancements attached to the convictions on counts 18 and 19. We concur. The "one-

third the middle term" formula for consecutive subordinate prison terms specified by

section 1170.1 and used by the trial court here "applies only to determinate sentences. It

does not apply to multiple indeterminate sentences imposed under the Three Strikes law."

(People v. Williams (2004) 34 Cal.4th 397, 402.) "[T]he court should impose the full

term for enhancements attached to indeterminate terms." (People v. Felix (2000) 22

Cal.4th 651, 656.) Thus, because the court imposed terms of 25 years to life for the false

imprisonment convictions on counts 18 and 19 pursuant to the Three Strikes law (§ 667,

subd. (e)(2)(A)(ii), 1170.12, subd. (c)(2)(A)(ii), it should have imposed full terms for the

attached firearm enhancements. (People v. Lyons (1999) 72 Cal.App.4th 1224, 1228-

1229.) The failure to do so resulted in unauthorized sentences.

The parties disagree on the proper remedy. Chavira contends we should remand for a

new sentencing hearing to allow the trial court to correct the errors and exercise its

discretion in fashioning an aggregate sentence. The People contend we should modify

the judgment against Chavira by imposing the low term for each enhancement instead of

remanding for resentencing. We agree with the People. A consecutive prison term of at

least three years must be imposed for each enhancement at issue. (§ 12022.5, subd. (a).)

The transcript of the sentencing hearing, however, indicates the trial court would have

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imposed the upper term of 10 years had it not erroneously concluded it had to impose

one-third the middle term. Given this record and the People's agreement to impose the

low term, which is the most favorable disposition Chavira could obtain, a remand for

resentencing would not benefit Chavira and would waste judicial resources. Hence,

under our inherent authority to correct an unauthorized sentence and in the interest of

judicial economy, we modify the judgment against Chavira to increase the firearm

enhancements attached to the convictions on counts 18 and 19 to three years each. (See

People v. Crooks (1997) 55 Cal.App.4th 797, 811; People v. Vasquez Diaz (1991) 229

Cal.App.3d 1310, 1316.)

DISPOSITION

The judgment against Chavira is modified to increase the consecutive prison terms

imposed for the firearm enhancements on counts 18 and 19 from one year four months

each to three years each. As so modified, the judgment is affirmed. Upon issuance of the

remittitur, the trial court is directed to prepare an amended abstract of judgment reflecting

these modifications and to forward a certified copy of the amended abstract to the

Department of Corrections and Rehabilitation.

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The judgment against McKnight is affirmed.

IRION, J.
WE CONCUR:

MCCONNELL, P. J.

NARES, J.

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