People v. Rivera

Opinion

GATES, Acting P. J.

Appellant was convicted by jury of two counts of robbery, in one of which he had used a deadly or dangerous weapon. (Pen. Code, §§ 211, 12022, subd. (b).) The court imposed a total sentence of five years and directed that it be served in the California Youth Authority. (Welf. & Inst. Code, § 1731.5, subd. (c).) He appeals contending:

“I. Appellant was denied his right to a fair and impartial jury under California Constitution, article I, section 16, where the court granted the prosecution’s Wheeler motion, over defense objection, thus forcing appellant to trial in front of a different jury, even though appellant did not join the challenge which the court found unjustified. II. The trial court erred in failing to instruct the jury sua sponte on the lesser included offenses of attempted robbery and theft as to count one. III. The trial court abused its discretion in sentencing appellant to the upper term where it relied on

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unsupported factors in aggravation and failed to consider valid factors in mitigation.”

As to count I, Salvador Bernal testified that at approximately 5:25 p.m. on October 6, 1990, he was returning to his car parked near the intersection of 7th and Alvarado. In his hand he was carrying the car’s stereo radio which he had removed “Because if you leave it inside, they break your windows and steal it.” In this instance, however, even this precaution proved vain. Before Bernal could reach the vehicle he was surrounded by appellant and four others. He testified appellant then said, “I should give him the stereo or my life.”

Frightened, Bernal threw the radio at appellant and was rewarded by being struck in the head from behind with a beer bottle. He fell to the ground where all the men joined in kicking him. When he finally escaped he contacted the police. After his wounds had been treated at the scene, the officers drove Bernal about the immediate area until appellant and one of his companions were located and identified. When Bernal ultimately returned to his car he found that its front, rear and one side window had been smashed.

In the interim, a short distance away, appellant and his friends had approached the car in which Jovel Sanchez was seated with his young daughter awaiting his wife’s return. There, appellant displayed and offered to sell Sanchez a stereo of the same make as Bernal’s. When Sanchez declined, stating he already owned one, appellant entered the vehicle and another of the group locked its doors. Inside, appellant opened the glove compartment, removed a screwdriver and, holding it against Sanchez’s stomach, threatened to stab him unless he handed over all his money. As $37 was removed from Sanchez’s shirt pocket, his wife approached and asked what was happening. Appellant then exited the car and, thrusting the screwdriver against her, told her not to speak or he would kill her. Happily, however, appellant and the others departed without appellant executing his lethal threats. This robbery was charged as count II.