California Court of Appeal May 12, 2015 No. E059378Unpublished
Filed 5/12/15 P. v. Sosa CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E059378
v. (Super.Ct.No. FWV1100480)
JOSEPH SOSA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Shahla Sabet,
Judge. Affirmed.
Kurt David Hermansen, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Arlene A. Sevidal, Collette C. Cavalier and Christopher P. Beesley, Deputy Attorneys
General, for Plaintiff and Respondent.
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A jury convicted defendant and appellant Joseph Sosa of 16 counts of second
degree robbery (counts 1-2, 4-7, 9-18; Pen. Code, § 211).1, 2 In a bifurcated proceeding
thereafter, the trial court found true allegations defendant had suffered a prior strike and a
Here, the People adduced official government documents from defendant’s prior
Texas conviction for aggravated robbery with a firearm, from which the trial court could
reasonably infer defendant had committed an offense, at minimum, attempted robbery, in
which defendant personally used a firearm, which qualifies as a prior strike and serious
felony conviction under California law. Defendant’s indictment reads that defendant,
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“while in the course of committing theft of property and with intent to obtain and
maintain control of said property, threaten[ed] and place[ed the victim] in fear of
imminent bodily injury and death, and the defendant did then and there use and exhibit a
deadly weapon, to wit: a firearm.” (All capitals omitted.) The felony complaint filed
against defendant contains the same language.
Defendant entered a guilty plea, signing a “JUDICIAL CONFESSION” reading
that he had “read the indictment or information filed in this case and I committed each
and every act alleged therein . . . . I am guilty of the offense . . . .” The judgment of
defendant’s Texas conviction reflects, “the court affirmatively finds that the defendant
used or exhibited a deadly weapon, to wit: A firearm during the commission of the
offense or during the immediate flight therefrom.” (All capitals omitted.) The
documents produced by the People provided sufficient evidence from which the court
could reasonably conclude defendant had suffered a prior strike and serious felony
conviction under California law for committing an offense, at minimum, attempted
robbery, during which he personally and intentionally used and exhibited a firearm.
Defendant contends Texas law defines “use” of a firearm more broadly than does
California law. He maintains that under Texas law, “use” of a firearm may include
conduct in which the defendant does not consciously or intentionally display the firearm,
as required under California law. (Patterson v. State (Tex. Crim. App. 1989) 769 S.W.
938 (Patterson) [the defendant’s simple possession of gun on table top qualified for “use”
enhancement of drug offense]; McCain v. State (Tex. Crim App. 2000) 22 S.W.3d 497
(McCain) [defendant’s conviction for aggravated robbery in which he kicked in the
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victim’s door and hit her numerous times, during which she saw a long knife sticking out
of the defendant’s back pocket, supported use of a deadly weapon enhancement].)
Defendant argues California law, on the contrary, requires proof that the defendant
intentionally display a weapon. (People v. Granado (1996) 49 Cal.Ap.4th 317, 320-321,
328-329 [gun use enhancements proper where the defendant attempted to rob two
victims, during which he pulled out a handgun, but jury asked if both victims had to
know of the weapon’s presence and the court responded they did not].)
First, we disagree with defendant’s characterization of Patterson and McCain as
not requiring an intent to “use” a firearm in order to sustain the enhancement under Texas
law. Although both decisions support the contention that simple possession of a weapon
may support the enhancement, both require that the possession facilitate the associated
felony. (Patterson, supra, 769 S.W.2d at p. 941; McCain, supra, 22 S.W.3d at pp. 499-
500.) It is difficult to discern how possession of a weapon could facilitate an associated
felony without an intent to “use” that weapon. Indeed, in both cases, the weapon was
openly visible, giving rise to the rational inference that it was deployed intentionally to
aid the substantive offense. (Patterson, at p. 939; McCain, at pp. 499.)
Moreover, in McCain, the trial court itself observed that the fact the defendant had
a butcher’s knife in his pocket “could support an inference that [the defendant’s] purpose
in having it there at that time [was the] intended use, [of] causing death or serious bodily
injury.” (McCain, supra, 22 S.W.3d at p. 499.) Furthermore, the court’s holding in
McCain required intent: “[A]n object is a deadly weapon if the actor intends a use of the
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object in which it would be capable of causing death or serious bodily injury.” (Id. at p.
503, italics added.)
Second, contrary to defendant’s contention, California law interprets “use” of a
firearm expansively: “‘The obvious legislative intent to deter the use of firearms in the
commission of the specified felonies requires that “uses” be broadly construed.’
[Citation.]” (People v. Wilson (2008) 44 Cal.4th 758, 806-807.) “There is no
requirement the victim actually see the gun. [Citation.]” (People v. Dominguez (1995)
38 Cal.App.4th 410, 421.) Thus, to the extent Texas law interprets the use of a weapon
broadly, this does not appear to deviate from California law.
Third, defendant’s judicial confession admitted every act of the offense alleged in
the indictment. The indictment reflects that defendant used and exhibited a firearm while
threatening and stealing property from the victim. Thus, the trial court could reasonably
infer defendant intended his use and exhibition of the firearm to aid his robbery of the
victim. Substantial evidence supports the court’s determination defendant’s prior Texas
conviction qualifies as a prior strike and serious felony conviction under California law.
At oral argument, defendant requested permission to file a supplemental brief to
address the issue of why he believed insufficient evidence supported any contention
defendant’s prior Texas conviction would qualify as attempted robbery under California
law. By separate order, we granted defendant’s request.
Defendant maintains his Texas conviction does not qualify as an attempted
robbery under California law because: 1) Texas law does not require a defendant use or
intend to use force or fear against someone with a possessory interest in the property
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taken; 2) Texas law does not require the defendant commit or intend to commit larceny;
3) Texas law does not require the defendant take or intend to take property from the
victim’s immediate presence; 4) Texas law does not require the intent to take property to
occur contemporaneous to the application of force or fear; and 5) The record in the
instant case states only the bare elements of the Texas offense, but not sufficient facts
underlying defendant’s commission of that offense to enable a determination that
defendant’s acts would qualify as an attempted robbery under California law. Although
defendant’s first four contentions may very well be true, we disagree with the latter
argument which, in and of itself, renders defendant’s overall claim unavailing.
As discussed above, defendant’s Texas indictment and felony complaint reads
that, “while in the course of committing theft of property and with intent to obtain and
maintain control of said property, [defendant] threaten[ed] and place[ed the victim] in
fear of imminent bodily injury and death, and the defendant did then and there use and
exhibit a deadly weapon, to wit: a firearm.” (All capitals omitted.) As part of his plea,
defendant admitted he “committed each and every act alleged therein, . . . I am guilty of
the offense . . . .” Thus, defendant admitted he used force or fear against the only named
victim in the indictment and complaint; admitted he did so with the intent to obtain and
maintain control over the property; admitted he did so while contemporaneously, or in the
language of the charging document, “while in the course of,” committing theft of
property; and, again, did so in the immediate presence of the victim as he “did then and
there use and exhibit a deadly weapon.”
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Therefore, it was reasonably inferable by the court that defendant, in his
commission of the Texas offense, at minimum, committed every requisite element of
attempted robbery under California law. (Miles, supra, 43 Cal.4th at p. 1083; People v.
Riel, supra, 22 Cal.4th at pp. 1205-1206.) Since defendant was armed with a deadly
weapon while committing the offense, substantial evidence supported the court’s
determination that defendant’s Texas conviction qualified as a prior strike and prior
serious felony conviction under California law.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J.
We concur:
McKINSTER Acting P. J.
MILLER J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that substantial evidence supported the trial court's determination that the defendant's prior Texas conviction for aggravated robbery qualified as a prior strike and serious felony conviction under California law.
Issues
Whether the defendant's prior Texas conviction for aggravated robbery constitutes a prior strike and serious felony under California law.
Whether the trial court erred in relying on the record of the prior Texas conviction to determine the nature of the offense.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“Substantial evidence supports the court’s determination defendant’s prior Texas conviction qualifies as a prior strike and serious felony conviction under California law.”
“The documents produced by the People provided sufficient evidence from which the court could reasonably conclude defendant had suffered a prior strike and serious felony conviction under California law”