Filed 11/19/20 P. v. Rico CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

AARON DAVID RICO III et al.,

Defendants and Appellants.

 D074546

(Super. Ct. No. SCD266403)

APPEALS from judgments of the Superior Court of San Diego County, 

Joan P. Weber, Judge. Affirmed, Smith’s sentence vacated and remanded for 

resentencing.

Christian Buckley, under appointment by the Court of Appeal, for 

Defendant and Appellant Aaron David Rico III.

Anthony Dain, under appointment by the Court of Appeal, for 

Defendant and Appellant Thomas James Smith.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant 

Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. 

Swenson., and Heather M. Clark, Deputy Attorneys General, for Plaintiff and 

Respondent.
2

Aaron David Rico III and Thomas James Smith (together appellants) 

and their cohorts conspired to rob and burglarize numerous homes on 

different nights. A jury convicted each appellant of: one count of conspiracy 

to commit first degree burglary (count 4; Pen. Code, § 182, subd. (a)(1))1; four 

counts of conspiracy to commit first degree burglary and robbery (counts 6, 

11, 16, 20; § 182, subd. (a)(1)); 12 counts of first degree robbery in concert 

(counts 8, 9, 10, 14, 18, 19, 22, 23, 24, 26, 27, 28; §§ 212.5, subd. (a), 213, 

subd. (a)(1)(A)); eight counts of first degree burglary (counts 5, 7, 15, 17, 21, 

25, 29, 30; §§ 459, 460, subd. (a)); forcible sexual penetration (count 12; § 289, 

subd. (a)); and assault with intent to commit forcible sexual penetration 

during a first degree burglary (count 13; § 220, subd. (b)).

The jury also found Smith guilty of conspiracy to commit residential 

burglary (count 1; § 182, subd. (a)(1)) and two counts of first degree burglary 

(counts 2 and 3; §§ 459, 460, subd. (a)). As to certain counts, the jury found 

true various enhancements. Smith later admitted the truth of two prior 

strikes and one prior serious felony allegation, as well as the allegation that 

he was on felony probation during the crimes. The trial court dismissed one 

of Smith’s prior strikes under People v. Superior Court (Romero) (1996) 13 

Cal.4th 497 (Romero). The court sentenced Smith to a determinate sentence 

of 85 years and four months, and an indeterminate sentence of 50 years to 

life. The court sentenced Rico to a determinate sentence of 35 years, and an 

indeterminate sentence of 25 years to life.

Appellants contend that counts 11 to 15 relating to one of the robberies

should be reversed based on alleged Brady2 error. Rico contends that the 

1 Undesignated statutory references are to the Penal Code. 

2 Brady v. Maryland (1963) 373 U.S. 83.
3

evidence does not support his robbery convictions on counts 10 and 24. He 

also argues that the trial court erred by failing to hold an ability to pay 

hearing with respect to the fines and fees assessed at sentencing. Smith 

asserts that the court violated his Sixth Amendment right to a jury trial by 

using a juvenile adjudication to enhance his sentence. He also argues that 

his case should be remanded to allow the trial court to decide whether to 

exercise its newly-conferred discretion to strike the five-year sentence 

enhancement imposed for a prior serious felony conviction. 

We agree that Smith’s sentence should be vacated and his matter 

remanded to allow the trial court to decide whether to strike the five-year 

sentence enhancement for his prior serious felony conviction. We otherwise 

reject appellants’ arguments and affirm their convictions.3

I. 

FACTUAL AND PROCEDURAL BACKGROUND

We forego a detailed recitation of the facts and instead briefly

summarize the nature of appellants’ crimes. The discussion provides

additional factual background related to the specific crimes at issue in this

appeal.

3 Rico claims that his arguments regarding his robbery convictions and 

ability to pay the fines and fees apply equally to Smith. However, Smith 

made no arguments regarding his robbery convictions or his ability to pay 

fines and fees, nor did he join in Rico’s arguments. “Instead of filing a brief, 

or as part of its brief, a party may join in or adopt by reference all or part of a 

brief in the same or a related appeal.” (Cal. Rules of Court, rule 8.200(a)(5).) 

Rico cites no authority allowing him to join Smith to the arguments in Rico’s 

brief and we have found none. Accordingly, we disregard the purported 

joinder.
4

In early 2016,4 a series of home burglaries and robberies occurred on

six days in San Diego County. Detectives investigating the crimes dubbed 

the suspects the “Open Door Bandits” because they always entered through 

unlocked or open doors. The victims stated that the suspects were of 

different races, something the police considered unique. The suspects 

typically used zip ties, shoelaces, and scarves to tie up the residents. The 

suspects took jewelry, money, personal electronics and gaming systems.

Briefly, the crimes were as follows:

January 24 home burglary (counts 1, 2)

January 24 home burglary (counts 1, 3)

January 26 home burglary (counts 4, 5)

January 29 home robbery and burglary (counts 6-10)

January 31 home robbery, burglary and sexual assault (counts 

11-15)

February 5 home robbery and burglary (counts 16-19)

February 11 home robbery and burglary (counts 20-24)

February 11 home robbery and burglary (counts 25-28)

February 11 home burglary (count 29)

February 11 home burglary (count 30)

Crime scene evidence ultimately led to appellants’ arrests and the 

arrest of their five cohorts: Stephen Gomez, Robin Shawver, Aaron Rico V, 

Victor Harvey and Jordan Wilson.5 Appellants’ cohorts pleaded guilty to 

various charges. Appellants were tried before a single jury.

4 All undesignated date references are to 2016.

5 We refer to appellant as Rico, and Aaron Rico V as Rico V.
5

During closing argument, Smith’s counsel conceded his client’s guilt on 

all charges except counts 11 to 15, the incident where the victim, Jane Doe,

was sexually assaulted by a Black man.6 During closing argument, Rico’s

counsel essentially conceded his client’s guilt for aiding and abetting the 

crimes, claiming that Rico acted as a lookout for all of the charged offenses

and only went inside the homes for the crimes that occurred on February 11. 

Counsel argued however, that Rico did not aid and abet the sexual assault 

because the assault was not foreseeable. The jury rejected these arguments 

and convicted appellants of all charges, including the incident involving the 

sexual assault.

II. 

DISCUSSION

A. Appellants Did Not Establish all Elements of a Brady Violation

1. Additional Background

a. January 31 - Jane Doe (Counts 11-15)

In the early morning hours of this day, Doe woke up to noises and 

heard a man tell her to get down and be quiet. She was not wearing her 

glasses or contact lenses. She could see about 12 to 18 inches in front of her

and beyond that her vision was “pretty blurry.” With the covers over her 

head she heard two voices speaking to her. When Doe pulled her head out 

from under the covers she saw a man who might have been Hispanic holding 

jewelry. This man wore black gloves, a black hoodie, and black pants. She 

then described a man wearing a white hoodie and black pants who held up 

the keys to her van and told her they were not going to take it. 

Eventually a third man wearing dark clothes, a dark bandana, and 

thick dark-rimmed glasses told her to pull back her bed covers because he 

6 Smith is a Black man.
6

wanted to see what she looked like. This man appeared to be Hispanic or 

Asian. Another man then entered the room and told her that they were going 

to tie her hands. As the man tied her hands she glanced up at him. The man 

was Black, wore a dark hoodie and may have had a black bandana on his 

face.

The Black man tied a scarf over her eyes and later told her to take her 

clothes off. The Black man cut the shoelace binding her hands and pulled the 

scarf down to her neck. Doe undressed and heard the men talking about her 

body. She described seeing three sets of legs, but said there might have been 

a fourth person outside her vision. The men told her to get on the bed and 

had her change positions several times. The Black man re-tied her hands 

together and someone put a pillow case over her head. She felt hands on her 

body. The Black man told her to lay on her back and spread her legs. When 

she protested, someone pressed a gun to her arm and told her to be quiet. 

She felt two fingers penetrate her vagina and the gun against her arm. She 

did not know who had sexually assaulted her “[b]ut based on where everyone 

was, [she assumed] it was the Black guy.” The men had her shower and then 

left. 

b. February 5 - James M. and Betsy H. (Counts 16-19)

In the early morning hours on this day, three men entered the home 

belonging to James and Betsy. One of the men carried a gun. After one man 

bound James’s and Betsy’s hands, the men moved the couple into a home

office, closed the double French doors to the office, and tied the doors 

together. James could not see the men’s faces. Betsy did not see the men’s 

skin tone, but believed they were either Hispanic or Black based on their 

voices.
7

The men left with cash, the couple’s wallets, electronic equipment, two 

cell phones, and jewelry. Later in the day, Michael J. found Betsy’s wallet in 

the middle of the street near a Mira Mesa shopping center. The shopping 

center contained a store where some items stolen in the robbery series had 

been pawned. After looking inside the wallet, Michael took it to a police 

station. The wallet contained Michael’s DNA.

c. Trial Court Proceedings

On May 31, 2018, following the close of evidence and while the jury was 

deliberating, the prosecutor learned that the crime lab had matched another 

Black man’s DNA to Betsy’s wallet. The prosecutor explained that initial 

testing of the wallet in 2016 revealed a complex mixture of DNA that the 

crime lab computers could not interpret at that time. In March 2018, the 

crime lab upgraded their computers which were then able to interpret the

results. The crime lab used the new results to identify A.B., who was an 

African-American male and not one of the seven suspects in the case, as a 

contributor to the DNA found on the wallet.

On May 7, 2018, the Department of Justice sent a letter to Brian B. in 

the San Diego Police Department Forensic Section with the new DNA results

showing that DNA belonging to A.B., a Black man, was found inside the 

wallet. That same day, Brian learned of a family emergency. Although he 

attempted to perform his job duties that day, including forwarding the new 

information to the detective in this matter, Brian was emotionally distraught 

and distracted. Brian was absent from his work for about one month

attending to his family emergency. On May 31, 2018, Brian realized that he 

had failed to forward the information to the detective. Brian forwarded the 

information that day and the prosecutor immediately informed the court and 

defense counsel.
8

A.B. lived within half a mile of the location of the discarded wallet. 

A.B. had prior arrests and convictions for both burglary and robbery. 

Further investigation failed to yield any connection between A.B. and the 

other individuals in the case. 

After the jury returned its verdicts, appellants moved for a new trial 

based on the prosecution’s failure to disclose exculpatory evidence as required 

by Brady. The prosecutor acknowledged that the prosecution team possessed 

the potentially favorable new information and that it was not disclosed prior 

to or during trial. She argued that the evidence was not material and that 

appellants suffered no prejudice. The trial court agreed that the DNA

evidence was favorable to the defense, was possessed by the People prior to 

the start of jury selection and was improperly and inadvertently withheld by 

the People. It concluded, however, that appellants were not prejudiced by the 

failure to disclose the evidence. The trial court explained that no evidence 

connected A.B. to Doe’s incident and that “overwhelming” evidence existed 

regarding appellants’ guilt as to the Doe incident.

2. Analysis

Appellants contend that their convictions for the Doe incident (counts 

11 to 15) must be reversed based on Brady error. As we shall explain, after 

considering the withheld DNA evidence, we conclude that it was not material 

under Brady and that appellants received a fair trial.

Under Brady, supra, 373 U.S. 83, the state is required to disclose to the 

defense any material, favorable evidence. (Id. at p. 87.) “There are three 

elements to a Brady violation: (1) the state withholds evidence, either 

willfully or inadvertently, (2) the evidence at issue is favorable to the 

defendant, either because it is exculpatory or impeaching, and (3) the 

evidence is material.” (People v. Lewis (2015) 240 Cal.App.4th 257, 263.) 
9

Here, the prosecutor conceded that the first and second elements of a 

Brady violation occurred—the DNA evidence was favorable to the defense

and the prosecution withheld the evidence. Accordingly, we focus on the 

third element, materiality.

“ ‘[S]trictly speaking, there is never a real “Brady violation” unless the 

nondisclosure was so serious that there is a reasonable probability that the 

suppressed evidence would have produced a different verdict.’ ” (People v. 

Salazar (2005) 35 Cal.4th 1031, 1043 (Salazar).) A “ ‘reasonable probability’

is a probability sufficient to ‘undermine[] confidence in the outcome’ on the 

part of the reviewing court.” (Id. at p. 1050.) It is the defendant’s burden on 

appeal to show a reasonable probability—not merely a reasonable 

possibility—of a different result. (Strickler v. Greene (1999) 527 U.S. 263, 

291.) The issue is not whether it was more likely than not the defendant 

would have received a different verdict. (Smith v. Cain (2012) 565 U.S. 73, 

75.) Instead, we ask if the likelihood of a different result was great enough to 

undermine confidence in the outcome of the trial. (Ibid.) Brady claims 

present a mixed question of law and fact and “are subject to independent 

review” on appeal, with the trial court’s findings of fact, if any, “entitled to 

great weight when supported by substantial evidence.” (Salazar, at p. 1042.)

a. Smith did not establish a Brady violation

Smith notes that he conceded his guilt on all crimes except the crimes 

involving Doe, no DNA evidence connected him to the crimes against Doe, 

and Doe only identified a Black man, not him, as her assailant. Additionally, 

defense counsel argued during closing that another Black man was involved 

in the crimes against Doe, emphasizing that Smith’s DNA was found at all 

the crime scenes except Doe’s. He asserts that the new evidence could have 
10

created reasonable doubt in the minds of one or more jurors regarding his 

participation in the crimes against Doe.

To determine whether the new DNA evidence created a reasonable 

probability of a different result we examine the evidence presented at trial 

against Smith. This evidence included Shawver’s testimony, surveillance 

video from a neighbor of Doe, holding cell conversations between the 

suspects, mobile phone evidence and DNA evidence. We detail this evidence 

below.

i. Shawver’s testimony

Shawver testified against Rico and Smith regarding these charges. 

Shawver dated Rico’s brother, Rico V. Smith knew the Rico brothers and 

regularly socialized with them. Smith dated the Rico brothers’ sister. 

Shawver and cohort Gomez were good friends. Gomez was also friends with 

the Rico brothers and Smith. Shawver met cohort Harvey through the other 

men. Gomez frequently borrowed Shawver’s car, a white Nissan Sentra. 

On January 31, Gomez, Rico, Rico V, and Smith picked Shawver up in 

her car after she got off work. They went to the street where Doe’s home was 

located. Someone drove Harvey’s Volkswagen Passat that evening to the 

same area. Shawver fell asleep in the car. When she woke up, she saw

Gomez, Rico, Rico V and Smith walking away together. Shawver stayed in 

the car texting one of her friends. About one hour later, the four men came 

running back. They all got into Shawver’s car and drove away, leaving 

Harvey’s car at the scene. The men did not discuss what had occurred and 

Shawver did not see anything in their hands.

ii. Surveillance video

A neighbor’s surveillance cameras captured events occurring on the 

night of Doe’s sexual assault. The surveillance video corroborated Shawver’s 
11

testimony, showing two cars driving down Doe’s street at about 1:00 a.m. 

Police determined that one of the suspect’s cars was an older model, white 

Nissan or Toyota and the other car was a grey or silver Volkswagen.

The video then showed two individuals wearing hoodies and white 

sneakers approach the neighbor’s truck. These individuals then walked 

towards Doe’s house. Later, four individuals could be seen running down the 

street away from the area of Doe’s house. One car then left the neighborhood, 

which also corroborated Shawver’s testimony that all the men left in her car. 

One individual was wearing light colored pants and a dark top, one 

individual was in dark pants with a lighter colored jacket or shirt, and two 

individuals were wearing light tops and dark pants.

iii. Holding cell conversations

After their arrests, police placed all seven suspects together at various 

times in the same holding cell and recorded their conversations. These 

conversations further corroborated Shawver’s testimony. A conversation 

between Smith and Gomez referenced the sexual assault that took place at 

Doe’s Sorrento Valley home:

“SMITH: They don’t have any evidence, bro. What . . . type of 

evidence do they have? They have to find the shit on you bro.

“GOMEZ: Well that’s funny ‘cause they described us from the 

Valley incident too.

“SMITH: What did they say?

“GOMEZ: Very detailed.

“SMITH: What did they say?

“GOMEZ: And they put it down as if I had said it.

“SMITH: What did they say?

“GOMEZ: Exactly what happened.
12

“SMITH: What happened? What’d they say?

“GOMEZ: The whole finger incident and her in the shower.

“SMITH: Ah, that’s it?” (Italics added.)

A conversation between Smith and Shawver mentioned the video 

evidence regarding the Doe incident:

“SMITH: Yeah but you say-you seen the video, right?

“SHAWVER: No it didn’t show faces.

“SMITH: What did you see, just the running part or what?

“SHAWVER: My car.

“SMITH: Oh that was there?

“SHAWVER: Mm-hmm. Mine and [Harvey’s].”

iv. Cell phone evidence

Cell phone records suggested that Shawver and Smith were together on 

the day of Doe’s sexual assault and that Smith and Gomez were together 

after the assault. On January 31, Shawver’s and Smith’s cell phones 

connected to cell towers which were near each other at 12:44 a.m. in the 

“UTC La Jolla area” and approximately four to five miles from the crime 

scene. Between 1:10 a.m. and 1:30 a.m., Shawver’s phone connected multiple 

times to a tower just over one mile away from the crime scene. Shawver was 

texting during that time period.

Smith’s cell phone, however, was not activated again until 3:14 a.m. 

when it connected to a tower in Mira Mesa. At 3:14 a.m. and 3:17 a.m., 

Gomez’s phone connected to the same cell tower as Smith’s. Gomez and 

Smith called each other at 3:17 a.m. and 3:19 a.m. and their phones 

connected to the same tower. 
13

v. DNA evidence

The scarf used to cover Doe’s eyes contained Gomez’s DNA. The Doe 

crime scene did not contain any of the other suspects’ DNA. The shoelaces 

used to tie up Betsy or James contained Smith’s DNA. James’s and Betsy’s 

home contained no DNA from the other suspects. Police found Smith’s DNA 

at every crime scene except Doe’s and one of the February 11 crime scenes.

vi. The withheld DNA evidence was not material

Smith contends that the DNA evidence found on Betsy’s wallet, which 

had been discarded on a public street days after the crimes against Doe, 

raised a reasonable probability that the Black man who sexually assaulted 

Doe was not him, but A.B. After our independent review, we agree with the 

trial court’s conclusion that overwhelming evidence existed regarding Smith’s 

guilt for the crimes against Doe and conclude that he was not prejudiced by 

the failure to disclose the DNA evidence. 

Shawver’s testimony connected Smith to Doe’s crimes. The trial court 

described Shawver’s testimony as “very compelling.” Cell phone records 

corroborated Shawver’s account of the evening and suggested that Shawver, 

Smith and Gomez were together that evening. Gomez’s DNA on Doe’s scarf 

and video surveillance from Doe’s neighbor further corroborated Shawver’s 

testimony. More importantly, the holding cell conversations Smith had with 

Gomez and Shawver show that Smith knew important details about Doe’s

crimes. Since there is no reasonable probability that the result of the trial 

would have been different had the DNA evidence been disclosed before trial, 

it was not material. (Salazar, supra, 35 Cal.4th at p. 1043.)

b. Rico did not establish a Brady violation

Rico contends that a reasonable probability existed that the new DNA 

evidence would have changed the outcome of the charges against him for the 
14

Doe incident because it supported his argument that he was the lookout and 

not one of the four men inside Doe’s residence. He reasons that if he was 

outside Doe’s residence he could not be guilty of the sex crimes under a 

natural and probable consequence theory of guilt. 

As a preliminary matter, out of the seven suspects Smith was the only 

Black man. Thus, even assuming A.B. participated in the crimes against Doe 

and not Smith, this fact would not have furthered Rico’s argument that he 

was not the fourth person in the home. Shawver’s testimony established that 

Rico did not remain by the car as a lookout. She testified that Rico was one of 

the four men who left her car and then came running back on the night of 

Doe’s home invasion and sexual assault.

Rico’s argument that his DNA was not found inside Doe’s home fails to 

advance his position. The scarf placed over Doe’s head contained Gomez’s 

DNA, but none of the other items tested from Doe’s home contained the DNA 

of any of the other suspects, including Rico. The DNA expert explained that 

there are a variety of situations where a person touches an item—for 

example, while wearing gloves—without leaving DNA. Notably, Doe testified 

that the Black man and a man dressed in all black clothing wore gloves. She 

also believed that the man in the white hoodie wore gloves, but could not see 

the hands of the Asian or Hispanic man. 

Rico has not shown that the withheld DNA evidence would have put 

the case against him in such a different light as to undermine confidence in 

the verdict on the charges against him pertaining to Doe. (Salazar, supra, 35 

Cal.4th at p. 1050.)
15

B. Substantial Evidence Supports Rico’s Robbery Convictions on Counts 10 

and 24

1. Additional Background

a. January 29 - Burglary and Robbery (Count 10) 

On this day, Thuy H. and Dang N. slept in their bedroom when they 

were startled by commands to wake up. They saw three men with their 

heads covered holding guns pointed towards them. Someone asked for money 

and jewelry. One man tied Thuy’s feet and her hands, and gagged her with a 

scarf. Another man tied Dang’s hands behind his back and covered Dang’s 

head with a t-shirt. The men searched the home for approximately 60 

minutes and ultimately found hidden gold, jewelry and cash.

The couple’s daughter, M.N., and their two grandsons were asleep in 

another bedroom. M.N. woke up when one of the men tried to open her 

bedroom door, but she had the door locked from the inside. She heard talking 

and the sounds of items being moved. She opened the door and looked 

downstairs where she saw her father being held at gunpoint with his hands

tied and head covered. At that moment, one of the men saw M.N. and 

ordered her to stop. The man had a gun and was about six to 10 feet away 

from her. She ran into her room, locked her door and called 911. The men 

left shortly after M.N. saw them. None of M.N.’s property was stolen. The 

jury convicted appellants of three counts of robbery, counts 8, 9, 10 pertaining 

to Thuy, Dang and M.N.

b. February 11 - Burglary and Robbery (Count 24) 

On this day, Thomas B. slept in the upstairs master bedroom of his 

home with his wife, Gina. His two sons were asleep in their upstairs 

bedrooms. Thomas heard his dog barking and growling. He got up to 

investigate and found a man wearing a hoodie and a headlamp outside his 

bedroom door. As Thomas started yelling he saw another man run out of his 
16

youngest son’s bedroom, and a third man near his older son’s bedroom. One 

of the men subdued Thomas at gunpoint.

Gina also woke up when she heard the dog barking. After Thomas 

opened their bedroom door she knew from the tone of his voice that strangers 

were in their home. Gina ran into the hall where she saw her older son, John 

Doe, leaving his bedroom. She called 911 after she heard Thomas yell, 

“ ‘Don’t shoot.’ ” She shouted for John Doe to call 911 and told him to hide 

when she saw a one of the intruders coming up the stairs.

Gina ran into her younger son’s bedroom and tried to close the door as 

one of the intruders pushed on the door. The pair struggled over the door for 

almost a minute until the man gave up and the house quieted. After hiding 

her sons in the master bedroom, Gina went down stairs and found Thomas 

lying on the floor. Thomas told her that the men had left and taken her 

purse. 

John Doe testified about what he saw that night. He woke up to his 

dog barking and his dad yelling. From his open bedroom door he saw what 

appeared to be headlights moving frantically. He called the police in 

response to his mother’s request and walked into the hallway. When he 

looked over the banister he saw his father on the floor and some people 

running around. A man stood over his father with a gun. He saw three men 

in his home, all wearing black. 

A person ran by his door and that person struggled to enter his 

brother’s bedroom. This person also had a gun. His mother then came to his 

room and had him hide in the master bedroom with his brother. The 

intruders took none of John Doe’s property and nothing in his bedroom had 

been moved. The jury convicted appellants of three counts of robbery, counts 

22, 23, 24 pertaining to Thomas, Gina and John Doe.
17

2. Analysis

Rico contends that the evidence does not support his robbery 

convictions on counts 10 and 24 pertaining to M.N. and John Doe. He 

acknowledges that these household members witnessed actions taken toward 

their parents. However, he argues that (1) the property was not possessed by 

these victims or taken from their person or immediate presence, and (2) the 

takings were not accomplished by force or fear.

To determine the sufficiency of the evidence, “we review the entire 

record in the light most favorable to the prosecution to determine whether it 

contains evidence that is reasonable, credible and of solid value, from which a 

rational trier of fact could find that the elements of the crime were 

established beyond a reasonable doubt.” (People v. Tripp (2007) 151 

Cal.App.4th 951, 955.) We must “view the evidence in the light most 

favorable to respondent and presume in support of the judgment the 

existence of every fact the trier could reasonably deduce from the evidence.” 

(People v. Lewis (1990) 50 Cal.3d 262, 277.) It is not our function to reweigh 

the evidence (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), and reversal is 

not warranted merely because the circumstances might also be reasonably 

reconciled with a contrary finding. (People v. Thomas (1992) 2 Cal.4th 489, 

514.) Reversal of a conviction for insufficient evidence is only required if 

under no hypothesis whatever is there substantial evidence to support the 

conviction. (People v. Cravens (2012) 53 Cal.4th 500, 508.)

The elements of robbery are (1) the taking of personal property (2) from 

a person or the person’s immediate presence (3) by means of force or fear and 

(4) with the intent to permanently deprive the person of the property. (§ 211; 

People v. Marshall (1997) 15 Cal.4th 1, 34.) “The fear mentioned in Section 

211 may be either: [¶] 1. The fear of an unlawful injury to the person or 
18

property of the person robbed, or of any relative of his or member of his 

family; or, [¶] 2. The fear of an immediate and unlawful injury to the person 

or property of anyone in the company of the person robbed at the time of the 

robbery.” (§ 212.) 

“Fear may be inferred from the circumstances in which a crime is 

committed or property is taken.” (People v. Holt (1997) 15 Cal.4th 619, 690.) 

The victim’s fear need not be extreme. (People v. Davison (1995) 32 

Cal.App.4th 206, 216.) “[T]he requisite force or fear need not occur at the 

time of the initial taking. The use of force or fear to escape or otherwise 

retain even temporary possession of the property constitutes robbery.” 

(People v. Flynn (2000) 77 Cal.App.4th 766, 772.) “So long as the perpetrator 

uses the victim’s fear to accomplish the retention of the property, it makes no 

difference whether the fear is generated by the perpetrator’s specific words or 

actions designed to frighten, or by the circumstances surrounding the taking 

itself.” (Ibid.) Whether force or fear exists is a question for the trier of fact.

(People v. Mungia (1991) 234 Cal.App.3d 1703, 1707.) 

“[N]either ownership nor physical possession is required to establish 

the element of possession for the purposes of the robbery statute. [Citations.] 

‘[T]he theory of constructive possession has been used to expand the concept 

of possession to include employees and others as robbery victims.’ [Citation.] 

Two or more persons may be in joint constructive possession of a single item 

of personal property, and multiple convictions of robbery are proper if force or 

fear is applied to multiple victims in joint possession of the property taken.”

(People v. Scott (2009) 45 Cal.4th 743, 749-750 (Scott).) 

a. The takings were accomplished by force or fear

The evidence supported the jury’s implied finding that the requisite 

force or fear existed as to both M.N. and John Doe. The trial court instructed 
19

the jury with CALCRIM No. 1600 on robbery. The instruction informed the 

jury that, to support a robbery conviction, the People were required to prove, 

beyond a reasonable doubt, that the “defendant used force or fear to take the 

property or to prevent the person from resisting . . . .” (CALCRIM No. 1600.) 

The instruction further informed the jury that “[f]ear, as used here, means 

fear of injury to the person himself or herself, or injury to the person’s family 

or property.” (CALCRIM No. 1600, italics deleted; § 212.) 

Turning first to M.N., the evidence shows that one of the intruders 

tried to enter her room, but was thwarted by her locked door. After M.N. 

opened her door, she observed her father sitting on the stairs at gunpoint 

with his head covered and hands behind his back telling one of the men that 

he had no money. M.N. ran to her bedroom and locked the door after one of 

the intruders saw her and told her to stop. M.N. was scared because the man 

was about six to 10 feet away from her and carried a gun. The circumstances 

of the robbery reasonably produced fear in M.N. for her own safety, and that 

of her father.

Similarly, during the robbery at John Doe’s home, John Doe looked 

downstairs and saw his father lying face down on the floor. A man stood over 

his father’s head holding a gun. John Doe felt scared and confused. After 

John Doe returned to his bedroom to hide, he saw a person run by his open 

door. John Doe saw the man try to force his way into his brother’s bedroom

where his mother and brother hid. This man also held a gun. During this 

entire time, John Doe’s mother was screaming. These circumstances 

reasonably produced fear in John Doe for the safety of his father, mother and 

brother. 

In both robberies, the force applied to the victim’s family members and 

the fear caused by the robbers’ actions, allowed the robbers to accomplish the 
20

taking and escape with the property. (See People v. Prieto (1993) 15 

Cal.App.4th 210, 211, 215-216 [substantial evidence that appellant’s forceful 

taking of purses of two victims—one of whom held the purses in her lap, and 

the other of whom witnessed the act from a distance and yelled at appellant 

to stop—supported two counts of robbery; victim who witnessed robbery from 

a distance was “fearful and shocked” and thus “less inclined or able than she 

otherwise would have been to prevent appellant from taking her purse”].) 

Thus, we conclude, that M.N. and John Doe were robbery victims. 

b. These family members constructively possessed the stolen property 

under the special relationship doctrine

Rico notes that the property taken from M.N.’s home consisted of her 

mother’s purse and items taken from her parents’ closet. He argues that 

M.N. was not in the master bedroom, nor did she have any possessory 

interest in the stolen property. In the John Doe robbery, the men took 

Thomas’s wallet, cell phone and tablet reader, Gina’s purses and a bag of 

quarters. Rico similarly contends that John Doe was not near the stolen 

property, nor did he have the right to possess this property. He asserts that 

we should decline to follow People v. Hutchinson (2018) 20 Cal.App.5th 539 

(Hutchinson), a case applying the concepts of robbery to a child in a home 

with her parents. Rico expresses doubt whether California law recognizes 

family-owned property. Even if this theory is valid, he contends Hutchinson

is distinguishable because M.N. and John Doe were not subjected to any force 

or fear, and an item had been stolen from the child in Hutchinson.

Any person who owns or who exercises direct physical control over, or 

who has constructive possession of, any property taken may be a victim of a 

robbery if force or fear is applied to such person. (Scott, supra, 45 Cal.4th at 

pp. 749-750.) “For constructive possession, courts have required that the 

alleged victim of a robbery have a ‘special relationship’ with the owner of the 
21

property such that the victim had authority or responsibility to protect the 

stolen property on behalf of the owner.” (Id. at p. 750.) “By requiring that 

the victim of a robbery have possession of the property taken, the Legislature 

has included as victims those persons who, because of their relationship to 

the property or its owner, have the right to resist the taking, and has 

excluded as victims those bystanders who have no greater interest in the 

property than any other member of the general population.” (Id. at pp. 757-

758.) 

Civil Code section 50 establishes the right to use “necessary force” to 

protect the “property of oneself, or of a spouse, child, parent, or other relative, 

or member of one’s family.” “Two or more persons may be in joint 

constructive possession of a single item of personal property, and multiple 

convictions of robbery are proper if force or fear is applied to multiple victims 

in joint possession of the property taken.” (Scott, supra, 45 Cal.4th at p. 750.) 

Accordingly, the single taking of property, by force or fear, from the joint 

possession of more than one victim will support multiple robbery convictions. 

(People v. Ramos (1982) 30 Cal.3d 553, 587 (Ramos), reversed in part on other 

grounds in California v. Ramos (1983) 463 U.S. 992.) 

Hutchinson is a case applying the concepts of robbery to a child present 

in a home with her parents and other family members at the time of the 

home invasion. (Hutchinson, supra, 20 Cal.App.5th at pp. 543-545, 549.) 

Although the Hutchinson court observed that the child’s watch had been 

stolen, it concluded that the child had constructive possession of the property 

stolen from the family based on the family relationship. (Id. at p. 549.) The 

Hutchinson court found “no rational basis to conclude that a minor’s 

constructive possession of or possessory interest in her family’s property is 

nonexistent if majority members of her family are present. . . . The forcible 
22

taking of family-owned (parents or siblings) property impacts both children 

and adults within a family unit.” (Ibid.)7 

Applying these principles here, the evidence supports the jury’s robbery 

finding as to both M.N. and John Doe, who were household family members 

at the time of the home invasions. Civil Code section 50 establishes the right 

to use “necessary force” to protect the property of oneself, a parent or other 

relative. Under this statute, M.N. and John Doe had the authority to protect 

the stolen property, and thus had constructive possession of it. Both family 

members tried to protect the property in the home by calling 911. We agree 

with Hutchinson, supra, 20 Cal.App.5th at p. 549, that the presence of M.N.’s 

and John Doe’s parents did not divest these family members of their 

statutory authority to protect, or their constructive possession of, their 

parent’s property. Where, as here, force or fear is applied to multiple victims 

7 Notably, the California Jury Instructions, Criminal (CALJIC) created a 

new instruction based on Hutchinson, supra, 20 Cal.App.5th 539, which 

provides: “Robbery requires among other things that the victim be in 

possession of the property stolen. There are two kinds of possession: actual 

possession and constructive possession. Actual possession requires that a 

person knowingly exercise direct physical control over a thing. [¶] 

Constructive possession does not require actual possession, but does require 

that a person knowingly exercise control over or the right to control a thing, 

either directly or through another person or persons. [¶] [Two or more 

persons may be in joint constructive possession of a single item of personal 

property, and multiple convictions of robbery are proper if force or fear is 

applied to multiple victims in joint possession of the property taken.] [¶] 

Constructive possession only requires that there be some type of special 

relationship with the owner of the property sufficient to demonstrate the 

victim had authority or responsibility to protect the stolen property on behalf 

of the owner. The victim need not have general authority to control the 

owner’s property in other circumstances. [A special relationship may include 

close relatives, regardless of age, who live in the same household or who visit 

frequently.]” (CALJIC No. 9.40.4 (2020 ed.) pp. 971-972.) 
23

in joint possession of property, multiple robbery convictions are proper. 

(Scott, supra, 45 Cal.4th at pp. 749-750; Ramos, supra, 30 Cal.3d at p. 589.)

In summary, viewing the record in the light most favorable to the 

prosecution, we conclude that the evidence supports Rico’s robbery 

convictions as to M.N. and John Doe.

C. The Use of a Juvenile Adjudication as a Prior Strike Did Not Violate 

Smith’s Sixth Amendment Right to a Jury Trial

1. Additional Background

The prosecution charged Smith with two prior strike convictions

consisting of a 2014 burglary conviction and a 2008 juvenile adjudication for 

robbery. Smith admitted the truth of these two prior convictions. The court 

struck the 2014 conviction, but refused to strike the 2008 juvenile 

adjudication. Thereafter, the court doubled the sentence imposed for each of 

the substantive counts based on Smith’s prior juvenile adjudication.

2. Analysis

In Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) the United 

States Supreme Court stated that “[o]ther than the fact of a prior conviction, 

any fact that increases the penalty for a crime beyond the prescribed 

statutory maximum must be submitted to a jury, and proved beyond a 

reasonable doubt.” (Id. at p. 490.) Citing Mathis v. United States (2016) 579 

U.S. ___ [136 S.Ct. 2243] (Mathis), Descamps v. United States (2013) 570 U.S 

254 (Descamps), and People v. Gallardo (2017) 4 Cal.5th 120 (Gallardo), 

Smith asserts that the trial court violated his Sixth Amendment right to a 

jury trial by using a juvenile adjudication to enhance his sentence. Based on 

these cases, he contends that People v. Nguyen (2009) 46 Cal.4th 1007 

(Nguyen), which previously found that the Sixth Amendment permitted 

juvenile adjudications to serve as strikes under California law, is no longer 

constitutionally viable. Acknowledging that defense counsel did not raise 
24

this issue in the trial court, Smith contends that he received ineffective 

assistance of counsel. The People argue that Smith forfeited this argument 

by failing to raise it in the trial court and, even if preserved, that Nguyen

remains good law. To avoid Smith’s ineffective assistance contention, we 

exercise our discretion to address the issue on its merits. (In re Sheena K.

(2007) 40 Cal.4th 875, 887, fn. 7 [“an appellate court may review a forfeited 

claim—and ‘[w]hether or not it should do so is entrusted to its discretion’ ”].)

The California Legislature has decided that the Three Strikes law 

applies to a defendant who has suffered a qualifying prior juvenile 

adjudication. (§ 667, subd. (d)(3).) In Nguyen, supra, 46 Cal.4th 1007, our 

Supreme Court held that this law does not violate a defendant’s Sixth 

Amendment jury rights or the Apprendi rule. In 2016, after Mathis and 

Descamps were decided, the California Supreme Court addressed Nguyen, 

rejecting defendant’s argument that his juvenile adjudications were 

inadmissible as prior convictions under Apprendi and refusing to reconsider 

Nguyen. (People v. Landry (2016) 2 Cal.5th 52, 117, fn. 18.) 

In Gallardo, supra, 4 Cal.5th 120, the defendant waived her right to a 

jury trial over an allegation that she had a prior assault conviction but 

disputed the allegation that the assault constituted a serious felony and 

qualified as a prior strike. (Id. at pp. 125-126.) The defendant had entered a 

plea in her prior assault case. (Id. at p. 125.) The trial court reviewed a 

preliminary hearing transcript and determined that the assault qualified as a 

prior strike. (Id. at p. 126.) Citing Descamps, the California Supreme Court 

found the trial court’s method untenable because the court essentially 

“engaged in a form of factfinding that strayed beyond the bounds of the Sixth 

Amendment.” (Gallardo, at p. 136.) The Gallardo court explained that in 

determining whether a prior conviction qualifies as a strike, the trial court 
25

may consider only a limited class of documents that “might help identify 

what facts a jury necessarily found in the prior proceeding.” (Id. at p. 137.) A 

preliminary hearing transcript is not within that class because “[a] 

sentencing court reviewing that preliminary transcript has no way of 

knowing whether a jury would have credited the victim’s testimony had the 

case gone to trial.” (Ibid.) 

The Second District Court of Appeal recently addressed this issue, 

stating “[A]lthough Gallardo, [supra, 4 Cal.5th 120], Mathis, [supra, 579 

U.S. ___] and Descamps[, supra, 570 U.S. 254] all disapprove judicial 

factfinding by a sentencing court to determine whether the defendant 

suffered a qualifying prior conviction when that issue is unclear from the fact 

of the conviction itself, none of those cases calls into question Nguyen’s

holding that a sentencing court may impose a sentence enhancement based 

on a prior juvenile adjudication, despite the lack of right to a jury trial in that 

proceeding. As Nguyen remains good law, we are bound to follow it and to 

reject defendant’s argument that the use of his prior juvenile adjudication as 

a prior strike violated his constitutional rights.” (People v. Romero (2019) 44 

Cal.App.5th 381, 389-390.) We agree with this analysis. Accordingly, we 

reject Smith’s contention that the trial court erred by using his juvenile 

adjudication to enhance his sentence.

D. Remand to Consider Striking the Five-Year Enhancement for Smith’s 

Prior Serious Felony Conviction

1. Additional Background

After the jury rendered its guilty verdicts, Smith admitted that he had 

two prior strikes, one prior serious felony, and that he was on felony 

probation when he committed the crimes. The court dismissed one of Smith’s 

prior strikes under Romero, supra, 13 Cal.4th 497 citing Smith’s 

developmental disability, but declined to dismiss his juvenile strike prior 
26

because it involved direct threats of violence and was similar to the instant 

crimes. The trial court sentenced Smith to an aggregate prison term of 85 

years and four months plus 50 years to life, which included a five-year term 

for the prior serious felony on the indeterminate sentence in count 12 (sexual 

penetration) and a five-year term on the determinate sentence.

2. Analysis

Under the previous version of section 1385, subdivision (b), a court was 

required to impose a five-year consecutive term for “any person convicted of a 

serious felony who previously has been convicted of a serious felony” under 

section 667, subdivision (a), and the court had no discretion “to strike any 

prior conviction of a serious felony for purposes of enhancement of a sentence 

under Section 667.” (Former §§ 1385, subd. (b); 667, subd. (a).) Effective 

January 1, 2019, Senate Bill No. 1393 amended section 1385, subdivision (b), 

to allow a trial court to exercise its discretion to strike or dismiss a section 

667 prior serious felony conviction for sentencing purposes. (People v. Garcia

(2018) 28 Cal.App.5th 961, 971 (Garcia).) In Garcia, the court held that 

Senate Bill No. 1393 applies to all judgments not final as of the bill’s effective 

date of January 1, 2019. (Garcia, at p. 973.)

Smith asserts that his case should be remanded for resentencing in 

light of Senate Bill No. 1393. The Attorney General concedes that Senate Bill 

No. 1393 applies retroactively to Smith’s nonfinal case, but argues that 

remand would be futile based on the trial court’s statements at sentencing. 

The court sentenced Smith approximately four months before the

amendment to section 1385. When a court is unaware of the scope of its 

discretionary powers, “the appropriate remedy is to remand for resentencing 

unless the record ‘clearly indicate[s]’ that the trial court would have reached 
27

the same conclusion ‘even if it had been aware that it had such discretion.’ ” 

(People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.) 

The trial court exercised its discretion to strike one of Smith’s prior 

strikes, but declined to strike the second juvenile strike and sentenced Smith 

under the one strike law. Additionally, as the Attorney General notes, the 

trial court made comments during Smith’s sentencing hearing acknowledging 

Smith’s purposeful and cruel conduct toward his victims. Nonetheless, we 

cannot say, on the record before us, that the trial court clearly indicated it 

would decline to exercise its discretion to strike Smith’s prior serious felony 

enhancement if presented with the opportunity to do so. 

Accordingly, we vacate Smith’s sentence and remand to allow the trial 

court to decide whether to exercise its discretion to strike the five-year 

enhancement imposed under section 667, subdivision (a). If the court does so, 

it is to resentence Smith. If the court declines to strike this enhancement, 

Smith’s previously imposed sentence shall remain in effect. We express no 

opinion as to how the trial court should exercise its discretion on remand.

E. Rico Forfeited his Ability to Pay Argument

The trial court imposed victim restitution of $59,484, and $10,000 

restitution fines (§§ 1202.4, 1202.45), a $1,080 court security fee (§ 1465.8), a 

$810 criminal conviction assessment (Gov. Code, § 70373), a $154 fee (Gov. 

Code, § 29550.1), a $300 sex registration fee (§ 290.3), and a $39 theft fine 

(§ 1202.5). Citing People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), 

Rico argues that the trial court erred by imposing a court operations 

assessment as required by section 1465.8 and the court facilities assessment 

mandated by Government Code section 70373, without first determining his 

ability to pay. (Dueñas, at p. 1168.) He further contends that the trial court 

must stay execution of the restitution fine under section 1202.4 unless and 
28

until the court determines that he has the has the ability to pay the fine. 

(Dueñas, at p. 1172.)

The Attorney General asserts that Rico forfeited his argument

regarding the restitution fine by failing to object in the trial court. The 

Attorney General also argues that Dueñas was wrongly decided as 

to punitive fines, but “does not take issue with the Dueñas opinion insofar as 

it holds the imposition of non-punitive assessments violates due process 

where a defendant demonstrates an inability to pay them.”

The validity of Dueñas, supra, 30 Cal.App.5th 1157 is unsettled and 

will be decided by our Supreme Court. (People v. Hicks (2019) 40 Cal.App.5th 

320, 326, review granted Nov. 26, 2019, S258946; People v. Kopp (2019) 38 

Cal.App.5th 47, 94, review granted Nov. 13, 2019, S257844.) Accordingly, it 

is unnecessary for us to comment on the merits of the analysis employed 

in Dueñas.

Even before Dueñas, Rico had a statutory right to object to the $10,000 

maximum restitution fine on the basis that he lacked the ability to pay. 

(§ 1202.4, subd. (c); People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033

(Gutierrez).) His failure to do so forfeits this claim of error on appeal. 

(Gutierrez, at p. 1033 [“[E]ven if Dueñas was unforeseeable (a point on which 

we offer no opinion), under the facts of this case [defendant] forfeited any 

ability-to-pay argument regarding the restitution fine [above the statutory 

minimum] by failing to object.”].) Because Rico did not raise any issue 

concerning his ability to pay a $10,000 restitution fine, we conclude he has 

also forfeited his challenge to the much smaller fees and assessments. 

(Gutierrez, at p. 1033 [defendant’s failure to challenge a restitution fine 

greater than minimum on grounds of inability to pay forfeited defendant’s 
29

objection to fees on same grounds]; accord, People v. Smith (2020) 46 

Cal.App.5th 375, 395.)8

DISPOSITION

Smith’s sentence is vacated and the matter is remanded to allow the 

trial court to exercise its discretion and determine whether to strike the 

serious felony enhancement. If the court strikes the enhancement, then the 

court shall resentence Smith accordingly and shall forward an amended 

abstract of judgment to the appropriate authorities. If the court declines to 

strike this enhancement, Smith’s previously imposed sentence shall remain 

in effect. In all other respects, the judgments are affirmed.

IRION, J.

WE CONCUR:

McCONNELL, P. J.

HUFFMAN, J.

8 Rico did not challenge the court’s award of victim restitution in his 

opening brief, but mentions it his reply brief. By not raising this argument in 

his opening brief, however, Rico forfeited this argument. (People v. Rangel

(2016) 62 Cal.4th 1192, 1218-1219.)