In re Ahmed I

Filed 4/10/06 In re Ahmed I. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Carol Isackson, Judge. Affirmed.

Following a contested hearing in June 2005, the juvenile court found true allegations in a delinquency petition filed against defendant Ahmed I. under Welfare and Institutions Code section 602 charging that he had committed the following four felony offenses (among others): (1) count 1: conspiracy to commit burglary at the Albertsons grocery store in Rancho Penasquitos (Pen. Code,^[1] § 182, subd. (a)(1)); (2) count 2: robbery (§ 211);^[2] (3) count 3: burglary (§ 459); and (4) count 6: possession of stolen property (§ 496, subd. (a)).^[3] At the August 2005 dispositional hearing, the court adjudged Ahmed a ward under Welfare and Institutions Code section 602 and granted him probation to the court for a period of one year or until Ahmed's 18th birthday.

Ahmed appeals, contending there is insufficient evidence to support the juvenile court's robbery true finding because there is no evidence to show that the property was taken from the victim's "immediate presence" as required by section 211.

For reasons we shall discuss, we hold that (1) the "immediate presence" requirement for an Estes robbery^[4] need not be satisfied at the time of the initial unlawful taking of personal property from the actual or constructive possession of another, and (2) substantial evidence of a defendant's retention of personal property, initially taken without force or fear, as he or she is attempting to carry the loot to a place of temporary safety is sufficient to support the immediate presence element of such a robbery where the evidence also shows that the defendant's retention of the property is accomplished by means of force or fear in the immediate presence of the victim who is seeking to regain possession of that property. We also conclude that substantial evidence and applicable case law support the juvenile court's implied finding that the stolen merchandise involved in this case was taken from the victim's "immediate presence" within the meaning of section 211, and thus the court did not err by implicitly finding that Ahmed aided and abetted the robbery. Accordingly, we affirm.

FACTUAL BACKRGOUND

A. The People's Case

In the afternoon of October 30, 2004, Ahmed and his neighbor Abdifatah Ali (Ali) picked up Harad Abdi (Abdi) and Abdinasir Mohamud (Mohamud) and drove to an Albertsons grocery store in Rancho Penasquitos. While Ahmed and Ali stayed in the car, Abdi and Mohamud went into the Albertsons.

Tamara Paules, an Albertsons employee who worked in the front of the store, was on the lookout for push-out activities in the store. Paules testified that "push-out" incidents typically involve at least two people who fill a grocery cart full of baby formula and diapers and then push the cart out of the store without paying for the items. During the previous two years, push-out incidents had occurred regularly at that Albertsons store.

Paules was working near the front entrance of the store when another employee, who was working at the east end of the store, notified her of a push-out. Paules did not witness the incident.

Paules walked outside the store to get a "visual," and saw two young Black males (Abdi and Mohamud, according to Abdi's trial testimony) walk into the parking lot area with a grocery cart full of baby formula and diapers. She called out and asked, "Can I have my stuff back?" The young man walking in front of the cart turned around, held his fist up to his face, and said to Paules in a threatening manner, "Do you want to get hurt?" Paules went back into the store when she was threatened.

Abdi testified that after he and Mohamud walked out of the Albertsons, an angry woman followed them, talked with them, and "just went back" into the store.

At trial, Ali acknowledged that he and Ahmed were friends. He could not remember whether he told Detective Barney Olson of the San Diego Police Department that Ahmed had received a phone call and had asked Ali whether he wanted to make some money. Ali denied telling Detective Olson that he told Ahmed he did want to make some money. Ali also testified that Ahmed did not know about the plan to steal at Albertsons because Ahmed was talking on the phone while they, Abdi and Mohamud were driving to that store. He denied telling Detective Olson that they had all decided to steal at Albertsons.

Ali also testified that while he was in the car at Albertsons, he saw a woman talking to Abdi and Mohamud. When Abdi and Mohamud returned to the car with the grocery cart, Ali popped open the trunk and watched them put the baby formula and diapers inside it.

Ali also stated that as he was driving away with the others on a freeway, a California Highway Patrol officer stopped them because he (Ali) did not have a license plate on the back of his car. The officer released them after Ali showed his car registration.

When asked whether he knew that Abdi and Mohamud were going to steal when he drove them to the Albertsons, Ali testified, "I might have, but I didn't know they was [sic] going to steal." Upon further questioning by the prosecutor, Ali acknowledged he told Detective Barney Olson (Detective Olson) of the San Diego Police Department that he thought they were going to steal.

Ali stated he exited the freeway and parked next to a Ralphs grocery store. Ahmed and Ali stayed in the car as Abdi and Mohamud walked over to a fast-food restaurant. After Abdi returned to the car, a police officer came up to the car and made a police stop.

Sometime before the police stop, Christina Ruiz, the service manager of the Ralphs, reported to the police two theft-related incidents that had occurred at the store that afternoon, which involved the same group of at least six Black males in their twenties who were familiar to Ralphs' employees for stealing baby formula. Ruiz testified that during the first incident she chased after the group and saw them get into a small, red four-door car that had "[n]o tags in the back." Ruiz reported the incident to the police. During the second incident, Ruiz saw the same car and again called the police.

In response to Ruiz's call, San Diego Police Officer Robin Offerdahl arrived at the Ralphs parking lot area to investigate the incident. Officer Offerdahl testified that he stopped a red four-door Nissan that did not have a license plate. Ahmed, Ali and Abdi were inside the car. Following Ruiz's identification of the suspects, they were arrested and the car was impounded. During an impound search of the trunk of the car, Officer Offerdahl found powdered milk products for infants and several packages of diapers.

Detective Olson testified that when he interviewed Ali and Abdi, Ali denied that he participated in the Ralphs burglary, but admitted he was involved in the Albertsons burglary. Ali told Detective Olson that he was taking Ahmed to driving school when Ahmed received a phone call, and then asked him (Ali) whether he would like to make some money, and Ali told Ahmed that he would. Ali also told Detective Olson that after they picked up Abdi and Mohamud, they all agreed they would steal baby food and then drove to the Albertsons in Rancho Penasquitos where Abdi and Mohamud stole diapers and baby formula. Ali also told the detective that as Abdi and Mohamud pushed a cart toward the car, he observed a confrontation between them and a White woman, and they all drove to the Ralphs store in Mira Mesa after Abdi and Mohamud placed the items in the trunk of the car.

Detective Olson also stated that he spoke with Abdi, who told him that he and Mohamud had stolen some items from the Albertsons store. Abdi told Detective Olson that he had been with Ahmed, Mohamud and Ali, and that they had all agreed to steal baby formula or diapers from Albertsons.

Abdi also testified that he and Ahmed were friends. He denied telling Detective Olson that it was everyone's idea to steal items from the Albertsons store. Abdi also testified that Ahmed did not know anything about the plan to steal because he was talking on his cell phone.

Paules testified that the police returned to one of her assistants some of the items that had been taken from the Albertsons store. Paules stated that the returned items were valued at $452.

B. The Defense

Ahmed testified on his own behalf. He stated that after Ali picked up Abdi and Mohamud, he (Ahmed) talked "nonstop" with a friend for about two hours on his cell phone and did not know what the others in the car were talking about. He said he could not hear the conversation because music was playing in the car, and he got off the phone as they were leaving the Albertsons. He denied that he ever stated to anyone that "[w]e're going to make some quick money" and denied that he was part of a scheme to steal baby food.

Mohamud testified for the defense that he, Abdi and Ali discussed "doing the mission," but Ahmed knew nothing about it. He stated that when they arrived at the Albertsons and "got the items," Ahmed did nothing to help them because "[h]e was in the car supposedly not knowing nothing [sic] was happening."

STANDARD OF REVIEW

"'"When the sufficiency of the evidence is challenged on appeal, the court must review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence─i.e., evidence that is credible and of solid value─from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt."' [Citations.] When undertaking such review, our opinion that the evidence could reasonably be reconciled with a finding of innocence or a lesser degree of crime does not warrant a reversal of the judgment. [Citation.]" (People v. Hill (1998) 17 Cal.4th 800, 848-849.)

"'Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder. [Citations.]' [ Citation.]" (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)

DISCUSSION

Ahmed contends there is insufficient evidence to support the juvenile court's true finding that he committed robbery because there is no evidence to show that the stolen diapers and baby formula were taken from the "person or immediate presence" of the victim (Paules) when Abdi and Mohamud gained possession of those items inside the Albertsons store, as required (Ahmed maintains) by section 211 and decisional authority. We reject this contention.

A. Applicable Legal Principles

1. Section 211

Section 211 defines robbery as "the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (Italics added.) "The crime is essentially a theft with two aggravating factors, that is, a taking (1) from [the] victim's person or immediate presence, and (2) accomplished by the use of force or fear. [Citations.]" (Miller, supra, 115 Cal.App.4th at p. 221, italics added.)

"The taking element of robbery itself has two necessary elements, gaining possession of the victim's property and asporting or carrying away the loot." (People v. Cooper (1991) 53 Cal.3d 1158, 1165 (Cooper), italics added.)

The California Supreme Court has interpreted the term "immediate presence" set forth in section 211 to mean an area within which the robbery victim exercises some physical control over the stolen property. (See 2 Witkin & Epstein, Cal. Criminal law (3d ed. 2000) Crimes Against Property, § 91, pp. 120-121, citing People v. Hayes (1990) 52 Cal.3d 577, 626-627 (Hayes).) In Hayes, the Supreme Court explained that "[t]he generally accepted definition of immediate presence . . . is that '"[a] thing is in the [immediate] presence of a person, in respect to robbery, which is so within his reach, inspection, observation or control, that he could, if not overcome by violence or prevented by fear, retain his possession of it."' (Hayes, supra, 52 Cal.3d at pp. 626-627, quoting Commonwealth v. Homer (1920) 235 Mass. 526, 533 [127 N.E. 517, 520].)

Witkin states that "[t]he general rule is that if property is obtained peacefully, its retention by force or fear does not constitute robbery. [Citation.]" (2 Witkin & Epstein, Cal. Criminal law, supra, Crimes Against Property, § 95, p. 127, italics deleted.) Citing Estes, supra, 147 Cal.App.3d at page 28, and other case authorities, however, Witkin also states that "[t]he California cases, relying on the theory that escape with the loot is part of the robbery . . . , are contra." (2 Witkin & Epstein, Cal. Criminal Law, supra, § 95, p. 237.)

2. Estes

In Estes, supra, 147 Cal.App.3d 23, a retail store security guard observed the defendant take some items of merchandise and leave the store without paying for them. (Id. at p. 26.) Nothing in that case suggests that the defendant used "force or fear" (see § 211) at the time he gained possession of the merchandise inside the store. (See Estes, supra, 147 Cal.App.3d at p. 26.) When the security guard followed the defendant outside the store, identified himself, and attempted to detain the defendant, the defendant pulled out a knife and threatened to kill the guard, who returned to the store for help. (Ibid.) Noting that the guard, who was employed to prevent thefts of merchandise, had "constructive possession" of the merchandise to the same degree as a salesperson, the Estes court upheld the defendant's robbery conviction, stating that "[t]he evidence establishe[d] that [the defendant] forceably [sic] resisted the security guard's efforts to retake the property and used that force to remove the items from the guard's immediate presence." (Id. at p. 27, italics added.) Rejecting the defendant's contention that the stolen merchandise was not taken from the "immediate presence" of the security guard, the Estes court explained that "[b]y preventing the guard from regaining control over the merchandise, defendant is held to have taken the property as if the guard had actual possession of the goods in the first instance. [Citation.]" (Ibid., italics added.)

Thus, Estes held that the "immediate presence" element required by section 211 was satisfied in that case because (1) the security guard who followed the defendant into the parking lot had constructive possession of the stolen merchandise at the time the defendant gained possession of it inside the store, and (2) the defendant "remove[d]" the stolen merchandise from the guard's immediate presence in the parking lot during the asportation phase of the robbery as the guard was attempting to regain possession of the property. (Estes, supra, 147 Cal.App.3d at p. 27.)

3. Cooper

The California Supreme Court cited Estes with approval in Cooper, supra, 53 Cal.3d 1158. In Cooper, which the high court decided in 1991 (about eight years after the Court of Appeal decided Estes in 1983), the defendant drove his two codefendants to the parking lot of a shopping center. (Id. at p. 1161.) While the defendant was sitting in the car, his codefendants ran across the parking lot, knocked an elderly shopper to the ground, and stole his wallet. (Ibid.) The codefendants fled with the loot to the defendant's car, and the defendant drove them away from the scene. (Ibid.) The California Supreme Court stated in Cooper that "[t]he main issue here . . . is the duration of the commission of a robbery for purposes of determining whether a getaway driver is liable as an aider and abettor rather than an accessory." (Id. at pp. 1160-1161.) The high court also stated that it was called upon to decide "whether a person may properly be classified as an aider and abettor, where he had no knowledge of a robbery until the robber's entry into the getaway car but thereafter knowingly aided the robber in the getaway." (Id. at p. 1164.)

Noting that the asportation phase of the taking element of robbery "continues . . . as long as the loot is being carried away to a place of temporary safety," the Cooper court upheld the defendant's conviction as an aider and bettor, stating that to be convicted of the offense of aiding and abetting a robbery, "a getaway driver must form the intent to facilitate or encourage commission of the robbery prior to or during the carrying away of the loot to a place of temporary safety." (Cooper, supra, 53 Cal.3d at p. 1165, italics added, fn. omitted.) Citing Estes with approval in a footnote, the high court stated in dicta that "a long line of Court of Appeal cases, left undisturbed by this court, hold[s] that mere theft becomes robbery if the perpetrator, having gained possession of the property without use of force or fear, resorts to force or fear while carrying away the loot." (Cooper, supra, 53 Cal.3d at p. 1165, fn. 8, italics added.)^[5]

4. Miller

In Miller, supra, 115 Cal.App.4th 216, the defendant took a wallet with a Velcro fastener from the victim's unattended trousers in a public restroom at La Jolla Cove after the victim changed into his swimming trunks and walked out of the restroom, inadvertently leaving his pants hanging in one of the restroom's enclosed stalls. (Id. at p. 219.) When the victim realized his mistake, he returned to the stall, found his pants were missing, and heard the sound of someone opening Velcro in another stall. (Ibid.) When the victim confronted the defendant, who appeared to be shielding something from the victim's view, the defendant charged at him and tried to push his way out of the restroom. (Id. at pp. 219-220.) The defendant challenged the trial court's denial of his section 995 motion to dismiss the robbery charge against him by filing in this court a petition for writ of prohibition, asserting that because there was no evidence to show the property was taken from the victim's person or immediate presence, the evidence admitted at his preliminary hearing was insufficient to support the robbery charge. (Miller, supra, 115 Cal.App.4th at p. 221.)

In a split decision, this court denied the writ petition in Miller and held that the preliminary hearing evidence was sufficient to support the existence of a taking from the victim's immediate presence. (Miller, supra, 115 Cal.App.4th at p. 224.) In the majority opinion, this court explained that "[t]raditionally, the 'immediate presence' requirement has been described as relating to the 'gaining possession' element of the taking rather than the 'carrying away' element of a robbery charge." (Id. at p. 222, citing Cooper, supra, 53 Cal.3d at p. 1166.) Relying on Estes, supra, 147 Cal.App.3d 23, however, the Miller majority explained that "subsequent authority establishes that the victim's presence after the taking is in progress is sufficient to establish the immediate presence element of a robbery charge." (Miller, supra, 115 Cal.App.4th at p. 222, italics added.) The majority opinion also explained that "in light of the widespread acceptance of the analysis of Estes[, supra, 147 Cal.App.3d 23] and the fact that the California Supreme Court has not criticized or overruled Estes in the 20 years since that decision issued, we do not believe that our opinion expresses a change in the law, but instead reflects the current state of the law on the issue of what is sufficient to establish the immediate presence element of a robbery charge. We conclude . . . that, although the immediate presence and force or fear elements of robbery originally had to be satisfied at the time of the gaining possession aspect of a taking, the law has long since allowed these elements to be supplied after the defendant has initially gained possession of the victim's property."^[6] (Miller, supra, 115 Cal.App.4th at p. 224, italics added.)

We agree with this court's Miller majority that Estes was correctly decided and Cooper did not overrule or disapprove of Estes in any respect. (Miller, supra, 115 Cal.App.4th at pp. 223-224.) We hold that (1) the "immediate presence" requirement for an Estes robbery need not be satisfied at the time of the initial unlawful taking of personal property from the actual or constructive possession of another, and (2) substantial evidence of a defendant's retention of personal property, initially taken without force or fear, as he or she is attempting to carry the loot to a place of temporary safety is sufficient to support the "immediate presence" element of such a robbery where the evidence also shows that the defendant's retention of the property is accomplished by means of force or fear in the immediate presence of the victim who is seeking to regain possession of that property.

B. Analysis

As already noted, Ahmed contends the juvenile court's true finding as to the robbery count must be reversed because there is no evidence that the perpetrators, Abdi and Mohamud, took the merchandise from Paules's person or immediate presence at the time they gained possession of the merchandise inside the store. He relies on Paules's testimony that she was in the front end of the Albertsons store when another employee notified her that a push-out had occurred at the door on the east side of the store, and thus she did not see the incident. Ahmed maintains that Paules "was simply not in a location to perceive that the incident was occurring such that she could reasonably be expected to exercise some physical control over the property during the gaining possession phase of the taking." (Italics added.) We reject these contentions.

Under the authorities discussed, ante, we must uphold the juvenile court's true finding that Ahmed aided and abetted^[7] the robbery if substantial evidence demonstrates that Abdi or Mohamud used force or fear to retain possession of the merchandise in Paules's immediate presence as they were attempting to carry that merchandise to the car in which their accomplices, Ahmed and Ali, were waiting.

We conclude that substantial evidence supports a finding that Abdi and Mohamud used fear in Paules's immediate presence during the asportation phase of the Estes robbery at issue here in order to retain possession of the stolen merchandise as Paules was attempting to recover the property from them in the parking lot. Specifically, Paules testified that when she learned about the push-out, she walked outside the store to get a visual, and saw two young Black males walk into the parking lot area with a grocery cart full of baby formula and diapers. Abdi's own testimony establishes that he and Mohamud took the merchandise, and they were the two males to whom Paules was referring in her testimony.

Paules also stated that as one of the youths was pushing the cart, she heard the other say "Come on, let's go" as he walked in front of the cart. Paules testified she called out, "Hey, you guys, I got you. Can I have my stuff back?" Abdi and Mohamud, however, continued walking with the cart, the one in front saying, "Come on, let's go." Paules stated that the man walking in front of the cart turned around, held his fist up to his face, and said to her in a threatening manner, "Do you want to get hurt?" Paules testified that the man who threatened her was not within "swinging distance" of her, and made no physical contact with her. She also stated that she went back into the store when she was threatened.

The foregoing substantial evidence supports a finding that Abdi and Mohamud threatened Paules in the parking lot as she was attempting to regain possession of the items during their attempt to carry away the stolen property to the getaway car in which Ahmed, their accomplice, was waiting. We thus conclude there is sufficient evidence to support the court's implied finding that the items were taken from Paules's "immediate presence" within the meaning of section 211. (Miller, supra, 115 Cal.App.4th at p. 224.)

DISPOSITION

The judgment is affirmed.

NARES, Acting P. J.

WE CONCUR:

McINTYRE, J.

AARON, J.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Apartment Manager Attorneys.

^[1] All further statutory references are to the Penal Code unless otherwise specified.

^[2] Count 2 alleged that "[o]n or about October 30, 2004, [Ahmed] did unlawfully and by means of force and fear take personal property from the person, possession and immediate presence of Tammy Paules, in violation of [section 211], a felony." (Italics added.) With respect to this count, as to which the court would make a true finding, the prosecutor argued during her closing statement that Ahmed aided and abetted the robbery: "The robbery, count 2, which is an Estes [People v. Estes (1983) 147 Cal.App.3d 23] robbery, is in conjunction with [Paules] because we believe that [Ahmed] was an aider and abettor to that act, and, as such, is responsible. I think it's absolutely foreseeable that that would be a consequence of the theft, that an individual from the [Albertsons] store would come out and confront the individuals, and consequently [Ahmed], as . . . an aider and abettor, is responsible." (Italics added.) The term "Estes robbery" is discussed in footnote 4, post.

^[3] The court's minutes state that "Count 6 [was] precluded pursuant to [section] 654." The court dismissed several other counts not at issue in this appeal.

^[4] In the majority opinion in Miller v. Superior Court (2004) 115 Cal.App.4th 216 (Miller) (discussed, post), this court stated that "robberies in which the victim only comes upon the defendant after the latter has gained possession of the stolen property are commonly referred to as 'Estes robberies.'" (Miller, supra, 115 Cal.App.4th at p. 223.)

^[5] In Miller (discussed, post), this court observed in the majority opinion that "although Cooper described the immediate presence element of a robbery charge as relating to the 'gaining possession' element of the taking rather than the 'carrying away' element [citation], the opinion did not overrule or disapprove of Estes in any respect, but rather cited Estes with approval." (Miller, supra, 115 Cal.App.4th at pp. 223-224, citing Cooper, supra, 53 Cal.3d at p. 1165 & fn. 8.) We agree with this analysis.

^[6] The dissenting opinion in Miller disagreed "with the majority opinion that the crime of robbery has evolved into a retention rather than a taking crime," and criticized the majority opinion's reliance on Estes, supra, 147 Cal.App.3d 23, stating that "Estes, under its facts, established only that the force or fear element of robbery could be satisfied if present during the asportation phase of the incident." (Miller, supra, 115 Cal.App.4th at pp. 227, 228.)

^[7] In Cooper, supra, 53 Cal.3d at page 1164, the Supreme Court explained that "[a] person aids and abets the commission of a crime when he or she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime. [Citation.]" Here, Ahmed does not challenge the sufficiency of the evidence with respect to the foregoing elements of aider and abettor liability. Rather, his sole contention on appeal is that "there was no evidence that the property was taken from the victim's 'person or immediate presence'" during the "gaining possession phase" of the taking of the merchandise inside the Albertsons store.