Filed 5/26/17 P. v. Allen CA1/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,
Plaintiff and Respondent,
v.
EUGENE ALLEN,
Defendant and Appellant.

A148089

(Solano County
Super. Ct. No. VCR222849)


Eugene Allen was convicted of four counts of second degree robbery arising from a single incident involving four victims. Three of the victims testified but the fourth, K.K., did not. Allen contends the evidence was insufficient to prove he took property from K.K.’s person or immediate presence or that he did so by means of force or fear. Sufficient evidence supports the verdicts, so we affirm.
BACKGROUND
Four friends were standing near their locked car in Vallejo when a car drove past them and parked. Four men got out. The men walked past the group of friends, then returned and asked if there was a game that evening and if anyone had weed to sell. The friends said no. Next, the men asked if anyone had a cell phone they could use. One of the friends said he had a phone but they could not use it; the others said no. The four men “got aggressive,” surrounding the four friends and asking “what we had on us.”
Allen pulled a handgun from his waistband, pointed it at one of the friends and took his phone and other items from his pockets. He and another man removed that victim’s sweatshirt while their companions guarded the other victims. Then, passing the gun around between them, the robbers pointed it at the victims and robbed them in turn of their cell phones and other belongings.
The robbers fled but were apprehended within several hours when their car was pulled over for running a stop sign. Allen, the driver, had K.K.’s phone. The other victims’ phones and stolen belongings were found in the car.
K.K. did not testify at trial, but each of the other victims identified Allen as one of the robbers. The jury found him guilty of four counts of second-degree robbery and acquitted him of two charges related to shots allegedly fired from the car after the robbery. It also found true allegations that Allen was armed with a handgun and personally used it in robbing one of the victims, but found those allegations not true as to the other three victims.
Allen was sentenced to 15 years in prison. This appeal was timely filed.
DISCUSSION
Robbery is “‘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.” [Citation.] The crime is essentially a theft with two aggravating factors, that is, a taking (1) from victim’s person or immediate presence, and (2) accomplished by the use of force or fear.” (Miller v. Superior Court (2004) 115 Cal.App.4th 216, 221.) Allen challenges the sufficiency of the evidence to prove these two factors as to the robbery of K.K., the only victim who did not testify at trial.
The principles governing our review are well settled. “When an appellant attacks the sufficiency of the evidence to support a conviction, this court must examine the entire record in the light most favorable to the judgment below and presume in support of the judgment the existence of every fact that can reasonably be deduced from the evidence. [Citation.] Substantial evidence includes circumstantial evidence and the reasonable inferences flowing therefrom. [Citation.] If the circumstances reasonably justify the findings of the trier of fact as to each element of the offense, an opinion of the reviewing court that the circumstances might also lead to a contrary finding does not warrant reversal.” (In re Leland D. (1990) 223 Cal.App.3d 251, 258.)
Substantial evidence supports the jury’s implicit determination that Allen or his accomplices took K.K.’s phone by force or fear. “ ‘The terms “force” and “fear” as used in the definition of the crime of robbery have no technical meaning peculiar to the law and must be presumed to be within the understanding of jurors.’ ” (People v. Anderson (2007) 152 Cal.App.4th 919, 946.) “If the record demonstrates adequate evidence from which the jury might have inferred the existence of either force or fear, the appellate court must affirm.” (People v. James (1963) 218 Cal.App.2d 166, 170.) Such is the case here. Four assailants surrounded four victims. Allen pulled out a gun, which he and his accomplices passed between themselves and pointed at the victims while, one by one, they rifled through their pockets and took their cell phones and other belongings. On this record, Allen’s assertion the jury could not reasonably infer K.K.’s belongings were taken by force or fear because none of the victims testified to seeing the perpetrators point the gun directly at him or specifically demand his property defies common sense and experience.
His contention the evidence was insufficient to prove K.K.’s phone was taken from his “person or immediate presence” is equally unsound. An object is within a person’s “immediate presence” if it 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.” ’ ” (People v. Hayes (1990) 52 Cal.3d 577, 627.) Thus, the term signifies “at least an area within which the victim could reasonably be expected to exercise some physical control” over his or her property. (Ibid.) “Under this definition, property may be found to be in the victim’s immediate presence ‘even though it is located in another room of the house, or in another building on [the] premises.’ ” (Ibid.) Here, the four victims were standing outside one victim’s locked car when the robbers approached them. The men held them at gunpoint and went through their pockets, taking their phones and other personal property. K.K.’s phone was found on Allen’s person a few hours later. It was eminently reasonable for the jury to infer that Allen or his accomplices had taken it from K.K.’s pocket or “immediate presence.” Indeed, it is hard to imagine from where else the robbers might have taken it.
DISPOSITION
The judgment is affirmed.
 






_________________________
Siggins, J.


We concur:


_________________________
Pollak, Acting P.J.


_________________________
Jenkins, J.




















People v. Allen, A148089