Filed 7/31/17 P. v. Alvarez CA4/3






NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE


THE PEOPLE,

Plaintiff and Respondent,

v.

RYAN PATRICK ALVAREZ,

Defendant and Appellant.


G053325

(Super. Ct. No. 15CF1951)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, David A. Hoffer, Judge. Affirmed.
Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Anthony DaSilva and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
After visiting a store fitting room, Ryan Alvarez turned shoplifting into a conviction for second degree robbery by choking a Kohl’s store loss prevention officer who chased him down after he left the store with various items of clothing (socks, boxers and another pair of pants) stuffed into his trousers. This sort of escalation of crimes from what would ordinarily be a misdemeanor into a felony is commonly referred to among lawyers specializing in criminal law as an “Estes robbery,” after People v. Estes (1983) 147 Cal.App.3d 23 (Estes ). That court held Estes committed a robbery because he used force to prevent a “guard from retaking the property and to facilitate his escape.” (Id. at p. 28.)
Alvarez was convicted of both robbery and assault with force likely to produce great bodily injury. He was sentenced to two years in prison for the robbery, and two years for the assault, but the assault sentence was stayed pursuant to Penal Code section 654. On appeal Alvarez claims that because the Kohl’s store loss prevention officer violated two internal store policies in regard to dealing with shoplifters – do not chase a suspect beyond 100 feet of the store, and do not have any physical contact with the suspect – the officer was not an agent of the store at the time of the choking. Alvarez’s theory is that given the officer’s violation of internal store protocols, he did not “constructively” possess stolen items at the time of the choking, hence no robbery. He also argues there was insufficient evidence to sustain the assault conviction because his hands were not “consistently and uninterruptedly” around the officer’s neck.
We may deal with the challenge to the assault conviction summarily. After Alvarez left the store, pants stuffed with Kohl’s merchandise, he was chased by the officer to a nearby parking lot, where the assault was captured on video. That video was entered into evidence as People’s exhibit 2, and viewed by the jury. We too have viewed the exhibit. The jury saw a small man (the officer) chase a much taller man (Alvarez) into the parking lot, and tackle him. As they went down, the taller man ended up on top of the smaller man, and started to choke him – or at least that’s what it looks like. The taller man’s hands were clearly around the smaller man’s neck. As far as the video shows, the smaller man might very well have died except that a third, somewhat heavier man, another Kohl’s loss prevention officer, rescued him by grabbing the taller man.
Though we aren’t triers of fact, a reasonable jury could readily conclude from the video that the smaller man would have sustained great bodily injury if he hadn’t been rescued by his compatriot. It makes no difference that the smaller man did not lose consciousness for those few moments he was being choked, nor are we aware of any rule of law that choking, as in being “choked to death,” is somehow rescinded if the perpetrator’s hands are off the victim’s neck for a few moments. But for whatever that argument’s worth, having viewed the video, the choking looks continuous to us.
That leaves the legal question presented, since there is no dispute that the smaller man who literally chased Alvarez down was violating internal store protocols to have done so, particularly to have tackled him. We should also note here that there was no evidence that the officer was subsequently disciplined, or even admonished, for his zealousness – some might say heroism others, imprudence.
Our analysis is guided by People v. Scott (2009) 45 Cal.4th 743 (Scott). Scott arose out of a MacDonald’s robbery where money was taken from a safe. The high court upheld convictions of robbery against the two defendants based on the constructive possession of the money in the safe by two employees of the restaurant, neither of whom (one took orders, the other worked the drive-through window) had any access to the restaurant’s safe. It was a third employee, the manager, who opened the safe for the defendants and there was no question that she was a victim of robbery. The issue was whether the two other employees were victims too.
The Scott court held the fact the two other employees were employees of the restaurant was enough to establish their constructive possession of the money taken from the safe: “Although not every employee has the authority to exercise control over the employer’s funds or other property during everyday operations of the business, any employee has, by virtue of his or her employment relationship with the employer, some implied authority, when on duty, to act on the employer’s behalf to protect the employer’s property when it is threatened during a robbery.” (Scott, supra, 45 Cal.4th at p. 754.)
If fast food employees having no internal authority over money were held to have had constructive possession of money in their employer’s safe in Scott, how much more so did the officer here, whose very job was to protect his employer’s property. We note in this regard section 50 of the Civil Code, which provides that “[a]ny necessary force” may be used by an employee to protect the property of his or her employer.
But we will add this: Whether or not, strictly speaking, the officer was acting within the authority given him by Kohl’s, is irrelevant. The robbery statute is a simple one: “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.” (§ 211.) Kohl’s property was within the officer’s constructive possession under Scott, even if he was violating internal Kohl’s rules to go after Alvarez.


The judgment is accordingly affirmed.




BEDSWORTH, J.

WE CONCUR:



O’LEARY, P. J.



FYBEL, J.