P. v. Amiel

Filed 3/11/10 P. v. Amiel CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County. Roger Ito, Judge. Affirmed.

Marcia Clark, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Yun K. Lee and Laura J. Hartquist, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted Mark Adam Amiel (defendant) of second degree commercial burglary (counts 2 and 5; Pen. Code, 459),[1]petty theft with a prior conviction (count 3; 666), and second degree robbery (count 4; 211). The jury found true the allegation that defendant personally used a deadly or dangerous weapon during the commission of the robbery. ( 12022, subd. (b)(1).) In a bifurcated proceeding, the trial court found that defendant had suffered a prior serious or violent felony conviction under the Three Strikes law ( 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and a prior serious felony conviction under section 667, subdivision (a)(1), and had served a prior prison term under section 667.5, subdivision (b). The trial court sentenced defendant to 13 years and four months in state prison.

On appeal, defendant argues: (1) insufficient evidence supports the second degree robbery conviction, and (2) the trial court committed reversible error by not instructing the jury on attempted robbery. We reject defendants arguments and affirm.

BACKGROUND[2]

1. The Prosecution

Viewing the record in the light most favorable to the judgment below as we must (People v. Ceja (1993) 4 Cal.4th 1134, 1138-1139), the evidence established the following.On January 10, 2008, Jose Negrete (Negrete) was on duty as a loss prevention officer at a Rite Aid store. At approximately 2:50 p.m., Negretes attention was drawn to defendant, who appeared nervous and very edgy. Negrete observed defendant place a pair of pliers and a bottle of Mucinex (an over the counter medication) into defendants pockets. Negrete instructed one of the shift supervisors to call the police.

Defendant left the store without paying for the pliers and medication. Negrete followed defendant outside of the store and confronted him 10 feet from the stores entrance. Negrete stated that he performed security for Rite Aid and showed defendant his badge. Defendant stated that he didnt have anything and then began running toward the street. Negrete chased defendant and as they were running, Negrete observed that one of defendants hands was in his pocket. Around the same time, Negrete saw the pliers and medication that defendant had taken from the store fall out of his pocket.

At this point, defendant stopped, pulled a box cutter from his pants pocket, and turned around to face Negrete. Defendant held the box cutter[3] to his side. The pliers and medication were on the ground between defendant and Negrete, and approximately 18 inches in front of defendant. Negrete began backing away. According to Negrete, he feared that defendant would cut him with the box cutter. Defendant then took a step forward toward the pliers and medication, and toward Negrete.[4] Defendants facial expression appeared mad and scared. Defendant then turned around and ran from Negrete. Negrete followed defendant from a distance of approximately 200 feet and saw defendant run into an apartment complex. When asked why Negrete did not attempt to detain defendant himself, Negrete replied that he was afraid of the box cutter that defendant was carrying. Police officers arrived minutes later.

2. The Defense

Defendant testified that on January 10, 2008, he went to the Rite Aid store in order to buy a prepaid telephone card and lip balm. Defendant found what he believed to be lip balm and then went to the aisle where the store carried its pliers. He took a pair of pliers and placed them in his pocket. Defendant then went to the electronics department to inquire about the telephone card that he wanted. The sales associate told him that the store did not carry the one he wanted and directed him to a location where he could buy one. Defendant exited the store with the pliers and the item he believed was lip balm. At one point, defendant discovered that the item he believed was lip balm was actually a box of Mucinex medication.

When defendant was outside of the store, Negrete approached and said Hey, can I talk to you? Defendant began running toward the street. Defendant then stopped, turned around, and faced Negrete. He pulled the box of Mucinex and the pair of pliers from his pocket and placed both of them on the ground. According to defendant, he did not have a box cutter with him at the time. Defendant turned around again and ran toward an apartment complex. Negrete followed him from a short distance.

DISCUSSION

I. Sufficiency of Evidence

Defendant argues that there was insufficient evidence to support the robbery conviction. According to defendant, there was no evidence that [he] used force or fear to retain the stolen property. We disagree.

The role of an appellate court in reviewing the sufficiency of the evidence is limited. The court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence--that is, evidence which is reasonable, credible, and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] (People v. Ceja, supra, 4 Cal.4th at p. 1138.) We do not reweigh the evidence. (People v. Proctor (1992) 4 Cal.4th 499, 529.) Even if the circumstances might reasonably be reconciled with a contrary finding[,] [this] would not warrant reversal of the judgment. (Ibid.)

Robbery is the 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.) [R]obbery. . . is a continuing offense. All the elements must be satisfied before the crime is completed. However, . . . no artificial parsing is required as to the precise moment or order in which the elements are satisfied. (People v. Gomez (2008) 43 Cal.4th 249, 254, fn. omitted.) [A] robbery can be accomplished even if the property was peacefully or duplicitously acquired, if force or fear was used to carry it away. (Id. at p. 256.) Moreover, a robbery occurs when defendant uses force or fear in resisting attempts to regain the property or in attempting to remove the property from the owners immediate presence regardless of the means by which defendant originally acquired the property. (Id. at p. 259.) In short, the force or fear necessary for a robbery need not occur as part of the taking of the property and may be part of an effort to escape or otherwise retain even temporary possession of the property. (People v. Flynn (2000) 77 Cal.App.4th 766, 772; see also People v. Pham (1993) 15 Cal.App.4th 61, 65-68.)

Here, there was sufficient evidence to sustain the robbery conviction. Negrete testified that after he began chasing defendant, the pair of pliers and medication that was in defendants pocket fell to the ground. When this occurred, defendant turned around and held a box cutter to his side. The stolen property was on the ground just inches in front of defendant. With the box cutter in hand, defendant stepped toward the stolen items and toward Negrete. Negrete felt fear and took no steps to detain defendant. From this evidence, the jury could certainly have concluded that defendant used force or fear as part of an effort to escape or otherwise retain even temporary possession of the property. (People v. Flynn, supra, 77 Cal.App.4th at p. 772.)

Defendant argues that he used force against Negrete only to escape, and not to retain the stolen property that was on the ground. Defendant also argues that he had already lost possession of the property at the time he pulled out the box cutter. Both these arguments, however, ask us to reweigh the evidence and second guess the jurys conclusions, tasks which are outside our scope of review. Because we conclude that Negretes testimony provided substantial evidence from which the jury could conclude that defendant committed a robbery, we likewise reject defendants argument that the trial court erred in denying his motion for judgment of acquittal ( 1118.1) made at the close of the prosecutions case. (People v. Cuevas (1995) 12 Cal.4th 252, 261 [standard used by the trial court in ruling on a section 1118.1 motion is whether there is substantial evidence to support the existence of each element].)

II. Alleged Instructional Error

Defendant argues that the trial court committed reversible error by not instructing the jury on attempted robbery as a lesser included offense of the robbery of Negrete. We disagree.

[A] trial court errs if it fails to instruct, sua sponte, on all theories of a lesser included offense which find substantial support in the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 162 (Breverman).) On the other hand, the court is not obliged to instruct on theories that have no such evidentiary support. (Ibid.) [T]he existence of any evidence, no matter how weak will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is substantial enough to merit consideration by the jury. (Ibid.)

An appellate court applies the independent or de novo standard of review to the failure by a trial court to instruct on an uncharged offense that was assertedly lesser than, and included, in a charged offense. (People v. Waidla (2000) 22 Cal.4th 690, 733.)

We conclude that the evidence in the instant case did not warrant an instruction on attempted robbery. As explained above, a robbery occurs when defendant uses force or fear in resisting attempts to regain the property or in attempting to remove the property from the owners immediate presence regardless of the means by which defendant originally acquired the property. (People v. Gomez, supra, 43 Cal.4th at p. 259.) Here, Negrete testified that after the stolen items fell from defendants pocket, defendant turned around and faced Negrete while holding a box cutter. Defendant then stepped toward the stolen items on the ground while holding the box cutter. Negrete stepped backward and felt fear. At this point, a robbery had occurred. Specifically, defendant had used the threat of violence to stop Negrete from advancing and to regain the property that had fallen from defendants pocket.

Nonetheless, defendant maintains that he ultimately abandoned the property taken from the store, which justified an instruction on attempted robbery. Defendants argument misses the mark. Once defendant used force or fear to regain possession of the property in question, a completed robbery occurred. Defendants abandonment of the stolen property after he used force or fear to regain possession of the property did not extinguish the completed robbery or convert the robbery into an attempted robbery. In sum, there was no evidence that defendant took a direct but ineffectual act toward the commission of a robbery, and thus no instruction on attempted robbery was required. (Breverman, supra, 19 Cal.4th at p. 162 [On the other hand, the court is not obliged to instruct on theories that have no such evidentiary support].)

Assuming for argument the trial court committed error, we conclude that it was harmless. It is not reasonably probable that a result more favorable to defendant would have resulted in the absence of the alleged error. (Breverman, supra, 19 Cal.4th at p. 178.) Defendant admitted that he took the pliers and medication from the Rite Aid store without paying for them. He admitted that he ran from Negrete when Negrete stopped him outside the store. He admitted that he turned around and faced Negrete at some point during the chase. The only dispute was whether defendant used force or fear during the encounter with Negrete. Negrete testified that defendant wielded a box cutter in his hand; defendant denied this. Had the jury believed defendants version that he did not use force or fear, it would have acquitted him of the robbery and convicted him of petty theft, an offense that the jury was instructed on. It is not reasonably probable that the jury would have convicted him of the attempted robbery because the only reasonable inference from the evidence was either that a robbery took place or a petty theft place. Thus, any error in not instructing the jury on attempted robbery was utterly harmless.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_________________________, J.

CHAVEZ

We concur:

____________________________, Acting P. J. _________________________, J.

DOI TODD ASHMANN-GERST

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

[2] Defendant was prosecuted for two incidents, one that took place at a Rite Aid store and one that took place at a Walmart store three days later. Because the issues on appeal pertain only to the incident that took place at the Rite Aid store, we will limit our recitation of the background facts accordingly.

[3] The box cutters blade was not exposed.

[4] On cross-examination, Negrete admitted that at the preliminary hearing, he testified that defendant leaned forward. Negrete explained that in his mind, he considered stepping forward and leaning forward as the same thing.