Filed 10/25/17 P. v. Broughton CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

KEVIN BROUGHTON,

Defendant and Appellant.
D071897



(Super. Ct. No. SCD268544)

APPEAL from a judgment of the Superior Court of San Diego County, Runston G. Maino, Judge. Affirmed.
Rachel M. Ferguson, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Seth Friedman and Barry J. Carlton, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted appellant, Kevin Broughton, of one count of robbery (Pen. Code, § 211). Appellant admitted a serious/violent felony ("strike") prior conviction (§ 667, subds. (b)-(i)); and a serious felony prior conviction (§ 667, subd. (a)(1)).
The trial court struck the serious/violent felony prior conviction. The court imposed a lower term of two years for robbery and a consecutive five-year term for the serious felony prior conviction, for a total of seven years in prison.
As the facts will demonstrate, this crime involved an act of shoplifting during which appellant used force and threats of force to escape with personal property. Thus, this became what is often called an "Estes" robbery, based on the case of People v. Estes (1983) 147 Cal.App.3d 23 (Estes). Appellant contends the Estes case was wrongly decided, and all the cases which have followed that case since 1983 were wrongly decided. Appellant recognizes our California Supreme Court has upheld the Estes definition of robbery on numerous occasions and that under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, we are required to follow the decisions of the Supreme Court. Appellant argues, however, we should either decline to follow Estes or urge the high court to reconsider the definition of robbery. We will decline to follow either of appellant's suggestions.
STATEMENT OF FACTS
We take our statement of facts from the appellant's opening brief.
On August 28, 2016 around 5:50 p.m., a clerk at East Village Grocery Outlet, observed appellant "dumpster diving" and doing "funny stuff" in front of the store. The store manager approached appellant and told him, "It's time to go. You have to go. You have to go," because he was just moving carts and trash around in front of the store and not shopping.
Appellant did not reply to the manager, but gathered up his belongings that were laid out in front of the store, which included a red tote bag, shoes, and "other stuff." He walked into the Grocery Outlet and said, "Someone's going to get fucked up." The manager called the police.
The manager watched appellant as he moved about the store and lost sight of him when he entered the wine section. Appellant was in the wine section for less than one minute, and after about five minutes started to leave the store. Surveillance footage from the store showed appellant in the wine section, but no one saw appellant take wine off of the shelf or put it into his bag. The footage also showed him picking up a six-pack of Clear View lighters and putting them in his bag. Appellant did not get in line to pay for anything, and walked past the open registers. The manager observed what appeared to be the outline of a bottle of wine in appellant's tote bag when appellant approached the exit doors.
As appellant tried to exit the store the manager and another employee asked him to stop and to return the bottle of wine. Appellant ignored them and when they asked again, he got upset, threw up his arms, said "Fuck you," to the manager, and started throwing punches - not directing them at anyone in particular, just "whoever was going to be close to him." Appellant struck the manager on her forearm, just above her right elbow. The employee backed off and appellant did not strike her. Appellant bumped into a girl as he left the store.
Appellant walked away from the store in a zig zag pattern down the street and kept looking back to see if anyone was following him. Appellant turned left on J street toward Petco Park and the manager lost sight of him. Police officers contacted appellant near Petco Park. Appellant had a jacket, a red bag with tan pants inside of it, four lighters, and a container. The officers did not find a bottle of wine in appellant's possession, or within the area of Petco Park.
DISCUSSION
Appellant contends that robbery only occurs when the perpetrator uses force or fear to accomplish the initial taking of personal property. Thus, he argues the definition of robbery, currently referred to as an Estes robbery, where force or fear are used after the initial movement of an item, but during the act of removing it from the possession of the owner, is incorrect. Thus, he argues he committed petty theft when he picked up property and put it in his bag, and that the attempts to use force against the store employees so he could get away with the property only amounted to assaults. His analysis of the crime of robbery does not comport with California law.
Estes, supra, 147 Cal.App.3d 23, did not arise as a newly constructed definition of robbery. The Estes opinion relied on a number of earlier California cases which had engaged in the same analysis. (People v. Kent (1981) 125 Cal.App.3d 207, 213-214, fn. 6; People v. Anderson (1966) 64 Cal.2d 633, 638.) In fact, People v. Perhab (1949) 92 Cal.App.2d 430, 432-436, utilized a similar analysis.
Since the opinion in Estes, supra, 147 Cal.App.3d 23 was issued, our Supreme Court has followed the same definition of robbery. (People v. McKinnon (2011) 52 Cal.4th 610, 686; People v. Anderson (2011) 51 Cal.4th 989, 994; People v. Gomez (2008) 43 Cal.4th 249, 261.) In short, the definition of robbery which supports the so-called Estes analysis has been repeatedly approved by our high court. To the extent appellant believes the definition used is incorrect, he should present his contention to our Supreme Court. Unless and until that court decides otherwise, we will continue to apply the challenged definition of robbery in California.
DISPOSITION
The judgment is affirmed.


HUFFMAN, J.

WE CONCUR:



BENKE, Acting P. J.


IRION, J.