Filed 9/20/18 P. v. Carothers CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Michael J. Cassidy, Judge. Affirmed.

Richard Schwartzberg, 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, A. Natasha Cortina and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.

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Charged with second degree robbery, but convicted by a jury of only the lesser included offense of attempted robbery (Pen. Code, §§ 211, 212.5, subd. (c)),[1] defendant Tyler Lance Carothers appeals after being sentenced to 12 years in prison—two years for the attempted robbery and one five-year term for each of two prior serious felony convictions (§§ 667, subd. (a)(1), 1192.7). He contends the jury’s not guilty verdict on the robbery charge precludes, as a matter of law, a guilty verdict for attempted robbery given the specific facts of his case. We disagree and affirm the judgment.

I

FACTS

With no money or other means of making a purchase, defendant walked into a Walmart. A loss prevention officer (the LPO) working for Walmart observed him take two small Bluetooth speakers, valued at roughly $20 or $30, from a shelf without looking at the price. With the speakers in hand, defendant walked to the sporting goods department where he proceeded to take the speakers out of their packaging and remove the security sensors. He placed the speakers in the front pocket of his hooded sweatshirt and walked out of the store without paying.

In plain clothes, the LPO followed defendant out of the store and confronted him, telling defendant who he was, showing him his badge and asking him to go back inside the store. Pursuant to Walmart policy, because of the relatively low value of the speakers, the LPO told defendant he would let him go without calling the police if defendant first returned to the store, gave back the merchandise and provided identification.

Defendant refused to return to the store or give back the speakers. Instead, he said, “‘Get off me, n[*****]. Get out of here. I’m just going to walk away.’” And, he continued to walk away.

The LPO took a few steps alongside defendant to try to keep him from leaving and put his hand on defendant’s shoulder to try to get him to turn back around toward the store. Defendant stopped next to a trash can, took a step forward as if trying to walk around the LPO to get away, and then took a step back. Continuing to try to prevent defendant’s escape, the LPO took away a skateboard defendant was carrying and tossed it to another Walmart employee who had come to assist with the situation.

Not long after, defendant took the speakers out of his sweatshirt pocket. The LPO grabbed them out of his hands and gave them to the nearby Walmart employee. By this point, a store employee had called the police, so the LPO maintained his position to keep defendant there until they arrived. Defendant, however, continued to try to get away.

Two Walmart assistant managers arrived. The encounter turned physical as defendant used his hands to push the LPO. He did the same to one of the assistant managers. The LPO observed defendant trying to reach for something in his back pocket. Although not known to the LPO at the time, defendant had a screwdriver in the pocket.

Defendant was arrested and charged with second degree robbery (§§ 211, 212.5, subd. (c)). The first amended information further alleged that defendant had four prior prison term convictions (§ 667.5, subds. (a), (b)), two prior serious felony convictions (§ 667, subd. (a)(1)), and two prior strike convictions (§§ 667, subds. (d), (e)(2)(A), 1170.12, subds. (b), (c)(2)(A)).

At trial, during which the jurors watched a surveillance video showing part of the incident, the LPO was the sole witness. After describing what occurred, the LPO testified he was “terrified” and fearful of defendant’s “verbal statements” and “physical actions” from the beginning of the encounter. Defendant was “being aggressive” and he did not know if defendant had a weapon. Although at the time of trial he could not recall much of what defendant had said, the LPO was certain that while defendant was still in possession of the speakers, he threatened the LPO, stating he “was only going to go to jail for 90 days and he was coming back.”

Defendant did not deny wrongdoing. Rather, his counsel argued the jury should only find defendant guilty of petty theft because Walmart employees recovered the stolen speakers before defendant used any physical force against the LPO and other Walmart employees.

The jury was instructed as to second degree robbery, as well as the lesser included offenses of attempted robbery and petty theft. They found defendant not guilty of robbery, but guilty of attempted robbery.

Defendant moved for a new trial based, in part, on his belief there was insufficient evidence to support his conviction. The trial court denied the motion. In a bifurcated trial concerning the alleged prior convictions, the court found all of them to be true. It sentenced defendant to two years in prison for the attempted robbery and one five-year term for each of the prior serious felony convictions, for a total of 12 years. The court struck the remaining priors for purposes of sentencing. Defendant timely appealed.

II

DISCUSSION

Defendant argues that, as a matter of law, he could not have been found guilty of attempted robbery. He infers from the jury’s not guilty robbery verdict that it must have concluded he did not use “force or fear” prior to the LPO getting the speakers back. According to him, therefore, because a person generally cannot be guilty of robbery if the victim recovers the stolen property before force or fear is used, a conviction for attempted robbery “was also foreclosed[,]” as a matter of law. We disagree.

“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.’” (People v. Watkins (2012) 55 Cal.4th 999, 1018 (Watkins).) The necessary elements are: (1) a taking of personal property from the person or immediate presence of another—i.e., asportation; (2) the taking was against the person’s will; (3) the use of force or fear; and (4) an intent to permanently deprive the owner of the property. (People v. Anderson (2011) 51 Cal.4th 989, 994.)

From a timing standpoint, the use of force or fear does not have to occur prior to, or contemporaneous with, the taking of property. (People v. Anderson, supra, 51 Cal.4th at pp. 1000-1001; People v. Estes (1983) 147 Cal.App.3d 23, 28 (Estes).) Rather, it is also sufficient if the force or fear is used “to resist attempts to retake the stolen property”—commonly referred to as an Estes-robbery. (Ibid.) In contrast, any force or fear used after the “taking” ceases—e.g., the property is abandoned or returned to its owner—may not be used to substantiate a robbery conviction. (People v. Pham (1993) 15 Cal.App.4th 61, 68.)

Distinct from robbery, “an attempt to commit a robbery is itself a crime[.] . . . In order to constitute such an attempt, the prosecution [is] required to prove (1) the specific intent to commit robbery, and (2) . . . a ‘direct but ineffectual act done toward its commission.’” (Watkins, supra, 55 Cal.4th at p. 1018; see § 21a.) Specific intent is often shown through circumstantial evidence (People v. Lindberg (2008) 45 Cal.4th 1, 27), which is “as sufficient as direct evidence to support a conviction.” (People v. Bloom (1989) 48 Cal.3d 1194, 1208.) And, for the overt act element, there must be “conduct that goes beyond ‘mere preparation.’” (Watkins, supra, 55 Cal.4th at p. 1021.) The conduct should demonstrate the “‘[defendant] is putting his or her plan into action[,]’” but it “need not constitute an element of the target crime [citation], and it ‘“need not be the ultimate step toward the consummation of the design.”’” (Ibid.)

Though presented by defendant as a question of law, the issue he raises is fundamentally one of the sufficiency of the evidence to support his attempted robbery conviction. His entire argument is premised on his assertion that the evidence showed he did not use force, and the LPO did not feel fear, until after the LPO regained possession of the speakers. But, viewing the evidence in the light most favorable to the verdict and resolving all conflicts in favor of the judgment (People v. Duran (2001) 88 Cal.App.4th 1371, 1375), the record shows otherwise.

The LPO testified defendant used fear tactics from the start. When he initially approached defendant about the stolen speakers, defendant did not give them back or return to the store as the LPO requested. Instead, he immediately responded with a highly charged racial slur and aggressive behavior. He told the LPO he was going to walk away and threatened he would come back after being released from jail. According to the LPO, all of this occurred while defendant still had possession of the stolen property, was done in an attempt to get away with the property and made the LPO “afraid[,]” “fearful[,]” and “terrified.” Under Estes, this is evidence of a completed robbery. (See Estes, supra, 147 Cal.App.3d at pp. 26-28.) A fortiori, there is substantial evidence defendant committed attempted robbery.

Defendant claims the jury’s not guilty robbery verdict necessarily means it found neither force nor fear was used until after he was no longer in possession of the stolen speakers. However, as the trial court properly instructed, a jury may convict a person of attempted robbery even if the evidence demonstrates a completed robbery. (§ 663; People v. Rundle (2008) 43 Cal.4th 76, 138, fn. 28, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) We decline defendant’s invitation to speculate as to the jury’s thought and reasoning processes.

Although not raised by the defendant, we asked for supplemental briefing from the parties concerning whether it was error for the trial court to instruct on attempted robbery assuming the evidence demonstrated a completed robbery. Based on the particular facts of this case, we agree with the Attorney General that it was not.

“‘The trial court has a sua sponte duty to instruct on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present and there is evidence that would justify a conviction of such a lesser offense.’ [Citation.]” (People v. Bradford (1997) 14 Cal.4th 1005, 1055.) “To warrant such an instruction, there must be substantial evidence of the lesser included offense, that is, ‘evidence from which a rational trier of fact could find beyond a reasonable doubt’ that the defendant committed the lesser offense. [Citation.]” (People v. Mendoza (2000) 24 Cal.4th 130, 174, superseded by statute on other grounds as stated by People v. Brooks (2017) 3 Cal.5th 1, 62-63.)

Here, there was conflicting evidence regarding the elements of force and fear. With respect to fear, the LPO initially testified he was able to recover the speakers from defendant prior to any physical contact occurring. He later testified, however, that (1) defendant was “being pushy” both before and after he relinquished the speakers, and (2) defendant “[took] his two hands and pushed [the LPO] away to get away from [the LPO]” before giving up the speakers.

As for fear, “when the prosecution seeks to prove a robbery was committed by means of fear, it must present evidence ‘from which it can be inferred that the victim was in fact afraid, and that such fear allowed the crime to be accomplished.’ [Citation.] Actual fear may be inferred from the circumstances, and need not be testified to explicitly by the victim. [Citation.]” (People v. Cuevas (2001) 89 Cal.App.4th 689, 698.)

On one hand, the LPO testified he was “afraid[,]” “fearful[,]” and “terrified” of defendant’s “verbal statements” and “physical actions” from the beginning of the encounter. On the other hand, however, he testified on cross-examination that he generally would feel nervous and apprehensive when confronting a person suspected of stealing, and that was how he felt when he approached defendant. In addition, he admitted the report he wrote after the incident did not include anything about defendant being aggressive or feeling fearful of him.

Collectively, “‘the evidence raise[d] a question as to whether all of the elements of the charged offense were present.’” (People v. Bradford (1997) 14 Cal.4th 1005, 1055.) And if, for example, the jury concluded the force occurred after the LPO recovered the speakers and defendant’s attempt at instilling fear in the LPO was ineffectual, the evidence was substantial enough to justify a finding of guilt on the lesser offense of attempted robbery. Accordingly, it was proper for the trial court to instruct the jury on attempted robbery. (People v. Hamlin (2009) 170 Cal.App.4th 1412, 1454.)

III

DISPOSITION

The judgment is affirmed.

MOORE, J.

WE CONCUR:

O’LEARY, P. J.

ARONSON, J.