P. v. Douglas

Filed 8/29/07 P. v. Douglas 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Appeal from a judgment of the Superior Court of Orange County, William R. Froeberg, Judge. Affirmed as modified. Remanded with directions.

Christopher Blake, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf and Stacy Tyler, Deputy Attorneys General, for Plaintiff and Respondent.

Anthony Lee Douglas was charged with second degree robbery (count 1) and petty theft with a prior theft conviction (count 2). The information also alleged Douglas had two prior serious felony convictions and served five prior prison terms. A jury convicted Douglas of counts 1 and 2. The trial court found true the prior serious felony conviction and prior prison term enhancment allegations.

The court struck all five of the prior prison term enhancements and one prior serious felony conviction enhancement for sentencing under the provisions of Penal Code section 1385, subdivision (c)(1).[1] The court imposed a total prison term of 16 years, which consists of the middle term (three years) for second degree robbery doubled as required under the Three Strikes law ( 667, subd. (d)(3)(E)(1)), plus 10 years for prior serious felony convictions ( 667, subd. (a)(1)). The court stayed sentence on count 2, pursuant to section 654.

Douglas raises a single issue on appeal: He argues the verdict violates the rule against multiple convictions based on necessarily included offenses. The Attorney General concedes the issue and we agree with this concession. Under a judicially created rule of law, the conviction of petty theft with a prior theft conviction must be reversed. In all other respects, the judgment is affirmed.

FACTS

The facts may be briefly stated. On May 11, 2005, a Sports Chalet security guard saw Douglas and a woman get out of a parked car in the stores parking lot and walk into the store. The security guard continued to watch Douglas inside the store. Douglas walked to one section of the store and picked out a ladies white T-shirt. He carried this garment to another part of the store and selected a mans black jersey. While the security guard watched and video cameras recorded, Douglas moved behind a rack of clothes and crammed the mans black jersey down the front of his pants. He then walked to the front cash register, where he stood and talked with store employees for a few minutes before leaving the store. He did not pay for any merchandise. When he walked out of the stores main entrance, sensors in the mans black jersey activated the stores security system.

The security guard told the store manager what had happened, and suggested the manager should go outside and attempt to get the license plate number of Douglas car. The store manager walked outside and approached Douglas. Despite the managers attempts to stop him, Douglas kept walking away from the store. He responded to the managers request to stop and talk by saying he didnt do anything. The security guard walked closer to Douglas and asked him to stop. The guard verbally identified himself as a store security officer and produced a badge with photo ID. When the guard tried to block Douglas from his car, Douglas immediately got irate.

The security guard said Douglas gestured wildly with his arms, cursed, and said, Im gonna to get my gun. Douglas moved around the security guard and kept walking toward his car and repeating the phrase, Get my gun. Get my gun. The security guard feared Douglas would shoot him in the back. He decided he needed to walk backwards to keep an eye on Douglas and to go back to the store entrance. Douglas got halfway into the passenger seat of his car, reached under the passenger seat, and moved back and forth like he was looking for something. As Douglas backed out of the car, a woman in the drivers seat put the car in gear and sped over a concrete barrier on her way out of the parking lot turned. Douglas turned around and ran toward the frightened security guard. He was still acting very excited and aggressive, and he loudly and profanely protested his innocence before fleeing the scene on foot. The security guard and store manager gave police a description of Douglas, and they provided them with the cars license plate number. Later, the manager and security guard identified Douglas from a photographic lineup.

Douglas did not testify at trial. His niece testified that her uncle drove her to the Sports Chalet store so that she could return a birthday gift. She lost sight of her uncle while they were in the store, but when she got outside of the store she heard a commotion and saw her uncle surrounded by four or five Sports Chalet employees. She became apprehensive and decided to hurry to the car and get into the drivers seat. Immediately after she got into the car, Douglas opened the passenger door and yelled, They have a gun. They have a gun. Drive off. She started the car and drove out of the parking lot and onto a street. She retrieved Douglas from a location across the street from the Sports Chalet a few minutes later, and they parted company after Douglas drove her to a dance studio.

DISCUSSION

Section 954 states, An accusatory pleading may charge . . . different statements of the same offense and the defendant may be convicted of any number of the offenses charged. Notwithstanding the broad language of section 954, [a] judicially created exception to the general rule permitting multiple convictions prohibits multiple convictions based on necessarily included offenses. [Citation.] [I]f a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former. [Citation.] (People v. Reed (2006) 38 Cal.4th 1224, 1227.)

Petty theft is a lesser and necessarily included offense of robbery. (People v. Tardy (2003) 112 Cal.App.4th 783, 787; see also People v. Estes (1983) 147 Cal.App.3d 23, 28.) Based on the facts of this case and the law, Douglas cannot be convicted of robbery and petty theft with a prior theft conviction. (See People v. Moran (1970) 1 Cal.3d 755, 763.)

The remedy for cases involving dual convictions of greater and lesser included offenses is well established. Conviction of a lesser included offense is an implied acquittal of the offense charged when the jury returns a verdict of guilty of only the lesser included offense. [Citation.] When the jury expressly finds defendant guilty of both the greater and lesser offense, however, there is no implied acquittal of the greater offense. If the evidence supports the verdict as to a greater offense, the conviction of that offense is controlling, and the conviction of the lesser offense must be reversed. [Citations.] (People v. Moran, supra, 1 Cal.3d at p. 763.) Thus, if the verdict is supported by substantial evidence, Douglas robbery conviction is controlling and the conviction of petty theft with a prior theft conviction must be reversed.

The elements of robbery include the taking of personal property from the body or immediate presence of another person by the use of force or fear. ( 211.) Douglas disagrees with the jurys findings on the element of force or fear. He theorizes that if his case had been presented to 100 different juries some of them would have returned a verdict of not guilty. However, an appellate court determines whether any rational juror considering the evidence presented could have found the essential elements of the charged offense beyond a reasonable doubt. (People v. Maury (2003) 30 Cal.4th 342, 403.) In addition, we must review the record in the light most favorable to the verdict. (People v. Johnson (1980) 26 Cal.3d 557, 576.)

Viewed in the light most favorable to the judgment, the facts are Douglas pushed past the store security officer and in the midst of yelling obscenities, and repeatedly threatened to get his gun. The store security officer believed his threats. He immediately started to walk backwards, moving toward the stores front door while keeping an eye on Douglas. The fact the guard did not want to turn his back on Douglas supports an inference of fear. Further, when Douglas got into his car and reached under the passenger search, the security guard believed he was searching for gun.

Everything Douglas said and did created and then reinforced the security officers fear of being shot. Douglas took the stores property by stealth, but he retained it by the use of fear and intimidation. He did not need to actually possess or brandish a gun, nor did he have to physically subdue the store security guard. It is enough that his actions and threats produced sufficient fear a store employee assigned to security stopped his attempt to regain the stores property. (See People v. Brew (1991)2 Cal.App.4th 99, 104; In re Anthony H. (1982)138 Cal.App.3rd 159, 166-167.) Substantial evidence supports the jurys verdict.

DISPOSITION

The conviction of petty theft with a prior theft conviction (count 2) is reversed. The clerk of the superior court is directed to prepare an amended abstract of judgment in accordance with the views expressed in this opinion and to forward the amended abstract of judgment to the Department of Corrections. As modified, the judgment is affirmed.

SILLS, P.J.

WE CONCUR:

OLEARY, J.

FYBEL, J.

Publication courtesy of California pro bono lawyer directory.

Analysis and review provided by Chula Vista Property line attorney.

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