P. v. Ford

Filed 3/14/07 P. v. Ford CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from the Superior Court of San Bernardino County. Raymond L. Haight III, Judge. Affirmed.

Martha L. McGill, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, and Scott C. Taylor, Deputy Attorney General, for Plaintiff and Respondent.

A jury convicted defendant and appellant Dion Douglas Ford of attempted second degree robbery (Pen. Code, 664/211)^[1]and found true the allegation that he was armed with a firearm during the attempt ( 12022, subd. (a)(1)). The trial court found true that defendant had eight prior strike convictions ( 1170.12, subds. (a)(d) & 667, subds. (b)(i)) and sentenced him to a total term of 26 years to life in state prison.

On appeal, defendant contends that the judgment should be reversed because there was insufficient evidence to support his conviction of attempted robbery. We disagree and affirm.

FACTUAL BACKGROUND

On July 28, 2004, Cecilia Castaneda was working at a Sav-a-Lot market (the store). At 11:00 a.m., while working a cash register at the front of the store, she noticed a green Neon (the car) parked in a parking space next to the store. Defendant and another male sat in the car, looking toward the store, for one and one-half hours. When they left, they drove by and looked in the store window. Less than 20 minutes later, defendant and his cohort came back in the car and parked in the same parking spot. Castaneda walked outside to collect shopping carts about three times and saw defendants face. Defendant and his cohort sat in the car for an hour, looking toward the store again. Defendants cohort got out of the car and entered the store. He walked to the back of the store, and Castaneda asked him if he was looking for anything. The man asked if they had any cold drinks. He was sweating and appeared nervous. He purchased some soda and went back to the car and drove away. At some point, the car returned, and Castaneda told the store manager that she believed the men in the car were watching the store. The store manager went outside to retrieve a shopping cart and to get the cars license plate number. As he walked out of the store, the car drove off. The car returned about 45 minutes later. In all, Castaneda observed defendant and the driver come and go in the car three times.

Castaneda left work at 4:55 p.m. As she was walking to her car, she saw defendant in a gray van. She noticed that defendant was sitting in the backseat, the driver of the green Neon was sitting in the front passenger seat, and a third man, who had not been with them before, was in the drivers seat. Castaneda drove to the front of the store, honked her horn, and her coworker, Raul Gonzalez, came out of the store. She told him that the men in the gray van had been there earlier in a green Neon, and said that she felt that something was wrong. She told him to call the police.

Gonzalez watched the van for a few minutes and saw the men looking and pointing at the store. Gonzales also went outside to retrieve some shopping carts and to get a closer look at the men in the van. Gonzales returned to the store. Later, he observed the van drive slowly by the store. He was dropping money into the safe as the van drove by, and he saw all the men glance inside the store window.

Defendant and the other men returned in the van later and parked in the same spot. Gonzalez saw the door of the van open, but no one stepped out. About 10 seconds later, the van door closed. A few minutes after that, the van drove away. Then, about five minutes later, the van returned and parked in the same spot and continued looking toward the store. Gonzalez called the police and told them there was a suspicious car outside the store, and its occupants were pointing, driving by the store, and looking at the cashiers and the location of the safe.

The police arrived about 30 minutes later. Officer Duane Parkison approached the van and asked defendant what he and the others were doing. Defendant said they had been sitting there for approximately 30 to 45 minutes, drinking soda because it was hot, and waiting for his niece to arrive. At no time while the police were there did defendants niece arrive at the scene. When Officer Parkison had the men exit the van, he noticed a handgun in open view. The gun was loaded. Officer Parkison secured the gun and continued to search the van. He found two black wool ski hats, a pair of binoculars, and a monocular under the drivers seat. In the front passenger seat area, where defendant was sitting, Officer Parkison found a pair of gloves, a blue bandana, and a cell phone. Officer Parkison then searched defendant and found a handwritten note in his front right pocket that said, Open your safe. If not within ten seconds, your head will be blown off and everybody else. Officer Parkison asked defendant about the note, and defendant said it was possibly written by his son or, if not his son, his niece. Then defendant said he did not know how the note got in his pocket. When asked about the gun, defendant admitted that he knew the gun was inside the van, but stated that he did not know how it got there. He eventually admitted that the gun belonged to him.

Officer Parkison testified that it was warm that day because it was in July.

ANALYSIS

There Was Sufficient Evidence to Support Defendants Conviction

Defendant contends that his conviction of attempted robbery should be reversed because there was insufficient evidence that his actions went beyond mere preparation. We disagree.

A. Standard of Review

In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] Reversal on this ground is unwarranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]. [Citation.] (People v. Bolin (1998) 18 Cal.4th 297, 331.)

B. The Evidence Was Sufficient

In order to establish attempted robbery, the People must prove specific intent to commit robbery and a direct unequivocal overt act toward its commission. (People v. Vizcarra (1980) 110 Cal.App.3d 858, 861.) The act required must be more than mere preparation, it must show that the perpetrator is putting his or her plan into action. That act need not, however, be the last proximate or ultimate step toward commission of the crime. [Citation.] Where the intent to commit the crime is clearly shown, an act done toward the commission of the crime may be sufficient for an attempt even though that same act would be insufficient if the intent is not as clearly shown. [Citation.] (People v. Bonner (2000) 80 Cal.App.4th 759, 764.) [W]hen the acts are such that any rational person would believe a crime is about to be consummated absent an intervening force, the attempt is underway. . . . (People v. Dillon (1983) 34 Cal.3d 441, 455.)

Here, the conduct of defendant and his cohorts went beyond mere preparation. They clearly cased the store for several hours. Defendant and his friends conspicuously looked at and pointed at the store while parked in the parking lot, drove by the store window and peered in, and watched Gonzalez place money in the safe. Moreover, his cohort went into the store to apparently reconnoiter it. Furthermore, defendant changed cars to avoid detection, recruited a third person for assistance, brought a loaded handgun, disguises (ski hats), and gloves, and came to the location with a handwritten note saying, Open your safe. If not within ten seconds, your head will be blown off and everybody else. The note in defendants pocket clearly showed his intent to commit a robbery. Defendant was simply waiting in the parking lot for an opportune time to enter the store and rob the cashier.

Defendant argues that the alleged plan to rob the store had progressed only to the final stages of preparation, and that some step further than arrival at the location with the means to commit the robbery was required. He asserts that since he and his cohorts had departed the parking lot and returned several times throughout the day, it would be speculation to conclude that, on that occasion, he was going to commit a robbery rather than drive away again. Defendant is essentially arguing that his intent to commit the robbery at that time was questionable. However, as stated above, the note in defendants pocket clearly indicated his intent to commit a robbery at that time. In addition, defendant had ski hats and gloves on a hot day in July, as well as a loaded handgun, with him. Any rational person would believe a crime was about to be consummated absent an intervening force. Thus, the attempt was underway. (People v. Dillon, supra, 34 Cal.3d at p. 455.)

Viewing the evidence in a light favorable to the judgment, as we must, we conclude that there was sufficient evidence to support defendants conviction.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST

Acting P.J.

We concur:

KING

J.

MILLER

J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line Lawyers.

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