Filed 8/22/17 P. v. Franklin 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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, Steven D. Bromberg, Judge. Affirmed.

Nancy Susan Brandt, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

* * *

A jury convicted Eric Philip Franklin of second degree (nonresidential) robbery (Pen. Code, §§ 211, 212.5, subd. (c); all statutory citations are to the Penal Code). Defendant appealed, and his appointed counsel filed a brief under the procedures outlined in People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738.[1] Defendant filed a supplemental brief. Because our independent review of the record discloses no arguable issues, we affirm the judgment.

I

FACTS AND PROCEDURAL HISTORY

On the afternoon of July 1, 2016, Sean Anderson, a plainclothes asset protection specialist at a Costa Mesa Target store, observed Franklin on the store’s video surveillance system picking up three items from the electronics department. About 50 minutes later, Franklin walked into another area of the store and hid the merchandise in his pants. Anderson notified the store manager, James Dederich, and a uniformed security officer, Frank DiPietro. Franklin walked past the cashiers, making no attempt to pay, and left the store. DiPietro and Dederich waited outside. Dederich, wearing a red Target shirt, identified himself as Target security, and they told Franklin he needed to come inside. Franklin attempted to flee. The men grabbed Franklin’s arms to handcuff him, and Franklin resisted. Anderson recovered a digital voice recorder, an HDMI cable, and a mini flashlight, with a total value of approximately $65, from Franklin’s person. DiPietro phoned the police, who arrived about 80 minutes later.

Following a trial in December 2016, the jury convicted Franklin of second degree (nonresidential) robbery. Franklin waived his right to a jury trial on prior conviction allegations. In March 2017, the court found Franklin had suffered a prior conviction for attempted robbery in January 2014. The court found Franklin was ineligible for probation because he was on parole at the time of the offense. (§ 1203.085, subds. (a), (b).) The court imposed a seven-year prison term, comprised of the two-year low term for robbery, and a consecutive five-year enhancement under section 667, subdivision (a). The court struck the prior conviction for purposes of the Three Strike law. (§§ 667, subds. (a)(1), (d), (e)(1), 1170.12, subds. (b), (c)(1).)

II

DISCUSSION

Following Wende guidelines, we have reviewed counsel’s brief and the appellate record. Appellate counsel notes she investigated several issues in conducting her review, including whether the trial court erred in responding to the jury’s question concerning the force required for robbery,[2] and whether legally sufficient evidence supports Franklin’s second degree robbery conviction.

Franklin has filed a supplemental brief (People v. Kelly (2006) 40 Cal.4th 106, 111 [appellate court must address issues raised personally by appellant in a Wende proceeding]) asserting there is insufficient evidence he resorted to force or fear while carrying away the stolen property. He also complains the court erred in ordering restitution under section 1202.4, subdivision (f).

Sufficient Evidence of Robbery

Substantial evidence is defined as evidence that is reasonable, credible, and of solid value. (People v. Elliot (2005) 37 Cal.4th 453, 466.) A reviewing court faced with a claim of insufficient evidence must determine “‘“whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” [Citations.]’” (People v. Crabtree (2009) 169 Cal.App.4th 1293, 1321-1322; see Jackson v. Virginia (1979) 443 U.S. 307, 318-319; People v. Johnson (1980) 26 Cal.3d 557, 578.) But it is the jury, not the reviewing court that must be convinced of the defendant’s guilt beyond a reasonable doubt; consequently, a plausible, contrary reading of the evidence does not suffice to reverse the judgment. (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054.) Rather, our appellate role requires that we review the record in the light most favorable to the trier of fact’s conclusions, draw every reasonable inference in favor of the jury’s verdict (ibid.), and affirm the judgment unless under “no hypothesis whatever is there sufficient substantial evidence to support it” (People v. Redmond (1969) 71 Cal.2d 745, 755). Thus, an appellant “bears an enormous burden” when challenging the sufficiency of the evidence. (People v. Sanchez (2003) 113 Cal.App.4th 325, 330.)

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.” (§ 211.) Robbery “begins from the time of the original taking,” continues “until the robber reaches a place of relative safety,” and “[the evidence] is sufficient . . . [if the defendant] used force to prevent the . . . retaking [of] the property and to facilitate his escape.” (People v. Estes (1983) 147 Cal.App.3d 23, 28 (Estes); see People v. Anderson (2011) 51 Cal.4th 989, 994 [robbery is a continuing offense that begins from the time of the original taking until the robber reaches a place of relative safety; robbery may occur when the property was peacefully acquired, but force or fear was used to carry it away; it is robbery if the defendant committed a forcible act against the victim motivated by the intent to steal].) “The use of force or fear to escape or otherwise retain even temporary possession of the property constitutes robbery.” (People v. Flynn (2000) 77 Cal.App.4th 766, 772; People v. Pham (1993) 15 Cal.App.4th 61, 66 [robbery committed where the defendant forcefully “prevented the victim (i.e., security guard) from regaining the property, albeit temporarily”].) The use of force or fear in taking property from a victim’s presence elevates a theft by larceny to robbery. (People v. Gomez (2008) 43 Cal.4th 249, 255; see also People v. Bradford (2010) 187 Cal.App.4th 1345, 1350 [security guards constructively possess property they are charged to protect, and thus may be robbery victims].)

“The terms ‘force’ and ‘fear’ as used in the definition of the crime of robbery have no technical meaning peculiar to the law and must be presumed to be within the understanding of jurors.” (People v. Anderson (1966) 64 Cal.2d 633, 640.) The force or fear required by section 211 is not synonymous with a physical corporeal assault. (People v. Burns (2009) 172 Cal.App.4th 1251, 1257 [person who wrests away personal property from another person, who resists the effort to do so, commits robbery rather than theft]; People v. Mungia (1991) 234 Cal.App.3d 1703, 1708-1709 [“force” is a relative concept and may include a comparison of the physical characteristics of the defendant and the victim; jury could conclude “shove” by a physically larger defendant constituted force].) Whether there is force or fear is a factual question for the jury. (People v. Roberts (1976) 57 Cal.App.3d 782, 787, disapproved of on other grounds, People v. Rollo (1977) 20 Cal.3d 109, 120, fn. 4.)

Anderson testified he and his coworkers confronted Franklin outside the store, and Franklin attempted to flee. Dederich grabbed Franklin’s left arm to permit Anderson to handcuff him, and Franklin resisted. This resistance lasted about a minute. Franklin was “attempting to get his arms out of [Anderson’s], Mr. Dederich, and Mr. DiPietro’s grip.” Anderson spoke to a police officer, and did not say Franklin pushed or hit him, or that he flailed, and Anderson did not use the words “force” or “combative” to describe Franklin’s actions.

DiPietro testified Franklin was “actively resisting” for about 20-30 seconds. He was resisting the three men getting “him into handcuffs.” DiPietro applied “a pressure point or something” on Franklin’s arm. DiPietro testified, and stated in his 911 call, Franklin “wasn’t combative.” He did not push or hit them. DiPietro prepared a written statement and did not mention that Franklin was resisting.

Here, the jury reasonably could conclude Franklin’s active physical resistance and struggle in an attempt to force his way from the security officers’ grasp, which lasted approximately 30 seconds, elevated the confrontation beyond mere larceny, and constituted robbery. (Estes, supra, 147 Cal.App.3d at p. 28 [robbery occurs when the defendant uses force to resist attempts to retake the stolen property].) Consequently, the standard of review requires affirmance of Franklin’s robbery conviction. No arguable issue is presented.

Section 1202.4 Restitution

The court imposed a restitution fine of $300 under section 1202.4, subdivision (b). The court also imposed, but stayed a parole revocation fine of $300. (§ 1202.45). The court reserved jurisdiction to award victim restitution under section 1202.4, subdivision (f).

Section 1202.4, as it provided at the time of Franklin’s offense in July 2016, provided, “(b) In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record. (1) The restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense. If the person is convicted of a felony, the fine shall not be less than . . . three hundred dollars ($300) starting on January 1, 2014 . . . .” The court must “impose the restitution fine unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record. A defendant’s inability to pay shall not be considered a compelling and extraordinary reason not to impose a restitution fine.” (§ 1202.4, subd. (c).)

At the time of sentencing, the court did not award victim restitution. Franklin does not present an arguable issue concerning section 1202.4, subdivision (f).

Our review of the record discloses no other arguable issues.

The judgment is affirmed.

ARONSON, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

MOORE, J.