Filed 4/18/18 P. v. Quiroz 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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



THE PEOPLE,

Plaintiff and Respondent,

v.

CARL JONATHAN QUIROZ,

Defendant and Appellant.


E066593

(Super.Ct.No. FVI1503148)

OPINION


APPEAL from the Superior Court of San Bernardino County. Victor R. Stull, Judge. Affirmed.
Mitchell Keiter, 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, Collette C. Cavalier and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Carl Jonathan Quiroz forcibly took his girlfriend’s cellular phone, threatened to burn her house down and shoot her in the head, and slashed the tires on her vehicle. Defendant was convicted of making a criminal threat, first degree robbery, and misdemeanor vandalism. With enhancements for prior felony convictions, defendant was sentenced to 14 years four months in state prison. On appeal, defendant argues: (1) the trial court improperly allowed the prosecutor to impeach the victim’s testimony with her statement to a sheriff’s deputy that defendant had threatened her; (2) the court erred by preventing defendant from impeaching the victim with the conduct underlying her prior misdemeanor forgery conviction; and (3) the record does not support the robbery conviction because the evidence does not demonstrate defendant intended to permanently deprive the victim of her cellular phone.
We find no error. The prosecutor was properly permitted to impeach the victim because her testimony that she did not hear defendant say anything as he left the apartment was effectively inconsistent with her statement to a sheriff’s deputy that defendant threatened to burn the house down and blow her head off. The victim’s misdemeanor conduct was remote in time, and she had lived a legally blameless life since her conviction, so the trial court did not abuse its discretion by precluding defendant from impeaching the victim with that conduct. Finally, the jury could reasonably have concluded from the evidence that defendant never intended to return the victim’s phone or he intended to delete valuable personal data before returning it to the victim, either of which satisfies the element of intent to permanently deprive the victim of her phone. Therefore, we affirm.
I.
FACTS AND PROCEDURAL BACKGROUND
In an information, the People charged defendant with one count of making a criminal threat (Pen. Code, § 422, subd. (a), count 1), one count of first degree robbery (Pen. Code, § 211, count 2), and one count of misdemeanor vandalism (Pen. Code, § 594, subd. (a), count 3). The People also alleged defendant had suffered a prior conviction for a serious or violent felony (Pen. Code, §§ 1170.12, subds. (a)-(d), 667, subd. (b)-(i)), and had suffered a prior conviction for a serious felony (Pen. Code, § 667, subd. (a)(1)).
A. The Victim’s Testimony.
V.M. (the victim) was defendant’s girlfriend. The victim and her three youngest children lived with defendant in an apartment in Hesperia. After defendant had gone to bed, the victim ate and stayed up watching television. The victim went to sleep around 1:00 a.m., and was awoken around 8:00 or 9:00 a.m. by defendant. Defendant was agitated and upset that the victim had been on his phone. The victim admitted that she had answered defendant’s phone and spoken to a woman who the victim “thought might be another female in his life.” Defendant told the victim that she had no business answering his phone. The victim responded by saying defendant had access to her phone 24 hours a day.
Defendant then tried to grab the victim’s phone, which was inside her bra. The victim tried to stop defendant. She did not want defendant to take her smartphone because, when they had argued in the past, defendant had taken the victim’s phone and erased pictures, phone numbers, and information from the victim’s social media account before returning the phone. Defendant succeeded in taking the phone and left the apartment.
When the prosecutor asked the victim if defendant had said anything on the way out, the victim answered, “I have no idea. I wasn’t at the door.” After defendant walked out the door, the victim called her cellular service provider and put a hold on the service to her phone to prevent the phone from being used for sending text messages, making phone calls, and accessing wireless internet. When asked why she had put a hold on her phone, the victim answered, “Cause this has happened before.” The victim testified that was the first time she had put a hold on her phone’s service and explained she felt she “needed to do something proactive . . . at this point.”
The victim testified the next couple of hours were a “blur.” Defendant’s brother came over to collect defendant’s belongings. When the brother left, the victim grabbed her wallet and keys and walked out to her vehicle. The victim testified she was afraid and left the apartment because she did not want to be there if defendant returned, and she “didn’t want any confrontations.” The victim’s daughter M.M. was already in the vehicle. Before the victim could get to her vehicle, defendant stopped her in her tracks. Defendant ran up to the victim and, with the palms of his hands, hit the victim in the chest and shoulder area and knocked her over “[l]ike a linebacker.” The victim fell onto a metal bench that sat in front of the apartment. Defendant then walked to the patio of the apartment, grabbed a metal folding chair, swung it and broke a window.
The victim started to get up from the bench and saw that defendant had grabbed a knife, which had fallen from the victim’s jeans. Defendant walked over to the vehicle and slashed the front and rear driver’s side tires. M.M. jumped out of the front passenger seat of the vehicle. Defendant then left. The victim did not see defendant again until hours later when he was brought back to the apartment by sheriff’s deputies. The victim sustained bruises on various parts of her body when defendant pushed her onto the bench.
When the prosecutor asked if the victim thought defendant might have had a gun on him when he took her phone, the victim answered, “I wasn’t sure.” She also testified there was nothing from her history with defendant that would lead her to believe defendant would have been armed with a gun. The victim gave a statement to a sheriff’s deputy at her apartment. The prosecutor asked the victim if she had told the deputy that, after defendant took her phone but before he left the apartment, defendant threatened to “burn down your house?” The trial court overruled an objection by defense counsel of improper impeachment, and the victim answered, “I don’t recall.” The prosecutor then asked if the victim had told the sheriff’s deputy that defendant said he was going to shoot her, and the victim again answered, “I don’t recall.” The prosecutor also asked the victim if at any point defendant showed her the outline of a gun in his pocket? The victim answered, “I don’t know what it was.” The victim testified that in the past, defendant had shown her the outline of something in his pocket and told her it was a gun. The victim did not recall if she told the deputy she had seen the outline of a gun in defendant’s pocket on the night of the incident.
The prosecutor asked the victim, “Isn’t it true that you told the police officer you spoke to that you believed the defendant would carry through on his threats to burn down your house and shoot you with a gun?” The trial court overruled defendant’s objections that the question had been asked and answered, and that it was improper impeachment. The victim answered, “No. What I said was that I didn’t know enough [about defendant’s] background or past to know if he would follow through or not, if it’s him just puffing up his chest.” Over defendant’s objection of improper impeachment, the prosecutor asked the victim if she had told the sheriff’s deputy that, because defendant had previously been violent with her, the victim believed defendant “would carry out his threat?” The victim answered, “No,” and said she told the deputy she did not know defendant well enough to know if he would carry out his threats and that she was “being more cautious than not.” The victim admitted she told the deputy that defendant came back to the apartment about two minutes after he first left; that both defendant’s brother and mother came to the apartment to get defendant’s things; and that she believed defendant was outside in a vehicle while his family members were inside the apartment. The victim also recalled telling the deputy that at some point when defendant returned to the apartment he yelled out that the victim had “fucked up.”
The victim testified she was not afraid of defendant, that she and defendant were still in a relationship, and that defendant did not tell her to testify in any particular way. The victim visited defendant in jail at least eight times. The victim would speak to defendant and see him through a video phone. The People played a video recording of a visit to the jury, during which defendant told the victim, “Just do what I’m saying babe. I’m trying to tell you.” The victim denied that defendant told her what to say in court. The video recording showed defendant holding up to the screen a declaration for the victim to sign and submit to the court. The declaration stated, in essence, that the victim had overreacted to the incident.
During a later jail visit, defendant told the victim, in reference to her testimony, “You’re not going in babe, I’m going to fuck with you, don’t fuck with me baby.” The victim replied, “I’m not going to fuck with you, I’m not testifying.” Defendant also told the victim, “You don’t wanna see me get ugly babe, please,” and said, “It’s a good thing you’re telling them, like I told you, I’m telling you I made a mistake.” Referring to the police report, defendant said the victim told the police “everything,” and now “it’s too late.” Defendant told the victim, “you didn’t have to tell the cops everything what happened.”
The victim denied that she was testifying how defendant wanted her to because she did not want to see him get “ugly” or that she was covering for him.
B. Testimony from the Victim’s Daughter.
Around 8:00 or 9:00 a.m. on the day of the incident, M.M. was awoken by her brother who told her defendant and the victim were having a fist fight. M.M. heard the victim angrily yell at defendant because he had taken her phone. Defendant was also angry and yelled that he just wanted to leave. M.M. walked over to the victim’s room, saw the victim shove defendant a couple times, and heard the victim tell defendant to leave. Defendant then left. Between 30 minutes to an hour later, defendant returned to the apartment. Defendant kicked and banged on the front door, and yelled that he wanted his jacket and something else. M.M. testified that defendant said he was “gonna kill my mom or rip her head off,” and that “he was gonna blow her head off.” The occupants inside the apartment told defendant they would leave his jacket outside. Defendant also banged on the back door and on the window to the victim’s room, and that after 15 to 20 minutes he finally left. While defendant was there, the victim called defendant’s mother and asked her to come over. Defendant’s mother and brother came and collected defendant’s belongings.
After defendant’s family members left, M.M. walked over to her mother’s vehicle and waited for her. After sitting in the vehicle for about 15 minutes, M.M. saw defendant run up to the vehicle and puncture the rear and front driver’s side tires with the victim’s knife. M.M. was scared, so she got out of the vehicle and ran over to her mother. Defendant ran away. Less than an hour later, M.M. saw defendant being placed in a police car.
C. Investigation.
Sheriff’s deputies who responded to a call about a domestic disturbance saw defendant walking in the area of the apartment. When the deputies got out of their police cruisers, defendant ran away and jumped two fences, including a fence with barbed wire. A silver folding knife and a replica semiautomatic pistol were later found in the area where defendant ran. Defendant was unarmed when he was arrested, and he had cuts on his hand. Defendant had the victim’s cellular phone in his pocket.
When interviewed, the victim told a sheriff’s deputy that defendant said he would shoot her in the head and that he had threatened to burn her house down. The victim also told the deputy that she knew defendant to carry a gun. She also said that she had never actually seen the gun, but she saw what appeared to be the outline of a firearm in defendant’s pants pocket. The victim told the deputy she believed defendant would carry out his threat, and that he had been violent with her in the past. She told the deputy, as she was on her way out, that defendant had approached and shoved her three times until she fell to the ground. The victim also told the deputy that, as she lay on the ground, defendant told her she had “fucked up.”
D. Verdicts and Sentence.
A jury found defendant guilty on all three counts. Defendant waived his right to a jury trial on the prior conviction allegations, and the trial court found true the allegations that defendant had suffered a prior serious or violent felony conviction and a prior serious felony conviction.
The trial court denied a Romero motion by defendant to strike his prior conviction for a serious or violent felony. The trial court sentenced defendant to state prison as follows: the court designated count 2 (1st degree robbery) as the principal count and sentenced defendant to the middle term of four years, doubled under the one strike law, for a term of eight years; on count 1 (criminal threats) the court sentenced defendant to one-third the middle term of two years, doubled under the one-strike law, for a term of one year four months to be served consecutively with count 2; and the court imposed a five-year enhancement for defendant’s prior serious felony conviction, to be served consecutively with count 2; for an aggregate sentence of 14 years four months. Finally, on count 3 (misdemeanor vandalism) the court sentenced defendant to 90 days in county jail to be served concurrently with count 1.
Defendant timely appealed.
II.
DISCUSSION
A. The Victim Was Properly Impeached with a Prior Inconsistent Statement.
Defendant argues the trial court abused its discretion when it permitted the prosecutor, over an objection, to impeach the victim with her prior statement to a sheriff’s deputy that defendant had threatened her. Relying on People v. McKinnon (2011) 52 Cal.4th 610 (McKinnon) and other cases, defendant contends the victim’s testimony that she did not hear defendant say anything as he left the apartment did not justify the victim’s impeachment because it was not inconsistent with her statement to the deputy. “[I]mpeachment would have been proper,” according to defendant, “only if [the victim] had affirmatively denied that [defendant] had ever threatened her.” (Italics added.) Because the prosecutor did not first ask the victim if defendant had threatened her and, therefore, the victim did not affirmatively deny that such a threat had been made, defendant argues the trial court erred by admitting the victim’s statement to the deputy. We find no abuse of discretion.
“‘We review the trial court’s rulings on the admission of evidence for abuse of discretion. [Citation.] . . . [¶] “A statement by a witness that is inconsistent with his or her trial testimony is admissible to establish the truth of the matter asserted in the statement under the conditions set forth in Evidence Code sections 1235 and 770.” [Citation.] “The ‘fundamental requirement’ of section 1235 is that the statement in fact be inconsistent with the witness’s trial testimony.” [Citation.] “‘Inconsistency in effect, rather than contradiction in express terms, is the test for admitting a witness’[s] prior statement . . . .’” [Citations.]’” (People v. Homick (2012) 55 Cal.4th 816, 859, fn. omitted.)
In McKinnon, supra, 52 Cal.4th 610, a witness (Lee) testified that at the time of the alleged murder she was outside her motel room when she heard a gunshot and saw defendant and another man run away from the motel. (Id. at p. 671.) Another witness (Hawkins), who was in the same hotel room as Lee, testified she could not remember Lee’s demeanor when Lee returned to the room after the shooting. The People were permitted to impeach Hawkins with her prior statement to an investigator that “‘Lee said defendant had said he would kill her if she said anything about the . . . murder.’” (Ibid.) The defendant did not dispute, and the Supreme Court concluded, that Hawkins’s statement to the police was admissible as a prior inconsistent statement as proof of what Hawkins observed of Lee’s demeanor after the shooting. (Id. at pp. 671-672.)
However, the defendant argued the trial court erred by admitting the substance of Hawkins’s statement to the police—that Lee told her the defendant threatened to kill her if she said anything about the murder—because it was not inconsistent with Lee’s testimony. (McKinnon, supra, 52 Cal.4th at p. 672.) The Supreme Court agreed. “As defendant points out, Lee’s extrajudicial statement to Hawkins was hearsay insofar as admitted for the truth of Lee’s claim that defendant had made such a threat. Defendant is correct in asserting that no exception to the hearsay rule, including the exception for prior inconsistent statements, permitted admission for that purpose of Lee’s statement to Hawkins, because Lee was never asked on the stand about such a threat, and thus never denied receiving one.” (Id. at p. 673.)
McKinnon does not dictate the conclusion that the trial court erred in our case. We assume, based on the limited discussion of Lee’s testimony, that not only was she never asked if the defendant had threatened her, but Lee was never asked if the defendant said anything to her after the shooting and before he ran away. (McKinnon, supra, 52 Cal.4th at p. 671.) Had Lee been asked if the defendant had said anything, and had Lee replied she had not heard him say anything, we are convinced the Supreme Court would have found no error. Other opinions from our Supreme Court demonstrate that a witness may properly be impeached with a prior statement that is in effect inconsistent with their testimony, even if it is not expressly inconsistent.
For example, in People v. Cowan (2010) 50 Cal.4th 401 (Cowan), during the penalty phase of a capital murder case, a neighbor of the defendant and the H. family testified she once saw defendant lift Robert H. by the hair and throw him to the ground, she called the police, and defendant was arrested. (Id. at p. 501.) Robert H. testified he fell while jumping on a moving van, and defendant had picked him up and did not hurt him. (Ibid.) Michael H. testified he referred to the defendant as “‘Dad,’” defendant treated children with respect, and he “was not mean.” (Ibid.) In rebuttal, the prosecutor elicited testimony from a police officer who responded to the call about defendant hurting Robert H. The officer testified Robert H. told him he was playing with other children in the front yard and defendant told the children to stay off a van parked outside. “Defendant emerged from the house, angry because he thought Robert had been playing on the van. Robert said that defendant grabbed him by the hair, shook him and pushed him backwards to the ground.” (Id. at p. 502.) The officer also testified Michael H. had told him defendant had grabbed Robert by the hair, picked him up off the ground, and threw him backward to the ground. (Ibid.)
On appeal, the defendant argued the trial court erred by permitting the prosecutor to impeach Michael H. because his statement to the police was not inconsistent with his testimony. (Cowan, supra, 50 Cal.4th at p. 502.) The Supreme Court disagreed. “The trial court reasonably could have concluded that Michael’s statement to [the police] that defendant had grabbed Robert by the hair, lifted him off the ground, and thrown him backward was inconsistent with Michael’s trial testimony that defendant was ‘kind’ and not ‘mean’ and treated ‘all of us kids’ with ‘respect.’ A reasonable inference arising from Michael’s testimony was that defendant did not mistreat the children. His statement to [the police] tended to contradict or disprove that broad assertion by showing that defendant had mistreated Robert on at least one occasion. Although Michael was not asked, and did not testify, about the incident . . . or about defendant’s treatment of Robert in particular, it is enough that Michael’s statement to [the police] served to dispel the broad inference from Michael’s testimony that defendant was kind and respectful and not ‘mean’ to the children.” (Id. at pp. 502-503, italics added.)
People v. Chism (2014) 58 Cal.4th 1266 (Chism) is similar. In that case, a witness (Marcia) who participated in an armed robbery of a liquor store testified the defendant and two other men had come to her house at 9:00 a.m., and the defendant told them his plans for the robbery. (Id. at p. 1280 & fn. 5.) Marcia’s role was to go inside the liquor store and determine the location of surveillance cameras and the number of store clerks. (Id. at p. 1280.) The robbery took place that afternoon, during which a store clerk was shot and killed. (Id. at pp. 1280-1281.) Marcia testified she had not previously visited or heard of the liquor store until the morning of the robbery. (Id. at p. 1293.) Over the defendant’s objection, the prosecutor elicited testimony from a detective that, during an interview, Marcia admitted that she, defendant, and the two other men met the night before the robbery and that defendant said he had been to the liquor store once before and saw only one clerk inside. (Id. at p. 1294.)
On appeal, the defendant argued Marcia’s statement to the detective that defendant told her he had visited the liquor store once before was inadmissible as a prior inconsistent statement “because the prosecutor did not question Marcia specifically regarding whether defendant had previously been there.” (Chism, supra, 58 Cal.4th at pp. 1294-1295.) The Supreme Court disagreed. “We need not decide the correctness of the trial court’s ruling as to whether this particular statement of Marcia’s was inconsistent with her trial testimony on that point. Marcia impliedly acknowledged to [the detective] that she had heard of the liquor store the night before the murder when she told [the detective] the group met that night and defendant told them he had gone to the store on a prior occasion and observed the lone clerk. On direct examination, however, Marcia denied that she had ‘ever heard of Eddie’s Liquor Store before [the morning of the crimes].’ In effect, Marcia’s prior statement to [the detective] was inconsistent with that testimony as to when she first heard of [the liquor store] and therefore was admissible under Evidence Code section 1235. [Fn. omitted.]” (Chism, supra, 58 Cal.4th at p. 1295, citing Cowan, supra, 50 Cal.4th at p. 462.)
The prosecutor in this case did not first ask the victim if on his way out of the apartment defendant threatened to burn her house down and shoot her in the head, so the victim did not expressly deny that such threats had been made. Instead, after the victim testified that defendant walked out of the apartment after taking her phone, the prosecutor asked her, “Did he say anything on the way out?” The victim replied, “I have no idea. I wasn’t at the door.” The victim’s testimony that she did not hear defendant say anything on the way out in effect contradicted her statement to the sheriff’s deputy that defendant had, in fact, threatened her. That practical inconsistency satisfied the hearsay exception for prior inconsistent statements, so we conclude the trial court did not abuse its discretion by permitting the prosecutor to impeach the victim.
Defendant nonetheless argues the victim’s testimony, that she had “no idea” if defendant threatened her as he left because she was not at the door, was not inconsistent with her statement to the sheriff’s deputy, that defendant had threatened her, because the sheriff’s deputy did not testify that the victim said in her statement defendant threatened her as he left the apartment. Even if we were to agree with defendant, any error was harmless. (Cal. Const., art. VI, § 13; People v. Watson (1956) 46 Cal.2d 818, 836.)
As noted, ante, the prosecutor asked the victim, “Isn’t it true that you told the police officer you spoke to that you believed the defendant would carry through on his threats to burn down your house and shoot you with a gun?” (Italics added.) Over defendant’s objection, the victim answered, “No. What I said was that I didn’t know enough [about defendant’s] background or past to know if he would follow through or not, if it’s him just puffing up his chest.” (Italics added.) The prosecutor also asked the victim, again over defendant’s objection, “Isn’t it true [that] you told the police officer you spoke to that you believe[d] that the defendant would carry it out because he had been violent with you previously?” (Italics added.) The victim answered, “No, I didn’t . . . . I’m saying I didn’t know him well enough to know. I’d rather land on being more cautious than not.” In other words, the victim testified she did, in fact, tell the sheriff’s deputy that defendant had threatened her. The victim tried to explain away her statement by testifying she was not sure defendant would follow through on his threats, but her attempt to minimize the impact of the threats was completely belied by her testimony that she was afraid and left the apartment because she did not want any further confrontations with defendant. Finally, the victim’s daughter also testified that defendant had threatened to kill the victim and blow the victim’s head off.
B. The Trial Court Did Not Abuse Its Discretion by Excluding Impeachment Evidence.
Defendant contends the trial court erred by precluding him from impeaching the victim with the conduct underlying her misdemeanor conviction for forgery. In a trial brief, the prosecutor requested that the trial court exercise its discretion under Evidence Code section 352 to preclude defendant from impeaching the victim with the underlying conduct from the victim’s 2005 conviction for misdemeanor forgery. Conceding the conduct evinced moral turpitude, the prosecutor nonetheless argued it was not probative of the victim’s veracity as a witness because the conduct took place in 2003 (almost 12 years earlier), and the victim had not been arrested for or convicted of any crimes since. In his motion in limine, defendant argued the victim’s truthfulness was at issue, and the misdemeanor conduct was admissible to impeach her. Defendant presented no additional argument in favor of admitting the evidence during the hearing on his in limine motions, and he did not dispute the prosecutor’s assertion that the victim had not been arrested for or convicted of any crime since her 2005 forgery conviction. The trial court excluded the evidence. We find no abuse of discretion.
Evidence of the conduct underlying a prior misdemeanor conviction, but not the conviction itself, is admissible to impeach a witness when the conduct evinces moral turpitude. (People v. Chatman (2006) 38 Cal.4th 344, 373; People v. Wheeler (1992) 4 Cal.4th 284, 297-300.) Conduct evinces moral turpitude and reflects negatively on a witness’s veracity if it involves dishonesty, “‘bad character,’” or a “‘general readiness to do evil.’” (People v. Castro (1985) 38 Cal.3d 301, 315.) Conduct is only admissible to impeach if the “least adjudicated elements of the conviction necessarily involve moral turpitude.” (Id. at p. 317.)
“‘[I]f past criminal conduct amounting to a misdemeanor has some logical bearing upon the veracity of a witness in a criminal proceeding, that conduct is admissible, subject to trial court discretion . . . .’ [Citation.] ‘When the witness subject to impeachment is not the defendant, those factors [guiding the court’s discretion] prominently include whether the conviction (1) reflects on honesty and (2) is near in time.’ [Citation.] However, ‘the latitude [Evidence Code] section 352 allows for exclusion of impeachment evidence in individual cases is broad. The statute empowers courts to prevent criminal trials from degenerating into nitpicking wars of attrition over collateral credibility issues.’ [Citation.] ‘“[C]ourts may and should consider with particular care whether the admission of such evidence might involve undue time, confusion, or prejudice which outweighs its probative value.”’ [Citation.]” (People v. Leonard (2014) 228 Cal.App.4th 465, 497.) Where the prior conduct occurred “‘long before and has been followed by a legally blameless life, [it] should generally be excluded on the ground of remoteness.’” (People v. Beagle (1972) 6 Cal.3d 441, 453, abrogated on other grounds by People v. Diaz (2015) 60 Cal.4th 1176.)
There is no dispute here that forgery is a crime of moral turpitude. (See, e.g., People v. Cadogan (2009) 173 Cal.App.4th 1502, 1514; People v. Lopez (2005) 129 Cal.App.4th 1508, 1522; People v. Flanagan (1986) 185 Cal.App.3d 764, 771; People v. Parrish (1985) 170 Cal.App.3d 336, 349; People v. Almarez (1985) 168 Cal.App.3d 262, 266-268.) The only dispute is whether the trial court erred by finding the conduct underlying the victim’s misdemeanor forgery conviction was too remote and, therefore, should have been excluded.
Defendant cites People v. Stevenson (1978) 79 Cal.App.3d 976, 989, which held that exclusion of an 18-year-old conviction for theft to impeach a witness was an abuse of discretion. “A fortiori,” defendant argues, “the court [in this case] abused its discretion in excluding an 11-year-old forgery conviction.” (Italics omitted.) Stevenson is not on point. The defendant there sought to impeach a witness with a felony conviction. (Stevenson, at p. 989.) Stevenson was tried for alleged crimes that took place in 1975 (id. at p. 981), and he sought to impeach a witness with a 1958 felony conviction for grand theft (id. at p. 989). The trial court took judicial notice of the witness’s conviction, but ruled “that under the guidelines set out in People v. Beagle (1972) 6 Cal.3d 441 . . . , any felony conviction prior to 1961 was too remote.” (Stevenson, at p. 989, italics added.) The appellate court held the trial court erred by too rigidly applying the guidelines set forth in Beagle and making no distinction between impeachment of a witness and impeachment of a defendant. (Stevenson, at p. 989.)
There is no indication in the record that the trial court in our case applied too rigid a rule and concluded the victim’s misdemeanor conduct was categorically excludable merely because it was 11 years old, or that the trial court did not take into account the fact that it was a prosecution witness who was to be impeached and not the defendant. Absent evidence to the contrary, we must presume the trial court properly applied the factors for determining whether to preclude impeachment with prior misdemeanor conduct. (See Evid. Code, § 664 [“It is presumed that official duty has been regularly performed.”].) Given the People’s uncontroverted assertion that the victim had lived a legally blameless life since her 2005 conviction, the trial court could have reasonably concluded that whatever probative value the evidence had toward proving the victim’s veracity was substantially outweighed by the delay and overdue consumption of time that would have been spent proving a collateral matter. (Evid. Code, § 352.) Therefore, we find no abuse of discretion.
 
C. Defendant’s Robbery Conviction Is Supported by Substantial Evidence.
Defendant challenges his conviction for robbery, contending the record does not contain substantial evidence that he intended to permanently deprive the victim of her cellular phone. We conclude otherwise.
“‘The law is clear and well settled. “On appeal we review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]”’” (People v. Jones (2013) 57 Cal.4th 899, 960.) “In conducting such a
review, we ‘“presume[] in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” [Citations.]’” (People v. Lee (2011) 51 Cal.4th 620, 632.)
“‘“‘Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court[,] which must be convinced of the defendant’s guilt beyond a reasonable doubt. “‘If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.’” [Citations.]’”’” (People v. Harris (2013) 57 Cal.4th 804, 849-850.) “The conviction shall stand ‘unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].”’ [Citation.]” (People v. Cravens (2012) 53 Cal.4th 500, 508.)
“[Penal Code] [s]ection 211 defines robbery as ‘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.’ Robbery is, therefore, ‘“‘a species of aggravated larceny.’”’ [Citation.]” (People v. Gomez (2008) 43 Cal.4th 249, 254.) “To be convicted of robbery, the perpetrator must intend to deprive the victim of the property permanently. [Citations.]” (People v. Huggins (2006) 38 Cal.4th 175, 214.) “A trier of fact may infer the intent to steal from all the direct and circumstantial evidence. [Citations.]” (People v. Jackson (2016) 1 Cal.5th 269, 345.)
“[T]he general rule is that the intent to steal required for conviction of larceny is an intent to deprive the owner permanently of possession of the property. [Citations.]
. . . But the general rule is not inflexible: ‘The word “permanently,” as used here is not to be taken literally.’ [Citation.]” (People v. Davis (1998) 19 Cal.4th 301, 307.) “The reference to the intent to permanently deprive is merely a shorthand way of describing the common law requirement . . . .” (People v. Avery (2002) 27 Cal.4th 49, 55 (Avery).) The California Supreme Court has held that the specific intent to steal, “although often summarized as the intent to deprive another of the property permanently, is satisfied by the intent to deprive temporarily but for an unreasonable time so as to deprive the person of a major portion of its value or enjoyment.” (Id. at p. 58; see People v. Bacon (2010) 50 Cal.4th 1082, 1117.)
Defendant argues he did not “deprive permanently” the victim of her phone, even under the more flexible definition given in Avery, because the victim was only deprived of her phone for four hours. According to defendant, the victim’s “four-hour inability to surf the [Internet] or post on Facebook . . . did not deprive her of the phone’s ‘primary economic value.’” We disagree with defendant for two reasons.
First, the victim was only deprived of her phone for four hours because defendant was caught by sheriff’s deputies relatively soon after the robbery. The question is whether defendant intended to permanently deprive the victim of her phone, not whether he actually succeeded in doing so. Defendant’s family members had gathered his belongings from the apartment after he left or was kicked out (depending on whether the jury believed the victim or her daughter). The jury could have reasonably drawn the inference from the evidence that, after pushing the victim onto the bench and slashing her tires, and after trying to flee from sheriff’s deputies, defendant had no intent to return to the apartment or to return the phone to the victim anytime soon, if ever.
Second, the deprivation of the victim’s phone was not as inconsequential as defendant argues. She was not just deprived of the ability to play Angry Birds (or the latest and greatest smartphone game) on her phone. Modern smartphones “are in fact minicomputers that also happen to have the capacity to be used as a telephone. They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.” (Riley v. California (2014) 573 U.S. ___, ___ [134 S.Ct. 2473, 2489]; see U.S. v. Flores-Lopez (7th Cir. 2012) 670 F.3d 803, 805 (opn. of Posner, J.) [“A modern cell phone is in one aspect a diary writ large. Even when used primarily for business it is quite likely to contain, or provide ready access to, a vast body of personal data.”].)
The victim testified that, when defendant had previously taken her phone, he deleted photos and phone numbers from her phone and used it to access her social media account and delete information. The victim was sufficiently concerned this time that she called her cellular service provider to block the use of the phone after defendant took it. The four hours that defendant possessed the phone was ample time during which defendant could have deleted much if not all of the data on the phone that the victim considered important.
In sum, we conclude the record contains substantial evidence from which the jury could reasonably have concluded that defendant intended to permanently deprive the victim of her phone.
III.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER
Acting P. J.
We concur:



MILLER
J.



SLOUGH
J.