P. v. Houston
Filed 6/7/07 P. v. Houston CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, Plaintiff and Respondent, v. ROBERT LEE HOUSTON, Defendant and Appellant. | D049015 (Super. Ct. No. SCD194755) |
APPEAL from a judgment of the Superior Court of San Diego County, Laura P. Hammes & Jeffrey Fraser, Judges. Affirmed.
A jury convicted Robert Lee Houston of robbery (Pen. Code, 211) but was unable to reach a unanimous verdict on a charge that he personally used a deadly weapon, a knife. (Pen. Code, 10222, subd. (b)(10.) The court denied a motion for a new trial, suspended imposition of sentence, and placed Houston on three years probation including a condition he serve 120 days in custody.
FACTS
On July 5, 2005, Houston walked out of an Am Vet store wearing shoes and pants he had taken from the store without paying for them. He also had in his pocket a remote he was taking from the store without paying for it. Houston was followed by store employees who asked him to return to the store. According to one of the store employees who had followed Houston, Houston pulled a pocket knife and said that , "if anyone touche[d] him he was going to cut them." None of the other employees who had followed Houston saw the knife or heard the threat. Houston entered a car and left.
Houston testified he took the shoes, pants and remote without paying for them but he denied pulling a knife or making a threat.
During deliberations, a juror asked the court if he could present to the jury notes the juror had written at home regarding the evidence. The court met with counsel and the court and counsel agreed that the court would advise the juror that he could not introduce notes written at home.
DISCUSSION
Appointed appellate counsel has filed a brief setting forth the evidence in the superior court. Counsel presents no argument for reversal but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel refers to as possible but not arguable issues: (1) whether Houston was denied constitutional rights when his trial counsel agreed to speak with jurors out of his presence; (2) whether the evidence was sufficient to convict Houston of robbery; and (3) whether the trial court erred in including in instructions CALCRIM No. 359 regarding motive.
We granted Houston permission to file a brief on his own behalf. He has not responded. We requested the parties provide additional briefing on the issue of whether the jury verdict is fatally inconsistent in finding Houston committed robbery based on testimony he used a knife to take property and the inability to find he used a deadly and dangerous weapon. The parties have responded. They agree that where a jury finds a defendant guilty of some counts and not guilty of others, all the verdicts are effective, even where they are irreconcilable. (See United States v. Powell (1984) 469 U.S. 57.) Houston argues we apply an exception to this principle applicable "where all the essential elements of the crime of which the defendant was acquitted are identical to some or all of the essential elements of the crime of which he was convicted, and proof of the crime of which the defendant was acquitted is necessary to sustain a conviction of the crime of which the defendant was found guilty." (People v. Hamilton (1978) 80 Cal.App.3d 124, 130.) Because robbery does not require use of a deadly weapon, the rule expressed in Hamilton is inapplicable here.
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." (Pen. Code, 211.) The force or fear necessary for a robbery need not exist only at the time of the theft, but can result from actions taken by the thief during asportation or escape. (See People v. Perhab (1949) 92 Cal.App.2d 430, 435; People v. Phillips (1962) 201 Cal.App.2d 383, 385.) It was reasonable for the jury to convict Houston of robbery after hearing testimony that he refused to return to the store and that he threatened to cut anyone who touched him. While only one witness testified that he saw Houston pull a knife, testimony that the jury apparently did not believe, a weapon need not be displayed to instill fear in a victim. (See People v. Brew (1991) 2 Cal.App.4th 99, 104.)
A review of the entire record pursuant to People v. Wende, supra, 25 Cal.3d 436, including the possible issues referred to pursuant to Anders v. California, supra, 386 U.S. 738, has disclosed no reasonably arguable appellate issue. Competent counsel has represented Houston on this appeal.
DISPOSITION
The judgment is affirmed.
O'ROURKE, J.
WE CONCUR:
HALLER, Acting P. J.
AARON, J.
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