PEOPLE v. JOHNSON

Filed 7/31/06

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

ITHIEL JOHNSON,

Defendant and Appellant.

A111007

(Alameda County

Super. Ct. No. 148761)

INTRODUCTION

Appellant Ithiel Johnson appeals his conviction for second degree robbery (Pen. Code, § 211)[1], claiming: (1) as a matter of law, the facts adduced at trial did not support a finding that he took personal property from the immediate presence of another by force or fear; (2) the court's jury instructions on robbery, given before deliberations began, were erroneous; and (3) he was denied due process and the effective assistance of counsel when the trial court gave a further instruction on the crime of robbery in response to the jury's question posed during its deliberations. We reject these contentions and affirm the judgment.

II.

Procedural Background

An information was filed by the Alameda County District Attorney's Office on December 3, 2004, charging appellant with one count each of second degree robbery (§ 211), making a criminal threat (§ 422), and possession of a firearm by a felon (§ 12021, subd. (a)(1)). The information also alleged that appellant used a firearm in the commission of the robbery and in making a criminal threat, within the meaning of sections 1203.06, subdivision (a)(1), 12022.5, subdivision (a)(1), and 12022.53, subdivision (b), and alleged further that appellant had suffered a prior serious felony conviction in 1999 for second degree robbery within the meaning of the three strikes law (§§ 1170.12, subd. (c)(1), 667, subds. (a)(1) & (e)(1)).

A jury trial on the charges commenced on March 30, 2005, and ended on April 7, 2005, when the jury found appellant guilty of second degree robbery, not guilty of the other two counts, and found not true the firearm use enhancements. Appellant then waived a jury trial on the prior conviction enhancements, and the trial judge then found that appellant had suffered the prior conviction as alleged.

The trial court sentenced appellant to an aggregate state prison sentence of 11 years, calculated as follows: the midterm of three years was imposed for the conviction on count one, doubled to six years based on the true finding that appellant had suffered a prior strike, to which was added a consecutive term of five years based on the finding that the prior conviction was also a serious felony. Total custody credits of 302 days were awarded. This timely appeal followed.

III.

Legal Discussion and Evidence Presented at Trial

Sufficiency of Evidence to Support Robbery Conviction,

and Modification of CALJIC No. 9.40

Appellant's first contention is that the evidence at trial did not support factual findings necessary to a conviction for robbery: that property was taken from the immediate presence of another by force or fear. (People v. Hayes (1990) 52 Cal.3d 577, 626-627 (Hayes).) Before turning to the law applicable to this claim, we first summarize the evidence presented at trial bearing on this issue.

The first prosecution witness was Oscar Carbajal, a loss prevention officer at Food4less in Oakland. It was his job to keep surveillance on customers through the store's surveillance camera system to prevent thefts. On July 12, 2005, when the subject incident occurred, the store had over 60 cameras viewing various locations throughout the store. Carbajal was trained to detect thefts and to initiate contact with a theft suspect once the suspect leaves the store with the stolen merchandise. The purpose of the contact is to recover the merchandise. Although they carry identifying badges, loss prevention officers work unarmed. Prior to July 12, Carbajal had participated in approximately 60 theft arrests; since July 12, he estimated he had participated in over 100 more arrests. None of these other incidents involved any threats of violence or the use of any weapon by the theft suspects.

On July 12, Carbajal was in charge of loss prevention at the store. As such, he did not normally monitor the surveillance cameras himself, except as a back up. While he was on his lunch break that day, his coworker, Johann Scott, informed Carbajal that he saw on camera what is known as a possible â€

Description	Evidence supported a finding that defendant took personal property from the immediate presence of another by force or fear. Therefore supported a conviction for robbery, where it showed that, while watching surveillance camera, store's loss-prevention officer saw defendant take goods from store without paying. Once outside the store, defendant resisted officer's efforts to get the merchandise back by repeatedly threatening to shoot officer and pulling a gun from defendant's car. Jury instruction was not erroneous where it instructed the jury that the force or fear element of robbery can be satisfied during the asportation or carrying away phase of "taking" rather than only during the "gaining possession" phase of taking. Where jury asked for clarification of law as to where the actual act of robbery ends, judge's response that "commission of the crime of robbery continues so long as the stolen property is being carried away to a place of temporary safety" and that "if the initial taking of the property was without force or fear, but during the carrying away of the property, force or fear is then used against the victim by the perpetrator to retain or escape with the property, the required element of force or fear is established," properly addressed jury's question, was not an improper "pinpoint" instruction, and trial court did not abuse its discretion in denying defendant's counsel's request to be allowed to make additional arguments to the jury after the instruction.
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