P. v. Mitchell

 

 

 

 

 

 

 

 

 

 

 

Filed 9/5/13  P. v. Mitchell CA4/3

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
THREE

 

 
>

THE PEOPLE,         Plaintiff and Respondent,               v.   JEREMY MATTHEW MITCHELL,         Defendant and Appellant.

G046858            (Super. Ct. No. 11HF2728)            O P I N I O N

 

                        Appeal from a judgment
of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, William Lee Evans, Judge.  Affirmed as modified.

                        Ann Bergen, under
appointment by the Court of Appeal, for Defendant and Appellant.

                        Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, A. Natasha Cortina and Sean M. Rodriguez,
Deputy Attorneys General, for Plaintiff and Respondent.

                        Jeremy Matthew Mitchell
appeals from a judgment after a jury convicted him of href="http://www.fearnotlaw.com/">aggravated assault and href="http://www.mcmillanlaw.com/">attempted second degree robbery.  Mitchell argues insufficient evidence
supports his conviction for attempted second degree robbery, the trial court
erred in failing to instruct the jury sua sponte on the lesser included offense
of attempted theft, the court erred in failing to stay the sentence on his
conviction for attempted second degree robbery, and the abstract of judgment
must be corrected.  Although we agree the
sentence on his attempted robbery
conviction must be stayed and the abstract of judgment must be corrected,
none of his other contentions have merit. 
We affirm the judgment as modified.    


FACTS

                        A Costa
Mesa motel, the Regency Inn, was the home of Ricky.href="#_ftn1" name="_ftnref1" title="">[1]  Ricky’s parents would arrive each week and
pay the $324 rent.href="#_ftn2" name="_ftnref2"
title="">[2]  Gary Hallum was also an intermittent tenant
of the motel, and on occasion would stay with Ricky.

                        One October morning at
the motel, Hallum met with Ricky and his parents to sell Ricky a pair of steel
toe boots.  After Ricky’s father
inspected the boots, Ricky’s mother gave Ricky $60 (three $20 bills) and Ricky
gave the money to Hallum.  Hallum sold
the boots to Ricky at a steep discount; he thought the boots were worth
$200.  Mitchell, who stood nearby,
observed the transaction.

                        As Ricky returned to his
room, Mitchell approached Hallum and stated, “make sure you stop by the room
and kick Ricky down.”  Hallum understood
this to mean Mitchell thought Hallum should give Ricky a portion of the
transaction price.  Hallum replied he did
not intend to give Ricky any money because he could have sold the boots for
$125 and he already discounted the price. 
Mitchell lunged at Hallum and said, “‘You don’t understand, old
man.  I’m not fooling around.’”  Although Hallum thought Mitchell was joking
because Ricky’s parents were sitting in their car watching, Hallum moved away
from Mitchell.

                        Mitchell told Hallum
“[he] wasn’t treating him with the respect he . . . deserved[]” and to “move
[his] ass over to the carport area.” 
Once inside the carport area, Mitchell told Hallum that he did not want
to hear “any lip[,]” “he was running the show,” and the motel owners had hired
him as a security guard.  Mitchell pulled
out a knife and told Hallum to keep moving. 
Mitchell repeatedly hit Hallum on the shoulder with the side of the
knife blade.  Mitchell said, “‘It’s
nothing to me at all for me to stick you.’”

                        Mitchell continued to
hit Hallum with the knife as he led him to a curb and told him to sit down and
be quiet.  Mitchell told Hallum to “‘shut
[his] old mouth’” and “get [his] ass up.” 
Mitchell lunged at Hallum and forced him backwards until Hallum had his
back against a fence.  Mitchell thrust at
Hallum with the knife in his hand. 
Hallum was scared Mitchell was going to stab him as he missed Hallum by
only one inch.

                        When two other men
appeared on the scene, Mitchell became distracted and walked away.  Hallum ran next door where he saw his friend
James Gerke.  After Hallum told Gerke
what had happened, Gerke went to find Mitchell. 
When Gerke found Mitchell, he asked him, “‘What are you doing hitting my
friend with a knife?’”  Mitchell pulled
the knife from his waistband and waived it around.  Mitchell said, “‘This is my city.  I own this place.’”  He added, “‘I will stab who I want to[.]’”  Mitchell threw the knife.

                        The motel day manager
heard the commotion and gave Gerke a plastic bag to recover the knife.  She called 911.  When the day manager encountered Mitchell, he
told her the motel owners hired him as a security guard.

                        Officer Andres Sepulveda
responded to the motel and spoke with Hallum, who was visibly distressed.  Sepulveda took possession of the knife.

                        Officer Larry Fettis
responded to the area and found Mitchell riding a bicycle.  Fettis stopped Mitchell and told him that he
matched the description of a person who was involved in a fight at a nearby
motel.  Mitchell replied, “He never went
to that place, that there were too many drug dealers there and he just road by
it.”

                        At an in-field lineup,
Hallum and Gerke identified Mitchell as the perpetrator.  Sepulveda transported Mitchell to jail.  On the way, Mitchell said, “the other man had
a knife and a stick.”

                        An amended information
charged Mitchell with aggravated assault

(Pen.
Code, § 245, subd. (a)(1))href="#_ftn3"
name="_ftnref3" title="">[3]
(count 1), and attempted second degree robbery (§§ 664, subd. (a), 211,
212.5, subd. (c)) (count 2).  The amended
information also alleged Mitchell suffered two prior prison terms within the
meaning of section 667.5, subdivision (b).

                        The jury convicted
Mitchell of both offenses.  The trial
court sentenced Mitchell to five years in prison:  three years on count 1 and two one-year terms
on the prior prison term allegations. 
The court imposed a concurrent two-year term on count 2.  The court explained it “[did not] feel there
are [section] 654 issues because the elements of the crime are so different.”  The court imposed a $200 restitution fine (§
1202.4) and a $200 parole revocation fine (§ 1202.45).  The minute order and the abstract of
judgment, however, indicate those fines were both in the amount of $240.

DISCUSSION

>I.  Attempted Robbery

>                        Mitchell
raises numerous contentions concerning his attempted robbery conviction.  We will address each in turn.

>A. 
Sufficiency of the Evidence

>                        Mitchell
argues insufficient evidence supports his conviction for attempted robbery (he
claims it was extortion if a crime at all) because there was no evidence he
intended to take Hallum’s property or that he used force or fear.  We disagree.   

                        “‘“To determine the
sufficiency of the evidence to support a conviction, an appellate court reviews
the entire record in the light most favorable to the prosecution to determine
whether it contains evidence that is reasonable, credible, and of solid value,
from which a rational trier of fact could find the defendant guilty beyond a
reasonable doubt.”’  [Citations.]  ‘“‘If the circumstances reasonably justify
the trier of fact’s findings, the opinion of the reviewing court that the
circumstances might also be reasonably reconciled with a contrary finding does
not warrant a reversal of the judgment.’”’ 
[Citations.]  The standard of
review is the same when the prosecution relies mainly on circumstantial
evidence.  [Citation.]”  (People
v. Valdez
(2004) 32 Cal.4th 73, 104.)

                        “An attempted robbery
requires a specific intent to commit robbery and a direct, ineffectual act
(beyond mere preparation) toward its commission.  [Citations.] 
Under general attempt principles, commission of an element of the crime
is not necessary.  [Citation.]  As such, neither a completed theft [citation]
nor a completed assault [citation], is required for attempted robbery.  [Citations.]” 
(People v. >Medina (2007)
41 Cal.4th 685, 694-695.)  “‘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.’  [Citation.]”  (People
v. Lindberg (2008)

45
Cal.4th 1, 24.)

>1. 
Taking

                        “‘The taking element of
robbery has two necessary elements, gaining possession of the victim’s property
and asporting or carrying away the loot.’ 
[Citation.]”  (>People v. Hill (1998) 17 Cal.4th 800,
852, overruled on other grounds in Price
v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.)  “Robbery does not necessarily entail the
robber’s manual possession of the loot. 
It is sufficient if he acquired dominion over it, though the distance of
movement is very small and the property is moved by a person acting under the
robber’s control, including the victim. 
[Citations.]”  (>People v. Martinez (1969) 274 Cal.App.2d
170, 174 (Martinez).)

                        Here, sufficient
evidence supports the taking element. 
Analogizing to carjacking and possession of controlled substance cases,
Mitchell contends the evidence must establish he exercised dominion and control
over the money.  Indeed, it must.  And we conclude the evidence here
demonstrated Mitchell attempted to exercise dominion over the money by demanding
Hallum give the money to Ricky.  (>Martinez, supra,

274
Cal.App.2d at p. 174.)  After Mitchell
witnessed Ricky give Hallum $60 in exchange for the boots and Ricky walked
away, Mitchell approached Hallum and said “make sure” to give Ricky part of the
money.  When Hallum indicated he was not
going to give Ricky any money, Mitchell lunged at Hallum and said he was “not
fooling around.”  Thus, based on this
evidence the jury could reasonably conclude Mitchell had the specific intent to
gain dominion and control over the money by ordering Hallum to give the money
to Ricky. 

>2. 
Force or Fear

                        “When >actual force is present in a robbery, at
the very least it must be a quantum more than that which is needed merely to
take the property from the person of the victim, and is a question of fact to
be resolved by the jury taking into account the physical characteristics of the
robber and the victim.  [Citations.]  The force need not be applied directly to the
person of the victim.  [Citation.] . . .
[¶] Generally, ‘the force by means of which robbery may be committed is either
actual or constructive.  The former
includes all violence inflicted directly on the persons robbed; the latter
encompasses

all
. . . means by which the person robbed is put in fear sufficient to suspend the
free exercise of . . . will or prevent resistance to the taking.’  [Citation.] 
This ‘constructive force’ means ‘force, not actual or direct, exerted
upon the person robbed, by operating upon [a] fear of injury . . . .’  [Citation.] . . . [¶] As we have noted,
‘force’ is not an element of robbery independent of ‘fear’; there is an
equivalency between the two.  ‘“[T]he
coercive effect of fear induced by threats . . . is in itself a form of force,
so that either factor may normally be considered as attended by the
other.”’  [Citation.]”

(>People v. Wright (1996) 52 Cal.App.4th
203, 210-211.)

                        “‘The element of fear
for purposes of robbery is satisfied when there is sufficient fear to cause the
victim to comply with the unlawful demand for his property.’  [Citations.] 
It is not necessary that there be direct proof of fear; fear may be
inferred from the circumstances in which the property is taken.  [Citation.] 
[¶]  If there is evidence from
which fear may be inferred, the victim need not explicitly testify that he or
she was afraid.  [Citation.]  Moreover, the jury may infer fear ‘“from the
circumstances despite even superficially contrary testimony of the victim.”’  [Citations.] 
[¶]  The requisite fear need not
be the result of an express threat or the use of a weapon.  [Citations.] 
Resistance by the victim is not a required element of robbery
[citation], and the victim’s fear need not be extreme to constitute robbery [citation].  All that is necessary is that the record show
‘“‘conduct, words, or circumstances reasonably calculated to produce fear . . .
.’”’  [Citation.]  [¶] 
Intimidation of the victim equates with fear.  [Citation.] 
An unlawful demand can convey an implied threat of harm for failure to
comply, thus supporting an inference of the requisite fear.  [Citation.]” 
(People v. Morehead (2011) 191
Cal.App.4th 765, 774-775.) 

                        Here, sufficient
evidence also supports the force or fear element.  Although the evidence established that Hallum
thought Mitchell was joking when Mitchell initially demanded Hallum give Ricky
part of the money, Hallum’s demeanor quickly changed from one of disbelief to
one of terror.  The evidence demonstrated
that after Mitchell demanded Hallum give Ricky money and ordered him to the
carport area, Mitchell pulled out a knife and repeatedly hit Hallum with the
blade.  Mitchell led Hallum at knifepoint
first to a curb and then backed him against a fence while poking at him with
the knife.  Hallum testified that at this
point he was afraid Mitchell was going to stab him.

(>People v. Bordelon (2008) 162
Cal.App.4th 1311, 1319 [fear necessary for robbery subjective in nature].)  This was certainly evidence of force,
although Mitchell’s demand Hallum turn over the money was not temporally
simultaneous with the brandishing of the knife. 
Based on the entire record, the jury could reasonably conclude Mitchell
first threatened Hallum and then escalated the violence by using the knife with
the specific intent to intimidate Hallum and exercise dominion and control over
the money by demanding Hallum give money to Ricky.  Therefore, sufficient evidence supports
Mitchell’s conviction for attempted robbery.  


 B.  Lesser Included Offense-Attempted Theft

>                        Mitchell
contends the trial court erred by failing to instruct the jury sua sponte on
the lesser included offense of attempted theft. 
We disagree. 

>                        Theft
is a lesser included offense of robbery. 
(People v. Castaneda (2011) 51
Cal.4th 1292, 1331.)  “[A] trial court
must instruct on lesser included offenses, even in the absence of a request,
whenever there is substantial evidence raising a question as to whether all of
the elements of the charged offense are present.”  (People
v. Lewis (2001) 25 Cal.4th 610, 645.) 
By contrast, “it has long been settled that the trial court need not,
even if requested, instruct the jury on the existence and definition of a
lesser and included offense if the evidence was such that the defendant, if
guilty at all, was guilty of the greater offense.  [Citations.]” 
(People v. Kelly (1990) 51
Cal.3d 931, 959.)

                        Mitchell’s argument
regarding the instructional error is based solely on his contention the
evidence was insufficient to prove he used force or fear.  As we explain above, the record includes
sufficient evidence from which the jury could reasonably conclude Mitchell
brandished the knife after Hallum failed to comply with Mitchell’s demand to
turn over the money to Ricky.  Mitchell
demanded Hallum give Ricky money.  When
Hallum did not comply with Mitchell’s demand, Mitchell first lunged at him and
then led him to a more secluded area where he pulled out a knife and threatened
to stab him.  This was not a situation
where Mitchell’s intent to steal arose after the assault.  To the contrary, Mitchell’s exercise of
dominion and control preceded his use of a weapon, and based on all the facts,
the element of force or fear was not in doubt. 
Contrary to Mitchell’s assertion otherwise, we conclude this was a
situation where the evidence was such that if Mitchell was guilty, he was
guilty of attempted robbery or nothing at all. 
Finally, Mitchell’s federal constitutional rights were not implicated by
the lack of an instruction on attempted theft. 
(People v. Breverman (1998) 19
Cal.4th 142, 165.)

>C. 
Section 654

>                        Mitchell
asserts the trial court erred in failing to stay his sentence on

count
2 pursuant to section 654.  We agree.

                        “Section 654 precludes
multiple punishment for a single act or omission, or an indivisible course of
conduct.”  (People v. Deloza (1998) 18 Cal.4th 585, 591.)  The purpose of the statute is “to prevent
multiple punishment for a single act or omission, even though that act or
omission violates more than one statute and thus constitutes more than one
crime.  Although the distinct crimes may
be charged in separate counts and may result in multiple verdicts of guilt, the
trial court may impose a sentence for only one offense--the one carrying the
highest punishment.”  (>People v. Liu (1996) 46 Cal.App.4th
1119, 1135.)  The protection of the
statute also extends to cases in which a defendant engages in an indivisible
course of conduct comprising different acts punishable under separate
statutes.  (People v. Harrison (1989) 48 Cal.3d 321, 335.)  Thus, “‘[i]f all of the offenses were merely
incidental to, or were the means of accomplishing or facilitating one
objective, defendant may be found to have harbored a single intent and
therefore may be punished only once.’ 
[Citation.]”  (>People v. Palmore (2000) 79 Cal.App.4th
1290, 1297.)

                        Where an assault is
committed to facilitate a robbery, section 654 may prohibit separately
punishing a defendant for both offenses. 
(E.g., People v. Miller (1977)
18 Cal.3d 873, 886, overruled on other grounds in People v. Oates (2004)

32
Cal.4th 1048, 1067-1068, fn. 8; People v.
Ridley (1965) 63 Cal.2d 671, 678; People
v. Flowers (1982) 132 Cal.App.3d 584, 588-590; People v. Medina (1972) 26 Cal.App.3d 809, 823-824.)  “A defendant’s criminal objective is
‘determined from all the circumstances and is primarily a question of fact for
the trial court, whose findings will be upheld on appeal if there is any
substantial evidence to support it.’ 
[Citation.]”  (>People v. Braz (1997) 57 Cal.App.4th 1,
10.)  We view the evidence in a light
most favorable to the court’s express or implied factual determinations and
presume in support of the judgment the existence of every fact the trier could
reasonably deduce from the evidence.  (>People v. McGuire (1993) 14 Cal.App.4th
687, 698.)

                        As we explain above, the
assault was part of the robbery.  When
Hallum refused to comply with Mitchell’s demand to give Ricky money, Mitchell
became agitated, lunged at Hallum, forced him into a secluded area, pulled out
a knife, and ultimately pinned him against a fence at knifepoint.  We conclude this evidence demonstrates both
the offenses were incident to one objective—Hallum giving Ricky money.  This conclusion is supported by the
prosecutor’s closing argument.  The
prosecutor stated Mitchell bullied Hallum in an effort to take the money and
the jury could infer Mitchell’s intent by what he did after Hallum failed to comply with Mitchell’s demand.  Consequently, we disagree with the Attorney
General’s assertion Mitchell harbored independent intents and objectives, first
the intent to commit robbery and then the separate intent to commit aggravated
assault, when committing the offenses. 
Thus, the trial court should have stayed the sentence on count 2
pursuant to section 654.

>II. 
Abstract of Judgment

>                        Mitchell
argues the abstract of judgment incorrectly states the restitution and parole
revocation fines were $240 each.  The
Attorney General concedes the error.

                        Where there is a
discrepancy between the oral pronouncement of judgment and the clerk’s minute
order, the oral pronouncement of judgment controls.  (People
v. Mesa (1975) 14 Cal.3d 466, 471.) 
We order the abstract of judgment be corrected to reflect the
restitution and parole revocation fines were in the amount of $200 each.  (People
v. Mitchell (2001) 26 Cal.4th 181, 186-187 [court of appeal may correct
clerical error in abstract of judgment].)

DISPOSITION

                         We affirm the convictions but modify the judgment as follows:  The

two-year term imposed on count 2,
attempted robbery, is ordered stayed pursuant to section 654.  The clerk of the superior court is directed
to prepare an amended abstract of judgment consistent with this opinion and
forward it to the Department of
Corrections and Rehabilitation, Division of Adult Operations. 

 

 

                                                                                   

                                                                                    O’LEARY,
P. J.

 

WE CONCUR:

 

 

 

MOORE, J.

 

 

 

ARONSON, J.