Filed 6/20/17 P. v. Smith CA3
NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Sacramento)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

WILL SMITH, JR.,

Defendant and Appellant.
C080614

(Super. Ct. No. 13F05443)






Convicted by jury of multiple counts of sexual assault involving three victims, plus one count each of kidnapping and second degree robbery, and sentenced to a total state prison term of 53 years, defendant Will Smith, Jr., challenges only the sufficiency of the evidence for the robbery conviction. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Procedural History
An amended felony complaint deemed an information charged defendant as follows: forcible rape of R.B. on or about May 30, 2012 (Pen. Code, § 261, subd. (a)(2)—counts one and two); forcible oral copulation of R.B. on or about May 30, 2012 (§ 288a, subd. (c)(2)—counts three and four); kidnapping of H.W. to commit oral copulation on or about July 30, 2013 (§ 209, subd. (b)(1)—count five); forcible oral copulation of H.W. on or about July 30, 2013 (§ 288a, subd. (c)(2)—count six); assault with intent to commit sodomy on H.W. on or about July 30, 2013 (§ 220—count seven); second degree robbery of H.W. on or about July 30, 2013 (§ 211—count eight); assault of C.S. with intent to commit rape on or about January 23, 2012 (§ 220—count nine); and second degree robbery of C.S. on or about January 23, 2012 (§ 211—count ten). The information alleged a multiple-victim enhancement as to counts one through four and count six. (§ 667.61, subd. (e)(4).)
The jury convicted defendant on counts one through four, seven, nine, and ten. The jury acquitted defendant on counts five and six, but convicted him of the lesser included offenses of simple kidnapping (§ 207, subd. (a)—count five) and misdemeanor battery (§ 242—count six). The jury found the multiple-victim enhancements alleged as to counts one through four and six not true. The jury could not reach a verdict on count eight, and the trial court declared a mistrial on that count.
Trial Evidence
Since defendant does not challenge his sexual assault convictions as to R.B. and H.W., we need not discuss the underlying facts in detail. Suffice it to say that in each case, defendant accosted a lone woman in an isolated spot, spoke to her briefly to try to gain her confidence, then sexually assaulted her. H.W. alleged that defendant also took $27 from her, which she gave him in mid-assault to try to end the incident. (This was count eight, on which the jury hung.)
C.S. testified that on the evening of January 23, 2012, she had been drinking and walked to a liquor store near her home in Oakland to get more beer; it was getting dark. When she bought the beer, a man (defendant) started talking to her. He “introduced his self,” but without giving his name. He wanted her to walk with him across the street. She did not want to do that. Nevertheless, he took her hand, grasped it hard, and walked her across the street; she tried to get away, but could not.
Defendant took her to an apartment, where he said he wanted her to talk to someone about getting a phone; she told him no. Then he grabbed her tightly around the neck with one hand and put her up against the wall, causing her to fear for her life. She pulled out $20 from her purse and gave it to him, saying, “here,” hoping he would take it and go away. He snatched it from her and did not give it back.
C.S. left the apartment and ran, but defendant caught up to her on the sidewalk. He grabbed her and told her to come on, then took her to another spot. He ordered her to pull her pants down; fearing harm if she did not comply, she did so. He lifted up her shirt and touched her breast with his mouth and his hand. As she stood facing a fence and holding onto it, he tried to insert his penis into her anus and her vagina, and also tried to put his hand into her vagina. When she tried to get away, he punched her in the face.
A man came out of his house and asked what was going on; defendant said, “[T]his is my girlfriend, we just having some words.” She told the man she was not defendant’s girlfriend. The man went back inside, saying he would call 911.
Defendant kept on “trying to tussle” with her and punched her hard in the face; then he forcefully and painfully pulled her long ponytail wig off her head and ran. He never returned it to her.
C.S. finally called 911, and also asked a woman who lived on her block to do so.
Oakland Police Officer Alain Manguy interviewed C.S. on the night of January 23, 2012. Although he found it difficult to get answers from her or establish a clear timeline for the events of the evening (partly because she had been drinking), she eventually described her encounter with defendant similarly to her testimony at trial.
C.S. told Officer Manguy that after she left the liquor store with defendant, he grabbed her coat with both hands, grabbed her by the neck, and took her behind a house. There, he strangled her, punched her in the face, and said, “[D]o you want me to hurt you?” Fearing for her life, she reached into her purse and presented $20 to him. She believed she was being robbed. He took the money. After that, he ordered her to pull down her pants.
Defendant testified that he encountered C.S. in the liquor store and told her she looked troubled. They left together. He told her he was “looking for a good time” (to “get high and have sex”), showed her some drugs he had on his person, and asked her to walk him to his house. She did not seem interested in the drugs, but appeared to be enjoying his company; she constantly looked over at him, smiling. He grabbed her hand before they crossed the street, and she made no effort to pull away. He was planning to take her to a relative’s house.
As they walked along, he began to “touch and feel on her here and there.” Since she seemed comfortable with that, he came to a stop, lifted up her shirt, and began to suck on her breast. She did not try to stop him. But when he put one hand in her pants and used the other hand to try to pull them down, she started swinging at him and hitting him. He asked her what the problem was; she did not answer in words, but kept on swinging at him and yelled out.
A neighbor came out of his house. Defendant said C.S. was his girlfriend and the neighbor needed to go back inside and mind his own business. The man went back inside.
Because C.S. was still hitting defendant and “getting through my defenses a little more,” he got upset and punched her, trying to get her to calm down. Defendant admitted he might have pushed C.S. up against a chain link fence during the “tussle,” but denied strangling her or saying, “[Do] [y]ou want me to hurt you?” He denied that she had given him $20 because she thought he was going to try to rob her.
Defendant, who was on probation and had a lot of dope on him, believed the neighbor was going to call the police. Defendant thought C.S. was “being an asshole.” Upset and irritated that he was not going to get any further “action,” defendant snatched C.S.’s ponytail wig off her head and ran away. He had no intention of giving it back. He discarded it somewhere.
Argument
The prosecutor argued to the jury that either the taking of C.S.’s money or the taking of her wig or both could constitute second degree robbery as charged in count ten, because defendant took both items by force and duress and did not intend to return either.
DISCUSSION
Defendant contends there was insufficient evidence to support his conviction for the robbery of C.S. as to either her money or her wig because he used force with the specific intent to commit rape, not robbery, and did not have the intent to permanently deprive her of her property. We are not persuaded.
Robbery is the “taking of personal property in the possession of another, from [her] person or immediate presence, and against [her] will, accomplished by means of force or fear” (§ 211), and with the intent to permanently deprive the person of the property. (People v. Marshall (1997) 15 Cal.4th 1, 34.) “Robbery . . . has not occurred unless property was taken from the person’s immediate presence and the defendant used force or fear to take the property or to prevent the person from resisting.” (People v. Scott (2009) 45 Cal.4th 743, 749.)
Robbery involves both caption (taking property) and asportation (carrying the property away). (People v. Gomez (2008) 43 Cal.4th 249, 255, 256.) “[A] taking is not over at the moment of caption; it continues through asportation. . . . [A] robbery can be accomplished even if the property was peacefully or duplicitously acquired, if force or fear was used to carry it away.” (Id. at p. 256.) To support a conviction for robbery, either the caption or the asportation must be accomplished by force or fear. (Id. at p. 257.)
For a taking to constitute robbery, “the evidence must show that the requisite intent to steal arose either before or during the commission of the act of force. [Citation.] ‘[I]f the intent arose only after the use of force against the victim, the taking will at most constitute a theft.’ ” (People v. Marshall, supra, 15 Cal.4th at p. 34.)
When a defendant claims the evidence was insufficient to support his conviction, we apply the substantial evidence standard of review. We “must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.) We must “presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] If the circumstances reasonably justify the trial court’s findings, reversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding. [Citations.] . . . [¶] Before the judgment of the trial court can be set aside for insufficiency of the evidence . . . , it must clearly appear that upon no hypothesis whatever is there sufficient substantial evidence to support it.” (People v. Redmond (1969) 71 Cal.2d 745, 755; see Johnson, at pp. 576-577.)
Here, viewing the evidence most favorably to the judgment, defendant used force or fear to take both C.S.’s money and her wig, and did so with the intent to deprive her permanently of those items.
As to the money, according to the account C.S. gave Officer Manguy shortly after the incident, defendant grabbed her, strangled her, and pushed her against a wall, then asked, “[D]o you want me to hurt you?” Believing she was being robbed, she took $20 out of her purse and handed it to him. He snatched it from her and did not offer then or later to return it. When all of this occurred, defendant had not yet done anything that showed an intent to assault C.S. sexually, and she did not testify that she believed at that point that he had such an intent.
As to the wig, by defendant’s own admission (which was consistent with C.S.’s testimony), he pulled it off C.S.’s head forcibly, did not intend to return it, and “discarded it somewhere.”
Defendant’s argument as to the theft of C.S.’s money fails because it ignores Officer Manguy’s testimony as to his report—including defendant’s remark “[Do] [y]ou want me to hurt you?”—and cites only C.S.’s testimony, which omitted that remark. An insufficient evidence argument that ignores the strongest evidence in support of the judgment deserves no further consideration. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.)
But even aside from that lacuna, defendant’s argument lacks logic and support from authority. He asserts: “[Defendant] used force both before and after [C.S.] give him $20 solely with the intent to commit rape. The first use of force was not to obtain the money, but to rape [C.S.]. If [defendant’s] intent in using force had been robbery, he would have let [C.S.] run away. But he did not allow her to escape, and he used force after obtaining the money so that he could attempt to rape her.” (Italics added.) Defendant cites no authority for the proposition that a perpetrator cannot simultaneously intend two crimes, and we know of no such authority. Furthermore, he did not need to “let [C.S.] run away” in order to complete the crime of robbery: All he had to do was to continue to control and overpower her, as he already proved he could do, so that she could not recover her money. Finally, the fact that he committed robbery before attempting sexual assault may show only that he thought it would be easier or safer under the circumstances to do the robbery first.
Since sufficient evidence supports defendant’s robbery conviction as to the stolen money, we need not say much about his theft of C.S.’s wig. We note, however, that defendant’s claim that he merely “snatched the wig and ran” ignores C.S.’s testimony that he did so forcefully enough to cause pain (as well as the fact that he did so after taking her money by force and sexually assaulting her). As the court noted in People v. Church (1897) 116 Cal. 300, on which defendant mistakenly relies, where a person takes property by snatching or grabbing it from another’s possession, “whether such taking constitute[s] robbery or grand larceny . . . [depends] upon the absence or presence of the use of force in the taking; and the use or nonuse of force by defendant [is] a question of fact . . . for the jury. . . ” (id. at p. 302). Here, the jury could reasonably have determined that defendant used sufficient force to convict him of robbery as to the wig.
DISPOSITION
The judgment is affirmed.



BUTZ , J.



We concur:



RAYE , P. J.



MURRAY , J.