P. v. Cuellar

Filed 10/6/06 P. v. Cuellar CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Tehama)

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A jury found defendant Dionicio Junior Cuellar guilty of first degree robbery and first degree burglary. On appeal defendant contends the evidence was insufficient to support his robbery conviction. He also contends the trial court erred when it failed to instruct the jury on the lesser included offense of theft. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On July 4, 2005, around 1:00 p.m., Bo McBrayer came home and saw through a cracked door a man in his laundry room whom he later identified as defendant. McBrayer froze and he and defendant looked at each other straight in the eye, and then defendant said, “Get back or I’ll blast you.” Defendant was holding one of McBrayer’s shirts. McBrayer backed away from the laundry room door and said, “Get out of my house,” and defendant slammed the cracked door and went straight out the back door. After a few seconds, McBrayer went out the front door to get his cell phone out of his car and called 911. While outside on his cell phone, McBrayer saw defendant in the alleyway on the south side of his house standing next to a neighbor’s gate. He then saw defendant go up the alleyway until he was out of sight.

Corning Police Officer Jeremiah Fears, dispatched from the 911 call, saw a blue nylon bag through the backyard fence of McBrayer’s neighbor. McBrayer watched Officer Fears recover the bag from the same gate where he saw defendant standing earlier. He identified the blue bag and the items inside as his. Defendant was taken into custody shortly thereafter. McBrayer went to where defendant had been taken into custody and identified him to the police as the man he saw in his house. A few days later, the shirt defendant had been wearing was found in the same yard where the blue nylon bag had been found.

A jury found defendant guilty of first degree robbery and first degree burglary. Defendant appeals.

DISCUSSION

I

Sufficiency Of The Evidence Of Robbery

Defendant first contends there was insufficient evidence to support the robbery conviction. “The standard of review is well settled: On appeal, we review the whole record in the light most favorable to the judgment below 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.] ‘”[I]f the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder.”’ [Citation.] ‘The standard of review is the same in cases in which the People rely mainly on circumstantial evidence. [Citation.] “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.”’” (People v. Snow (2003) 30 Cal.4th 43, 66.)

“An appellate court must accept logical inferences that the jury might have drawn from the circumstantial evidence.” (People v. Maury (2003) 30 Cal.4th 342, 396.) “Before the judgment of the trial court can be set aside for the insufficiency of the evidence, it must clearly appear that on no hypothesis whatever is there sufficient substantial evidence to support the verdict of the jury.” (People v. Hicks (1982) 128 Cal.App.3d 423, 429.)

“Although the usual formulation of the standard of review, set forth ante, could be read to suggest that we will review the record to determine if it contains substantial evidence to support the [jury’s] verdict even if the defendant does nothing more than baldly assert that the evidence is insufficient, that is not the case.

“Perhaps the most fundamental rule of appellate law is that the judgment challenged on appeal is presumed correct, and it is the appellant’s burden to affirmatively demonstrate error. [Citation.] Thus, when a criminal defendant claims on appeal that his conviction was based on insufficient evidence of one or more of the elements of the crime of which he was convicted, we must begin with the presumption that the evidence of those elements was sufficient, and the defendant bears the burden of convincing us otherwise. To meet that burden, it is not enough for the defendant to simply contend, ‘without a statement or analysis of the evidence, . . . that the evidence is insufficient to support the judgment[] of conviction.’ [Citation.] Rather, he must affirmatively demonstrate that the evidence is insufficient.” (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.)

Defendant argues there was insufficient proof he possessed the blue nylon bag when he told McBrayer, “Get back or I’ll blast you,” because McBrayer did not see the blue bag until it was recovered. Defendant concludes that the elements of robbery are not established by the evidence because McBrayer’s bag and the items inside were not in McBrayer’s immediate presence when defendant threatened him.

“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 victim’s knowledge that he is being robbed when force or fear is used does not matter. (People v. Jackson (2005) 128 Cal.App.4th 1326, 1330-1331.)

Here, the evidence presented at trial, taken in the light most favorable to the People, supports a robbery conviction. McBrayer came home and saw defendant through the laundry room doorway. Defendant told McBrayer, “Get back or I’ll blast you,” and then slammed the cracked door and ran out of the house. McBrayer then saw defendant outside at his neighbor’s gate. McBrayer’s bag and property were recovered by the police at the same spot. The jury’s implicit conclusion that defendant possessed the bag when he threatened McBrayer was reasonable. Defendant presented no evidence to substantiate his claim that the bag may have been dumped in the neighbor’s yard earlier. We conclude it was reasonable for the jury to infer from the evidence presented that defendant threatened McBrayer in order to escape from his house with the blue bag that he later dumped in the neighbor’s backyard. Accordingly, defendant’s challenge to the sufficiency of the evidence fails.

II

Jury Instruction On Lesser

Defendant next contends the trial court erred in failing to instruct the jury on the lesser included offense of theft. “A trial court must instruct the jury sua sponte on an uncharged offense that is lesser than, and included in, a greater offense with which the defendant is charged ‘only if [citation] “there is evidence”’ [citation], specifically, ‘substantial evidence’ [citation], ‘”which, if accepted . . . , would absolve [the] defendant from guilt of the greater offense” [citation] but not the lesser.‘“ (People v. Waidla (2000) 22 Cal.4th 690, 733.)

Theft is a lesser included offense of robbery. (People v. Melton (1988) 44 Cal.3d 713, 746.) “Robbery comprises elements embracing the use of force or fear to effect a taking from the victim [citation] and also an intent to steal [citation] accompanying the use of such means [citation]. Theft comprises the same elements, including intent to steal, with the pertinent exception of the use of force or fear.” (People v. Waidla, supra, 22 Cal.4th at p. 737.)

In Waidla, the Supreme Court ruled there was no “substantial evidence that would absolve [Waidla] of robbery but not theft” because the “People’s evidence was in sum that he was guilty as charged, whereas [defense’s] evidence was in sum that he was not guilty at all.” (People v. Waidla, supra, 22 Cal.4th at p. 738.) Waidla argued that he did not intend to steal when he used force or fear against the victim, but rather took personal property afterward. However, “there was no evidence . . . that he did not form any intent to steal any item until after he used force or fear to effect the taking.” (Ibid.) Speculation of an alternate series of events is not enough to meet the substantial evidence requirement. (Ibid.)

Here, there was no evidence defendant did not have the bag when he threatened McBrayer. At trial, the defense focused on mistaken identity and never put forward the theory presented on appeal that defendant stashed the bag and then reentered the home and threatened McBrayer empty-handed. Speculation that that is what occurred is not substantial evidence. Accordingly, we conclude the trial court did not err in failing to instruct the jury on the lesser included offense of theft.

DISPOSITION

The judgment is affirmed.

ROBIE , J.

We concur:

MORRISON , Acting P.J.

HULL , J.

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