Filed 3/28/18 P. v. Winstead CA5



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

ANTHONY ROBERT WINSTEAD,

Defendant and Appellant.

F074744

(Super. Ct. No. 16CR-01331)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Merced County. Donald E. Shaver, Judge. (Retired judge of the Stanislaus County Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Stephen G. Herndon, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
 
Appellant Anthony Robert Winstead’s challenge to his conviction is based solely upon a single legal issue. For the reasons set forth below, the conviction is affirmed.
PROCEDURAL AND FACTUAL BACKGROUND
Because appellant only challenges existing precedents which are binding upon this court, it is unnecessary to present an extended description of the procedural history and facts in this case.
On June 14, 2016, a first amended information was filed alleging that appellant committed robbery in violation of Penal Code section 211. The information further alleged appellant previously suffered a strike conviction and a serious felony conviction within the meaning of section 667.
The trial began on August 16, 2016.
Appellant does not dispute that the testimony established that on February 24, 2016, appellant entered a Target store in Merced, California, put a camera in his backpack, exited the store without paying for the camera, and engaged in a struggle outside the store with security guards and a peace officer.
The jury found appellant guilty of robbery. The trial court found the prior conviction allegations true.
DISCUSSION
Appellant argues that a robbery should be deemed to occur only if the acts satisfying the force or fear element of robbery are contemporaneous with the initial taking of the property.
Appellant acknowledges that his argument is inconsistent with existing precedents. (People v. Anderson (1966) 64 Cal.2d 633, 638-639; 2 Witkin, Cal. Criminal Law (4th ed. 2012) Crimes Against Property, § 96, pp. 133-135.) Appellant states that he is asserting these arguments “to preserve his right to petition the Supreme Court to reconsider [these precedents].”
“Under the language of section 211, the phrases ‘person or immediate presence’ and ‘force or fear’ both refer to the ‘taking’ of personal property. The force or fear element of robbery can be satisfied during either the caption or the asportation phase of the taking.” (People v. Gomez (2008) 43 Cal.4th 249, 261.)
This court is bound by such Supreme Court authorities. It is thus unnecessary to discuss appellant’s extensive arguments.
DISPOSITION
The conviction is affirmed.