Filed 10/9/18 P. v. Kelly CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Ronald M. Christianson, Judge. Affirmed.

Robert F. Somers, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, and Alana Butler and Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.

I. INTRODUCTION

A jury found defendant and appellant, Solomon Kelly, guilty as charged of one count of attempted second degree robbery of two victims, J.C. and F.H. (Pen. Code, §§ 664, 211.)[1] Defendant was sentenced to two years in prison, but his sentence was deemed served and he was released on parole because his preimprisonment credits equaled or exceeded the sentence imposed. The criminal proceedings were delayed due to defendant’s hospitalization and involuntary treatment with antipsychotic medication in order to restore his mental competency.

In this appeal, defendant claims insufficient evidence supports his conviction for attempted robbery because no evidence shows he “unequivocally” used force or fear in attempting to asport or carry away two gallons of milk from a grocery store, after store employees confronted and detained him outside the store. He also claims the trial court erroneously failed to instruct the jury sua sponte on self-defense, and he alternatively claims his defense counsel rendered ineffective assistance in failing to request self-defense instructions.

We reject these claims and affirm the judgment. As we explain, substantial evidence shows defendant used force or fear in attempting to carry away the milk by threatening the store employees with a knife he had concealed in his backpack. Further, no self-defense instructions were required to be given, and defense counsel was not ineffective in not requesting them, because no evidence showed the store employees used or threatened to use excessive force in confronting and detaining defendant.

II. FACTS AND PROCEDURE

A. Prosecution Evidence

1. J.C.’s Testimony

On November 20, 2015, J.C. was working as a security guard at a grocery store in San Bernardino. J.C. was wearing a uniform which identified her as a security guard, along with a duty belt with handcuffs and a flashlight, but she was not carrying any weapons. Around 10:00 or 10:30 a.m., J.C. saw defendant inside the store. Defendant was wearing a backpack on his chest, which J.C. was trained to notice because backpacks are often used for shoplifting.

In the back of the store, defendant picked up a gallon of plain milk and a gallon of chocolate milk, then walked outside the front entrance of the store with the milk. Defendant made no attempt to pay for the milk inside the store.

J.C. followed defendant outside the store and, when she was four or five feet behind him, said she needed to see a receipt for the items he was carrying, if he had paid for them. Defendant said nothing and kept walking. J.C. caught up to defendant and told him he either had to show her a receipt for the items or return them to the store. Defendant sped up to a “fast pace walk.” He was trying to get away from J.C.

J.C. then got in front of defendant. When she was facing defendant from a distance of two feet, she told him he either had to “hand over” the items and leave, or return to the store and pay for the items. At that point, defendant tossed one of the gallons of milk at J.C., hitting her in her lower left hip but causing no pain or injury. The milk splattered on the ground. J.C. then asked a passing customer to call the store manager. At this point, J.C. and defendant were 10 or 12 feet outside the store. J.C. and defendant were at a “stand still”; J.C. was two feet in front of defendant, blocking his path away from the store. J.C. felt “a little threatened” but thought the situation was under control.

Two or three minutes after J.C. confronted defendant outside the store, three male store managers came out of the store, wearing their work uniforms of black pants, white shirts, and brown vests. The three managers and J.C. formed a circle around defendant, and J.C. told the managers what was going on. Two of the managers used shopping carts to place distance between themselves and defendant, and defendant began backing up toward the store. J.C. and the managers asked defendant to remove his backpack and put the milk down, but he did not comply.

J.C. was concerned about what might be in the backpack after defendant began “reaching his hand” into one of the pockets on the front of the backpack. She saw that defendant’s hand was “gripped around” something in the pocket, and she believed it was a weapon. After he put his hand in the pocket, defendant kept asking, “Do you want this or that? Do you want this or that?” J.C. understood him to be asking whether they wanted to deal with what was in the backpack pocket, or let him go. At this point, J.C. began to fear for her life, even though she did not believe defendant was going to pull a weapon out of the backpack due to the way he was “hesitat[ing].”

J.C. and the managers kept asking defendant to calm down, put his backpack down, and sit down on the curb in front of the store. The managers slowly pushed the shopping carts towards defendant, causing him to back up towards the store. Around 15 minutes after the confrontation began, when defendant was “backed up to the curb” and had “nowhere to go,” he put the milk down, sat on the curb, removed his backpack, and placed the backpack to the side. One of the managers pulled the backpack away from defendant. J.C. told defendant to put his hands behind his back. He complied, and J.C. placed him in handcuffs. Defendant did not fight or try to get away.

After one of the managers opened the backpack pocket to see what was in it, J.C. saw that it contained a steak knife with a serrated blade. J.C. called 911, and a recording of the call was played for the jury. J.C. told the dispatcher she had a man in custody who had stolen property from the store, had thrown a gallon of milk at her, and had a knife in his backpack. When the dispatcher asked whether the man had pulled out the knife, J.C. responded “[a]ttempted brandishing,” and explained that the man was “trying to pull . . . out” the knife when she was trying to stop him. At trial, J.C. did not recall telling the officer who responded to the 911 call, Officer Shaun Sandoval, that defendant pulled the knife out of the backpack, nor did she recall that defendant pulled out the knife, but she testified it was possible she told the officer that defendant pulled out the knife.

2. F.H.’s Testimony

F.H. was one of the three managers who assisted J.C. outside the store. At trial, F.H. recalled that all three of the managers had shopping carts. They were trained to use shopping carts as shields for their protection whenever there was a “strong conflict.” F.H., the other managers, and J.C. surrounded defendant in “a triangle shape.” The managers stayed around five feet from defendant, or the length of the shopping carts plus another foot or two.

F.H. recalled that defendant kept saying “this or that.” It was “constant, repetitive,” and F.H. did not initially understand what defendant meant. Defendant repeatedly reached into a pocket of his backpack, and at one point pulled his hand out far enough for F.H. to see that he was holding the handle of a kitchen knife. F.H. then realized defendant was referring to the knife when he was asking if they wanted “this or that.” F.H. was “worried and concerned” for his safety, stepped back, and made sure the cart stayed in front of him. Defendant eventually stepped back, calmed down, sat on the curb, then put down the backpack. No one threatened defendant. To the contrary, one of the other managers joked with defendant in order to calm him down and ease the situation.

3. Additional Prosecution Evidence

Officer Sandoval was dispatched to the store at 10:56 a.m. When he arrived, defendant was handcuffed and sitting on the curb, J.C. was standing behind defendant, and another store employee with a shopping cart was standing in front of defendant. There was spilled milk in the parking lot, a gallon of milk on the sidewalk next to defendant, and the backpack on the sidewalk behind defendant. The officer found a knife inside the front pocket of the backpack, and arrested defendant for robbery.

Officer Sandoval recalled that both J.C. and F.H. told him they saw defendant pull the knife out of the backpack. Just before the close of the evidence, the parties stipulated that, after J.C. testified at trial, she told the prosecutor she “[did] not recall one hundred percent” whether defendant “actually produced the knife. What she does recall is that he had the backpack on the front of his body and after he threw the milk at her kept reaching into the front pocket. According to [J.C.], she thought he had a gun or a knife which scared her. She is certain, however, that while he was reaching into his pocket, he did say, ‘You want this or that’ which she believed referred to the weapon in his bag which contributed to her fear.”

B. Defense Case

Defendant did not testify, and the defense did not present any other affirmative evidence.

C. Closing Arguments

In closing argument, the prosecutor did not argue that defendant’s act of throwing one of the gallons of milk at J.C. showed he used force or fear to commit the attempted robbery. Instead, the prosecutor’s theory of the case was that defendant attempted to use force or fear by reaching into his backpack pocket and threatening to use a weapon unless J.C., F.H., and the other managers let him go away with the milk. The prosecutor also argued it did not matter whether defendant pulled out the knife or whether J.C. thought he was going to pull out the knife; what mattered was that he threatened to use a weapon in order to get away with the milk and that this frightened J.C. and F.H. Defense counsel argued that the force or fear element of the attempted robbery charge was not met because defendant did not intend to pull out the knife, did not pull out the knife, and did not say he had a knife or other weapon.

III. DISCUSSION

A. Substantial Evidence Supports Defendant’s Conviction for Attempted Robbery

Defendant claims insufficient evidence supports his attempted robbery conviction because “no evidence proves that he took a direct step toward committing a robbery and he did not intend to commit a robbery.” Specifically, he argues no evidence shows he “threatened” anyone with the knife in the pocket of his backpack in order to facilitate his escape with the milk. Thus, he argues, his behavior was “inconsistent with someone definitely and unambiguously intending to commit robbery.”

1. Applicable Law and Standard of Review

In considering a criminal defendant’s claim that insufficient evidence supports a conviction, our standard of review is well settled. We review the entire record in the light most favorable to the prosecution in order to determine whether it contains substantial evidence—that is, evidence which is reasonable, credible, and of solid value—upon which a rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) We presume in support of the judgment every fact the trier of fact could have reasonably deduced from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) Reversal is unwarranted merely because we believe the evidence might reasonably support a contrary conclusion. (People v. Thomas (1992) 2 Cal.4th 489, 514.)

“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.” (§ 211.) To convict a defendant of robbery, the People must prove: (1) the defendant took property not his own (2) from the possession of another person, (3) from the person’s immediate presence, (4) against the person’s will, (5) by using force or fear either to take the property or to prevent the person from resisting the taking, and (6) with the intent to permanently deprive the person of the property. (CALCRIM No. 1600.)

Robbery is a continuing offense, which means there is no single temporal point at which the elements of robbery must come together. (People v. Hodges (2013) 213 Cal.App.4th 531, 540.) Thus, the force or fear element of robbery is satisfied if the defendant uses force or fear during either the “caption” phase of the taking—during the time when the defendant obtains possession of the property—or the “asportation” phase of the taking—during the time the defendant is carrying the property away. (Ibid.; People v. Gomez (2008) 43 Cal.4th 249, 261; People v. Estes (1983) 147 Cal.App.3d 23, 28.)

In contrast, an attempted robbery is committed if (1) the defendant took a direct but ineffective step toward robbery and (2) the defendant intended to commit robbery. (CALCRIM No. 460.) “A direct step requires more than merely planning or preparing to commit [r]obbery or obtaining or arranging for something needed to commit [r]obbery. A direct step is one that goes beyond planning or preparation and shows that a person is putting his or her plan into action. A direct step indicates a definite and unambiguous intent to commit [r]obbery. It is a direct movement towards the commission of the crime after preparations are made. It is an immediate step that puts the plan in motion so that the plan would have been completed if some circumstance outside the plan had not interrupted the attempt.” (Ibid.) The jury was accordingly instructed pursuant to CALCRIM Nos. 460 (Attempt) and 1600 (Robbery).

2. Analysis

Defendant claims insufficient evidence supports his attempted robbery conviction because “no evidence proves that he took a direct step toward committing a robbery and he did not intend to commit a robbery.” Specifically, he argues no evidence shows he “threatened” anyone with the knife in the pocket of his backpack in order to facilitate his escape with the milk. Thus, he argues, his behavior was “inconsistent with someone definitely and unambiguously intending to commit robbery.”

We find these claims unavailing. Substantial evidence shows, and a jury reasonably could have concluded, that defendant took a “direct step” toward robbing J.C. and F.H. of the single gallon of unspilled milk he had just taken from the store (after he threw the first gallon of milk at J.C.), by ignoring J.C.’s demands to put the milk down and by instead placing his hand inside the pocket of his backpack while gripping something and repeatedly saying, “This or that? This or that?” (CALCRIM No. 460.) Under the circumstances, defendant’s actions and statements reasonably indicated to J.C. and F.H. that they had a choice of either: (1) allowing defendant to leave with the milk, or (2) dealing with what was in his backpack, which F.H. saw was a “kitchen knife” and which J.C. reasonably believed was some kind of weapon. (People v. Brew (1991) 2 Cal.App.4th 99, 104 [force or fear element of robbery may be shown by “‘“conduct, words, or circumstances reasonably calculated to produce fear . . . .”’”].) The same evidence also shows, and based on this evidence the jury reasonably could have concluded, that defendant “definitely and unambiguously” intended to commit robbery by threatening to use the weapon in his backpack unless J.C., F.H., and the two other store managers allowed him to leave with the milk. (CALCRIM No. 460.)

Defendant argues no evidence shows he used force or fear to carry away or permanently deprive J.C. and F.H. of the milk because no evidence shows he attempted to flee after J.C. initially confronted him outside the store. In other words, he argues his failure to flee shows he was not attempting to complete a robbery and did not intend to commit a robbery. In a similar vein, he points out he did not “threaten [J.C.] or reach into his backpack when [J.C.] was the only person confronting him. Although [he] did not comply with [J.C.’s] requests before the three male employees joined her, [he] stood still, and no evidence proves [he] intended to commit a robbery at this point in the incident.” These arguments do not assist defendant’s substantial evidence claim. Even if defendant did not attempt to flee, and even if defendant did not use force or fear when J.C. initially confronted him outside the store, substantial evidence shows he used force or fear in attempting to permanently deprive J.C. and F.H. of the milk—after F.H. and the other two store managers came outside to assist J.C. in confronting defendant. As discussed, this evidence shows defendant took a direct but ineffective step toward robbery and intended to commit robbery—the key elements of attempted robbery. (CALCRIM No. 460.)

Defendant also argues he made no statements or threats that definitely and unambiguously indicated he would use the knife, and would therefore commit robbery rather than petty theft, unless J.C., F.H., and the two other store managers allowed him to leave with the milk. He argues his repeated statements of “This or that?” had no clear meaning, and he was “rant[ing] to no one specifically.” Thus, he argues his statements did not unambiguously show he intended to “elevate his petty theft [into] a robbery,” but the evidence instead shows he “assumed a defensive posture with his hand in his backpack, and retreated.” In sum, he argues he made no direct step indicating he definitely and unambiguously intended to commit robbery because no evidence shows he made “an overt threat to use the knife to escape.”

These arguments are likewise unavailing. Defendant was not required to “overtly” threaten anyone with the knife, either by displaying the knife or by expressly and unequivocally announcing his intention to use the knife unless he was allowed to leave with the milk, in order to take a direct step to commit robbery. (See People v. Morehead (2011) 191 Cal.App.4th 765, 775 [“The requisite fear [for robbery] need not be the result of an express threat or the use of a weapon.”].) To the contrary, defendant’s act of reaching into his backpack pocket while gripping something inside the pocket and repeatedly saying “This or that?” reasonably showed defendant “definitely and unambiguously” intended to use a weapon in order to escape with the milk, and thus intended to commit robbery. (CALCRIM No. 460.)

Lastly, defendant argues his attempted robbery conviction must be reversed because the record does not indicate that the jury considered the tossed and spilled gallon of milk as an alternative theory of his guilt—that is, as an alternative theory that he used force or fear against J.C. in attempting to escape with the milk. This is not a ground for reversing the conviction. As noted, the prosecution did not rely on the spilled milk as an alternative theory of defendant’s guilt, and the record does not affirmatively indicate that the jury rested its verdict on this ground. (People v. Guiton (1993) 4 Cal.4th 1116, 1127-1131 [reversal not required where record shows factually sufficient and insufficient grounds for conviction, unless record affirmatively indicates that the verdict rests on the factually insufficient ground].)

B. No Evidence Warranted Instructing the Jury on Self-defense

Defendant next claims the trial court erroneously failed to instruct the jury sua sponte on reasonable self-defense. Alternatively, he claims his defense counsel rendered ineffective assistance in failing to request instructions on self-defense. He argues substantial evidence supported instructing the jury on self-defense because the jury reasonably could have concluded he was reaching for the knife in his backpack in order to protect and defend himself from J.C. and the three male store managers who confronted him “armed with shopping carts.”

We reject these claims. As we explain, insufficient evidence supported instructing the jury on self-defense because insufficient evidence showed that J.C. or the store managers used unreasonable or excessive force in detaining defendant. Thus, no instructions on self-defense were required to be given by the court sua sponte, and defense counsel did not render ineffective assistance in failing to request such instructions.

A trial court has a duty to instruct on a defense sua sponte, but only if substantial evidence supports the defense and the defense is not inconsistent with the defendant’s theory of the case. (People v. Gutierrez (2009) 45 Cal.4th 789, 824.) A court-appointed defense attorney renders ineffective assistance of counsel, and violates the defendant’s Sixth Amendment right to counsel, if the defense attorney’s performance falls below an objective standard of reasonableness and there is a reasonable probability the defendant would have realized a more favorable result in the absence of counsel’s deficient performance. (Strickland v. Washington (1984) 466 U.S. 668, 689; People v. Ledesma (1987) 43 Cal.3d 171, 216-217.)

As the People point out, when a merchant uses reasonable force to detain a suspected shoplifter, the merchant is effectively making a citizen’s arrest. (§ 834 [“An arrest is taking a person into custody, in a case and in the manner authorized by law. An arrest may be made by a peace officer or by a private person.”].) Section 490.5 specifically authorizes merchants to use reasonable force to detain suspected shoplifters: “A merchant may detain a person for a reasonable time for the purpose of conducting an investigation in a reasonable manner whenever the merchant has probable cause to believe the person to be detained is attempting to unlawfully take or has unlawfully taken merchandise from the merchant’s premises.” (§ 490.5, subd. (f)(1).)

Accordingly, “‘[w]hen a peace officer or a private citizen employs reasonable force to make an arrest, the arrestee is obliged not to resist, and has no right of self defense against such force. [Citations.] On the other hand, the use of unreasonable or excessive force to make an arrest constitutes a public offense. [Citation.] And all persons have a right to prevent injury to themselves by resisting a public offense [citation]. Moreover, [“]a person who uses reasonable force to protect himself [ . . . ] against the use of [ . . . ] excessive force in making an arrest is not guilty of any crime.[”] [Citation.] [¶] The right to resist excessive force used to make an arrest is an application of the law of self-defense. [Citation.]’” (People. v. Adams (2009) 176 Cal.App.4th 946, 952-953.)

But here, no evidence showed that J.C., F.H., or the two other store managers used excessive or unreasonable force in detaining defendant outside the store. F.H. testified that no one threatened defendant. J.C. only asked defendant to relinquish possession of the milk and to sit down, and one of the other managers joked with defendant in an attempt to calm defendant. The three store managers’ use of the shopping carts to place distance between themselves and defendant did not constitute excessive or unreasonable force. (Cf. People v. White (1980) 101 Cal.App.3d 161, 165-170 [trial court prejudicially erred in failing to instruct sua sponte on self-defense where substantial evidence showed police officers used excessive force in arresting defendant].) Thus, the trial court did not have a duty to instruct sua sponte on self-defense, and defense counsel did not render ineffective assistance in failing to request instructions on self-defense.

IV. DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS

J.

We concur:

RAMIREZ

P. J.

SLOUGH

J.