P. v. Hefler

Filed 1/18/07  P. v. Hefler 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NOT TO BE PUBLISHED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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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

(Sacramento)

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     A jury found defendant Allen Wayne Hefler guilty of second degree robbery.  Imposition of sentence was suspended, and defendant was placed on probation for five years on the condition, among others, that he serve 180 days of incarceration and pay a $200 probation revocation restitution fine.

     On appeal, defendant contends the trial court erroneously instructed the jury on the elements of robbery and incorrectly responded to a jury question.  We disagree and affirm.

FACTS

     Nisar Khan testified that he ran an automobile painting business in Sacramento.  In February 2002, he hired defendant to work at the business.  In September 2003, defendant was replaced but he continued to work for Khan as an independent contractor.  Eventually it was agreed that Khan would pay defendant every Friday for the work he had done that week.  Khan frequently paid defendant in advance of his doing the work.  The advances were later deducted from regular Friday paychecks, sometimes on the ensuing Friday and other times on a subsequent Friday.  Defendant and Khan always agreed on the amount and timing of money that was owed. 

     Khan became disturbed by defendant's spotty attendance and tardiness.  On September 22, 2004, Khan asked defendant to come to work the following morning at 8:00 a.m. because there was a lot of work to do.  Defendant did not show up, but he telephoned Khan at 10:30 or 11:00 a.m. and said that he would be late.  It was typical that when Khan gave defendant an advance on his pay, he would not show up for work the next day or would come in late. 

     At 12:30 p.m., defendant arrived at work.  Khan was outside the shop and ready to leave.  Defendant stormed out of his car and pushed Khan.  Khan thought that defendant was drunk.  Defendant grabbed a cordless telephone from one of Khan's employees and threw it into the street. 

     Defendant said he was through working for Khan, and he was there to pick up his tools and his money.  Defendant also said nobody should interfere with him.  Khan telephoned 911 from the office before he rejoined defendant.  Khan did not stop defendant from getting his tools.  Defendant retrieved some tools, including his paint gun and the paper that indicated how much work he had performed.  Khan told defendant that Khan owed him $30 and that he was going to make a check for that amount.^[1]  Defendant replied he was not talking about that money.  Instead, defendant demanded all the money Khan had in his pocket.  Defendant said he did not want to hurt Khan but he wanted all the money Khan had in his pocket.  Khan said that he was not going to give defendant the money.  Defendant then hit Khan with a closed fist.  Khan was afraid.  He pulled out all the money he had from his pocket and threw it on the counter.  Khan estimated he gave defendant $300-$400.  Defendant took the money and told Khan, â€