P.v . Young

Filed 3/7/07 P.v . Young CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Joan P. Weber, Judge. Affirmed in part; reversed in part.

A jury convicted Duane Andrew Young of three counts of robbery (Pen. Code,^[1] 211) and three counts of being a felon in possession of a firearm ( 12021, subd. (a)(1)). The jury also found that Young had personally used a firearm during the robberies ( 12022.53, subd. (b)), and he had four prior convictions, one serious prior and one strike prior ( 667.5, subd. (b), 667, subd. (a), 1170.12, 1192.7). The trial court sentenced Young to 36 years in prison.

Young's three robbery convictions stemmed from two separate robberies a September 13, 2004 robbery outside a Hollywood Video store in Vista (counts 2 & 3) and a September 17 robbery outside a Jack-in-the-Box restaurant in Escondido (count 5). Young was also convicted on three counts of being a felon in possession of a firearm: once on September 13, once on September 17, and then on a third occasion when he was arrested on September 29, 2004 (counts 4, 6 & 10).

On appeal, Young contends we must reverse his convictions on one of the counts of robbery and on one of the counts of being a felon in possession of a firearm because they are not supported by substantial evidence. We set out the facts relating to each of these contentions, and our resulting analysis, separately below.

DISCUSSION

I

Standard of Review

In reviewing a challenge to the sufficiency of the evidence, we examine "the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence" from which "a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Snow (2003) 30 Cal.4th 43, 66 (Snow).) In performing our examination, we are mindful that it " ' "is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends." ' " (People v. Smith (2005) 37 Cal.4th 733, 739.) "[I]t is not within our province to reweigh the evidence or redetermine issues of credibility." (People v. Martinez (2003) 113 Cal.App.4th 400, 412 (Martinez).) So, even the "uncorroborated testimony of a single witness is sufficient to sustain a conviction, unless the testimony is physically impossible or inherently improbable." (People v. Scott (1978) 21 Cal.3d 284, 296.)

Our review is thus deferential to the jury's role as finder of fact, but it is not empty. The evidence that supports a conviction must be "reasonable, credible and of solid value"; "mere speculation cannot support a conviction." (Snow, supra, 30 Cal.4th at p. 66; People v. Marshall (1997) 15 Cal.4th 1, 35 (Marshall).)

II

There Is No Substantial Evidence to Support the Conviction on Count 3

Young contends that the evidence can support only one conviction for robbery based on the events of September 13, 2004, and consequently his conviction on count 3 must be reversed for lack of evidence.

A. Facts Pertinent to the September 13th Robbery

On September 13, 2004, Corrie Hughes and Michael Martin were working as managers of two "attached" stores in Vista, California. Martin managed the video store, Hollywood Video, and Hughes managed the game shop, Game Crazy. The two stores are "separate entities" with separate entrances and separate customer counters, and are owned by the same parent company.

At approximately 9:00 a.m., both Hughes and Martin prepared to make bank deposits prior to opening their respective stores. Hughes prepared the Game Crazy deposit behind the Game Crazy store counter, and Martin prepared the Hollywood Video deposit behind the Hollywood Video store counter. According to "company policy," they intended to travel together to make their deposits.

After readying their respective deposits, Hughes and Martin walked out to the parking lot. Hughes carried her Game Crazy deposit in a plastic deposit bag, concealed in her hand. Martin carried the Hollywood Video deposit openly in a large bag marked "Bank of America." When Hughes reached the driver's side of her car, she saw Young come around the corner carrying a gun. Young motioned for Hughes to move out of the way, and passed by her on his way to confront Martin who was on the passenger side of the car. When Young reached Martin he ordered him to "drop the bag" containing the Hollywood Video deposit. After Martin complied, Young picked up the bag and fled. Martin and Hughes went to a nearby McDonald's restaurant and called the police. Martin testified the stolen Bank of America bag, the only item taken by Young, contained approximately $1,700.

Based on the above facts, Young was convicted of two counts of robbery. Young was convicted on count 2 of robbing Martin, and on count 3 of robbing Hughes.

B. There Was Insufficient Evidence to Establish that Hughes Possessed the Hollywood Video Deposit

Young argues his conviction for robbing Hughes must be reversed because two essential elements of the crime of robbery were unsupported by the prosecution's evidence. Young contends there was (i) no evidence that he took any property from Hughes's possession, and (ii) no evidence that he utilized force or fear against Hughes to do so. As we agree with the former argument we need not address the latter.

Section 211 defines robbery as the "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.)

As is clear from the robbery statute, "an essential element of the crime of robbery is that property be taken from the possession of the victim." (People v. Nguyen (2000) 24 Cal.4th 756, 762 (Nguyen).) Nevertheless, "if force or fear is applied to two victims in joint possession of property, two convictions of robbery are proper." (People v. Ramos (1982) 30 Cal.3d 553, 589, italics added, reversed on another point in California v. Ramos (1983) 463 U.S. 992; People v. Bonner (2000) 80 Cal.App.4th 759, 763-764 ["while a robbery may involve a single act, a conviction of robbery is proper for each person in possession of the property against whom force or fear is applied to accomplish the taking"].) As possession can be either actual or constructive, courts have recognized that multiple store employees can be considered victims of a single act of robbery "based on constructive rather than actual possession of the employer's property." (People v. Frazer (2003) 106 Cal.App.4th 1105, 1111 (Frazer).)

The Attorney General argues that under the authority of the store-employee cases,^[2]Hughes constructively possessed the Hollywood Video deposit while it was in Martin's hand because, as an employee of a company that was owned by the same parent company that owned Hollywood Video, she had some responsibility for the deposit. We believe the Attorney General's argument stretches the definition of constructive possession beyond its tolerable limits.

First it bears emphasis that the store-employee cases relied on by the Attorney General are applications of, not exceptions to, the possession element of the crime of robbery. (Nguyen, supra, 24 Cal.4th at p. 762;  211.) Thus, as we stated in Frazer, employee status may help to establish the element of possession, but it "does not alone establish constructive possession of an employer's property for purposes of satisfying the possession element of robbery." (Frazer, supra, 106 Cal.App.4th at p. 1108.) Instead, for an employee to be considered a victim of a robbery of store property that he or she did not actually possess, "the record must show indicia of express or implied authority" over the property. (Id. at p. 1115.)^[3]

Here, the Frazer test is not met because the record does not contain indicia that Hughes had express or implied authority to possess the Hollywood Video deposit that was stolen. (Frazer, supra, 106 Cal.App.4th at p. 1111.) There was no evidence that prior to the robbery Hughes had handled the deposit or had any intention of doing so at some point in the future, and no suggestion that Hughes had a right to control the deposit while it was in Martin's possession. (Cf. People v. Showers (1968) 68 Cal.2d 639, 644 [person constructively possesses property held by another if the "person actually possessing the" property does so "pursuant to his direction or permission where he retains the right to exercise dominion or control over the property"].) To the contrary, it was undisputed that at all relevant times Hughes and Martin separately prepared and handled their respective store deposits and did not intermix them in any way.

In addition, despite the Attorney General's loose characterizations of the relevant employment relationship on appeal, the record demonstrates that Hughes was not, in fact, an employee of the store that was robbed (Hollywood Video).^[4] While the record suggested that Hughes's store, Game Crazy, is related to Martin's store, Hollywood Video, by virtue of its "attached" location and common "parent" company, the testimony was uncontradicted that the two stores are "separate entities" with separate entrances, customer counters and, above all, separate property specifically, the deposits at issue in this case. These factors, which go directly to the issue of possession, demonstrate that Hughes did not have the right to control or possess the Hollywood Video property, a conclusion that could not be overcome merely by loose insinuations of an overarching corporate relationship between Hollywood Video and Game Crazy. (Cf. People v. Galoia (1994) 31 Cal.App.4th 595, 597 [owner of video games placed within store not robbery victim when store merchandise stolen in his presence and by force upon his person]; Sykes v. Superior Court (1994) 30 Cal.App.4th 479, 484 [security guard of neighboring business who gave chase to robber and eventually retrieved stolen property not robbery victim]; Nguyen, supra, 24 Cal.4th at p. 762 [spouse of employee not robbery victim when employer's property stolen]; see also People v. Guerin (1972) 22 Cal.App.3d 775, 782 (Guerin) [evidence insufficient to support robbery conviction for store employee because there was nothing, "other than that he was a co-employee of the other three [victims], to suggest that he had any dominion or control whatsoever over any money. As to him there was no taking and, thus, no robbery"].)^[5]

Further, even if Hughes and Martin did work for a "common employer" (a fact not supported by the record), the instant robbery occurred outside of that common employer's "store" the area within which it might be assumed Hughes had some de facto authority over company property. (Cf. Frazer, supra, 106 Cal.App.4th at p. 1112 [explaining that constructive possession is generally found in store-employee cases because "[t]he courts [have] reasoned that the employees were rightfully in possession of the place of employment and its contents," italics added]; People v. Dean (1924) 66 Cal.App. 602, 607 [night watchmen who did not actually have access to stolen theater property were robbery victims because "they were rightfully in possession of the theater and its contents at the time of the robbery"]; People v. Miller (1977) 18 Cal.3d 873, 881 [security guard proper victim of robbery because "[h]e had constructive possession [of store merchandise] at the time of the robbery in the same sense as did the night watchman at the time of the robbery in Dean"].) While the case law generally recognizes that a store employee is in constructive possession of the employer's merchandise within a store, we are aware of no case that has held that a store employee continues to constructively possess store property held by another store employee outside the store. Rather, in such circumstances store employees, like any other persons, will only constitute joint robbery victims if the evidence shows they were in "joint possession" of the property stolen. (People v. Ramos, supra, 30 Cal.3d at p. 589; Nguyen, supra, 24 Cal.4th at p. 765 [reversing robbery conviction based on theft of office equipment taken in the presence of husband of store employee].)

There was no evidence of joint possession here. While there was cursory testimony that Martin and Hughes had some "responsibilities" with respect to each other's deposits e.g., they were tasked with "verify[ing]" that each had made their respective deposits and were required to make their deposits at the same time, this testimony is insufficient to support the requisite conclusion that Hughes was vested with implicit or explicit authority to control or possess Martin's deposit. Instead, the evidence presented that Martin and Hughes each prepared and retained possession only of their own respective, separate store deposits while simultaneously traveling to the bank supported solely the opposite conclusion. (People v. Harvey (1984) 163 Cal.App.3d 90, 105, fn. 7 ["Substantial evidence means more than simply one of several plausible explanations for an ambiguous event"]; Marshall, supra, 15 Cal.4th at p. 35 ["mere speculation cannot support a conviction"].)^[6]

In sum, the instant case does not fall within the rule of Frazer, supra, 106 Cal.App.4th 1105, or more importantly, that of People v. Ramos, supra, 30 Cal.3d 553  that two convictions of robbery are proper where "two victims [are] in joint possession of property." (Id. at p. 589, italics added.) The prosecution evidence was insufficient to demonstrate that Hughes had possession actual, constructive or joint of the property that was stolen, and consequently Young's conviction on count 3 for robbing Hughes must be reversed.

III

The Evidence Is Sufficient to Support the Conviction on Count 10

Young also contends that the evidence is insufficient to support a conviction on count 10 that he possessed a firearm on September 29, 2004. Specifically, he argues there was insufficient evidence to establish that he possessed any firearm on that day.

A. Facts Pertinent to Young's Conviction on Count 10

On September 29, 2004, an Escondido police officer conducting surveillance at Young's apartment observed Young riding in the passenger seat of a white Nissan. The car was being driven by Joseph Gray. After the Nissan pulled into the apartment complex, Young got out and went into his apartment for a few minutes and then returned to the passenger seat of the car. The Nissan pulled away, and police efforts to follow it were unsuccessful. About an hour later, the police, who were still watching Young's apartment, observed Young approach on foot and detained him. Within minutes, Gray drove up in the Nissan. Police then stopped Gray and searched the Nissan. They found a fully loaded .357 caliber revolver hidden under the floor mats behind the driver's seat. The police also found a Department of Motor Vehicles form with Young's name on it on the floor of the right front passenger seat. The police did not find any evidence linking the gun to Gray.

B. The Evidence Is Sufficient to Support the Jury's Verdict on Count 10

Our review of the record demonstrates that there was sufficient evidence to support the jury's conviction that Young unlawfully possessed a firearm on September 29, 2004.

First there was substantial evidence connecting Young to the car in which the gun was found. Young had been seen riding in the car about an hour prior to the recovery of the gun, and official paperwork with Young's name on it was located in the car. Second, there was substantial evidence suggesting that the gun belonged to Young. Gray testified the gun was not his, that he did not know it was in the car, and that on previous occasions he had observed Young with the gun.^[7] In addition, three witnesses testified that the gun recovered from Gray's car was consistent with that used by Young in the robberies. The totality of this testimony, if credited, supported a reasonable inference that the gun found in Gray's car had been in Young's possession earlier that day when Young was also in the car. Consequently, the jury's verdict is supported by substantial evidence and may not be disturbed on appeal.

DISPOSITION

The conviction on count 3 is reversed. In all other respects, the judgment is

affirmed. The case is remanded for the trial court to strike the conviction on count 3 and resentence Young accordingly. The trial court should then send a corrected abstract of judgment to the Department of Corrections.

IRION, J.

I CONCUR:

McDONALD, J.

HALLER, Acting P.J., Concurring and Dissenting.

I agree with the majority's analysis regarding count 10, but disagree concerning count 3.

In his only appellate challenge to count 3, Young contends that there is insufficient evidence to support the jury's verdict convicting him of the robbery of victim Corrie Hughes. The majority agrees, concluding that the "evidence was insufficient to demonstrate that Hughes had possessionactual, constructive or jointof the property that was stolen" from victim Michael Martin.

When reviewing a challenge to the sufficiency of the evidence, the appellate court considers the whole record in the light most favorable to the judgment to determine whether there is substantial evidence from which a reasonable trier of fact could find guilt beyond a reasonable doubt. (People v. Thomas (1992) 2 Cal.4th 489, 514.) " '[T]he reviewing court must . . . presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment.' " (People v. Crittenden (1994) 9 Cal.4th 83, 139.) " 'If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant reversal of the judgment.' " (People v. Thomas, supra, 2 Cal.4th at p. 514.)

I agree that Hughes did not have actual possession of Martin's bank deposit. However, in my view, the jury could have reasonably concluded that Hughes had constructive possession of the money that Young took at gunpoint from Martin.

"[C]onstructive possession can exist when a person without immediate physical control has the right to control the property, either directly or through another person." (People v. Frazer (2003) 106 Cal.App.4th 1105, 1111-1112.)^[8] In the context of employment relationships, "employee status does not alone . . . establish constructive possession. Rather, the record must show indicia of express or implied authority [over the property] under the particular circumstances of the case." (Id. at p. 1115.)

Here, the jury heard evidence that when Martin and Hughes were making bank deposits, "company policy" required that they go together, in one car, to the same bank and that they "verify each other's deposits." Additionally, Hughes explained that the same parent company owned both Hollywood Video and Game Crazy and that she and Martin had joint responsibility for each other's deposits. The jury was entitled to credit the testimony that each victim believed that their job duties included taking responsibility for the other's daily bank deposits. From this evidence, the jury could reasonably infer that Hughes had authority over the property taken from Martin so as to establish Hughes's constructive possession. Accordingly, I would affirm the judgment on count 3.

HALLER, Acting P. J.

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^[1] All statutory references are to the Penal Code unless otherwise indicated.

^[2] In addition to the cases discussed in the text, the Attorney General relies on People v. Jones (1996) 42 Cal.App.4th 1047, People v. Jones (2000) 82 Cal.App.4th 485, and People v. Gilbeaux (2003) 111 Cal.App.4th 515.

^[3] The Attorney General disputes this court's conclusion in Frazer that employee status alone does not constitute constructive possession calling it "an insupportable expansion of the law." However, we believe that Frazer (which contains a comprehensive analysis of the prior case law) properly recognizes that possession, not the employee/employer relationship, is at the heart of the analysis. We also note that the Attorney General fails to cite any published decision that criticizes or declines to follow Frazer.

^[4] The Attorney General loosely characterizes the relevant employment status, stating that Hughes and Martin had a "common employer" and were "employed by the same corporation." In fact, the sole testimony on this topic (briefly provided by Hughes and Martin) was that they each worked for "separate entities" but that "the same parent company [was] the owner of both Hollywood [Video] and Game Crazy." This testimony, which was not disputed, demonstrates that Hughes and Martin worked for separate corporate entities, not the same "common employer."

^[5] As noted in Frazer, Guerin was "partially overrul[ed]" in People v. Ramos, supra, 30 Cal.3d 553, but the Ramos opinion did not overrule this portion of the Guerinholding. (Frazer, supra, 106 Cal.App.4th at p. 1113.)

^[6] The dissent argues that the jury could have inferred Hughes' constructive possession of Martin's deposit from her affirmative answer to the prosecutor's question as to whether she had "any joint responsibilities" for that deposit. We believe that such a conclusion would be impermissibly speculative, especially considering that the "responsibilities" Hughes specifically identified a "company" policy that she and Martin were to accompany each other to the bank and verify the deposits had been made did not indicate that Hughes' had any right to possess or control Martin's deposit, as would be required for a showing of constructive possession.

^[7] Young contends that Gray's denial that the gun was his is "unbelievable," but in reviewing a jury conviction for sufficiency of the evidence we are not permitted to make credibility determinations where, as here, the testimony is not physically impossible or inherently improbable. (See Martinez, supra, 113 Cal.App.4th at p. 412 ["it is not within our province to reweigh the evidence or redetermine issues of credibility"].)

^[8] Consistent with this principle, the jury was properly instructed that "[a] person does not have to actually hold or touch something to possess it. It is enough if the person has the right to control it, either personally or through another person." (CALCRIM No. 1600, parentheses omitted.)