P. v. Ruiz

P. v. Ruiz

Filed 8/20/08 P. v. Ruiz CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, Plaintiff and Respondent, v. ALFONZO PARRA RUIZ, Defendant and Appellant.

D052347 (Super. Ct. No. SCD205242)

APPEAL from a judgment of the Superior Court of San Diego County, Roger W. Krauel, Judge. Affirmed.

A jury convicted Alfonzo Parra Ruiz of robbery. On appeal, Ruiz contends: (1) the evidence was insufficient to prove beyond a reasonable doubt that he possessed the requisite felonious intent to sustain his conviction for robbery; and (2) the trial court abused its discretion in refusing to strike his strike prior. We reject both contentions and affirm the judgment.

FACTS

Ruiz worked at Reliable Tire. On March 8, 2007, the general manager of Reliable Tire, Randall Sanks, confronted Ruiz's supervisor and Ruiz about a work issue. Ruiz became indignant. Sanks told Ruiz to go home and "cool down," and come back to work the following Monday.

The next day Ruiz came to work drunk. Unbeknownst to Sanks, he also had a plastic gun in his pocket that he had purchased the day before. Ruiz was cursing at Sanks in Spanish, said he was quitting and wanted to be paid. Ruiz kept his right hand in his pocket. Because Ruiz was confrontational, Sanks asked the office manager to contact the company's payroll service and determine the amount of Ruiz's final paycheck. The office manager prepared a check for $545.84 payable to Ruiz from the checking account of Reliable Tire, which Sanks signed because Ruiz was "getting out of control," and Sanks wanted him to leave.

Sanks called 911 from his office because Ruiz was becoming more threatening. Sanks was scared of Ruiz and was concerned he would attack him. While standing in Sanks's office, Vincente Ocampo Alcantara, the yard manager of Reliable Tire, made a motion to Sanks suggesting Ruiz had a gun in his pocket. Sanks also noticed Ruiz would not take his hand out of his pocket. At some point, Ruiz quickly took the gun out of his pocket and briefly pointed it at Sanks, who thought, "He's going to shoot me. He's going to shoot us, and it's going to hurt. And he's going to kill us." Ruiz demanded Sanks hang up the telephone. Before doing so, Sanks hit the "speaker" button to maintain the 911 connection.

Ruiz refused to accept the check, and instead demanded Sanks's wallet, calling Sanks a "mother fucker" and asking Sanks, "Do you want to die?" When Sanks tried to get up from behind his desk, Ruiz told him to sit down, and repeatedly said, "You will not move from there . . . ." When Sanks reached for his wallet in his front pocket, Ruiz again said, "Don't move," and yelled at Sanks to get his "hands up." The office manager pulled Sanks's wallet from his pocket and gave Ruiz $800 that was inside, telling him it was more than he was owed. Ruiz put the money in his pocket and started to walk out of the office. Sanks saw a police officer approach, and yelled to the officer, "He's got a gun in his right pocket," because Sanks did not want the officer to be shot by Ruiz.

A video of Ruiz's post-arrest interrogation at the police station was played for the jury. During his interrogation, Ruiz admitted to detectives that he was angry at Sanks for the way Sanks had treated him on March 8; that he bought the toy gun from an ice cream vendor after he left work on March 8 and put black tape over the orange tip so it would look real; that he went to Reliable Tire on March 9 angry and drunk, and intended to "scare" Sanks and "fuck him up" because Sanks had told him to take a day off; that he "really screwed up" and was "sorry" for what he had done; and that because he was upset at Sanks he demanded Sanks's wallet and took his money, which he recognized was a robbery.

DISCUSSION

I

The Property Was Taken with the Specific Intent Permanently

to Deprive That Person of the Property

A conviction for robbery requires, among other elements, that a defendant take property from its owner with the intent to deprive the owner of the property permanently. (CALJIC No. 9.40; Pen. Code, 211; People v. Butler(1967) 65 Cal.2d 569, 572 (Butler), overruled on other grounds in People v. Tufunga (1999) 21 Cal.4th 935, 956 (Tufunga).) The intent to steal is a question of fact (People v. Jennings (1991) 53 Cal.3d 334, 364-366) and "may ordinarily be inferred when one person takes the property of another, particularly if he [or she] takes it by force . . . ." (Butler, supra, 65 Cal.2d at p. 573.)

Ruiz contends the evidence is insufficient to support his conviction for robbery because he lacked the requisite intent to steal when he demanded Sanks's wallet and took $800 from him. Ruiz's contention is based on the "claim-of-right" defense, which provides that a "defendant's good faith belief, even if mistakenly held, that he [or she] has a right or claim to property he [or she] takes from another negates the felonious intent necessary for conviction of theft or robbery." (Tufunga, supra, 21 Cal.4th at p. 938, italics added.) We reject this contention.

The claim-of-right defense is limited. A defendant may not assert this defense to "robberies perpetrated to satisfy, settle or otherwise collect on a debt, liquidated or unliquidated-as opposed to forcible takings intended to recover specific personal property in which the defendant in good faith believes he has a bona fide claim of ownership or title . . . ." (Tufunga, supra, 21 Cal.4th at p. 956.) Here, the claim-of-right defense does not apply because Ruiz was attempting to collect on a debt.

In addition, over the objection of the People the jury was instructed on the claim-of-right defense and rejected that defense. The jury's finding that Ruiz acted with the requisite intent to support a robbery conviction is amply supported by evidence that is "reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Bolden (2002) 29 Cal.4th 515, 553.) The evidence shows Ruiz became angry at Sanks for talking down to him; that Ruiz bought a toy gun the same day Sanks told him to go home and "cool down"; that

Ruiz put black tape on the tip of the gun to make it look more realistic; that the following day he confronted Sanks and threatened to kill him; that he refused to accept a company check for the amount he was actually owed by the company; that he instead showed Sanks the gun and demanded his wallet; that he was drunk, abusive, and out of control; that he repeatedly told Sanks not to move and to keep his hands up where he could see them; that he took $800 from Sanks despite the fact he was owed only $545.84; and that Sanks was scared Ruiz would shoot and kill him, which is what Ruiz hoped to accomplish when he confronted Sanks that day. This evidence, which is substantial, supports a finding Ruiz acted with the requisite intent to steal.

II

Ruiz next contends the court abused its discretion when it refused to strike his strike prior because he was outside the spirit of the "Three Strikes" law. We also reject this contention.

A court's refusal to dismiss or strike a prior conviction allegation is subject to review under the "deferential abuse of discretion standard." (People v. Carmony (2004) 33 Cal.4th 367, 374 (Carmony).) " ' "The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review." ' " (Id. at pp. 376-377.) "In light of this presumption, a trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances. For example, an abuse of discretion occurs where the trial court was not 'aware of its discretion' to dismiss [citation], or where the court considered impermissible factors in declining to dismiss [citation]." (Id. at p. 378.) Here, in refusing to strike a strike prior, the court considered the nature and circumstances of both Ruiz's current offense and his prior offense, as well as Ruiz's probation report and the statement in mitigation filed by Ruiz, which included a psychological examination of Ruiz performed by Beatriz Heller, Ph.D. Although this case did not involve "physical violence," the court noted it did involve "psychological violence," and based on the "particulars of [Ruiz's] background concerning the use of violence," and his previous offense that also involved violence, the court determined Ruiz to be "within the spirit of the three strikes scheme."

Ruiz has not pointed to any evidence in the record suggesting or showing the sentencing decision was "irrational or arbitrary," (Carmony, supra, 33 Cal.4th at p. 376), nor has he argued that the court considered any impermissible factors in refusing to strike his prior strike convictions. The trial court therefore did not abuse its discretion in refusing to strike a strike prior.

DISPOSITION

The judgment is affirmed.

McINTYRE, J.

WE CONCUR:

HALLER, Acting P. J.

AARON, J.

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