P. v. Arms
Filed 8/11/08 P. v. Arms CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, Plaintiff and Respondent, v. TERESA LYNN ARMS, Defendant and Appellant. | B202514 (Los Angeles County Super. Ct. No. TA089659) |
APPEAL from a judgment of the Superior Court of Los Angeles County, David Sotelo, Judge. Affirmed in part; reversed in part with directions.
Alan Mason, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters and Peggy Z. Huang, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant, Teresa Lynn Arms, appeals from her convictions for second degree robbery (Pen. Code, 211) and petty theft with a prior conviction. ( 484, 666.) Defendant argues there was insufficient evidence to support her robbery conviction. In the alternative, defendant argues that her petty theft with a prior conviction is a lesser included offense of robbery and should be reversed and, upon remittitur issuance, dismissed. The Attorney General argues that additional fees and penalties should be assessed on the fines imposed. We affirm in part but modify the calculation of fines. We order the dismissal of count 2.
We view the evidence in a light most favorable to the judgment. (Jackson v.Virginia (1979) 443 U.S. 307, 319; People v. Elliot (2005) 37 Cal.4th 453, 466; People v.Osband (1996) 13 Cal.4th 622, 690; Taylor v.Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) At approximately 12:30 a.m. on March 9, 2007, loss prevention associate Edward Lopez was on duty at the K-Mart store in Carson. Mr. Lopez was operating the closed camera surveillance system. Mr. Lopez saw defendant place infant teething tablets, pacifiers, and child proof cups into a red canvas bag inside a shopping cart. Mr. Lopez continued to watch defendant on the closed circuit television monitor. Defendant walked through the store for 25 to 30 minutes. Defendant placed a rubber tote in the shopping cart on top of the canvas bag. Defendant then went to the cash register, where she paid for some food items, the rubber tote, and a toy. Defendant did not put the red canvas bag or its contents on the conveyer. Defendant then began to exit the store.
Mr. Lopez followed defendant out of the store. Mr. Lopez saw the red canvas bag was still in the shopping cart. Mr. Lopez approached defendant and identified himself as a loss prevention officer by showing her his identification. Mr. Lopez told defendant that she had not paid for some items and asked her to accompany him back inside the store. Defendant stood there for a minute. Mr. Lopez repeated his request that defendant go back inside the store because she had not paid for certain items. Defendant refused to go back inside. Defendant said: No. Im not going in. Youre not making me go in. Defendant got upset and pushed Mr. Lopez with both hands on his chest. Mr. Lopez placed both of his hands on defendants shoulders and pushed her against a wall. The wall was approximately 15 feet away from where they had been standing. Mr. Lopez attempted to handcuff defendant while leaning against her with his shoulder. After Mr. Lopez secured one handcuff, defendant tried to escape his grip. Mr. Lopez grabbed defendant by both shoulders. Defendant and Mr. Lopez fell to the ground. Defendant was on her stomach. Mr. Lopez sat on defendants buttocks while attempting to place the handcuff on her other hand. Defendant bit Mr. Lopezs right hand. Mr. Lopez told defendant to calm down. However, defendant continued to yell and attempt to push Mr. Lopez away. A bystander helped Mr. Lopez handcuff defendant. Mr. Lopez took defendant into the store office. Defendant told Mr. Lopez she was sorry and wanted to pay for the items. Defendant said that she was a single mother with four children at home. Thereafter, Mr. Lopez called the sheriffs department. Defendant was subsequently arrested.
Defendant testified that she had not paid for all of the items. Defendant did not hear what Mr. Lopez said when she left the store. Defendant did not know who Mr. Lopez was when he ran after her and grabbed her. Defendant was afraid. Mr. Lopez pushed her against the wall with his hands on the upper portion of her breasts. Defendant believed Mr. Lopez was trying to molest her as he pushed her to a more secluded area. Defendant admitted biting Mr. Lopez, but indicated that she stopped because she did not want to get in trouble for hurting someone. Defendant had taken methamphetamine in the afternoon of March 9, 2007. However, defendant took only a small amount of methamphetamine and felt no effects from the drug when she was at K-Mart late that night.
First, defendant argues that there was insufficient evidence to support her robbery conviction. More specifically, defendant argues no force or fear was used in either the taking of the stolen items or their retention. In reviewing a challenge of the sufficiency of the evidence, we apply the following standard of review: [We] consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt. (People v.Mincey (1992) 2 Cal.4th 408, 432, fn. omitted; People v.Hayes (1990) 52 Cal.3d 577, 631; People v.Johnson (1980) 26 Cal.3d 557, 576.) Our sole function is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v.Virginia, supra, 443 U.S. at p. 319; People v. Bolin (1998) 18 Cal.4th 297, 331; People v.Marshall (1997) 15 Cal.4th 1, 34; People v.Ochoa (1993) 6 Cal.4th 1199, 1206; People v.Barnes (1986) 42 Cal.3d 284, 303; Taylor v.Stainer, supra, 31 F.3d at pp. 908-909.) The standard of review is the same in cases where the prosecution relies primarily on circumstantial evidence. (People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Stanley (1995) 10 Cal.4th 764, 792; People v.Bloom (1989) 48 Cal.3d 1194, 1208; People v.Bean (1988) 46 Cal.3d 919, 932.) The California Supreme Court has held, Reversal on this ground is unwarranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]. (People v. Bolin, supra, 18 Cal.4th at p. 331, quoting People v. Redmond (1969) 71 Cal.2d 745, 755.)
Section 211 provides, 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. In People v. Gomez (2008) 43 Cal.4th 249, 256, our Supreme Court held: [A] taking is not over at the moment of caption; it continues through asportation. . . . [A] robbery can be accomplished even if the property was peacefully or duplicitously acquired, if force or fear was used to carry it away. (Ibid., citing People v. Anderson (1966) 64 Cal.2d 633.) Our Supreme Court further held, [M]ere theft becomes robbery if the perpetrator, having gained possession of the property without use of force or fear, resorts to force or fear while carrying away the loot. (People v. Gomez, supra, 43 Cal.4th at p. 257, quoting People v. Cooper (1991) 53 Cal.3d 1158, 1165, fn. 8; see also People v. Estes (1983) 147 Cal.App.3d 23, 27-28; People v. Kent (1981) 125 Cal.App.3d 207, 213; People v. Perhab (1949) 92 Cal.App.2d 430, 434-435.) In People v. Estes, supra, 147 Cal.App.3d at page 26, the defendant was observed entering a Sears store wearing only a T-shirt and jeans. A store security guard saw the defendant take both a vest and a coat and wear them out of the store without paying for them. The security guard confronted the defendant. The security guard asked the defendant to return to the store. The defendant refused and walked away. The security guard then attempted to detain the defendant. The defendant pulled out a knife and swung it at the guard. Finally, the defendant threatened to kill the security guard. Our colleagues in the Court of Appeal for the First Appellate District held, Whether defendant used force to gain original possession of the property or to resist attempts to retake the stolen property, force was applied against the guard in furtherance of the robbery and can properly be used to sustain the conviction. (Id. at p. 28; see also People v. Villa (2007) 157 Cal.App.4th 1429, 1433 [defendants act of pretending to point a gun at the victim thereby causing him to discontinue chasing defendant sufficient to establish fear element of robbery]; Miller v. Superior Court (2004) 115 Cal.App.4th 216, 222-223.)
In this case, defendants combative encounter occurred when Mr. Lopez attempted to regain possession of the property taken from the K-Mart. Defendant pushed Mr. Lopez then struggled with him as he attempted to handcuff her. Defendant bit Mr. Lopez to further her attempt to escape. These acts constitute substantial evidence that defendant used force and fear in an effort to complete the robbery. (People v. Gomez, supra, 43 Cal.4th at pp. 258-259; People v. Anderson, supra, 64 Cal.2d at p. 638; People v. Estes, supra, 147 Cal.App.3d at p. 28.)
Second, defendant argues and the Attorney General concedes that the trial court improperly stayed defendants conviction for petty theft with a prior theft conviction pursuant to section 654, subdivision (a) rather than striking that conviction. We agree.
No doubt, a defendant may receive multiple convictions for offenses arising out of a single act or course of conduct. But those multiple convictions may not consist of necessarily included offenses. Theft is a lesser included offense of robbery. (People v. Ledesma (2006) 39 Cal.4th 641, 715; People v. Ortega (1998) 19 Cal.4th 686, 694.) As a result, defendant may not be convicted of both robbery and petty theft. (See People v. Villa, supra, 157 Cal.App.4th at pp. 1433-1434; People v. Estes, supra, 147 Cal.App.3d at p. 29.) Defendants petty theft conviction must be reversed and, upon remittitur issuance, dismissed.
Finally, we requested additional briefing regarding the fines and the state penalty fund assessment imposed by the trial court. In terms of fines, fees, and assessments, the trial court orally ordered the following be paid: a $200 restitution fine ( 1202.4, subd. (b)(1)); a $200 probation revocation fine ( 1202.44); a $200 fine plus penalty assessments ( 672); a court security fee; and a $10 crime prevention fee. ( 1202.5.) The minute order of the probation and sentencing hearing misstates the trial courts oral pronouncement of judgment. According to the minute order, the following fines or assessments were imposed: a fine of $200; a state penalty fund assessment of $440.00; a $10 criminal fine surcharge (pursuant to 1465.7 P.C.); a $200 restitution fine; and a $200 probation revocation fine. The California Supreme Court has held: [T]he abstract of judgment is not itself the judgment of conviction, and cannot prevail over the courts oral pronouncement of judgment to the extent the two conflict. [Citations.] (People v. Delgado (2008) 43 Cal.4th 1059, 1070; see also 1213, 1213.5, People v. Mitchell (2001) 26 Cal.4th 181, 185; People v. Mesa (1975) 14 Cal.3d 466, 471; People v. Walz (2008) 160 Cal.App.4th 1364, 1367.) California Rules of Court, rule 8.155(c)(1) provides in pertinent part, [O]n its own motion, the reviewing court may order correction . . . of any part of the record. (See also People v. Mitchell, supra, 26 Cal.4th at pp. 185-188; People v. Boyde (1988) 46 Cal.3d 212, 256.) Here, there is no abstract of judgment. Rather, because defendant was not sentenced to prison, only a minute order which purports to summarize the probationary order was prepared. As noted, the clerks minutes misstate the trial courts oral pronouncement. Even if we were not correcting the calculation of fines, it would have been necessary to correct the sentencing minute order.
Nonetheless, the following jurisdictional sentencing errors require correction. First, on the $200 section 672 fine, the following must be added: a section 1464, subdivision (a) $200 penalty assessment; a Government Code section 76000, subdivision (a)(1) $140 penalty assessment; a $40 section 1465.7, subdivision (a) state surcharge; and a $60 Government Code section 70372, subdivision (a)(1) state court construction penalty. Thus, the total amount owed for the $200 section 672 fine is $640. Second, on the $10 section 1202.5, subdivision (a) crime prevention program fine, the following must be added: a $10 section 1464, subdivision (a) penalty assessment; a $7 Government Code section 76000, subdivision (a)(1) penalty assessment; a $2 section 1465.7, subdivision (a) state surcharge; and a $3 Government Code section 70372, subdivision (a)(1) state court construction penalty. Thus, the total amount owed for the $10 section 1202.5, subdivision (a) crime prevention program fine is $32. These fines are in addition to the section 1202.4, subdivision (b)(1) restitution fine and the $200 section 1202.44 probation revocation fine which is stayed. No penalty assessments, state surcharge, or state court construction penalty are imposed on the restitution fines. (Gov. Code, 70372, subd. (a)(3)(A); 1464, subd. (a)(3)(A); 1465.7, subd. (b).) The trial court is to actively and personally insure the clerk accurately prepares a correct minute order which reflects the modifications in the judgment we have ordered. (People v. Acosta (2002) 29 Cal.4th 105, 109, fn. 2; People v. Chan (2005) 128 Cal.App.4th 408, 425-426.)
The judgment is modified so that the petty theft with a prior conviction is reversed. Upon remittitur issuance, the petty theft with a prior conviction charge is ordered dismissed. The fines are modified as set forth in the body of this opinion. The corrected minute order specifying the fines is to be forwarded by the clerk to defendants deputy
probation officer. The order granting probation is affirmed in all other respects.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
TURNER, P. J.
We concur:
ARMSTRONG, J.
KRIEGLER, J.
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