P. v. Beason

Filed 6/15/09 P. v. Beason CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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, John M. Thompson, Judge. Affirmed in part; reversed in part with directions.

Marlon Beason appeals from a judgment convicting him of residential robbery, false imprisonment, and receiving stolen property. He contends the evidence is insufficient to support the robbery and false imprisonment convictions. We reject this contention. However, the Attorney General concedes, and we agree, that Beason was improperly convicted of both robbery and receiving stolen property. Accordingly, we affirm the judgment as to the robbery and false imprisonment convictions, and reverse as to the receiving stolen property conviction.

FACTUAL AND PROCEDURAL BACKGROUND

The charges arose from Beason's conduct of stealing several items from the residence of Paul Torraco while Torraco was at home. The jury found Beason guilty of robbery and false imprisonment, but rejected allegations that he used a gun and tied or bound the victim. As we shall discuss below, notwithstanding the jury's rejection of the enhancement allegations, the record supports the robbery and false imprisonment guilty verdicts.

At the time of the offense, Torraco, age 61, lived in a one-bedroom apartment on the second floor of a public housing complex. He is hearing impaired and suffers from various physical ailments, including degenerative disc disease. He has a card permitting him to use marijuana for medical purposes, and he uses marijuana and takes other medications.

Torraco described the incident giving rise to the charged offenses as follows. Around 10:00 a.m. on July 10, 2006, he heard the door bell ring just after he had entered the shower. He put a towel around his waist and answered the door. A young man (Beason) was at the door, carrying a clipboard, a pen, and a box. Torraco had never met or seen Beason before. Beason stated he had a delivery and entered the apartment. Torraco instructed Beason to put the box by a closet. Beason then came up behind Torraco, put a gun to Torraco's head, and stated he wanted Torraco's money and medication. Beason made Torraco lay face down on the floor and taped his wrists and ankles behind him with duct tape. Torraco told Beason there was money and medication in the top drawers of his bedroom dresser. Beason taped Torraco's mouth, and then went into the bedroom and started ransacking the dresser. Torraco was lying on the floor in the kitchen and living room area, and was able to look into the bedroom.

Because Torraco's skin was wet, the tape did not stick well and he was able to start getting loose. When Beason saw this, he pointed the gun at Torraco and retaped him. Beason then returned to the bedroom and continued ransacking. In the bottom drawer of his dresser Torraco had 12 silver bars that were stored in felt bags and a vacuum-sealed package. When Torraco noticed that Beason's back was turned and that he appeared to be concentrating on the silver bars, Torraco again started loosening the tape. Torraco saw that Beason had locked the front door to the apartment and was considering how to escape. Torraco got loose, sprang up, unlocked the door, and ran out of the apartment. Torraco estimated that Beason had been in the bedroom for about four or five minutes. Torraco stated he did not scream for help while he was lying on the floor because Beason had a gun and he could "only expect the worse."

Torraco and several neighbors described what occurred after Torraco escaped from the apartment. The towel had fallen off and Torraco was naked. He was yelling to his neighbors for help and to call 911. He ran to Kimquy Nguyen's apartment. Nguyen testified that Torraco looked very scared; he was screaming for help; and "his whole body was shaking like he was going to die." Another neighbor (Sandra Robinson) also heard Torraco's cries for help and saw him running down the stairs, apparently "terrified." Robinson heard him saying, " 'Help. Help. I've been robbed. Get him. Catch him. I've been robbed.' " Nguyen allowed Torraco to enter her apartment.

After Torraco arrived at Nguyen's apartment, he saw Beason coming down the stairs. Robinson also saw Beason walking briskly by her apartment.[1] Torraco and Robinson noticed that Beason was carrying a white sack or pillow case.[2] Robinson asked Beason, "Hey, what are you doing?" Beason stopped and, in a mocking tone, asked her "what the hell" she was doing, and then continued on.

After Beason left the area, Torraco returned to his apartment. Robinson went to Torraco's apartment and assisted him by relaying information to the 911 operator on the phone. Torraco was moving around his apartment and appeared "very, very, very frightened" and agitated. He gave Robinson a bag of marijuana and asked her to take it to her house because the police were coming.

Meanwhile, Cheryl Phillips encountered Beason outside the complex. Phillips testified she was sitting in her car when Beason put his face up to the closed passenger-side window, repeatedly pulled on the handle of the locked door, and exclaimed that he needed help and needed a ride. Beason was "flushed and sweaty" and it appeared he was in a rush and was trying to get away. In one hand he was carrying a white pillowcase that appeared to be very heavy, and in the other hand he was holding his waistband as if he had a weapon. Frightened, Phillips gestured with her hands to say no, accelerated the vehicle, and drove away. As she was leaving, she saw Beason run off, still holding his waistband with one hand and the pillowcase in the other hand. After arriving at her destination, Phillips called 911 to report what had happened.

When the police spoke with Torraco at his apartment, he appeared very scared, upset, and nervous. The police observed that all the dresser drawers were open and the medicine cabinet in the bathroom was open. Torraco discovered Beason had taken items from his dresser drawers, including the silver bars, medicine, jewelry, and several hundred dollars. The police collected various evidentiary items from Torraco's apartment, including a pen, a clipboard with attached paper, a 14-inch piece of duct tape, and a roll of duct tape. DNA on the pen matched Beason's DNA, and Beason's fingerprints were found on the paper attached to the clipboard. When searching Beason's home, the police found Torraco's 12 silver bars.

Defense Evidence

Testifying on his own behalf, Beason denied that he robbed or falsely imprisoned Torraco. Beason stated that he met Torraco in 2004; Torraco sold cocaine and he (Beason) had made two cocaine deliveries for Torraco; and in 2004 Torraco gave him four silver bars as a gift. After these interactions in 2004, Beason was out of town in a custodial situation until 2006. After returning to San Diego, in June 2006 Beason visited Torraco at his apartment to see if he could do more cocaine deliveries. Torraco did not have any deliveries to be made at that time. Beason asked Torraco if he could pay him $400 that Torraco still owed him for the 2004 deliveries. Torraco told Beason to return the next day and he would try to have some cash for him. The next day Torraco gave him eight more silver bars and some marijuana to settle the debt. While at Torraco's apartment, Beason inquired about buying some cocaine from Torraco so he (Beason) could sell it. The men agreed to a price, and Beason used Torraco's pen (the pen collected by the police) to write his cell phone number on a piece of white paper so they could communicate about the transaction.

About two or three weeks later (in early July), Torraco called Beason and stated he was ready to do business. Beason went to Torraco's apartment, and at this time the incident giving rise to the charged offenses occurred. Beason's version of the events was as follows. Beason brought with him a white, drawstring bag containing cash and a large scale to weigh the drugs. Torraco answered the door wearing a towel; he told Beason to come in and that he was just about to get in the shower. Beason entered the apartment, closing and locking the door behind him. Torraco went into his bedroom, closing the bedroom door behind him.

About five minutes later, Torraco came out of the bedroom, pointed a shotgun at Beason, told him not to move, asked what was in the bag that Beason had brought to the apartment, and told Beason to kick the bag over to him.[3] While Torraco was reaching for the bag and fumbling with the gun and the towel he was wearing, Beason rushed Torraco and snatched the gun. During the tussle, Torraco fell down on his back in the bedroom. Torraco said to Beason, "Sorry, sorry. Don't hurt me. Sorry." Beason threw the gun into the living room area, grabbed his bag, and ran to the door. He heard Torraco fumbling through drawers in the bedroom and he bolted out of the apartment. As Beason was running down the stairs, he heard Torraco yelling. Beason looked back and saw that Torraco was naked at the top of the stairs. When Beason was outside the complex he asked Phillips to help him, and when she drove off he ran to his car and left.

Aaron Schiebel, who had worked for Torraco performing various household chores, corroborated that Torraco knew Beason. Schiebel testified that he had seen Beason at Torraco's residence on several occasions.

Verdict and Sentence

Beason was charged with robbery, burglary, false imprisonment by violence or menace, and receiving stolen property, with allegations that he personally used a gun and tied or bound the victim. The jury found him guilty of robbery, false imprisonment, and receiving stolen property. The jury found him not guilty of burglary, and found the personal gun use and tying or binding allegations not true.[4]

Beason filed a new trial motion challenging the sufficiency of the evidence to support the robbery and false imprisonment convictions. Denying his motion, the trial court assessed that the jury credited and rejected portions of both Torraco's and Beason's testimony, and concluded the jury "got it right." The court stated its views that Torraco had a pre-existing relationship with Beason; the relationship centered around narcotics sales; and Beason went to the apartment to collect a debt. When Beason was at the residence, he discovered Torraco would not pay him the money. Accordingly, Beason "exercised self-help" and took the property by force or fear. Further, he held Torraco at the apartment during the course of the robbery, thereby committing false imprisonment.

The trial court dismissed a strike prior conviction and sentenced Beason to a nine-year term, consisting of four years for robbery and five years for a prior serious felony conviction. Sentences for the false imprisonment and receiving stolen property convictions were stayed.

DISCUSSION

Sufficiency of the Evidence

Beason challenges the sufficiency of the evidence to support the jury's verdicts of robbery and false imprisonment. Noting that the jury found he did not use a gun and did not bind the victim, Beason contends the record does not support findings that he used force or fear to take property or that he restrained the victim's liberty by violence or menace.

In evaluating a challenge to the sufficiency of the evidence, we review 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 the defendant guilty beyond a reasonable doubt. (People v. Zamudio (2008) 43 Cal.4th 327, 357.) We presume in support of the judgment the existence of every fact the jury could reasonably deduce from the evidence. (Ibid.) If the circumstances reasonably justify the jury's findings, reversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding. (Id.at p. 358.) Resolution of evidentiary conflicts and inconsistencies is the exclusive province of the trier of fact. (People v. Young (2005) 34 Cal.4th 1149, 1181.) Likewise, it is the exclusive province of the trier of fact to determine the credibility of a witness, and we defer to the trier of fact's credibility resolutions. (People v. Reed (2000) 78 Cal.App.4th 274, 280.) Unless testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction, and a jury may accept a witness's testimony in whole or in part. (People v. Young, supra, 34 Cal.4th at p. 1181; In re Daniel G. (2004) 120 Cal.App.4th 824, 830.)

Robbery is the taking of property in the possession of another by force or fear. (Pen. Code,[5]  211; People v. Zamudio, supra, 43 Cal.4th at p. 356.) Although the jury rejected the allegations of gun use and binding, the record nevertheless supports the use of force or fear to take property. The jury was entitled to credit portions of Torraco's testimony while rejecting other parts. Torraco testified that Beason pulled a gun and made him lay face down on the floor, bound him with duct tape, and then went into the bedroom and started ransacking the dresser drawers. Crediting a portion of this description, the jury could reasonably conclude that Beason forced Torraco to the floor (albeit without gun use or binding), thereby allowing him to enter Torraco's bedroom and start searching for valuables. This evidence showed the use of force. Further, the jury could reasonably infer that Beason had instilled fear in Torraco that he would be further assaulted if he tried to interfere with the theft. Torraco's neighbors (Nguyen and Robinson) described Torraco's highly frightened demeanor when he ran from the apartment. Likewise, a police officer who observed Torraco at the scene testified that he appeared very scared. The jury could reasonably conclude that if Beason had merely taken the property without using force or fear, there would have been no reason for Torraco to have experienced such a high level of fear. Supportive of this, the jury knew that Torraco was 61 years old and that he suffered from various physical ailments, whereas Beason was a younger man of large stature.[6]

Felony false imprisonment is committed when the victim's freedom of movement is restrained and the restraint is effected by violence, menace, fraud or deceit. (People v. Reed, supra, 78 Cal.App.4th at p. 280; 236, 237, subd. (a).) Violence means physical force to restrain beyond the force reasonably necessary to effect such restraint, and menace means an express or implied threat of harm. (Ibid.) Again, even though the jury concluded gun use and binding was not proven, it could reasonably conclude Beason used violence or menace to keep Torraco in the apartment.[7] As stated, the jury was entitled to credit Torraco's testimony that he was forced to the floor, and to conclude that Beason had frightened Torraco into submission. Torraco described how he escaped the apartment when he noticed that Beason had found the silver bars in the bottom drawer of the dresser and was concentrating on this discovery. From this testimony, the jury could reasonably infer that Beason had made Torraco fear that if he tried to leave he would be further assaulted, and thus he had to wait for the right moment and then effectuate a quick escape in order to avert this threat of harm.

Further, the fact that Torraco ran out of the apartment completely naked and in a state of fright can support an inference that Torraco had not been free to cover himself with his towel and leave but had to take an opportunity to escape regardless of his nudity. The jury could also deduce that if Beason had not restrained Torraco by violence or menace, Torraco would have promptly left the apartment and summoned assistance when Beason first began ransacking the dresser rather than waiting until he found the silver bars in the bottom drawer. Although Torraco may have been restrained for only a short period of time while Beason was looking through the dresser drawers and before Torraco made his escape, the offense of false imprisonment does not require a lengthy restraint. (See People v. Fernandez (1994) 26 Cal.App.4th 710, 718.)

To support his claims of insufficient evidence, Beason suggests that there are no theories of guilt of force, fear, or menace (apart from the rejected gun use and binding theories) that are supported by the evidence and more than mere speculation. The contention is unavailing. On appeal, we draw all factual inferences that the jury could reasonably deduce from the evidence. (People v. Zamudio, supra, 43 Cal.4th at p. 357.) Although inferences must be derived from evidence and not mere speculation, reversal is warranted only if there is no hypothesis whatsoever to support the jury's verdict. (People v. Raley (1992) 2 Cal.4th 870, 891; People v. Zamudio, supra, at p. 357.) The jury was not required to rely on the prosecution's theories, but was free to make its own evaluations and conclusions from the evidence. As set forth above, there are rational theories drawn from the evidence that can support the jury's guilty verdicts. Accordingly, there is no basis for reversal based on insufficiency of the evidence.

Reversal of Receiving Stolen Property Conviction

The Attorney General concedes that Beason was improperly convicted of both robbery and receiving stolen property based on the theft of the same property. This is correct. (People v. Smith (2007) 40 Cal.4th 483, 522;  496, subd. (a).) Accordingly, we reverse the receiving stolen property conviction. (People v. Smith, supra, at p. 522.) Because sentence on the receiving stolen property conviction was stayed, this reversal does not require resentencing.

DISPOSITION

The judgment is reversed as to the receiving stolen property conviction, and in all other respects is affirmed. The trial court is directed to strike the receiving stolen property conviction and to send a copy of a corrected abstract of judgment to the Department of Corrections and Rehabilitation.

HALLER, Acting P. J.

WE CONCUR:

McDONALD, J.

O'ROURKE, J.

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[1] When asked whether she first noticed Torraco running down the stairs, Robinson responded, "It was a combination of both. I saw a flash of [Torraco], and I saw Mr. Beason."

[2] Once Torraco was inside her apartment, Nguyen also saw a man running down the stairs. She testified that she did not get a good look at the man and she did not pay attention to whether he was carrying anything. However, when viewing Beason at trial, she testified the man was not him.

[3] When the police inspected Torraco's apartment after the incident, they saw a shotgun leaning up against a wall in the bedroom; the gun appeared to be "stowed away." Torraco acknowledged that he was the owner of the shotgun.

[4] Beason was also charged with attempted carjacking and attempted unlawful driving or taking of a vehicle based on his interactions with Phillips outside the complex. The jury acquitted him of these charges.

[5] Subsequent statutory references are to the Penal Code.

[6] At trial Beason acknowledged that he was a "pretty big guy," stating he was six feet, four or five inches tall and weighed 290 pounds.

[7] For reasons which are not apparent in the record, the tying or binding allegation was only charged for the robbery count, not for the false imprisonment count. In any event, we will assume for purposes of our analysis that the jury found the prosecution failed to prove that binding occurred during the entire incident within the apartment.