P. v. Flores
Filed 8/31/09 P. v. Flores CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, Plaintiff and Respondent, v. ERNIE FLORES, Defendant and Appellant. | E046407 (Super.Ct.No. RIF137676) OPINION |
APPEAL from the Superior Court of Riverside County. W. Charles Morgan, Judge. Affirmed in part; reversed in part.
Robert Booher, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Jeffrey J. Koch, Deputy Attorney General, for Plaintiff and Respondent.
INTRODUCTION
Ernie Flores (defendant) argues that his conviction for robbery is based on insufficient evidence. We will affirm the robbery convictions (counts 1 & 2) and strike the petty theft with a prior petty theft conviction (count 3).
FACTS AND PROCEDURAL HISTORY
A cashier was working at a convenience store in Riverside on April 3, 2007, when defendant came into the store with the hood of his sweater pulled up over his face. The cashier had the cash register drawer open and was about to hand change to a customer when defendant pushed the customer out of the way, put his hand on the counter, and jumped over it. As he jumped toward the cashier, he was close enough for the cashier to see acne marks on his skin and a tear drop tattoo next to his eye.
While defendant was jumping, the cashier threw the cash register drawer shut and ran toward the office near the back door, yelling urgently for the manager. The cashier was scared because she thought defendant was going to take the money or he was going to do something to [her]. On the computer monitor in her office, the manager saw defendant jump over the counter. She quickly shut the door, leaving the cashier out in the hallway. The cashier waited in the hallway by the office door, still scared, and peeping around the wall to watch defendant grab cigarettes from the wall behind the cash register. During the theft, defendant did not speak to the cashier and did not turn to look at her.
As the manager was closing the office door on the cashier, she was also calling 911. After reaching the 911 operator, the manager opened the office door and handed the phone to the cashier to continue the 911 call. The manager then ran to the front of the store to see which direction defendant was running from the store. When the manager returned to the office, she found the cashier upset and crying. Police arrived about half an hour later. Officers Talley (Talley) and Johnson (Johnson) were among the responding officers. Talley, who interviewed the cashier, found her nervous and shaking, with tears in her eyes.
The manager later made a flyer about the robbery, which included an image of defendant reproduced from the tape of the stores surveillance video, and posted it in the window of the store.
On June 11, 2007, defendant got into an argument with his mother. In the course of the argument, defendant pushed her and told her, I could kill you now. When his mother called the police, Johnson was one of the officers who responded. Defendants mother told Johnson that she had seen her sons photo in a flyer posted in the convenience store and believed he was the robbery suspect.
On July 3, 2007, defendant went into a mini market in Riverside with his head covered by a sweater hood. When the employee there told him she had no money, he grabbed her necklace, yanked it off her neck, and took off running. Johnson was again among the officers who responded to the employees call to the police. Later, Johnson arrested defendant and was present when the stolen necklace was found in his shoe.
An information filed August 3, 2007, charged defendant with two counts of robbery. (Pen. Code, 211, counts 1 & 2.)[1] Count 2 was based on the April 3, 2007, incident at the convenience store. The information also charged defendant with one count of petty theft with a prior ( 484, 666, count 3); and one count of misdemeanor battery ( 242, count 4). As to each robbery, the information alleged that defendant had served a prison term and had not thereafter remained free of custody for a period of five years. ( 667.5, subd. (b).)
On June 25, 2008, a jury found defendant guilty of all charges. On August 7, 2008, the trial court sentenced him to a total of six years in state prison: three years for count 1, plus one year for count 2, plus one year for each prison prior.[2]
DISCUSSION
A. Sufficiency of the Evidence for Robbery
Defendants primary argument on appeal is that there was insufficient evidence that the robbery at the convenience store was committed by means of force or fear and that his conviction on count 2 must therefore be reversed.
Standard of Review
When the sufficiency of the evidence to support a criminal conviction is challenged, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, such that a rational trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Wallace (2008) 44 Cal.4th 1032, 1077.)
Robbery
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. ( 211, italics added.) Items in a store are within the constructive possession and immediate presence of an employee within the meaning of section 211. (People v. Scott (2009) 45 Cal.4th 743, 751-752; People v. Estes (1983) 147 Cal.App.3d 23, 27.) The fear mentioned in Section 211 may be . . . [] [t]he fear of an unlawful injury to the person . . . robbed. ( 212.) The necessary fear is subjective and requires proof that the victim was in fact afraid, and that such fear allowed the crime to be accomplished. [Citation]. (People v. Anderson(2007) 152 Cal.App.4th 919, 946.) That the victim was afraid for her safety may be inferred from the circumstances; the requisite fear does not need to arise from an express threat. (People v. Flynn (2000) 77 Cal.App.4th 766, 771.) [I]t makes no difference whether the fear is generated by the perpetrators specific words or actions designed to frighten, or by the circumstances surrounding the taking itself. (Id. at p. 772.)
Analysis
Defendant argues that because he did not speak to or have physical contact with the cashier during the theft, his taking of the cigarettes from the convenience store did not involve the use of fear and, therefore, was not robbery within the meaning of the statute. Instead, he suggests, it was more like shoplifting. Defendant is wrong. Our review of the entire record reveals ample evidence, both direct and circumstantial, that the theft was accomplished by means of fear.
First, the cashier testified that when defendant pushed the customer aside and vaulted over a barrier directly into her work area as she made change at an open cash register, close enough for her to see acne marks and a teardrop tattoo at the corner of his eye, he scared her. She was afraid he intended to take the money and do something topresumably inflict some kind of unlawful injury uponher. Second, the cashier openly demonstrated her fear by throwing the drawer shut and running (not walking) toward the office and yelling urgently for the manager. When the manager shut the door on her, the frightened cashier stayed in the hallway, peeping around the corner, but not challenging defendants possession of the cigarettes. Finally, both the manager and Talley observed concrete physical signs of fear in the cashier shortly after the robbery. When the manager returned to her office after defendant ran from the store, the cashier was upset and crying. When Talley arrived approximately 30 minutes later, the cashier was nervous, shaking, and tearful. Clearly, and notwithstanding the fact that defendant had said nothing as he took the cigarettes, the cashier was afraid of him and her fear made it possible for him to complete the theft.
B. Multiple Convictions Based on the Same Conduct
Initially, defendants second argument was that the court erred by not staying his sentence on count 3, petty theft with a prior theft conviction, as a lesser included offense of the robbery in count 2. ( 654.) The People responded that it is not the sentence for the conviction that must be stayed; it is the conviction itself that must be reversed. The People are correct. A conviction for the necessarily lesser included offense of petty theft with a prior theft, as happened here, cannot stand if it is based upon the same conduct used to convict the defendant for robbery. (People v. Ortega (1998) 19 Cal.4th 686, 696-697.) When a defendant is convicted of both a greater offense and a necessarily included lesser offense, and the greater offense is affirmed on appeal, the lesser included offense must be stricken. (People v. Medina(2007) 41 Cal.4th 685, 702.) Accordingly, we will remand the matter to enable the trial court to strike defendants conviction for petty theft with a prior (count 3).
DISPOSITION
The matter is remanded to the superior court with directions to strike the petty theft with a prior theft conviction (count 3, 484, 666).
In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
HOLLENHORST
J.
MILLER
J.
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[1] All further statutory references are to the Penal Code unless otherwise indicated.
[2] The court also sentenced defendant to concurrent jail terms of 180 days each, to be served in any penal institution, for counts 3 and 4. As of the date of sentencing, defendant had a total of 461 days of credit for time served.