P. v. Shaisi

Filed 10/14/08 P. v. Shaisi CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

Defendant Ali Reza Shaisi[1] was convicted of 15 criminal offenses arising from two distinct instances of alleged shoplifting occurring some four months apart. On appeal he contends among other things that the trial court erred by consolidating the charges arising from the two incidents. He contends that the evidence of the earlier offenses was considerably weaker than that of the later offenses, and was unfairly bolstered by the latter, which would not have been admissible in a separate trial of the former. We reject this and several other contentions, and affirm the judgment of conviction.

Background

The Lunardis Incident

Employees of Lunardis Supermarket testified that on May 3, 2005, they observed a man later identified as defendants father, Jahan Shaisi, pushing around a shopping cart full of large items with a zippered black bag in their midst. This is a technique commonly used by shoplifters to conceal their activities. A store employee notified Henry Carrillo, a head clerk, of the presence of a potential shoplifter. Jahan went through the aisle containing cold medication and quickly left the store.

Carrillo, who was wearing a dark blue Lunardis uniform, yelled for help and chased Jahan out of the store, closely followed by two other employees, also in uniform. The three of them caught Jahan in the parking lot and pulled him to the ground. Defendant, driving a white SUV, backed rapidly up to the affray, striking and spinning around one of the Lunardis employees, and coming within inches of the others.

Defendant got out of the vehicle brandishing what witnesses described as a knife. From a distance of two or three feet, he motioned with the knife at the store employees, shouting at them. Carrillo testified that he was close enough to tell that the object was a sharp knife, not a pen. He described defendant as thrusting it towards the workers while shouting hah hah. Carrillo ordered his fellow employees to back off. They released Jahan and backed away about 10 feet. Defendant and Jahan got into the SUV and drove away.

They left behind the black bag, which was found to contain several boxes of cold and sinus medication. Employees found a corresponding empty gap on the cold medication shelf. Police also found in the bag a court notice bearing Jahans name and address. They obtained warrants and arrested defendant and his father. No knife was found.

Officer John Campos questioned defendant after the incident. Defendant told him that he had stopped to refuel his truck near Lunardis and that while he was doing so his father had gone into Lunardis for a drink. After defendant finished filling the truck, he said, he had driven towards Lunardis, where he saw several men on top of his father beating him. He got out of his SUV and tried to help his father. The men then backed away, and his father got in the SUV and they left. After they left the scene, said defendant, his father told him the men thought he had stolen something.

Asked by Campos about the use of a knife, defendant insisted that he had only held a silver and black pen. Campos also asked defendant if he knew that his father had a history of involvement in theft. Defendant replied that he did.

Officer Campos testified that there is only one gas station located near Lunardis, and it has its own convenience store that sells beverages.

On May 11, 2005, the prosecutor filed a complaint charging defendant with (1) second degree burglary; (2) two counts of petty theft with a prior; (3) three counts of assault with a deadly weapon with enhancements for personal use of a deadly weapon; (4) three counts of felony false imprisonment with personal use enhancements; (5) one count of accessory to burglary and petty theft; and (6) one enhancement for committing a felony while out of custody on bail.

The Food Maxx Incident

On September 5, 2005, security personnel at a Food Maxx store saw defendant, who was wearing a black and white jacket, taking Actifed cold medication off the shelves and placing it in his pockets. Several employees waited in front of the store for defendant to leave. When a loss prevention officer approached defendant to identify himself, defendant fled across the parking lot. Five Food Maxx employees gave chase. According to all five, defendant turned around and pointed a black handgun at them, whereupon they stopped their pursuit. At least one witness thought that defendant seemed to be trying to fire the weapon. One witness thought he heard a clacking noise coming from the gun.

Defendant fled across the street while store employees followed at a distance. He went onto the roof of a building, where he appeared to be trying to load the weapon or get it to work. Police arrived on the scene and saw defendant running on a freeway ramp, where they apprehended him. He had neither his jacket nor any other items reported to have been in his possession. Police searched the area for at least an hour, and for another three hours the next day, but did not find a gun. Nor did they find the missing store merchandise. A store employee checked the shelf for Actifed cold medication and found that it was empty.

After his arrest defendant initially gave a fictitious name to police officers. Questioned by Officer John Marfia, he denied having a gun and said, initially, that he had pointed a cell phone at the store employees. No cell phone had been found on his person. When the officer told him (falsely) that there was a video recording of him displaying a handgun, he said that the object was a lighter shaped like a gun. Although he claimed to have purchased it at a convenience store, he could not give the stores location.

On September 26, 2005, the prosecutor filed a second complaint, charging defendant with four counts of second-degree robbery, each with an enhancement for personal use of a firearm; possession of a firearm by a felon; and stating a false name to a police officer. The complaint was subsequently amended to charge that defendant committed the false identification offense while out on bail on two other cases.

Proceedings

On the first day of trial, the prosecutor filed a written motion to consolidate the two complaints. The court granted the motion that same day, over the defense objection that joint trials would permit the prosecution to bolster a weak case (the Lunardis incident) with a strong one (the Food Maxx incident). A consolidated information, filed the next day, charged defendant with nine counts arising from the Lunardis incident and six arising from the Food Maxx incident: second degree burglary (count 1); petty theft with a prior (count 2); assaults with a deadly weapon on three Lunardis employees (counts 3, 5, 7); three counts of felony false imprisonment involving personal use of a deadly weapon (counts 4, 6, 8); accessory after the fact to burglary and petty theft (count 9); second degree robbery of four Food Maxx employees, with personal use of a firearm (counts 10-13); possession of a firearm by a felon (count 14); and false identification to a peace officer (count 15). The information also included three allegations that defendant was out on bail when he committed both the Lunardis and Food Maxx offenses.

The jury found defendant guilty as charged on all counts. The court sentenced defendant to 15 years 8 months in prison, plus eight months in an unrelated case.[2] Defendant filed this timely appeal.

Discussion

I. Joint Trials

Defendant asserts that the trial court erred in consolidating the complaint arising from the Lunardis incident with that arising from the Food Maxx incident because the joint trial of the two sets of crimes was prejudicial. This contention cannot be sustained.

The first question in the consolidation of multiple criminal charges is whether the statutory conditions for such joinder are present. Penal Code section 954 ( 954) provides that offenses may be jointly charged, or if separately charged may be consolidated, when they are connected together in their commission, or constitute different statements of the same offense or two or more different offenses of the same class of crimes or offenses . . . . The existence or absence of these conditions presents a pure question of law, which we examine independently of the trial courts ruling. (People v. Alvarez (1996) 14 Cal.4th 155, 187-188.) The Supreme Court has recently reaffirmed that because consolidation or joinder of charged offenses ordinarily promotes efficiency, that is the course of action preferred by the law. (Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1220 (Alcala), citing People v. Geier (2007) 41 Cal.4th 555, 578; People v. Stanley (2006) 39 Cal.4th 913, 933; People v. Ochoa (1998) 19 Cal.4th 353, 408-409.)

Here the statutory conditions for joinder are present because the Lunardis and Food Maxx charges included the same class of offenses. ( 954.) The charges arising from the first incident included aggravated assault, while those from the second included robbery. Robbery and assault are both classified as crimes against the person. (Pen. Code, Tit. VIII 211; Pen. Code, Tit. VIII 220.) They are considered offenses of the same class. (People v. Walker (1988) 47 Cal.3d 605, 622; see People v. Musselwhite (1998) 17 Cal.4th 1216, 1243.) Since this case involved assault and robbery counts, the threshold requirement for joinder is satisfied.

The statute has also been construed to permit[] joinder of different offenses not related to the same transaction or event if there is a common element of substantial importance in their commission, for the joinder prevents repetition of evidence and saves time and expense to the state as well as to the defendant. (Alcala, supra, 43 Cal.4th at 1218, citing 4 Witkin & Epstein, Cal.Criminal Law (3d ed. 2000) Pretrial Proceedings, 208, pp. 412-413, quoting People v. Scott (1944) 24 Cal.2d 774, 778.) The term element is something of a misnomer here; it does not mean an element of the offense in a technical sense, but instead refers to a feature or characteristic common to the offenses proposed for joinder. Thus the defendant in Alcala, was charged with five homicides committed over a 19-month period. (Alcala, supra, 43 cal.4th at p. 1219.) The crimes had a number of similarities, and all appeared to be sexually motivated. (Ibid.) The Court reasoned that the intent or motivation to brutally kill young females [tied] all of the crimes together. (Ibid.) [T]he intent or motivation with which different acts are committed can qualify as a common element of substantial importance in their commission and establish that such crimes were connected together in their commission.  (Ibid., quoting People v. Mendoza (2000) 24 Cal.4th 130, 160 (Mendoza), citations omitted [   the element of intent to feloniously obtain property runs like a single thread through the various offenses    and constitutes a     common element of substantial importance     in their commission]; see People v. Kemp (1961) 55 Cal.2d 458, 476 [listing as one of the common elements of substantial importance among crimes occurring two years apart the circumstance that [i]n each crime the obvious motive was satisfaction of appellant's sexual desires]; People v. Poon (1981) 125 Cal.App.3d 55, 69 [[t]he offenses joined here share numerous common elements; the most significant being sexual motivation and young girl victims, and accordingly the offenses were connected together in their commission for purposes of section 954]; People v. Walker (1952) 112 Cal.App.2d 462, 471 [listing as a common element of substantial importance between two crimes the circumstance that in each instance a woman was kidnapped and a common intent is clearly disclosed].)

If the statutory conditions for joinder are present, the trial court may order joint trials, and indeed should do so in the interest of judicial economy, unless the defendant establishes that he would be unduly prejudiced. (Mendoza, supra, 24 Cal.4th at p. 160 [When, as here, the statutory requirements for joinder are met, a defendant must make a clear showing of prejudice to establish that the trial court abused its discretion in denying defendants severance motion].) The courts refusal to require separate trials may be reversed only if it constitutes an abuse of discretion, i.e., falls outside the bounds of reason. (Alcala, supra, 43 Cal.4th at p. 1220.) In considering whether the order can be sustained, a reviewing court typically considers the following questions: (1) would the evidence of the crimes be cross-admissible in separate trials; (2) are some of the charges unusually likely to inflame the jury against the defendant; (3) has a weak case been joined with a strong case or another weak case so that the total evidence on the joined charges may alter the outcome of some or all of the charged offenses; and (4) is any one of the charges a death penalty offense, or does joinder of the charges convert the matter into a capital case. (People v. Marshall (1997) 15 Cal.4th 1, 27-28 (Marshall), citing People v. Sandoval (1992) 4 Cal.4th 155, 172-173.)

We first consider cross-admissibility, i.e., whether evidence of either incident would have been admissible in a separate trial of the other incident. Since defendants claim of prejudice depends on the premise that joinder unfairly bolstered the prosecution case as to the earlier, Lunardis incident, our inquiry is properly focused on whether, in a separate trial of that incident, evidence of the later, Food Maxx incident would have been admissible.

Respondent contends that evidence of the Food Maxx incident, in which defendant himself attempted to steal products containing pseudoephedrine, tended to show that he intentionally aided and abetted his fathers commission of an essentially identical crime in the Lunardis incident. The argument would be stronger if it did not incorporate a factual premise of which the jury never heard, and for which no evidence was admitted. Thus respondent quotes the prosecutors assertion in support of consolidation that  [d]efendant was engaging in the practice of stealing over the counter cold medication to either manufactur[e] methamphetamine or trade for the illegal drug.  The prosecutor sought to present this theory at trial by offering expert testimony on the practice of smurfing or gophering, by which raw materials for the manufacture of methamphetamine are obtained by steal[ing] large quantities of pseudoephedrine . . . . The prosecutor had a police expert available to testify that defendants conduct in these cases was consistent with this practice. But the trial court excluded this evidence on the ground that in light of other factors that need not be detailed here, its probative value was outweighed by its potential for undue prejudice. Later the court briefly revisited the topic, stating that in the absence of some new factor, there is going to be no connection made between pseudoephedrine and methamphetamine in this trial . . . .

Respondents argument for cross-admissibility thus depends on a factual premise that was not only absent, but pointedly excluded from the trial. Even without that evidence, however, it could be reasonably inferred that defendants own theft of a specific pharmaceutical in quantities larger than he might reasonably expect to use tended to show a motive to aid and abet his fathers earlier theft of the same substance. That is, his pocketing of a number of boxes of the drugmore than he might reasonably expect to be able to usesuggested a desire to not merely to acquire, but to accumulate that particular substance. This in turn supported an inference, if a less than compelling one, that he had a similar object in providing transportation for his father on the earlier occasion. Similarly a mans repeated thefts of a particular model of car would tend to support an inference that he intended another such theft when found after hours inside the premises of a dealer of that model. The inference is not simply that he did it before and therefore intended to do it again; such reasoning is a mere euphemism for an inference based on criminal disposition, and as such prohibited by Evidence Code section 1101.[3] Instead the evidence of other thefts of a particular kind of property may support an inference that the defendant seeks to collect or hoard that particular property, and thus tend to negate a claim of innocent intent. This requires no evidence of criminal disposition as such. Indeed, the defendant might have acquired the property lawfully in the past: A Titian collector might be implicated in the theft of a particular work from an owner who refused to sell it. The inference is of course strengthened by evidence of the purpose to which the defendant puts the property, e.g., building a collection, or trading for methamphetamine. But it does not require that evidence if it shows the defendants need or desire for property of a certain type.

In any event we need not finally decide whether the Food Maxx evidence would have been admissible in a separate trial of the Lunardis charges because the trial court properly found that none of the additional indicators of undue prejudice was present. In Mendoza, supra, 24 Cal.4th at page 161, the court wrote that the absence of cross-admissibility does not by itself demonstrate prejudice, i.e., does not preclude joint trials. In other words, even where a joint trial will include evidence that would not be cross-admissible in separate trials of the joined offenses, the court must weigh the benefits of joint trials against the risk of prejudice arising from the jurys exposure to some evidence that is not admissible as to one or the other of the cases. It is in this context that the court must ask whether any of the non-cross-admissible evidence would be unusually likely to inflame the jury against the defendant, or likely to bolster a weak case that has been joined with a strong case or another weak case. (Marshall, supra, 15 Cal.4th at p. 27.)

Here there was nothing inflammatory about either charge. Defendant attempts to suggest otherwise by writing that joining the two cases permitted the prosecution to inflame the senses of the jury by presenting evidence that Shaisi was a habitual criminal. We hardly think evidence of two thefts showed defendant to be a habitual criminal. Nor do we think a history of habitual shoplifting, if made known to the jury, constitutes the kind of unusually inflammatory evidence referred to in Marhsall, supra, 15 Cal.4th at page 27.

Defendant also asserts that the prosecution was permitted to use prejudicial character evidence (from Food Maxx) to establish Shaisi as being the type of person who would commit a petty theft in the Lunardis case. It is true that if evidence of the Food Maxx case would not have been admissible in a separate trial of the Lunardis case, the jury should have been instructed on the limited purposes for which the evidence could be considered. (See CALCRIM Nos. 303, 304; see Evid. Code, 355.) However, the court had no sua sponte duty to give such an instruction (People v. Simms (1970) 10 Cal.App.3d 299, 311), and there is no contention before us that counsel rendered ineffective assistance on this point. Similarly, insofar as the Food Maxx evidence was deemed admissible to show guilt in the Lunardis case under Evidence Code section 1101, subdivision (b), the jury could have been instructed on its proper consideration. (See CALCRIM No. 375.) Again, however, the court had no duty to give such an instruction on its own motion except in the occasional extraordinary case in which unprotested evidence of [other] offenses is a dominant part of the evidence against the accused, and is both highly prejudicial and minimally relevant to any legitimate purpose. (People v. Collie (1981) 30 Cal.3d 43, 64.) For reasons discussed in more detail below, we do not view this as such a case.

A more colorable point is found in defendants argument that the Lunardis case, or part of it, was weaker than the Food Maxx case, so as to be unfairly bolstered by evidence of the later incident. Two of the nine charges arising from the Lunardis incidentburglary and petty theft with a priornecessarily rested on the premise that defendant aided and abetted the initial acts of shoplifting perpetrated by his father. As the jury was told, defendant could only be guilty as an aider and abettor if he knew that the perpetratorhis fatherintended to commit the crime, and if, [b]efore or during the commission of the crime, he intended to aid and abet the perpetrator in committing the crime. (See CALCRIM No. 401.) More specifically, the jury was told that To be guilty of second degree burglary as an aider and abett[o]r, the defendant must have been known [sic] the perpetrators unlawful purpose and must have formed the intent to aid, facilitate, promote, instigate or encourage the commission of the burglary before the perpetrator finally left the structure. (See CALCRIM No. 1702.) Evidence that defendant himself stole similar merchandise three months after his fathers attempted theft might be taken by the juryimproperly, if it was not admissible for that purposeto help carry the prosecutions burden of showing that defendant entertained the requisite knowledge and intent at the time his father entered the store.

Defendant was also charged with three counts of aggravated assault based on his waving a knife at the Lunardis employees. His principal defense to that charge was that he acted in lawful defense of his father. As the jury was told and defense counsel emphasized, the prosecution bore the burden of negating the claimed justification beyond a reasonable doubt. In other words, the prosecution had to persuade the jury beyond a reasonable doubt that defendant did not reasonably believe[] that his father was in imminent danger of suffering great bodily injury or was in imminent danger of being touched unlawfully. (CALCRIM No. 3470, italics added; see People v. Roe (1922) 189 Cal. 548, 564-565; People v. Williams (1977) 75 Cal.App.3d 731, 741-742.) Although the jury was not instructed on the point, defendants father was not being touched unlawfully if he was being detained on probable cause for shoplifting. (Pen. Code,  490.5, subd. (f)(1) [A merchant may detain a person for a reasonable time for the purpose of conducting an investigation in a reasonable manner whenever the merchant has probable cause to believe the person to be detained is attempting to unlawfully take or has unlawfully taken merchandise from the merchant's premises].) Accordingly, defendants posited ignorance of his fathers reasons for entering Lunardis also supported his defense-of-another defense. (See CALCRIM No. 3470.) Again, the defense would be unfairly weakened if the jury improperly relied on evidence of the Food Maxx incident to conclude that defendant did not believe his father was being unlawfully touched by the Lunardis employees, but knew they were attempting to thwart a theft.

We do not believe, however, that the trial court strayed beyond the bounds of reason in failing to find that these risks were sufficient to require separate trials. Joinder is said to be permissible so long as the evidence of each charge is strong enough that consolidation is unlikely to affect the verdict. (People v. Ochoa (2001) 26 Cal.4th 398, 423; People v. Arias (1996) 13 Cal.4th 92, 130, fn. 11.) The trial court could reasonably conclude that the evidence supporting the Lunardis charges was strong enough to make it highly unlikely that the jury would be affected by the Food Maxx evidence. Contrary to defendants contention, there was strong independent evidencealbeit necessarily circumstantialthat defendant drove his father to Lunardis with full knowledge that his father intended to enter the store to commit theft. Officer Campos testified that he asked defendant if he was aware of his fathers past history of being involved in thefts and he said yes, yes, he was aware of that. Although the criminal history to which this testimony alludes was not further described, it was enough for the jury to know that defendant acknowledged that his father had a history of stealing and that he, defendant, knew about it. Added to this knowledge was the implausibility of defendants own account of the incident, which in light of the other evidence was quite capable of raising strongly incriminating inferences by itself. Thus defendant told Officer Campos that his father had gone into Lunardis to get a beverage while defendant pumped gas at a nearby station. But the officer testified that the station itself sold beverages. Why would his father walk the extra distance to buy a drink in the store? That inquiry suggests an even more curious, and perhaps damning, one: The jury could easily infer that defendant could not have failed to notice the black overnight bag his father was carrying into the store. There was no evidence that the bag was or could have been concealed on his fathers person. Given defendants claimed belief that his father had entered the store to buy a drink, what could defendant have supposed the black bag was for? The only answer that presents itself is that his father intended to extend his acknowledged history of being involved in thefts by entering the store to steal merchandise.

Jurors could also reasonably conclude that defendants conduct upon seeing his fathers pursuit and capture by store employees was not that of a man who witnesses a family member under wrongful attack but that of a getaway driver performing his prearranged duties. Promptly after his father left the store, defendant backed rapidly up to the affray, leapt from his vehicle, and held his fathers pursuers at bay just long enough to permit his father to board the vehicle. That the supposed assailants were conspicuously dressed in store uniforms might have caused an innocent man to pause and inquire as to the meaning of their conduct, but defendantdespite the seemingly reassuring advantage of being the only person armed with a weapon, and despite the employees immediate desistance from the supposed attackdid not pause or inquire, but himself jumped back in the vehicle and sped away. Nor did he stop at a place of safety to report the supposed assault.

Other evidence supported an inference that defendant was acting as a getaway driver and not merely a loyal son. As defendants father fled his pursuers, he ran not toward the gas station almost straight in front of Lunardis, but toward a bank around the corner, which required a hard left turn out of the Lunardis exit. The jury did not have to consider it blind luck that thisnot the gas stationwas where defendant was apparently located when Jahan emerged from the store. At least, when first noticed by witnesses he was backing toward his father not from the direction of the gas station, but from between Lunardis and the banka location the jury could conclude allowed defendant to inconspicuously watch the Lunardis exit.

Moreover, there is little likelihood that the jury would have taken seriously defendants claimed perception of an inexplicable assault upon his father. Certainly this is not what a bystander described; she saw a man running towards the vehicle chased by Lunardis employees wearing their blue aprons . . . . The employees were able to put their hands on and grab the running man before he was able to get into the car. At that point defendant got out and yelled at the employees in an angry, threatening voice, while waving and pointing a shiny object at them.

The jury was of course entitled to entertain a reasonable doubt about defendants advance knowledge of his fathers larcenous plans. The question for us, however, is whether there was any significant likelihood of its doing so if given only the above circumstances and not exposed to the evidence of defendants own larcenous sortie at Food Maxx. We conclude that there was not. The circumstances of the Lunardis incident, by themselves, were gravid with the inference that defendant accompanied his father to the scene in order to act as a getaway driver, not to get gas.

Defendant repeatedly observes that there is no evidence of any attempt by him to regain control of the bag containing the stolen merchandise. The unspoken inference, apparently, is that if defendant had been intent on acquiring pseudoephedrine products, and he knew that the bag contained them, he would not so lightly have permitted Lunardis employees to keep the bag. But it seems to us that defendants relative indifference to the fate of the bag, and its contents, supports a contrary inference of at least equal potency. According to the hypothesis arising from his account to Officer Campos, the bag must have appeared to him to belong to his father; for all he knew it contained valuable property also belonging to his father; when his fathers pursuers seized the bag, it must have appeared to defendant that his father was the victim of a robbery. Yet defendant did nothing to recover his fathers property even though he alone was armed and the hypothetical robbers showed no heart for pressing the issue after they saw a knife. All he did was hold them at bay so that he and his father could flee the scene. In this light, defendants very willingness to abandon the bag rather than challenge his fathers pursuers for it suggests that he knew it contained nothing worth staying on the scene for. Nor, apparently, did he ever attempt to secure the intervention of authorities to secure its recovery. Again, the best and simplest explanation for his conduct is that he knew the bag contained freshly stolen merchandise and that it was better to leave it behind than to remain to face criminal prosecution.

In sum, while we agree that the evidence supporting the Lunardis charges was necessarily more circumstantial than that supporting the Food Maxx charges, and thus inevitably more susceptible to a reasonable doubt, we cannot say that the trial court abused its discretion in concluding that the evidence was not so weak that it would be unfairly bolstered by joinder with the Food Maxx charges. With or without joinder, the jury was very likely to conclude that defendant knew his father was entering Lunardis in order to steal merchandise. That fact dispels all claims of undue prejudice.

II. Dual Culpability as Abettor and Accessory

Defendant was convicted, in connection with the Lunardis incident, of both acting as a principal in the burglary and theft perpetrated by his father, and of acting as accessory to those offenses. The trial court imposed an eight-month term for the burglary and stayed sentences on the theft and the accessory charge pursuant to Penal Code section 654. Defendant contends, however, that upon his conviction of either of the predicate offenses, the accessory charge should have been dismissed. He asserts that he could not properly be simultaneously convicted as both a principal and an accessory after the fact. His argument seems to combine three distinct points: (1) the evidence is insufficient to establish his guilt as a principal; (2) he cannot be guilty both as a principal and an accessory; and (3) he could not be convicted as an accessory because there was no evidence that he knew his father had committed a felony. We reject the first contention but sustain the second. We do not reach the third.

We have no doubt that the evidence was sufficient to sustain all of the charges. We have addressed a similar issue in the preceding part, where we concluded that the Lunardis charges did not constitute a weak case so as to be unfairly bolstered by evidence of the Food Maxx incident. The evidence cited there provided ample basis for the jury to find beyond a reasonable doubt that defendant intentionally helped his father to commit burglary and theft. A fortiori, the evidence supports a finding that defendant assisted his father after the offense by freeing him from his pursuers and spiriting him away from the scene to a place of safety.

A more difficult question is presented, however, by defendants contention that he could not be convicted on both of these theories. We find much to recommend a rule that categorically prohibits conviction for acting as both an abettor and an accessory to the same offense. After all, the actual perpetrator of the offense cannot be convicted of a second distinct crime merely for attempting to avoid apprehension and punishment. (In re Eduardo M. (2006) 140 Cal.App.4th 1351, 1360 (Eduardo M.).) Why should one whose guilt depends on assisting another in the commission of an offense be exposed not only to punishment equal to the perpetrators, but to additional punishmentto which the perpetrator is not exposedfor further assistance in evading arrest? A proper penal jurisprudence rests on the careful coordination of pragmatism, proportionality, and fairness. In the present context such a process seems to point toward a categorical rule that with respect to a given predicate offense, a defendant may be liable as an aider and abettor, or as an accessory, but not both.

This is the acknowledged rule at common law and in a number of our sister states. (See Eduardo M., supra, 140 Cal.App.4th at p. 1359, italics in original [cited cases permit the defendant to be charged and tried as both a principal and an accessory . . . , but . . . require that the jury be told that the defendant cannot be convicted of both].) California cases have reached conflicting conclusions, largely in dicta. (Id. at p. 1359, citing People v. Prado (1977) 67 Cal.App.3d 267, 271-274 (Prado) [approving common-law rule]; People v. Francis (1982) 129 Cal.App.3d 241, 246-247, 251-252 [expressing reservations but following Prado; error conceded]; People v. Laskiewicz (1986) 176 Cal.App.3d 1254, 1256 [assuming Prado states correct rule, failure to instruct on it was not reversible error where trial court struck accessory conviction]; People v. Mouton (1993) 15 Cal.App.4th 1313, 1324 (Mouton) [limiting Prado to situations where both convictions rest on same conduct]; People v. Riley (1993) 20 Cal.App.4th 1808, 1816 (Riley) [following Mouton, affirming both convictions].)

The court in Eduardo M., reviewed the above authorities, but avoided the broader question by holding that a defendant who is convicted as a principal cannot also be convicted as an accessory solely on the basis of his immediate flight from the crime scene and his subsequent denials of his own involvement, even if that conduct incidentally helps other principals to escape. (Eduardo M., supra, 147 Cal.App.4th. at p. 1359.) A similar approach was taken in In re Malcolm M. (2007) 147 Cal.App.4th 157, 169 (Malcolm M.), where the court expressed doubt about any categorical rule of exclusivity, but then adopted a narrower rule rendering its broader comments dictum: [I]n order to find someone to be an accessory after the fact to a felony in the commission of which the person is also a principal by virtue of his or her having aided and abetted its commission, the acts constituting that felony must have ceased at the time of the conduct that [constitutes acting as an accessory]. (Id. at p. 171.)

The present case may likewise be decided on a narrow basis without taking a position on the soundness of a more categorical rule. The foregoing cases posit at least three circumstances in which dual convictions are not permissible: (1) where they rest on the same conduct (Riley, supra, 20 Cal.App.4th at p. 1816); (2) where the accessory theory depends on nothing more than the defendants incidentally assisting other participants by his own escape and denials of culpability (Eduardo M., supra, 147 Cal.App.4th at p. 1359); and (3) where the acts constituting the underlying felony have not concluded at the time of the conduct relied on for the accessory charge (Malcolm M., supra, 147 Cal.App.4th at p. 171).[4] Dual convictions here ran afoul of at least the first two of these limitations, because the prosecutor relied on at least some of the same conduct to establish defendants culpability both as a principal and as an accessory, and also relied on defendants merely driving away from the scene to establish the accessory charge. Thus he told the jury that defendants aiding and abetting consisted in first driving to that location and, second . . .[,] trying to pull those store employees off of his dad so his dad could get away . . . . He then asserted that defendant acted as an accessory when he drove [his father] away from the scene, as well as when he got him out of the clutches of [the Lunardis employees] . . . . The jury was thus invited to convict defendant of being an accessory on at least two of the grounds that the cases have held impermissible. It follows that the resulting conviction cannot stand.

III. False Imprisonment

Defendant was convicted on three counts of false imprisonment by violence and menace in violation of Penal Code sections 236 and 237. He asserts that these convictions cannot stand because the evidence was insufficient to sustain them. The real gist of the challenge is that the facts asserted by the prosecutor in support of the chargeand thus inferentially found the jurywere insufficient as a matter of law to constitute the offense. As defendant puts it, The facts argued by the prosecutor do not support a finding [of] false imprisonment. (Italics added)

The prosecutor argued that the false imprisonment occurred when, faced with defendants knife, the three Lunardis employees had to let go of Jahan and . . . back away . . . . This statement echoed the testimony of a bystander that she saw defendant yelling at the employees while motioning at them with a metallic object, and that as defendant approached them, they raised their hands and backed away from a man on the ground. Similarly, Lunardis head clerk Henry Carrillo testified that when he saw defendants knife, he told his employees to back off, whereupon they let the gentleman go and backed off several feet. The distance was estimated in the courtroom as eight to ten feet. Another of the employees also accepted an estimate that they retreated ten or so feet . . . . The question is whether the forced movement thus described was sufficient to sustain a conviction for false imprisonment.

False imprisonment is the unlawful violation of the personal liberty of another. (Pen. Code 236.) It is punishable as a felony when it is effected by violence, menace, fraud, or deceit . . . . (Pen. Code, 237, subd. (a).) The essential element of false imprisonment, be it misdemeanor or felony, is restraint of the person. (People v. Fernandez (1994) 26 Cal.App.4th 710, 717; see People v. Reed (2000) 78 Cal.App.4th 274, 280.) Although the term imprisonment suggests confinement, and the cases often employ that term, it is settled that the crime can occur even though no enclosure is involved.    Any exercise of force, or express or implied threat of force, by which in fact the other person is deprived of his liberty or is compelled to remain where he does not wish to remain, or to go where he does not wish to go, is false imprisonment.   [Citations.] (People v. Fernandez, supra, 26 Cal.App.4th at p. 717, italics added.)

The gist of defendants challenge appears to be that the infringement on movement shown here was simply too slight in spatial terms, as well perhaps as in terms of duration, to constitute the violation of . . . personal liberty required by section 236. With respect to duration, the rule is that the restraint must be   for an appreciable length of time, however short.  [Citation.] (Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, 715.) Defendant forced the victims to back away from his father long enough to permit the latter to escape their lawful control. We believe that constitutes an appreciable time.

The spatial question is more difficult. It seems likely that some forced movements might be so trivial that they ought not to be held sufficient to sustain a conviction for false imprisonment. But it would be a mistake to concentrate exclusively on the physical distances involved. Since the gist of the crime is an infringement on personal liberty, i.e., freedom of movement, the question must be whether the infringement was of sufficient gravity to justify criminal culpability. That question in turn depends on the importance of the interest invaded and the magnitude of the invasion. Pertinent questions logically include not only the extent and duration of the physical displacement, but also the importance of the activity interfered with and the degree to which the victim has been prevented from engaging in it.

We find a useful illustration in People v. Riddle (1987) 189 Cal.App.3d 222 (Riddle), where the defendant ordered a teenagers parents out of their home at gunpoint and kept them out for several hours while he raped their daughter. In absolute terms the parents may not have been forced to move very far, and outside the zone of wrongful exclusion they had the freedom of the world. But this is obviously beside the point. The defendant had not only debarred them from their own home, but by constraining their physical freedom had prevented them from exercising their right, duty, and bred-in-the-bone parental need to defend their child against outrage. We would have no difficulty in concluding, as the court did there, that the restraint was of sufficient gravity to sustain a conviction for false imprisonment.

Although the present case involves no outrage comparable to the one in Riddle, we believe it reflects a sufficient invasion of the victims physical liberty to justify punishment for false imprisonment. Forcing a person to move 10 feet for a few seconds might in another case be too slight an infringement to justify culpability, but here the forced movement was intended to and did directly thwart the victims exercise of their lawful right to investigate an apparent theft of their employers merchandise and prevent the suspect from escaping. (See Pen. Code, 490.5, subd. (f).) When defendant forced them by threats and violence to release their captive and retreat, he imposed sufficient restraint to sustain the charge.

IV. Use of Gun

Defendants sentence included four ten-year firearm enhancements under Penal Code section 12022.53, subdivision (b), which provides for such enhancements where the defendant is found to have personally use[d] a firearm in the commission of a robbery. A firearm is any device, designed to be used as a weapon, from which is expelled through a barrel a projectile by the force of any explosion or other form of combustion. (Pen. Code, 12001, subd. (b).) Defendant contends that the evidence at trial was too insubstantial to permit a rational trier of fact to find beyond a reasonable doubt that the object he displayed in the Food Maxx incident was in fact a gun. Thus appellate counsel writes, [T]he states evidence consisted of five eyewitness who had a very, very brief glimpse of an object that looked like a firearm. This evidence is not the type of substantial evidence required for a reasonable trier of fact to find a defendant guilty beyond a reasonable doubt. [Citation.] Thus the evidence is insufficient to prove beyond a reasonable doubt that the object brandished by Shaisi was a genuine firearm as defined by section 12001(b).

Having carefully reviewed the testimony in question, as well as other evidence bearing on the point, we emphatically reject this contention.

It is of course the prosecutions burden in a criminal case to prove every element of a charged offense beyond a reasonable doubt. (In re Winship (1970) 397 U.S. 358, 364.) This rule extends to sentence enhancements. (People v. Tenner (1993) 6 Cal.4th 559, 566.) But in reviewing the sufficiency of the evidence, the relevant inquiry is whether substantial evidence supports the [conclusion of the trier of fact], not whether the evidence proves guilt beyond a reasonable doubt. [Citations.] (People v. Crittenden (1994) 9 Cal.4th 83, 139.)  [T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.] (People v. Johnson (1980) 26 Cal.3d 557, 576.)

Here five witnesses testified that defendant pointed a black handgun at them. Security officer Michael Davis testified that defendant drew a black gun and pointed it at him. Davis was standing approximately seven feet from defendant at the time. Defendant held the gun in his right hand and waved it at the victims for a split second. The gun appeared to Davis to be a nine-millimeter. Davis is familiar with nine-millimeter handguns because he carried one in the military for 26 years. The gun was magazine fed, not a revolver. On cross examination, Davis conceded that he could not determine whether the gun was real or a replica.

Security officer Mike Cibrian testified that he was three to five feet away when defendant drew a gun from his waistband area. Defendant held the gun in his right hand with his finger on the trigger. Cibrian observed defendant making a jabbing motion with the gun. Cibrian described the gun as a black semiautomatic gun, which looked kind of like a nine millimeter. The gun was not a revolver. It appeared to be six to eight inches long. It had an opening at the tip of the barrel. Cibrian testified on cross-examination that it could have been another type of gun, such as a .45. However, he maintained that the size of the weapon was closest to a nine-millimeter. His familiarity with weapons came from browsing gun magazines at work. He could not identify the manufacturer of the weapon.

Roberto Olivo testified that he was six to eight feet from the defendant when he observed him pull a weapon from his waistband. Defendant held the weapon in his right hand and pointed it at Olivo and the other victims. Defendant was waving the gun back and forth and jerking it. He appeared to be trying to pull the trigger. After he stood there for a minute he turned and resumed running. He crossed the parking lot and an adjacent street and went on top of a building. There he seemed to be trying to shove something up into the handle of the weapon. Based on his experience with weapons, including semiautomatics and weapons that take clips, Olivo thought defendant was attempting to put a magazine into the gun.

Olivo described the gun as a black semiautomatic that looked like a nine millimeter. There was an opening at the front of the gun. There was no plastic covering or coating to suggest that it was an imitation gun. It was not a pellet gun because the opening was too big. He did not know the diameter of an air soft pellet but this was no BB gun. He estimated the barrel diameter at a quarter to half inch. The gun did not have the round chamber in the middle characteristic of a revolver. Although Olivo affirmed at trial that he was absolutely certain it was a nine millimeter weapon, he had told officers at the time of the occurrence that it was a .45. At the preliminary hearing he had testified that he could not recall whether it was a nine millimeter or a semiautomatic, and that he did not know whether a nine-millimeter was a semiautomatic.[5]

Don Diego Garcia testified that he was about 20 feet away when defendant pulled a black gun from his midsection area with his right hand. Defendant appeared to be trying to fire it. Garcia heard a clacking noise as defendant thrust the gun in the direction of the employees. Garcia testified that the weapon was approximately eight inches long. He acknowledged that he was unfamiliar with guns, and did not know the difference between a revolver and a semiautomatic.

Jose Magana saw defendant pull out a gun with his right hand and point it at the employees. Magana recalled the gun as black and eight to nine inches long. He conceded on cross-examination that it might have been a toy, but it looked real to him. He followed defendant at a distance and saw him go up onto a roof. While on the roof, defendant appeared to try to manipulate the weapon by moving his hand along its top.

The foregoing testimony was more than sufficient to establish beyond a reasonable doubt that defendant brandished a firearm at the witnesses. All five witnesses described a weapon that did not vary in its observable detailsa black semiautomatic with an overall length of eight or nine inches. Defendant makes much of supposed discrepancies in the witnesses descriptions, but we see no serious discrepancies. He emphasizes uncertainties surrounding the caliber of the weaponnine-millimeters vs. .45but nothing before the jury suggested that this distinction had any material bearing on the accuracy of the witnesses testimony. Indeed, it is doubtful that anyone but a firearms expert, or at least aficionado, could tell by mere observation whether a given firearm was one caliber or the other unless it happened to be a model with which he or she was personally familiar. The jury was certainly entitled to give weight to counsels attempts in this respect, but it was hardly obligated to do so. It could view them as the equivalent of seeking to impeach a witness to a traffic accident over his inability to specify the tire size of one of the involved vehicles.

In any event, the mere presence of discrepancies between the accounts of eyewitnesses is not enough to impeach a jurys determination. The testimony of a single witness is sufficient to uphold a judgment even if it is contradicted by other evidence, inconsistent or false as to other portions. [Citations.] (In re Frederick G. (1979) 96 Cal.App.3d 353, 366; see People v. Jones (1970) 10 Cal.App.3d 237, 247; Evid. Code,  411.)  To warrant the rejection by a reviewing court of statements given by a witness who has been believed by a trial court, there must exist either a physical impossibility that they are true, or it must be such as to shock the moral sense of the court; it must be inherently improbable and such inherent improbability must plainly appear.  (People v. Jones, supra, 10 Cal.App.3d at p. 247; People v. Perrin (1967) 247 Cal.App.2d 838, 844; People v. Caldwell (1984) 36 Cal.3d 210, 219.)

Defendant alludes to the possibility, which some of the witnesses acknowledged, that the object brandished at them might have been a replica rather than a real firearm within the statutory definition. This possibility was for the jury to evaluate, and given the absence of any supportive evidence the jury was entitled to dismiss it as sheer speculation. Indeed, on the present record the hypothesis was worse than speculative; it could quite reasonably be found incompatible with defendants own conduct and his post-arrest statements. Two witnesses testified that defendant appeared to be trying to fire the gun. Two witnesses also described conduct consistent with attempting to load it or clear a jam. After his arrest defendant initially told police that he brandished not a replica firearm, but a cell phone. When police shook his confidence in that account by telling him they had video evidence of his displaying a handgun, he did not claim to have displayed a replica firearm or air soft gun, as counsel implied at trial, but a cigarette lighter shaped like a handgun. He was unable to identify the store from which this object was purchased or to account for its whereabouts after his escape. The jury might quite reasonably wonder why, if the object used by defendant in the crime was not a real firearm, he did not hang onto it, or at least describe its provenance, so that he could prove he had not possessed a firearm.

The evidence was more than sufficient to dispel any reasonable doubt about the true nature of the object in question.

V. Robbery With Nonviolent Initial Taking

Defendant contends that his conviction of robbery in connection with the Food Maxx incident cannot be sustained because (1) he did not use force in taking the property in question, but only in effecting a getaway; and (2) applying the robbery statute to such conduct, where the taking is a nonviolent petty theft, exposes the statute to constitutional challenge for vagueness. He acknowledges that existing California precedent supports his robbery convictions, but he contends that this precedent must be re-examined in light of these constitutional challenges to the statutory construction of the robbery charges.

 [T]he void for vagueness doctrine dictates that the terms of a penal statute must be explicit enough to inform those who are subject to it what conduct on their part will render them liable to its penalties. A statute which requires individuals of ordinary intelligence to guess at its meaning and differ as to its application violates due process.  (People v. Sullivan (2007) 151 Cal.App.4th 524, 542-543, quoting People v. Prevost (1998) 60 Cal.App.4th 1382, 1394.) The doctrine aims not only at the vice of inadequate notice, but also of excessive delegation to non-legislative actorsprosecutors, judges, and juriesto decide whether conduct is unlawful. (People v. Heitzman (1994) 9 Cal.4th 189, 199, quoting Kolender v. Lawson (1983) 461 U.S. 352, 357 [ [A] penal statute [must] define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement ].)

Obviously, any claim of unconstitutional vagueness must begin with the language of the statute. Penal Code section 211 defines robbery as 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. (Italics added.) We see nothing in the ordinary meaning of these words that would lead a would-be thief to suppose that he is not guilty of robbery if he initially takes the property into his hand without violence, but then uses force to retain it. Such conduct could easily be understood by persons of ordinary intelligence to be encompassed by the words, taking . . . accomplished by . . . force or fear. In ordinary usage it might readily be understood that a taking, though commencing without violence, is not accomplished until the property has been spirited away, such that any violence used prior to that point would make the crime a robbery. Certainly nothing in the language of the statute dictates a contrary result.

To be sure, the word taking is sometimes a term of art in the law, and this apparently led to a rule at common law rule under which the force or fear had to precede or accompany the manucaption, or taking of the property into the defendants hands. (See Thomas v. Alabama (1890) 9 So. 81, 81-82 [91 Ala. 34], and cases there cited.) In these jurisdictions, the use of force or fear only to prevent the owners recovery of the property, or to make good an escape, is not robbery. (Ibid.; see 67 Am.Jur.2d (2003) Robbery, 27, pp. 70-71.) But defendant fails to persuade us that this is a rule of constitutional necessity, or one suggested by the language of this states statute, which speaks not of manucaption, but of a taking . . . accomplished by . . . force or fear. ( 211.)

It may be that defendants argument, which itself we find somewhat vague, hinges on the statutes reference to a taking of personal property . . . from [the victims] person or immediate presence . . . . ( 211.) The operative premise may be that when property is surreptitiously carried out of a store without violence, it cannot be understood in normal terms to have been taken from anyones person or immediate presence, so that in any subsequent use of force, the elements seemingly contemplated by the statute do not coincide. But again, we would expect a layperson to say that if a man leans his bicycle against a signpost while entering a store, and a thief mounts it and begins to pedal away, and the owner emerges from the store to block the thiefs escape, the thiefs pulling out a pistol to overcome the owners resistance constitutes a taking from the latters person or immediate presence accomplished by force or fear. Again, we see nothing in the statute that would suggest otherwise.

In sum, the uncertainties of which defendant complains appear to derive not from the statutory language, but from the divergence between the statute as interpreted in this state and what defendant views, apparently correctly, as the common law and perhaps majority view elsewhere. This argument appears to turn the vagueness argument on its head by relying on a common-law rule not to &