P. v. Smith

Filed 6/12/08 P. v. Smith CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

Appellant Tracy Conrad Smith challenges the evidentiary sufficiency of his robbery conviction and asserts the trial court should have instructed on the lesser included offenses to that crime. Notwithstanding appellants assertions to the contrary, there was substantial evidence that (1) the robbery victim had constructive possession of the property taken; and (2) under longstanding precedent recently confirmed by our Supreme Court, the property was taken from the immediate presence of the victim. Further, the court did not err in refusing to instruct on lesser included offenses. Accordingly, we affirm the judgment.

I. FACTUAL BACKGROUND

A. The Crimes

Wayne Dull rented property on Hayward Boulevard in Hayward that included a house, a garage and a tool shed. In April 2003, the property was on the market. Dull had been boxing up and organizing his belongings in preparation for the move and had stored antiques, professional tools and other items in the garage and shed. Dull was a working carpenter.

On April 3, 2003, Dull left early in the morning for a job in Walnut Creek. The house and shed were locked. Dulls plan was to go to his brothers house in Oroville after work to store some of the packed items.

Dulls daughter, Lisa Dull (now Viera), lived nearby. When he went away for several days, Dull would ask his daughter to keep an eye on the place because he had been burglarized in that location. She had his permission to check on the condition and security of his property, and Lisas fianc, Richard Viera, was also welcome in this role.

En route to Oroville, Dull received a phone call from his daughter. Lisa had seen a blue Suburban parked in her fathers driveway. The car was still there on her way home, this time parked between the garage and tool shed and facing a different direction. The back doors of the Suburban were open as was the garage door. Lisa told her father what she had seen. He indicated the property was on the market but to check things out if anything looked suspicious. Dull said no one had permission to move his belongings, even if the landlord/owner was showing the property. Lisa stated that Dull asked her and Richard to check it out.

When Lisa and Richard arrived, the Suburban was still there. They walked over to the garage. Appellant was in the garage standing on some furniture looking through books on a shelf. Lisa asked, Uncle Kent, Uncle Kent, is that you[?] because upon first walking up she couldnt really see. Appellant said, This is my grandpas stuff. . . . I can come get it, identifying grandpa as Ken, not Kent. At that point Lisa realized she did not know the intruder.

Lisa said she was going to call the police. She went into the house to use the phone. The house was ransacked and the phone was missing. Lisa went outside hoping to write down appellants license plate number.

Richard remained in front of the garage, watching appellant. Appellant stepped out of the garage toward his car and fumbled with something in the car. Richard said to wait there for the police. When appellant exited the vehicle he seemed more aggressive. His hand was in his jacket, pointing at Richard. Appellant told Richard to get back. Richard thought maybe appellant was pointing a gun so he raised his hands and started backing down the hill, with appellant coming toward him.

Lisa saw Richard and appellant in their respective positions and started screaming hysterically. Appellant tripped and Richard saw a flashlight fall out of appellants jacket. Richard thought appellant was trying to fool him with a flashlight so he grabbed appellant and they struggled down the driveway.

Lisa ran to the street hoping to flag someone down with a cell phone. Someone stopped and called the police. Meanwhile, appellant slipped out of his jacket and ran off. Richard spotted Dulls holstered, loaded handgun about two to three feet from where the flashlight had fallen. He picked it up. Lisa saw a knife of her fathers elsewhere in the driveway where Richard and appellant had fallen while struggling.

The police apprehended appellant in a nearby yard. When Dull returned home that evening he found tools, furniture and assorted possessions in the Suburban that previously had been in the house or tool shed. Dulls firearm had been in the bedroom and a long-bladed ceremonial knife had been displayed in the living room. Inside the Suburban were appellants checkbook, drivers license, credit cards and a bill.

Defense

Jerry Millard testified that on April 3, 2003, appellant was working for him on a construction job, arriving around 6:00 a.m. in the Suburban. Appellant talked with someone in the parking area that morning. Shortly thereafter the Suburban was gone. Appellant left for lunch and upon returning worked the rest of the day. Around 4:30 p.m., Millard gave appellant a ride to a house on Hayward Boulevard. The Suburban was in the driveway. There were a lot of items in it, like somebody was moving. Millard dropped appellant off close to 5:00 p.m.

B. Procedural Background

The jury convicted appellant of burglary of a garage, robbery, and possession of a firearm with a prior felony conviction but rendered an acquittal on the charges of residential burglary and burglary of a tool shed. (Pen. Code,  211, 459, 12021, subd. (a)(1).) Further, appellant was found not to have used a firearm in the commission of the robbery. Allegations of 13 prior convictions were found true. The court sentenced appellant to three concurrent terms of 25 years to life with two consecutive five-year terms stemming from the serious prior felony enhancements.

II. DISCUSSION

A. Sufficiency of the Evidence

Appellant complains that the evidence was insufficient to sustain the robbery conviction because Richard, Lisas fianc, did not have ownership or constructive possession of the property taken and the property was not taken from the immediate presence of a person with the requisite ownership or possession. We disagree.

Under the sufficiency of evidence standard, we review the record in the light most favorable to the judgment to determine whether there is substantial evidence, namely evidence that is reasonable, credible and of solid value. (People v. Snow (2003) 30 Cal.4th 43, 66.) In deference to the trier of fact, we draw all reasonable inferences, and resolve all evidentiary conflicts, in favor of the judgment. (People v. Smith (2005) 37 Cal.4th 733, 739.)

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. (Pen. Code,  211.) Our Supreme Court consistently has ruled that an essential element of the crime of robbery is that property be taken from the possession of the victim. (People v. Nguyen (2000) 24 Cal.4th 756, 762.) However, the requirement that there be a victim of a robbery has been deemed satisfied in a variety of cases by applying the theory of constructive possession to such persons as security guards, watchmen, janitors, store truck drivers and other employees. (Id. at p. 761, and cases cited therein.) Thus, in California, victims of robbery are limited to those persons in actual or constructive possession of the property taken. (Id. at p. 764.)

In Nguyen, the purported victim of the robbery was the husband of an employee who was present when the defendants made an armed entry into a computer business during an office party, taking company property as well as money and identification from some of the employees. The purported victim was a visitor with no actual or constructive possession of the property taken from the company, nor was there evidence that personal property was taken from him. Under these circumstances, the trial court erroneously instructed the jury that the visitor-husband could be a victim of robbery based on the taking of property owned by the business even if he did not own, possess or control the property or have a right to possess or control it. (People v. Nguyen, supra, 24 Cal.4th at pp. 764-765.)

Appellant relies on People v. Galoia (1994) 31 Cal.App.4th 595 and Sykes v.Superior Court (1994) 30 Cal.App.4th 479, to support his position that Richard was not in constructive possession of the property. Neither helps appellant. In Galoia, the defendant left a convenience store without paying for items he took. Mark Steadman, the proprietor of video games located in the store, was collecting money, saw the theft and chased the defendant. The defendant issued threats, and the defendants companion hit Steadman. The reviewing court held that Steadman was a Good Samaritan who did not have a sufficient interest in the property taken to be a robbery victim. He was not an employee or agent of the convenience store, nor was he responsible for the security of the stolen items. No one from the store instructed Steadman to chase the offender. In short, he had no legally recognized interest in or right to control convenience store property. (Peoplev. Galoia, supra, 31 Cal.App.4th at pp. 497-498.)

Similarly, in Sykes the purported victim was a security guard from a neighboring business who attempted to thwart a burglary. The defendant broke into a music store and stole a saxophone. The security guard saw the defendant leave the store and ordered him to stop. Ultimately there was a pursuit and apprehension following a struggle in which the defendant injured the guards hand. Concerning the issue of constructive possession, the reviewing court stated: Constructive possession depends upon a special relationship with the owner of the property, not upon the motives of a person seeking to recover possession from a thief or burglar. The fact that Hensley was employed as a guard for another business did not make him an agent of [the music store]. His relationship to [the music store] was that of a neighbor and good citizen seeking to catch a criminal. (Sykes v. Superior Court, supra, 30 Cal.App.4th at p. 484.)

Unlike Galoia and Sykes, in this case Richard had the requisite special relationship with Dull, the owner of the property. He was enlistedeither directly at Dulls request or upon being deputized by Dulls daughter Lisato investigate and secure Dulls property. Richards sole purpose in being on the premises and standing guard while Lisa called the police was to protect Dulls property. The situation is similar to that in People v. Bekele (1995) 33 Cal.App.4th 1457,^[1]wherein a coworker was deemed to have acted in a representative capacity with respect to the owner of the property taken. The owner of a truck saw it being burglarized and said to his coworker, Lets stop. (Id. at p. 1460.) The coworkers acted in concert to interrupt the burglary and the reviewing court deemed the coworker/victim to have constructive possession of the property through the coworker/owners implied grant of authority to help stop the theft. (Id. at p. 1462.) Likewise, here Richard had constructive possession pursuant to a delegation of authority, either directly from Dull or through Lisa.

Appellant notes that Richard said Dull did not ask him to watch the property. It is true he did not speak to DullLisa did. And Lisa testified that her father asked if Rich and I can go by to check it out. Dull said he asked Lisa to check it out. He also indicated that both Lisa and Richard were welcome to take care of his property. Whether at Lisas direction alone or on instruction from Dull, Richard acted under a grant of authority to investigate and safeguard Dulls property. Therefore, his conduct is distinguished from that of a Good Samaritan.

Appellant also argues that the property was not taken from the immediate presence of Dull or Richard. Not so. First, we reiterate that the analytic focus is Richard, not Dull, because Richard had constructive possession. Second, contrary to appellants contention, the longstanding rule articulated in People v. Estes (1983) 147 Cal.App.3d 23, 27-28that the immediate presence element of robbery can occur when the victim and thief confront each other in a struggle over the stolen property after the perpetrator initially gained possession itis alive and well. Recently our Supreme Court confirmed that the requirement of immediate presence can arise during asportation. (People v. Gomez (2008) 43 Cal.4th 249.)

The Gomez court explained that robbery is a continuing offense elevated from the offense of larceny by two aggravating circumstances: The taking must be accomplished by force or fear, and the property must be taken from the victim or in the victims presence. The element of taking has two aspects as well: caption, or achieving possession of the property, and asportation, or carrying it away. (People v. Gomez, supra, 43 Cal.4th at pp. 254-255.) The person or immediate presence requirement of Penal Code section 211 can arise when the goods are captured as well as when they are asported, because robbery is a continuous offense. If the aggravating factors are in play at any time during the period from caption through asportation, the defendant has engaged in conduct that elevates the crime from simple larceny to robbery. (People v. Gomez, supra, at p. 258.)

B. No Need for Lesser Included Offense Instructions

Appellant is adamant that there was substantial evidence justifying an instruction on theft as a lesser included offense of robbery. He bases his argument solely on the premises that Richard was not a proper victim and there was no taking of property from the immediate presence of a proper victim. We have already rejected these arguments and note that the evidence was not conflicting on these points. Instructions on lesser included offenses are required when the evidence that the defendant is guilty only of the lesser offenses is substantial enough to merit the jurys consideration. (People v. Hughes (2002) 27 Cal.4th 287, 366-367.) This evidentiary threshold has not been met.

III. DISPOSITION

The judgment is affirmed.

_________________________

Reardon, J.

We concur:

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Ruvolo, P.J.

_________________________

Sepulveda, J.

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^[1]Disapproved on other grounds in People v. Rodriguez (1999) 20 Cal.4th 1, 13-14.