Filed 4/20/17 P. v. Toro CA4/3


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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


THE PEOPLE,

Plaintiff and Respondent,

v.

JENNIFER LYNN TORO and STEVIE THEODORE TORRES,

Defendants and Appellants


G052500

(Super. Ct. No. 15NF1472)

O P I N I O N

Appeal from judgments of the Superior Court of Orange County, Gary S. Paer, Judge. Affirmed.
Sheila Quinlan, under appointment by the Court of Appeal, for Defendant and Appellant Jennifer Lynn Toro.
Jeanine G. Strong, under appointment by the Court of Appeal, for Defendant and Appellant Stevie Theodore Torres.
Kamala D. Harris, Attorney General, Gerald A. Engler , Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Scott C. Taylor and Charles C. Ragland Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendants Jennifer Lynn Toro and Stevie Theodore Torres of what is commonly known as an “Estes robbery,” in which a defendant uses force or fear after the initial taking of the property. (People v. Estes (1983) 147 Cal.App.3d 23 (Estes).) Torres, joined by Toro, contends Estes was “wrongly decided” because it improperly expanded Penal Code section 211 “beyond its common law meaning.” Toro also argues insufficient evidence supports her conviction under the natural and probable consequences doctrine and thus the trial court erred in instructing the jury on that theory. We disagree with defendants’ contentions and affirm the judgments.
STATEMENT OF FACTS
Around 5:00 p.m. one afternoon, Cindy Valadez, a Sears asset protection agent, was watching security cameras in her office as defendants approached the men’s jeans department. She noticed defendants because that area was considered one of high risk and Toro was carrying a large purse. Valadez continued watching defendants as they went to the hardware department.
In the hardware department, Valadez saw Torres pick up a drill battery. Defendants walked under a tent or canopy, where Torres handed the battery to Toro, who put it in her purse. Defendants then went back to the jeans department and split up, with Torres entering the fitting room and Toro walking toward the lingerie department. By this time, Valadez had left her office and was conducting floor surveillance, focusing on Toro.
After defendants met up again and headed for the exit, Valadez sped up her pace to get in front of Toro. Valadez identified herself as “Sears loss prevention” and told Toro she needed the battery back. Although defendants initially stopped, they then began walking again toward Valadez’s right side to try to get away. Valadez moved to try to stop them, but Toro walked around Valadez and brushed or grazed her as she passed.
When Toro got behind Valadez, Valadez took a step back and grabbed Toro’s purse strap. Torres grabbed the strap on the other side of the purse and pulled it toward him about three times. On his last tug, Torres, who was stronger than Valadez, used “a fair amount of force” and turned his body in a way that caused Valadez to believe she would have fallen if she continued pulling. Then defendants ran out to the parking lot and drove away. When Valadez returned to her office, she noticed two cuts on the top of her left hand.
DISCUSSION
1. Estes Doctrine
Torres, joined by Toro, argues Estes is an improper judicial expansion of the common law definition of robbery. But the California Supreme Court has approved Estes and its reasoning several times since 1983. (See e.g. People v. Gomez (2008) 43 Cal.4th 249, 260-265; People v. Cooper (1991) 53 Cal.3d 1158, 1165, fn. 8.) And we are bound to follow the decisions of our Supreme Court (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455).
Defendants argue “it is not clear that the Supreme Court has done more tha[n] cite the Estes holding with approval.” They request that we reexamine the Estes doctrine in light of the common law origins of Penal Code section 211, as our Supreme Court did in People v. Williams (2013) 57 Cal.4th 776. We decline to do so. “As an intermediate appellate court we take the law as we find it and do not reexamine doctrines approved by the Supreme Court with a view to enunciating a new rule of law.” (Fuller v. Standard Stations, Inc. (1967) 250 Cal.App.2d 687, 694.)
2. Natural and Probable Consequences Doctrine
The prosecutor based her case against Toro on the theory the robbery was a natural and probable consequence of the theft. Toro contends there is insufficient evidence to support her robbery conviction on that theory. We disagree.
When faced with an appeal based on a claim of insufficient evidence, we must “review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.) In so doing, we “‘presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’” (Id. at p. 576.)
“Under the natural and probable consequences doctrine, an aider and abettor is guilty of not only the offense he intended to facilitate or encourage, but also of any reasonably foreseeable offense committed by the actual perpetrator. The defendant’s knowledge that an act which is criminal was intended, and his action taken with the intent that the act be encouraged or facilitated, are sufficient to impose liability on him for any reasonably foreseeable offense committed as a consequence by the perpetrator. [Citation.] The elements of aider and abettor liability under this theory are: the defendant acted with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of a predicate or target offense; (3) the defendant by act or advice aided, promoted, encouraged or instigated the commission of the target crime; (4) the defendant’s confederate committed an offense other than the target crime; and (5) the offense committed by the confederate was a natural and probable consequence of the target crime that the defendant aided and abetted.” (People v. Miranda (2011) 192 Cal.App.4th 398, 407-408.)
A direct perpetrator of the target offense, like an aider and abettor, is also liable for the natural and probable consequences of that offense. (People v. Olguin (1994) 31 Cal.App.4th 1355, 1376 (Olguin) [“a perpetrator of an assault and an aider and abettor are equally liable for the natural and foreseeable consequences of their crime”].) As we explained in Olguin: “Both the perpetrator and the aider and abettor are principals, and all principals are liable for the natural and reasonably foreseeable consequences of their crimes. Penal Code section 971 provides that all persons concerned in the commission of a crime, ‘shall hereafter be prosecuted, tried and punished as principals . . . .’ ‘Reasonably construed, this section expresses a legislative intent to abolish the distinctions made at common law as to the various types of participants in the commission of a crime and to make all of them subject to the same procedural and substantive limitations.’ [Citation.]” (Ibid.; accord People v. Culuko (2000) 78 Cal.App.4th 307, 300 [if jury found both the defendants “liable for felony child abuse as perpetrators . . . each of them could be liable, under the natural and probable consequences doctrine, for a murder perpetrated by the other”].)
Here, Toro did not dispute she perpetrated the target crime of theft. As a principal, she is liable for the reasonably foreseeable natural and probable consequences of that crime. Given Valadez’s job as an asset protection agent, it was foreseeable she would interrupt defendants’ theft of the battery by attempting to recover it, including by grabbing the strap of Toro’s purse. It was also foreseeable Torres would try to help Toro get away from Valadez by pulling on the strap on the other side of her purse so that they both could evade arrest or detention. Therefore, the evidence was sufficient for the jury to hold Toro responsible for the robbery under the natural and probable consequences doctrine.
Further, in light of Olguin, supra, 31 Cal.App.4th at page 1376, and Toro’s status as a perpetrator of the theft, the cases cited by Toro regarding a non-perpetrating codefendant’s lack of knowledge of the perpetrator’s intent (People v. Prettyman (1996) 14 Cal.4th 248, 267, People v. Butts (1965) 236 Cal.App.2d 817, 836-837) and absence of a “‘close connection’” between the target and nontarget crimes by the perpetrator (People v. Leon (2008) 161 Cal.App.4th 149, 161) are inapposite.



3. Jury Instruction on Natural and Probable Consequences
Toro contends the court erred by instructing the jury on the natural and probable consequences doctrine because the evidence did not warrant it. Having concluded otherwise, we reject her jury instruction claim too .
DISPOSITION
The judgments are affirmed.




THOMPSON, J.

WE CONCUR:



BEDSWORTH, ACTING P. J.



IKOLA, J.