P. v. Royal
Filed 7/18/13 P. v. Royal CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL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opinion has not been certified for publication or ordered published for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
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE,
Plaintiff and Respondent,
v.
ROBERT HAIG ROYAL,
Defendant and Appellant.
2d Crim. No. B241841
(Super. Ct. No. 1366248)
(Santa Barbara County)
Robert
Haig Royal appeals from the judgment entered after a jury convicted him of
degree robbery. (Pen. Code,
§§ 211, 212.5.)
name="_ftnref1" title="">[1] Appellant admitted one prior serious felony
conviction (§ 667, subd. (a)(1)) and one prior serious or violent felony
conviction within the meaning of California's "Three Strikes"
law. (§§ 667, subds. (b)-(i), 1170.12,
subds. (a)-(d).) The trial court
sentenced him to prison for 11 years.
Appellant
contends that (1) the evidence is insufficient to establish the "force or
fear" element of robbery, (2) the trial court gave an erroneous special
instruction on the meaning of the "fear" element, and (3) the trial
court erroneously denied his section 1538.5
police after they had stopped his vehicle.
We affirm.
Facts
Appellant
entered a bank and handed a note to a teller.
The
note read, " 'This is a robbery. Give me all the money that you have in the
drawer and no bait.' " After the
teller read the note, appellant declared, "This is a robbery," and he
demanded all of the money in the drawer.
Appellant did not display a weapon, but he kept one hand inside a
pocket. The teller feared for his own
safety and the safety of his co-workers.
He handed over $9,368.75, after which appellant left the bank.
A
video of the bank robbery was shown on the local television news. An anonymous citizen told the Federal Bureau
of Investigation (FBI) that the bank robber looked like appellant. Michael Claytor, a police detective, checked
appellant's criminal record and found that he was on parole. Claytor obtained a photograph of appellant
and confirmed that he looked like the bank robber. Appellant's parole agent agreed.
Detective
Claytor conducted a parole search of appellant's residence and recovered
"an empty gun holster and a loaded .32 magazine for a firearm." The parole agent authorized appellant's
arrest.
FBI
agents located appellant's unoccupied vehicle in a parking lot. The agents maintained surveillance until 3:00 a.m., when they attached a
Global-Positioning-System (GPS) tracking device to the vehicle.
At
approximately 9:35 a.m., the GPS tracking device indicated that the vehicle
was moving. Police officers stopped the
vehicle and arrested appellant. On the
way to the station, appellant said that "he would admit
everything." During a search of his
vehicle, the police recovered about $7,400 in cash.
Sufficiency of the Evidence
Appellant
contends that the People "failed to present sufficient evidence that the
taking of property . . . was accomplished by force or fear." We "review the
whole record in the light most favorable to the judgment to determine whether
it discloses substantial evidence - that is, evidence that is reasonable,
credible, and of solid value - such that a reasonable trier of fact could find
the defendant guilty beyond a reasonable doubt.
[Citation.]" (
Cal.4th 1, 11.)
" ' "The element of fear
for purposes of robbery is satisfied when there is sufficient fear to cause the
victim to comply with the unlawful demand for [the victim's] property."
' [Citation.] 'The extent of the victim's fear "do[es]
not need to be extreme . . . ." '
[Citation.] '[T]he fear necessary
for robbery is subjective in nature, requiring proof "that the victim was
in fact afraid, and that such fear allowed the crime to be accomplished."
' [Citation.] . . . ' " 'Where
intimidation is relied upon, it [can] be established by proof of conduct,
words, or circumstances reasonably calculated to produce fear.' " ' [Citations.]" (People
v. Bordelon (2008) 162 Cal.App.4th 1311, 1319.)
the defendant was convicted of bank robbery.
The defendant walked up to a teller, pushed aside the customer she was
helping, and put a plastic bag on the counter.
The defendant said: " 'This is a robbery. Put your money in the plastic bag.'
" (Id., at
p. 1316.) The teller complied after
the defendant had twice repeated this demand.
On appeal the defendant contended that the trial court had erroneously
refused his request to instruct the jury on the lesser included offense of
grand theft.
The appellate court concluded
"that the evidence for grand theft was too 'minimal or insubstantial' to
warrant an instruction on that lesser offense." (People
v. Bordelon, supra, 162
Cal.App.4th at p. 1320.)
was no evidence that defendant used a weapon, assaulted [the teller], or verbally
threatened her, '[s]uch factors . . . are not requisites for a finding of
robbery.' [Citation.] Defendant's words and conduct—his pushing a
customer aside, his escalating demands for the money—were reasonably calculated
to intimidate Yadao, and her testimony established that she was in fact
'shocked' and 'traumatized' by his actions.
The element of fear was proven here, and no instruction on mere theft
was warranted. [Citation.]" (
Unlike the defendant in
customer aside or make "escalating demands for the money." (People
v. Bordelon, supra, 162
Cal.App.4th at p. 1320.) But like the
defendant in Bordelon, appellant's
conduct was reasonably calculated to intimidate the teller, and it did
intimidate him. Appellant's statement,
"This is a robbery," was an implied threat to use force if the teller
did not comply with his demand to hand over the money. The teller testified that he feared for his
own safety and the safety of his co-workers.
The evidence, therefore, is sufficient to support appellant's robbery
conviction.
The trial court gave CALCRIM No. 1600
on robbery. The instruction provided
that the taking of property must be accomplished by the defendant's use of
"force or fear." The term
"fear" included "fear of injury to the person himself or herself
or injury to the person's family or immediate injury to someone else present
during the incident."
Appellant contends that, over his
objection, the trial court erroneously gave the following special instruction
on fear: "In order to commit robbery, one does not have to commit an act
intending to cause fear. The fear
necessary for robbery is subjective in nature, requiring proof that the victim
was in fact afraid, and that such fear allowed the crime to be
accomplished. Where intimidation is
relied upon, it can be established by proof of conduct, words, or circumstances
reasonably calculated to produce fear.
Intimidation and fear are synonymous."
During its
deliberations, the jury asked the court in writing: "Is the definition of
fear (instructions) different from the 'use' of fear in Robbery
requirements? [¶] Are they 2 different issues? - existence of
fear . . . and use of fear[?]"
The court responded in writing: "The special instruction entitled
'fear' is intended to provide the jury a fuller, more complete definition of
the element of 'fear' contained in the instruction for robbery ([CALCRIM] No[.]
1600)[.] [¶] The People have
the burden of proving beyond a reasonable doubt that the defendant used 'force'
or 'fear' as defined by instruction No.
1600 and the special instruction for 'fear'."
In his
opening brief, appellant argues that the court's special instruction
"clearly confused the jury" and caused a miscarriage of justice. Appellant continues: "The court's
[special] instruction caused the jury to doubt its common sense understanding
of the word 'fear' and to question whether there were actually two types of
fear: 1) fear as used in the standard instruction, and 2) 'the use of fear[.]'
"
Appellant corrects himself in his
reply brief: "Appellant's Opening Brief mistakenly states that the
instruction created confusion between 'fear as used in the standard
instruction, and 'the use of fear.' . . . The reverse is true. The phrase 'use of fear' appears in Cal.Crim
No. 1600." In his reply brief
appellant argues that the special instruction created confusion because, unlike
CALCRIM No. 1600, it said that to commit a robbery "one does not have to
commit an act intending to cause fear."
Appellant asserts, "The dual instructions forced the jury to sort
out how a defendant would use force or fear, as stated in Cal.Crim No. 1600,
and not do so intentionally."
Although the trial court's special
instruction may have confused the jury on the meaning of "fear,"
appellant has not shown that the instruction was an erroneous statement of the
law. Appellant cites no authority
holding that the intended use of
force or fear is an element of robbery, and we have been unable to find such
authority. Nor has he shown that the
trial court's response to the jury's question failed to clarify its
confusion.
Appellant
asserts that "the [special] instruction lessened the prosecution's
burden," but he does not explain how the instruction had this effect. " 'A judgment or order of the lower
court is presumed correct,' "
and " 'error must be affirmatively shown.' " (Denham
v. Superior Court (1970) 2 Cal.3d 557, 564.) "To demonstrate error, appellant must
present meaningful legal analysis supported by citations to authority . . .
. [Citations.]" (In re
S.C. (2006) 138 Cal.App.4th 396, 408.)
"Hence, conclusory claims of error [such as appellant's] will
fail." (Ibid.)
Even if the
special instruction were erroneous, it would not require reversal. "Reversal is required only if 'the
court, "after an examination of the entire cause, including the
evidence," is of the "opinion" that it is reasonably probable
that a result more favorable to [defendant] would have been reached in the
absence of the error.'
[Citations.]"
more favorable to appellant would have been reached if the trial court had not
given the special instruction. As
discussed in the preceding part of this opinion, there is ample substantial
evidence to support the "fear" element of robbery. Even if, as appellant contends, the special
instruction "implicated [his] federal constitutional right to be tried by
an impartial jury," any error was harmless beyond a reasonable doubt. (Chapman
v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705].)
Appellant
maintains that the trial court erroneously denied his section 1538.5 motion to
suppress evidence seized by the police after they had stopped his vehicle. Appellant asserts that the stop occurred as
the result of signals transmitted by the GPS tracking device that FBI agents
had attached to his vehicle. He contends
that the attachment of this device "subjected [him] to an unannounced,
unnoticed and therefore unreasonable search" in violation of the
After appellant's arrest, the Supreme
Court decided United States v. Jones (2012) ___ U.S. ____ [181 L.Ed.2d
911, 132 S.Ct. 945,]. There, the court
held that the attachment of a GPS "tracking device to an individual's
vehicle, and subsequent use of that device to monitor the vehicle's movements
on public streets, constitutes a search or seizure within the meaning of the
Fourth Amendment." (
132 S.Ct. at pp. 947, 949.)
In denying
the motion to suppress, the trial court determined that Jones was of no assistance to appellant because he was on
parole. The court stated: "I do
find that at the time of the placement of the tracking device on [appellant's]
vehicle, he had no reasonable expectation of privacy. There had been a properly issued parole
warrant for his arrest and search authorization given to law enforcement by
state parole agents."
" '[W]e defer to the trial
court's factual findings, upholding them if they are supported by substantial
evidence, but we then independently review the court's determination that the
search did not violate the Fourth Amendment.' [Citation.]" (People
v. Panah (2005) 35 Cal.4th 395, 465.)
"[W]e view the record in the light most favorable to the trial
court's ruling . . . ." (
969.)
"Under California statutory law,
every inmate eligible for release on parole 'is subject to search or seizure by
a . . . parole officer or
other peace officer at any time of the day or night, with or without a search
warrant or with or without cause.'
(Pen.Code, § 3067, subd. (b)(3).)
Upon release, the parolee is notified that '[y]ou and your residence and
any property under your control may be searched without a warrant at any time
by any agent of the Department of Corrections [and Rehabilitation] or any law
enforcement officer.'
[Citations.]" (
909, 916.) "[S]uch searches are
reasonable, so long as the parolee's status is known to the officer and the
search is not arbitrary, capricious, or harassing. [Citations.]" (
The
attachment of the GPS tracking device to appellant's vehicle was a reasonable
parole search. The FBI agents who
attached it knew that appellant was on parole.
Since the agents had probable cause to believe that appellant had robbed
a bank, their conduct was not arbitrary, capricious, or harassing.
But appellant argues that the FBI
agents' conduct was unlawful because they were not peace officers and only
peace officers may conduct parole searches.
(See §§ 3067, subd. (b)(3), 830.8.)
Appellant has forfeited this issue because he failed to raise it
below. "To allow a reopening of the
question on the basis of new legal theories to support or contest the
admissibility of the evidence would defeat the purpose of Penal Code section
1538.5 and discourage parties from presenting all arguments relative to the
question when the issue of the admissibility of evidence is initially
raised. [Citations.]" (Lorenzana
v. Superior Court (1973) 9 Cal.3d 626, 640, fn. omitted.) This rule applies even when the facts are
undisputed and the issue presents a pure question of law: "[T]he Lorenzana
rule is designed to promote resolution at the trial level not only of issues of
fact but also issues of law." (
270, fn. omitted.)
In any event, appellant's argument
lacks merit because Detective Claytor, who was a peace officer, was acting in
concert with the FBI agents and authorized the attachment of the GPS tracking
device. Detective Claytor testified that
FBI Agent Conley "was with [him] throughout the entire investigation." FBI agents in the field "maintained
surveillance on [appellant's] vehicle while Agent Conley and [Claytor] decided
about what [they] were going to do next."
Claytor and Conley discussed whether to attach the GPS tracking device
to appellant's vehicle. According to
Claytor: "The tracker was set up so
that it would notify Agent Conley once the car moved, and at that point, we
could contact local law enforcement to come into the area to see if it was, in
fact, [appellant] driving and to effect the arrest itself."
Even if the attachment of the GPS
tracking device were unlawful under Jones,
we would still uphold the denial of the section 1538.5 motion. When the FBI agents attached the device to
appellant's vehicle, binding California appellate precedent permitted the
attachment. (People v. Zichwic (2001) 94 Cal.App.4th 944, 953
["installing an electronic tracking device on the undercarriage of
defendant's truck did not amount to a search within the meaning of the Fourth
Amendment"].) In Davis v. United
States (2011) ___ U.S. ____ [180 L.Ed.2d 285, 131 S.Ct. 2419, 2429], the
Supreme Court held that "[e]vidence obtained during a search conducted in
exclusionary rule."
Moreover, the police inevitably would
have arrested appellant and seized the challenged evidence. "The inevitable discovery doctrine
operates as an exception to the exclusionary rule: Seized evidence is
admissible in instances in which it would have been discovered by the police through
lawful means. . . . 'The purpose of the inevitable
rule is to prevent the setting aside of convictions that would have been
obtained without police misconduct.'
(People v. Superior Court
(2006) 143 Cal.App.4th 1183, 1214-1215.)
"The doctrine does not require certainty. [Citation.]
Rather, the People must show a 'reasonable probability that [the
challenged evidence] would have been procured in any event by lawful
means.' [Citation.]" (
We may resolve inevitable discovery
issues on appeal, "even if not explicitly litigated below, if their
factual bases are fully set forth in the record. [Citations.]
We conclude that such is the case here." (People
v. Boyer (2006) 38 Cal.4th 412, 449.)
If the FBI agents had not attached the GPS tracking device to
appellant's vehicle, it is reasonably probable that they would have maintained
surveillance on the vehicle until appellant drove away that morning, at which
time they would have directed the police to stop and arrest him. The GPS tracking device was a substitute for
continuing the surveillance. Detective
Claytor made clear that it was not an option to leave the vehicle without
surveillance or the GPS tracking device, since appellant could have driven it
away at any time.
The
judgment is affirmed.
NOT
TO BE PUBLISHED.
YEGAN,
J.
We concur:
GILBERT,
P.J.
PERREN,
J.
Frank J. Ochoa, Judge
Superior Court County of Santa Barbara
______________________________
Laurie
A. Thrower , under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Scott A. Taryle,
Supervising Deputy Attorney General, Tannaz Kouhpainezhad, Deputy Attorney
General, for Plaintiff and Respondent.
name="_ftn1" title="">[1] All statutory references are to the Penal Code.
