Opinion
E065837
05-17-2017
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL DEWAYNE BAKER, JR., Defendant and Appellant.
Ashley N. Johndro, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Alan L. Amann, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FVI1502845) OPINION APPEAL from the Superior Court of San Bernardino County. Victor R. Stull, Judge. Affirmed. Ashley N. Johndro, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Alan L. Amann, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant and appellant Michael Dewayne Baker, Jr., of second degree robbery. (Pen. Code, § 211.) A trial court subsequently found true the allegation that he had a prior burglary conviction, for which he served a prison term. (§ 667.5, subd. (b).) It also found true the allegations that the burglary conviction was a serious felony (§ 667, subd. (a)(1)) and a prior strike conviction (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)). The court denied defendant's Romero motion to dismiss the prior strike conviction. It then sentenced him to a total term of nine years in state prison, consisting of two years on the robbery conviction, doubled pursuant to the strike, plus five years for the prior serious felony enhancement. (§ 667, subd. (a)(1).) The court stayed the prior prison enhancement (§ 667.5, subd. (b)) due to the imposition of the prior serious felony enhancement.
All further statutory references will be to the Penal Code, unless otherwise noted.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497. --------
On appeal, defendant concedes that he was properly convicted of second degree robbery under the Estes rule (People v. Estes (1983) 147 Cal.App.3d 23 (Estes)), which was approved in People v. Gomez (2008) 43 Cal.4th 249 (Gomez), and that this court is bound to affirm his conviction. Nonetheless, he asks this court to "opine that Estes was wrongly decided," and thereby "signal" to the Supreme Court that review of Estes is necessary. Defendant also contends that the trial court erred in staying, rather than striking, the prior prison enhancement. We affirm.
FACTUAL BACKGROUND
On November 19, 2015, an asset protection detective (the detective) at a department store was alerted to defendant and another male possibly shoplifting in the store. She monitored them using the store's closed circuit camera system. Defendant selected four clothing items, and his cohort selected six items. They went into adjacent fitting room stalls. The detective contacted a loss prevention manager (the manager) to monitor them in the fitting room. He entered the fitting room area and heard popping sounds coming from the stalls. He testified at trial that when someone manually removes the security tag sensors from clothing, it makes a loud popping sound. The manager observed defendant's cohort leave the fitting room, holding nothing. The manager went into the stall he had just occupied and found four clothing items and two broken sensors on the floor. At that point, the manager heard popping sounds coming from the stall occupied by defendant. Defendant then left the stall holding two items of clothing. The manager found two broken sensors in defendant's stall. The detective who was monitoring defendant on the security camera observed him approach a cash register with the two items. He then walked away from the register without paying for the items and headed toward the mall entrance. At trial, the detective testified that it was a common tactic for people suspected of shoplifting to pretend to pay for items to give the appearance that they purchased them. The detective contacted another asset protection detective to have her stop defendant. The second detective went to the mall entrance where defendant was heading, and exited the mall. Defendant exited behind her, and then she approached him. She identified herself as an asset protection detective and asked him to return to the store with her. Defendant cursed at her and pushed her. When she tried to gain control of him, he pushed her again and then fled. Defendant ran to the parking lot, got into a car where his cohort was waiting, and drove off.
ANALYSIS
I. Defendant Was Properly Convicted of Robbery Under the Estes Rule
Defendant concedes that he was properly convicted of second degree burglary under the Estes rule, which was approved by the Supreme Court in Gomez, supra, 43 Cal.4th 249. He further acknowledges that we are bound by the doctrine of stare decisis to follow Gomez. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 (Auto Equity Sales).) Nonetheless, he proceeds to argue that we should opine that Estes was wrongly decided and conclude that the "force or fear" element was not met, since his use of force was not contemporaneous with the taking of the property. He then claims his robbery conviction should be reduced to petty theft, and this case should be remanded for resentencing. It is unclear exactly what defendant is requesting, since he first concedes he was properly convicted, but then argues his conviction should be reduced. In any event, we conclude that he was properly convicted under the Estes rule.
"Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (§ 211.) As explained by the Supreme Court in Gomez, "[s]ection 211, enacted in 1872, incorporates common law robbery requirements. [Citation.] Under the common law, the crime of robbery consists of larceny plus two aggravating circumstances: (1) the property is taken from the person or presence of another; and (2) the taking is accomplished by the use of force or by putting the victim in fear of injury. [Citations.]" (Gomez, supra, 43 Cal.4th at p. 254, fn 2.) In other words, theft by larceny may be committed without force or the threat of violence and may be completed without the victim ever being present. (See § 484, subd. (a).) "To elevate larceny to robbery, the taking must be accomplished by force or fear and the property must be taken from the victim or in his presence." (Gomez, at p. 254, fn. omitted.)
The taking element of robbery has two elements; (1) gaining possession of the victim's property and (2) asporting or carrying away the property. (People v. Cooper (1991) 53 Cal.3d 1158, 1165 (Cooper).) The asportation of the property continues, and the crime of robbery continues, "as long as the loot is being carried away to a place of temporary safety." (Ibid.; see People v. Navarette (2003) 30 Cal.4th 458, 502.) Thus, a "mere theft becomes robbery if the perpetrator, having gained possession of the property without use of force or fear, resorts to force or fear while carrying away the loot." (Cooper, at p. 1165, fn. 8; see Estes, supra, 147 Cal.App.3d at pp. 27-28.) Such a robbery is sometimes referred to as an "Estes robbery." (See, e.g., Miller v. Superior Court (2004) 115 Cal.App.4th 216, 226 (dis. opn. of McDonald, J.).)
In Estes, supra, 147 Cal.App.3d 23, the defendant stole clothing from a store and a security guard confronted him in the parking lot. The defendant refused to return to the store and started walking away. When the security guard tried to detain him, the defendant pulled out a knife, swung it at the guard, and threatened to kill him. (Id. at p. 26.) On appeal, the defendant argued that he could not be guilty of robbery because the assault was not contemporaneous with the taking of the clothing from the store. The Court of Appeal disagreed, stating: "The crime of robbery is a continuing offense that begins from the time of the original taking until the robber reaches a place of relative safety. It is sufficient to support the conviction that appellant used force to prevent the guard from retaking the property and to facilitate his escape." (Id. at p. 28.)
In Gomez, supra, 43 Cal.4th 249, the defendant stole money from a restaurant and, while carrying it away, shot at the restaurant manager who had followed him outside. (Id. at p. 253.) The defendant argued that the evidence was insufficient to support his robbery conviction because the victim was not present when he initially took the money. (Id. at p. 254.) Consistent with Estes, the Supreme Court held that "the crime of robbery occurs when property is forcefully retained in the victim's presence, even when the victim was not present at its initial caption." (Gomez, supra, 43 Cal.4th at p. 264.) The Court specifically stated that there was no expansion of the definition of robbery involved in its decision, noting that, "California has described robbery as a continuing offense for decades." (Id. at p. 261.) It explained that, "[u]nder the language of section 211, the phrases 'person or immediate presence' and 'force or fear' both refer[red] to the 'taking' of personal property." (Ibid.) The court confirmed "[t]he force or fear element of robbery can be satisfied during either the caption or the asportation phase of the taking." (Ibid.)
Since Gomez, the Supreme Court has reaffirmed that "[a] defendant who does not use force or fear in the initial taking of the property may nonetheless be guilty of robbery if he uses force or fear to retain it or carry it away in the victim's presence." (People v. McKinnon (2011) 52 Cal.4th 610, 686; see People v. Williams (2013) 57 Cal.4th 776, 787 ["Because larceny is a continuing offense, a defendant who uses force or fear in an attempt to escape with property taken by larceny has committed robbery."].)
In the instant case, defendant claims that because the prosecution failed to prove that he used "force or fear" at the time he took the clothing, his conviction should be reduced to petty theft. However, as the Supreme Court held in Gomez, "[t]he force or fear element of robbery can be satisfied during . . . the asportation phase of the taking." (Gomez, supra, 43 Cal.4th at p. 261.) The evidence showed that defendant used force to retain the stolen clothing. When the asset protection detective confronted him and asked him to return to the store with her, he cursed at her and pushed her. When she tried to gain control of him, he pushed her again and fled with the stolen merchandise. Thus, defendant's claim is meritless under Estes, supra, 147 Cal.App.3d at page 28 and Gomez, supra, 43 Cal.4th at page 261.
Moreover, as defendant concedes, this court is required to follow the Supreme Court's holding in Gomez, supra, 43 Cal.4th 249. (Auto Equity Sales, supra, 57 Cal.2d at p. 455.) Therefore, we deny defendant's request to "express disagreement" with the Estes rule, or to reduce his robbery conviction to petty theft.
II. The Court Properly Stayed the Prior Prison Enhancement
The court sentenced defendant to a five-year enhancement pursuant to section 667, subdivision (a)(1), with regard to his prior burglary conviction. The court stayed the prior prison enhancement (§ 667.5, subd. (b)), which was based on the same burglary conviction, due to the imposition of the section 667, subdivision (a)(1) enhancement. In defendant's opening brief, he contends that the court was required to either impose or strike the prior prison enhancement. However, in his reply brief, he concedes that the court properly stayed it. We agree that the court properly stayed the prior prison enhancement.
"[W]hen multiple statutory enhancement provisions are available for the same prior offense, one of which is a section 667 enhancement, the greatest enhancement, but only that one, will apply." (People v. Jones (1993) 5 Cal.4th 1142, 1150.) Here, defendant's prior prison term enhancement was based on the same burglary conviction as his prior serious felony enhancement. The trial court correctly determined that imposing the prior serious felony enhancement precluded imposition of the prior prison enhancement. (Id. at pp. 1152-1153.) Thus, the court properly imposed and then stayed execution of the sentence on the section 667.5, subdivision (b) enhancement. (People v. Walker (2006) 139 Cal.App.4th 782, 794, fn. 9; see People v. Lopez (2004) 119 Cal.App.4th 355, 364.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: MILLER
J. SLOUGH
J.