Opinion
D070710
07-07-2017
THE PEOPLE, Plaintiff and Respondent, v. JOSHUA COBB, Defendant and Appellant.
Charles R. Khoury, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry J. Carlton and Christopher P. Beesley, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD266186) APPEAL from a judgment of the Superior Court of San Diego County, Jeffrey F. Fraser, Judge. Affirmed. Charles R. Khoury, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry J. Carlton and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
Defendant Joshua Cobb challenges his judgment of conviction for robbery on two grounds. First, Cobb contends that he cannot be convicted of a robbery because the facts demonstrate that he did not use force or fear in taking items from a grocery store and, under the common law, the offense of robbery requires the application of force or fear at the time the pilfered items are taken. Cobb asserts that long-held California case authority has improperly expanded the meaning of robbery beyond the Legislature's intent, and asks this court to reexamine the issue. Second, Cobb contends that there is insufficient evidence to support the jury's finding that he committed a robbery.
We conclude that both of Cobb's contentions are without merit. We therefore affirm the judgment.
II.
FACTUAL AND PROCEDURAL BACKGROUND
On March 18, 2016, Cobb and a woman entered an Albertsons grocery store. Joseph Grau and Dominic Rivera, loss prevention officers, were on duty and wearing plain clothes. Grau heard Cobb ask the woman whether she had any money, and heard the woman reply, " 'No.' " The pair immediately exited the store, but then reentered. After having overheard the couple's discussion, Grau was suspicious and notified Rivera about the pair.
Grau followed Cobb and the woman as they made their way through the store. Grau observed them place various items inside their clothing. For example, Grau saw Cobb put a bar of soap in one pocket and something else in another, and then watched Cobb take toothpaste, a toothbrush, and some frozen items.
Cobb and the woman walked to a self-checkout area, and began scanning the frozen items. Cobb told the self-checkout supervisor that he did not have his EBT card and therefore could not pay for the items. Cobb abandoned the frozen items and started to leave the store. He still had the other items inside of his clothing. Grau coordinated with Rivera to try to stop Cobb at the door to the store.
Cobb and the woman left the store. Rivera made contact with Cobb immediately outside the store's door. Grau saw that Cobb and the woman "turn[ed] and [went] left," so Grau "ran out after them." Grau pulled out his badge and said "loss prevention" to Cobb. Grau also placed a hand on Cobb because "he was leaving."
At that point, Cobb "turns around" and "starts to wrestle" with Grau, "tearing [Grau's] shirt and ripping [Grau's] badge off." After Cobb "did that . . . [Grau] reached for his jacket . . . because when he pushed [Grau] and grabbed [Grau's] shirt, [Grau] lost contact." So Grau attempted to regain contact with Cobb, and when Cobb "move[d]," Cobb's "jacket comes over his head and wrists." Despite Grau telling Cobb that Grau was " 'loss prevention' " and that Cobb could " 'just relax,' " Cobb was "fighting" Grau. At trial, Grau described Cobb as being "freakishly strong." In response to Grau continually attempting to say, " '[J]ust relax, we're loss prevention, I need to talk to you,' " Cobb said, " 'no, no' " and then got in Grau's face and said, " 'Fuck you, you fucking pussy.' " Cobb continued to yell profanity at Grau. At this point, Rivera came to assist Grau and also attempted to explain to Cobb that the two men were loss prevention officers. Cobb said, " 'No, fuck you, let go of me,' " and continued to struggle with the officers.
The officers eventually managed to handcuff Cobb and requested that another security guard call the police. When police officers arrived at the scene, Cobb was still struggling with the loss prevention officers. After securing Cobb, police officers searched his person and found toiletries that had been taken from the store, including deodorant, toothpaste, and a toothbrush.
In addition to having his shirt and badge chain broken, Grau suffered a small laceration on his hand as a result of the incident.
A jury convicted Cobb of second degree robbery, in violation of Penal Code section 211. The trial court sentenced him to three years of formal probation.
Cobb filed a timely notice of appeal.
III.
DISCUSSION
A. Estes robbery
In People v. Estes (1983) 147 Cal.App.3d 23, 28 (Estes), the appellate court stated, "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. The crime is not divisible into a series of separate acts. Defendant's guilt is not to be weighed at each step of the robbery as it unfolds. The events constituting the crime of robbery, although they may extend over large distances and take some time to complete, are linked by a single-mindedness of purpose. [Citation.] Whether defendant used force to gain original possession of the property or to resist attempts to retake the stolen property, force was applied against the guard in furtherance of the robbery and can properly be used to sustain the conviction." (Ibid., italics added.) The import of the holding in Estes is that a conviction for robbery does not require that the force or fear element be applied at the time of the initial taking of the item or items in question, but instead may occur later in the process.
Cobb argues that Estes was wrongly decided because it constitutes an improper judicial expansion of the common law definition of robbery. According to Cobb, "[t]he Supreme Court has never decided the issue presented here, one of judicial legislating where the legislature has remained silent," and requests that this court "re-examine the Estes doctrine in light of the common law origins of [Penal Code] section 211" in order to overturn his conviction for robbery.
We disagree with Cobb's assertions. The California Supreme Court has expressly approved of Estes and its reasoning several times since Estes was published in 1983. (See e.g., People v. Gomez (2008) 43 Cal.4th 249, 260-265 ["[W]e cited Estes with approval in [People v. Cooper (1991) 53 Cal.3d 1158, 1165, fn. 8] for its discussion regarding the temporal aspect of the force and fear element of robbery. [Citation.] We did not address Estes's analysis of 'immediate presence.' We do so here and find it consistent with California's approach to the law of robbery"]; People v. Cooper (1991) 53 Cal.3d 1158, 1165, fn. 8.) We are bound to follow the decisions of our Supreme Court (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455). "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.) We therefore rely on the Supreme Court's approval of the Estes doctrine, and decline to reexamine the doctrine now. B. Sufficiency of the evidence
Cobb also contends that the record lacks sufficient evidence to support his robbery conviction.
"In reviewing a sufficiency of evidence claim, the reviewing court's role is a limited one. ' "The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]" ' [Citations.] [¶] ' "Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder." ' " (People v. Smith (2005) 37 Cal.4th 733, 738-739.)
" 'Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.' [Citation.] Unless it describes facts or events that are physically impossible or inherently improbable, the testimony of a single witness is sufficient to support a conviction." (People v. Elliott (2012) 53 Cal.4th 535, 585.)
Cobb's challenge to the sufficiency of the evidence in this matter is without merit. Grau's testimony, alone, is clearly sufficient to support the jury's finding that Cobb committed a robbery. As stated above, robbery is defined 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." (Pen. Code, § 211.) Although, the robbery statute does not specify at what point the force or fear must take place, as we have already explained, courts have determined that "[t]he 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." (Estes, supra, 147 Cal.App.3d at p. 28.) 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.)
In addition, the force necessary to complete a robbery need not be extreme: " ' "[a]ll the force that is required to make the offense a robbery is such force as is actually sufficient to overcome the victim's resistance." ' " (People v. Burns (2009) 172 Cal.App.4th 1251, 1259 (Burns), quoting People v. Clayton (1928) 89 Cal.App. 405, 411.) Grau testified that Cobb used force against him during the incident, as Grau was attempting to prevent Cobb from absconding with the items that Grau witnessed Cobb place into his clothing. Initially, Rivera attempted to stop Cobb, but Cobb turned away and tried to leave. Grau then grabbed appellant's shoulder to attempt to stop him. In response, Cobb became physical with Grau, tearing his shirt and ripping the badge from around Grau's neck. Grau also testified that Cobb pushed him away. The jury could infer from Grau's testimony that Cobb used force against Grau in order to retain the items that he had illegally taken from inside the store.
Cobb asserts on appeal that he "is not asking this court to reweigh the evidence or revisit credibility issues." We disagree. Cobb argues that although Grau's testimony would be sufficient if Grau had been the only witness in the case, the fact that Rivera testified and provided "vague" testimony, and the fact that a defense witness provided a different account of the events, somehow renders the evidence of guilt in this case insufficient. In making this argument, Cobb is essentially asking this court to undertake a reweighing of the evidence and to make credibility determinations. However, weighing of the evidence and judging the credibility of witnesses to determine the facts fall within the jury's province. (People v. Maury (2003) 30 Cal.4th 342, 403.) The jury clearly believed the version of events as Grau recounted them, and rejected the version presented by the defense. The fact that evidence presented at trial might also support a conclusion contrary to the one the jury reached does not mean that the evidence is insufficient to support the jury's determination. (See People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
IV.
DISPOSITION
The judgment is affirmed.
AARON, J. WE CONCUR: HUFFMAN, Acting P. J. HALLER, J.