Opinion
H049051
12-22-2022
THE PEOPLE, Plaintiff and Respondent, v. JOSHUA COLLINS, Defendant and Appellant.
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. C1908055
DANNER, J.
A jury convicted defendant Joshua Collins of four felonies arising out of two incidents involving Collins's former girlfriend: Inflicting corporal injury on a former partner, false imprisonment, vandalism, and robbery. The jury also found true the great bodily injury allegation attached to the corporal injury offense. The trial court found true the prior strike conviction allegation, denied Collins's request to strike the strike prior under People v. Superior Court (Romero), and sentenced him to a prison term of eight years and eight months.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
On appeal, Collins contends there was insufficient evidence to support the convictions for robbery and false imprisonment, the trial court abused its discretion when it permitted the prosecution to amend the information at the close of evidence, and the court erred in denying his Romero motion.
For the reasons explained below, we reverse the judgment on the ground of insufficient evidence to support the robbery conviction. We order the trial court to reduce the robbery conviction to a conviction of the lesser included offense of petty theft. We reject Collins's other assertions of error and remand for resentencing.
I. FACTS AND PROCEDURAL BACKGROUND
A. Procedural Background
In November 2020, the Santa Clara County District Attorney filed an amended consolidated felony complaint (consolidated complaint) charging Collins with vandalism (Pen. Code, § 594, subd. (b)(1); count 1), misdemeanor infliction of corporal injury on a person with whom he had a dating relationship, with a prior conviction within seven years (§ 273.5, subd. (f)(1); count 2), felony infliction of corporal injury on a person with whom he had a dating relationship (§ 273.5, subd. (f)(1); count 3), felony false imprisonment (§ 236; count 4), and second degree robbery (§ 212.5, subd. (c); count 5).
Unspecified statutory references are to the Penal Code.
The consolidated complaint alleged that counts 1 and 2 occurred on or about April 22, 2019, and counts 3 to 5 occurred on or about March 15 and 16. A.V. is the alleged victim in all counts of the complaint. As to counts 3 and 4, the district attorney alleged that Collins had personally inflicted great bodily injury (§ 12022.7, subd. (e)). The consolidated complaint also alleged that Collins had suffered one prior strike conviction (§§ 667, subds. (b)-(i), 1170.12) and one serious or violent felony conviction (§§ 667.5, subd. (c), 1192.7, subd. (c)).
Unless otherwise indicated, all dates were in 2019.
To protect her privacy, we refer to the victim by her initials. (Cal. Rules of Court, rule 8.90(b)(4).)
The great bodily injury allegation was not listed in the consolidated complaint. However, both parties agree it was alleged. The allegation is evident in the jury instructions for count 3, closing argument, and verdict forms. Collins contends the abstract of judgment must be corrected to reflect the allegation as to count 3.
The case was tried before a jury beginning on November 30, 2020. After the close of evidence and outside the presence of the jury, the defense moved for an acquittal pursuant to section 1118.1 as to count 5, robbery, on the ground of insufficient evidence to sustain a conviction. Concurrently, in arguing against an acquittal, the prosecutor moved to orally amend the information pursuant to section 1009, based on proof presented at trial, to add the "taking of the phone" to the robbery count. After hearing argument, the trial court denied those motions. It granted a separate request by the prosecutor to dismiss the great bodily injury allegation as to count 4 for false imprisonment.
We have previously referred to the consolidated complaint, consistent with the record on appeal showing that on November 19, 2020, the trial court consolidated two actions filed against Collins. The consolidated complaint included case No. C1908055, for which a first amended information was filed on July 30, 2019, after a preliminary hearing, and case No. C1916221, for which the court held a preliminary hearing on November 1, 2019. Although the record does not appear to reflect the designation of the consolidated complaint as the information, subsequent references in the record refer to the information (including a motion to amend the information, discussed in our analysis, post). Consistent with these references, we hereafter refer to the operative accusatory pleading containing the charges set forth in the consolidated complaint as "the information."
The next day, the trial court reconsidered its denial of the motion to amend the information. It granted the prosecution's request to orally amend the information to add the word" 'phone'" to the robbery charge in count 5. The court denied the defense's subsequent motion for mistrial.
On December 10, 2020, the jury found Collins guilty of counts 1, 3, 4, and 5, and found true the allegation as to count 3 of great bodily injury under circumstances involving domestic violence. The jury could not reach a unanimous verdict on count 2 for misdemeanor infliction of corporal injury. The prosecutor moved to dismiss that count in the interests of justice, which motion the court granted. After Collins waived his right to a jury trial on his prior serious felony conviction and strike prior, the court found both allegations to be true.
On March 24, 2021, the trial court heard argument on Collins's Romero motion to strike his prior strike conviction and his request that he be sentenced to a probationary term. The court acknowledged the issues raised by Collins but ultimately denied the Romero motion.
The trial court sentenced Collins to a total prison term of eight years and eight months. The court selected the low term of two years, doubled to four years, for the felony inflicting corporal injury conviction on count 3 and imposed consecutive sentences of one-third the midterm, doubled, for a term of 16 months on counts 1 and 4, and two years on count 5. The court struck the punishment for the great bodily injury enhancement attached to count 3 (§ 12022.7, subd. (e)) and the five-year prison term enhancement (§ 667, subd. (a)(1)).
B. Evidence Presented at Trial
In addition to the testimony described below, the prosecution presented expert testimony on intimate partner violence and its effect on victims. That evidence is not relevant to this appeal.
A.V. met Collins in December 2018. They dated for approximately two months, from late February through April. On March 15, Collins and A.V. planned to visit friends of Collins's who lived in Calaveras County, spend the night, and attend a few events that weekend. Collins drove them in A.V.'s 2013 Toyota Corolla from San Jose to his friends' house. The friends were a couple with a young child. A.V. had not met them before.
Collins and A.V. arrived after dark, around 9:00 or 10:00 p.m. After brief introductions, Collins, his male friend, and A.V. began drinking. When Collins became too loud, his friend asked them to be quiet because the child was sleeping, then eventually suggested they go to bed.
A.V. walked Collins to the guest bedroom. Collins lay down on the bed. When A.V. said she needed to get her overnight bag from the living room, he became very upset and accused her of trying to leave to go sleep with his friend. He yelled and cursed, calling A.V. a "slut." A.V. was standing near the door, which was closed, when Collins "came at" her. A.V. pushed him away with both hands. Collins grabbed her by the arms and threw her across the bed. She landed on the other side of the bed, wedged between the bed and the wall. Being thrown across the bed stopped her from trying to leave the room. It was the first time in their relationship that Collins had acted that way toward her.
Collins's friends entered the guest bedroom while A.V. was still on the floor. The male friend and Collins began fighting. A.V. got up and went to the living room. The men kept fighting and moved a few minutes later to the backyard. The fight ended with the male friend suggesting that Collins sleep in the car. Collins decided to leave instead. A.V. went with him. She did not know the people at whose house they were staying, Collins had the keys to her car, and she did not want to be left in "the middle of nowhere."
Collins got in the driver's seat and A.V. in the passenger seat. It was dark out. Collins reversed into his friend's car, damaging A.V.'s car's bumper which later fell off sometime during the trip. At the top of the driveway, Collins stopped the car and A.V. "kind of pushed him" with one hand and said something "kind of like 'What the hell are you doing? What is going on? Why are you being so crazy?'" Collins responded by grabbing her hair and pushing her head down into the space where the passenger air bag deploys. He punched her in the face and mouth three or four times with a closed fist while yelling "It's [your] fault. All of it."
A.V. tried to protect her head and face with her hands and arms. She told him to stop. Collins began to drive, then stopped a few minutes later and began hitting A.V. again. He punched her four or five times, hard enough to make her nose bleed.
They began driving again. A.V.'s forehead was cut, which she believed was caused by the ring on her left hand when she shielded her face. She felt blood on her face from her nose and forehead and could taste the blood in her mouth. At some point, she took out her cell phone and took a picture of herself using the flash. The photo, which was admitted into evidence, was taken at 2:34 a.m. Mid-flash, as the picture was being taken, Collins grabbed the phone out of A.V.'s hand. He threw the phone out the driver's side window. The car was stopped when the phone-grabbing occurred. A.V. testified it happened "[p]retty quick." Then Collins reached down, grabbed A.V.'s wallet from the center cupholder, and threw it out too.
A.V. "just sat there." She did not try to find the wallet or phone because it was dark out and looked like they were on the side of a hill. Then she got out of the car to give Collins "some time" since he was still yelling and "being aggressive" by throwing her things. She walked to the rear of the car and stood for a couple of minutes and told him she needed him to stop. Collins calmed down and moved to the passenger seat. A.V. saw no option other than returning to the car. She began driving. Collins was still angry and yelled at her intermittently. At some point, A.V. turned on the radio to try to "relax the situation." Collins wanted the radio off. He yanked on the steering wheel and punched the touchscreen, which broke.
They drove until the sun came up. A.V. was not accustomed to driving without her phone's mapping application and did not know where she was going. Collins fell asleep. By morning, A.V. was tired. She woke Collins and said they needed to find a motel. Collins checked them into a motel near Modesto, where they stayed overnight until Sunday. Collins was remorseful and "cried for hours." He thought he was going to go to prison and would not be able to see his son.
On Sunday morning, A.V. used her laptop to contact her sister, Tina V., who used a locator application to track A.V.'s phone. Tina sent A.V. a screenshot of the last location of her phone. Collins drove them a few hours back to that location and helped search for the phone and wallet. They found the phone. A resident saw them searching and said he had turned in a wallet to the sheriff's office. Collins did not want to go to the sheriff's office and feared they would question him about A.V.'s injuries.
A.V. returned a week or two weeks later to retrieve her wallet, which had all of its contents.
After they retrieved the phone, Collins drove to the friends' house and apologized to them. A.V. wore sunglasses to cover her face while they spoke with Collins's friends. Then they returned to San Jose. Collins picked up his car and left, though A.V. saw him again that night. After talking with her cousin and a few people who knew Collins, she decided to file a police report with the San Jose Police Department. Police officers photographed her injuries. A.V. had bruises to her face, arms, and legs. She had two black eyes and soreness in her mouth.
A.V. went to the hospital the same day she made the police report. Her sister, Tina V., accompanied her. Tina V. testified that A.V. was hysterical, crying, moaning, and in tears. A.V. had two black eyes, bruises on her face and arms, a "little dent" on the side of her forehead, and a loose tooth. She learned she had a facial fracture on the side of her cheek that would heal on its own. While at the hospital, Collins texted and called A.V. asking her not to file a police report.
A.V. believed that Collins was sorry. He had helped her find her phone and wallet and told her he would fix the car. They continued their relationship. However, after she told him she had reported the March incident, the relationship deteriorated.
On April 21, A.V. met Collins in the afternoon outside a sports lounge. She felt she needed to tell him in person that she had cheated on him the night before. Collins called her names. He asked her to buy him a drink and said it was "the least [she] could do." She bought him two drinks, then left the bar because he continued to call her names. He followed her outside and they talked more. He wanted another drink, so they returned to the bar. The bartender eventually sent Collins out because he continued to name call and tried to start a fight with another patron.
Outside the bar, Collins took A.V.'s phone and keys. Later, they were in A.V.'s car but she could not leave because he had the keys. During that incident, Collins slapped her on the cheek and on the leg. At another point, when she was trying to get her keys back from him, he bit her on the thumb. At one point, he urinated on the driver's side floorboards. A.V. eventually left in her car and began driving home, but she turned around after Collins called her and told her that if she did not come back he was going to kick down the door of her mother's house.
They met in the parking lot of another bar. Collins got in the car and took A.V.'s keys from the ignition. He left the car for a few minutes, then returned, yelling and name calling. Collins began vandalizing the car. He ripped out the glove compartment, punched the touchscreen, punched the hazard lights button, punched the windows, and ripped off the rearview mirror. He also kicked the gear shift and ripped apart the ignition and area beneath the steering wheel. At some point, the passenger window shattered. The windshield also cracked. When A.V. stepped away from the car, Collins seemed to calm down but got angry again when she got back in the car. A.V. got in and out of the car two times, then walked to the sidewalk of the establishment, at which point Collins threw the car keys her way, as if to say" 'Here's your keys back.'" She grabbed the keys and ran across the street to an apartment complex, hid, and called 911.
Officer Vanessa Verceluz responded to the 911 call on April 22 about 1:00 a.m. The officer observed shattered glass on the passenger seat of the car and a broken window. A.V. "appeared scared" and said her boyfriend had slapped her in the face. Verceluz observed that A.V.'s skin was red on the right side of her face. A.V. did not report being bitten.
A.V.'s car sustained thousands of dollars in damage. It could not be repaired and A.V. sold it for $1,000. She had bought it about five years earlier for $16,000. The relationship between A.V. and Collins ended after the April incident.
II. DISCUSSION
Collins raises four claims on appeal. He contends there was insufficient evidence to support his convictions for false imprisonment and robbery. He also contends the trial court abused its discretion both in granting the motion to amend the information to add the phone to the robbery charge and in denying his Romero motion to strike his prior strike conviction.
A. Sufficiency of the Evidence of Robbery and False Imprisonment
Collins contends there was insufficient evidence to establish elements of both the robbery conviction and conviction for felony false imprisonment. He maintains that a conviction unsupported by sufficient evidence as to any essential element of the offense is a denial of federal due process of law and a violation of the defendant's rights under the Fourteenth Amendment. (See Jackson v. Virginia (1979) 443 U.S. 307, 309 (Jackson); People v. Hernandez (1988) 47 Cal.3d 315, 345-346.)
1. Standard of Review and General Legal Principles
" 'When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence-that is, evidence that is reasonable, credible, and of solid value-from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.'" (People v. Powell (2018) 5 Cal.5th 921, 944; see also Jackson, supra, 443 U.S. at pp. 318-319; People v. Jimenez (2019) 35 Cal.App.5th 373, 392.) "In applying this test, we . . . presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence." (People v. Zamudio (2008) 43 Cal.4th 327, 357 (Zamudio).) "We 'must accept logical inferences that the jury might have drawn from the circumstantial evidence.'" (Ibid.) " 'We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]' A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support"' the jury's verdict." (Ibid.) "However, '[a] reasonable inference . . . "may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. [¶] . . . A finding of fact must be an inference drawn from evidence rather than . . . a mere speculation as to probabilities without evidence." '" (People v. Davis (2013) 57 Cal.4th 353, 360.)
2. Robbery
Collins challenges the sufficiency of the evidence to support the robbery conviction on the grounds that (1) he did not use either force or fear in taking the wallet and phone and (2) he lacked the requisite specific intent to permanently deprive A.V. of her property. We agree the evidence failed to prove that Collins used force or fear to accomplish the taking of the phone or wallet but conclude there was sufficient evidence from which the jury could infer wrongful intent.
a. Applicable Law
The crime of robbery, defined in section 211, "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."" 'Robbery is essentially larceny aggravated by use of force or fear to facilitate the taking of property from the person or presence of the possessor. [Citation.] Robbery requires the specific intent to deprive the victim of his or her property permanently. [Citations.] The taking of the property of another is not theft absent this intent.'" (People v. Smith (2009) 177 Cal.App.4th 1478, 1489-1490.)
The "force or fear" element of the robbery offense" 'is cast in the alternative; it may be accomplished either by force or by fear.'" (People v. Montalvo (2019) 36 Cal.App.5th 597, 611 (Montalvo).) Our Supreme Court has explained that "[t]he terms 'force' and 'fear' as used in the definition of the crime of robbery have no technical meaning peculiar to the law and must be presumed to be within the understanding of jurors." (People v. Anderson (1966) 64 Cal.2d 633, 640; see People v. Griffin (2004) 33 Cal.4th 1015, 1026.)
" '[T]he "force" required for robbery is not necessarily synonymous with a physical corporeal assault.' [Citation.] However, '[t]he law does require that the perpetrator exert some quantum of force in excess of that "necessary to accomplish the mere seizing of the property."' [Citation.] '[T]he force need not be great.' [Citation.] 'An accepted articulation of the rule is that "[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." '" (Montalvo, supra, 36 Cal.App.5th at p. 618.)
The fear element "may be either: [¶] 1. The fear of an unlawful injury to the person or property of the person robbed, or of any relative of his or member of his family; or, [¶] 2. The fear of an immediate and unlawful injury to the person or property of anyone in the company of the person robbed at the time of the robbery." (§ 212.)" 'To establish a robbery was committed by means of fear, the prosecution "must present evidence 'that the victim was in fact afraid, and that such fear allowed the crime to be accomplished.'"' [Citation.] Thus, the fear element is subjective in nature. [Citation.] However, the victim need not explicitly testify that he or she was afraid of injury where there is evidence from which it can be inferred that the victim was in fact afraid of injury. [Citation.] 'The fear is sufficient if it facilitated the defendant's taking of the property. Thus, any intimidation, even without threats, may be sufficient.' [Citation.] However, given the language of section 212, the intimidation must not only produce fear, but the fear must be of the infliction of injury." (Montalvo, supra, 36 Cal.App.5th at p. 612.)
b. Additional Background
As discussed further (part II.B., post), the trial court permitted the prosecution to amend the information to add the cell phone to the robbery charge, which already included the taking of the wallet. The court instructed the jury that to convict Collins of robbery, "The People must prove that: [¶] 1. Defendant took property that was not his own; [¶] 2. The property was in the possession of another person; [¶] 3. The property was taken from the other person in her immediate presence; [¶] 4. The property was taken against that person's will; [¶] 5. The defendant used force or fear to take the property or to prevent the person resisting; [¶] AND [¶] 6. When the defendant used force or fear, he intended to remove the property from the owner's possession for so extended a period of time that the owner would be deprived of a major portion of the value or enjoyment of the property." (CALCRIM No. 1600.)
The trial court further instructed as to the requisite specific intent of the defendant in taking the property and defined certain terms used in the instruction, including "fear" as "fear of injury to the person herself or injury to the person's family or property." The court instructed the jury on the lesser included offenses of attempted robbery, theft by larceny, and grand theft and petty theft, as well as to the defense of voluntary intoxication with respect to the robbery charge.
Following the amendment of the information to add the phone, the trial court instructed the jury on unanimity with respect to the robbery count and lesser included offenses. It stated, as to count 5 (robbery), that "The People have presented evidence of more than one act to prove that the defendant committed this offense and the lesser included offenses to this offense. You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act he committed." (CALCRIM No. 3500.)
In her closing argument, the prosecutor reiterated A.V.'s testimony "that the flash went off and Defendant Collins snatched her phone out of her hand and threw it out the window. She didn't willingly give it to him. She didn't consent to him taking it. The taking was against her will. She testified as to that. At the time that it occurred, she was documenting her injuries caused by the defendant when he took it." The prosecutor argued similarly as to the wallet, that "the intent to throw it out the window existed before he grabbed it, because he had just done the same with her phone. And there are reasonable inferences one can make of [A.V.]'s fear given the events leading up to the moment, including him having already taken and thrown the phone, her personal property, out of the car." The prosecutor emphasized that although she believed robbery had been proven beyond a reasonable doubt, the evidence was "sufficient for the lesser included offense of theft by larceny."
Defense counsel countered that Collins "drunkenly, impulsively, and with anger tossed" A.V.'s wallet and phone out the window but asserted that while he acted "[r]eprehensibly" the behavior did not satisfy the force or fear elements of a robbery. Defense counsel argued that "to be very plain, . . . [t]his case is overcharged. It's as simple as that." He argued A.V.'s testimony showed that "[t]here was no struggle with either the phone or the wallet," and "[w]hile the phone was in her hand, no force was applied to take it out of her hand" and "certainly no force was used to take the wallet." Defense counsel further argued that the evidence failed to show Collins intended to deprive A.V. of her items for an extended period of time, since she exited the car without resistance from him and could have looked for the items then. Moreover, defense counsel noted that Collins returned with A.V. the next day to help her find the wallet and phone.
In rebuttal, the prosecutor claimed the evidence supported an inference of force or fear. The prosecutor argued, "Her phone was in her hand, and she was using it, and it was taken from her. It may have happened quickly, but that's force. Taking something from her person out of her hand that she didn't consent to can be considered force." The prosecutor argued that the "fear" element was also met because fear is defined to include fear of injury to the person or property. "So while the wallet wasn't taken from her hands the way that the phone was, what was present there was fear. Fear of injury to her property. She had just experienced Mr. Collins taking her phone -- also her property -and throwing it out the window. So force and fear -- force or fear is established."
c. Force or Fear
Collins asserts there is no evidence that he used force beyond that necessary to take A.V.'s phone from her hand. We agree. "Case law [] establishes that the force necessary to elevate a theft to a robbery must be something more than that required to seize the property." (People v. Anderson (2007) 152 Cal.App.4th 919, 946 (Anderson).) That is, though the amount of force" 'need not be great'" (Montalvo, supra, 36 Cal.App.5th at p. 618) and" 'is not necessarily synonymous with a physical corporeal assault'" (ibid.), it must be more than is required to effect the taking itself. The requisite "force" may be understood as that required to overcome any resistance to the theft. Hence," '[a]n accepted articulation of the rule is that "[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." '" (Ibid.)
The "purse snatch" described in People v. Burns (2009) 172 Cal.App.4th 1251, 1254-1255 (Burns) illustrates this baseline level of force. In Burns, the defendant grabbed the victim's purse, which was on her elbow, as she began to climb the staircase. The victim "tried to clutch the purse, but [the defendant] stepped on her toe" and the victim "was unable to hold onto it any longer." (Id. at p. 1255.) The defendant "forcibly took [the purse] from [the victim]'s grip, then ran out the door with [it]." (Ibid.)
On appeal, the court rejected the defendant's argument that the jury should have been instructed on the lesser offense of grand theft "because the force used was only that necessary to seize the purse." (Burns, supra, 172 Cal.App.4th at p. 1257.) The court explained that even if the seizure of the purse did not "involve shoving, striking or pulling with such force as to break the purse strap" (ibid.), the force used to overcome the victim's resistance was sufficient to support the instruction on robbery. "[W]here a person wrests away personal property from another person, who resists the effort to do so, the crime is robbery, not merely theft." (Ibid.)
The requisite use of force to establish robbery can also be inferred from the effect felt by the victim. In People v. Jones (1992) 2 Cal.App.4th 867, the "purse was held by straps on the victim's left shoulder, with the purse itself under her left elbow." (Id. at p. 870.) The appellate court observed that "[t]he purse was grabbed with such force that it injured the victim," producing a cut finger and a slight injury to the shoulder. (Ibid.) The court reasoned that "[a]lthough the injuries were minor, the inference that force was used is compelling. The degree of force is immaterial." (Id. at p. 871.)
Force may also be established by evidence that the defendant shoved or physically impeded the victim. In People v. Mungia (1991) 234 Cal.App.3d 1703 (Mungia) and People v. Mullins (2018) 19 Cal.App.5th 594 (Mullins), both cited by Collins, a push or shove immediately preceded and enabled the taking or prevented the victim from resisting. In Mungia, the defendant shoved the shoulder of the victim, who was eight months' pregnant, and in a separate motion, snatched her purse from her shoulder. (Mungia, at p. 1706.) The appellate court concluded there was sufficient evidence based on the relative size and apparent strength of the defendant and victim-who at eight months' pregnant was "inferably more susceptible to being shoved off-balance and less able to recover her equilibrium quickly"-that the defendant used more force than necessary to accomplish the taking of the purse. (Id. at p. 1709.) Similarly in Mullins, the codefendants' coordinated act of nudging aside or pushing in front of each victim at the ATM before they had completed their transactions so defendants could withdraw money from the victims' accounts was sufficient to establish the force element for robbery. (Mullins, at pp. 604-605.)
The circumstances in this case are distinguishable from the above cases and do not support an inference that Collins used force in some amount beyond that required to snatch the phone or wallet. Unlike in Mungia and Mullins, Collins did not apply any physical force to A.V. apart from grabbing the phone from her hands or the wallet from the cupholder. According to A.V., Collins just "grabbed it out of [her] hands and threw it - [her] phone out the window." In contrast with Burns and Jones, there was no other evidence to suggest the taking or grabbing of the phone from A.V.'s hands left a mark from the force that was applied or required Collins to wrest the phone from her grasp.There was no evidence that A.V. resisted Collins's wresting of the phone or wallet from her or that he hurt her as he did so. Instead, the record reflects an abrupt sequence in which Collins grabbed the phone and tossed it out of the open, driver-side window, followed by the wallet.
The colloquy with the prosecutor highlights the absence of any evidence to support an inference that Collins had to forcibly yank or pry the phone from A.V.'s grasp. "Q: Did he have to wrestle it away from you or was it pretty quick? [¶] A. Pretty quick. [¶] . . . [¶] Q: When he grabbed it from your hands, did it hurt your hands at all or was it just -- [¶] A: No. [¶] Q: [] really fast? [¶] A: Just grabbed my phone and threw it out the window. [¶] Q: Did you try to stop him from taking your phone? [¶] A: No. [¶] Q: Was it because it was too quick or -- [¶] A: He just grabbed my phone, threw it out the window, and reached down, grabbed my wallet, and threw it out."
While we "presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence" (Zamudio, supra, 43 Cal.4th at p. 357), we are unable to infer from this sequence any fact supporting use of force as required to effectuate a robbery. Further, we note that the prosecutor's assertion in her rebuttal closing argument that "[t]aking something from her person out of her hand that she didn't consent to can be considered force" misstates this aspect of the law. As the California Supreme Court observed more than a century ago, "Grabbing or snatching property from the hand has often been held to be grand larceny, and not robbery." (People v. Church (1897) 116 Cal. 300, 303.) The distinction, based on "the absence or presence of the use of force in the taking" (Id. at p. 302.) remains just as relevant today. Simply put, "[t]he law does require that the perpetrator exert some quantum of force in excess of that 'necessary to accomplish the mere seizing of the property.'" (People v. Anderson (2011) 51 Cal.4th 989, 995.)
The record also does not support an inference that A.V. was put in fear of unlawful injury to her person or property (or that of another present) (§§ 212, 211) when Collins grabbed the phone and wallet. In arguing to the contrary, the Attorney General relies on the circumstances in which the phone and wallet incident took place. The Attorney General argues that "although [Collins]'s assault upon A.V. was not merely simultaneous to the robbery, his assault . . . assisted him in later robbing her." The Attorney General asserts that "not only did [Collins] take the phone and the wallet by physically grabbing it out of A.V.'s hand or her immediate presence, his almost endless assault upon her imposed such fear that [she] relinquished the phone and wallet on that basis as well."
We agree that the circumstances surrounding the taking of the property are relevant to ascertain whether the element of fear was satisfied. "It is not necessary that there be direct proof of fear; fear may be inferred from the circumstances in which the property is taken." (People v. Morehead (2011) 191 Cal.App.4th 765, 775 (Morehead); see People v. Holt (1997) 15 Cal.4th 619, 690.) Moreover, as set forth above, the "victim need not explicitly testify that he or she was afraid of injury where there is evidence from which it can be inferred that the victim was in fact afraid of injury." (Montalvo, supra, 36 Cal.App.5th at p. 612.) That the victim's fear may be inferred from the circumstances, however, is not enough absent evidence" 'that such fear allowed the crime to be accomplished.'" (Anderson, supra, 152 Cal.App.4th at p. 946; Montalvo, at p. 612.) "The fear is sufficient if it facilitated the defendant's taking of the property." (Mullins, supra, 19 Cal.App.5th at p. 604.)
The record in this case fails to support an inference that the distress engendered by Collins's prior attacks on A.V. facilitated his taking of the phone and wallet or prevented her from resisting or retrieving the items immediately. A.V. testified that Collins took her phone as she attempted to take a photo of the injuries he had caused a short time before. Her testimony that the phone camera was "mid flash" and it happened "[p]retty quick" supports an inference that the grabbing of the phone and wallet was sudden and perhaps startled or shocked her. Yet no part of her testimony suggests that fear of physical attack-injury to her person or her property-enabled Collins to grab the phone in the moment the flash was processing or kept her from resisting him. Further, A.V.'s testimony that she "just sat there" after he threw the items out the window supports the inference that she was shocked or overwhelmed by Collins's volatile behavior. Though A.V. testified that she eventually exited the vehicle because he "was still being aggressive" by yelling and throwing her things and she wanted his behavior "to stop," her exit from the vehicle occurred after Collins took the items. There is no evidence to suggest that fear of Collins prevented her from retrieving her items at that point or facilitated their taking in the first place. Rather, she testified that she did not try to find the wallet and phone because it was dark and she thought they were on a hillside.
Case authority examining the "fear" element of the robbery offense supports the distinction between evidence of generalized distress, shock, or surprise, and requisite fear of injury. Where intimidation is a factor, "the intimidation must not only produce fear, but the fear must be of the infliction of injury." (Montalvo, supra, 36 Cal.App.5th at p. 612.) Thus, in Montalvo, the appellate court rejected the argument that a defendant's conduct posing as an undercover police officer and entering the victim's hotel room without invitation to search the victim's pockets (ostensibly for drugs, while in fact removing his wallet and taking the cash therein) was in and of itself a sufficient basis from which to infer fear. (Id. at pp. 613-614.) The court observed that "[w]hile an encounter with a supposed police officer might be frightening, this alone does not establish that any fear the victim suffered was fear of an injury. To prove the element of fear here, the prosecution was required to establish that the victim was placed in actual fear of injury." (Id. at p. 613.) The victim in Montalvo testified that he had complied with the defendant because he believed him to be a police officer. (Id. at p. 612.) The court concluded that insofar as the victim complied because he thought the defendant was a police officer, and not because he thought the defendant was armed, that he would be injured, or even that he was scared, "[t]he type of evidence establishing the element of fear" was absent and did not support an inference that the victim was put in "fear of injury or that the taking was accomplished by placing him in such fear." (Id. at p. 614.)
Here, like in Montalvo, the taking of the property occurred during a highly stressful event. We recognize that distress, fear, or intimidation produced by prior conduct of a defendant could in some circumstances supply a basis from which to infer that the victim feared injury at the hands of the defendant, and that fear facilitated the defendant's taking of the property. However, the circumstances here do not support the necessary inference. When a victim is merely caught off guard or startled by the defendant grabbing their property, fear in facilitation of the taking is not established. (See, e.g., People v. Reade (1961) 197 Cal.App.2d 509, 510 [noting record did not support an inference the victim was put in fear, where she testified she was "only startled" when the defendant snatched the envelope from her hand, shoved her to the floor, and ran away]; Mungia, supra, 234 Cal.App.3d at p. 1709, fn. 2 [concluding nothing in the record indicated that the victim's purse was taken from her through the use of fear, where the victim "was not aware" of the defendant's approach until he had "actually snatched her purse from behind"].)
By contrast, circumstances in which fear may be reasonably inferred include the use of a weapon or implied threat of violence, or intimidation in conjunction with the taking of the property. (See, e.g., Anderson, supra, 152 Cal.App.4th at p. 946 [defendant "put a knife to the victim's throat" and "[t]he victim gave [the property] up willingly out of fear"]; Morehead, supra, 191 Cal.App.4th at pp. 776-777 [concluding that for each of three bank robberies, in which the defendant appeared at the teller's window in dark sunglasses and produced a threatening note announcing a robbery, there was evidence of actual and reasonable fear on the part of the teller that enabled the defendant to accomplish the robbery].)
In sum, we conclude the force required to take the phone from A.V.'s hands and throw it out the window (and the same to remove the wallet from the cupholder) was, without more, insufficient to establish robbery by means of force. We also conclude that neither A.V.'s testimony, nor the events that led to Collins's taking of the phone and wallet, support an inference that A.V. was in fact afraid of injury and that this fear facilitated the quick and unexpected taking by Collins of her phone and wallet. Thus, we decide the record does not support the "force or fear" element of Collins's robbery conviction and conclude that Collins's conviction for robbery (count 5) must be reversed.
d. Intent to Deprive
Collins also challenges the sufficiency of the evidence that he formed the specific intent to permanently deprive A.V. of her phone and wallet. He contends that because the taking of the property occurred "in an alcohol-infused state of poor impulse control" in which he "rashly grabbed the wallet and phone and tossed them out the window," the evidence was insufficient to establish the requisite intent. The Attorney General counters that the evidence amply supported the intent element, where Collins's seizure of the phone and wallet deprived her of the value of both items, and she was left without means to document her injuries, call for help, or even obtain directions for the return drive to San Jose.
We conclude that the evidence adduced at trial was sufficient as to this element. A reasonable jury could have inferred from the evidence that Collins seized the phone and wallet and tossed them out the car window into the dark night with an intent to deprive A.V.-whether permanently or temporarily-of the use and enjoyment of those items. "Under California law, theft requires an intent to permanently deprive another of property." (People v. Avery (2002) 27 Cal.4th 49, 52.) The California Supreme Court has clarified that "an intent to take the property for so extended a period as to deprive the owner of a major portion of its value or enjoyment satisfies the common law, and therefore California, intent requirement." (Id. at p. 55.) Thus, the element of specific intent for purposes of the robbery count, as well as the lesser included offenses of grand theft and petty theft, "is satisfied by the intent to deprive temporarily but for an unreasonable time so as to deprive the person of a major portion of its value or enjoyment." (Id. at p. 58.)
Collins contrasts the circumstances here to People v. Aguilera (2016) 244 Cal.App.4th 489, in which the appellate court held that one spouse can be convicted of robbing the other of community property on a temporary taking theory when taking interferes with the use of that property for an unreasonable amount of time. In Aguilera, the evidence showed that the defendant took his spouse's phone to prevent her from calling the police in the midst of his violent assault on her. (Id. at p. 501.) The appellate court concluded that that evidence was sufficient to prove the intent element of the robbery count, since the defendant took the phone to deprive his spouse "of a major portion of its value or enjoyment" by preventing her from calling for help during an assault. (Id. at pp. 501-502.)
Collins argues that unlike in Aguilera, A.V. was not trying to use her phone to call for help during an assault, and Collins's "rash act" bore no evidence of intent to prevent her from calling 911. This argument is unpersuasive. By taking the phone and throwing it out of the car window at night in a location with which A.V. was unfamiliar, Collins deprived A.V. of all of its uses-including but not limited to calling for help or documenting her injuries-for an unreasonable amount of time. The same can be said of the wallet. Understood in context, and given the intrinsic value of items like a phone and wallet is to enable a person to communicate, obtain transportation, or get help, we conclude the evidence was sufficient to support the element of specific intent required for robbery and the lesser included theft offenses on which the jury was instructed.
e. Remedy
Our decision based on insufficient evidence to establish "force or fear" to support the robbery conviction (count 5) requires that we next consider the appropriate remedy. The constitutional protection against double jeopardy bars retrial of the robbery count following reversal due to insufficient evidence. (People v. Anderson (2009) 47 Cal.4th 92, 103-104; People v. Eroshevich (2014) 60 Cal.4th 583, 591.) However, the double jeopardy bar does not preclude conviction on a lesser included offense that is supported by the evidence. (People v. Goolsby (2016) 244 Cal.App.4th 1220, 1225; see § 1181, subd. (6); People v. Navarro (2007) 40 Cal.4th 668, 675-676 (Navarro).) Thus, while Collins is entitled to have the robbery conviction reversed, section 1181(6) authorizes the court to modify the verdict to reflect a guilty finding as to a lesser included offense which is supported by the evidence.
Section 1181, subdivision (6) (hereafter, § 1181(6)) provides that where "the evidence shows the defendant to be not guilty of the degree of the crime of which he was convicted, but guilty of . . . a lesser crime included therein, the court may modify the verdict, finding or judgment accordingly without granting or ordering a new trial, and this power shall extend to any court to which the cause may be appealed."
Considering this circumstance, this court requested that the parties file simultaneous, supplemental letter briefs regarding the appropriate remedy in the event that either the robbery or false imprisonment convictions fails due to insufficient evidence. We have received the letter briefs of both parties and consider their responses herein.
The trial court instructed the jury on the lesser included offenses of attempted robbery, grand theft by larceny, and petty theft. As Collins notes in his supplemental letter brief, the record does not support a conviction for attempted robbery, which the trial court instructed requires that "the defendant took a direct but ineffective step towards committing robbery" in violation of section 211. (See § 21a.) Because the evidence established a completed taking of the phone and wallet, we agree that the elements of attempt were not proven at trial.
Turning to the lesser included theft offenses, Collins concedes that the defense did not argue the value of the property was less than $950 to support a petty theft conviction. Our review of the record confirms that the jury heard no evidence related to the value of the phone or wallet.
Collins urges that if this court were to determine-as we have-that there was insufficient evidence of force or fear to support the robbery conviction, but substantial evidence from which the jury could plausibly infer that Collins intended to deprive A.V. of a major portion of the value or enjoyment of the phone or wallet, the appropriate remedy would be to reverse the robbery conviction and order the judgment be modified to a conviction for grand theft. Collins fails to explain, however, how the record supports a conviction for grand theft without evidence of the phone's and/or wallet's value. The Attorney General likewise asserts that because the record established that Collins took the phone from A.V. and threw it out of the window (as with the wallet), the evidence is sufficient to support a theft conviction. The Attorney General does not address whether the appropriate conviction would be for grand theft or petty theft.
A court can modify the verdict upon a determination of insufficient evidence to sustain the crime of which the defendant was convicted only "if the evidence shows the defendant to be . . . guilty of . . . a lesser crime included therein." (§ 1181(6), italics added; see Navarro, supra, 40 Cal.4th at pp. 676-677.) Here, there is no evidence in the record that the value of the phone (or wallet) was greater than $950 when Collins took it from A.V. California's theft statute defines theft generally (§ 484) and divides theft into two degrees-grand theft and petty theft (§ 486). Whether a theft is grand theft or petty theft depends (as relevant here) on the value of the property taken. Section 487 describes scenarios constituting grand theft to include (1) where the property taken has a value exceeding $950, (2) where specific types of property are taken, and (3) where the property is taken from the person of another. (§ 487, subd. (a)-(d).) Section 488 provides that "[t]heft in other cases is petty theft." While grand theft "[w]hen the property is taken from the person of another" (§ 487, subd. (c)) historically required the property only to have "some intrinsic value" (People v. Cuellar (2008) 165 Cal.App.4th 833, 837), more recent modifications to the statutory scheme have limited grand theft- including where property is taken from the person of another-to circumstances in which the property value exceeds $950. (See § 490.2, subd. (a).) Thus, "obtaining any property by theft where the value of the money, . . . or personal property taken does not exceed nine hundred fifty dollars ($950) shall be considered petty theft and shall be punished as a misdemeanor." (Ibid.) The trial court instructed the jury consistent with these statutory provisions.
Section 484 defines theft generally, in pertinent part, in terms of a "person who [] feloniously steal[s], take[s], carr[ies], lead[s], or drive[s] away the personal property of another." (§ 484, subd. (a).)
As relevant here, section 487 defines grand theft to include circumstances "[w]hen the money, . . . or personal property taken is of a value exceeding nine hundred fifty dollars ($950)" (§ 487, subd. (a)) and "[w]hen the property is taken from the person of another." (Id., subd. (c).)
In the absence of any evidence in the record of the value of the stolen property, the record does not support a conviction for grand theft. There is, however, substantial evidence in the record to support a conviction for petty theft. On this record, we conclude the proper remedy is to direct the trial court on remand to reduce the robbery conviction to a conviction on the lesser included offense of petty theft. (§ 1181(6); Navarro, supra, 40 Cal.4th at p. 681.)
We further agree with the Attorney General's argument in his supplemental letter brief that reversal of the robbery conviction for insufficient evidence does not preclude the trial court, on remand, from exercising its sentencing discretion and reconsidering its prior sentencing choices "so long as the total prison term for all affirmed counts does not exceed the original aggregate sentence." (People v. Burbine (2003) 106 Cal.App.4th 1250, 1253; see also Navarro, supra, 40 Cal.4th at p. 681.) We will therefore order the trial court to reverse the judgment and, on remand, modify the robbery conviction on count 5 to the lesser included crime of petty theft and resentence Collins under current law on all counts. We express no opinion on how the court should exercise its sentencing discretion on remand, although the new sentence may not exceed the original aggregate term of eight years and eight months.
3. False Imprisonment
Collins contends there is insufficient evidence to support his conviction for false imprisonment because the evidence failed to establish that (1) the detention lasted an appreciable length of time, and (2) the force used was greater than that reasonably necessary to effect the restraint. As argued by both parties to the jury, the false imprisonment count was based on Collins's conduct towards A.V. that occurred in the bedroom at the friends' house. We reject Collins's contention that insufficient evidence supports this conviction.
a. Applicable Law
"False imprisonment is the unlawful violation of the personal liberty of another." (§ 236.) Our Supreme Court has explained that" '[a]ny exercise of force, or express or implied threat of force, by which in fact the other person is deprived of his liberty or is compelled to remain where he does not wish to remain, or to go where he does not wish to go, is an imprisonment.'" (People v. Zilbauer (1955) 44 Cal.2d 43, 51 (Zilbauer).)
"Force is an element of both felony and misdemeanor false imprisonment. Misdemeanor false imprisonment becomes a felony only where the force used is greater than that reasonably necessary to effect the restraint." (People v. Hendrix (1992) 8 Cal.App.4th 1458, 1462 (Hendrix).) Thus, false imprisonment is punishable as a felony if it accomplished "by violence, menace, fraud, or deceit." (§ 237, subd. (a).) Violence, for purposes of felony false imprisonment, "means using physical force greater than the force reasonably necessary to restrain someone." (People v. Whitmore (2022) 80 Cal.App.5th 116, 130 (Whitmore).) Menace is "a threat of harm express or implied by words or act; an express threat or use of a deadly weapon is not required." (Ibid.)
b. Analysis
Collins raises two challenges to the sufficiency of the evidence to support the conviction for false imprisonment. Citing case law that the detention or restraint must last" 'for an appreciable length of time, however, short'" (Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, 715 (Fermino)), Collins argues there was insufficient evidence of false imprisonment because any restraint on A.V. leaving the bedroom did not last" 'for an appreciable length of time.'" He also asserts that there was insufficient evidence that A.V. was actually in fear or that the force used was more than that required to accomplish the restraint.
Collins contends that although the false imprisonment instruction did not contain a timing requirement, the California Supreme Court's decision in Fermino noted that the detention or restraint must last for an appreciable amount of time. In Fermino, the Supreme Court observed that "[t]hat length of time can be as brief as 15 minutes." (Fermino, supra, 7 Cal.4th at p. 715.) Collins compares the circumstances here to those in People v. Martinez (1984) 150 Cal.App.3d 579 (Martinez), disapproved on other grounds in People v. Hayes (1990) 52 Cal.3d 577, 628, footnote 10. In Martinez, the court observed that the victim was neither seized nor confined during the time the defendant yelled to police that he had a hostage and grabbed the victim's hair as she ran past him, and the physical contact "lasted not more than a couple of seconds, or perhaps three or four." (Martinez, at p. 598, fn. 10.) Collins contends that like in Martinez, the physical contact between Collins and A.V. "lasted just seconds," as A.V. testified that Collins "only yelled for a short while" before he grabbed her and threw her over the bed, at which point Collins's friends "immediately" came in the room and A.V. exited.
Collins also contends that the record failed to supply sufficient evidence of violence or menace to support the felony false imprisonment conviction. He argues that A.V. did not testify that she felt scared or afraid of Collins during the incident. Rather, she testified that his accusations made her feel "[u]pset" and when asked if she felt scared when Collins was coming at her, she replied, "Just felt like he was -- I don't know." Collins points out there was no evidence from which to infer A.V. was afraid because he had previously threatened or harmed her. Further, Collins claims that unlike the case of People v. Castro (2006) 138 Cal.App.4th 137, 143 (Castro), in which the defendant pulled the victim toward him causing movement beyond that required to keep her in place, there is insufficient evidence that the force Collins used was more than that which was reasonably necessary to restrain A.V.
Having considered the record and the applicable law, we decide there are ample facts from which the jury could reasonably have deduced that Collins compelled A.V. by force to remain in the room, depriving her of her liberty during that time. It is settled law that" '[a]ny exercise of force, or express or implied threat of force, by which in fact the other person is deprived of his liberty or is compelled to remain where he does not wish to remain . . . is false imprisonment.'" (Zilbauer, supra, 44 Cal.2d at p. 51.) A.V. testified that she was near the door of the bedroom when Collins "changed" and "got very aggressive," yelling and accusing her of being a "slut" and wanting to sleep with his friend. She testified that he "only yelled for a short while" before "[a]t some point he got up off the bed" and "came at [her]," to which she responded by pushing him away with both hands. Collins then grabbed her by the arms and threw her across the bed, where she landed wedged between the bed and the wall.
There is no question that the force required to throw A.V. across the bed was "greater than that reasonably necessary to effect the restraint" (Hendrix, supra, 8 Cal.App.4th at p. 1462), which Collins could have achieved by grabbing and holding her. Furthermore, while A.V. did not explicitly state that she felt afraid when Collins was yelling at her and "being aggressive," she testified that his conduct made her feel that he "didn't want [her] to go get [her] bag" and she had not opened the door yet when he grabbed her and threw her. The jury could reasonably infer from this evidence that Collins's act of yelling and getting off the bed to approach A.V. constituted "threat of harm express or implied by words or act" (Whitmore, supra, 80 Cal.App.5th at p. 130) that intimidated or prevented her from opening the door to leave as she wished to do.
Collins's attempt to distinguish his actions from those of the defendant in Castro is unavailing because in both cases, the force used against the victim was more than that reasonably necessary to restrain them. That the excess force in this case took the form of throwing A.V. across from the bed and away from the door, while in Castro the excess force took the form of pulling the victim a few steps toward the car, is inconsequential. Thus, the record contains evidence from which the jury could infer both "menace" and "violence" as defined by the jury instructions.
Collins does not assert the jury instructions were incorrect or misstated the law.
Collins's reliance on Fermino and Martinez for the proposition that the detention lasted an insufficient length of time also do not assist him here. The California Supreme Court in Fermino discussed the length of the unlawful restraint as part of a broader examination of the tort of unlawful imprisonment. (Fermino, supra, 7 Cal.4th at pp. 715-717.) The court looked to the section 236 definition of false imprisonment and observed that the tort is "identically defined." (Id. at p. 715.) The court further articulated "the tort [as] consist[ing] of the' "nonconsensual, intentional confinement of a person, without lawful privilege, for an appreciable length of time, however short" '" (ibid.) and referenced an earlier civil case in which the detention lasted only 15 minutes. (Ibid., citing Alterauge v. Los Angeles Turf Club (1950) 97 Cal.App.2d 735, 736.) The court went on to explain that a detention in the commercial context (i.e., by a merchant with probable cause to believe an individual has stolen store property) may be privileged against civil prosecution so long as the detention is "carried out for a reasonable time and in a reasonable manner." (Fermino, at p. 716; see also § 490.5, subd. (f)(1).) Similarly, the court noted that "all reasonable attempts to investigate employee theft, including employee interrogation, are a normal part of the employment relationship" (Fermino, at p. 717) and cannot be actionable as false imprisonment. (Ibid.)
At issue in Fermino was whether an employer's alleged false imprisonment of an employee fell within the scope of the "compensation bargain" and was thus barred by the exclusivity provisions of the Workers' Compensation Act. (Fermino, supra, 7 Cal.4th at p. 721.)
The high court's discussion of "an appreciable length of time" for purposes of constituting an actionable claim of false imprisonment in Fermino was closely tied to the concept of reasonableness, as is relevant to whether an employer's detention and interrogation of an employee suspected of theft falls under workers' compensation exclusivity provisions. (See Fermino, supra, 7 Cal.4th at pp. 715-717.) Given this distinct context, we decline to interpret the court's articulation of the civil tort of false imprisonment as imposing a minimum, time-based requirement for a felony conviction under section 236.
It is a well-settled principle that"' "cases are not authority for propositions not considered." '" (B.B. v. County of Los Angeles (2020) 10 Cal.5th 1, 11.) The reference in a footnote in Martinez to the physical contact between the defendant and victim lasting "not more than a couple of seconds" as he tried to obtain control by grabbing the victim's hair (Martinez, supra, 150 Cal.App.3d at p. 598, fn. 10) also does not dictate otherwise, since the focal point of that discussion was not whether the contact was for an appreciable length of time but whether the application of physical force upon the victim established seizure or confinement for purposes of kidnapping and false imprisonment if the person successfully resisted the force used. (Id. at pp. 599-600.)
Moreover, case law demonstrates that the time span of the restraint is not determinative in establishing felony or misdemeanor false imprisonment. In Castro, the defendant called to the victim from his car, then grabbed her arm as she was walking and pulled her for a few steps, toward his vehicle, before she broke away from him. (Castro, supra, 138 Cal.App.4th at pp. 140-141.) The victim in Castro testified," 'It was something in the matter of seconds. I just looked at my hand briefly, and I pulled away.'" (Id. at p. 141.) The appellate court decided the evidence that the defendant "used force to pull the victim toward his car" supported the defendant's conviction for felony false imprisonment (id. at p. 143), though the court ultimately reversed the defendant's conviction after concluding the trial court reversibly erred in failing to instruct the jury on misdemeanor as well as felony false imprisonment. (Id. at p. 144.) So, too, in People v. Babich (1993) 14 Cal.App.4th 801, the appellate court noted there was "ample" evidence to support a conviction of misdemeanor false imprisonment based on testimony that the defendant held the victim "for some period of time" with his arms. (Id. at p. 807.) According to witnesses who entered the room after hearing the defendant's and victim's voices, the defendant was pinning the victim from behind as she struggled to break free. One of the witnesses said they should call 911, and the other urged the defendant twice to let go the victim before the defendant complied. (Id. at p. 805.)
The circumstances in Castro suggest that the defendant's grabbing of and pulling the victim's arm lasted not more than a few moments. The facts in Babich suggest the defendant's restraint of the victim immediately preceded the aunt's and mother's entry into the defendant's bedroom, then lasted for some moments after as the aunt suggested to call 911 and the mother urged the defendant to release the victim. Neither case concerned the length of the detention; rather, the sufficiency of the evidence each time turned on the elements of the criminal offense. Here, we conclude that the conduct which compelled A.V. to remain in the room against her will-whether it began with Collins yelling and physically coming up to A.V., or with him grabbing her arms and throwing her across the bed-kept her in the room for a sufficient length of time to effectuate the unlawful detention proscribed by section 236.
For these reasons, we reject Collins's sufficiency of the evidence claim as to his conviction for false imprisonment.
B. Amendment of the Information
Collins contends the trial court abused its discretion in granting the prosecutor's motion to amend the information to add the phone to the robbery charge after the prosecution had rested and the defense had filed a motion for acquittal under section 1118.1. The Attorney General responds that the amendment was proper under section 1009 because the evidence elicited at the preliminary hearing supported the amendment, which did not prejudice Collins's substantial rights.
1. Applicable Law
"An information may be amended 'for any defect or insufficiency, at any stage of the proceedings,' so long as the amended information does not 'charge an offense not shown by the evidence taken at the preliminary examination.' (§ 1009.) 'If the substantial rights of the defendant would be prejudiced by the amendment, a reasonable postponement not longer than the ends of justice require may be granted.' [Citation.] If there is no prejudice, an amendment may be granted 'up to and including the close of trial.'" (People v. Goolsby (2015) 62 Cal.4th 360, 367-368 (Goolsby).) "The court has broad discretion to deny leave to amend, and must do so if the amendment would prejudice the defendant's substantial rights." (People v. Birks (1998) 19 Cal.4th 108, 129.)
We review the trial court's decision to permit an amendment for abuse of discretion. (People v. Miralrio (2008) 167 Cal.App.4th 448, 458; People v. Arevalo-Iraheta (2011) 193 Cal.App.4th 1574, 1581.)
2. Additional Background and Procedural History
A.V. testified at a November 2019 preliminary hearing regarding the March incident that included the robbery charge. She testified that after the second occasion that Collins punched her, she "[a]t some point" tried to take a picture of her face, and once she took the picture, he took the phone and threw it out the window, then he grabbed her wallet and threw it out the window. A.V. did not know how long they had driven from the friends' house to the point where they stopped again and Collins grabbed the phone and wallet. She testified that it was dark outside and she did not see where he had thrown them. On cross-examination, she reiterated that Collins had stopped the car, taken her phone and wallet, and thrown them out the driver's window which was open. She explained that Collins did not try to stop her from getting out of the car afterward or from looking for her phone and wallet. She testified "The only thing preventing me was the fact that I had no visibility whatsoever of where my stuff actually was."
At the conclusion of the presentation of evidence, the trial court questioned the prosecution about the robbery charge, including whether sufficient evidence supported the element of force or fear to take the property or to prevent the person from resisting. After hearing argument from both sides, in which defense counsel asserted there was no "nexus" between the prior assaultive behavior (in the driveway and at some point while driving) and the force or fear element of the robbery count, the court stated it did not believe there was a sufficient record of force. After additional argument, the court concluded it was not satisfied the prosecution had shown sufficient evidence of a robbery and questioned whether it could be "some other crime" such as dissuading a witness. The court declined to make a finding of probable cause as to the robbery count.
Following the November 2019 preliminary hearing, the robbery charge remained as pleaded. The following month, Collins moved to dismiss the robbery charge pursuant to section 995 based on insufficient evidence of force in the taking of the phone or wallet. However, the record on appeal contains no record of a hearing or ruling on the section 995 motion.
On appeal, Collins does not challenge retention of the robbery count following the preliminary hearing. The Attorney General acknowledges that Collins does not appeal on this issue but nevertheless contends the People were entitled to retain the charge. As Collins does not on appeal argue error on this point, we do not address it further.
We agree with the Attorney General that if the section 995 motion to dismiss the robbery charge were adjudicated, we may infer from the prosecution of the robbery charge at trial that it was unsuccessful.
At trial, after the close of the prosecution's case, defense counsel filed a written motion for acquittal under section 1118.1 of the robbery count charged in count 5. Counsel argued that the evidence showed Collins lacked the intent to permanently deprive A.V. of the wallet, which he had impulsively thrown out the car window without use of force or fear, as the wallet "was not being held by the alleged victim and there was no struggle for it." The prosecutor opposed the motion, arguing there was sufficient evidence that A.V. was placed in fear when Collins took her wallet immediately after having snatched the phone and given "the entire context of the night." The prosecutor also asked "to include the phone within [c]ount 5 as well, because I think the evidence supports a taking of the phone also." The prosecutor argued that amendment was proper under section 1009 based on proof presented at trial. She further argued that because the jury had not viewed the information, jurors would not "have in their minds that the robbery is only in relation to the wallet."
Defense counsel objected to the proposed amendment, stating that the complaint and information had always indicated the wallet as the object of the robbery. Counsel argued that the complaint and information put Collins on notice that the charge under section 211 "pertained to the wallet" belonging to A.V., which "ha[d] been the People's theory throughout the pendency of the case." Defense counsel argued that after "over a year" of making the wallet the issue, the prosecution was attempting to "bootstrap[]" or get around Collins's motion to acquit for insufficient evidence as to the robbery count by orally amending to add the phone, with "obvious[] . . . great prejudice to Mr. Collins."
The trial court denied the motion for an acquittal based on the robbery of the wallet and stated it was "a question for the jury" to decide if all of the elements were met. Regarding the oral amendment to add the phone, the court initially denied the request. It explained that although it appeared that both parties "viewed the phone as an aspect of the robbery charge" and "a significant number of questions were asked about the phone," it was "quite late . . . after close of evidence" and following a preliminary hearing and significant motion practice related to the robbery charge. The trial court reiterated its decision after additional argument, in which the prosecutor asserted that the requested amendment would not amount to "changing the nature of the charge," given that the evidence pertaining to the phone and wallet "came out kind of part and parcel of one another." The court acknowledged "the evidence regarding the wallet and the phone [was] pretty close" but denied the motion based on its late timing and because it was "just one step beyond" what appeared to be permissible based on case law, which was "more a reorganization of the Complaint to conform with the law, . . . rather than adding new things."
The next day, however, after considering additional points raised by the prosecutor, the trial court reversed its initial decision and permitted the amendment. The court explained that after reflecting further on the record in the case, given the "extensive examination" and cross-examination at trial regarding the phone and history of discussion related to the phone in pretrial proceedings, it believed there was no prejudice to Collins in allowing the amendment and that legal authority supported granting the amendment.
Defense counsel objected, stating "I will note that my 1118.1 motion makes it clear that I had anticipated that this would be an issue and that I made certain tactical decisions asking questions about the [phone]." Defense counsel moved for a mistrial based on the granting of the amendment. The trial court denied the mistrial motion. The trial court permitted the amendment and added a unanimity instruction specifically directed to the robbery charge and lesser included offenses. Both parties incorporated the amendment into their closing arguments by addressing the robbery charge in relation to the phone as well as the wallet.
3. Analysis
Collins acknowledges that the testimony at the preliminary hearing referenced the taking of the phone just before the taking of the wallet and that the preliminary examination suggested "the phone was part of the incident [and] was not completely separate from the taking of the wallet." He contends the trial court nevertheless abused its discretion in permitting the amendment more than a year later, only after the defense moved for an acquittal, highlighting the weak and arguably insufficient evidence supporting the robbery count. He claims that the prosecutor's oral request "seemed hastily made after the section 1118.1 motion was argued" and diverged from the prosecutor's prior, consistent position "that it was prosecuting only the robbery of the wallet." Collins asserts that the amendment provided him "very late notice" that the robbery count also included the phone.
It is true that the prosecution in this case had ample opportunity to seek amendment sooner. But Collins has not shown that the late request to orally amend the information in any way limited or prejudiced his defense. (Goolsby, supra, 62 Cal.4th at p. 368.) As the Attorney General points out, and Collins acknowledges, evidence concerning the taking of the phone was extensively elicited both at the preliminary hearing and at trial. A.V. testified at the preliminary hearing that Collins took her phone and threw it out the window immediately before he took her wallet. The preliminary hearing testimony established that the taking of the phone and the wallet occurred quickly as part of the same sequence of conduct. The prosecutor moreover pointed to the evidence regarding the phone as support for the argument that there was sufficient evidence of force or fear in the taking of the wallet.
Collins does not explain in what way this evidence fails to meet the standard under section 1009 authorizing permissive amendment of the information where the charge is "shown by the evidence taken at the preliminary examination." (§ 1009.) Our review of the record confirms that the evidence underlying the addition of the phone to the robbery count was both" 'supported by the actual evidence at the preliminary hearing'" (People v. Superior Court (Mendella) (1983) 33 Cal.3d 754, 764, superseded by statute on other grounds as stated in In re Jovan B. (1993) 6 Cal.4th 801, 814, fn. 8) and" 'transactionally related to the crimes for which the defendant ha[d] previously been held to answer.'" (Mendella, at p.764.)
Nor does Collins cite any authority to support his position that the amendment here violated his right to fair and timely notice of the charge. (See Goolsby, supra, 62 Cal.4th at p. 368.) We therefore agree with the Attorney General that the evidence adduced at the preliminary hearing was adequate to satisfy the notice requirements of the robbery charge, even including the addition of the phone at the close of the prosecution's case as an additional or alternative basis for the charge. We conclude the trial court did not abuse its discretion in allowing the amendment.
C. Motion to Strike the Prior Strike Offense
Collins contends the trial court's denial of his Romero motion was an abuse of discretion in light of the undisputed and unresolved history of childhood trauma, his related substance abuse problems, and his positive efforts to address his substance abuse and anger management issues through counseling and other programs.
1. Applicable Law
Section 1385, subdivision (a) (hereafter, section 1385(a)) permits dismissal of an action "in furtherance of justice." (§ 1385(a).) In Romero, the California Supreme Court held that a trial court has discretion under section 1385(a), to dismiss a prior conviction alleged under the Three Strikes law. (§ 1385(a); Romero, supra, 13 Cal.4th 497, 529530.) That discretion "is limited" and "must proceed in strict compliance with section 1385(a)." (Romero, at p. 530.)
In exercising its discretion under section 1385(a) and Romero, the court must consider whether "in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161 (Williams).)
We review the denial of a motion to dismiss a strike allegation for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 374 (Carmony).) "Abuse of discretion in failing to strike a prior conviction occurs in limited circumstances: where the trial court is not aware of its discretion; where the trial court considers impermissible factors; or where applying the Three Strikes law would produce an arbitrary, capricious, or patently absurd result under the specific facts of a particular case." (People v. Dryden (2021) 60 Cal.App.5th 1007, 1029 (Dryden).)
2. Additional Background and Procedural History
In 2007, Collins suffered a prior strike conviction for assault with the intent to commit rape (§ 220), stemming from an incident in 2006 when Collins was 20 years old. The offense involved Collins and a male colleague, who together gave liquor to the 17-year-old victim and repeatedly dared her to drink. Collins sexually assaulted her as she began to experience blackouts from high level of intoxication.
After the jury reached its verdicts in this case, it submitted a statement to the trial court, which the judge shared with the parties after dismissing the jury. The statement expressed compassion for Collins and the jurors' hope that his sentence "would include a means to address that pain" which Collins might be suffering.
The jurors' note to the court stated: "We don't know if a statement by the jury is allowed, but if so: Your honor, as fellow humans, we know that when we behave inappropriately it often stems from pain we have experienced in our lives. We would hope that Mr. Collins' sentencing would include a means to address that pain, so that when he is released, his life can start a new path that includes peace within himself and the chance for a healthy, loving relationship."
Prior to sentencing, Collins filed a written motion to dismiss the strike prior under section 1385. He asked the trial court to consider his significant childhood trauma, history of substance abuse and mental health condition, and need for long-term treatment for purposes of any discretionary sentencing decisions, including the Romero motion. Collins asked the court to exercise its discretion to dismiss his prior strike conviction from 2007, noting that he was 20 years old at the time of the offense and had suffered no felony convictions in the intervening 13 years up until the present offenses. Collins claimed that he did not cite his childhood trauma and lifetime struggle with substance abuse to excuse his behavior but to demonstrate the influence of these untreated conditions on his past behavior. He pointed to evidence suggesting that he had been under the influence of alcohol during his prior and current offenses, and although he had not previously succeeded in treatment that had been available to him, he had demonstrated during his current incarceration a commitment to participating in the available programming. He stated his "greatest wish" was to be able to participate in mental health treatment court and be connected to intensive, inpatient treatment to address both his substance abuse and mental health issues.
In support of his Romero motion, Collins submitted a memorandum from a "[m]aster level" social work intern with the public defender, who reported on the significant, unresolved trauma due to physical abuse Collins had suffered as a child, exposure to domestic violence, sexual abuse at the hands of a family member, and dependence from a young age on alcohol and other drugs. Collins also submitted a certificate of completion for a voluntary, 12-week anger management and substance abuse program which he had completed while in jail on the current offenses, as well as a letter of support from a friend of 25 years who described Collins's support and friendship of him and his daughters. According to the probation report, Collins had been employed up until the time of his current offenses.
At the sentencing hearing, the trial court heard argument on Collins's Romero motion. Collins's defense counsel reiterated the history set forth in the papers and emphasized that while it did not excuse Collins's behavior towards A.V., it was significant that Collins had never been treated for the abuse or for his serious problem with alcohol, which played a major role in his offenses. Counsel argued that incarceration would not address these needs, but if the court granted probation, Collins had an offer for stable housing, could be connected with programming, would have a significant suspended sentence, and was willing to waive the significant number of custody credits he had already accumulated.
Collins also addressed the court directly. He described the setbacks he had faced as a young man, his struggle with depression and alcoholism, his prior failure to recognize that he had a problem, and his recent efforts to make positive changes. A friend and former employer of Collins also made a statement in support of Collins.
The prosecutor noted Collins's difficult past but argued that Collins had not taken advantage of prior opportunities to address his underlying issues of childhood trauma and alcohol abuse and, moreover, had continued to inflict harm on his intimate partners, culminating in this case in significant injuries and trauma to A.V. The prosecutor also pointed to statements in the probation report, which indicated that Collins had engaged in rationalizing and minimizing his actions, and included "nine prior domestic violence convictions over five separate incidents, as well as the seriousness of these charges that were presented to the court during trial and that the jury found to be true." The prosecutor asked the court to consider Collins's history of domestic violence and reminded the court that A.V. had expressed concern for her safety if Collins were to be released.
The trial court acknowledged the issues raised by Collins and noted Collins's courage in addressing the court and speaking about the traumas he had suffered. It recognized Collins's process of reflection and his conviction to change but ultimately found that he did not meet the standard for probation or to strike the prior strike conviction. The court noted that Collins was on "a recent grant" of probation at the time of the current offenses. Regarding the Romero motion, the court observed that although the prior strike was not technically a crime of domestic violence, it involved "a power and control situation with someone that [Collins] took advantage of." The court stated that while Collins was "quite young" at the time of the prior strike offense, he next got into a serious relationship with the mother of his child and had "case after case" with her, some of which were "quite minor" and others "less minor," followed by the current offenses while he was on probation for one of the priors. The court concluded that the pattern of offenses "doesn't fit the standard" to grant a Romero and denied Collins's motion.
As summarized ante in the procedural background, the trial court sentenced Collins to a total prison term of eight years and eight months based on the low term of two years (doubled to four years due to the prior strike) on count 3 and imposed consecutive sentences of one-third the midterm, doubled, for a term of 16 months on counts 1 and 4, and two years on count 5. The court struck the punishment for the great bodily injury enhancement attached to count 3 (§ 12022.7, subd. (e)) and the five-year prison term enhancement (§ 667, subd. (a)(1)).
3. Analysis
Collins argues that while the trial court's imposition of the lower term on the principal count and striking of the punishments for the great bodily injury and prior prison enhancements reflected its consideration of mitigating factors, it was an abuse of discretion for the court to not grant the Romero motion based on similar considerations. Collins cites his personal history, which included physical, sexual, and emotional abuse, his young age at the time of the prior strike offense, his mental health struggles with depression and attempted suicide, his recent insight into the causes of his criminal conduct, and his determination to engage in meaningful rehabilitation to address the mental health and substance abuse issues. Collins argues that, by declining to grant the Romero motion, the trial court denied Collins the opportunity to receive the professional help he urgently needs to treat the underlying causes of his behavior.
Collins relies on the guidance set forth by the Supreme Court in Carmony in support of his contention that the trial court abused its discretion under these circumstances. He also cites this court's decision concerning the defendant's Romero motion in Dryden, in which this court concluded that the denial of the defendant's motion to strike any of his prior convictions under section 1385 was an abuse of discretion because the resulting sentence was "so out of proportion to the offenses." (Dryden, supra, 60 Cal.App.5th at p. 1013.) Having carefully considered these authorities and the record of before us, we conclude the trial court did not abuse its discretion here.
The Supreme Court in Carmony reviewed the fundamental precepts guiding abuse of discretion review as it applies to the application of section 1385. First, in the absence of a showing by the defendant that the sentencing decision was irrational or arbitrary,"' "the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review." '" (Carmony, supra, 33 Cal.4th at pp. 376-377.) Second, the reviewing court may not substitute its judgment for that of the trial judge"' "merely because reasonable people might disagree." '" (Id. at p. 377.) "Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (Ibid.)
Such is not the situation in this case. The trial court's sentencing decision, including its denial of Collins's Romero motion, reflected careful attention to the factors relevant to a motion to dismiss a prior strike conviction under section 1385. As the high court in Carmony explained, these factors must be considered in context of the Three Strikes law." '[T]he Three Strikes initiative, as well as the legislative act embodying its terms, was intended to restrict courts' discretion in sentencing repeat offenders.' [Citation.] To achieve this end, 'the Three Strikes law does not offer a discretionary sentencing choice, as do other sentencing laws, but establishes a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike, unless the sentencing court "conclud[es] that an exception to the scheme should be made because, for articulable reasons which can withstand scrutiny for abuse, this defendant should be treated as though he actually fell outside the Three Strikes scheme." '" (Carmony, supra, 33 Cal.4th at p. 377.)
To obtain treatment "in furtherance of justice" (§ 1385) outside the Three Strikes sentencing scheme depends upon "whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (Williams, supra, 17 Cal.4th at p. 161; accord, Carmony, supra, 33 Cal.4th at p. 377.)
The trial court engaged on the record in a balanced assessment of Collins's background, character, and prospects. The court found that while Collins's recent insight into the need to obtain intensive therapy and treatment was promising, it could not ignore the "very concerning" evidence of past "victim-blaming and trying to decrease [his] own responsibility and explain away the injuries" he had caused. The trial court also addressed the nature and circumstances of Collins's present felonies and prior serious and violent felony conviction, noting there appeared to be "a continuum" in which Collins repeatedly engaged in acts of violence and aggression during the intervening years after his strike prior and while on prior grants of probation. Although Collins was not convicted of any felony offenses during those intervening years, it was not unreasonable for the court to find that the offenses Collins committed against the mother of his child represented a continuum of misconduct against the women he dated, culminating in the multiple felony offenses against A.V. As compared to these offenses, Collins's prior strike conviction was not so remote in time or nature as to render the trial court's decision not to strike it "so irrational or arbitrary that no reasonable person could agree with it." (Carmony, supra, 33 Cal.4th at p. 377.)
The circumstances here are distinguishable from Dryden. In that case, a jury convicted the defendant of two counts of assault with a deadly weapon, and the trial court sentenced him under the Three Strikes law to 25 years to life, consecutive to 15 years. (Dryden, supra, 60 Cal.App.5th at p. 1013.) In considering whether the trial court in Dryden abused its discretion in denying the defendant any relief under section 1385 from his three prior strike convictions, this court recognized that mere "disagreement with the trial court's weighing of proper factors (as distinct from the trial court's reliance on improper factors in the weighing process) [would] not constitute an abuse of discretion." (Id. at p. 1029.) After reviewing the nature and age of the prior strikes, the defendant's mental health history, the unusual circumstances of the newly charged offenses, and the imposition of "de facto life imprisonment" based on the defendant's age when sentenced, this court determined that Dryden presented "that rare instance of an absurd result under the Three Strikes law that goes beyond mere disagreement with the trial court's decision." (Id. at p. 1031.)
Apart from the defendant's" 'history of homelessness, mental health issues, and alcoholism [which] most likely contributed to his actions'" (Dryden, supra, 60 Cal.App.5th at p. 1031), this case bears little similarity to Dryden. Unlike in Dryden, we cannot say based on the record of Collins's past and present offenses that his criminal conduct in March and April 2019 was significantly dissimilar from the prior strike, nor that it was the result of a "spontaneous altercation" distinguishable from his prior pattern of offenses and unlikely to reoccur. (Cf. Dryden, at pp. 1030, 1031.)
Considering the legal authorities, and all the evidence and circumstances in this case, we decide the trial court did not abuse its discretion in rejecting Collins's request to grant his Romero motion.
D. Abstract of Judgment
Collins requests, and the Attorney General agrees, that the abstract of judgment should be amended to correct two clerical errors. Although we recognize that our vacatur of the robbery count requires the trial court to resentence Collins and prepare a new abstract, for the benefit of the trial court on remand, we note several errors in the existing abstract.
The trial court orally pronounced judgment as follows: "Probation is denied. And you are committed to the California Department of Corrections and Rehabilitation for a period of eight years and eight months. That would be the low term on [c]ount 3 of four years. Punishment for the [section] 12022.7[, subd.] (e) enhancement is stricken. [¶] 16 months on [c]ount 1, which is - - [¶] One-third the mid. [¶] . . . [¶] [] And one-third the mid on [c]ount 4, 16 months. And one-third the mid on [c]ount 5, two years, all consecutive. And the punishment for [section] 667[, subd.] (a)(1) is stricken."
The trial court's rejection of the Romero motion and pronouncement of the "low term" for count 3 as "four years" indicates that the court selected the lower term of two years and then doubled it for the strike offense, for a total of four years. However, the "[t]erm" column of the abstract of judgment reflects a "U" for upper term rather than a "L" for lower term. Also, the abstract of judgment does not list the great bodily injury allegation (§ 12022.7, subd. (e)) attached to count 3, which the trial court struck in its oral pronouncement.
III. DISPOSITION
The judgment is reversed. On remand, the trial court is directed to modify the conviction on count 5 from a conviction of robbery to a conviction of the lesser included crime of petty theft and to resentence Collins on all counts under current law to reflect the modified conviction on count 5. In all other respects, Collins's convictions are affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Lie, J.