Opinion
G053944
01-30-2018
THE PEOPLE, Plaintiff and Respondent, v. ANTONIO VINCENT DIXON, Defendant and Appellant.
Stephanie M. Adraktas, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15WF2635) OPINION Appeal from a judgment of the Superior Court of Orange County, Cheri T. Pham, Judge. Affirmed in part and reversed in part. Stephanie M. Adraktas, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
Antonio Vincent Dixon was charged in an information with two counts of robbery (Pen. Code, § 211). The information also alleged he suffered a prior "strike" conviction (§§ 667, subds. (d), (e)(1), 1170.12, subds. (b), (c)(1)), a prior serious felony conviction (§ 667, subd. (a)(1)), and served three prior terms in state prison. The jury convicted Dixon of the robbery charged in count 1 and acquitted Dixon of the robbery charged in count 2, but convicted him of petty theft (§§ 484, subd. (a), 488; a misdemeanor) and attempted robbery (§§ 664, subd. (a), 211, 212.5, subd. (c)) as lesser included offenses of the robbery charged in count 2. Dixon thereafter admitted the prior conviction and state prison allegations.
All undesignated statutory references are to the Penal Code unless otherwise stated.
The court struck the prior strike allegation for sentencing purposes pursuant to section 1385 and sentenced Dixon to two years on the count one robbery. The court imposed a consecutive five-year term for the prior serious felony conviction. The court struck two of the prior state prison term enhancements for purposes of sentencing, and found one did not apply because it was for the same offense that resulted in the prior serious felony conviction enhancement. (See People v. Jones (1993) 5 Cal.4th 1142 [term may not be imposed on a section 667.5, subdivision (b) prior when the same offense is the basis for imposing a prior serious felony conviction enhancement].)
Dixon contends the evidence does not support his conviction for robbery, the court prejudicially erred in instructing the jury after the jury stated it could not reach a verdict on the robbery charges, trial counsel was ineffective for failing to object to the trial court's order directing the jury to deliberate further, and the petty theft conviction must be vacated because theft is a lesser included offense of the robbery for which he was convicted. We agree with the last contention, will vacate Dixon's conviction for petty theft, and affirm the judgment as modified.
FACTS
On December 4, 2015, Walmart loss prevention officer Samuel Jaimes saw Dixon in the Westminster Walmart at approximately 5:45 p.m. Dixon had a backpack and "looked pretty nervous." In the sporting goods section, Dixon placed some car wash items into his shopping cart. He then "went over two aisles," removed the car wash items from his shopping cart, and placed them into his backpack. Jaines informed his partner and boss, Murphy Cooper, via cell phone what he observed. Dixon left the store through the garden section exit, passing cashiers without attempting to pay for the items in his backpack. Cooper was already outside Walmart.
Once Dixon was outside of Walmart, Cooper and Jaimes approached him. Jaimes identified himself as a Walmart loss prevention officer. He requested Dixon return to the store and give back the items taken. Dixon kept walking and said he was not going to return to the store. He ran and Jaimes gave chase. Cooper did not. Dixon stopped, turned around, reached into his waistband, withdrew his hand, and extended his arm, pointing his fingers at Jaimes, as if he had a gun, and made shooting noises. Jaimes, who was at least 10 feet away from Dixon, ducked. He thought Dixon had a gun. Dixon went to the street and started throwing merchandise on the ground. Jaimes did not give chase because he still thought Dixon might have a gun. Dixon had abandoned some of the items even before he made the gun motion with his hand.
A video of the confrontation in the parking lot was played for the jury. The video corroborated Jaimes's testimony that he ducked when Dixon withdrew his hand from his waistband and pointed it at Jaimes. Cooper testified he was afraid when he thought Dixon had a gun and said, "I'm going to shoot you."
The defense played the 911 call by Cooper. During the call, Cooper said the shoplifter was running away and that he saw him simulate a gun. Cooper laughed while making the call. The first time was when he related that Dixon said "bang, bang," after withdrawing his hand from his waistband, as if he had a gun. The second time was when he saw police arrest Dixon.
All the stolen property was recovered. Some of it was returned by the officers who apprehended Dixon. The value of the property stolen was $28.12.
DISCUSSION
1. Sufficiency of the Evidence
Dixon contends the evidence is insufficient to sustain his conviction for robbery on count 1. In reviewing a sufficiency of the evidence claim, an appellate court's obligation is to view "'the evidence in the light most favorable to the prosecution'" and determine whether "'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" (People .v Johnson (1980) 26 Cal.3d 557, 576, quoting Jackson v. Virginia (1979) 443 U.S. 307, 318-319.) For the evidence to support the challenged conviction, the evidence must be "'of ponderable legal significance . . . reasonable in nature, credible, and of solid value.' [Citations.]" (Ibid.)
Jaimes was named as the victim in count 1 and Cooper was named as the victim in the robbery charged in count 2.
Theft is the taking possession of another's property with the intent to steal it and carrying the property away. (People v. Kaufman (2017) 17 Cal.App.5th 370, 382.) Although the slightest movement satisfies the asportation element of theft, the theft continues until the thief reaches a place of temporary safety. (People v. Gomez (2008) 43 Cal.4th 249, 254-255.) Robbery is the taking of property from the person of another, "and against his will, accomplished by means of force or fear." (§ 211.) Thus, robbery is an aggravated form of larceny. (Gomez, at p. 254.)
In the present case, Dixon took the car wash supplies from a shelf inside Walmart and put them into his shopping cart. By then secreting the items into his backpack and walking out of the store without paying for them, Dixon committed larceny. He took the property of another and moved it with the intent to deprive Walmart of the property. Because larceny is a continuing crime due to its asportation element, "a defendant who uses force or fear in an attempt to escape with property taken by larceny has committed robbery. [Citations.]" (People v. Williams (2013) 57 Cal.4th 776, 787.)
Jaimes testified he followed Dixon to apprehend him and return him to the store so the stolen property could be recovered. He also testified that after Dixon feigned a gun, he (Jaimes) gave up the attempt to apprehend Dixon because he believed Dixon had a gun. This evidence supports Dixon's conviction for robbery on count 1. Dixon took property from Walmart and Jaimes was precluded from recovering the property because he was afraid Dixon had a gun.
A shoplifter who takes property from a store, is confronted by security outside the store, abandons all the property taken and then uses force or instills fear in security as a means of escaping without the property, has not committed a robbery because the use of force or fear was not for the purpose of taking or retaining the property. (See People v. Cooper (1991) 53 Cal.3d 1158, 1165, fn. 8 [the use of force or "while carrying away the loot" turns a theft into a robbery].)
Dixon argues his feigning a gun and threatening Jaimes (and Cooper) did not permit him to retain the property he took from inside the store. He insists "there was simply no evidence that Jaimes's momentary fear caused him to desist from his pursuit of Dixon such that Dixon was able to retain the car wash supplies." In support of his position, he points out that all the items were eventually recovered.
There are two reasons why his reasoning is unconvincing. First, Jaimes pursued Dixon to return him to the store so the stolen property could be recovered. Jaimes only ended his pursuit when Dixon made a motion to his waistband as if he had a gun, and said he had a gun. Jaimes said he abandoned his chase because he thought Dixon had a gun.
Second, Dixon's claim that all the property was recovered by Walmart proves nothing. Granted, Dixon abandoned some of the loot after causing fear in Jaimes by feigning a gun. Although all the property was ultimately recovered, some of the property was returned by the police officer who apprehended Dixon.
Absent evidence all the property returned was picked up off the street by the police officer, the jury was entitled to infer Dixon still had some of the stolen property on him when arrested. That being the case, we cannot say the jury improperly found Dixon used force or fear to retain some of the stolen property.
Dixon's reliance on People v. Mungia (1991) 234 Cal.App.3d 1703 (Mungia), is misplaced. In Mungia, the victim and her 5-year-old daughter were returning to the victim's vehicle in the parking lot after shopping in Kmart. The defendant shoved the victim and removed her purse from her shoulder. (Id. at p. 1706.) The victim, who also happened to be eight months pregnant, gave chase. (Ibid.) She was unable to regain possession of her purse, but she saw the getaway car the defendant jumped into, and noted his clothing and physical characteristics, as well as details about the getaway vehicle, including its license number. (Id. at pp. 1706-1707.) The police quickly found the vehicle and the defendant, whom the victim identified. (Id. at p. 1707.)
The appellate court affirmed the robbery conviction in Mungia. (Mungia, supra, 234 Cal.App.4th at p. 1710.) However, the court found there was no evidence to support a conclusion the taking was by way of fear, as opposed to by force. (Id. at p. 1709, fn. 2.) The court noted the victim did not know of the defendant's approach before she had been pushed and her purse taken. (Ibid.)
Dixon contends that here, as in Mungia, there is no evidence he used fear to steal. We disagree. In the present case, Jaimes, like the victim in Mungia, gave chase. (Mungia, supra, 234 Cal.App.4th at p. 1706.) Unlike in Mungia, however, Jaimes's chase ended prematurely because Dixon feigned having a gun. Jaimes testified he stopped his pursuit of Dixon because he feared Dixon had a gun. In contrast, the pursuit of the victim in Mungia ended only because the defendant got into a getaway car and left the scene. (Id. at pp. 1706-1707.) Therefore, Mungia is inapposite.
Dixon makes much of the fact that Cooper did not believe he had a gun. However, it must be remembered Dixon was charged with two counts of robbery—one in which Jaimes was named as the victim, and one in which Cooper was named as the victim. It seems the reason the jury acquitted Dixon of the robbery charge wherein Cooper was named as a victim (count 2) and found Dixon guilty of attempted robbery, as a lesser included offense, is because Cooper laughed about Dixon's gun threat.
2. Further Deliberations After The Jury Stated it Was Unable to Reach a Verdict
After deliberating approximately two hours, the jury sent a note to the trial court stating, "If we are hung on robbery, if we are hung on attempt, and it's 12 to 0 for theft, what do we do?" Both counsel agreed with the court's intended course of action: to reinstruct the jury that it cannot reach a conclusion on a lesser included offense until such time as they have agreed Dixon is not guilty of the greater offense, and to read the jury an instruction on further deliberations. The trial court gave both counsel a copy of the proposed further deliberation instruction. The court also reinstructed the jury pursuant to CALCRIM No. 3517 (deliberation when lesser included offense is not separately charged). Approximately 40 minutes later, the jury reached its verdicts. As stated above, the jury found Dixon guilty of the robbery charged in count 1, not guilty of the robbery charged in count 2, and guilty of attempted robbery and petty theft as lesser included offenses of the robbery charged in count 2.
Dixon argues the court erred in sending the jury back to continue its deliberations without first having determined whether further deliberations would prove helpful. This argument, however, was not preserved because defense counsel expressly agreed to the court's course of action. (People v. Virgil (2011) 51 Cal.4th 1210, 1260 [failure to object to instruction forfeits issue].) Still, section 1259 provides in pertinent part: "The appellate court may also review any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby." This requires us to determine whether, objection or not, Dixon's substantial rights were affected by the court's further deliberation instructions.
Dixon maintains the trial court erred in providing the following instructions to the jury. "Ladies and Gentlemen, I have further instructions and directions to give you as to this case. It has been my experience on more than one occasion that a jury which initially reported it was unable to reach a verdict was ultimately able to arrive at verdicts on one or more of the counts before it. [¶] To assist your further deliberations, I'm going to further instruct you as follows: Your goal as jurors should be to reach a fair and impartial verdict if you are able to do so based solely on the evidence presented and without regard for the consequences of your verdict, regardless of how long it takes to do so. [¶] It is your duty as jurors to carefully consider, weigh, and evaluate all of the evidence presented at the trial, to discuss your views regarding the evidence, and to listen to and consider the views of your fellow jurors. In the course of your further deliberations you should not hesitate to reexamine your own views or to request your fellow jurors to re-examine theirs. You should not hesitate to change a view you once held if you are convinced it is wrong or to suggest other jurors change their views if you are convinced they are wrong.
"Fair and effective jury deliberations require a frank and forthright exchange of views. As I previously instructed you each of you must decide the case for yourself, and you should do so only after a full and complete consideration of all of the evidence with your fellow jurors. It is your duty as jurors to deliberate with the goal of arriving at a verdict on the charge if you can do so without violence to your individual judgment. Both the People and [Dixon] are entitled to the individual judgment of each juror.
"As I previously instructed you, you have the absolute discretion to conduct your deliberations in any way you deem appropriate.
"May I suggest that since you have not been able to arrive at a verdict using the methods that you have chosen, that you consider to change the methods you have been following at least temporarily and try new methods.
"For example, you may wish to consider having different jurors lead the discussions for a period of time, or you may wish to experiment with reverse role-playing by having those on one side of an issue present and argue the other side's position and vice versa. This might enable you to better understand the others' positions.
"By suggesting you should consider changing in your methods of deliberations I want to stress I am not dictating or instructing you as to how to conduct your deliberations. I merely find you may find it productive to do whatever is necessary to ensure each juror has a full and fair opportunity to express his or her views and consider and understand the views of the other jurors."
The court then directed the jury to return to its deliberations. "I apologize, but I'm going to have to send you back to deliberate a little longer."
"Except as provided by law, the jury cannot be discharged after the cause is submitted to them until they have agreed upon their verdict and rendered it in open court, unless by consent of both parties, entered upon the minutes, or unless, at the expiration of such time as the court may deem proper, it satisfactorily appears that there is no reasonable probability that the jury can agree." (§ 1140.) "[W]hether there is a reasonable probability of agreement rests in the sound discretion of the trial court. [Citations.]" (People v. Miller (1990) 50 Cal.3d 954, 994.)
At the time the jury informed the court it was unable to reach a verdict on robbery, the jury had only been deliberating for two hours. While we do not hold a two hour deliberation can never lead a court to conclude it is reasonably probable the jury cannot agree on a verdict, given the facts of this case, a reasonable judge would likely conclude further deliberations would prove fruitful. This was not a typical Estes robbery, where the defendant fights with security or produces a weapon in an effort to put an end to security's desire to continue the chase. Here, Dixon feigned having a weapon and he abandoned some of the property taken from Walmart. The trial court did not err in concluding the jury should deliberate "a little longer."
People v. Estes (1983) 147 Cal.App.3d 23.
Dixon asserts the holdout juror or jurors "must have . . . perceived" the court's direction to deliberate further as a directive to defer to the majority of the jury on the robbery charges. He does not, however, point to any phrase or sentence in the instructions that could have that effect on the hold out jurors' minds. Nor does our review identify any offensive phrase or sentence. The instruction merely suggested a means of conducting deliberations to make sure each juror's viewpoint is understood by the other jurors.
Dixon hangs his hat on the fact that the court did not inquire of the jurors whether they felt further deliberations would be beneficial. As we have already stated, the short duration of the deliberations, together with the unique facts presented, made it reasonably appear further deliberations might prove beneficial. Thus, failure to inquire of the jury did not render the trial court's decision erroneous.
Dixon also contends the jury returned inconsistent verdicts after being given the supplemental instructions and that proves the further deliberation instructions were coercive. Dixon's premise is flawed. The jury did not return inconsistent verdicts. The guilty verdict on the count 1 robbery and the not guilty on the count 2 robbery, coupled with the jury finding Dixon guilty of attempted robbery as a lesser included offense were all based on the same acts by Dixon, but they are not inconsistent verdicts. Again, Jaimes testified he became afraid when Dixon feigned having a gun, and he gave up chasing Dixon because of that fear. Cooper, on the other hand, also saw Dixon feign having a gun, but he also saw it was just a feign. The jury was entitled to infer from Cooper laughing during the 911 call that he was not afraid of Dixon.
Jaimes giving up the chase because Dixon made him believe he (Dixon) was armed supplied the "force" element of robbery as to count 1. Because Cooper realized Dixon was not armed and only pointed his finger at them, the jury apparently found the fear element was missing from the robbery charged in count 2, wherein Cooper was alleged as the victim. Thus, the attempted robbery verdict on count 2.
The trial court did not in any way coerce the jury to reach a verdict. The further deliberation instructions did not direct the minority jurors to rethink their position in light of the majority's views (see People v. Gainer (1977) 19 Cal.3d 835, 845, 848, disapproved on another ground in People v. Valdez (2012) 55 Cal.4th 82, 163), nor did they state or imply a failure to reach a verdict will require a retrial. (Gainer, at pp. 851-852.) Moreover, "where, as here, defense counsel does not object to a supplemental instruction, 'such an omission indicates that the potential for coercion argued now was not apparent to one on the spot.'" (People v. Whaley (2007) 152 Cal.App.4th 968, 983, quoting Lowenfield v. Phelps (1988) 484 U.S. 231, 240.)
Because we conclude the trial court did not err in instructing the jury and directing the jury to continue its deliberations, we need not address Dixon's contention that counsel was ineffective for failing to object to the trial court's directing the jury to deliberate further without inquiring whether further deliberations might prove fruitful. --------
3. Theft as a Lesser Included Offense of the Robbery Alleged in Count 1
As stated above, the jury found Dixon guilty of robbing Jaimes and not guilty of robbing Cooper. Instead, the jury found Dixon guilty of the attempted robbery of Cooper and petty theft, as lesser included offenses of that robbery. Dixon contends the conviction for petty theft in count 2 is a lesser included offense of the robbery against Jaimes because the property that was the subject of the theft conviction is the same property taken in the robbery, and he cannot be convicted of a greater and necessarily included lesser offense.
Generally speaking, a defendant may be convicted of multiple offenses arising out of a single act or course of conduct. (§ 954; People v. Ortega (1998) 19 Cal.4th 686, 692.) An exception to this rule exists when the offenses are a greater offense and a necessarily included offenses. Multiple convictions cannot be based on necessarily included offenses. (People v. Pearson (1986) 42 Cal.3d 351, 355.) Theft is a lesser included offense of robbery. (Ortega, at p. 694.) Thus, a defendant cannot be convicted of robbery and theft arising out of the same conduct. (People v. Villa (2007) 157 Cal.App.4th 1429, 1434.) Where a defendant has been convicted of a greater offense and a necessarily included lesser offense, the conviction for the lesser included offense must be reversed if the evidence supports the greater conviction. (People v. Milward (2011) 52 Cal.4th 580, 589.)
The Attorney General argues the conviction for petty theft was proper in this case because there were multiple victims and cites People v. Scott (2009) 45 Cal.4th 743 (Scott) in support of his position. The Attorney General's reliance on Scott is misplaced. Scott considered "whether, for purposes of the offense of robbery, all employees have constructive possession of the employer's property while on duty and thus may be separate victims of robbery of the employer's business, assuming the other elements of robbery are met as to each employee." (Id. at p. 746.)
The defendants in Scott were charged with three counts of robbery based on their robbery of a McDonald's restaurant. (Scott, supra, 45 Cal.4th at pp. 746-747.) The alleged victims of the robbery were three McDonald's employees. (Id. at p. 749.) The Supreme Court noted neither ownership nor direct control over property is needed to prove possession for purposes of robbery. (Ibid.) "A person who owns property or who exercises direct control over it has possession of it, but neither ownership nor physical possession is required to establish the element of possession for the purposes of the robbery statute. [Citations.]" (Ibid.) Constructive possession suffices. (Id. at p. 748.) Robbery, unlike theft, is a crime of violence against the person. (Id. at p. 749.) "Two or more persons may be in joint constructive possession of a single item of personal property, and multiple convictions of robbery are proper if force or fear is applied to multiple victims in joint possession of the property taken. [Citation.]" (Id. at p. 750.)
Scott did not hold a defendant may be convicted of robbery and theft of the property taken in the robbery when multiple victims are involved. Cases are not authority of propositions not considered therein. (In re Marriage of Cornejo (1996) 13 Cal.4th 381, 388.)
Dixon was improperly convicted of theft of the property that was the subject of his conviction for robbery in count 1. Because the evidence supports his conviction for robbery in count 1, the theft conviction must be vacated.
DISPOSITION
Dixon's conviction for theft as a lesser included offense of the robbery charged in count 2 is reversed. The judgment is otherwise affirmed.
THOMPSON, J. WE CONCUR: ARONSON, ACTING P. J. FYBEL, J.