Opinion
G057726
07-01-2020
THE PEOPLE, Plaintiff and Respondent, v. VICTORIA ALEXANDRA ESCOBAR, Defendant and Appellant.
William Paul Melcher, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Warren Williams and Steve Oetting, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 18NF1531) OPINION Appeal from a judgment of the Superior Court of Orange County, John Conley, Judge. Affirmed as modified. William Paul Melcher, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Warren Williams and Steve Oetting, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Victoria Alexandra Escobar was convicted of committing a so-called "Estes robbery," which occurs when the defendant uses force or fear not to acquire the goods in question, but to retain them from their rightful owner. (People v. Estes (1983) 147 Cal.App.3d 23 (Estes).) Appellant contends Estes was wrongly decided because it conflicts with the common law, upon which the California robbery statute was based. She also challenges the imposition of certain fines and fees the trial court ordered her to pay, as well as the court's stay-away order. We modify the stay-away order to clarify it applies only during the course of appellant's probation. In all other respects, we affirm.
FACTS
On March 17, 2018, appellant entered a grocery store in Anaheim and put two boxes of baby formula in her shopping basket. She then abandoned the basket in an aisle, but not before putting one of the boxes in her purse. With the box neatly tucked away, she left the store without paying for it. When confronted by store workers outside, she denied stealing anything, and a scuffle erupted. Amid the commotion, appellant threatened to stab the workers with a knife. Although she never carried out the threat, she did resist mightily - biting, scratching and kicking when the workers tried to subdue her. Eventually, the police arrived, and the pilfered box of baby formula was recovered from her purse.
Appellant was convicted by jury of second degree robbery. (Pen. Code, §§ 211, 212.5, subd. (c).) On May 10, 2019, the trial court stayed imposition of sentence and placed appellant on three years' probation. It also ordered her to pay a $300 restitution fine (Pen. Code, § 1202.4, subd. (b)(1)), a $30 court facilities fee (Gov. Code, § 70373) and a $40 court operations fee (Pen. Code, § 1465.8, subd. (a)(1)). In addition, the court ordered appellant to stay away from the grocery store where the robbery occurred.
DISCUSSION
Estes Robbery Doctrine
Appellant contends she was wrongly convicted of robbery because she did not use force or fear to acquire the box of baby formula she stole. Although she acknowledges Estes defined robbery to include situations where the defendant uses force or fear to retain stolen property, she argues Estes was wrongly decided because it is contrary to common law. However, as appellant grudgingly admits, Estes has become established law in California.
Robbery is defined by statute as "the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (Pen. Code, § 211.) This definition suggests the requisite force or fear must occur before or during the taking, and according to some authorities, that is how the crime of robbery was understood at common law. (See, e.g., People v. Randolph (Mich. 2002) 648 N.W.2d 164.) However, California courts have not taken such a rigid approach to the force or fear requirement.
In Estes, the court upheld the defendant's robbery conviction even though he stole property without incident from a department store and did not use force or fear until he was confronted by a security guard outside in the parking lot. Viewing robbery as "a continuing offense that begins from the time of the original taking until the robber reaches a place of relative safety," Estes determined, "Whether defendant used force to gain original possession of the property or to resist attempts to retake the stolen property, force was applied against the guard in furtherance of the robbery and can properly be used to sustain the conviction." (Estes, supra, 147 Cal.App.3d at p. 28.)
Appellant assails Estes' continuing offense theory as being inconsistent with the common law upon which our Penal Code is premised. However, the holding in Estes was based on a California Supreme Court case (People v. Anderson (1966) 64 Cal.2d 633, 638), and since the time Estes was decided, our Supreme Court has cited it with approval on a number of occasions. (See, e.g., People v. Williams (2013) 57 Cal.4th 776, 787, 790-799; People v. Gomez (2008) 43 Cal.4th 249, 257-261; People v. Cooper (1991) 53 Cal.3d 1158, 1165, fn. 8.) These cases make clear that even if the defendant takes the subject property by peaceful means, he is nonetheless guilty of robbery if he uses force or fear to retain the property while he is carrying it away or attempting to escape. (See also Miller v. Superior Court (2004) 115 Cal.App.4th 216, 224 [describing this rule as a correct statement of California law].) Because that is precisely what appellant did in this case, we are powerless to disturb her robbery conviction. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450.)
Sentencing Fines and Fees
Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), appellant contends the trial court violated her due process rights by ordering her to pay the $300 restitution fine and $70 in court-related fees without determining whether she had the ability to pay those financial penalties. We cannot agree.
In Dueñas, the defendant suffered an array of "cascading consequences" because she could not afford to pay various fines and fees that were leveled against her for committing minor offenses related to her indigency. (Dueñas, supra, 30 Cal.App.5th at p. 1163.) Not only did she lose her driver's license, she was subjected to additional jail time and the prospect of civil collection efforts, all because she lacked the means to pay her initial financial penalties. (Id. at pp. 1161-1164.) Given that her criminal history stemmed largely from the lack of monetary resources, the Dueñas court determined there was no rational basis for subjecting her to additional financial penalties in her current case, and therefore the trial court's decision to do so violated due process.
A number of courts have criticized the soundness of that ruling and rejected the very idea that due process is the appropriate measure by which the constitutionality of criminal fines and fees should be assessed. (See, e.g., People v. Hicks (2019) 40 Cal.App.5th 320 [Dueñas improperly expanded the boundaries of due process]; People v. Aviles (2019) 39 Cal.App.5th 1055, 1060 ["Dueñas was wrongly decided" and should have based its analysis on the Eighth Amendment's excessive fines clause instead of the due process clause]; People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1034 (conc. opn. of Benke, J.) [same]; People v. Caceres (2019) 39 Cal.App.5th 917, 920 ["the due process analysis in Dueñas does not support its broad holding"]; People v. Kopp (2019) 38 Cal.App.5th 47, review granted Nov. 13, 2019, S257844 [same].) However, we need not weigh in on those issues, because even assuming the result in Dueñas was correct, appellant has not demonstrated the trial court violated her due process rights by failing to ascertain her ability to pay before ordering her to pay the financial penalties at issue in this case. --------
Appellant is not similarly situated to the defendant in Dueñas. While she is certainly no stranger to the criminal justice system, there is nothing in the record suggesting her recidivism was attributable to any financial penalties she may have been ordered to pay in her prior cases. Rather, the information included in the probation report indicates appellant's lengthy criminal record stems from her persistent drug habit. Recognizing the link between appellant's drug usage and her criminal conduct, the trial judge ordered her to complete a residential treatment program as a condition of probation. The judge also noted appellant had seven unrelated misdemeanor cases pending against her at the time of sentencing in this case. Suffice it to say, appellant does not present as a person who was put off course by the imposition of financial penalties in her prior cases but as someone who has lost sight of the need to conform to the rule of law.
We note that the target of appellant's thievery in this case was but one box of baby formula, which suggests she may have been out to feed her hungry children. However, according to the probation report, appellant lost custody of her children years ago, and they are now much too old to be drinking baby formula. Appellant may have been down on her luck and without any pecuniary resources when she stole the formula, but the record shows her actions were motivated by her own personal desires, not her maternal instincts or the imposition of any judicial fines or fees. That is a key point of distinction from Dueñas, in which the financial penalties triggered by the defendant's initial crimes had severe consequences on her daily life and created the conditions that contributed to her current offense.
So we reject appellant's due process claim. The trial court did not violate her constitutional rights by imposing the subject financial penalties without conducting an ability-to-pay hearing.
Stay-Away Order
At sentencing, the trial court also ordered appellant to stay away from the grocery store where the robbery occurred. Appellant contends the order is impermissibly vague because it does not state how long she must stay away from the store. She is right.
Trial courts have broad discretion to impose stay-away orders as a condition of probation. (See Pen. Code, § 1203, subd. (j); People v. Moran (2016) 1 Cal.5th 398, 420 [upholding order requiring defendant to stay away from all the retail stores in the same chain as the one he victimized].) However, to comport with due process, a stay-away order must be "sufficiently precise for the probationer to know what is required of him or her. [Citation.]" People v. Holzmann (2018) 18 Cal.App.5th 1241, 1244-1245.)
On its face, the stay-away order in this case is vague in that it does not state how long appellant must comply with it. However, as respondent acknowledges, probationary conditions can only last as long as the defendant is on probation. (People v. Lewis (1992) 7 Cal.App.4th 1949, 1955.) Since appellant's probationary term was set at three years, we will modify the stay-away order to comport with that period. (See People v. Turner (2007) 155 Cal.App.4th 1432, 1436 [appellate courts have authority to modify terms of probation].)
DISPOSITION
The trial court's stay-away order is modified so that it only applies during the course of appellant's three-year probationary period. In all other respects, the judgment is affirmed.
BEDSWORTH, J. WE CONCUR: O'LEARY, P. J. GOETHALS, J.