Opinion
H042298
08-17-2017
THE PEOPLE, Plaintiff and Respondent, v. JAMES EVANS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1359480)
Defendant James Evans appeals following his conviction of attempted robbery (Pen. Code, §§ 211, 664), and burglary (§ 459). On appeal, defendant argues that there was insufficient evidence to support his robbery conviction based on the legally invalid theory that he intended to steal money, that the trial court erred in allowing the prosecutor to amend the information at the time of trial, that the prosecutor improperly ambushed defendant by raising a new theory of robbery during closing argument, and that defendant suffered ineffective assistance of counsel because his attorney failed to challenge the admission of testamentary evidence on confrontation grounds.
Unspecified statutory references are to the Penal Code.
STATEMENT OF THE FACTS
On June 17, 2013, James Chi was working as the sole employee at a convenience store in San Jose. At around 2:00 a.m., defendant came into the store and started putting store merchandise on the counter by the cash register. Chi asked defendant to pay for the items, but he did not. Defendant then took ice cream and cigarettes that were on the counter outside of the store to eat and smoke.
After defendant left the store with the cigarettes and ice cream, Chi moved the remaining items that were on the counter behind the cash register. Chi continued working but was afraid because defendant had been at the store for two to three hours and had been swearing at him and following him around. Chi was also worried because defendant "went to the area nearby [the] register several times."
Another customer, Christopher Pelletier, entered the store shortly after 4:00 a.m. and purchased some items. As Chi gave Pelletier his receipt, Chi warned Pelletier not to go outside because defendant was waiting to rob him. Pelletier called the police.
Defendant then ran into the store toward Pelletier. Defendant yelled at Pelletier for calling the police and threatened that Pelletier would "not get[] out of" the store. Defendant also repeatedly yelled, "Give me my shit," and "Give me my stuff," to Chi. Pelletier was scared by the way that defendant was acting, and moved around the store keeping a distance from defendant. At the same time, Pelletier was urging the police dispatcher to hurry the police response.
After defendant followed Pelletier around the store and yelled at him for a while, defendant went behind the counter of the store where Chi was standing. Chi jumped out from behind the counter to get away from defendant. As Chi was trying to get away from defendant, Pelletier left the store and got into his truck, which was parked directly outside. From his truck, Pelletier could still see the inside of the store. He saw defendant walk back to the counter, where Chi was again working. Defendant reached over and grabbed Chi by his hair hard enough to pull him onto the counter and to pull some hair out of Chi's scalp. As defendant grabbed him, Chi was able to close the cash register.
Almost immediately after defendant pulled Chi's hair, a San Jose police officer arrived and took defendant outside. The officer handcuffed and searched defendant, finding a pack of cigarettes and a small about of marijuana, but no money.
The manager of the convenience store, Mark Zee, stated that at some point he had shown Chi that there was a panic button located under the register, but did not train him about how or when to use the button. Zee did not know whether the panic button was working on the morning of the assault. Chi did not use the panic button during the assault.
At trial in this case, the jury was read Chi's preliminary hearing testimony because Chi was unavailable to testify. In addition, the jury viewed video footage of the incident from three security cameras located in the store. The jury also heard an audio recording of Pelletier's call to the police. --------
STATEMENT OF THE CASE
On August 1, 2013, an information was filed alleging that defendant committed the crimes of attempted robbery (§§ 211, 664) and burglary (§ 459). The information further alleged that defendant had suffered two prior strike convictions (§ 667, subd. (b)), two prior serious felony convictions (id., subd. (a)) and had served one prior prison term for a violent felony conviction (§ 667.5, subd. (a)).
Following a jury trial on May 1, 2014, defendant was found guilty of both charged crimes. Defendant admitted the prior conviction and prison term allegations. On April 17, 2015, the prosecutor moved to reduce the burglary conviction to a misdemeanor. The trial court granted defendant's motion to strike both prior strikes, stayed the prior prison term, and sentenced defendant to 11 years four months in state prison. Defendant filed a timely notice of appeal on May 5, 2015.
DISCUSSION
Defendant asserts four arguments in this appeal: (1) there was insufficient evidence to support his robbery conviction based on the legally invalid theory that he intended to steal money from the cash register; (2) the trial court erred in allowing the prosecutor to amend the information at the end of the trial to add an allegation that defendant intended to steal money; (3) the prosecutor improperly ambushed defendant by raising the new theory of robbery during closing argument; and, (4) defendant suffered ineffective assistance of counsel because his attorney failed to challenge the admission of testamentary evidence from the preliminary hearing at trial on confrontation grounds.
Evidence of Attempted Robbery
Defendant argues that his conviction for attempted second degree robbery must be reversed because there was "no evidence to support the legally invalid theory that the crime was based on an attempt to take money from the cash register and the trial court erred in instructing the jury on that theory, thus violating [defendant's] right to due process." He asserts that the court instructed the jury improperly by using the amended information that included "money" as the intended target of defendant's theft.
The information as it was stated at the beginning of trial charged defendant with an "attempt to take personal property, merchandise, in the possession of James Chi, from his/her person and immediate presence and against his/her will by means of force and fear." After closing argument when the prosecutor argued that defendant attempted to steal money from the cash register as well as the merchandise on the counter, the court added the term "money" to the information, instructing the jury that defendant was charged with an "attempt to take personal property, money or merchandise, in the possession of James Chi . . . ."
Legally Invalid Theory to Support Conviction
Defendant cites Griffin v. United States (1991) 502 U.S. 46 (Griffin), and People v. Guiton (1993) 4 Cal.4th 1116 (Guiton), in support of his argument that by instructing the jury that defendant was charged with attempted theft of money, it presented an invalid legal theory upon which the jury could convict defendant.
In Griffin, the United States Supreme Court "drew a distinction between a mistake about the law, which is subject to the rule generally requiring reversal, and a mistake concerning the weight or the factual import of the evidence, which does not require reversal when another valid basis for conviction exists." (Guiton, supra, 4 Cal.4th at p. 1125.) The court in Griffin stated: "Jurors are not generally equipped to determine whether a particular theory of conviction submitted to them is contrary to law—whether, for example, the action in question is protected by the Constitution, is time barred, or fails to come within the statutory definition of the crime. When, therefore, jurors have been left the option of relying upon a legally inadequate theory, there is no reason to think that their own intelligence and expertise will save them from that error." (Griffin, supra, 502 U.S. at p. 59 [rejecting contention that a general verdict should be set aside when one of the possible factual bases of conviction was unsupported by sufficient evidence].)
The California Supreme Court followed the Griffin rule in Guiton, wherein the defendant was convicted of "selling or transporting cocaine." (Guiton, supra, 4 Cal.4th at p. 1120.) In Guiton, the People argued that while "there was insufficient evidence to support a finding that [the defendant] sold cocaine" (ibid.), the conviction should nonetheless be upheld because its "alternate ground—transportation of cocaine—was supported by substantial evidence." (Id. at p. 1121.) The court upheld the conviction because "there was sufficient evidence of guilt beyond a reasonable doubt on the independently valid ground of transporting cocaine." (Id. at p. 1127.)
The Guiton court considered the defendant's argument to be a factual claim that there was an "insufficiency of proof" (Guiton, supra, 4 Cal.4th at p. 1125) to support his conviction, rather than an assertion that the conviction was " ' "based on an erroneous view of the law." ' " (Id. at p. 1126.) The court noted that a conviction that is based on a "factually inadequate theory," is one that is " ' "not supported by adequate evidence" ' " and does not warrant reversal " ' "when there existed alternative grounds for which the evidence was sufficient." ' " (Ibid.)
Here, defendant argues that his conviction for attempting to steal cash from the register is based on a legally invalid theory. However, the substance of his argument is that the conviction lacks an adequate factual basis. Whether defendant had the intent to steal money from the cash register, or to steal merchandise is a factual question. There is nothing in this case showing that the jury was presented with a theory of conviction that was "contrary to law." (Griffin, supra, 502 U.S. at p. 59.) Using the examples set forth in Griffin, the action against defendant here was not "protected by the Constitution," was not "time barred," and did not "fail[] to come within the statutory definition of the crime." (Ibid.) Defendant's claim that his conviction was based on a legally invalid theory has no merit.
Sufficiency of Evidence to Support Attempted Robbery Conviction
"In reviewing a challenge to the sufficiency of the evidence, we do not determine the facts ourselves. Rather, we 'examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citations.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] The same standard of review applies to cases in which the prosecution relies primarily on circumstantial evidence . . . ." (People v. Guerra (2006) 37 Cal.4th 1067, 1129.)
Section 211 provides as follows: "Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." At trial, the jury was instructed on the following elements of attempted robbery: "1. The defendant attempted to take property that was not his own; [¶] 2. The property was in the possession of another person; [¶] 3. The property was attempted to be taken from the other person or his immediate presence; [¶] 4. The property was attempted to be taken against that person's will; [¶] 5. The defendant used force or fear in attempting to take the property or to prevent the person from resisting; [¶] AND [¶] 6. When the defendant used force or fear in attempting to take the property, he intended to deprive the owner of it permanently or to remove it 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."
A review of the record shows that there was sufficient evidence to support defendant's conviction of attempted robbery of money or merchandise. The preliminary hearing testimony of Chi that was introduced at trial as well as the testimony of Pelletier and the store's security footage all support defendant's conviction. The evidence showed that after he placed merchandise on the counter, defendant walked out of the store with ice cream and cigarettes. This demonstrates his intent to steal. Defendant yelled at Chi to "Give me my shit," and "Give me my stuff," likely in reference to the merchandise he had placed on the counter. When defendant did finally assault Chi by pulling Chi's hair out of his head, he was standing at the counter, next to the open cash register and the merchandise. Chi immediately closed the cash register to prevent defendant from taking the money that was inside. Defendant's threatening conduct and assault of Chi in proximity to the open cash register with money inside, coupled with his earlier theft and commands regarding the merchandise on the counter provide sufficient evidence to support his conviction in this case.
Addition of the Term "Money" to the Information
Defendant argues that the trial court erred in allowing the prosecution to amend the information to include the term "money" as the property defendant intended to steal from the victim. The People argue that the information was not amended; rather it was clarified to fully define "money" as personal property in the attempted robbery allegation.
As stated above, the original information alleged that defendant made: an "attempt to take personal property, merchandise, in the possession of James Chi, from his/her person and immediate presence and against his/her will by means of force and fear." Following closing argument, the court added the term "money" to the information. The information now reads that defendant made an "attempt to take personal property, money, or merchandise, in the possession of James Chi, from his/her person or immediate presence and against his/her will by means of force or fear." (Italics added.)
At the outset, it must be noted that the Penal Code states: "[t]he words 'personal property' include money, goods, chattels, things in action, and evidence of debt." (§ 7.) As a result, the court's addition of the term "money" to the information did not change the scope of the allegation of attempted theft. The original information alleged that defendant attempted to steal personal property, and money is personal property under the Penal Code. Therefore, the addition of the term "money" did not substantially change the information so as to prejudice defendant.
Assuming, however, that the addition of the term "money" was in fact an amendment of the information, it was not an error by the trial court. An indictment or information may be amended by the district attorney at any time, and the court may allow amendment of the accusatory pleading "for any defect or insufficiency, at any stage of the proceedings" (§ 1009), "if there would be no prejudice to the defendant." (People v. Graff (2009) 170 Cal.App.4th 345, 361.) The question of whether the prosecution should be permitted to amend the information is a matter "within the sound discretion of the trial court." (People v. Winters (1990) 221 Cal.App.3d 997, 1005.)
Defendant asserts that he was prejudiced by the late amendment because it changed the factual basis of the offense that was not addressed at the preliminary hearing. In support of this argument, defendant cites People v. Burnett (1999) 71 Cal.App.4th 151 (Burnett), and People v. Dominguez (2008) 166 Cal.App.4th 858 (Dominguez) that he asserts are similar to the present case.
In Burnett, the late amendment allowed the jury to convict the defendant of brandishing and possessing a .357 magnum revolver instead of the .38-caliber revolver that had been specified in the original information. The evidence concerning the .357 magnum revolver came out for the first time at trial, when a witness testified that the defendant possessed that revolver before he possessed the .38-caliber revolver. The Burnett court held that because the late amendment changed the factual basis for the charged offense, it violated "the spirit, if not the letter, of section 1009." (Burnett, supra, 71 Cal.App.4th at p. 170.)
Similarly, in Dominguez, the late amendment allowed the jury to convict the defendant of unauthorized use of a vehicle based on either of two separate incidents, despite the fact that only one incident had been shown at the preliminary hearing. This court accepted the People's concession of error and reversed the judgment. (Dominguez, supra, 166 Cal.App.4th at p. 866.)
We find Burnett and Dominguez distinguishable from the present case. Here, the addition to the information of the word "money" did not change the facts from the preliminary hearing upon which the attempted robbery was based. This case involved a single incident of attempted robbery. Specifically, the evidence at the preliminary hearing showed that defendant grabbed Chi's hair next to the register while it was open and full of cash. This was in the same proximity as the merchandise. At this point, defendant was using force in an attempt to steal either money, merchandise or both. The fact that Chi closed the register immediately after defendant grabbed his hair shows that the cash in the register was a potential target of defendant's theft. The amendment to add the term "money" was fully supported by the evidence at the preliminary hearing, and was not an abuse of discretion.
Ambush by the Prosecutor
Defendant argues that the prosecutor ambushed him in closing by arguing that he intended to steal cash from the register, when that theory had not previously been raised. He asserts that this ambush denied him due process.
Defendant relies on Sheppard v. Rees (9th Cir. 1989) 909 F.2d 1234 to support his claim. In Sheppard, an information charged the defendant with one count of murder and with the use of a firearm. (Id. at p. 1235.) The concept of felony murder was not raised, either directly or indirectly, before the parties rested or even when jury instructions were submitted and settled. Not until the day scheduled for final arguments did the prosecution request instructions on felony murder. (Ibid.) Over the defendant's objection, the court gave the requested instructions. (Id. at pp. 1235-1236.) The jury returned a verdict of first degree murder with the use of a firearm. It gave no indication of the legal theory on which it relied. (Id. at p. 1236.) On appeal, the People conceded that the defendant had been denied adequate notice of the felony-murder charge. (Ibid.) As a result, the court concluded that the defendant had been " 'ambushed.' " (Ibid.) Defendant's conviction was reversed and the matter was remanded for a new trial. (Id. at p. 1238.)
Sheppard is distinguishable from the present case. Here, defendant was not ambushed by the prosecutor's closing argument. Indeed, the prosecutor referred to theft from the cash register in his opening statement, referring to the security footage that would show defendant "go to the cashier, go to the cash register and . . . , as the cash register [was] opening, pull the clerk's hair." The prosecutor stated that defendant "reach[ed] in and lucky for the clerk, he wasn't able to get the money. He wasn't able to get [the] money because the police had already been called." In response to the prosecutor's statement, defense counsel acknowledged the allegations that defendant was attempting to take money from the cash register in his opening: "it was a good thing that Mr. Chi quickly closed the cash register." Defense counsel also stated that "the video will show that at no point did [defendant] ever reach for the cash register or any cash in the cash register."
The opening statements of both the prosecutor and defense counsel demonstrate that defendant was aware that taking money from the cash register was a theory upon which the prosecutor could rely to demonstrate that defendant committed attempted robbery. Defendant was not ambushed by the prosecutor's use of this theory in closing argument.
Moreover, we note that Sheppard has been criticized by California state courts as being at odds with California Supreme Court precedent. (See, e.g., People v. Lucas (1997) 55 Cal.App.4th 721, 738; People v. Crawford (1990) 224 Cal.App.3d 1, 8.) Consequently, the case is narrowly construed and limited to its facts. (People v. Lucas, supra, at p. 738.) It does not support defendant's position here.
Ineffective Assistance of Counsel
Defendant argues that he was denied effective assistance of counsel, because his attorney failed to object to the admission at trial of Chi's preliminary hearing testimony on confrontation grounds.
The standard for evaluating a claim of ineffective assistance of counsel is well established. It requires a two-prong showing that counsel's representation was deficient based on an objective standard under prevailing professional norms, and that defendant was prejudiced by the deficient representation under a reasonable probability standard. (Strickland v. Washington (1984) 466 U.S. 668, 687-696 (Strickland).) Absent a given reason, a court cannot presume incompetence, and the claim must be rejected on appeal. (People v. Huggins (2006) 38 Cal.4th 175, 206.)
In the usual case, where counsel's trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel's acts or omissions. (People v. Earp (1999) 20 Cal.4th 826, 896.)
Nevertheless, a reviewing court need not assess the two Strickland factors in order; and if the record reveals that the defendant suffered no prejudice, we may decide the issue of ineffective assistance of counsel on that basis alone. (Strickland, supra, 466 U.S. at p. 697.) If it is more efficient to dispose of an ineffective assistance of counsel claim on the ground of lack of sufficient prejudice that course should be followed. (Ibid.)
Assuming for the sake of argument that defense counsel should have objected to the admission of Chi's preliminary hearing testimony on confrontation grounds, we find no prejudice. Defendant has not met the Strickland standard because a more favorable verdict would not have been reasonably probable even if Chi's preliminary hearing testimony had been excluded at trial. Specifically, the facts to which Chi testified were presented to the jury from other sources, including Pelletier's testimony that defendant told Chi to give him "the shit" and "the stuff" and grabbed Chi's hair while he was standing next to the cash register. In addition, the security footage from the store showed defendant pulling Chi's hair while he stood close to the cash register and the merchandise.
In short, defendant has not demonstrated that he would have received a more favorable verdict had his attorney's alleged deficient performance not occurred. Chi's preliminary hearing testimony was not necessary to form a basis for the attempted robbery conviction. The other evidence at trial was sufficient to support the conviction for attempted robbery, and it is not reasonably likely that any objection to the admission of the testimony would have made a difference in the outcome. We find that defendant did not suffer ineffective assistance of counsel.
DISPOSITION
The judgment is affirmed.
/s/_________
Premo, Acting P.J.
WE CONCUR: /s/_________
Elia, J. /s/_________
Grover, J.