Opinion
A128018
10-27-2011
THE PEOPLE, Plaintiff and Respondent, v. JAMES GARFIELD FLETCHER 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Solano County Super. Ct. No. FCR251570)
I. INTRODUCTION
A jury found James Garfield Fletcher guilty of second degree robbery (Pen. Code, § 211) and petty theft with a prior conviction (§§ 484, subd. (a)/666). The trial court found appellant suffered a prior strike conviction and two prior felonies for which he served prison terms. Pursuant to these findings, the court sentenced appellant to a total term of 12 years in state prison. On appeal, appellant contends the trial court erred by refusing to instruct the jury on self-defense. Finding no error, we will affirm.
All further unspecified statutory references are to the Penal Code.
II. FACTUAL AND PROCEDURAL BACKGROUND
By information filed February 27, 2008, the District Attorney for the County of Solano charged appellant with second degree robbery (§ 211; count 1) and petty theft with a prior conviction (§§ 484, subd. (a), 666; count 2). It was alleged pursuant to section 667, subdivision (a)(1), that appellant suffered prior convictions consisting of two counts of robbery (§ 211) and one count of shooting at an inhabited dwelling (§ 246). It was further alleged that appellant served a previous prison term for the aforementioned offenses.
Trial commenced on October 16, 2009. The case against appellant was based on an incident occurring on the afternoon of January 16, 2008, at the Sam's Club in Vacaville, California. A. The Prosecution Case
1. Robert Concepcion
Robert Concepcion testified that on January 16, 2008, he was working undercover as a loss prevention officer for Sam's Club. Concepcion was dressed in plain clothes with his employee badges hidden from view.
On the afternoon of January 16, 2008, Concepcion first noticed appellant with a shopping cart near the electronics department. Appellant was accompanied by Keyerra Nevels, who was pushing a baby stroller. Concepcion watched appellant pick up a camcorder and place it in the cart without inspecting the item. Appellant's behavior made Concepcion suspicious, and he continued to watch appellant. Concepcion observed appellant repeat this process with a digital photo frame. After placing the frame in the cart, appellant and Nevels walked down another aisle. There, Concepcion observed appellant open the package containing the camcorder and hand it to Nevels. Appellant put the accessories to the camcorder and the camcorder manual in his jacket pocket while Nevels put the camcorder under the stroller in a concealed pouch. Appellant proceeded to the furniture aisle and repeated this process with the digital photo frame, discarding the packaging behind a leather couch display. Appellant and Nevels separated. Appellant walked over to the cafe area where he purchased a soda and was joined by his cousin, Felton Mayfield. Appellant and Mayfield left the store without attempting to pay for the items.
Prior to appellant's departure from the store, Concepcion notified Sam's Club employee Michael Ramirez that he might stop someone who had not paid for merchandise. Concepcion then met appellant and Mayfield outside the store where he approached appellant, identified himself as a loss prevention officer, and showed appellant his badge. Concepcion stated that appellant was in possession of merchandise that had not been paid for, and asked him to return inside. Appellant denied having any merchandise and refused to go back into the store with Concepcion. Appellant then turned away from Concepcion, leading Concepcion to believe he was heading back into the building. As Concepcion moved toward appellant, appellant spun around, threw his cup of soda into Concepcion's face with one hand and hit him in the face with the other hand. At that point, appellant attempted to flee and Concepcion grabbed him around the torso, knocking them both to the ground. As appellant and Concepcion continued to struggle, Ramirez and another Sam's Club employee came over to assist Concepcion. Appellant tried to take off his jacket and told Mayfield to get it from him. Mayfield grabbed the jacket and Concepcion told a co-worker to get it back. The co-worker was not successful, but a customer managed to take the jacket away from Mayfield and brought it to a Sam's Club manager. Concepcion, Ramirez, and the other employee subdued appellant.
Concepcion eventually retrieved the jacket, removed the items from the pockets, and identified the accessories and manuals for the camcorder and digital photo frame.
2. Officer Jason Benavides
Vacaville Police Officer Jason Benavides responded to the call from Sam's Club. When Officer Benavides arrived at Sam's Club, he was taken to an office where appellant had been detained. In the office, Concepcion showed Officer Benavides the objects he had removed from appellant's jacket. Officer Benavides took Concepcion's statement and spoke with appellant after reading him his rights. Appellant told Officer Benavides that the items inside his jacket were in fact items he had taken from the store. Appellant denied punching Concepcion, and told Officer Benavides that he was instead trying to flee and hit Concepcion with the soda accidentally. Officer Benavides reviewed security tapes from the store but did not find any that captured the alleged theft.
3. Michael A. Ramirez
Michael A. Ramirez testified that he was working in the jewelry department at Sam's Club on January 16, 2008. That afternoon, Concepcion notified him that he had witnessed someone shoplifting and asked for his assistance. Ramirez headed towards the store exit, where he heard Concepcion identify himself to appellant and then saw appellant throw a punch at Concepcion. He did not see Concepcion display his badge. Ramirez continued outside where he joined the altercation between Concepcion and appellant. Ramirez noted that appellant attempted to remove his jacket and hand it to someone. Eventually a customer intervened and took the jacket. Ramirez has a felony robbery conviction from 1991. B. The Defense Case
1. Officer Jason Benavides
Officer Benavides testified that Ramirez told him he had seen the struggle between Concepcion and appellant but had not seen the alleged theft.
2. Kelli Bobchik
Kelli Bobchik testified that she is Felton Mayfield's girlfriend. She was with appellant, Mayfield, and Nevels at Sam's Club on January 16, 2008. The four were travelling to Vacaville to visit appellant's mother. When Bobchik entered the store, she and Mayfield went in one direction and appellant and Nevels went in another. Bobchik next saw appellant at the checkout line where she helped him purchase a box of oatmeal with her Sam's Club membership card. Bobchik left the store, realized she did not have her car keys, and reentered the store. Upon reentry, Bobchik observed appellant at the cafe area where he purchased a soda. She exited the store with appellant and Mayfield.
As Bobchik left with appellant and Mayfield, they were approached by a man (Concepcion) who told appellant that he had unpaid merchandise and that he needed to reenter the store. Appellant asked Concepcion to identify himself, but Concepcion only repeated his request that appellant return to the store. Bobchik testified that Concepcion initiated the physical altercation with appellant by pulling on his coat and eventually yanking him to the ground where appellant was subdued by three people. As Concepcion and appellant wrestled on the ground, Bobchik noticed Concepcion's "shiny badge" for the first time.
3. Felton Mayfield
Felton Mayfield, appellant's cousin, was called to testify by the defense, but he asserted his Fifth Amendment right and did not answer any questions about the incident. Pursuant to a court stipulation, Mayfield's statement to a defense investigator was read into evidence. The subsequent paragraph summarizes the report as read to the jury.
Mayfield entered Sam's Club with appellant, Nevels, and Bobchik. Upon entering, he and Bobchik separated from appellant and Nevels. Inside the store, Mayfield encountered Nevels and she gave him a remote and some wires, which he placed in his pocket. Mayfield left the store with appellant. As they exited, Concepcion approached them, told appellant he had unpaid merchandise, and asked him to go back inside the store. The only thing in appellant's hands was a large soda. Appellant asked Concepcion what he was talking about. Concepcion did not identify himself, and only responded to appellant's request for his identification by again asking him to go back inside. Concepcion started patting appellant. Appellant pushed his hands away, said "Hey man, I ain't got nothing," and attempted to walk away. Concepcion grabbed appellant forcefully, causing appellant's soda to spill. Concepcion and Ramirez tackled appellant to the ground. Mayfield said Concepcion and Ramirez were so rough with appellant that he was afraid they were going to break appellant's arm. Appellant asked if he could remove his jacket. The guards assented and he handed his jacket to Mayfield. Mayfield took the jacket and put the remote and wires from his own pocket into the side pocket of appellant's jacket. Mayfield said he did this because he was afraid he was going to be searched next. He said he never saw appellant with any merchandise and did not know anything about a camcorder or picture frame.
C. Trial Court Proceedings
After both sides rested, the court and counsel conferred to finalize jury instructions. Defense counsel renewed her request that the jury be instructed with CALCRIM No. 3470 on the right to self-defense. The court denied the request because self-defense is not a defense to robbery and counsel could produce no case law that supported self-defense as a relevant instruction to a "pure robbery" charge.
During closing arguments, the prosecutor argued that appellant committed robbery by taking property that did not belong to him and then using force to try to get away with the items. Defense counsel argued mistaken identity: Concepcion's view of appellant in the store was obscured; Concepcion had credibility problems; Mayfield confessed to taking the items; there was insufficient evidence that appellant used force; and it was not until Concepcion and Ramirez were "pummel[ing]" appellant that "he defended himself."
Jury deliberations took place on October 19, 2010. That afternoon, the jury came back with a verdict on one count but was split 11-to-one and felt that it could not reach a verdict on the other count. The court informed counsel that there was a verdict on count 2. After conferring with counsel, the court instructed the jury again on its duty to deliberate (CALCRIM No. 3550) and sent the jury back out.
Later that afternoon, the jury asked for "clarity re 'use of force' to commit robbery versus resistance and attempts to flee.'" The trial court and counsel agreed that "there is a timing issue . . . as to whether force committed . . . during the attempts to flee . . . is still committed during the robbery. The court sent a written response to the jury instructing them that for purposes of this case, the crime of robbery is defined in CALCRIM Nos. 1600 and 3261; that these two instructions should be read and considered together; and that "[a]ny force that the perpetrator applies before actually reaching a temporary place of safety is applied during the course of the robbery." The court declined defense counsel's request to use the phrase "unlawful force" because it was not found in the definition of robbery under CALCRIM No. 1600.
Subsequently, the jury found appellant guilty on both counts. In a bifurcated proceeding held October 22, 2009, the court found the alleged prior convictions and prison term to be true.
On March 15, 2010, after denying appellant's Romero motion, the court sentenced appellant to a total of 12 years in state prison. For count 1, the court imposed a three-year midterm doubled to six years pursuant to appellant's prior strike conviction. For count 2, a two-year sentence was imposed and stayed pursuant to section 654. A five-year sentence was imposed pursuant to section 667, subdivision (a)(1), and one year pursuant to section 667.5, subdivision (b), both to run consecutively. The court awarded 908 total days of presentence credits.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504 (holding that a court may strike prior felony conviction allegations for sentencing purposes in cases arising under the Three Strikes Law, "subject, however, to strict compliance with the provisions of section 1385 and to review for abuse of discretion").
Appellant filed a timely notice of appeal on March 19, 2010.
III. DISCUSSION
Appellant contends that the trial court committed reversible error in denying defense counsel's request to instruct the jury on self-defense. A. Legal Principles
"The scope of a court's duty to deliver instructions requested by the defense is greater than its obligation to instruct the jury sua sponte on the general principles of law applicable to a case. [Citation.] Requested instructions must be delivered 'upon every material question upon which there is any evidence deserving of any consideration whatever.' [Citations.]" (People v. La Fargue (1983) 147 Cal.App.3d 878, 886.) "The court may, however, 'properly refuse an instruction offered by the defendant if it incorrectly states the law, is argumentative, duplicative, or potentially confusing [citation], or if it is not supported by substantial evidence.' [Citation.]" (People v. Hovarter (2008) 44 Cal.4th 983, 1021.)
"In determining whether the evidence is sufficient to warrant a jury instruction, the trial court does not determine the credibility of the defense evidence, but only whether 'there was evidence which, if believed by the jury, was sufficient to raise a reasonable doubt.' [Citations.]" (People v. Salas (2006) 37 Cal.4th 967, 982-983.) Whether the evidence is sufficient to support a particular instruction is a question of law. (People v. Barnett (1998) 17 Cal.4th 1044, 1145.)
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. (§ 211.) Reasoning that robbery is a continuing offense that lasts from the time of the original taking until the defendant reaches a place of relative safety, the court in People v. Estes (1983) 147 Cal.App.3d 23, 28, held that the required element of force or fear may be established when a defendant uses force to resist the efforts of a merchant to retake his property and to facilitate his escape.
Section 490.5, subdivision (f), codifies a merchant's right to detain an individual suspected of shoplifting: "A merchant may detain a person for a reasonable time for the purpose of conducting an investigation in a reasonable manner whenever the merchant has probable cause to believe the person to be detained is attempting to unlawfully take or has unlawfully taken merchandise from the merchant's premises." (§ 490.5, subd. (f)(1).) "In making the detention a merchant . . . may use a reasonable amount of nondeadly force necessary to protect himself or herself and to prevent escape of the person detained or the loss of tangible or intangible property." (§ 490.5, subd. (f)(2).)
A person making a citizen's arrest also may use reasonable force to effect the arrest, and " 'the arrestee is obliged not to resist, and has no right of self-defense against such force.' " (People v. Adams (2009) 176 Cal.App.4th 946, 952.) However, a defendant may defend himself against excessive force if he reasonably believes he is " 'in imminent danger of suffering bodily injury.' " (Id. at p. 953; CALCRIM No. 3470.) B. Analysis.
Appellant contends that the evidence of his struggle with Concepcion outside Sam's Club entitled him to an instruction on self-defense and that the trial court's refusal to give the instruction requires reversal of the robbery conviction.
1. Appellant was not entitled to an instruction on self-defense.
Appellant acknowledges a merchant's right pursuant to section 490.5, subdivision (f), to detain a suspected shoplifter. However, citing evidence that Concepcion did not identify himself to appellant as store security before detaining him, appellant contends the jury could have found that his detention by Concepcion was improper. Therefore, according to appellant, "the jury was entitled to know that any resistance by appellant, if they found that store security failed to identify itself before applying force to appellant, could be an exercise of appellant's right of self-defense rather than his use of force which would cause a theft of merchandise to become a robbery." In other words, appellant contends that 1) he had a right to self-defense if his detention was improper, i.e., if Concepcion used force before identifying himself, and 2) it was up to the jury to decide whether appellant used force to defend himself, which would negate the element of force in the robbery charge. We disagree.
The evidence on this point was conflicting: According to Bobchik and Mayfield, Concepcion did not identify himself before detaining appellant; Concepcion and Ramirez testified to the contrary.
First, beyond characterizing the assertion as "unquestionable," appellant provides no support for the proposition that his detention as a suspected shoplifter was improper if Concepcion did not first identify himself as store security. Section 490.5, subdivision (f), contains no such requirement.
Second, assuming that Concepcion did not identify himself as store security before detaining appellant, it was nevertheless abundantly clear from the circumstances that appellant was detained under suspicion of shoplifting from Sam's Club by an individual who was acting under the authority of Sam's Club. The evidence was undisputed that Concepcion confronted appellant just outside the store, stated to appellant that he was in possession of merchandise for which he had not paid, requested that appellant go with him back into the store, and moved to detain appellant when he refused and tried to walk away.
Moreover, in detaining appellant, Concepcion was entitled to use reasonable force, and appellant had no right to resist in self-defense. (§ 490.5, subd. (f)(2); People v. Adams, supra, 176 Cal.App.4th at p. 952.) The witnesses who were present all testified that appellant refused Concepcion's request that he go back into the store and then tried to get away from Concepcion. Thus, not only was Concepcion entitled to use reasonable force to detain appellant, but also it was necessary.
This is not to say that appellant could not have used self-defense to resist the use of excessive force and to protect himself from imminent danger of bodily injury. (People v. Adams, supra, 176 Cal.App.4th at pp. 953-954; CALCRIM No. 3470.) However, appellant makes no argument of excessive force or that there was imminent danger of bodily injury.
Moreover, there is no substantial evidence to support a claim of self-defense. Concepcion testified that, when he confronted appellant and asked him to return to the store, appellant threw the soda at him, punched him in the face, and then tried to flee. Appellant was the aggressor and clearly was not defending himself. Bobchik testified that appellant "kind of tried to turn away from" Concepcion, who grabbed appellant by his coat and "pulled him super hard." After that, appellant was on the ground, wrestling, and saying, "[y]ou're hurting me, you're hurting me," because his arm was twisted. Mayfield stated that, when Concepcion started patting appellant, he pushed Concepcion's hands away and asked what he was doing. Appellant then tried to walk away, but Concepcion grabbed him, spilling the soda. Appellant was able to get away, "but then another guy stepped in and helped tackle [appellant] to the ground." Mayfield also said the men attempting to detain appellant were being "so rough with [appellant] that he was afraid they were going to break his arm." The evidence establishes that Concepcion first tried talking to appellant to get him to go back into the store. When appellant denied having any merchandise and tried to walk away, Concepcion applied force to detain him and appellant resisted. The arm-twisting described by Bobchik and Mayfield is the only suggestion of force that could possibly be considered excessive, but under the circumstances here, where it is clear that appellant was struggling and trying to get away, and there is no evidence of any injury or threats to appellant, the arm-twisting is not substantial evidence that a Sam's Club employee used or threatened to use excessive force. The trial court did not err by excluding a jury instruction on self-defense.
Finally, appellant's attempt to bolster his improper detention argument with evidence that Concepcion initiated a pat search is unavailing. Section 490.5, subdivision (f)(4), provides that a limited and reasonable search to recover an unlawfully taken item may be conducted. "Only . . . property in the immediate possession of the person detained, but not including any clothing worn by the person, may be searched . . . ." (§ 490.5, subd. (f)(4).) Thus, a pat search would appear to exceed the permissible scope of a search allowed under this subdivision. However, the evidence that Concepcion "started patting" appellant, either alone or in combination with the evidence that Concepcion did not identify himself, does not entitle appellant to an instruction on self-defense.
According to Mayfield's statement, " '[Appellant] raised his hands up a little and said he didn't have anything. The guard started patting [appellant], at which point, [appellant] pushed the man's hands away and asked what he was doing. [Appellant] then said, "Hey, man, I ain't got nothing." And tried to walk away.' "
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2. Appellant was not prejudiced by the exclusion of a self-defense instruction.
The trial court did not err in refusing to instruct the jury with CALCRIM No. 3470. However, even if error was found, it would not require reversal because appellant cannot show prejudice.
When instructions are erroneous, "[r]eversal is required only 'if the court, "after an examination of the entire cause, including the evidence," is of the "opinion" that it is reasonably probable that a result more favorable to [defendant] would have been reached in the absence of the error.' " (People v. Wharton (1991) 53 Cal.3d 522, 571, citing People v. Watson (1956) 46 Cal.2d 818, 836.)
In light of the verdict of guilty as to the count 2 petty theft charge, it is clear that the jury did not believe Mayfield's statement that he put the items into appellant's jacket. Rather, the jury credited Concepcion's testimony and the statement appellant made at the time to Officer Benavides that appellant took merchandise out of Sam's Club without paying for it. No reasonable jury would have believed that appellant, in possession of items he shoplifted, was unaware of Concepcion's identity to the point where he was simply defending himself against what he reasonably perceived to be an unreasonable touching or an improper detention. Thus, even if the instruction was given, it is not reasonably probable that the jury would have reached a result more favorable to appellant.
IV. DISPOSITION
The judgment is affirmed.
Haerle, J. We concur: Kline, P.J. Lambden, J.