Opinion
G052478
03-15-2017
THE PEOPLE, Plaintiff and Respondent, v. LUIS FELIPE MALDONADO, Defendant and Appellant.
John Derrick, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General and Peter Quon, Jr., Deputy Attorney 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15NF0308) OPINION Appeal from a judgment of the Superior Court of Orange County, M. Marc Kelly, Judge. Affirmed. John Derrick, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General and Peter Quon, Jr., Deputy Attorney General, for Plaintiff and Respondent.
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A jury convicted defendant Luis Felipe Maldonado of second degree robbery and felony evading while driving recklessly. The trial court sentenced defendant to a total of two years in prison.
Defendant contends he was improperly convicted of robbery because the person robbed, the loss protection manager, was acting outside the scope of his duties as the agent for the owner of the store from which merchandise was taken. He also argues the trial court erred in sustaining a relevancy objection to his question to the loss prevention manager on cross-examination whether the store had disciplined him for his actions in this case. We conclude no error occurred and affirm the judgment.
FACTS
Gerardo Nevarez, the loss protection manager at the Anaheim Hills Stein Mart, was monitoring its camera surveillance system when he witnessed defendant and his sister place merchandise in a satchel defendant was carrying. He then saw them walk out of the store without paying for the items. After calling 911 and requesting assistance, Nevarez followed them outside the store to a parked vehicle, yelling "store security."
Defendant asked what was going on and Nevarez again identified himself as store security. Nevarez announced he was store security between six and seven times and demanded defendant return the merchandise at least twice.
Defendant ran to the driver's side of the vehicle and opened the door. Nevarez followed him and grabbed the strap of the satchel as defendant was trying to enter the car in an attempt to recover the store's merchandise. In grabbing the strap of the satchel, Nevarez did not strike or assault defendant. Nevarez "just tried to recover [the] merchandise by grabbing the actual bag."
Pulling on the strap caused defendant to come partially out of the vehicle but Nevarez was not trying to pull him out. The strap broke and defendant punched Nevarez with closed fists and kicked him in the groin area. At some point, defendant's shirt ripped but Nevarez could not remember how it happened. In pain and concerned for his safety, Nevarez backed away. Defendant drove away with his sister and the merchandise. Police officers later stopped the vehicle and arrested them, recovering the stolen items in the process.
DISCUSSION
1. Scope of Employment
Defendant concedes he committed shoplifting. He contends, however, the evidence was insufficient to establish he robbed Nevarez because Nevarez was acting outside the scope of his loss protection manager duty by using physical force in trying to recover the stolen merchandise. We disagree.
"When an appellant challenges a criminal conviction based on a claim of insufficiency of the evidence, 'the reviewing court's task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, 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.] 'Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction.'" (People v. Ortiz (2012) 208 Cal.App.4th 1354, 1362.) "If such substantial evidence be found, it is of no consequence that the [trier of fact] believing other evidence, or drawing other reasonable inferences, might have reached a contrary conclusion.'" (Id. at p. 1363, italics omitted.)
"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." (Pen. Code, § 211.) The crime of robbery consists of both taking an object and carrying it away. The asportation of the stolen property continues from the point of the taking to the arrival at a place of temporary safety. (People v. Gomez (2008) 43 Cal.4th 249, 256.) "A defendant who does not use force or fear in the initial taking of the property may nonetheless be guilty of robbery if he uses force or fear to retain it or carry it away in the victim's presence." (People v. Bradford (2010) 187 Cal.App.4th 1345, 1349.)
California follows "the traditional approach that limits victims of robbery to those persons in either actual or constructive possession of the property taken." (People v. Nguyen (2000) 24 Cal.4th 756, 764.) To establish "constructive possession" the "alleged victim of a robbery [must] have a 'special relationship' with the owner of the property such that the victim had authority or responsibility to protect the stolen property on behalf of the owner." (People v. Scott (2009) 45 Cal.4th 743, 750 (Scott).)
In People v. Estes (1983) 147 Cal.App.3d 23 (Estes), the victim was a security guard employed by Sears to prevent thefts of merchandise. (Id. at pp. 26-27.) The defendant contended the security guard did not have constructive possession over the store's property because only the store manager and sales clerk had responsibility over the goods. Rejecting this claim, Estes stated, the security guard "was employed by Sears to prevent thefts of merchandise. As the agent of the owner and a person directly responsible for the security of the items, . . . was in constructive possession of the merchandise to the same degree as a salesperson." (Id. at p. 27.)
Seizing on the word "agent," defendant claims this case is unlike Estes because here "there was insufficient evidence . . . Nevarez . . . was acting within the scope of his agency when he used the force that he did in his attempt to recover the property." According to him, "just because someone is a security guard . . . does not mean that any steps they take to retrieve their employer's property are part of their authorized mission." Additionally, he "knows of no authority that an employee is an agent of an employer for all purposes even when acting outside the scope of what the employer authorizes." Defendant's analysis is flawed.
The scope of an employee's job responsibilities is not an element of the crime of robbery. (See Pen. Code, § 211.) The fact Estes referred to the security guard as an "agent" of the employer (Estes, supra, 147 Cal.App.3d at p. 27) does not impose a new element into the statute requiring the employee be acting within the scope of his or her employment. Rather, the issue in Estes was whether the security guard was in constructive possession of his employer's merchandise, not whether the security guard was acting within the scope of his agency. (Ibid.) Thus, the question here is not whether Nevarez was acting within the scope of his agency but whether he was in constructive possession of Stein Mart's property.
Prior to Scott, some appellate courts limited constructive possession to employees whose duties gave them express or implied authority over the property. (People v. Frazer (2003) 106 Cal.App.4th 1105, 1115, disapproved in Scott, supra, 45 Cal.4th at p. 746.) Others found constructive possession based solely on the existence of an employment relationship. (People v. Jones (2000) 82 Cal.App.4th 485, 491.) In 2009, Scott resolved the dispute and, agreeing with Jones, held that all employees constructively possess store property. (Scott, supra, 45 Cal.4th at p. 752.) This included even those employees whose duties do not involve authority over the property, including janitors, watchmen, night clerks and telegraph operators at a railroad station, service station attendants, and cooks and waitresses, as well as security guards. (Id. at pp. 751-753.)
Thus, under Scott, supra, 45 Cal.4th at page 751, constructive possession is no longer dependent on whether the employee is "a person directly responsible for the security of the items" as Estes, supra, 147 Cal.App.3d at page 27 had indicated.
Scott explained, "'[E]mployees are custodians of the property on the business premises for the benefit of the owner/employer . . . . [Citations.] They are 'therefore in "possession" of the property as against anyone who might attempt to steal it.' [Citation.] An employee's authority to protect the employer's property is recognized in Civil Code section 50, which establishes the right to use 'necessary force' to protect the 'property of . . . a . . . master . . . .' (Italics added.) In other words, the employee's relationship with his or her employer constitutes a 'special relationship' sufficient to establish the employee's constructive possession of the employer's property during a robbery. [¶] Furthermore, it is reasonable to infer that the Legislature intended that all on-duty employees have constructive possession of the employer's property during a robbery, because such a rule is consistent with the culpability level of the offender and the harm done by his or her criminal conduct. . . . On-duty employees generally feel an implicit obligation to protect their employer's property, and their sense of loss and victimization when force is used against them to obtain the employer's property is unlikely to be affected by their particular responsibilities regarding the property in question." (Scott, supra, 45 Cal.4th at pp. 754-755.)
So under Scott, the scope of an employee's duties does not come into consideration in determining the issue of constructive possession. It follows that, as Stein Mart's employee, Nevarez was, by the very fact of employment and regardless of his job duties, in constructive possession of the stolen merchandise. Whether or not Nevarez acted outside the scope of his employment was a matter between him and Stein Mart but it is irrelevant to whether he had constructive possession of Stein Mart's property for purposes of robbery.
The cases cited by defendant are inapposite, as he admits they "involved situations where the persons challenging the shoplifter were not employed by the owner." (See Sykes v. Superior Court (1994) 30 Cal.App.4th 479, 484 [no special relationship between security guard for neighboring business and the business from which property was taken] and People v. Galoia (1994) 31 Cal.App.4th 595, 598 [no special relationship between owner of video games in store and store itself].) 2. Relevance Objection
During cross-examination, defendant asked Nevarez whether Stein Mart had disciplined him for his handling of the incident. The court sustained the prosecution's relevance objection. Defendant contends this was error.
The Attorney General responds the argument has been waived because defendant failed "to inform the court of the 'substance, purpose, and relevance of the excluded evidence,'" as mandated by Evidence Code section 354, subdivision (a). But defendant is correct that under subdivision (c) of that statute, this showing is not required when "The evidence was sought by questions asked during cross-examination." (Evid. Code, § 354, subd. (c).)
Turning to defendant's claimed error, "We review a trial court's decision to exclude evidence for abuse of discretion. [Citation.] The decision to exclude evidence 'will not be disturbed except on a showing [that] the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice [citation].'" (People v. Peoples (2016) 62 Cal.4th 718, 745.)
Defendant acknowledges this standard of review,but contends "the relevancy really goes to a question of law—which is whether if it turned out that Nevarez had been disciplined for operating beyond the scope of the employment in the incident involving [defendant] he could nonetheless still be a robbery victim in this case under an agency theory." He states, "The only way in which this [c]ourt could find the trial court's ruling was within its discretion would be to take the view that it did not matter whether or not Nevarez was operating within the scope of his delegated authority." Inasmuch as we have taken that view, it follows the trial court did not abuse its discretion.
DISPOSITION
The judgment is affirmed.
THOMPSON, J. WE CONCUR: BEDSWORTH, ACTING P. J. MOORE, J.