Opinion
G055703
06-22-2018
THE PEOPLE, Plaintiff and Respondent, v. ELLIOT SUNSHINE PROCTOR, Defendant and Appellant.
Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance by 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 17NF2235) OPINION Appeal from a judgment of the Superior Court of Orange County, J. Michael Beecher, Judge. (Retired judge of the Orange Super. Ct assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance by Respondent.
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A jury found defendant Elliot Sunshine Proctor guilty of second degree robbery, a felony, brandishing a deadly weapon, a misdemeanor, and resisting and obstructing a police officer, a misdemeanor. The trial court struck four prior convictions for sentencing purposes only, and sentenced defendant to three years in state prison.
We appointed counsel to represent defendant on appeal. Counsel filed a brief which set forth the facts of the case. Counsel did not argue against the client, but advised the court no issues were found to argue on defendant's behalf. Defendant was given 30 days to file written argument in defendant's own behalf. That period has passed, and we have received no communication from defendant.
Pursuant to Anders v. California (1967) 386 U.S. 738, counsel provided three areas he thought might warrant attention by this court. We address each of those in turn.
"1. Was there sufficient evidence of a robbery? (People v. Estes (1983) 147 Cal.App.3d 23.)"
Dawn Hamelin, the victim in the robbery conviction, has worked for Ralph's for 38 years, 15 years of which have been at a store in Anaheim. She is known as a receiver of products that will be placed on the store's shelves. She works in the back of the Anaheim store, through two double doors that push open and bear a sign stating, "'Employees Only.'" That area is known as the warehouse, a place where only Ralph's employees and delivery people go. In making deliveries, vendors come into the warehouse area through a roll-up door in the back.
At around 10:00 a.m., on August 17, 2017, Hamelin heard the double doors open and she walked out to see who was coming into the back. She saw "someone that shouldn't have been there." In court, she identified defendant as that person. Hamelin asked defendant why he was back there and he responded, "'I'm looking for my bike.'" Defendant was holding a bag of sunflower seeds. Hamelin told him his bike was not back there and customers were not supposed to be there. Instead of going back through the double doors into the store, defendant headed toward the emergency exit and left the store. When defendant pushed the bar on the emergency exit, an alarm sounded. Hamelin was behind him as he left; she called after him, "'Next time, pay for the seeds.'" She said she did not call the police, explaining, "He got a bag of 99-cent sunflower seeds."
Between 11:30 a.m., and 12:00 p.m., Hamelin was speaking with another Ralph's employee when she saw defendant in the back area again. She said to defendant, "'What are you doing? I told you not to be back here.'" Defendant went toward the back roll-up door, which was open. Hamelin tried to stop him by grabbing his shirt and saying, "'What are you doing? You are not going out this door.'" Defendant swung around and said, "'Don't touch me,'" and hit Hamelin on her forearm. It was when he turned around to hit her that Hamelin realized defendant had something, "because he dropped his Doritos all over the ground." Hamelin grabbed her phone and called 9-1-1.
Defendant went out the roll-up door. The men in the warehouse with Hamelin chased after defendant. Defendant turned around and threw "a little plastic kid's ball" at one of the men chasing him, saying, "'Come on, Homey. Come on.'" Defendant left on a bicycle.
The police arrived shortly thereafter. Within a half hour, Hamelin identified defendant in a field identification. Thereafter, Hamelin watched a store video, and that was the first time she realized that, in addition to the Doritos and ball, defendant was also holding a bottle of vodka. In court, the prosecutor played a video from inside the store, and Hamelin identified defendant as the person who took a bottle of vodka off a store shelf.
An independent distributor for Peet's coffee making a delivery to Ralph's, Juan Crespo, was one of the men in the back with Hamelin. On August 17, Crespo saw someone in the back without a uniform. He said, "Everybody that is back there is pretty much labeled on their shirt or uniform . . . ." The person was holding things in his hands, including "a big bottle of liquor." In court, Crespo identified defendant as that person. He saw defendant swing or try to swing at Hamelin. Once defendant made it out the door, Crespo was "just making sure [Hamelin] wouldn't get hurt." Crespo described how defendant held a glass bottle of vodka above his head "like a hammer," in kind of a swinging motion directing it toward Crespo and the others present. Defendant told everyone to stay back. At that point, Crespo stood back, "being the fact that I did not want to get assaulted." The other men present also stopped pursuing defendant and he continued to walk away. Crespo said he felt defendant "was trying to get away with the items that he had in his possession," and he did get away with them.
Gustavo Rogero, a Ralphs' employee, was in the back speaking with a 7-Up distributor when he observed defendant pushing Hamelin. At trial, Rogero was asked what he did after he saw defendant push Hamelin, and he responded: "Well, I walked towards the back. And then he was already kind of running, and we followed him around the store, you know, at a distance, and he kept turning around and acting like he was going to throw the bottle at us, so I don't want to get a bottle thrown at me, so I kept my distance." After that, defendant dropped the ball he was holding, and then "he turned around and kind of gave us a warning with the bottle." Rogero said he thought defendant got on a bike after running into the parking lot.
We recognize that Hamelin did not realize defendant was carrying Ralphs' merchandise when she pulled at his shirt and he hit her. In People v. Estes, supra, 147 Cal.App.3d 23, an employee of Sears, Roebuck & Company followed the defendant outside the store after he was observed stealing merchandise. The defendant pulled out a knife and threatened the employee. (Id. at p. 26.) In its analysis, the Estes court stated: "The events constituting the crime of robbery, although they may extend over large distances and take some time to complete, are linked by a single-mindedness of purpose. [Citation.] 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." (Id. at p. 28.) In the present case, there is substantial evidence in the record from which the jury could reasonably infer defendant had the single-mindedness of purpose to get away with the vodka, and used force and fear on Hamelin to accomplish that purpose.
"2. Did the prosecutor engage in burden shifting during closing argument, and if so, was the error prejudicial?"
On cross-examination, Hamelin admitted she asked the police officer not to say anything in the police report about how she grabbed defendant's shirt "'because I'm not losing my job over some fool.'" It was Ralphs' policy that employees were not supposed to make physical contact with a shoplifter.
During final argument, defense counsel stated: "She is the one who went against company policy and against her own common sense." Later, the prosecutor, while discussing the elements of a robbery said: "Where in any of those elements does it say that Dawn Hamelin has to comply with Ralphs' policy?" Defense counsel objected that the prosecutor was "burden shifting." The court, while never actually ruling on the objection, stated: "I think she is going to cover the elements here, and she is still arguing."
Later, when the court instructed the jury, those instructions included the following: "'A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove the defendant guilty beyond a reasonable doubt. [¶] When I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt, unless I specifically tell you otherwise.'"
We find no error in the prosecutor's discussion of the elements of robbery during argument.
"3. Did the prosecutor misstate the law when she claimed during closing argument that she did not have to prove that appellant acted in self-defense? ([Citation]; see People v. Banks (1976) 67 Cal.App.3d 379, 383-384.)"
During final argument, defense counsel stated: "And what did Mr. Proctor do in the face of her initiating contact on him? He tried to get her away from him. He used nothing more than self-defense to get her off of him, and now the government wants to hold Mr. Proctor accountable for a woman who goes outside of store policy. . . . [¶] . . . [¶] She pursued him. She grabbed his shirt so hard that you could see in the video, even - and it was good quality—you could see the length by which she was pulling on that shirt. [¶] . . . [¶] His intent was self-defense. We are dealing with a person who doesn't like people touching him. That is obvious."
Later, the prosecutor stated: "I'm going to talk to you a little bit about intent and self-defense. Self-defense is not a defense to this crime. I don't have to prove he wasn't acting in self-defense. What I do have to prove is that his intent, when he was swinging at Ms. Hamelin, that his intent was to deprive or get away with that property. And I do it with circumstantial evidence."
Defense counsel did not object to the prosecutor's statements, so this issue is not preserved for appeal. (Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 737-738.) Also, while the court instructed the jury that self-defense is a defense to resisting a police officer, we find no indication in the record with regard to robbery that a self-defense instruction was requested or even discussed with the court.
The jury was instructed as follows: "The defendant's intent to take the property must have been formed before or during the time he used force or fear. If the defendant did not form this required intent until after using the force or fear, he did not commit robbery." Instructions were also given on two lesser included crimes, attempted robbery and theft by larceny. Thus, if the jury thought Hamelin's grab at defendant's shirt somehow mitigated defendant's conduct, it had ample opportunity to do something other than convict him of robbery.
Finally, the prosecutor's argument was correct. People v. Banks, supra, 67 Cal.App.3d 379, involved a homicide, not a robbery. Self-defense is not a recognized defense to the crime of robbery. (People v. Costa (1963) 218 Cal.App.2d 310, 316.)
As we are required to do, we have reviewed the entire record since appointed counsel submitted a brief raising no specific issues. (People v. Wende (1979) 23 Cal.3d 436, 441.) We find no error. The judgment is affirmed.
MOORE, ACTING P. J. WE CONCUR: ARONSON, J. FYBEL, J.