Opinion
E067853
03-26-2018
THE PEOPLE, Plaintiff and Respondent, v. DAVID TORRES SALCEDO, Defendant and Appellant.
Mitchell Keiter, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Charles C. Ragland, Scott C. Taylor and Meredith S. White, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FWV1600070) OPINION APPEAL from the Superior Court of San Bernardino County. Ingrid Adamson Uhler, Judge. Affirmed with directions. Mitchell Keiter, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Charles C. Ragland, Scott C. Taylor and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
A jury convicted defendant and appellant, David Salcedo, of robbing his girlfriend's cell phone at a Chino gas station, while she was talking to a 911 call dispatcher. (Pen. Code, §§ 211, 212.5, subd. (c); count 1.) Because defendant had cohabited with the victim, who was the mother of his two children, the jury also convicted him of battery against a fellow parent, a lesser included offense within the crime of corporal injury on a spouse or cohabitant. (§§ 243, subd. (e)(1), 273.5, subd. (a); count 2.)
Unless otherwise noted, all statutory references are to the Penal Code.
Defendant was on parole at the time of the robbery, and the trial court found in bifurcated proceedings that defendant's prior convictions were true. The trial court therefore sentenced defendant to a total prison term of nine years, consisting of a mitigated two-year term for the offense of second degree robbery (§ 213, subd. (a)(2)), doubled to four years because of a prior strike (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1)), with an additional consecutive five-year enhancement for a serious prior conviction (§ 667, subd. (a)(1)).
The trial court also struck the one-year term commitment requirement of section 667.5, subdivision (b), for each prior separate term of incarceration, pursuant to section 654. As to count 2, the trial court sentenced defendant to serve a total of 360 days, of which 180 days had been served and for which defendant was entitled to 180 days of conduct credit. --------
On appeal, defendant contends there was insufficient evidence to support his robbery conviction because there was no evidence that he intended to deprive the victim of her cell phone permanently or temporarily of its main value, namely, its utility for summoning emergency assistance. Defendant argues he could not have had the requisite specific intent for robbery because he knew the victim had already reported her location to the police dispatcher when he allegedly snatched the cell phone away from her. He also could not have prevented the victim from obtaining emergency assistance by snatching the cell phone because the gas station clerk made a separate 911 call to the police. Defendant also argues that the victim did not believe defendant had robbed her. She believed that defendant could only be charged for wrongfully terminating her phone call, an offense she thought was a misdemeanor. Additionally, defendant argues the trial court erred in denying his section 1118.1 motion based on People v. Aguilera (2016) 244 Cal.App.4th 489 (Aguilera).
We reject defendant's claim that there was insufficient evidence in the record to establish the requisite specific intent for second degree robbery. The record in this case contains substantial evidence from which the jury could reasonably infer that defendant snatched away the victim's cell phone to prevent her from continuing to report or record his conduct. The jury could also reasonably infer defendant's intent to temporarily, but for an unreasonable time, deny the victim of a major portion of her cell phone's value and enjoyment. Because such intent satisfies the specific intent requirement for robbery, we conclude that sufficient evidence supports defendant's conviction for second degree robbery. (People v. Bacon (2010) 50 Cal.4th 1082, 1117 (Bacon); People v. Avery (2002) 27 Cal.4th 49, 52, 55, 58 (Avery); People v. Davis (1998) 19 Cal.4th 301, 307.) We reject defendant's arguments and affirm the judgment.
II
FACTUAL BACKGROUND
A. The Incident at the Chino Gas Station
On January 5, 2016, around 4:30 p.m., defendant was a passenger in a motor vehicle driven by the victim, travelling eastbound on California State Route 60 (Route 60). Defendant and the victim began to quarrel during the drive. The quarrel eventually escalated into a physical altercation in which the victim claimed defendant hit her ear with a full pack of cigarettes and spilled a soda onto her leg. The victim then exited Route 60 and drove her vehicle into the parking lot of a gas station in the City of Chino. The victim exited the vehicle and called 911 on her cell phone at approximately 4:39 p.m. She gave the dispatcher her general location and was told that Chino police officers were on the way. During the 911 call, defendant was heard pleading with the victim to stop talking to the dispatcher, and he demanded that the victim give him her cell phone. The call was disconnected shortly thereafter.
Most of the altercation was witnessed by the gas station clerk. The clerk saw the victim walking from a gasoline pump while talking on a cell phone. The clerk noticed the victim was upset and possibly crying. The clerk saw defendant walking quickly in pursuit of the victim. The clerk also witnessed defendant repeatedly grab the victim and attempt to take away her cell phone. Defendant then struck the victim in the ear with his open palm. The clerk lost sight of defendant and the victim when they walked behind the gas station. The clerk then called 911 to report the incident. When the clerk went outside to confront defendant and tell him that the police were coming, she noticed that the victim no longer had the cell phone.
B. Police Interviews
When the Chino police arrived, one of the officers interviewed defendant, the victim, and the clerk. The officer found defendant was holding a cell phone. Defendant admitted to the officer that it was the victim's cell phone, but denied having "snatched" the cell phone away from the victim. Defendant also admitted to the officer that he held the victim's hand while she talked on the cell phone. Contrary to defendant's denial, the victim told the officer that defendant grabbed her cell phone from her. The gas station clerk recounted her version of the events and told the officer that a gas station video surveillance camera might have recorded the incident. The officer located and reviewed the video of the incident. The video corroborated that defendant and the victim were arguing at the gas station, but it was inconclusive as to whether defendant had struck the victim.
C. Recorded Jail Calls
While defendant was in custody between January 7, 2016, and February 22, 2016, at least five jail calls between him and the victim were recorded. During the jail calls, the victim was recorded saying that defendant "snatched" the cell phone during the incident. The victim was also recorded saying that defendant disconnected the 911 call and walked away with the cell phone, even though she had completed the call to the police. Additionally, defendant was recorded describing his concern that the victim had called the police. These statements and exchanges between defendant and the victim were later played to the jury.
III
DISCUSSION
The sole issue on appeal is whether defendant's robbery conviction should be reversed for insufficient evidence of his specific intent to permanently deprive the victim of her cell phone or to temporarily, but for an unreasonable time, deprive the victim of a major portion of her cell phone's value and enjoyment.
A. Standard of Review
"In reviewing the sufficiency of evidence to support the jury's finding, we review the record in the light most favorable to the prevailing party, resolving in favor of the prevailing party all conflicts in either the evidence or the reasonable inferences to be drawn therefrom, to determine whether the record contains substantial evidence, contradicted or uncontradicted, supporting the finding. [Citations.] "'Substantial evidence" is evidence of ponderable legal significance, evidence that is reasonable, credible and of solid value.' [Citation.] 'The focus is on the quality, rather than the quantity, of the evidence.' [Citation.] 'Inferences may constitute substantial evidence, but they must be the product of logic and reason. Speculation or conjecture alone is not substantial evidence.' [Citation.] 'The ultimate test is whether it is reasonable for a trier of fact to make the ruling in question in light of the whole record.' [Citation.] The testimony of a single witness may be sufficient." (Markow v. Rosner (2016) 3 Cal.App.5th 1027, 1045.)
B. Requisite Specific Intent for Robbery
"[T]he general rule is that the intent to steal required for conviction of larceny is an intent to deprive the owner permanently of possession of the property. [Citations.] . . . But the general rule is not inflexible: 'The word "permanently," as used here is not to be taken literally.'" (People v. Davis, supra, 19 Cal.4th at p. 307.) The element of specific intent to permanently deprive an owner of his or her property can be satisfied even when the defendant's primary purpose is not to deprive the owner permanently of possession (Avery, supra, 27 Cal.4th at pp. 55, 58), except "when the nature of the property is such that even a temporary taking will deprive the owner of its primary economic value." (Id. at p. 56.) Therefore, "the intent to deprive permanently is satisfied by the intent to deprive temporarily but for an unreasonable time so as to deprive the person of a major portion of the value or enjoyment." (Bacon, supra, 50 Cal.4th at p. 1117; see also Avery, supra, at pp. 52, 58.)
"The intent with which an act is done may be gathered from all the circumstances shown in evidence, and is a question of fact." (People v. Bateman (1959) 175 Cal.App.2d 69, 74.) The specific intent required to establish robbery under section 211 may be established by circumstantial evidence as well. (People v. Nichols (1967) 255 Cal.App.2d 217, 220.)
C. Sufficiency of the Evidence Supporting Defendant's Robbery Conviction
If the record contains substantial evidence from which the jury could reasonably infer defendant's intent to temporarily, but for an unreasonable time, deny the victim of a major portion of her cell phone's value and enjoyment, then sufficient evidence supports defendant's jury conviction, and the judgment should be affirmed. (Avery, supra, 27 Cal.4th at pp. 55-56; Bacon, supra, 50 Cal.4th at p. 1117; Markow v. Rosner, supra, 3 Cal.App.5th at p. 1045.) We conclude there was substantial evidence of the requisite specific intent for the following reasons.
Here, the record shows defendant repeatedly grabbed the victim, struck her, and attempted to take her cell phone away while the victim was talking to the police dispatcher. Defendant pled with the victim to stop talking to the police dispatcher, as recorded in the 911 call. Defendant admitted in his jail call that he did not want the victim talking to the police dispatcher, and defendant never contradicted the victim's jail call description of how he snatched the cell phone away from her and ended the 911 call.
This evidence amounts to substantial evidence from which the jury could have reasonably inferred that defendant did not want the victim to continue reporting or recording his conduct by means of her cell phone, and therefore took the cell phone away from her. The jury could also have reasonably inferred that defendant intended to take away the victim's cell phone long enough to deprive her of a major portion of its value or enjoyment, namely, the ability to continue reporting or recording his conduct. Depriving the victim of the opportunity to report or record his conduct satisfies the requisite specific intent for robbery. Therefore, we conclude that sufficient evidence supports defendant's conviction for second degree robbery, and the judgment should be affirmed.
D. Defendant's Incorrect Theory of the Specific Intent Requirement
Defendant argues that his intent to deprive the victim of her cell phone for a short time is insufficient to satisfy the requisite element of specific intent for robbery. The People argue that defendant relies on inapplicable case law that predates the California Supreme Court's clarification of the specific intent requirement in Avery, supra, 27 Cal.4th 49. We agree defendant relies on outdated or inapposite case law.
First, defendant looks to the holding of People v. Brown (1894) 105 Cal. 66 (Brown). In Brown, the defendant was convicted of burglary because he was found at trial to have entered a house and taken a bicycle, even though he intended to return it the next evening. The Brown court found that the trial court erred in instructing the jury that "larceny may be committed, even though it was only the intent of the party taking the property to deprive the owner of it temporarily." (Id. at p. 69.) The Brown court held instead that "the felonious intent must be to deprive the owner of the property permanently." (Ibid.) However, this holding was distinguished by Avery, which held that the requisite specific intent can be satisfied even when the defendant's primary purpose is not to deprive the owner permanently of possession. (Avery, supra, 27 Cal.4th at pp. 55-57 ["Despite the seemingly absolute language used [in Brown], the authority we cited 'as directly and fully sustaining this principle'. . . shows we did not mean it absolutely."].) Brown was also distinguished by its unique circumstances. (People v. Romano (1961) 197 Cal.App.2d 622, 629.) The Brown defendant stated his intent was "to return the bicycle unconditionally within a day." (People v. Shannon (1998) 66 Cal.App.4th 649, 657, italics added.) Brown is thus inapposite, since there is no evidence that defendant here intended to return the victim's cell phone unconditionally.
Second, defendant relies on People v. Turner (1968) 267 Cal.App.2d 440, which states that "[o]ne who takes another's property for temporary use or concealment, with the intention of returning it, is liable in tort for damages but is not guilty of larceny." (Id. at p. 444.) But Turner's holding, like Brown's, is superseded by subsequent case law, including Avery, which held that even a temporary taking of property can satisfy the specific intent element "when the nature of the property is such that even a temporary taking will deprive the owner of its primary economic value." (Avery, supra, 27 Cal.4th at p. 56.)
E. Defendant's Unsound Evidentiary Arguments
Because the evidence shows that defendant snatched the victim's cell phone while the victim was already talking to the 911 dispatcher, defendant argues that he could not have intended the pointless act of preventing the victim from making her 911 call. The defendant also argues that his inability to prevent the victim from making the 911 call demonstrates he could not have deprived the victim even temporarily of her cell phone's utility in calling for emergency assistance. In response, the People argue that defendant's evidentiary arguments are misplaced because defendant emphasizes what actually resulted from his actions to the exclusion of the result he intended when he snatched the cell phone away from the victim. The People argue, as well, that defendant characterizes the value or utility of a cell phone in emergency situations too narrowly. We agree with the People. Defendant's arguments are not based on substantial evidence but on conjecture.
Defendant assumes he knew that the victim successfully communicated her location to the 911 dispatcher at the time of the incident. However, defendant was not talking on the cell phone with the dispatcher and could not have known whether the victim had successfully communicated her location. Defendant also assumes that the value of the victim's cell phone consisted solely of the victim's ability to initiate the 911 call, and the only action that would have deprived the victim of a major portion of her cell phone's value was defendant preventing the 911 call. But the cell phone also had value as a means of further documenting or recording defendant's conduct, and defendant deprived the victim of that value by snatching the cell phone away from her. Defendant even concedes this point in his opening brief: "At worst, Salcedo acted to prevent a report to police of his misbehavior."
In addition, defendant argues the victim's belief that defendant committed a lesser offense than robbery constitutes evidence that he did not commit robbery. This argument lacks merit. It assumes that the victim's opinion is probative of whether defendant intended to commit second degree robbery, when the victim's opinion on the matter is irrelevant.
F. Applicability of the Aguilera Facts
Relying on the facts of Aguilera, supra, 244 Cal.App.4th 489, the trial court denied defendant's oral motion under section 1118.1 to enter a judgment of acquittal for insufficient evidence to sustain a robbery conviction. Defendant contends the trial court erred in denying his section 1118.1 motion because the court found Aguilera controlling. We disagree. Aguilera is controlling in the present case.
In Aguilera, a jury convicted defendant of robbing his wife, based on evidence that he took his wife's cell phone to prevent her from calling the police while he was violently assaulting her. (Aguilera, supra, 244 Cal.App.4th at p. 492.) The Aguilera defendant argued on appeal that the evidence was insufficient to support his robbery conviction because, even if he intended to temporarily deprive his wife of a major portion of the value or enjoyment of her cell phone, the cell phone was community property. Thus, the Aguilera defendant did not take property that was not his own. (Id. at p. 493.)
The Aguilera court held that "one spouse can be convicted of robbing the other of community property on a temporary taking theory," and "the principles of separate and community property are immaterial to a robbery prosecution. . . ." (Aguilera, supra, 244 Cal.App.4th at p. 493.) The Aguilera court also held in reliance on Avery and Bacon that the intent to deprive another of property permanently "'is satisfied by the intent to deprive temporarily but for an unreasonable time so as to deprive the person of a major portion of its value or enjoyment.'" (Aguilera, supra, at p. 500, citing Bacon, supra, 50 Cal.4th at p. 1117 and Avery, supra, 27 Cal.4th at p. 57.)
In this case, defendant argues that the facts of Aguilera are not controlling because the defendant took the victim's cell phone to prevent her from calling the police, while defendant, here, could not prevent the victim from calling the police. The victim in this case was already talking with the 911 dispatcher when defendant snatched the cell phone away from her. As a result, defendant insists he could not have intended to prevent the victim from obtaining emergency aid and thus could not have intended to deprive the victim of a major portion of her cell phone's value and enjoyment when he snatched it. Defendant therefore maintains that his intent differed from the Aguilera defendant's intent.
As already noted above, defendant's inability to prevent the victim's 911 call did not preclude defendant from intending to deprive the victim of some other valuable cell phone function. The jury could reasonably infer that defendant snatched the victim's cell phone to prevent the victim from using it to continue reporting or recording his conduct. In so doing, defendant intended to deprive the victim of a major portion of her cell phone's value and enjoyment.
As in Aguilera, defendant snatched away the victim's cell phone long enough to deprive the victim of a major portion of its value or enjoyment. Consequently, the trial court properly denied defendant's section 1118.1 motion.
G. Clerical Error
Finally, we note a clerical error in the trial court's March 1, 2017, abstract of judgment. The abstract of judgment should reflect that the conviction date for the first count of second degree robbery was June 28, 2016.
IV
DISPOSITION
The trial court is directed to modify the abstract of judgment in accordance with this opinion and forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
Acting, P. J. We concur: SLOUGH
J. FIELDS
J.