Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court No. SWF002863 of Riverside County, Judith C. Clark, Judge.
Richard Power under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Ronald Jakob and Daniel Rogers, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Sills, P. J., Rylaarsdam, J., and Fybel, J.
Appellant contends his due process rights were violated when the jury convicted him of two counts of robbery in concert based on insubstantial evidence. He was charged with and convicted of four counts of robbery in concert, but complains that he should not have been convicted of two of the counts (counts 1 and 2), because the victims, who were children, did not have possession of the items which were stolen from the home during the robbery, and because the items were not taken from their immediate presence. His contentions fail, and we affirm the judgment.
I
Facts and Proceedings
In October of 2006, defendant was charged by a fourth amended information with four counts of first-degree robbery in concert (counts 1 – 4); assault by means of force likely to produce great bodily injury (count 5); burglary (count 6); and kidnapping to commit robbery (count 7.) The information further alleged he personally used a firearm in the commission of counts 1 through 4; he committed the robberies charged in counts 1 and 2 against persons who were under the age of 14; he previously had been convicted of a serious felony; and he suffered a prior conviction under the Three Strikes law.
Co-defendants Daniel Rodriguez (Rodriguez) and James Masiel were charged along with defendant. In October of 2005, Rodriguez entered into a plea bargain in return for a sentence of 13 years. In February of 2008, a mistrial as to Masiel was declared after the jury failed to reach a verdict. A second trial also ended unsuccessfully, and the charges against Masiel were dismissed.
In February of 2008, the jury convicted him of counts 1, 2, 3, 4, and 6. The jury found him guilty of the lesser included offenses of assault as to count 5, and false imprisonment by violence as to count 7. The jury also further found the related enhancements to be true. In a court trial, the court found the prior conviction allegations to be true. Defendant was sentenced to a total term of 29 years-to-life in state prison as follows: As to count 1, the court imposed a sentence of 6 years doubled to 12 years; 10 years for the firearm use, two years for the age enhancement, and five years for the prior serious felony. All the other counts were imposed concurrently, or were stayed pursuant to Penal Code section 654.
All the references are to the Penal Code unless otherwise noted.
Facts
Events Prior to the Robbery
In early February 2003, Maria Casarez (Casarez) was inside of her RV trailer along with defendant and Daniel Rodriguez, when the men began to discuss their plan to commit a robbery. They intended to rob someone that Rodriguez knew who lived in San Jacinto. The victim was chosen because he was known to keep guns, money and drugs (methamphetamine) in his home, and because the house was, according to Rodriguez, “easy to get in to and out.”
On the following day, defendant, Rodriguez, and Rodriguez’s girlfriend Tonya Murillo returned to Casarez’s RV. The men continued discussing the robbery, and also considered whether they should involve a third person in the crime. Defendant and Rodriguez left the RV and later returned later with Jesus Masiel (Masiel.) The three men left sometime later in a Ford Escape vehicle, telling Casarez before they departed, that they were going to commit the robbery.
The Home Invasion Robbery on February 9, 2003
On February 9, 2003, Daniel L. lived in San Jacinto with his wife Francisca C. and three of their four daughters. Their two youngest daughters, 10 year-old B.L. and eight year-old D.L. lived with them, as well as their older daughter Danielle, and Danielle’s daughter. Daniel, Francisca, B.L., and D.L. were at home during the early afternoon on February 9, 2003, when defendant and Rodriguez knocked on their front door.
Danielle and her daughter were not at home when the robbery occurred.
D.L. heard the doorbell ring and answered the door. When she opened the door she saw Rodriguez, whom she recognized because he had previously visited the home, and she also saw a man whom she later identified as the defendant. They asked for Daniel. D.L. told them her father was not there and did not let them inside of the house. The two men left.
D.L. knew Rodriguez because he had been over to the house on previous occasions to talk to D.L.’s older sister Danielle. When Rodriguez came to visit Danielle, he often spent time with Daniel out in the family garage where Daniel showed him his collection of coins and hunting rifles. Daniel often tried to counsel Rodriguez about doing something more productive with his life, and told him not to dress like a gang member. Francisca did not like Rodriguez to visit the home particularly because he dressed, and he looked like a gang member.
The Robbery
Later that day, defendant and Rodriguez returned to the residence. They rang the bell and D.L. opened the door. Again, they asked for Daniel. D.L. told them her father was not there, and closed the door. She did not lock the door after she closed it. She went upstairs to ask Francisca what to do because the two men had come back again asking for Daniel. While she was in the process of speaking with her mom, the two men entered the house.
Once inside the house, defendant and Rodriguez began yelling and waving guns around. D.L. said defendant had a large submachine gun that looked like a “MAC-10.” The defendant pushed D.L. into the bathroom, and told her to shut up and stop crying. D.L. kept peeking out of the bathroom to see what was happening to her family. When the defendant saw her standing outside of the bathroom, he dragged her back inside by her arms. At this point, D.L. was so terrified that she urinated in her pants. At some point, she was joined in the bathroom by her sister B.L. Rodriguez yelled at both girls, and told them if they didn’t stay in the bathroom he would kill Daniel and Francisca. D.L. overheard the men yelling at her parents, and demanding to know where they kept the jewelry, the guns, and the coins. She also heard the men yell at her dad, and told him that if he didn’t stay still, they were going to shoot D.L.
B.L. was in her bedroom lying on her bed, when Rodriguez and defendant stormed the house. As soon as she heard yelling, she moved from her bed to the floor and called 911. She told the 911 operator that there were men in her house who were threatening to kill her mother and father. After she called 911, B.L. snuck out of her bedroom and ran out of the house and on to the driveway. While she was in the driveway, she saw a man get out of an SUV. The man had dark skin and looked to be of American Indian ancestry. He also had a band aid on his right cheek. When the man saw B.L., he ordered her to get back inside of the house. He followed her inside of the house, and made her sit at the kitchen table. When defendant came into the kitchen and saw B.L., he told her “you’re not leaving” and then he threw her inside of the bathroom with D.L.
Francisca was inside the master bedroom when the defendant and Rodriguez first entered the house. She knew something was wrong when she suddenly heard D.L. yell. When she looked up, she saw Rodriguez with a shotgun, and the defendant with a MAC-10 machine gun holding on to D.L. and dragging her down the hallway. Rodriguez started yelling about where Daniel’s coin and gun collections were located, and he left the house and went into the garage to search for them.
In the meantime, defendant told Francisca to get Daniel, who was preparing to take a shower, out from the bathroom. Once Daniel was out of the bathroom, defendant forced Daniel to lie on his stomach, kicked him, and handcuffed Daniel’s hands behind his back. He demanded coins, guns, jewelry, and money from Daniel. Daniel said he had sold the coins and guns.
The defendant then rifled through Daniel’s dresser taking any money and jewelry he could find. The items defendant took included $60 in cash, some chains and rings, a watch, and some coins. Rodriguez, who had been searching in the garage for the coin and gun collection, returned to the house. Rodriguez brought with him a duffle bag filled with Daniel’s pellet guns, antique rifles, knives, swords, wood carving tools, and the wooden canes that Daniel had carved by hand. Defendant and Rodriguez also asked Daniel about the location of his safe, but Daniel did not tell them where it was located.
Approximately 20 minutes after D.L. and B.L. had been forced into the bathroom together, one of the assailants yelled out the “hudas” (or slang word for police) were coming. The assailants then fled the house through a sliding glass door, and scattered in different directions. Rodriguez left the loot he had taken from the garage inside the hallway of the house, and defendant left behind his MAC-10 submachine gun on top of the family dishwasher.
Events After the Robbery
Defendant called Casarez and Murillo and told them to pick him up because “something went wrong.” Defendant also told Casarez to start preparing a witness named “Holly” to testify regarding an alibi for him. Rodriguez was arrested the same night as the robbery. Police later went to a motel where defendant was hiding out. When the police located him at the motel, defendant jumped out of a window and ran towards a nearby business where the police apprehended him.
II
Discussion
A. Substantial Evidence Supported Defendant’s Conviction of Robbery in Concert
Defendant argues there was insufficient evidence to support his conviction for the two counts of robbery in concert involving D.L. and B.L. Defendant contends he should not have been convicted of these two counts because the girls did not have possession of the items that were stolen from their home, and because these items were not taken from their “immediate presence.” Defendant’s contentions fail.
Sufficiency of the Evidence
“‘In reviewing the sufficiency of evidence under the due process clause of the Fourteenth Amendment to the United States Constitution, the question we ask is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”’ ([People v.] Rowland [(1992)] 4 Cal.4th [238] 269, quoting Jackson v. Virginia (1979) 443 U.S. 307, 319. We apply an identical standard under the California Constitution. (Ibid.) “In determining whether a reasonable trier of fact could have found defendant guilty beyond a reasonable doubt, the appellate court ‘must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.”’ (People v. Johnson (1980) 26 Cal.3d 557, 576; People v. Young (2005) 34 Cal.4th 1149, 1175.)
As will be discussed below, there was sufficient evidence to support defendant’s conviction of the two counts of robbery in concert because D.L. and B.L. constructively possessed the items stolen from their home.
Constructive Possession as it Pertains to the Crime of Robbery
Penal Code section 211 defines robbery as ‘“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.’” (People v. Scott (2009) 45 Cal.4th 743, 749.) For the purposes of supporting a robbery conviction, possession may be actual or constructive, and it need not be exclusive. (People v. Miller (1977) 18 Cal.3d 873, 880-881; People v. Nguyen (2000) 24 Cal.4th 756, 764).
The law has developed to the point where, “Constructive possession may be in a servant or agent of a business owner. [Citation.] “‘As against the robber, a servant has the same right, and rests under the same duty, to preserve and defend his possession of the property that the owner has. He is the custodian, and has a right to oppose the violence offered by the robber with violence, if necessary...’” [Citation.] “‘Various types of servants and agents have been held to have had possession of [business] property taken, for the purposes of [robbery convictions].”’ [Citation.] In considering the issue of constructive possession as to nonemployees, the purported victim must have a special relationship with the owner of the property. [Citations.]” (People v. Gilbeaux (2003) 111 Cal.App.4th 515, 520, 521.)
As the court most recently in People v. Scott, supra, 45 Cal.4th 743, at pp. 757-758, further explains, the crime of robbery is a crime against the person. Or “may be committed against any person who is in possession of the property taken, because such a person may be expected to resist the taking, and in order to achieve the taking the robber must place all such possessors in fear, or force them to give up possession. [Citation.] By requiring that the victim of a robbery have possession of the property taken, the Legislature has included as victims those person who, because of their relationship to the property or its owner, have the right to resist the taking, and has excluded as victims those bystanders who have no greater interest in the property than any other member of the general population.”
Thus, the gravamen of the doctrine of constructive possession turns on the special relationship between the owner of the property and the robbery victim. (People v. DeFrance (2008) 167 Cal.App.4th 486, 497-499; People v. Galoia (1994) 31 Cal.App.4th 595, 599. The doctrine depends upon the special relationship with the owner of the property and not upon the motives of the person seeking to recover possession of the stolen property from a thief or burglar. (Sykes v. Superior Court (1994) 30 Cal.App.4th 479, 482, 484.)
Significantly, the concept of a “special relationship” as it relates to the doctrine of constructive possession has been extended to where a family member acting in a representative capacity over property belonging to other absent family members, is deemed to have constructive possession over the stolen property.
In People v. Gordon (1982) 136 Cal.App.3d 519, 523-524, 529, the court concluded that parents of an absentee son who lived with them had the responsibility to protect his property that was located in the family home. In Gordon, the home of Mr. and Mrs. Lopes was robbed, and they were ordered at gunpoint to lie on the floor. The defendant entered the Lopes’s son’s bedroom from which he took a shoulder bag, $1,000, and two pounds of marijuana. The prosecution did not provide any evidence that the Lopes’s had physical possession of the stolen items; both parents denied knowledge of the marijuana; and neither of them was questioned regarding the existence of the cash. The court concluded however that there was substantial evidence to prove the items were taken from the possession of the parents, because the jury could infer the parents had a responsibility to protect goods belonging to their son who resided with them.
Also, in People v. Moore (1970) 4 Cal.App.3d 668, an employee’s mother entered the business while a robbery was in progress. The defendant directed her to remove a money bag and money from a cash register and to give it to him. The defendant argued the employee’s mother was a visitor and not an employee. In affirming the conviction, the court found that once the mother “exercised dominion over the money, whatever her motivation in so doing, she became, insofar as defendant was concerned, the person in possession thereof, and she was properly designated in the information as the immediate victim of his robbery.” (Id. at pp. 670-671.)
B.L. and D.L. Had Constructive Possession of the Stolen Items
While the theory of constructive possession has been used to expand the concept to include employees and others including family members as robbery victims, our research has disclosed no published California case which addresses whether the theory would also include a young child. But, we conclude under the facts of this case that B.L. and D.L. were properly designated as robbery victims.
First, the jury may have reasonably found that the money and jewelry taken from Daniel’s dresser (which was not designated as the uniquely personal property of the parents), could conceivably have belonged to either one or both of the girls, and that the $60 which was taken along with some individual loose coins, could have been used for the family’s general welfare.
Moreover, the jury may have reasonably found that despite the relatively young age of B.L. and D.L., there existed a “special relationship” to the stolen items because the items were located in the family home and because family members were involved in the home invasion robbery. And, while D.L. and B.L. might not have been physically able to protect the family’s property, they were old enough to appreciate the fact that the property found within the home and garage needed to be protected from outsiders. This awareness caused them to protect the home and the other family members by preventing initial access to the home, and by having the prescience to call the police while the robbery was in progress.
Evidence of the “special relationship” both girls had to the items stolen from the home are supported by a number of factors. D.L. served as the gatekeeper who controlled access to the home, when she initially answered the door. She refused to let defendant and Rodriguez come into the house, and told them her father was not there. When they came back a second time, she told them her father was not home, and shut the door. Unfortunately, she did not lock it. She was concerned about the welfare of her family and her home, such that upon the assailants’ return, she went to consult with her mother about what further actions needed to be taken.
Additionally, D.L. frequently absented the bathroom where she was sequestered by force in order to monitor what was happening to her family during the robbery, and continued to do so until defendant told her to get back inside or he would kill her parents. Thus, any type of assistance, either verbal or physical that she might have offered to protect her family or the family property was effectively thwarted by the actions of defendant and Rodriguez in threatening to kill her family if she left the bathroom.
B.L.’s awareness of the robbery, and her attempts to protect her family members, and the contents of her home were even more pronounced. As soon as she heard yelling, she secretly called 911 to report the robbery. She told the 911 operator that there were men in her house who were threatening to kill her mother and father. Then, after she called 911, B.L. attempted to sneak out of the house. There was ample evidence for the jury to find that she clearly appreciated the risk and the danger to her family and possessions, and was trying to escape to get help.
Thus, in sum, we conclude that there was ample evidence to support the jury’s finding that defendant committed the robberies in concert of B.L. and D.L. on the basis they had constructive possession of the property stolen from their home based on their special relationship as “family members.” Defendant’s claim thus fails.
The Items Were Taken From the Immediate Presence of B.L. and D.L.
Defendant further argues the evidence failed to support the two counts of robbery in concert involving B.L. and D.L. because the items taken from Daniel’s dresser in the master bedroom, i.e., the jewelry, the cash, and the coins, were not taken from their immediate presence, and they were thus not aware the items were taken from the home. This claim is without merit.
In support of this claim, defendant relies on the facts in People v. Nguyen, supra, 24 Cal.4th at pp. 758, 764-765, for his contention that in Nguyen, the court found the evidence lacking that the robber took property from the person or the “immediate presence” of the visiting husband. We conclude however, that defendant’s reliance on Nguyen is misplaced.
In Nguyen, the husband of an employee was present during a birthday celebration for one of his wife’s co-workers. During the party, defendant and several co-defendants entered the premises. Defendant ordered everyone to lie down and bound them. He took approximately $400,000 worth of computer and memory chips.
The court instructed the jury that a person did not have to own, possess, be in control of, or have the right to possess or control the property forcibly taken. The Supreme Court found this instruction to be erroneous, in that an essential element of the crime of robbery is that the property be taken from the possession of the victim. (Id. at pp. 762, 765.) The court further concluded that the husband was a visitor to the business and was not in actual or constructive possession of the property taken from the business.
The facts of this case however, are not similar to those present in Nguyen. The robbery here took place in the victims’ home, and involved property that the jury could reasonably have inferred was jointly possessed by the family. Moreover, there was a “special relationship” here that was not present in Nguyen. In Nguyen, the husband was merely a “bystander” in that he was visitor to the business, and he had no possessory rights, in the property taken.
Thus, defendant’s argument reduced to its essence is that a robbery victim does not “possess” property unless he or she is aware that it is being taken at the moment of the robbery. This claim lacks merit. As previously explained, a victim possesses property if he or she has a legally recognizable interest in it. (People v. Galoia, supra, 31 Cal.App.4th at p. 599, fn. 1.) Moreover, courts have declined to find that a victim’s lack of knowledge an item was taken precludes a robbery conviction.
Lastly, we note that in cases involving a robbery, a taking may be accomplished by means of force or fear, even though the taking is not from the immediate presence of the victim. (People v. Hayes (1990) 52 Cal.3d 577, 627; Hayes v. California (1991) 502 U.S. 958.) The requirement that a taking be from a person or immediate presence of a victim merely describes a “spatial” relationship between the victim and the victim’s property and refers to the area from which the property has been taken.
Cases which have focused on the argument the taking is not from the immediate presence of the victim, concentrate on whether the taken property was located in an area in which the victim could have been expected to take effective steps to retain control over the property. (People v. Frye (1998) 18 Cal.4th 894, 955-956.)
In these cases, the property is deemed to be in the immediate presence of a person if the res or property is within his or her reach, inspection, observation or control, or that he or she could, if not overcome by violence or prevented by the fear; retain his or her possession of it. (People v. Webster (1991) 54 Cal.3d 411, 440; Webster v. California (1992) 503 U.S. 1009; People v. Dominguez (1992) 11 Cal.App.4th 1342, 1347-1348.) ‘“Under this definition, property may be found to be in the victim’s immediate presence “even though it is located in another room of the house, or in another building on [the] premises.” [Citations.]”’ (People v. Gomez (2008) 43 Cal.4th 249, 257.)
Examples include: People v. DeFrance, supra, 167 Cal.App.4th at p. 499; [car was stolen from a parking space designated for the condominium, and close enough that the victim was able to respond when defendant tried to steal it]; People v. Harris (1994) 9 Cal.4th 407, 422-424; [victim forcibly restrained in a car located outside of the office and the home while each location was looted]; People v. Webster, supra 54 Cal.3d at pp. 438-442 [defendants forced victim to walk a quarter mile away from his car, then killed him, and took his car]; People v. Hayes, supra, 52 Cal.3d at pp. 626-629;[victim was assaulted and killed 107 feet from where property was taken]; and People v. Bauer (1966) 241 Cal.App.2d 632, 641-642; [defendant killed victim inside of her apartment, took the victim’s keys, and then took her car which was parked outside].)
Even if we focus on arguments raised in the above line of cases, defendant’s argument still fails. The property taken here was within the control of the two young victims because it was located just down the hall, and D.L. and B.L. were prevented from exercising any physical control over the stolen items by the acts of defendant and Rodriguez who forced them to remain in the bathroom under the fear of threats to their family. Defendant’s claim fails.
III
Disposition
The judgment is affirmed.