Opinion
NOT TO BE PUBLISHED
Mendocino County Super. Ct. No. CR07794180
Lambden, J.
Defendant Quando LeCharles Tremble appeals from a portion of a judgment below, issued after jury trial, sentencing him to 19 years in state prison for first degree robbery and first degree burglary, with related sentence enhancements. Tremble argues that his conviction for first degree robbery must be reversed because there was insufficient evidence of robbery, since the alleged victim did not have possession of the stolen property, a duffel bag containing five pounds of marijuana, when it was taken. He seeks reversal of his robbery conviction and the related enhancement, and remand for resentencing. We affirm the judgment.
BACKGROUND
In February 2009, the Mendocino County District Attorney filed a first amended information charging defendant and another man who is not a party to this appeal, Lonnie McClain, with criminal conduct. As subsequently amended, the information charged defendant in count 1 with first degree robbery against Arnold Partridge, in violation of Penal Code sections 211 and 212.5, with an enhancement allegation regarding personal use of a firearm (§ 12022.53, subd. (b)); in count 2 with first degree burglary, in violation of sections 459 and 460, subdivision (a), with enhancement allegations regarding being armed with, and personal using, a firearm (§§ 12022, subd. (a), 12022.5 subd. (a)); and in count 3 with the transportation of marijuana, in violation of Health and Safety Code section 11360, subdivision (a), with an enhancement allegation regarding being armed with a firearm (§ 12022 subd. (a)(1)). The information also alleged defendant had suffered a prior robbery conviction within the meaning of sections 1170.12 and 667, and had served a prior prison term for robbery within the meaning of section 667.5, subdivision (b).
The second amended information is not contained in the record. We summarize it based on the prosecution’s oral representation to the court that its sole change was the correction of an erroneous statutory reference.
All further statutory references cite to the Penal Code unless otherwise indicated.
At the subsequent jury trial, the People’s case included the testimony of Partridge, the man the People contended had been robbed. Defendant argues on appeal that Partridge’s account did not establish that Partridge had possession of the duffel bag of marijuana that was taken and, therefore, that the People did not establish that defendant committed a robbery. We summarize only the testimony by Partridge that is relevant to defendant’s argument.
Partridge’s Testimony
Partridge testified that on July 29, 2007, his friend, Jodi Dutra, visited him at his home in Willits, California, accompanied by defendant, McClain, Dutra’s daughter, and Dutra’s nephew. Dutra asked Partridge if he knew anyone who would sell marijuana to defendant and McClain. Partridge called some people and eventually reached Kevin Slaughter, who a short time later came to Partridge’s house with five pounds of marijuana in a green and black duffel bag.
Partridge took the duffel bag from Slaughter’s vehicle and brought it into his home. Defendant and McClain examined the marijuana and said they did not want to pay Slaughter’s asking price of $4,000 per pound of marijuana, so Slaughter took the duffel bag and left, as did the others eventually.
Later that same day, Dutra called Partridge and said defendant and McClain were willing to pay Slaughter’s asking price. She asked Partridge to call Slaughter to see if he would drop the price, and to tell Slaughter to come back so that they could pick up the marijuana. Partridge called Slaughter, who agreed to return to Partridge’s house.
When Slaughter arrived, Dutra was waiting in Partridge’s house, and defendant and McClain were parked around the corner smoking a marijuana cigarette. Partridge went to defendant and McClain and told them that Slaughter was arriving, and they said they would come in a minute. Partridge then walked to Slaughter’s truck, dropped the tailgate, and picked up the duffel bag containing the marijuana. When asked at trial why the transaction did not occur outside, Partridge testified that he said, “Let’s go in my house.” He took the bag into his house and sat down on a couch in his front room with the duffel bag, which “was sitting right next to [his] feet.” Slaughter walked into Partridge’s home and stood by a heater.
Defendant, carrying a purse, and McClain came into Partridge’s front room three or four minutes later. Defendant asked if the price was still $4,000, and Partridge answered, “yes.” Defendant responded, “That sounds cool, ” then pulled a semi-automatic pistol from the purse, pointed it at Partridge’s head, and stated, “I don’t think so.” Pointing his gun at Partridge from about one and a half feet away, defendant demanded the duffel bag of marijuana from Partridge, but Partridge could not move because he was “scared” and “frozen” with fear. Defendant grabbed the duffel bag and began backing away. When Slaughter attempted to lunge for the duffel bag, defendant turned and pointed the gun at Slaughter, which allowed Partridge to grab his five-year-old daughter, who had entered the room, and escape to his kitchen. Partridge heard Dutra yelling and looked through the window; he saw defendant and McClain running to their car with the duffel bag. Shortly thereafter, he heard Slaughter’s truck quickly drive away.
Partridge also testified that he was interviewed by police on the day of the robbery, and an audio recording of this interview was played for the jury. According to a transcript of the audio recording given to the jury to review as they listened to the recording, Partridge told police that at one point “they said ‘how much is the price again?’ and [Slaughter] said, ‘41.’ and he goes, ‘Well, how about four, ’ and pulls a gun straight on me.” Partridge more or less repeated this account later in the interview as well.
This transcript is included in the record but apparently was not admitted at trial. Since the People do not object to defendant’s citation to the transcript, we consider it herein. The audio recording itself is not contained in the record submitted to this court.
At trial, Partridge was asked if there was anything he wanted to correct or change from the interview. He did not indicate any of his statements to police were incorrect. He also testified that he told the truth in both his interview and his testimony. He was not asked about possible inconsistencies between the two regarding the verbal exchange that occurred just before defendant pulled out a gun.
Partridge also testified that he was worried about contact with police because “I was selling marijuana out of my house.” Before he was granted immunity from prosecution for the transaction, he had been afraid of being prosecuted for arranging the sale of marijuana. He was not to receive any of the proceeds from the sale, but had merely acted to help Dutra, a long-time friend. He did not care particularly what happened to the duffel bag.
The Verdict, Sentence, and Appeal
Following jury trial, defendant was found guilty of all counts and the enhancements with respect to gun use were found true. Defendant admitted the prior conviction and prior prison term allegations. The court sentenced him to a total term of 19 years in prison. McClain was acquitted of all charges. Defendant subsequently filed a timely notice of appeal.
DISCUSSION
Defendant was convicted of the robbery of Partridge specifically, not of Slaughter. Defendant argues this conviction, and the related enhancement, must be set aside because there was insufficient evidence presented at trial that Partridge had possession of the duffel bag of marijuana when defendant took it. We find that Partridge’s testimony contains sufficient evidence of such possession and, therefore, affirm defendant’s conviction.
A. Relevant Legal Standards
We apply a substantial evidence standard of review here. “In addressing a challenge to the sufficiency of the evidence supporting a conviction, the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence-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. [Citation.] The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” (People v. Kraft (2000) 23 Cal.4th 978, 1053.)
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.” For the purposes of this appeal, the parties do not dispute that defendant took the duffel bag of marijuana “by means of force or fear” from the “immediate presence, ” and against the will of, Partridge, with the intent to permanently deprive him of it. However, defendant contests that the People failed to make the requisite showing that Partridge had “actual or constructive possession” of the duffel bag of marijuana when defendant took it. (See People v. Nguyen (2000) 24 Cal.4th 756, 764 (Nguyen) [discussing actual and constructive possession for purposes of establishing a violation of § 211].)
Defendant does not indicate that he challenged the sufficiency of the evidence regarding this “possession” element at trial, and our review of the record indicates that he did not do so. To the contrary, his counsel argued in closing argument that Partridge was an untrustworthy drug dealer, implying that Partridge lied to police because he had just committed a felony. However, the People do not raise any waiver, forfeiture, or estoppel issues. Accordingly, we address the merits of defendant’s appeal.
Our Supreme Court has recently confirmed that “neither ownership nor physical possession is required to establish the element of possession for purposes of the robbery statute.” (People v. Scott (2009) 45 Cal.4th 743, 749.) Furthermore, “constructive possession” is satisfied when there is “some type of ‘special relationship’ with the owner of the property sufficient to demonstrate that the victim had authority or responsibility to protect the stolen property on behalf of the owner.” (Id. at p. 753.) Specifically, “the Legislature has included as victims [of robbery] those persons 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.” (Id. at p. 758.)
B. Analysis
Regarding “actual” possession, defendant contends that Partridge had only transitory possession of the duffel bag when he took it from Slaughter’s truck. Since Partridge said he put the bag down some minutes before defendant entered the room and did not pick it up when defendant demanded it, defendant argues Partridge did not actually possess the duffel bag at the time of the purported robbery.
Defendant correctly asserts, relying on Nguyen, supra, 24 Cal.4th 756, that to establish “constructive” possession, the property at issue must be more than in the “immediate presence” of the alleged victim. He argues that the People must, but fail to, establish “proximate possession” of the property “coupled with some commercial or civic status which gives rise to a possessory interest in the thing taken.”
Defendant’s reliance on Nguyen, supra, 24 Cal.4th 756, is misplaced. The Nguyen court resolved a conflict in the law, stemming largely from the decision in People v. Mai (1994) 22 Cal.App.4th 117, which held that a victim “need not own, possess, or even have the right to possess the property sought.” (Id. at p. 129.) The Nguyen court overruled Mai and held that some form of possession was necessary. (People v. Scott, supra, 45 Cal.4th at p. 749.) The court held that the charged victim must have some possession of the property taken. It found that the husband of one of the employees of a business, who was merely visiting at the time of the incident in question and had no relationship to the property or the true owner of the property, did not have any possessory interest in the property taken. (Nguyen, at pp. 758, 764.) The husband was not, therefore, a robbery victim for purposes of section 211. (Nguyen, at p. 765.)
The present case is easily distinguishable from Nguyen, and, at the very least, Partridge’s testimony contains substantial evidence that satisfies the requirements for “constructive” possession articulated by our Supreme Court. Partridge testified that he went to defendant and McClain and told them about Slaughter’s arrival, opened the tailgate of Slaughter’s truck, grabbed the bag of marijuana, and directed that the discussion about the sale was to occur inside his house. Slaughter followed him to the house, and did nothing to assume control over the bag; to the contrary, Partridge sat down on the couch and placed the bag right by his feet. Defendant, after entering the house, first pointed his gun at Partridge, a further indication of a perception that Partridge, not Slaughter, was in possession of the duffel bag at the time. Thus, unlike in Nguyen, there was substantial evidence establishing that, at the very least, Partridge had assumed custody and control of the duffel bag of marijuana on Slaughter’s behalf, and was actively participating in the contemplated sale of the marijuana, when defendant took the bag.
Defendant also argues there was no evidence that Partridge had possession of the duffel bag of marijuana because he testified that he had no financial incentive in the transaction and felt no responsibility to protect the duffel bag. Defendant also relies on Partridge’s recorded statements to police on the day of the robbery that Slaughter answered defendant’s inquiry about the asking price for the marijuana just before defendant took the duffel bag; according to defendant, this indicates that Partridge was nothing more than a “passive bystander” when the duffel bag was taken. Defendant contends Partridge was not a robbery victim because he merely acted as a “Good Samaritan” and “was helping out friends, ” and cites as support cases such as People v. Galoia (1994) 31 Cal.App.4th 595, 596-598 (a mere bystander, a “Good Samaritan” who chased the shoplifting defendant, “did not have a sufficient interest in the property to be a robbery victim), and Sykes v. Superior Court (1994) 30 Cal.App.4th 479, 484 (a security guard from another store who gained momentary control over stolen property from defendant was acting merely as a neighbor and “good citizen, ” and was not a robbery victim).
Defendant’s characterizations and the case law he relies on are unpersuasive in light of Partridge’s trial testimony. Along with what we have already discussed, Partridge testified that once the parties were together in the front room of his house, he, with the duffel bag by his feet, answered defendant’s question about the asking price for the marijuana, at which point defendant took out his gun and grabbed the bag. This testimony indicates that Partridge was, in effect, acting as Slaughter’s agent when defendant pulled out his gun, regardless of whether Partridge was going to financially benefit from the sale.
Defendant would rather that we ignore this “isolated statement” at trial as an “inadvertent slip... or a mistranscription, ” and instead consider only defendant’s statements to police on the day of the robbery that Slaughter responded to defendant’s inquiry. However, defendant does nothing to establish that Partridge’s trial testimony was inadvertent or a transcribing error. His argument is simply a request that we reweigh the evidence. We will not do so. Under a “substantial evidence” standard of review, “ ‘the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination....’ ” (People v. Superior Court (Jones) (1998) 18 Cal.4th 667, 681, italics added.) We do “not reweigh or reinterpret the evidence on appeal.” (People v. Pace (1994) 27 Cal.App.4th 795, 798.) Defendant offers no legitimate reason why we should discount Partridge’s trial testimony, and the jury could reasonably believe Partridge was more candid about events at trial, rather than in his recorded interview, because he had been granted immunity from prosecution.
As the Nguyen court’s discussion indicates, courts have determined in numerous cases involving persons in analogous circumstances to those described by Partridge that there was sufficient possession to establish robbery. (Nguyen, supra, 24 Cal.4th at pp. 761-762.) Indeed, the following individuals in less compelling circumstances have been found to be robbery victims: a purchasing agent in charge of payroll (People v. Clark (1945) 70 Cal.App.2d 132); a store clerk (People v. Guerin (1972) 22 Cal.App.3d 775, disapproved on other grounds in People v. Ramos (1982) 30 Cal.3d 553, 589 & fn. 16); janitors occupying the premises of a company, from which money was taken from the company’s safe (People v. Downs (1952) 114 Cal.App.2d 758; People v. Dean (1924) 66 Cal.App. 602), and a gas station attendant who was not in charge or in immediate control of the items stolen (People v. Airline (1970) 13 Cal.App.3d 200, disapproved on other grounds in People v. Hall (1986) 41 Cal.3d 826, 834).
Two cases in particular support the conclusion that Partridge had, at the very least, constructive possession of the duffel bag of marijuana when defendant stole it. In People v. Gordon (1982) 136 Cal.App.3d 519, the court held that parents who owned and lived in the residence in which their adult son’s marijuana was taken were victims of a robbery. The court explained that, “although the word ‘possession’ has several meanings in a variety of legal contexts, the reviewing courts in California have chosen a definition which equates with the word ‘custody’ when considering the crime of robbery.” (Id. at p. 528.) It determined the parents to be victims of the robbery, even though they denied knowledge of the existence of the marijuana taken, because they were “responsible for the protection and preservation of the property entrusted to them” by virtue of it being in their home and belonging to their adult son. (Id. at p. 529.) These facts of possession are even more attenuated than the substantial evidence we have discussed, which indicates that Partridge knew the bag contained marijuana, took custody and control of the bag with the consent of its owner, and actively participated in negotiations of its sale.
Similarly, in People v. Moore (1970) 4 Cal.App.3d 668, the mother of two young store employees was the designated victim of Moore’s armed robbery of a business establishment. Though nothing more than a visitor to the store, she removed money from a cash register upon Moore’s demand and gave it to him. (Id. at p. 670.) In finding the count accurately charged, the court explained, “It is no defense to a charge of robbery... that the victim was not the true owner of the property taken. Theft can be committed against one who was himself a thief. [Citations.] It follows that, once [the victim] exercised dominion over the money, whatever her motivation in doing so, 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.) Partridge was no more an innocent bystander than the mother in Moore. As Moore makes clear, his motivation was irrelevant once he took possession of the duffel bag and maintained control over it during the events that led to the robbery.
There was sufficient evidence to support the jury’s verdict that defendant was guilty of the first degree robbery of Partridge.
DISPOSITION
The judgment is affirmed.
We concur: Haerle, Acting P.J.Richman, J.