Opinion
E069666
11-13-2018
THE PEOPLE, Plaintiff and Respondent, v. ATHENA WILSON, Defendant and Appellant.
Matthew R. Garcia, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, and A. Natasha Cortina and Christine Levingston Bergman, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF1602568) OPINION APPEAL from the Superior Court of Riverside County. William J. McGrath, Judge. (Retired judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. Matthew R. Garcia, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, and A. Natasha Cortina and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Athena Wilson shoplifted clothing from a Target store but used no force or fear until she punched, scratched, and bit a security officer who approached her after her exit. A jury convicted her of robbery pursuant to Penal Code section 211, which requires the crime be "accomplished by means of force or fear." In People v. Estes (1983) 147 Cal.App.3d 23, 28 (Estes), the Court of Appeal held that the requisite force need not occur contemporaneously with the taking of goods from a store, but instead could occur to prevent a guard from retaking the property or to facilitate the defendant's escape. Wilson's sole argument on appeal is that her conviction should be reversed because Estes was wrongly decided. We conclude that we are required to follow Estes, because the rule in that case has been cited with approval and relied on by our Supreme Court. Defendant concedes as much in her reply brief, stating that she "understands this court is bound by People v. Estes" and "is raising this issue to preserve her right to petition the Supreme Court to overrule Estes . . . ." We therefore affirm.
Further undesignated statutory references are to the Penal Code.
I. FACTS
On the evening of May 22, 2016, a security officer at a Target store in Norco, watching through a surveillance camera, observed Wilson removing clothing from hangers in the women's clothing department and folding it up. Wilson put some items in her purse and left the store without paying for them. The officer approached her outside the store and identified himself as security. Wilson punched him on the neck, scratched him, and bit his thumb as he held her. After Wilson was subdued, a few shirts and a pair of pants were found inside her purse.
The jury convicted Wilson of robbery pursuant to section 211.
II. DISCUSSION
For a theft of property to be a robbery under the terms of section 211, the taking must be "accomplished by means of force or fear." Over 35 years ago in Estes, supra, 147 Cal.App.3d at page 26, the Court of Appeal reviewed a robbery conviction where, as here, a defendant shoplifted clothing from a store and did not use force or fear until a guard confronted him outside the store. The court affirmed the conviction, holding that regardless of whether a 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.) Importantly, Estes is based on the view that "robbery is a continuing offense that begins from the original taking until the robber reaches a place of relative safety." (Ibid.) This means that the use of force or fear may occur at any time during the period of the continuing offense, as defined in that manner.
Two decades later, the Court of Appeal recognized "the widespread acceptance of the analysis of Estes" and noted that "the California Supreme Court has not criticized or overruled" the opinion. (Miller v. Superior Court (2004) 115 Cal.App.4th 216, 224; see, e.g., People v. Bradford (2010) 187 Cal.App.4th 1345, 1349 ["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."].)
Wilson argues that Estes was wrongly decided. She claims that it wrongly transforms petty theft into felony robbery by allowing the use of force or fear to occur after the taking itself. Her argument starts by observing that, for a robbery conviction, the common law required the defendant to have used force or fear at the time of the taking of the property, rather than to retain the property or to escape. She then argues that, when the legislature adopted section 211 in 1872, it based the statutory crime on the common law. She thus concludes that Estes erred in allowing a robbery conviction where the force or fear was used only to retain the property during the escape.
Wilson appears to recognize that her claim implicates more than Estes alone; it is an attack on rulings that—like Estes—construe robbery as a continuing offense lasting until the defendant reaches a place of safety, rather than as an offense that is complete at the moment of the taking of property. Thus, Wilson claims that our Supreme Court's post-Estes decision in People v. Gomez (2008) 43 Cal.4th 249 (Gomez) was also wrongly decided. Gomez dealt with the second aggravating factor, in addition to the use of force or fear, that transforms a theft or larceny into a robbery: the requirement that the goods be taken from the victim's immediate presence. In Gomez, the defendant stole money from a restaurant at night, and the robbery victim arrived and followed the defendant from the restaurant. (Id. at p. 253.) The Supreme Court held that because robbery is a "continuing offense," the immediate presence requirement may be satisfied during either the taking or when the property is being taken away. (Id. at pp. 254, 261.)
Of course, we cannot overrule a decision of our Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 (Auto Equity).) In her reply brief, Wilson concedes that the rule in Estes is binding on this Court and states that she is taking this appeal solely to ask the Supreme Court to overrule Estes.
This concession is warranted. The rule in Estes was essential to the Supreme Court's analysis in Gomez, which extensively cited and discussed the case. (Gomez, supra, 43 Cal.4th at pp. 258-261.) Gomez reasoned that just as the use of force or fear can occur during the escape portion of the continuing offense of robbery under Estes, so can the immediate presence requirement be satisfied during that period. That is, Gomez cited Estes for the proposition that "[t]he force or fear element of robbery can be satisfied during either the caption or the asportation phase of the taking" and stated that "[b]y the same logic, the immediate presence element can be satisfied at any point during the taking." (Gomez, supra, at p. 261; see also id. at p. 263 [stating that the immediate presence requirement "may also be satisfied, as in Estes . . . during asportation"].)
Further, in addition to approving Estes in Gomez, the Supreme Court has cited Estes with approval in other cases applying the rule that robbery is a continuing offense. (See People v. Williams (2013) 57 Cal.4th 776, 787; People v. Anderson (2011) 51 Cal.4th 989, 994; People v. Cooper (1991) 53 Cal.3d 1158, 1165, fn. 8.) Estes itself relied on a Supreme Court case that held that robbery was a continuing offense. (See Estes, supra, 147 Cal.App.3d at p. 27, citing People v. Anderson (1966) 64 Cal.2d 633, 638.)
Because Estes's holding has been adopted by our Supreme Court, and because is based on Supreme Court authority construing robbery as a continuing offense, we are bound under Auto Equity to reject Wilson's argument against the holding in Estes and affirm.
Though we have no power to act on Wilson's argument against Estes regardless of its merit, we note an important point on which her contentions are lacking. Wilson does not persuasively establish that the Legislature intended to incorporate all aspects of common law robbery when it enacted section 211 as part of the original Penal Code. Wilson cites Blackstone's Commentaries from the 18th century and other statements of what common law robbery comprised and then claims that common law robbery was adopted by section 211. But even though she recognizes that section 211 was enacted in 1872, she instead addresses California's 1850 codification effort, citing People v. Shuler (1865) 28 Cal. 490, 492.
The difference between the 1850 and 1872 statutes is not insignificant. The 1850 enactments, compiled quickly in advance of California's admission to the union that year, reflected "the adoption of the common law of England where no other provision was made." (Kleps, The Revision and Codification of Cal. Statutes 1849-1953 (1954) 42 Cal. L.Rev. 766, 766 (Revision and Codification).) Two decades later, in 1870, the Legislature created a Code Commission, which ultimately proposed California's first four codes, including the first Penal Code, enacted in 1872. (Revision and Codification, supra, at pp. 772-774.) The proposed Penal Code was based not only on earlier California statutes, but also "incorporated the work of the New York Code Commissioners" (Revision and Codification, supra, at p. 774, fn. 31); in that state, commissioners had worked on codifying the laws in an effort credited to David Dudley Field (id. at p. 772 fn. 25).
The robbery language enacted in 1850 differs from that passed as section 211 in 1872. Notably, section 211 requires that the robbery be "accomplished by" means of force or fear, language that differs from the earlier version. In fact, the 1872 version of section 211 is nearly identical to the robbery section in the 1864 Draft of the New York Penal Code, which was section 280 of that code. (See Field et al., Draft of a Penal Code for the State of New York (1864) p. 98 <https://archive.org/details/draftapenalcode03codegoog/page/n167> [as of Nov. 13, 2018] (Draft New York Code).) The Draft New York Code was the source of other original Penal Code provisions. (See, e.g., People v. Sisuphan (2010) 181 Cal.App.4th 800, 808 [noting other sections of the original 1872 Penal Code that "were modeled on identically worded sections from Field's 1864 Draft of the New York Penal Code"].)
The 1850 codification stated: "'Robbery is the felonious and violent taking of money, goods or other valuable thing from the person of another by force or intimidation.'" (People v. Shuler, supra, 28 Cal. 490 at p. 492). Section 211, unchanged since 1872, states: "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." --------
The Draft New York Code contains its own commentary and analysis, drawing on a variety of sources, and did not necessarily embody every facet of English common law. In its section 281, in fact, the Draft New York Code contained its own explanation of the force or fear element of robbery that did not restrict the force to that occurring at the moment of the taking of property, but included force to "retain possession of the property" and to "prevent or overcome resistance to the taking." (Draft New York Code, supra, at p. 99 <https://archive.org/details/draftapenalcode03codegoog/page/n167> [as of Nov. 13, 2018].) The same provision also stated that it was not enough that the force or fear was employed "merely as a means of escape." (Ibid.) Section 281 was not adopted in California. We do not have a sufficient record to determine what the Legislature intended in 1872 in apparently modeling Section 211 after a Draft New York Code provision. Nevertheless, we have no doubt that the analysis is more complex than Wilson's simple assertion that the Legislature in 1850 intended to embody wholesale the common law as it was articulated in Blackstone's Commentaries.
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAPHAEL
J. We concur: RAMIREZ
P. J. MCKINSTER
J.