Opinion
E068578
11-13-2018
THE PEOPLE, Plaintiff and Respondent, v. DARIN KRISTOPHER WILSON, Defendant and Appellant.
William Paul Melcher, 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, Steve Oetting and Daniel J. Hilton, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF1700124) OPINION APPEAL from the Superior Court of Riverside County. Thomas E. Kelly, Judge. (Retired judge of the Santa Cruz Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. William Paul Melcher, 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, Steve Oetting and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Darin Kristopher Wilson is serving nine years in prison for a second strike robbery with a prison prior enhancement. Defendant received this sentence for stealing a comforter from a dry cleaning business and physically resisting the business owner's efforts to retrieve it from him as he retreated across the parking lot of a shopping center. Defendant's sole argument on appeal is that this court should reexamine the long-established Estes doctrine, which states that the element of force or fear need not take place at the time of the initial theft, but can include the thief's efforts to prevent the property from being recovered until the thief reaches a place of relative safety. We decline to do so, and thus affirm the conviction.
People v. Estes (1983) 147 Cal.App.3d 23 (Estes).
FACTS AND PROCEDURE
On January 7, 2017, around 11:30 a.m. defendant entered a dry cleaning business in a shopping center. Although defendant looked like he might be homeless, the business owner asked for his telephone number so he could look up defendant's order. Defendant did not answer, but instead began to pull at a comforter. The owner asked defendant if the comforter belonged to him and also pulled on the comforter. Again, defendant did not respond, but picked up the comforter and walked out of the store. The owner asked an employee if the item belonged to defendant, but she did not know. The two of them followed defendant out of the store and the owner told defendant to "stop." Defendant ran and the two ran after him. They caught up to him and the owner told defendant to give back the comforter because it did not belong to him. The owner tried to take the comforter from defendant, but he fell. Defendant kicked the owner and ran away with the comforter. The owner caught up with defendant a second time and grabbed the comforter. Defendant let go of the comforter and some backpacks he was carrying. Defendant punched the owner in the face, kicked him, and pushed him down. The dauntless owner maintained possession of the comforter. Defendant ran away. The owner took the backpacks defendant had dropped, returned to his store, and called police. Defendant was arrested nearby a short time later.
On February 7, 2017, the People filed an information alleging defendant committed one count of robbery (Pen. Code, § 211), and had four prior prison term convictions (§ 667.5, subd. (b)), a prior serious felony conviction (§667, subd. (a)), and a prior strike conviction (§§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)).
All further statutory references are to the Penal Code unless otherwise indicated. --------
On April 12, 2017, a jury convicted defendant of robbery.
On April 13, 2017, defendant admitted to three of the prison term priors, the serious felony prior, and the strike prior. On that same date, the court sentenced defendant to the low term of two years for the robbery, doubled for the strike prior, plus five years for the serious felony prior. The court struck the sentences for the three prison term priors, for a total term of nine years.
This appeal followed.
DISCUSSION
Defendant argues his conviction for robbery should be reversed because Estes, supra, 147 Cal.App.3d 23, which holds that the force or fear required for a robbery can occur after the initial taking of the property, constitutes improper judicial overreach that strays from the common law definition of robbery and the Legislature's intent in enacting the robbery statute, section 211. Defendant asks this court to reexamine the Estes doctrine in light of the common law origins of section 211 and urges the Supreme Court to conduct a similar review. We decline to do so, based on our obligation to adhere to the Supreme Court's holding in People v. Gomez (2008) 43 Cal.4th 249 (Gomez), which approved the Estes doctrine.
"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." (§ 211.) As explained by the Supreme Court in Gomez, "[s]ection 211, enacted in 1872, incorporates common law robbery requirements. [Citation.] Under the common law, the crime of robbery consists of larceny plus two aggravating circumstances: (1) the property is taken from the person or presence of another; and (2) the taking is accomplished by the use of force or by putting the victim in fear of injury. [Citations.]" (Gomez, supra, 43 Cal.4th at p. 254, fn. 2.) In other words, theft by larceny may be committed without force or the threat of violence and may be completed without the victim ever being present. (See § 484, subd. (a).) "To elevate larceny to robbery, the taking must be accomplished by force or fear and the property must be taken from the victim or in his presence." (Gomez, at p. 254, fn. omitted.)
The taking element of robbery has two elements; (1) gaining possession of the victim's property and (2) asporting or carrying away the property. (People v. Cooper (1991) 53 Cal.3d 1158, 1165 (Cooper).) The asportation of the property continues, and the crime of robbery continues, "as long as the loot is being carried away to a place of temporary safety." (Ibid.; see People v. Navarette (2003) 30 Cal.4th 458, 502.) Thus, a "mere theft becomes robbery if the perpetrator, having gained possession of the property without use of force or fear, resorts to force or fear while carrying away the loot." (Cooper, at p. 1165, fn. 8; see Estes, supra, 147 Cal.App.3d at pp. 27-28.) Such a robbery is sometimes referred to as an " 'Estes robbery.' " (See, e.g., Miller v. Superior Court (2004) 115 Cal.App.4th 216, 226 (dis. opn. of McDonald, J.).)
In Estes, supra, 147 Cal.App.3d 23, the defendant stole clothing from a store and a security guard confronted him in the parking lot. The defendant refused to return to the store and started walking away. When the security guard tried to detain him, the defendant pulled out a knife, swung it at the guard, and threatened to kill him. (Id. at p. 26.) On appeal, the defendant argued that he could not be guilty of robbery because the assault was not contemporaneous with the taking of the clothing from the store. The Court of Appeal disagreed, stating: "The crime of robbery is a continuing offense that begins from the time of the original taking until the robber reaches a place of relative safety. It is sufficient to support the conviction that appellant used force to prevent the guard from retaking the property and to facilitate his escape." (Id. at p. 28.)
In Gomez, supra, 43 Cal.4th 249, the defendant stole money from a restaurant and, while carrying it away, shot at the restaurant manager who had followed him outside. (Id. at p. 253.) The defendant argued that the evidence was insufficient to support his robbery conviction because the victim was not present when he initially took the money. (Id. at p. 254.) Consistent with Estes, the Supreme Court held that "the crime of robbery occurs when property is forcefully retained in the victim's presence, even when the victim was not present at its initial caption." (Gomez, at p. 264.) The Court specifically stated that there was no expansion of the definition of robbery involved in its decision, noting that, "California has described robbery as a continuing offense for decades." (Id. at p. 261.) It explained that, "[u]nder the language of section 211, the phrases 'person or immediate presence' and 'force or fear' both refer[red] to the 'taking' of personal property." (Ibid.) The court confirmed "[t]he force or fear element of robbery can be satisfied during either the caption or the asportation phase of the taking." (Ibid.)
Since Gomez, the Supreme Court has reaffirmed that "[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." (People v. McKinnon (2011) 52 Cal.4th 610, 686; see People v. Williams (2013) 57 Cal.4th 776, 787 ["Because larceny is a continuing offense, a defendant who uses force or fear in an attempt to escape with property taken by larceny has committed robbery."].)
This court is required by the doctrine of stare decisis to follow the Supreme Court's holding in Gomez, supra, 43 Cal.4th 249. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Therefore, we deny defendant's request to reinterpret the requirements for a robbery conviction to include that the force or fear be contemporaneous with the theft.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: McKINSTER
J. RAPHAEL
J.