PEOPLE v. WILLIAMS

Appellant’s Petition for Review

Cal.August 11, 2011

S195187 IN THE SUPREME COURTOF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, DEMETRIUS LAMONT WILLIAMS, ) ) ) ) Vv. i) ) ) ) Defendant and Appellant ) ) Second Appellate District, Division Seven, No. B222845 Los Angeles Superior Court, No. MA046168 The Honorable Bernie C. LaForteza, Judge PETITION FOR REVIEW TRACY A. ROGERS Attomey at Law State Bar No. 190562 3525 Del Mar Heights Rd. #193 San Diego, California 92130 858.342.0441 Attorney for Petitioner TABLE OF CONTENTS Page PETITION FOR REVIEW.....0...0 0.0 ccc cee cee cee ce eee cee te ce ee tee tee teetneed QUESTION PRESENTED......0..000 000 coc coc ccc eee cee cee cee te ten ee ten eesti STATEMENT OF CASE AND FACTS......0 00000 co cece cee ee ee ee eee NECESSITY FOR REVIEW..........0 0.0.00 ccc ccc ccc cee cee ee ee ee ee ee nee ceeeed I. THE COURT SHOULD MAKE IT CLEAR THAT A LARCENOUS TAKING IS REQUIRED FOR THE CRIME OF ROBBERY TO BE COMMITTED................8 A. Robbery Requires the Commission of Larceny.................. 8 B. The Decision by the Court of Appeal Mis-Applies the Estes Doctrine Because Theft by False Pretenses has no Ongoing “Taking” or “Carrying Away” Element During Whichthe Use of Force or Fear Could Occur...............13 C. The Decision of the Court ofAppeal that Robbery Maybe Based on a Non-Larcenous Taking Cannot be Reconciled with Existing Law............................15 D. The Decision ofthe Court ofAppeal Violates Principles of Stare Decisis and Creates a Conflict with Existing LAW.eee ce tee cee en tee tte tte ce cesses8 E. Such a Fundamental Revision to the Law of Robbery, if Desirable, must Come from the Legislature.......... ... 21 i CERTIFICATION OF WORD COUNT... ..0 0000.0 cece cee ee terete ne il 24 25 TABLE OF AUTHORITIES CASES PAGE(S) Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal. 2d 450............18 Keeler v. Superior Court (1970) 2 Cal. 3d 619... 000... eee eee People v. Anderson (2011) 51 Cal. 4 989.00 o.oo ccc ccc cee cee cee cee vee cece en People v. Brock (2006) 143 Cal.App.4™ 1266.0... 0.0... 00. ec cee cece eee People v. Bryant (1898) 119 Cal. 595.20... 0.0 oe ce cee en ee ee eee People v. Davis (1998) 19 Cal. 4° 301... 0.0... ccc ccc cec cee eee sees People v. Dillon (1983) 34 Cal. 3d 4410.0... 0.0.0 oe cece ee cee cee ce eee ee eee People v. Estes (1983) 147 Cal.App.3d 28......0.000.ee People v. Gomez (2008) 43 Cal. 4" 249........... People v. Green (1980) 27 Cal. 3d 1... 0.00.0. 00 oe cece cee cee cee cette ee eee People v. Hays (1983) 147 Cal.App. 3d 534.000.0000... cece cee ee eens People v. Kemp (1954) 124 CalApp. 2d 683...... 000.00. People v. Latimer (1993) 5 Cal. 4° 1203.00.00 00sec cec cee cee cee cee veeeeeee People v. Nazary (2010) 191 Cal.App. 4 727... 2.0.00 ccc cece cee cee eee vee People v. Nelson (1880) 56 Cal. 77.0. 00.00.00 ccc ccc cee cee cee cee tee cee te cence People v. Nguyen (2000) 24 Cal. 4" 756.00... 0.0 ccc cece eee People v. Ortega (1998) 19 Cal. 4" 686.000.000.000 ccc cee cee cee cee cece eevee ees People v. Pugh (1955) 137 Cal.App. 2d 226......0.0 0.0.00 cee ee cee cee eee 111 21 3 10 14 weve lO, 1 9 4, 12, 13 evvseeee 5, 8, 11, 13, 14, 16 10 10 14 24 12 10 cceeveee 21, 22, 23 9 14 CASES PAGE(S) People v. Sally (1993) 12 Cal.App. 4™ 1621.00.00 occ cece eee eee eee LO People v. Sheasbey (1927) 82 CalApp. 459.000.0000...eee eeLO People v. Traster (2003) 111 Cal.App. AP 1371. eee eee ee ve LO, 11, 12 People v. Tufunga (1995) 21 Cal. A O85ce cee cee cee see cesses 9, 16,17 STATUTES Model Penal Code SECON 222.1 00 oo ooo ee cece ce cee cee cee cee eee cee tee teen ee eee een ee Dd Penal Code section 211.00... 0.0. eee eee eee 2, 6, 8 15, 16, 17, 21, 22, 23 SECTION 484...ee cee cece cece tet tee tee teeter tee een eee L2 Section 654.00.ce cee ee cee cee tee cee tre ete atterevee eee O, 19,20 OTHER 3 LaFave, Substantive Criminal Law (2d ed. 2009) § 20.3(a), pp. 996-997. Le bo cte tence center eee Perkins & Boyce, CriminalLaw (3d ed.1982) |D.350... Lise ete eee eee LO 4 Wharton, Criminal Law (15"™ ed. 1996) § 454. be cee teen ere eens 859 2 Witkin & Epstein, California Criminal Law (3d ed. 2000), Crimes Against Property, § 13, p. 32.. bette tee eee eeeee LO 2 Witkin & Epstein, California Criminal LawGd ed. 2000), Crimes Against Property, § 45, p. 72.. itteeeerece ee Ll 2 Witkin & Epstein, California Criminal Law Gded. 2000), Crimes Against Property, § 61, p. 90.. , bettectt tee eee ee lA 2 Witkin & Epstein, California Criminal LawGded. 2000), Crimes Against Property, § 86, p. 115.. Lee bes det tte settee teeter eee eee ® California Rules of Court Tule 8.500(D)(1)... 00.00. eee cee ee cee cee cee re ee ee eee bettered IV IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, DEMETRIUS LAMONT WILLIAMS, ) ) ) ) v. )s _ ) ) ) Defendant and Appellant ) ) Second Appellate District, Division Seven, No. B222845 Los Angeles Superior Court, No. MA046168 The Honorable Bernie C. LaForteza, Judge PETITION FOR REVIEW TO THE HONORABLE TANI CANTIL-SAKAUYE, CHIEF JUSTICE, AND THE ASSOCIATE JUSTICES OF THE CALIFORNIA SUPREME COURT: Petitioner and appellant, Demetrius Lamont Williams, respectfully petitions this Court for review ofthe published decision of the California Court ofAppeal, Second Appellate District, Division Seven,filed on July 11, 2011, affirming his judgment of conviction following a jury trial. A 1 copy ofthe opinion is attached as Appendix A. QUESTION PRESENTED 1. Is the crime of robbery (Penal Code, section 211") committed when there was no larceny committed, but instead the underlying offense wastheft by false pretenses? INTRODUCTION In a published opinion issued July 11, 2011, the Court ofAppeal affirmed petitioner’s convictions for four counts of second degree robbery (§ 211). The panel’s decision was based on its conclusion that robbery may be predicated on the offense of theft by false pretenses. (Slip Op., p. 10.) This result is contrary to an unbrokenline of decisions by this Court and the Courts ofAppealthat the crime of robbery requires larceny plus the additional elementthat the taking be done by force or fear and be from the person or immediate presence. Even while petitioner’s case was pending in the Court of Appeal, this ] All statutory references are to Penal Code unless otherwise specified. 2 Court wrote that “[rJobbery is larceny with the aggravating circumstances that ‘the property is taken from the person or presence of another...’ and ‘is accomplished by the use of force or by putting the victim in fear of injury.’ [Citation.!” (People v. Anderson (2011) 51 Cal. 4th 989, 994.) As explained post, petitioner’s underlying crime was not larceny, but wastheft by false pretenses, committed when he used fraudulent credit cards to purchase gift cards at WalMart. The robbery convictions were based on appellant’s struggling with four loss prevention officers who contacted him after the purchases were completed. While the purchaseofthe gift cards is a form of theft that was separately charged as a single count of grand theft (count 7), all parties and the trial court agreed that the theft wastheft by false pretenses and the jury wasso instructed. (CT 116; Slip Op., p. 5-6.) The elementsoffalse pretenses differ from those of larceny. Larceny (and, according the established precedent, therefore robbery) require a trespassory “taking” and “carrying away”ofthe victim’s property. Theft by false pretenses doesnot. Even thoughthe different forms of theft are referred to by simply as “theft,” the substantive distinctions among the types of theft remain and are not altered. AsCalifornia authorities have uniformly established, robbery requires larceny; without larceny, there can be no robbery. The Court of Appeal dismissed the distinction between larceny and theft by false pretensesas the predicate for petitioner’s convictions by stating that “Te|ssentially what occurred here was an Estes’ robbery,” addingthat “[t]here is simply no public policy justification”to differentiate between larceny and false pretenses for the crime of robbery. (Slip Op., p. 12.) As demonstrated post, the conclusion reached by the Court ofAppealis inconsistent with the law that robbery requires larceny and it causes much mischiefin its implications. It creates a new crime ofrobbery without caption and asportation of the property. By parity of reasoning, a host of other new crimes would also be created. It is well established that there are no commonlaw crimesin California and the power to create new crimesis vested exclusively in the Legislature. If such a sweeping revision is deemed appropriate, it should come from the Legislature; absent suchlegislation, courts should hewto the rule that robbery requires larceny. 2 People v. Estes (1983) 147 Cal.App.3d 28. (Hereafter “Estes.”) 4 STATEMENT OF THE CASE AND FACTS Petitioner accepts the statement of the case and of the facts contained in the opinion of the Court ofAppeal (Exhibit A, Slip Op., pp. 2-7). NECESSITY FOR REVIEW Reviewis necessary to secure uniformity of decision andto settle important questions of law (Cal. Rules of Court, rule 8.500(b)(1)). Byits ruling in petitioner’s case, the Court ofAppeal has created a new crime of robbery that does not require an unlawful “taking” (caption and asportation) that heretofore has been the sine qua non of robbery. As demonstrated post, the decision in petitioner’s case ignores the firmly entrenched common law principle—expressly adopted by this Court—that robbery requires that there be larceny, committed from the person or immediate presence of the victim and accomplished by force or fear. (E.g., People v. Gomez (2008) 43 Cal.4™ 249, 254, and fn. 2 [California law ofrobbery “incorporates common law robbery requirements”]; other cases cited post.) This is an issue that, given the growing numberoftheft crimesthat are committed based on fraud and identity theft, is certain to arise repeatedly in future cases. Trial courts facing the issue will face conflicting authority—should they follow the declarations of this court that section 211 “incorporates” the common law requirements ofthe crime, including the requirementofa larcenoustaking, or should they follow the rule announced by the Court ofAppeal that the “taking” required by section 211 can include any form of fraudulent acquisition of the victim’s property? Too,this principle is of vital importance to petitioner, whose sentence oftwenty-one years (as modified by the Court ofAppeal based on unrelated issues) should properly have been no more than six years (the upper term of three years for either burglary (Count 5) or grand theft (Count 6), doubled by virtue of appellant’s prior strike; the other counts being subject to the proscription of multiple punishments contained in section 654 and petitioner’s prior serious felony prior conviction becoming inapplicable without the robbery counts.) Moreover, by abandoning the requirement that robbery be premised on a larcenoustaking, the opinion hasother troubling implications. Ifthe robbery may be premised on theft by false pretenses, then doesthelatter becomea lesser included offense ofrobbery? Too,ifthe “taking” in the statute may include a non-larcenousacquisition ofthe victim’s property, then one whohasjust embezzled his employer’s money by writing company checks to himselfwhile on company property and whothenresists attempts by company employeesto detain him has also committed a robbery. If one passes or cashes a bad check — “taking”the store’s property in return, thoughnot a larcenous taking — and thenresists store employees’ efforts to detain him,that person will also have committed a robbery. The same would betrue if the initial offense were obtaining a prescription drug by meansofa false prescription — arguably a “taking” but not a larcenous one. With duerespect to the Court ofAppeal, its conclusionis inconsistent with long-established principles that existed for good reason. The decision resulted in great detriment to petitioner in that it more than tripled the maximum sentence he would receive had the law been correctly applied, and it creates an untenable situation for future trial courts faced with the dilemma of whetherto follow this Court’s clear precedentthat robbery requires a larcenous taking, or the Court ofAppeal’s decision that any unlawful taking will suffice. Review should be granted to secure uniformity of decision and to clarify this important area ofthe law. ARGUMENT I. THE COURT SHOULD MAKE IT CLEAR THAT A LARCENOUS TAKING IS REQUIRED FOR THE CRIME OF ROBBERY TO BE COMMITTED. A. Robbery Requires the Commission of Larceny. Professor Witkin succinctly describes California’s law of robbery as “a combination of assault and larceny.” (2 Witkin & Epstein, California Criminal Law (3d ed. 2000), Crimes Against Property, § 86, p. 115.) This characterization merely restates principles repeatedly established by California decisional law, following the commonlaw origins of the robbery statute. “At common law, robbery consists of larceny plus two aggravating circumstances. Therefore, a defendant commits a robbery when,with the intent to permanently deprive, he trespassorily takes and carries away the personal property of another from the latter’s person or presence by the use of force or threatened force.” (4 Wharton, Criminal Law, 15" ed., § 454 (1996).) In People v. Gomez, supra, 43 Cal.4" at p. 254, fin. 2, this Court reiterated that California law of robbery includes these common law principles: “Section 211, enacted in 1872, incorporates common law 8 robbery requirements. [Citation.] Under the commonlaw,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. (4 Wharton, Criminal Law (15th ed. 1995) § 454, pp. 2-3 (Wharton); 3 LaFave, Substantive Criminal Law (2d ed. 2003) § 20.3(a), pp. 996—997.)” Earlier, in People v. Dillon (1983) 34 Cal.3d 441, 459, the Court explained the relationship between robbery andlarceny: The relationship was acknowledged in the explanatory note of the California Code Commission accompanying the enactment ofthe robbery statute in 1872. The note stated in part, “Three elements are necessary to constitute the offense of robbery, as it is generally understood: 1. A taking of property from the person or presence of its possessor; 2. A wrongful intent to appropriate it; 3. The use of violence or fear to accomplish the purpose. Thefirst and second of these elements, the third being wanting, constitute simply larceny,. ..” (Italics in original.) (People v. Dillon, supra, 34 Cal.3d at p. 459 [italics in original].) California decisional law has uniformly been in accord. (People v. Tufunga (1999) 21 Cal.4" 935, 938, 945-946 [holding claim ofright defense applicable to robbery, despite modern concerns regarding self-help measures, because the robbery statute, as adopted, intended to incorporate the commonlaw]; People v. Ortega (1998) 19 Cal.4th 686, 694 quoting 9 Perkins & Boyce, Criminal Law (3d ed. 1982) p. 350 [robbery is “a species of aggravated larceny”}; People v. Nelson (1880) 56 Cal. 77, 80; People v. Sheasbey (1927) 82 Cal. App. 459, 463 [“larceny is an essential part of robbery”]; People v. Green (1980) 27 Cal.3d 1, 54 [“robbery is but larceny aggravated by the use of force or fear to accomplish the taking ofproperty from the person or presence of the possessor”]; People v. Brock (2006) 143 Cal. App. 4th 1266, 1276 [“[rlobbery is larceny, committed by violence”); People v. Hays (1983) 147 Cal. App. 3d 534, 541 [“robbery is but larceny aggravated by the use of force or fear to accomplish the taking of the property from the person or presence of the possessor”].)) The taking required for larceny is trespassory, that 1s, the nonconsensualviolation of the victim’s right of possession of property that is in his possession. (People v. Traster (2003) 111 Cal.App.4™ 1377, 1387; People v. Davis (1998) 19 Cal.4™ 301, 305; 2 Witkin & Epstein, California Criminal Law (3d ed. 2000), Crimes Against Property, § 13, p. 32.) In addition to the initial taking, larceny requires asportation or the “carrying away”ofthe property taken. (People v. Sally (1993) 12 Cal.App.4” 1621, 1627.) This Court has referred to the requirementof “taking” as including both the initial acquisition and the carrying away: “’Taking,’ in turn, has 10 two aspects: (1) achieving possession of the property, known as ‘caption,’ 332 and (2) carrying the property away, or “asportation.’” (People v. Gomez, supra, 43 Cal.4"at p. 255, citing People v. Davis, supra, 19 Cal.4" at p. 305.) Theft by false pretenses, the crime petitioner committed, has no taking requirement, and especially no requirement of asportation. The elements of false pretenses—essentially a fraud offense—are: (1) intent to defraud (“knowingly and designedly”) . . . (2) actual fraud committed (“defraud another person”) .. . (3) false pretenses (“false or fraudulent representation or pretense”) . . . and (4) causation,i.e., reliance on the false representation.” (2 Witkin and Epstein, supra, Crimes Against Property, § 45, p. 72.) In theft by false pretenses, both possession andtitle to the property are consensually delivered by the victim to the perpetrator; the act is criminal in that the delivery is induced by fraud or false pretense committed by the perpetrator and relied upon by the victim. (People v. Traster, supra, 111 Cal. App. 4th at p. 1387 [obtaining property by false pretensesis the fraudulent or deceitful acquisition ofboth title and possession’’].) In larceny—even“larceny bytrick,” in which a victim is deceived into yielding possession of his property to the perpetrator—the 11 victim does not intend to part with title or ownership to the property. “It is essential in such cases[larceny by trick] that the ownershall intend to part with the possession only, and not to passthe title as well. If he intends to pass both the possession andthetitle, the transaction, though it may amount to the crime ofobtaining property by false pretenses, will not constitute larceny.” (People v. Traster, supra, 111 Cal.App.4" at p. 1388 [brackets in original]. ) The distinction between larceny andtheft by false pretenses remains controlling and may not be ignored. “In this state, these two offenses, with other larcenous crimes, have been consolidated into the single crime oftheft (§ 484), but their elements have not been changedthereby. [Citations. |” People v. Traster, supra, 111 Cal. App. 4th at p. 1387; People v. Nazary (2010) 191 Cal.App.4" 727, 741 [consolidation as theft “did not intend to abolish the substantive distinctions” of theft offenses].) As shownpost,tt is the existence of the “taking” element that allows the Estes doctrine to make sense. In theft by false pretenses, there is no taking element to be ongoing such that force or fear used to retain the property or escape can be a robbery. 12 B. The Decision by the Court of Appeal Mis-Applies the Estes Doctrine Because Theft by False Pretenses has no Ongoing “Taking” or “Carrying Away” Element During Which the Use of Force or Fear Could Occur. In its discussion of the Estes doctrine, the Court of Appeal correctly notes that a theft by larceny 1s considered to be ongoing suchthatit becomesrobbery if the accused “used force to prevent the guard from retaking the property and to facilitate his escape.” (Slip Op., p. 11, quoting Estes, supra, 147 Cal.App.3d at p. 28.) The Court ofAppeal then concludesthere is “no public policy justification” for not applying the same tules to theft by false pretenses. (Slip Op., p. 12.) This reasoningis faulty in that fails to recognize that the Estes doctrine can legally exist only because the underlying offense was larceny and, as such, the “taking and carrying away” elements (caption and asportation) were ongoing until the perpetrator reached a position of relative safety. (Estes, supra, 147 Cal.App.3d at p. 28; People v. Gomez, supra, 43 Cal.4" at p. 258.) The premise on which Estes is based is absent where the crime was theft by false pretenses because there is no larcenous taking and carrying away. Instead, there was the fraudulent acquisition of property, which crime was completed once the owner (WalMart) passedtitle and possession to the gift cards to appellant. As this Court observed: 13 In robbery, the elements of larceny are intertwined with the aggravating elements to make up the moreserious offense. Theissue here is the temporal point at which the elements must come together. The answerlies in the fact that robbery, like larceny, is a continuing offense. All the elements must be satisfied before the crime is completed. However, as we explain in greater detail below,noartificial parsing is required as to the precise momentor order in which the elements are satisfied. This conclusion is consistent with decades of California jurisprudence. (People v. Gomez, supra, 43 Cal.4™ at p. 254.) This Court added that “[d]ecades of case law have madeclear that robbery in California is a continuing offense, the ‘taking’ comprising asportation as well as caption.” (People v. Gomez, supra, 43 Cal.4™ atp. 262.) The same cannotbe said wherethe crimeis theft by false pretenses. . There is no authority for the proposition that the crime is continuingafter it is completed, nor can there be any because there is no ongoing “taking”or “carrying away” elementto false pretenses. Unlike larceny, theft by false pretenses is not a continuing offense. The crime offalse pretenses is complete when property delivered in reliance on false representation. (People v. Kemp (1954) 124 CalApp.2d 683, 688; People v. Pugh (1955) 137 Cal.App.2d 226, 232; People v. Bryant (1898) 119 Cal. 595, 597; 2 Witkin & Epstein, California Criminal Law (3d ed. 2000), Crimes Against Property, § 61, p. 90.) In order for the acquisition 14 of property by false pretenses to serve as the basis for the charge of robbery, an element would haveto be addedto the existing elementsoffalse pretenses that would in some fashion make the crime ongoing. Notonly is it difficult to envision how this could be accomplished, but, as discussed post, such a wholesale revision to the crime ofrobbery must come from the legislative branch rather than the judicial branch. C. The Decision of the Court of Appeal that Robbery may be Based on a Non-Larcenous Taking Cannot be Reconciled with Existing Law. The Court ofAppeal dismisses the foregoing authority by concluding that “there is simply no public policy justification for treating theft by false pretenses differently from theft by larceny or by trick when,as in the case at bar, the defendant uses force or fear after the property owner, who consented to deliver ownership, immediately recognizes he or she is a victim of a scam andtries to reclaim the property.” (Slip Op., p. 12.) Too, despite this Court’s repeated holding that the “taking” in section 211 must be larcenous, the Court of Appeal concluded “[t]here is no basis in the broad language of the robbery statute” for so limiting the term “felonious taking.” (Slip Op., p. 13.) The Court of Appeal acknowledgesthat the decisional law “refer[s] to robbery as ‘aggravated larceny,’” but dismisses 15 that authority as being “a consequenceofthe fact that most robberies are accomplished by larceny, not because courts have intended to limit robbery to an aggravated form ofthat specific theft offense.” (Slip Op., p. 13.) Theseassertions mis-read this Court’s holdings, specifically, that “section 211... incorporates common law robbery requirements.” (People v. Gomez, supra, 43 Cal.4" at p. 254, and fn. 2; People v. Tufunga, supra.) These requirements includethat the taking be larcenous. Whetherit is true, as the Court ofAppealasserts, that “there is simply no public policy justification”for the distinction, that fact is not a sufficient basis to disregard such clear precedent. Moreover, the assertion by the Court ofAppeal that the term “taking” in section 211 “is not limited by statute or case law to only certain theft crimes” (Slip Op., p. 13) stands in direct conflict to this Court’s statements in People v. Tufunga, supra. There, this Court held, despite certain reservations about sanctioning self-help measures in modern times, that claim-of-right may in certain circumstancesberaised in defense of a robbery charge because that defense existed at commonlaw. In so holding, the Court stated “the fact that the Legislature used the same terminology, i.e., ‘felonious taking,’ in both the larceny and robbery statutes of 1850 16 (Stats. 1850, ch. 99, § 59, 60-61, p. 235) most reasonably indicates an intent to ascribe the same meaningto that element which is commonto both offenses, that is, recognition of the commonlaw claim of right defense as applying to both theft and robbery. Put differently, by adopting the identical Dhrase ‘felonious taking’ as used in the common law with regard to both offenses, the Legislature in all likelihood intended to incorporate the same meanings attached to those phrases at common law.” (People v. Tufunga, supra, 21 Cal.4" at p. 946 [emphasis added].) Theft by false pretenses does not contain the “felonious taking” language commonto both larceny and robbery. Contrary to the conclusion reached by the Court ofAppeal, Tufungais direct authority that the “taking”in the robbery statute refers only to a larcenoustaking. The discrepancy between the commonlawrule that robbery requires larceny andthe rule created by the Court of Appeal is stark. With due respect to the Court ofAppeal, its explanation that the firmly established authority is not authority at all but instead simply reflects the happenstance that “most robberies are accomplished by larceny” (Slip Op., p. 13) simply cannot be reconciled with the rule announcedby this Court that section 211 incorporates the common law requirements. The two conclusionsare 17 inconsistent and irreconcilable. A grant ofreview in this case is necessary to security uniformity of decision, consistent with this Court’s jurisprudence. D. The Decision of the Court of Appeal Violates Principles of Stare Decisis and Creates a Conflict with Existing Law. Byits ruling, the Court ofAppealfailed to abide by principles of stare decisis. “Under the doctrine of stare decisis, all tribunals exercising inferior jurisdiction are required to follow decisions of courts exercising superior jurisdiction. Otherwise, the doctrine of stare decisis makes no sense. The decisionsofthis court are binding upon and must be followed by all the state courts of California.” (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal. 2d 450, 455.) This failure is no mere technicality. Given the rise in fraud and other crimes based on identity theft, it is virtually certain that circumstances similar to those presented by petitioner’s case will arise with some degree of frequency. Future trial courts addressing the issue will face conflicting authority: On one hand, this Court has unequivocally announcedthat the California law of robbery “incorporates common law requirements.” (People v. Garcia, supra.) Those requirements include a larcenous taking and do not include theft based on a fraudulent transfer of ownership. On 18 the other hand, the decision of the Court ofAppeal announcesthat the term “feloniously takes” as used in the robbery statute is not limited to larcenous takings, but includes other forms ofwrongful acquisition such as theft by false pretenses. Trial courts must then determine whichauthority should be followed, and counsel will face a similar dilemmain trying to reach negotiated dispositions of such cases. Aside from the significant ramifications of the decision in petitioner’s case to other prosecutions state-wide, the failure of the Court of Appeal to hew to this Court’s precedent is of enormoussignificance to petitioner. Thetrial court originally imposed a sentence of twenty-three years, eight months. (4 RT 2115, CT 160, 168, Slip Op., p. 7.) This term was reduced by the Court ofAppeal to twenty-one years. (Slip Op., p. 18.) The sentencing calculus wasas follows: Count1 Robbery Upper Term X 2 10 years 2 Robbery 1/3 mid term X 2 2 years 3 Robbery 1/3 mid term X 2 2 years 4 Robbery 1/3 mid term X 2 2 years 5 Burglary 1/3 mid term X 2 1 yr, 4 mos 6 Access card Stay 654 19 7 Grand theft Stay sec. 654 8 Forgery 1/3 mid term X 2 1 yr, 4 mos 9 Forgery Stay sec 654 10 Forgery Stay sec 654 Serious Felony Prior Conviction 5 years Total Term 23 years 8 mos The Attorney General concededthat the forgery convictions, counts 8-10, were not supported by the evidence, and the Court ofAppeal agreed. (Slip Op., p. 7.) The Attorney General similarly conceded that a separate term for count 5, commercial burglary, was impermissible pursuant to section 654. (Slip Op., p. 8.) Petitioner’s term of imprisonment, therefore, nowstandsat twenty-one years. (Slip Op., p. 18.) The significance of the robbery convictions is patent. Without them, no term could be imposedfor the serious felony prior conviction, the principal term would be six years rather than ten years, and there could be no consecutive terms for the other robbery counts, counts 2 through 4. If this Court’s pronouncements (1) that the law ofrobbery tracks the common law and (2) that robbery requires larceny are correct, then petitioner is improperly incarcerated a decade and a half based on “non-crimes.” In 20 addition to settling the law, eliminating conflicting authority, and providing guidanceto future courts and counsel, review should be granted to ameliorate the unjust result reached in petitioner’s case. E. Such a Fundamental Revision to the Law of Robbery,if Desirable, must Come from the Legislature. The decision of the Court of Appeal in petitioner’s case has created a new, court-madecrimethat is more aptly described as “use of force or fear against a property ownerorhis agents if contacted immediately after an unlawful acquisition of property is committed.” It is well established that there are no common law crimes in California; instead, the powerto create crimes “is vested exclusively in the Legislature.” (Keeler v. Superior Court (1970) 2 Cal.3d 619, 631.) Yet, the Court ofAppeal has, in fact, created a new crimesincethe statute, section 211, was based on common law principles that preclude the very result reached by the Court. Such a wholesale revision of the robbery statute, if deemed desirable, must come from the Legislature rather than from the judicial branch. This principle was found controlling in People v. Nguyen (2000) 24 Cal.4" 756. Asin petitioner’s case, in Nguyen the Fourth District Court of Appeal approved a conviction for robbery based on circumstances not contemplated by the statute or the commonlaw, holding that a visitor on the 21 premises of a computer assembly business in which a robbery occurred was a victim of the robbery. The defendants robbed employees of the business of computer parts valued at $400,000, as well as of ttems ofpersonal property in the possession of the employees. (People v. Nguyen, supra, 24 Cal.4" at p. 758.) Also presentat the time was the husband ofoneofthe employees, who had no connection with the business and from whom no personal property was taken, though force and fear were applied to him to accomplish the computer robbery. (/bid.) Defendants’ convictions for the robbery ofthat person were affirmed by the Court ofAppeal. (/d. at p. 759.) This Court reversed the convictions for the robbery ofthe visitor. The Court noted that, under section 222.1 of the Model Penal Code and underthe robbery law of several states, a possessory interest in the property taken is not required, because that code defines robbery “to include the use of force or fear against any person during the commission ofa theft.” (24 Cal.4" at p. 763, at fn. 8.) The Court emphasized, however, that the language of Penal Code section 211 is different: Section 211 reflects, instead, the traditional approachthat limits victims of robbery to those personsin either actual or constructive possession of the property taken. We take no position on which ofthese differing approachesis preferable. 22 OurLegislature has adopted the traditional approach, as reflected in the language of section 211. It is up to the Legislature to implement any change that may be desirable. (People v. Nguyen, supra, 24 Cal.4™ at p. 764.) This Court’s holding in Nguyen is significant for two reasons. First, it emphasizes that California hews to the common law elements of robbery, even if-—as the Court ofAppeal said here—‘“there is simply no public policy justification” for not expanding the robbery statute. Secondly, because the change wrought by the Court ofAppeal to the robbery statute in petitioner’s case is comparable to that made by the Court ofAppeal in Nguyen, this Court’s observation that “it is up to the Legislature” to implement such a changeis particularly a propos. Here, as was true in Nguyen, the Court of Appeal declined to follow the established commonlaw principles the Legislature contemplated when it enacted section 211; moreover, the Court did so because it determinedthatits interpretation ofthe law was preferable. As this Court held in Nguyen, it was not up to the Court of Appeal to determine which approach waspreferable, given the language of section 211 and the commonlaw heritage ofthat language. Such a significant departure must come from the Legislature, however, or not atall. 23 CONCLUSION This Court has long recognized the “fundamental jurisprudential policy that prior applicable precedent usually must be followed even though the case, if considered anew, might be decided differently by the current justices. This policy, knownas the doctrine of stare decisis, is based on the assumption that certainty, predictability and stability in the law are the major objectives of the legal system... .” (People v. Latimer (1993) 5 Cal. Ath 1203, 1212.) Though the Court ofAppeal believed that there is no public policy justification for the rule being so, long-established precedent establishes that robbery requires a larcenous taking. The petition for review should be granted to resolve the conflict and settle this important question of law. DATED:July 23, 2011 Respectfully Submitted, Q. (Rop— Tracy A. Rogers State Bar No. 190562 Attorney for Petitioner 24 CERTIFICATION OF WORD COUNT I, Tracy A. Rogers, hereby certify that, according to the computer program usedto prepare this document, appellant’s petition for review, contains 5,815 words. I declare under penalty of perjury underthe lawsofthe State of California that the foregoing is true and correct. Executed July 23, 2011, in San Diego, California. sy A. Ao¢—— Tracy A. Rogers State Bar No. 190562 25 Appendix A CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF C ALIFORNIA SECOND APPELLATEDISTRICT DIVISION SEVEN THE PEOPLE, B222845 Plaintiff and Respondent, - (Los Angel es County Super. Ct. No. MA046168) Vv. DEMETRIUS LAMONT WILLIAMS, COURT OF APPEAL - SECONDDIST. Defendant and Appellant. Is I IL Is ID) Jub 14 2011 WOSErH ALLAME Clerk APPEAL from a judgmentofthe Superior Court o fLosAngelesCounty, Bernie C. LaForteza, Judge. Affirmed in part, rever sed in part. Tracy A. Rogers, under appointment by the Court o f Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, ChiefAssistant Attorney General, Pamela C. Hamanaka, Senior Assistant A ttorney General, Scott A. Taryle and MichaelC. Keller, Deputy Attorneys General, for Pl aintiff and Respondent. Demetrius Lamont Williams appeals from the judgment entered following his conviction by a jury on four counts ofrobbery, three counts of forgery, and one count each of burglary, theft and fraudulent use of an access card. Williams’s primary contention is that the use of force whenfleeing from a retail store following the successful acquisition ofpersonal property through a theft by false pretenses, as opposed to theft by larceny or theft by trick, does not constitute robbery. The People concede Williams’s forgery convictions are not supported by sufficient evidence and thetrial court should have stayed imposition ofthe sentence for burglary pursuant to Penal Code section 654, but dispute Williams’s other challenges to his convictions and sentencing. Wereverse the forgery convictions, modify the remaining judgmentto stay imposition of the burglary sentence andaffirm in all other respects. FACTS AND PROCEDURAL BACKGROUND 1. The Charges Williams was charged by information with second degree robbery (§ 211) (counts 1-4), second degree burglary (§ 459) (count5), fraudulent use of an access card or account information (§ 484g) (count 6), grand theft (§ 487, subd. (a)) (count 7) and forgery (§ 484i, subd. (b)) (counts 8-10). The information specially alleged Williams had suffered onepriorserious or violent felony conviction (robbery) within the meaning of the “Three Strikes” law (§§ 667, subds.(b)-(i), 1170.12, subds. (a)-(d)) and section 667, subdivision (a)(1), and had servedfive-separate prison termsfor prior felony convictions (§ 667.5, subd. (b)). Williams pleaded not guilty and deniedthe special allegations. 2. Summary ofthe Evidence Presented at Trial - a. The People’s evidence Williams went to a Wal-Mart store in Palmdale on July 4, 2009. Michael Ortiz, a cashier who had been workingat the store for about six months, testified he was covering Statutory references are to the Penal Code. register 22 during Jackie Pena’s break when Wil liams attempted to purchasefour gift . . 2 . . “aq: cards in two separate transactions. During the fi rst transaction, Williams requested the value ofthe gift card he was purchasing beset a t $200 and paid for it with a “gold looking card” that he swiped through the card proces sing machine. After the transaction was approved, Williamsattempted to purchaseth ree moregift cards. As Ortiz was processing the transaction, Pena returned and not iced Williams was using what appeared to be a credit card to purchase the gift cards. Pena informed Ortiz and Williamsthat gift cards could only be purchased with a debit card o r cash. Williams returned the three cards, and Ortiz voided the transaction. Shortly th ereafter Ortiz told a store manager he had permitted a gift card to be purchased with a c redit card because he did not know Wal- Mart had a policy prohibitingit. Scotty Southwell, a plain-clothes loss preven tion officer at the Wal-Mart store, testified he was in the loss preventionoffice, whi ch has more than 500 surveillance monitors, when he wasnotified suspicious transa ctions were taking place. Southwell was given a description of Williams and determined he wasat register one. Southwell went to a benchacross from register one and observed Wi lliams purchasea gift card with a red or orange colored card. After Williams finished the transaction, Southwe ll, now with loss prevention officer Vyron Harris, approached Williams. So uthwell identified himself and asked Williams for the receipt and card used to pay fo r the transaction he hadjust completed. Williams handed Southwell a receipt and a red or or ange colored card. The last four 2 The exchange between Williams and the cashiers was recorded on Wal-Mart’s security cameras. The recording was played for the jury while Ortiz described his interaction with Williams. Somegift cards sold at the store have fixed deno minations; others may be programmedfor a value specified by the custom er. Additionally, some gift cards may only be usedat specified retail or food outlets; ot hers may be used at any location. 3 digits of the card did not match the four digits of the card on the receipt. Williams apologized, claiming he had given Southwell the wrongcard, and gave him two gold cards. The last four digits of those cards also did not match the numbersonthereceipt. Williams began walking toward an exit door. Southwell, followed by Harris, asked Williams why the card numbers did not match those on the receipt. Williams handed Southwell another card; the numbers again did not match. Southwell then asked Williams to cometo the loss prevention office for further investigation. Williams kept walking. A few feet from the exit door Williams pushed Southwell, dropped some receipts and tried to run. Southwell, Harris and two additional loss prevention officers attempted to detain Williams, whostruggled to break free. After Williams was wrestled to the ground, he movedhis left arm toward his waistband and said he wasreaching for a gun. Williams wasfinally restrained and handcuffed. Muchofthe incident was recorded on the store’s surveillance cameras. The surveillance tapes of Williams’s attempted escape and ultimate capture were shownto the jury. Los Angeles County Sheriff Deputy Erich Doepking, whoatthe time oftrial had two years of experience investigating financial crimes, testified the cards recovered from Williams had been altered so the account numberonthe face ofthe cards did not match the account information on the magnetic strips. b. The defense’s evidence Williams, testifying on his own behalf, admitted he had previously been convicted of nine felonies and one misdemeanor. Williams contended he had goneto the Wal-Mart store on July 4, 2009 with a friend who hadgiven him two gift cards with a combined limit of $300 as payment for catering services Williams had provided. Williams said he tried to use these cards to purchase several small denominational gift cards from the ‘ The card Williams handed Southwell had a “SpongeBob”sticker on it. When Southwell peeled backthe sticker, it revealed it was a gift card with a fixed value of $50. The gift card Williams had purchased with it had a $200 value. 4 cashiers at registers five and 22. Williams denied goin g to register one, claiming he had gone to the service manager’s area to get approvalfor th e purchaseofthe gift cards when Southwell approached him. Williamsfurthertestified he began walking toward the ex it after he had given Southwell all the cards andreceipts in his possession, but Southwell kept questioning him. Williams was nervousin part because he had smok ed marijuana and consumed alcohol that morning and had used methamphetamine the day before. Williams denied intentionally pushing Southwell, contending Southwell ha d cut him offjust as Williams was trying to open the exit door. Williams also denied stru ggling with the loss prevention officers or threatening that he had a gun. 3. The JuryInstructions, Verdict and Sentencing Thetrial court instructed the jury, in part, on the crimes of ro bbery (CALCRIM Nos. 1600 and 326 1) and grandtheft by false pretense (CALCRIM 5 CALCRIM No.1600as given to the jury stated, “The def endant is charged in Counts 1, 2, 3, 4 with robbery. [{] To prove that the defen dantis guilty of this crime, the People must prove that: [§] 1. The defendant took prope rty that was not his own; [Wl 2. Theproperty was taken from another person’s posses sion and immediate presence; [9] 3. The property was taken againstthat person’s will; ({]] 4. The defendant used force or fear to take the property or to prevent the person from resis ting; [{]] And [{] 5. When the defendant used forceor fear to take the property, he intend ed to deprive the ownerof it permanently. [{] The defendant’s intent to take the pro perty must have been formed before or during the time heused force orfear. If the def endant did not form this required intent until after using the force or fear, then he did not commit robbery. [q] A person takes something when heor she gains possession ofit and moves it some distance. The distance moved may be short. [{] The property take n can be of any value, however slight. [{] A store employee whois on duty has possession of the store owner’s property. [{] Fear, as used here, means fear of injury to t he person himself or herself.” CALCRIM No.326]as givento the jury stated, “The Peo ple must prove that the defendantused forceor fear during the commissionofthe robbery. [{] The crime of robbery continues until the perpetrator has actually reache d a temporary place of safety. [{] Theperpetrator has reached a temporary place ofsafety if: [{]] He has successfully escaped from the scene;[{]] He is no longer being chased; [ {] He has unchallenged possession ofthe property; and [{] Heis no longer in continu ousphysical controlofthe person whois the target of the robbery.” No. 1804).” Williams did not object to the instructions. The jury found Williamsguilty of all the crimes charged. In a bifurcated proceeding Williams waivedhisright to trial and admitted the prior robbery conviction allegation. The People dismissed the prior prison term allegations. The People submitted a sentencing memorandum urging the court to imposean aggregate state prison term of 23 years eight months, including the upper term for the first robbery conviction and consecutive terms for the remaining three robbery convictions. The People argued the upper term was warranted because Williams had been an inveterate criminal with six criminal convictions in the 1980’s (plus an escape), six convictions in the 1990s (plus a parole violation), and a conviction in 2008, and the crimes had escalated in seriousness. (Nine of the 12 convictions are felonies, and five are for theft or robbery offenses.) The People also argued the crime showed a degree of sophistication and planning in part because Williams had tested each cashier with one purchase before attempting a secondone. Atthe outset ofthe sentencing hearing the court denied Williams’s motion to dismisshis prior felony strike conviction on the groundsofhis “extremely long criminal history” and “the dangerousness”ofthe case. The court explained, “[The case] involved four victims . . . and that makes it even more dangerous. If it was just one person,so beit but the person whois challenging four people, to me, indicates a serious potentially dangeroussituation.” 6 CALCRIM No.1804as given to the jury stated, in part, “The defendant is charged in Count 7 with grand theft by false pretense. [§]] To prove that the defendant is guilty of this crime, the People must prove that: One, the defendant knowingly andintentionally deceived a property owneror the owner’s agent by false or fraudulent representation or pretense. [{] Two, the defendant did so intending to persuade the owneror the owner’s agent to let the defendant take possession and ownershipofthe property. [{] And [J] Three, the owner or the owner’s agent let the defendant or another person take possession and ownership ofthe property because the owner or the owner’sagentrelied on the representation or pretense. [{] You maynot find the defendant guilty of this crime unless the People have provedthat the false pretense was accompaniedbyeither a writing or a false token... .” The court then announcedits tentative decision to sentence W illiams to the term recommendedby the People. The court found the aggravati ng factors for selecting the upper term for count 1 were “the crime involvedgreat violence , great bodily harm or threat of great bodily harm to others. It indicates high degr ee ofviciousness and callousness. The mannerin which the crime was... . com mitted, indicates planning, sophistication and professionalism. The defendant has engage din violent conduct which indicates a serious danger to society. Defendant’s prior convi ctions as an adult are numerousandofincreasing seriousness. The defendant was o n probation when he committed the crime.” After hearing argument, the court sentenced Williams to an ag gregate state prison term of 23 years eight months: A principal term of five years , the upper term, for robbery (count 1), doubled to 10 years under the Three Strikes law, plu s an additional five years for the section 667, subdivision (a)(1), enhancement, and con secutive subordinate terms of onethird the middle term ofthree years, doubled to twoyea rs, for each ofthe three additional robbery convictions (counts 2, 3 and 4); one third t he middle term of two years, doubled to one year and four months for burglary (coun t 5); and onethird the middle term oftwo years, doubled to one year and four mon ths for forgery (count8). Sentences for the remaining counts were stayed pursuantto s ection 654. CONTENTIONS Williams contends his robbery convictions must be reversed because robbery cannot be predicated on theft by false pretenses; even if the r obbery convictions are valid, thetrial court erred in imposing consecutive sentencesfor the m; and the court’s failure to advise him ofthe penal consequences of his admission ofthe p rior conviction rendered the admission involuntary. The Attorney General concedes Wi lliams’s additional arguments that the forgery convictions must be reversed for insufficient evidence and the trial court should have stayed imposition ofthe sentence for burglary pursuantto section 7 654. DISCUSSION 1. The Robbery Convictions Were Properly Predicated on Theft By False Pretenses a. Law generally governing robbery and theft Robbery is definedas “the felonious taking ofpersonal property in the possession of another, from his person or immediate presence, and against his will, accomplished by meansofforce or fear.” (§ 211; see People v. Gomez (2008) 43 Cal.4th 249, 254 (Gomez).) “The crime is essentially a theft with two aggravatingfactors, thatis, a taking (1) from [the] victim’s person or immediate presence, and (2) accomplished by the use of force or fear.” (Miller v. Superior Court (2004) 115 Cal.App.4th 216, 221 (Miller); see Gomez, at p. 254 [“[i]n robbery, the elements of larceny are intertwined with the aggravating elements to make up the moreserious offense”].) Robbery is ‘ To be convicted of forgery under section 4841, subdivision (b), the evidence must demonstrate the defendant modified or altered access card account information or authorized or consented to such alteration or modification. There was no evidence of either, and ““[a]n inference is not reasonableifit is based only on speculation.’” (See People v. Hughes(2002) 27 Cal.4th 287, 365.) Regarding the burglary sentence, section 654 prohibits separate punishment for multiple offenses arising from the sameact or from series of acts constituting an indivisible course ofcriminal conduct. (People v. Rodriguez (2009) 47 Cal.4th 501, 507; People v. Latimer (1993) 5 Cal.4th 1203, 1216.) Courts have repeatedly found section 654 to bar separate punishment when a defendant commits robbery after being confronted during a burglary as occurred in the case at bar. (See, e.g., People v. Perry (2007) 154 Cal.App.4th 1521, 1527 [‘it cannot be said that appellant acted with multiple independent objectives in committing the burglary and the robbery”}; People v. Le (2006) 136 Cal.App.4th 925, 931 [§ 654 barred punishmentfor both burglary and robbery; “the robbery offense arose from defendant’s use offorce to steal the [drugstore’s] merchandise, which occurred when defendant struggled with the [drugstore’s] department managerover the car keys and then drove offwhile the manager’s upper body wasstill in the vehicle, in an effort to depart with the [whiskey and diapers] obtainedin the store burglary”].) “a continuing offense that begins from the time ofth e original taking until the robber reaches a placeofrelative safety.” (People v. Anders on (2011) 51 Cal.4th 989.) The crimeoftheft is comprised of several different com mon law crimes, including theft by larceny, theft by trick’ and theft by false pretense s. (See Peoplev. Cuellar (2008) 165 Cal.App.4th 833, 837.) In 1927 these commonlaw crimes were consolidated in section 484 into the single statutory crime of theft.” (S ee Gomez, supra, 43 Cal.4th at p. 255, fn. 4; Cuellar, at p. 793.) Although consoli dated, the offenses are “aimed at different criminal acquisitive techniques” and have dif ferent elements. (People v. Ashley (1954) 42 Cal.2d 246, 258.) “The purpose of the consol idation was to removethe technicalities that existed in the pleading and proofofth ese crimes at common law.... Juries need no longer be concerned with the technical d ifferences between the several types oftheft, and can return a generalverdict of guilt y if they find that an ‘unlawful taking’ has been proved.” (Ibid.; accord, People v. Coun ts (1995) 31 Cal.App.4th 785, 793.) Nevertheless, “[w]hile a generalverdict of guilt m ay be sustained on evidence establishing any oneofthe consolidated theft offenses [citations], the offense shown by the evidence must be one on which the jury was instru cted and thus could have reached its verdict.” (People v. Curtin (1994)22 Cal.App.4th 528, 531.) Theft by larceny “requires the taking of another’s prop erty, with the intent to steal and carry it away. [Citation; fn. omitted.] ‘Taking,’ i n turn, has two aspects: Theft by trick is also known aslarceny by trick and/o r device. For ease of reference, werefer to the offense as theft by trick. Section 484, subdivision (a), provides, in part, “Ever y person whoshall feloniously steal, take, carry, lead, or drive away the p ersonal property of another,or who shall fraudulently appropriate property which has be en entrusted to him or her, or who shall knowingly and designedly, by any false or fraudule nt representation or pretense, defraud any other person ofmoney, labor or real or personalproperty . . . is guilty of theft.... For the purposesofthis section, any false o r fraudulent representation or pretense made shall be treated as continuing, so as to cover any money, property or service received as a result thereof, and the complaint, information or indictment may chargethat the crime was committed on any date duri ng the particular period in question. ...” (1) achieving possession of the property, known as‘caption,’ and (2) carrying the property away,or ‘asportation.’ [Citations.] Although the slightest movement may constitute asportation [citation], the theft continues until the perpetrator has reached a place oftemporary safety with the property.” (Gomez, supra, 43 Cal.4th at pp. 254-255.) Thus,like robbery, theft by larceny is a continuing offense. Distinct from theft by larceny, theft by trick and theft by false pretenses both involve appropriation ofproperty when consentto its possession was obtained by fraud or deceit. With theft by trick, however, the property owner transfers, and intends to transfer, only possession, whereas with theft by false pretenses the ownertransfers both possession and ownership. (See People v. Ashley, supra, 42 Cal.2d at p. 258 [“[theft by trick] is the appropriation of property, the possession ofwhich was fraudulently acquired; obtaining property by false pretensesis the fraudulent or deceitful acquisition ofboth title and possession”]; People v. Traster (2003) 111 Cal.App.4th 1377, 1387 [“presence or absenceofthe fourth element of transferring ‘ownership’or‘title’ distinguishes the crime of theft by false pretenses from the crime oftheft by trick”]; compare CALCRIM No. 1805 [to prove theft by trick, People must prove property owner “consented to the defendant’s possession of the property because the defendant used fraud or deceit”] with CALCRIM No.1804 [to prove theft by false pretenses, People must prove property ownerallowed defendant to take possession and ownership ofproperty because owner relied on defendant’s false or fraudulent representation or pretense].) b. Robbery may be predicated ontheft byfalse pretenses Williams’s felonious acquisition ofthe gift cards was theft by false pretenses, rather than theft by trick. Based on that distinction Williams contends his robbery convictions must be reversed because theft by false pretenses lacks the elements of a trespassory taking and asportation and is completed when the defrauded party passes possession andtitle to the thief. Williams’s argument unduly focuses on the “acquisitive technique” underlying the theft (People v. Ashley, supra, 42 Cal.2d at p. 258)—thatis, the consensual delivery ofpossession and ownership ofthe property based onfalse 10 pretenses—rather than the “central element of t he crime ofrobbery’”that “force or fear [is] applied to the individual victim in order to dep rive him ofhis property.” (Gomez, supra, 43 Cal.4th at p. 265.) Robberies in which the victim and the thief conf ront each other only after the perpetrator hasinitially gained possession ofthe st olen property are sometimes referred to as “Estes robberies” by California attorneys wh o practice criminal law and the judges before whom they appear. (See, e.g., Miller, supra, 115 Cal.App.4th at p. 223; Gomez, supra, 43 Cal.4th at pp. 25 8-259.) In People v. Es tes (1983) 147 Cal.App.3d 23 (Estes) the defendant argued his robbery conviction should be set aside because“his assaultive behavior was not contemporaneouswith the taking ofthe merchandise from the store.” (Id, at p. 28.) In rejecting the defendant’s argumen t, similar to Williams’s here, that he was at most guilty of petty theft and a subsequent as sault, the court explained,“Itis sufficient to support the conviction that appellant u sed force to prevent the guard from retaking the property andto facilitate his escape. T he crimeis notdivisible into a series of separate acts. Defendant’s guilt is not to be wei ghed at each step ofthe robbery as it unfolds. The events constituting the crime of robb ery,although they may extend over large distances and take some time to complete,are linked by a single-mindedness of purpose. [Citation.] Whether defendant used force to gain original possession of the property or to resist attempts to retake the stolen pr operty, force was applied against the guard in furtherance ofthe robbery and can properly be used to sustain the conviction.” (Id. at p. 28.) Manydecisionssince Estes have reaffirmed theft by larceny or theft by trick becomes robbery even when possession ofproperty i s peacefully or fraudulently obtained if force or fear is used to either carry it away or reta in it. (See, e.g., People v. Anderson, supra, 51 Cal.4th. at p. 994 [citing Estes]; Gomez, supra, 43 Cal.4th at pp. 258-261 Issues of statutory interpretation are questions of law subject to our independentor de novo review. (In re Tobacco II Cases (2009) 46 Cal.4th 298, 311; People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432; see California Veterinary Medical Assn.v. City of West Hollywood (2007) 15 2 Cal.App.4th 536, 546.) 11 [discussing Estes in holding robbery victim need not be present when defendant initially takes money; “California has described robbery as a continuing offense for decades”); Peoplev. Hill (1998) 17Cal.4th 800, 850 [‘“‘even if the perpetrator usedpeaceful meanis, suchas a pretext, to separate the property from the victim, “what would have been a mere theft is transformedinto robbery if the perpetrator. . . [later] uses force to retain or escape with [the property]”’”]; People v. Webster (1991) 54 Cal.3d 411, 441 [same]; People v. Cooper (1991) 53 Cal.3d 1158, 1165, fn. 8 [citing Estes with approval; “meretheft becomerobbery if the perpetrator, having gained possession of the property without use of force or fear, resorts to force or fear while carrying awaythe loot”].) Essentially what occurred here was an Estes robbery. There is simply no public policy justification for treating theft by false pretenses differently from theft by larceny or by trick when,as in the case at bar, the defendant usesforce or fear after the property owner, who consented to deliver ownership, immediately recognizes he or she is a victim of a scam andtries to reclaim the property. (See Gomez, supra, 43 Cal.4th at p. 264 ““[w]henthe perpetrator and victim remain in close proximity, a reasonable assumption is that, if not prevented from doing so, the victim will attempt to reclaim his or her property property, the key factors are the defendant’s intent “to deprive the victim of the property 399].) Regardlessofthe victim’s fraudulently induced intent in transferring the permanently” (People v. Anderson, supra, 51 Cal.4th at p. 994), the defendant’s greater culpability resulting from the application of force or fear and the need to deter more dangerous conduct. (See Gomez, at p. 264 [“[i]t is the conduct ofthe perpetrator who resorts to violence to further his theft, and not the decision of the victim to confront the perpetrator, that should be analyzed in considering whethera robbery has occurred”); cf. People v. Cooper, supra, 53 Cal.3d at pp. 1167-1168 [“{T]he escaperule serves the legitimate public policy considerations of deterrence and culpability in the context of determining certain ancillary consequences ofrobbery .... In [People v.] Laursen [(1972)] 8 Cal.3d 192, 198, we recognized that the escaperule served public policy because the primary purposeofthe kidnapping-to-commit-robbery statute is to impose 12 harsher criminal sanctionsto deter activity that substantially increases the risk of harm.”].) Contrary to Williams’s contention, consent to deliver owners hip cannot be a distinguishing feature. “The act of taking personal property f rom the possession of another is always a trespass[fn. omitted] unless the ownerco nsents to the taking freely and unconditionally,” and consent procured by fraudis “inva lid.” (People v. Davis (1998) 19 Cal.4th 301, 305 & fn.3; id. at p. 306 [element o f trespass and consent to steal present when store customer returned shirt he had just taken f or refund, voucher was issued and defendant was immediately confronted by securi ty personnel; consent cannot be viewed“in artificial isolation from the intertwined issue o fintent to steal”]; People v. Brock (2006) 143 Cal.App.4th 1266, 1275,fn.5 [‘““force, f ear or duress negates consent for the purpose of proving a taking has occurred”].) Thereis also no basis in the broad language ofthe robbery statute supporting Williams’s argument. Section 211 defines robbery as the “fe lonious taking” of property using force or fear. The word “taking” is not limited by statut e or case law to only certain theft crimes. To be sure, many casesrefer to robber y as “agpravated larceny,” language repeatedly quoted by Williams to support his argu ment robbery can only be predicated on larceny. (See, ¢-g., Gomez, supra, 43 Cal.4th at p. 254; People v. Tufunga (1999) 21 Cal.4th 935, 947.) This, however,is a conseq uence ofthe fact most robberies are accomplished by larceny, not because courts have int ended to limit robbery to an aggravated form ofthat specific theft offense. Indeed, the whole premise oftheft by false pretenses is that possession and ownership are obtained fr audulently, thus there generally is no confrontation with the victim. Simply becauseit is unusual f or theft by false pretense to be discovered while the perpetrator and victim are wi thin each other’s presence does not mean that this form of “felonious taking ofpersonal property,” when completed through the use of force or fear, is excluded from th e scope of robbery. 13 2. The Trial Court DidNot Err in Sentencing Williams a. The court did not abuse its discretion in ordering consecutive, rather than concurrent, sentences Thetrial court has “broad discretion . . . in choosing whetherto impose concurrent or consecutive terms.” (People v. Monge (1997) 16 Cal.4th 826, 850-851.) California Rules of Court, rule 4.425 sets forth specific criteria affecting the decision, including,the . ; . we ed oepresence of any circumstancesin aggravation or mitigation. “Only one criterion or factor in aggravation is necessary to support a consecutive sentence” (People v.Davis (1995) 10 Cal.4th 463, 552); however, a factor in aggravation used to impose an upper term cannot be used asthe basis for imposing a consecutive sentence. (Rule 4.425(b)(1).) In deciding to sentence Williamsto the upper term on count1, the court identified five aggravating factors, some ofwhich the court had just explained in denying . California Rules of Court, rule 4.425 provides, “Criteria affecting the decision to impose consecutive rather than concurrent sentences include: [{] (a) Criteria relating to crimes [{]] Facts relating to the crimes, including whetheror not: [§] (1) The crimes and their objectives were predominantly independentofeach other; [{] (2) The crimes involved separate acts ofviolence orthreats ofviolence; or [{] (3) The crimes were committed at different times or separate places, rather than being committed so closely in time andplaceas to indicate asingle period of aberrant behavior. [§] (b) Othercriteria and limitations: Any circumstances in aggravation or mitigation may be consideredin deciding whether to impose consecutive rather than concurrent sentences, except: [4] (1) A fact used to impose the upper term; [{] (2) A fact used to otherwise enhancethe defendant’s prison sentence; and [{] (3) A fact that is an elementofthe crime may not be used to impose consecutive sentences.” Referencesto rule or Rules are to the California Rules of Court. ° Rule 4.421 (a) identifies aggravating factorsrelating to the crime including thatit involved greatviolence,threat of great bodily: harm and callousness(rule 4.421(a)(1)); and “[t]he manner in which the crime wascarried out indicates planning, sophistication or professionalism”(rule 4.421(a)(8)). Rule 4.421(b) identifies aggravating factors relating to the defendant including “{t]he defendant has engagedin violent conduct that indicates a serious danger to society”(rule 4.421(b)(1)); “[t]he defendant’s prior convictions as an adult .. . are numerousor of increasing seriousness”(rule 4.421(b)(2)); “[t]he defendant was on probation or parole when the crime was committed”(rule 4.421(b)(4)). 14 Williams’s motion to strike his prior felony convicti on: the crime involved great bodily harm orthreat of great bodily harm;the manner in wh ich the crime was committed demonstrated planning and sophistication; Williams ha d engagedin violent conductas demonstrated by the fact he had challenged four security officers, not one; Williams’s prior convictions were numerous and had been increa sing in severity; and Williams was on probation when he committed the crime. Having identif ied at least two factors that would support the imposition ofthe upper term and con secutive terms, it cannot be said the court trial abusedits broad discretion in sentencin g Williams to consecutive terms. (Cf. People v. Osband (1996) 13 Cal.4th 622, 728-729 [“Only a single aggravating factor is required to impose the upper term [citation], and the s ameis true of the choice to impose a consecutive sentence [citation]. In this case, the court could have selected disparate facts from amongthoseit recited to justify th e imposition ofboth a consecutive sentence and the upper term, and on this record we dis cern no reasonable probability that it would not have done so. Resentencingis not required.” ]) b. Williams hasforfeited his claim the court erred i nfailing to state its reasonsfor imposing consecutive sentences Thetrial court must state its reasons for choosing to impose consecutive sentences. (Rule 4.406(b)(5).) However, Williams did not objec t at sentencing and has forfeited his contention thetrial court erred in failing to do so. (Pe ople v. Scott (1994) 9-Cal.4th 331, 353 (Scott) [forfeiture rule applies to “claims involvi ngthe trial court’s failure to properly makeor articulate its discretionary sentencing choice s” includingits failure “to state any reasonsorgive a sufficient number ofvalid reasons”) ; People v. Morales (2008) 168 Cal.App.4th 1075, 1084.) Quoting language from People v. Scott, supra, 9 Cal.4 th at page 356, Williams contends the forfeiture rule may not be applied unless th e court clearly advises the defendant“ofthe sentence the court intends to impose and the reasons that support any discretionary choices.” Williams argues the court appr ised him ofits intention to impose the maximum term andthereasons it chose the upper term for count one as the base term, but not the reasons supporting consecutive sentences fo r counts 2 through 4. 15 Williams’s proffered “prerequisite” to application of the forfeiture rule is based on an unduly narrow reading ofScott and would undermine the purpose ofthe rule. (See People v. Scott, supra, 9 Cal.4th at p. 353 [“Although the court is required to impose sentence in a lawful manner, counselis charged with understanding, advocating, and clarifying permissible sentencing choicesat the hearing. Routine defects in the court’s statement of reasonsare easily prevented and correctedif called to the court’s attention. Asin other waiver cases, we hope to reduce the numberoferrors committedin thefirst instance and preserve the judicial resources otherwise used to correct them.”].) As the Supreme Court explained in People v. Gonzalez (2003) 31 Cal.4th 745, 752,“It is only if the trial court fails to give the parties any meaningful opportunity to object that the Scott rule becomesinapplicable.” “The parties are given an adequate opportunity to seek such clarifications or changesif, at any time during the sentencinghearing,thetrial court describes the sentence it intends to impose and the reasons for the sentence, and the court thereafter considers the objections ofthe parties before the actual sentencing.” (Ibid.) Here, the trial court announcedits tentative decision to impose the sentence recommendedby the People, including the upper term for count 1 and consecutive terms for the other robbery convictions. To the extent the court did notarticulate at the hearing that the aggravating factors supported both imposition ofthe upper term and consecutive sentences, it was incumbentontrial counsel to seek clarification. This is precisely the kind ofreadily correctible error the forfeiture rule is intended to prevent. ° Williams’s alternative argumenthis counsel provided ineffective assistance in failing to object is without merit. As discussed, only two aggravating factors were necessary to support imposition ofthe upper term on count | and consecutive terms on counts 2, 3 and 4. In light of the trial court’s identification offive distinct aggravating factors justifying an upper term for robbery,it clearly would not have imposeda different sentence if it had realized it needed to allocate at least one ofthose factors to its decision to impose consecutive terms. Counsel’s failure to object, therefore, did not prejudice Williams. (See People v. Williams (1997) 16 Cal.4th 153, 215 [to prevail on ineffective assistance of counsel claim, the defendant must demonstrate a “reasonable probability” that absent the error the result would have been different]; see also People v. Coelho (2001) 89 Cal.App.4th 861, 889-890 [whereit is “virtually certain” court would impose same sentence on remand, remand would bean idle act exalting form over substance]; 16 3. Williams Has Forfeited His Claim the Court Erred in Fai ling T0 Advise Him of the Penal Consequences ofAdmitting His Prior Robbery Con viction a. Williams’s admissions After the jury returnedits verdict, counselfor Williams informe d the court Williams had agreed to admit his prior robbery conviction with the understanding the prior prison term allegations would be dismissed. After advis ing Williamsofhis right to a jury trial on the prior robbery conviction, Williams confirmed he understoodthat right and agreed to waiveit. The court then inquired, “Do you admit that you have a prior conviction within the meaning ofPenal Codesection 667(a)(1) , that you suffered the following prior conviction of a serious felony?” Williams ans wered, “Yes.” After his counseljoined in the admission, the court inquired,“It is furth er alleged under Penal Code section[s] 1170.12(a) through (d) and 667(b) through(i), a s to counts 1 [through] 10, that you suffered the following conviction of a serious orvi olent felony. Do you admit or deny that conviction for the purposes ofthe code sect ion[s] which I just stated?” Although the question called for Williams to either “admit or de ny,” Williams answered, “Yes,” joined by counsel. The court stated, “The court finds t he defendanthas made a knowing, voluntary andintelligent waiver ofhis right to a jur y trial. The court further finds the defendant has made a knowingandintelligent admi ssion of his prior conviction: with regardto the priorstrike within the meaningof [section s] 1170.12(a) through (d) and 667(b) through (i) as well as Penal Code section 667( a)(1).” As a threshold matter Williams’s suggestion the record is ambiguous whether he admitted or denied his prior robbery conviction for purposes o fthe Three Strikes law is without merit. While we recognize Williams answered “yes” to a question that did not call for a yes or no answer, Williams had just properly admit ted the robbery conviction for purposesof section 667, subdivision (a)(1), his counse l joined in his “yes” answer and People v. Williams (1996) 46 Cal.App.4th 1767, 1783 [reman dfor court to state reasons for imposing consecutive sentence not required whereit is no t reasonablyprobable court would impose a different sentence].) 17 the court immediately advised him, without objection, he had just admitted the conviction for purposesofboth section 667, subdivision (a)(1), and the Three Strikes law. Williams has also forfeited his argument the court erred in failing to advise him of the penal consequences ofhis admission. To be sure, “A defendant who admits a prior criminal conviction must first be advised ofthe increased sentence that mightbe imposed. [Citations.] However, unlike the admonition required for a waiver of constitutional rights, advisementofthe penal consequences of admitting a prior conviction is not constitutionally mandated. Rather,it is a judicially declared rule of criminal procedure. [Citations.] Consequently, when the only erroris a failure to advise ofthe penal consequences,the error is waivedifnot raised at or before sentencing.” (People v. Wrice (1995) 38 Cal.App.4th 767, 770-771; see Peoplev. Walker (1991) 54 Cal.3d 1013, 1022-1023.) By failing to object during sentencing, Williams has forfeited his argumentthetrial court’s failure to advise him of the penal consequences of his admission rendered his admission involuntary and not intelligent. DISPOSITION The convictions for forgery are reversed. The judgmentis further modifiedto stay imposition of sentence for second degree burglary pursuantto section 654, thus correcting Williams’s sentencetoa total aggregate state prison term of 21 years. In all other respects the judgmentis affirmed. The superior court is directed to prepare a corrected abstract ofjudgmentandto forwardit to the Department of Corrections and Rehabilitation. PERLUSS,P.J. Weconcur: WOODS,J. ZELON,J. 18 DECLARATION OF SERVICE BY MAIL Law Offices ofTracy A. Rogers 3525 Del Mar Heights Rd. #193 San Diego, CA 92130 Case Number: B222845 I, the undersigned, say: I am over 18 years of age, employed in the County of San Diego, California, and not a party to the subject cause. My business address is 3525 Del Mar Heights Rd. #193, San Diego, California. I served the Petition for Review, ofwhich a true and correct copy of the documentfiled in the cause is affixed, by placing a copy thereof in a separate envelope for each addressee named hereafter, addressed to each such addressee respectively as follows: State of California Attorney General Office Criminal Division 300 S Spring St Los Angeles, CA 90013-1230 Los Angeles District Attorney’s Office 42011 4™ St. West Lancaster, CA 93534 Mr. Wayne Redmond, Esq. 6355 Topanga Canyon Blvd., Ste. 235 WoodlandHills, CA 91367 SecondDistrict Court of Appeal Division Seven 300 S. Spring Street, Suite 2217 Los Angeles, CA 90013 Los Angeles Superior Court, Clerk Antelope Valley Courthouse 42011 4™ St. West Lancaster, CA 93534 California Appellate Project 520 S. Grand Ave., Fourth Floor Los Angeles, CA 90071 Mr. Demetrius Lamont Williams #AD0136 CSP A-2/103U P.O. Box 5006 Calipatria, CA 92233-5006 Each envelope wasthen sealed and with the postage thereon fully prepaid deposited in the United States mail by me at San Diego, California on July 26, 2011. I declare under penalty of perjury that the foregoing is true and correct. Executed on July 26, 2011, at San Diego, California. Tracy A. Rogers