NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 14F03905)
As relevant to this appeal, defendants Filip Ciurar and Sabino Nino were convicted of two counts of robbery. Nino was also convicted of two counts of making criminal threats, and Ciurar was convicted of harboring a felon. The jury found the firearm allegations attached to defendants' robbery charges not true. On appeal, Nino contends the trial court erred by denying his suppression motion and sufficient evidence does not support one of his robbery convictions. Ciurar also contends sufficient evidence does not support the same robbery conviction. We affirm.
Ciurar was also convicted of unlawful possession of an assault weapon, sale of a large capacity magazine, possession of cocaine base, marijuana cultivation, and resisting a peace officer. These convictions relate to Ciurar's ongoing and earlier conduct, which was charged in a separate case later consolidated with these charges. Ciurar does not challenge these convictions on appeal nor the evidence supporting them. Accordingly, we relate only the factual proceedings relevant to the issues raised on appeal.
FACTUAL AND PROCEDURAL BACKGROUND
In early June 2014, Jordan Shim arranged to sell Ciurar three pounds of marijuana. The two attempted to complete the drug deal several times on June 5, but Ciurar either failed to show for the planned meeting or rejected the product Shim offered for sale. Helping Shim was his girlfriend's brother Su Sio Saeteurn who drove Shim to the agreed upon meeting places. Saeteurn was suspicious of Ciurar because of his behavior and did not want to help Shim make the drug deal in the future.
All dates refer to the year 2014 unless otherwise indicated.
On June 6, Shim again arranged to sell Ciurar the marijuana. He asked Saeteurn to drive him, but told Saeteurn it was for the purpose of selling Ciurar a gaming console and some video games. Saeteurn agreed. When Saeteurn picked up Shim in Saeteurn's minivan, Shim was in possession of a large black garbage bag containing marijuana. It was the same black garbage bag containing marijuana he tried to sell Ciurar the previous day. Saeteurn drove the two to a park as directed by Shim, where Shim agreed to meet Ciurar. Saeteurn parked his minivan across the street from the park and the two waited. Eventually, Ciurar arrived in a maroon minivan driven by a female who parked it on the street closest to the park across from Saeteurn's minivan. Ciurar walked across the street and he and Shim negotiated the price of the marijuana in the backseat of Saeteurn's minivan. Shim told Ciurar to move the maroon minivan behind Saeteurn's minivan so they could complete the drug deal. While Ciurar walked away from Saeteurn's minivan, Shim told Saeteurn that he was actually selling Ciurar marijuana.
The two men planned to socialize that day regardless of Shim's plans with Ciurar because it was Shim's birthday.
Saeteurn testified the men did not negotiate inside of his minivan.
Saeteurn testified he did not know Shim was selling marijuana until after the robbery occurred.
As the maroon minivan pulled behind Saeteurn's minivan, a gray sedan sped towards Saeteurn and Shim from the front. The sedan stopped in front of Saeteurn's minivan, and Nino got out of the passenger side. He ran to the open driver's side window and pointed a handgun inside of the car at Saeteurn and then at Shim. Nino demanded the men to "[g]ive me your shit or I'm going to kill you." Saeteurn, with Shim in the front passenger seat of his van, drove forward before making a U-turn to flee. While making the U-turn, Saeteurn hit a curb and popped one of his minivan's tires. Both the maroon minivan and the gray sedan chased Saeteurn's minivan until the group reached a red light.
At the red light, Saeteurn was prevented from continuing by a car stopped in front of him. When he looked behind him, he saw Nino approaching his window with a gun. To get away, Saeteurn drove between the car in front of him and the sidewalk, hitting the car in the process. He turned onto an overpass and was once again stopped by a red light and traffic. The maroon minivan and gray sedan again followed. Nino got out of the gray sedan and again approached the driver's side window of Saeteurn's minivan.
Seeing Nino approach, Saeteurn tried to drive away but his minivan got stuck between the two cars stopped in front of him. Unable to flee, Saeteurn and Shim stayed in the minivan. At this point, Saeteurn's driver's side window was closed. Nino approached the window and hit it multiple times with his elbow until it broke. He then pointed the gun at the two men and threatened to shoot them if they did not give him the marijuana. Shim handed the bag to Nino who fled to the waiting maroon minivan, which then drove away.
Throughout the entire day, Saeteurn never touched the bag of marijuana nor was he paid for his services. Following the incident, Shim gave statements to police that he believed Nino's gun was a BB gun. Both Saeteurn and Shim identified Ciurar and Nino in photo lineups. Two bystanders identified Nino as the man with the gun at trial. Ciurar was arrested on June 13, 2014. Nino was arrested on June 17, 2014, after attempting to flee from Ciurar's home.
Relying on Riley v. California (2014) 573 U.S. ___ (which was decided on June 25, 2014), Nino moved to suppress evidence resulting from the warrantless search of his cell phone after he was arrested fleeing from Ciurar's home. The prosecution did not file an opposition but argued against the motion at a hearing on the matter. The parties agreed to submit on the briefs and argument in addition to an offer of proof supplied by the prosecution.
The prosecutor's offer was as follows: "Officers were acting under the good faith belief that when they seized the phone from Mr. Nino's person on the day that he was arrested, fleeing Mr. Ciurar's house, that they were entitled by law under a current case law at that time, which was June 17th, 2014, to search the phone incident to arrest. [¶] They did that. It was searched on the 17th by a sheriff's analyst back at the office, downloaded at that time, and the report reflects that time. [¶] The case law we're relying on is -- I didn't bring the e-mail, but it's [People v. Diaz (2011) 51 Cal.4th 84 (Diaz)]. And then there's also a US Supreme Court case that stands for basically officers relying on the good faith state of the law and the exclusionary rule not applying to evidence seized pursuant to officers['] actions relying on that good faith state of the law."
The trial court agreed with the prosecution and reasoned that "we do not require law enforcement officers to predict which way [the United States] Supreme Court is going to rule on search issues. Even if there is a general discussion of those things, and in order to preserve the proactive function of the search law, we have come to understand that law enforcement officers may rely on established appellate precedent for their conduct. And that is established by [Davis v. United States (2011) 564 U.S. 229 ] . . . ."
At trial, three images from Nino's phone were shown to the jury and then admitted into evidence as part of a stipulation following the prosecution's case-in-chief. The jury was told they were the result of "[a] lawful forensic examination." The first image showed small greenish-brown objects appearing to be smokable marijuana. The second image showed several plants, appearing to be marijuana, on a blue tarp. The third image showed a "man sitting in chair, looking at cell phone, elbows resting on legs, left arm covered in tattoos." Although not developed in the record, it appears the man is Ciurar. A fourth image was admitted during testimony showing "2 men sitting in chairs; one man holding a rifle." It appears from the parties' discussion at the suppression hearing that the two men in the image are defendants.
The matter was assigned to the panel as presently constituted in October 2018. --------
The Trial Court Properly Denied Nino's Suppression Motion
Nino contends the trial court prejudicially erred in finding the good faith exception applied to the warrantless search of his cell phone. He attacks the court's ruling arguing it failed to determine whether the officers subjectively relied on Diaz during the search and it erroneously found the officers reliance on Diaz was objectively reasonable. We disagree.
The Fourth Amendment to the United States Constitution guarantees the right to be free of unreasonable searches and seizures. Warrantless searches are presumed to be unreasonable, subject only to a few specifically established and well-delineated exceptions. (People v. Maccabee (2016) 1 Cal.5th 1206, 1212-1213.) Accordingly, when a defendant challenges "the legality of a warrantless search or seizure, the People are obligated to produce proof sufficient to show, by a preponderance of the evidence, that the search fell within one of the recognized exceptions to the warrant requirement." (People v. Romeo (2015) 240 Cal.App.4th 931, 939.) We evaluate challenges to the admissibility of a search or seizure solely under federal constitutional standards. (Macabeo, at p. 1212.) We defer to the trial court's express or implied factual findings if supported by substantial evidence, but exercise our independent judgment to determine whether, on the facts found, the search or seizure was reasonable under the Fourth Amendment. (Ibid.)
The good faith exception to the exclusionary rule applies when a search was conducted in objectively reasonable reliance on binding appellate precedent. (Davis v. United States, supra, 564 U.S. at p. 231 .) "[T]he 'prime purpose' of the exclusionary rule 'is to deter future unlawful police conduct and thereby effectuate the guarantee of the Fourth Amendment against unreasonable searches and seizures,' " and, "[a]s with any remedial device, application of the exclusionary rule properly has been restricted to those situations in which its remedial purpose is effectively advanced." (Illinois v. Krull (1987) 480 U.S. 340, 347 [94 L.Ed.2d 364, 373]; see also Davis, at pp. 236-237 [180 L.Ed.2d at pp. 293-294].) When the police act in an objectively reasonable manner consistent with existing law, "the " 'deterrence rationale loses much of its force,' " and exclusion cannot 'pay its way.' " (Davis, at p. 238 .)
Nino first argues the good faith exception did not apply under the circumstances of his case because the prosecutor's offer of proof was insufficient. He argues the proffer was merely a conclusion of law and did not establish that officers in fact relied on Diaz when deciding to search his cell phone. This argument is forfeited. The parties agreed to submit the issue on Nino's briefing and the prosecution's proffer. The prosecution's proffer was that officers relied on Diaz, and Nino argued that reliance was objectively unreasonable given how close the facts of his case were to the facts in Riley. Nino cannot now argue this proffer was insufficient to establish the officers' subjective reliance. (People v. Williams (1999) 20 Cal.4th 119, 136 [" '[t]he scope of issues upon review must be limited to those raised during argument' "].) Moreover, it is of no matter the record does not show the officer was aware of Diaz. "[T]he term 'good faith exception' may be somewhat of a misnomer, because the exception focuses on the objective reasonableness of an officer's conduct." (People v. Willis (2002) 28 Cal.4th 22, 29, fn. 3.)
Nino next argues the officers' reliance on Diaz was objectively unreasonable. He concedes "Diaz held that a cell phone seized upon arrest could be searched 90 minutes later on the asserted ground that 'the cell phone was "immediately associated with [defendant's] person" ' " He nevertheless argues that Diaz is distinguishable from his own case and, in the alternative, was so obviously wrongly decided that reliance on that authority was objectively unreasonable. We disagree.
As to Nino's first point, his case is not materially distinguishable from Diaz as to render reliance upon it unreasonable. In Diaz, the defendant was arrested after an officer saw him selling Ecstasy. The defendant had a cell phone, which was searched 90 minutes after the defendant's lawful arrest. A text incriminating the defendant in the sale of Ecstasy was found. (Diaz, supra, 51 Cal.4th at pp. 88-89.) Our Supreme Court found the phone was " 'immediately associated with [defendant's] person,' " and, under the court's understanding of United States Supreme Court precedent, the warrantless search of the phone was valid as incident to arrest. (Id. at p. 93.)
Here, Nino was arrested and his cell phone was immediately seized from his person. It was searched later that day by an analyst at the office. These facts fall squarely within the reasoning of Diaz. Nino attempts to distinguish his case arguing that the search of his phone was not incident to his arrest in a vehicle as was the case in Diaz. Our Supreme Court in Diaz did not make such a distinction. (See Diaz, supra, 51 Cal.4th at p. 93 [cell phone was immediately associated with the defendant's person and thus its warrantless search was valid].) Further, under other controlling authority at the time such a distinction was rejected. (See People v. Nottoli (2011) 199 Cal.App.4th 531, 558 ["[w]e discern no principled reason to distinguish between a cell phone found on an arrestee's person during a search incident to arrest and a cell phone found in a passenger compartment during a vehicular search incident to arrest"].)
Neither was Diaz so wrongly decided that reliance upon it was unreasonable. Nino relies on United States v. Leon (1984) 468 U.S. 897 and Illinois v. Krull, supra, 480 U.S. at page 340 to argue officers are "obligated to make some evaluation as [to] the legality of the authority relied upon." Nino's reliance is misplaced. The authority relied on in Leon was a later-determined inadequate warrant, while the authority relied on in Krull was a later-determined unconstitutional statute. (Leon, at pp. 902-903 [82 L.Ed.2d at pp. 685-686]; Krull, at pp. 343-344 [94 L.Ed.2d at pp. 370-371].) In both situations, the Supreme Court determined the officers' reliance was objectively reasonable. (Leon, at pp. 920-921 ; Krull, at pp. 356-357 [94 L.Ed.2d at pp. 379-380].) Here, we reach the same conclusion.
"Under the doctrine of stare decisis, all tribunals exercising inferior jurisdiction are required to follow decisions of courts exercising superior jurisdiction. . . . Courts exercising inferior jurisdiction must accept the law declared by courts of superior jurisdiction. It is not their function to attempt to overrule decisions of a higher court." (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) In other words, the lower court exceeds its jurisdiction if it refuses to follow the decision of a higher court based on the lower court's determination that the higher court's decision was wrongly decided. (Id. at pp. 454-455.) In the absence of a subsequent contrary decision of the United States Supreme Court, lower California courts are bound by the decisions of the California Supreme Court. (Tanguilig v. Bloomingdale's, Inc. (2016) 5 Cal.App.5th 665, 673.) Thus, until the United States Supreme Court issued its decision in Riley, all the trial and appellate courts in this state were bound to follow Diaz. It was therefore objectively reasonable for police officers in this state to be guided by those decisions in conducting searches incident to arrest.
Thus, the officers' reliance on Diaz was objectively reasonable. Accordingly, the trial court did not err in finding the exclusionary rule inapplicable to the search of Nino's cell phone.
Sufficient Evidence Supports Defendants' Robbery Of Saeteurn
Defendants both contend sufficient evidence was lacking to convict them of the robbery of Saeteurn. They argue that because Saeteurn never actually or constructively possessed the bag of marijuana, he was not a victim of a robbery. We disagree.
"In assessing a claim of insufficiency of evidence, the reviewing court's task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence -- that is, evidence that is reasonable, credible, and of solid value -- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) "The standard of review is the same where the prosecution relies primarily on circumstantial evidence. (In re Alexander L. (2007) 149 Cal.App.4th 605, 610.) " 'An appellate court must accept logical inferences that the jury might have drawn from the evidence even if the court would have concluded otherwise.' " (People v. Halvorsen (2007) 42 Cal.4th 379, 419.) Before a verdict may be set aside for insufficiency of the evidence, a party must demonstrate " 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' " (People v. Bolin (1998) 18 Cal.4th 297, 331.)
"Robbery is defined in [Penal Code] section 211 as 'the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.' " (People v. Scott (2009) 45 Cal.4th 743, 749.) Robbery divests the victim of property. "A person from whose immediate presence property was taken by force or fear is not a robbery victim unless, additionally, he or she was in some sense in possession of the property. 'It has been settled law for nearly a century that an essential element of the crime of robbery is that property be taken from the possession of the victim.' " (Ibid.)
Possession may be actual or constructive. "A person who owns property or who exercises direct physical control over it has possession of it, but neither ownership nor physical possession is required to establish the element of possession for the purposes of the robbery statute. [Citations.] '[T]he theory of constructive possession has been used to expand the concept of possession to include employees and others as robbery victims.' [Citation.] Two or more persons may be in joint constructive possession of a single item of personal property, and multiple convictions of robbery are proper if force or fear is applied to multiple victims in joint possession of the property taken." (People v. Scott, supra, 45 Cal.4th at pp. 749-750.)
"[A] person who has the right to control property has constructive possession of it. [Citations.] For constructive possession, courts have required that the alleged victim of a robbery have a 'special relationship' with the owner of the property such that the victim had authority or responsibility to protect the stolen property on behalf of the owner." (People v. Scott, supra, 45 Cal.4th at p. 750, fn. omitted.) " '[I]t is enough that the person presently has some loose custody over the property, is currently exercising dominion over it, or at least may be said to represent or stand in the shoes of the true owner.' " (People v. DeFrance (2008) 167 Cal.App.4th 486, 497.)
In Scott, our Supreme Court held that on-duty employees have constructive possession of their employer's property for purposes of resisting a robbery. As the court explained, "[a]lthough not every employee has the authority to exercise control over the employer's funds or other property during everyday operations of the business, any employee has, by virtue of his or her employment relationship with the employer, some implied authority, when on duty, to act on the employer's behalf to protect the employer's property when it is threatened during a robbery." (People v. Scott, supra, 45 Cal.4th at p. 754.)
As the court observed, "[a]n employee's authority to protect the employer's property is recognized in Civil Code section 50, which establishes the right to use 'necessary force' to protect the 'property of oneself, or of a wife, husband, child, parent, or other relative, or member of one's family, or of a ward, servant, master, or guest.' (Italics added.) In other words, the employee's relationship with his or her employer constitutes a 'special relationship' sufficient to establish the employee's constructive possession of the employer's property during a robbery." (People v. Scott, supra, 45 Cal.4th at p. 754.)
Cases recognizing constructive possession to support a robbery conviction outside the employment context have generally involved family members. (See, e.g., People v. Gordon (1982) 136 Cal.App.3d 519, 529 [parents robbed of drugs and cash belonging to their adult son].) In Gordon, although neither parent knew of the marijuana or $1,000 taken from their son's bag, the court explained, "parents have at least the same responsibility [as employees cited in other cases] to protect goods belonging to their son who resides with them in their home." (Ibid.)
Case law illustrates that a familial relation with the victim may be sufficient to create the "special relationship" necessary to establish constructive possession supporting a robbery conviction. Thus, in Weddles, the court upheld two counts of robbery where, in an armed home invasion, the robbers took one brother's $1,500. (People v. Weddles (2010) 184 Cal.App.4th 1365, 1368, 1370-1371.) The other brother did not live there, but was present and scuffled with the robbers before they held a gun to his sibling's head, repeating, " ' "Where's the money . . . where's the money?" ' " and, " ' "We'll shoot you, we'll pop you." ' " (Id. at pp. 1369, 1371.) The hostage brother directed his visiting brother to show the robbers where, as the visiting brother knew, $1,500 was stashed in a jar in his bedroom (id. at p. 1368), giving the visiting brother express authority over those funds to reveal them.
The court explained, "[a]lthough [the visiting brother] did not live in [the hostage brother's] apartment, he had a close connection to him. Not only [were they brothers], but [the visiting brother] was also sufficiently close to [the hostage brother] that he knew where [the hostage brother] kept his hidden savings. [The visiting brother] had a special relationship with [the hostage brother] that conferred him with constructive possession of [the hostage brother's] personal property in the apartment." (People v. Weddles, supra, 184 Cal.App.4th at p. 1371.) Similarly, in DeFrance, a mother and her adult son were both robbed of the son's car when it was parked outside their home and the mother had implied authority over the vehicle, where she "had access to the keys, had driven it, and was named on the insurance." (People v. DeFrance, supra, 167 Cal.App.4th 486, 499.) The mother was no mere bystander to the car, but instead had a possessory "connection" to it. (Ibid.)
Absent a special relationship to the property or the person to whom it belongs, an incidental familial relationship is not enough to establish the implied authority or duty to protect property that is necessary to constitute constructive possession. Thus, in Nguyen, our Supreme Court reversed a robbery conviction where the husband of an employee was present in the break room for a party when the robbery occurred. (People v. Nguyen (2000) 24 Cal.4th 756, 764.) The court explained that as "a visitor to the business," the husband "was not in actual or constructive possession of the property taken from the business." (Ibid.)
Similarly, where a Good Samaritan intervenes without any relationship to the owner or the property, there is no robbery. In Galoia, a man collecting money from his coin-operated video games located in a convenience store tried to stop a robbery. The court found he was not a robbery victim. (People v. Galoia (1994) 31 Cal.App.4th 595, 597-599.) In Sykes, the defendant burglarized one business, stealing a saxophone, and a security guard working for another business gave chase. The absence of any special relationship between the music store and the security guard from a neighboring business precluded a robbery conviction. (Sykes v. Superior Court (1994) 30 Cal.App.4th 479, 484.)
On the other hand, while authority over another's property will not be assumed, including authority to stop a theft, it may be implied by the circumstances, as in Bekele, disapproved on another ground in People v. Rodriguez (1999) 20 Cal.4th 1, 14. In Bekele, two workers driving a front-end loader saw the defendant stealing a tape deck and speakers from a truck belonging to one of the workers. (People v. Bekele (1995) 33 Cal.App.4th 1457, 1459-1460.) Turning to his companion, the truck owner (Jump) said, " ' "Let's stop," ' " and then the duo "acted in concert to interrupt the burglary: they simultaneously left the front-end loader to approach Jump's truck, and both told [the defendant] to stop." (Id. at p. 1462.) The defendant fled, later pulling a gun on Jump's companion (Fernandez), who pursued him. (Id. at p. 1460.) Upholding the robbery conviction, the reviewing court explained, "the evidence demonstrated that Fernandez had a representative capacity with respect to Jump's property, in that he had implied authority from Jump to take action to prevent its theft." (Id. at p. 1462.) The court observed that, in acting together at Jump's invitation (" ' "Let's stop" ' "), "[t]he obvious implication was that Jump wanted Fernandez to help safeguard Jump's property by putting a stop to the theft." (Ibid.)
As our Supreme Court has noted, other jurisdictions have sometimes broadened the definition of robbery, including by adopting the Model Penal Code, which defines robbery "to include the use of force or fear against any person during the commission of a theft." (People v. Nguyen, supra, 24 Cal.4th at p. 763.) Similarly, some states "include injury or threat to one other than the custodian of the property; they include escape from commission or attempt; and they eliminate the element of asportation." (Id. at p. 764.) In contrast, "[o]ur Legislature has adopted the traditional approach, as reflected in the language of [Penal Code] section 211." (Ibid.) The high court recognized "legitimate concern[s]" in continuing to require possession as an element of robbery, including there that the husband, as a "visitor to the business . . . was subjected to the same level of force as were the employees of the business, yet each of the employees is a victim of robbery while the visitor is not." (Id. at p. 762-763.) But because the prerogative rests with the Legislature to define crimes, "[i]t is up to the Legislature to implement any change that may be desirable." (Id. at p. 764.)
Defendants argue the facts of their case do not align with any of the circumstances outlined in the cases above. The People argue this case is like Bekele and a special relationship between Shim and Saeteurn existed because they were close friends and Shim entrusted Saeteurn to help him sell his marijuana. We agree with the People. The facts support a finding that Saeteurn had implied authority to take action to protect Shim's property and thus a special relationship existed giving Saeteurn constructive possession of the property.
The day before the robbery, Shim asked Saeteurn to drive him multiple times to meet with Ciurar for the purposes of selling marijuana. These meetings never resulted in the actual sale of marijuana, and because of that Saeteurn expressed his unwillingness to help Shim sell marijuana to Ciurar in the future. The day of the robbery, Shim also asked Saeteurn for a ride. Because of Saeteurn's unwillingness to help Shim sell marijuana to Ciurar, Shim lied to Saeteurn and told him he needed a ride so he could sell Ciurar a gaming system and video games. Shim, however, brought the exact same bag to sell to Ciurar he had brought the day before. During the sale, Shim and Saeteurn were held at gunpoint until Shim handed Nino the bag in his possession. The purpose of Saeteurn's presence was to assist Shim in the sale of the goods in the bag, whether those goods were video games or marijuana is of no consequence. It was the bag Saeteurn agreed to transport for Shim. Nino demanded the "shit" in that bag from both Saeteurn and Shim. And that is what he got.
Defendant's case is not like Fiore. There, an acquaintance (Gault) was present when two men robbed the victim (Young) of marijuana in his home; indeed, Gault had given the men the marijuana to sample. (People v. Fiore (2014) 227 Cal.App.4th 1362, 1386.) But as the reviewing court explained, "[a]lthough the evidence permits an inference that Gault had Young's permission to handle the marijuana for the purpose of letting Fields and Fiore sample it, Young's acquiescence to Gault's momentary control over the property for this limited purpose did not establish that Gault had any right or duty to resist the property's taking or that Young expected him to do so." (Ibid.) Overturning the defendant's conviction for robbing Gault, the court found insufficient evidence that Gault " 'owned, had access to, [had] control over, or [had] an obligation to protect the [stolen] marijuana.' " (Id. at p. 1387.)
Here, on the other hand, Saeteurn had control over the bag for the purposes of transporting it for sale. A sale which was interrupted by a robbery. This was a much greater acquiescence of control than the circumstances of Fiore, where the robbery victim merely ceded control to Gault so he may sample the marijuana. Shim's acquiescence allowed Saeteurn to control the physical location of the bag. Like the truck owner in Bekele, Shim gave Saeteurn implied authority to transport and protect his possessions.
This case is also not like Ugalino. There, the defendant went to Johnson's residence to buy marijuana, which Johnson kept in a safe. (People v. Ugalino (2009) 174 Cal.App.4th 1060, 1065.) Instead of buying the drugs, the defendant pointed a gun at Johnson, telling him he was being " 'jacked' " and ordering Johnson to give him the " 'weed.' " (Id. at pp. 1062-1063, 1065.) His accomplice pointed a gun at Johnson's roommate, Rider, ordering him face down on the floor. (Id. at p. 1063.) Johnson then ran out of the house with the drugs, and the defendant and his accomplice fled. (Ibid.)
Reversing the defendant's conviction for attempted robbery of Rider, the court noted there was no evidence the roommate had access to the safe or even had a key to the apartment. (People v. Ugalino, supra, 174 Cal.App.4th at p. 1065.) Instead, he came and went from the home when others were present. "Furthermore, at the time of the robbery, Johnson was present to protect his own belongings and there was no evidence he expected Rider to assist him in that regard." (Ibid.) Faced with this record "[l]acking any evidence that Rider owned, had access to, control over, or an obligation to protect [the stolen property]," the court ruled that the robbery conviction involving Rider "[could] not be sustained." (Ibid.)
Here, there is evidence Shim expected Saeteurn to assist him in protecting the bag of goods. Saeteurn had access to the bag and was entrusted to transport it. The bag was not some other place in a larger home Saeteurn was allowed to frequent. Instead, the bag was in Saeteurn's van, which was used for the purposes of transporting it so its contents could be sold. Thus, Shim gave Saeteurn the "authority or responsibility to protect the stolen property on behalf of the owner." (People v. Scott, supra, 45 Cal.4th at p. 750.) Sufficient evidence supports defendants' convictions.
The judgments are affirmed.
Robie, J. We concur: /s/_________
Hull, Acting P. J. /s/_________