Paul Stubb, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Lynn G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16CF0389) OPINION Appeal from a judgment of the Superior Court of Orange County, David A. Hoffer, Judge. Affirmed. Paul Stubb, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Lynn G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury convicted defendant James Michael Mendez of three counts of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c); counts 1, 2, & 3), two counts of assault with a deadly weapon (§ 245, subd. (a)(1); counts 4 & 6), two counts of resisting an officer in the performance of his or her duties (§ 148, subd. (a)(1); counts 7 & 8), one count of possession of a controlled substance (Health & Saf. Code, § 11350, subd.(a); count 9); one count of possession of controlled substance paraphernalia (Health & Saf. Code, § 11364, subd. (a); count 10), and one count of destroying or concealing evidence (§ 135; count 11). The jury also found true allegations that defendant personally used a dangerous or deadly weapon in connection with counts 1 through 3. (§ 12022, subd. (b)(1).)
All further statutory references are to the Penal Code unless otherwise stated.
The jury acquitted defendant of one count of assault with a deadly weapon (§ 245, subd. (a)(1); count 5). --------
The court found true allegations that defendant had suffered five prior convictions. The court sentenced defendant to an aggregate term of 10 years 8 months in state prison as follows: (1) the middle term of three years on count 1; (2) one-third the middle term of three years on count 2 to be served consecutive to count 1; (3) the middle term of three years on count 3 to be served concurrent to count 1; and (4) the middle term of three years each on counts 4 and 6, which were stayed pursuant to section 654. The court also imposed one year for defendant's use of a knife on count 1 and a concurrent term of one year for the same enhancement on count 3 while striking the enhancement on count 2. The court further struck one prior prison term conviction, imposed four one-year terms for defendant's remaining prior prison term convictions, and suspended imposition of sentence on counts 7 through 11. The People do not challenge the court's failure to impose a sentence on counts 7 through 11. Finally, the court imposed a consecutive 1 year 8 months term on an unrelated matter.
Defendant raises one issue on appeal. He contends there was insufficient evidence of force or fear to support the conviction on count 2. We disagree and find substantial evidence supported the second degree robbery conviction, and, accordingly, we affirm the judgment.
In January 2016, Bryan A., a loss prevention supervisor, and two loss prevention officers, Ross R. and Gerardo H., were working at a department store. Ross and Gerardo noticed defendant engage in suspicious behavior on the surveillance monitors and observed him select clothing items without considering their price or size. Gerardo then inspected the fitting rooms to make sure they were clear of clothing items and loose price tags.
Shortly thereafter, defendant entered and left one of the fitting rooms. When he came out of the room, he was holding fewer items than he took into the room. Gerardo checked the fitting rooms again and found tags torn off some clothing. Defendant then went to the cash register and paid for the items he was holding.
As defendant was leaving the store, Gerardo and Bryan confronted defendant and identified themselves as loss prevention officers. Defendant reached into his pocket, pulled out a pocket knife, and waved it at them. Both Gerardo and Bryan testified they were afraid and backed up as defendant ran outside.
Gerardo and Bryan followed defendant outside. By this time, Ross had arrived and followed defendant as well. According to Ross, defendant was about 15 to 20 feet away and headed toward an open rear passenger door of a truck when he stopped, stepped toward the three men, and waved the knife again. Bryan believed defendant was about 15 feet away and may have been holding some kind of weapon. Gerardo testified defendant was about 10 feet away when he waived the knife. All three men testified they were afraid for their safety at that point.
After Ross called the police, several officers responded and attempted to conduct a traffic stop of the truck. The truck pulled into the parking lot of an apartment complex, and defendant fled from the rear passenger door. He ran through the parking lot as two officers chased after him. The officers eventually arrested defendant, and a search of his person uncovered a folding knife and a hypodermic syringe containing heroin and cocaine. In some nearby bushes, officers found defendant's clothing and a stolen shirt.
Defendant argues we should reverse his conviction on count two, the robbery of Ross, because there was insufficient evidence of force or fear. Given the allegedly insufficient evidence, he claims his due process rights were violated. We disagree. There is substantial evidence in the record supporting defendant's conviction.
"In addressing a challenge to the sufficiency of the evidence supporting a conviction, the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence — evidence that is reasonable, credible and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Kraft (2000) 23 Cal.4th 978, 1053.) "[I]t is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence." (People v. Maury (2003) 30 Cal.4th 342, 403.)
Section 211 defines robbery as "the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (Ibid.) "'The element of fear for purposes of robbery is satisfied when there is sufficient fear to cause the victim to comply with the unlawful demand for his property.'" (People v. Morehead (2011) 191 Cal.App.4th 765, 774.) "It is not necessary that there be direct proof of fear; fear may be inferred from the circumstances . . . ." (Id. at p. 775.) "If there is evidence from which fear may be inferred, the victim need not explicitly testify that he or she was afraid. [Citations.] Moreover, the jury may infer fear '"from the circumstances despite even superficially contrary testimony of the victim."'" (Ibid.)
Here, the record includes sufficient evidence of force or fear. Ross testified he saw defendant waive a knife at him, Bryan, and Gerardo. As defendant concedes, a video played to the jury showed Ross step back when defendant waived the knife. Ross also testified he was afraid for his safety at that point. He further allowed defendant to abscond without resistance. (People v. Borra (1932) 123 Cal.App. 482, 484 ["Prompt compliance with the commands of an armed person, who by words or demonstration threatens bodily harm for failure to do so, furnishes some evidence of fear"].)
Despite these facts, defendant claims he was 15 to 20 feet away so Ross "was simply watching [defendant] swing his knife around." Given the distance between them, he argues Ross could not have been afraid. This ignores Ross's testimony that it appeared as if defendant was about to run at him and the two other loss prevention officers with the knife. As noted, ante, Ross testified he was afraid when defendant waived the knife around. Ultimately, it was the jury's task to evaluate Ross's credibility. Reviewing the record in the light most favorable to the judgment, we conclude substantial evidence supported the jury's finding that defendant used force or fear.
The judgment is affirmed.
IKOLA, J. WE CONCUR: BEDSWORTH, ACTING P. J. FYBEL, J.