Opinion
G053743
04-17-2018
THE PEOPLE, Plaintiff and Respondent, v. CESAR EMMANUEL GORDON, Defendant and Appellant.
Kleven McGann Law and Sarah Kleven McGann for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles Ragland and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.
ORDER DENYING PETITION FOR REHEARING AND MODIFYING OPINION; NO CHANGE IN JUDGMENT
Appellant's petition for rehearing is DENIED. The opinion filed April 17, 2018 is hereby modified as follows:
On page 7 of the slip opinion, insert new footnote 9 at the end of the last full paragraph (the one that begins "Let us accept"); new footnote 9 is to read:
"In a petition for rehearing, Gordon stresses that the New York Field Code, which did indeed provide much of the template for California's own Penal Code, had a companion section (draft section 281) to the basic definition of robbery that explicitly repudiated the escape rule on which the Estes doctrine is founded. (Cf. Gomez, supra, 43 Cal.4th at p. 256 and p. 256, fn. 5.) But, as the Attorney General astutely noted in his answer to the petition for rehearing, New York's draft section 281 never made it into California's Penal Code. If anything, the omission supports at least an inference against any legislative intent to preclude a common law Estes doctrine. (E.g., In re Rudy L. (1994) 29 Cal.App.4th 1007, 1013.) We need only add that the escape doctrine, and its corollary need to reach a place of temporary safety in order to accomplish the crime of robbery, is well embedded in California's Supreme Court jurisprudence. (See People v. Wilkins (2013) 56 Cal.4th 333, 340-347; People v. Anderson (1966) 64 Cal.2d 633, 638; and People v. Boss (1930) 210 Cal. 245, 250-251.)"
This modification does not effect a change in judgment.
BEDSWORTH, J. WE CONCUR: O'LEARY, P. J. ARONSON, J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16WF0317) OPINION Appeal from a judgment of the Superior Court of Orange County, Walter P. Schwarm, Judge. Affirmed. Kleven McGann Law and Sarah Kleven McGann for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles Ragland and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Cesar Gordon took Joseph Franco's bike from a Costa Mesa Taco Bell. But Franco saw what was going on and chased Gordon down, grabbed his backpack, and threw him off the bicycle. Gordon attempted to retain the bike, and a scuffle ensued, during which Gordon landed at least one punch. Franco would later testify Gordon hit him twice in the face, and there is no issue concerning whether Gordon used force in his effort to keep Franco's bike. Gordon was convicted of attempted robbery and petty theft and sentenced to nine years in prison.
The relatively long length of the sentence can be explained by Gordon's having a prior strike (which doubled a two-year sentence for attempted robbery to four years) plus five years tacked on for having a prior conviction under section 667, subdivision (a) of the Penal Code.
All undesignated statutory references are to the Penal Code. There will be one to the Code of Civil Procedure readers should look out for.
On appeal, Gordon does not argue the absence of substantial evidence to convict him of the attempted robbery charge. Rather, he presents a full-frontal attack on the idea that a petty theft can be turned into a robbery by the thief's use of force in trying to prevent the stolen property from being regained. The seminal case in this area was People v. Estes (1983) 147 Cal.App.3d 23 (Estes). There, a thief tried to wear some unpurchased clothing out of a Sears department store, was followed out of the store by a security guard, and when he was confronted by the guard, pulled a knife and swung it at him. (See id. at p. 26.) The Estes court ruled the thief was properly convicted of robbery. The Estes case has become short-hand for an entire genre of misdemeanor property crimes turned into felonies by the thief's forcible resistance to the retaking of the property. Such crimes are known as "Estes robberies."
Estes came under Supreme Court scrutiny in People v. Gomez (2008) 43 Cal.4th 249 (Gomez). Gomez arose out of the defendant's breaking into a restaurant early in the morning, taking money from an automated teller machine, then being followed by the newly-arrived restaurant manager, who gave chase in a car. The defendant fired two shots at the manager, setting up the classic scenario of force used during a getaway after a taking without force. (See id. at 253.) On review, the Supreme Court approved Estes and held the defendant could be convicted of robbery based on the shots during his getaway. (See id. at pp. 253, 261, 265.) The key point was that the defendant had relied on force or fear to "maintain possession against a victim who encounters him for the first time as he carries away the loot." (Id. at p. 265.)
Gordon's assault on the "Estes robbery" doctrine, however, presents an argument not directly considered in Gomez. California's robbery statute, section 211, was enacted in 1872. According to Gordon, the legislators who enacted section 211 intended to codify the common law of robbery, and the common law of robbery embodied a moment-of-taking approach to the use of force or fear. That is, the force or fear had to be contemporaneous with the taking of someone else's property, not used after that taking merely as part of an effort to keep the property from being retaken. Thus, argues Gordon, he cannot be convicted of robbery or attempted robbery in the case before us - the initial taking of the bicycle was without force and force was only used in the attempted getaway.
The best support for Gordon's argument is Blackstone's famous example of surreptitiously purloined sixpence. According to Blackstone, a subsequent attempt to keep the sixpence by force or fear was not robbery: "'For, if one privately steals sixpence from the person of another, and afterwards keeps it by putting in fear, this is no robbery, for the fear is subsequent . . . .'" (See People v. Randolph (2002) 466 Mich. 532, 542, quoting 4 Blackstone, Commentaries, Public Wrongs, ch. 17, p. 242 (Randolph).)
A full citation to Randolph might arguably include the notation "superseded by statute." We will expand on that detail anon.
Gordon's sights are set higher than our review of this point. His brief cheerfully concedes this court can give him no practical relief on the "Estes robbery" issue in light of Gomez. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456 [we are bound by Supreme Court precedent on point].)
He nevertheless invites us to "recognize what the true legislative intent" behind section 211 was, with an eye to voicing our opinion that while we might have to follow Gomez, we don't have to agree with it. What he is hoping for is our two cents worth to the effect that if we were writing on the proverbial "clean slate," we would hold that robbery requires the use of force contemporaneous with the taking of property, as distinct from the use of force to keep the property from being retaken afterwards. (See Santa Fe Partnership v. ARCO Products Co. (1996) 46 Cal.App.4th 967, 978 [explicitly recognizing logic and general principles should allow for stigma damages caused by chemical pollution on land, but still following high court precedent that does not allow such "prospective damages in cases of continuing nuisance"]; People v. Williams (1992) 9 Cal.App.4th 1465, 1472 [finding cases from other jurisdictions "persuasive" to the effect that a grand theft person had been committed in the circumstances before the court, though following high court precedent to conclude that grand theft person had not been committed].)
Because Gomez did not directly confront the problem of the original intent behind the 1872 enactment of section 211, we pick up the gauntlet Gordon has thrown down. But we cannot provide the unenthusiastic expression of reluctance to follow binding dubious precedent Gordon hopes for. It seems to us the state's existing precedent as first expressed in Estes and then later given Supreme Court imprimatur in Gomez is correct.
There is a passing allusion in Gomez to the defendant's argument there that Estes was a court-initiated expansion of the Legislature's definition of robbery, and therefore the Estes doctrine should have been undertaken by the Legislature, not the courts. (See Gomez, supra, 43 Cal.4th at p. 261.) But that's as close as the Gomez case comes to the 1872 original intent issue.
We tackle the issue like the problem of statutory interpretation it is. We begin not with the problem of intent back in 1872, but with the actual words of the statute. (E.g., People v. Adelmann (2016) 2 Cal.App.5th 1188, 1195 ["Statutory interpretation begins with an analysis of the plain meaning of the statute. If the statutory language is clear and unambiguous, courts must follow its usual, ordinary meaning."].) As this court has pointed out, "Felix Frankfurter once made fun of the tendency of courts to look at legislative history rather than the actual words of the statute. '[T]his is a case for applying the canon of construction of the wag who said, when the legislative history is doubtful, go to the statute,' he wrote." (J.A. Jones Construction Co. v. Superior Court (1994) 27 Cal.App.4th 1568, 1570-1571, quoting Greenwood v. United States (1956) 350 U.S. 366, 374.)
Robbery is defined in section 211 in a single sentence: "Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (Italics added.)
We find the word "accomplished" in California's statute to be particularly significant. The ordinary meaning of the word "accomplished" is to bring about a result or (Merriam Webster's) to "bring to completion." The Oxford English Dictionary says "accomplish" means to "Achieve or complete successfully" and notes it is based on a Latin word meaning to complete.
See https://en.oxforddictionaries.com/definition/accomplish [as of Oct. 16, 2017].
The statute's use of the word "accomplished" - past tense with the meaning of completed - shows the Estes/Gomez transactional approach to section 211 is not only perfectly consistent with the statutory language, but explicitly contemplated by that language. The taking of personal property is completed - that is accomplished - by the force or fear, which necessarily includes force or fear used to complete the theft after the initial taking.
Nor should we fall into the metaphysical trap of "artificial parsing" as to "the precise moment or order in which the elements are satisfied," (see Gomez, supra, 43 Cal.4th at p. 254). If property was initially taken from a person or from his or her "immediate presence" (even if stealthfully) it makes perfect sense to say that the taking was nevertheless ultimately accomplished - that is completed - by force or fear if force or fear is used when that person tries to take it back.
For purposes of this case, there is no reason to opine on the problem of whether it is the owner, or owner's agent, who is the object of the force used to retain the property. In Estes and Gomez the force was applied against the owner's agents, namely a store security guard and the restaurant's manager. Here, Gordon's blows were directed at the actual owner of the bicycle.
When meaning is plain from the text, there is no need to proceed further into the history of the statute to divine some historical intent. (E.g., Security Pacific National Bank v. Wozab (1990) 51 Cal.3d 991; Delaney v. Superior Court (1990) 50 Cal.3d 785, 798.) Since we think the language is unambiguous, we could stop here.
But as long as we are indulging in a re-think of the Estes robbery doctrine, let us now proceed to the second level, i.e., what is shown by legislative history. (MacIsaac v. Waste Management Collection & Recycling, Inc. (2005) 134 Cal.App.4th 1076, 1082 [noting "three-step sequence" of plain meaning, legislative history, then finally to the reasonableness of a proposed construction.].) When it comes to intent as shown by legislative history of section 211, we immediately notice something missing in the argument against the Estes/Gomez transactional approach. What is absent is some clear indicia that the California legislators who wrote section 211 in 1872 intended it to incorporate the English common law of robbery, lock stock and complete with Blackstone's stolen sixpence. The California jurisprudence on the topic is just a little more nuanced than that: While the 1850 Legislature did track Blackstone's definition of robbery (see People v. Tufunga (1999) 21 Cal.4th 935, 945-946 ), we note that the 1872 language introduced that interesting new word "accomplished" into the text. To be sure, section 211 has "common law roots," as shown by the historical term of art, "felonious taking." (See People v. Williams (2013) 57 Cal.4th 776, 781 (Williams).) But the Gomez court noted that the 1872 language only "incorporates common law requirements" (see Gomez, supra, 43 Cal.4th at p. 254, fn. 2, italics added) as distinct from the totality of the common law.
The passage from Tufunga, which also quotes Blackstone, bears repeating: "Thus, the 1850 robbery statute (Stats. 1850, ch. 99, § 59, p. 235) closely tracked the definition of robbery set out in Blackstone's Commentaries. (Compare § 59 of the Crimes and Punishments Act of 1850 ['Robbery is the felonious and violent taking of money, goods, or other valuable thing from the person of another, by force or intimidation." (Stats. 1850, ch. 99, § 59, p. 235, italics added.)], with 4 Blackstone, supra, at p. 242 [robbery 'is the felonious and forceful taking from the person of another of goods or money to any value, by violence or putting him in fear' (italics added)].)"
Compare the language just quoted from 1850 to the current (1872) version quoted in the text.
Let us accept, for sake of argument that, as Gordon asserts, the common law of robbery reflected the moment-of-taking approach and not the transactional approach to robbery. That is, the common law did not call "robbery" a thief's use of force or fear to retain the sixpence he secretly stole. (Even that is not entirely an undisputed matter as shown by the dueling majority and dissenting opinions in Randolph.) Even so, what we don't have is any clear evidence that the 1872 Legislature, particularly given the introduction into the statute of that word connoting finality - accomplished - meant to keep the moment-of-taking approach and exclude a transactional approach. Gordon provides us with no clear legislative history that might somehow narrow or vary what is otherwise the plain meaning of the statute. (See J.A. Jones Construction Co. v. Superior Court, supra, 27 Cal.App.4th at p. 1574 [absence of clear statement of intent in earlier legislative history defeated argument about purported intent as against actual statutory language].)
Readers can decide for themselves by reading the battle between Randolph's majority and dissenting opinions. (See Randolph, supra, 466 Mich. at pp. 538, fn. 6, 548, fn. 19 (maj. opn.) with pp. 573-583 (dis. opn. of Markman, J.).)
In this we are mindful of another 1872 statute, section 1858 of the Code of Civil Procedure: "In the construction of a statute or instrument, the office of the Judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted, or to omit what has been inserted; and where there are several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all." (Italics added.) We decline to omit the word "accomplished" to conclude that a thief who uses force to accomplish his getaway with stolen property is not committing robbery.
There is, as a last resort, a third step of statutory analysis - the reasonableness of any given construction. (See Halbert's Lumber, Inc. v. Lucky Stores, Inc. (1992) 6 Cal.App.4th 1233, 1239 [citing cases].) On that point we offer one practical observation about the general challenge to the Estes/Gomez transactional approach to section 211. The usual rap on the transactional approach is that it escalates petty shoplifting and petty theft into full-blown felonies that result in yet more defendants going to state prison. But we think the Legislature is likely willing to allow prosecutors and courts to distinguish between those petty thieves who use violence to accomplish their thefts and those who don't. There is a real difference between the misdemeanant who, upon being caught red-handed by a store security guard, politely surrenders and one who pulls a knife (Estes) or fires a gun (Gomez). In Gordon's case, for example, he already had two strikes; it wasn't as if he had a history of non-violence.
Indeed, a Legislature might reasonably adopt the transactional approach out of concern to prevent small property crimes from escalating into violent confrontations. It is noteworthy in that regard that within two years of Randolph's repudiation of that transactional approach, the Michigan legislature went ahead and "codified the transactional theory." (People v. Anthony (2013) 494 Mich. 669, 686.)
Gordon's reliance on Williams, supra, 57 Cal.4th 776, is instructive, though it does not advance his cause here. Williams centered on what we must concede to be two words in section 211 that aren't exactly self-explanatory, "felonious taking." The Williams court faced the problem of whether the fraudulent use of a credit card payment card (in which the money goes immediately to the thief at the checkout point) was a felonious taking.
That was a matter where exposition of the common law could throw some light on the problem. The high court said that "in all likelihood" the drafters of section 211 wanted the phrase "felonious taking" to have the same meaning as it had under common law. (Williams, supra, 57 Cal.4th at p. 786.) The court noted that theft by false pretenses isn't larcenous - the key concept for felonious taking under the common law, because "theft by false pretenses involves the consensual transfer of possession as well as title of property." (Id. at p. 788.) And, ironically (for Gordon), in the process of explaining the difference between theft by false pretenses and felonious taking, the Williams opinion actually undercut Gordon's challenge to the transactional approach. It did so by emphasizing the asportational aspects of larceny and robbery. (See id. at p. 787 ["Asportation is what makes larceny a continuing offense. . . . Because larceny is a continuing offense, a defendant who uses force or fear in an attempt to escape with property taken by larceny has committed robbery."].) Those same asportational aspects formed a significant part of the Gomez's court's rationale (see Gomez, supra, 43 Cal.4th p. 255) and inform our ruling here.
Here is a nice summary passage: "Here too defendant did not commit larceny. Walmart, through its store employees, consented to transferring title to the gift cards to defendant. Defendant acquired ownership of the gift cards through his false representation, on which Walmart relied, that he was using valid payment cards to purchase the gift cards. Only after discovering the fraud did the store seek to reclaim possession. Because a 'felonious taking,' as required in California's robbery statute (§ 211), must be without the consent of the property owner, or "against his will" (ibid.), and Walmart consented to the sale of the gift cards, defendant did not commit a trespassory (nonconsensual) taking, and hence did not commit robbery." (Williams, supra, 57 Cal.4th at p. 788.) --------
Finally, we must reject Gordon's argument that his petty theft conviction must be reversed even if we affirm the attempted robbery conviction. Gordon's theory here is that petty theft is a simply lesser included of attempted robbery. It's not. Attempted robbery does not include the completion of the theft. (See People v. Lindberg (2008) 45 Cal.4th 1, 28 ["The crime of attempted robbery requires neither the commission of an element of robbery nor the completion of a theft or assault."].) Thus the petty theft in taking Franco's bicycle was not a lesser-included in the conviction for attempted robbery: one crime (petty theft) was completed, one crime (robbery) was not. As the Attorney General aptly points out, under these facts Gordon did not regain possession of Franco's bicycle during their scuffle, hence the jury could find the robbery was only attempted.
The judgment is therefore affirmed.
BEDSWORTH, J. I CONCUR: O'LEARY, P. J. ARONSON, J., Concurring.
I concur in the majority opinion, but write separately to express my disagreement with the majority's analysis of appellant Cesar Gordon's argument that he could not be convicted of petty theft because it is a lesser-included offense of robbery. While I agree petty theft is not a lesser-included offense of attempted robbery, the majority is simply mistaken in basing its decision on the presumption "one crime (petty theft) was completed, one crime (robbery) was not." (Maj. opn. ante, at p. 10.) In People v. Williams (2013) 57 Cal.4th 776, 787, our Supreme Court explained, "larceny requires 'asportation,' which is a carrying away of stolen property. [Citations.] This element of larceny, although satisfied by only the slightest movement, continues until the perpetrator reaches a place of temporary safety. [Citation.] Asportation is what makes larceny a continuing offense."
Here, Gordon had not reached a place of temporary safety and therefore Gordon's theft of the bike had not been completed. The issue here is not whether petty theft is a lesser-included offense of attempted robbery, but whether there was sufficient evidence to support the petty theft conviction. The facts show an attempted petty theft because Gordon was in the process of carrying off the bike, but the victim stopped him before he fled the scene. Because Gordon did not raise this issue, I concur in the majority's affirmance.
ARONSON, J.