Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Orange CountySuper. Ct. No. 05WF3774, Robert R. Fitzgerald, Judge. (Retired judge of the Orange County Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed as modified.
Gerald Peters, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., Marvin E. Mizell and Stephanie H. Chow, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
FYBEL, J.
Introduction
Defendant Brian Dale Merritt was convicted of robbery and burglary, having fraudulently obtained cash from a department store. Defendant contends the evidence was insufficient to support his conviction for robbery because he did not leave the store with the cash before being stopped by the store’s security personnel. Defendant temporarily prevented the security personnel from gaining possession of the cash through the use of force or fear; therefore, the robbery conviction was supported by substantial evidence. (People v. Pham (1993) 15 Cal.App.4th 61, 66-67 (Pham).) Defendant’s argument that the trial court erred by failing to instruct the jury on the lesser included offense of attempted robbery fails for the same reason.
Defendant also challenges his sentence, arguing the trial court violated the Sixth Amendment to the United States Constitution and Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] by imposing the upper term sentence based on aggravating factors that were neither admitted by defendant nor found by the jury beyond a reasonable doubt. One of the aggravating factors relied on by the trial court was the fact defendant’s prior convictions were numerous and increasing in seriousness. This is a factor that may properly be found by the court rather than the jury. (People v. Black (2007)41 Cal.4th 799, 818, 819-820.) That other impermissible aggravating factors were considered by the court does not invalidate the upper term sentence. (Id. at pp. 816, 820.)
Finally, defendant argues, and the Attorney General concedes, that the trial court erred in sentencing defendant to three years for a probation violation. The correct sentence for the probation violation was eight months, and we will order the judgment modified accordingly. As modified, we affirm.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
On December 27, 2005, defendant entered a Target department store in Garden Grove. Defendant walked to the DVD section, picked a DVD set off the rack, and then walked to the customer service desk. Defendant pulled a receipt from his pocket and handed it and the DVD set to the cashier at the desk, who gave defendant $32.31 in cash as a refund.
A Target security guard, Jeffrey Writer, watched defendant from the security office on the video display the entire time defendant was in the store. After defendant received the cash refund from the cashier, he began walking out of the store. Writer, followed by another security guard, stepped out of the office, between defendant and the store exit. As Writer said, “I’m with Target,” defendant turned and ran.
Writer grabbed defendant by the shoulders, causing both Writer and defendant to fall to the ground. Writer and two other security guards held defendant down as he kicked, elbowed, and fought to get up. All three guards repeatedly told defendant to stop resisting; Writer told him, “we’re Target security. You’re under arrest for refund fraud. Stop resisting.”
After he was arrested and read his rights under Miranda v. Arizona (1966) 384 U.S. 436, defendant admitted he entered the store with a receipt, found the matching merchandise, and tried to get a cash refund.
Defendant was charged with second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)) (count 1); second degree commercial burglary (id., §§ 459, 460, subd. (b)) (count 2); and theft with a prior conviction (id., §§ 666, 488, 484, subd. (a)) (count 3). The jury found defendant guilty of counts 1 and 2, but did not reach a verdict on count 3. Count 3 was dismissed on the court’s motion. On June 23, 2006, the court sentenced defendant to the upper term of five years on count 1 and stayed sentencing on count 2, pursuant to Penal Code section 654. The court imposed additional, consecutive sentences – one of three years and another of eight months – for violating probation in two other cases.
DISCUSSION
I.
ROBBERY
Defendant argues there was insufficient evidence he committed robbery; he contends that, at most, he could have been convicted of theft by larceny or attempted robbery. Defendant also argues the trial court erred by failing to sua sponte instruct the jury on the lesser included offense of attempted robbery. Pham, supra, 15 Cal.App.4th 61 is dispositive of both of defendant’s arguments.
A.
Sufficiency of the Evidence
“‘In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses 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.]” (People v. Steele (2002) 27 Cal.4th 1230, 1249.) We presume in support of the judgment the existence of every fact that could reasonably be deduced from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) We may reverse for lack of substantial evidence only if “‘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 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.” (Pen. Code, § 211.) Because he did not escape from the store, defendant argues he did not “accomplish” the taking of the property, and thus did not commit robbery.
In Pham, supra, 15 Cal.App.4th at page 64, the owner of a car saw the defendant removing items from it. As the owner and his friend approached the car, the defendant attempted to flee. (Ibid.) The two men gave chase and quickly caught the defendant, who dropped the items he had removed from the car and began fighting. (Ibid.) The men were able to subdue the defendant until the police arrived and arrested him. (Ibid.) The defendant was convicted of, among other things, robbery. (Id. at p. 63.)
On appeal, the defendant argued there was insufficient evidence to prove he had taken property by force or fear. (Pham, supra, 15 Cal.App.4th at pp. 64-65.) The appellate court determined that, “[c]ontrary to defendant’s contention, robbery does not require that the loot be carried away after the use of force or fear.” (Id. at p. 65.) Nor does it require that the defendant “escape with the loot” if “the defendant successfully prevented the victim . . . from regaining the property, albeit temporarily, by force or fear.” (Id. at p. 66.) The court concluded, “there was sufficient evidence for the jury to conclude that defendant forcibly asported or carried away the victims’ property when he physically resisted their attempts to regain it.” (Id. at p. 67.)
In this case, defendant gained possession of the property before he used force, as in Pham. Also as in Pham, defendant’s use of force to escape with the property was unsuccessful. The only factual difference between defendant’s crime and the crime in Pham is that here defendant failed to make it out of the store; however, “[a] robbery has been committed if the stolen item ‘is so within [the victim’s] reach, inspection, observation, or control, that he could, if not overcome by violence or prevented by fear, retain his possession of it. . . .’ [Citation.]” (Pham, supra, 15 Cal.App.4th at p. 67.) That is the case here. The property was kept from the security guard – however briefly – by force. Had defendant not been wrestled to the ground, he would have left the store with the money he had taken. Defendant argues he must have successfully resisted the attempt to subdue him in order to have committed robbery and because he did not escape from the store, he did not successfully resist. As Pham teaches, however, defendant need not have escaped the guards and left the store in order to have committed robbery.
B.
Instruction on Attempted Robbery
Defendant also argues the trial court erred by failing to instruct the jury sua sponte on the lesser included offense of attempted robbery. “‘We apply the independent or de novo standard of review to the failure by the trial court to instruct on an assertedly lesser included offense. [Citation.] A trial court must instruct the jury sua sponte on a lesser included offense only if there is substantial evidence, “‘that is, evidence that a reasonable jury could find persuasive’” [citation], which, if accepted, “‘would absolve [the] defendant from guilt of the greater offense’ [citation] but not the lesser” [citation].’ [Citation.] ‘[A] lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser. [Citations.]’ [Citation.]” (People v. Licas (2007) 41 Cal.4th 362, 366.)
As the court explained in Pham, supra, 15 Cal.App.4th at page 68, “in the situation where property is taken without the use of force or the threat thereof and thereafter such force or threat is employed to prevent the owner from recovering the property or to facilitate an escape, the offense committed simply could not be an attempted robbery.” The effectiveness of the use of force or fear is irrelevant: “It is enough that defendant forcibly prevented the victims from recovering their property, even for a short time.” (Ibid.) Here, defendant obtained possession of the money by falsely returning the DVD set, and used force to try to keep the money. Defendant argues his failed resistance against the security guards means he merely attempted a robbery. This argument fails because, as explained ante, the commission of a robbery does not require escape. (Ibid.)
Defendant correctly cites the general rule: “When there is substantial evidence that an element of the charged offense is missing, but that the accused is guilty of a lesser included offense, the court must instruct upon the lesser included offense, and must allow the jury to return the lesser conviction, even if not requested to do so.” (People v. Webster (1991) 54 Cal.3d 411, 443; see also People v. Licas, supra, 41 Cal.4th at p. 366.) In this case, however, there is no substantial evidence an element of the robbery conviction is missing. Defendant was convicted of robbery because the evidence showed he had returned an item for cash which had not been legitimately purchased, and used force to keep the cash when challenged by the store’s security guards. This evidence supports defendant’s conviction for robbery; if it did not, defendant would have been innocent of the crime charged, not guilty of attempted robbery. The trial court did not err by not instructing the jury on a charge of attempted robbery. (Pham, supra, 15 Cal.App.4th at p. 67.)
II.
SENTENCING ISSUES
A.
Defendant’s upper term sentence is constitutional.
Defendant argues the trial court violated his constitutional rights by imposing the five-year upper term sentence on count 1 based on facts neither admitted by defendant nor found by the jury beyond a reasonable doubt. The trial court imposed the upper term based on the following aggravating factors: (1) defendant had numerous prior convictions of increasing seriousness; (2) defendant was on probation when he committed the current crime; (3) defendant’s prior performance on probation was unsatisfactory; and (4) the current crime involved planning. (Cal. Rules of Court, rule 4.421(a)(8), (b)(2), (4) & (5).)
In Cunningham v. California, supra, 549 U.S. ___, ___ [127 S.Ct. 856, 860], the United States Supreme Court held California’s Determinate Sentencing Law violates the rights of criminal defendants under the Sixth and Fourteenth Amendments to the United States Constitution to the extent it “assigns to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated ‘upper term’ sentence.” The Court further explained, “the Federal Constitution’s jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant.” (Ibid.; see United States v. Booker (2005) 543 U.S. 220; Blakely v. Washington (2004) 542 U.S. 296; Apprendi v. New Jersey (2000) 530 U.S. 466; Almendarez-Torres v. United States (1998) 523 U.S. 224.)
In People v. Black, supra, 41 Cal.4th at pages 816, 820, the California Supreme Court held that if any one aggravating factor is established by means satisfying the requirements of the Sixth Amendment, the trial court may impose the upper term sentence. The Court also held that the trial court may make a finding as to the numerosity and increasing seriousness of a defendant’s prior convictions without violating the United States Constitution or Cunningham v. California. (People v. Black, supra, 41 Cal.4th at pp. 819-820.) Finally, the Court held that even if a trial court relies on impermissible aggravating factors in imposing an upper term sentence, as long as at least one permissible aggravating factor was considered, the sentence withstands constitutional scrutiny. (Id. at pp. 816, 820.)
Here, one of the aggravating factors on which the trial court relied in imposing the upper term sentence was the numerosity and increasing seriousness of defendant’s prior convictions. This factor did not require a finding by the jury beyond a reasonable doubt. Therefore, defendant’s upper term sentence is valid and constitutional.
B.
The sentence imposed for defendant’s probation violation must be reduced.
Finally, defendant argues the trial court erred by imposing a consecutive three-year sentence for his probation violation on his prior offense of petty theft with a prior theft conviction. (Defendant does not challenge the eight-month sentence imposed in connection with a separate probation violation.) The Attorney General concedes the trial court should have imposed a consecutive term of one-third the two-year midterm sentence, or eight months.
The trial court was permitted to impose consecutive sentences under the facts of this case. “When any person is convicted of two or more crimes, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same judge or by different judges, the second or other subsequent judgment upon which sentence is ordered to be executed shall direct whether the terms of imprisonment or any of them to which he or she is sentenced shall run concurrently or consecutively.” (Pen. Code, § 669.) When consecutive sentences are imposed under Penal Code section 669, however, the trial court may only impose one-third of the middle term for each of the subordinate offenses. “[W]hen any person is convicted of two or more felonies, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same or by a different court, and a consecutive term of imprisonment is imposed under Sections 669 and 1170, the aggregate term of imprisonment for all these convictions shall be the sum of the principal term, the subordinate term, and any additional term imposed for applicable enhancements for prior convictions, prior prison terms, and Section 12022.1. The principal term shall consist of the greatest term of imprisonment imposed by the court for any of the crimes, including any term imposed for applicable specific enhancements. The subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed, and shall include one-third of the term imposed for any specific enhancements applicable to those subordinate offenses.” (Pen. Code, § 1170.1, subd. (a).)
Defendant’s sentence should have consisted of a principal term of five years for the robbery conviction, plus two consecutive eight-month terms, one for each of the two probation violations.
DISPOSITION
The judgment is modified to impose a consecutive sentence of eight months rather than three years for defendant’s probation violation on the prior conviction for petty theft with a prior theft conviction. As so modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment, and to send a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
WE CONCUR: BEDSWORTH, ACTING P. J., MOORE, J.