Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. SCN188425 Timothy M. Casserly, Judge. Affirmed.
McINTYRE, J.
A jury convicted Richard Alan Troutman of robbery and assault with a deadly weapon. He appeals, contending (1) there was insufficient evidence that he took property from the victim's immediate presence as required to support a conviction for robbery, and (2) the court violated his Sixth Amendment right to a jury trial by imposing an upper term based on facts not found by the jury or admitted by him. We conclude the evidence was sufficient to show a taking from the victim's immediate presence, and the court's imposition of an upper term was not a denial of Troutman's constitutional right to a jury trial. Accordingly, we affirm the judgment.
FACTS
In December 2004, Troutman and an unidentified woman entered the Smart Buy electronics store in Escondido. As the woman spoke to the manager, Amer Shair, about cellular telephone plans, customer Shaun Sheffield noticed Troutman grab a DVD player and take it out of the store without paying for it. Soon after, Troutman's female companion left the store. Sheffield told Shair what he had witnessed, and Shair ran outside in pursuit of Troutman.
Shair caught up with Troutman in the parking lot and accused him of stealing the DVD player. Troutman denied the accusation, but Shair noticed the DVD player protruding from his companion's backpack. When Shair attempted to take the backpack from her, she struck him with it. She then fled on foot while Troutman confronted Shair and attempted to hit him. After dodging the attack, Shair hit Troutman several times in the face. Troutman then pulled a knife from his pocket and tried to stab Shair. Shair disarmed Troutman, and put the knife in his pocket. Troutman obtained another knife from a friend on a bicycle who had been circling the two men, but returned it when Shair threatened to disarm him again. When Troutman attempted to flee, Shair tackled and subdued him until the police arrived.
In May 2005, Troutman was charged with robbery and assault with a deadly weapon. A jury found Troutman guilty on both counts. Troutman admitted before trial that he had sustained two prior prison terms, two prior serious felony convictions, and two prior strike convictions. The court dismissed one prior strike conviction, but sentenced him to the upper term of five years for the robbery, doubled for the remaining prior strike conviction, with twelve years added for two prior prison terms and two prior serious felony convictions, for a total of twenty-two years. The court stayed the sentence on the felony assault count.
DISCUSSION
1. The Robbery Conviction
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.) Something is in the "immediate presence" of a victim when he or she could have retained possession of the property if not prevented by violence or fear. (People v. Hayes (1990) 52 Cal.3d 577, 626-627; People v. Douglas (1995) 36 Cal.App.4th 1681, 1690-1691.) Troutman argues that the taking of the DVD player in this case does not satisfy the immediate presence requirement because no force or fear was used to steal the item. However, this argument is unavailing.
The crime of robbery is an offense that begins when the property is stolen, and continues until the thief reaches a place of relative safety. (People v. Estes (1983) 147 Cal.App.3d 23, 28 (Estes).) Although the law originally required the immediate presence of the victim at the time the thief took possession of property, modern courts have held that the immediate presence requirement can be satisfied if force or fear is used to prevent a victim from regaining property after the theft is in progress but before it is complete. (Ibid.; Miller v. Superior Court (2004) 115 Cal.App.4th 216, 223-224 (Miller).)
In determining the sufficiency of the evidence, we must examine the record in the light most favorable to the judgment. This examination must reveal substantial evidence that would allow a reasonable trier of fact to find the defendant guilty beyond a reasonable doubt. (People v. Bolin (1998) 18 Cal.4th 297, 331.) In the case at hand, evidence showed Troutman stole a DVD player and was fleeing from the scene when Shair apprehended him and attempted to take it back. Troutman's female accomplice hit Shair with her backpack in order to prevent this from happening, and Troutman attacked Shair while she fled with the DVD player. This evidence supports the finding that Troutman used force and violence to retain the property he had stolen. Under the standard established in Estes and Miller, this is sufficient to support a conviction for robbery.
Troutman concedes that this court's holding in Miller contradicts his argument but contends that Miller was incorrectly decided and urges us to disregard it. However, the California Supreme Court denied the defendant's petition for review in Miller and we remain convinced of its correctness. Although the high court has more recently granted review of the immediate presence issue in another case (People v. Gomez (2005) 134 Cal.App.4th 1241, review granted Mar. 22, 2006, No. S140612), we will continue to follow Miller.
2. The Imposition of the Upper Term
In sentencing a defendant, a trial court cannot impose a sentence in excess of the statutory maximum on the basis of facts other than those found true by a jury or admitted by the defendant, except as to the defendant's prior convictions. Exceeding this sentence is a violation of the defendant's Sixth Amendment right to a jury trial. (Cunningham v. California (2007) 127 S.Ct. 856, 860 (Cunningham); Blakely v. Washington (2004) 542 U.S. 296, 303-305 (Blakely).)
Troutman argues that the court exceeded the statutory maximum by imposing the upper term in his case. The Attorney General contends that this issue is waived on appeal since Troutman did not raise it at trial. This is incorrect, because Troutman reasonably relied on the law in place at the time of his sentencing, which allowed the imposition of an upper term based on facts found true by the court. (People v. Black (2007) __ Cal.4th ___, ___; 161 P.3d 1130, ____; 62 Cal.Rptr.3d 569, 576-578.) Raising the issue at trial before the holding in Cunningham would have been futile, and thus there was no waiver.
Troutman argues that the statutory maximum in his case was the presumptive middle term of three years. However, this argument ignores the Three Strikes law, which creates a higher statutory maximum for repeat offenders. Under this system, one prior strike automatically doubles a defendant's minimum sentence, and two prior strikes automatically require a minimum sentence of twenty-five years to life plus any other applicable enhancements or punishments. (Pen. Code, § 1170.12, subd. (c).)
Here, Troutman admitted two prior strikes, which would have subjected him to a minimum sentence of twenty-five years to life, plus twelve years for the enhancements for his two prior prison terms and two prior serious felony convictions. The findings of the jury and Troutman's admissions would have therefore allowed the court to sentence Troutman to prison for thirty-seven years to life. (See People v. Black, supra, __ Cal.4th at p. ___; 62 Cal.Rptr.3d at pp. 578-579.) That the court used its discretion to dismiss one of the strikes does not reduce the statutory maximum sentence, and thus its decision to impose the upper term for the robbery count and sentence Troutman to twenty-two years in prison was well within the statutory maximum, and in keeping with the rationale behind Cunningham and Blakely.
Moreover, as the California Supreme Court has made clear, a trial court may base its decision to impose an upper term sentence on an aggravating factor that is not found by a jury or admitted by the defendant, but that is instead established by its review and interpretation of documents that are part of the record of the prior criminal proceeding. (People v. Black, supra, __ Cal.4th at p.___; 62 Cal.Rptr.3d at p. 584; People v. McGee (2006) 38 Cal.4th 682, 685.) Here, one of the aggravating circumstances relied on by the court in deciding to impose the upper term was Troutman's use of violence in the prior offenses of which he was convicted, to wit, assault with a deadly weapon and aggravated assault. Because the involvement of violence in the commission of the offenses is discernable from the records of Troutman's convictions of the prior offenses and a review of the pertinent Penal Code provisions, the court could properly rely on that factor as a basis for its imposition of the upper term.
For these reasons the imposition of the upper term was not a violation of Troutman's Sixth Amendment right to a jury trial.
DISPOSITION
The judgment is affirmed.
WE CONCUR: HALLER, Acting P. J., O'ROURKE, J.