Opinion
D082650
04-10-2024
THE PEOPLE, Plaintiff and Respondent, v. ERIC E. CARRILLO, Defendant and Appellant.
Reed Webb, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, A. Natasha Cortina and Alan L. Amann, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. SCD295366, Eugenia A. Eyherabide, Judge. Affirmed.
Reed Webb, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, A. Natasha Cortina and Alan L. Amann, Deputy Attorneys General, for Plaintiff and Respondent.
BUCHANAN, J.
A jury convicted Eric E. Carrillo of an Estes robbery for stealing shoes and sunglasses from a Nordstrom Rack store by means of force or fear. (Pen. Code, § 211; People v. Estes (1983) 147 Cal.App.3d 23, 28 (Estes).) At trial, the court instructed the jury with CALCRIM No. 1600, which identifies the required elements of robbery, defines "fear," and states that "[a]n act is accomplished by fear if the other person is actually afraid." On appeal, Carrillo argues that the trial court should have employed both an objective and subjective standard for the fear element of robbery. We conclude that Carrillo's argument is contrary to settled authority. Accordingly, we affirm the judgment.
Undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
One evening in June 2022, Carrillo and his girlfriend Savanna West entered a Nordstrom Rack together. They took some sunglasses with tags and sensors attached, then went to the shoe department, each put on a pair of new shoes, and walked away.
Alerted to the couple's suspicious behavior, store manager Jose M. went to the sales floor. Carrillo noticed Jose M. observing them and approached him aggressively inside the store. He told Jose M. that he knew Jose M. was following him and that he "better back off." Carrillo threw his hands up in the air close to Jose M.'s face, causing Jose M. to retreat because he "wasn't sure if [Carrillo] was going to lunge at [him]." Jose M. explained that he felt threatened "because it was a motion in [his] direction from someone acting aggressive towards [him]." He backed away from Carrillo "for fear of [his] safety." Carrillo and West then exited the store with the stolen sunglasses and shoes.
Jose M. and another Nordstrom employee followed the couple to recover the stolen merchandise. Jose M. approached them outside the store and identified himself as being with Nordstrom Asset Protection. Carrillo and West feigned ignorance of the theft, although they were both wearing stolen shoes and West was openly holding three pairs of sunglasses with sensors and tickets still on them.
Jose M. grabbed the sunglasses from West's hand. Jose M. asked Carrillo again to return to the store and discuss the unpaid merchandise. Carrillo then reached into his pocket, pulled out what appeared to Jose M. to be a switchblade knife, and told Jose M., "I don't know what you're talking about." According to Jose M., he was certain the object Carrillo pulled from his pocket was a knife, not a key fob as the defense suggested. The other employee who was with Jose M. told the prosecutor's office in a pretrial interview that he saw Carrillo pull out a switchblade knife, but testified at trial that he did not actually see Carrillo pull out a knife.
Jose M. disengaged and retreated into the store because he felt threatened and feared a potential stabbing, attack, or assault. Jose M. called 911 once safely back in the store and told the dispatcher that Carrillo had pulled a knife on him. Carrillo and West left towards the parking lot with the stolen shoes still on their feet. When the police arrived, Jose M. again reported that Carrillo had pulled a knife on him.
Carrillo was charged with robbery (§ 211) with personal use of a deadly and dangerous weapon (§ 12022, subd. (b)(1)) and prior conviction allegations, including serious felony and strike priors (§§ 667, subds. (a)-(i), 668, 1170.12, 1192.7, subd. (c)). Without objection from either party, the trial court instructed the jury with CALCRIM 1600, the standard jury instruction for robbery. A jury convicted Carrillo of robbery but found that Carrillo did not personally use a deadly and dangerous weapon. Carrillo admitted to having two strike priors and one serious felony prior. The court struck one of the strike priors and sentenced Carrillo to nine years in prison.
In relevant part, this instruction stated that one of the required elements of robbery is that the defendant "used force or fear to take the property or to prevent the person from resisting." The instruction defined "fear" to mean "fear of injury to the person himself or herself or immediate injury to someone present during the incident or to that person's property." Finally, it stated: "An act is accomplished by fear if the other person is actually afraid. The other person's actual fear may be inferred from the circumstances."
DISCUSSION
Carrillo argues on appeal that the fear element of robbery has both a subjective and objective component. He contends that not only must the victim be "actually afraid" (as CALCRIM No. 1600 stated), but the law also requires that a reasonable person in the victim's position would have been afraid. It is unclear from Carrillo's briefing whether he is arguing instructional error on this point or insufficient evidence of the supposed "objective" component of fear. Either way, however, Carrillo acknowledges there are "no decisions from other divisions of the Court of Appeal that expressly support his contentions" and concedes his argument is "against precedents."
We reject Carrillo's argument because it is contrary to settled authorities. 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." (§ 211.) This includes a so-called Estes robbery, which typically starts out as a shoplifting but turns into a robbery when the thief is confronted and uses force or fear to prevent someone from retaking the property and to facilitate his escape. (Estes, supra, 147 Cal.App.3d at p. 28.)
California courts have repeatedly recognized that "the fear element [of robbery] is subjective in nature." (People v. Montalvo (2019) 36 Cal.App.5th 597, 612; see also People v. Anderson (2007) 152 Cal.App.4th 919, 946 ["the fear necessary for robbery is subjective in nature"]; People v. Collins (2021) 65 Cal.App.5th 333, 341 (Collins) [prosecutor misstated law by telling jury to use objective standard for evaluating fear element of robbery]; People v. Cuevas (2001) 89 Cal.App.4th 689, 698-699 [robbery instruction correctly focused jury's inquiry on "the fear actually experienced by the victim" rather than an erroneous objective standard].)
In People v. Morehead (2011) 191 Cal.App.4th 765 (Morehead), a defendant who was convicted of robbery argued that the trial court had erred by giving CALCRIM No. 1600 because it did not "instruct the jury that the victims' fear must have been reasonable." (Id. at p. 771.) The court rejected this argument and found no error. It reasoned that the prosecution need only prove" 'that the victim was in fact afraid, and that such fear allowed the crime to be accomplished.'" (Id. at p. 772, internal quotation marks omitted.)
We agree with this unbroken line of authority and therefore reject Carrillo's argument. To the extent Carrillo is claiming instructional error, CALCRIM No. 1600 correctly defined the fear element of robbery solely in subjective terms. (Morehead, supra, 191 Cal.App.4th at pp. 771-772.) To the extent he is claiming insufficient evidence of the objective component of fear, there is no such requirement. Moreover, Carrillo does not seriously dispute that Jose M.'s testimony constitutes substantial evidence that he subjectively experienced actual fear. (See, e.g., Collins, supra, 65 Cal.App.5th at pp. 344345 [sufficient evidence of subjective fear based on store manager's testimony that he felt threatened when defendant pulled out a knife, causing him to step back and allow defendant to walk away with stolen merchandise].)
Carrillo nevertheless suggests that Jose M.'s fear was "inconsistent with what the jury found to be the facts" because the jury found not true the allegation that Carrillo personally used the knife. Even assuming any inconsistency, however, inconsistent verdicts are generally permitted to stand in criminal cases so long as the guilty verdict is supported by substantial evidence. (People v. Miranda (2011) 192 Cal.App.4th 398, 405 (Miranda).) This rule applies equally to an enhancement finding that is inconsistent with the verdict on a substantive offense. (Ibid.) "An inconsistency may show no more than jury lenity, compromise, or mistake, none of which undermines the validity of a verdict." (People v. Lewis (2001) 25 Cal.4th 610, 656 (Lewis).)
For this reason, an appellate court reviewing the sufficiency of evidence to support a guilty verdict only looks to the evidence presented at trial and does not consider the jury's inconsistent verdict on a separate count or enhancement. (Lewis, supra, 25 Cal.4th at p. 656; Miranda, supra, 192 Cal.App.4th at pp. 405-406.) Accordingly, Carrillo's robbery conviction may be sustained based on the evidence that he pulled a knife on Jose M. notwithstanding the jury's not true finding on the enhancement allegation for personal use of a deadly and dangerous weapon. (See, e.g., People v. Price (2017) 8 Cal.App.5th 409, 451-452 [disregarding not true findings on personal use allegations in assessing whether there was sufficient evidence to support a special circumstance finding on theory that defendant was the actual shooter]; People v. Brugman (2021) 62 Cal.App.5th 608, 631-633 [rejecting defendant's argument that inconsistent jury verdicts had any bearing on sufficiency of evidence to support conviction].)
In any event, the jury's findings are not necessarily inconsistent. Even if the jury had a reasonable doubt whether Carrillo pulled a knife, it may have inferred that he took something else from his pocket in a deliberate effort to make Jose M. fear he was pulling a weapon. Alternatively, the jury could have found that Carrillo caused Jose M. to experience fear inside the store when Carrillo approached him aggressively, demanded that he back off, and threw his hands in the air near Jose M.'s face. According to Jose M., this conduct caused him to retreat "for fear of [his] safety" because he "wasn't sure if [Carrillo] was going to lunge at him or . . . what he was going to do" and he felt threatened "because it was a motion in [his] direction from someone acting aggressive towards [him]." Even apart from any knife use, this was substantial evidence to support the jury's finding that Carrillo took the property by means of fear. (See Morehead, supra, 191 Cal.App.4th at p. 775 [requisite fear need not be a result of express threat or use of weapon and may be inferred from circumstances even absent testimony by victim that he or she was afraid].)
DISPOSITION
The judgment is affirmed.
WE CONCUR: McCONNELL, P.J., RUBIN, J.