Opinion
G055161
03-06-2018
THE PEOPLE, Plaintiff and Respondent, v. JERALD JERROD COUSIAN, Defendant and Appellant.
David R. Greifinger, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 17WF0358) OPINION Appeal from a judgment of the Superior Court of Orange County, Jeff Ferguson, Judge. Affirmed. David R. Greifinger, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
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Defendant Jerald Jerrod Cousian was charged by information with one count of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)), and that he had suffered two prison priors within the meaning of section 667.5, subdivision (b).
All further statutory references are to the Penal Code. --------
A jury acquitted defendant of second degree robbery, but found him guilty of the lesser included offense of attempted second degree robbery. Defendant admitted the two prison priors.
The court imposed a three-year state prison term by selecting the midterm of two years on the attempted robbery count, adding one year for one of the prison priors, and striking the second prison prior for sentencing purpose only.
Defendant timely filed a notice of appeal and we appointed counsel to represent him. Counsel did not argue against defendant, but advised the court he was unable to find an issue to argue on defendant's behalf. Defendant was given the opportunity to file written argument on his own behalf, but he has not done so.
We have examined the entire record but have not found an arguable issue on appeal. (People v. Wende (1979) 25 Cal.3d 436.)
FACTS
A customer who was checking out his purchases at a grocery store in Costa Mesa, California, handed a note to the cashier stating that another customer (defendant) in an adjacent checkout line was hiding a cheesecake under his jacket. The cashier paged the owner of the store, Marcel Dionio, to come to the checkstand. Defendant was waiting in the adjacent checkout line with a juice in his hand. Dionio asked defendant to step away from the line and asked him whether he had something else. Defendant said he did not know what Dionio was talking about. Dionio kept saying over and over again that "I need the cheesecake," and defendant continued denying he had it. Defendant kept "pushing against" Dionio and Dionio "kept holding [his] ground." A security officer for the shopping mall was posted outside of the grocery store and heard customers coming out and telling him the "manager or somebody was having a problem with a possible shoplifter." The security officer went to investigate and saw the defendant trying to leave the store and the manager trying to keep him in. "They looked like they were struggling." Defendant was "trying to push his way out of the store."
Perhaps the best way to describe what happened next is the trial testimony of the security officer. "[T]hen as they're pushing each other, I walked up and I told the guy, 'Just give up what you have and he will let you go,' and the guy was going, 'No, just get out of my way.' He kept pushing and pushing and then finally, I [saw] a juice of some sort fall out, I think it was a carrot juice, I'm not sure, out of his — underneath his jacket and then he kept pushing and then he just goes, 'Would you guys get out of my way now,' you know, 'you need to get out of my way,' and the other guy is, 'No, you're not going anywhere,' and then with his right hand, he pulled something out of the waistband of his pants from the front end."
"At first, I thought it was, like, a butterfly knife because it was, like, a folding, like, knife-type of thing. Then I started to tell him, 'Hey, don't do that. Put it back. Put it in your pocket. You don't want to go that way. Give up your stuff and let it go,' and he wouldn't. He started waving it around so I kept my eye on his right hand because I didn't want — I didn't know if it was, like, a push-type of knife that could open with one push and — it looked like a bunch of tools after I looked at it for a second, like utility-type tools, but I didn't know for sure what it was and I was thinking he was going to try to open the knife or whatever so he kept waving his right hand going, 'You need to get out of my way now.'"
The security officer called for backup on his radio; another security officer arrived and "took him down around the shoulders and that's when I [saw] the [cheese]cake come falling out of his jacket onto the ground and at that time, I was struggling with his right arm making sure that the knife — he didn't get to it where he could open it."
Dionio added that during the struggle, defendant told him he had "a knife in his pants and that he [was] going to stab me with it." The object in defendant's hand, believed to be a knife by Dionio and the officers, was later identified as a "Gerber muti-tool," "a utility-type of thing with multiple tools on it." The multi-tool had two blades which could fold out, but which defendant had not yet been able to unfold before he was taken to the ground.
DISCUSSION
To assist the court in its independent review (Anders v. State of California (1967) 386 U.S. 738), counsel suggested we consider whether defendant's conviction is supported by sufficient evidence. Clearly it is.
"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.) "Robbery is larceny with the aggravating circumstances that 'the property is taken from the person or presence of another . . .' and 'is accomplished by the use of force or by putting the victim in fear of injury.'" (People v. Anderson (2011) 51 Cal.4th 989, 994.) "The crime of robbery is a continuing offense that begins from the time of the original taking until the robber reaches a place of relative safety. It is sufficient to support the conviction that [defendant] used force to prevent the [store owner] from retaking the property and to facilitate his escape." (People v. Estes (1983) 147 Cal.App.3d 23, 28.) "It thus is robbery when the property was peacefully acquired, but force or fear was used to carry it away." (Anderson, at p. 994.)
The jury acquitted defendant of robbery, but convicted him of attempted robbery, a lesser included offense. (People v. Calpito (1970) 9 Cal.App.3d 212, 220.) An attempt is simply a direct but ineffectual act done toward the commission of the crime, done with the specific intent to commit the crime. (§ 21a.) Here, defendant's effort to escape with the cheesecake was foiled, but the evidence of an attempt was clear. Defendant concealed the cheesecake under his jacket, and when asked to give it up, he denied having taken anything, tried to leave the store by pushing Dionio out of his way, threatened to stab him, and then tried to deploy the multi-tool as a weapon. We must view the evidence in the light most favorable to the judgment, and presume in support of the judgment every fact that the trier of fact could reasonably deduce from the record. (People v. Johnson (1980) 26 Cal.3d 557, 576.) The jury's conclusion is amply supported by the evidence.
After undertaking an independent review of the entire record, we are unable to find any error reasonably arguable on appeal.
DISPOSITION
The judgment is affirmed.
IKOLA, J. WE CONCUR: MOORE, ACTING P. J. FYBEL, J.