Opinion
NOT TO BE PUBLISHED
Appeals from a judgment of the Superior Court of Riverside County No. INF059373, John V. Stroud, Judge. Affirmed.
Douglas G. Benedon, under appointment by the Court of Appeal, for Defendant and Appellant Leanne M. Fahrion.
William D. Farber, under appointment by the Court of Appeal, for Defendant and Appellant Daniel R. Mendez.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Chandra E. Appell and Angela M. Borzachillo, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
BEDSWORTH, ACTING P. J.
Leanne Michelle Fahrion and Daniel Rudolfo Mendez were each convicted of attempted robbery, and Mendez was additionally convicted of related gun crimes. In this appeal, both of them challenge the sufficiency of the evidence to support the attempted robbery conviction. Fahrion and Mendez make essentially the same argument; i.e., that the sole evidence supporting the attempted robbery charge was Fahrion’s act of grabbing the victim’s wallet off of the console of the car the two of them were occupying, and then immediately putting it back when he demanded she do so. Both appeals assert this rather docile effort does not include the element of “force or fear” necessary to constitute a robbery.
We are unpersuaded. If Fahrion’s wallet grab were the only evidence supporting the charge of attempted robbery, Fahrion and Mendez might have a point. But it is not. Although both appellants claim Fahrion’s only reason for being in the victim’s car was to engage in an act of prostitution, and suggest the wallet grab was a spontaneous and isolated act, the jury was not required to believe that. The jury could have reasonably inferred – as the prosecutor explicitly argued – that the act of prostitution promised to the victim was actually a ruse designed to get him alone, so that Fahrion and Mendez could rob him using the gun in Mendez’s possession. It was only because the victim ultimately drove off with Fahrion still in his car when Mendez confronted him – and just after Fahrion had grabbed his wallet, that things changed. By driving off with Fahrion still in his car, the victim materially changed the balance of power, which the jury could have inferred was sufficient to persuade her to accede to his demand she put down the wallet and thus abandon the planned robbery. Viewed in that light, the evidence was sufficient to sustain the attempted robbery conviction, and we affirm it.
In accordance with the applicable standard of review, when the appellant raises a substantial evidence challenge we view the evidence in the light most favorable to the judgment. (People v. Prince (2007) 40 Cal.4th 1179, 1251.)
On the evening of July 27, 2007, Fahrion and Mendez went together to a casino in Coachella. Soon after, the victim arrived at the same casino. After gambling for awhile, the victim noticed Fahrion sitting alone at a slot machine and approached her. Following some initial conversation, the victim agreed to pay Fahrion $50 for an hour of sex at some other location, after which they would return to the casino. As the two left the casino, Fahrion signaled Mendez to follow them, which he did a few moments later.
Although Fahrion first led the victim to her car, he had second thoughts about traveling in it, and insisted they use his own car. As he explained it, “I was thinking that it would be very easy if I were to go away in someone else’s car that person could throw you out if they wanted to wherever they wanted.” Fahrion consented to go in the victim’s car, but only if he paid her first. The victim essentially agreed, giving her half of the agreed payment up front, and placing the remaining $25 on his dashboard. He then placed his wallet on the console between the front seats.
When the victim drove away from the casino, he intended to go to the freeway, heading “somewhere outside of town, because I didn’t have anything to get a hotel with.” He did not notice anyone following. Fahrion asked him to turn left onto a particular street, but he did not do it, because he was unfamiliar with the area. A few moments later, the victim first noticed what appeared to be a car following. He asked Fahrion if she knew anything about someone following them, but she denied it.
The victim then made a left turn, and noticed the car he suspected of following him did the same thing. The victim drove a little farther, and then pulled over to the side of the road, again asking Fahrion if she knew anything about a car following them. She again denied it. The suspicious car then pulled over as well, stopping behind them. The victim then made a U-turn, and began traveling in the opposite direction. Once he was sure he knew where he was, he pulled over and stopped a second time. He testified he did so because he “felt a need to know about what was going on.”
At the second stop, the suspicious car pulled up next to the driver’s side of the victim’s car. Mendez was driving it. Mendez demanded the victim tell him where he was “taking his [Mendez’s] woman.” The victim looked at Fahrion in surprise, and she reacted by grabbing the money on the dashboard and then grabbing his wallet off the console as well.
The victim explained that his instinct at that point was just to “accelerate,” and he did. As he started to drive off, with Fahrion still in the car, he told her to put the wallet down. He specifically testified: “[t]he vehicle [was] moving when she put the wallet down, and I told her to put the wallet down.” In response to the victim’s abrupt departure with Fahrion, Mendez began shooting at the car. Fahrion told the victim he should stop or Mendez was going to kill him. He did not.
Mendez chased the victim and Fahrion in his own car, still shooting. According to the victim, Mendez fired between three and five shots, one of which broke the rear window of his car, and another of which broke his left tail light. Fahrion continued to demand the victim stop his car but he did not, choosing instead to drive to a police station while trying to contact the police by calling “911.” When he told Fahrion he was driving to the police station, she responded “please, not to the police.” Ultimately, the victim was able to reach the police, and drove to a station where an officer met them outside.
Fahrion and Mendez were each charged with one count of attempted robbery (Pen. Code, §§ 664 & 21) and one count of attempted murder (§§ 664 and 187(a)), although the court later granted Fahrion’s motion to dismisss the attempted murder charge against her. Mendez was additionally charged with one count each of assault of a deadly weapon (§ 245, subd. (a)(2)) and discharging a firearm at an occupied motor vehicle (§ 246.)
All further statutory references are to the Penal Code.
At trial, the prosecutor argued that at all relevant times, Fahrion and Mendez’s goal was to rob the victim, with the offer of prostitution a ruse designed to get the victim to a secluded location. According to the prosecutor’s theory, the original plan was for Mendez to follow Fahrion and the victim to Fahrion’s car, and to commit the robbery there – perhaps without even leaving the casino parking lot. However, that plan was thwarted when the victim insisted on traveling in his own car, and so the prosecutor explained “they have to revert to plan B. Plan B, as Miss Fahrion indicates, is to have [Mendez] follow behind in the gold car, and then to lure, again [the victim] to a remote location where they could jack him for his wallet.” The prosecutor then explained that “plan B” was thwarted as well, because the victim refused to turn where directed by Fahrion, giving rise to “plan C”: “Plan C comes into effect. [Mendez] pulls up, asks, ‘where are you going with my woman?’ Intimidates his victim. And in the midst of this fear, of this intimidation, Miss Fahrion, someone who has been around the block, someone[] who is calculating, seizes upon the opportunity and grabs for the wallet. But plan C fails. Again, due to [the victim.] He takes off. [¶] And plan D is now in play. Plan D is plan desperation. [Mendez] pulls out his gun, knowing that the third attempt just failed, and he starts firing.”
The jury acquitted Mendez of the attempted murder charge, but both Fahrion and Mendez were convicted of attempted robbery, and Mendez was additionally convicted of assault with a deadly weapon and of discharging a firearm at an occupied motor vehicle. The court also found Mendez had suffered one prior serious or violent felony conviction within the meaning of the “Three Strikes” law, and denied Mendez’ motion to dismiss that prior conviction.
The court sentenced Fahrion to a term of one year and four months in state prison on the attempted robbery count, and ordered her to pay restitution in the amount of $200, pursuant to section 1202.4, subdivision (b). The court sentenced Mendez to seven years on the count of shooting at an occupied vehicle, doubled to 14 years pursuant to section 667, subdivision (e)(1); to a consecutive term of one year on the count of attempted robbery; and to a consecutive term of one year for the count of assault with a deadly weapon. The court then stayed both one-year terms pursuant to section 654. The court also sentenced Mendez to pay a restitution fine of $900, pursuant to section 1202.4, subdivision (b).
DISCUSSION
Fahrion and Mendez both contend that their convictions for attempted robbery are unsupported by sufficient evidence. In making their argument, appellants face a very heavy burden. “Before a reviewing court can reverse the judgment for insufficiency of the evidence, ‘it must clearly appear that upon no hypothesis whatever is there sufficient substantial evidence to support it.’ (People v. Redmond (1969) 71 Cal.2d 745, 755.)” (People v. Gutierrez (2009)174 Cal.App.4th 515, 519, italics added.) “We presume ‘“in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” [Citation.] This standard applies whether direct or circumstantial evidence is involved.’ (People v. Catlin (2001) 26 Cal.4th 81, 139.)” (People v. Prince, supra, 40 Cal.4th at p. 1251.)
In this case, both Fahrion and Mendez contend the only evidence of an attempted robbery in this case is her act of grabbing the victim’s wallet from the console in his car (and then returning it when asked), which was insufficient as a matter of law to constitute the element of “force or fear” – meaning violence or intimidation – necessary to elevate an ordinary theft crime into the crime of robbery. (See § 211; People v. Davis (2005) 36 Cal.4th 510, 562; People v. Ramkeesoon (1985) 39 Cal.3d 346, 351.)
As Fahrion asserts, “the only evidence to support appellant’s conviction for attempted robbery was her picking up [the victim’s] wallet and immediately putting it down when he asked her to do so.”
Mendez contends the alleged wallet grab is insufficient to suggest any intent to steal, because “[n]either... Fahrion nor appellant ever demanded any money or property from [the victim.] When appellant directly confronted him when pursuing [the victim], he only asked [the victim] where he was taking Fahrion. During that confrontation, appellant did not display or brandish a weapon or threaten Hernandez in any way. Appellant’s words and conduct were thus at odds with the prosecution’s theory of the case that Fahrion and appellant together conspired and intended to rob....” Mendez does not, however, explain why the jury might have been compelled to assume Fahrion had some other reason for grabbing a wallet which did not belong to her. Mendez separately contends that to the extent the evidence suggests he was conspiring with Fahrion at all, it supports “at most that Fahrion, with appellant’s assistance in a back-up role for security, intended to commit an act of prostitution.”
However, in making that argument, Fahrion and Mendez are asking us to accept as true their contention that the only crime they set out to commit (or, in the case of Mendez, to facilitate) was prostitution, and that Fahrion’s wallet grab was simply a spontaneous and unplanned act. The substantial evidence standard of review does not allow us to do so. Instead, we are obligated to indulge every reasonable inference in favor of the judgment, and in this case the inference urged by the prosecutor – i.e., that the prostitution was merely a ruse to get the victim alone and facilitate the robbery – was quite reasonable.
Indeed, the only evidence that Fahrion actually intended to engage in an act of prostitution comes from appellants themselves. And the jury was not required to believe that. Moreover, while no act of prostitution actually occurred, the evidence strongly suggests Fahrion grabbed the victim’s wallet at what she perceived was the first opportunity to commit a robbery. The victim had stopped his car on the side of the road, and Mendez (who she presumably knew was armed) had pulled up next to the victim’s side of the car to confront him. It is easy to believe she grabbed the wallet intending to jump out of the victim’s car, anticipating that Mendez would use his gun to prevent the victim from thwarting her. It was only because the victim immediately reacted to the threat by speeding away, before she had a chance to jump out, that Fahrion was trapped inside the car with him – and without Mendez to aid her in completing the planned robbery. She consequently put the wallet back down when the victim demanded she do so.
And having recognized the reasonableness of the inference robbery was appellants’ primary objective, we must conclude the evidence here was sufficient to support the crime of attempt. “The crime of attempted robbery requires neither the commission of an element of robbery nor the completion of a theft or assault.” (People v. Lindberg (2008) 45 Cal.4th 1, 28.) Instead, to establish an “attempt,” the prosecutor needs evidence of only the intent to commit the crime, plus “‘a direct but ineffectual act done towards its commission.’” (People v. Jones (1999) 75 Cal.App.4th 616, 627, quoting People v. Ross (1988) 205 Cal.App.3d 1548, 1554.)
Here, the prosecutor’s “intent” burden was satisfied by the evidence that Fahrion actually grabbed the victim’s wallet while in the presence of her armed accomplice. Moreover, there was evidence of at least four discrete “direct acts” done toward completion of that planned robbery: (1) Fahrion and Mendez conspired together to get the victim alone; (2) an armed Mendez confronted him at the first opportunity; (3) Fahrion grabbed the victim’s wallet as soon as Mendez confronted him; and (4) Mendez began shooting at the victim when he fled in his car (while Fahrion threatened that Mendez would “kill” him if he did not stop). Because the evidence was more than sufficient to demonstrate both the intent to rob the victim and numerous direct acts toward the completion of that crime, it was sufficient to support appellants’ convictions for the crime of attempted robbery.
The judgment is affirmed.
WE CONCUR: FYBEL, J., IKOLA, J.