Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego CountySuper. Ct. No. SCN204960-1, Joel M. Pressman, Judge. Affirmed.
BENKE, Acting P. J.
Dorian Lerome Jones was convicted of one count of robbery. He admitted a prior juvenile adjudication within the meaning of Penal Code section 667, subdivisions (b) through (i). Jones was sentenced to a prison term of four years. He appeals, arguing the evidence was insufficient to support his conviction, it was error to use his prior juvenile adjudication to impose a greater term and the trial court abused its discretion in denying his Romero motion.
All further statutory references are to the Penal Code unless otherwise specified.
FACTS
A. Prosecution Case
On December 3, 2005, Linda Chairez was working at a Wal-Mart store in San Marcos. She noticed appellant, who was not wearing a shirt, enter the store with two women. The three went to the men's department. One of the women, Sherry Weevie, opened a package of T-shirts, gave one to appellant who put it on. Chairez saw the two women go to the electronics department and pay for the shirts. Chairez told store security officer Kristel Rodriguez what she saw.
As Rodriguez watched, appellant went alone to the CD section of the store and took 10 CD's off a rack. Appellant went back to where Weevie stood. She gave him a Wal-Mart bag in which he placed the CD's. Appellant then took a CD player off a rack. Appellant and his companion walked into the garden department passing open cash registers along the way.
In the garden department appellant was approached by store staff who asked if he had a receipt for the items in the bag. Appellant said he brought the merchandise to the store to return it. Appellant and his companions then left the store without paying for the CD player or the CD's.
Rodriguez and two other employees approached appellant in the parking lot. Rodriguez identified herself as a security officer and asked appellant to return with her to the store. Appellant refused and walked away. Rodriguez, a small woman, stepped in front of him and again asked him to return to the store. Appellant, a muscular man, became enraged. He leaned into Rodriguez and screamed, "What are you going to do about it, bitch" and "Fuck you, bitch. This is my shit." Rodriguez was afraid that appellant, whose fist was clinched, was about to become violent.
As appellant began walking forward, Rodriguez, walking backwards, demanded he return the stolen merchandise to her. Appellant continued to insist the property was his and he brought it to the store to return it. Rodriguez grabbed the bag in appellant's hand but he immediately grabbed it back. She looked in the bag and noticed the CD's were still in their security wrapping that is removed when the item is purchased. Rodriguez made no further efforts to take the bag, fearful that if she did, appellant would hit her.
Appellant's two companions pulled up in a car. Appellant handed the bag to Weevie. Weevie handed Rodriguez a receipt. The receipt was for T-shirts and socks but not for CD's or a CD player. Appellant got into the car and it drove off.
The incident was reported to the police. The report included the license number of the car in which appellant departed and his description. On December 18, 2005, a police officer saw appellant and a companion get into the car. Appellant was placed under arrest. In the car the officer found the stolen CD player.
B. Defense Case
Appellant testified and stated that on December 3, 2005, he stole CD's and a CD player from the Wal-Mart store in San Marcos. Appellant stated after leaving the store, three Wal-Mart employees confronted him in the parking lot. One of the employees was a large man. Rodriguez stated she needed to talk to him about unpaid merchandise. Appellant stated he reacted angrily, used foul language and told Rodriguez the merchandise was his. Appellant stated Rodriguez kept getting in front of him and he kept changing direction to avoid her. Eventually, Rodriguez stopped in front of appellant and told him he would have to return to the store. Angry because he did not believe Rodriguez had evidence he was a thief, appellant continued to address her in a hostile manner.
Appellant began walking again. Rodriguez again stepped in front of him. Appellant testified the other Wal-Mart employees remained in the background and he paid no attention to them. Eventually, appellant, while still addressing Rodriguez in an abusive manner, held the bag he was carrying out to her. She took the bag and appellant then grabbed it back. Appellant walked to where his friends were waiting in car and departed.
DISCUSSION
A. Sufficiency of Evidence
Robbery is a larceny accomplished by force or fear. Appellant notes the prosecution conceded the taking in this case did not result from a use of force but instead argued it was accomplished by intimidation. Appellant argues the evidence that fear resulted in the loss of the property was insufficient; first, because there was no evidence Rodriguez was afraid and, second, because even if she was fearful, the fear was not objectively reasonable.
In determining whether the evidence is sufficient to support the verdict, we review the entire record viewing the evidence in the light most favorable to the judgment and presuming in support of the verdict the existence of every fact the jury could reasonably deduce from the evidence. The issue is whether the record so viewed discloses evidence that is reasonable, credible and of solid value such that a rational trier of fact could find the elements of the crime beyond a reasonable doubt. (People v. Carter (2005) 36 Cal.4th 1114, 1156.)
1. Law
An element of robbery is that the taking of personal property be accomplished by force or fear. (§ 211.) In the present context, "fear" means either fear of unlawful injury to the person robbed or to anyone accompanying that person at the time of the robbery. (§ 212.) A robbery occurs when fear deters a victim from immediately reclaiming the property taken or when it facilitates the robber's escape. It is enough that the fear induced allows a temporary possession of the stolen property. It is presumed that when the perpetrator and victim remain in close proximity, the victim will attempt to reclaim the property unless prevented from doing so. (People v. Flynn (2000) 77 Cal.App.4th 766, 771-772; People v. Estes (1983) 147 Cal.App.3d 23, 27-28.)
Evidence must be presented from which it can be inferred that the victim was afraid and that such fear allowed the crime to be accomplished. Fear may be inferred from the circumstances and the victim need not explicitly testify to having been fearful. (People v. Cuevas (2001) 89 Cal.App.4th 689, 698.) It is unnecessary the fear be induced by an express threat, and it can be caused by words or actions or the circumstances of the crime. (People v. Flynn, supra, 77 Cal.App.4th at pp. 771-772; People v. Brew (1991) 2 Cal.App.4th 99, 104.) The level of fear need not be extreme. (People v. Davison (1995) 32 Cal.App.4th 206, 216.)
2. Discussion
Pursuant to her duty, Rodriguez confronted appellant in the parking lot of the Wal-Mart store and attempted to apprehend him and regain property he stole from the store. Appellant's response was aggressive, hostile and physically intimidating. Appellant's demeanor and the act of clinching his fists led Rodriguez to the reasonable conclusion that any attempt to apprehend him or retake the stolen goods would result in violence. Clearly, she feared if she did, appellant would strike her.
Appellant attempts, based on some of Rodriguez's testimony, to draw strained distinctions between her fear that attempts at apprehending appellant would cause him to hit her, while merely retaking the property would not. Appellant notes that Rodriguez was so unintimidated with regard to regaining the stolen property, she actually snatched it from him. Appellant contends the eventual loss of the property was caused by appellant's nonforceful retaking of the property and his act of throwing it into his awaiting getaway car. The taking, he argues, was, thus, not accomplished by force or fear.
Rodriguez's testimony makes clear she was fearful at all times that apprehending appellant or retaking the property or even stopping him would result in appellant injuring her. Under the circumstances, that fear was reasonable. That in one instance she summoned enough courage to attempt to retake the property does not mean appellant's earlier retention of the stolen property was not the result of intimidation or that his actions did not result in appellant being able to keep Rodriguez from retaking the stolen goods. The evidence was sufficient to establish that appellant accomplished a theft by means of force or fear.
B. "Strike" Prior
Appellant's sentence was doubled pursuant to the "two strikes" law (§ 667, subd. (e)(1)) based on his admission of a prior juvenile court adjudication that he committed a robbery (§ 667, subd. (d)(3)). Appellant argues the use of a prior juvenile court adjudication for such purpose denied him his constitutional rights of due process and trial by jury.
Every citable California case that has considered the issue has concluded a juvenile court adjudication may properly be used as a strike prior. (See People v. Buchanan (2006) 143 Cal.App.4th 139, 149; People v. Palmer (2006) 142 Cal.App.4th 724, 733; People v. Bowden (2002) 102 Cal.App.4th 387, 393–394; People v. Superior Court (Andrades) (2003) 113 Cal.App.4th 817, 830–831; People v. Lee (2003) 111 Cal.App.4th 1310, 1314–1316; People v. Smith (2003) 110 Cal.App.4th 1072, 1079; People v. Fowler (1999) 72 Cal.App.4th 581, 585.)
The issue is presently before our Supreme Court in People v. Nguyen (S154847, review granted Oct. 10, 2007.)
Given this state of authority, we reject appellant's contention and hold that a juvenile court adjudication may be used as a strike prior.
C. Dismissing the Strike
Appellant argues assuming his prior juvenile court adjudication could be used as a strike prior, the trial court abused its discretion in denying his motion to dismiss that strike.
Pursuant to section 1385, a trial court may dismiss a strike. In deciding to do so the issue is "whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161.)
A trial court's decision not to dismiss a strike is reviewed for abuse of discretion. To show such an abuse, the appellant must demonstrate the trial court's decision was irrational or arbitrary. (People v. Carmony (2004) 33 Cal.4th 367, 376-377.)
In considering the motion to dismiss the strike, the trial court, citing the proper test, stated it found nothing in appellant's history suggesting a basis for doing so.
The trial court did not abuse its discretion. Appellant's criminal history is long. He has a history of hostile and aggressive behavior and an unwillingness to act responsibly. The robbery adjudication that was the basis for the strike was a serious one. Appellant demonstrates little concern for the property or safety of others. He is not outside the spirit of the strikes law.
The judgment is affirmed.
WE CONCUR: HUFFMAN, J., IRION, J.