Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Mateo County Super. Ct. No. SC062917A
Marchiano, P.J.
Defendant Tod Wesley Olds was convicted in a court trial of robbing Andrew Trujillo (Pen. Code, § 212.5, subd. (c)), a security guard at the Target store in Redwood City, assaulting Trujillo (§ 245, subd. (a)(1)), and committing petty theft with priors (§ 666), based on a shoplifting at the store. He received a 17-year prison sentence, consisting of the upper term of five years for the robbery, doubled by virtue of a prior strike (§ 1170.12, subd. (c)(1)), five years for a prior felony conviction (§ 667, subd. (a)), one year for having been armed with a knife (§ 12022, subd. (b)(1)), and one year for a prior prison term (§ 667.5, subd. (b)); sentences on the assault and theft counts were stayed pursuant to section 654. The issue on appeal is whether the robbery conviction was supported by substantial evidence. We find sufficient evidence to support the conviction and affirm the judgment.
All further statutory references are to the Penal Code.
I. FACTS
Defendant went into the store around 8:00 p.m. on October 13, 2006, bought a trumpet and guitar, and left. He put the items in his car, changed clothes, and returned to the store a few minutes later, with the receipt for that purchase. He put identical items—another trumpet and guitar—in his shopping cart, and walked out of the store without paying for them. Defendant admitted in his testimony that he had committed thefts in this manner 30 or 40 other times. He was armed with a knife. He also carried a badge, handcuffs, and a “replica of [a] BB gun” in a belt holster, as what he called a “costume” for the occasion.
Security guard Trujillo saw what defendant was doing on the store’s surveillance cameras, and followed behind defendant as he walked toward the doors. Target security guard Walter Recinos was at the doors ready to check defendant’s receipt, but Trujillo waived Recinos off and they allowed defendant to leave the store with the merchandise. Trujillo and Recinos approached defendant from behind as he pushed the shopping cart outside the store, identified themselves as security, and grabbed defendant, causing him to lose his grip on the shopping cart, which rolled away on the downward sloping pavement. Trujillo could not say whether defendant pushed the cart away or simply let go of it, but defendant testified that he did not push the cart. When defendant was asked how the cart left his hands he answered, “Just when I got hit everything else was gone.”
Trujillo took hold of defendant’s wrist and Recinos put his hand on defendant’s shoulder in an attempt to handcuff him, but the three fell to the ground struggling. During the struggle, Trujillo ripped defendant’s holster from his hip, handed it to another Target security guard, and told her to take it into the store and call the police. Defendant, who was trying to get up, said, “I have a knife.” Defendant flipped open a switchblade knife, and tried to stab Trujillo in the thigh with it. Trujillo moved away to avoid being stabbed, told Recinos to “abort” the capture, and turned around and returned to the store as defendant ran away into the parking lot. Target personnel retrieved the shopping cart with the trumpet and guitar; defendant did not take the items when he fled.
II. DISCUSSION
“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.) “The taking element of robbery itself has two necessary elements, gaining possession of the victim’s property and asporting or carrying away the loot.” (People v. Cooper (1991) 53 Cal.3d 1158, 1165.) “Circumstances otherwise constituting a mere theft will establish a robbery where the perpetrator peacefully acquires the victim’s property, but then uses force to retain or escape with it.” (Miller v. Superior Court (2004) 115 Cal.App.4th 216, 222 (Miller); see also People v. Flynn (2000) 77 Cal.App.4th 766, 772.)
In People v. Estes (1983) 147 Cal.App.3d 23, 26, for example, as in the case at bench, the defendant took property from a store, a security guard attempted to detain the defendant outside the store, and the defendant swung a knife at the security guard causing him to retreat back to the store. The defendant thus “forceably resisted the security guard’s efforts to retake the property and used that force to remove the items from the guard’s immediate presence. By preventing the guard from regaining control over the merchandise, [the] defendant [was] held to have taken the property as if the guard had actual possession of the goods in the first instance.” (Id. at p. 27.)
The trial court relied on People v. Pham (1993) 15 Cal.App.4th 61 (Pham), in finding that an “ ‘Estes robber[y]’ ” (Miller, supra, 115 Cal.App.4th at p. 223) occurred here. The defendant in Pham took property from a car and ran away with the property in a bag. When one of the victims, Guevara, caught up with the defendant, he “dropped the bag where he stood” and began hitting Guevara. (Pham, supra, 15 Cal.App.4th at p. 64.) The defendant was eventually subdued with help from the other victim. He argued that there was insufficient evidence of a taking by force or fear because “he dropped the stolen goods just as Guevara apprehended him and . . . never touched the bag again.” (Id. at pp. 64-65.) The court rejected that argument, noting that “[t]he robber’s escape with the loot is not necessary to commit the crime. . . . [¶] [C]ontrary to defendant’s contention, robbery does not require that the loot be carried away after the use of force or fear.” (Id. at p. 65.)
Defendant here relies on the Pham court’s further observation that “[i]f defendant truly abandoned the victims’ property before using force, then, of course he could be guilty of theft, but not of an Estes-type robbery.” (Pham, supra, 15 Cal.App.4th at p. 68.) Defendant submits that he abandoned the stolen property before using force because he relinquished control of the shopping cart before struggling with the guards. The abandonment argument was raised and implicitly rejected below.
In assessing whether the court’s implied finding on the matter was supported by substantial evidence, we “must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.) “ ‘[W]hen two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the [finder of fact]. It is of no consequence that the [fact finder] . . . drawing different inferences, might have reached a contrary conclusion.’ ” (People v. Castro (2006) 138 Cal.App.4th 137, 140 (Castro).)
The evidence at trial included a DVD of the incident compiled by Trujillo from recordings made with the store’s surveillance cameras, which the court viewed “over ten times” before making its ruling. We have likewise reviewed the video, and conclude that it supports the court’s determination. It appears from the video that, as the testimony suggested, defendant’s hands were forcibly dislodged from the shopping cart when Trujillo and Recinos grabbed him. The video shows the shopping cart rolling away and coming to rest a few yards away from where defendant and the security guards are struggling. During the struggle Trujillo can be seen kicking his left leg back; he testified that this was the point at which defendant attempted to stab him. Trujillo and Recinos then move away from defendant, who stands for a moment brandishing the knife, then bends down to pick up the handcuffs he had been carrying, and then turns and runs off into the parking lot, moving past the shopping cart without taking the stolen goods.
Whether defendant abandoned the stolen property before using force against the guards was disputable under the circumstances. Defendant did not voluntarily relinquish possession of the shopping cart before the struggle ensued, and may have intended to retake possession of the stolen items if he could get free of the guards, thinking better of it only when he turned and fled. The evidence did not as a matter of law preclude that inference. Defendant contends that he used force to get the guards off of him, and not to prevent them from recovering his loot, but those intentions were not mutually exclusive. He could have wanted to free himself and protect the loot. While it is possible that he thought only of escaping during the struggle, the evidence did not compel that finding. Since different inferences, including the one drawn by the trial court, were permissible under the evidence, defendant’s substantial evidence argument must be rejected. (Castro, supra, 138 Cal.App.4th at p. 140.)
Defendant notes that the video shows him coming to a “dead stop” inside the store when it appeared that Recinos was going to check his receipt; he continued on out the door only after Recinos was waived off by Trujillo and let him go. In defendant’s view, “[t]hat portion of the surveillance tape confirms [his] intention to abandon the property and abort the scam when faced with the prospects of being caught.” Again, however, the inference defendant advocates was not the only one that could reasonably be drawn. Since defendant had obtained and was carrying a receipt for items like those he was stealing, it seems more likely that he stopped in order to pull out the receipt and show it to the guard.
III. DISPOSITION
The judgment is affirmed.
We concur: Swager, J. Flinn, J.
Judge of the Superior Court of Contra Costa County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.