Opinion
E065496
02-16-2017
THE PEOPLE, Plaintiff and Respondent, v. JERRY SIMPSON, Defendant and Appellant.
Jennifer Peabody, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Charles C. Ragland and Teresa Torreblanca, Deputy Attorneys General, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FWV1501372) OPINION APPEAL from the Superior Court of San Bernardino County. Dan Detienne, Judge. Affirmed with directions. Jennifer Peabody, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Charles C. Ragland and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
A jury convicted defendant and appellant, Jerry Simpson, of robbing Z.K. of his mobile phone outside the DoubleTree by Hilton in Ontario (Pen. Code, § 211; count 1), and of committing other offenses against R.D. and D.C., minutes after the robbery, at a Motel 6 across the street from the DoubleTree by Hilton (§§ 459; count 3 [burglary of R.D. and D.C.'s Motel 6 room], 245, subd. (a)(1); counts 4 & 6 [assaulting R.D. and D.C. with a box cutter], 422, subd. (a); count 5 [criminally threatening D.C. with a box cutter]). The jury also convicted defendant of misdemeanor resisting arrest (§ 148, subd. (a)(1); count 7), but acquitted defendant of criminally threatening R.D. (§ 422, subd. (a); count 2). Defendant was sentenced to 24 years four months in prison.
All further statutory references are to the Penal Code unless otherwise indicated.
In a bifurcated trial, the court found defendant had one prior strike, one serious felony prior, and eight prison priors. At sentencing, the court denied defendant's motion to strike his prior strike but granted his motion to strike his eight prison priors. Defendant was sentenced to an aggregate 24-year four-month prison term: 12 years on count 3, plus six years (three consecutive two-year terms) on counts 1, 4, and 6, plus 16 months (a consecutive term) on count 5, plus five years (a consecutive term) for the serious felony prior, plus a concurrent 365-day term on count 5.
In this appeal, defendant claims there is insufficient evidence he used force or fear during the commission of the robbery. Although the evidence shows defendant punched Z.K. in the face less than one minute after he took Z.K.'s iPhone 5 (phone), defendant argues the punch occurred after the theft of the phone was complete. We disagree. Substantial evidence shows Z.K. was following defendant and demanding his phone back when defendant punched him. (See People v. Estes (1983) 147 Cal.App.3d 23, 27-28 [use of force or fear against victim in asporting property, or in resisting the victim's attempt to regain the property, turns theft into robbery].)
Additionally, defendant claims his sentences on counts 4 and 5 should have been stayed. (§ 654.) The People concede, and we agree, that defendant's sentence on count 4, for assaulting R.D. with a box cutter, should have been stayed based on defendant's separate and greater sentence on count 3 for burgling R.D. and D.C.'s Motel 6 room, because the burglary was based on defendant's intent to enter the Motel 6 room to assault R.D. with the box cutter. (People v. Radil (1977) 76 Cal.App.3d 702, 713 [burglary for purposes of assault and assault part of one continuous transaction].)
We reject defendant's further claim that his 16-month sentence on count 5, for criminally threatening D.C. with a box cutter, should have been stayed based on his separate and greater sentence on count 6 for assaulting D.C. with the box cutter. Substantial evidence shows, and the trial court reasonably could have found, that defendant intended both to terrorize and harm D.C. with the box cutter, and that these separate intents and objectives were not merely incidental to each other.
We modify the judgment to stay defendant's two-year term on count 4. (§ 654.) In all other respects, we affirm the judgment.
II
FACTUAL BACKGROUND
A. The Incident Outside the DoubleTree by Hilton (Count 1)
On April 14, 2015, around 11:45 p.m., Z.K. had just left Misty's Lounge inside the DoubleTree by Hilton in Ontario and was waiting outside the entrance of the hotel for a cab. Z.K. was looking at his phone, when a man he later identified as defendant and another man walked by. Z.K. had never seen either of the men before. Defendant appeared "very, very angry," and the other man was trying to calm defendant. The other man was saying: "Let's get out of here, let's get out of here."
After passing by Z.K., defendant walked back, grabbed Z.K.'s phone from Z.K.'s hand, and asked: "Are you calling 911?" Z.K. replied "[n]o." Defendant then walked away with Z.K.'s phone, while Z.K. and the other man were telling defendant to return the phone. Z.K. began following defendant to get his phone back.
A surveillance video, which was played for the jury and admitted into evidence, shows defendant taking Z.K.'s phone at 11:45:56 p.m., according to the video time stamp. After Z.K. began following defendant, Z.K., defendant and the other man walked out of view of the video camera, which was directed at the hotel entrance. At 11:46:41 p.m., the video shows defendant, followed by Z.K. and the other man, walking back into view of the video camera. The video shows that defendant then turned around, walked back toward Z.K., and punched Z.K. in the face while Z.K. was still following defendant. According to the video, the punch occurred less than one minute after the phone was taken.
Z.K. testified that after he began following defendant, he stopped and told "some maintenance people," who were standing nearby, to call security. That portion of Z.K.'s testimony was stricken as nonresponsive to the prosecutor's question: "As he [defendant] walked, were you behind him?" The surveillance video does not show Z.K. stopping at any point before defendant punched him. Z.K. may have stopped at some point while he, defendant, and the other man were out of view of the video camera.
The punch caused Z.K.'s glasses to fall off. Z.K. testified he was "very scared" when defendant approached him to punch him, but he was not frightened when defendant took the phone because the other man was trying to help him get the phone back. After punching Z.K., defendant continued to walk away with Z.K.'s phone, but hotel security personnel arrived, spoke with Z.K., retrieved the phone from defendant, and gave it back to Z.K. The phone case was no longer on the phone.
After Z.K.'s phone was returned to him, defendant came up to Z.K., said "I apologize," and Z.K. told defendant, "Just please get away from me." Defendant tried to swing at Z.K. again, but security personnel got him away from Z.K., and defendant and his friend drove away. After defendant left, security personnel told Z.K. to go back into the hotel and wait for the police, and within minutes the police arrived. The police later transported Z.K. to the Motel 6, across the street from the DoubleTree by Hilton, where Z.K. identified defendant as the man who had taken his phone. When an officer asked whether he was missing anything, Z.K. said he was missing his phone case, and within seconds the officer returned the case to Z.K. B. The Crimes Against R.D. and D.C. at the Motel 6 (Counts 3-6)
Around midnight on April 14, 2006, R.D. was standing outside of his room on the second floor of the Motel 6, located across the street from the DoubleTree by Hilton, where he was staying with his girlfriend D.C., and members of D.C.'s family. R.D. saw two men he had never seen before touching his bicycles on the lower level, told the men to get away from the bicycles, then went downstairs. One of the men told R.D. he had a gun and would blow R.D.'s head off, then came toward R.D. with an object in his hand, which appeared to be a gun.
R.D. backed away and went upstairs to his motel room to get a baseball bat, and the man followed him. R.D. tripped and fell to the floor as he entered the motel room, and the man came fully into the room behind him. At that point, R.D. knew the object in the man's hand was probably not a gun, because the man was making slashing motions with the object.
R.D. was unable to identify the man who came into the room and admitted he had been drinking and using methamphetamine and heroin at the time of the assault. R.D. had a 1991 conviction for being a felon in possession of a firearm, a 1998 conviction for theft, and a 2008 conviction for assault by means likely to produce great bodily injury.
D.C. was in the motel room when R.D. came in and fell to the floor. A man D.C. identified as defendant then entered the room with a box cutter in his hand. Neither R.D. nor D.C. gave defendant permission to enter the room. Defendant was standing over R.D., swinging the box cutter and saying he was going to cut R.D. Defendant's hand came within two to three feet of R.D.
D.C. asked defendant what he was doing and what he wanted, and defendant told her to shut up or he would "slice" her too. Defendant began swinging the box cutter at D.C. and came within a foot of her. D.C. moved back, as defendant came closer to her with the blade in his hand, and was so frightened she urinated in her pants. At that point, R.D. told defendant that the police were there, and the man left the room. C. Officer Matthew Nonnemacher's Testimony and the Resisting Arrest Charge (Count 7)
Ontario Police Officer Matthew Nonnemacher arrived at the DoubleTree by Hilton shortly before midnight on April 14, 2015, and was informed that the suspect who had taken Z.K.'s phone had gone to the Motel 6 across the street. Officer Nonnemacher went to the Motel 6, where he heard two males exchanging words. He saw R.D. walking toward a second-floor room and defendant following him. Officer Nonnmacher saw R.D. enter the room, and defendant put his foot between the door and its frame to keep it from closing, then entered the room. Officer Nonnemacher heard a woman screaming "[g]et out" and saw defendant's back moving up and down and his left arm moving up and down and side to side. The woman continued to scream "[g]et out," and defendant left the room. Defendant matched the description of the suspect from the DoubleTree by Hilton incident.
Officer Nonnemacher yelled out "[h]ey" to defendant from the ground floor, but defendant continued to walk. Officer Nonnemacher told defendant to come downstairs and defendant finally said "okay," but did not come downstairs. Officer Nonnemacher walked up the stairs, where he saw defendant hand something to another male. Defendant started walking away, and Officer Nonnemacher told him to stop, but defendant continued walking and said he had somewhere to be. Finally, defendant stopped, and Officer Nonnemacher asked defendant why he was trying to get away. Defendant replied that he had not done anything wrong and he had somewhere to be. Officer Nonnemacher asked defendant if he had anything illegal on him, told him he was going to check him, and instructed him to put his hands behind his back.
Defendant put his hands behind his back, but kept his eyes on Officer Nonnemacher. Officer Nonnemacher escorted defendant toward the stairs to create distance between defendant and the other man. As he was being moved, defendant dragged his feet, said he had not done anything wrong, and kept looking back at Officer Nonnemacher. At the wall near the staircase, Officer Nonnemacher patted down defendant. Defendant tensed his hands and used one of his hands to push Officer Nonnemacher's hands off of his hands, which delayed Officer Nonnnemacher in detaining defendant. Officer Nonnemacher then handcuffed defendant, and found an iPhone case in the left pocket of defendant's jacket. Officer Nonnemacher asked the other man, later identified as D.H., what defendant had handed him. After D.C. responded, and without being asked, defendant stated it was a box cutter that defendant used for work.
Defendant continued saying he had done nothing wrong and made it difficult for Officer Nonnmacher to escort him down the stairs. Defendant was also disregarding Officer Nonnemacher's directions. At the bottom of the stairs, Officer Nonnemacher told defendant to sit down, but defendant said "[n]o." After Officer Nonnemacher grabbed defendant's hands and told him to sit down a second time, defendant said "[m]ake me" and began twisting his body to face Officer Nonnemacher. At that point, Officer Nonnemacher took defendant to the ground. Officer Nonnemacher found Z.K.'s phone case in defendant's possession.
III
DISCUSSION
A. Substantial Evidence Supports Defendant's Robbery Conviction (Count 1)
Defendant claims his robbery conviction must be reversed because insufficient evidence shows he used force or fear in taking Z.K.'s phone.
In reviewing a criminal conviction challenge as lacking evidentiary support, our task is to review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—reasonable, credible evidence, of solid value—from which a reasonable trier of fact could have found the defendant guilty of the crime beyond a reasonable doubt. (People v. Hovarter (2008) 44 Cal.4th 983, 1014-1015.) We are required to "'"presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence."'" (People v. Rayford (1994) 9 Cal.4th 1, 23.) Reversal is unwarranted merely because the evidence might also support a contrary conclusion. (See People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
"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 at issue here has two elements: (1) gaining possession of the victim's property and (2) asporting or carrying away the property. (People v. Cooper (1991) 53 Cal.3d 1158, 1165.) The asportation of the property continues, and the crime of robbery continues, "as long the loot is being carried away to a place of temporary safety." (Ibid.; People v. Navarette (2003) 30 Cal.4th 458, 502.)
Thus, a "mere theft becomes robbery if the perpetrator, having gained possession of the property without use of force or fear, resorts to force or fear while carrying away the loot." (People v. Cooper, supra, 53 Cal.3d at p. 1165, fn. 8; People v. Estes, supra, 147 Cal.App.3d at pp. 27-28.) Such a robbery is sometimes referred to as an "Estes robbery." (See, e.g., Miller v. Superior Court (2004) 115 Cal.App.4th 216, 226 (dis. opn. of McDonald, J.).) "[T]he crime of robbery occurs when property is forcefully retained in the victim's presence . . . ." (People v. Gomez (2008) 43 Cal.4th 249, 264.)
This was an Estes robbery. What might otherwise have been a theft of Z.K.'s phone became a robbery when defendant forcefully retained the phone in Z.K.'s presence—by punching Z.K. in the face—while Z.K. was following defendant and demanding the return of the phone. Z.K.'s testimony and the surveillance video showed that Z.K. began following defendant and demanding the return of his phone immediately after defendant took the phone. The surveillance video also clearly showed that Z.K. was still following defendant when defendant turned, charged at Z.K., and punched Z.K. in the face. The time stamps on the surveillance video show the punch occurred less than one minute after the phone was taken.
Defendant argues: "The record fails to demonstrate evidence from which the jury could have concluded, beyond a reasonable doubt, that [defendant] used force or fear to prevent Z.K. from resisting or that when [defendant] used force or fear, he intended to permanently [deprive] [Z.K.] of his property. Rather, at most, [defendant] was guilty of petty theft and a subsequent assault or battery."
Defendant first attempts to parse his act of punching Z.K. from his act of taking the phone in view of Z.K.'s testimony and the prosecutor's concession that defendant's act of taking the phone was accomplished without force or fear. Z.K. testified he was not fearful when defendant took the phone, but he became "very scared" when defendant turned and punched him. In closing argument, the prosecutor conceded defendant "snatched" the phone "so quick that he didn't really use any force or fear to get the property," but the prosecutor then argued that defendant used force to retain the property when he punched Z.K.
As we discuss above, and as the prosecutor argued, substantial evidence shows that the asportation element, or defendant's act of carrying away the phone, was not complete when defendant took the phone. At that point, defendant had not reached a place of temporary safety. When the phone was taken, Z.K. began following defendant and demanding the return of his phone, and Z.K. was still following defendant, trying to get his phone back, when defendant punched Z.K. in the face. "Evidence may support the conclusion that no place of temporary safety has been reached while the robbery is still encumbered with the victim, 'who at first opportunity might call the police.' [Citations.]" (People v. Barnett (1998) 17 Cal.4th 1044, 1153.)
Defendant maintains the evidence showed that Z.K. "stopped at some point" before defendant punched Z.K., and Z.K.'s act of stopping or ceasing his pursuit of defendant shows the theft of the phone was complete before defendant punched Z.K. The record does support defendant's claim that Z.K. ceased his pursuit of defendant, however. The trial court struck Z.K.'s testimony that he "stopped" at some point, after he began following defendant, and asked "some maintenance people" to call security. Further, Z.K.'s admitted testimony and the surveillance video show Z.K. was still following defendant and demanding the return of his phone when defendant turned and punched Z.K.—less than one minute after defendant took the phone.
See footnote 3, ante. --------
Defendant also argues insufficient evidence shows he intended permanently to deprive Z.K. of the phone, another necessary element of robbery. (In re Albert A. (1996) 47 Cal.App.4th 1004 1007 ["Robbery requires the specific intent to deprive the victim of his or her property permanently."].) Instead, defendant argues, his acts of taking the phone and punching Z.K. in the face "appeared to be motivated by misplaced anger" rather than an intent to permanently deprive Z.K. of the phone. This argument, too, views the evidence in a light more favorable to defendant than to the judgment, contrary to our standard of review. Although Z.K. testified defendant appeared "very, very angry" before defendant took the phone or punched Z.K., and the prosecutor emphasized defendant's anger was "uncontroll[ed]," the jury reasonably could have concluded that defendant intended to permanently deprive Z.K. of the phone and its case. Defendant did not return the phone until DoubleTree by Hilton security personnel forced him to do so. Further, defendant did not return the phone case until the police arrived, apprehended him at the Motel 6, took the phone case from him, and returned it to Z.K. B. Defendant's Sentence On Count 4 (the Assault On R.D.) But Not His Sentence on Count 5 (the Criminal Threat Against D.C.) Must be Stayed Under Section 654
Defendant claims his sentences on counts 4 and 5 should have been stayed (§ 654) because the assault on R.D. (count 4) was incidental to the burglary of the Motel 6 room (count 3), and the criminal threat against D.C. (count 5) was incidental to the assault on D.C. (count 6). We agree that count 4 must be stayed, but conclude that substantial evidence shows defendant harbored separate intents and objectives in threatening, and then assaulting, D.C. with the box cutter.
Section 654 provides: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." (§ 654, subd. (a).) "Section 654 prohibits punishment for two offenses arising from the same act or from a series of acts constituting an indivisible course of conduct. [Citations.]" (People v. Sok (2010) 181 Cal.App.4th 88, 99, fn. omitted.) "Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one." (Neal v. State of California (1960) 55 Cal.2d 11, 19.)
If, on the other hand, the defendant acted with multiple criminal objectives that were independent of and not merely incidental to each other, he may be punished for the "independent violations committed in pursuit of each objective even though the violations were parts of an otherwise indivisible course of conduct." (People v. Alvarado (2001) 87 Cal.App.4th 178, 196.) Whether the defendant harbored separate and independent objectives is a question of fact for the trial court, and its findings will be upheld on appeal if supported by substantial evidence. (People v. Liu (1996) 46 Cal.App.4th 1119, 1135-1136.) "'"[T]here must be evidence to support [the] finding [that] the defendant formed a separate intent and objective for each offense for which he was sentenced."' [Citation.]" (People v. Capistrano (2014) 59 Cal.4th 830, 886, fn. omitted.)
The People concede, and we agree, that defendant's two-year sentence on count 4, for assaulting R.D. with a box cutter (§ 245, subd. (a)(1)), should have been stayed based on defendant's separate and greater 12-year sentence on count 3 for burgling the Motel 6 room (§ 459). As the record shows, and the parties agree, the burglary was based solely on defendant's intent and objective of entering the room to assault R.D. with the box cutter, and defendant's act of assaulting R.D. with the box cutter was based on the same criminal intent and objective. (People v. Radil, supra, 76 Cal.App.3d at p. 713 [burglary for purposes of assault and assault part of one continuous transaction]; People v. Hester (2000) 22 Cal.4th 290, 294.)
Regarding defendant's additional claim that his 16-month sentence on count 5, for criminally threatening D.C. with a box cutter (§ 422), was required to be stayed based on his two-year sentence on count 6 for assaulting D.C. with the same box cutter (§ 245, subd (a)(1)), the People argue substantial evidence supports an implied finding by the trial court that defendant harbored separate and independent intents and objectives in committing these two crimes: (1) he intended to terrorize D.C., or cause her to suffer sustained fear, in telling her to "shut up" or he would "slice" her with the box cutter, and (2) he intended to harm D.C. by subsequently assaulting her with the box cutter—by swinging the box cutter at her, and coming within a foot of her while doing so.
Defendant concedes he committed separate acts in first threatening, and then assaulting, D.C. with the box cutter, but he argues each act was committed with the sole intent and objective of terrorizing D.C. He argues that "[t]he threat . . . was made to complete the assault." We do not agree. Substantial evidence supports an implied finding that defendant intended to both terrorize and to harm D.C., and that these intents and objectives were independent of and not merely incidental to each other. The threat preceded the assault, and although the threat and the assault occurred closely in time, they did not occur simultaneously. Shortly after defendant threatened to "slice" D.C., he moved toward her, swung the box cutter at her, and came within a foot of her. The court reasonably could have concluded that, had defendant not intended to harm D.C., but only to terrorize her, he would have stopped with his criminal threat and not committed the aggravated assault. The cases defendant relies upon involve different crimes, acts, and criminal intents, and do not require a different result. (People v. Jones (2012) 54 Cal.4th 350, 360 [act of possessing loaded and concealed firearm and act of carrying same firearm are same act]; People v. Louie (2012) 203 Cal.App.4th 388, 399 [criminally threatening witness and attempting to dissuade witness were same criminal act].)
IV
DISPOSITION
The judgment is modified to stay the two-year term on count 4. (§§ 245, subd. (a)(1), 654.) The matter is remanded to the trial court with directions to prepare an amended sentencing minute order and an amended abstract of judgment reflecting this single modification to the judgment, and to forward a copy of the abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: RAMIREZ
P. J. McKINSTER
J.