Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. Jeffrey Prevost, Judge. Affirmed as modified. Super.Ct.No. RIF128739
Allison H. Ting, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Tami Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent.
RICHLI J.
A jury found defendant Germie Reginald Zayas guilty of four counts of robbery (Pen. Code, § 211, counts 1-4), and also found true that defendant had personally used a firearm (§§ 12022.53, subd. (b), 1192.7, subd. (c)(8)) in the commission of counts 1, 2, and 3, and not true as to count 4. Defendant was sentenced to a total term of 15 years: the upper term of five years on count 1, plus a consecutive 10 years for the gun use enhancement; the midterm of three years each for counts 2, 3, and 4, to run concurrent to count 1; and concurrent 10-year sentences for the gun use enhancements attached to counts 2 and 3. The court also imposed a $1,500 restitution fine and a $1,550 suspended parole revocation fine. On appeal, defendant contends (1) there was insufficient evidence to sustain his robbery conviction on count 4; (2) the trial court had a sua sponte duty to instruct the jury on the element of “on duty”; and (3) the $1,550 parole revocation fine should be reduced to $1,500. We agree with the parties that the suspended parole revocation fine should be reduced by $50. We, however, reject defendant’s remaining contentions.
All further statutory references are to the Penal Code unless otherwise indicated.
I
FACTUAL AND PROCEDURAL BACKGROUND
On February 28, 2006, Carlos Aguilera and his coworkers, Miguel Ramirez, Isabel Moreno, and Emil Castro, were working the night shift at a Del Taco in Riverside. Aguilera was the shift manager, Ramirez was running the front service drive-through, Castro was running the grill area, and Moreno was operating the taco bar.
Between 9:00 and 10:00 p.m., while Aguilera was on a 10-minute break reading the newspaper, he heard someone scream, “Give me the money, give me the money.” Aguilera saw that three men had entered the restaurant, dressed in black sweaters or shirts, wearing hoods and bandanas. One of the men, identified as defendant, had a gun. The men had entered through the back door—a door normally used for employees to enter and exit from and to take the trash out.
When the men entered, Aguilera was sitting in the front area and Moreno was at the taco bar. Ramirez was in the drive-through area helping customers and Castro was in the bathroom. The bathroom was located next to the back door where the men came in from outside.
Aguilera told the men to take whatever they wanted and opened one of the three cash register drawers. The men began taking the cash but ended up taking the entire drawer. In about a minute and a half to two minutes, the men left through the back door, apparently carrying the cash drawer.
As the men were leaving, Castro was in the back parking lot, screaming at the robbers. Aguilera called for Castro to come back inside. A few seconds later, Castro entered the restaurant through the back door and appeared to be “very angry.” Castro told Aguilera that as he (Castro) came out of the bathroom, the robbers were leaving the restaurant and one of them punched Castro in the chin. Castro’s chin was red, and it appeared as though he had just been punched.
The men were subsequently apprehended. Police found the cash register drawer in a driveway between two houses near the Del Taco. The drawer contained just coins. About a block away from the Del Taco, in a residential backyard, police found a loaded.38-caliber handgun. In nearby bushes, a jacket, a “hoodie” sweater, a pair of gloves, two baseball caps, and a beanie were also found. Defendant was found hiding in a residential garage by a police canine.
II
DISCUSSION
A. Insufficiency of the Evidence
Defendant contends there was insufficient evidence to sustain his conviction in count 4, the robbery of Castro, because Castro was not “on duty,” and, therefore, he could not have been in constructive possession of his employer’s property during the robbery. We disagree.
“We often address claims of insufficient evidence, and the standard of review is settled. ‘A reviewing court faced with such a claim determines “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” [Citations.] We examine the record to determine “whether it shows evidence that is reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.” [Citation.] Further, “the appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.”’ [Citations.]” (People v. Moon (2005) 37 Cal.4th 1, 22; see also Jackson v. Virginia (1979) 443 U.S. 307, 318-319.)
“In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.]” (People v. Young (2005) 34 Cal.4th 1149, 1181.) “‘Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.’ [Citation.]” (People v. Guerra (2006) 37 Cal.4th 1067, 1141, quoting People v. Maury (2003) 30 Cal.4th 342, 403.)
Robbery is defined as “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.) A robbery continues until “‘the loot [has been] carried away to a place of temporary safety.’” (People v. Gomez (2008) 43 Cal.4th 249, 256.) Thus, “robbery can be accomplished even if the property was peacefully or duplicitously acquired, if force or fear was used to carry it away.” (Ibid.) “Though the crime of robbery continues ‘as long as the loot is being carried away to a place of temporary safety,’ ‘for purposes of establishing guilt, the asportation requirement is initially satisfied by evidence of slight movement.’ [Citation.]” (People v. Navarette (2003) 30 Cal.4th 458, 502.) The force or fear employed to effectuate the removal of the possessor’s property need not occur simultaneously with the asportation. “It is sufficient to support the conviction that [the defendant] used force to prevent the guard from retaking the property and to facilitate his escape.” (People v. Estes (1983) 147 Cal.App.3d 23, 28 (Estes).)
“‘“[A] thing is in the [immediate] presence of a person, in respect to robbery, which is so within his reach, inspection, observation or control, that he could, if not overcome by violence or prevented by fear, retain his possession of it.”’ [Citations.]” (People v. Hayes (1990) 52 Cal.3d 577, 626-627.) There is, however, no requirement that the victim be aware his or her property is being taken from his or her presence by force or fear. (People v. Jackson (2005) 128 Cal.App.4th 1326, 1330-1331.)
Very recently, our Supreme Court in People v. Scott (2009) 45 Cal.4th 743 (Scott), a case relied upon by defendant, stated, “A person from whose immediate presence property was taken by force or fear is not a robbery victim unless, additionally, he or she was in some sense in possession of the property.” (Id. at p. 749.) In that case, the court addressed the question whether an employee “subjected to force during a robbery is in constructive possession of the owner’s property solely by virtue of his or her status as an employee.” (Id. at p. 751.) After analyzing numerous constructive possession cases involving employees working at a business premise, the court noted that People v. Jones (2000) 82 Cal.App.4th 485, was correct in concluding that “‘California follows the long-standing rule that the employees of a business constructively possess the business owner’s property during a robbery.’” (Scott, at p. 752, quoting Jones, supra, at p. 490.) The Scott court explained, “Jones is supported by a long line of California cases that have found evidence sufficient to establish that employees working at a business premises were in constructive possession of the employer’s property during a robbery, based upon their status as employees and without examining whether their particular duties involved access to or control over the property stolen.” (Scott, supra, at p. 752.)
Scott further stated: “The conclusion that employees have constructive possession of their employer’s property when they are present during a robbery is consistent not only with this long line of cases addressing constructive possession by employee victims, but also with cases addressing constructive possession by nonemployees. As discussed above, those cases require only that there be some type of ‘special relationship’ with the owner of the property sufficient to demonstrate that the victim had authority or responsibility to protect the stolen property on behalf of the owner.” (Scott, supra, 45 Cal.4th at p. 753.)
Scott also explained: “Furthermore, it is reasonable to infer that the Legislature intended that all on-duty employees have constructive possession of the employer’s property during a robbery, because such a rule is consistent with the culpability level of the offender and the harm done by his or her criminal conduct. As a matter of common knowledge and experience, those who commit robberies are likely to regard all employees as potential sources of resistance, and their use of threats and force against those employees is not likely to turn on fine distinctions regarding a particular employee’s actual or implied authority. On-duty employees generally feel an implicit obligation to protect their employer’s property, and their sense of loss and victimization when force is used against them to obtain the employer’s property is unlikely to be affected by their particular responsibilities regarding the property in question.” (Scott, supra, 45 Cal.4th at p. 755.)
Defendant here argues that he could not have robbed Castro because “Castro was an inside employee who was, at the time of the robbery, outside using the bathroom.” Further, defendant asserts that Castro did not know a robbery was occurring and, therefore, could not exercise authority over his employer’s property. He also suggests that Castro was not “on duty” at the time of the robbery. We find defendant’s arguments unpersuasive under the circumstances of this case.
There was no question here that Castro was an employee of Del Taco when the robbery occurred. Aguilera testified that “Castro was running the grill area” on the night of the robbery and had merely taken a bathroom break. Based on this evidence, a reasonable jury could also infer that Castro was “on duty” and had a “special relationship” with his employer. (Scott, supra, 45 Cal.4th at pp. 752-755.)
The relevant question is whether Castro was “present” at the time of the robbery. As noted above, “[t]he generally accepted definition of immediate presence... is that ‘“[a] thing is in the [immediate] presence of a person, in respect to robbery, which is so within his reach, inspection, observation or control, that he could, if not overcome by violence or prevented by fear, retain his possession of it.”’” (People v. Hayes, supra, 52 Cal.3d at pp. 626-627.) “Under this definition, property may be found to be in the victim’s immediate presence ‘even though it is located in another room of the house, or in another building on [the] premises.’” (Id. at p. 627.)
In People v. Gomez, supra, 43 Cal.4th 249, the California Supreme Court held that the immediate presence element may be satisfied by events during the asportation phase as well as during the caption phase of a robbery. (Id. at p. 258.) There, the defendant took property from a restaurant, the owner arrived at the scene, and the defendant left the restaurant and drove away with the property. The owner followed from 100 to 150 feet away, while speaking to a police dispatcher, and the defendant fired two shots at the owner. The court held that this evidence satisfied the requirement that property be taken from a person’s “immediate presence” because the defendant forcibly resisted the owner when fleeing with the property. (Id. at p. 265.) The court stated that “‘property may be found to be in the victim’s immediate presence “even though it is located in another room of the house, or in another building on [the] premises.”’” (Id. at p. 257.) The court in Gomez relied on cases in which evidence had been sufficient to support the “immediate presence” element of robbery when property had been taken from “an area in which the victim[s] could have expected to take effective steps to retain control over [their] property.” (Id. at p. 258.)
In the present matter, a reasonable jury could find that the evidence satisfied the “immediate presence” requirement. At the time defendant and his cohorts entered the restaurant, Castro was using the bathroom. In about a minute and a half to two minutes, after the robbers took the cash register drawer, the men left through the back employee door, carrying the cash drawer. As the men were leaving, Castro was in the back parking lot, screaming at the robbers. Aguilera called for Castro to come back inside. A few seconds later, Castro entered the restaurant through the back door and appeared to be “very angry.” Castro had been punched in the chin as he came out of the bathroom and as the robbers were leaving the restaurant. The evidence here supported a reasonable inference that upon seeing the three men wearing black clothing and bandanas, carrying the cash drawer, and exiting through the employee exit, Castro was presumably aware a robbery was taking place. As Castro acted to recover his employer’s property, one of the cohorts punched Castro in the chin to effectuate the escape. (See, e.g., Estes, supra, 147 Cal.App.3d at p. 25.) The People were not required to establish that Castro was aware of the robbery at the time the cash register drawer was being stolen. (People v. Jackson, supra, 128 Cal.App.4th at pp. 1330-1331 [robbery was established even through the victim did not know his property had been taken until after the defendant fled].) We conclude the evidence was sufficient to support defendant’s conviction of the robbery of Castro.
B. Instructional Error
In the alternative, defendant argues that the trial court erred in failing to instruct the jury sua sponte on the element of “on duty” before the employee can be found to be in constructive possession of his employer’s property. We reject this contention.
At trial, the trial court instructed the jury on constructive possession under CALCRIM No. 1600 as follows: “An employee may be robbed... if property of the store is taken even though he or she does not own the property and was not at the moment in immediate physical control of the property. If the facts show that the employee was a representative of the owner of the property and the employee expressly or implicitly had authority over the property, then that employee may be robbed if property of the store is taken by force or fear.” (Italics added.)
Defendant does not contend that CALCRIM No. 1600 is an incorrect statement of the law. Rather, he asserts the court should have explained that “on duty” is a requirement before an employee can be found in constructive possession of his employer’s property. However, defendant did not object to the giving of CALCRIM No. 1600 or request that it be modified in any manner to discuss Castro’s relationship or duty to Del Taco. Because defendant never requested that the court explain “on duty,” he has waived this issue. (People v. Lewis (2001) 26 Cal.4th 334, 380 [failure to request amplification of instruction that correctly states law waives claimed instructional error on appeal].)
Further, even if there were no waiver, we reject defendant’s contention that the court erred in failing to instruct the jury sua sponte on the meaning of “on duty.” Defendant asserts that in Scott, supra, 45 Cal.4th 743, the California Supreme Court “made it clear that ‘on duty’ is an essential finding in an Estes-type [constructive possession] robbery case.” Defendant’s interpretation of Scott is flawed. Scott did not establish defendant’s narrow reading of the rule of constructive possession in these types of cases. Scott merely affirmed “a long line of California cases that have found evidence sufficient to establish that employees working at a business premises were in constructive possession of the employer’s property during a robbery, based upon their status as employees and without examining whether their particular duties involved access to or control over the property stolen.” (Scott, supra, at p. 752, italics added.) The court also noted the “special relationship” an employee has with his or her employer. (Id. at p. 753.) Hence, contrary to defendant’s claim, Scott made clear that an employee’s status or special relationship with the employer is important in finding the victim had constructive possession of the employer’s property rather than establishing an “on duty” requirement.
Even if we assume for the sake of argument that Scott established an “on duty” requirement, the trial court still had no sua sponte duty to instruct on the element of “on duty.” The trial court here properly instructed the jury on constructive possession as well as on the elements of robbery. In the absence of a request, the trial court has a general duty to instruct the jury sua sponte, including amplifying or clarifying instructions where the term used in an instruction has a “‘particular and restricted meaning’ [citation], or has a technical meaning peculiar to the law or an area of law [citation].” (People v. Roberge (2003) 29 Cal.4th 979, 988; see also People v. Abilez (2007) 41 Cal.4th 472, 517.) A word has a technical, legal meaning when it has a definition that differs from its nonlegal meaning. (People v. Estrada (1995) 11 Cal.4th 568, 574.) The trial court has no duty to give a clarifying instruction, absent a request, if the term in the instruction has a plain and unambiguous meaning that is “‘commonly understood by those familiar with the English language.’” (People v. Kimbrel (1981) 120 Cal.App.3d 869, 872.)
The words “on duty” do not have a technical meaning. In terms of employment, “on duty” has a plain and unambiguous meaning that is commonly understood. In fact, here, the evidence showed that Castro was on duty when defendant and his cohorts robbed him. Castro was simply on a bathroom break when the robbers entered the restaurant. Accordingly, we reject defendant’s claim that the trial court erred in failing to sua sponte instruct the jury on the element of “on duty.”
C. Parole Revocation Fine
At sentencing, the court imposed a $1,500 restitution fine pursuant to section 1202.4, subdivision (b), and a $1,550 suspended parole revocation fine pursuant to section 1202.45, subdivision (b). Defendant contends, and the People aptly concede, that the court erred in imposing $50 more for the suspended parole revocation fine. We agree.
Section 1202.45 provides: “In every case where a person is convicted of a crime and whose sentence includes a period of parole, the court shall at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional parole revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4.” (§ 1202.45; see also People v. Hong (1998) 64 Cal.App.4th 1071, 1084.) Accordingly, the suspended parole revocation fine should be modified to $1,500.
III
DISPOSITION
The judgment is hereby modified by reducing the suspended parole revocation fee to $1,500. The trial court is directed to amend the abstract of judgment and its minute order so as to reflect this modification and to forward certified copies of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: HOLLENHORST Acting P.J. McKINSTER J.