Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Ct. No. VA097126. Michael L. Schuur, Judge.
Kelly M. Cronin, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Analee J. Brodie, Deputy Attorneys General, for Plaintiff and Respondent.
RUBIN, J.
Defendant and appellant Vanessa Aguirre contends (1) there was insufficient evidence of force or fear to support her conviction of second degree robbery and (2) the trial court did not sufficiently respond to a jury question. We affirm.
Defendant was charged with second degree robbery of Chasin Mitchell. She was convicted by a jury and sentenced to five years formal probation. She filed a timely notice of appeal.
FACTUAL AND PROCEDURAL BACKGROUND
At trial, robbery victim Chasin Mitchell and defendant testified to conflicting versions of events. We recount the evidence in accordance with the usual rules on appeal. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) Mitchell testified that on September 6, 2006, he and Marcos Sanchez were working as Loss Prevention Agents at a Ralphs supermarket in Lakewood; both were dressed in plain clothes. About 4:30 p.m. that day, Mitchell saw defendant enter the store carrying her two-year-old child and accompanied by her boyfriend. Mitchell observed defendant take a can of hairspray from the shelf and put it into her purse; as she did so, the boyfriend glanced at defendant and then looked away. A few minutes later, the threesome left the store after paying for a few items, but not the hairspray. Mitchell informed Sanchez that someone had stolen something and instructed Sanchez to go outside and wait for Mitchell.
Outside the store, Mitchell confronted defendant and identified himself as a loss prevention agent. Defendant admitted taking the hairspray. In accordance with store policy, Mitchell instructed defendant to return to the store. Defendant said she first needed to give something to her boyfriend, but as she took a step toward the boyfriend, Mitchell blocked her and reiterated the instruction that defendant return to the store. When Mitchell asked the boyfriend to also come back inside the store, the boyfriend became belligerent and refused to do so. Mitchell told the boyfriend, “Okay,” and then resumed his efforts to get defendant to do so. When defendant said she first wanted to give the child to her boyfriend, who was standing next to a car about 20 feet away, Mitchell refused to allow her to do so because he was concerned that defendant could easily flee in the car; instead, Mitchell suggested that the boyfriend come over to defendant and take the child. This suggestion went unheeded and the debate over defendant returning to the store escalated into a battle of expletives.
Meanwhile, in his continued efforts to block defendant from getting to the car, Mitchell had taken several steps backward, stopping when his back was against the car. When the boyfriend joined into the war of words between Mitchell and defendant, Mitchell turned to him and admonished him to mind his own business. As Mitchell turned back toward defendant, the boyfriend hit Mitchell in the face with a closed fist. Mitchell reacted by grabbing the boyfriend by the neck; Mitchell “slammed him on the hood of [his] car.” Now concerned for his own safety, Mitchell struggled to handcuff the boyfriend while defendant repeatedly hit Mitchell in the head with her purse – which still contained the hairspray. When the boyfriend reached into the car to grab something, Mitchell put him in a chokehold and used him as a human shield against defendant’s blows. Although this caused defendant to stop hitting Mitchell with her purse, the boyfriend continued to struggle. When Mitchell threw the boyfriend onto a nearby car, defendant took the hairspray from her purse and threw it at Mitchell, hitting him in the back. And as Mitchell continued wrestling with the boyfriend, defendant hit Mitchell in the face, throat, and back with her fists. To stop her, Mitchell kicked her in the stomach. Defendant then pulled a cell phone out of the car and told someone “to come down and beat us up.”
Although Sanchez had been present during the altercation, he gave no assistance. But after “the produce guy” helped Mitchell subdue the boyfriend, Sanchez handcuffed him. As Mitchell walked the boyfriend back into the store, defendant walked behind them holding the child. Near the door, the boyfriend tried to break free by kicking Mitchell in the shin and elbowing him in the stomach, but Mitchell pulled him down onto the ground. While Mitchell was on the ground with the boyfriend, defendant threw hand baskets at Mitchell’s head. As a result of his altercation with defendant and the boyfriend, Mitchell suffered a number of cuts and bruises, which were depicted in photographs shown to the jury.
Defendant told the arresting deputy sheriff that she had gone to the store to buy juice for her baby, and while in the store she stole a can of hairspray. She had been fighting to get away from the loss prevention officer.
At trial, defendant admitted taking the hairspray without paying for it. At the time she did it, she did not know whether her boyfriend knew what she had done. When confronted by Mitchell and Sanchez outside the store, defendant took the hairspray out of her purse and handed it to Sanchez. Meanwhile, her boyfriend was walking with the bags of purchased groceries to their car, which was parked near the store entrance. Mitchell denied defendant’s request that she be allowed to give her child to her boyfriend before she went back into the store, and instead insisted on searching the boyfriend. Reluctantly, the boyfriend allowed himself to be searched. But the boyfriend was mad and argued with Mitchell. Eventually, Mitchell grabbed the boyfriend and slammed him on the car; Sanchez tried to grab the boyfriend, but did not hit him. Defendant pleaded with them to stop and when they would not, she hit Mitchell. When Mitchell put the boyfriend in a chokehold, defendant tried to intervene but Mitchell kicked her. Seeing the can of hairspray on the ground – she assumed Sanchez must have dropped it – defendant picked it up and threw it at Mitchell. After Mitchell handcuffed the boyfriend, defendant was following behind them as they walked into the store – still arguing and swearing at one another. Suddenly, Mitchell threw the boyfriend onto the ground; the boyfriend cut his head and was bleeding. When defendant saw the blood, she grabbed three baskets that were sitting nearby and threw them at Mitchell. The boyfriend was taken away by ambulance.
DISCUSSION
1. Substantial Evidence Supported the Judgment
Defendant contends there was insufficient evidence of two elements of the crime of robbery: (1) use of force or fear to take property and (2) intent to permanently deprive the owner of the property. We disagree.
The standard of review for sufficiency of the evidence is well known: we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence, which is reasonable, credible, and of solid value (i.e., substantial) from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Cole (2004) 33 Cal.4th 1158, 1212.) We do not reweigh the evidence or determine credibility. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Conflicts in the evidence justify reversal only if it is physically impossible that the evidence believed by the trier of fact is true, or the falsity of that evidence is apparent without resorting to inferences or deductions. (People v. Meals (1975) 48 Cal.App.3d 215, 221-222; see also People v. Green (1985) 166 Cal.App.3d 514, 517.)
“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.” (Pen. Code, § 211.) It is now well settled that a store employee may be the victim of robbery even though he does not own the property taken and is not in charge or in immediate control of the property at the time of the crime. (People v. Estes (1983) 147 Cal.App.3d 23, 26 (Estes).) In Estes, a store security guard confronted the defendant in the parking lot after seeing him shoplift some clothing; the guard retreated after the defendant swung a knife toward him and threatened to kill him. The appellate court found the defendant’s forcible resistance to the security guard’s efforts to retake the property sufficient to satisfy the element of force or fear. (Id. at p. 27.) The court explained: “The crime of robbery is a continuing offense that begins from the time of the original taking until the robber reaches a place of relative safety. It is sufficient to support the conviction that appellant used force to prevent the guard from retaking the property and to facilitate his escape. The crime is not divisible into a series of separate acts. Defendant’s guilt is not to be weighed at each step of the robbery as it unfolds. The events constituting the crime of robbery, although they may extend over large distances and take some time to complete, are linked by a single-mindedness of purpose. [Citation.] Whether defendant used force to gain original possession of the property or to resist attempts to retake the stolen property, force was applied against the guard in furtherance of the robbery and can properly be used to sustain the conviction.” (Id. at p. 28; see also Miller v. Superior Court (2004) 115 Cal.App.4th 216, 222 [“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”]; People v. Pham (1993) 15 Cal.App.4th 61, 64-67 [robbery where defendant dropped property before using force against victim; asportation and fear elements met.]).)
All further undesignated statutory references are to the Penal Code.
As defendant notes, two recent cases, which followed Estes are currently pending review in the California Supreme Court: People v. Gomez (2005) 134 Cal.App.4th 1241, review granted March 22, 2006, S140612; and People v. Johnson (2006) 141 Cal.App.4th 1161, review granted November 15, 2006, S146207.
Here, as in Estes, there was substantial evidence from which the trier of fact could reasonably infer that defendant took the hairspray with the intent to permanently deprive Ralphs of possession of it and that she forcibly resisted Mitchell’s efforts to retake the stolen hairspray. In Mitchell’s version of events, although defendant readily admitted stealing the hairspray, she did not immediately hand it over. On the contrary, the hairspray was still in defendant’s purse as Mitchell blocked her efforts to get to her boyfriend and their car; and it was still in her purse when she hit Mitchell with the purse. From this evidence, a reasonable juror could infer that defendant was forcibly resisting Mitchell’s efforts to retake the property until she could reach a place of safety – the car and eventual escape. Thus, the evidence was sufficient to establish the force or fear and intent elements of robbery. That defendant espouses a different theory – that she assaulted Mitchell in defense of her boyfriend and not to retain the hairspray until she reached a place of safety – does not compel a contrary result. The jury did not credit defendant’s theory and there was substantial evidence to support the jury’s conclusion.
2. The Trial Court Correctly Instructed on the Elements of Force or Fear
Defendant contends her conviction must be reversed because the trial court’s response to a question from the jury was inadequate. We disagree.
During deliberations, the jury submitted the following questions: “(1) Define the terms force and fear. [¶] (2) Is force & fear the act of walking away from the loss prevention agent??” The trial court responded: “Please refer to Instruction 1600 for definition of fear. The term force has no technical meaning. Please refer to paragraph 4 of Instruction 200.”
CALCRIM No. 1600, which sets forth the elements of robbery, defines “fear” as “fear of injury to the person himself.” CALCRIM No. 1600 does not define “force.” As the use note to CALCRIM No. 1600 explains, this is because the definition of force “in the context of robbery is commonly understood. (See People v. Mungia (1991) 234 Cal.App.3d 1703, 1709 [‘force is a factual question to be determined by the jury using its own common sense’].)” Accordingly, CALCRIM No. 200 instructs: “Words and phrases not specifically defined in these instructions are to be applied using their ordinary, everyday meanings.”
In People v. Mungia, supra, 234 Cal.App.3d 1703, the issue was whether the trial court erred in admitting evidence that the robbery victim was eight months pregnant at the time her purse was snatched. Concluding that the challenged evidence was relevant to the force or fear element of robbery, the court explained that “force” is a relative concept, which allowed the jury to consider the respective physical characteristics and capabilities of the victim and perpetrator. (Id. at pp. 1708-1709.)
In People v. Beardslee (1991) 53 Cal.3d 68, 97, our Supreme Court stated: “The court has the primary duty to help the jury understand the legal principles it is asked to apply. [Citation.] This does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury’s request for information. [Citation.] Indeed, comments diverging from the standard are often risky. [Citation.] The trial court was understandably reluctant to strike out on its own. But a court must do more than figuratively throw up its hands and tell the jury it cannot help. It must at least consider how it can best aid the jury. It should decide as to each jury question whether further explanation is desirable, or whether it should merely reiterate the instructions already given.” (See also People v. Moore (1996) 44 Cal.App.4th 1323, 1331 [by advising jury to reread a given instruction on the definition of cohabitation, which was full and complete for purposes of the facts before it, the trial court fulfilled its duty under section 1138; it erred, however, by giving an additional explanation of the term].)
We review for abuse of discretion a trial court’s decision to instruct, or not to instruct, in its exercise of its supervision over a deliberating jury. (People v. Waidla (2000) 22 Cal.4th 690, 745-746.)
Here, as defendant concedes, the instructions given correctly stated the law. In other words, “fear” was correctly defined and, inasmuch as “force” was not defined, the jury was correctly instructed to apply the ordinary, everyday meaning to that term. To have given a more specific definition of force would have been improper. Under these circumstances, the trial court fulfilled its duty under section 1138 and did not abuse its discretion by directing the jury to reread the relevant instructions.
DISPOSITION
The judgment is affirmed.
WE CONCUR: COOPER, P. J. EGERTON, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.