Opinion
B229723
11-28-2011
THE PEOPLE, Plaintiff and Respondent, v. YAJAIRA ELIZABETH ALFARO, Defendant and Appellant.
Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Mary Sanchez and Robert S. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. GA074038)
APPEAL from a judgment of the Superior Court of Los Angeles County, Teri Schwartz, Judge. Affirmed.
Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Mary Sanchez and Robert S. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
Yajaira Elizabeth Alfaro appeals the judgment entered following her conviction by jury of robbery, assault with force likely to produce great bodily injury and grand theft. (Pen. Code, §§ 211, 245, subd. (a)(1), 487, subd. (a).) With respect to the convictions of robbery and assault, the jury found Alfaro personally inflicted great bodily injury within the meaning of section 12022.7, subdivision (a).
Subsequent unspecified statutory references are to the Penal Code.
Alfaro contends the conviction of grand theft must be reversed because it is necessarily included within robbery. We reject this claim and affirm the judgment.
FACTS AND PROCEDURAL BACKGROUND
1. The prosecution's evidence.
On July 22, 2008, at approximately 3:00 p.m., Alfaro, Karla Benavides, and Sandy Ramirez entered Amy Kenney's flower shop in Monterey Park, California, and said they wished to buy flowers. While Kenney spoke with Alfaro and Benavides in the back of the shop, Ramirez took a purse that belonged to Kenny's sister, Heidi Nguyen, from under the cash register. The purse contained $3,000 in shop receipts. Nguyen saw Ramirez take the purse and run to a car driven by Alfaro's boyfriend, Erik Saldana. Nguyen ran after Ramirez and yelled to Kenney, "She took my purse." Nguyen hit the trunk of the car as it drove from the scene and yelled, "My purse, my purse."
Immediately after Kenney heard Nguyen say, "they took my purse," Alfaro and Benavides ran. Kenney knew something was not right and ran after Alfaro. Kenney yelled, "stop, stop" and, "help. Robbery, robbery."
Off duty Monterey Park fireman Ricky Burroughs saw two females being chased by Kenney, who was yelling "thief." Burroughs recognized Kenney as the owner of a local flower shop. Burroughs drove his vehicle into a driveway to impede the progress of the females. Burroughs identified himself as a firefighter, pursued Benavides on foot and detained her across the street. From there, he saw Kenney struggling to take Alfaro's purse. Burroughs saw Alfaro standing over Kenney, pulling on a purse and kicking at Kenney in the upper torso. A vehicle arrived at the scene. The male driver punched Kenney multiple times and helped Alfaro pull Kenney down the street. Alfaro gained custody of the purse and ran to the vehicle. The driver "stomp[ed] down" on Kenny one last time, then entered the car and drove away.
Kenney testified she caught Alfaro and held her against a fence. When Benavides returned in the car, Alfaro and Benavides punched Kenney and yelled, "Let her go," but Kenney could not release Alfaro because her hand was entangled in Alfaro's shirt. The driver of the car kicked Kenney. As a result of the attack, Kenney suffered a fractured rib.
2. Defense evidence.
Alfaro testified in her own defense. On the day in question, Alfaro, Saldana and Benavides, agreed to give Ramirez a ride. They got lost on the freeway and stopped at Kenney's shop to purchase flowers for a sick friend. Alfaro and Benavides spoke with Kenney but decided not to buy anything. Alfaro saw Kenney's sister exit the store and knew "something was up" by the way she was walking. Alfaro and Benevides followed Kenney's sister outside and saw her banging on the window of their car. Alfaro claimed she repeatedly asked Kenney what was going on but Kenney did not respond. When the car drove away, Kenney became furious and approached Alfaro with her right hand raised in a fist. Kenney grabbed Alfaro and held her against a fence. Alfaro denied she intended to steal anything and denied kicking or hitting Kenney. However, Ramirez struck Kenney and Saldana "stomped" on Kenney's leg. After they left the scene, Alfaro noticed Ramirez had a purse she previously did not have. Alfaro ordered Ramirez out of the car. The next day, Alfaro turned herself in to the Monterey Park police.
3. Verdicts.
With respect to Kenney, the jury convicted Alfaro of robbery and assault by means of force likely to produce great bodily injury and found she personally inflicted great bodily injury in the commission of both offenses. (§§ 211, §§ 245, subd. (a)(1), 12022.7, subd. (a).) With respect to Nguyen, the jury convicted Alfaro of grand theft. (§ 487, subd. (a).)
DISCUSSION
Alfaro contends she cannot be convicted of grand theft and robbery because robbery necessarily includes grand theft. (People v. Ortega (1998) 19 Cal.4th 686, 698-699; People v. Cole (1982) 31 Cal.3d. 568, 582; People v. Estes (1983) 147 Cal.App.3d 23, 29.) Alfaro seeks to apply the rule that, when a defendant is convicted of two offenses arising from the same act, one of which is necessarily included within the other, the lesser conviction must be reversed. (People v. Pearson (1986) 42 Cal.3d 351, 354-355.)
The People argue that, although only one item was taken, the theft and the robbery occurred at different times and were not part of the same conduct. They assert the theft was based on the taking of Nguyen's purse and the robbery was based on the force used to effectuate Alfaro's escape from Kenney. They conclude that, because the convictions were based on separate acts, conviction of grand theft and robbery was permissible.
Alfaro responds that, if the People's argument had merit, the theft convictions in Cole and Estes would not have been reversed because, in both of those cases, property initially was taken by stealth but the defendants used force in an attempt to escape. (People v. Cole, supra, 31 Cal.3d at pp. 570-571; People v. Estes, supra, 147 Cal.App.3d at p. 26.) Alfaro concludes that, because robbery continues until the perpetrator reaches "a place of temporary safety" (People v. Cooper (1991) 53 Cal.3d 1158, 1170), the theft Alfaro aided and abetted necessarily was included within the robbery she committed when she applied force to Kenney to effectuate her escape. Thus, the taking of the purse and the force used to escape were part of a continuous course of conduct.
We agree the temporal distinction raised by the People is not determinative. However, Alfaro properly was convicted of both robbery and grand theft in this case because the crimes had separate victims. Cole and Estes are distinguishable on this basis.
In Cole, a single victim was robbed. Cole held the defendant could not be convicted of robbery and theft based on the taking of the same property from a single victim. In Estes, the defendant took property from a Sears store and resisted a security guard who tried to detain him in the parking lot. The security guard enlisted the aid of the security manager, again confronted the defendant and eventually succeeded in detaining the defendant. (People v. Estes, supra, 147 Cal.App.3d at p. 26.) Although the defendant in Estes applied force to the security guard and a security manager, the defendant was convicted of robbing the security guard and theft of property from the store. Estes held: "The theft of the property from [the security guard] was also a theft from the Sears store since [the security guard], as Sears' agent, was in constructive possession of the merchandise. Therefore, the theft from the store was a lesser included offense to the robbery of [the security guard]." (Id. at p. 29.) Thus, in Estes, there was a single victim, the Sears store through its agent, the security guard.
Here, Alfaro was convicted of robbery of Kenney and grand theft with respect to Nugyen. Had force been applied to Nguyen, Alfaro properly would have been convicted of two counts of robbery. (See People v. Scott (2009) 45 Cal.4th 743, 754-757.) Under these circumstances, Alfaro properly may be convicted of robbery, a crime of violence, with respect to Kenney and grand theft with respect to Nguyen.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KLEIN, P. J. We concur:
KITCHING, J.
ALDRICH, J.