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People v. Allison

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Feb 17, 2012
E052796 (Cal. Ct. App. Feb. 17, 2012)

Opinion

E052796

02-17-2012

THE PEOPLE, Plaintiff and Respondent, v. MICHAEL JERMAINE ALLISON, Defendant and Appellant.

Cynthia M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Michael T. Murphy, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF10005302)


OPINION

APPEAL from the Superior Court of Riverside County. Richard J. Hanscom, Judge. (Retired judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

Cynthia M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Michael T. Murphy, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Michael Jermaine Allison went to D.D.'s Discount Store in Moreno Valley and stuffed a pair of shorts into his pants. He started to walk out of the store without paying for them but was stopped by an undercover loss prevention specialist. Defendant grabbed her arm and pushed her out of the way. He was eventually detained by two loss prevention specialists until police arrived.

Defendant was convicted of second degree robbery (Pen. Code, § 211) and was sentenced to the low term of two years.

All further statutory references are to the Penal Code unless otherwise indicated.

Defendant was also charged with misdemeanor theft (§ 484, subd. (a)), but that charge was dismissed in the interests of justice pursuant to section 1385.

Defendant now claims on appeal as follows:

1. The trial court erred by failing to fully instruct the jury on the law of self-defense as it pertained to his use of force.

2. The trial court imposed an excessive restitution fine pursuant to section 1202.4.

We affirm the judgment in its entirety.

I


FACTUAL BACKGROUND

A. The People's Case-in-Chief

On July 28, 2010, around 11:30 a.m., Ashley Watkins was working as an undercover loss prevention agent at D.D.'s Discount Store (D.D.'s) located in Moreno Valley. She was not in a uniform. On that day, the manager of the store approached her and asked her to follow defendant, who was in the store and whom the manager described as a regular shoplifter. Watkins followed defendant and observed him take a pair of shorts off a hanger and then put them down his pants. Defendant continued walking around the store.

Watkins walked to the front of the store and sat by the exit door. Defendant walked to the front of the store and briefly spoke with another loss prevention officer who was working that day, Makia Peck. Peck was wearing a black uniform and a loss prevention specialist badge.

Watkins opened the exit door of the store for defendant and stepped just outside. Defendant then put one foot outside the exit door. Watkins told defendant at that point he had been caught shoplifting and needed to go back in the store. She identified herself as a loss prevention officer and blocked the door with her arm.

Watkins had defendant lift up his shirt so she could see the merchandise. After lifting it up twice and denying he had any merchandise, he grabbed Watkins's wrist and twisted it. Watkins told defendant he needed to take his hand off of her and "[s]top manhandling" her. Peck observed defendant become hostile with Watkins about having to return inside the store. Peck said that defendant then "went crazy." Defendant told Watkins to move out of his way.

Defendant let go of Watkins's wrist and pushed Watkins into the door. He tried to get away. Watkins went after him and wrapped her arms around him. Watkins told him he needed to calm down and go back into the store. He agreed to walk back into the store.

Defendant started back into the store. They were almost back inside when defendant pushed Watkins again and tried to get back outside. Defendant repeatedly hit Watkins in the ear with his elbow while she had him in a "bear hug." Watkins continued to hold on to him. Defendant eventually sat down.

Peck observed defendant hit Watkins at least two times. Peck then intervened. She grabbed defendant's shirt in order to get him to stop hitting Watkins. Peck only got involved to stop him from hurting Watkins. At some point, Peck grabbed defendant's shirt, and he somehow slid out of it. He again tried to run away. Peck grabbed at a second shirt he had on, and it ripped. Peck turned defendant around by his shirt. At that point, defendant gave up. Peck indicated that these events transpired right at the door to the store. Watkins continued to hold defendant in a bear hug even though he was hitting her.

Watkins had a one-half inch scar where defendant grabbed her wrist. She had some redness on her ear and eye from defendant hitting her with his elbow. She suffered a minor concussion. Peck's knee was somehow injured during the incident. She had to have surgery on her knee, but it was not clear whether it was due to the incident.

Watkins worked for an independent security service and did not have a supervisor in the store. She did not show defendant a badge or any other type of identification to establish that she was a loss prevention officer when she first tried to stop him. Peck worked directly for D.D.'s and had been trained not to apprehend suspects.

Riverside County Sheriff's Deputy Robert Mills responded to DD's on that day. Defendant was at the store when he arrived. Deputy Mills observed Watkins had a scratch on her arm, and her ear was red and swollen.

Deputy Mills walked defendant back to his patrol car. While they were walking, defendant told Deputy Mills, "I'm sorry. I messed up. I stole from the store. I was struggling." Defendant also told Deputy Mills that he did not mean to "hurt the girl." Defendant was taken to the station and interviewed.

Defendant told Deputy Mills that he had been on his way to Lake Perris and needed some shorts. He was unemployed and had no money, so he decided to go to D.D.'s to steal some. Defendant admitted that he took the shorts, and on his way out of the store he was stopped by Watkins. He indicated that Watkins told him to lift up his shirt but that he had the shorts secreted in his pants so that she could not see them. Watkins told defendant to go back into the store. He admitted that he pushed past Watkins. He told Deputy Mills that he did not recall that he elbowed or punched Watkins, but he admitted that it was his fault that Watkins got hurt.

The jury was shown a videotape of surveillance taken at the time of the incident.

B. Defense

Defendant recalled Deputy Mills as a defense witness. The entire videotape of defendant's interview was played for the jury. Defendant told Deputy Mills he knew what he did was wrong. He said that he acted stupid in trying to leave the store but did not "punch, push, or anything like that." Defendant was scared because he not been in trouble for 11 years. He admitted that he planned to get by Watkins by pushing her out of the way. He stopped struggling when Peck grabbed his shirt. He did not recall forcefully grabbing Watkins. He did not recall hitting Watkins and said that he does not hit females.

II


SELF DEFENSE INSTRUCTION

Defendant contends that the trial court erred by failing to fully instruct the jury on the law of self-defense in that they were not told that he could defend himself against imminent injury rather than waiting until Watkins and Peck used force against him.

A. Additional Factual Background

The jury instructions were discussed in chambers. The trial court noted for the record that there were no requests for additional instructions. It also stated for the record that defendant had requested that self-defense be incorporated into the robbery instruction. It noted that defendant had cited cases in which a person has a right to resist a police officer in self-defense. It felt the issue was not whether defendant was trying to defend himself, but the purpose of the force that he used. If the force was used to effectuate the robbery and take the property, it would be a robbery. If the force was for a different purpose, then it was not a robbery.

The trial court indicated that it was going to modify CALCRIM No. 1600. The instruction would read that in order to find defendant guilty of robbery, the jury had to find that "[t]he defendant used force or fear to take the property or to prevent the person from resisting. [¶] . . . [¶] If the only force used by the defendant was to defend himself, that would not suffice." The trial court noted, "The Defense counsel agreed that that would sufficiently state the principle. And I am going to include that clause." The People objected that there was no evidence that defendant used force in self-defense. The jury was instructed as indicated above. The jury was also instructed that if it found defendant did not use force or fear, it could find defendant guilty of the lesser offense of petty theft.

During closing argument, the People argued that the only difference between petty theft and robbery was the use of force or fear and admitted that this element was the issue in the case. They argued the fact that defendant grabbed Watkins's wrist and scratched her, pushed her hard out of the way, and hit her in the ear causing a mild concussion showed that he used force to get out of the store.

Defense counsel conceded that defendant took the shorts, and the only issue was whether he used force. Defendant argued that Peck and Watkins were the aggressors and that the jury was to consider whether defendant used force in order to defend himself rather than to take the property.

During deliberations, the jury sent out three notes expressing that they were deadlocked. At some point, the jury was brought into court after indicating they could not reach a verdict. The foreman advised the trial court that the jury might be able to reach a verdict but still had some questions. The trial court informed the foreman to submit any questions in writing.

The jury returned to the deliberation room and wrote the following question: "How does the inadvertent contact be viewed when it comes to the law in regards to robbery vs the[ft]." The trial court responded, "Force is physical force used to take the property. While the force must be used to take the property it is not required that the force was intended to injure anyone."

Another question was sent from the jury: "Do[] his efforts to leave constitute force[?] [¶] Definition of self defense." In response, the jury was given a written instruction as follows: "A robbery occurs when the defendant uses force or fear in resisting attempts by store employees or security employees to regain the property and apprehend the defendant. [¶] An employee may detain or arrest a person if they reasonably believe that person took the property of the store without paying for it. They may use reasonable force in detaining and arresting someone and may use reasonable force to retrieve the property taken. [¶] The defendant may not resist or defend himself from the use of reasonable force but if those apprehending him use unreasonable force in retaking the property or apprehending the defendant then he may use reasonable force to defend himself." The parties agreed that this was an appropriate response. The jury reached a verdict about an hour later.

B. Analysis

Defendant contends that, despite the instructions and answers to questions from the jury, the trial court erred by failing to instruct the jury that defendant did not need to wait until unreasonable force was actually used against him. It should have additionally instructed the jury that he had the right to act if he reasonably believed that he was in imminent danger of suffering bodily injury rather than wait until force was used against him.

A trial court has the duty to instruct on the general principles of law relevant to the issues presented by the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 154; People v. Garvin (2003) 110 Cal.App.4th 484, 488.) 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.)

Reasoning that robbery is a continuing offense that lasts from the time of the original taking until the defendant reaches a place of relative safety, the court in People v. Estes (1983) 147 Cal.App.3d 23, 28 held that the required element of force or fear may be established when a defendant uses force to resist the efforts of a merchant to retake his property and to facilitate his escape. It held, "Whether defendant used force to gain original possession of the property or to resist attempts to retake the stolen property," such acts of force support a conviction of robbery. (Ibid.)

Section 490.5, subdivision (f) provides for a merchant's right to detain an individual suspected of shoplifting: "A merchant may detain a person for a reasonable time for the purpose of conducting an investigation in a reasonable manner whenever the merchant has probable cause to believe the person to be detained is attempting to unlawfully take or has unlawfully taken merchandise from the merchant's premises." (§ 490.5, subd. (f)(1).) "In making the detention a merchant . . . may use a reasonable amount of nondeadly force necessary to protect himself or herself and to prevent escape of the person detained or the loss of tangible or intangible property." (Id., subd. (f)(2).)

Defendant recognizes that he did not object to the instructions and responses given by the trial court in the lower court. He contends that no objection was necessary because the trial court had a duty to correctly instruct the jury on the law, and his substantial rights were affected by the instructions and responses. The People respond that the jury was appropriately instructed and that defendant's failure to object constitutes waiver of the claim. We need not resolve the waiver issue, as we conclude the instructions given were proper, and no instruction on imminent bodily injury was necessary here.

In People v. Adams (2009) 176 Cal.App.4th 946, the defendant fell asleep, ran into another car, and then drove off. Although the testimony differed, the evidence supported that the victims followed defendant to a park, where defendant stopped, got out of his vehicle, and ran away. The victims chased after him. A scuffle ensued, and when one of the victims appeared to be ready to punch defendant, defendant punched him first, and the victim fell to the ground. (Id. at pp. 949-950.) Defendant was convicted of hit and run and battery. (Id. at p. 948.)

The court in Adams addressed the rights to make a citizen arrest and the connection with self-defense. It held, " . . . 'When a peace officer or a private citizen employs reasonable force to make an arrest, the arrestee is obliged not to resist, and has no right of self defense against such force. [Citations.] On the other hand, the use of unreasonable or excessive force to make an arrest constitutes a public offense. [Citation.] And all persons have a right to prevent injury to themselves by resisting a public offense [citation]." (People v. Adams, supra, 176 Cal.App.4th at p. 952.) It then addressed, in the context of a citizen arrest, whether the perpetrator must wait until excessive force is used before defending himself. The court concluded that the defendant did not have to wait until force was applied. (Id. at p. 953.) As such, a defendant may defend himself against excessive force if he reasonably believes he is "'in imminent danger of suffering bodily injury.'" (Ibid.)

It is clear, if supported by the evidence, that an instruction to the jury that defendant could defend himself against imminent bodily injury is a correct statement of the law. However, the evidence erhe established that defendant had the intent to steal the shorts from D.D's when he entered the store and that he used force to exit the store. Defendant was stopped by Watkins and given an opportunity to give up the shorts. Rather than just return the merchandise when he was given the opportunity, he grabbed her wrist and pushed her out of the way in order to exit the store. At this point, he had effectuated the robbery. While the instruction suggested by defendant may have been appropriate in some cases, there simply is no evidence that defendant was facing imminent injury that would warrant such an instruction in the instant case.

Defendant's statements to Deputy Mills do not warrant the suggested instruction. Defendant points to the fact that he told Deputy Mills that when he was trying to get out the exit door, Watkins blocked his way, and he did something "stupid." When asked what he did, defendant responded, "I mean, I didn't like punch, push or anything like that. I was just trying to open the other door. She was keeping the door closed. And the other lady came from behind me. When she grabbed me, that was when I reacted. . . . It wasn't like I was going to punch her or anything like that. It was just like, I was scared. I'm not going to lie. I was, I was scared. I haven't been in trouble in over 11 years, sir. When I was younger, I did a lot of stupid things and I tried to stop it. Well, I have stopped it. And just today, today it was just, I don't know, it was just stupid. I did something stupid."

Nothing in this statement supports that he used force because he faced imminent injury. Rather, this supports that he was trying to get out of the door and was not allowed to exit. Defendant did not state that Watkins was about to hit him so he grabbed her wrist and pushed her aside. Defendant further stated that he would have given back the merchandise but that Peck rushed at him. He claimed this was the point where Watkins was hurt. Again, this evidence does not support that he used force only to avoid imminent injury. He made no statement that he thought he was going to get hit, so he used force. He actually denied using any force against Watkins and Peck.

Moreover, even though the jury asked for clarification on self-defense, defendant merely speculates that they were considering whether defendant thought he acted in response to what he reasonably believed to be imminent force, rather than using force to effectuate the robbery. The jury was properly instructed based on the evidence presented at trial, and they appropriately reached their verdict.

We have reviewed the surveillance video. Although it is difficult to see what occurred once defendant walked out the door, it does show that he walked to the door and stepped outside. It also is clear from the surveillance video that Watkins was merely standing at the door holding it open. It was then that a scuffle occurred. It is clear from the tape that Peck tried to pull defendant back into the store, but defendant pulled away, trying to get out of the store. Nothing in the surveillance video supports that defendant used force because he was facing imminent force from Watkins and Peck.

The evidence demonstrates that defendant used force so that he could leave the store with the property. The evidence does not indicate that defendant was trying to defend himself against an assault that would warrant an instruction on imminent force. The jury was properly instructed.

III


RESTITUTION FINE

Defendant contends that the trial court erred by imposing a $1,000 restitution fine pursuant to section 1202.4 rather than imposing the minimum fine of $200 or $400 based on the calculation pursuant to that section.

During sentencing, defendant objected to the aggravating and mitigating factors listed in the probation report. The trial court noted in sentencing defendant that he had blatantly taken the shorts and felt he was entitled to take them. It believed that defendant used force to get out of the store. Further, it felt that probation was not proper in this case because defendant had prior felony convictions and had several infractions that still needed to be resolved. It imposed the low term of two years (since this was his first offense requiring a prison sentence), then imposed the $1,000 restitution fine under section 1202.4, subdivision (b) without objection by defendant.

The People contend that defendant has waived his claim by failing to object to the restitution fine in the lower court. Defendant (anticipating that argument) contended in the opening brief that if he is found to have waived the issue, he received ineffective assistance of counsel as there could be no reasonable, tactical decision for failing to object the imposition of the $1,000 fine. Since the issue is easily resolved on the merits, we will address defendant's claim without engaging in an extensive discussion regarding whether defendant waived the claim.

"In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record. [¶] (1) The restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense, but shall not be less than two hundred dollars ($200), and not more than ten thousand dollars ($10,000), if the person is convicted of a felony. . . . [¶] (2) In setting a felony restitution fine, the court may determine the amount of the fine as the product of two hundred dollars ($200) multiplied by the number of years of imprisonment the defendant is ordered to serve, multiplied by the number of felony counts of which the defendant is convicted." (Former § 1202.4, subd. (b).)

After defendant's crime but before his sentencing, amendments were made to section 1202.4, but those amendments do not apply to defendant.
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"In setting the amount of the fine pursuant to subdivision (b) in excess of the two hundred-dollar ($200) . . . minimum, the court shall consider any relevant factors, including, but not limited to, the defendant's inability to pay, the seriousness and gravity of the offense and the circumstances of its commission, any economic gain derived by the defendant as a result of the crime, the extent to which any other person suffered any losses as a result of the crime, and the number of victims involved in the crime. Those losses may include pecuniary losses to the victim or his or her dependents as well as intangible losses, such as psychological harm caused by the crime. Consideration of a defendant's inability to pay may include his or her future earning capacity. A defendant shall bear the burden of demonstrating his or her inability to pay. Express findings by the court as to the factors bearing on the amount of the fine shall not be required." (§ 1202.4, subd. (d).)

As stated, "„[e]xpress findings by the court as to the factors bearing on the amount of the fine shall not be required. A separate hearing for the fine shall not be required.' [Citation.]" (People v. Dickerson (2004) 122 Cal.App.4th 1374, 1379-1380.)

Defendants bear a heavy burden when attempting to show an abuse of discretion. (People v. Aubrey (1998) 65 Cal.App.4th 279, 282.) "„[T]he trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.' [Citation.]" (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.) Furthermore, we presume the trial court was aware of and followed the law. (In re Julian R. (2009) 47 Cal.4th 487, 498-499.)

Here, defendant cannot show that the trial court abused its discretion in imposing the $1,000 restitution fine. The trial court is presumed to have been aware of and to have followed section 1202.4. Based on the comments by the trial court, it felt that defendant boldly committed the instant crime, used force against Peck and Watkins to effectuate the crime, and had a long record of felonies and infractions. It only imposed the low term because it was the first prison-eligible offense committed by defendant. Relevant factors existed that warranted the restitution fine, and absent any indication to the contrary, we conclude that the trial court did not abuse its discretion in assessing the $1,000 fine.

V


DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

J.

We concur:

RAMIREZ

P.J.

MILLER

J.


Summaries of

People v. Allison

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Feb 17, 2012
E052796 (Cal. Ct. App. Feb. 17, 2012)
Case details for

People v. Allison

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. MICHAEL JERMAINE ALLISON…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

Date published: Feb 17, 2012

Citations

E052796 (Cal. Ct. App. Feb. 17, 2012)