Opinion
G053368
01-30-2018
THE PEOPLE, Plaintiff and Respondent, v. PORFIRIO MOISES ANDALCO, Defendant and Appellant.
Heather L. Beugen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton, Seth Friedman, and Sabrina Y. Lane-Erwin, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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). The opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14CF4035) OPINION Appeal from a judgment of the Superior Court of Orange County, W. Michael Hayes, Judge. Affirmed. Heather L. Beugen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton, Seth Friedman, and Sabrina Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury convicted Porfirio Moises Andalco of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c); all statutory citations are to the Penal Code), dissuading a witness from reporting a crime (§ 136.1, subd. (b)(1)), and misdemeanor resisting arrest (§ 148, subd. (a)(1)). He argues the evidence was insufficient to support his robbery conviction because his use of force was not contemporaneous with the taking of the property. He asserts People v. Estes (1983) 147 Cal.App.3d 23 (Estes), which held a theft may become a robbery where force is used after the taking to retain or escape with the property (id. at p. 28), was wrongly decided. He also contends he reached a place of temporary safety before he employed force. For the reasons expressed below, we affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
D.R. worked as a loss prevention officer for a Santa Ana department store. On the afternoon of November 21, 2014, she saw Andalco and a companion in the men's department. Andalco took a black-and-brown reversible belt off a rack, removed the tags, and placed the belt around his waist. Andalco's companion did the same with a plain black belt.
D.R. followed the men around the store as they put various items of merchandise in a shopping cart. The men met up with two other individuals in the shoe department. The second pair of men also pushed around a cart and filled it with merchandise. D.R. called the police and provided a description of the four men.
D.R. went outside and saw Andalco and his companion exit the store without paying. She identified herself as a loss prevention officer, and told Andalco's companion, who was pushing the cart behind Andalco, to stop and step back into the store. She did not tell Andalco to stop, and he walked out of her sight toward the other side of the parking lot. Andalco's companion let go of the cart and began walking away.
D.R. followed Andalco's companion at a safe distance and called 911. He walked toward a Chevy Tahoe about 50 feet away. D.R. provided the license plate number to the dispatch officer. While relaying the plate number, Andalco ran toward her, yelling "Give me the phone" in Spanish. He punched her in the right cheek and tried to get the phone away from her. She screamed and dropped the phone. The men got into the Tahoe and drove away.
Police officers received the dispatch and stopped the Tahoe after a brief pursuit. Five men, including Andalco, jumped out of the SUV and ran in different directions. Andalco ignored a uniformed officer's repeated commands to stop. The officers ultimately detained and arrested Andalco. D.R. identified him as the man who punched her, and the belt he stole.
Following trial in January 2016, the jury convicted Andalco as noted above. In February 2016, the court suspended imposition of sentence and placed Andalco on probation on various terms and conditions.
II
DISCUSSION
Substantial Evidence of Robbery
Andalco contends the evidence was insufficient to support his robbery conviction. He first asserts Estes, supra, 147 Cal.App.3d 23, which held a theft may become a robbery where force is used after the taking to retain or escape with the property (id. at p. 28), was wrongly decided. The California Supreme Court has approved the rational of the Estes decision in People v. Gomez (2008) 43 Cal.4th 249, 260, People v. Cooper (1991) 53 Cal.3d 1158, 1165, fn. 8, and other decisions. Consequently, we are bound by our Supreme Court's opinions incorporating the rule recognized in Estes into the law of robbery. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456 [Supreme Court authority binding on inferior courts].) Accordingly, we decline to further address Andalco's claim California's robbery statute as enacted in 1872 codified the common law of robbery, and under the common law force or fear had to be contemporaneous with the taking of property. (See 4 Blackstone, Commentaries, Public Wrongs, ch. 17, p. 242 ["For, if one privately steals sixpence from the person of another, and afterwards keeps it by putting him in fear, this is no robbery, for the fear is subsequent"]; see also 3 LaFave & Scott, Substantive Criminal Law (3d ed. 2017) § 20.3(e) at p. 246 [traditional view robbery requires violence or intimidation at time of taking].)
Alternatively, Andalco challenges the sufficiency of the evidence to support his conviction. He contends "there was insufficient evidence showing [he] used the requisite force or fear during his asportation of the stolen belt he wore around his [waist]. That is so because [he] had made it to a point of temporary safety with the stolen belt before he went back to [D.R.] and told her to give him her cell phone in Spanish and punched her in her right cheek." He explains D.R. did not pursue him "in an effort to regain possession of the belt," and thus he "never used force or fear while [D.R.] was actively pursuing him in an effort to retain the 'loot' around his waist. As a result, there was no force used during the taking or the asportation."
We do not find Andalco's argument convincing. "[T]he commission of a robbery is ongoing 'until the robber has won his way to a place of temporary safety.' [Citation.] A robber has not reached a place of temporary safety while an immediate and active pursuit to recover the property is in progress." (People v. Debose (2014) 59 Cal.4th 177, 205.) The jury reasonably could conclude Andalco, who had not abandoned the stolen belt when he struck D.R., had not reached a temporary place of safety because he remained in the store's parking lot, and while D.R. actively pursued Andalco's accomplice through the same parking lot to the getaway vehicle while on the phone with the police. Andalco's use of force against D.R. to retain the stolen belt, and to effectuate his escape with it, transformed his theft into a robbery. Substantial evidence supports the conviction.
III
DISPOSITION
The judgment is affirmed.
ARONSON, ACTING P. J. WE CONCUR: IKOLA, J. THOMPSON, J.