From Casetext: Smarter Legal Research

People v. Bailey

California Court of Appeals, Second District, Second Division
Apr 22, 2009
No. B209827 (Cal. Ct. App. Apr. 22, 2009)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. LA058078 Thomas E. Grodin, Judge.

Bahar Law Office and Sarvenaz Bahar, 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 Sullivan Pithey and Michael J. Wise, Deputy Attorneys General, for Plaintiff and Respondent.


CHAVEZ, J.

Dejay Bailey appeals from the judgment entered upon his conviction by jury of second degree robbery (Pen. Code, § 211). The trial court sentenced him to state prison for the midterm of three years. Defendant contends that there is insufficient evidence to establish that he had the requisite felonious intent to support his conviction.

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

We affirm.

FACTUAL BACKGROUND

The prosecution’s evidence

On September 10, 2007, at approximately 4:30 p.m., 17-year-old Natalie Alvarenga (Alvarenga) was driving home in a Toyota Camry. She was behind a school bus, in the middle lane of a three-lane road, in heavy traffic, when she rear-ended the bus as the light turned red. The front of her car was moderately damaged, but there was no apparent damage to the bus, which, according to Alvarenga, never pulled over. Alvarenga did not see children in the bus or hear any screaming.

Alvarenga attempted to pull over to the curb, but was blocked by defendant in a Chevy pick-up truck. Alvarenga and defendant exchanged words. Defendant called her a “bitch” and said, “You fucking Mexicans never have insurance.” Alvarenga responded with “Fuck you” to defendant. Defendant then got out of his truck, went to the front of Alvarenga’s car and attempted to bend off her license plate. Alvarenga got out of her car, pushed defendant away, telling him, “Get the fuck away from my dad’s car.” She testified that she did not hit defendant. Defendant then pushed Alvarenga, causing her to fall into a traffic lane, and completed removing the license plate from the car. Alvarenga testified that she saw defendant holding the license plate but did not “know if he went to go give it to the bus driver or he kept them [sic].” On cross-examination, she stated that she saw defendant “going towards the bus driver’s car” and give the license plate to the bus driver, but did not actually see him deliver the license plate to anyone.

Terrified, Alvarenga went to her car, got her pepper spray and walked toward defendant. As she approached, defendant pulled out a gun, pointed it an inch and one half from her head, and told her, “[G]et the fuck away, bitch.” Alvarenga was frightened, returned to her car and drove away from the scene never having used her pepper spray. The entire incident was quick, lasting three to five minutes.

After leaving the scene, Alvarenga telephoned 911 and told the operator that a man driving a truck pulled a gun on her and threatened to report her for hitting and running. She said that he “pulled out the license plate... [and] he went to go give it to the bus driver.” She never recovered her license plate and was never contacted by the bus company.

Police Officer Renee Escobedo interviewed Alvarenga the same day. Alvarenga told the officer about the collision and that the bus continued driving, prompting her to think that “everything was okay so she was going to drive off,” but then defendant blocked her car. She did not mention trying to pull over. In describing her contact with defendant, she said that she hit him more than once. Alvarenga went to the police station and identified defendant from a series of photographs.

At approximately 4:50 p.m., on September 10, 2007, Gail Frankel (Frankel), a Laidlaw Bus Company (Laidlaw) dispatcher, received a call from a man reporting a hit and run accident involving one of their buses. He told her that he had written down the license number, given it to one of the bus drivers and pulled a “gun” on the person involved in the accident because she was trying to leave. He did not mention anything about a second bus driver, about being pepper-sprayed or about the gun being “fake.” He refused to leave his name, but left his telephone number. Frankel found him to be truthful.

No one else ever reported an accident to Frankel or turned in a license plate. Frankel never identified which bus was involved in the accident.

Frankel gave the man’s telephone number to the police, who used it to contact him. Officer Escobedo called, claiming to be a Laidlaw employee, and spoke with defendant. Defendant was cooperative and told Officer Escobedo that he had seen a car driven by a girl collide with a bus. The bus pulled over, but she did not. He then blocked her as she tried to drive away. As defendant attempted to pull her license plate off her car, she approached him and started hitting and spraying him with pepper spray. Defendant pushed her away and finished removing the license plate. The girl threatened defendant by saying that she was going to get “some homies to get him.” In response, he pointed a gun at her. Defendant never said the gun was “fake.” As another school bus drove by, defendant reported the accident to that driver who seemed disinterested and did not want to get involved. Defendant “threw” the detached license plate into that bus.

The defense’s evidence

Defendant testified that he saw Alvarenga’s car rear-end a school bus and then “t[a]k[e] off” through a red light. The bus pulled over and 30 elementary school children inside were visibly upset. Defendant in an effort to get the license plate number of the car, pursued it through rush hour traffic, at 50 to 60 miles per hour, for a few blocks before he was able to block the car with his truck.

When he reached the car, defendant told Alvarenga through his open window, “[D]id you forget something, like to leave your license and information.” She responded, saying, “[F]ucking white boy, it’s none of your business.” Defendant responded, “[Y]ou Mexicans never have fucking insurance.” As they argued, another Laidlaw school bus pulled up close to them and to the side of the road. Defendant waived at the driver and said, “[H]ey, that is the one that hit your bus.” The bus driver said, “I know.” When defendant asked the bus driver to “get her plate number,” the driver refused, stating, “[W]hat does that got to do with me.” The bus driver’s refusal upset defendant, who went to the front of Alvarenga’s car and bent the front license plate off because he did not have a pen to write down the number. Defendant testified on cross-examination that it was his intent “to get that plate to the bus driver, hand it to the bus driver.”

Alvarenga hit defendant and yelled that it was not his business and that her “homeboys” were going to get him. She sprayed defendant with pepper spray as he was removing the license plate. He then pushed her to the ground and finished removing the plate. Defendant then walked to the bus and handed the license plate to the driver. As he turned he saw Alvarenga behind him, swinging her arms at him. He ran away from her to his truck, but she caught him and prevented him from closing the truck door. To get her away, defendant grabbed his father’s plastic pellet gun, pointed it at Alvarenga and said, “[G]et the fuck away, bitch.” Alvarenga then left, and defendant drove away.

At 4:50 p.m., defendant telephoned Laidlaw and reported a hit and run accident. He left his name and telephone number in case someone turned in the license plate. He did not recall reporting that he pointed a gun at Alvarenga but did say that he had removed the license plate. Defendant later told a person he thought was a Laidlaw employee that Alvarenga had hit and sprayed him with pepper spray and that he had pointed a gun at Alvarenga, but did not say that the gun was a “fake.”

DISCUSSION

Defendant’s sole contention on appeal is that there is insufficient evidence of felonious intent to support his conviction. He argues that the prosecution failed to establish that he “remove[d] the license plate with the purpose of stealing it, and permanently depriving its owner of its use.” Rather, his purpose in removing the license plate was to assist the bus company by providing it with a means of tracking down the driver who had collided with one of its buses. The license plate had no independent value to him so as to permit an inference that he only intended to deprive the owner of the license plate until the company could identify the owner. This contention is without merit.

“In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.) We resolve all conflicts in the evidence and questions of credibility in favor of the verdict, and indulge every reasonable inference the jury could draw from the evidence. (People v. Autry, supra,37 Cal.App.4th at p. 358.) We must presume every fact in support of the judgment that the trier of fact could have reasonably deduced from the evidence. (People v. Rayford (1994) 9 Cal.4th 1, 23.) Reversal on this ground is unwarranted unless ‘“upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’” (People v. Bolin, supra, at p. 331.) This standard of review is the same in cases involving circumstantial evidence. (People v. Stanley (1995) 10 Cal.4th 764, 792.)

“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.) A conviction of robbery requires proof of the following elements: (1) a person has possession of property of some value, however slight, (2) the property was taken from the person or from her immediate possession, (3) against her will, (4) accomplished by either force or fear, and (5) with the specific intent to permanently deprive her of the property. (People v. Carrasco (2006) 137 Cal.App.4th 1050, 1057; People v. Marshall (1997) 15 Cal.4th 1, 34; People v. Magee (2003) 107 Cal.App.4th 188, 195, fn. 4) The intent must arise either before or during the commission of the act of force so that the act is motivated by the intent. (People v. Marshall, supra, at p. 34.) The felonious intent need not be proved by direct evidence but may be inferred from all of the circumstances of the case. (People v. Hall (1967) 253 Cal.App.2d 1051, 1054.)

The requisite intent need not necessarily be to convert the property for the perpetrator’s own use. (People v. Kunkin (1973) 9 Cal.3d 245, 251; People v. Brown (1894) 105 Cal. 66, 69.) Hence, the fact that the license plate was purportedly taken for the benefit of Laidlaw, does not preclude defendant’s robbery conviction. Defendant clearly deprived Alvarenga of the use of the license plate, having taken it from her by force. The question here is whether there was sufficient evidence that defendant intended to permanently deprive her of the license plate to support the jury’s finding. We conclude that there was.

The uncontroverted evidence was that defendant ripped the license plate from the front of Alvarenga’s car and then delivered it to a nearby bus driver. There was no evidence that defendant made any effort to secure the return of the license plate to Alvarenga. In fact to the contrary, defendant told police that he threw the license plate into a bus not involved in the collision, driven by a driver who expressed a preference not to become embroiled in the situation. The jury could easily infer that defendant knew there was little or no likelihood that the license plate would be returned to Alvarenga. “‘A wrongful use of a temporary nature is not sufficient for the intent to steal if it does not seriously imperil the owner’s substantial rights in the property; but it is otherwise of a wrongful temporary use of a nature which intentionally creates an unreasonable risk of permanent loss to the owner.’” (People v. Zangari (2001) 89 Cal.App.4th 1436, 1443, quoting Perkins & Boyce, Criminal Law (3d. ed. 1982) Larceny, § 1, p. 328.) “Common law and California cases thus establish that an intent to steal will be recognized when personal property is dealt with in such a way as to create an unreasonable risk of permanent loss.” (People v. Zangari, supra, at p. 1446.) Defendant’s intent to steal here can readily be distilled from the unreasonable risk of permanent loss to which he subjected the license plate, which was, in fact, never returned to Alvarenga, thus providing support for the jury’s conclusion.

DISPOSITION

The judgment is affirmed.

We concur: BOREN P. J., DOI TODD J.

The jury also found defendant guilty of assault by means of force likely to produce great bodily injury or with a firearm (§ 245, subd. (a)(2)), but acquitted him of being a felon in possession of a firearm (§ 12021, subd. (a)(1)). The trial court granted a new trial on the assault conviction based on erroneous jury instructions. That count was subsequently dismissed.


Summaries of

People v. Bailey

California Court of Appeals, Second District, Second Division
Apr 22, 2009
No. B209827 (Cal. Ct. App. Apr. 22, 2009)
Case details for

People v. Bailey

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. DEJAY BAILEY, Defendant and…

Court:California Court of Appeals, Second District, Second Division

Date published: Apr 22, 2009

Citations

No. B209827 (Cal. Ct. App. Apr. 22, 2009)