Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA321692, Michael Johnson, Judge.
Sheldon L. Levitin, 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, Senior Assistant Attorney General, Stephanie C. Brenan and Eric E. Reynolds, Deputy Attorneys General, for Plaintiff and Respondent.
KRIEGLER, J.
The jury found defendant Aubrey Brown guilty of second degree robbery of T.C. (Pen. Code, § 211). Defendant was placed on formal probation for a period of three years, with 365 days in county jail as a condition of probation. Defendant timely appealed.
All further statutory references are to the Penal Code, unless indicated otherwise.
Defendant contends the judgment should be reversed because the trial court abused its discretion in admitting evidence of a later incident and committed instructional errors. Defendant further contends substantial evidence does not support the verdict. We reject the arguments and affirm the judgment.
STATEMENT OF FACTS
Prosecution Case
On February 11, 2007, T.C. was at a Laundromat doing his laundry. He saw defendant outside with four associates, including defendant’s brother. T.C. knew defendant and “didn’t think we had any problem.” Defendant’s brother was doing laundry. T.C., who was 18 years old at the time of trial, six feet tall, and 165 pounds in weight, thought defendant’s brother was taller and a lot bigger than he was and the three others were older. T.C. noticed that defendant’s associates watched him as he used his Sidekick cell phone. One of the associates pointed at him.
Defendant’s brother was 5’11” and weighed 350 pounds. Defendant was 5’7” and weighed 230 pounds.
After defendant’s brother finished doing his laundry, the group got into two cars and backed out, but did not drive away. Instead, defendant got out of his car and went into the Laundromat while the others remained in the cars. Defendant asked T.C. if he had a Sidekick. As he spoke, defendant looked toward his associates. T.C. answered in the affirmative, and defendant told T. C., “give me your phone.” T.C. “knew that [defendant] was going to take it because of the guys that he was with.” T.C. felt the associates were waiting to see what happened and would get out of their cars to help defendant if T.C. did not hand over the phone. T.C. testified he did not want to give defendant his phone, “but, I mean, he had a group of people that was there with him.” “If I were to like try to keep [the phone], . . . the other guys would have came in.” T.C. was afraid of the associates; “[t]he brother was pretty big.” T.C. was afraid of “[t]hem getting out [of] the car to jump [him,] . . . like, beat me up.” T.C. asked defendant if he could get his Sim card out of the phone. At the time, T.C. thought he might be able to get the phone back later if he called defendant’s girlfriend, but he was not sure. T.C. took the Sim card out and asked defendant if he could have the little chip in the phone, because he would need it if he got a new phone. Defendant “grabbed [the phone] and just walked out.” Defendant returned to his car, and he and his associates drove away.
A Sim card is a memory card.
When T.C. got home, he told his mother what had happened. His mother’s boyfriend, John, called defendant to have him bring the phone back. Later that day, defendant went to T.C.’s house and told T. C. that if he wanted his phone back, he would have to fight him for it. T.C. went outside to fight defendant, but noticed defendant’s brother on the lawn. T.C. went back inside, because he thought the both of them were going to jump him. Two other men were with the brother in the driveway. T.C. thought the other men were defendant’s associates at the Laundromat. T.C.’s grandmother came outside and told the men to get off her property. Through the screen door, T.C. saw that defendant’s brother was holding a gun behind his back, and told his grandmother to come inside the house. The grandmother went back into the house and T.C. called the police. T.C. never got his cell phone back from defendant. T.C. paid $299 or $399 for the phone.
Los Angeles Police Officer Paul Fedynich arrested defendant that evening. Defendant told him that when he saw that T.C. had a Sidekick cell phone, he decided to “hit [him] up” for it. Defendant asked T.C. if he had a phone, and T.C. said, “yes, do you want it?” Defendant said yes. T.C. asked for his Sim card. Defendant gave it to him, took the phone, took his laundry, and left with his brother. Later that day, someone named John called and spoke harshly to defendant and his brother about getting the phone back. Defendant and his brother did not appreciate being talked to in that manner, so they went to John’s house, but John was not there. They then went to T.C.’s house. Defendant told T.C. that if he wanted his phone back, defendant would fight him for it. Defendant left when he noticed the grandmother on the telephone talking to the police. Defendant said he took the phone because he needed one and did not have enough money to buy one.
Defense Case
Defendant did not dispute he took T.C.’s cell phone and the phone was not his. He contended that robbery was not proved beyond a reasonable doubt, because the phone was not taken by the use of force or fear and the prosecution did not prove the phone was taken against T.C.’s will. He argued the jury could find the taking was theft, which does not require a finding of force or fear, or could find that defendant was not guilty of any crime, because there was evidence defendant had T.C.’s consent to take the phone.
DISCUSSION
Substantial Evidence
Defendant contends substantial evidence does not support a finding that the phone was taken from T.C. by means of force or fear, an essential element of robbery. Contrary to defendant’s argument, the evidence is sufficient to show that defendant used fear and intimidation to take the cell phone.
“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.)
“In assessing a claim of insufficiency of evidence, the reviewing court’s task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence--that is, 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. (People v. Johnson (1980) 26 Cal.3d 557, 578.) The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 317-320.) The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. (People v. Stanley (1995) 10 Cal.4th 764, 792.)” (People v. Rodriguez (1999) 20 Cal.4th 1, 100.) “Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.]” (People v. Young (2005) 34 Cal.4th 1149, 1181.)
“It is not necessary that there be direct proof of fear. That element may be proved with circumstantial evidence. Fear may be inferred from the circumstances in which a crime is committed or property is taken.” (People v. Holt (1997) 15 Cal.4th 619, 690; see also People v. Brew (1991) 2 Cal.App.4th 99, 104 [“‘“Where intimidation is relied upon, it [can] be established by proof of conduct, words, or circumstances reasonably calculated to produce fear. . . .”’ [Citations.]”].)
Here, fear may be inferred from the circumstances in which defendant took the cell phone. Defendant was at the Laundromat with four men who were older and bigger than T.C. As T.C. was alone, defendant and his associates greatly outnumbered him. T.C. observed that defendant and his associates were interested in his Sidekick. Defendant approached T.C. and demanded that T.C. give him the cell phone. As he did so, defendant looked back at his associates, as if to indicate to T.C. that the associates would help defendant force T.C. to give up the cell phone. T.C. observed this behavior and was convinced defendant’s associates would come into the Laundromat and beat him up if he did not accede to defendant’s demand. T.C. testified he was afraid because he was outnumbered and defendant’s brother was large. In these circumstances, defendant grabbed T.C.’s cell phone and fled with his associates. This is evidence that defendant used his associates to scare and intimidate T. C. so that T.C. would not resist when defendant took T.C.’s cell phone. This intimidation tactic worked, as T. C. felt afraid and intimidated. The foregoing is substantial evidence that defendant accomplished the taking by means of force or fear. (See People v. Brew, supra, 2 Cal.App.4th at p. 104 [the robbery of the cash register was accomplished by intimidation, where the defendant, who was much larger than the cashier, stepped up close to the victim so that she moved away from the cash register in fear].)
Defendant argues there was evidence that indicated no force or fear was used. For example, he points to evidence that T.C. was “cool” with defendant and believed he could get the phone back, three of defendant’s associates never entered the Laundromat, the other customers were unaware a theft was taking place, and T.C. did not alert anyone in the Laundromat that he had been robbed. Defendant’s argument is a request we reweigh the evidence. This we will not do. (In re Juan G. (2003) 112 Cal.App.4th 1, 6 [“[t]he function of an appellate court is not to reweigh the evidence and substitute its judgment for that of the juvenile court”].) Thus, substantial evidence supports the finding.
Evidence of the Incident Later That Day at T.C.’s House Was Relevant
Defendant contends the trial court abused its discretion in admitting testimony about the incident when defendant went to T.C.’s home later that day. He contends the evidence is not relevant because it does not tend to show the intent to steal was formed, or force or fear was used, at the time the property was taken at the Laundromat. We disagree. The incident was circumstantial evidence tending to show an intent to steal existed, and force or fear was used, when the property was taken at the Laundromat. Accordingly, the court did not abuse its discretion in admitting it.
In a motion before trial, defendant moved to exclude the evidence on two grounds: it was not relevant; and it was more prejudicial than probative. The trial court denied the motion. On appeal, defendant pursues only the relevancy ground.
“On appeal, we review for an abuse of discretion a trial court’s admission of evidence as relevant. . . . [¶] Evidence is relevant if it has ‘any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.’ (Evid. Code, § 210[.]) ‘“The test of relevance is whether the evidence tends ‘“logically, naturally, and by reasonable inference” to establish material facts such as identity, intent, or motive.’”’ [Citation.]” (People v. Wallace (2008) 44 Cal.4th 1032, 1057.)
“Robbery comprises elements embracing the use of force or fear to effect a taking from the victim . . . and also an intent to steal . . . accompanying the use of such means[.]” (People v. Waidla (1994) 22 Cal.4th 690, 737.) There must be evidence “‘the defendant conceived his intent to steal either before committing the act of force [or fear] against the victim, or during the commission of that act; if the intent arose only after the use of force [or fear] against the victim, the taking will at most constitute a theft.’ [Citations.]” (People v. Lindberg (2008) 45 Cal.4th 1, 28.) The intent to steal is an intent to permanently deprive the victim of the property. (Id. at p. 29.)
The evidence defendant went to T.C.’s house later that day with three of his associates from the Laundromat to tell T.C. he would have to come out and fight for his phone if he wanted it back, is circumstantial evidence that, when defendant took the phone at the Laundromat, he intended to permanently deprive T. C. of it. It is also evidence of the taking element of the crime. The evidence T.C. had John call defendant to get the phone back, and initially accepted defendant’s challenge to fight for the phone, indicates T.C. had not willingly surrendered the phone to defendant at the Laundromat.
The prosecution argued to the jury that the robbery was complete at the Laundromat. The prosecution did not argue that the robbery could be proved by evidence that defendant used force or fear to retain the property after the taking at the Laundromat. She argued the threat of force used at T.C.’s house was circumstantial evidence of defendant’s state of mind at the Laundromat: defendant intended to use force or fear to steal T.C.’s property.
Circumstantial evidence bears out this inference. It is reasonable to infer that the reason defendant brought the three associates to T. C.’s house, one of whom was armed with a gun, was to intimidate T.C. into letting defendant keep the phone. Indeed, the mere presence of defendant and his brother drove T.C. back into his house in fear. From this it may be inferred that the associates had played the same role at the Laundromat, where defendant used them to intimidate T.C. in order to accomplish taking the cell phone from T.C.
The Limiting Instruction Regarding the Gun Testimony Did Not Mislead the Jury
Defendant contends the instruction regarding the testimony that defendant’s brother had a gun at T.C.’s home misled the jury. The jury was not misled.
When the trial court denied defendant’s pretrial motion to exclude evidence of the incident at T.C.’s house, it stated it would give the jury a cautionary instruction regarding T.C.’s testimony that he saw defendant’s brother with a gun. The jury would be told the gun testimony was “admitted for a limited purpose, and that . . . there are no charges against this defendant in regard to a gun, and it is relevant only in regard to the victim’s state of mind and the People’s allegation that the property was taken from him by use of force and fear.” Defendant did not object to the jury being instructed in this manner.
When T.C. testified, the trial court instructed: “Let me just mention to the jury that the evidence concerning the person that [T.C.] has identified as the defendant’s brother having a gun is admitted for a limited purpose. Obviously there are no charges in this case regarding any kind of gun, and there’s no evidence or conduct attributed to [defendant] regarding any gun. [¶] This evidence is admitted for the limited purpose and is relevant only to [T.C.’s] state of mind on the day in question as to whether the property was taken against his will or with his consent, and it’s also relevant to the issue of whether the property was taken from him and was retained through force and fear. It’s for that limited purpose and to be considered only for that limited purpose.” Defendant did not object to this instruction.
Respondent argues that defendant’s contention the instruction misled the jury was forfeited by defendant’s failure to object to the instruction in the trial court. “Ordinarily, an appellate court will not consider a claim of error if an objection could have been, but was not, made in the lower court. [Citation.] The reason for this rule is that ‘[i]t is both unfair and inefficient to permit a claim of error on appeal that, if timely brought to the attention of the trial court, could have been easily corrected or avoided.’ [Citations.] ‘[T]he forfeiture rule ensures that the opposing party is given an opportunity to address the objection, and it prevents a party from engaging in gamesmanship by choosing not to object, awaiting the outcome, and then claiming error.’ [Citation.]” (People v. French (2008) 43 Cal.4th 36, 46.) However, “‘[e]ven without an objection, a defendant may challenge on appeal an instruction that affects “the substantial rights of the defendant . . . .” (§ 1259.)’ [Citation.]” (People v. Cleveland (2004) 32 Cal.4th 704, 749.)
Defendant contends the instruction allowed the jury to find the robbery could be proved by evidence force or fear was used, and T.C.’s lack of consent was formed, at T.C.’s house, after the taking at the Laundromat was complete. If defendant’s contention were correct, no objection was necessary, because the instruction would have affected his substantial rights. (See People v. Cleveland, supra, 32 Cal.4th at p. 749.) However, based on “the specific language challenged, the instructions as a whole and the jury’s findings[,]” there is no “‘reasonable likelihood’ the jury understood the instructions as the defendant asserts.” (People v. Cain (1995) 10 Cal.4th 1, 36.)
The trial court’s limiting instruction did not instruct, and the prosecution did not argue, that the subsequent use of force was sufficient to find the phone was taken by force or fear or that T.C.’s subsequent state of mind was sufficient to find the phone was taken without T.C.’s consent. The trial court instructed the jury in the language of Judicial Council of California Criminal Jury Instructions (2007-2008) CALCRIM Nos. 223 and 224 on circumstantial evidence and instructed that there must be proof of “the union or joint operation of act and wrongful intent.” The jury was instructed on the elements of robbery, including the required specific intent. “The defendant’s intent to take the property must have been formed before or during the time he used force or fear. If the defendant did not form this required intent until after using the force or fear, then he did not commit robbery.” In addition to arguing to the jury that the robbery was complete at the Laundromat, the prosecution argued the gun evidence was “evidence that you need to look at in totality to decide whether there was in fact use of fear or force in this case.” Defendant argued the jury should limit its use of the gun testimony to the purpose for which it was offered: “whether or not [T.C.] was afraid of [defendant]. There’s no accusation that [defendant] used a gun, knew there was a gun or anything like that.”
Such instruction included the instruction that “circumstantial evidence does not directly prove the fact to be decided, but it is evidence of another fact or a group of facts from which you may conclude the truth of the fact in question.”
Based on the specific language used, the instructions as a whole, and the arguments of counsel, the jury understood the evidence defendant’s brother brought a gun to T.C.’s house was relevant only as circumstantial evidence defendant had used force or fear, and T.C. did not consent to the taking of his cell phone by defendant at the Laundromat. The jury was not misled.
The Jury Was Not Instructed on a Legally Erroneous Theory
Defendant contends the trial court erroneously instructed the jury it could find defendant committed robbery based on force or fear generated during the subsequent incident at T.C.’s house. Defendant does not quote the alleged instruction or cite where in the record it was given by the trial court. No such instruction was given. To the extent defendant argues the jury was misled because the prosecution presented this theory in argument, defendant is mistaken. The prosecution did not make that argument. The prosecution told the jury the robbery was completed at the Laundromat, and the subsequent incident at T.C.’s house was circumstantial evidence of defendant’s state of mind and use of force or fear at the time he took the phone at the Laundromat.
Defendant states the later incident occurred two hours after the incident at the Laundromat. The record indicates the incident occurred sometime later that day, but does not indicate the number of hours.
DISPOSITION
The judgment is affirmed.
We concur: TURNER, P. J. MOSK, J.