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People v. Comfort

Court of Appeal of California
Jul 30, 2008
No. A116808 (Cal. Ct. App. Jul. 30, 2008)

Opinion

A116808

7-30-2008

THE PEOPLE, Plaintiff and Respondent, v. SUSANNAH MERLINA COMFORT, Defendant and Appellant.

Not to be Published


Susannah Merlina Comfort stood trial on three counts arising from an armed robbery on November 19, 2004, directly perpetrated by John F. Makins, a codefendant whose case ultimately preceded hers. Comfort appeals following the imposition of a two-year prison term after a jury acquitted her of conspiracy to rob (count 1; Pen. Code, §§ 182, subd. (a)(1), 211), but found her guilty of second degree robbery (count 2; § 211, 212.5) and of being an accessory to the same robbery (count 3; §§ 32, 211). She claims prohibited double-conviction, misinstruction on accessory liability, and sentencing error in denying probation. We affirm the judgment.

All unspecified further section references are to the Penal Code.

BACKGROUND

As an overview, identity and the fact of a robbery by Makins were not disputed; Comforts role in the affair was. She was living with Makins, had recently been fired from a job at the business whose employee Makins robbed during a noontime bank run, and Makins was seen, during flight from the scene, stashing his jacket and the loot into a trash can and then going up to Comfort and stashing his weapon (a BB gun Comfort kept at the house) into a purse ("briefcase") she held open. They were arrested at the scene. Comfort testified that it was all coincidence, that she had no idea what Makins was doing, and that she did not assist or help plan the robbery.

The prosecution case

Lynnette (Lynn) Gammon worked on Georgia Street in Vallejo at Lincoln Loan, a pawn shop/jewelry store owned by Joe Blaney. The store also did check cashing and took PG&E payments. Gammon worked five days a week in the check-cashing booth, and had responsibility for making daily bank deposits of cash and checks, except when Blaney or coworker Elizabeth (Beth) Nordlee would go in her stead. Gammon always went at lunch, which she took at noon. Her procedure was to carry the deposits in a paper bag out to her Isuzu Rodeo, always parked in a lot behind the store, down an alley from a side entrance. A coworker usually accompanied her to the car, for safety.

Gammon recounted that Comfort was employed at Lincoln Loan in the fall of 2004, for about a month, worked with her in the check-cashing booth (sometimes also in jewelry sales), and was fired about a couple of weeks before the robbery on November 19 of that year. They talked during that time, and Comfort mentioned having financial difficulty, and being afraid of foreclosure on her house. Comfort mentioned having a boyfriend, John Makins, but Gammon did not meet him. The deposit procedure, being "a daily thing," was something that all of the employees knew, and Comfort would have known as well. In fact, she mentioned it in a brief conversation they had at the store a week or two before the robbery. Comfort came by to pay a bill and, in a conversation over cigarettes outside with Gammon, told her about her new job at Best Collateral, another pawn shop, and asked Gammon if she "was still doing the deposits."

At noon on November 19, Gammon walked out the side entrance toward her car with $38,000 in deposits with coworker Carol Hainey, and encountered a man she would later learn was Makins. He wore a baseball cap and red sweatshirt and was in the parking lot. He asked for a light as the women passed by, but Gammon did not respond or really look at him that point, although Hainey may have answered. Then, while Gammon stood at her open car door, Hainey having gone back to the store, Makins came up with a black gun pointed at her and demanded "the bag" or "the money." Frightened, Gammon tossed the bag of deposits to the ground, and Makins demanded her purse as well. She told him that there was no money in the purse but answered, yes, when he asked if she had a cell phone, and handed it to him when he demanded it. He then picked the bag up off the ground and walked down the alley, toward the front street. Gammon remained in the parking lot until police arrived and took her to a courtyard on Georgia Street, near the police substation, where she saw Comfort and where police officers had her identify Makins.

Hainey (surnamed Michael by the time of trial) testified similarly and confirmed that she, while usually working sales at the front of the store and not herself authorized to make the deposits, knew that Gammon usually took them to the bank "at lunchtime every day," using a paper bag. Hainey did not think the time was always the same; Gammon (or Nordlee or Blaney in Gammons absence) would go when they had a chance. Hainey had never met Makins but saw him a couple of times at closing, seated in a vehicle waiting for Comfort in the parking lot.

At noon on November 19, Gammon had Hainey accompany her to the parking lot on her deposit run. Gammon reached the lot and her Isuzu ahead of Hainey, who saw a man seated on a curb who asked her for a light. Not recognizing him at first as Makins, Hainey said she had none but that maybe Lynn did. Makins walked on toward Gammon, at which point Hainey recognized him and noticed the butt of a gun sticking out from his pants. Startled, but without waiting to see the gun pulled, she went back to the store and reported that Gammon was being robbed.

Nordlee, the store manager for Lincoln Loan, testified that Comfort was let go after one month, told that she was no longer needed and that it was not working out. The reason was "drinking on the job" that was affecting her performance in a job where she dealt with a lot of money. Nordlee also confirmed that Comfort would have known the deposit routine. The store had just 15 employees, all on one sales floor, and Comfort worked in the booth with Gammon; Gammon did most of the deposits, invariably at her lunchtime. Nordlee had only a business relationship with Comfort and had never seen Makins before the day of the robbery.

That day around noon, right after relieving Hainey in the check-cashing booth, Nordlee saw her enter through the side door yelling that Lynn had just been robbed at gunpoint in the parking lot. Nordlee ran out the door. Seeing one way down the alley that Gammon was okay, Nordlee asked her who did it and then ran after a man in a red sweatshirt and blue baseball cap to whom Hainey pointed. The man (Makins) was walking the other way down the alleyway, nearing the street, with the brown paper bag of receipts in one hand. As Nordlee followed him across a street, dialing 911 on her cell phone, she saw Makins remove his red sweatshirt, revealing a blue dress shirt underneath. He carried the sweatshirt briefly and then, as he rounded a corner, stuffed it and the paper bag into a trash can and kept on walking.

Makins walked on through a plaza or courtyard, also in the direction of the public library, and met Comfort at a kiosk at a sidewalk on the other side. Nordlee did not hear what, if anything, they said to one another, but from an unobstructed distance of about 42 feet, perpendicular to the couple, she saw Comfort open a large dark cloth bag she held, Makins place a gun into it, and Comfort then close it. Comfort showed no surprise or other reaction. They started up Georgia Street together, back in the direction of Lincoln Loan, but police stopped them almost immediately.

Nordlee witnessed the police pull the sweatshirt and bag from the trash can, and she identified the receipts as the stores. The $38,000 included about $25,000 in cash, which was "a little more than typical" because it included sales department money that was deposited only every three or four days.

Another witness who followed Makins and saw him stash the sweatshirt and meet up with Comfort was Mark Murphy, who owned "Balissimo" [sic], a store two doors down from Lincoln Loan, on Marin Street. His store was closed at the time, and he was inside doing some work when he heard people outside saying they had been robbed. He looked and saw people pointing to a man (Makins) in his rear parking lot whom they identified as the robber. Murphy took off after him, paralleling his travel at first at about 50 feet and then closing behind him after a couple of blocks, near the police station. Murphy had never seen Makins before and, from his initial perspective, could distinguish only a red jacket or sweatshirt. Murphy did notice at least three people from Lincoln Loan, including Joe Blaney, following the man.

Like Nordlee, Murphy saw Makins remove his red garment and throw "a bunch of stuff" into a (concrete) trash can around one corner. (Nordlee said she knew Murphy and thought she saw him behind her at some point during her own pursuit.) Makins stashed his things in the trash can when Murphy was close behind, closing the distance to about 10 or 12 feet. Being directly behind Makins after the trash can, Murphy could not see Makinss face or what he carried, but he saw a tall and very thin woman he did not know (Comfort) walking his direction, toward Makins. He could not hear what was said but could see from the womans mouth moving that they she was speaking to Makins as he approached. She opened up her large purse, her mouth moving, as she walked right up to Makins and he put something inside it. She shut it and veered right, as Makins kept going straight ahead. Comfort was speaking but not yelling at Makins. Police arrived, and before rushing back to his unlocked business, Murphy saw that Comfort had been placed in a patrol car.

"[E]verything happened so fast," Murphy related, and at trial, two years removed from the events, he could not specifically recall seeing a gun. Still he reasoned that he must have seen one, for he remembered thinking to himself, "`[s]he has a gun in her purse," and repeatedly warned arriving officers about it.

A radio call went out for a "purse snatch" at Lincoln Loan, but arriving officers found themselves directed by onlookers to a man and woman (Makins and Comfort) on the sidewalk of Georgia Street. Uniformed Officer Steven Darden arrived in a marked patrol car, with sirens on, to find at least 10 people pointing to Makins and Comfort, saying that they had just robbed a store. Darden got out of his car and, from 26 feet behind them, yelled out, "Hey!" repeatedly, but they ignored him. When he later yelled out, "Stop!" they separated, with Makins veering off through a courtyard. As Darden yelled "Stop," they turned and made eye contact with him but kept walking. Darden found it very odd that they acted "oblivious to everything going on around them" yet with so many people pointing them out. "[A] normal person," he expected, "would say, `What are you talking about? What did I do? and turn around, of course[.]"

Darden ran after Comfort and, "because she was just refusing to listen to me," grabbed her by her jacket as onlookers said, "`Yeah, her, her, her." He tossed her into the back seat of his patrol car where she could not get out. She had tried to "pretend she didnt hear" until he grabbed her and, only then, started asking what was going on. Then, not knowing whether he had backup, Darden immediately turned to apprehend Makins, but as he looked in that direction, he saw a motorcycle officer, Officer Capoot, ride into the courtyard "and take on" Makins. Darden helped him secure Makins and then heard, from Capoot, that he had information "that the female had a gun in her purse." With so much going on, Darden had not cuffed or even pat searched Comfort and had left her in the patrol car with two purses she carried. Now seeing a third officer, Sergeant Florendo, walking toward the car, Darden broadcast a warning to get away—that the subject was possibly armed.

Darden returned to his car, saw that Comfort had the purses "both strapped on," "tactfully" opened the door, and took and searched them, finding in one the barrel of what proved to be "a replica .45 caliber BB pistol" stuffed between some clothing in "the large pocket." As he took the purse with the gun, he asked Comfort whether there was a gun inside, but got no response. Darden was asked, in evident anticipation of what would be Comforts testimony, whether he got one of the bags from Blaney, but he said he did not. After some probing of a dim memory, he did not believe he even spoke with any witness named Joe Blaney.

Officer James Capoot testified that he arrived on his marked motorcycle and, directed by several people (including an out-of-breath woman) to a man walking in the courtyard they said was a robber, detained and questioned Makins without incident, Makins obeying a command to "stop." Capoot asked, "Wheres the money?" and Makins answered that it was in a garbage can to the north of them. Learning that there was a weapon, Capoot asked where the weapon was, and Makins replied, "`She had it, and pointed over to a police car which was west of [their] location on Georgia Street." Capoot relayed the weapon information to Darden, who had the woman in his patrol car. He checked the trash can and, finding the red sweatshirt and bag of receipts, turned the investigation over to Corporal Estudillo and another officer.

Corporal Brian Estudillo arrived after the detentions, interviewed Carol Hainey at Lincoln Loan, and took Hainey for an in-field show up, where she identified Makins as the man who robbed Gammon and Comfort as a former employee.

The defense case

Comfort, 59 years old at the time of trial in late 2006, testified that she had been a homeowner in Vallejo for 25 years and lived at 143 Baxter Street, a 20-or 25-minute walk from the downtown library. She lived there on November 19, 2004, with Makins, her boyfriend of several years, who did not work. Comfort was having financial difficulties. She was behind in her mortgage, worried about foreclosure, and had gotten a loan from a contractor friend. She also had bills totaling $140,000 for "extensive brain surgery" following an accident in December 1999, and had "two liens" on her house.

Comfort testified that she had a degree in economics and business and that Joe Blaney at Lincoln Loan, whom she had known "forever," needed someone with computer and spreadsheet experience and hired her in October of 2004 to help Lynn Gammon. Comfort worked in the check cashing booth, helping people pay PG&E and phone bills, buy money orders, and cash checks. She was fired after 30 days, and told that "`It just didnt work out"— but not that it was for her drinking. "[N]ot particularly happy" about the firing, Comfort went to work for another pawn shop, Best Collateral. She worked there full time but only two weeks, until perhaps two weeks before the Lincoln Loan robbery. About a week before the robbery, she met once with Gammon and urged her to quit Lincoln Loan and go to work at Best Collateral, where she could make "twice as much money." Comfort herself nevertheless quit. She testified, vaguely, that this was due to the company "changing" and a "reassignment of people." But she also testified that she left in order to resume working for herself, saying she had a theatrical costume design company called Tea and Oranges and worked, in a studio she had, for a society that did "reenactments of the Court of Richard the Third, because theyre convinced he did not murder the nephews."

During her month working at Lincoln Loan, Comfort related, she initially did some accounting. She knew that Lynn Gammon typically took the deposits to the bank on her lunch break, but Gammon took her lunch breaks "at different times." Comfort knew that the business took in quite a bit of money, more early in the month than later. She had only her "particular register" to "go on," however, not the financial records of the company. She had twice gotten a ride home from Gammon and knew her Isuzu car.

Every night at home, over dinner, she would talk with Makins about her job and her day. She did not think that the deposit procedure was confidential, since "everybody knew about it." At trial, she did not think she ever told Makins about the deposits, but then conceded having told Detective Meredith that she might have told Makins that the deposits were made by leaving the store with a brown bag, and might have told him the time of day. She explained that, in those earlier statements, she used the words "might have" because she "was being asked so many questions."

On the morning of November 19, 2004, their car needing repair, Comfort and Makins walked downtown. She left at 10:00 a.m., and Makins went ahead. They met at a bus stop, walking from there to the library. Makins went ahead again, since he walked faster. Comfort wanted to do some research at the public library on Santa Clara Street about ridding her house of liens because she "was going into Chapter Seven [and] needed more information on that." When she reached the library, Makins was waiting for her at the entrance. She went inside, but he left, saying he was going to look for a job and would meet her at noon at a kiosk by the police station on Georgia Street. She had no idea of his plans beyond that. He knew about the problems she was having with the house, and she had previously urged him to help out by getting a job.

Comfort stayed at the library until five minutes to noon and, during that time, submitted a written application and résumé for a job there. Asked later by the court why she applied for a job when she had just quit one to work for herself, she said: "Because working for myself is—lets see. One works longer hours for less pay than one would work—one would get than working for someone else."

Her plan at that point was to meet Makins at the kiosk, have coffee and cigarettes with him, and then return to the library for more research. Leaving behind some paperwork—including the two liens on her house—Comfort left the library and walked up Georgia Street toward the kiosk, carrying her shoulder bag (her "purse") and a second bag (her "briefcase"). She reached the kiosk in three minutes or so, but Makins was not there. She perused job notices at the kiosk until he eventually came toward her, around the back of the police station. She had her briefcase on her arm, open at that point, and Makins "put something" inside. She had no idea what it was. Almost immediately, she saw Joe Blaney and what seemed like "everybody who worked for Lincoln Loan followed by others." Joe said, "`Susannah, give me that bag," and she handed it over to him.

Her briefcase had been open at that point, she explained, because she was about to transfer a large book—a biography of Sigmund Freud by Irving Stone—from her bulging purse to the briefcase. During cross-examination at trial, Comfort examined the briefcase and its contents and said that it appeared to contain the items she had inside it on November 19, 2004, plus a couple that she had forgotten about. Asked later by the court to show the Stone book, Comfort examined her purse and briefcase and said it was in neither bag; she had "no idea" what happened to it.

Comfort said that after handing her briefcase to Blaney, she turned, not to flee, but to return to the library and do more research, thinking that Makins would follow her and assuming (without inquiring) that she would get her briefcase back later. She was soon seized, thrown to the ground and handcuffed by Officer Darden, and placed in the patrol car. Contrary to Dardens testimony that he found the gun in her handbag (exh. Nos. 28 and 29) in the back of the patrol car, Comfort testified that she had given the briefcase to Blaney and did not have it, or did not recall having it, with her in the patrol car. She claimed that she did not respond to police commands to stop because this was a "rather dangerous part of Vallejo" and, unlike Blaney, the officer did not call her by name.

Comfort flatly claimed, against the testimony of witnesses who from distances of 10 to 12, and 42 feet saw Makins placed a gun into her bag, that she never saw a gun or that Makins ever had one. She conceded that the BB gun in evidence (exh. No. 28) was once her sons and had been stored in her basement.

The defense presented no other witnesses and no corroboration for any part of the alibi, for example, Comforts presence at the library to research liens. Comfort testified that she went back to the library the day after the arrest and retrieved her papers, which included the liens on her property, and she testified that she spoke with personnel at the library when submitting her written job application and résumé. Asked whether she had the résumé or application, she said she "didnt realize . . . it would be necessary."

DISCUSSION

I. Double Conviction

Comfort stands convicted of robbery as an aider and abettor (count 2), and of being an accessory to the same robbery (count 3). She received just one punishment, a prison term on count 3 being stayed (§ 654), but invokes case law that a person cannot be convicted as both a principal (§ 31) and an accessory (§ 32) to the same felony unless it is based on distinct conduct. She accepts, for this purpose, case law disapproval of older authority suggesting that double conviction is never allowed (analyzed in In re Malcolm M. (2007) 147 Cal.App.4th 157, 164-169; In re Eduardo M. (2006) 140 Cal.App.4th 1351, 1357-1361; People v. Riley (1993) 20 Cal.App.4th 1808, 1813-1817; People v. Mouton (1993) 15 Cal.App.4th 1313, 1321-1325), and both sides accept this formulation of the law: "[I]n order to find someone to be an accessory after the fact to a felony in the commission of which the person is also a principal by virtue of his or her having aided and abetted its commission, the acts constituting that felony must have ceased at the time of the conduct that violates section 32. Otherwise, the conduct of aiding or concealing a principal with the intent that he or she avoid arrest (§ 32) is subsumed into the conduct of aiding the commission of the crime with the intent or purpose of facilitating commission of the offense [citation], such that the defendant is `concerned in the commission of a crime (§ 31) and is therefore a principal in its commission. [Citation.] This is because an intent to help the perpetrator get away, formed before cessation of the acts constituting the felony, constitutes aiding and abetting. [Citation.]" (In re Malcolm M., at p. 171.)

In Comforts view of the evidence, her act of taking the gun from Makins formed the only factually supported basis for both convictions, occurred while the robbery was still in progress, and therefore permitted but one conviction, for aiding and abetting. We disagree and uphold both convictions.

We first reject the notion that the robbery was still in progress when Comfort took the gun. The matter is controlled by People v. Cooper (1991) 53 Cal.3d 1158 (Cooper), which addressed the duration of robbery for purposes of aiding and abetting. Cooper "held that the asportation element of robbery, although satisfied by slight movement, continues until the loot has been carried away to a place of temporary safety. A person therefore commits robbery as an aider and abettor if, all other elements being also satisfied, the person `form[s] the intent to facilitate or encourage commission of the robbery prior to or during the carrying away of the loot to a place of temporary safety." (People v. Pulido (1997) 15 Cal.4th 713, 723, quoting Cooper, supra, 53 Cal.3d at p. 1165.) But Cooper also rejected the notion that a robbery continues through the escape to a place of temporary safety "regardless of whether or not the loot is being carried away simultaneously." (Cooper, at p. 1166.) Rather, once asportation has ceased, the effect of knowing assistance "is only to lessen the chance that [a perpetrator] will be captured and held accountable," rendering culpability "that of an accessory after the fact, rather than that of a principal." (Id. at p. 1168.)

Makins had stashed the bank deposits (and his red jacket) into a trash can during his flight, and this was before he passed through the courtyard and joined Comfort at the kiosk on the other side, where she opened her briefcase to receive the gun. Asportation was therefore aborted, rendering gun assistance at that point the act of an accessory, but Comfort disagrees, positing theories that: (1) this was just a temporary relinquishment of possession until they could return to the trash can to retrieve the loot once they were free to do so; and (2) the victims cell phone, whose fate was never revealed by the evidence, remained with Makins so that at least that part of the loot was still being carried off when he met Comfort at the kiosk to stash the gun. Neither theory succeeds.

The inference that Makins might try to retrieve the loot later, if he got the chance, is reasonable, but it is not enough to constitute ongoing asportation until such time as that might occur. Comfort cites precedent that a defendant may be in constructive possession of drugs he has hidden in ivy, where he is later seen searching there (People v. Showers (1968) 68 Cal.2d 639, 643-644), but we have no authority that one can be in constructive possession of loot during the asportation element of a robbery. Moreover, the objectively overwhelming inference, factually, is that Makins stashed his loot (and his identifying red jacket) when he realized, from pursuit by an excited group of citizens, that he could soon be caught. There is no reasonable room to infer, with pursuers closing in, that he stashed the loot as a temporary ploy after which he would circle back. Fixing the time when a robber has reached a place of temporary safety is measured objectively, not subjectively (People v. Haynes (1998) 61 Cal.App.4th 1282, 1292), and we find an objective measure equally appropriate for measuring the end of asportation. Whatever Makinss subjective hopes about returning to the trash can, we take an objective vantage point. Our evidence shows hot pursuit and a supported inference that Makins might return in the event that he eluded capture. But that would, of course, be after he had reached a place of temporary safety, clearly making the retrieval no longer part of an ongoing robbery. (Cf. Cooper, supra, 53 Cal.3d at p. 1165.)

As for continued retention of the cell phone, this is something that jurors were never asked to consider. To the extent that they did, however, there was no evidence that Makins still had it when he reached Comfort or was soon afterward detained and arrested. Further, the overwhelming inference is that he got rid of it somewhere during the earlier pursuit, as he did with the deposits and sweatshirt, because it marked him as the robber. The cell phone itself must have had little value relative to the deposits, and since Makins chose not to take any other contents of Gammons purse, he evidently took it only to keep Gammon from phoning for help. Logically, it would be discarded at the first opportunity. What we have, then, is no evidence that Makins kept the phone and no reason to infer that he did. This is not enough upon which to find that asportation was still in progress when Comfort received the gun into her briefcase.

The record thus establishes that accepting the gun was an act done when the robbery was no longer in progress for aiding and abetting purposes, and this accords with the prosecutors jury argument that the "gun switch" was what made Comfort an accessory: "[A]ccessory after the fact, thats the `after part of the robbery. Okay. Mr. Makins, hes taken off with the money. Hes got the—throws the money and the sweatshirt in the garbage can, and they do the gun switch. [¶] The reason shes charged with accessory is because of the gun switch. Accessory after the fact is, you are helping somebody escape capture or prosecution by doing an act that helps—that would help them evade the police in the situation. [¶] In this case, it would be the fact that—that she was helping him dispose of the gun."

It follows that double conviction is proper as long as aiding and abetting finds support in Comforts actions before the gun switch. Comfort counters, "Other than the evidence [of her] meeting Makins on the street as he fled the scene of the robbery, there was nothing close to substantial evidence that [she] was guilty of aiding and abetting." She adds that the trial court found "a scintilla" or only "`very thin circumstantial evidence" of her guilt.

We disagree, first, with Comforts characterization of the courts view. The cited remarks came not at the close of evidence, but in denying a defense motion for acquittal at the close of the Peoples case-in-chief (§ 1118.1). Defense evidence, we note, would later supply much support for the charges, like Comforts acknowledgement of having discussed her work often with Makins, and the many inconsistencies in her explanation of events. The courts "scintilla" remark, seemingly pruned from the civil nonsuit standard (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 291) and engrafted onto the substantial evidence standard governing an acquittal motion (People v. Cole (2004) 33 Cal.4th 1158, 1212-1213), was that there was "[c]ertainly" a scintilla of evidence. The court did not add the adjective "mere," as Comforts briefing suggests. The courts "very thin circumstantial evidence" remark likewise referred to evidence of "the planning of this crime, and hence, the aiding and abetting of this crime" (italics added). Direct evidence of planning does tend to support aiding and abetting, but it is not essential. "Aiding and abetting does not require participation in an agreement to commit an offense, but merely assistance in committing the offense." (People v. Morante (1999) 20 Cal.4th 403, 433, citation and fn. omitted.) The remarks are therefore of little value, if indeed they are entitled to deference at all on the double-conviction question.

We find ample support for Comforts aiding and abetting conviction based on actions independent from the gun switch, and we reject Comforts implicit assumption that later actions as an accessory are beyond consideration. To the contrary, they could show a propensity or design or plan (cf. People v. Balcom (1994) 7 Cal.4th 414, 425-426 [discussing restrictions on such use of uncharged subsequent acts]), and conduct after a crime, including flight, is a factor for determining aiding and abetting (People v. Haynes, supra, 61 Cal.App.4th at p. 1294). Our search is for distinct and independent actions (People v. Riley, supra, 20 Cal.App.4th at p. 1816), not distinct and independent plans or propensities, and this makes the post-robbery actions relevant.

Indeed, one of the overt acts charged on the conspiracy count here was the gun switch (see fn. 6, post).

Jurors acquitted Comfort of conspiracy, evidently due to reasonable doubt whether she specifically agreed to commit robbery prior to the robbery, but they convicted on a theory of aiding and abetting, having been instructed that assistance coincident with an intent to further a robbery could occur before or while Makins carried the loot to a place of temporary safety. Abundant evidence supports that conclusion. Jurors could find that her presence with a large bag on a nearby street, and lack of surprise when Makins showed up with a gun to hide, had nothing to do with lien research or a job application at the library. Rather, she was waiting, by prearrangement, for him to show up after robbing Lincoln Loan. Whether that plan arose that morning or well in advance of the event, jurors seemingly could not agree, but strong circumstantial evidence indicated that a scheme was afoot and that Comfort had assisted it by giving Makins information about the deposit routine. Makins knew where and for whom to wait and, tellingly, knew the deposits would be in a brown paper bag. He also had a replica gun that Comfort testified was hers, a sons former toy. True, as Comfort notes, Makins also lived in the house with her, but the inference of her giving the gun to him is strengthened by the fact that, according to her own testimony, she had kept it stored in her basement for about 10 years. Further suggesting her complicity was that she stood waiting with two bags, one of them large enough that she called it a "briefcase." The paperwork that she claimed to have carried in it was never produced, her story being that she left it in the library (but retrieved it post-arrest), and she could not account at trial for the absence of the large book she claimed she had carried. Jurors could rightly discredit those uses for the large bag. The prosecutor suggested in opening statements that the original plan might have been to return to the trash can to retrieve the gun, but jurors, who were not confined by that suggestion (People v. Perez (1992) 2 Cal.4th 1117, 1126) and were instructed that attorneys opening statements and closing arguments were not evidence, could infer that the briefcase was the intended receptacle for the gun and the bag of deposits, until the heist went awry and the loot had to be jettisoned in a trash can.

Both convictions stand. The "gun switch" offered by the prosecutor as the act of being an accessory after the fact was done after the robbery was no longer in progress, for purposes of measuring the end of aiding and abetting culpability. Furthermore, distinct and independent preceding actions and/or advice supported culpability as a principal, for the aiding and abetting. (People v. Riley, supra, 20 Cal.App.4th at p. 1816.)

II. Accessory Instruction

Comforts claim of instructional error seizes once more upon the termination of robbery for purposes of distinguishing aiders and abettors from accessories. She claims violations of her state and federal rights to due process, a fair trial, and a jury trial, urging that standard instructions, while correctly speaking of aiding and abetting as occurring "before or while a perpetrator carried away the property to a place of temporary safety" (CALCRIM No. 1603) and accessory actions as occurring "[a]fter the felony had been committed" (CALCRIM No. 440), failed to provide sufficiently nuanced "guidance" on deciding a robberys end point and "failing to explain that [accessory] liability must not be based on the defendants conduct after the robbery is complete." This prejudiced her, she claims, by allowing the jury to convict her of being an accessory based on conduct occurring before Makins "reached a place of temporary safety with the stolen property."

Our exhaustive discussion of these principles in part I (ante) allows us to reject Comforts claims in abbreviated fashion. First, however, we acknowledge the Peoples view that, the instructions being correct as far as they went, Comfort was obliged to seek amplification below and, not having done so or objected to the instructions as given, has forfeited her claims. We do not resolve that issue, or Comforts counterclaim that the court had a duty to amplify the instructions on its own, for we find no error or prejudice, even if the claims are properly preserved.

Comforts factual premise—that jurors might have found that the gun switch occurred during, rather than after, the robbery—is unsupportable. (Pt. I, ante.) No matter how full the instructions, sufficient evidence would not have allowed an objective determination that the robbery continued, for aiding and abetting purposes, once the loot was stashed in the trash can. It follows that there was no sua sponte duty to amplify the given instructions, for amplification was not necessary for the jurys understanding of the case. (See generally People v. Montoya (1994) 7 Cal.4th 1027, 1047.) Alternatively, due to the same lacking factual predicate, we could not find prejudice, even under the most stringent review standard. The absence of amplifying instruction did not contribute to the verdict on the accessory count, which Comfort appears to concede was based only on the gun switch. (See generally Yates v. Evatt (1991) 500 U.S. 391, 402-403.)

III. Probation Denial

Comfort seeks a remand for resentencing, urging that the court abused its discretion and violated her state and federal constitutional rights to a jury trial, against self-incrimination, and to appeal, by relying on her denial of guilt as a factor in denying probation. We find no need for a remand.

The probation report recommended, and the defense and prosecution concurred in, three years of formal probation with 364 days of jail time. The report summarized various factors this way: "The instant offense is viewed as very serious. The victim had what she believed to be a gun pointed at her during the robbery. Although she didnt report any out of pocket expenses and she is not requesting any restitution, she reported being emotionally traumatized. She frequently experiences anxiety and as a result, her everyday behavior has changed.

"The defendants claims of innocence and that she had nothing to do with the robbery, but was the victim of the codefendant is concerning, since her denial and lack of remorse would increase the likelihood that she may re-offend. Her explanation of the incident and the circumstances is questionable. Noteworthy is that during the probation interview she denied that she was having financial difficulties or that she was going to lose her house. However, in her written statement she reported that she was researching information on removing medical liens on her house and that she was looking for a job. Both statements would contradict her verbal assertions that she didnt have any financial problems at the time, and also appear to make the codefendants statements regarding the case more credible. Additionally, it is puzzling that with her reported background and education level that she would have associated with the codefendant, who she described as being criminal and `nuts. The nature of her prior convictions, DUI and welfare fraud, would suggest that she may have had more in common with the codefendant, who appears to have had an alcohol problem and was criminally oriented, than what she is willing to admit.

Makinss statements were summarized in the report as follows: "Codefendant Makins was interviewed and he admitted to the robbery. He explained that he and [Comfort] were desperate for money since she was going to lose the house. He stated that she had lost two jobs in a row, including a job she had at the victim business. He related that he wanted to raise money in order to pay a lawyer to remove the liens from the house. He advised that it was [Comforts] idea to rob the business since she was aware of how the company made their deposits every day. They knew that every day of the week, someone would exit the store carrying a brown paper bag with cash, and that it was generally the same lady who made the deposit. His plan was to rob the lady and take the money to [Comfort] which she would place in her briefcase. Since he noticed that he was being chased, he left the money in a garbage can and planned on returning to retrieve it later.
"Upon meeting with [Comfort], she opened the case she was carrying and he placed the BB gun inside. He advised that the BB gun was not loaded and it belonged to [Comfort]. He then reiterated that it was [Comforts] idea to rob the business and that they had been discussing and planning the robbery for about one week. Police noted that Makins had a mild odor of an alcoholic beverage. When asked, he stated that he had split a beer with [Comfort] earlier in the day and that they had consumed about a half gallon of wine the night before."
Comforts own statements, as related in the report, conformed in most respects with her trial testimony except that she "denied that she was having financial difficulties" at the time. In a four-page handwritten letter, Comfort reiterated her position that the robbery it was all Makinss doing.

"However, in the defendants favor is that she does have a minimal prior record and she has not accrued any other convictions since the instant offense. She has residential stability and she has family supportive of her. She has no prior periods of formal probation supervision and she expressed a willingness to abide by all conditions of probation. Therefore, a very guarded recommendation for probation will be made with a year in the county jail due to the seriousness of the instant offense."

Also before the court were the file and sentencing transcript for Makins, who had received a two-year, low-term sentence for his own conviction of second degree robbery, having a greater criminal history, but having expressed remorse and regret at sentencing.

The court found probation inappropriate for Comfort, stressing circumstances downplayed or unmentioned in the report—that Comfort took advantage of a position of trust or confidence (Cal. Rules of Court, rule 4.414(a)(9)), that the loot ($38,000) was a substantial amount of money (rule 4.414(a)(1)), and that Makins had used a gun he got from Comfort (ibid.). More fully, the court stated: "This [was] a serious crime, [section] 211. There was a breach of trust. The victims in this case were former co-workers of the defendant.

All further rule references are to the California Rules of Court.

The "substantial amount of money" was recovered and presumably returned, leaving little "monetary loss to the victim" (rule 4.414(a)(5)), but the large amount of the heist certainly rendered this robbery more serious than most (rule 4.414(a)(1)) and increased the risk of harm as store employees felt obliged to make hot pursuit of an armed robber through the downtown streets.

"[Makins] used the information that he received from this defendant to rob the employees of the Lincoln Loan.

"There was a substantial amount of money. He appeared to do this on—it seemed to be on behalf of this defendant.

"He . . . accepted responsibility early on in the proceedings; was very remorseful; was grateful that no one was injured, and received a low term [in] state prison.

"This defendant, on the other hand, was able to [make] bail; was able to continue this matter for quite some time; eventually went to trial, testified, was found guilty by a jury of the robbery and the [section] 32.

"I disagree with probations recommendation and the Peoples recommendation.

"I dont believe in light of all of those factors, that this is a probation case.

"I dont think that a person who doesnt accept responsibility for their crimes is amenable to probation . . . ."

The court agreed with defense counsel that there was "no evidence" at this trial of Makinss incriminating statements and stressed again later that it was not relying on those as related in the probation report. "Im . . . going based on . . . the information that he was living with the defendant. The gun that was used was the defendants sons replica handgun; fake handgun, and the testimony of having no knowledge was not credible, as this Court finds it, and neither did the jury find it to be particularly credible in light of the fact that they indeed convicted Ms. Comfort of what is a very serious crime." The court said it found remorse in Makinss plea and the "discussions that were put before the Court. . . ."

The court contrasted: "[N]one of that exists [in this case]," adding: "I strongly considered imposing the mid term of three years for your client, but in light of the fact that she has minimal record, was not the person with the gun pointed to the actual victims, I will impose the low term of two years . . . ." The court imposed but stayed (§ 654) a two-year term for the remaining count and granted 123 days of credit.

Initially, in light of sentencing having occurred on January 9, 2007, plus the credits granted and further credits probably earned since then, we suspect that the two-year term may have been served by the time this opinion is final, rendering any relief moot as a practical matter. Nevertheless, the claim fails on the merits.

A court may not impose a sentence that conflicts with a defendants exercise of her constitutional right to a jury trial (In re Lewallen (1979) 23 Cal.3d 274, 281), and hence, while lack of remorse is logically a valid aggravating factor, it may not be used where "the defendant has denied guilt and the evidence of guilt is conflicting" (People v. Holguin (1989) 213 Cal.App.3d 1308, 1319, citations omitted). However, a court may find lack of "conflicting" evidence where "the evidence of guilt is overwhelming" (ibid.), a concept that extends to probation denial, where lack of remorse is an expressly allowed factor (rule 4.414(b)(7)) but cannot be considered unless guilt evidence is overwhelming (People v. Leung (1992) 5 Cal.App.4th 482, 507).

We agree with the People that the evidence here was overwhelming. Comfort stresses her own testimony was that she had no idea what Makins was up to, but while her saying so did create a bare "conflict," it was unsupported and did not diminish the overwhelming circumstantial evidence of her complicity. We have earlier set out that evidence in detail. We do stress that her alibi of going to the library to research liens and submit a job application was, if plausible, utterly uncorroborated. She made no effort, for example, to show that she was ever in the library, which should have been simple given her claim to have spoken to library personnel and submitted a written application and résumé. Nor could she account for the absence of the specified biography she claimed was bulging her "briefcase," the asserted reason why she happened to have the briefcase held open at the moment when Makins walked up with a gun to stash inside. She also claimed, implausibly, that she never saw a gun, even though it was seen by at least one other witness many yards away. Also, a glaring inconsistency was her claim that, just seconds before she was detained, she gave her bag and gun to Joe Blaney, whereas all other evidence showed that she had both of her bags with her in the locked back seat of a patrol car, where an officer later found and seized the gun. If denial of a robbery coupled with a weak alibi witness can constitute "overwhelming" evidence of guilt in this context (e.g., People v. Leung, supra, 5 Cal.App.4th at p. 507), then so can a bare denial without any corroboration whatsoever.

Jurors, of course, had a reasonable doubt about the charged conspiracy, evidently unconvinced that an agreement to commit robbery preceded charged overt acts of (1) obtaining a BB gun, (2) meeting before the crime, (3) discussing either the location of the money or (4) the location and description of Lincoln Loan, or (5) attempting to dispose of the BB gun.

There is no merit to Comforts argument that the court itself found only "very thin circumstantial evidence" and mere "scintilla" of guilt evidence. As already explained in part I (ante), those remarks came in denying a motion for acquittal only partway through trial (§ 1118.1), pertained to a prior agreement for conspiracy, on which jurors ultimately acquitted, and, in any event, reflected the courts view that there was "[c]ertainly" a scintilla, not merely a scintilla. Later, at sentencing and after having heard all of the testimony, the court said it simply found: "[T]he testimony of having no knowledge was not credible . . . ."

Alternatively, if we assume error, the totality of the courts sentencing comments show that absence of remorse was one of many negative factors and that disregarding it would have made no difference. The probation report, which noted among other negative factors that Comfort was already on summary probation for driving intoxicated (Veh. Code, § 23152, subd. (b)), made "a very guarded recommendation for probation" and did so, it seems, without considering the large amount of money, the furnishing of the gun, or the breach of trust, all additionally cited and stressed by the court. None of those added factors, nor any original factors beyond remorse, is disputed, and we bear in mind that such factors need only be established at sentencing by a preponderance of the evidence (People v. Leung, supra, 5 Cal.App.4th at p. 506), whereas jurors apply a standard of proof beyond a reasonable doubt. (People v. Aragon (1992) 11 Cal.App.4th 749, 764; People v. Levitt (1984) 156 Cal.App.3d 500, 515.)

Comfort calls the remorse factor here "a categorical bar to eligibility," citing the courts remark, "I dont think that a person who doesnt accept responsibility for their crimes is amenable to probation . . . ." The problem with this view, however, is that it asks us to ignore the full record and the courts immediately preceding remark, uttered after referencing the report and three additional factors, "I dont believe in light of all those factors, that this is a probation case." (Italics added.) We cannot isolate a single remark, for "unless the record affirmatively indicates otherwise, the trial court is deemed to have considered all relevant criteria . . . ." (People v. Holguin, supra, 213 Cal.App.3d at pp. 1317-1318.) Accordingly, and contrary to Comforts assertion, this case is like People v. Kronemyer (1987) 189 Cal.App.3d 314, where, despite express comments by the sentencing judge on two challenged factors (including lack of remorse), the denial of probation "appear[ed] to be based upon the totality of the circumstances" (id. at p. 366).

Neither abuse of discretion nor prejudice is shown.

DISPOSITION

The judgment is affirmed.

We concur:

Lambden, J.

Richman, J.


Summaries of

People v. Comfort

Court of Appeal of California
Jul 30, 2008
No. A116808 (Cal. Ct. App. Jul. 30, 2008)
Case details for

People v. Comfort

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. SUSANNAH MERLINA COMFORT…

Court:Court of Appeal of California

Date published: Jul 30, 2008

Citations

No. A116808 (Cal. Ct. App. Jul. 30, 2008)