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People v. Connell

California Court of Appeals, Second District, Seventh Division
Feb 9, 2011
No. B220278 (Cal. Ct. App. Feb. 9, 2011)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County, No. PA063258, Ronald S. Coen, Judge.

Christopher Nalls, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Theresa A. Patterson and Russell A. Lehman, Deputy Attorneys General, for Plaintiff and Respondent.


JACKSON, J.

INTRODUCTION

Defendant Jason Johnathon Connell appeals from a judgment of conviction entered after a jury trial. He was convicted of second degree robbery (Pen. Code, § 211) and misdemeanor battery (§ 242), and the jury also found true the allegations that defendant had a prior strike conviction (§ 667, subds. (b)-(i)), which was a serious felony within the meaning of section 667, subdivision (a)(1), and had served a prior prison term (§ 667.5, subd. (b)).

All further statutory references are to the Penal Code.

The court sentenced defendant to state prison for an aggregate term of 11 years: six years (the middle term of three years doubled pursuant to sections 667, subds. (b)-(i), and 1170.12), plus a consecutive five-year enhancement pursuant to section 667, subdivision (a)(1). On the misdemeanor, appellant was sentenced to a consecutive six months in county jail.

On appeal, defendant contends that the evidence is insufficient to support the robbery conviction, the trial court erred in modifying CALCRIM No. 1600, and the trial court erred in not instructing on the legal concept of abandonment. We find no error and affirm the judgment.

FACTUAL BACKGROUND

Prosecution Evidence

In the morning of November 16, 2008, Mike Shoushi (Shoushi) was working as a supervisor at a Von’s supermarket in Tujunga. He received a call from the store’s general manager that a customer was acting suspiciously. The general manager pointed out defendant, who was walking back and forth towards the exit doors while pushing a shopping cart full of mostly high-end gift items. Shoushi asked defendant if he needed help in finding anything and defendant said “no.” At some point, defendant went to a coffee kiosk inside the store and purchased a cup of coffee.

At some point, defendant pushed the shopping cart past the check stand, paused and momentarily left the cart by the exit door. He returned to the shopping cart and quickly pushed it out the exit door.

Shoushi ran after defendant as defendant quickly pushed the shopping cart full of merchandise away. Defendant turned back, saw Shoushi, and then tipped or “threw” the shopping cart over and ran directly at Shoushi. Shoushi was afraid and ran away from defendant. Defendant ran after Shoushi, threatening to beat him.

Defendant then confronted an elderly woman, who had pulled her car into a nearby parking space. He tried to open her car door and yelled profanities at her.

Ernest Unland (Unland) and his wife were loading groceries when they heard a commotion. Unland saw defendant pushing a shopping cart “really fast” down one of the aisles in the parking lot, with Shoushi in pursuit. He saw defendant tip over the shopping cart, breaking a lot of the merchandise in it, and then chase Shoushi.

Defendant turned his attention to Unland and his wife, uttering profanities and telling him to mind his own business. Unland stated there was no problem and they just wanted to see if everyone was alright. As the Unlands continued to load their groceries, defendant continued to yell at them and walked up close behind them. Unland again said there was no problem, but defendant cursed at him and punched him in the chin.

The two men struggled. Unland ended up on the top of defendant, and defendant begged Unland to stop. Unland stopped, but defendant kicked him in the ribs. Unland again got on top of defendant and defendant again begged Unland to stop.

A blue van arrived, and the man driving it jumped out and told defendant to get into the van. Defendant got into the passenger seat of the van and continued to yell threats at Unland as the van drove away.

By the time defendant was driven away from the parking lot, a store manager was retrieving the items that defendant had stolen. Many of the items were broken or damaged from striking the pavement.

Defense Evidence

Eric Hurly (Hurly) knew defendant from high school. On the morning of November 16, 2008, he was at the bus stop adjacent to the parking lot of the Von’s supermarket. He saw defendant walk out of the store with a shopping cart like a normal shopper. He saw a worker from the store chase him as if defendant had stolen something. Defendant ran from the store employee and pushed the shopping cart over.

Hurly saw the incident with a pedestrian in the parking lot. He felt the pedestrian was the aggressor and did not see any punches thrown. He saw defendant run to a van, which drove away.

Hurly’s sister, Stacey, was also at the bus stop that morning. She saw defendant walking fast but casually outside the store while pushing a shopping cart. She saw defendant throw the cart and start running when he was being chased by an employee of the store. As defendant ran away, “he got tackled, or there was like some kind of fight.” She then saw defendant get in a car and leave.

DISCUSSION

Sufficiency of the Evidence to Support the Robbery Conviction

To assess a claim of insufficient evidence in a criminal case, “we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime or special circumstances beyond a reasonable doubt. [Citation.] The record must disclose substantial evidence to support the verdict-i.e., 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. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.] ‘Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]’ [Citation.] A reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support”’ the jury’s verdict.” (People v. Zamudio (2008) 43 Cal.4th 327, 357.)

“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.) The taking in robbery includes the same element of asportation or carrying away as in larceny. Even though the defendant does not use force or fear at the time of gaining possession, the defendant is guilty of robbery if he or she uses force at the time of asportation. (People v. Perhab (1949) 92 Cal.App.2d 430, 435).

Defendant contends the evidence was insufficient to support his conviction of robbery because he was no longer asporting the groceries he stole when he used fear against Shoushi. We disagree.

As noted in People v. Flynn (2000) 77 Cal.App.4th 766, “‘[g]aining possession or... carrying away’ includes forcing or frightening a victim into leaving the scene, as well as simply deterring a victim from preventing the theft or attempting to immediately reclaim the property. [Citations.] [¶] Most robberies involve actual or threatened force, resulting in fear on the part of the victim, at the time the property is taken. [Citation.]... [However], the requisite force or fear need not occur at the time of the initial taking. The use of force or fear to escape or otherwise retain even temporary possession of the property constitutes robbery. [Citations.]” (Id. at pp. 771-772.)

Here, the evidence shows that while defendant was attempting to escape with the stolen property, Shoushi pursued him in an effort to recover the property. At that point, defendant used fear to effectuate his escape. That he then abandoned the property and made his escape does not preclude a conviction. “The robber’s escape with the loot is not necessary to commit the crime. [Citation.]” (People v. Pham (1993) 15 Cal.App.4th 61, 65; People v. Torres (1996) 43 Cal.App.4th 1073, 1079, disapproved on another ground in People v. Mosby (2004) 33 Cal.4th 353, 365, fn. 3.)

The cases cited by defendant in support of his position are inapposite. People v. Cooper (1991) 53 Cal.3d 1158 dealt with the intent necessary for conviction as an aider and abettor in a robbery. People v. Gomez (2008) 43 Cal.4th 249 addressed the “immediate presence” element of robbery.

The Trial Court’s Modification of CALCRIM No. 1600

Defendant contends that the trial court erred when it modified CALCRIM No. 1600. We disagree.

The modified version given the jury was as follows:

“To prove that the defendant is guilty of this crime, the People must prove that:

“1. The defendant took property that was not his own;

“2. The property was taken from another person’s possession and immediate presence;

“3. The property was taken against that person’s will;

“4. The defendant used force or fear to take the property or to resist attempts by the victim to regain the property;

“AND

“5. When the defendant used force or fear to take the property or to resist attempts by the victim to regain the property he intended to deprive the owner of it permanently.”

Defendant failed to object to the modified version of the instruction. The People submit that defendant forfeited any claim of error, since no objection was made in the trial court. (See People v. Rodrigues (1994) 8 Cal.4th 1060, 1142, 1192; People v. Johnson (1993) 6 Cal.4th 1, 52). We agree. In any event, the modified instruction was legally accurate.

The trial court properly instructed the jury that “‘[a] robbery occurs when defendant uses force or fear in resisting attempts to regain the property.’ [Citation.]” (People v. Pham, supra, 15 Cal.App.4th at pp. 65-66.) “It is enough that defendant forcibly prevented the victims from recovering their property, even for a short time.” (Id. at p. 68.) The trial court’s modification of the jury instruction adequately explained this to the jury.

Defendant is incorrect when he contends that the instruction was erroneous “because it allowed the jury to find a robbery even when the thief was not asporting stolen property....” As clearly set forth in People v. Flynn, supra, 77 Cal.App.4th at page 771, “‘[g]aining possession or... carrying away, ’” i.e., the asportation element of robbery, “includes forcing or frightening a victim into leaving the scene, as well as simply deterring a victim from... attempting to immediately reclaim the property.” The instruction given by the trial court was legally accurate and proper.

The Trial Court’s Failure to Instruct on Abandonment

Defendant also contends that the trial court erred in failing to instruct the jury on the principle of abandonment. Specifically, he claims that the trial court (a) “erred in failing to instruct on abandonment sua sponte, ” and (b) “erred in refusing to give a pinpoint instruction.” We disagree.

After a discussion of a proposed special instruction by the People that there is no requirement that force or fear be used in the removal of the property, and the trial court’s request that the prosecutor submit the requested instruction, the following colloquy occurred with defendant’s counsel:

“[Defense counsel]: Same for defense, because we got our issue with abandonment of the property.

“The Court: In that case it would not be a special instruction. You would just say that he was not using force. He abandoned the property. That doesn’t require a special instruction.

“[Defense counsel]: But I could argue that?

“The Court: Surely.”

In general, the trial court has the duty to instruct the jury sua sponte as to the principles of law relevant to the issues raised by the evidence. (People v. Wims (1995) 10 Cal.4th 293, 303.) Additionally, a defendant is entitled to an instruction which pinpoints the theory of his defense. (People v. Wharton (1991) 53 Cal.3d 522, 570.) Such an instruction is one which “pinpoints the evidence in the case in the light of defendant’s theory of defense and instructs the jury that the People bear the burden of ultimate persuasion on the issue which the instruction pinpoints.” (People v. Brady (1987) 190 Cal.App.3d 124, 135, disapproved on another ground in People v. Montoya (1994) 7 Cal.4th 1027, 1040.) However, a defendant is entitled to a “pinpoint” instruction only upon request; there is no requirement that such an instruction be given sua sponte. (People v. Saille (1991) 54 Cal.3d 1103, 1119.)

The instruction on abandonment would appear to have been a “pinpoint” instruction, relating particular facts of defendant’s purported “abandonment” of the property he stole to a legal issue in the case of whether defendant used fear to resist the victim’s attempt to regain the property and would have “pinpointed part of defendant’s defense.” The trial court was not required to give the instruction sue sponte.

In any event, any error in failing to give an instruction on “abandonment” was harmless.

The trial court instructed the jury on the elements of robbery. Defendant’s counsel argued to the jury that defendant did not use force or fear. Counsel pointed out there were two eyewitnesses who said that they did not see the defendant chase the store manager. An instruction on abandonment, if requested by defendant, would not have provided defendant with any further defense, since his argument was that there was no force or fear.

DISPOSITION

The judgment is affirmed.

We concur: PERLUSS, P. J., ZELON, J.


Summaries of

People v. Connell

California Court of Appeals, Second District, Seventh Division
Feb 9, 2011
No. B220278 (Cal. Ct. App. Feb. 9, 2011)
Case details for

People v. Connell

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JASON JOHNATHON CONNELL…

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

Date published: Feb 9, 2011

Citations

No. B220278 (Cal. Ct. App. Feb. 9, 2011)