Opinion
D070812
03-14-2017
THE PEOPLE, Plaintiff and Respondent, v. GREGORY FANTI, Defendant and Appellant.
Conrad Peterman, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Scott C. Taylor and Adrian R. Contreras, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD265573) APPEAL from a judgment of the Superior Court of San Diego County, Kenneth K. So, Judge. Affirmed. Conrad Peterman, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Scott C. Taylor and Adrian R. Contreras, Deputy Attorneys General, for Plaintiff and Respondent.
Gregory Fanti was apprehended after he took computer equipment and other property from a hotel conference room. A jury found Fanti guilty of robbery, and that he personally used a knife during the robbery. (Pen. Code, §§ 211, 12022, subd. (b)(1).) The court imposed a 12-year sentence.
At trial, Fanti did not dispute he took the property, but argued he did not do so with force or fear and thus was not guilty of robbery. The jury rejected this defense and found the prosecution met its burden to prove Fanti committed a robbery. On appeal, Fanti challenges the sufficiency of the evidence to support the jury's finding that he took the property with force or fear. He also contends the court erred in failing to sua sponte give a unanimity instruction and/or his counsel was ineffective by failing to request this instruction. We reject these contentions and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
During the early morning hours, Jorge Arellano was on duty as a private security guard for a large resort hotel in San Diego. While patrolling the hotel grounds at about 4:00 a.m., Arellano saw two men in a white truck pass in front of the hotel pavilion. Soon after, Arellano saw two men, each with a bag, walking out of a hotel conference room. During the day, this conference room was used by members of a convention group (referred to as "U.S. Sailing"). The U.S. Sailing group members had stored computers and other equipment in the conference room.
Arellano approached the two men to ask why they had just left the conference room. Fanti was one of the men and he carried a bag with a logo that Arellano recognized from the conference room. A computer stuck out of the top of the bag.
Arellano asked the men who had given them permission to take the bag. Fanti responded in an angry manner, saying " 'Fuck you' " and that the bag was his personal property. When Arellano continued to question him, Fanti asked Arellano who he was, and Arellano said he was a hotel security guard and they were trespassing. As Fanti walked away, Arellano radioed the hotel security staff to advise he was investigating suspicious people. Fanti then turned toward Arellano, lifted his jacket, and looked directly at Arellano. Arellano saw a black object he thought was probably a knife on Fanti's right side. Arellano retreated one step because he did not "want to get hurt." Arellano also radioed for backup and said, " 'SOS I need help.' "
Arellano then continued to follow the men, but stayed a few feet away from them. When Fanti and his companion began running, Arellano chased after the men. The other man threw a backpack at Arellano, but it did not reach Arellano.
When Arellano and Fanti were at or near the white truck, Arellano's supervisor (Shawn Girardin) arrived on the scene. Fanti approached the driver's side of the white truck, but Girardin told him to stop. Fanti then turned toward Girardin (and away from Arellano), and Fanti reached toward his right hip like he was reaching for a weapon. Girardin (a former wrestler) immediately tackled Fanti and put him in a chokehold. After Girardin subdued Fanti, Arellano tied Fanti's legs. At some point during the struggle, Arellano saw the knife attached to Fanti's waistband, removed it, and threw it aside. The knife was contained in a covered black sheath and was about four inches. The police were called and arrested Fanti.
DISCUSSION
I. Sufficiency of the Evidence
Fanti does not challenge that he was the person who took the computer equipment and other property from the hotel conference room without permission. But he contends the crime was at most a burglary. He argues there was insufficient evidence to establish he committed a robbery because there was no evidence he took the property "by force or fear."
In considering a challenge to the sufficiency of the evidence, "we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence — that is, evidence that is reasonable, credible, and of solid value — from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. . . . We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. . . . If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. . . . 'A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' " (People v. Albillar (2010) 51 Cal.4th 47, 60.)
"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." (Pen. Code, § 211.) The taking element of robbery has two elements: (1) gaining possession of the victim's property; and (2) asporting or carrying away the property. (People v. Cooper (1991) 53 Cal.3d 1158, 1165.) The asportation of the property and the crime of robbery continues "as long the loot is being carried away to a place of temporary safety." (Ibid.; accord, People v. Anderson (2011) 51 Cal.4th 989, 994; People v. Estes (1983) 147 Cal.App.3d 23, 27-28 (Estes).)
Under these principles, a burglary or theft "becomes robbery if the perpetrator, having gained possession of the property without use of force or fear, resorts to force or fear while carrying away the loot." (People v. Cooper, supra, 53 Cal.3d at p. 1165, fn. 8; accord, Miller v. Superior Court (2004) 115 Cal.App.4th 216, 222; Estes, supra, 147 Cal.App.3d at pp. 27-28.) "[T]he crime of robbery occurs when property is forcefully retained in the victim's presence . . . ." (People v. Gomez (2008) 43 Cal.4th 249, 264.) Robbery thus includes the use of force or fear to prevent a business's security guard from retaking stolen property. (See Estes, supra, 147 Cal.App.3d at pp. 27-28 [retail store security guard].)
To prove the use of fear to accomplish a robbery, the evidence must show the victim "was in fact afraid, and that such fear allowed the crime [including the escape] to be accomplished." (People v. Mungia (1991) 234 Cal.App.3d 1703, 1709, fn. 2.) But the law does not require "direct proof of fear; fear may be inferred from the circumstances in which the property is taken. [Citation.] [¶] If there is evidence from which fear may be inferred, the victim need not explicitly testify that he or she was afraid. [Citations.] Moreover, the jury may infer fear ' "from the circumstances despite even . . . contrary testimony of the victim.' " [Citations.] [¶] The requisite fear need not be the result of an express threat or the use of a weapon. [Citations.] Resistance by the victim is not a required element of robbery [citation], and the victim's fear need not be extreme to constitute robbery [citation]. All that is necessary is that the record show ' " 'conduct, words, or circumstances reasonably calculated to produce fear . . . .' " ' [Citation.] [¶] Intimidation of the victim equates with fear." (People v. Morehead (2011) 191 Cal.App.4th 765, 775.)
The circumstances here show Fanti engaged in conduct calculated to produce fear when he lifted his jacket to display his knife in response to Arellano's questions about his possession of the U.S. Sailing property. A jury could reasonably find that by displaying the weapon, Fanti was seeking to intimidate Arellano to prevent him from recapturing the property. In response to the knife display, Arellano manifested fear by taking a step back and deciding not to physically confront Fanti because he did not want to get hurt. Arellano also made an "SOS" call seeking immediate help. Although Arellano later discovered the knife was in a closed sheath, Arellano had a reasonable basis to believe that Fanti could or would use the weapon against him if Arellano attempted to physically stop Fanti from leaving the hotel premises.
These facts constitute substantial evidence of the fear element of robbery. (See People v. Davison (1995) 32 Cal.App.4th 206, 216 [finding sufficient evidence of fear where the victim was confronted by two men at an automatic teller machine and ordered to " ' "[s]tand back" ' "].)
Fanti's sole appellate argument is that Arellano did not appear frightened because he continued to follow Fanti and did not specifically tell his supervisor about the knife when he made the SOS call. Fanti argues that when Arellano stepped back, Arellano was "manifesting caution, not fear, as one would while barbequing over an open flame."
Although the jury could have reached this conclusion, it was not required to do so. The jury had a reasonable basis to find Fanti sought to successfully escape with the stolen goods by placing Arellano in fear for his physical safety. He did this by opening his coat and showing Arellano the weapon, communicating to Arellano that he was in possession of a knife and would be willing to use it. Arellano acted consistent with being in fear by stepping away from Fanti, deciding not to confront Fanti, and calling for immediate help. In establishing the fear element, there is no requirement that a defendant make a specific threat or say anything. (See People v. Brew (1991) 2 Cal.App.4th 99, 104.) If "the perpetrator uses the victim's fear to accomplish the retention of the property, it makes no difference whether the fear is generated by the perpetrator's specific words or actions designed to frighten, or by the circumstances surrounding the taking itself." (People v. Flynn (2000) 77 Cal.App.4th 766, 772.)
II. Unanimity Instruction
Fanti contends that if we determine substantial evidence supported that he committed the crime with "force or fear," the trial court erred in failing to sua sponte instruct the jury that it must unanimously agree on the particular act supporting this statutory element. He argues the evidence showed he allegedly twice threatened the use of a knife: (1) when Arellano was following Fanti; and (2) when Arellano's supervisor confronted Fanti near the white truck. Fanti argues the jury was required to unanimously agree as to which of these incidents established that he used force or fear to commit the robbery.
When the People charge a criminal statutory violation "and the evidence establishes several acts, any one of which could constitute the crime charged, either the state must select the particular act upon which it relied for the allegation of the information, or the jury must be instructed that it must agree unanimously upon which act to base a verdict of guilty." (People v. Jennings (2010) 50 Cal.4th 616, 679.) There are several exceptions to this rule. "For example, no unanimity instruction is required if the case falls within the continuous-course-of-conduct exception, which arises 'when the acts are so closely connected in time as to form part of one transaction'. . . . There also is no need for a unanimity instruction if the defendant offers the same defense or defenses to the various acts constituting the charged crime." (Ibid.) If the circumstances support the need for a unanimity instruction, the court has a sua sponte duty to so instruct. (People v. Melhado (1998) 60 Cal.App.4th 1529, 1534.)
In this case, the unanimity instruction was not necessary because the prosecution elected the act upon which the robbery charge was founded. In the complaint, the People charged Fanti with "unlawfully and by means of force and fear take personal property from the person, possession and immediate presence of JORGE ARELLANO in violation of" Penal Code section 211. (Italics added.) Of the two incidents that potentially could have supported the force or fear element, Arellano was a victim only of the first one, e.g., when Fanti turned around and displayed the knife to Arellano in response to Arellano's questioning him about his possession of the property. With respect to the second incident, Arellano's supervisor was the only person who claimed to have seen Fanti reach for a weapon as he stood next to the vehicle. Arellano became involved only after the supervisor tackled Fanti when Arellano assisted the supervisor to subdue Fanti and tie his legs. Given Arellano's limited involvement in this latter confrontation, during closing argument the prosecutor relied only on the first incident to argue that the People had proved the robbery crime. In her closing argument, defense counsel also discussed only the first incident, and argued that the prosecutor did not establish the force or fear element because Arellano did not act consistent with being fearful after Fanti lifted his jacket and displayed the knife. Because the prosecutor elected the act that formed the crime, no unanimity instruction was required.
Additionally, even assuming there was no election and either incident could support a robbery charge, the two acts were part of a continuous course of conduct. They occurred minutes apart, and involved the same property with a single objective of getting the property away from the hotel grounds. Fanti's sole defense was that there was no force or fear because the circumstances established that Arellano was never afraid. The verdict shows the jury rejected this single defense, and a unanimity instruction was therefore not required. (See People v. Williams (2013) 56 Cal.4th 630, 682; People v. Riel (2000) 22 Cal.4th 1153, 1199-2000.) Fanti did not offer a defense based on evidence that he displayed his knife to Arellano, but he did not reach for his weapon against Girardin.
III. Ineffective Assistance Claim
Fanti contends his counsel was ineffective for failing to request a unanimity instruction.
To show constitutionally ineffective representation, the defendant must establish counsel's performance fell below an objective standard of reasonableness, and there exists a reasonable probability that absent counsel's deficiency the result would have been different. (People v. Weaver (2001) 26 Cal.4th 876, 925.) There is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance, and on appeal we will not find ineffective assistance unless there could be no conceivable tactical reason for counsel's acts or omissions. (Id. at pp. 925-926.)
Further, if the record does not show prejudice from counsel's alleged deficiency, we may reject the claim without determining whether counsel's performance was deficient. (People v. Sapp (2003) 31 Cal.4th 240, 263.) "Prejudice is shown when there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (People v. Williams (1997) 16 Cal.4th 153, 215.)
In this case, counsel did not act below an objective standard of reasonableness because there were no grounds for a unanimity instruction. Additionally, the record does not support that Fanti was prejudiced by the lack of this instruction. The jury's finding that Fanti was guilty of robbery showed the jury believed the prosecution's evidence that Fanti had used force or fear against Arellano in attempting to leave the premises with the stolen goods. The jury's finding on the personal knife use enhancement supports this conclusion. It is not reasonably probable the jury would have reached a different conclusion on these issues if it had been given a unanimity instruction.
DISPOSITION
Judgment affirmed.
HALLER, J. WE CONCUR: MCCONNELL, P. J. BENKE, J.