Opinion
A162572
12-16-2022
THE PEOPLE, Plaintiff and Respondent, v. ANDREW ROBERT GARDNER, Defendant and Appellant.
NOT TO BE PUBLISHED
(San Mateo County Super. Ct. No. 20SF011273A)
DEVINE, J. [*]
Appellant Andrew Robert Gardner appeals from his conviction for robbery. He argues that the conviction is unsupported by substantial evidence, and he asserts that the trial court committed instructional error. He further contends that we must remand for resentencing based on recent legislative amendments to Penal Code section 1170. The Attorney General concedes that we must remand for resentencing based on these recent amendments, and we accept that concession. We remand for resentencing consistent with the views expressed in this opinion. In all other respects, we affirm the judgment.
All undesignated statutory references are to the Penal Code.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. The Charges
In October 2020, the district attorney filed a one-count information charging appellant with second degree robbery (§ 212.5, subd. (c).) The information also alleged that he was on bail at the time of the offense (§ 12022.1).
B. Evidence Offered at Trial
E.J. was working as a janitor for a company called Fresh Maintenance. She was assigned to work at a Menlo Park apartment complex on Mondays, Wednesdays, and Fridays from 4:50 a.m. to 1:30 p.m. She had keys to the complex's laundry room, clubhouse, and a bathroom. She recognized many of the residents and knew the manager of the complex because she had worked there for about two years.
The complex has two sets of mailboxes, one is attached to the laundry room and the other is attached to the clubhouse. Delivery companies such as Amazon would sometimes leave packages in plastic bins that are located near the mailboxes. The mailbox area is open, and is not closed off by a gate or some other barrier. E.J. never touched the mailed packages because they were not hers.
On April 13, 2020, E.J. was approaching the laundry room area when she saw appellant with a woman who was removing mailed packages and taking them to a nearby car that was idling and facing towards the street with its lights on. E.J. did not recognize the pair and asked in Spanish why they were taking the packages. She did not understand appellant when he replied because he spoke in English. She responded that she was going to call the police. When the couple got in the car to leave, E.J. took a photo of the vehicle's license plate. Appellant got out of the car and ordered her to give him the picture. As she yelled for the apartment manager, appellant grabbed her waist and covered her mouth with his hand and told her to" 'shut up.'" He held her for about 10 seconds. During this time, she was afraid. He let her go after his female companion told him they should leave. They then drove away. E.J. called 911 and was able to transmit the photo of the suspects' car to a police officer. The police later located the registered owner of the vehicle, who was appellant, by using the photo that E.J. had taken. E.J. later identified appellant in a photo lineup.
At trial, several residents of the apartment complex testified that they had been expecting packages around April 13, 2020 but did not receive them. Police officers subsequently located empty boxes that had been addressed to these residents.
C. Verdict and Sentencing
On February 25, 2021, the jury found appellant guilty as charged. That same date, the trial court found the on-bail allegation to be true.
In March 2021, the trial court imposed the middle term of three years for robbery and stayed punishment for the on-bail enhancement.
On April 13, 2021, the trial court recalled appellant's sentence, imposed the middle term of three years for robbery, and struck the on-bail enhancement. This appeal followed.
II. DISCUSSION
A. Substantial Evidence of Constructive Possession
1. Appellant's Contentions
Appellant argues that his robbery conviction must be reversed and reduced to petty theft because there was insufficient evidence that E.J. had possession of the packages that he stole. The Attorney General counters that E.J. had constructive possession of the packages based on her special relationship with the complex's tenants. The Attorney General has the better argument.
2. Standard of Review
We apply the substantial evidence standard of review to assess 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. (People v. Steele (2002) 27 Cal.4th 1230, 1249.) We presume in support of the judgment the existence of every fact that could reasonably be deduced from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) We ask whether, after viewing the evidence in the light most favorable to the judgment, any rational trier of fact could have found the allegations to be true beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 319.)
3. Additional Background
Prior to trial, appellant's trial counsel made a motion in limine challenging the prosecution's reliance on People v. Gilbeaux (2003) 111 Cal.App.4th 515 (Gilbeaux) to support a theory of constructive possession in charging appellant with robbery (we discuss Gilbeaux further below). The trial court denied the motion without prejudice. At the close of the prosecution's case, appellant moved for acquittal under section 1118, arguing that the elements of robbery had not been shown because E.J. was not in possession of the tenants' stolen packages. The prosecutor countered that the element was satisfied, again relying on Gilbeaux, supra. Appellant's counsel responded that the present case was factually distinguishable from Gilbeaux because E.J. did not have a strong enough connection to the owners of the stolen property. The trial court denied the motion, concluding that the issue of possession was a question of fact for the jury to decide.
4. Analysis
Applying the substantial evidence standard, a rational trier of fact could have found the essential elements of the crime of robbery beyond a reasonable doubt. (People v. Marshall (1997) 15 Cal.4th 1, 34.) 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.) To prove robbery, the prosecution must establish the defendant took property from the victim "by means of force or fear with the specific intent to permanently deprive him of that property." (People v. Young (2005) 34 Cal.4th 1149, 1176-1177.) However, "[a] robbery cannot be committed against a person who is not in possession of the property taken or retained." (People v. McKinnon (2011) 52 Cal.4th 610, 687 (McKinnon).) Yet, the victim does not have to be the actual owner of the property (People v. Estes (1983) 147 Cal.App.3d 23, 26 (Estes)), and physical possession is not required to establish the element of possession (McKinnon, supra, at p. 687). Indeed, possession may be actual or constructive. (Ibid.; see also People v. Nguyen (2000) 24 Cal.4th 756, 764 (Nguyen).) Constructive possession requires only "that there be some type of 'special relationship' with the owner of the property sufficient to demonstrate that the victim had authority or responsibility to protect the stolen property on behalf of the owner." (People v. Scott (2009) 45 Cal.4th 743, 753 (Scott).) The victim need not have "general authority to control the owner's property in other circumstances." (Id. at p. 754.)
Constructive possession is often recognized where the robbery involves business property taken from the business in the presence of an employee or an agent of that business. (See People v. Miller (1977) 18 Cal.3d 873, 880 [store security guard]; Estes, supra, 147 Cal.App.3d 23 at p. 27 [security guard]; Gilbeaux, supra, 111 Cal.App.4th 515 at p. 523 [janitors employed by business's cleaning company]; People v. Poindexter (1967) 255 Cal.App.2d 566, 568-569 [barmaid]; People v. Downs (1952) 114 Cal.App.2d 758, 765 [janitors].) "In addition, 'persons other than employees may be robbery victims if they have a" 'special relationship' with the owner of the property such that the victim had authority or responsibility to protect the stolen property on behalf of the owner.'" (McKinnon, supra, 52 Cal.4th 610, 687.) Even a visitor to a store who was forced to remove and surrender money from the store's cash box has been held to be a robbery victim. (People v. Moore (1970) 4 Cal.App.3d 668, 670-671.) Formulated another way, the question is whether the prospective victim" 'may be expected to resist the taking.'" (McKinnon, supra, 52 Cal.4th 610, 687.)
Courts have also recognized the necessary special relationship for robbery in nonbusiness contexts. (See, e.g., People v. Bekele (1995) 33 Cal.App.4th 1457, 1462, disapproved on another ground in People v. Rodriguez (1999) 20 Cal.4th 1, 13-14 [coworker who the owner asked to help stop the theft of owner's property]; People v. DeFrance (2008) 167 Cal.App.4th 486, 499 [the car owner's mother who had helped her son buy the car, had access to the car's keys, had driven the car, and was named on the insurance policy]; People v. Gordon (1982) 136 Cal.App.3d 519, 528-529 [parents].) In sum, "[f]or the purposes of robbery, it is enough that the person presently has some loose custody over the property, is currently exercising dominion over it, or at least may be said to represent or stand in the shoes of the true owner." (People v. Hamilton (1995) 40 Cal.App.4th 1137, 1143.)
Absent a special relationship to the property or the person to whom it belongs, an incidental relationship is not enough to establish the implied authority or duty to protect property that is necessary to constitute constructive possession. "By requiring that the victim of a robbery have possession of the property taken, the Legislature has included as victims those persons who, because of their relationship to the property or its owner, have the right to resist the taking, and has excluded as victims those bystanders who have no greater interest in the property than any other member of the general population." (Scott, supra, 45 Cal.4th 743 at pp. 757-758.) Thus, in Nguyen, supra, our Supreme Court reversed a robbery conviction where the husband of an employee was present in the break room for a party when the robbery occurred. (Nguyen, supra, 24 Cal.4th 756 at p. 764.) The court explained that as "a visitor to the business," the husband "was not in actual or constructive possession of the property taken from the business." (Ibid.) Similarly, where a Good Samaritan intervenes without any relationship to the owner or the property, there is no robbery. For example, in People v. Galoia (1994) 31 Cal.App.4th 595, a man collecting money from his coin-operated video games located in a convenience store tried to stop a robbery. The court found he was not a robbery victim. (Id. at pp. 597-599.) In Sykes v. Superior Court (1994) 30 Cal.App.4th 479, the defendant burglarized one business, stealing a saxophone, and a security guard working for another business gave chase. The absence of any special relationship between the music store and the security guard from a neighboring business precluded a robbery conviction. (Id. at p. 484.)
We find Gilbeaux, supra, 111 Cal.App.4th 515 to be instructive. In that case, the defendant and an accomplice entered a grocery store, bound two janitors who-like E.J.-were regularly assigned to work at the store through their employer cleaning company, confined them in a storage room along with two store employees, and forced the store's assistant manager to open the safe and put the money into a bag. A fourth store employee fled to a back office and contacted the police. (Id. at p. 517.) The defendant was convicted of six counts of robbery. (Ibid.) He unsuccessfully argued the evidence was insufficient to support his robbery convictions as to the two janitors. (Id. at p. 520.) Even though the janitors were merely present during the robbery (e.g., they did not turn over any store property to the robbers) and were not actual employees of the store, the appellate court upheld those convictions on the ground that the janitors "had sufficient representative capacity with respect to [the grocery store] so as to be in constructive possession of property stolen from [the grocery store]." (Id. at p. 523.)
We similarly conclude there was sufficient evidence to support a finding that E.J. was a victim of robbery. It logically follows from the reasoning of Gilbeaux that E.J. was in constructive possession of the stolen items when appellant grabbed her and covered her mouth. Like the janitors in Gilbeaux, E.J. was employed by a company that regularly serviced the business where the offense was committed. While she did not work directly for the tenants of the complex, the security of residents and their possessions can be viewed as integral to an apartment complex's business. (See, e.g., Vasquez v. Residential Investments, Inc. (2004) 118 Cal.App.4th 269, 280 ["the law of negligence in the landlord-tenant context has evolved to impose a duty of reasonable care on the owner of an apartment building to protect its tenants from foreseeable third-party criminal assaults."])
That the packages were the property of the tenants and not the apartment complex is of no moment. In her capacity as a regular janitor at the complex, E.J. had a special relationship to the complex and, by extension, to the tenants there. The complex maintained a system where packages were placed in specified areas near where the tenants received their mail, which also was an area where E.J. regularly worked. Contrary to appellant's contentions, she was not acting merely as a Good Samaritan when he accosted her. Instead, like the janitors in Gilbeaux, her work was an extension of the complex's business, which was to provide reasonably secure housing for its paying tenants. Substantial evidence therefore supported the finding that the packages were taken from E.J.'s constructive possession.
B. Robbery Jury Instruction
Appellant contends his robbery conviction must be reversed because the trial court prejudicially erred in giving the jury a modified version of CALCRIM No. 1600. He asserts that the court's instruction relieved the prosecution of its burden to prove the element of possession. We are not persuaded.
1. Additional Background
Relying on Gilbeaux, supra, the prosecution filed a motion requesting a modification to CALCRIM No. 1600 to instruct the jury that a janitor who is contracted to clean a premises can have constructive possession of property located on the premises. Defense counsel objected to the proposed instruction, arguing that it effected a change to the elements of the crime of robbery. The trial court disagreed, finding that such a modification merely further defined the element of possession and did not change the elements of the crime. However, the court did not adopt the prosecutor's modification. Instead, as part of the CALCRIM No.1600 instruction, the court instructed the jury that, "An agent or contractor who is on duty in the area where the owner's property was taken has possession of the owner's property."
The original language in CALCRIM No. 1600 provides: "[A (store/[or] business) (employee/ <insert description> who is on duty has possession of the (store/[or] business) owner's property.]"
2. Applicable Legal Principles
"Under established law, instructional error relieving the prosecution of the burden of proving beyond a reasonable doubt each element of the charged offense violates the defendant's rights under both the United States and California Constitutions." (People v. Flood (1998) 18 Cal.4th 470, 479-480 [error to instruct jury that particular officers were "peace officers" in prosecution for evading a peace officer].) "[T]he constitutional right to a jury trial means that 'no matter how conclusive the evidence, a trial court cannot directly inform the jury that an element of the crime charged has been established. Absent a stipulation by the defendant that an element is established or is admitted, the trial court must submit that question to the jury.' [Citations.]' "The prohibition against directed verdicts 'includes perforce situations in which the judge's instructions fall short of directing a guilty verdict but which nevertheless have the effect of so doing by eliminating other relevant considerations if the jury finds one fact to be true.' [Citation.] ... '[N]o fact, not even an undisputed fact, may be determined by the judge.' [Citations.]" [Citation.]' [Citations.] '[I]t matters not whether the issue in question is one of fact or law. Due process requires that it be submitted to the jury.' [Citation.]" (People v. Yarbrough (2008) 169 Cal.App.4th 303, 315, (Yarbrough).) We review claims of instructional error de novo. (People v. Manriquez (2005) 37 Cal.4th 547, 581.)
3. Analysis
Appellant first argues that the trial court improperly instructed the jury with the modified instruction because it permitted the jury to find that E.J. had possession of the stolen property based on a standard that is only applicable to situations in which the stolen property belongs to a business or store, and the victim is an employee or agent of the business or store. As we have already explained, however, under Gilbeaux, supra, there was sufficient evidence to allow the jury to find that E.J. had constructive possession of the stolen packages based on her special relationship with the apartment complex's tenants.
Appellant further argues that the modified instruction improperly directed a finding that E.J. possessed the packages and thus relieved the prosecution of its burden to prove the element of possession. We disagree.
Cases have carefully distinguished between (a) instructions that tell the jury that particular facts satisfy an element of the offense and (b) instructions that allow the jury to determine whether such facts exist. For instance, in People v. Thorn (2009) 176 Cal.App.4th 255 (Thorn), the defendant took property from a car that was parked in a carport underneath an apartment building. The trial court added the following sentence to the burglary instruction:" 'A carport that is attached to an inhabited dwelling house is part of the inhabited dwelling house.'" (Id. at p. 266.) On appeal, the defendant contended that this instruction directed a verdict on the element of habitation, but the appellate court disagreed. The court explained that the jury still had to make a number of findings in order to convict the defendant. Specifically, the jury could not return a guilty verdict unless it found that the apartment complex was inhabited and that the carport was attached to the inhabited structure. (Id. at p. 268.) "[H]ad the jury determined the apartment structure was not inhabited or the garage was not attached to it, it would have been obligated to return a not guilty verdict on the first degree burglary charge." (Ibid.)
Similarly, in Yarbrough, supra, the defendant was convicted of carrying a loaded firearm in a public place. (§ 12031, subd. (a)(1).) While possessing the firearm, he had been part of a group "clustered near the 'sidewalk area'" in front of a driveway. (Yarbrough, supra, 169 Cal.App.4th at p. 307.) In response to a jury question, the trial court instructed the jury that" '[t]he area in front of a home, including a private driveway, is a public place if it is reasonably accessible to the public without a barrier.'" (Id. at p. 315.) Contrary to the defendant's claim, the appellate court found this instruction did not direct a verdict on the "public place" element of section 12031, subdivision (a)(1): "Instead, the instruction left the jury with the task of making two essential factual determinations …: first, that defendant was on the driveway; and second, that the driveway was reasonably accessible to the public." (Yarbrough, supra, at p. 316.)
In the present case, the jury was told, "An agent or contractor who is on duty in the area where the owner's property was taken has possession of the owner's property." The trial court did not tell the jury that E.J. was an agent or contractor, or that she was on duty at the time of the robbery. The jury still had to make those determinations. Although these elements were not subject to much dispute at trial, nevertheless they were not conclusively established by the evidence. Had the jury determined that E.J. was not an agent or contractor and/or that she was not on duty in the area at the time of the robbery, it would have been obligated to return a not guilty verdict on that count. (See Thorn, supra, 176 Cal.App.4th at p. 268.) Thus, we find no instructional error.
C. Remand Is Necessary to Determine If Appellant Is Entitled to the Benefits of Senate Bill No. 567
Appellant contends that he is entitled to resentencing under recently enacted amendments to section 1170, subdivision (b)(6), so that the trial court can decide whether to impose the lower term if it determines that appellant's trauma contributed to the commission of the robbery. The Attorney General agrees, and we concur.
During the pendency of this appeal, the Governor signed three bills that amended section 1170: Assembly Bill 124 (Stats. 2021, ch. 695, §5), Assembly Bill No. 1540 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 719, §2), and Senate Bill No. 567 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 731, §1.3). Senate Bill No. 567 incorporated Assembly Bill 124's and Assembly Bill No. 1540's amendments to that section. (See Stats. 2021, ch. 731, §3(c).)
Relevant here, amended section 1170, subdivision (b)(6), now provides, "Notwithstanding paragraph (1) [directing that the court impose a sentence not to exceed the middle term of a sentencing triad except as provided in subdivision (b)(2)], and unless the court finds that the aggravating circumstances outweigh the mitigating circumstances that imposition of the lower term would be contrary to the interests of justice, the court shall order imposition of the lower term if any of the following was a contributing factor in the commission of the offense: [¶]
(A) The person has experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence."
In the probation report to the court, the probation officer stated that appellant had reportedly suffered childhood trauma as a result of abuse and neglect, and also suffered from post-traumatic stress disorder. Therefore, appellant is entitled to resentencing under section 1170, subdivision (b)(6) so the trial court can decide whether to impose the lower term if it determines that this trauma contributed to the commission of the robbery.
III. DISPOSITION
Appellant's sentence is vacated. The matter is remanded to the trial court for resentencing consistent with this opinion. The judgment is affirmed in all other respects.
WE CONCUR: Humes, P. J. Margulies, J. --------- Notes: [*] Judge of the Contra Costa County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.