Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. 202541
Kline, P.J.
Gregory Garrett appeals from convictions of robbery, attempted robbery and burglary arising out of incidents at a Subway Sandwich Store (Subway) and a Trader Vic’s Restaurant (Trader Vic’s). He contends two of the convictions, for robbery of Subway and attempted robbery of Trader Vic’s, must be reversed because a store or restaurant cannot be a victim of a robbery separate from its employees. The Attorney General concedes the point, and we reverse the two convictions.
STATEMENT OF THE CASE
Appellant was charged by information filed on August 14, 2007, with three counts of second degree robbery (Pen. Code, § 211) (counts 1, 2 & 3–Subway, Robert Bruce, Maria Schaffer); two counts of second degree burglary (§ 459) (counts 4 & 7–Subway, Trader Vic’s); two counts of attempted second degree robbery (§§ 664/211) (counts 5 & 6–Meaghan Mitchell, Trader Vic’s). It was alleged that appellant had suffered 20 prior convictions within the meaning of section 667, subdivisions (a)(1), (d) and (e), and section 1170.12, subdivisions (b) and (c).
All further statutory references will be to the Penal Code unless otherwise specified.
After a jury trial, appellant was convicted of all counts except count 4 (burglary of Subway), as to which the jury was unable to reach a verdict. The court declared a mistrial as to count 4 and subsequently dismissed it. The court granted the prosecution’s motion to strike two of the prior conviction allegations and found the remaining 18 true.
On October 29, 2008, appellant was sentenced to prison term of 60 years to life, consisting of consecutive terms of 25 years to life on counts 2 and 7, plus five-year terms for two of the serious felony conviction enhancements. Sentence on the remaining counts was stayed pursuant to section 654.
Appellant filed a timely notice of appeal on December 10, 2008.
STATEMENT OF FACTS
A detailed recitation of the facts is unnecessary for resolution of the single legal issue presented. In short, on Sunday, January 14, 2007, Meaghan Mitchell was working in her office at Trader Vic’s on Golden Gate Avenue in San Francisco when appellant and another man, both armed with knives, unsuccessfully attempted to force her to open the restaurant’s safe. Mitchell was able to run out of the restaurant and contact the police.
Codefendant Allan Cook was tried separately.
Later that day, Robert Bruce, the owner/manager of a Subway in San Francisco, was at work with employees Jennifer Wen, Maria Schaffer and Kenney Smith (who was in a restroom throughout the incident). Appellant and another man entered the store, and appellant pushed Bruce into a wall, causing Bruce to fall, then told Bruce they were going to rob him. Appellant took money from the wallet in Schaffer’s purse, directed his companion to tie Bruce’s wrists and ankles with cords, took the wallet from Bruce’s pants, went through it and threw it back down, and directed his companion to put Bruce, Wen and Schaffer into the walk-in freezer. While they were in the freezer, appellant’s companion asked for the combination to the safe and how to get into the cash register, and Bruce gave him the information. Appellant and the other man left the store and the police arrived. Bruce found his briefcase open on the floor; the petty cash he kept in it, bundles of one-dollar, five-dollar and 10-dollar bills and rolls of coins, was gone.
DISCUSSION
Appellant’s three robbery convictions were for the robberies of Subway (count 1), Robert Bruce (count 2) and Maria Schaffer (count 3). His attempted robbery convictions were for the attempted robberies of Meaghan Mitchell (count 5) and Trader Vic’s (count 6). Appellant contends that he could not be convicted of counts 1 and 6 because robbery is defined as a crime against a “person,” and that the convictions based on robbery of the establishments are duplicative of the convictions based on robbery of the employees.
The Attorney General concedes that the convictions on counts 1 and 6 must be vacated. “California follows the long-standing rule that the employees of a business constructively possess the business owner’s property during a robbery. ‘ “Robbery is an offense against the person; thus a store employee may be the victim of a robbery even though he is not its owner and not at the moment in immediate control of the stolen property.” ‘ (People v. Miller (1977) 18 Cal.3d 873, 880.)” (People v. Jones (2000) 82 Cal.App.4th 485, 490; People v. Scott (2009) 45 Cal.4th 743, 746.)
However, a defendant cannot be convicted of robbery from an employee and from a business when the incident involves a single, indivisible transaction. (People v. Marquez (2000) 78 Cal.App.4th 1302.) In Marquez, the defendant entered a restaurant, threatened a waitress with a gun, and convinced her to give him her tips on the counter and the restaurant’s operating money from the cash drawer. Marquez held that this “indivisible transaction involving a single victim who was forced to relinquish possession of two separately owned amounts of money at the same place and at the same time” could support only a single robbery conviction. (Id. at pp. 1307-1308.) The court explained, “ ‘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.) It consists of larceny plus two aggravating circumstances: (1) when the property is taken from the person or presence of another, and (2) when the taking is accomplished by the use of force or threatened force. (4 Wharton, Criminal Law (15th ed. 1996) Robbery, § 454, pp. 2-3; 2 Witkin & Epstein, Cal. Criminal Law (2d ed. 1988) Crimes Against Property, § 635, p. 715.) [¶] Since the central element of robbery is force or fear, a defendant may be convicted of a separate robbery for each victim of such force or fear, even if the victims are in joint possession of the property taken. (People v. Ramos (1982) 30 Cal.3d 553, 587-589, revd. on other grounds in California v. Ramos (1983) 463 U.S. 992; 2 Witkin & Epstein, Cal. Criminal Law, supra, Crimes Against Property, § 640, p. 722.) Here, in contrast, the defendant committed only one larceny against a single victim involving one threatened application of force and occurring at the same place and time. In these circumstances the single larceny can only support a single count of robbery.” (People v. Marquez, at p. 1308, fn. omitted.)
In the present case, appellant was properly convicted of two counts of robbery in the Subway incident, because appellant employed force or fear against both Bruce and Schaffer, but he could not additionally be convicted of a third count naming Subway as the victim. The Trader Vic’s incident involved use of force or fear against a single victim, Mitchell, and appellant could not be convicted separately for robbery of the restaurant.
The convictions on counts 1 and 6 are reversed and vacated. In all other respects, the judgment is affirmed.
We concur: Haerle, J., Richman, J.