Opinion
B209098.
4-23-2009
THE PEOPLE, Plaintiff and Respondent, v. LOREN JAMES HOELSCHER, Defendant and Appellant.
Pamela J. Voich, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Robert S. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published in the Official Reports
Defendant Loren James Hoelscher appeals from the judgment following his conviction of robbery and petty theft. We affirm as to the robbery (count1) and reverse as to the petty theft (count 3).
FACTS AND PROCEEDINGS BELOW
Tony Estrada, a Costco loss prevention officer, testified that while on duty on the afternoon of December 26, 2007 he observed defendant stuff three video games into the front of his pants and cover them with his shirt. When defendant avoided the cash registers and walked toward the exit Estrada went out of the store ahead of defendant and waited for him. Estrada approached defendant when he came out of the store, identified himself, showed his badge, and asked defendant to return to the store with him.
Defendant started to walk back into the store but after taking a few steps inside he turned around and ran toward the exit. Estrada grabbed defendant and called for help from other employees. Two other employees assisted Estrada subdue defendant. As to why he needed assistance in overpowering defendant, Estrada explained: "He was resisting all the way through, as I continued to tell him to stop resisting, put your hands behind your back. He did not cooperate with me. He kept pushing, shoving, trying to get away." In the course of this struggle the video games fell out of defendants pants and were recovered by a store employee.
A jury convicted defendant of one count of second degree robbery and one count of petty theft. After striking one of defendants strike convictions the court sentenced defendant to 20 years in prison under the Three Strikes law.
The sentence consisted of the robbery midterm of 3 years doubled under the Three Strikes law, plus 10 years for two prior felony convictions under Penal Code section 667, subdivision (a), and 4 years for four prior felony convictions under Penal Code section 667.5, subdivision (b).
DISCUSSION
As both parties recognize, a defendant cannot be convicted of robbery and theft arising out of the same course of conduct. (People v. Ortega (1998) 19 Cal.4th 686, 699.) Therefore we will reverse the conviction for petty theft.
Defendant contends that there was insufficient evidence of the use of force to support his conviction for robbery. We disagree.
The leading case on a robbery defendants use of force in attempting to escape is People v. Estes (1983) 147 Cal.App.3d 23, 28. In Estes, a store security officer spotted the defendant stealing merchandise, confronted the defendant in the parking lot and asked him to return to the store. The defendant refused to return to the store and started walking away. When the officer attempted to detain the defendant, he pulled out a knife and swung it at the officer. The defendant was eventually taken into custody by store personnel without injury to anyone. (Id. at p. 26.) In holding that the defendants conduct constituted a robbery—not a theft followed by an assault—the court explained: "The crime of robbery is a continuing offense that begins from the time of the original taking until the robber reaches a place of relative safety. It is sufficient to support the conviction that appellant used force to prevent the guard from retaking the property and to facilitate his escape. The crime is not divisible into a series of separate acts. . . . Whether defendant used force to gain original possession of the property or to resist attempts to retake the stolen property, force was applied against the guard in furtherance of the robbery and can properly be used to sustain the conviction." (Id. at p. 28.)
In the case before us, as in Estes, defendant did not use force or fear to accomplish the taking. Also, as in Estes, defendant had not reached a place of "relative safety" and still possessed the video games when confronted by a security officer outside the store. Finally, as in Estes, defendant used force—"pushing, shoving, trying to get away"—to prevent the security officer from retaking the property and to facilitate his escape. This conduct is sufficient to sustain the conviction for robbery. (Cf. People v. Gomez (2008) 43 Cal.4th 249, 265; no force in taking property but force used in escape with property.)
DISPOSITION
The judgment is reversed as to the conviction for petty theft (count 3). In all other respects, the judgment is affirmed. The trial court is directed to prepare a corrected abstract of judgment and forward a certified copy thereof to the Department of Corrections and Rehabilitation.
We concur:
MALLANO, P. J.
TUCKER, J.