Opinion
2d Crim. No. B291086
05-07-2020
THE PEOPLE, Plaintiff and Respondent, v. JAROSLAV HRIANCIK, Defendant and Appellant.
Laurie A. Thrower, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Senior Assistant Attorney General, Stacy S. Schwartz and David F. Glassman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 2016017296)
(Ventura County)
Appellant Jaroslav Hriancik and an accomplice worked as a team to commit thefts at Macy's. The crimes were observed on surveillance cameras by loss prevention (LP) officers. When detained as they left the store, appellant sought to free his accomplice by spraying the LP officers with tear gas. A jury convicted him of petty theft; unlawful use of tear gas; and conspiracy to commit petty theft. (Pen. Code, §§ 484, subd. (a), 22810, subd. (g)(1), 182, subd. (a)(1).)
Unlabeled statutory references are to the Penal Code.
Appellant does not dispute the thefts (counts 1, 2, 4 and 5). This appeal concerns his use of tear gas (count 3), which he claims was incident to his defense of another. He contends that the trial court should have instructed sua sponte on the use of excessive force against his accomplice. If not, he argues that counsel provided inadequate representation by failing to request the proper instruction. He also contends the court should have treated his conviction for conspiracy to commit theft as a misdemeanor under Proposition 47. We affirm.
FACTS AND PROCEDURAL HISTORY
Helen Eloyan was a LP detective at Macy's in Simi Valley. On April 30, 2016, Eloyan saw a woman examine boxed designer keychains while holding a wallet and a watch. The woman was appellant's friend Meghan Stewart. She handed the boxes to appellant; he removed the keychains and slid them up his sleeve. Stewart returned the emptied boxes to the display table. Eloyan opened them and verified that the keychains were gone. The theft was captured on surveillance cameras.
Stewart entered a fitting room with the watch, wallet and clothing items. When Stewart left the room, Eloyan entered and found empty boxes for the watch and the wallet. A black and tan dress was missing as well.
Claudio Montes is an officer in Macy's LP department. He is trained to approach shoplifters, identify himself, discuss items they did not pay for and escort them back into the store. For safety reasons, he is not allowed to pursue shoplifters who run away and step off the curb.
Montes saw appellant hide keychains in his sleeve. Eloyan informed Montes that Stewart went into a fitting room and left the room with fewer items than when she entered. Appellant and Stewart went to the Sunglass Hut department, lingered at the display, then left the store. Appellant did not pay for anything before leaving.
As seen in security camera images, Eloyan intercepted Stewart and appellant as they left the store. She testified that she identified herself as an LP officer, showed her badge and said she needed to speak to them about the merchandise they took. Montes joined Eloyan at the store entry. Appellant fled when he saw Montes, who yelled "Come back." Montes did not pursue appellant, who ran toward parked cars.
Stewart denied taking merchandise and refused to hand over her purse. She tried to flee when officers took her back inside the store. Eloyan restrained Stewart but did not use a headlock or punch her; in surveillance images, they are both holding on to Stewart's purse.
While Eloyan was struggling with Stewart, appellant returned and told Montes to "Let her go." He was hiding something behind his back. Montes feared it was a weapon. He tried to shield Eloyan as appellant approached.
Appellant raised his arm and sprayed a substance in Montes's face that caused his eyes to sting, blurred his vision and made it difficult to breathe. Montes tried to grab appellant to stop him. Appellant sprayed Montes a second time, striking his eyes, mouth, neck and chest. Eloyan and Stewart fell to the floor inside the store. Appellant sprayed Eloyan with the tear gas; it entered her mouth and eye, and immediately blinded her. Both officers suffered pain from the tear gas.
Department of Corrections captain Noel Chestnut was at Macy's. He saw appellant spray Montes with tear gas. Chestnut identified himself as law enforcement and ordered appellant to stop. Appellant did not comply. Chestnut pushed appellant to the ground and held him until police arrived. Chestnut saw a tear gas cannister next to appellant.
Police removed two pairs of sunglasses from appellant; the Macy's price tags were still attached. He also had the keychains in his possession. A Macy's watch, wallet and dress were found in Stewart's purse. The sunglasses are each $200. The keychains are each $28.50; the watch was $34.98; the wallet was $125; and the dress was $29.99.
Appellant was charged in counts 1 and 2 with second-degree robbery for taking property by force or fear (§ 211); in count 3 with using tear gas (§ 22810, subd. (g)(1)); in count 4 with conspiracy to commit petty theft (§ 182, subd. (a)(1)); and in count 5 with petty theft (§ 484, subd. (a)). It was specially alleged that appellant suffered a prior conviction in 2010 for robbery and was out of custody on bail in another case at the time he committed the current offenses.
The jury acquitted appellant of robbery on counts 1 and 2 but found him guilty of the lesser included offense of petty theft. It found him guilty of counts 3 and 4. He pled no contest to count 5 and admitted the special allegations.
The court denied appellant's motion to strike the prior conviction and sentenced him to prison for seven years four months. This consists of the midterm of two years on count 3, doubled to four years (§§ 667, subd. (e)(1), 1170.12, subds. (b), (c)(1)); 16 consecutive months on count 4; and two consecutive years for committing an offense while released from custody for a felony on bail or his own recognizance (§ 12022.1, subd. (b)).
The hearing resolved three theft cases against appellant, resulting in total term of 11 years 4 months.
DISCUSSION
1. Jury Instructions On Count 3
The jury was instructed that appellant's use of tear gas was lawful if he (1) reasonably believed he or Stewart was in imminent danger of suffering bodily injury or being touched unlawfully; (2) reasonably believed immediate use of force was necessary to defend against the danger; and (3) used no more force than reasonably necessary to defend against the danger. Trial counsel did not request an instruction on excessive force. We conclude that none was required.
A citizen may arrest another for a public offense committed or attempted in his presence. (§ 837; People v. Crowder (1982) 136 Cal.App.3d 841 844 [security employees can arrest or detain offenders].) Counsel conceded that appellant and Stewart "took items that did not belong to them," i.e., committed theft. They were barred from resisting arrest. "[T]here is no right to 'defend' against a valid arrest." (People v. Fosselman (1983) 33 Cal.3d 572, 579 (Fosselman).)
As Stewart and appellant left Macy's, Eloyan announced she is an LP officer and that they had unpaid merchandise. (§ 841 ["the person to be arrested is actually engaged in the commission of or an attempt to commit an offense, or . . . is pursued immediately after its commission . . ."].)
LP officers were "entitled to use reasonable force to detain" appellant and Stewart. (Fosselman, supra, 33 Cal.3d at p. 579.) "The person arrested may be subjected to such restraint as is reasonable for his arrest and detention." (§ 835.) Fosselman was convicted of battery for breaking the jaw of a citizen who kneed him in the groin while detaining him for a crime; he claimed self-defense. (Fosselman at pp. 577-578.) The Supreme Court wrote, "the jury inferentially found that [the citizen's] attempt to knee defendant in the groin was reasonable under the circumstances . . . [and] it appears on these facts that the jury could reasonably have rejected defendant's claim of self-defense." (Id. at p. 579.) This reasoning applies here with equal force.
By convicting appellant of unlawfully using tear gas, the jury necessarily rejected his claim that he acted in Stewart's defense. Jurors could determine that Eloyan effected a lawful arrest, Stewart had no right to resist and appellant had no right to spray the officers with tear gas to stop the arrest.
"'The right to resist excessive force used to make an arrest is an application of the law of self-defense. [Citation].'" (People v. Adams (2009) 176 Cal.App.4th 946, 953 (Adams); People v. Soto (1969) 276 Cal.App.2d 81, 85 [use of "reasonable force" to defend oneself or others against an arrest made with excessive force, citing §§ 692, 694].) No sua sponte instruction on excessive force was required here. Eloyan is seen in surveillance images holding Stewart's purse, not striking her with fists or objects.
There is no evidence appellant believed Stewart was in imminent danger of bodily injury. A person may not resist a valid arrest "but had a right to defend against the use of excessive force, when he 'reasonably believed that he was in imminent danger of suffering bodily injury . . . .'" (Adams, supra, 176 Cal.App.4th at p. 955.) He '"must have acted because of that belief.'" (People v. Johnson (2009) 180 Cal.App.4th 702, 709.)
Unlike the defendant in Adams, who testified that he struck a citizen who "was ready to punch him in the face" (Adams, supra, 176 Cal.App.4th at p. 949), appellant did not testify. There was no evidence of his state of mind. Defense counsel's conjecture about appellant's state of mind—his desire to protect Stewart—is not evidence. (People v. Sedeno (1974) 10 Cal.3d 703, 718 (overruled on other grounds in People v. Breverman (1998) 19 Cal.4th 142, 165) [no sua sponte self-defense instruction required because "there was no evidence that defendant believed he was acting in self-defense . . ."].)
Counsel argued that when appellant "saw excessive force being used on his girlfriend, he came to her aid as any man would do for his spouse." --------
The jury could find the only "imminent danger" Stewart faced was being escorted back into the store after committing thefts with appellant. Appellant did not mitigate his culpability by claiming he had to use tear gas to stop officers from detaining Stewart, who was fighting to retain stolen items. Jurors could find he used tear gas to facilitate his co-conspirator's escape with the loot, in the absence of evidence showing he believed he had to protect her from harm. It is not reasonably probable that additional instructions would have allowed the jury to reach a result favorable to appellant. (People v. Wharton (1991) 53 Cal.3d 522, 571.) There was no miscarriage of justice. (Cal. Const., art. VI, § 13.)
2. Sentencing
Appellant argues that he should receive misdemeanor treatment under Proposition 47 for felony conspiracy to commit petty theft. (§ 182, subd. (a)(1), 1170.18, subd. (a).) However, "[t]he statute does not say that a conspiracy to commit shoplifting shall be charged as simple shoplifting." (People v. Martin (2018) 26 Cal.App.5th 825, 835.) This court held in Martin that a defendant guilty of conspiracy to commit petty theft does not qualify for a reduction of the conviction to a misdemeanor. We noted, "'collaborative criminal activities pose a greater potential threat to the public than individual acts.'" (Id. at p. 836.) The enhanced threat proved true here, where the LP officers focused on detaining appellant's accomplice left him free to sneak up from behind and use tear gas to help her escape.
Two years after appellant's arrest, the Legislature created the crime of "organized retail theft" in section 490.4, aimed at persons who act in concert to steal merchandise. Appellant offers no reason why the new law, which was effective January 1, 2019, applies to him. Citing section 490.4, subdivision (b)(1), appellant argues that "no evidence was presented that he acted in concert with any other persons to shoplift within the past 12 months." No evidence was presented regarding appellant's criminal record because section 490.4 was not in effect at the time of trial and he was not charged with violating it.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
PERREN, J. I concur:
GILBERT, P. J.
TANGEMAN, J., Concurring and Dissenting:
While I concur with the majority as regards count 3, we part company as regards the proper treatment of conspiracy to commit petty theft (count 4). In my opinion, and for those reasons set forth in my dissent in People v. Martin (2018) 26 Cal.App.5th 825, Proposition 47 mandates reduction of count 4 to a misdemeanor.
NOT TO BE PUBLISHED.
TANGEMAN, J.
Ryan J. Wright, Judge
Bruce A. Young, Judge
Superior Court County of Ventura
Laurie A. Thrower, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Senior Assistant Attorney General, Stacy S. Schwartz and David F. Glassman, Deputy Attorneys General, for Plaintiff and Respondent.