Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. No. BA316710 Monica Bachner, Judge.
David M. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant Jackson.
William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant Shepherd.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Yun K. Lee and Corey J. Robins, Deputy Attorneys General, for Plaintiff and Respondent.
CHANEY, J.
Defendants Jeron Jackson and John Shepherd were, after a joint trial, convicted by a jury of robbery and unlawful use of a badge and were sentenced to two years imprisonment for the robbery and a concurrent one year for unlawful use of a badge. On appeal, they contend insufficient evidence supports the verdicts. Shepherd further contends his trial attorney provided constitutionally ineffective assistance by failing to seek admission of evidence that would have corrected any impression that his version of events at trial was inconsistent with his pretrial statements to police. We conclude substantial evidence supports the convictions and Shepherd received constitutionally effective assistance.
BACKGROUND
On the evening of January 29, 2007, defendants were employed as security guards by Omni International Security (Omni International), which provided private security at property locations. Omni International operated under the dba “Los Angeles Housing Authority.” Each defendant wore a uniform and a Sam Browne utility belt equipped with magazine pouches, a gun holster, handcuff cases, and a radio holder. Each carried a holstered sidearm. Defendants were issued patches for the uniforms, badges, and a patrol car, a black Ford Crown Victoria Police Interceptor equipped with a loudspeaker, spotlights, and police siren. The patches bore the words “L.A. Housing Authority” and “Private Security,” though the lettering of the latter phrase had been blackened out. Jackson had worked for Omni International for three months, Shepherd for 19 days. Jackson was the training officer, Shepherd the trainee.
That evening Jose Pedro Mendez, after having spent the day selling corn at a city park near defendants’ patrol route, was packing up to go home. He had a little over $300 in a cash box. Defendants drove up in their patrol car, activated the siren, and shined a spotlight on him, then got out of the car and approached. Jackson asked Mendez how much money he had earned and issued him a citation, purportedly for selling food without a license. Shepherd patted Mendez down and told him to get the money and put it on the hood of the patrol car. He asked Mendez to sign the citation but told him he should not go to court because it was only a warning. He told Mendez he did not want to see him working at that location again and that he would be coming back to check. Defendants then returned to their car and left, activating the siren again when they approached an intersection.
Each defendant kept his hand on his holstered gun throughout most of the encounter. Mendez testified he complied with their demands “[f]or fear,” thinking he “would be killed or something” because “they wouldn’t let go. They wouldn’t really move their hands from the guns.” When asked what led him to believe defendants might use their guns, he testified, “Well, if I don’t give them the money, they do use it. If I don’t give them the money, they do use it.” He testified that Shepherd and Jackson looked like police officers and were “calm,” like “normal police officer[s],” “not aggressive.”
Mendez notified police of the theft. Defendants were arrested a few days later.
Both defendants gave oral and written statements to police, essentially admitting most of the facts recited above. Though Jackson did not explicitly confess to taking Mendez’s money, he admitted “someone” gave him $80 that had been placed in the trunk of the patrol vehicle. Shepherd claimed he had been following Jackson’s orders.
At trial, Shepherd’s defense was that he took Mendez’s money on Jackson’s orders. He testified that Jackson later ordered him to count the money, split it between them, and throw away the cashbox. He testified he thought it was lawful to take the money (“I believed that some lawful confiscation was being performed”) because Mendez did not have a permit to sell food in the park. He had performed similar confiscations in the past, as a security guard working for a different company.
DISCUSSION
I. Substantial Evidence Supports the Verdicts
“When the sufficiency of the evidence is challenged on appeal, the court must review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence—i.e., evidence that is credible and of solid value—from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt.” (People v. Green (1980) 27 Cal.3d 1, 55.)
“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.)
On appeal, defendants do not dispute that they unlawfully took Mendez’s money. They contend only that the taking was accomplished by subterfuge, not fear, and thus constitutes only theft by trick or device. (See People v. Frederick (2006) 142 Cal.App.4th 400, 417.) This is so, they argue, because they communicated no threat. Putting their hands on their guns was done for purposes of safety, not to indicate the guns would be used if Mendez did not hand over his money. George Collins, a former federal marshal called by the defense, testified that a law enforcement officer will place a palm on the exposed portion of his or her weapon in case it needs to be drawn quickly. Shepherd testified he was trained by security services and the military to place his hand on his holster to protect his weapon.
The prosecution did not argue defendants used force to effect the theft.
The argument is without merit. Though touching a gun can be innocent, it can also communicate a threat. We do not doubt that a peace officer’s hand on his gun is usually innocuous, but defendants offer no basis for us to conclude as a matter of law that it always is. Even if defendants truly meant nothing by putting their hands on their guns, and Mendez knew that, their bringing the guns to the encounter alone sufficed to convey the threat.
Defendants argue Mendez’s fear, if it existed, was unreasonable because he thought defendants were police officers, and a reasonable person would not believe an armed officer who demands money will use violence to enforce the demand.
The expressed premise is pure fantasy. Peace officers will generally enforce their lawful demands, resorting to violence if necessary. They display their weapons in part to deter resistance. And if a demand be unlawful, as defendants intimate Mendez knew was the case here, a victim could hardly be asked to predict that the heretofore audacious officer will not have the nerve to enforce it with his gun.
Defendants’ argument also fails because its unexpressed premise, that the fear necessary for robbery must be objectively reasonable, is unsound. “The element of fear for purposes of robbery is satisfied when there is sufficient fear to cause the victim to comply with the unlawful demand for his property.” (People v. Ramos (1980) 106 Cal.App.3d 591, 601-602.) “[T]he fear necessary for robbery is subjective in nature, requiring proof ‘that the victim was in fact afraid, and that such fear allowed the crime to be accomplished.’ [Citation.]” (People v. Anderson (2007) 152 Cal.App.4th 919, 946.) “The statement is sometimes made (and some cases even hold) that the threat of harm, for robbery, must be such as would, under the circumstances, arouse in the victim a reasonable fear of harm.... [Fn.] Of course, if the circumstances are such that a reasonable person would not be scared, a jury might properly infer that the victim, in spite of his testimony to the contrary, was not in fact scared.... [Fn.] But if the victim is actually frightened by the defendant into parting with his property, the defendant’s crime, on principle, is robbery, even though an ordinary person, with more fortitude than the victim, would not have been thus frightened. [Fn.]” (3 LaFave, Substantive Criminal Law (2d ed. 2003) § 20.3(d), pp. 188-189.)
Whether Mendez’s fear was unreasonable is therefore irrelevant. The real issue is whether defendants did anything to communicate a threat.
Here, each defendant put his hand on his weapon while unlawfully demanding that Mendez hand over his money. Mendez complied against his will because he feared they would shoot him if he did not. The facts support the finding that defendants robbed Mendez.
II. Shepherd Received Effective Assistance of Counsel
A claim that counsel was ineffective requires a showing by a preponderance of the evidence of objectively unreasonable performance by counsel and a reasonable probability that but for counsel’s errors, the defendant would have obtained a more favorable result. (In re Jones (1996) 13 Cal.4th 552, 561.) “[A] court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant.... If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.” (Strickland v. Washington (1984) 466 U.S. 668, 697; accord, In re Fields (1990) 51 Cal.3d 1063, 1079.)
At trial, Shepherd’s statements to police were redacted to remove references to Jackson. Thus, Shepherd’s statement that he “was told [by Jackson] to get the [cash] box” became, in essence, “I got the box, ” and “When I was told [by Jackson] to retrieve the cash box from the trunk, I said no. He [Jackson] drove a few more blocks and stopped and told me again to get the box” became essentially “I got the box from the trunk—I retrieved the cash box from the trunk.” Shepherd’s counsel objected to these redactions on the ground that they removed Jackson’s instructions from consideration and made it sound like stealing from Mendez was Shepherd’s idea.
Shepherd argues the redacted version of events distorted his role in the robbery, and the unredacted version he presented later would have cured the distortion but for the false appearance that he was changing his story. He contends his attorney provided constitutionally ineffective assistance by failing to seek admission of his unredacted statement to show his story had not changed, and it is reasonably probable he would have fared better at trial absent the attorney’s deficiency. The argument has no merit.
Shepherd’s statements to police were redacted to guard Jackson’s confrontation rights. “[I]t is a denial of the right to cross-examination... to admit at a joint trial an extrajudicial confession of a codefendant which implicates the defendant....” (In re Hill (1969) 71 Cal.2d 997, 1008.) “[I]f the prosecutor in a joint trial seeks to admit a nontestifying codefendant’s extrajudicial statement, either the statement must be redacted to avoid implicating the defendant or the court must sever the trials.” (People v. Hoyos (2007) 41 Cal.4th 872, 896.) “Severance may be necessary when a defendant’s confession cannot be redacted to protect a codefendant’s rights without prejudicing the defendant. [Citation.] A defendant is prejudiced in this context when the editing of his statement distorts his role or makes an exculpatory statement inculpatory.” (People v. Lewis (2008) 43 Cal.4th 415, 457.) If the confessing defendant takes the stand in his own defense and affirms his out-of-court statement, the unredacted statement can be admitted because the codefendant implicated by it has an opportunity to cross-examine. (In re Rosoto (1974) 10 Cal.3d 939, 952.)
It is not reasonably probable a different result would have been achieved had Shepherd’s unredacted statements to police been admitted. The jury heard as part of the prosecution’s case that Shepherd committed a number of acts. They heard as part of Shepherd’s case that he committed the acts on Jackson’s orders. The second version of events did not contradict the first, but rather explained it. (The prosecution did not argue Shepherd had changed his story.) No basis exists, therefore, to think the difference between the first and second presentation caused the jury to disbelieve Shepherd’s defense. It is more likely they disbelieved it for other reasons: or simply disvalued it.
DISPOSITION
The judgment is affirmed.
We concur: ROTHSCHILD, Acting P.J., JOHNSON, J.