Opinion
D073254
11-27-2018
THE PEOPLE, Plaintiff and Respondent, v. KEITH JOHNSON, Defendant and Appellant.
Cathryn Lintvedt Rosciam, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCN373768) APPEAL from a judgment of the Superior Court of San Diego County, David G. Brown, Judge. Affirmed in part and reversed in part with directions. Cathryn Lintvedt Rosciam, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
Keith Johnson took about $2,000 worth of items from a Walmart store without paying for them. After leaving the store, he pointed a gun at two employees who were attempting to regain possession of the property. Johnson then abandoned the goods and left in a waiting vehicle.
Johnson was charged with robbery, grand theft, and burglary. (Pen. Code, §§ 211, 487, subd. (a), 459.) At trial, he conceded the burglary and grand theft counts, but argued he did not commit a robbery. The jury found Johnson guilty on all three counts. The court sentenced him to six years four months, consisting of five years on the robbery count; three years (concurrent) on the burglary count; and 16 months for separate theft offenses to which Johnson pleaded guilty before trial. The court stayed the sentence on the Walmart grand theft count under Penal Code section 654.
Johnson was not charged with a weapons-related enhancement, likely because it was not clear whether Johnson's gun was "real" or merely a replica weapon.
Johnson appeals, contending (1) the court erred in denying his second continuance request to retain private counsel; (2) insufficient evidence supports his robbery conviction because he testified he abandoned the stolen goods before using force or fear; and (3) his sentence on the Walmart grand theft count should be reversed because it is a lesser included offense of robbery.
We reject the first two contentions, but conclude (as conceded by the Attorney General) that Johnson's Walmart grand theft conviction must be reversed.
FACTUAL AND PROCEDURAL BACKGROUND
We summarize the facts in the light most favorable to the judgment. (See People v. Covarrubias (2016) 1 Cal.5th 838, 890 (Covarrubias).) The prosecution case was presented primarily through the testimony of the two store employees and various store surveillance videos. --------
Around 9:15 p.m., Johnson and his girlfriend entered a Walmart store. They walked to the electronics department and placed four computers, two walkie-talkie radio sets, and one robotic vacuum box in their shopping cart. They immediately walked towards the emergency exit at the side of the store.
One employee (AH), who saw Johnson walking toward the emergency exit, ran outside the store through the front entrance and waited at the building corner. He saw a vehicle parked close to the emergency exit. He then saw Johnson walk out the emergency exit with the shopping cart filled with the stolen goods.
AH yelled, "We got you," intending to "get [the stolen] items back." Johnson, who was standing near the cart and holding the stolen vacuum box, dropped the box, pulled out a weapon that looked like a black handgun from his waistband, and pointed it at AH. AH backed away.
As Johnson started to put his gun back in his waistband, he bent down and reached toward the vacuum box that he had dropped. Another employee (security officer) then came out of the emergency exit, intending to "[r]ecover the merchandise." The security officer approached Johnson as he was in the process of picking up the vacuum box. Johnson stood up and pointed his gun at the security officer. Fearing for his life, the security officer put his hands up, turned around, and walked towards the emergency exit. As he was retreating, the security officer tripped over the shopping cart, knocking it down and causing the stolen items to fall to the ground. Johnson then immediately got into the waiting vehicle without any of the stolen goods and the driver drove away.
Johnson testified at trial. He admitted he and his girlfriend went into Walmart that night with the intent to steal merchandise, and that he took the items from the store. However, Johnson said that when AH approached him, he got scared and just wanted to get away, so he pointed his air pistol at him. He admitted the black pistol looked like a "real" gun, "[w]ithout a doubt." Johnson said he then aimed the pistol at the security officer, so he could escape, and denied that he was attempting to prevent the store employees from retaking the stolen property. Johnson claimed he was no longer thinking about the stolen property—he just wanted to get away.
During closing arguments, defense counsel did not dispute that Johnson entered the Walmart store to steal items; he took the items from the store; and pointed the weapon at AH and the security officer for the purpose of instilling fear. Defense counsel thus conceded Johnson was guilty of burglary and grand theft. The primary factual dispute was on the robbery count—whether Johnson pointed the weapon in attempting to retain possession of the property (prosecution's theory) or whether Johnson pointed the weapon only to escape (defense theory). After considering the evidence, arguments, and instructions, the jury found the prosecution met its burden to prove each element of the three offenses, including the robbery count.
DISCUSSION
I. Continuance Denial
Johnson contends the trial court erred by denying his request for a trial continuance to allow him to retain private counsel.
A. Relevant Background
The Walmart offenses occurred on May 23, 2017. The complaint was filed against Johnson on June 5, 2017. Two weeks later, the court conducted a preliminary hearing, during which Johnson was represented by appointed counsel. The court arraigned Johnson the same day, and Johnson declined to waive time.
On the August 8 trial date, Johnson requested a continuance to retain counsel. Defense counsel said Johnson had called her the previous week and said he was retaining private counsel and wanted a continuance to retain this attorney. Defense counsel said Johnson was willing to waive time to receive a continuance. Johnson identified the attorney's name as "Joseph Sabat" (spelled phonetically), but the court (Judge Carlos Armour) could not find this name on its attorney list, and defense counsel said she had not had any contact with this person. Johnson (who was 49 years old) said he would call his mother that night, and she would "get it all together." Johnson said his mother told him that if the attorney was not at the hearing that day, the attorney would fax something to the court, asking for a continuance of 30 to 60 days. The trial court said that the court did not have the ability to receive faxes, but told Johnson to find out the spelling of the name and telephone number for this attorney.
The prosecutor objected to a continuance because she was given only two days' notice, and argued the request appeared to be a "delaying tactic." She said she had been unable to find an attorney named "Joseph Sabat." The prosecutor added that because Johnson had not waived time, they "scrambled" to have everything ready, and she and her witnesses were prepared to start trial.
The trial court said that generally it would consider Johnson's request untimely, but it would grant him one continuance. The court scheduled the trial date for October 10, 2017, with a status conference on September 5. The court advised Johnson that if his retained attorney was not at the September 5 status conference "ready to take your case . . . , the public defender will . . . represent you [at] trial." The court added that Johnson's retained counsel did not have to wait until September 5, and that he could contact the court before then to ensure he was ready for trial by October 10.
On October 11, the rescheduled trial date, the court stated it had reviewed the parties' motions in limine and trial briefs, and had scheduled a three-to-four day jury trial. However, at the outset, Johnson asked for another continuance, telling the court he was in the process of attempting to hire an attorney but had not been able to do so because he did not yet have sufficient funds. He said he had been waiting on his "income tax thing to come back," and that when it "came back," he did not have anyone to sign for it, and that he needed a power of attorney form to file with the IRS but his mother had been in the hospital so she had just recently sent him the power of attorney form. Johnson said everything was "in the process," and he was told his "check would be there within 7 to 30 days." Johnson said he wanted to retain an attorney with whom he felt more comfortable.
The trial court (Judge David Brown) said Johnson had already received a two-month continuance to retain counsel. Johnson responded that he was still waiting for the IRS check, and that his mom was told "it's on the last person's desk, and they're just waiting to clear the check." He said he had thought he could accomplish this during the prior two-month continuance, but he did not foresee his mother going back and forth into the hospital.
Appointed defense counsel said she had spoken with Johnson's mother, who confirmed she had health issues that sidetracked "her ability to sort of help Mr. Johnson through the process with the IRS and get the money."
The trial court denied the request. The court noted the prior 60-day continuance, and found that there was no basis to find Johnson "would be able to retain a new attorney within any reasonable period of time."
B. Legal Principles
"The [constitutional] right to the effective assistance of counsel 'encompasses the right to retain counsel of one's own choosing.' " (People v. Courts (1985) 37 Cal.3d 784, 789 (Courts).) Trial courts must " 'make all reasonable efforts to ensure that a defendant financially able to retain an attorney of his own choosing can be represented by that attorney.' " (Id. at p. 790.) However, a criminal defendant's right to retain counsel " 'must be carefully weighed against other values of substantial importance, such as that seeking to ensure orderly and expeditious judicial administration, with a view toward an accommodation reasonable under the facts of the particular case.' " (Ibid.) The court may thus deny a continuance where the defendant "is 'unjustifiably dilatory' in obtaining counsel" or " 'arbitrarily chooses to substitute counsel at the time of trial.' " (Id. at pp. 790-791; see People v. Jeffers (1987) 188 Cal.App.3d 840, 850 (Jeffers); People v. Blake (1980) 105 Cal.App.3d 619, 623-624.)
We review for an abuse of discretion a trial court's denial of a continuance. (Jeffers, supra, 188 Cal.App.3d at pp. 849-850; see People v. Jenkins (2000) 22 Cal.4th 900, 1037.) An appellant has the burden to establish an abuse of discretion. (People v. Rhines (1982) 131 Cal.App.3d 498, 506.) "[D]iscretion is abused only when the court exceeds the bounds of reason, all circumstances being considered." (People v. Beames (2007) 40 Cal.4th 907, 920.)
C. Analysis
The trial court did not abuse its discretion.
On the first scheduled trial date in early August, Judge Armour granted Johnson a continuance (over the prosecutor's objections) based on his statement that his mother had retained (or at least was in communication with) an identified attorney and this attorney would soon be making an appearance. Johnson did not state or suggest his continuance request was conditioned on obtaining funds to pay this attorney. At the conclusion of the hearing, the court admonished Johnson that if his retained counsel did not appear by the status conference date (September 5), Johnson would proceed at trial with his appointed counsel.
A status conference was held on September 5, and there is no indication Johnson had retained an attorney, provided any additional information about this attorney, or suggested that there were any financial issues with retaining the attorney.
One month after the status conference, on the day trial was scheduled to begin, Johnson asked for another continuance, stating he had been unable to retain an attorney because he had not yet received his tax refund check. However, his explanation of the tax refund problems was vague and contradictory. On the one hand, he discussed that the refund had been mailed but then returned because of the need for a power of attorney form; and on the other hand, he said the check had not been sent out but was ready and was sitting on the desk of an IRS agent waiting to be sent out, after it had gone "from tier to tier until it [reached] the right person."
The trial judge, who had the opportunity to evaluate these explanations and observe Johnson's tone and demeanor, could best decide whether Johnson's assertions made sense and were accurate and true. Further, even assuming the facts supported the tax refund delay, neither Johnson nor his attorney stated that the refund amount would be sufficient to fund the representation and/or that there was an attorney ready and willing to represent Johnson after the requested continuance. Although Johnson had earlier identified a person who he said had agreed to serve as his attorney, there was no information as to whether this person actually existed or was still willing to accept the case. Judge Armour specifically asked Johnson to obtain additional identifying information for the attorney, but Johnson had not done so by the time of the second continuance request. There were no facts showing that an attorney would be prepared to represent Johnson after the requested continuance.
On this record, the court did not abuse its discretion or violate Johnson's constitutional rights by denying the second continuance request. The trial court properly weighed Johnson's right to counsel of choice against the countervailing considerations in granting a last-minute continuance, and made a reasonable decision that a continuance would not be appropriate. Johnson's reliance on Courts, supra, 37 Cal.3d 784 is misplaced. In Courts, when the defendant sought a continuance, he had already retained an attorney and that attorney appeared at the hearing. Thus, "the court was not confronted with the 'uncertainties and contingencies' of an accused who simply wanted a continuance to obtain private counsel." (Id. at p. 791.)
II. Sufficiency of Evidence on Robbery Count
Johnson does not challenge that he took the computers, robotic vacuum, and radio sets from the Walmart store, and that he entered the store for the purpose of stealing the items. But he contends the crime was at most a burglary. He argues there was insufficient evidence to establish he committed a robbery, emphasizing his testimony that he had abandoned the property before displaying his replica weapon.
In considering this contention, "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. . . . We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. . . . If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. . . . 'A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' " (People v. Albillar (2010) 51 Cal.4th 47, 60.)
"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.) The taking element of robbery has two elements: (1) gaining possession of the victim's property; and (2) asporting or carrying away the property. (People v. Cooper (1991) 53 Cal.3d 1158, 1165 (Cooper).) The asportation of the property and the crime of robbery continues "as long the loot is being carried away to a place of temporary safety." (Ibid.; accord, People v. Anderson (2011) 51 Cal.4th 989, 994; People v. Estes (1983) 147 Cal.App.3d 23, 27-28 (Estes).)
Under these principles, a burglary or theft "becomes robbery if the perpetrator, having gained possession of the property without use of force or fear, resorts to force or fear while carrying away the loot." (Cooper, supra, 53 Cal.3d at p. 1165, fn. 8; accord, Miller v. Superior Court (2004) 115 Cal.App.4th 216, 222; Estes, supra, 147 Cal.App.3d at pp. 27-28.) "[T]he crime of robbery occurs when property is forcefully retained in the victim's presence . . . ." (People v. Gomez (2008) 43 Cal.4th 249, 264.) Robbery thus includes the use of force or fear to prevent a business's security guard from retaking stolen property. (See Estes, supra, 147 Cal.App.3d at pp. 27-28.)
To prove the use of fear to accomplish a robbery, the evidence must show the victim "was in fact afraid, and that such fear allowed the crime to be accomplished." (People v. Mungia (1991) 234 Cal.App.3d 1703, 1709, fn. 2.) "Resistance by the victim is not a required element of robbery [citation], and the victim's fear need not be extreme to constitute robbery [citation]. All that is necessary is that the record show ' " 'conduct, words, or circumstances reasonably calculated to produce fear . . . .' " ' [Citation.] [¶] Intimidation of the victim equates with fear." (People v. Morehead (2011) 191 Cal.App.4th 765, 775.)
The prosecution's evidence shows that after he left the store through the emergency exit, Johnson had the robotic vacuum box in his hands and was approaching the waiting vehicle with the shopping cart when AH rounded the corner yelling, "we got you." AH was seeking to prevent Johnson from taking the goods from the parking lot. Johnson then dropped the vacuum box on the ground in his effort to pull his gun from his waistband. Johnson displayed his weapon to AH, who backed away because he feared getting shot. Johnson then bent down to retrieve the vacuum but was interrupted when the security officer ran out the emergency exit and tried to grab Johnson. Johnson stood up and pointed the gun at the security officer, causing the officer to retreat back into the store after inadvertently knocking over the shopping cart.
Under these facts, the jury had a reasonable basis to find Johnson used force or fear in attempting to successfully retain the stolen goods. Johnson was initially holding the vacuum box with the shopping cart full of goods while approaching the waiting car. When AH came around the corner, Johnson quickly dropped the box so he could take his gun from his waistband and point it at AH. Once AH started backing away from Johnson, Johnson could have entered the waiting car and fled. Instead, he bent down to pick up the vacuum box. He did not complete this motion because the security officer surprised him by running out of the exit door and reaching toward Johnson. Johnson then again brandished the weapon to prevent the security officer from retaking the property. The security officer backed up, tripping over the shopping cart and causing it to fall down. It was not until that point, likely realizing he was outnumbered and recognizing the difficulty of quickly getting the fallen goods into the waiting car, that Johnson got into the vehicle and fled. Substantial evidence supports the jury's finding that Johnson used force or fear to prevent attempts to retake the stolen property, and not merely to escape. (See People v. Torres (1996) 43 Cal.App.4th 1073, 1077-1079 [use of force by burglar after he had possession of the victim's stereo sufficient to establish robbery even though perpetrator then abandoned the stereo and fled], disapproved on another ground in People v. Mosley (2004) 33 Cal.4th 353, 365, fn. 3; People v. Pham (1993) 15 Cal.App.4th 61, 65 (Pham).)
Johnson contends that a robbery does not occur if the defendant abandons the stolen goods and uses force or fear only to flee the scene. We agree with this principle. (See Pham, supra, 15 Cal.App.4th at p. 68 ["If defendant truly abandoned the victims' property before using force, then, of course he could be guilty of theft, but not of an Estes-type robbery."].) A robbery occurs in this situation only if the prosecution proves the defendant intended to deprive the property owner of the stolen goods "at the time the force was used." (People v. Hodges (2013) 213 Cal.App.4th 531, 543, fn. 4 (Hodges).)
But this principle is inapplicable here because there was evidence that Johnson intended to deprive Walmart of the goods by using force or fear, i.e., when Johnson pointed the gun at AH and the security guard. The prosecution presented evidence showing Johnson twice displayed the weapon to maintain possession of the items as reflected in Johnson's continued attempts to grab the vacuum box and his failure to immediately leave the scene.
Johnson testified that once he was confronted by AH and the security guard, he decided to abandon the goods and pointed his weapon merely to get away. But the jury was not required to credit this testimony. The jury could reasonably decide the facts more logically showed that Johnson was still attempting to leave the scene with the stolen goods, and his display of the weapon was to further this purpose to retain the goods and not simply to get away. We do not reweigh the evidence or substitute our judgment for that of the jury. (Covarrubias, supra, 1 Cal.5th at p. 890.)
Johnson's reliance on Hodges, supra, 213 Cal.App.4th 531 is misplaced. In Hodges, the defendant stole items from a grocery store but relinquished the goods when confronted by security guards after he had exited the building. (Id. at pp. 535-536.) When the guard asked the defendant to return to the store, the defendant offered to give back the merchandise. The guard refused the offer, and the defendant threw the merchandise at another guard. The defendant later assaulted one of the guards while attempting to flee in his vehicle. (Ibid.) During deliberations, the jury asked if defendant could be found guilty when he used force or fear " 'after the defendant had surrendered the goods.' " (Id. at p. 538, italics added.) The trial court told the jury that " 'the theft is deemed to be continuing until the defendant has reached a point in which he is no longer being confronted by the security guards.' " (Ibid.) The reviewing court held this instruction was error because the trial court "failed to address the jury's inquiry regarding the legal impact of defendant's surrender of the goods and the relationship of that conduct to the required use of force" (id. at p. 542), and the court "improperly resolved the factual conflict inherent in the jury's inquiry regarding the impact of defendant's surrender of the goods prior to the use of force" (id. at p. 543).
In this case, there is no challenge to the jury instructions. The issue is whether the evidence supports the jury's implied finding that Johnson did not abandon the property before pointing his weapon at AH and/or the security officer. Drawing all reasonable inferences in favor of the prosecution's evidence, the jury could reasonably infer that Johnson displayed the weapon with the intent to retain the property and further the robbery. This conclusion is consistent with the Hodges court's reasoning and conclusion.
III. Grand Theft Offense
Johnson contends, and the Attorney General agrees, the grand theft conviction must be reversed because the grand theft count was a necessarily lesser included offense of the robbery count. (See People v. Ortega (1998) 19 Cal.4th 686, 699.) The parties are correct. A criminal defendant cannot be convicted of both robbery and grand theft based on the same conduct. (Ibid.) The jury found Johnson guilty of robbery and grand theft based on the same conduct—taking the same property from Walmart. Accordingly, the conviction on count two, the grand theft count relating to the Walmart incident, must be reversed. The fines and fees associated with this count must also be stricken.
DISPOSITION
We reverse the judgment as to the October 13, 2017 grand theft conviction. We affirm the judgment in all other respects. We remand the matter to the superior court with directions to prepare an amended abstract of judgment striking the October 13, 2017 grand theft conviction and the associated (stayed) sentence, fines, and fees. The court shall forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
HALLER, J. WE CONCUR: HUFFMAN, Acting P. J. NARES, J.