Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 06NF1203 Richard W. Stanford, Jr., Judge.
Law Office of William J. Kopeny & Associates and William J. Kopeny for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf, Christine Levingston Bergman and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MOORE, J.
Defendant Justin Norman Lavoie appeals from his conviction for two counts of attempted robbery. He claims there was insufficient evidence of his intent to permanently deprive the victims of the property or its beneficial use. He further claims the jury was improperly instructed, he received ineffective counsel, and cumulative error. Finding that none of these claims have any merit, we affirm.
I
FACTS
We present the facts in the light most favorable to the judgment in accord with established principles of appellate review. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
Counts One and Two
At approximately 10:00 p.m. on March 28, 2006, Landen Mirallegro, Jeffrey Campau, and Mike Carillo were in a Fullerton parking structure walking to their cars. As they walked up the stairs to the second level of the garage, they were approached by defendant and another individual, later identified as Travis G. Defendant and Travis G. asked if they could borrow a cell phone, and the three men said they did not have them. Travis G. asked Campau if Campau was disrespecting him, and Campau said that he was not.
Travis G. may have been a minor.
Mirallegro described the situation as escalating. Defendant and Travis G. repeatedly asked the men for their cell phones, even as they kept walking toward their cars to try to defuse the situation. The tone of voice defendant and Travis G. were using quickly became forceful and demanding. At one point defendant and Travis G. grabbed at the men’s pockets, asking what was in them as they continued to try to walk away.
Eventually, Travis G. and defendant began to threaten the three men, stating they would “kick [their] ass” and “we can take all of you” if they did not give them a cell phone. Travis G. said that defendant was “packing,” which Mirallegro and Campau understood that to mean that he had a weapon of some sort.
The three men tried to get to their vehicles. Mirallegro went away from Campau and Carillo, toward his own car, and defendant and Travis G. followed him. He got into the car, shut the door, and started backing out of the parking space. Defendant got in front of the car, with his knee against the bumper and one hand on the hood, with the other hand in his pocket. Defendant then climbed onto the hood of the car, with Travis G. off to the side.
Mirallegro, believing that defendant had a weapon, rolled the car forward. Defendant then ran along side and tried to open the driver’s side door, which was locked. He then began punching a window. Mirallegro removed a taser gun from his glove box, rolled down the window and tasered defendant. Defendant fell to the ground and Mirallegro drove out of the parking structure. Mirallegro called the police.
Defendant was found not guilty as to count four, a vandalism charge, and facts relating to that count are therefore omitted.
On April 4, 2006, defendant approached Mohammed Abuzir in front of an Internet café in Fullerton at approximately 6:00 p.m. Defendant approached Abuzir and asked for 25 cents, who responded that he did not have it. Defendant said that if Abuzir did not give him money, he was going to hit and break his nose. Abuzir felt threatened, and defendant pushed Abuzir by placing his hand on his chest. Abuzir backed up a couple of feet, and told defendant to stay away. Abuzir made a report to the police.
Procedural History
A jury found defendant guilty of the attempted robberies of Mirallegro and Campau (counts one and two, Pen. Code, §§ 664, 211, 212.5, subd. (c)), and not guilty of attempted robbery as to Abuzir (count three). The jury found defendant guilty of misdemeanor assault (count five, § 240) and misdemeanor battery (count six, § 242) as to Abuzir. Defendant was placed on three years’ formal probation, and now appeals.
Subsequent statutory references are to the Penal Code.
II
DISCUSSION
Sufficiency of the Evidence
Defendant claims there was insufficient evidence to support the attempted robbery counts. Specifically, he claims that there was no evidence that defendant intended to permanently deprive the victims of their property or a major portion of its beneficial use.
“Our role in considering an insufficiency of the evidence claim is quite limited. We do not reassess the credibility of witnesses [citation], and we review the record in the light most favorable to the judgment [citation], drawing all inferences from the evidence which supports the jury’s verdict. [Citation.]” (People v. Olguin (1999) 31 Cal.App.4th 1355, 1382.) Substantial evidence is “evidence that is reasonable, credible, and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.]” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) Before a verdict may be set aside for insufficiency of the evidence, a party must demonstrate “‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.)
An attempt has two elements: the specific intent to commit that particular crime and a direct but ineffectual act toward its commission. (People v. Swain (1996) 12 Cal.4th 593, 604.) “The elements of robbery are (1) a taking of personal property, (2) from the person or immediate presence of another, (3) through the use of force or fear, (4) with an intent to permanently deprive the owner of his property. [Citations.]” (People v. Kelley (1990) 220 Cal.App.3d 1358, 1366.) “In order to establish attempted robbery, the People must prove specific intent to commit robbery and a direct unequivocal overt act toward its commission. This act must go beyond mere preparation.” (People v. Vizcarra (1980) 110 Cal.App.3d 858, 861.)
The element defendant claims is lacking here is specific intent. “‘[I]ntent is inherently difficult to prove by direct evidence. Therefore, the act itself, together with its surrounding circumstances must generally form the basis from which the intent of the actor may legitimately be inferred.’ [Citation.]” (People v. Edwards (1992) 8 Cal.App.4th 1092, 1099.) The circumstances present here were sufficient for a reasonable jury to infer that defendant had the specific intent to take the victims’ property with the intent to permanently deprive them of its use. Defendant and his companion approached the victims at night in a parking garage, asking them for a cell phone. Instead of walking away when the men said no, defendant and Travis G. became more insistent and confrontational. They acted like they had a weapon, and grabbed at least one of the victim’s pockets. They eventually attempted to stop one of the victims from leaving, standing in front of the car, grabbing on the hood, attempting to open the door and punching a window.
From these facts a reasonable jury could infer that defendant’s intent was not to harmlessly “borrow” a cell phone, but to steal it. Their words and actions lead to this very obvious conclusion quite readily, and defendant’s claim of insufficient evidence must therefore fail.
Defendant argues that this line of reasoning substitutes the element of intent for the element of force or fear. We disagree. The same facts can be used to support more than one element of a crime. Here, the fact that defendant and his companion escalated their behavior supports not only the use of force or fear, but that their intent was to steal the phone, not merely borrow it.
Jury Instructions
Defendant next claims the court improperly instructed the jury as to second degree robbery. Specifically, he claims “the instruction given on the theory that robbery can be committed if the accused has the specific intent to deprive the victim of the major portion of the value or enjoyment of the property was... erroneous....”
The court instructed the jury with CALCRIM No. 1600 with respect to the elements of robbery. One phrase, italicized here, was omitted from the pattern instruction. The pattern instruction stated: “When the defendant used force or fear to take the property, he intended to deprive the owner of it permanently or to remove it from the owner’s possession for so extended a period of time that the owner would be deprived of a major portion of the value or enjoyment of the property.” Defendant claims this omission left the jury confused as to what was meant by the “major portion of the value or enjoyment of the property.”
Even if the instruction was erroneous, the error was harmless, because it is not reasonably probable the jury would have returned a different verdict absent the error. (People v. Duncan (1991) 53 Cal.3d 955, 971; People v. Watson (1956) 46 Cal.2d 818, 836.) Given the evidence, it is not likely that had the “for so extended a period of time” language been given, the jury would have concluded that defendant’s only intent was to harmlessly borrow the phone. Such an argument is simply not consistent with the defendant’s conduct, which was violent and threatening. A reasonable jury, instructed with the additional language, would not have examined defendant’s conduct and concluded that his only intent was to “borrow” the phone. Any error, therefore, was harmless.
Defendant also argues that the court erred by allowing the jury to be “instructed on a totally speculative theory, based on what the jury imagined [defendant] might have done, if, after being tased, and run at by Mirallegro in his car, [defendant] was given the cell phone.” This argument is without merit, because the crime of attempted robbery was complete when defendant took a direct step toward its completion. We find no error.
Ineffective Assistance of Counsel
“The standards for ineffective assistance of counsel claims are well established. ‘We presume that counsel rendered adequate assistance and exercised reasonable professional judgment in making significant trial decisions.’ [Citation.]” (People v. Prieto (2003) 30 Cal.4th 226, 261.) “In order to demonstrate ineffective assistance, a defendant must first show counsel’s performance was deficient because the representation fell below an objective standard of reasonableness under prevailing professional norms. [Citation] Second, he must show prejudice flowing from counsel’s performance or lack thereof. Prejudice is shown when there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. [Citation.]” (People v. Williams (1997) 16 Cal.4th 153, 214-215.) If the defendant fails to establish either component by a preponderance of the evidence, the claim of ineffective assistance fails. (People v. Harris (1993) 19 Cal.App.4th 709, 714.)
Defendant points to two areas in which he claims his counsel was ineffective: the failure to object to “prejudicial, improper arguments to the jury by the prosecutor” and by misstating the law of robbery in his own argument, improperly conceding “the most important point” in the attempted robbery counts.
With respect to the first claim, defendant points to the following statement by the prosecutor: “So when you start cycling back, do we have an indication from the evidence that the defendant intended on taking property? We sure do. When you cycle it back, you go, do we have evidence [that] supports the conclusion that he took a direct step towards accomplishing that aim? We sure do. It’s all there.”
Defendant claims this was a misstatement of the elements of attempted robbery, apparently because this one-paragraph summary did not address each and every element of attempted robbery. We find no error on counsel’s part for failing to object to this statement.
Prosecutors have wide latitude during closing argument. (People v. Thomas (1992) 2 Cal.4th 489, 526.) “‘[W]hen the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.’” (People v. Ochoa (1998) 19 Cal.4th 353, 427.) Defendant’s complaint about the statement at issue here ignores its context, which included the prosecutor reviewing the elements of robbery, the law of attempt the necessary intent for attempted robbery, and an explanation that the crime of attempted robbery included the element of using force or fear. When viewed in context, the statement defendant complains of did not misstate the elements of robbery, but summarized some of the points he wished to emphasize. This was proper argument and defense counsel was not ineffective for failing to object.
Defendant next complains that defense counsel failed to object when, during rebuttal argument, the prosecutor stated: “Permanent deprivation, you’re right. It has to be a situation where the defendant intended to either permanently deprive, take it and not give it back, like the quarter, if he got a quarter from Abruzir, he’s certainly not going to give back the quarter. Or to, you know, deprive the owner of the value somehow of the property either by handing back the damaged goods, whatever. Play this out in your head. Mr. Mirallegro finally hands over the phone. Defendant makes his phone call. After all the stuff that has been done to the defendant, ‘I am not going to do it, I am not going to turn over my phone,’ all these things, do you think defendant is just going to make the phone call and hand it back to them? Do you think that’s really what this is all about?”
Defendant argues that counsel was ineffective for failing to object, claiming that the prosecutor failed to note that specific intent must exist at the time that force or fear is used. Essentially, defendant claims that the prosecutor was arguing that he would be guilty of attempted robbery if after he had the phone in his possession, he formed the intent to keep it. This, however, appears to misstate the prosecutor’s argument, which appears to be that defendant always intended to keep the phone in the first place. The prosecutor was asking the juror’s to “play out” the alternative scenario in their minds and determine if it made sense.
This was permissible argument, and not a misstatement of the law. The prosecution is permitted to argue its theory to the jury, and we find no reasonable likelihood that the jury misunderstood the law as defendant suggests. (People v. Ochoa, supra, 19 Cal.4th at p. 427.) Thus, defense counsel was not ineffective for failing to object.
Finally, defendant argues that defense counsel was ineffective during his own closing argument, misstating the law of attempted robbery by improperly arguing a force or fear element, misstating the law of intent, and misstating the law of what constitutes a direct act toward the commission of a crime.
With respect to the first claim, defendant argues that defense counsel improperly argued that the prosecution had to prove three “critical elements” to establish attempted robbery, including force or fear. Defendant argues that by misstating the elements of attempted robbery, the jury would doubt everything else that counsel said. When viewed in context, we disagree that counsel misstated the law. Again, we review counsel’s argument in context. Counsel was speaking about force or fear in the context of the “direct but ineffect[ual] step” element of the law of attempt, upon which the jury was instructed. Counsel properly argued that the prosecution had not established the use of force or fear as part of the attempt.
Defendant next argues that counsel improperly argued the element of intent, relating to the instructional issue discussed ante. In sum, defense counsel argued that the prosecution had not proved that defendant intended to deprive the victim of his property, arguing instead that defendant’s only intent was to borrow the phone. This was proper argument regarding the burden of proof.
Lastly, defendant claims that defense counsel misstated the law regarding a direct act toward the commission of an attempt offense. Counsel argued there was no direct step, despite the “patting” down of the victims. Counsel admitted that actually reaching into the pocket and taking the phone out might have constituted attempt. Defendant argues this statement would lead a juror to conclude that defendant’s state of mind was sufficient to satisfy the intent requirement. Such a comment, specifically on the element of what constituted a direct act, would lead any reasonable juror to reach such a conclusion with respect to an entirely different element of the crime. Further, when viewing counsel’s remarks in their entire context, the argument about mere planning as opposed to a direct step would be clear to any reasonable juror. Counsel was not ineffective for arguing the obvious — that reaching into a pocket and actually removing a phone might indeed constitute a direct step toward robbery. There was no error.
Cumulative Error
As we find no individual error with respect to defendant’s claims, we also find no cumulative error. (People v. Lewis (2001) 25 Cal.4th 610, 635.)
III
DISPOSITION
The judgment is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J., FYBEL, J.