Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. VA087278, John A. Torribio, Judge. Affirmed.
John Doyle, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Yun K. Lee and Laura J. Hartquist, Deputy Attorneys General, for Plaintiff and Respondent.
JACKSON, J.
INTRODUCTION
A jury convicted defendant Marco Antonio Ledezma of 21 counts of second degree robbery (Pen. Code, § 211) and found true the special allegation as to 13 counts that a principal in the commission of a felony was armed with a firearm (a handgun) (§ 12022, subd. (a)(1)), and as to one count that defendant had personally used a firearm to commit the offense (§ 12022.53, subd. (b)). The jury also convicted defendant of one count of inflicting corporal injury on a cohabitant (§ 273.5) and found true the special allegation of great bodily injury under circumstances involving domestic violence in the commission of a felony (§ 12022.7, subd. (e)). The trial court sentenced defendant to an aggregated term of 41 years 4 months in state prison.
Defendant’s name also appears in the record as Marco Antonio Ledesma and Marco Antonio Ledezma Lopez.
All further statutory references are to the Penal Code.
Apparently, the jury never made findings on the section 12022.53, subdivision (b), allegation accompanying counts 40, 42, 45 through 47, and 49 through 50. The special allegation was not shown on the verdict form for those counts.
Defendant’s sole contention on appeal is the evidence is insufficient to support four of the robbery convictions as a matter of law because there was no showing the employee victims had actual or constructive possession of the money taken during the robbery. In light of People v. Scott (2009) 45 Cal.4th 743 (Scott), which was decided during the pendency of this appeal, we affirm the judgment.
Defendant filed his opening brief on December 5, 2008. Scott, supra, 45 Cal.4th 743 was filed on February 19, 2009. Defendant was permitted to file a late reply brief in which he discussed the case.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant and a confederate (the robbers) robbed owners and employees at gunpoint in six different Los Angeles County businesses from March 2004 through January 2005. This appeal concerns robberies committed against four of the employee victims.
1. Nuevo Guadalajara Meat Market Employees—Counts 12, 13 and 14.
On January 11, 2005, Kon Park (Park) and his three employees, Mario Herrera Mendoza (Mendoza; count 12), Lino Perez Martinez (Martinez; count 13) and Gonzalo Martinez Mancilla (Mancilla; count 14) were working at the Nuevo Guadalajara MeatMarket. The robbers entered the store, struck Mancilla in the head with a gun, and he fell to the floor. When Martinez saw the gun was pointed at him, he fled from the market. Mendoza, the remaining employee, was forced to escort the robbers to Park’s office, where defendant demanded money from Park at gun point. Park handed over the cash from his office safe.
2. The Heat Car Wash Employee—Count 18
On the evening of December 24, 2004, manager Raul Martinez (Raul) was in the back office of the Heat Car Wash. Employees Manuel Palomo (Palomo; count 18) and Cynthia Ruvira (Ruvira) were standing near the cash register, when the robbers approached and demanded money at gunpoint. Ruvira screamed for Raul. The robbers took Palomo and Ruvira to the back office, where defendant threatened to shoot and kill Ruvira if Raul did not give him money. Raul surrendered the money in the back office as well as the money in the cash register.
DISCUSSION
“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.” (§ 211.) California adheres to “the traditional approach that limits victims of robbery to those persons in either actual or constructive possession of the property taken.” (People v. Nguyen (2000) 24 Cal.4th 756, 764.) The crime of robbery “‘is an offense against the person....’” (People v. Miller (1977) 18 Cal.3d 873, 880, overruled on another point as explained in People v. Oates (2004) 32 Cal.4th 1048, 1068.)
Defendant does not dispute that victims Mendoza, Martinez, Mancilla and Palomo were present at the time of the robbery. However, defendant argues his convictions on those counts and the accompanying arming enhancements must be reversed because (1) the victims’ employee status is not, in itself, sufficient to prove they had constructive possession of the money taken from the Nuevo Guadalajara Meat Market and Heat Car Wash, and (2) the evidence is otherwise insufficient to support a finding of constructive possession.
Defendant’s argument is based on the now discredited case People v. Frazer (2003) 106 Cal.App.4th 1105 (Frazer), in which the court held that although a store employee without actual possession of his employer's property may be a robbery victim on a theory of constructive possession due to his or her special relationship with the employer, not all store employees are necessarily victims. Frazer concluded there must be “a fact-based inquiry” to determine if the particular employee “has sufficient representative capacity with respect to the owner of the property, so as to have express or implied authority over the property. Under this standard, employee status does not alone as a matter of law establish constructive possession. Rather, the record must show indicia of express or implied authority under the particular circumstances of the case.” (Id. at p. 1115.)
Frazer, supra, 106 Cal.App.4th 1105 has recently been overruled by the California Supreme Court in Scott, supra, 45 Cal.4th 743, in which two robbers entered a restaurant when a manager and two other employees were on duty. The manager was forced to surrender cash at gunpoint from the restaurant safe. The other two employees did not have access to the safe and immediately hid upon seeing the robbers’ gun. Scott held that regardless of their job duties and access or control to stolen property, “all on-duty employees have constructive possession of the employer’s property during a robbery,” (id. at p. 755) and, provided all other elements of the offense are proven, are robbery victims. Accordingly, there is substantial evidence the four employees in this case were victims of separate counts of robbery. (Id. at p. 757.)
In his reply brief defendant argues, however, that Scott violates the separation of powers doctrine by effectively removing the element of possession from the robbery statute. Defendant acknowledges we are generally bound to follow Scott (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455) and indicates he merely seeks to preserve this issue for later review.
DISPOSITION
The judgment is affirmed.
We concur: PERLUSS, P. J., WOODS, J.