Opinion
D070243
01-25-2017
THE PEOPLE, Plaintiff and Respondent, v. ALVARO J. LOPEZ, Defendant and Appellant.
Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Kathryn Kirschbaum, Barry Carlton and Christopher P. Beesley, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD264553) APPEAL from a judgment of the Superior Court of San Diego County, Robert F. O'Neill, Judge. Affirmed. Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Kathryn Kirschbaum, Barry Carlton and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Alvaro J. Lopez of one count of robbery (Pen. Code, § 211) and found that he used a knife in the commission of the offense (§ 12022, subd. (b)(1); § 1192.7, subd. (c)(23)). The court sentenced Lopez to a four-year prison term, consisting of the middle term of three years for robbery and a consecutive one-year term for the weapon allegation.
All further statutory references are to the Penal Code unless otherwise specified. --------
Lopez appeals contending the evidence is not sufficient to support a conviction for robbery and that the court erred in imposing prison rather than probation. We will reject both contentions and affirm.
STATEMENT OF FACTS
The facts of the offense are largely undisputed. In this case, Lopez entered a liquor store in the afternoon. He picked up a three-pack of beer and attempted to pay for it with a debit card. However, Lopez did not know the personal identification number for the card and had no identification to match the card. When the clerk refused to sell the beer, Lopez grabbed the package and started to walk out of the store.
The clerk stopped Lopez at the door and told him he was going to call the police. Lopez returned and placed the beer on the counter. As the clerk was on the phone, Lopez picked up the beer and then removed a small, folded knife from his pocket. Lopez showed the knife to the clerk and walked out the door with the beer. The clerk did not attempt to stop Lopez because Lopez was armed with the knife he had displayed. Lopez was arrested shortly thereafter with the beer and he had the pocketknife in his pocket.
DISCUSSION
I
THE EVIDENCE ESTABLISHES A ROBBERY OCCURRED
Lopez contends the evidence is not sufficient to show that a robbery was committed as opposed to a petty theft. Lopez contends the presentation of a folded pocketknife did not amount to a taking of the beer by force or fear, and that the clerk did not discontinue his call to the police when the knife was presented. Respectfully, we believe a reasonable jury could be convinced that the property was taken from the store by means of a displayed weapon, which caused the clerk to withhold action out of fear of harm.
A. Legal Principles
When we review a challenge to the sufficiency of the evidence to support a conviction, we apply the familiar substantial evidence standard of review. Under that standard, we review the entire record, drawing all reasonable inferences in favor of the decision of the trial court. We do not reweigh the evidence nor do we make any credibility determinations. Our task is to determine whether there is sufficient, substantial evidence from which a reasonable fact finder could be convinced the defendant's guilt was proved beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578; People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
Robbery is defined as follows: "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.) Even where the property was originally taken without force or fear, the theft can become robbery where there is an application of force or fear before the defendant has successfully taken the property away. (People v. Estes (1983) 147 Cal.App.3d 23, 28; People v. Villa (2007) 157 Cal.App.4th 1429, 1433.)
B. Analysis
The issue in dispute in this appeal is whether the property was ultimately taken by means of force or fear. There actually can be no dispute, on this record, that the clerk allowed the property to leave the store without interference because Lopez presented a knife and the clerk was afraid to make a further attempt to stop him. The clerk testified that the weapon and resulting fear of possible injury caused him to yield. Plainly, the jury believed his testimony. The clerk had previously stopped Lopez from leaving, but when the knife was displayed, he allowed Lopez to leave unobstructed.
It does not matter to our analysis that the clerk remained on the phone to police as Lopez departed. That the clerk called police does not demonstrate that the final taking of the property by force or fear did not occur. Nor are we persuaded that the fact the pocketknife was folded did not make it a display of a weapon to induce the possessor of the property to step aside. Although folded when it was presented, nothing in this record shows the knife could not readily be opened and used as a weapon. The jury could well find the clerk was reasonable, and credible in his expression of fear at being confronted with a knife by Lopez. We are fully satisfied the evidence supports the conviction for robbery.
II
THE SENTENCE WAS LAWFULLY IMPOSED
Essentially, Lopez argues the court should have selected a more lenient sentence. Relying on his long term substance abuse, and what Lopez describes as a minor criminal history, Lopez argues the court should have granted probation. Again, we disagree and reject this argument.
A. Legal Principles
A trial court decision to grant or deny probation is reviewed under the abuse of discretion standard of review. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) An abuse of discretion is not demonstrated merely by the argument that other judges might have reached a different result. Trial judges enjoy broad discretion in sentencing decisions. (People v. Pinon (1973) 35 Cal.App.3d 120, 123.) An abuse of discretion occurs when "the court exceeds the bounds of reason, all of the circumstances being considered." (People v. Giminez (1975) 14 Cal.3d 68, 72.) A single aggravating factor is legally sufficient to support a trial court's decision to deny probation. (People v. Black (2007) 41 Cal.4th 799, 813.)
B. Analysis
The probation officer's report shows that Lopez had suffered a number of misdemeanor convictions prior to the current offense. He was on formal probation when he committed the current crime, and has been involved in the criminal justice system since 2007. He was presumptively ineligible for probation because of the use of a knife. Lopez had continuously violated the various prior grants of probation. The probation officer was of the view that Lopez simply cannot, or will not abide by conditions of probation. As the probation officer summed up the recommendation, the report said: "Although the theft of three beers (valued at $6.00), with a pocketknife, does not appear to be worthy of a state prison commitment, his [Lopez's] criminal history, disregard for the criminal justice system, and ongoing drug use appears to more than warrant a state prison commitment."
We are satisfied that the trial judge could reasonably conclude Lopez posed a danger and could not be managed on probation. He had been arrested a number of times in the year leading to this crime and had now utilized a weapon to accomplish his pattern of thefts. The court's decision was not an abuse of discretion.
DISPOSITION
The judgment is affirmed.
/s/_________
HUFFMAN, Acting P. J. WE CONCUR: /s/_________
AARON, J. /s/_________
IRION, J.