Opinion
F040783.
10-16-2003
THE PEOPLE, Plaintiff and Respondent, v. WALTER NICK MARTINEZ, JR., Defendant and Appellant.
Emry J. Allen, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Stan Cross and Janis Shank McLean, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT
Appellant Walter Nick Martinez, Jr. was convicted of second degree robbery (Pen. Code, § 211, count one) and commercial burglary (Pen. Code, § 459, count 2). The court found true an allegation that Martinez had a prior serious felony conviction within the meaning of the three strikes law. The court also found true enhancements alleging Martinez had a prior serious felony conviction (§ 667, subd. (a)) and prior prison term (§ 667.5, subd. (b)).
Martinez waived his right to a jury trial and was tried by the trial court. The court denied Martinezs motion to dismiss the allegations pursuant to Penal Code section 1118. All further statutory references are to the Penal Code.
The trial court sentenced Martinez to prison for two years on count one. The court sentenced Martinez to prison for 16 months on count two but stayed sentence pursuant to section 654. The court struck the prior serious felony allegation. The court imposed a one-year sentence for the prior prison term enhancement and five years for the prior serious felony enhancement. Martinezs total prison term is eight years. The court imposed a restitution fine and granted Martinez applicable custody credits.
On appeal, Martinez contends there was insufficient evidence that he employed force or fear during the alleged robbery. Martinez argues the trial court applied an incorrect legal standard in denying his motion to dismiss the robbery allegation and convicted him applying the same incorrect standard. Martinez also contends a statement he made to an investigating police officer, which was admitted into evidence at trial, was the product of an improper custodial interrogation in violation of Miranda v. Arizona (1966) 384 U.S. 436.
FACTS
Michael Simms was employed as manager of a Blockbuster video store in Fresno on September 10, 2001. Martinez and Amy Blackmon entered the store at 7:00 p.m. Simms became leery, when Martinez and Blackmon failed to respond to Simmss greeting. Simms watched the couple as they walked over to the game section of the store. Martinez kept looking over his shoulder toward Simms as he talked to Blackmon.
As Martinez and Blackmon left the area, Simms saw Blackmon carrying two video games. Martinez exited the store. Blackmon stopped prior to passing through the electronic security system at the exit. Martinez reentered the store and the couple exited the store together activating security system sensors. Simms told them to "hold on." Another store employee also told Martinez and Blackmon to stop. An inventory of the store conducted later showed video games and a remote control for video games were missing.
Simms followed Martinez and Blackmon out the door to get their license number. Store policy was to avoid confrontation with anyone. Simms was not trying to detain Martinez or Blackmon. Martinez and Blackmon were walking quickly. Martinez was tossing a cell phone in his hand.
From a distance of about 18 feet, Martinez turned around and told Simms, "Homes, you lost this product today." Simms replied that he was not worried about the product because he would get it back. Holding the cell phone in his left hand, Martinez placed both of his hands together clinched into fists in front of his abdomen. Raising his right hand toward his head above his shoulder, Martinez flipped an object that appeared to be a knife with a silver blade six to eight inches long. Martinez pointed the blade toward his own face. Simms could see the blade and knife handle. At this moment, Martinez and Simms were between 10 and 15 feet apart from one another.
Simms testified that though it was possible the object may not have been a knife, he had no idea what the object was if it was not a knife.
As Martinez raised the knife he said that if Simms thought he was getting the product back, his "ass was as good as stabbed." Simms feared for his life. Simms thought about his wife and four children. Simms thought that if Martinez was serious, he would never see his family again. Seeing the knife and hearing the threat caused Simms to stop.
Simms explained that his duty was not to apprehend Martinez. Store policy was to obtain a description of the vehicle and as much information as possible to give to the authorities. Simms told Detective Dingler, who investigated the crime, that Martinez told Simms he would stab him if he tried to retrieve the stolen property. Simms told Dingler he was frightened and decided not to pursue retrieval of the property. Simms told Officer Maffei he left the store to pursue the property that had been taken. Maffei later acknowledged that Simms may have said he went outside to chase the suspects.
Simms was able to provide the make and model of the vehicle as well as all the license plate information except for one digit.
ELEMENT OF FORCE OR FEAR
Martinez contends there was insufficient evidence to support the force or fear element of robbery. Martinez also contends the trial court misunderstood the legal requirements of the element of force or fear and therefore improperly denied his acquittal motion and convicted him based on the same incorrect legal standard.
A. Evidence of Force or Fear
A robbery is defined as the felonious taking of personal property in the possession of another, from his or her person or immediate presence, against his or her will, accomplished by means of force or fear. (Pen. Code, § 211; People v. Travis (2003) 107 Cal.App.4th 368, 373.) The commission of a robbery continues so long as the property taken is being carried away to a place of temporary safety. (People v. Haynes (1998) 61 Cal.App.4th 1282, 1290.) The scene of a robbery is not a place of temporary safety. (Id. at p. 1292.) Mere 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. (People v. Estes (1983) 147 Cal.App.3d 23, 27-28.)
The element of force or fear requires proof from the prosecution that the victim was in fact afraid, and that such fear allowed the crime to be accomplished. Actual fear may be inferred from the circumstances. It need not be explicitly testified to by the victim. (People v. Cuevas (2001) 89 Cal.App.4th 689, 698.)
Martinez argues that because the property was in Blackmons possession and Simms had no intent to attempt to take the property back, that the threat to him did not accomplish the theft of the property. According to Martinez, there was no nexus between Simmss fear and the securing of the property because Simmss intent was to avoid further confrontation pursuant to store policy.
There is ambiguity in the record concerning Simmss intent with regard in recovering the property. Though Simms testified that it was store policy not to confront thieves, Simms in fact confronted the thieves. At one point Simms was between 10 and 15 feet from Martinez and Blackmon, but had been 18 feet away when he exited the store. This was evidence from which the trial court, as trier of fact, could reasonably infer that Simms was attempting to move closer to Martinez and Blackmon to retrieve the stolen property. Though Simms denied he was trying to recover the property, the circumstances suggest that may have been an alternative objective and Martinez thought that was his aim. When Martinez pulled out a knife, Simms stopped moving altogether. Simms said that he was afraid that if he continued any further, he may never see his wife and children again.
Even if Simms was not trying to retrieve the stolen property, Martinezs use of a knife made the escape easier. Where a perpetrator begins a theft using peaceful means to separate property from a victim, such as pretext, the crime of theft is transformed into robbery where force or fear are employed during escape. (People v. Hill (1998) 17 Cal.4th 800, 850; People v. Flynn (2000) 77 Cal.App.4th 766, 771-772.)
Simms was frightened after Martinez pulled out a knife and threatened him. Though Simms was able to write down the description of the vehicle, he missed one digit of the license number. There was sufficient evidence before the trial court from which it could infer that Martinez was close enough to attack Simms had Simms began writing down the vehicle description and license number before Martinez and Blackmon drove away. The evidence adduced at trial established that Martinezs threat actually impaired Simmss ability to obtain a full license number from the vehicle used for the escape. There is a factual nexus between Martinezs threat, the fear Simms felt, and the Martinezs attempt to escape.
B. Acquittal Motion and Conviction
Martinez contends the trial court misunderstood the law and applied the incorrect legal standard when Martinez made a motion for acquittal pursuant to section 1118. Martinez further argues that the trial court stated the same logic when it found him guilty of robbery and that his conviction, therefore, was based on the wrong legal standard.
The court recognized the robbery was a continuous offense which continued outside the store. The court found that Simms went outside the store to interfere with the escape any way he could, either by obtaining identity or scaring Blackmon into dropping the stolen property. The court thought Simms would try to pick up the property in the event Blackmon dropped it. The court noted there had been a theft of store property and Simmss intent was "to screw up the completion of the theft." The court also noted Simms had a shopkeepers privilege and could physically restrain Blackmon to turn her over to the authorities. The court stated that Simmss "actual intent was not germane."
Martinez posits that because the element of fear in robbery is based on the victims subjective feelings, the issue of whether the victim was actually afraid is germane to the courts inquiry on both the acquittal motion as well as the courts finding of guilt. According to Martinez, if Simms was not afraid of an attack by the appellant because Simms knew he was never going to retrieve stolen store property, then Simmss actual intent in following Martinez and Blackmon was germane to the courts factual findings.
Martinezs argument rests on the premise that Simms subjectively felt no fear because he was following store policy not to retrieve property. Martinezs argument implicitly, if not explicitly, includes the premise that even if Simms felt fear when Martinez brandished the knife, the fear Simms felt did not facilitate the offense and there was, therefore, no robbery.
The trial court noted that Simms would have retrieved property had Blackmon dropped it for some reason. Martinez characterizes this finding by the trial court, as well as the courts observations that Simms had a shopkeepers privilege and wanted to thwart the theft, as pure speculation. We disagree. These were reasonable inferences by the trial court based on the facts adduced at trial.
In criminal cases, there must be substantial evidence that the defendant committed the offense. Appellate courts must review the record in the light most favorable to the judgment to determine whether there is substantial evidence — that is, evidence which is reasonable, credible, and of solid value. The focus of the substantial evidence test is on the whole record of the evidence presented to the trier of fact. Courts do not focus on isolated bits of evidence. (People v. Cuevas (1995) 12 Cal.4th 252, 260-261.) Appellate courts presume in support of the judgment every fact the trier of fact could have reasonably deduced from the evidence. (People v. Moses (1990) 217 Cal.App.3d 1245, 1251.) Where the verdict is supported by substantial evidence, we do not substitute our evaluation of a witnesss credibility for that of the fact finder. (People v. Reed (2000) 78 Cal.App.4th 274, 279-280.)
Martinezs threat caused Simms to fear for his physical safety. In our analysis of this issue, we will put aside discussion of the conflicting evidence concerning whether Simms intended to retrieve the stolen property. We do so because there was uncontroverted evidence adduced at trial that Martinezs threatening conduct facilitated his escape. This fact was expressly noted by the trial court in its final ruling finding Martinez guilty of robbery. The trial court found Martinezs threat facilitated Martinezs and Blackmons escape with the stolen property.
Even if Simms had no intent to retrieve the stolen property, Martinezs conduct was calculated to induce fear — which he indeed caused — to effectuate his escape with the property. Because Martinez successfully threatened Simms to effectuate his escape, the trial court was correct in its comment that Simmss intent to take back the property was not germane to whether a robbery was committed. Given Simmss proximity to Martinez, even at a distance of 10 to 15 feet, the feasibility and possibility of a knife attack by Martinez was real and was life threatening.
Simms testified that when he saw the knife with a six to eight inch blade and heard Martinezs threat, he thought that if Martinez attacked him he would never see his wife and children again. Martinez and Blackmon then escaped with the stolen property. It appears to us that Martinez is confusing Simmss apparent lack of fear as he exited the store with the undeniable fear Simms was feeling as Martinez brandished the knife and made his threat. Viewed in this light, the trial courts observation was accurate. Simmss initial intent as he left the store had no impact on his later fear after Martinezs threat.
We do not understand the trial courts comment to mean that the court failed to evaluate Simmss subjective feelings and or that the court failed to consider whether Simms was actually afraid for his own personal safety. Rather, the court was carefully evaluating all the facts and circumstances surrounding the crime. The trial court did not misapply the law in either its ruling on the acquittal motion or on its finding that Martinez committed a robbery. We therefore reject Martinezs contention, express or implied, that his threat to Simms did not facilitate the theft.
CUSTODIAL INTERROGATION
Martinez contends he did not expressly or impliedly waive his Miranda rights, that his statements were involuntary, and his statement was taken in violation of Edwards v. Arizona (1981) 451 U.S. 477.
Miranda v. Arizona (1966) 384 U.S. 436.
A. Facts
Fresno Police Department Detective Ed Dingler, a sworn peace officer for 25 years, investigated the Blockbuster robbery. On October 3, 2001, after speaking to Simms, Dingler discovered that Walter Martinez had been arrested on a different allegation. Dingler interrogated Martinez at police headquarters. Dingler gave Martinez his Miranda rights, reading them from a card issued by the police department. Martinez did talk to Dingler prior to being advised of his constitutional rights about the other case, but did not discuss the instant action.
After receiving his Miranda advisements, Martinez continued talking about the other case. When asked about the Blockbuster robbery, Martinez told Dingler that he wanted to go back to jail. Dingler told Martinez that he needed to get Martinezs side of the story. Martinez again asked to go back to jail. Dingler escorted Martinez to the police station holding cell. Once inside the holding cell, Martinez became upset and started pounding his head on the wall. Martinez said he was being accused of something he did not do.
Dingler asked Martinez to talk about the incident. Dingler said it was all Blackmons doing. Martinez told Dingler that Blackmon took the property from the store. Martinez said that he talked to Simms outside the store. In referring to Simms, Martinez used a racial epithet. When told that Simms claimed Martinez had a knife, Martinez told Dingler that Simms was lying.
B. Interrogation
At trial, defense counsel objected to the admission of Martinezs statements on the ground that they were given in violation of Miranda. If a suspect inidcates in any manner and at any stage in the process, prior to or during questioning, that he or she wishes to consult an attorney, the suspect may not be interrogated. Once a suspect has invoked these rights, he or she is not subject to further questioning until counsel has been made available unless the suspect personally initiates further communication with the authorities. The rule of Edwards applies only when the suspect has expressed a wish for the assistance of a lawyer which is the subject of Miranda. At a minimum, it requires some statement that can reasonably be construed to express a desire for the assistance of a lawyer in dealing with a custodial interrogation by law enforcement. Interrogation consists of express questioning, or words or actions by police which are reasonably likely to elicit an incriminating response from a suspect. (People v. Cunningham (2001) 25 Cal.4th 926, 992-993.)
A suspects invocation of the Miranda right to counsel must be express and clear. (Davis v. United States (1994) 512 U.S. 452, 459; People v. Cunningham, supra, 25 Cal.4th at p. 993.) A suspects invocation of his right to silence occurs by any words or conduct reasonably inconsistent with a present willingness to discuss the case freely and completely. (People v. Samayoa (1997) 15 Cal.4th 795, 829.)
Once a request to stop an interrogation has been made, it must be scrupulously honored. Investigators may not attempt to circumvent the suspects decision by refusing to discontinue the interrogation upon request or by persisting in repeated efforts to wear down the suspects resistance. A suspects assertion of the privilege need not be unequivocal. (People v. Wash (1993) 6 Cal.4th 215, 238.) Where a defendant, however, expresses ambiguous remarks falling short of an invocation of Miranda rights, the officers may continue talking for the purpose of obtaining clarification of the defendants intentions. (Id. at p. 239.)
Martinez asserts that Detective Dingler engaged in persistent efforts to get him to talk. We do not agree. After giving Martinez complete Miranda advisements, Martinez was willing to talk about his other case. When shown a picture of Blackmon and asked about the Blockbuster robbery, Martinez asked to return to jail. Dingler once told Martinez the police needed to hear his side of the story. Martinez again requested that he be returned to jail. Dingler complied with the request. Once he was in the holding cell, Martinez became upset, began banging his head on the wall, and asserted he was accused of something he did not do.
The interrogation ceased until Martinez became agitated, began to bang his head, and started talking voluntarily about the Blockbuster incident without prompting from Dingler. Martinezs comments were made close in time after he received full Miranda advisements. Dinglers conduct did not constitute a persistent effort to wear down a defendant to get him to talk. Martinez neither requested counsel nor did he invoke his right to silence prior to voluntarily talking to Detective Dingler from the holding cell.
Martinez has failed to show that his comments to Dingler were involuntary or the result of coercive police conduct. Martinez has also failed to show that his comments to Dingler were taken in violation of Miranda or Edwards.
DISPOSITION
The judgment is affirmed.