Opinion
B189516
4-20-2007
THE PEOPLE, Plaintiff and Respondent, v. ROBERT LYNN MIDKIFF, Defendant and Appellant.
Cynthia L. Barnes, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Robert S. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Robert Lynn Midkiff appeals from the judgment entered following a court trial in which he was convicted on count 1 — first degree residential burglary with a person present (Pen. Code, §§ 459, 667.5, subd. (c)(21)), count 2 — assault with a deadly weapon by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)), count 3 — second degree robbery (Pen. Code, § 211) and count 4 — first degree residential robbery (Pen. Code, § 211), with, as to counts 1, 3, and 4, personal use of a deadly and dangerous weapon (Pen. Code, § 12022, subd. (a)(1)) and, as to all counts, personal infliction of great bodily injury (Pen. Code, § 12022.7, subd. (a)), with admissions he suffered two prior felony convictions (Pen. Code, § 667, subd. (d)), two prior serious felony convictions (Pen. Code, § 667, subd. (a)), and four prior felony convictions for which he served separate prison terms (Pen. Code, § 667.5, subd. (b)). The court sentenced him to prison for 39 years to life.
We conclude there was sufficient evidence that appellant committed first degree residential robbery and second degree robbery. Appellant claims there was insufficient evidence that he took property from the victims person or immediate presence. Appellant also claims, as to each of counts 3 and 4, that the trial court failed to determine the degree of the robbery as required by Penal Code section 1192. However, our review of the record reveals there was sufficient evidence that appellant took property from the victims immediate presence. Moreover, although robbery is divisible into degrees, neither first degree residential robbery, nor second degree robbery, is divisible into degrees; therefore, Penal Code section 1192, is inapplicable. Because each of counts 3 and 4 was based on the same act, appellant actually stands convicted of a greater offense (count 4) and a lesser included offense (count 3), the remedy for which is reversal of his conviction on count 3. Finally, we accept respondents concession that appellant is entitled to conduct credit under Penal Code section 4019.
FACTUAL SUMMARY
Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established that on August 10, 2004, Diane Lowry (Lowry), her husband Tor, and his brother Rico lived in their home in the 5900 block of Zelzah Avenue in Encino. Lowry was in bed in her bedroom when her dogs barking awakened her. Appellant was burglarizing Lawrys home. Lowry arose and saw appellant standing in the hallway outside her bedroom. Appellant assaulted her on her hand with a sharp object, causing her great bodily injury. He also repeatedly pushed Lowry, causing her to fall. Lowry shouted that someone was in the house.
Appellant later entered the living room from the hallway. Tor closed the hallway door and put a bed frame against it, separating appellant from the family. Rico called 911. Appellant removed Tors X-box from the living room and left. The X-box had been in an entertainment center in the living room.
Police arrived and saw appellant about four houses from where Lowry lived. Appellant appeared to be carrying something in his hands. Appellant looked in the direction of a police patrol car and fled. Police lost sight of appellant but, a short time later, detained him. Appellant was not carrying anything at that time, and police recovered the X-box about 30 feet from him, in a backyard. Appellant did not have permission to take the X-box. Appellant presented no defense evidence.
CONTENTIONS
Appellant contends (1) there was insufficient evidence to support a conviction for first or second degree robbery and the trial court failed to determine the degree of the robbery and (2) he is entitled to presentence conduct credit.
DISCUSSION
1. Sufficient Evidence Supports Appellants Convictions on Counts 3 and 4, and the Trial Court Did Not Erroneously Fail to Determine the Degree of the Robbery.
a. Sufficient Evidence Supports the Convictions.
(1) Pertinent Facts.
During argument at the conclusion of the trial, appellant conceded there was evidence of a burglary (count 1). As to counts 3 and 4, appellant argued there was insufficient evidence that appellant used force with assaultive intent.
(2) Analysis.
Appellant claims there was insufficient evidence of robbery because there was insufficient evidence that he gained possession of the X-box from Lowrys person or immediate presence. We disagree.
"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.) Appellant asserts he "did not gain possession of the Xbox from either Diane Lowrys person or from her immediate possession." As People v. Hayes (1990) 52 Cal.3d 577, observed, "The generally accepted definition of immediate presence, . . . is that `"[a] thing is in the [immediate] presence of a person, in respect to robbery, which is so within his reach, inspection, observation or control, that he could, if not overcome by violence or prevented by fear, retain his possession of it." [Citations.] Thus, the Court of Appeal stated in People v. Bauer (1966) 241 Cal.App.2d 632, 642, that immediate presence `"must mean at least an area within which the victim could reasonably be expected to exercise some physical control over [her] property.". . . Under this definition, property may be found to be in the victims immediate presence `even though it is located in another room of the house, or in another building on [the] premises. [Citations.]" (Id. at pp. 626-627.)
In the present case, the X-box had been in the entertainment center in the living room of Lowrys home. Appellant stole it from the living room and a short distance from Lowry, who was in the hallway that connected to the living room. At the time of the theft, the X-box was so within Lowrys reach, inspection, observation or control that she could have, if not overcome by violence or prevented by fear, retained possession of it. We conclude there was sufficient evidence that appellant took the X-box from Lowrys "immediate presence" for purposes of robbery. (People v. Ochoa, supra, 6 Cal.4th at p. 1206; Pen. Code, § 211.)
b. The Trial Court Did Not Erroneously Fail to Determine the Degree of the Robbery.
(1) Pertinent Facts.
The original information and the amended information alleged in count 3, in statutory language, that on or about August 10, 2004, appellant committed "second degree robbery, in violation of Penal Code section 211." (Some capitalization omitted.) The amended information added count 4, which alleged, in statutory language, that on or about August 10, 2004, the crime of "1st degree residential robbery, in violation of Penal Code section 211, a felony, was committed by [appellant]" (Some capitalization omitted), and the offense "was perpetrated in an inhabited dwelling house, trailer coach and inhabited portion of a building." Lowry was the victim alleged in each of counts 3 and 4 in the amended information.
After the Peoples opening statement, the court noted that each of counts 3 and 4 alleged robbery, count 3 alleged second degree robbery, and count 4 alleged first degree robbery. The court asked if the robberies were the same, and the prosecutor indicated yes. Fairly read, the record reflects the court asked if the second degree robbery was a lesser offense and asked if the prosecutor additionally filed count 4, and the prosecutor replied he did.
At the conclusion of the court trial, the court stated, in pertinent part, "I think the People have proven the elements of the four counts beyond a reasonable doubt." The court sentenced appellant as previously indicated and indicated as to, inter alia, counts 3 and 4, that "time . . . will be stayed pursuant to 654."
(2) Analysis.
Appellant claims the trial court failed to determine the degree of robbery with the result that, under Penal Code section 1192, any robbery conviction should be reduced to second degree robbery. We disagree.
Penal Code section 1192, states, "Upon a plea of guilty, or upon conviction by the court without a jury, of a crime or attempted crime distinguished or divided into degrees, the court must, before passing sentence, determine the degree. Upon the failure of the court to so determine, the degree of the crime or attempted crime of which the defendant is guilty, shall be deemed to be of the lesser degree." Penal Code section 1157 similarly states, "Whenever a defendant is convicted of a crime or attempt to commit a crime which is distinguished into degrees, the jury, or the court if a jury trial is waived, must find the degree of the crime or attempted crime of which he is guilty. Upon the failure of the jury or the court to so determine, the degree of the crime or attempted crime of which the defendant is guilty, shall be deemed to be of the lesser degree."
Count 3 expressly alleged appellant committed "second degree" robbery and count 4 expressly alleged he committed "1st degree residential robbery" and did so "in an inhabited dwelling house, trailer coach and inhabited portion of a building." The court was aware of the distinct degree of robbery alleged in each count. The trial court concluded the People had proven, inter alia, counts 3 and 4, beyond a reasonable doubt. Appellant concedes "the trial court found appellant guilty of both first and second degree robbery . . . ." (Italics added.)
In sum, each of counts 3 and 4 expressly alleged not only robbery but a robbery in a particular degree, and robbery in a particular degree is not a crime "distinguished or divided into degrees" within the meaning of Penal Code section 1192 or "distinguished into degrees" within the meaning of Penal Code section 1157; therefore, those sections are inapplicable. (Cf. Sanchez v. Superior Court (2002) 102 Cal.App.4th 1266, 1269-1273 [Sanchez].)
People v. Balington (1992) 9 Cal.App.4th 587, cited by appellant, does not compel a contrary conclusion since, in that case, the degrees of the crimes at issue were not expressly alleged in the information. (Sanchez, supra, 102 Cal.App.4th at p. 1271.) Moreover, "Balinton is questionable precedent because its strict and formalistic interpretation of sections 1157 and 1192 derived from People v. McDonald [(1984)] 37 Cal.3d 351, has recently been rejected by our Supreme Court." (Id. at p. 1272.)
Second degree robbery is a lesser included offense of first degree residential robbery. (Cf. People v. Ortega (1998) 19 Cal.4th 686, 692; Pen. Code, §§ 211, 212.5.) As to counts 4 and 3, therefore, appellant stands convicted of a greater offense and a lesser included offense, respectively. Appellant cannot properly be convicted of both. (People v. Ortega, supra, 19 Cal.4th at p. 692.) Appellant, in the context of his Penal Code section 1192 claim, has asked this court to reverse his conviction on count 4, or reverse his convictions on counts 3 and 4. However, the real problem is that appellant has suffered impermissible multiple convictions, the remedy for which is reversal of the conviction for the lesser included offense (count 3). (People v. Pearson (1986) 42 Cal.3d 351, 355.) Accordingly, we will reverse the judgment to that extent and direct the trial court to dismiss count 3. (Pen. Code, § 1262.)
2. Appellant is Entitled to Conduct Credit.
The trial court convicted appellant on, inter alia, count 1, which alleged first degree residential burglary with a "person present" (capitalization omitted). Police arrested appellant on August 10, 2004, and he remained in custody until the court sentenced him on February 27, 2006, a total of 567 days. The trial court awarded appellant 567 days of custody credit pursuant to Penal Code section 2900.5, subdivision (a), but did not award Penal Code section 4019 conduct credit. Respondent concedes appellant was entitled to 85 days of such conduct credit, which reflects the 15 percent limitation of Penal Code section 2933.1. (Pen. Code, §§ 667.5, subdivision (c)(21), and 2933.1, subds. (a) and (c).) We accept the concession.
DISPOSITION
The judgment of conviction for second degree robbery (count 3) is reversed with directions to the trial court to dismiss count 3, and the judgment is modified by awarding appellant 85 days of conduct credit pursuant to Penal Code section 4019. In all other respects, the judgment is affirmed. The trial court is directed to forward to the Department of Corrections an amended abstract of judgment.
We concur:
KLEIN, P. J.
ALDRICH, J.