Opinion
G031336.
11-13-2003
THE PEOPLE, Plaintiff and Respondent, v. JANOS ZSOLT OLAH, Defendant and Appellant.
Arthur B. Martin, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Raquel M. Gonzalez and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Janos Zsolt Olah of second degree robbery and burglary. (Pen. Code, §§ 211/212.5, subd. (c), 459/460, subd. (b); all further statutory references are to the Penal Code.) The court found true an allegation defendant committed the current crimes while on bail or his own recognizance for a previous crime (§ 12022.1.), and sentenced him to a three-year prison term.
Defendant contends the evidence is insufficient to support the robbery conviction, and the court erred by misinstructing the jury on robbery and by failing to give instructions on attempted robbery. He also contends the courts true finding on the enhancement allegation must be reversed because he was on diversion for the previous offense and not bail or his own recognizance, as required by section 12022.1. Of these contentions only the last has merit. We reverse the finding on the section 12022.1 enhancement. Remand for a new sentencing hearing is not required since the court stayed sentence on the enhancement. In all other respects, the judgment is affirmed.
I
FACTS
On April 17, 2002, at approximately 4:00 p.m. defendant entered a Target store in Santa Ana. Rommel Agatep, a plainclothes loss prevention officer for the store, saw defendant open a box of steak knives and put the knives into a black fanny pack affixed to his waist. Defendant selected other items to put in a shopping cart. Agatep noticed that defendant seemed to be scanning the area and looking around.
Defendant pushed his shopping cart into the music and movie department, where he selected a DVD movie. Agatep watched as defendant moved to the shoe department. Once there, he removed the plastic wrapping from the DVD and placed it in his front waistband. Defendant proceeded to the sports department, selected a multi-tool utility knife, removed the hard plastic packaging, and placed the knife into his pocket. Defendant moved to the cashier area. He selected and paid for a bag of mini-Snickers candy bars and walked out of the store.
Agatep radioed a uniformed security guard, Simon Ruiz, and described defendant as a possible shoplifter. Agatep and Ruiz followed defendant out of the store. They both identified themselves as security personnel and asked defendant to accompany them back inside the store. Ruiz touched defendants arm. Defendant initially ignored Agatep and Ruiz, but then quickly walked or ran away from them. Ruiz gave pursuit and grabbed defendant in a "bear hug." Agatep grabbed one of defendants arms. A struggle ensued and defendant dragged Agatep and Ruiz a few feet where all three fell into a concrete planter. Defendant took several swings at Agatep and Ruiz, but failed to land a blow. He kicked Agatep in the shin three times. Several other employees arrived and Ruiz was able to handcuff defendant. Four employees carried defendant, who would not cooperate, to the asset protection office. One employee summoned the police. Agatep and Ruiz struggled with defendant for approximately 15 minutes.
Santa Ana Police Officer Dinh Nguyen responded to the store. Nguyen found a razor blade with black electrical tape on one end in defendants shirt pocket. He found several knives and pens in defendants fanny pack, and a knife in defendants pants pocket. Defendant did not possess a wallet, credit cards, or money.
Defendant testified in his own defense. He admitted the theft, but claimed he did not hear either Agatep or Ruiz identify themselves as Target employees. He struggled with the men because he did not know who they were. He continued to struggle because he was in pain, tired, and embarrassed. He did not remember using the razor to open any packages, but "could have." He denied bringing the razor with him and claimed he found it on a shelf in the Target store. Defendant claimed he lost his money, credit card, cell phone, and watch during the struggle.
Defendant admitted a prior theft. Approximately seven months before the Target incident, defendant said he attempted to remove a DVD player from the Tustin Costco store by secreting the player in a box made for a saute pan and paying for the less expensive pan. He denied using any force against Costco loss prevention employees and claimed he did not have a weapon.
The prosecution called two rebuttal witnesses. Scott Lapsley, the Regional Loss Prevention Supervisor for Costco, testified defendant repackaged a DVD player in a box for a saute pan using a razor blade to open the boxes. He also put a DVD movie in the box. Defendant put the DVDs remote control, manual, and wiring in a black fanny pack. Lapsley identified himself as an employee and escorted defendant to a back office. Defendant did not cooperate. He shoved Lapsley in the chest, and other employees had to force defendant to the floor to subdue and handcuff him. Ron Hanstein, General Manager of the Tustin Costco, observed the interaction between Lapsley and defendant. He testified, "The defendant was very uncooperative and very crude. And with his language, saying four-letter words. And was getting real close to [Lapsley], just right up against him and wasnt cooperating at all."
II
DISCUSSION
Robbery conviction
Defendant challenges the robbery conviction on three grounds: (1) insufficiency of the evidence, (2) jury misinstruction, and (3) failure to sua sponte instruct on attempted robbery.
Defendants challenge to the sufficiency of the evidence and the basis for his claim the court had a sua sponte duty to instruct on attempted robbery stem from the belief that he had to "successfully" remove property from the security guards possession to complete the crime. Not so.
Robbery is defined as "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.) "Though the crime of robbery continues `as long as the loot is being carried away to a place of temporary safety, `for purposes of establishing guilt, the asportation requirement is initially satisfied by evidence of slight movement. [Citation.]" People v. Navarette (2003) 30 Cal.4th 458, 502.) The force or fear employed to effectuate the removal of the possessors property need not occur simultaneously with the asportation. "It is sufficient to support the conviction that appellant used force to prevent [the possessor] from retaking the property and to facilitate his escape." (People v. Estes (1983) 147 Cal.App.3d 23, 28.) "There is no requirement that defendant escape with the loot or that he reduce to the property to his sole possession by chasing the victims away. A robbery has been committed if the stolen item `is so within [the victims] reach, inspection, observation, or control, that he could if not overcome by violence or prevented by fear retain his possession of it. . . . [Citation.] "`"Asportation . . . may be fulfilled by wrongfully . . . removing property from the control of the owner, . . . even though the property may be retained by the thief but a moment." [Citations.]" (People v. Pham (1993) 15 Cal.App.4th 61, 66.)
Defendant contends, "Phams misreading of [Estes] collapses the asportation element of robbery into the force element." We disagree.
In Estes, the defendant removed property from a department store. A security guard for the store saw defendant remove the property and leave the store without paying for it. The security guard followed the defendant out of the store, identified himself, confronted the defendant about the property and asked the defendant to accompany him back inside the store. The defendant refused and when the security guard attempted to detain him, the defendant displayed a knife and threatened to kill the security guard. The security guard returned to the store, but eventually detained the defendant outside the store with the help of another employee.
On appeal, the defendant argued, in pertinent part, that the store merchandize had not been taken from the immediate presence of the security guard. (People v. Estes, supra, 147 Cal.App.3d at p. 27.) The appellate court rejected this argument: "The evidence establishes that appellant forcibly resisted the security guards efforts to retake the property and used that force to remove the items from the guards immediate presence. By preventing the guard from regaining control over the merchandise, defendant is held to have taken the property as if the guard had actual possession of the goods in the first instance. [Citation]." (Ibid.) This is because a robbery is a continuing crime and is not complete until the robber reaches a place of safety. (Id. at pp. 27-28.) Thus, force or fear used to resist the retaking of property is deemed sufficient. (Id. at p. 27.) Further, the Estes court observed, "Defendants guilt is not to be weighed at each step of the robbery as it unfolds. The events constituting the crime of robbery, although they may extend over large distances and take some time to complete, are linked by a single-mindedness of purpose. [Citation.]" (Id. at p. 28.)
In Pham, the defendant entered the victims car without permission. The victim returned to his car as the defendant exited it carrying a black bag. The defendant fled and the victim gave chase. The victim grabbed the defendants shirt. The defendant dropped the black bag and starting hitting the victim in the head. The victims companion grabbed the defendant, who continued to struggle, and the victim and his companion subdued the defendant until police arrived. Police discovered several items belonging to the victim and his companion inside the defendants black bag.
On appeal, the defendant argued he failed to take or carry away the property. (People v. Pham, supra, 15 Cal.App.4th at p. 64.) The appellate court rejected this analysis: "Under the facts of this case, we conclude the asportation or carrying away of the property occurred when defendant removed the victims property from [the victims] car and began to flee. The asportation continued while defendant struggled with the victims and prevented them from immediately recovering their goods. Contrary to defendants contention, robbery does not require that the loot be carried away after the use of force or fear." (Id. at p. 65.)
Here, as in Pham, the asportation of the property occurred when defendant removed the property from its proper place and carried it to another area. The asportation continued outside the store when defendant used force in a vain attempt to keep possession of the property. The elements are not collapsed together, but are part of a continuing action. The crime of robbery was completed when defendant used force against store agents to retain the property he had carried away from the store. There was no requirement he be successfully in his effort to carry away the property. Substantial evidence supports the jurys verdict.
Our analysis makes short work of defendants related claims that the court misinstructed the jury on the crime of robbery and prejudicially erred by failing to sua sponte instruct on attempted robbery. We address the later contention first.
The Attorney General puts forth a waiver argument, correctly noting that trial counsel specifically declined instructions on attempted robbery, concluding the error, if any, was invited. We need not determine this issue. A court may not give instructions on lesser included offenses when there is no evidence the offense was less than that charged. (People v. Pham, supra, 15 Cal.App.4th at p. 67.) Here, defendant committed a completed robbery using force or fear, or he committed assault and battery. There was no ineffectual effort to commit a robbery, thus no factual basis to give instructions on the lesser included crime of attempt to commit robbery.
The two special instructions defendant takes issue with were based on language in Estes. Special instruction number two stated, "If a person prevents a security guard or agent from regaining control over property taken, that person is held to have taken the property as if the security guard or agent had actual possession of the property in the first instance." This is a correct statement of the law and there is no evidence the jury misunderstood it. As the Estes court observed, "Defendant further claims that the robbery verdict cannot stand since his assaultive behavior was not contemporaneous with the taking of the merchandise from the store . . . Appellants theory is contrary to the law. The crime of robbery is a continuing offense that begins from the time of the original taking until the robber reaches a place of relative safety. It is sufficient to support the conviction that appellant used force to prevent the guard from retaking the property and to facilitate his escape." (People v. Estes, supra, 147 Cal.App.3d at p. 28.)
Special instruction number four stated, "A robbery occurs when a person uses force or fear in resisting attempts to regain the property or in attempting to remove the property from the persons immediate presence regardless of the means by which the perpetrator acquired the property. Mere theft becomes robbery if the perpetrator, having gained possession of the property without the use of force or fear, resorts to force or fear while carrying away the property." Defendant contends this instruction "removes the necessary element of asportation from the jurys consideration." We disagree.
Asportation of the loot is required and defendants actions met this requirement. It just so happens that during the asportation defendant used force to prevent the recapture of stolen goods. The instruction correctly states the law and there was no error. (People v. Estes, supra, 147 Cal.App.3d at pp. 227-228.)
Section 12022.1Section 12022.1 provides for "an additional two years in state prison . . . served consecutive to any other term imposed by the court," under certain circumstances. (§ 12022.1, subd. (b).) The enhancement applies to "[a]ny person arrested for a secondary offense which was alleged to have been committed while that person was released from custody on a primary offense." (Ibid.) "A `[p]rimary offense means a felony offense for which a person has been released from custody on bail or on his or her own recognizance prior to the judgment becoming final, including the disposition of any appeal, or for which release on bail or his or her own recognizance has been revoked. In cases where the court has granted a stay of execution of a county jail commitment or state prison commitment, `primary offense also means a felony offense for which a person is out of custody during the period of time between the pronouncement of judgment and the time the person actually surrenders into custody or is otherwise returned to custody. (§ 12022.1, subd. (a)(1).) A "`[s]econdary offense means a felony offense alleged to have been committed while the person is released from custody for a primary offense." (§ 12022.1, subd. (a)(2).)
At the time of his arrest, defendant had two pending cases involving drugs: 02CF0767 and 02CF0854. In 02CF0767, defendant was charged with possession of amphetamine and a smoking device on January 23, 2002. In 02CF0854, defendant was charged with possession of methamphetamine and a smoking device on April 1, 2002. On April 8, defendant pleaded guilty to all charges and the court granted diversion in both cases. The minute orders reflect the court exonerated defendants bail and had him sign an agreement for release on his own recognizance. Eleven days later, defendant was arrested for the instant offense.
Relying on People v. Ormiston (2003) 105 Cal.App.4th 676, defendant contends section 12022.1 does not apply to him since he was on diversion and not his own recognizance or bail at the time of the instant offense. We agree. In Ormiston, the defendant was convicted of numerous drug-related charges and the court found true two enhancements for committing offense while released on bail or own recognizance. Defendant had been previously charged with unrelated crimes and granted diversion, pursuant to section 1000, released on his own recognizance and bail exonerated. The appellate court analyzed section 12022.1 and the drug diversion statutes. It observed, "The legal effect of diversion is . . . not the release of the defendant, but instead the suspension of criminal proceedings while the diversion program continues." (People v. Ormiston, supra, 105 Cal.App.4th at p. 690.) The court further noted that the diversion statutes serve a different purpose and are not intended to address issues encompassed within the statutes governing release on ones own recognizance. (Id. at pp. 690-691.) In fact, diversion shares more characteristics with statues governing probation than release pending trial. (Id. at p. 691.)
Ultimately, the court concluded, "Diversion . . . does not constitute a special custodial status or other form of release of the defendant with a promise to appear at further proceedings, but rather a guilty plea and resolution of the case in the nature of `"`a specialized form of probation . . ." for a particular class of defendants. [Citations.] We therefore conclude that for purposes of section 12022.1, an order of diversion under the deferred judgment statutes is neither a `release on bail or OR [own recognizance] nor the functional equivalent of it, and the enhancement findings are not supported by the evidence." (People v. Ormiston, supra, 105 Cal.App.4th at p. 692, fn. omitted.)
The Attorney General disagrees with Ormiston and "urges a different conclusion which accords with the California Supreme Courts decision in In re Jovan B. (1993) 6 Cal.4th 801, 815." However, the Ormiston court addressed In re Jovan B. and found a distinction, one with which we agree.
In Jovan, a juvenile defendant committed a secondary offense while on house arrest for a primary offense. The Ormiston court observed, "We acknowledge that section 12022.1 enhancements may be imposed for release from custody which is the `functional equivalent of O.R. release in an adult proceeding, such as the pretrial `"`house arrest" release of a juvenile or the `general release of a minor pending trial, despite the statutory use of the adult terms `conviction, sentencing, and prison. [Citations.] General release of a juvenile or conditional home supervision creates a `special custodial status within the purview of section 12022.1. [Citations.] Diversion, however, does not constitute a special custodial status or other form of release of the defendant with a promise to appear at further proceedings, but rather a guilty plea and resolution of the case in the nature of "`"a specialized form of probation . . ."" for a particular class of defendants. [Citations.]" (People v. Ormiston, supra, 105 Cal.App.4th at pp. 691-692, italics added.)
The Attorney Generals suggestion to deviate from Ormiston is not convincing. Nor does it matter that defendant was placed on diversion and signed an agreement for release on his own recognizance. The difference between diversion and release on pending charges is this: diversion, if successful, results in no conviction. It is a temporary state of grace that may become permanent if certain conditions are met. When charges are pending, there is no temporary state of grace. The proceedings will either result in a guilty plea or trial, but in no case is dismissal of charges one of the options. Simply put, charges are not pending in the ordinary sense. This fundamental distinction removes the diversion statutes from the purview of section 12022.1.
III
DISPOSITION
The courts true finding on the section 12022.1 enhancement is reversed. The trial court is directed to prepare an amended abstract of judgment reflecting the modified judgment (§ 1260) and to forward a certified copy to the Department of Corrections. As modified, the judgment is affirmed.
WE CONCUR, SILLS, P.J., RYLAARSDAM, J. --------------- Notes: Defendant was also charge with failing to attach a front license plate to his car, an infraction.