Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. YA070695, James R. Brandlin, Judge.
Al F. Amer for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven E. Mercer and Sonya Roth, Deputy Attorneys General, for Plaintiff and Respondent.
SUZUKAWA, J.
Following a jury trial, appellant Robert Anson Pugh was convicted of second degree robbery (Pen. Code, § 211), petty theft with a prior (§ 666), and possession of a firearm by a convicted felon (§ 12021, subd. (a)(1)). The jury also found that he personally used a firearm in the commission of the robbery. (§ 12022.53, subd. (b).) In a separate court trial, it was found that he had suffered two prior convictions within the meaning of section 1170.12, subdivisions (a) through (d) and section 667, subdivisions (b) through (i) (the “Three Strikes” law), and one prior serious felony conviction within the meaning of section 667, subdivision (a)(1). He was sentenced to 40 years to life in prison. He appeals, contending: (1) there is insufficient evidence to support the robbery conviction; (2) he cannot be convicted of both robbery and petty theft with a prior; (3) the prosecutor committed prejudicial misconduct; and (4) the court erred in denying his motion to strike one of his prior convictions. We conclude that his conviction of petty theft with a prior must be reversed. We otherwise affirm the judgment.
All further statutory references are to the Penal Code.
STATEMENT OF FACTS
Raymond Kim was the manager of a liquor store on El Segundo Boulevard in Los Angeles. On February 6, 2008, at approximately 8:00 p.m., Kim was in the store with another employee, Johnnie Hernandez, when appellant walked in. Appellant was wearing a green jersey with a black plaid top over it and had corn rows in his hair. Kim was standing behind the cashier counter that was shielded by a bulletproof glass barrier. Appellant walked directly to the beer refrigerators located in the rear of the store. He began opening and closing several of the doors to what Kim referred to as the “beer box.” At the seventh door, appellant picked up a 24-ounce can of beer and lowered it past his waist. Kim, who was 10 or 12 feet away, did not see appellant put the beer back and did not hear the container drop. Thus, he believed that appellant placed the can in his pants.
In accordance with the liquor store’s policy, Kim was going to ask appellant if he wanted to replace the beer or pay for it. However, when Kim made eye contact with appellant, appellant became very upset. Appellant started yelling insults and profanities and said, “This is Bay Rob from Compton Crip. This is my hood.” He also yelled at a customer in the store, then came to the counter and yelled at Kim, “Fuck you. What the hell are you gonna do? You ain’t going to do shit. You ain’t even American.” He then repeated, “I’m Bay Rob, Compton Crip.” Kim became frightened, believing that appellant was stating that he was a gang member. Appellant left the store and did not pay for the beer.
Kim left the counter area, and appellant continued to yell at him. Kim stayed in the doorway of the store while appellant went into the parking lot and got into a white Chevrolet Impala. Appellant put the car in reverse, stopped, and drove a few feet forward several times, repeating, “I’m Bay Rob from Compton Crip.” Kim was afraid to approach the car. After driving back and forth about 10 times, appellant parked the car and got out with a black revolver in his hand. Kim was afraid and ducked. Appellant then got back into the car and drove off. Kim wrote down the license plate number and called 911. Kim went back to look at the refrigerator where appellant had been standing and saw that one beer was missing.
Los Angeles County Sheriff’s deputies responded to the store and interviewed Kim, who seemed frightened. Other deputies checked the license plate number Kim had recorded and went to the address of the registered owner of the car, Trena Bates. The Impala was parked outside the apartment building. A perimeter was set up, and utilizing a loudspeaker, the occupants of Bates’s residence were asked to come out with their hands up. Two people emerged from the apartment. One was Bates and the other was appellant, wearing a green jersey with corn rows in his hair. A black plaid jacket was on the floor of the apartment.
Kim and Hernandez were transported by sheriff’s deputies to the apartment and both identified appellant as the person who had taken the beer. Appellant was arrested and then questioned by Detective Paul Lombardo. Initially, appellant denied being at the liquor store, but when he was told that there was a video surveillance tape, he admitted he was there. He stated, however, that he purchased a beer, argued with a customer, and left to go to his father’s house in Compton.
On February 21, 2008, deputies searched appellant’s father’s house and found a black revolver. Kim identified the revolver as the one he saw appellant holding in the parking lot.
Appellant called several witnesses in defense. Bates, appellant’s girlfriend, testified that she allowed appellant to use her car on the day of the robbery. When he returned the car that evening, Bates noted her car had been cleaned. She did not see a gun or a beer can in her car. Appellant’s aunt said she received a call from appellant at 7:48 p.m. on the night of the robbery. She heard an argument taking place, but appellant did not speak to her. His cousin testified that he had been prescribed medications and would become angry and blow things out of proportion when he drank. Appellant’s stepmother told the jury that she kept a black revolver next to her bed in the nightstand. It was there every day until the police took it during the search.
DISCUSSION
I. Sufficiency of the Evidence
Appellant contends there is insufficient evidence to support the robbery conviction. He argues there is no evidence that he took the can of beer. Moreover, he asserts, there is no evidence the taking, if any, was accomplished by means of force or fear. Appellant claims Kim was not afraid, citing the fact that Kim left the secured bulletproof area to follow him into the parking lot and remained there after he saw appellant brandish a gun.
When addressing a contention of insufficient evidence, we review the facts in a light most favorable to the prosecution and presume the existence of every fact that the jury reasonably could have inferred from the evidence. We do not resolve credibility issues or evidentiary conflicts. (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
We find appellant’s contention to be without merit. With respect to the taking, Kim testified that he saw appellant remove a can of beer from the refrigerator. He did not see appellant place the can anywhere or hear it drop to the floor. After appellant left, Kim noticed that a can was missing and did not see the can anywhere else in the store. From this evidence, the jury could reasonably infer that there had been a taking. (People v. Zamudio, supra, 43 Cal.4th at p. 358.) As to the element of force or fear, Kim said that he was afraid when appellant came to the counter yelling insults and profanities. As a result, Kim did not follow store procedures by asking appellant if he wanted to pay for the beer. Kim testified that he did not go into the parking lot when appellant got in the car because he was afraid, and that he ducked when he saw the gun. There was sufficient evidence that Kim was afraid of appellant and accordingly let him leave without paying for the beer. (People v. Gomez (2008) 43 Cal.4th 249, 256-257, citing People v. Cooper (1991) 53 Cal.3d 1158; People v. Flynn (2000) 77 Cal.App.4th 766, 772-773.)
II. The Conviction for Petty Theft With a Prior
Appellant contends, and the People concede, that he cannot be convicted of both petty theft with a prior and robbery. We agree. (People v. Villa (2007) 157 Cal.App.4th 1429, 1433-1435.) We therefore reverse the conviction for petty theft with a prior. Inasmuch as appellant’s sentence for petty theft was stayed, we need not remand for resentencing.
Appellant was sentenced to 25 years to life for count one, the robbery, plus an additional 10 years for the firearm enhancement and five years for the prior serious felony conviction. He was sentenced to 25 years to life on both counts 2 and 3, but those sentences were stayed pursuant to section 654.
III. Prosecutorial Misconduct
Appellant urges that the prosecutor committed prejudicial misconduct during his opening statement and his examination of the victim, Raymond Kim. We examine the alleged improper statements and questions.
The prosecutor began his opening statement as follows: “Good afternoon, Ladies and Gentlemen. [‘]Bay Rob, Compton Crip, and you’re not going to do anything about it.[’] That’s what the defendant, a convicted felon, a convicted thief, said after he hid a beer inside his pants.... [T]he defendant started yelling at a customer and, when he got to the counter, wherever Mr. Kim was, slammed his hand on the counter and said, [‘]I’m Bay Rob, Compton Crip. You’re not going to do anything about it.[’]” Later in his opening statement, the prosecutor stated, “And during the interview, the defendant lied. The defendant first said that he was never at the liquor store. He denied being at that liquor store three times.... Defendant also lied when he said that he bought a beer with cash. Now, all of that’s a lie.” Finally, the prosecutor told the jury, “Now, the prosecution and defense have stipulated and agreed, which means you’re not going to hear any evidence of this, but it’s something that you must accept as true[,] that the defendant has previously been convicted of a felony. We also stipulated and agreed that the defendant has a theft-related conviction and he spent at least one day in a penal institution.” Defense counsel did not object to any of these remarks.
During direct examination of Kim, the prosecutor asked, “And when you say Compton Crip, do you understand that to mean he’s a gang member?” Kim replied that he did. On redirect examination, the following colloquy occurred: “[The prosecutor:] Now, even though you’re behind the counter that’s glass, bulletproof, the fact he’s a gang member... did that cause you to have more bravado, perhaps? [¶] [Kim:] Yes, yes, I consider anyone who tells me that they’re from a gang and they are a gang member, I consider that as a challenge.” The defense did not object to any of these questions.
“To preserve a claim of prosecutorial misconduct for appeal, a criminal defendant must make a timely and specific objection and ask the trial court to admonish the jury to disregard the impropriety. [Citations.] A defendant will be excused from the requirement of making a timely objection and/or a request for admonition if either would have been futile. [Citation.] In addition, the failure to request that the jury be admonished does not forfeit the issue for appeal if an admonition would not have cured the harm caused by the misconduct or the trial court immediately overrules an objection to alleged misconduct such that the defendant has no opportunity to make such a request. [Citation.]” (People v. Cole (2004) 33 Cal.4th 1158, 1201.)
Appellant takes issue with three comments by the prosecutor during his opening statement. He labeled appellant a convicted felon, a thief, and a liar. Appellant asserts that “an objection and request for an admonition would have been futile as the jurors had already been poisoned by the prosecutor’s inappropriate comments.” In support of his claim, he cites a comment from the trial court that the prosecutor’s remarks could have implied that appellant had a propensity to commit another offense. However, the court was referring to the prosecutor’s closing argument, and appellant takes issue with remarks made during opening statement. We are satisfied that any perceived harm that the prosecutor’s mild statements may have caused would have been easily cured by a timely admonition by the trial court. We reach the same conclusion with respect to appellant’s failure to object to the prosecutor’s questions.
In any event, we find no misconduct occurred. “A prosecutor’s misconduct violates the Fourteenth Amendment to the United States Constitution when it ‘infects the trial with such unfairness as to make the conviction a denial of due process.’ [Citations.] In other words, the misconduct must be ‘of sufficient significance to result in the denial of the defendant’s right to a fair trial.’ [Citation.] A prosecutor’s misconduct that does not render a trial fundamentally unfair nevertheless violates California law if it involves ‘the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.’ [Citations.]” (People v. Cole, supra, 33 Cal.4th at p. 1202.)
With regard to the comments in the opening statement, nothing the prosecutor said was improper. As we have noted, he referred to appellant as a convicted felon, thief, and liar. “Prosecutors ‘are allowed a wide range of descriptive comment and the use of epithets which are reasonably warranted by the evidence’ [citation], as long as the comments are not inflammatory and principally aimed at arousing the passion or prejudice of the jury [citation]. Here, the prosecutor’s statements were no more than fair comment on what [he] anticipated the evidence would show.” (People v. Farnam (2002) 28 Cal.4th 107, 168.) As the parties stipulated to appellant’s prior robbery and theft convictions, the prosecutor was well within bounds to claim appellant was a convicted felon and thief. His comment that appellant was a liar was also borne out by the evidence. When he was initially confronted with the robbery allegation, appellant denied that he was at the liquor store. After being informed that the store had surveillance cameras, he admitted that he was present, but claimed that he paid for the beer with cash. “In light of the record, the comments were neither deceptive nor reprehensible. [Citation.] Nor were they so unfair as to deny [appellant] due process. [Citation.]” (Ibid.)
Appellant takes issue with the fact that when the prosecutor told the jury the parties had stipulated that he had a prior felony and theft conviction, the stipulation had not yet been entered. We note the parties informed the court that there would be such a stipulation. As the opening statement is based on what an attorney believes the evidence will establish and the parties, in fact, reached a stipulation, there was no misconduct.
Turning to the questions which allegedly referenced appellant’s gang membership, when read in context, it is clear the prosecutor was attempting to establish that appellant’s words caused the victim to be in fear. The prosecutor did nothing more than use appellant’s own words that he was Bay Rob from the Compton Crips and the liquor store was in his hood and asked the victim whether he believed appellant was a gang member. His very next question was, “And when he was making those statements, were you frightened?” The victim answered, “Yes.” There was no misconduct.
IV. Appellant’s Motion to Strike His Prior Convictions
Appellant contends that the court erred in denying his motion to strike his two 1988 robbery convictions pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). We disagree.
In Romero, the Supreme Court held that a trial court may, on its own motion, strike a prior conviction in furtherance of justice. However, the court’s discretion is limited. (13 Cal.4th at p. 530.) The court may consider factors such as the nature and circumstances of the present offense, the prior convictions, the particulars of the defendant’s background, character, and prospects, and determine whether the defendant falls outside the spirit of the Three Strikes law. (People v. Williams (1998) 17 Cal.4th 148, 161.) A court’s failure to strike a prior conviction is subject to review under the deferential abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 374.)
In addition to the 1988 felony convictions, appellant had 15 misdemeanor convictions from 1995 until 2008. At sentencing, his counsel argued that these were either alcohol-related misdemeanors or Vehicle Code violations and that appellant had not suffered any serious or violent convictions after 1988. The prosecutor argued that the facts of the 1988 case were particularly egregious because one of the victims was knocked unconscious and suffered a broken jaw and a skull fracture. He argued that the misdemeanor convictions were also crimes of violence and that appellant had used a gun in this case.
The court stated, “This is one of those issues that comes down to judicial discretion. Clearly, the court has some discretion under Romero. The court has to determine whether or not the defendant falls outside of the spirit of the Three Strikes law. The court is to consider issues involving prior conviction allegations, defendant’s prior criminal history, the facts of this case; certainly, any factors in mitigation, either through the facts in this case, or other issues raised by the defense. With regards to the defendant’s criminal history, clearly, the offenses that took place in the 1980’s were significant. I’m not putting any weight on whether or not [great bodily injury] occurred in that case or not. Candidly, I think it would be inappropriate for the court to infer that [great bodily injury] did occur when it was stricken. So it wasn’t proved beyond a reasonable doubt. But two robberies were proved. And the assault with a deadly weapon or assault with force likely to cause [great bodily injury] was certainly proven. With regards to the defendant’s criminal history since the 1980’s, it is extensive. It’s not as serious as the offenses in 1988. But it’s certainly extensive. And there are issues involving force or violence or threat to public safety in the 422 and 273.5(a) convictions. If this case involved a petty with a prior, stealing the beer, where there was no use of a firearm and no use of force or fear, it would be an easy call for the court. If the defendant’s prior convictions for robbery had occurred in 1998, or sometime in the 2000’s as opposed to 1988, it would also be an easy call for the court. The question here is whether or not the court should strike those strikes based upon the mitigating factors and the delay of time that’s occurred since 1988.... I think the evidence shows that the defendant intended to steal the beer, and that he intended to intimidate the victim through all means necessary. When yelling at the victim and yelling at the store customers wasn’t enough, he made threats against them.... [I]t’s pretty clear that he didn’t want to be stopped, and that he wanted to intimidate the victim. And I don’t think that’s consistent with necessarily mental illness or being under the influence.... The court does not find that the defendant falls outside of the spirit of the Three Strikes law.”
The trial court did not abuse its discretion in refusing to strike the priors. Even though the prior felony convictions were not recent, appellant had shown no indication that he had reformed since that time. The sheer number of his convictions over a 20-year period and the fact that, in addition to three felony convictions, two of his misdemeanor convictions involved violence or the threat of violence, demonstrate that appellant does not fall outside the spirit of the Three Strikes law. (See People v. Myers (1999) 69 Cal.App.4th 305, 307-310.)
DISPOSITION
The conviction for petty theft with a prior is reversed. The clerk of the superior court is directed to amend the abstract of judgment and to forward a copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: EPSTEIN, P.J., WILLHITE, J.