Opinion
G057003
04-10-2020
THE PEOPLE, Plaintiff and Respondent, v. NELLIE K. SAENZ, Defendant and Appellant.
Tanya Dellaca, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Susan Sullivan Pithey, David E. Madeo and Daniel C. Chang, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16WF1256) OPINION Appeal from a judgment of the Superior Court of Orange County, Gary S. Paer, Judge. Affirmed. Tanya Dellaca, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Susan Sullivan Pithey, David E. Madeo and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury convicted defendant Nellie Saenz of committing robbery. Saenz contends there was insufficient evidence to convict because the force she used against a loss prevention officer who prevented her escape was unrelated to her theft of the merchandise. We do not find Saenz's argument persuasive and therefore affirm the judgment.
I
FACTS AND PROCEDURAL HISTORY
A. Theft of the Merchandise
In a department store one afternoon in 2016, Saenz collected an armful of clothing and then left the store without paying. Two of the store's plain clothes loss prevention officers, A.H. and A.C., had seen Saenz acting suspiciously and pursued her when she left the store with the merchandise.
Saenz collected the merchandise with her daughter who is not a party to this appeal. --------
Once outside, Saenz ran toward a vehicle idling curbside about 50 feet away. A.H. intercepted Saenz just after she opened the vehicle's front passenger door and tossed some of the merchandise into the driver's seat. A.H. grabbed Saenz by her arm and prevented her from getting into the vehicle by pushing her to the ground. Some merchandise "stayed with [Saenz] when she went to the ground" and some fell onto the surrounding terrain.
With Saenz on the ground, A.H. kneeled down to handcuff Saenz when two male individuals exited the vehicle. To address the threat posed by the males, A.H. transferred custody of Saenz to A.C., who had arrived to assist. At the same time, police officers who earlier had been notified about a possible "grab and run" theft, arrived on the scene and detained the males.
At this point, A.H. rejoined A.C. to help him handcuff Saenz. A struggle ensued when Saenz, who had been lying on her stomach, flipped her body over and grabbed the handcuffs from A.C. Saenz also kicked A.H. and tried to bite his thumb when it had been in or near Saenz's mouth. Eventually, A.H. and A.C. handcuffed Saenz. B. Robbery Conviction
The Orange County District Attorney's Office charged Saenz with a single count of second degree robbery. (Pen. Code, §§ 211, 212.5, subd. (c).) After the prosecutor's evidence was presented at trial, Saenz moved for an acquittal, arguing there was insufficient evidence to support a robbery conviction. The trial court denied the motion.
The trial court instructed the jury it could not convict Saenz unless it found a "union or joint operation" connecting Saenz's actions and "wrongful intent." The court also instructed the jury on the elements needed for a robbery conviction, including the timing and intent of Saenz's use of force. In their closing arguments, the prosecutor and defense counsel offered their opposing views on whether "[Saenz] used force to keep the [merchandise]."
As noted above, the jury convicted Saenz of robbery. The trial court, after finding true a prior strike allegation, sentenced Saenz to a 10-year prison term.
II
DISCUSSION
Saenz challenges the sufficiency of the evidence to support the jury's robbery conviction because "there was no substantial evidence that the force [she] used when she resisted being handcuffed[] was done with the intent to retain or escape with any property." We disagree. A. Standard of Review
Saenz, as the appellant, has the burden of demonstrating reversible error (People v. Alvarez (1996) 49 Cal.App.4th 679, 694) under a substantial evidence standard of review. (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) "To assess the evidence's sufficiency, we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime . . . beyond a reasonable doubt. The record must disclose substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence." (People v. Zamudio (2008) 43 Cal.4th 327, 357 (Zamudio).)
"A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support"' the jury's verdict. [¶] The same standard governs in cases where the prosecution relies primarily on circumstantial evidence. [Citation.] We 'must accept logical inferences that the jury might have drawn from the circumstantial evidence. [Citation.]' . . . Where the circumstances reasonably justify the trier of fact's findings, a reviewing court's conclusion the circumstances might also reasonably be reconciled with a contrary finding does not warrant the judgment's reversal." (Zamudio, supra, 43 Cal.4th at pp. 357-358.) B. Substantial Evidence Supports Saenz's Robbery Conviction
A theft becomes robbery when the thief uses force or fear to retain or escape with stolen property. (People v. Gomez (2008) 43 Cal.4th 249, 260.) "To commit [robbery], 'the defendant must form the [specific] intent to steal before or during rather than after the application of force to the victim, and . . . must apply the force for the purpose of accomplishing the taking.'" (Zamudio, supra, 43 Cal.4th at pp. 356, 360-361; accord, People v. Visciotti (1992) 2 Cal.4th 1, 67 [jury was adequately instructed robbery is a specific intent crime].)
"[T]he commission of a robbery is ongoing '"until the robber has won his way to a place of temporary safety.'" [Citation.] A robber has not reached a place of temporary safety while an immediate and active pursuit to recover the property is in progress." (People v. Debose (2014) 59 Cal.4th 177, 205.) Because larceny is a continuing offense, a thief who uses force or fear against a store security guard attempting to reclaim the stolen property commits robbery. (People v. Estes (1983) 147 Cal.App.3d 23, 27-28 (Estes); People v. Robins (2020) 44 Cal.App.5th 413, 415, 418 [use of force or fear to keep possession of the victim's property is sometimes referred to as an "Estes robbery"].) But a thief only commits theft if she abandons the victim's property before using force or fear. (People v. Pham (1993) 15 Cal.App.4th 61, 68.)
We conclude substantial evidence supports the jury's verdict because the jury reasonably could infer Saenz had not abandoned the stolen merchandise after tossing some of it into the awaiting car. The jury also reasonably could infer Saenz fought to free herself from the officers so she could escape with the stolen clothing, some of which she was still carrying when she fell to the ground. This evidence alone supports the jury's finding Saenz used force with the specific intent to facilitate her escape and theft of the merchandise. Because substantial evidence supports this "hypothesis," we must reject Saenz' argument for reversal under the substantial evidence standard of review. (Zamudio, supra, 43 Cal.4th at pp. 357.)
Saenz contends "[her] actions simply constituted a defensive response to being physically thrown to the ground and having her hands forced behind her back to be put in handcuffs." Saenz also argues she "could not be liable for robbery because she was only in commission of a theft when [A.H.] took her to the ground from behind, and she subsequently resisted his attempts to handcuff her." In other words, any force Saenz used to resist apprehension occurred after she abandoned the stolen property and therefore was unrelated to her earlier theft.
In support, Saenz relies on evidence she did not look back at any point when she ran to the vehicle and never directly faced A.H. when he intercepted her. Saenz points out A.H. had been wearing "plain clothes" during the incident and did not tell her he was a loss prevention officer or give her any verbal commands. Saenz also emphasizes she had nothing in her hands while struggling with the officers and at no time reached for any merchandise.
Saenz's argument rests on inferences the jury rejected. The jury reasonably could reject the notion Saenz abandoned the property because she held onto some of it when apprehended. As explained above, the jury therefore could infer Saenz used force to resist her apprehension so she could escape with the stolen loot. Saenz argues there was no evidence she knew A.H. was a loss prevention officer because he did not identify himself to her. The jury, however, reasonably could infer she knew a store employee pursued her because she ran to the getaway car parked near the store's entrance. Thus, substantial evidence supports the jury's conclusion Saenz had "'appl[ied] the force for the purpose of accomplishing the taking.'" (Zamudio, supra, 43 Cal.4th at pp. 356, 357.)
We reject as unpersuasive Saenz's attempt to distinguish this case from Estes, supra, 147 Cal.App.3d 23 and People v. Miller (2004) 115 Cal.App.4th 216 (Miller). In Estes, the appellate court affirmed a robbery conviction where a defendant swung a knife at a department store security guard while attempting to escape with the store's merchandise. (Estes, supra, 147 Cal.App.3d at p. 26.)
The Estes court rejected two defense arguments relevant here: 1) insufficient evidence supported the robbery conviction because the use of force or fear during asportation had not satisfied the "immediate presence requirement" of the robbery statute and, 2) the evidence only supported separate convictions for petty theft and a subsequent assault. (Estes, supra, 147 Cal.App.3d at pp. 27-28.) The Estes court explained that "[b]y preventing the guard from regaining control over the merchandise, defendant . . . [took] the property [from the guard's immediate presence]" and the evidence sufficiently supported the robbery conviction because the defendant had used the knife "to prevent the guard from retaking the property and to facilitate his escape." (Id. at pp. 27, 28.)
Also unhelpful to Saenz's position is Miller, supra, 115 Cal.App.4th 216. There, the defendant had used force to escape only after the victim had returned to the location where he had misplaced his property, i.e., after the taking already had occurred in his absence. Relying upon the "long-standing principles announced in Estes" (id. at p. 224), the Miller court held a "victim's presence [only] after [a] taking is [already] in progress is sufficient to establish the immediate presence element of a robbery charge" (id. at p. 222) if the victim "could reasonably 'have expected to take effective steps to retain control over his property.'" (Id. at p. 224.)
None of the legal reasoning expressed in Estes and Miller compel the reversal Saenz seeks here. While Saenz correctly notes the facts of both cases materially differ from this case—primarily because a "verbal exchange" preceded the force or fear used in those cases and was absent here (Miller, supra, 115 Cal.App.4th at pp. 219-220; Estes, supra, 147 Cal.App.3d at p. 26)—the contrast is meaningless because substantial evidence supported the jury's conclusion there was a union of act and intent when Saenz used force in an attempt to escape with the stolen merchandise. Consequently, no basis exists to overturn the judgment.
III
DISPOSITION
The judgment is affirmed.
ARONSON, J. WE CONCUR: MOORE, ACTING P. J. THOMPSON, J.