Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County. Hayden Zacky, Judge. Los Angeles County Super. Ct. No. MA035778
Gloria C. Cohen, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Stephanie C. Brenan and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
RUBIN, ACTING P. J.
Steve Sfera appeals his convictions of robbery, burglary, and petty theft with a prior conviction. We reverse the petty theft conviction but conclude that substantial evidence supports the robbery and burglary convictions and affirm as to those.
FACTS AND PROCEDURAL HISTORY
At around 2:00 p.m. on July 27, 2006, Steve Sfera left The Home Depot hardware store in Palmdale without paying for two saw blades and a hammer. The saw blades were not inside a protective casing of any kind, leaving their cutting edges exposed. Dwayne Johnson, an undercover loss prevention agent, spotted Sfera peeling off the Stock Keeping Unit (SKU) product identification stickers from those items, then tucking them inside the waistband of his pants and covering them up with his shirt. After Sfera left the store, Johnson identified himself and asked for the merchandise. Sfera ran and Johnson caught up to him, wrapped his arms around Sfera, and, after a few seconds, was able to bring Sfera down. Sfera struggled, kicking his legs and flailing his arms as Johnson tried to handcuff him. Johnson was six feet two inches tall and weighed 260 pounds, and Sfera was apparently a good deal smaller.
In his opening brief, Sfera points us to a fingerprint card prepared a year after his trial, that listed him at 5 feet 10 inches tall and 180 pounds, and contends the jury would have noticed the size differential between him and Johnson.
Assistant store manager Kenneth McCue followed the action and, as Johnson tried to handcuff Sfera, warned Johnson that Sfera was trying to reach a shiny object in Sfera’s waistband. Johnson knew that Sfera still had the uncovered saw blades and the hammer and was afraid Sfera was reaching for them. With McCue’s assistance, Johnson was able to finish handcuffing Sfera. The price of the three items Sfera took was $43. He had only $34 and no credit cards on his person when he was arrested.
Sfera was charged with robbery, burglary, and petty theft with a prior conviction. A jury convicted Sfera of all three counts. The court found certain prior conviction allegations true. The court imposed a combined prison term of 15 years as follows: five years for the robbery, doubled under the “Three Strikes” law (Pen. Code, §§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d)), plus five years based on a prior serious felony conviction (Pen. Code, § 667, subd. (a)(1)); and two years on each of the other two counts, which were doubled under the Three Strikes law, but stayed pursuant to Penal Code section 654.
Sfera contends: (1) his robbery conviction must be reversed because there was insufficient evidence he used force or fear; (2) his burglary conviction must be reversed because there was insufficient evidence he entered the store with the intent to steal; and (3) if the robbery conviction stands, the petty theft conviction must be reversed.
STANDARD OF REVIEW
When a conviction is challenged on the ground of insufficient evidence, we review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. (People v. Flynn (2000) 77 Cal.App.4th 766, 771 (Flynn).) To be substantial, the evidence must be reasonable, credible, and of solid value. (People v. Jones (1990) 51 Cal.3d 294, 314.) We cannot reweigh the evidence or evaluate the credibility of witnesses. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
DISCUSSION
1. There Was Sufficient Evidence of Force or Fear for the Robbery Conviction
Robbery is the taking of property by means of either force or fear. (Pen. Code, § 211.) It is essentially a theft committed through force or fear (Miller v. Superior Court (2004) 115 Cal.App.4th 216, 221), and a taking that occurs without either of those is nothing more than the lesser included offense of theft. (People v. Bordelon (2008) 162 Cal.App.4th 1311, 1319 (Bordelon).) The force or fear need not occur as part of the taking of the property and may be part of an effort “to escape or otherwise retain even temporary possession of the property . . . .” (Flynn, supra, 77 Cal.App.4th at p. 772.) Therefore, regardless of how the thief originally acquired the property, a robbery occurs when the thief uses force or fear to resist the owner’s attempts to regain the property, however temporarily. (People v. Pham (1993) 15 Cal.App.4th 61, 65-68.)
All further section references are to the Penal Code.
It is undisputed that any use of force or fear by Sfera occurred only during his brief scuffle with Johnson, after Sfera had peaceably taken the hardware and exited the store. Sfera contends that his ineffectual and incomplete efforts to resist Johnson did not constitute means of force or fear. According to Sfera, the fact that Johnson easily overcame him shows that he did not use force, especially given their size differential. The same is true, he contends, as to the saw blades or hammer he was seen reaching for in his waistband. Sfera claims that because he never actually reached those items, he lacked the present ability to use them, which was necessary to constitute an assault for purposes of inducing fear. Similarly, because he never actually used or displayed those items as weapons, his act of reaching for them did not constitute a show of force.
We disagree. Although Sfera correctly cites People v. Wolcott (1983) 34 Cal.3d 92, 98-99, for the proposition that a thumbnail description of robbery is assault plus larceny, he has done so incompletely. The Wolcott court went on to state that the thumbnail description was imprecise and inexact. (Ibid.) Instead, according to the court, unlike the crime of assault, “[n]either an attempt to inflict violent injury, nor the present ability to do so, is required for the crime of robbery.” (Id. at p. 99.) Other courts have held that neither weapon use nor the making of overt threats is essential to induce fear for purposes of the robbery statute. The element of fear is subjective, requiring proof that the victim was in fact afraid, and its existence may be inferred by proof of conduct, words, or circumstances reasonably calculated to produce fear. (Bordelon, supra, 162 Cal.App.4th at pp. 1319-1320.) Evidence that the victim feared for his own safety is sufficient. (People v. Hays (1983) 147 Cal.App.3d 534, 541.)
As to “force” under section 211 the term is not synonymous with a physical, corporeal assault. “Force” has no technical meaning peculiar to the law and is presumed to be within the understanding of the jurors. It is a relative concept that may turn on such considerations as the size of both victim and perpetrator. (People v. Mungia (1991) 234 Cal.App.3d 1703, 1708.) The force required to constitute robbery need not be extreme. (People v. Griffin (2004) 33 Cal.4th 1015, 1025-1026 [the degree of force used is immaterial and a light tap on victim’s shoulder will suffice]; see People v. Garcia (1996) 45 Cal.App.4th 1242, 1246, overruled on another ground by People v. Mosby (2004) 33 Cal.4th 353, 365, fn. 2.)
With these principles in mind, we conclude there was sufficient evidence of both force and fear. Despite Johnson’s size advantage, the much smaller Sfera resisted with enough force to delay his takedown by several seconds. Even then he continued to thrash his arms and legs in an effort to resist Johnson. In fact, it took help from assistant store manager McCue for Johnson to complete his arrest. This evidence was enough to show the application of force for purposes of establishing a robbery.
Fear was also present. When Johnson began handcuffing him, Sfera reached for the sharp objects in his waistband. Johnson knew those items were there and testified he was afraid Sfera was trying to reach one of them. This evidence was enough to show that Sfera employed fear while resisting Johnson.
Accordingly, we reject Sfera’s reliance on decisions such as People v. Pham, supra, 15 Cal.App.4th 61, where the use of force was more extreme or the threat of force was more overt.
2. There Was Sufficient Evidence a Burglary Occurred
In order to prove that Sfera committed a burglary, the prosecution had to show he intended to commit larceny when he entered the store. (§ 459.) This fact question for the jury (People v. Kwok (1998) 63 Cal.App.4th 1236, 1245) is rarely shown by direct proof and is usually inferred from the circumstances of the case. (People v. Moody (1976) 59 Cal.App.3d 357, 363.) Sfera contends there was no evidence he entered The Home Depot store with the intent to steal, requiring reversal of the burglary conviction. We once more disagree with Sfera.
While waiting for the police to arrive, Sfera told assistant store manager McCue that he needed the tools for a job he was doing as a favor for an elderly woman. He also admitted that he had “fucked up.” However, defense witness Elmer Sisk, who sometimes worked for Sfera, testified that he and his brother followed Sfera to the store in their own car. Sfera told them he was going to buy boxes of stucco coloring and never mentioned the need to obtain saw blades or a drywall hammer. From this, the jury could conclude that Sfera not only concocted the story about needing to help out an old lady, but lied to Sisk about his true reasons for entering the store. Combined with the fact that Sfera entered the store with insufficient cash to buy the items he took, a reasonable trier of fact could conclude that he intended to steal at the time of his entry.
3. The Petty Theft Conviction Must Be Reversed
Sfera contends and respondent concedes that affirming the robbery conviction means the petty theft with a prior conviction must be reversed because it is a necessarily included offense of robbery. (People v. Villa (2007) 157 Cal.App.4th 1429, 1434-1435.) We agree and will do so.
Sfera also contends that his presentence custody credits must be recalculated if we reverse the robbery conviction. Because we affirm that conviction, recalculation is not required.
DISPOSITION
For the reasons set forth above, the judgment is reversed as to only the conviction for petty theft with a prior conviction under section 666. Upon remand, the clerk of the superior court is directed to amend the abstract of judgment accordingly and forward a copy of the corrected abstract to the Department of Corrections. In all other respects, the
judgment is affirmed.
WE CONCUR: FLIER, J.,O'NEILL, J.
Judge of the Ventura County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.