Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCE295697, John M. Thompson, Judge.
NARES, Acting P. J.
A San Diego County jury convicted Timothy Joseph Whiteman of robbery (count 1: Pen. Code, § 211). Whiteman waived jury trial on the charge of petty theft with a prior (count 2: §§ 484, subd. (a), 666), and thereafter the court found him guilty of this charge.
All further statutory references are to the Penal Code.
Whiteman admitted that he had a prior prison offense (§§ 667.5, subd. (b), 668), one strike prior (§§ 667, subds. (b)-(i), 668, 1170.12), and one serious felony prior (§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)).
For the robbery conviction, the trial court sentenced Whiteman to prison for a total term of nine years. The court sentenced Whiteman to prison for four years for the petty theft with a prior conviction, but stayed the sentence pursuant to section 654.
Whiteman appeals, contending (1) there is insufficient evidence to support a conviction for robbery; (2) the lower court erred in failing to instruct sua sponte on attempted robbery as a lesser included offense of robbery; (3) the court's instructional error was prejudicial; and (4) the petty theft with a prior conviction must be reversed because it is a lesser included offense to his robbery conviction. The People agree that the petty theft with a prior conviction must be reversed. We affirm Whiteman's robbery conviction and reverse his conviction for petty theft with a prior.
FACTUAL BACKGROUND
On November 3, 2009, Chris Lopez was working as a loss protection manager at Sears in El Cajon. At about 12:30 p.m. Lopez noticed Whiteman select a lock and a pair of gloves. Lopez was dressed in plain clothes, and followed Whiteman around the store. Lopez saw Whiteman attempt to conceal the items between his hands and the straps on his backpack. Lopez also saw Whiteman adjust his hands, after which he saw packaging material associated with the gloves drop to the ground. Whiteman then exited the store without paying for the gloves or the lock. Lopez radioed other members of the Sears loss prevention team for help detaining Whiteman.
Approximately one foot outside Sears exterior doors, Lopez approached Whiteman from the side, identified himself as store security, and asked Whiteman to stop. Whiteman did not stop and instead threatened Lopez twice by saying, "Touch me and I'll fucking stick you." Lopez perceived that Whiteman was agitated and aggressive and that he had an unidentified object in his hand. Lopez testified that he felt threatened because he feared Whiteman might stab him. As Whiteman stepped from the curb into the street, Lopez again identified himself as store security and positioned himself in front of Whiteman.
Whiteman then tried to push through Lopez. As a precaution, Lopez grabbed Whiteman's hands. Whiteman continued to try and push through Lopez, which caused Lopez to fall. After a struggle that lasted approximately 30 seconds, Lopez and another loss prevention officer handcuffed Whiteman and brought him back into the store.
Inside the Sears detention room, Whiteman expressed remorse for stealing the items. At 12:40 p.m., El Cajon Police Officer Benjamin Hogan responded to a radio call of a shoplifting suspect in custody of Sears's loss prevention office. After Officer Hogan read Whiteman his Miranda rights, Whiteman admitted that he had taken items without paying for them and that he had threatened to stab Lopez to get away. Officer Hogan then took Whiteman into custody.
Miranda v. Arizona (1966) 384 U.S. 436.
DISCUSSION
I. SUFFICIENCY OF THE EVIDENCE TO SUPPORT ROBBERY CONVICTION
Whiteman claims there is insufficient evidence to support his conviction for robbery because "in the present case there is no substantial evidence appellant's taking was accomplished by means of force or fear." Stated differently, Whiteman contends that his robbery conviction was in error because "[his] use of force or fear did not accomplish a taking." Specifically, he contends his "actions did not enable him to retain the stolen property" and therefore "there is no substantial evidence appellant's taking was accomplished by means of force or fear." This contention is unavailing.
A. Standard of Review
In addressing a challenge to the sufficiency of the evidence supporting a conviction, the reviewing court "must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence─that is, evidence which is reasonable, credible and of solid value─such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578.) We defer to the trial court's factual findings if they are supported by substantial evidence. (People v. Fairbank (1997) 16 Cal.4th 1223, 1254.)
B. Applicable Legal Principles
"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." (§ 211, italics added.) "In order to support a robbery conviction, the taking, either the gaining possession or the carrying away, must be accomplished by force or fear." (People v. Cooper (1991) 53 Cal.3d 1158, 1165, fn. 8.) One who takes property without using force or fear, but thereafter uses force or fear only to resist an attempt to regain property, nonetheless commits robbery. (People v. Estes (1983) 147 Cal.App.3d 23, 28 (Estes) ["Whether defendant used force to gain original possession of the property or to resist attempts to retake the stolen property, force was applied against the guard in furtherance of the robbery and can properly be used to sustain the conviction."]; accord, People v. Gomez (2008) 43 Cal.4th 249, 261 ["The force or fear element of robbery can be satisfied during either the caption or the asporation phase of the taking."].)
"There is no need to prove both force and fear" to sustain a robbery conviction. (People v. Hays (1983) 147 Cal.App.3d 534, 541.) With respect to the force element, "[t]he degree of force is immaterial" for the crime of robbery. (People v. Jones (1992) 2 Cal.App.4th 867, 871.) With respect to the fear element, "[e]vidence of the victim's fear for [his] own safety or that of [his] company's is sufficient to sustain a conviction." Hays, supra, 147 Cal.App.3d at p. 541.)
"The robber's escape with the loot is not necessary to commit [robbery]." (People v. Pham (1993) 15 Cal.App.4th 61, 65 (Pham).) A robbery is committed if the goods are retained "even for a short time" after the defendant uses force or fear. (Id. at pp. 67-68 ["a robbery is committed when the defendant has taken possession of the victim's property and forcibly prevents the victim from regaining the goods, however temporarily, " (italics added)]; accord, People v. Pruitt (1969) 269 Cal.App.2d 501, 506 [retaining property " 'but a moment' " sufficient for robbery].)
C. Analysis
Whiteman admits "[t]he prosecution established [he] made threats and used force to attempt to dissuade Mr. Lopez from detaining him." Whiteman also admits that he "tried to keep Mr. Lopez at bay with threats and force, " and that, as a result, "Mr. Lopez was [in] fear." Whiteman further asserts that "the entire encounter took a matter of seconds" and that he was "almost immediately detained." Whiteman contends that he cannot be guilty of robbery because his "use of force or fear did not accomplish a taking."
As the undisputed evidence shows, and Whiteman admits, there was a physical struggle between Whiteman and Sears loss protection officers. The evidence showed that this struggle lasted approximately 30 seconds, during which time Lopez felt a strike to the chest and fell to the ground. In addition, a second loss protection officer, Scott Stephen, had to assist Lopez to physically subdue Whiteman. Accordingly, there is sufficient evidence that Whiteman used force or fear to prevent Lopez from immediately recovering the stolen property.
Whiteman attempts to distinguish Pham, supra, 15 Cal.App.4th 61 and Estes, supra, 147 Cal.App.3d 23, on the grounds that, in Pham "recovery of the stolen property [was] significantly delayed by the use of force or fear, " and in Estes the defendant retained his stolen property "for a significant amount of time" after using force or fear. Conversely, Whiteman states, "[his] actions did not ward off his captors or delay his immediate detention." This statement is contrary to the evidence in light of Whiteman's admission that he "walked into Mr. Lopez, after which he was almost immediately detained" (italics added) and that "the entire encounter took a matter of seconds." Uncontested witness testimony shows that the physical struggle lasted approximately 30 seconds and that Whiteman was not fully subdued until a second loss protection officer arrived to assist Lopez. Because any delay is sufficient to support a robbery conviction, the amount of the delay in the present case, is legally irrelevant. Therefore, Whiteman's attempt to distinguish his conduct from that of the defendants in Pham, supra, 15 Cal.App.4th 61, and Estes, supra, 147 Cal.App.3d 23, is unavailing.
Moreover, Whiteman's verbal threat to stab Lopez is alone sufficient to sustain the robbery conviction. (Pham, supra, 15 Cal.App.4th at p. 66 ["[Robbery] was committed the moment [the thief] threatened the guard."]; accord, People v. Brown (1989) 212 Cal.App.3d 1409, 1418 ["The threat to inflict injury is, alone, sufficient to satisfy the statutory requirement [of force or fear.]", disapproved on another ground in People v. Hayes (1990) 52 Cal.3d 577, 628, fn. 10.) Whiteman admits he "tried to keep Mr. Lopez at bay with threats." Therefore, in addition to his use of force, Whiteman's use of fear is sufficient to sustain his robbery conviction and is supported by substantial evidence.
II. INSTRUCTIONAL ERROR CLAIM
Whiteman contends his conviction for robbery must be reversed because the lower court erred in failing to instruct sua sponte attempted robbery as a lesser included offense. He further contends that the court's error was prejudicial. These contentions are unavailing.
A. Background
The trial court instructed the jury on both robbery and, in the alternative, petty theft. Whiteman's counsel acknowledged at trial that the court's instructions were acceptable, and did not request an instruction on attempted robbery.
B. Applicable Legal Principles
"A trial court must instruct on a lesser included offense when the evidence raises a question as to whether all of the elements of the charged offense are present and there is evidence that would justify a conviction of the lesser offense." (People v. Wilson (1992) 3 Cal.4th 926, 941-942.) Where a lesser included offense is supported by substantial evidence, the court must instruct the jury on the lesser offense sue sponte. (People v. Breverman (1998) 19 Cal.4th 142, 161.) Such an instruction must be given even if the defense fails to request it or affirmatively objects to the instruction as a matter of trial tactics. (People v. Barton (1995) 12 Cal.4th 186, 195, 196.) Conversely, "[t]he trial court has no obligation to instruct on theories not supported, or only weakly supported by the evidence." (People v. Reeves (2001) 91 Cal.App.4th 14, 51.)
Attempted robbery is a lesser included offense of robbery. (Pham, supra, 15 Cal.App.4th at p. 67.) However, "if one who has stolen property... uses force or fear in removing, or attempting to remove, the property from the owner's immediate presence, ... the crime of robbery has been committed." (People v. Anderson (1966) 64 Cal.2d 633, 638.) "[I]n the situation where property is taken without the use of force or the threat thereof and thereafter such force or threat is employed to prevent the owner from recovering the property or to facilitate an escape, the offense committed [is robbery and] simply could not be an attempted robbery." (Pham, supra, 15 Cal.App.4th at p. 68.)
C. Analysis
The jury was properly instructed on the crime of robbery and determined that Whiteman's use of force or fear was sufficient to constitute robbery. Whiteman admits that he stole the merchandise and that he "tried to keep Mr. Lopez at bay with threats and force." Officer Hogan testified that, directly after the incident, Whiteman stated his purpose in making the threats was to avoid being detained. Because Whiteman used force or fear to facilitate his escape with stolen property, his conduct "simply could not be an attempted robbery." (Pham, supra, 15 Cal.App.4th at p. 68.) "The fact that a jury can exercise a naked power to convict the defendant of an included offense not supported by the evidence does not entitle the defendant to an instruction thereon." (Ibid.) Accordingly, the trial court did not err by not instructing the jury on the lesser offense of attempted robbery.
III. APPELLANT'S PETTY THEFT WITH A PRIOR CONVICTION MUST BE REVERSED BECAUSE IT IS A LESSER INCLUDED OFFENSE TO ROBBERY
Whiteman contends, and the People concede, that if there is substantial evidence to support Whiteman's robbery conviction, then his petty theft conviction must be overturned because it is based on the same incident. We conclude that because petty theft is a lesser included offense of robbery, we must reverse the petty theft conviction.
Section 654 provides, in relevant part:
"An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision."
"[T]heft is a lesser included offense within robbery, and defendant could not be convicted of both petty theft and robbery. [Citations.] A defendant cannot be convicted both of the greater offense and the lesser included offense. [Citations.] Where there is sufficient evidence to sustain conviction of the greater offense, the conviction of the lesser offense must be reversed." (Estes, supra, 147 Cal.App.3d at p. 28.)
DISPOSITION
The conviction for petty theft with a prior is reversed. In all other respects, the judgment is affirmed.
WE CONCUR: McINTYRE, J.AARON, J.