Opinion
H046668
05-01-2020
THE PEOPLE, Plaintiff and Respondent, v. SULTAN YEVLOEV, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1894297)
A loss prevention officer at Target observed defendant Sultan Yevloev remove two cell phones from a display, cover them with a shirt he had grabbed off a rack, and attempt to exit the store without paying. The officer and another security guard confronted and attempted to detain Yevloev, but Yevloev resisted. He struck both the Target employees and was allowed to leave, but in the struggle, one of the officers pulled the cell phones and shirt out of Yevloev's grip. When he was arrested, Yevloev was found in possession of methamphetamine and a glass pipe. He was convicted by a jury of robbery and drug charges and sentenced to a total term of six years in prison.
On appeal, Yevloev argues the trial court erred: (1) by failing to instruct the jury on the lesser included offense of attempted robbery; and (2) by admitting evidence relating to a prior uncharged robbery under Evidence Code section 1101, subdivision (b). He also contends there was insufficient evidence presented to support his conviction for possession of methamphetamine. (Health & Saf. Code, § 11377, subd. (a).)
We find no merit to any of Yevloev's arguments and will affirm the judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Trial testimony and evidence
On June 26, 2018, Gabriel Harris, a loss prevention team leader, was on duty at a Target store in San Jose, California. Harris does not wear a uniform, so he can remain undercover while on the sales floor, but he carries a badge with the Target emblem which he displays to identify himself as a security guard. At around 3:00 p.m. that day, he was monitoring the store's surveillance cameras when he observed an individual, later identified as Yevloev, take a shirt off a rack seemingly at random. The randomness of Yevloev's selection was a "red flag" to Harris. Harris watched as Yevloev walked to the cell phone aisle of the electronics department and, using either a magnet or a cutting tool, removed two cell phones from the mechanisms which secured them in place. Yevloev wrapped the phones in the shirt he had previously taken and left the aisle.
Harris instructed a uniformed security guard, Joseph Mustapha, to take over watching Yevloev on the cameras, while he went outside the store to wait for Yevloev to exit. Harris stayed in contact with Mustapha over his walkie-talkie in case Yevloev went to a register or self-checkout to pay for the merchandise. Yevloev bypassed the security towers, still carrying the phones wrapped in the shirt, and crossed the threshold of the exit, at which point Harris displayed his badge and said " 'Target security. Can I talk to you?' "
Yevloev began yelling and screaming. Harris asked him to calm down and go back inside the store, telling him they needed to discuss the items he was holding. Yevloev continued to yell and Harris put his hands on him to steer him back into the store. However, as Yevloev continued to scream, Harris felt that he needed to place him into custody quickly for the safety of other customers exiting the store. By that time, Mustapha had arrived on the scene and had also grabbed Yevloev. Harris told him they needed to put Yevloev in handcuffs. Harris and Mustapha pushed Yevloev away from the exit and toward the wall.
At this point, Yevloev began physically resisting, swinging his arms around. Harris testified that he was struck once on the arm, and he saw Mustapha was struck in the chest. Yevloev still had the phones and shirt in his possession. Once Yevloev hit him and Mustapha, Harris called out to " 'Disengage,' " as required by store policy, and he and Mustapha let go of Yevloev. Harris said that he was able to "strip the items out of [Yevloev's] hand" and recover them.
Mustapha testified that Yevloev was resisting the entire time but was still holding onto the merchandise as he swung his right arm at Mustapha and Harris. Mustapha did not see Yevloev strike Harris but said that Yevloev hit him in the chest with a "closed fist." After Harris told him to disengage, Mustapha let Yevloev go. Mustapha saw the merchandise on the floor after Yevloev left.
Portions of the surveillance video were played for the jury as Harris and Mustapha testified about what was displayed in those videos. The wall against which Harris and Mustapha pushed Yevloev was not within the frame of the camera, however, so there was no video of what took place in that location. The videos were admitted into evidence.
Harris called San Jose police and, as instructed by the 911 dispatcher, followed Yevloev at a safe distance to report his location. After police detained Yevloev, Harris was brought to the scene to identify him.
Police searched Yevloev and found a glass pipe used for smoking methamphetamine in a duffel bag he was carrying. In Yevloev's wallet, police found a folded piece of paper containing 0.26 grams of methamphetamine.
The prosecution also introduced testimony regarding an uncharged robbery committed by Yevloev on November 17, 2016. Giovanni Silva Pastrana testified that, in November 2016, he was the manager of a shoe store in San Jose. Around 6:30 or 7:00 p.m. on November 17, 2016, Pastrana was alone in the store when Yevloev came in, carrying two backpacks. Pastrana asked Yevloev to leave his bags near the front of the store or outside, and Yevloev complied. Yevloev "had a chain [around his neck] and he looked very homeless with dirty clothes" so Pastrana was concerned that he would steal something.
Before trial, the court granted the prosecution's in limine motion to introduce this evidence pursuant to Evidence Code section 1101, subdivision (b) for the purpose of proving Yevloev's intent to commit the robberies at Target.
Pastrana testified the chain was not jewelry, nor was it "like a bicycle chain." Rather, it was a "big, heavy chain" made of metal links.
Pastrana asked if he could help Yevloev but Yevloev said he already knew what size he needed. Pastrana walked away but continued to watch him using a mirror in the store. Pastrana observed Yevloev grab a pair of red athletic shoes off the rack and shove them into the front of his pants. Pastrana confronted him, but Yevloev denied taking any shoes and began to walk toward the doors. Pastrana moved in front of the door, demanded that Yevloev return the shoes, and threatened to call the police. Yevloev told Pastrana that he needed to move and said either " 'I'm going to hit you' " or " 'I'm going to hurt you.' " As Yevloev said that, he grabbed the heavy link chain around his neck. Pastrana did not want to get hurt so he moved and Yevloev ran out of the store. Pastrana called police.
Police arrested Yevloev approximately two hours later. Among his belongings, police found "an industrial-type chain" and a pair of red athletic shoes. Yevloev admitted stealing the shoes from the shoe store that evening.
B. Charges, verdict, and sentencing
Yevloev was charged by information with two counts of second degree robbery (Pen. Code, § 212.5, subd. (c); counts 1 & 2), one count of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a); count 3), and one count of possession of drug paraphernalia (Health & Saf. Code, § 11364; count 4). The information further alleged that Yevloev had a prior serious or violent felony conviction and a prior strike conviction. (§§ 667, subds. (a), (b)-(i), 1170.12.)
Unspecified statutory references are to the Penal Code.
After deliberating, the jury found Yevloev guilty on all four counts. In a bifurcated proceeding, the trial court found true both prior conviction allegations.
At sentencing, the trial court denied Yevloev's Romero motion and sentenced him to an aggregate term of six years in prison. Yevloev's sentence consisted of the middle term of three years on count 1 (doubled to six years due to the strike prior), a concurrent middle term of three years (also doubled due to the strike prior) on count 2, along with concurrent 30-day jail terms on counts 3 and 4, which were deemed served. The court exercised its discretion and struck the additional punishment for the prior serious or violent felony conviction enhancement.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
Yevloev was awarded 254 days of credit, consisting of 221 days of custody credit plus 33 days of credit under section 2933.1. He was ordered to pay a restitution fine of $300 (§ 1202.4) with an additional $300 restitution fine imposed but suspended (§ 1202.45). The trial court further imposed a $10 fine, with the penalty assessment waived (§ 1202.5), $160 in court security fees (§ 1465.8), $120 in criminal conviction assessments (Gov. Code, § 70373), and a $129.75 criminal justice fee payable to the City of San Jose (Gov. Code, §§ 29550, 29550.1, 29550.2). The trial court waived the laboratory analysis fee (Health & Saf. Code, § 11372.5), the drug program fee (Health & Saf. Code, § 11372.7) and the associated penalty assessments. At defense counsel's request, the trial court stayed all fines until Yevloev's release from prison.
Yevloev timely appealed.
II. DISCUSSION
A. Failure to instruct on attempted robbery as lesser-included offense
Yevloev argues that the trial court erred by failing to instruct the jury on the lesser included offense of attempted robbery. In his view, because he left the store without the property, and Mustapha testified that he could not remember precisely when Yevloev lost possession of it, there was substantial evidence that he used force only to avoid apprehension, not to retain the property. We disagree.
" ' "It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case." [Citation.] That obligation has been held to include giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged.' " (People v. Breverman (1998) 19 Cal.4th 142, 154 (Breverman).) "[A] trial court errs if it fails to instruct, sua sponte, on all theories of a lesser included offense which find substantial support in the evidence. On the other hand, the court is not obliged to instruct on theories that have no such evidentiary support." (Id. at p. 162.)
An appellate court "appl[ies] the independent or de novo standard of review to the failure by the trial court to instruct on an assertedly lesser included offense." (People v. Cole (2004) 33 Cal.4th 1158, 1218.) The crime of attempt occurs when there is a specific intent to commit a crime and a direct but ineffectual act done towards its commission. (§ 21a.) Attempted robbery is considered a lesser included offense of robbery. (People v. Calpito (1970) 9 Cal.App.3d 212, 220.)
"Robbery is the . . . taking of . . . property . . . accomplished by means of force or fear." (§ 211.) Thus, "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.) Moreover, "the requisite force or fear need not occur at the time of the initial taking. The use of force or fear to escape or otherwise retain even temporary possession of the property constitutes robbery." (People v. Flynn (2000) 77 Cal.App.4th 766, 772.)
For example, in People v. Estes (1983) 147 Cal.App.3d 23, the defendant entered a department store, put on a new vest and coat, and left without paying. A security guard followed and confronted him. The defendant refused to return the merchandise and brandished a knife at the guard. The guard left but came back with the manager, and the pair were able to get the defendant back into the store. In upholding the robbery conviction, the court explained, "It is sufficient to support the conviction that appellant used force to prevent the guard from retaking the property and to facilitate his escape." (Id. at p. 28.)
Similarly, in People v. Pham (1993) 15 Cal.App.4th 61, the owner of a vehicle saw defendant removing property from his car, and the owner and his friend confronted and chased after the defendant, who was carrying a bag with the owner's property. When they caught him, the defendant dropped the bag and struggled to escape their grip, but eventually the owner and his friend subdued the defendant. (Id. at p. 64.) In upholding the robbery conviction, the court explained that robbery does not require that the robber successfully escape with the loot. (Id. at p. 65.) Citing People v. Estes, supra, 147 Cal.App.3d 23, the court further explained that it was enough that the defendant forcibly prevented the victims from recovering their property even for a short time. (Pham, supra, at p. 68.)
In this case, Harris testified that Yevloev ignored his request to go back into the store to talk about the stolen merchandise and then used physical force—i.e., flailing his arms and striking both himself and Mustapha—to resist their efforts to take him into custody. Mustapha corroborated Harris, testifying that Yevloev used physical force to resist Harris and himself. Harris also testified that he had to strip the property out of Yevloev's arms. Mustapha could not remember when Yevloev no longer held the cell phones and shirt, but he did not see it on the floor before Yevloev hit him in the chest. There was no testimony or other evidence indicating that Yevloev voluntarily gave up possession of the cell phones and shirt.
Simply put, there is no evidence, let alone substantial evidence, to support Yevloev's assertion that his use of force against Harris and Mustapha was only to escape their custody, not to keep the property. Without substantial evidence that Yevloev took a direct but ineffectual act toward the commission of a robbery, no instruction on attempted robbery was required. (People v. Medina (2007) 41 Cal.4th 685, 694; see Breverman, supra, 19 Cal.4th at p. 162 ["On the other hand, the court is not obliged to instruct on theories that have no such evidentiary support."].)
Accordingly, the trial court did not err in failing to instruct the jury on attempted robbery as a lesser included offense.
B. Admission of prior uncharged offense
Yevloev next argues that the trial court erred in admitting evidence relating to the 2016 shoe store robbery because that evidence was cumulative, because defense counsel conceded that he was guilty of petty theft, and the evidence was more prejudicial than probative. We conclude there was no error.
"With certain exceptions not relevant here, Evidence Code section 1101, subdivision (a), provides that 'evidence of a person's character'—whether in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct—'is inadmissible when offered to prove [the person's] conduct on a specified occasion.' This prohibition, however, does not preclude 'the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact . . . other than [the person's] disposition to commit such an act,' including 'motive, opportunity, intent, preparation, [or] plan.' (Evid. Code, § 1101, subd. (b).)" (People v. Valdez (2012) 55 Cal.4th 82, 129.)
When considering whether to admit evidence under Evidence Code section 1101, subdivision (b), the similarity of the offenses is central to the trial court's "evaluation of whether the evidence tended to prove motive, intent, a common design, defendant's identity as the perpetrator, or the victim's lack of consent, under Evidence Code section 1101." (People v. Lewis (2009) 46 Cal.4th 1255, 1285.)
Courts must additionally determine that the probative value of the proffered evidence is not substantially outweighed by the probability that its admission would create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. (Evid. Code, § 352.) Factors to be considered by the court in evaluating the evidence under Evidence Code section 352 include the inflammatory nature of the uncharged conduct, the possibility of confusion of issues, remoteness in time of the uncharged offenses and the amount of time involved in introducing and refuting the evidence of the uncharged offenses. (People v. Branch (2001) 91 Cal.App.4th 274, 282.)
A trial court is accorded broad discretion concerning the admission and exclusion of evidence under Evidence Code sections 1101 and 352. (People v. Heard (2003) 31 Cal.4th 946, 973.) A trial court's decision to admit prior conviction evidence pursuant to Evidence Code section 1101 is reviewed for abuse of discretion. (People v. Celis (2006) 141 Cal.App.4th 466, 476.)
Here, the trial court did not abuse its discretion by admitting the prior robbery. "By pleading not guilty, defendant placed all the elements of the [charged offense] in dispute at trial." (People v. Lindberg (2008) 45 Cal.4th 1, 23.) The two crimes were similar. In the prior crime, Yevloev took shoes from a shelf in a store and concealed them on his person before attempting to leave without paying. When confronted by a store employee, Yevloev mumbled something threatening and reached toward a heavy chain hanging around his neck, frightening the employee into letting him leave with the shoes. The evidence was relevant to show Yevloev's intent to permanently deprive the victims of their property in this case.
Defense counsel's concession that Yevloev was guilty of petty theft occurred during final argument, well after the trial court's decision to admit the evidence. In reviewing the trial court's ruling, we must consider the facts that were before the trial court at the time of its ruling. (People v. Hernandez (1999) 71 Cal.App.4th 417, 425.) --------
Finally, we reject Yevloev's argument that the evidence was unduly prejudicial and should have been excluded under Evidence Code section 352. The probative value outweighed any potential prejudice. The presentation of evidence did not involve an undue consumption of time, as only two witnesses testified. Moreover, the evidence of the prior crime was certainly no more inflammatory than the instant crimes, especially as Yevloev's threatening behavior caused the store employee to back down before the encounter turned violent. Finally, the prior crime had been committed within 18 months of the instant offenses. As such, the trial court did not abuse its discretion under Evidence Code section 352.
C. Evidence supporting drug possession conviction
At the close of evidence, defense counsel moved for an acquittal on the charge of possession of methamphetamine on the ground that neither the arresting officer nor the criminalist testified as to what constitutes a "usable amount" of methamphetamine. The trial court denied the motion, stating that "the circumstantial evidence that [Yevloev] kept it in his wallet . . . and just the weight itself" was sufficient for the jury to "infer that he . . . was saving it to use." Yevloev renews his argument that there was insufficient evidence that he possessed a "usable amount" of methamphetamine.
Section 1118.1 provides, in pertinent part: "In a case tried before a jury, the court on motion of the defendant or on its own motion, at the close of the evidence on either side and before the case is submitted to the jury for decision, shall order the entry of a judgment of acquittal of one or more of the offenses charged in the accusatory pleading if the evidence then before the court is insufficient to sustain a conviction of such offense or offenses on appeal." "Under this statute a trial court must apply the same test utilized by an appellate court in reviewing a judgment of conviction, i.e., whether there is substantial evidence of the existence of each element of the offense charged. [Citations.] [¶] In applying the substantial evidence rule to a motion under . . . section 1118.1, we must, where the trial court has denied the motion, assume in favor of its order the existence of every fact from which the jury could have reasonably deduced from the evidence whether the offense charged was committed and if it was perpetrated by the person or persons accused of the offense. [Citations.] Accordingly, we may not set aside the trial court's denial of the motion on the ground of the insufficiency of the evidence unless it clearly appears that upon no hypothesis whatsoever is there sufficient substantial evidence to support the conclusion reached by the court below." (People v. Wong (1973) 35 Cal.App.3d 812, 827-828.)
"The essential elements of possession of a controlled substance are 'dominion and control of the substance in a quantity usable for consumption or sale, with knowledge of its presence and of its restricted dangerous drug character. Each of these elements may be established circumstantially.' " (People v. Palaschak (1995) 9 Cal.4th 1236, 1242 (Palaschak).)
In order to establish that there was a usable amount of a controlled substance, "[t]he chemical analysis of the material possessed need only establish the existence of a controlled substance." (People v. Rubacalba (1993) 6 Cal.4th 62, 65.) The "usable quantity" doctrine prohibits convictions only when the substance possessed cannot be used, such as where it consists of a blackened residue or a useless trace. (Id. at p. 67; People v. Karmelich (1979) 92 Cal.App.3d 452, 456.) " 'It is not scientific measurement and detection which is the ultimate test of the known possession of a narcotic, but rather the awareness of the defendant of the presence of the narcotic.' " (People v. Rubacalba, supra, at p. 67.) " 'The presence of the narcotic must be reflected in such form as reasonably imputes knowledge to the defendant.' " (Ibid.) A usable amount of a controlled substance is a quantity sufficient to be consumed in any manner customarily employed by users of the substance, as opposed to debris or useless traces. (People v. Piper (1971) 19 Cal.App.3d 248, 250.)
The arresting officer in this case testified that the glass pipe containing a burnt residue found among Yevloev's belongings is used to smoke narcotics, "predominantly meth[amphetamine]." He described the process as follows: "[T]he meth[amphetamine] is placed in the bulbous end of the pipe and there's a hole at the top. They will light the bottom of the glass to heat up the narcotics, which produces a vapor . . . and then at . . . the stem of the pipe, they will inhale it."
Although no witness directly stated that the methamphetamine in Yevloev's wallet was a usable amount, the arresting officer testified the substance was wrapped inside a "paper package . . . which is common to see for packaging of narcotics, such as methamphetamine." The jury was instructed that "[a] usable amount is a quantity that is enough to be used by someone as a controlled substance," and "[u]seless traces or debris are not usable amounts." Although generally it would be preferable to have specific testimony on the issue of usable amount, we are satisfied that the jurors in this case were capable of telling whether the 0.26 grams of methamphetamine was a usable amount without direct testimony on this point, particularly in light of how Yevloev was carrying the methamphetamine, i.e., in a carefully folded paper inside his wallet. The distinction between an actual amount of narcotics that can be consumed, and a residual or trace amount that is useless, is something that can be understood by the average person.
Yevloev cites People v. Riley (2010) 185 Cal.App.4th 754 and suggests it stands for the proposition that direct testimony is required to establish a "usable amount." It does not. In Riley, after the defense moved for an acquittal under section 1118.1 on a charge of possession of marijuana, the trial court permitted the prosecution to reopen its case in chief to present evidence that 0.47 grams of marijuana constituted a "usable amount." (Riley, supra, at p. 757.) On appeal, the Court of Appeal examined whether the trial court abused its discretion in allowing the prosecution to reopen. (Ibid.) The Riley court did not directly address whether the prosecution needed to reopen its case to present evidence on what is a "usable amount" of a particular drug; instead, the court appears to have simply accepted the trial court's decision that further testimony was required. Although the court cited Palaschak for the requirement that the prosecution prove that the defendant possessed a usable amount of a controlled substance (Riley, supra, at p. 763), it failed to acknowledge Palaschak's instruction that circumstantial evidence is sufficient to establish each of the "essential elements of possession of a controlled substance" including the " 'usable amount' " element. (Palaschak, supra, 9 Cal.4th at p. 1242.) "[I]t is axiomatic that cases are not authority for propositions not considered." (People v. Alvarez (2002) 27 Cal.4th 1161, 1176.)
Thus, we conclude that there was sufficient evidence from which the jury could infer the methamphetamine in Yevloev's wallet was more than a useless trace which could be placed in a glass pipe and heated to produce a vapor, which could then be inhaled. The presence of "actual narcotics, even though in minute quantities" (as opposed to a residue) is sufficient to show possession of a usable amount. (People v. Karmelich, supra, 92 Cal.App.3d at p. 456.)
Accordingly, the trial court properly denied Yevloev's motion for acquittal as there was sufficient evidence that he possessed a usable quantity of methamphetamine.
III. DISPOSITION
The judgment is affirmed.
/s/_________
Premo, Acting P.J. WE CONCUR: /s/_________
Elia, J. /s/_________
Grover, J.