(San Francisco County Super. Ct. No. 198701). Hon. Jerome T. Benson.
The opinion of the court was delivered by: Ruvolo, P.J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
It was reported to be the largest jewelry heist in San Francisco history. Intruders entered a Union Square jewelry store while it was closed for the weekend, at a time when the store‟s safe room was being remodeled, and the store‟s security camera had exhausted its videotape and was not recording. A vacant restaurant space was located on the other side of the safe room‟s interior wall. The restaurant‟s exterior door had been rigged, by persons unknown, in a way that enabled the intruders to gain entry even though it was ostensibly locked. From the vacant restaurant, the intruders gained access to the jewelry store by cutting a hole through the common interior wall, in a location formerly occupied by a door. The hole led directly into the jewelry store‟s safe room. Ordinarily, the safes would have been located flush against the common wall, preventing the robbers from entering. But, on this particular weekend the safes had been moved temporarily into the middle of the room due to the remodeling.
Once inside the jewelry store, the intruders briefly set off a motion detector alarm in the safe room, but when the alarm company called the store owner, he took no action. The intruders were able to prevent further alarms by covering the motion detector with a cardboard box, using a ladder left in the safe room to reach it. They then concealed themselves until some employees arrived to open the premises on Monday. The intruders forced the employees to open the store‟s safes, and made off with almost $4.5 million worth of jewelry. Shortly after the robbery, the store‟s owner applied for and received a $4 million dollar insurance payment for the loss.
At appellant‟s robbery trial, the prosecution‟s theory of the case was that the robbery was an "inside job," set up by the store‟s owner in order to collect on the insurance. Based on this theory, appellant contends that if indeed the store owner conspired with the robbers and gave them his permission to rob the jewelry store, the elements of the crime of robbery have not been established.
In a case of first impression in this state, we reject appellant‟s claim, holding that even if the owner of a retail store consents to the taking of the store‟s property by third persons, those persons still commit a robbery if they take store property, by means of force or fear, from the custody of store employees who are unaware of the consent given to the robbers by their employer.
In the unpublished portions of our opinion, we reject appellant‟s challenges to the sufficiency of the evidence of his involvement in the robbery, and to his convictions for robbing the store‟s bookkeeper and sales assistant. We also reject his claims of prosecutorial misconduct and sentencing error. Finally, we explain that we cannot address appellant‟s claims of ineffective assistance of counsel on direct appeal, as the trial record does not permit us to determine whether or not appellant‟s trial counsel had tactical reasons for the decisions he made.
II. FACTS AND PROCEDURAL BACKGROUND
Lang Antiques, which we will refer to as the jewelry store or the store, occupies a portion of the ground floor of a building in the Union Square area of downtown San Francisco. As of April 2003, the remaining portion of the building‟s ground floor (the restaurant space) was vacant. It had formerly housed a restaurant named Rumpus, which had gone out of business. The main entrance to the restaurant space was on Tillman Alley, with another entrance on Campton Place.
The jewelry store had a showroom in the front; a back room (the safe room) separated from the showroom by a curtain; a bathroom adjoining the safe room; and offices upstairs. The safe room held three safes in which the store‟s inventory of jewelry was secured when the store was closed. The back wall of the safe room, against which the safes normally stood, was an interior wall of the overall building, and separated the safe room from a room in the vacant restaurant premises.
The jewelry store‟s security system included door alarms, panic buttons, and a motion detector in the safe room, all monitored by a private alarm company, plus a video surveillance camera in the safe room. In addition, the front entrance was protected by roll-down metal grating.
The jewelry store was open Monday through Saturday. On Saturday, April 5, 2003, at 5:30 p.m., salesperson Richard Frey closed the jewelry store and turned on the alarm system. Before leaving, he put a new tape into the video surveillance system. The tapes could only record for 24 hours, however, so even with a new tape inserted at closing time on Saturday, the surveillance system would stop recording at about 5:30 p.m. on Sunday.
At the time Frey closed the store on April 5, 2003, the safe room was in the process of being remodeled under the supervision of the store‟s owner, Mark Zimmelman, and its manager, Suzanne Martinez. Because of the remodeling, the room was in some disarray; two of the safes had been moved from the back wall of the safe room to a side wall, and a third safe had been replaced with a different, larger safe from another location. In addition, a ladder had been left there.
At 11:16 p.m. on Sunday, April 6-after the video surveillance camera had stopped recording-a motion detector at the jewelry store, probably the one in the safe room, triggered an alarm. The alarm company alerted the police and then called Zimmelman. Zimmelman asked to be notified if the police found a problem, but did not take any further action. A police officer checked the exterior of the store and saw no problem; the exterior grate was down, no windows were broken, no alarm bells were ringing, and he did not observe anything amiss in the showroom when he looked through the windows with his flashlight. After about five minutes passed and no additional movement was detected, the alarm ceased. The police officer reported the premises secure, and no further action was taken.
The following morning, Monday, April 7, 2003, Frey returned to the jewelry store at about 9:15 or 9:30 a.m. to open up. Standard security procedures required that there be two people present to open the store, so Frey met another store employee there, Erin Beeghly, a student who worked part-time as a gemologist and sales assistant. Frey opened the store, went into the safe room to disable the alarm system, and then went upstairs to the office. Beeghly headed through the safe room and into the bathroom, intending to change her clothes.
When Beeghly opened the bathroom door, two tall African-American men with guns jumped out. They ordered her to the floor, and told her not to look at them. Frey heard Beeghly scream, and started down the stairs, only to encounter a man waiting at the bottom of the stairs with a gun pointed at him. The man was not wearing a mask, so Frey got a good look at his face. Frey described the man as African-American, about six feet tall, with a medium or light complexion, and a nose resembling that of football player Jerry Rice. Later, Frey was able to identify the man as Dino Smith, appellant‟s brother.*fn2 When shown a photographic lineup, Frey picked appellant‟s photograph, as well as Dino Smith‟s, as possible suspects.
The man put the gun to Frey‟s back and directed him to enter the safe room, where Frey saw another man holding a gun pointed at Beeghly. The robbers told Frey not to look at them, and one of them directed him to open the safes. Frey had difficulty doing so, because he was very nervous. After Frey managed to get one of the safes open, the doorbell rang. Frey told the robbers that it could be Miranda Gonsalves, the bookkeeper, and the robbers directed him to go and let her in, and bring her to the safe room. Beeghly was kept in the safe room with the robbers as a hostage.
When Frey opened the door for Gonsalves, he told her quietly that they were being robbed, but she did not really grasp what he was saying, and started to head upstairs to work on the accounts. As Gonsalves neared the top of the stairs, Frey called to her, and a light-skinned African-American man emerged from the safe room, ran upstairs after her, pointed a gun at her, and ordered her into the safe room. There, a second man, who was darker skinned and seemed older, then directed her to face the back wall. The first man seemed to be wearing a mask, but he pushed it up onto his forehead, so Gonsalves could see his face. Two years later, after seeing a news story about the robbery, Gonsalves identified the first man as George Turner.*fn3 Shortly after the robbery, Gonsalves also picked appellant‟s photograph, as well as Dino Smith‟s, as possible suspects from a photographic lineup, but she was not sure of these identifications.
Frey then resumed trying to open the safes. He was able to open the second one, but not the third, which was the one that had recently been moved into the jewelry store from a different location. As Frey was working on getting the third safe open, the doorbell rang again. It was Martinez, the store manager. Martinez had a key, but because she could not see any other store employees in the front room, she complied with the store‟s standard security procedures by ringing the doorbell rather than unlocking the front door herself.
Frey let Martinez in, quietly told her that a robbery was in progress and that Beeghly was being held hostage, and went back into the safe room with her. Frey tried again to open the third safe, but failed, so he asked Martinez to try, and she succeeded.
The intruders emptied the contents of the safes into large plastic bags. At the request of Frey and Martinez, they left behind some of the items in the safes that were not part of the store‟s inventory, but had been left by customers for repair or on consignment.
Because the store kept very complete inventory records, it was possible to determine precisely what had been taken. The final tally was 1,297 pieces of jewelry, with a value of almost $4.5 million.
Before leaving, the intruders bound the employees with plastic handcuffs and duct tape, and left them lying or sitting on the floor. While this was happening, Frey noticed for the first time that there was a large hole in the wall of the safe room, which had not been there when he left the store on Saturday. Gonsalves also noticed the hole at some point during the crime, though she could not recall exactly when. Frey and Gonsalves both looked through the hole and could see a figure moving around in the room on the other side of the wall. They could not see the person‟s face or even determine gender, however, because of their angle of view. Around this time, Gonsalves, Martinez, and Beeghly all heard a female voice that appeared to be coming from a walkie-talkie in the room on the other side of the hole. The voice sounded very professional, like a dispatcher, and seemed to be counting down time.
Finally, one of the intruders said, "Time‟s up, let‟s go," and they left through the hole in the wall. Martinez, who was the only one of the store employees who had been bound only with duct tape and not with handcuffs, was able to free her hands shortly thereafter, and then got scissors and freed the others. None of the employees were physically harmed, but all of them had been frightened while the crime was occurring. After freeing her coworkers, Martinez called another employee who was at the store‟s central office location and told that employee to call the police.
When the police arrived and investigated, they found that, as already indicated, the hole in the safe room wall led into the vacant restaurant premises. They also discovered that the hole had been drilled at a spot that constituted the weakest place in the wall dividing the store from the restaurant, because that part of the wall had formerly been occupied by a door with a glass panel in it.*fn4 Two people who had been in the restaurant space within a few days before the robbery-a prospective tenant and an electrician- confirmed that the hole had not been there when they last saw the wall.
The police investigation also revealed that the latch of the exterior door from Tillman Place into the restaurant space had been rigged with a wire so that it could be opened from the outside. The building owner had not ...