(Solano County Super. Ct. No. FCR258507), Hon. E. Bradley Nelson.
The opinion of the court was delivered by: Needham, J.
CERTIFIED FOR PUBLICATION
A defendant shoplifts property from a store in a shopping mall and forcibly resists the mall security guards who apprehend him and recover the property. Can the guards be victims of a robbery when they are not the owners of the stolen property and are not directly employed by the store that owned the property? We conclude the answer in this case is yes, because the guards had a special relationship with the store and had the duty and authority to retrieve its stolen property. We also reject the defendant's claims that the jury instructions on this point were defective and that his mid-trial motion for self-representation under Faretta v. California (1975) 422 U.S. 806, 834-835 (Faretta) should have been granted.
FACTS AND PROCEDURAL HISTORY
Defendant Richard Gary Bradford went to the Solano Mall in Fairfield where he stole six bottles of perfume from the front of a Victoria's Secret store. Nina Paiz, a shift manager for Victoria's Secret, noticed defendant walking out of the store with the perfume as she arrived for work. Defendant stood near a kiosk and then briefly returned to Victoria's Secret carrying a bag from another store with the stolen perfume inside. Paiz spoke to two mall security guards, Steven Conyers and Arthur Sandoval, and reported the theft.
After speaking to Paiz, Conyers and Sandoval followed defendant as he walked away from Victoria's Secret and into a nearby Mervyn's. They contacted defendant just inside the Mervyn's and asked if they could look inside the bag he was carrying. Defendant refused and Conyers told defendant he was being placed under citizen's arrest. Defendant pulled a knife from his pocket, waved it at the guards, and ran away.
Conyers and Sandoval chased defendant outside Mervyn's and Conyers tackled him. The two men wrestled on the ground and Sandoval saw defendant pull the knife from his pocket and try to stab Conyers. Sandoval grabbed appellant's hand and forced him to drop the knife. Another security guard joined the struggle and handcuffed appellant, who was turned over to Fairfield police officers.
Defendant was tried before a jury and convicted of two counts of second degree robbery with knife use enhancements and one count of assault by means likely to cause great bodily injury. (Pen. Code, §§ 211, 245, subd. (a)(1), 12022, subd. (b)(1).)*fn1 Conyers and Sandoval were the named victims of the robbery counts and Conyers was the named victim of the assault count. Appellant was sentenced to prison for an aggregate term of 12 years after admitting prior conviction allegations. (§§ 667, subd. (a), 1170.12, subds. (a)-(d).)
A. Substantial Evidence Supported the Jury's Determination that Security Guards Conyers and Sandoval Were Robbery Victims
Defendant argues that his robbery convictions must be reversed because the prosecution failed to show that Conyers and Sandoval were victims of a robbery. Noting that California law limits robbery victims to persons who have actual or constructive possession of the property taken (see People v. Nguyen (2000) 24 Cal.4th 756, 764 (Nguyen)), defendant contends there was no substantial evidence that the security guards had the requisite right to control the perfume that was stolen from Victoria's Secret. We disagree.
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; see People v. Scott (2009) 45 Cal.4th 743, 749 (Scott).) A defendant who does not use force or fear in the initial taking of the property may nonetheless be guilty of robbery if he uses force or fear to retain it or carry it away in the victim's presence. (People v. Gomez (2008) 43 Cal.4th 249, 256, 264; People v. Estes (1983) 147 Cal.App.3d 23, 27.)
A robbery cannot be committed against a person who is not in possession of the property taken or retained. (Scott, supra, 45 Cal.4th at p. 749.) Possession may be actual or constructive. (Id. at p. 750.) "A person who owns property or who exercises direct physical control over it has possession of it, but neither ownership nor physical possession is required to establish the element of possession for purposes of the robbery statute." (Id. at p. 749) " '[T]he theory of constructive possession has been used to expand the concept of possession to include employees and others as robbery victims.' " (Id. at p. 750, citing Nguyen, supra, 24 Cal.4th at p. 762.)
In Scott, supra, 45 Cal.4th at p. 746, our Supreme Court held that all employees on duty have constructive possession of their employer's property and may be separate victims of a robbery. That decision also recognized that persons other than employees may be robbery victims if they have a " 'special relationship' with the owner of the property such that the victim had authority or responsibility to protect the stolen property on behalf of the owner.' " (Id. at p. 750.) Formulated another way, the question is whether the prospective victim "may be expected to resist the taking." (Id. at p. 757.) Similarly, in People v. Gilbeaux (2003) 111 Cal.App.4th 515, 523, the court concluded the evidence was sufficient to uphold the defendant's convictions for the robbery of two janitors who were independent contractors of a grocery store owner. Although ...