IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE
December 16, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
VINCENT RIVERA, DEFENDANT AND APPELLANT.
(San Francisco City & County Super. Ct. No. 204462)
The opinion of the court was delivered by: Margulies, J.
P. v. Rivera CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Vincent Rivera was convicted of robbery and assault with a deadly weapon after he and two others stole a wallet. Defendant and two other men walked up to the victim, surrounded him, addressed him with a gang-related question, removed his wallet from his pocket, and walked away. When the victim ran after them and threatened to call the police if the wallet was not returned, defendant stabbed him in the chest. Defendant contends there was insufficient evidence the theft was committed by means of "force or fear" to support his conviction for robbery. We affirm.
Defendant was charged by indictment, filed February 26, 2008, with robbery (Pen. Code, § 211), assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), possession of cocaine base (Health & Saf. Code, § 1351.5), and two counts of participation in a criminal street gang (Pen. Code, § 186.22, subd. (a)). The robbery was alleged to be a serious felony. (Pen. Code, §§ 1192.7, subd. (c), 667.5, subd. (c).) The robbery, assault, and possession charges were alleged to have been part of criminal street gang activities. (Pen. Code, §§ 186.22, subds. (b)(1)(A)-(C).) Defendant was also alleged to have personally inflicted great bodily injury in connection with the robbery, assault, and one of the gang participation charges. (Pen. Code, § 12022.7, subd. (a).) Finally, defendant was alleged to have personally used a deadly weapon in connection with the robbery and one of the gang participation charges. (Pen. Code, § 12022, subd. (b)(1).) His case was later consolidated with those of two other defendants. The three were tried together, but only defendant's appeal is before us in this matter.
The victim, Angel Zavala, a Spanish-speaking construction worker, purchased a snack at a fast food restaurant in the Mission District of San Francisco around 10:00 p.m. on April 14, 2007. As Zavala walked out of the restaurant, a group of three men approached and surrounded him. One asked, "que rifas," which the court interpreter translated as, "what do [you] claim?" Zavala understood the question to ask whether he was part of a gang, and it made him "nervous," since he assumed it meant the three were themselves gang members. The three then moved closer to Zavala, and one of them took his wallet. Zavala felt the hand reach into his pocket, but he did not resist because it happened quickly and he was concerned "they were going to beat me up."
After taking Zavala's wallet, the three men casually walked off. Zavala followed soon after, "thinking of getting my wallet back." As he approached, he told them to return the wallet or he would call the police. When the three merely laughed in response, Zavala tried unsuccessfully to hit one of them. As he did so, he was stabbed in the chest by one of the men. Zavala returned to the restaurant and collapsed.
During his subsequent stay in the hospital, Zavala identified pictures of two of the three men. It is not clear from his testimony whether one of the pictured men was defendant, but all three defendants were tied to the crime through surveillance video that caught the confrontation. Defendant was identified as the person who stabbed Zavala.
The jury convicted defendant on each of the five charges and found true all but one of the special allegations, the exception being the allegation that the assault was committed in association with street gang activities. The court imposed a total prison term of 21 years 4 months.
Defendant contends there was insufficient evidence of "force or fear" to support his conviction for robbery.*fn1
" 'When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence--that is, evidence that is reasonable, credible, and of solid value--from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citation.] '[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " (People v. Lewis (2009) 46 Cal.4th 1255, 1289-1290.)
"Robbery is the felonious taking of personal property in the possession of another, from [his or her] person or immediate presence, and against [his or her] will, accomplished by means of force or fear." (Pen. Code, § 211; People v. Letner and Tobin (2010) 50 Cal.4th 99, 166.) "[T]he commission of a robbery continues until all acts constituting the offense have ceased. The taking element of robbery itself has two necessary elements, gaining possession of the victim's property and asporting or carrying away the loot. [Citation.] . . . [¶] . . . The asportation continues . . . as long as the loot is being carried away to a place of temporary safety." (People v. Cooper (1991) 53 Cal.3d 1158, 1164-1165, fns. omitted.)
" 'Gaining possession or . . . carrying away' includes forcing or frightening a victim into leaving the scene, as well as simply deterring a victim from preventing the theft or attempting to immediately reclaim the property." (People v. Flynn (2000) 77 Cal.App.4th 766, 771.) Further, "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." (Id. at pp. 771-772.) " '[I]f one who has stolen property from the person of another 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. Gomez (2008) 43 Cal.4th 249, 255.)
" '[T]he fear necessary for robbery is subjective in nature, requiring proof "that the victim was in fact afraid, and that such fear allowed the crime to be accomplished." ' [Citation.] 'Actual fear may be inferred from the circumstances, and need not be testified to explicitly by the victim.' [Citation.] ' " 'Where intimidation is relied upon, it [can] be established by proof of conduct, words, or circumstances reasonably calculated to produce fear.' " ' " (People v. Bordelon (2008) 162 Cal.App.4th 1311, 1319.)
Contrary to defendant's claim, we find substantial evidence to support the "force or fear" element of robbery under either of two independent theories. First, the jury could readily have concluded that the defendants' conduct was designed to intimidate the victim, using fear to discourage him from resisting the taking of his wallet. The three approached Zavala with superior numbers and assumed positions on all sides of him, creating a threatening atmosphere and making resistance or escape more difficult. One of them addressed him using a catchphrase for gang membership, thereby communicating their own gang membership and bringing to bear the coercive power of the gang. Then they moved closer, intensifying the threat. Only at that time did one of the defendants remove Zavala's wallet. The jury could easily have found the defendants' conduct prior to taking the wallet--closely surrounding Zavala and using a gang membership catchphrase--was " ' " 'reasonably calculated to produce fear.' " ' " (People v. Bordelon, supra, 162 Cal.App.4th at p. 1319; see, e.g., People v. Davison (1995) 32 Cal.App.4th 206, 216 ["fear" element of robbery satisfied where two men approached the victim at an ATM machine, stood very close, stared at her, and told her to step back, allowing them to take the money].)
The jury also reasonably could have concluded that the effort to intimidate was successful. The victim testified that he was made "nervous" by the defendants' manner and their question. When his wallet was taken, he initially did not resist because he was concerned they would assault him. Accordingly, there was substantial evidence " ' "that the victim was in fact afraid, and that such fear allowed the crime to be accomplished" ' " (People v. Bordelon, supra, 162 Cal.App.4th at p. 1319), since the victim's fear permitted the defendants to gain and retain possession of the wallet. (See People v. Flynn, supra, 77 Cal.App.4th at p. 772.)
Defendant cites the victim's preliminary hearing testimony that he did not resist initially because the taking of his wallet happened too quickly. At trial, however, Zavala conceded he failed to resist both because the events happened quickly and because he was intimidated. The jury was entitled to accept this testimony. Further, while the speed of the taking may explain Zavala's failure to reach back and grab the hand in his pocket, it does not explain his initial hesitation in taking any action to regain possession of the wallet, allowing the defendants to walk away. As noted in People v. Flynn, supra, 77 Cal.App.4th at page 772, "[w]hen the perpetrator and victim remain in close proximity, a reasonable assumption is that, if not prevented from doing so, the victim will attempt to reclaim his or her property." The jury could infer Zavala's initial failure to challenge the defendants was caused by his fear of the consequences. Further, the jury could reach that conclusion, notwithstanding Zavala's failure to mention intimidation in his preliminary hearing testimony. (People v. Davison, supra, 32 Cal.App.4th at p. 215 ["a jury may infer actual fear 'from the circumstances despite even superficially contrary testimony of the victim' "].)*fn2
Defendant also compares this crime to the activities of a pickpocket. (E.g., People v. Cunningham (1950) 99 Cal.App.2d 296, 297-298; People v. Fiegelman (1939) 33 Cal.App.2d 100, 102.) The only resemblance to a pickpocket's methods, however, is the removal of the wallet from the victim's pocket. A successful pickpocket removes property by stealth and leaves the victim unaware any property was stolen. Ideally, the pickpocket's victim is not conscious of the pickpocket's presence. In contrast, the defendants made no attempt to disguise their presence or their purpose. Zavala was well aware his wallet was being removed from his pocket. Instead, the jury could readily conclude the defendants counted on intimidation to allow them to carry away the victim's property.
Second, the jury could have concluded that defendant's knife strike was intended to prevent the victim from any further attempt to reclaim his property. As noted above, the crime of theft continues until "the loot is being carried away to a place of temporary safety." (People v. Cooper, supra, 53 Cal.3d at p. 1165.) If a perpetrator uses force against a victim to aid this escape, the "force" element of robbery is satisfied. (See, e.g., People v. Gomez, supra, 43 Cal.4th at p. 265 [where defendant who had taken goods without violence shot at his pursuer during the escape, "force" element was satisfied].) When the attack occurred, these defendants were on a public street no more than a few yards from the scene of the theft, in full view of the victim. They therefore had not reached a place of temporary safety. Even if the theft was not a robbery as a result of the defendants' conduct up to that point, a knife strike intended to prevent the victim from reclaiming his wallet would have converted the theft into a robbery.
This situation is not materially different from that of People v. Pham (1993) 15 Cal.App.4th 61, in which the victim discovered the defendant rummaging through his car. As the victim approached, the defendant ran off with stolen property, pursued by the victim. When the victim caught up, the defendant turned and began hitting him. (Id. at p. 64.) The court concluded the defendant's blows satisfied the element of force, rejecting the defendant's contention that the force must be applied before asportation to constitute robbery. (Id. at pp. 65-66.)
Defendant contends that because the victim "had abandoned any idea of recovering his wallet, and approached and swung at [defendant] only to give vent to his anger, the crime of theft was complete before the encounter which resulted in the stabbing." Contrary to the premise of the argument, Zavala testified he went after the defendants for the purpose of "getting my wallet back." Further, regardless of whether Zavala had subjectively "abandoned any idea of recovering his wallet," he told the defendants as he approached them that he would call the police if they did not return his wallet. Defendant therefore had no reason to believe Zavala had abandoned hope. As a result, the jury could have concluded that defendant interpreted the victim's approach and punch as an effort to recover his wallet and responded to prevent its success.
The judgment of the trial court is affirmed.
We concur: Marchiano, P.J. Banke, J.