IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT Shasta
March 11, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
ROBERT DEAN KLIEBE, DEFENDANT AND APPELLANT.
(Super. Ct. No. 09F5882)
The opinion of the court was delivered by: Robie , J.
P. v. Kliebe CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Robert Dean Kliebe challenges his conviction for second degree robbery on the grounds of insufficiency of the evidence and failure to give a cautionary instruction regarding defendant's out-of-court statement. Finding no merit in either of his arguments, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On June 10, 2009, following a party at a friend's house, Sharlyn Zufelt came home to the trailer she shared with defendant, her boyfriend. Zufelt first broke a television given to defendant by a suspected mistress by throwing it in the middle of the street. Zufelt then unplugged the extension cord that supplied the trailer with power because she was upset with defendant over the suspected affair. Zufelt then went into the house of her landlord, Michael Lupo, with the cord and locked the door.
When defendant arrived he knocked on the door or rang the bell. Zufelt begged Lupo not to let defendant in the house because she was afraid of him. Lupo opened the door anyway and defendant started arguing with Zufelt about the extension cord and the television she broke.
The argument turned physical when defendant grabbed Zufelt by the hair and threw her to the ground. Defendant then punched Zufelt with closed fists and kicked her with booted feet. At some point defendant repeatedly banged Zufelt's head into a "wood stove." Zufelt tried to make defendant stop by pleading with him and attempting to get the extension cord.
Defendant then told Zufelt that she either had to give him $40 or perform a sexual act on Lupo. Zufelt took $40 from her pocket and extended it toward defendant, and defendant grabbed the money and at some point left Lupo's house. Zufelt later told Shasta County Deputy Sheriff Nick Thompson that she gave defendant the $40 because she was not going to perform a sexual act on Lupo and she was afraid of being further assaulted by defendant. Zufelt also told Deputy Thompson that a short time had passed between her return from the party and the arrival of law enforcement officers.
Following a jury trial in which Zufelt and Lupo both recanted the stories they told responding officers, the jury found defendant guilty of inflicting corporal injury and second degree robbery. The trial court sentenced defendant to one year for the corporal injury charge and three years for the robbery charge. Both sentences were doubled because defendant had a prior strike. The court further sentenced defendant to five years for having a prior serious felony conviction for an aggregate term of 13 years.
I Sufficiency Of The Evidence
Defendant first challenges the sufficiency of the evidence to support his conviction of second degree robbery. More specifically, he contends that "only through speculation could the jury infer that [his] statement [to Zufelt, which preceded her giving him the $40,] was 'reasonably calculated to induce fear,'" as required for the robbery conviction.
"'The standard of review [for insufficiency of the evidence] is well settled: On appeal, we review the whole record in the light most favorable to the judgment below to determine whether it discloses 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. [Citations.] "'[I]f the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder.'" [Citation.] "The standard of review is the same in cases in which the People rely mainly on circumstantial evidence. [Citation.] 'Although it is the duty of the [finder of fact] to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the [finder of fact], not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt.'"' [Citation.]
"'An appellate court must accept logical inferences that the [finder of fact] might have drawn from the circumstantial evidence.' [Citation.] 'Before the judgment of the trial court can be set aside for the insufficiency of the evidence, it must clearly appear that on no hypothesis whatever is there sufficient substantial evidence to support the verdict of the [finder of fact].'" (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1572-1573.)
"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." (Pen. Code,*fn1 § 211.)
As relevant here, fear is defined as the fear of an unlawful injury to the person or property of the person robbed. (§ 212, subd. (1).) There does not have to be a physical assault, a verbal threat, or use of a weapon. It is enough if the defendant intimidates the victim into handing over the property. (People v. Brew (1991) 2 Cal.App.4th 99, 104.) "'"Where intimidation is relied upon, it [can] be established by proof of conduct, words, or circumstances reasonably calculated to produce fear. . . ."'" (Ibid.)
Defendant concedes there was sufficient evidence that Zufelt was afraid when she gave him the $40, but he contends there was not sufficient evidence that his acts were reasonably calculated to induce fear. We reject defendant's contention.
The testimony of a single witness is sufficient evidence to support the verdict. (People v. Zavala (2005) 130 Cal.App.4th 758, 766.) Here, Deputy Thompson's testimony provides substantial evidence to show defendant took Zufelt's money by means of fear. Deputy Thompson testified that defendant told Zufelt to give him $40 or perform a sexual act on Lupo. This proposition occurred after defendant argued with Zufelt about the television she broke and the extension cord she took from their trailer. Also before the proposition, defendant punched Zufelt with closed fists, kicked her with booted feet, and repeatedly banged her head into a "wood stove." Deputy Thompson also testified that Zufelt told him she gave defendant the money because she was scared of further assault and she was not going to perform a sexual act on Lupo.
Given these facts, the jury could reasonably infer defendant assaulted Zufelt, then stopped assaulting her to demand she either perform a sex act on Lupo or pay him $40. Clearly, after all this, she reasonably could have feared that if she refused to perform the sex act, andrefused to voluntarily give defendant $40, he would take the money from her by force. The jury could have reasonably found defendant intimidated Zufelt into giving him $40.
Defendant's argument that "only through speculation" could the jury find his statement to Zufelt was "'reasonably calculated to induce fear'" is meritless. The jury was not charged with examining the statement in isolation. Instead, it was required to look at all the surrounding circumstances, including defendant's actions before he made the statement, to determine if his words and his actions together were reasonably calculated to produce fear. Finally, contrary to defendant's argument that "there was no context for the statement", there was a context for his statement, which came from Zufelt's statements to Deputy Thompson that she was afraid of being assaulted again.
There was sufficient evidence to support the robbery conviction.
II Cautionary Instruction
Defendant next contends the trial court erred by failing to give a cautionary instruction to the jury regarding his statement that Zufelt either give him $40 or perform a sexual act on Lupo. Once again, we find defendant's contention lacks merit.
The trial court has a sua sponte duty to give a cautionary instruction where an admission by the defendant is used to prove a part of the prosecution's case. (People v. Zichko (2004) 118 Cal.App.4th 1055, 1058.) This instruction advises the jury to view admissions, purported to be made by the defendant, with caution. (CALCRIM No. 358) "The purpose of the cautionary instruction is to assist the jury in determining if the statement was in fact made." (People v. Beagle (1972) 6 Cal.3d 441, 456.) An admission is an acknowledgment, declaration, or concession of a fact or action that tends to prove guilt or from which guilt may be inferred when considered with the rest of the evidence. (Zichko, at p. 1059.)
A cautionary instruction is not required when the statement is not an admission, but instead constitutes the crime itself, because in that circumstance a cautionary instruction would be inconsistent with the reasonable doubt standard. (People v. Zichko, supra, 118 Cal.App.4th at p. 1060.) In Zichko, which involved the crime of making a criminal threat, the appellate court explained this point as follows: "[T]he People had the burden of proving [defendant] guilty beyond a reasonable doubt . . . . Therefore, a guilty verdict required the jury to conclude beyond a reasonable doubt that [defendant] made the threatening statements. To also instruct the jury that the statements 'should be viewed with caution' [CALCRIM No. 358] would have been at least superfluous and may have been confusing to the jury. It could have misled the jury into believing that it could find [defendant] guilty even if it did not conclude beyond a reasonable doubt that the statements were made, as long as the jury exercised 'caution' in making its determination." (People v. Zichko, supra, 118 Cal.App.4th at p. 1060.)
When the admission is not the crime itself, the cautionary instruction alerts the jury to the potential unreliability of evidence of a defendant's unrecorded oral admission that tends to prove he committed the crime. (People v. Zichko, supra, 118 Cal.App.4th at pp. 1059-1060.) The instruction is not intended to impose a special disability on the testimony of witnesses who say they heard the defendant make a statement that constituted partof the crime. This is true regardless of whether the making of a statement was the only way to commit the crime or one of many possible ways to commit the crime.
Defendant argues that since his statement to Zufelt did not constitute the crime of robbery, the court had a sua sponte duty to give a cautionary instruction. We disagree. Defendant's statement was part of the means by which he intimidated Zufelt and committed the crime of robbery. While it is true the statement was not, by itself, the crime, that makes no difference for purposes of the rule on which defendant relies. It was defendant's demand that Zufelt hand over $40 or perform a sexual act on Lupo, which he made after assaulting her, that provided the intimidation necessary to find defendant obtained the money through fear. Thus, the statement was not an admission, and on that basis the trial court did not err by failing to give a cautionary instruction.
The judgment is affirmed.
We concur: NICHOLSON Acting P. J. MAURO , J.