People v. Carmichael
| Decision Date | 12 April 2022 |
| Docket Number | C089524 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. EDDIE WAYNE CARMICHAEL, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
Defendant Eddie Wayne Carmichael took about $200 worth of merchandise from a Placerville store, was found out by a store employee and displayed a hunting knife at two store employees who tried to prevent him from escaping. He was convicted of second degree robbery (Pen. Code, § 211)[1] with an enhancement for personally using a deadly weapon (§ 12022, subd. (b)(1)) following a jury trial and pleaded no contest to obstructing an officer (§ 148, subd. (a)(1)). Defendant admitted three strike allegations (§ 667, subds (b)-(i)) and four prior prison terms (§ 667.5, subd. (b)) and was sentenced to 25 years to life plus five years in state prison.
On appeal, defendant contends: (1) the robbery conviction should be reversed because the record does not show that he was convicted under a legally valid theory; (2) the matter should be remanded for section 1001.36 diversion proceedings; (3) counsel was ineffective in failing to investigate the validity of one of the strike priors; (4) it was an abuse of discretion not to strike any of the strike priors; (5) his sentence constituted cruel and unusual punishment; (6) his prison priors should be stricken under Senate Bill No. 136 (2019-2020 Reg. Sess.) ; and, in a supplemental brief, that the prosecutor committed prejudicial misconduct by misstating the law during argument to the jury.
Substantial evidence supports the robbery conviction; defendant's claim relies on the manner in which the verdicts were rendered and therefore cannot support overturning his conviction. The mental health diversion claim is forfeited, and the record does not support the argument that counsel was ineffective in failing to request a section 1001.36 hearing. Likewise, this record does not support the claim that counsel was ineffective in not investigating one of the strike priors. Agreeing with the contention regarding the prison priors and rejecting the remaining claims, we shall strike the four prison priors and affirm the modified conviction.
Kristopher Taylor was working as a front-end cashier in a Placerville Grocery Outlet at around 6:00 p.m. on September 14, 2017, when he saw defendant walking out of the store with a white garbage bag full of products from the store. Defendant had not paid for the items, so Taylor followed defendant out of the store and then asked him to stop. Defendant continued walking away after Taylor made repeated requests for him to stop. When Taylor saw his coworker Melisa Clark at the other end of the parking lot, he called on her to help with defendant.
Defendant drew an open folding knife and held it over his head. Taylor described the knife as being three to six inches long with an upwards positioned blade. Defendant held the knife motionless above his head as he headed toward Clark. He was about 50 feet from Taylor, who had not seen him take out the knife. Upon seeing the knife, Taylor immediately backed away and told Clark to do the same.
Defendant held the knife over his head for an undetermined time and then ran off. The bag tore open, and the stolen items dropped out of it as he fled. The bag contained a little over $200 in store merchandise, all of which was recovered.
Clark was walking to her car when she heard Taylor call out, "Stop him, stop him." Defendant was about 40 feet away and running in her direction. He held a fishing knife above his head and told Clark, "Get out of my way." She did not believe that defendant was intentionally waiving the knife at her; the knife happened to be in the hand defendant waived at her. Clark got out of defendant's way because it was smart to get out of the way of a person holding a knife. She did not think defendant was going to stab her and did not perceive his actions as threatening.
Taylor called the police, and defendant was arrested after a brief foot pursuit. No knife was found. Defendant executed a Miranda[2] waiver and told the police he found the stolen items in the parking lot but had never possessed any weapons. Defendant said he ran because he was intoxicated and worried that he might have something on him he should not have. He did not seem intoxicated to the interrogating officer.
Testifying on his own behalf, defendant said he was homeless and had been drinking a pint of vodka and some malt liquor before the incident. He eventually went to the Grocery Outlet, where he first talked to a clerk and the clerk's wife in the parking lot before entering the store. Defendant shoplifted batteries and duct tape from the store without incident two times that night. During the second incident, defendant heard Taylor call out to him, but defendant kept walking away.
Defendant kept a folding knife in his pocket with the blade open for protection because he lived in a homeless camp. The knife fell out of his pocket while he was running from the store. Defendant picked up the knife and tried to hide it from Clark by closing the knife and putting it in his pocket. He never talked to anyone during this incident and had not intended to threaten either Clark or Taylor. He had just forgotten about the knife, which he eventually threw away.
Defendant ran from the police because he was guilty of shoplifting batteries, and not because he had committed a robbery. He admitted lying to the police and that his intoxication probably affected his perception of the events. Defendant nonetheless maintained he never waived the knife at Clark, never held it over his head, and did not intend to use the knife to get away with the stolen merchandise.
Defendant contends his robbery conviction must be reversed because the jury found him guilty under a legally invalid theory.
"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.)
The prosecution relied on the theory that defendant committed the robbery by displaying the knife to cause fear in Taylor and Clark."' "The element of fear for purposes of robbery is satisfied when there is sufficient fear to cause the victim to comply with the unlawful demand for [her] property."' [Citation.] 'The extent of the victim's fear "do[es] not need to be extreme ."' '[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.'"' [Citations.]" (People v. Bordelon (2008) 162 Cal.App.4th 1311, 1319.) A robbery occurs when a person uses force or fear in an attempt to facilitate the perpetrator's escape, regardless of how the property was originally obtained. (People v. Gomez (2008) 43 Cal.4th 249, 265.)
Shortly after deliberation began, the jury asked for read-backs of Taylor's testimony and requested clarification regarding the intent necessary to prove force or fear. The jury also asked for a legal definition of "[d]isplays the weapon in a menacing manner." The trial court answered this question by referring the jury to CALCRIM No. 200, which informed the jury that words and phrases not specifically defined by the court were to be given their ordinary, everyday meanings.
Near the end of the first day of deliberation, the jury informed the trial court it had reached a guilty verdict on robbery but was not able to unanimously agree regarding the personal use of a weapon allegation. This prompted the court to allow additional argument on the allegation. Defense counsel remarked the jury's confusion was linked to the guilty verdict on the robbery count. The jury reached a true finding on the weapon enhancement following the additional argument.
Defendant claims the jury's initial inability to reach a decision regarding the weapon enhancement completely undercuts its finding regarding the fear element of robbery. The jury was instructed with CALCRIM No. 3145 that in order to sustain a true finding on the weapon enhancement, it had to find that defendant "[d]isplays the weapon in a menacing manner." Defendant reasons that if at the time the jury reached the guilty verdict on the robbery count, it could not determine whether defendant displayed the knife in a menacing manner, the jury must have found him guilty of robbery under some theory not involving the menacing display of the knife. While the jury eventually came to a true finding on the weapon enhancement, defendant correctly notes that every verdict "rises or falls on its own." (People v. Guzman (2011) 201 Cal.App.4th 1090, 1095, fn. 3.) He finds the jury's questions before the robbery verdict further support the inference that it had trouble determining whether the knife was displayed menacingly. Since there was no other valid theory of guilt other than defendant using the knife to induce fear, defendant concludes the guilty verdict is based on a legally invalid theory and must be reversed.
"The law generally accepts inconsistent verdicts as an occasionally inevitable, if not entirely satisfying consequence of a criminal justice system that gives defendants the benefit of a reasonable doubt as to guilt, and juries the power to acquit whatever the evidence."...
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