People v. Flynn

• Decision Date: 19 January 2000
• Docket Number: No. B123817.,B123817.
• Citation: 77 Cal.App.4th 766,91 Cal.Rptr.2d 902
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Christopher FLYNN, Defendant and Appellant.

91 Cal.Rptr.2d 902

77 Cal.App.4th 766

The PEOPLE, Plaintiff and Respondent, v. Christopher FLYNN, Defendant and Appellant.

No. B123817.

Court of Appeal, Second District, Division 5.

January 19, 2000.

Certified for Partial Publication.^*

Review Denied May 10, 2000.

Linda Starr, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Lance E. Winters, Supervising Deputy Attorney General, Ronald A Jakob, Deputy Attorney General, for Plaintiff and Respondent.

O'NEILL, J.^**

I. INTRODUCTION

Defendant, Christopher Flynn, was sentenced to state prison following his conviction of robbery. He now argues insufficiency of evidence, improper exclusion of the victim's prior misdemeanor conduct, and erroneous denial of a motion for new trial. The People oppose these contentions and note the absence of a mandatory parole revocation fine. We modify the judgment and affirm. In the published portion of our opinion, we uphold a robbery conviction on the theory that the perpetrator used fear to accomplish retention of the property after it was taken.

II. PROCEDURAL HISTORY

A jury trial on charges of robbery (Pen. Code, § 211) and battery on a police officer (Pen.Code, § 243, subd. (b)) resulted in conviction of the robbery. The jury hung on the other charge, which was eventually dismissed. The People charged a number of prior felony convictions, but proceeded only on two: (1) assault with a firearm (Pen.Code, § 245, subd. (a)(2)) as a "strike," serious felony, and prior prison term; and (2) possession of a controlled substance (Health & Saf.Code, § 11350, subd. (a)) as a prior prison term. The trial court found both priors true, and used them to double defendant's base term, then increase it by six years, resulting in a 16-year sentence.

III. FACTUAL SUMMARY

Viewed in a light most favorable to the judgment (Jackson v. Virginia (1979) 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560; People v. Marshall (1997) 15 Cal.4th 1, 34, 61 Cal.Rptr.2d 84, 931 P.2d 262), the evidence can be briefly stated as follows.

Defendant was a member of the "74 Hoover" gang. On October 3, 1997, at about 6 p.m., he was standing in the area of 74th and Hoover streets in Los Angeles with five other men, all but one of whom appeared to the victim to be gang members.

The female victim is five feet four inches tall and is smaller than the defendant. The date of this incident was her 36th birthday. She lived at 75th and Hoover. As she walked past the group of men, defendant grabbed a bag that hung on her left shoulder, causing her shoulder to be pulled backward. The victim was angry, shocked and afraid of being jumped. She "kept reaching for [the bag], and [the defendant] just kept pulling [it] back." After defendant took the bag, he removed a gun and five-dollar bill and showed them to his companions. The victim took a good look at defendant's face so that she would remember it. The defendant screamed at the victim to get away from his car as she backed away from him. She ran home, and waited ten days to report the incident.

Within days of the crime, the victim saw defendant's car drive slowly down her street on a number of occasions. After defendant's arrest, the wife of defendant's friend returned the gun to the victim, and had her talk to the defendant on the telephone on two occasions. The defendant apologized and asked her to drop the charges. He also asked her to talk to his parole agent. Several people came to the victim's home on different occasions. The victim was asked what she was going to do about the case. She was told she better have her gun with her when she leaves home, and one of the visitors threatened to burn her house down.

IV.-V.^***

VI. DISCUSSION

The jury convicted defendant of robbery, despite being instructed on their option to convict of grand theft from the person as a lesser included offense. The robbery instruction (CALJIC No. 9.40, as modified) presented a prosecution theory of force or fear after the initial taking of the property.¹ In argument, the prosecutor conceded insufficient force or fear at the time of the taking, urging the jury to find a robbery based on defendant's use of fear to prevent the victim from reclaiming her property. Defendant now argues he used no more force than necessary to take the victim's bag, and that the fear expressed by the victim was not created by the defendant to facilitate the robbery. Our task is to "review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence ... from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt." (People v. Jennings (1991) 53 Cal.3d 334, 364, 279 Cal.Rptr. 780, 807 P.2d 1009.)

Whether the manner by which the bag was snatched from the victim's shoulder constituted sufficient force for a robbery is an arguable point. (People v. Wright (1996) 52 Cal.App.4th 203, 210, 59 Cal.Rptr.2d 316; but see People v. Lescallett (1981) 123 Cal.App.3d 487, 490-492, 176 Cal.Rptr. 687.) However, we decline to reach this issue because the People did not argue such a theory at trial, and the jury was not instructed on it. Since the defendant used no other force, we turn to the prosecution theory that the crime was accomplished by fear which arose after the initial taking.

"Robbery is the ... taking of ... property ... accomplished by means of force or fear." (Pen.Code, § 211.) Accordingly, "to support a robbery conviction, the taking, either the gaining possession or the carrying away, must be accomplished by force or fear." (People v. Cooper (1991) 53 Cal.3d 1158, 1165, fn. 8, 282 Cal.Rptr. 450, 811 P.2d 742.) "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. Prieto (1993) 15 Cal.App.4th 210, 211-216, 18 Cal.Rptr.2d 761 [victim too "fearful and shocked" to intervene in nearby struggle between perpetrator and second victim over purses belonging to both victims]; People v. Dominguez (1992) 11 Cal.App.4th 1342, 1346-1349, 15 Cal.Rptr.2d 46 [victim ordered out of his residence at gunpoint before property was carried off]; People v. Hays (1983) 147 Cal.App.3d 534, 541-542, 195 Cal.Rptr. 252 [fearful victim fled before taking of property].)

Most robberies involve actual or threatened force, resulting in fear on the part of the victim, at the time the property is taken. People v. Wright, supra, 52 Cal.App.4th at pp. 209-210, 59 Cal.Rptr.2d 316.) However, the requisite fear need not be the result of an express threat. (See People v. Garcia (1996) 45 Cal. App.4th 1242, 1246, 53 Cal.Rptr.2d 256 ["rather polite ... tap" of cashier sufficient where it caused cashier to fear defendant might be armed]; People v. Davison (1995) 32 Cal.App.4th 206, 214, 38 Cal. Rptr.2d 438 [victim is confronted by two men at an automatic teller machine, and ordered to "stand back"]; People v. Brew (1991) 2 Cal.App.4th 99, 104, 2 Cal.Rptr.2d 851 [relative size of defendant and victim a factor]; In re Anthony H. (1982) 138 Cal. App.3d 159, 166, 187 Cal.Rptr. 820 [after following victim in car, suspect says, "I don't want to harm you, but I want your purse"].) 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. People v. Torres (1996) 43 Cal. App.4th 1073, 1077-1079, 51 Cal.Rptr.2d 77 [use of force by car burglar after he had possession of the victim's stereo sufficient even though perpetrator subsequently abandoned the stereo and fled]; People v. Pham (1993) 15 Cal.App.4th 61, 65-68, 18 Cal.Rptr.2d 636 [where thief used force against victims as thief carried property away, robbery occurred even though victims subdued thief and no further asportation occurred]; People v. Estes (1983) 147 Cal.App.3d 23, 27-28, 194 Cal.Rptr. 909 [force used against store security guard who tried to prevent escape of shoplifter].)

A theft or robbery remains in progress until the perpetrator has reached a place of temporary safety. People v. Carroll (1970) 1 Cal.3d 581, 585, 83 Cal.Rptr. 176, 463 P.2d 400.) The scene of the crime is not such a location, at least as long as the victim remains at hand. (People v. Ramirez (1995) 39 Cal.App.4th 1369, 1375, 46 Cal.Rptr.2d 530 ["Phrased otherwise, the robbery is not `over' until the victim has reached a place of temporary safety"]; see also People v. Haynes (1998) 61 Cal. App.4th 1282, 1292, 72 Cal.Rptr.2d 143.) When 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. (People v. Webster (1991) 54 Cal.3d 411, 442, 285 Cal.Rptr. 31, 814 P.2d 1273 [assuming that murder victim had willingly given car key to defendant, jury could infer from later violence that defendant used force to prevent victim from retrieving the key].)

It follows from these principles, and we...