People v. Marquez
| Decision Date | 14 March 2000 |
| Docket Number | No. C029962.,C029962. |
| Citation | 78 Cal.App.4th 1302,93 Cal.Rptr.2d 758 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Joseph Antony MARQUEZ, Defendant and Appellant. |
Robert Wayne Gehring, San Diego, under appointment by the Court of Appeal, for Appellant.
Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Robert R. Anderson, Senior Assistant Attorney General, Stephen G. Herndon, Supervising Deputy Attorney General, Timothy L. Rieger, Deputy Attorney General, for Respondent.
Defendant Joseph Marquez was convicted by jury of two counts of robbery. (Pen.Code, § 211; further statutory references are to the Penal Code unless noted otherwise.) He was acquitted of being a felon in possession of a firearm. (§ 12021, subd. (a).) The court found true allegations defendant suffered two prior serious felony convictions within the meaning of section 667, subdivision (a) and the "three strikes" law. (§§ 667, subds.(b)-(i), 1170.12.) Sentenced to state prison, defendant appeals contending: (1) the court abused its discretion by excluding expert opinion testimony concerning a photographic lineup; and (2) there is not substantial evidence to support the two robbery verdicts. We conclude there is only substantial evidence to support one of the two counts of robbery. We will strike defendant's conviction for the robbery charged in count 2 and otherwise affirm. In so doing, we hold in the published portion of the opinion that when a defendant steals by force or fear more than one item during the course of an indivisible transaction involving a single victim, he commits only one robbery notwithstanding the number and ownership of the items he steals.
Julie Feldt, a waitress at a Lyon's Restaurant in Sacramento, completed her shift and was at the counter counting her tips. A man approached her. She described the man as 25 to 30 years old, 5'7" or 5'8" with a slim to medium build, weighing 130-150 pounds, with dark hair and a mustache and wearing a navy blue Dallas Cowboys hat and T-shirt.
The man lifted his shirt, exposing a handgun, and demanded money. Feldt gave him over $70 in tip money and what was later determined to be over $600 from the cash drawer. Defendant turned and walked out the door. Later that night, Feldt identified defendant as the robber in a photographic lineup. During the trial she also positively identified defendant as the robber.
Jason Linton and his girl friend, Tiffany Cazares, were at the Lyon's Restaurant at the time of the robbery and were preparing to pay their bill. Feldt pointed to a man, saying, "[T]his guy just robbed me...." Linton followed the man Feldt identified as the robber. Linton described the man he followed as 5'7" or 5'8" tall, with a slender build.
The robber drove away in a light blue Plymouth Reliant station wagon, and Linton followed in his car. Linton telephoned authorities on his cellular telephone and reported the Reliant's license plate number. Defendant was the registered owner of the car, and the license plate number reported by Linton belonged to a light blue Plymouth Reliant station wagon.2 A detective later inspected defendant's car and concluded it could not be driven without a key. Defendant testified that only he and his father had keys to his car.
Linton looked at the driver of the car he followed and determined he was the same man he saw leaving the Lyon's Restaurant. The Reliant made what appeared to Linton to be evasive maneuvers and Linton eventually lost sight of it. At a photographic lineup, Linton stated he thought a photograph of defendant might be that of the man he followed in his car, but he was not certain. At trial, he could not positively identify defendant as the robber.
Cazares testified she saw defendant talk to Feldt at the register. Cazares described defendant as about 5'8" tall with a slender build, wearing jeans, a dark Dallas Cowboys T-shirt and a baseball cap. Feldt appeared nervous and agitated and said she had just been robbed. Feldt pointed to the robber as he left the restaurant. Cazares identified defendant as the man Feldt had pointed to, both in a photographic lineup and at trial.
Defendant testified he was 30 years old, 6 feet tall and weighed about 170 pounds. He further testified that on the day of the offense he took his children to dinner and then to their mother's house, where he stayed until about 11:30 p.m. He then drove home. He was drunk at that time. About ten minutes later he left again. He drove into a road median, bending a tire rim, changed the tire, returned home and went to bed.
Defendant's mother testified she never saw defendant wear a Dallas Cowboys shirt and did not see him with a gun or a large amount of cash around the time of the offense. She last saw defendant on the day of the offense about eight or nine o'clock in the morning and next saw him the following evening.
Defendant's stepfather testified that the day after the offense, defendant's car had a flat rear tire and no spare. The morning after the offense, defendant appeared to have been up all-night and drinking. He never saw defendant with a gun.
Defendant contends the two robbery verdicts are not supported by substantial evidence. The applicable standard of review is settled. `... (People v. Thomas (1992) 2 Cal.4th 489, 514, 7 Cal.Rptr.2d 199, 828 P.2d 101.)
In support of his claim, defendant refers to physical differences between himself and the witness' description of the robber, factors his expert on eyewitness identification testified would affect the reliability of an identification. He notes the absence of testimony that he matched the witness' description of the robber at the time of the offenses, and that there was no testimony that he possessed a firearm or clothes matching those described by the witnesses other than at the time of the robbery. He also contends Linton's testimony concerning his pursuit of the robber was unreliable.
Such factual assertions and possible inferences were appropriately made at trial and were necessarily rejected by the jury in favor of other reasonable inferences. Defendant was identified as the robber with varying degrees of certainty by three different witnesses. These identifications of defendant constitute substantial evidence that defendant committed the robbery of Julie Feldt. However, defendant correctly complains that he should not have been convicted of committing two separate robberies that evening.
In one seamless ill-conceived effort, defendant walked up to the counter at Lyon's Restaurant, threatened waitress Julie Feldt with a handgun, thereby convincing her to hand over her tips lying on the counter and Lyon's operating money from the cash drawer. This was an indivisible transaction involving a single victim who was forced to relinquish possession of two separately owned amounts of money at the same place and at the same time.
Based on the separate ownership of the two amounts of money taken, defendant was charged with and convicted of two counts of robbery. The court stayed the punishment on the count pertaining to the waitress' tips in recognition of the proscription against separate punishment when the punished acts are indivisible, i.e., when the secondary offense facilitated or was incidental to the primary offense, or when the secondary offense was committed without a separate intent or objective.4 (People v. Avalos (1996) 47 Cal.App.4th 1569,1583, 55 Cal.Rptr.2d 450; People v. Latimer (1993) 5 Cal.4th 1203, 1208, 23 Cal.Rptr.2d 144, 858 P.2d 611.) Nonetheless, the court erred in sentencing defendant for committing two robberies when only one occurred.
"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 § 211.) It consists of larceny plus two aggravating circumstances: (1) When the property is taken from the person or presence of another, and (2) when the taking is accomplished by the use of force or threatened force. (4 Wharton, Crim. Law (15th ed. 1996) Robbery, § 454, pp. 2-3; 2 Witkin & Epstein, Cal.Crim. Law (2d ed. 1988) Crimes Against Property, § 635, p. 715.)
Since the central element of robbery is force or fear, a defendant may be convicted of a separate robbery for each victim of such force or fear, even if the victims are in joint possession of the property taken. (People v. Ramos (1982) 30 Cal.3d 553, 587-589, 180 Cal.Rptr. 266, 639 P.2d 908, revd. on other grounds in California v. Ramos (1983) 463 U.S. 992, 103 S.Ct. 3446, 77 L.Ed.2d 1171; 2 Witkin & Epstein, Cal.Crim. Law (2d ed. 1988) Crimes Against Property, § 640, p. 722.) Here, in contrast, the defendant committed only one larceny against a single victim involving one threatened application of force and occurring at the same place and time. In these...
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