People v. Miramon

• Decision Date: 23 February 1983
• Docket Number: Cr. 40422
• Citation: 140 Cal.App.3d 118,189 Cal.Rptr. 432
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Armando Luna MIRAMON, Defendant and Appellant.

Page 432

189 Cal.Rptr. 432

140 Cal.App.3d 118

PEOPLE of the State of California, Plaintiff and Respondent, v. Armando Luna MIRAMON, Defendant and Appellant.

Cr. 40422.

Court of Appeal, Second District, Division 2, California.

Feb. 23, 1983.

Hearing Denied May 4, 1983.

Quin Denvir, State Public Defender, William Blum and Russell I. Lynn, Deputy State Public Defenders, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., S. Clark Moore, Asst. Atty. Gen., Marc E. Turchin and Carol Slater Frederick, Deputy Attys. Gen., for plaintiff and respondent.

BEACH, Associate Justice.

A jury found appellant guilty of burglary (Pen.Code, § 459) and robbery (Pen.Code, § 211). The jury also found to be true the allegations that appellant had used a knife in committing the two offenses (Pen.Code, § 12022, subd. (b)) and that he had served a prior prison term for a felony conviction (Pen.Code, § 667.5, subd. (b)). The trial court sentenced appellant to state prison.

Appellant appeals, claiming (1) improper instruction of the jury on the offense of robbery, (2) insufficient evidence to sustain the robbery conviction, (3) prosecutorial misconduct, and (4) improper sentence enhancement. We affirm.

FACTS:

At approximately 1:30 p.m. on September 16, 1980, Daniel Sherman unlocked the front door of his second-floor apartment at 1518 10th Street in Santa Monica. As he was about to enter, he noticed some marring on the weather-stripping of the door. Inside the apartment, the hall closet, which he always kept closed, was open. Alerted by noises coming from the bedroom, Sherman looked into the bedroom. He observed two Mexican individuals, a man and a woman, standing over his stereo, which was laid out on the floor. The man was appellant. Appellant had a knife in his hand. Sherman ran out of the apartment, yelling, "Call the police."

Sherman ran down the stairs and entered the first-floor apartment where his mother, sister and grandmother were living and which happened to be open at the time. He told them there was somebody in his apartment and to call the police. He then saw appellant and his female companion run down the stairs. The woman pulled a crowbar from her purse. She and appellant, followed by Sherman, who was soon joined by Ron Cheney, ran towards the 9th Street alley. At one point during the chase, appellant turned around, holding a knife in such a manner as if ready to use it. Sherman grabbed a bicycle because he feared that appellant would attack him with the knife. Others, including Sherman's brother Jim, joined in the chase.

Eventually, the pursuers caught appellant. In the ensuing struggle, Cheney removed the knife from appellant's hand, whereupon appellant pulled another knife out of his pocket. Sherman recognized the knife as one of the knives he kept in his hall closet. After taking the knife from appellant, the Sherman brothers and Cheney slit appellant's pockets open to make sure he had no other weapons on him. They found a gold chain, a watch, a silver bracelet, rings and more knives, all of which had been taken from the Sherman apartment. Shortly thereafter, the police arrived and took appellant and the woman into custody. Daniel Sherman went back to his apartment, accompanied by a police officer. Items which he usually kept in his bedroom closet were all over the floor. His pillowcase was stuffed with all his camera equipment and his clock radio. On the bed were his typewriter and tapedeck, while his stereo receiver was on the floor. All of these items had been taken from their proper places. The television in the living room was unplugged, had a cord wrapped around it and the antenna disconnected, whereas it had been hooked up and in operating condition when Sherman left his apartment.

Fingerprints lifted from the apartment matched those of appellant and his female companion.

DISCUSSION:

1. The Giving of CALJIC No. 9.10

Appellant contends the trial court improperly instructed the jury on the elements of robbery. Specifically, he complains that CALJIC No. 9.10, given as modified, was an inaccurate statement of the law. ¹ Appellant objects to the addition of the phrase "the retention of property or the attempt to escape with such property from scene of commission" to CALJIC No. 9.10.

"In this state, it is settled that a robbery is not completed at the moment the robber obtains possession of the stolen property and that the crime of robbery includes the element of asportation, the robber's escape with the loot being considered as important in the commission of the crime as gaining possession of the property. [Citations.] [p] Accordingly, if 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. Anderson (1966) 64 Cal.2d 633, 638, 51 Cal.Rptr. 238, 414 P.2d 366.)

The challenged portion of the instruction given here conforms to the language of Anderson. Appellant, however, maintains that the instruction is distinguishable from Anderson because it makes no reference to the "immediate presence" requirement. That requirement did in fact appear as the second requisite element in the instruction.

2. Sufficiency of the Evidence to Support the Robbery Conviction

Appellant argues there was no evidence to show that the property belonging to Sherman which was later found on appellant's person had been taken from Daniel Sherman's immediate presence. Appellant points out that when Sherman surprised him in the apartment, he did not observe appellant take any property, but only saw him stand over a stereo which was lying on the floor.

"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.) The "taking" of property from the victim's immediate presence and possession is not necessarily completed the moment the thief places his hands upon it. The offense of robbery also includes the element of asportation and appropriation of another's property. (People v. Perhab (1949) 92 Cal.App.2d 430, 438, 206 P.2d 1133.)

The "immediate presence" requirement is generally liberally construed. "Presence" depends on the circumstances of each case; it implies an area with no metes and bounds. (People v. Risenhoover (1968) 70 Cal.2d 39, 50, 73 Cal.Rptr. 533, 447 P.2d 925.) "Immediate" has been defined as being near at hand, not far apart or distant. (Ibid.) The act of robbery is deemed to have occurred in the victim's presence as long as the victim perceived any overt act connected with the commission of the offense. (People v. Wiley (1976) 57 Cal.App.3d 149, 160-161, 129 Cal.Rptr. 13, overruled on another point in People v. Wheeler (1978) 22 Cal.3d 258, 286, 148 Cal.Rptr. 890, 583 P.2d 748; People v. Lavender (1934) 137 Cal.App. 582, 592, 31 P.2d 439.)

In People v. Lavender, the appellant induced a hotel clerk to show him a room, tied him up in there, and then went to another room where he took money from the cash drawer. In upholding the robbery conviction, the Lavender court stated: "At least as early as the time when the clerk was induced to leave the hotel office for the purpose of 'showing' the room to defendant and his companion the crime of robbery was commenced; it was an overt act connected with the commission of the offense, at which time the clerk was 'immediately' present. The trick or device by which the physical presence of the clerk was detached from the property under his protection and control should not avail defendant in his claim that the property was not taken from the 'immediate presence' of the victim." (Id. at p. 591, 31 P.2d 439.) At bench, appellant's pulling of a knife when the victim surprised him in his apartment was an overt act connected with the commission of the offense, and perpetrated in the victim's "immediate presence." Upon seeing the knife in appellant's hand, the victim fled from the apartment, shortly thereafter followed by appellant who fled with jewelry and knives belonging to the victim. Assisted by others, the victim caught appellant minutes later.

We conclude that substantial evidence supports the conviction, that is, under the circumstances a reasonable jury could find beyond a reasonable doubt that the robbery was committed in the immediate presence of the victim. (People v. Johnson (1980) 26 Cal.3d 557, 579, 162 Cal.Rptr. 431, 606 P.2d 738.)

3. Alleged Prejudicial Prosecutorial Misconduct

Appellant assigns as prejudicial misconduct a number of remarks the prosecutor made during his closing argument to the jury. At trial, appellant failed to object to any of these remarks.

"[T]he initial question to be decided in all cases in which a defendant complains of prosecutorial misconduct for the first time on appeal is whether a timely objection and admonition would have cured the harm. If it would, the contention must be rejected [citation]; if it would not, the court must then and only then reach the issue whether on the whole record the harm resulted in a miscarriage of justice within the meaning of the Constitution. [Citation.]" (People v. Green (1980) 27 Cal.3d 1, 34, 164 Cal.Rptr. 1, 609 P.2d 468.)

The challenged remarks were made in the following context:

"I'd like to comment just briefly on the defendant's activities in court. And I am not commenting on these for purposes of showing that, in fact, he is a guilty person. That has absolutely nothing to do with the guilt of the defendant, and the court will so instruct you. [p] However, I do want to comment on it only for the purposes of telling you my feelings about it. [p] And my feelings are that it should not influence in any way during the course of your deliberations. [p] On the surface, I suggest that his activities here in this court...