People v. Robins
| Decision Date | 21 January 2020 |
| Docket Number | G057291 |
| Citation | 257 Cal.Rptr.3d 663,44 Cal.App.5th 413 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Wesley John ROBINS, Defendant and Appellant. |
Aaron J. Schechter, Los Angeles, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Senior Assistant Attorney General, Kenneth C. Byrne and Gregory B. Wagner, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Wesley John Robins was alleged to have aided and abetted in what started out as a shoplifting, but turned into an Estes robbery,1 followed by recklessly evading authorities. He was convicted of attempted second-degree robbery ( Pen. Code, §§ 664, subd. (a), 211, 212.5, subd (c) ; count 1)2 and felony reckless evading ( Veh. Code, § 2800.2 ; count 2). Defendant admitted a prior strike (§§ 667, subds. (d) & (e), 1170.12, subds. (b) & (c)(1)), a prior prison term (§ 667.5, subd. (b)), and a prior serious felony (§ 667, subd. (a)(1)). The court sentenced defendant to 32 months in prison on count 1, which was double the low term because of the prior strike. It sentenced defendant to a concurrent 32 months in prison on count 2, which was also double the low term. The court imposed but immediately struck a five-year enhancement for the prior serious felony and a one-year enhancement for the prior prison term. The result was a total prison sentence of 32 months.
Defendant raises three issues on appeal.
First, defendant contends he cannot be convicted of an attempted Estes robbery because there is no such crime. The gist of defendant’s argument is that the concept of an attempted Estes robbery is incoherent. When someone takes clothes from a retail store and uses force to get away, it does not matter if a store employee successfully retrieves the property. The instant force is used, the Estes robbery is complete. There is no possibility of a mere attempt, according to defendant. While this is a clever argument, we ultimately reject it for reasons we explain below.
Second, and third, both the attempted robbery conviction and the reckless evading conviction were on the theory that these were natural and probable consequences of aiding and abetting the theft. Defendant was neither the thief, nor the getaway driver. Defendant contends there was insufficient evidence to support the theory in either case. We disagree and affirm the convictions.
On a December evening in 2017, a few days before Christmas, a loss prevention officer (LPO) for a department store in the Brea Mall observed codefendant Kristin Linn Benson behaving suspiciously.3 Namely, Benson was haphazardly accumulating a large quantity of clothing, apparently without regard to size or price. Benson began working her way toward the exit, talking on a cell phone, and continuing to collect merchandise in the same manner.
The LPO exited the store ahead of Benson and noticed a van parked near the entrance, with an Arizona license plate, flashing its emergency lights. The LPO saw the driver was on his cell phone and took a photo of the van’s license plate. The LPO continued watching Benson inside the store through the glass doors. The LPO saw Benson exit the store, arms full of merchandise, without paying.
The LPO confronted Benson outside the store, identified herself verbally and by presenting her loss prevention badge. Benson became aggressive and swung the pile of merchandise at the LPO, pushing her back a few steps. The LPO commanded Benson to let go of the merchandise, but Benson did not comply, so the LPO pushed down on the clothing, causing most of it to slip out of Benson’s grasp and onto the ground. The LPO then forcibly opened Benson’s arms to cause the remaining merchandise to fall.
Benson then pushed the LPO and made a break for the van. The LPO grabbed Benson by her arm and jacket in an attempt to apprehend her, prompting Benson to scream and yell at the LPO. About the time the LPO managed to detain Benson on the ground, two men emerged from the van with hands clenched into fists, assuming a fighting stance (the men were defendant and codefendant Brandyn Michael Scotto). One of the men told the LPO to let Benson go. Fearful of a physical confrontation, the LPO complied. The same man yelled, "Let’s go," and the three climbed into the van and drove away. The LPO immediately called the police, then collected the merchandise on the ground. The value of the merchandise totaled about $765.
A Brea Police officer was on patrol near the Brea Mall at the time. After details of the robbery were broadcasted, he noticed a van fitting the description of the getaway vehicle. He activated his police lights and siren to initiate a traffic stop, but the van accelerated away. It then turned into a shopping center where it raced through the parking lot at speeds between 30 and 45 miles per hour, eventually making its way behind a retail store. The officer pursued the van, which then turned down an alleyway back toward the front of the store. The exit from the alleyway was blocked by a car, so the van turned into a brick wall, damaging the wall enough for the van to break through and onto a sidewalk. It drove for approximately 30 feet on the sidewalk, then back onto the parking lot, at speeds of 30 to 35 miles per hour. There were pedestrians in the area, and at least one pedestrian suffered a minor injury after attempting to jump out of the van’s way.
The van eventually lost control, slammed into parked cars, and came to a halt. The driver, codefendant Scotto, jumped out of the van and made a run for it, but was quickly apprehended. Codefendant Benson was found in the front passenger seat, and defendant was in the rear cargo area. The cargo area had no seats or seatbelts.
The trial proceeded on the charge of attempted robbery, even though the evidence suggested a completed robbery, because defendant had only been held to answer at the preliminary hearing on the charge of attempt.4 The LPO did not testify at the preliminary hearing. At its conclusion, the evidence showed that Benson had abandoned some of the merchandise prior to any physical confrontation with the LPO, which, in the magistrate’s view, demonstrated only attempted robbery. Accordingly, even though the complaint had charged robbery, the court held defendant to answer on a charge of attempted robbery.
Defendant raises three issues on appeal. He contends there is no such thing as an attempted Estes robbery, and thus his conviction on count 1 must be reversed. He also contends there was no substantial evidence to support the jury’s conclusion that he aided and abetted either the attempted robbery or the reckless evasion afterward. We disagree on all three fronts.
Defendant first contends that the concept of an attempted Estes robbery is incoherent and cannot logically exist. And because the crime does not exist, the argument goes, defendant cannot be convicted of it. (See People v. Bean (1989) 213 Cal.App.3d 639, 642, 261 Cal.Rptr. 784 ]; see also Adams v. Murphy (5th Cir. 1981) 653 F.2d 224, 225 [].) To understand defendant’s argument, we begin with the basic principles of robbery.
"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.) It includes two phases: acquiring the property, and carrying it away (in the parlance of legalese: caption and asportation). ( People v. Gomez (2008) 43 Cal.4th 249, 255, 74 Cal.Rptr.3d 123, 179 P.3d 917 ; People v. Lopez (2003) 31 Cal.4th 1051, 1058-1059, 6 Cal.Rptr.3d 432, 79 P.3d 548.) What sets robbery apart from simple theft is the use of force or fear and taking from the victim’s immediate presence. "Theft by larceny may be committed without force or the threat of violence and may be completed without the victim ever being present."
( Gomez , at p. 254, 74 Cal.Rptr.3d 123, 179 P.3d 917.) In the prototypical case, a person commits robbery by assaulting a person and then stealing the person’s property. The force or fear is used to acquire the property.
What sets an Estes robbery apart from a standard robbery is that force or fear is used not in the acquisition of the property, but in the escape.5 ( People v. Estes, supra , 147 Cal.App.3d at p. 28, 194 Cal.Rptr. 909.) The typical case starts with a shoplifting and turns into a robbery when the thief is confronted by a LPO, and the thief assaults the LPO in an attempt to get away.
A key premise of defendant’s argument is that, to constitute robbery, the robber need only possess the property briefly—as one court phrased it, "but a moment." ( People v. Pruitt (1969) 269 Cal.App.2d 501, 506, 75 Cal.Rptr. 125 ; see People v. Pham (1993) 15 Cal.App.4th 61, 67, 18 Cal.Rptr.2d 636 ["however temporarily"].) As another court explained, " " ( People v. Nazzaro (1963) 223 Cal.App.2d 375, 381, 35 Cal.Rptr. 879.)
We now have all of the building blocks for defendant’s argument. The chronology of an Estes robbery is that the thief will necessarily have possessed the property, however temporarily, before using force. If the thief uses force while in possession of the property, the Estes robbery is complete the moment...
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