People v. Williams

• Decision Date: 12 October 2011
• Docket Number: No. B222845.,B222845.
• Citation: 197 Cal.App.4th 339,11 Cal. Daily Op. Serv. 8609,127 Cal.Rptr.3d 889
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Demetrius Lamont WILLIAMS, Defendant and Appellant.

127 Cal.Rptr.3d 889

11 Cal. Daily Op. Serv. 8609

2011 Daily Journal D.A.R. 10,343Review GrantedPreviously published at: 197 Cal.App.4th 339

The PEOPLE, Plaintiff and Respondent,

v.Demetrius Lamont WILLIAMS, Defendant and Appellant.

No. B222845.

Court of Appeal, Second District, Division 7, California.

July 11, 2011.

Review Granted Oct. 12, 2011.

Background: Defendant was convicted in the Superior Court, Los Angeles County, No. MA046168, Bernie C. LaForteza, J., of four counts of robbery, three counts of forgery, and one count each of burglary, theft and fraudulent use of an access card. Defendant appealed.

Holdings: The Court of Appeal, Perluss, P.J., held that:

(1) defendant could not be convicted of forgery absent evidence defendant modified or altered access card account information or authorized or consented to such alteration or modification;

(2) court was required to stay sentence for burglary conviction;

(3) felonious acquisition of gift cards through theft by false pretenses became an Estes robbery;

(4) court could order consecutive, rather than concurrent, sentences;

(5) defendant admitted his prior robbery conviction for purposes of the Three Strikes law; and

(6) defendant forfeited argument that court's failure to advise him of the penal consequences rendered his admission involuntary and not intelligent.

Affirmed in part, modified in part, reversed in part.

Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.

PERLUSS, P.J.

Demetrius Lamont Williams appeals from the judgment entered following his conviction by a jury on four counts of robbery, three counts of forgery, and one count each of burglary, theft and fraudulent use of an access card. Williams's primary contention is that the use of force when fleeing from a retail store following the successful acquisition of personal property through a theft by false pretenses, as opposed to theft by larceny or theft by trick, does not constitute robbery. The People concede Williams's forgery convictions are not supported by sufficient evidence and the trial court should have stayed imposition of the sentence for burglary pursuant to Penal Code section 654,¹ but dispute Williams's other challenges to his convictions and sentencing. We reverse the forgery convictions, modify the remaining judgment to stay imposition of the burglary sentence and affirm in all other respects.

FACTS AND PROCEDURAL BACKGROUND

1. The Charges

Williams was charged by information with second degree robbery (§ 211) (counts 1–4), second degree burglary (§ 459) (count 5), fraudulent use of an access card or account information (§ 484g) (count 6), grand theft (§ 487, subd. (a)) (count 7) and forgery (§ 484i, subd. (b)) (counts 8–10). The information specially alleged Williams had suffered one prior serious or violent felony conviction (robbery) within the meaning of the “Three Strikes” law (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)) and section 667, subdivision (a)(1), and had served five separate prison terms for prior felony convictions (§ 667.5, subd. (b)). Williams pleaded not guilty and denied the special allegations.

2. Summary of the Evidence Presented at Trial

a. The People's evidence

Williams went to a Wal–Mart store in Palmdale on July 4, 2009. Michael Ortiz, a cashier who had been working at the store for about six months, testified he was covering register 22 during Jackie Pena's break when Williams attempted to purchase four gift cards in two separate transactions.² During the first transaction, Williams requested the value of the gift card he was purchasing be set at $200 and paid for it with a “gold looking card” that he swiped through the card processing machine.³ After the transaction was approved, Williams attempted to purchase three more gift cards. As Ortiz was processing the transaction, Pena returned and noticed Williams was using what appeared to be a credit card to purchase the gift cards. Pena informed Ortiz and Williams that gift cards could only be purchased with a debit card or cash. Williams returned the three cards, and Ortiz voided the transaction. Shortly thereafter Ortiz told a store manager he had permitted a gift card to be purchased with a credit card because he did not know Wal–Mart had a policy prohibiting it.

Scotty Southwell, a plain-clothes loss prevention officer at the Wal–Mart store, testified he was in the loss prevention office, which has more than 500 surveillance monitors, when he was notified suspicious transactions were taking place. Southwell was given a description of Williams and determined he was at register one. Southwell went to a bench across from register one and observed Williams purchase a gift card with a red or orange colored card.

After Williams finished the transaction, Southwell, now with loss prevention officer Vyron Harris, approached Williams. Southwell identified himself and asked Williams for the receipt and card used to pay for the transaction he had just completed. Williams handed Southwell a receipt and a red or orange colored card. The last four digits of the card did not match the four digits of the card on the receipt.⁴ Williams apologized, claiming he had given Southwell the wrong card, and gave him two gold cards. The last four digits of those cards also did not match the numbers on the receipt.

Williams began walking toward an exit door. Southwell, followed by Harris, asked Williams why the card numbers did not match those on the receipt. Williams handed Southwell another card; the numbers again did not match. Southwell then asked Williams to come to the loss prevention office for further investigation. Williams kept walking. A few feet from the exit door Williams pushed Southwell, dropped some receipts and tried to run. Southwell, Harris and two additional loss prevention officers attempted to detain Williams, who struggled to break free. After Williams was wrestled to the ground, he moved his left arm toward his waistband and said he was reaching for a gun. Williams was finally restrained and handcuffed.

Much of the incident was recorded on the store's surveillance cameras. The surveillance tapes of Williams's attempted escape and ultimate capture were shown to the jury.

Los Angeles County Sheriff Deputy Erich Doepking, who at the time of trial had two years of experience investigating financial crimes, testified the cards recovered from Williams had been altered so the account number on the face of the cards did not match the account information on the magnetic strips.

b. The defense's evidence

Williams, testifying on his own behalf, admitted he had previously been convicted of nine felonies and one misdemeanor. Williams contended he had gone to the Wal–Mart store on July 4, 2009 with a friend who had given him two gift cards with a combined limit of $300 as payment for catering services Williams had provided. Williams said he tried to use these cards to purchase several small denominational gift cards from the cashiers at registers five and 22. Williams denied going to register one, claiming he had gone to the service manager's area to get approval for the purchase of the gift cards when Southwell approached him.

Williams further testified he began walking toward the exit after he had given Southwell all the cards and receipts in his possession, but Southwell kept questioning him. Williams was nervous in part because he had smoked marijuana and consumed alcohol that morning and had used methamphetamine the day before. Williams denied intentionally pushing Southwell, contending Southwell had cut him off just as Williams was trying to open the exit door. Williams also denied struggling with the loss prevention officers or threatening that he had a gun.

3. The Jury Instructions, Verdict and Sentencing

The trial court instructed the jury, in part, on the crimes of robbery (CALCRIM Nos. 1600 and 3261) ⁵ and grand theft by false pretense (CALCRIM No. 1804).⁶ Williams did not object to the instructions.

The jury found Williams guilty of all the crimes charged. In a bifurcated proceeding Williams waived his right to trial and admitted the prior robbery conviction allegation. The People dismissed the prior prison term allegations.

The People submitted a sentencing memorandum urging the court to impose an aggregate state prison term of 23 years eight months, including the upper term for the first robbery conviction and consecutive terms for the remaining three robbery convictions. The People argued the upper term was warranted because Williams had been an inveterate criminal with six criminal convictions in the 1980's (plus an escape), six convictions in the 1990's (plus a parole violation), and a conviction in 2008, and the crimes had escalated in seriousness. (Nine of the 12 convictions are felonies, and five are for theft or robbery offenses.) The People also argued the crime showed a degree of sophistication and planning in part because Williams had tested each cashier with one purchase before attempting a second one.

At the outset of the sentencing hearing the court denied Williams's motion to dismiss his prior felony strike conviction on the grounds of his “extremely long criminal history” and “the dangerousness” of the case. The court explained, “[The case] involved four victims ... and that makes it even more dangerous. If it was just one person, so be it but the person who is challenging four people, to me, indicates a serious potentially dangerous situation.”

The court then announced its tentative decision to sentence Williams to the term recommended by the People. The court found the aggravating factors for selecting the upper term for count 1 were “the crime involved great violence, great bodily harm or threat of...