The People v. Flynn
| Decision Date | 19 January 2000 |
| Citation | 91 Cal.Rptr.2d 902,77 Cal.App.4th 766 |
| Court | California Court of Appeals Court of Appeals |
| Parties | (Cal.App. 2 Dist. 2000) THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER FLYNN, Defendant and Appellant. B123817 Filed |
APPEAL from a judgment of the Superior Court of Los Angeles County. Curtis B. Rappe, Judge. Affirmed as modified.
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.
CERTIFIED FOR PARTIAL PUBLICATION*
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.
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.
Viewed in a light most favorable to the judgment (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Marshall (1997) 15 Cal. 4th 1, 34), 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.
The victim identified the defendant by photograph when she first reported the crime ten days after it happened. She delayed the report out of fear. The victim recanted her identification of defendant at the police station in January of 1998, after the victim arrived there in the company of the woman who returned her gun. The victim did not testify at the preliminary examination in late January. The weekend after the preliminary hearing, the case detective relocated the victim because she was scared. She testified and reluctantly identified the defendant at trial on April 16. Earlier on April 16, she testified at a pretrial hearing that she was uncertain of the identification because she refused to look at the defendant and she was scared.
The victim had seen defendant in his car on many occasions before the current incident. At trial, she described the perpetrator as wearing a visor and a "Jheri-curl" hairstyle of unknown length but not to his shoulders.
Los Angeles Police Department Detective Darryl Norwood, a gang investigator assigned to this case, was cross-examined about a prior contact with defendant which resulted in defendant filing a formal complaint against the detective. Cross-examination also covered the detective's motivation for causing the jail to place defendant in special custody and monitor his telephone calls to prevent threatening of the victim.
The defense at trial was mistaken identity. In addition to cross-examination of the victim and investigating detective regarding discrepancies in the victim's description and other statements, friends and relatives of the defendant testified the victim had recanted her identification to them, and willingly recanted to law enforcement. One witness claimed the victim had stated the man who took her property had returned it to her. Defendant's mother-in-law testified that there was a second vehicle identical to defendant's in the neighborhood.
Two videotapes taken by an acquaintance of defendant on approximately September 2 and October 8, 1997 showed defendant with a short, natural hairstyle, not a Jheri curl.
On April 17, 1998, after the victim had been relocated to a safe house with no telephone, Detective Norwood contacted Sergeant Patrick Weeks of the sheriff's custody division regarding the defendant. Sergeant Weeks relayed information to another deputy, who prepared a report indicating that defendant had been harassing the victim by telephone in the last week, and that further intimidation was feared. As a result, defendant was placed in administrative segregation with suspension of access to the telephone and other privileges. Sergeant Weeks testified that he had the impression defendant had been making harassing calls, though he did not specifically recall Detective Norwood saying that. At the time of the new trial motion hearing, Sergeant Weeks did not believe the incident report accurately reflected Detective Norwood's call to him. He did recall that Detective Norwood was concerned that intimidation of the witness might occur during the upcoming trial. Detective Norwood testified that he made the call to the custody division after the victim told him someone had cut the chain link fence at the safe house. Detective Norwood told Sergeant Weeks he was concerned that the defendant might use the telephone to generate intimidation of the victim by other people.
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.)
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; but see People v. Lescallett (1981) 123 Cal.App.3d 487, 490-492.) 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.) "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 []; People v. Dominguez (1992) 11 Cal.App.4th 1342, 1346-1349 []; People v. Hays (1983) 147 Cal.App.3d 534, 541-542 [].)
Most robberies involve actual or threatened force,...
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