19 Cal.App.5th 594
Cal. Ct. App.2018Background
- Defendants Karre Mullins and Arturo Russell were convicted by a jury of multiple robberies at Bank of America ATMs (Mullins also convicted of conspiracy to commit petty theft). Sentences: Russell — total determinate 6 years 8 months; Mullins — total determinate 5 years.
- The robberies involved victims who had inserted ATM cards and PINs, received cards back, and either fled or were physically pushed/blocked before they could complete transactions or retrieve/retain dispensed cash.
- Victims were smaller and older than defendants; defendants positioned themselves at adjacent ATMs, observed PIN entries, and then intervened to take funds dispensed or prevent victims from finishing transactions.
- Mullins was observed with large sums of cash after prior similar ATM incidents; Mullins and an unidentified male lingered at mall ATMs in a similar pattern and were escorted out by security.
- At sentencing the trial court treated Mullins’s conspiracy (a wobbler) as a felony; appellate court affirmed all convictions but ordered correction of Russell’s minute order and abstract of judgment to match the oral sentence.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for robbery (possession/immediate presence/force) | Victims had constructive possession and immediate presence over ATM funds; defendants used force or intimidation to take funds. | Victims never had possession (bank owned funds); money not in immediate presence; insufficient force/fear. | Evidence sufficient: constructive possession, immediate presence, and force/fear established. |
| Aiding and abetting (Mullins) | Mullins aided Russell by facilitating scheme and intimidating victims; knowledge and intent can be inferred. | Mullins did not pass PINs and lacked intent to facilitate robbery. | Sufficient evidence to infer knowledge and intent; aiding and abetting upheld. |
| Conspiracy (Mullins) | Pattern of conduct (lingering, returning to ATMs) supports agreement and overt acts to commit theft. | Mere suggestion/coincidence insufficient to prove agreement. | Substantial evidence supported conspiracy conviction. |
| Identity-theft statute precludes robbery convictions | N/A (People opposed exclusivity) | Section 530.5 is a specific statute; Williamson rule means identity theft should be sole charge. | Williamson inapplicable: robbery requires force/fear absent from identity-theft statute; robbery convictions stand. |
| Jury instruction argumentative (added language on force & immediate presence) | Additions were correct statements of law and permissible guidance. | Added language was argumentative and prejudicial. | Additions were nonargumentative (or harmless if assumed otherwise); no reversal. |
| Sentencing: misdemeanor vs felony for conspiracy (Mullins) | Court properly exercised discretion considering seriousness of conspiracy. | Court abused discretion by not reducing wobbler to misdemeanor. | No abuse of discretion; felony sentencing appropriate. |
| Clerical sentencing errors (Russell) | N/A | Minute order and abstract did not match oral sentence. | Court ordered correction of minute order and abstract to reflect oral pronouncement. |
Key Cases Cited
- People v. Steele, 27 Cal.4th 1230 (2002) (standard for sufficiency review)
- People v. Scott, 45 Cal.4th 743 (2009) (possession for robbery can be constructive)
- People v. Abilez, 41 Cal.4th 472 (2007) (immediate presence defined by victim's ability to retain property absent force/fear)
- People v. Webster, 54 Cal.3d 411 (1991) (zone of immediate presence includes area where victim could exercise physical control)
- People v. Hayes, 52 Cal.3d 577 (1990) (definition of immediate presence and reach/control test)
- People v. Prettyman, 14 Cal.4th 248 (1996) (aiding and abetting elements and requisite intent)
- People v. Murphy, 52 Cal.4th 81 (2011) (application of Williamson rule re: special vs general statutes)
- People v. Santana, 56 Cal.4th 999 (2013) (argumentative instruction standard and harmless-error framework)
- People v. Mitchell, 26 Cal.4th 181 (2001) (oral pronouncement controls over minute order/abstract)