THE PEOPLE, Plaintiff and Respondent, v. WESLEY JOHN ROBINS, Defendant and Appellant.
G057291 (Super. Ct. No. 17NF3567)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
Filed 1/21/20
CERTIFIED FOR PUBLICATION
Appeal from a judgment of the Superior Court of Orange County, Nancy E. Zeltzer, Judge. Affirmed.
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.
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Defеndant Wesley John Robins was alleged to have aided and abetted in what started out as a shoplifting, but turned into an Estes robbery,1
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.
FACTS
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 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 totalеd 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 speеds 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.
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.
DISCUSSION
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 thеre 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.
Attempted Estes Robbery
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 [finding a defendant cannot plead guilty to the nonexistent crime “attempted petty theft with a prior conviction,” and stating, “Defendant‘s claim is refreshingly simple: ‘[Defendant] was convicted of a non-crime.’ This claim has merit“]; see also Adams v. Murphy (5th Cir. 1981) 653 F.2d 224, 225 [“Nowhere in this country
can any man be condemned for a nonexistent crime“].) 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.” (
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.) 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; see People v. Pham (1993) 15 Cal.App.4th 61, 67 [“however temporarily“].) As another court explained, “‘[I]n order to сonstitute a carrying away, the property need not be removed from the premises of the owner. Any removal of the article from the place where it was kept by the owner, whereby the thief obtains possession and control of the property at least for a fraction of
time is sufficient to constitute the element of carrying away.‘” (People v. Nazzaro (1963) 223 Cal.App.2d 375, 381.)
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 force or fear is used: there has been a taking coupled with force. This is true even if the thief is ultimately unsuccessful in escaping with the goods. If, on the other hand, the thief abandons the property or the property is confiscated before using force, then there is no robbery at all. That is simply a theft plus an assault. As a result, defendant concludes, there is no such thing as an attempted Estes robbery.
As it happens, there is at least one case that lends support to defendant‘s argument. In People v. Pham, supra, 15 Cal.App.4th 61, the victims caught the defendant in the act of taking items from their car; the defendant fled, and thе victims gave chase. About the time the victims caught up, the defendant threw the stolen goods on the ground and attempted to fight off the victims. The victims ultimately subdued the thief. (Id. at p. 64.) On appeal, the defendant argued the court erred in failing to instruct the jury on the lesser included offense of attempted robbery. (Id. at p. 67.) The Court of Appeal
without the use of force or the threat thereof and thereafter such force or threat is employed to prevent the оwner from recovering the property or to facilitate an escape, the offense committed simply could not be an attempted robbery. Thus, defendant was not entitled to an instruction on attempted robbery since such a theory was contrary to the evidence.” (Id. at p. 68.)
The key to unraveling this apparent riddle is a simple concept: that of a successful attempt. There is nothing logically incoherent about thе idea of a successful attempt. Indeed, in California this concept is established by statute.
Defendant responds that
Those crimes, however, entail true logical contradictions. An assault is already defined in terms of an attempt: “An assаult is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” (
of which is an attempt in itself.”6 (In re James M., supra, 9 Cal.3d at p. 522.) The logical conundrums grow even worse with the concepts of attempted involuntary manslaughter and attempted reckless causing of a fire. A thing attempted must be intended. Yet involuntary manslaughter by its nature is unintended. “If there were such a crime, it would necessarily be based on the internally contradictory premise that one can intend to commit an unintentiоnal killing.” (People v. Johnson, supra, 51 Cal.App.4th at p. 1332.) The same is true of an attempted reckless causing of a fire: “To have that intent, he must (1) intend to cause a fire and (2) intend to unintentionally cause burning of property. . . . [I]t is a logical impossibility to intend an unintentional result. We conclude there can be no attempt to commit a violation of
No such logical contradiction is entailed in the concept of an attempted Estes robbery. Defendant‘s only argument on that front is that an attempt is incoherent because an attempt is necessarily a completed robbery. But we have already shown that a successful attempt is a rational concept that is well established in the Penal Code. Thus, even if every attempted Estes robbery is necessarily a completed crime, the crime of attempt still exists and may be punished under
adopt a rule thаt would allow a defendant to go unpunished because he committed the greater offense and not the lesser.
So, what do we make of the comments in Pham? The Pham court was correct as far as it goes. The only issue in Pham was whether the defendant was entitled to a jury instruction on the lesser crime of attempted Estes robbery. (People v. Pham, supra, 15 Cal.App.4th at p. 67.) But if every attempt is a completed robbery, then there were no set of facts in which defendant could be liable for attempted robbery and not a completed robbery. Thus, if the jury were to find the defendant guilty, it could return but one verdict: conviction for the greater offense of robbery. The evidence did not
Natural and Probable Consequences
Next, defendant contends that the evidence does not support the conviction for aiding and abetting an attempted robbery. The People proceeded on the theory that a natural and probable consequence of aiding and abetting in the theft was that an Estes robbery would be attempted. We conclude substantial evidence suрports that theory.
“[A]n aider and abettor‘s liability for criminal conduct is of two kinds. First, an aider and abettor with the necessary mental state is guilty of the intended crime. Second, under the natural and probable consequences doctrine, an aider and abettor is guilty not only of the intended crime, but also ‘for any other offense that was a “natural and probable consequence” of the crime aided and аbetted.‘” (People v. McCoy (2001) 25 Cal.4th 1111, 1117.) “‘The latter question is not whether the aider and abettor actually foresaw the additional crime, but whether, judged objectively, it was reasonably foreseeable. [Citations.] Liability under the natural and probable consequences doctrine ‘is measured by whether a reasonable person in the defendant‘s position would have or should have known that the charged offense was a reasonably foreseeable сonsequence of the act aided and abetted.‘” (People v. Medina (2009) 46 Cal.4th 913, 920.) “[T]o be reasonably foreseeable ‘[t]he consequence need not have been a strong probability; a possible consequence which might reasonably have been contemplated is enough. . . . [Citation.] [Citation.] A reasonably foreseeable consequence is to be evaluated under all the factual circumstances of the individual case [citation] and is a factual issue to be resolved by the jury.” (Ibid.) We review a jury‘s finding for substantial evidence. (People v. Chavez (2018) 22 Cal.App.5th 663, 685.)
We conclude the evidence supports the verdict. Defendant was in a getaway van, in front of a department store, three days before Christmas, and Benson went in to steal a substantial amount of merchandise. Given the amount at stake, the
prospect of a ready getaway, аnd the consequences of apprehension, it was reasonably likely that Benson would use force or fear if necessary to get to the van. Defendant contends there is no evidence in the record that Benson was prone to violence or had committed robberies in the past. Although such evidence would have aided the prosecution, it was not necessary; its absence furnished a viablе jury argument, not a winning appellate argument.
Defendant raises a similar argument regarding count 2, reckless evading. He contends there was no substantial evidence to support his conviction on a theory of natural and probable consequences. Once again, we disagree. Defendant was waiting in a getaway vehicle, which was parked right in front of the store. Making a quick escape in the van was an essential pаrt of the plan. Under these circumstances, a jury could conclude that the probability of an ensuing chase was sufficiently high to make it reasonably foreseeable.
DISPOSITION
The judgment is affirmed.
IKOLA, J.
WE CONCUR:
O‘LEARY, P. J.
MOORE, J.