People v. Del Rosario CA4/3 ( 2021 )

Filed 4/28/21 P. v. Del Rosario CA4/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G059347
v. (Super. Ct. No. 19HF1321)
DANIEL WILLIAM DEL ROSARIO, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, Julian
Bailey, Judge. Affirmed.
Richard Schwartzberg, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson,
Allison V. Acosta, and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and
Respondent.
Defendant Daniel William Del Rosario was convicted by a jury of first
degree robbery on a trackless trolley (Pen. Code, §§ 211, 212.5, subd. (a)) and various
other crimes after he took a passenger’s backpack from a trolley, then fought the
passenger outside the trolley when the passenger attempted to retrieve his backpack.
Defendant raises a single issue on appeal: he contends his conviction for first degree
robbery should be reduced to second degree robbery (with a corresponding two-year
prison sentence reduction) because his confrontation with the passenger did not occur
“on” a trackless trolley. We disagree and affirm the conviction and sentence.
FACTS
On the date of the incident, defendant and a friend were skipping stones at
Laguna Beach. They drank a “copious amount of vodka,” then decided they wanted to
get more rocks to skip and decided to take the trolley. Defendant’s friend was carrying a
backpack.
When they entered the trolley, the driver asked defendant whether he was
drunk. Defendant admitted he was. The driver told defendant he had to leave, but
defendant refused. A physical altercation ensued between defendant and the driver. One
of the other passengers intervened and pulled defendant away.
As defendant left the trolley, he took the intervening passenger’s backpack
with him. The passenger gave chase and wrested the backpack back from defendant. As
the passenger took back his backpack, defendant struck the passenger three times in the
face.
Defendant was charged with first degree robbery on a trackless trolley, as
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well as several other offenses. The jury convicted defendant of the offense, making a
specific finding “that the robbery was committed while the person robbed was a
passenger on a trackless trolley.” On this count, defendant was sentenced to eight years
1
We omit discussion of these offenses and their underlying facts, as they do not
relate to this appeal.
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in prison, representing the midterm of four years, doubled because the offense was a
violent felony and a second strike. Defendant’s total prison sentence was fifteen years.
Defendant appealed.
DISCUSSION
Defendant raises only one issue on appeal. He argues his conviction for
first degree robbery should be reduced to second degree robbery because the robbery did
not occur on the trolley. Defendant asserts his acts on the trolley amounted only to theft,
and only became robbery after both he and the victim left the trolley. Consequently, he
contends, there was no robbery on the trolley.
Penal Code section 211 defines 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.” Penal Code section 212.5
controls whether a robbery is first or second degree. Subdivision (a) of that section
designates several categories of first degree robbery, including robbery of any passenger
“which is perpetrated on” a trackless trolley (as applicable here), as well as “every
robbery which is perpetrated in an inhabited dwelling house” and certain other categories.
Subdivision (b) designates any robbery “of any person while using an automated teller
machine or immediately after the person has used an automated teller machine and is in
the vicinity of the automated teller machine” first degree robbery. Subdivision (c) makes
all other robberies second degree.
Defendant’s robbery is a so-called Estes robbery—one in which the
requisite “force or fear” is applied after the property is taken from the victim. (People v.
Estes (1983) 147 Cal.App.3d 23, 28; Estes.) In Estes, the defendant stole merchandise
from a department store. (Id. at p. 26.) He left the store and the security guard followed
him into the parking lot and confronted him. (Ibid.) The defendant then threatened the
security guard (and subsequently the manager of the store) with a knife. (Ibid.)
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On appeal, the defendant argued he had not committed a robbery, but at
most had committed a theft and a separate simple assault because the taking of property
and the “force or fear” were not contemporaneous. The Estes court held these facts
supported a robbery conviction. “The crime of robbery is a continuing offense that
begins from the time of the original taking until the robber reaches a place of relative
safety. . . . The crime is not divisible into a series of separate acts. Defendant’s guilt is
not to be weighed at each step of the robbery as it unfolds. The events constituting the
crime of robbery, although they may extend over large distances and take some time to
complete, are linked by a single-mindedness of purpose.” (Estes, supra, 147 Cal.App.3d
at p. 28.)
Estes undercuts defendant’s argument. As the Estes court wrote, robbery
(even an Estes robbery) begins at the time of the original taking and continues until the
robber reaches a place of relative safety. So while defendant argues there was no robbery
until defendant struck the victim outside the trolley, Estes makes clear the robbery began
when defendant took the backpack, while defendant and the victim were both still on the
trolley.
Defendant also contends the statute only designates as first degree robberies
those in which all of the elements are complete while on a trackless trolley. In support of
this contention, defendant points to Penal Code section 212.5, subdivision (b), which
makes robberies “of any person while using an automated teller machine or immediately
after the person has used an automated teller machine and is in the vicinity of the
automated teller machine” first degree robberies. Defendant argues the Legislature’s use
of “immediately after” and “in the vicinity of” in subdivision (b), in contrast to the
Legislature’s use of “on” in describing first degree robberies on trackless trolleys in
subdivision (a), shows the Legislature’s intent to limit first degree robberies to only those
where all of the elements are completed “on” a trackless trolley.
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Defendant’s argument proves too much. The Estes court also noted “The
crime of robbery includes the element of asportation, the robber’s escape with the loot
being considered as important in the commission of the crime as gaining possession of
the property.” (Estes, supra, 147 Cal.App.3d at p. 27.) The taking element of a robbery
“is not over at the moment of caption; it continues through asportation.” (People v.
Gomez (2008) 43 Cal.4th 249, 256.)
Asportation, in turn, “‘continues . . . as long as the loot is being carried
away to a place of temporary safety.’” (People v. Gomez, supra, 43 Cal.4th at p. 256.) It
would be quite an unusual robbery “on” a vehicle or “in an inhabited dwelling house”
that did not involve the robber leaving the vehicle or house before reaching a place of
relative safety. And by defendant’s reasoning, those robberies would be second degree,
because they were not fully completed “on” the vehicle or “in” the house.
We do not believe the Legislature intended a robber’s escape from a vehicle
or house to have the effect of reducing his or her charge from first to second degree. In
fact, as the prosecution contends, the Legislature’s purpose was protecting victims who
are more vulnerable because of their location. (People v. McDade (1991) 230
Cal.App.3d 118, 127.) Accordingly, we conclude the facts support the jury’s finding of
first degree robbery.
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DISPOSITION
The judgment is affirmed.
THOMPSON, J.
WE CONCUR:
O’LEARY, P. J.
BEDSWORTH, J.
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