People v. Seals ( 2017 )

Filed 8/30/17
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B271109
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA427718)
v.
TROY EARL SEALS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Carol H. Rehm, Jr., Judge. Affirmed as
modified.
Katherine E. Hardie, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Senior Assistant
Attorney General, Stephanie C. Brenan and Abtin Amir, Deputy
Attorneys General, for Plaintiff and Respondent.
_____________________________
* Pursuant to California Rules of Court, rules 8.1100 and
8.1110, Section I of this opinion is certified for publication.
In 2014, Troy Seals stole a cellphone from a store.
A confrontation with the storeowner ensued, during which Seals
pulled out a knife as he attempted to flee. The People charged
Seals with second degree robbery (Pen. Code, § 211) and second
degree commercial burglary (Pen. Code, § 459).1 At trial, the
evidence established the storeowner typically sold the phone
Seals stole for $899, plus sales tax, which increased the price to
almost $1,000. The jury found Seals guilty on both counts.
The trial court found true several prior conviction allegations.
On appeal, Seals contends substantial evidence does not
support his burglary conviction because the evidence established
the price of the phone was less than $950, and the jury could not
consider sales tax as part of the phone’s value. He also contends
substantial evidence does not support his robbery conviction.
Seals further asserts the trial court erred in denying his Romero
motion,2 and that his 25-years-to-life sentence for robbery
violates the Eighth Amendment’s prohibition against cruel and
unusual punishment. We modify the judgment to correct the
presentence custody credits awarded and otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In July 2014, Seals walked into Hot Spot Wireless, a
cellphone store. Seals asked Adilmar Hernandez, a store clerk,
about a pair of headphones and whether he could “get a better
price” on them. Hernandez went to the back of the store to ask
the storeowner, German Flores, if he could negotiate the price of
the headphones. While discussing the matter with Flores,
1 All further undesignated section references are to the Penal
Code unless otherwise stated.
2 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
2
Hernandez heard the shop’s front door beep, indicating someone
had entered or exited the store. On a television feed of the store’s
security camera, Hernandez saw Seals leaving with a bag. When
Hernandez and Flores returned to the sales floor they noticed a
phone was missing from the display case.
Flores chased after Seals. When Flores was eight feet away
from Seals, he confronted Seals, saying: “[G]ive me the fucking
phone.” Seals denied having the phone and kept walking, at a
faster pace. Flores continued to follow Seals, demanding that he
return the phone. Eventually, as Flores closed the gap between
the two men to six feet, Seals pulled out a nine-inch knife. Seals
held the knife by his side and said: “Get away from me. I don’t
have your phone.”
When Flores saw the knife he was hesitant and “a little bit
scared”; after he saw the knife he stopped going after the phone.
Flores thought Seals might use the knife. He began to look for
something to use to protect himself. Still, he continued following
Seals, demanding that he return the phone. Flores testified at
trial that he was determined to get the phone back because he
had no insurance to cover the loss. In an effort to get closer to
Seals, Flores threw a rock at him; Seals responded by throwing
rocks at Flores. Eventually, police arrived and arrested Seals.
Flores retrieved the phone, which was on the ground near where
the men had thrown rocks. The knife was found nearby.
A jury found Seals guilty of second degree robbery and
second degree commercial burglary. The trial court thereafter
found true the prior conviction allegations as to five of Seals’s
3
prior criminal prosecutions. The court sentenced Seals to a total
state prison term of 35 years to life.3
DISCUSSION
I. The Jury Properly Included Sales Tax in
Determining Whether Seals Entered the Property
with Intent to Steal an Item with a Value Greater
than $950.
In 2014, the People charged Seals with one count of
commercial burglary in violation of section 459. By the time of
trial in 2016, the electorate had enacted Proposition 47, which
added section 459.5 to the Penal Code, creating a separate
offense of “shoplifting.” Under section 459.5, “shoplifting is
defined as entering a commercial establishment with intent to
commit larceny while that establishment is open during regular
business hours, where the value of the property that is taken or
intended to be taken does not exceed nine hundred fifty dollars
($950). Any other entry into a commercial establishment with
intent to commit larceny is burglary.” Shoplifting under this
provision is a misdemeanor. Further, under section 459.5,
subdivision (b), any act of shoplifting must be charged as such
and no person charged with the crime may also be charged with
burglary or theft of the same property.
3 On the robbery count, the trial court imposed a sentence of
25 years to life. The court imposed a sentence of six years on the
burglary count—three years, doubled pursuant to the Three
Strikes law—and stayed pursuant to section 654. The court
further imposed a total 10-year determinate sentence based on
two five-year priors (§ 667, subd. (a)(1)).
4
Thus, to establish a violation of section 459 in this case,
the People were required to prove the property Seals stole had a
value exceeding $950. At trial, Flores testified that at the time of
the crime, he usually sold the phone for $899, which, with tax,
was “nine-fifty. Almost 1,000.” There was no evidence that,
excluding sales tax, Flores ever sold the phone for more than
$950. To convict Seals of burglary, the jury had to include sales
tax in its determination of the value of the phone.
In the lower court and on appeal, Seals has argued it was
improper for the jury to include sales tax as part of the value of
the phone. Although Seals frames this issue as one of sufficiency
of the evidence, the threshold question does not involve disputed
facts. Instead, whether sales tax could be included in the
calculation of value is a legal question, which we review de novo.
(People v. Perkins (2016) 244 Cal.App.4th 129, 136; People v.
Cuellar (2008) 165 Cal.App.4th 833, 836.)
A. Establishing Value in Theft Crimes in California
Under section 484, subdivision (a), which defines theft, “[i]n
determining the value of the property obtained, for the purposes
of this section, the reasonable and fair market value shall be the
test.” “[C]ourts have long required section 484’s ‘reasonable and
fair market value’ test to be used for theft crimes that contained
a value threshold. . . .” (People v. Romanowski (2017) 2 Cal.5th
903, 914 [Proposition 47 did not change this valuation approach].)
As explained in People v. Pena (1977) 68 Cal.App.3d 100(Pena), “When you have a willing buyer and a willing seller,
neither of whom is forced to act, the price they agree upon is the
highest price obtainable for the article in the open market.
Put another way, ‘fair market value’ means the highest price
obtainable in the market place . . . .” (Id. at p. 104.) Further, in a
5
retail context, absent proof “that the price charged by a retail
store from which merchandise is stolen does not accurately reflect
the value of the merchandise in the retail market, that price is
sufficient to establish the value of the merchandise within the
meaning of sections 484 and 487.” (People v. Tijerina (1969)
1 Cal.3d 41, 45.)
California courts have established these general principles
for determining the value of property in a theft crime, yet no
court has expressly considered whether sales tax may be included
in the valuation.
B. Sales Tax and Fair Market Value
To evaluate this issue, we first consider the nature of the
sales tax in California.
“The sales tax is imposed on retailers ‘[f]or the privilege of
selling tangible personal property at retail.’ [Citation.]” (Loeffler
v. Target Corp. (2014) 58 Cal.4th 1081, 1104 (Loeffler).) It is a
longstanding principle that in this state, “[t]he retailer is the
taxpayer, not the consumer. ‘The tax relationship is between the
retailer only and the state; and is a direct obligation of the
former.’ [Citation.]” (Ibid, fn. omitted.) Retailers pay sales tax on
their gross receipts, not on a per item basis. (Ibid; Rev. & Tax.
Code, § 6051; Roth Drug, Inc. v. Johnson (1936) 13 Cal.App.2d
720, 737 [the sales tax law contemplates imposing a fixed rate of
tax on gross receipts and not on each particular sale of
merchandise].)
“[A]lthough the sales tax falls on retailers and must be paid
by them to the state, retailers are permitted but not required to
obtain reimbursement for their tax liability from the consumer at
the time of sale. [Citations.] Whether a reimbursement amount
will be added is purely a matter of contract between the retailer
6
and consumer. [Citations.] It is presumed that the parties
agreed to the addition of sales tax reimbursement to the sales
price if the sales agreement so states, if the sales tax
reimbursement is shown on the sales check, or if the retailer
posts a notice or notifies consumers by specified methods that
reimbursement for sales tax will be added to the sales price of all
items or certain items. [Citations.]” (Loeffler, supra, 58 Cal.4th
at pp. 1108-1109; Livingston Rock & Gravel Co. v. De Salvo
(1955) 136 Cal.App.2d 156, 160-164.)
The People primarily rely on one civil case to support the
argument that sales tax may be included in a fair market value
determination. In Xerox Corp. v. County of Orange (1977) 66
Cal.App.3d 746 (Xerox), the parties disputed whether sales tax
could be considered in the valuation of property subject to a
personal property tax. County assessors included sales tax in the
calculation of the fair market value of office copying machines
and related equipment the plaintiff, Xerox, leased to its
customers. (Id. at pp. 750-751.) To determine the tax owed on
the copiers and equipment, county assessors used the list price
for new equipment and added sales tax, and, in some cases,
freight charges, to arrive at the “full cash value” of the property.
(Id. at pp. 751-752.) Xerox argued the inclusion of sales tax and
freight charges was improper; the court disagreed.
The Xerox court began its analysis by noting the legal
standard of full cash value for assessment under the California
Tax Code is “fair market value.” In turn, “[f]air market value
contemplates a hypothetical transaction between an informed
seller, being under no compulsion to sell, and an informed buyer,
being under no compulsion to buy.” (Xerox, supra, 66 Cal.App.3d
at pp. 752-753.) Xerox contended sales tax was not part of the
7
purchase price the parties would agree upon in a market value
approach. (Id. at p. 756.) The appellate court rejected this
argument based on the nature of the sales tax. The court
explained:
“The California courts, while consistently holding that the
legal incidence of the tax is upon the vendor, have always
recognized that the ultimate burden of the sales tax, as in the
case of all taxes paid in the course of production, will be shifted to
the consumer. It is a part of the cost of marketing the property
that is passed on to the consumer. ‘It must be conceded that the
purchase price ultimately is necessarily the source from which
payment of the tax must be made. The consumer still has the
right to purchase or not at the asked price which includes the tax.
Any quibbling between the parties, in an attempt to differentiate
between the purchase price and the tax by reason of the separate
statement of the amount intended as tax reimbursement, will not
alter the fact that within the purview of the legislative enactment
the aggregate of the list price and the amount of tax
reimbursement constitutes the actual purchase price of the
commodity.’ (Italics added.) [Citation.] [¶] Therefore, under the
market value concept, where price is the basis of value, the sales
tax is an element of value. The ultimate price the informed seller
and buyer agree upon includes the amount of tax reimbursement.
The retailer, absent exigent circumstances, would not sell for
less, and the buyer purchases only if the value of the product to
him justifies the total price.” (Xerox, supra, 66 Cal.App.3d at
pp. 757-758.)
8
Xerox also asserted sales tax should not be included since it
would result in different valuations of the same property
depending on the county. The court rejected this argument:
“Fair market value traditionally depends upon the location of the
market. Certainly the costs incurred by the seller, whether for
materials, labor or tax, vary depending on the locale in which the
business is conducted, and those costs are reflected in the market
price. We are concerned for tax purposes not with some esoteric
value of the property, but with its value in exchange wherever
the market is located.” (Xerox, supra, 66 Cal.App.3d at p. 760.)
Xerox additionally contended sales tax should not be
included in fair market value because the tax amount collected
from a hypothetical buyer must be paid over to the state, thus the
seller has no interest in the tax. The court rejected this
argument as ignoring the market value concept of valuation:
“The price at which at which a willing and informed seller will
sell, in the absence of some exigent circumstances, will always
include his costs of production, materials, overhead, advertising
and other costs of doing business. The sales tax is merely
another cost of doing business, measured by the gross receipts of
that business.” (Xerox, supra, 66 Cal.App.3d at p. 763; County of
San Diego v. Assessment Appeals Bd. No. 2 (1983) 140 Cal.App.3d
52 [accord].)
C. The Jury Properly Considered Sales Tax When
Determining the Fair Market Value of the Phone on
the Section 459 Charge
Although Xerox arose in a different context from this case
we find the court’s reasoning relevant and persuasive. In
criminal cases, as in Xerox and other civil cases in this state,
“fair market value” has been interpreted as what an item
9
“would be sold for in the open market if neither buyer nor seller
was under any urgent necessity to either buy or sell” the item.
(Pena, supra, 68 Cal.App.3d at p. 103; City of Perris v. Stamper
(2016) 1 Cal.5th 576, 598-599 [same definition in condemnation
case]; Code Civ. Proc., § 1263.320, subd. (a); Glendale Fed. Sav. &
Loan Assn. v. Marina View Heights Dev. Co. (1977) 66 Cal.App.3d
101, 141-142 [accepted definition of market value in California];
Pacific States Sav. & L. Co. v. Hise (1945) 25 Cal.2d 822, 837-840
[definition appropriate in valuation of corporate assets]; People v.
Cook (1965) 233 Cal.App.2d 435, 438.)
Given the nature of the sales tax in California, sales tax
reimbursement may properly be viewed as part of the price a
willing buyer and seller, neither of whom is forced to act, agree
upon. A seller is not required to seek sales tax reimbursement
from the buyer. As a result, as the Xerox court noted, the sales
tax is similar to other factors retailers take into consideration to
increase the price of an item, such as overhead and advertising.
When the retailer chooses not to absorb the sales tax and instead
seeks sales tax reimbursement from the buyer, that is “purely a
matter of contract between the retailer and consumer.” (Loeffler,
supra, 58 Cal.4th at p. 1108.)
In adding sales tax reimbursement to the price of an item,
the retailer is not merely collecting a tax on behalf of the state.
Instead, the retailer is passing on a cost—for which only it is
responsible—to the buyer. Further, when a retailer adds an
amount for sales tax reimbursement to the total price of an item,
that ultimate price is the highest price to which the willing and
informed buyer and seller agree. We agree with the Xerox court
that the fair market value test allows for inclusion of sales tax
reimbursement in the valuation when price is the basis of value.
10
Although this is a criminal case, we see no basis to adopt a
different interpretation of the fair market value test, or how
retail goods should be valued under that test, when value is an
element in a theft crime.
Seals relies on several cases from other states to support
his argument that the sales tax should not be included in value.
We do not find these cases persuasive. For example, in State v.
Alexander (1987) 12 Kan.App.2d 1 (Alexander), the appellate
court reasoned that “[u]pon the retail sale of merchandise,
Kansas law obligates a merchant to collect and forward a sales
tax to the state. [Citation.] In no sense may a theft be
characterized as a sale. [Citation.] Because the sweaters had not
been sold, [the store from which the defendant stole the items]
did not owe, and the state was not entitled to collect, a sales tax
on them. . . . [¶] . . . Because no sales tax had been imposed, none
was stolen.” (Id. at pp. 4-5.)
Similarly, in State v. Kluge (Iowa Ct. App. 2003) 672
N.W.2d 506 (Kluge), the appellate court concluded sales tax is
“not truly a component of the ‘value’ of a good or service, but
rather a separate amount collected by a retailer for the benefit of
a governmental taxing authority. It is a fee collected because of a
transaction.” (Id. at p. 509.) The court further noted that “[w]ith
the determination of a sales tax does not increase the value of
property, we conclude our statutory scheme . . . does not allow for
the addition of sales tax on an item not yet purchased.” (Ibid;
accord Russell v. State (2006) 367 Ark. 557 [242 S.W.3d 265].)
Alexander, Kluge, and several courts in other states have
also adopted the reasoning of two New York trial courts which
concluded sales tax should not be included in the value of
property to determine the degree of a criminal offense: People v.
11
Barbuto (N.Y. Sup. Ct. 1980) 434 N.Y.S.2d 120 (Barbuto) and
People v. Medjdoubi (N.Y. Sup. Ct. 1997) 661 N.Y.S.2d 502.
Both courts concluded the sales tax may increase the cost to the
buyer but does not increase the value of stolen property. (See
generally Annot., Consideration of Sales Tax in Determining
Value of Stolen Property of Amount of Theft (1998) 63 A.L.R.5th
417 [collecting cases]; Foreman v. U.S. (D.C. Ct. App. 2010) 988
A.2d 505 [following Russell and Medjdoubi].) The Barbuto court
reasoned the price and sales tax are distinct; the storekeeper
“establishes value by the freely negotiated price,” but separately
“collects a tax for the benefit of the State and locality.” (Barbuto,
supra, at pp. 121-122.)
However, unlike the sales tax law and administration
described in several of the cases from other jurisdictions,
California law does not obligate a merchant to collect a sales tax
from the customer. (See e.g., Barbuto, supra, 434 N.Y.S.2d at
p. 122 [in New York, “a vendor is required to collect the tax from
each customer when collecting the price charged for each item of
personal property which he then holds as trustee for and on
account of the State”].) This is a significant distinguishing factor.
In California, whether the retailer seeks a sales tax
reimbursement from the customer is a matter of contract
between the buyer and seller. Under this sales tax framework,
the addition of sales tax reimbursement to the cost of an item is
an indication of that item’s fair market value: the total and
highest price to which the willing buyer and seller agree.
Some states have concluded sales tax should not be
included in the value of stolen property because there was no sale
to trigger the imposition of the sales tax. (See e.g., Alexander,
supra, 12 Kan.App.2d at p. 817; Kluge, supra, 672 N.W.2d at
12
p. 509; see also State Farm Mut. Auto. Ins. Co. v. Berthelot
(La. 1999) 732 So.2d 1230, 1235 [insurance reimbursement did
not include sales tax on sale price of vehicle; no taxable event
occurred]; cf. Tunnell v. State (1983) 99 N.M. 446 [sales tax
cannot be included in determining value of shoplifted item unless
the total advertised retail or actual market price of the item
included the applicable tax].)
Seals adopts this reasoning, arguing a stolen item would
not be included in a store’s gross receipts, thus the merchant
would not be liable for any associated tax. In our view, the lack
of a “sale” is irrelevant. Determining the fair market value of an
item involves a hypothetical transaction between an informed
buyer and seller—not the details of any actual particular sale.
(See Xerox, supra, 66 Cal.App.3d at pp. 758-760.) So long as
there is evidence that, in that hypothetical transaction, the
ultimate price the willing and informed seller and buyer agree
upon would include sales tax reimbursement, that ultimate price
is the fair market value. That the item stolen was not purchased,
so that sales tax did not actually come into play, does not change
the fair market value determination.
We note our conclusion that sales tax reimbursement may
be included in determining the fair market value of stolen retail
property is consistent with decisions of several federal courts that
have also considered the question. For example, in U.S. v.
Draves (7th Cir. 1997) 103 F.3d 1328 (Draves), the court rejected
the argument that sales tax should be excluded from the
calculation of a threshold jurisdictional value under 15 United
States Code section 1644, which punishes the knowing use of a
fraudulently obtained credit card to acquire anything with an
aggregate value of $1000 or more. (Draves, supra, at pp. 1331-
13
1332.) The Draves court explained: “The fair market value of
property is commonly defined as the price a willing buyer would
pay a willing seller for the property, when neither is under
compulsion to buy or sell. [Citations.] In states that levy sales
tax, buyers necessarily consider this mandatory amount in
determining what they are willing to pay for an item.” (Id. at p.
1332; see also U.S. v. Burns (9th Cir. 1990) 894 F.2d 334, 336 [“in
ordinary retail trade the amount that a willing buyer is prepared
to pay includes the tax and shipping costs, regardless of who
ultimately receives that fraction of the purchase price”]; People v.
Bazo (N.Y. Sup. Ct. 1988) 529 N.Y.S.2d 432.)
Here, the jury could properly consider the sales tax
reimbursement in determining the reasonable and fair market
value of the phone Seals stole. While there was no testimony
about the exact amount attributable to sales tax reimbursement,
Flores testified that he usually sold the phone for an amount
that, including tax, was over $950 and close to $1,000. The
evidence presented at trial supported the jury’s conclusion that
the value of the phone exceeded $950.4
4 In his reply brief on appeal, Seals argues there was
insufficient evidence of the value of the phone because, in
addition to testifying that he sold the phone, with sales tax, for
almost $1,000, Flores also testified he bargained on the price of
the phone, the “average market value” for the phone at the time
was “like 499, 500,” and “most people” sold them at that time for
“600, 599.” However, on appeal, we do not resolve evidentiary
conflicts, but instead “ ‘review the evidence in the light most
favorable to the prosecution and presume in support of the
judgment the existence of every fact the jury could reasonably
have deduced from the evidence.’ ” (People v. Manibusan (2013)
58 Cal.4th 40, 87.) If sales tax was properly considered in the
14
II. Substantial Evidence Supports Seals’s Conviction for
Second Degree Robbery under Section 211.
Seals argues there was insufficient evidence of the force or
fear element of robbery because Flores testified he was not
afraid and he continued to chase Seals even after seeing a knife.
We disagree.
A. Background
At trial, the prosecutor asked Flores whether he was afraid
when he saw that Seals had a knife. The following colloquy
ensued:
“Q: When you saw the knife – let me ask you this.
Before then were you afraid?
A: I was hesitant and a little bit scared, yes.
Q: Before you saw the knife?
A: Before I saw the knife, no.
Q: Now you see the knife. Does that make you stop?
A: I stopped going after the phone, yes.
Q: Okay. Were you afraid of being harmed?
A: I wasn’t afraid of being harmed.
Q: You were not afraid?
A: Correct, sir.
Q: Did the thought of him using that knife go through
your head?
A: I thought of him using the knife. That’s correct
that came to my mind as soon as I saw him like that,
but I guess I stopped and reacted.
valuation of the phone, there was sufficient evidence to support
the conviction.
15
Q: Now, you said you weren’t afraid. I mean tell us
why you weren’t afraid when you see this knife and
you believe you could be harmed with that?
A: I don’t want to make a joke out of this, but I play
rock, scissors, paper. So I figured rock and scissors,
you know. I figured look for something to protect
myself.
Q: So you tried to protect yourself?
A: That’s correct.”
A short time later during the testimony, Flores apparently
became distraught. The court asked if he wished to take a brief
recess; Flores answered: “It’s okay, sir. It is not the matter – this
matter part of selling phones is a difficult thing risking your life.”
B. Discussion
When reviewing a claim for substantial evidence, we
“must review the whole record in the light most favorable to the
judgment below to determine whether it discloses substantial
evidence - that is, evidence which is reasonable, credible, and of
solid value - such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.” (People v. Johnson
(1980) 26 Cal.3d 557, 578). “ ‘An appellate court must accept
logical inferences that the jury might have drawn from the
evidence even if the court would have concluded otherwise.
[Citation.]’ [Citation.]” (People v. Halvorsen (2007) 42 Cal.4th
379, 419.) “[I]t is the jury, not the reviewing court, that resolves
conflicts in the evidence . . . .‘Resolution of . . . inconsistencies in
the testimony is the exclusive province of the trier of fact.’
[Citation.]” (People v. Solomon (2010) 49 Cal.4th 792, 818.)
16
Under section 211, 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.” “To establish a robbery was committed by means
of fear, the prosecution ‘must present evidence “. . . that the
victim was in fact afraid, and that such fear allowed the crime to
be accomplished.” ’ [Citations.]” (People v. Morehead (2011) 191
Cal.App.4th 765, 772.)
“ ‘The element of fear for purposes of robbery is satisfied
when there is sufficient fear to cause the victim to comply with
the unlawful demand for his property.’ [Citations.] It is not
necessary that there be direct proof of fear; fear may be inferred
from the circumstances in which the property is taken.
[Citation.] [¶] If there is evidence from which fear may be
inferred, the victim need not explicitly testify that he or she was
afraid. [Citations.] Moreover, the jury may infer fear ‘ “from the
circumstances despite even superficially contrary testimony of
the victim.” ’ [Citations.] [¶] The requisite fear need not be the
result of an express threat or the use of a weapon. [Citations.]
Resistance by the victim is not a required element of robbery
[citation], and the victim’s fear need not be extreme to constitute
robbery [citation]. All that is necessary is that the record show
‘ “ ‘conduct, words, or circumstances reasonably calculated to
produce fear. . . .’ ” ’ [Citation.] [¶] Intimidation of the victim
equates with fear. [Citation.] An unlawful demand can convey
an implied threat of harm for failure to comply, thus supporting
an inference of the requisite fear.” (People v. Morehead, supra,
191 Cal.App.4th at pp. 774-775.)
17
In this case, there was sufficient evidence that Flores was
afraid and his fear allowed the crime to be accomplished, despite
Flores’s “superficially contrary” testimony. Flores testified that
he was “hesitant” and “a little bit scared.” He admitted that
when he saw Seals had a knife, he stopped and kept his distance.
He thought about Seals using the knife. Seals’s act of displaying
the knife and later, throwing rocks, deterred Flores and kept him
from getting closer to demand or retake the phone. Further, it
was for the jury to resolve any conflicts in the evidence.
(People v. Ceja (1993) 4 Cal.4th 1134, 1138-1139.) The jury could
reasonably infer from Flores’s testimony and conduct during the
incident that he was in fact afraid and intimidated. Certainly,
Seals’s conduct and words were reasonably calculated to produce
fear so that he could escape with the phone.
Moreover, the evidence supported an independent finding
that Seals used force to accomplish the taking of the phone.
Seals not only brandished a knife to dissuade Flores from
approaching and retaking the phone, he also threw rocks at
Flores to keep him away. “In terms of the amount of force
required to elevate a taking to a robbery, ‘something more is
required than just that quantum of force which is necessary to
accomplish the mere seizing of the property.’ [Citation.] But the
force need not be great: ‘ “ ‘[a]ll the force that is required to make
the offense a robbery is such force as is actually sufficient to
overcome the victim’s resistance. . . .’ ” ’ [Citation.]” (People v.
Lopez (2017) 8 Cal.App.5th 1230, 1235.) Under the
circumstances of this case, the jury could reasonably conclude
Seals used either fear or force to accomplish the taking.
(People v. Wright (1996) 52 Cal.App.4th 203, 210-211.)
Substantial evidence supported the conviction for robbery.
18
III. The Trial Court Did Not Abuse its Discretion in
Denying Seals’s Romero Motion.
The People alleged Seals suffered five prior strike
convictions: a 1984 conviction for robbery (§ 211); 1990
convictions for robbery, first degree burglary (§ 459), and
voluntary manslaughter (§ 192, subd. (a)); and a 1991 conviction
for robbery. The court found true the allegation as to the 1990
and 1991 convictions. Seals filed a Romero motion, asking the
trial court to dismiss the strike priors for purposes of sentencing.
The trial court denied the motion. Seals contends the trial court
abused its discretion. We find no error.
A trial court has the discretion to vacate a finding that the
defendant suffered prior strikes, pursuant to section 1385, when
in light of the nature and circumstances of the defendant’s
current crime and prior serious and/or violent felony convictions,
and “the particulars of his background, character, and prospects,
the defendant may be deemed outside the” spirit of the Three
Strikes law. (People v. Williams (1998) 17 Cal.4th 148, 161.)
When these factors “ ‘manifestly support the striking of a prior
conviction and no reasonable minds could differ[,] the failure to
strike would constitute an abuse of discretion.’ [Citation.]”
(People v. Solis (2015) 232 Cal.App.4th 1108, 1124, quoting
People v. Carmony (2004) 33 Cal.4th 367, 376–378.)
There was no such abuse of discretion here. Although
Seals argues he intended only to commit a non-violent,
opportunistic theft, the fact remains that he brought a knife with
him and displayed it in furtherance of his crime. Moreover, as
the trial court explained, Seals has a long criminal history that
includes numerous serious and violent offenses. The court noted
Seals’s adult criminal history began with a 1985 felony drug
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violation, and continued with a grand theft conviction in 1987,
voluntary manslaughter and robbery convictions in 1990, a
robbery conviction in 1991 for which he received an over 10-year
prison sentence, and felony violations for illegal taking of a
vehicle in 2005 and 2006.
In light of Seals’s history and the circumstances of the
current offense, the trial court could reasonably conclude Seals is
“ ‘an exemplar of the “revolving door” career criminal to whom
the Three Strikes law is addressed.’ [Citation.]” (People v.
Carmony, supra, 33 Cal.4th at p. 379.) The court’s denial of the
motion to strike Seals’s priors was neither irrational nor
arbitrary and was not an abuse of discretion. (Ibid; Solis, supra,
232 Cal.App.4th at pp. 1124-1125.)
IV. Seals’s Sentence of 25 Years to Life is not Cruel and
Unusual Punishment.
We further reject Seals’s contention that the sentence of 25
years to life on the robbery count violates the Eighth
Amendment’s prohibition against cruel and unusual punishment.
Seals asserts his sentence was grossly disproportionate to his
crime of “taking a cell phone, where no one was injured and the
phone was recovered at the scene . . . .” This is not an accurate
description of Seals’s crime or the basis for the sentence. Seals
did not merely take a cell phone; the jury found him guilty of
robbery, a finding supported by the evidence of Seals’s conduct
during the commission of the crime. Further, his sentence was
the result of his prior strikes, which reflected his long, serious
criminal record. (Ewing v. California (2003) 538 U.S. 11, 28-31.)
“When examining whether the length of a sentence violates the
Eighth Amendment, a court may only apply a ‘ “narrow
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proportionality” ’ analysis. [Citation.] We do not find [Seals’s]
sentence to be so disproportionate to his crime and his life’s
criminal history that it violates constitutionally prescribed
sentencing limits.” (Solis, supra, 232 Cal.App.4th at p. 1125.)
V. Correction of Conduct Credits
The People argue the trial court incorrectly granted Seals
conduct credits for 100 percent of his presentence custody time,
rather than 15 percent. Seals did not respond to the People’s
argument in his reply brief. We agree the judgment must be
modified. (People v. Fitzgerald (1997) 59 Cal.App.4th 932, 935
[excessive award of presentence conduct credit may be corrected
for the first time on appeal].)
Under section 2933.1, defendants who have committed
violent felonies enumerated under section 667.5, and who are
sentenced to state prison, are limited to presentence conduct
credits of only 15 percent of the actual time served. Any robbery
is a violent felony under section 667.5, subdivision (c)(9). Thus,
Seals was entitled to conduct credits of only 15 percent of his pre-
sentence custody time (15 percent of 599). (People v. Duran
(1998) 67 Cal.App.4th 267, 269-270.) The judgment must be
modified to reduce the amount of presentence conduct credit to
89 days.
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DISPOSITION
The judgment is modified to reflect an award of 89 days of
presentence conduct credit. The trial court is directed to prepare
a corrected abstract of judgment reflecting the correct award of
presentence conduct credit and to forward it to the Department of
Corrections and Rehabilitation. In all other respects, the
judgment is affirmed.
SORTINO, J.*
We concur:
FLIER, Acting P.J.
GRIMES, J.
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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