People v. Armstrong CA4/1 ( 2023 )


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  • Filed 7/17/23 P. v. Armstrong CA4/1
    NOT TO BE PUBLISHED IN OFFICIAL REPORTS
    California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or
    ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for
    purposes of rule 8.1115.
    COURT OF APPEAL, FOURTH APPELLATE DISTRICT
    DIVISION ONE
    STATE OF CALIFORNIA
    THE PEOPLE,                                                                    D080132
    Plaintiff and Respondent,
    v.                                                                   (Super. Ct. No. SCD287517)
    CHRISTIAN ANTHONY ARMSTRONG,
    Defendant and Appellant.
    APPEAL from a judgment of the Superior Court of San Diego County,
    Jeffrey F. Fraser, Judge. Affirmed.
    Denise M. Rudasill, under appointment by the Court of Appeal, for
    Defendant and Appellant.
    Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
    Attorney General, Charles C. Ragland, Assistant Attorney General,
    Collette C. Cavalier and Joy Utomi, Deputy Attorneys General, for Plaintiff
    and Respondent.
    Christian Anthony Armstrong took a drink from a convenience store
    cooler, intending to steal it. When a store employee blocked his exit,
    Armstrong dropped the can and assaulted another employee. A jury
    convicted him of second-degree robbery (Pen. Code, § 211)1 and assault by
    force likely to produce great bodily injury (§ 245, subd. (a)(4)). On appeal
    from the judgment, Armstrong contends insufficient evidence supports the
    robbery conviction because he abandoned the property before attacking the
    employee. As we shall explain, we disagree and affirm the judgment.
    FACTUAL AND PROCEDURAL BACKGROUND
    On September 29, 2020, around 10 p.m., three employees, Gwyneth G.,
    Anna M., and Miguel O., were at the end of their shift at a convenience store.
    Another employee from the prior shift, J. Mark M., was still at the store to
    spend time with his girlfriend, Anna. Gwyneth worked at the cash register,
    while Miguel, Anna, and J. Mark took a break outside the store. The store’s
    double doors were steadied that night, meaning customers could only use the
    left door because the right door was locked.
    Armstrong arrived at the store and started a conversation with the
    three employees outside. He asked Miguel for either a drink, or cigarettes
    and money. Miguel was annoyed by the request and did not give Armstrong
    anything. Armstrong testified at trial that he then entered the store carrying
    a glass mug and intending to steal a drink. As he entered the store, one of
    the employees asked Armstrong to put on a facemask, but he refused.
    Armstrong then walked to the back of the store where the drink coolers
    were located. The employees who had been outside followed Armstrong
    inside because, according to Anna, “he looked like he was up to no good.”
    Anna, Miguel, and J. Mark stood by the exit. Anna testified that she stood by
    1     All further undesignated statutory references are to the Penal Code.
    2
    the door because she could tell Armstrong was trying to steal something. She
    intended to ask him to hand over whatever he stole and leave.
    Armstrong grabbed an energy drink from the cooler and quickly walked
    toward the door. As he approached the door, he threw his glass mug, which
    shattered on the floor, and tried to run out the door with the drink without
    paying. However, Anna blocked the open left door.2 When Armstrong
    realized the right door was locked, he turned around, and in one motion
    threw down the energy drink and punched at Miguel.
    Armstrong’s swing glanced Miguel’s head, and Miguel fell back into a
    display. Miguel stood up and stepped toward Armstrong, and Armstrong
    tackled him into a wall. The two fell to the ground, and Anna got on top of
    Armstrong to stop the attack. Armstrong continued to struggle, wrestling
    with Anna and Miguel. Gwyneth called the police, and J. Mark handed a
    stun gun to Anna. Anna used the stun gun multiple times on Armstrong,
    who continued to resist her and Miguel. The police arrived a few minutes
    later and took Armstrong into custody.
    The People charged Armstrong with second-degree robbery (§ 211) and
    assault with force likely to cause great bodily injury (§ 245, subd. (a)(4)). The
    charging document also alleged Armstrong suffered a prior conviction, which
    constituted a serious prior felony (§§ 667, subd. (a)(1); 668; 1192.7, subd. (c)),
    and a prior strike (§§ 667, subds. (b)–(i); 668; 1170.12). The People further
    alleged that Armstrong committed the offenses while on bail (§ 12022.1,
    subd. (b)).
    2     There was conflicting testimony as to whether Gwyneth locked both
    doors before Armstrong tried to leave.
    3
    At trial, the prosecution introduced the testimony of Gwyneth and
    Anna, and one of the responding police officers. The prosecution also showed
    two surveillance videos depicting the incident from different angles.
    Armstrong took the stand in his own defense. He testified that he
    went into the store to get a drink and, in response to his counsel’s question
    about whether he was going to pay for the drink, stated, “No, I was not.” His
    counsel then asked, “So you were going to commit petty theft?” to which
    Armstrong responded, “Yeah, I was.” In response to his counsel’s question as
    to why he fought Miguel, Armstrong stated, “I felt like I was trapped inside
    the store and I needed to get out before I got hurt.” Armstrong denied that he
    was trying to use force to steal or regain control of the energy drink.
    Before the parties presented their closing arguments, the jury was
    instructed on robbery and the lesser included offense of attempted robbery.
    During her closing statement, Armstrong’s counsel argued that Armstrong
    only used force after abandoning the drink and, therefore, he could not be
    convicted of robbery.
    Thereafter, the jury returned its verdict finding Armstrong guilty of
    both charged offenses. The court struck the prior strike and prior serious
    felony allegations, and also struck the on-bail enhancement allegation. The
    court sentenced Armstrong to the upper term of five years for the robbery
    conviction and a concurrent two-year term for the assault conviction. The
    court suspended execution of the five-year prison sentence and placed
    Armstrong on two years of formal probation.
    DISCUSSION
    Armstrong’s sole contention on appeal is that the robbery conviction
    must be reversed because the evidence shows he abandoned the energy drink
    before he used force. The People respond that the jury’s verdict is supported
    4
    by sufficient evidence because Armstrong used force against the employees as
    they attempted to stop him from leaving the store with the stolen property.
    The People contend that because Armstrong had not reached “a place of
    safety” before using force, the robbery conviction must be affirmed.
    A
    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.” (§ 211.) Property is within a
    person’s immediate presence if it is “ ‘ “so within his [physical control] that he
    could, if not overcome by violence or prevented by fear, retain his possession
    of it.” ’ ” (People v. Hayes (1990) 
    52 Cal.3d 577
    , 626‒627.) To find a
    defendant guilty of robbery, the People must show the “defendant use[d] force
    or fear in resisting attempts to regain the property or in attempting to
    remove the property from the owner’s immediate presence ....” (People v.
    Estes (1983) 
    147 Cal.App.3d 23
    , 27 (Estes).) The People must also prove that
    “ ‘the specific intent [to permanently] deprive [the victim] of [the] property’ ”
    motivated the defendant’s use of force or fear. (People v. Clark (2011) 
    52 Cal.4th 856
    , 943.)
    Robbery includes two phases: “caption,” achieving possession of the
    property; and “asportation,” carrying the property away. (People v. Gomez
    (2008) 
    43 Cal.4th 249
    , 255 (Gomez).) This means that “[a] robbery is not
    completed at the moment the robber obtains possession of the stolen
    property. The [robber’s] ... asportation, [or] escape with the loot[, is]
    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 crime remains
    in progress “from the time of the original taking until the robber reaches a
    place of relative safety.” (Id. at p. 28.) The use of force or fear can occur
    5
    either during the caption or asportation in order to support a robbery
    conviction. (Gomez, at p. 257.) However, “[t]he robber’s escape with the loot
    is not necessary to commit the crime.” (People v. Pham (1993) 
    15 Cal.App.4th 61
    , 65 (Pham).) Thus, even if the perpetrator does not ultimately retain
    possession of the stolen property, any force used after the taking of the
    property and before the robber reaches a place of relative safety supports a
    robbery conviction. (Id. at p. 66.)
    To determine if sufficient evidence supports the jury’s verdict, we first
    “ ‘ “review the entire record in the light most favorable to the judgment ....” ’ ”
    (People v. Ware (2022) 
    14 Cal.5th 151
    , 167.) We “determine whether the
    record contains ‘ “evidence that is reasonable, credible, and of solid value” ’
    such that a reasonable jury could have found the defendant guilty beyond a
    reasonable doubt.” (Ibid., quoting People v. Renteria (2022) 
    13 Cal.5th 951
    ,
    970.) “We presume every fact in support of the judgment the trier of fact
    could have reasonably deduced from the evidence. [Citation.] If the
    circumstances reasonably justify the trier of fact’s findings, reversal of the
    judgment is not warranted simply because the circumstances might also
    reasonably be reconciled with a contrary finding. [Citation.] ‘A reviewing
    court neither reweighs evidence nor reevaluates a witness’s credibility.’ ”
    (People v. Albillar (2010) 
    51 Cal.4th 47
    , 60 (Albillar).)
    B
    Armstrong argues he used force only after abandoning the energy
    drink. He contends, therefore, that the evidence does not establish two
    required elements of robbery: (1) that he used force or fear to take the
    property or to prevent the owner from resisting the taking; and (2) that when
    he used force or fear, he intended to deprive the owner of the property
    6
    permanently. However, the record contains credible evidence from which a
    reasonable trier of fact could find these two elements satisfied.
    First, substantial evidence supports the jury’s conclusion that
    Armstrong used force or fear to prevent the employees from resisting his
    taking of the drink. “A robbery [is] committed if the stolen item ‘is so within
    [the victim’s] reach, inspection, observation, or control, that [the victim]
    could, if not overcome by violence or prevented by fear retain his possession of
    it.’ ” (Pham, supra, 15 Cal.App.4th at p. 67, quoting People v. Webster (1991)
    
    54 Cal.3d 411
    , 440.) Anna testified that as Armstrong tried to flee with the
    drink, she blocked him from leaving the store and planned to ask him to
    return the stolen property. The surveillance video shows that Anna never
    had the chance to regain possession of the drink because Armstrong escalated
    the situation instantaneously, punching and tackling Miguel. Anna testified,
    and the video shows, she then immediately jumped on top of Armstrong.
    Armstrong’s struggle with the employees prevented them from immediately
    regaining possession of the drink. (Id. at p. 65.) The jury reasonably inferred
    from this evidence that Armstrong used force in furtherance of the robbery.
    Armstrong relies on People v. Etheridge (2015) 
    241 Cal.App.4th 800
    ,
    803–805 (Etheridge) to support his argument that he abandoned the drink
    before using force. In Etheridge, the defendant snuck a steak underneath a
    grocery store’s loading door and picked it up outside the store. (Id. at p. 803.)
    When the store’s security guards confronted him, he threw the steak onto the
    roof of a nearby building and ran. (Id. at pp. 803–804.) When one of the
    guards overtook the defendant, he hit the guard with a rock. (Id. at p. 804.)
    The court found insufficient evidence supported the robbery conviction
    because the defendant “used force only after he abandoned the steak. Thus,
    7
    he did not ‘rel[y] on force or fear to gain possession or to maintain
    possession.’ ” (Ibid., quoting Gomez, 
    supra,
     43 Cal.4th at p. 265.)
    Armstrong argues his case is no different than Etheridge because he
    used force only after dropping the drink. (Etheridge, supra, 241 Cal.App.4th
    at p. 804.) However, the surveillance video shows Armstrong dropped the can
    only as he swung to punch Miguel. Unlike the defendant in Etheridge,
    Armstrong did not throw the property and then flee the scene before
    attacking store personnel. (Id. at pp. 803‒804.) Rather, he attempted to open
    the door with the drink, then dropped the can within his vicinity and
    immediately attacked the store employee. Armstrong’s assaultive behavior
    was sufficiently contemporaneous with the taking of the can to create a
    reasonable inference that he intended to keep the drink, given that robbery is
    “a continuing offense ... from the time of the original taking until the robber
    reaches a place of relative safety.” (Estes, supra, 147 Cal.App.3d at p. 28.)
    These facts supported the jury’s findings that Armstrong did not
    abandon the stolen property and that he intended to take the drink. (See
    Pham, supra, 15 Cal.App.4th at pp. 64, 66‒67 [Though the defendant dropped
    the stolen property right before using force against the owner, the court
    found substantial evidence supported the defendant’s robbery conviction.].)
    The jury was free to reject Armstrong’s contrary testimony. (See People v.
    Silva (2001) 
    25 Cal.4th 345
    , 369 [A rational trier of fact may disbelieve the
    portions of a defendant’s statements that are self-serving.].) It is not our role
    to reevaluate its findings. (Albillar, 
    supra,
     51 Cal.4th at p. 60.)
    8
    DISPOSITION
    The judgment is affirmed.
    McCONNELL, P. J.
    WE CONCUR:
    KELETY, J.
    CASTILLO, J.
    9
    

Document Info

Docket Number: D080132

Filed Date: 7/17/2023

Precedential Status: Non-Precedential

Modified Date: 7/17/2023