THE PEOPLE v. CLARENCE JOSEPH RUSSELL

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. CLARENCE JOSEPH RUSSELL, Defendant and Appellant.

B218433

Decided: November 23, 2010

Linn Davis, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Elaine F. Tumonis, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Defendant and appellant, Clarence Joseph Russell, appeals the judgment entered following his conviction, by jury trial, for robbery (2 counts) and petty theft with a prior, with prior serious felony conviction and prior prison term findings (Pen.Code, §§ 211, 666/484, 667, subds.(a)-(i), 667.5).   He was sentenced to state prison for a term of 15 years.

The judgment is affirmed.

BACKGROUND

Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established the following.

On February 5, 2009, Arturo Rodriguez was working as a sales manager at an AutoZone store in Lynnwood.   One of his job responsibilities was to prevent shoplifting.   Defendant Russell came into the store and started looking at air fresheners.   Rodriguez saw Russell putting things into his jacket.   He signaled to Jaime Sanchez, his co-worker.   Both Rodriquez and Sanchez saw Russell put air fresheners into his jacket pocket, and Rodriquez went over to confront him.

Russell started to walk out of the store, so Rodriguez and Sanchez followed him.   Rodriguez called out, “Hey, I saw what you did,” to which Russell replied, “You didn't see nothing'.  “ Russell walked to a parked car.   Rodriguez followed him and said, “ ‘Stop. You know, I saw what you did.’   “ Russell replied, “Nah, you didn't see shit.”   Sanchez told Rodriquez to write down Russell's license plate number.   Rodriquez testified he started to write it down, but then Russell “looks at me, and he kind of like lifts up his jacket, and he has ․ a little pocketknife.”   The knife was folded up and clipped to Russell's waistband;  it was about four and a half inches long.   Asked how long Russell held his shirt up, Rodriguez testified:  “It was quick.   He just brandished it.   It was more like just showed it to me (indicating).”

Asked what he was thinking when he saw Russell leave the store with the air fresheners, Rodriguez testified:  “I'm thinking of trying to get them back.”   When he saw Russell's knife, Rodriguez thought to himself:  “[W]hat is he gonna do now?   Is he gonna try to do something or is he just gonna try to scare me?”   Seeing the knife made Rodriquez momentarily stop writing down the license plate number, but he resumed when Russell got into his car.

Sanchez testified that when he followed Russell out of the store he felt nervous and he was hoping Russell would just drop the air fresheners onto the ground so he could retrieve them.   However, Sanchez decided to approach Russell's car in order to get the license number so he could report it to the police.   When Russell opened his jacket and displayed the knife, Sanchez felt afraid:  “I didn't want to get closer.   I was scared.”   Sanchez testified that, after getting into his car, Russell yelled at them “Fuck you.   I didn't take shit.”   At that point, Russell drove off.

The victims subsequently gave the license number to the police, who tracked down the car.   When Russell was arrested a week later, he admitted taking the air fresheners but denied having had a knife.

CONTENTION

There was insufficient evidence to sustain the “force or fear” element of robbery.

DISCUSSION

Russell contends there was insufficient evidence of the force or fear element of robbery.   This claim is meritless.

1. Legal principles.

“In assessing a claim of insufficiency of evidence, the reviewing court's task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence - that is, evidence that is reasonable, credible, and of solid value - such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.  [Citation.]  The federal standard of review is to the same effect:  Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  [Citation.]  The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence.  [Citation.]  ‘ “Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court[,] which must be convinced of the defendant's guilt beyond a reasonable doubt.  ‘ “If the circumstances reasonably justify the trier of fact's findings, the

“ ‘An appellate court must accept logical inferences that the [finder of fact] might have drawn from the circumstantial evidence.’  [Citation.]  ‘Before the judgment of the trial court can be set aside for the insufficiency of the evidence, it must clearly appear that on no hypothesis whatever is there sufficient substantial evidence to support the verdict of the [finder of fact].’  [Citation.]”  (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.)  “Perhaps the most fundamental rule of appellate law is that the judgment challenged on appeal is presumed correct, and it is the appellant's burden to affirmatively demonstrate error.  [Citation.]  Thus, when a criminal defendant claims on appeal that his conviction was based on insufficient evidence of one or more of the elements of the crime of which he was convicted, we must begin with the presumption that the evidence of those elements was sufficient, and the defendant bears the burden of convincing us otherwise.   To meet that burden, it is not enough for the defendant to simply contend, ‘without a statement or analysis of the evidence, ․ that the evidence is insufficient to support the judgment[ ] of conviction.’  [Citation.]  Rather, he must affirmatively demonstrate that the evidence is insufficient.”   (Ibid.)

“Section 211 defines robbery as the felonious taking of personal property in the possession of another from his or her person or immediate presence and against his or her will accomplished by means of force or fear.   Section 212 defines the element of fear as including the fear of an unlawful injury to the person robbed or the fear of an immediate and unlawful injury to the person or property of anyone in the company of the person robbed at the time of the robbery.”  (People v. Brew (1991) 2 Cal.App.4th 99, 103-104, italics added.)  “[M]ere theft becomes robbery if the perpetrator, having gained possession of the property without use of force or fear, resorts to force or fear while carrying away the loot.  [Citations.]”  (People v. Cooper (1991) 53 Cal.3d 1158, 1165, fn. 8.) “[W]hen the prosecution seeks to prove a robbery was committed by means of fear, it must present evidence ‘from which it can be inferred that the victim was in fact afraid, and that such fear allowed the crime to be accomplished.’  “ (People v. Cuevas (2001) 89 Cal.App.4th 689, 698.)

2. Discussion.

Russell argues the prosecution failed to prove he used the knife to accomplish his theft of the air fresheners.   We disagree.

“Most robberies involve actual or threatened force, resulting in fear on the part of the victim, at the time the property is taken.  [Citation.]  However, the requisite fear need not be the result of an express threat.”  (People v. Flynn (2000) 77 Cal.App.4th 766, 771;  see People v. Garcia (1996) 45 Cal.App.4th 1242, 1246, disapproved on another ground in People v. Mosby (2004) 33 Cal.4th 353, 365, fn. 2 [sufficient evidence of force or fear where defendant's polite tap of cashier caused her to fear defendant might be armed];  People v. Davison (1995) 32 Cal.App.4th 206, 214 [sufficient evidence of force or fear where two men confronted victim at ATM and ordered her to “stand back”].)  “So long as the perpetrator uses the victim's fear to accomplish the retention of the property, it makes no difference whether the fear is generated by the perpetrator's specific words or actions designed to frighten, or by the circumstances surrounding the taking itself.”  (People v. Flynn, supra, 77 Cal.App.4th at p. 772.)

Russell argues the victims had no reason to be afraid of his knife because he only flashed it momentarily, they were standing “beyond the range of the knife,” and they had never intended to get close to him.   We are not persuaded.   The evidence showed Russell's victims followed him out of the store and into the parking lot because they intended to retrieve the stolen property, either by confronting him or by taking down his license plate number.   The evidence showed Russell tried to frighten the victims both by displaying the knife and by his aggressively hostile manner:  he cursed them and angrily denied having stolen anything when, of course, he had.   The evidence showed Russell succeeded in scaring his victims.   The evidence also showed there was nothing unreasonable about their fear:  Russell was within 10 or 12 feet of them when he flashed his knife.

Russell also argues there was no evidence the victims' fear allowed the crime to be accomplished because, “[o]nce he reached his car, two on foot employees were incapable of pursuing [him] or stopping his getaway with stolen merchandise.”   But the victims did not need to stop Russell's car themselves;  getting his license number so the police could track him down was sufficient.

In sum, there was ample evidence of the “force or fear” element to sustain Russell's robbery convictions.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

CROSKEY, J. ALDRICH, J.