Opinion
G056583
01-28-2020
THE PEOPLE, Plaintiff and Respondent, v. JORDAN PATTERSON BANDY, Defendant and Appellant.
Sandra Gillies, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Tami Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15HF0654) OPINION Appeal from a judgment of the Superior Court of Orange County, Julian W. Bailey, Judge. Affirmed. Sandra Gillies, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Tami Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent.
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Jordan Patterson Bandy accosted two 7-Eleven employees when they tried to stop him and his friend, co-defendant Landon Widerburg, from stealing beer. At trial, Bandy was convicted of two counts of robbery and sentenced to a term of probation and 270 days in jail.
Bandy argues that there was insufficient evidence to convict him of one count of robbery because his co-defendant had escaped with the beer before Bandy used force on one of the clerks. He also argues the prosecutor misstated the law concerning constructive possession, temporary safety, and unchallenged possession during closing argument. Finally, he argues the court erred in declining to instruct the jury on a mistake of fact defense. We disagree and affirm the judgment.
FACTS
On June 18, 2015, at 1:50 a.m., Bandy and Widerburg entered a 7-Eleven convenience store where M. Fernandez and N. Bhandari were working. Widerburg bought two hot dogs, a bottle of water, and cigarettes. Bandy went to the cooler and brought a six-pack of beer to the counter. Because Bandy and Widerburg appeared to be drunk, Bhandari told them he would not sell them the beer. The two men both argued with Bhandari, and at one point Widerburg said, "[d]on't worry, I'll buy it." Bhandari still refused to sell them the beer and returned it to the cooler.
While Widerburg followed Bhandari back to the cooler, Bandy remained at the counter arguing with Fernandez. Finally, Bandy threw his ID, credit card, and cash on the counter, and told Fernandez, "This is bullshit. You're going to sell me alcohol." After Bhandari put the beer back in the cooler, Widerburg removed it and said that he would steal it if Bhandari would not sell it to him. Widerburg then walked out of the store with the beer laughing. Bhandari chased him and yelled, "Stop, stop. I'm going to call the cop[s]."
Bhandari caught up to Widerburg and tried to take the beer back from him. Bandy followed Widerburg out of the store. He then punched Bhandari in the mouth, and Bhandari fell to the ground. Fernandez exited the store and tried to help Bhandari. He said that he did not see Widerburg in the parking lot at that time. Fernandez told Bandy to leave and Bandy tried to hit him. Bhandari went back inside the store to call the police. Fernandez tried to follow him. Bandy followed Fernandez to the front door. Fernandez then attempted to push Bandy away, and both men ended up on the ground.
Bhandari and Fernandez were able to hold Bandy on the ground. Widerburg returned and punched Bhandari multiple times. Bandy and Widerburg then ran away, jumping over a wall into an adjacent parking lot, where they were detained by responding police officers. The beer was found under a bush in the parking lot about 60 feet away from the 7-Eleven.
Before closing argument, Widerburg's counsel asked the court to give the jury instructions regarding claim of right and mistake of fact. Bandy's counsel joined in the request arguing: "As to Mr. Bandy . . . you have Widerburg paying for items, paying for whatever he's getting, also paying for his own items. I think it's clear he's not aware of what's paid for or what's not. He very well could have the mistaken belief that what co-defendant took he was entitled to take." The court denied the requests.
The court instructed the jury before argument. The instructions included CALCRIM No. 200, which reads in part: "You must follow the law as I explain it to you, even if you disagree with it. If you believe that the attorneys' comments on the law conflict with my instructions, you must follow my instructions." The instructions also included CALCRIM No. 1600, which set forth the elements of robbery. That instruction informed the jury that "Two or more people may possess something at the same time. [¶] A person does not have to actually hold or touch something to possess it. It is enough if the person has control over it or the right to control it, either personally or through another person."
During closing argument, the prosecutor told the jury that Bandy was guilty of robbery because he was in constructive possession of the beer. He read the jury the instruction for constructive possession and argued Bandy had the right to control and share in the control of the beer: "These are the examples of defendant Bandy's control or right to control that beer with defendant Widerburg. So this is not a one-person isolated event. They both show up to the 7-Eleven store. They were hanging out that evening together. They're roommates. They both attempt to acquire the six-pack for their joint consumption of the beer. This is not something that only one of them is going to enjoy for themselves. They're doing it together. They're sharing in control of that beer."
During rebuttal argument, the prosecutor added this "They're going to share in the consumption of the beer. That by itself is enough to demonstrate that Bandy was going to control the beer, had a right to control it amongst both he and Widerburg." Widerburg's counsel objected. In response, the court told the jury, "These are arguments. You determine what the facts are . . . from the evidence." The prosecutor also argued the robbery was still in progress when Bandy assaulted Fernandez because at that moment Widerburg had not reached a place of temporary safety.
DISCUSSION
1. The Sufficiency of the Evidence
Bandy argues that there was insufficient evidence to convict him of the robbery of Fernandez because Widerburg had escaped with the beer before Bandy used force on Fernandez. We disagree.
"In reviewing a challenge to the sufficiency of evidence, the reviewing court must determine from the entire record whether a reasonable trier of fact could have found that the prosecution sustained its burden of proof beyond a reasonable doubt. In making this determination, the reviewing court must consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt." (People v. Mincey (1992) 2 Cal.4th 408, 432, fn. omitted.)
The law defining robbery is well-established. "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." (Pen. Code, § 211.) "[R]obbery is a continuing offense that begins from the time of the original taking until the robber reaches a place of relative safety." (People v. Estes (1983) 147 Cal.App.3d 23, 28.) A robber has not reached a place of relative safety if "an immediate and active pursuit to recover the property is in progress." (People v. Debose (2014) 59 Cal.4th 177, 205.)
There was substantial evidence Bhandari was attempting to apprehend Widerburg, who had the stolen beer, when Bandy attacked him. Bandy then pursued Fernandez and fought with him. The store clerks' pursuit of Widerburg and the stolen beer did not end until the police arrived and Widerburg was arrested. Although Widerburg may have been momentarily out of view of the clerks, the jury could nonetheless reasonably conclude that he had not reached a place of temporary safety. If that were the case, the robbery was still in progress. There was substantial evidence to support the conviction.
2. Prosecutorial Error
Bandy argues that the prosecutor misstated the law related to constructive possession, temporary safety, and unchallenged possession during closing argument. He cites People v. Scott (2009) 45 Cal.4th 743 (Scott) and asserts the prosecutor misstated the law of constructive possession by arguing that Bandy was in constructive possession of the stolen beer because he and Widerburg intended to share it. We disagree.
In Scott, the Supreme Court explained, "In the context of possession of contraband, constructive possession may be shown by establishing that the accused 'maintained some control or right to control over contraband in the physical possession of another.' [Citation.] The definition and application of the concept of possession in this context involve an 'inquiry into when the law may punish an individual who is exercising such a degree of intentional direction over contraband that he can be justifiably and fairly punished in the same manner as if he were indeed in actual physical possession of a controlled substance. Implementation of this policy necessarily encompasses a potentially wide variety of conduct in a wide variety of settings, all directed by such factors as the alleged offender's capacity to direct the illicit goods, the manifestation of circumstances wherein it is reasonable to infer such capacity exists and the degree of direction being exercised by the accused over the contraband.'" (Scott, supra, 45 Cal.4th at p. 757.)
The prosecutor's argument did not violate Scott. The prosecutor correctly defined constructive possession before arguing Bandy and Widerburg's joint efforts to obtain the beer showed that they each had control over it. The argument acknowledged that the issue involved a question of fact. "A prosecutor is given wide latitude to vigorously argue his or her case and to make fair comment upon the evidence, including reasonable inferences or deductions that may be drawn from the evidence." (People v. Ledesma (2006) 39 Cal.4th 641, 726.) Keeping in mind the instructions as a whole, the jury's verdict indicates it resolved this question of fact against Bandy.
Bandy also argues the prosecutor misstated the law when arguing Widerburg had not reached a place of temporary safety. Specifically, Bandy highlights the prosecutor's argument Widerburg had not run "far enough to the point where he couldn't get caught" and never got to a place where he felt safe enough to start drinking the beer.
The statements were made at the end of the prosecutor's initial argument. The prosecutor read the jury instruction regarding temporary safety immediately before making his comments. Once again, the argument recognized this was a question of fact that the jury needed to resolve. Considered in context, these were not inappropriate arguments.
The Attorney General suggests Bandy forfeited any claim on appeal related to prosecutorial error during argument because he did not make timely objections. In response, Bandy argues (1) any objection by his counsel would have been futile; and (2) if he was deemed to have forfeited such claims, the forfeiture was due to ineffective assistance of counsel. Because we have concluded the prosecutor did not err in making either comment, we forego any analysis related to forfeiture and ineffective assistance of counsel.
3. The Lack of an Instruction for a Defense of Mistake of Fact
Bandy argues the court deprived him of his Sixth Amendment right to present a defense by declining to give the jury an instruction on the mistake of fact defense. A defendant's claim of instructional error is reviewed de novo. (People v. Posey (2004) 32 Cal.4th 193, 218.)
A mistake of fact defense exists when a defendant did not form the required intent because he (1) did not know a fact or (2) mistakenly believed a fact. (Pen. Code, § 26; CALCRIM No. 3406.) The trial court must instruct on any defense supported by evidence that is "sufficient for a reasonable jury to find in favor of the defendant." (People v. Salas (2006) 37 Cal.4th 967, 982.) Applying that standard to this case, we find there was insufficient evidence to support a mistake of fact instruction.
Bandy argues that Widerburg's initial purchase of Bandy's hot dog, and Widerburg's later statement that he would buy the beer, could have led Bandy to believe that the beer had been purchased. This theory is contradicted by the actual evidence.
Bandy was present when Widerburg's attempts to purchase the beer were rebuffed. This evidence provides no basis to conclude that Bandy believed the beer had been purchased. To the contrary, he continued to try to persuade Fernandez to sell it to him after Widerburg walked back to the cooler. Bandy stopped trying to buy the beer only after Widerburg proclaimed his plan to steal it and then walked out of the store with the beer without paying for it. Bhandari followed Bandy and Widerburg out of the store and tried to take the beer back, which caused Bandy to punch him. The court was correct in declining to give a mistake of fact instruction.
4. Cumulative Error
Finally, Bandy argues his conviction must be reversed due to the cumulative effect of errors in his case. Since we have found no error in this case, this argument cannot be well taken.
DISPOSITION
The judgment is affirmed.
GOETHALS, J. WE CONCUR: BEDSWORTH, ACTING P. J. MOORE, J.