Opinion
NOT TO BE PUBLISHED
Superior Court County No. TA094893 of Los Angeles Kelvin D. Filer, Judge
Alan Stern, 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, Senior Assistant Attorney General, James William Bilderback II, Supervising Deputy Attorney General, Tita Nguyen, Deputy Attorney General, for Plaintiff and Respondent.
GILBERT, P.J.
Anthony Lloyd Tyler appeals a judgment after his conviction of simple assault (Pen. Code, § 240) and second degree robbery (id., §§ 211, 212.5). We conclude, among other things, that substantial evidence supports the finding that Tyler intended to permanently deprive his victim of her cell phone in committing robbery. We affirm.
FACTS
Tyler had a relationship with S.C., a woman he had been dating since 2005. In 2006, Tyler married another woman, but he continued to see S.C.
On December 31, 2007, Tyler called S.C. and told her to meet him at Los Cerritos Park. She told Tyler that their relationship was over and that "the only thing that was holding [them] together" was a timeshare. She said he could have the deed to the timeshare.
S.C. drove to the park to give Tyler the deed and a keychain flashlight. When she arrived, Tyler told her to follow him. She followed him in her car as he drove onto the freeway, got off at the Wilmington exit, and then drove into an industrial park.
Tyler got out, reached into S.C.'s car and took a padlock that she used for her storage unit. S.C. told him to return it. Tyler responded, "Give me my stuff first." Tyler got into his car. S.C. walked over to it and told Tyler "give me my stuff so I can leave." He laughed at her. S.C. started to walk back to her car. She accidently hit one of his tires and bent down to check her toe. Tyler got out of his car and said, "Bitch, you trying to slash my tires?"
S.C. tried to get into her car. Tyler pulled her out and punched her multiple times in her head and upper body. He grabbed her cell phone out of her hands and "threw it into the off-ramp of the freeway." She ran to her cell phone, picked it up and tried to dial 911.
S.C. testified that Tyler "drug me back to the parking lot" and "[h]e continued to smack me around." He took her cell phone, put it in his pocket, and got into his vehicle and drove away.
Nine days later Tyler contacted her again. He said that "[h]e was sorry for everything he did." They reconciled, went to a motel room together to spend the night and Tyler returned her cell phone.
In the defense case, Tyler testified that on December 31 S.C. sent him a text message. She said she would burn all of his belongings including the deed to the timeshare unless he met her that night. He agreed to meet her at Los Cerritos Park. S.C. wanted him to spend New Year's Eve with him. Tyler refused. He testified, "I told her that I had plans with my family and it was obvious that she had plans to do what she was doing for that evening. I wasn't going with her. I just wanted to obtain the deed and just go about my way."
Tyler drove away. As he was driving on the freeway, he noticed that S.C. was following him and she started "tailgating." He took the Wilmington exit and drove into a parking lot. She followed him, drove her car behind his vehicle and parked it to block him in. She slashed his back tire and then attacked him with a knife. Tyler testified that he punched her "[b]ecause I was defending myself from a brutal knife attack." He did not see her cell phone, he never threw it onto the off-ramp and he never took it from her.
DISCUSSION
I. Substantial Evidence for Robbery
Tyler contends that his robbery conviction must be reversed. He claims there is insufficient evidence to support the finding that he intended to permanently deprive S.C. of her cell phone when he took it from her. We disagree.
In deciding the sufficiency of the evidence, we draw all reasonable inferences from the record to support the judgment. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) We do not weigh the evidence or decide the credibility of the witnesses. (Ibid.)
"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." (People v. Hall (1967) 253 Cal.App.2d 1051, 1054.) "Robbery requires the specific intent to deprive the victim of his or her property permanently." (In re Albert A. (1996) 47 Cal.App.4th 1004, 1007.) "The specific intent with which an act is performed is a question of fact." (Id. at p. 1008.) "If any substantial evidence supports the trier of fact's finding on this issue, we will not disturb it." (Ibid.)
Here there was vastly different testimony about the events on December 31 from Tyler and S.C. The jury rejected Tyler's testimony and could reasonably infer from what S.C. said that Tyler forcibly took her phone, left with it and that he was acting out of rage and took the phone with a vindictive intent.
Tyler contends he had a continuing personal relationship with S.C. which refutes any intent to permanently deprive her of the phone that she used to contact him. There are various inferences that may be drawn from the evidence about this relationship. But the issue is not whether some evidence supports the defendant, it is whether there is evidence supporting the judgment. S.C.'s testimony about the way he took the phone from her with force and violence supports a reasonable inference that his intent was to permanently deprive her of possession. She said that she told Tyler in the December 31 phone call that their relationship was over. In addition, Tyler testified that when he met her to obtain the timeshare deed, he "wasn't going with her," and after obtaining the deed, he intended to "just go about [his] way." From this the jury could reasonably infer that his relationship with S.C. had ended when he took the phone and that he did not intend to return it at the time he took it.
Tyler argues that there is no evidence that he intended to permanently deprive S.C. of possession of her phone because he returned it nine days later "when they made up and resumed their affair." But the issue is his intent at the time he committed the offense. The fact that he returned the cell phone days later "does not absolve appellant of any element essential to support his conviction of robbery." (People v. Hall, supra, 253 Cal.App.2d at p. 1054.) "Even the return of property previously taken does not compel the conclusion that a defendant intended only to temporarily deprive the owner of the property." (In re Albert A., supra, 47 Cal.App.4th at p. 1008.) "[O]nce there has been a taking, 'it is no defense that the property taken was restored, even though this occurs almost immediately.'" (People v. Hill (1998) 17 Cal.4th 800, 852.)
The People claim there is evidence that Tyler intended to permanently deprive S.C. of possession of the phone because he attempted to destroy it. We agree. The jury could reasonably infer an intent to destroy the phone by his act of throwing it onto a freeway ramp. The prosecution does not have to prove that the defendant took the phone with the intent to personally retain it or use it. "[T]he taking is... robbery within the meaning of the Penal Code even if the defendant's sole intent is to destroy the property." (People v. Green (1980) 27 Cal.3d 1, 58, overruled on other grounds in People v. Martinez (1999) 20 Cal.4th 225.) The fact that Tyler was not successful in disabling it does not prevent the jury from finding an intent to destroy it.
Tyler contends he took her phone solely to prevent her from calling the police and he intended to return it. But the jury was not required to conclude that his intent was so limited or benign. Jurors could find that when he first grabbed the phone he tried to destroy it which is conduct inconsistent with an intent to return it. Moreover, at trial, Tyler did not claim that he held her phone with the intent to return it; he simply denied ever taking it. By its verdict the jury rejected his testimony and could reasonably infer that he lied because of his consciousness of guilt. But, even if one of his reasons for taking the phone was to keep it until she agreed not to contact the police or not to testify, the result would not change. After forcibly taking her property, it is not a defense that he held it in bad faith to force her to comply with his self-serving demands or to submit to an unlawful condition. (People v. Davis (1998) 19 Cal.4th 301, 312, fn. 8; In re Albert A., supra, 47 Cal.App.4th at pp. 1008-1009; People v. Serrano (1992) 11 Cal.App.4th 1672, 1677-1678; People v. Stay (1971) 19 Cal.App.3d 166, 175-176.)
Tyler claims that there is insufficient evidence to support the robbery conviction because "it is inconceivable that [he] could have derivedany benefit from the taking" of the phone. (Italics added.) But obtaining a benefit from the item the defendant takes is not an element of the offense. "The California statutes defining larceny and robbery... do not require that the taking be for the purpose of gain, and we decline to read such a requirement into their plain terms." (People v. Green, supra, 27 Cal.3d at p. 58.) The evidence is sufficient.
The judgment is affirmed.
We concur: COFFEE, J., PERREN, J.