Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. Gary J. Ferrari, Judge. Los Angeles County Super. Ct. No. NA071717
John Schuck, 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, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, and Roy C. Preminger, Deputy Attorney General, for Plaintiff and Respondent.
MALLANO, P. J.
After a crime spree involving nine different victims, a jury convicted defendant Andre Wilson of the following: second degree robbery (Pen. Code, § 211, counts 1, 2, 4, 5, 6); grand theft person (§ 487, subd. (c), counts 3, 8); and attempted second degree robbery (§§ 211, 664, counts 7, 9). As to all nine counts, the jury found true allegations that defendant had suffered three prior convictions of a serious or violent felony (§§ 1170.12, subds. (a)–(d); 667, subds. (b)–(i)), and as to counts 1, 2, and 4 through 9, that defendant had suffered a prior serious felony conviction (§ 667, subd. (a)(1)).
Subsequent statutory references are to the Penal Code unless otherwise specified.
Defendant made a motion under People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504, to strike, for purposes of sentencing, a finding that he suffered a prior serious felony conviction within the meaning of the Three Strikes law. The trial court granted the motion as to counts 3 through 9.
The trial court sentenced defendant to state prison for a term of 60 years 8 months, calculated in consecutive terms as follows: 25 years to life on count 1; 25 years to life on count 2; eight months on count 3; one year on count 4; one year on count 5; one year on count 6; eight months on count 7; eight months on count 8; eight months on count 9; and five years pursuant to section 667, subdivision (a)(1) for counts 1 through 9.
On appeal, defendant contends the following: (1) substantial evidence does not support the guilty verdicts on counts 4 (second degree robbery), 6 (second degree robbery), 7 (attempted second degree robbery), 8 (grand theft person), and 9 (attempted second degree robbery), and (2) the trial court prejudicially erred by not instructing the jury on the lesser included offenses of attempted robbery on count 6 and petty theft on count 8. We conclude substantial evidence does not support the convictions on counts 6, 7, 8, and 9, and modify the judgment to reflect convictions for the lesser included offenses on those counts. As modified, the judgment is affirmed and the matter is remanded for re sentencing.
Defendant initially challenged only the sufficiency of the evidence supporting counts 6 and 8 in his opening brief. This court then requested the parties to address the issue of whether substantial evidence supported the guilty verdicts on counts 4, 7, and 9.
BACKGROUND
I. Count 4 — Second Degree Robbery
On September 5, 2006, Caroline Jimenez was working at the Bixby Knolls Postal Center in Long Beach. Defendant entered the postal center at approximately 12:35 p.m. and asked Jimenez to give him change for a dollar so he could use a pay phone. At the time, a customer named Deveney was also in the postal center. Jimenez gave defendant the change and defendant left. Defendant returned some time later and waited in line while Jimenez assisted three to four customers in front of him. After Jimenez was done assisting those customers, defendant approached the counter where Jimenez was working, explained to her that a pay phone “ate up all his money,” and asked her for additional change. Jimenez opened the register and “[a]s [she] was getting change for a dollar, [defendant] started grabbing the money.” Jimenez testified that she tried to close the register, but could not do so because defendant was putting “too much pressure on the register” as he was grabbing the “large bills.” Jimenez was “shocked” and “scared,” and the only thing she could say was, “hey.” After defendant removed approximately $780 in cash, he was getting ready to step out of the store when Deveney grabbed defendant. Defendant punched Deveney in the face and ran out of the store. Defendant did not touch, threaten, or say anything menacing to Jimenez during the incident.
On redirect examination, Jiminez elaborated on how defendant was putting pressure on the register. She testified that she was “trying” to close the register “but... couldn’t because there [was] too much pressure that [defendant] put on the register for [her] to push it closed.” When asked by the prosecutor whether it “was his strength against [her] strength,” Jimenez testified, “Yes.”
II. Count 6 — Second Degree Robbery
On September 2, 2006, Julio Gonzalez was working as the cashier at a gas station convenience store. Around 11:00 p.m., defendant entered the store and asked Gonzalez, “Where is the gum?” Gonzalez directed defendant to some gum and defendant selected a 35-cent package. Defendant approached the register and handed Gonzalez 35 cents. Gonzalez testified that when he opened the register to give defendant change, defendant reached into the drawer to grab $20 bills. Defendant succeeded in grabbing more than ten $20 bills. Gonzalez testified that he “was trying to stop [defendant] by pulling his hand” as defendant was grabbing the bills. Gonzalez grabbed defendant’s hand and they wrestled for a couple of seconds. Gonzalez then let go of defendant’s hand and the bills dropped from defendant’s hand. After the bills dropped, defendant tried to “get them back” and Gonzalez “start[ed] fighting again.” Defendant left and ran out of the store.
On recross-examination, Gonzalez testified that the bills dropped on the counter because he was pulling defendant’s hand.
On cross-examination, Gonzalez estimated that the “grabbing of the money” took less than 30 seconds, and a total of two minutes had elapsed from the time defendant walked into the store until the time he left. Gonzalez testified that although defendant did not say anything threatening to him, defendant “hurt [Gonzalez’s] finger” during the incident.
On redirect examination, Gonzalez was asked: “Did the defendant, when he had the money in his hands, for even a short time, have control of the money?” Gonzalez testified, “Yes.” Also on redirect examination, when asked whether defendant “[got] away with any money at all,” Gonzalez testified, “I think he did, you know, I’m not sure.”
III. Count 7 — Attempted Second Degree Robbery
On August 15, 2006, Ellen Zamboni was working at a pharmacy in North Long Beach. At approximately 3:30 p.m., defendant entered the store and asked her to direct him to the nearest pay phone. Defendant then handed Zamboni a dollar bill and asked for change. Zamboni opened up the register and began counting out change with her right hand while holding the dollar bill in her left hand. Defendant leaned his body, reached over the counter and into the drawer, and said, “Never mind, I’ll just take this,” which Zamboni understood to be the cash and checks that were in the drawer. Zamboni testified that she “knocked his hand out of the way and closed the drawer with her body and told him to get the hell out of the store.” When asked whether she was “scared,” Zamboni testified, “Yes.” Zamboni testified that defendant did not push, hit, or verbally threaten her in any way.
IV. Count 8 — Grand Theft Person
On August 14, 2006, Cesar Moreno was working at a cash register at a CVS Pharmacy store in North Long Beach. Around 11:00 a.m., defendant approached Moreno at the register and asked Moreno for change for a dollar. Moreno opened the register and defendant reached into the cash drawer and took over $100 in cash. Moreno testified that he was afraid and that defendant took the cash from Moreno against his will.
V. Count 9 — Attempted Second Degree Robbery
On August 11, 2006, Jamille Salarda was working as a cashier at a Walgreen’s store in North Long Beach. Just before the store closed at 9:00 p.m., defendant entered, handed Salarda a quarter, and asked Salarda for change so he could use a pay phone. Salarda testified that after she opened the drawer to get the change, defendant grabbed the side of the drawer. Salarda “immediately” closed the drawer and defendant’s finger “got caught.” Defendant’s pulled his hand out, cursed, and ran out the store. Defendant did not leave with any money. Salarda testified that she cut her finger and hurt her shin during the incident. According to Salarda, the incident lasted a few seconds and during that time defendant did not hit, punch, or threaten her in any way.
On cross-examination, Salarda explained that she did not initially tell police officers that her shin was hurt during the incident because she did not begin to feel pain until the day after the incident.
On redirect examination, Salarda testified that when defendant reached into the drawer and grabbed it, the drawer was shaken up such that coins fell out and onto the floor below. Salarda also testified that she felt scared during the incident. On recross-examination, Salarda testified that defendant used one hand to grab the side of the cash drawer and reach for the bills inside the drawer at the same time. She did not believe that defendant was trying to remove the cash drawer altogether.
DISCUSSION
I. Substantial Evidence — Counts 4, 7, and 9
A. Defendant’s Contention
Defendant contends that substantial evidence does not support the guilty verdicts on counts 4 (second degree robbery), 7 (attempted second degree robbery), and 9 (attempted second degree robbery) because there is insufficient evidence that he took or attempted to take property by means of force or fear.
B. Relevant Authority
“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.) “Robbery of a particular person has not occurred unless property was taken from the person’s immediate presence and the defendant used force or fear to take the property or to prevent the person from resisting.” (People v. Scott (2009) 45 Cal.4th 743, 749.)
“Generally, ‘the force by means of which robbery may be committed is either actual or constructive. The former includes all violence inflicted directly on the persons robbed; the latter encompasses all... means by which the person robbed is put in fear sufficient to suspend the free exercise of... will or prevent resistance to the taking.’” (People v. Wright (1996) 52 Cal.App.4th 203, 210 (Wright).)
“When actual force is present in a robbery, at the very least it must be a quantum more than that which is needed merely to take the property from the person of the victim....” (Wright, supra, 52 Cal.App.4th at p. 210; People v. Morales (1975) 49 Cal.App.3d 134, 139 [“to elevate a taking from the person to the status of a robbery... something more is required than just that quantum of force which is necessary to accomplish the mere seizing of the property”]; People v. Burns (2009) 172 Cal.App.4th 1251, 1259 [“An accepted articulation of the rule is that ‘“[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”’”].) Constructive force, on the other hand, means “‘force, not actual or direct, exerted upon the person robbed, by operating upon [a] fear of injury....’” (Wright, supra, 52 Cal.App.4th at p. 210.) “Under California law, a theft accomplished without the use of force or fear becomes robbery if force or fear is used during asportation. [Citation.]” (People v. Jenkins (2006) 140 Cal.App.4th 805, 811.)
“‘When the sufficiency of the evidence is challenged on appeal, the court must review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence — i.e., evidence that is credible and of solid value — from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt.’” (People v. Jennings (1991) 53 Cal.3d 334, 364.) “When undertaking such review, our opinion that the evidence could reasonably be reconciled with a finding of innocence or a lesser degree of crime does not warrant a reversal of the judgment.” (People v. Hill (1998) 17 Cal.4th 800, 849.)
C. Analysis — Count 4 (Second Degree Robbery)
Jimenez testified that she opened the register drawer in order to give defendant change for a dollar. Once the drawer was open, defendant began grabbing money from the drawer. Jimenez testified that she tried to close the drawer but was unable to do so because defendant was placing “too much pressure on the register” as he was grabbing the money. When asked by the prosecutor whether it “was [defendant’s] strength against [her] strength,” Jimenez testified, “Yes.”
Had defendant simply grabbed some cash and left after Jimenez opened the register, there would have been insufficient evidence of a taking by means of force or fear. But defendant did not stop there. He placed pressure on the drawer to prevent Jimenez from closing the drawer and ultimately he took the money as a result of a struggle between his strength and Jimenez’s strength. From this evidence, the jury could reasonably infer that defendant used force in order to take the money from Jimenez. (See People v. Burns, supra, 172 Cal.App.4th 1251 [defendant grabbed purse from victim and victim pulled the purse back; defendant continued to pull on purse and then stepped on victim’s foot; victim lost her grip and defendant left with purse; court held taking was robbery because it was done by means of force].)
D. Analysis — Count 7 (Attempted Second Degree Robbery)
Zamboni testified that that she willingly opened the register to give defendant change for a dollar. When Zamboni had the drawer open, defendant reached over the counter and into the drawer and said, “Never mind, I’ll just take this.” After defendant did this, Zamboni “knocked his hand out of the way and closed the drawer with her body and told him to get the hell out of the store.” Although defendant did not push, hit, or verbally threaten her in anyway, Zamboni testified that she felt scared.
In our view, there was insufficient evidence of an attempted taking by means of force. Zamboni opened the drawer of her own free will and defendant attempted to grab the money in the drawer only once it was open.
Likewise, there was insufficient evidence of an attempted taking by means of fear. “‘“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 [her] property.’” (People v. Davison (1995) 32 Cal.App.4th 206, 212....) ‘The extent of the victim’s fear “do[es] not need to be extreme....”’ (Id. at p. 216.) ‘[T]he fear necessary for robbery is subjective in nature, requiring proof “that the victim was in fact afraid, and that such fear allowed the crime to be accomplished.”’ (People v. Anderson (2007) 152 Cal.App.4th 919, 946.)” (People v. Bordelon (2008) 162 Cal.App.4th 1311, 1319.) We recognize, as the People point out, that Zamboni testified that she felt “scared” during the incident. But the key inquiry is whether the fear caused the victim to comply with the unlawful demands for her property. Clearly, Zamboni’s fear in this case did not rise to that level as evidenced by the fact that she slammed the drawer shut and told defendant to “get the hell out of the store.”
We conclude that insufficient evidence supports defendant’s conviction of attempted second degree robbery on count 7.
“[I]f the evidence shows the defendant to be not guilty of the degree of the crime of which he was convicted, but guilty of a lesser degree thereof, or of a lesser crime included therein, the court may modify the verdict, finding, or judgment accordingly without granting or ordering a new trial, and this power shall extend to any court to which the case may be appealed.” (§ 1181, subd. (6); People v. Navarro (2007) 40 Cal.4th 668, 678 [“an appellate court may modify a verdict to reflect a conviction of a lesser included offense where insufficient evidence supports the conviction on the greater offense”].) “The purpose for allowing an appellate court to modify the judgment to a lesser included offense is to ‘obviate the necessity of a new trial when the insufficiency of the evidence only goes to the degree of the crime.’” (People v. Matian (1995) 35 Cal.App.4th 480, 487.) “The same rationale also applies under... section 1260 authorizing appellate courts to modify a judgment to reflect a conviction of a lesser, necessarily included offense when the state of the evidence warrants it.” (Matian, at p. 488; § 1260 [“The court may reverse, affirm, or modify a judgment or order appealed from, or reduce the degree of the offense or attempted offense or the punishment imposed”].)
“‘Theft is a lesser included offense of robbery, which includes the additional element of force or fear.’ [Citation.]” (People v. Bradford (1997) 14 Cal.4th 1005, 1055.) The jury in this case was instructed on the elements of grand theft and petty theft, and was also instructed that theft is a lesser included offense of robbery.
Here, there was sufficient evidence that defendant intended to take property from Zamboni as indicated by defendant’s statement, “Never mind, I’ll just take this,” and that defendant took a direct but ineffectual act toward the commission of theft, namely the act of reaching into the cash drawer. Because there was no evidence regarding the amount of cash defendant attempted to take, we modify the judgment on count 7 to reflect a conviction of attempted petty theft.
For the reasons discussed in part III concerning count 8, post, we reject the People’s argument that removing cash from a register constitutes grand theft from a person under these circumstances.
E. Analysis — Count 9 (Attempted Second Degree Robbery)
Similarly, we conclude that there was insufficient evidence of an attempted taking by force or fear on this count. With regard to fear, defendant did not say anything menacing or threatening to Salarda in any way, and she clearly opened the register believing he was only seeking change.
With regard to force, defendant did not apply any pressure to the drawer to keep it open, as he did in count 4. Rather, he simply used one hand to grab the side of the drawer and reach for the cash inside at the same time. Had defendant attempted to grab the drawer in order to remove the drawer, in the same way a purse snatcher might use force to grab a purse from someone carrying it, then there would be sufficient evidence of a taking by force. (See, e.g., People v. Jones (1992) 2 Cal.App.4th 867, 870 [evidence that defendant grabbed purse from underneath victim’s elbow held sufficient to support robbery conviction].) But Salarda specifically testified that defendant was not grabbing the drawer in a way that indicated that he intended to remove the drawer. Although Salarda did cut her finger and injured her shin during the incident, she testified that these injuries were a result of her closing the drawer, and not as a result of any force applied by defendant.
We conclude that insufficient evidence supports the conviction on count 9. For the reasons discussed above, we modify the judgment on count 9 to reflect a conviction of attempted petty theft because there was evidence that defendant intended to take property from Salarda and took a direct but ineffectual act toward the commission of that offense.
II. Sufficiency of Evidence — Count 6 (Second Degree Robbery)
A. Defendant’s Contention
Defendant argues that there was insufficient evidence to support both the possession and asportation elements of the robbery conviction on count 6.
B. Relevant Authority
As noted in part I.B., ante, “[r]obbery 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.) “The taking element of robbery itself has two necessary elements, gaining possession of the victim’s property and as porting or carrying away the loot.” (People v. Cooper (1991) 53 Cal.3d 1158, 1165.) “Where the elements of force or fear are absent, a taking from the person is grand theft, a lesser included offense of robbery. [Citations.]” (People v. Jones, supra, 2 Cal.App.4th at p. 869.) In other words, “[r]obbery of a particular person has not occurred unless property was taken from the person’s immediate presence and the defendant used force or fear to take the property or to prevent the person from resisting.” (People v. Scott, supra, (2009) 45 Cal.4th at p. 749.)
A defendant takes “possession” of property for the purposes of establishing a robbery when the defendant has “dominion and control” over the property. (People v. Beamon (1973) 8 Cal.3d 625, 635.) “The ‘interference with the owner’s possession need be only for an appreciable interval of time, be it ever so short.” (People v. Pruitt (1969) 269 Cal.App.2d 501, 505–506.) “The act of ‘taking’ begins when the separation of the victim from his property occurs, and it continues through the forcible consummation.” (People v. Webster (1991) 54 Cal.3d 411, 442.)
C. Analysis
We conclude that there was insufficient evidence that defendant took the money from Gonzalez’s register by means of force or fear. Gonzalez testified that when he opened the register to give defendant change, defendant reached into the drawer and grabbed several $20 bills. At this point, a taking had occurred, but it was not accomplished by force or fear. Defendant did not threaten Gonzalez in any way. And, unlike the robbery of Jimenez in count 4, defendant did not use any force to keep the register open while he took the money. The crime of theft, and not robbery, had occurred when defendant grabbed the $20 bills.
After defendant grabbed the $20 bills, a struggle ensued between Gonzalez and defendant for several seconds as they wrestled for the money. Defendant was certainly using force at this point in an attempt to gain possession of the money. Had defendant been successful in gaining possession of the money after this use of force, then there would have been sufficient evidence of a robbery — a taking by means of force. But Gonzalez testified that as the struggle for possession occurred, Gonzalez let go of the money and the money dropped from defendant’s hands and onto the counter. During redirect examination, the following exchange took place:
“Q. Did the defendant, when he had the money in his own hands, for even a short time, have control of the money?
“A. Yes.
“Q. And you kept wrestling with him?
“A. Yes.
“Q. And then about — do you know how long he had control of the money before you were able to get it so the money dropped on the counter?
“A. I don’t know. I don’t remember.
“Q. But was it a few seconds?
“A. Yes, it was.”
In our view, this testimony is insufficient evidence of defendant’s control over the money after the wrestling occurred. Although Gonzalez stated that defendant had “control” over the money for a few seconds, his subsequent testimony shows that he was actually wrestling with defendant for possession of the money during those few seconds. When Gonzalez stopped wrestling with defendant, defendant still did not have control over the money because the bills immediately dropped to the counter. In other words, the “act of ‘taking’” never began here because there was no “separation of the victim from his property....” (People v. Webster, supra, 54 Cal.3d at p. 442.)
Because there was no evidence that defendant ever possessed the money, we need not consider whether there was sufficient evidence of asportation. But the record supports a conviction for the lesser included offense of attempted second degree robbery. Attempted robbery is a lesser included offense of robbery; it requires “a specific intent to commit robbery and a direct, ineffectual act (beyond mere preparation) toward its commission.” (People v. Medina (2007) 41 Cal.4th 685, 694.) Defendant specifically intended to take the money by force and took a direct but ineffectual act toward the commission of a robbery, as demonstrated by his grabbing of the money and his unsuccessful struggle with Gonzalez to possess the money. For these reasons, we modify the judgment on count 6 to reflect a conviction of attempted second degree robbery.
III. Sufficiency of Evidence — Count 8 (Grand Theft Person)
Grand theft occurs “[w]hen... property is taken from the person of another.” (§ 487, subd. (c).) “‘[T]he crime of theft from the person contemplates that “... the property shall at the time be in some way actually upon or attached to the person, or carried or held in actual physical possession.... [The crime] was not intended to include property removed from the person and laid aside, however immediately it may be retained in the presence or constructive control or possession of the owner while so laid away from his person and out of his hands.”’” (People v. Williams (1992) 9 Cal.App.4th 1465, 1471 (Williams); People v. McElroy (1897) 116 Cal.583, 586 [same].)
The offense of grand theft person does not occur “unless the property is physically attached to the victim in some manner.” (Williams, supra, 9 Cal.App.4th at p. 1472 [the defendant took victim’s purse when it was lying on the car seat next to her; even though the purse remained in her immediate presence and under her actual control, court held evidence insufficient to sustain the conviction for grand theft person]; People v. Huggins (1997) 51 Cal.App.4th 1654, 1658 [defendant took victim’s purse when it was on the ground touching her foot; court held evidence was sufficient to sustain conviction for grand theft person because victim maintained physical contact with purse at all times before taking].)
Here, Moreno testified that defendant took the cash from the till after Moreno opened the register. Moreno did not testify that he was physically in contact with either the money or the till at the time of the taking in any manner whatsoever. In short, there was no evidence that the “property [was] physically attached to the victim in some manner.” (Williams, supra, 9 Cal.App.4th at p. 1472.)
In re George B. (1991) 228 Cal.App.3d 1088, cited by the People, is distinguishable. In that case, the victim was pushing a shopping cart containing a bag of groceries she had just purchased. The defendant grabbed the bag from the cart and ran off with it while the victim was still in physical contact with the shopping cart. The Court of Appeal affirmed the conviction of grand theft person, reasoning that the victim “was actively carrying the bag, not in her hands to be sure but... ‘by other means,’ i.e., through the medium of the shopping cart with which, at the time of the theft, she was both in physical contact and control.” (Id. at p. 1092.) As explained above, there is no evidence Moreno had any physical contact with the cash drawer, which was the only medium through which he could have had contact with the stolen money.
For these reasons, the conviction for grand theft person on count 8 is unsupported by the evidence. But we conclude there was sufficient evidence in the record to sustain a conviction for the lesser included offense of petty theft because defendant succeeded in taking over $100 from Moreno’s register. (People v. Shoaff (1993) 16 Cal.App.4th 1112, 1116 [“petty theft is a lesser and necessarily included offense of grand theft”].) We modify the judgment on count 8 to reflect a conviction of petty theft.
Petty theft is theft in cases other than grand theft. (§ 488.) Theft is the stealing or taking away of another’s personal property. (§ 484, subd. (a).)
IV. Instructional Error
Defendant contends the trial court committed prejudicial error by not instructing the jury on the lesser included offenses of attempted robbery on count 6 and petty theft on count 8. According to defendant, “if the lesser included offenses had been available, it is likely he would have been convicted only of those lesser included offenses as to counts 6 and 8.”
In light of our modification of count 6 from second degree robbery to attempted second degree robbery and our modification of count 8 from grand theft person to petty theft, we need not reach defendant’s instructional error argument.
DISPOSITION
The judgment is modified to reflect a conviction of attempted second degree robbery on count 6, attempted petty theft on count 7, petty theft on count 8, and attempted petty theft on count 9. In all other respects, the judgment is affirmed. The matter is remanded for re sentencing consistent with this decision.
I concur: ROTHSCHILD, J.
FERNS, J., Concurring and Dissenting.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
I dissent from the majority’s holding on count 6 but concur with the rest of the majority’s opinion.
In my view, Gonzalez’s testimony supports the first element of possession. When asked by the prosecutor whether “the defendant, when he had the money in his own hands, for even a short time, [had] control of the money,” Gonzalez testified, “Yes.” This was sufficient evidence from which the jury could conclude that defendant had control over the money for a few seconds after he used force to obtain it. “The ‘interference with the owner’s possession need be only for an appreciable interval of time, be it ever so short.’” (People v. Pruitt (1969) 269 Cal.App.2d 501, 505–506 [defendant tore open victim’s pocket, which contained money; defendant “exercised dominion” over victim’s money during the time period when the money fell from victim’s pocket to the ground].)
Gonzalez’s testimony also supports the second element of asportation. “[F]or purposes of establishing guilt, the asportation element is... satisfied by evidence of slight movement.” (People v. Cooper (1991) 53 Cal.3d 1158, 1165; People v. Clark (1945) 70 Cal.App.2d 132, 133 [“Whether [defendant] conveyed the money one yard or one mile from the presence of his victim is immaterial insofar as the element of asportation is concerned”]; People v. Pham (1993) 15 Cal.App.4th 61, 67 [“‘“Asportation... may be fulfilled by wrongfully... removing property from the... control of the owner,... even though the property may be retained by the thief but for a moment”’”].)
People v. Nazzaro (1963) 223 Cal.App.2d 375 is instructive given the similarity of circumstances to the present appeal. In that case, the defendant pointed a toy gun at a clerk in a bakery and demanded that she give him money. The defendant stood behind the clerk as the clerk proceeded to open the cash register. Once the register was open, the defendant removed some cash from the till and was then struck by the baker with a rolling pin. (Id. at p. 377.) The Court of Appeal affirmed the conviction for robbery, holding that there “was sufficient evidence to sustain a determination by the jury that the defendant removed money from the cash register and had possession and control of it for an appreciable period of time, so that the element of asportation existed.” (Id. at p. 382.)
People v. Pruitt, supra, 269 Cal.App.2d 501, is likewise instructive. In that case, the defendant sat on top of the victim and grabbed the victim’s wallet. The defendant returned the wallet while he was still sitting on the victim after he realized it contained no money. The Court of Appeal concluded that the requirement of asportation was satisfied with this evidence and affirmed the conviction for robbery. (Id. at p. 505.)
Here, Gonzalez testified that after he opened the cash register, defendant removed cash from the till. Even though the movement was slight (i.e., the distance from the till to the counter where the struggle between the two men ensued), it was akin to the degree of movement in Nazzaro and Pruitt. This slight movement was sufficient evidence for the jury to conclude that asportation occurred. (People v. Cooper, supra, 53 Cal.3d at p. 1165.) Moreover, when asked whether defendant “[got] away with any money at all,” Gonzalez testified, “I think he did, you know, I’m not sure.” While one could interpret this statement as equivocal, the jury could reasonably have interpreted this statement as positive affirmation that defendant indeed left the store with some money.
I would affirm the conviction of second degree robbery on count 6.