THE PEOPLE, Plaintiff and Respondent,
v.
MALIK CHARLES BAILEY, Defendant and Appellant.

No. A147673.
Court of Appeals of California, First District, Division Two.

Filed August 28, 2017.
Appeal from the Solano County, Superior Court No. FCR312025.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.115

MILLER, J.

A jury found defendant Malik Charles Bailey guilty of second degree robbery (Pen. Code,[1] § 211) and found true the allegation that a principal was armed in the commission of the offense (§ 12022, subd. (a)(1)). On appeal, Bailey contends he cannot be convicted of robbery based on the facts of the offense as a matter of law. He further contends the trial erred in instructing the jury.

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On the night of January 6, 2015, Mercedes Cogswell was with her boyfriend at his house in Vacaville. At some point, Cogswell and her boyfriend’s sister left the house and walked across the street to visit the sister’s friend. On their return to the boyfriend and his sister’s house, the sister ran ahead of Cogswell to cross the street.

A big black SUV with a cracked windshield pulled up next to Cogswell and stopped. The driver’s side of the SUV was closest to Cogswell, and the driver’s side window was rolled down. There were three occupants in the SUV, and Cogswell had never seen any of them before that night. The driver told Cogswell their car was breaking down and asked to use her phone. She agreed to let them use her cell phone, an iPhone 6. She entered the password in her phone and handed it to the front passenger, who reached over the driver to grab it. At trial, Cogswell identified Bailey as the front passenger.

“Right after” Bailey took the phone, Cogswell moved back from the SUV, and the passenger in the back seat sitting behind the driver pointed a gun at her. “Right after” the gun was pointed at Cogswell, the SUV drove off.[2] After the SUV drove away, Cogswell crossed the street to her boyfriend’s house and told everyone what had happened. She was crying. Cogswell called 911 to report her phone was stolen at around 11:10 p.m.

Cogswell testified that she believed the driver when he said they were having car trouble and, when she handed her phone to Bailey, she expected to get it back. When the gun was pointed at her, Cogswell was “[s]cared” and “terrified.” She wanted her phone back, but she did not do or say anything to try to retrieve her phone.

The prosecutor asked whether she would have been able to get her phone back if the gun had not been pointed at her. Cogswell answered, “I would have tried to.” She elaborated, “Yeah because it’s not a scary matter. . . . [I]f someone drives off with my phone, I would try to.” In this situation, however, she did not try to retrieve her phone “[b]ecause a gun [wa]s involved.” On cross-examination, defense counsel asked whether she would have reached into the moving vehicle to get her phone back. Cogswell responded, “No. I would have threw a rock or something.” “If there was no firearm, I wouldn’t reach into the vehicle when they’re driving. But I would have, like, said something to make them stop the car so I would have got the license plate or threw them off or something. . . .”

The Solano County District Attorney charged Bailey and codefendant Israel Sloan with second-degree robbery.[3] (§ 211.) It was further alleged that a principal in the offense was armed with a firearm (§ 12022, subd. (a)(1)), and Bailey was on bail within the meaning of section 12022.1 when he committed the robbery.

Bailey and Sloan were tried together. The jury found them both guilty of second degree robbery and found that a principal in the offense was armed. The jury further found that Sloan personally used a firearm in committing the offense. In a bifurcated trial, the trial court found true the allegation that Bailey was on bail when he committed the robbery.

Bailey was sentenced to six years in prison, consisting of the middle term of three years for the robbery, plus one year for the firearm enhancement and two years for the on-bail enhancement.

DISCUSSION

I. Sufficiency of the Evidence Supporting the Robbery Conviction

Bailey contends the robbery verdict must be set aside because there was no evidence of a taking by force or fear. Instead, he claims, the evidence established only a petty theft accompanied by aiding and abetting misdemeanor brandishing.

A. The Elements of Robbery

“Larceny requires the taking of another’s property, with the intent to steal and carry it away. [Citation.] `Taking,” in turn, has two aspects: (1) achieving possession of the property, known as `caption,’ and (2) carrying the property away, or `asportation.’ [Citations.] Although the slightest movement may constitute asportation [citation], the theft continues until the perpetrator has reached a place of temporary safety with the property.” (People v. Gomez (2008) 43 Cal.4th 249, 254-255, fn. omitted (Gomez).)

“Section 211 defines robbery as `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.’ Robbery is, therefore, `”`a species of aggravated larceny.'”‘ [Citations.] Theft by larceny may be committed without force or the threat of violence and may be completed without the victim ever being present. (See § 484, subd. (a).) To elevate larceny to robbery, the taking must be accomplished by force or fear and the property must be taken from the victim or in his presence.” (Gomez, supra, 43 Cal.4th at p. 254.)

In People v. Anderson (1966) 64 Cal.2d 633 (Anderson), the California Supreme Court recognized “a taking is not over at the moment of caption; it continues through asportation,” and “a robbery can be accomplished even if the property was peacefully or duplicitously acquired, if force or fear was used to carry it away.” (Gomez, supra, 43 Cal.4th at p. 256.)[4]

In Gomez, the Supreme Court further held that a robbery can be accomplished even “[i]f the `immediate presence’ element arises not at caption but during asportation.” (Gomez, supra, 43 Cal.4th at p. 258.) There, the “defendant seized property from the victim’s business while the victim was not present. The victim arrived on the scene before defendant departed and followed him as he was leaving. As the victim followed, defendant shot at him,” and the victim quickly drove away. (Gomez, supra, 43 Cal.4th at p. 253.) The court concluded the defendant’s acts constituted robbery, reasoning: “In robbery, the elements of larceny are intertwined with the aggravating elements to make up the more serious offense. The issue here is the temporal point at which the elements must come together. The answer lies in the fact that robbery, like larceny, is a continuing offense. All the elements must be satisfied before the crime is completed. However, . . . no artificial parsing is required as to the precise moment or order in which the elements are satisfied.” (Id. at p. 254, fn. omitted.)

In sum, “[i]f the aggravating factors are in play at any time during the period from caption through asportation, the defendant has engaged in conduct that elevates the crime from simple larceny to robbery.” (Gomez, supra, 43 Cal.4th at p. 258.)

B. Standard of Review

“In resolving sufficiency of the evidence claims, `an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.'” (Gomez, supra, 43 Cal.4th at p. 265.) We do not reweigh the evidence or determine witnesses’ credibility. (People v. Brown (2014) 59 Cal.4th 86, 106.)

Bailey suggests his claim presents a question of law subject to de novo review. His claim is that there was no evidence of a taking by force or fear as a matter of law. This is similar to the defendant’s claim in Gomez that “the evidence was insufficient as a matter of law to support his robbery conviction because the victim was not present when defendant initially took the money,” which our high court reviewed for sufficiency of the evidence. (Gomez, supra, 43 Cal.4th at pp. 254, 265.) Likewise, we review Bailey’s claims for sufficiency of the evidence.

C. Sufficient Evidence of Use of Force or Fear in Carrying Away the Phone

Bailey argues the presence of the gun did not cause Cogswell to hand over her phone, “nor did it aid in the carrying away of the property.” He continues, “The gun was not used to prevent her from trying to recover her property. The brief glimpse of the gun did not contribute to the taking because at the moment the car drew away from the curb with the iPhone inside, [Cogswell] could do nothing to get the phone back, gun or no gun. . . . [¶] And, despite the fact she testified that the sight of the gun intimidated her, it did not.”

Bailey’s argument does not demonstrate insufficiency of the evidence. As we have seen, “a robbery can be accomplished even if the property was peacefully or duplicitously acquired, if force or fear was used to carry it away.” (Gomez, supra,43 Cal.4th at p. 256.) “The use of force or fear to escape or otherwise retain even temporary possession of the property constitutes robbery,” and the element of using force or fear “includes forcing or frightening a victim into leaving the scene, as well as simply deterring a victim from preventing the theft or attempting to immediately reclaim the property.” (People v. Flynn (2000) 77 Cal.App.4th 766, 771-772 (Flynn).) In Flynn, for instance, as the female victim “walked past [a] group of men, [the] defendant grabbed a bag that hung on her left shoulder, causing her shoulder to be pulled backward. The victim was angry, shocked and afraid of being jumped. She `kept reaching for [the bag], and [the defendant] just kept pulling [it] back.’ After [the] defendant took the bag, he removed a gun and five-dollar bill and showed them to his companions. . . . The defendant screamed at the victim to get away from his car as she backed away from him.” (Id. at pp. 769-770.) On appeal, the defendant argued “the fear expressed by the victim was not created by the defendant to facilitate” the taking. (Id. at pp. 770-771.) The Court of Appeal rejected the defendant’s argument concluding, “the willful use of fear to retain property immediately after it has been taken from the owner constitutes robbery.” (Id. at p. 772.) In reaching its conclusion, the court observed, “When the perpetrator and victim remain in close proximity, a reasonable assumption is that, if not prevented from doing so, the victim will attempt to reclaim his or her property.” (Ibid. at p. 772.)

Here, Cogswell testified she was scared and terrified when she saw the gun, and she cried. She further testified that, but for Sloan pointing a gun at her, she would have thrown a rock, said something to make them stop the car, tried to get the license plate number of the SUV (to help apprehend them later), and otherwise tried to “thr[o]w them off.” This testimony was sufficient for a jury to infer that the firearm was used to retain the phone immediately after it was taken and, in fact, deterred Cogswell from taking steps to thwart the ongoing theft.

As the Attorney General observes, Bailey’s argument essentially requires a showing that the use of force or fear deters the victim from efficacious resistance or active pursuit of the robber, but the law does not impose such a requirement. We agree with the Attorney General that whether a robbery has occurred is not contingent on the victim’s ability to stop the crime from happening.

Bailey also claims that, as a matter of fact, Cogswell was not intimidated by the gun. We cannot choose to discredit Cogswell’s testimony, however. (See People v. Brown, supra, 59 Cal.4th at p. 106.) Since Cogswell’s testimony was sufficient to establish use of force or fear in carrying away the phone, Bailey’s claim of insufficient evidence fails.[5]

II. Jury Instructions

Next, Bailey raises two challenges to the jury instructions. He contends, first, the jury instruction on the law of robbery was incorrect and, second, the trial court failed to instruct the jury on larceny by embezzlement, which he now claims was a lesser included offense.

A. Instruction on Robbery with Pinpoint Instruction on Larceny by Trick

“[L]arceny requires a trespassory taking, which is a taking without the property owner’s consent.” (People v. Williams (2013) 57 Cal.4th 776, 783 (Williams).) “Larceny by trick” is a type of larceny that involves the appropriation of property, the possession of which is fraudulently acquired, but where the owner does not relinquish title. (People v. Randono (1973) 32 Cal.App.3d 164, 172; People v. Traster (2003) 111 Cal.App.4th 1377, 1387.)[6] Larceny by trick qualifies as larceny because the “fraud vitiates the property owner’s consent to the taking.” (Williams,at p. 784.)

At the prosecution’s request for a pinpoint instruction and over Bailey’s objection, the trial court modified CALCRIM No. 1600 on robbery by adding the following sentence. “When a person consents to giving property to a defendant based upon fraudulent circumstances, the fraud invalidates the consent and the property is considered to be taken against that person’s will.”[7]

On appeal, Bailey argues the pinpoint addition to the robbery instruction was wrong as matter of law, asserting, “Robbery contemplates a taking by force or fear, but a taking by fraud is not a taking by force or fear.” This argument is without merit.

As we have seen, “a robbery can be accomplished even if the property was peacefully or duplicitously acquired, if force or fear was used to carry it away.” (Gomez, supra, 43 Cal.4th at p. 256, italics added.) In other words, larceny by trick becomes robbery if the aggravating elements are present before the larceny is complete.

Bailey claims that the addition of the pinpoint instruction “suggested to the jury that taking the iPhone by fraud was the equivalent of using force or fear.” But a review of the entire instruction shows that the pinpoint language related to element 4, “The property was taken against that person’s will,” not element 3 (taken from the person or in her immediate presence) or element 5 (use of force or fear). The pinpoint instruction elaborated on the relevant type of larceny (larceny by trick), but had no effect on the aggravating elements that elevate any type of larceny to robbery. Therefore, we reject Bailey’s argument that the pinpoint instruction was likely to mislead the jury about the aggravating elements to his detriment.[8]

B. Failure to Give an Instruction on Theft by Embezzlement

Bailey contends the defense theory at trial was that he committed “theft by embezzlement,” but defense counsel failed to request CALCRIM No. 1806, the jury instruction on theft by embezzlement.[9] He further argues the trial court had a sua sponte duty to instruct on theft by embezzlement.

A trial court has a sua sponte duty to instruct on necessarily included lesser offenses that are supported by the evidence, but the duty only applies when “evidence that the defendant is guilty only of the lesser offense is `substantial enough to merit consideration’ by the jury.” (People v. Breverman (1998) 19 Cal.4th 142, 154, 162.)

“The crime of embezzlement requires the existence of a `relation of trust and confidence,’ similar to a fiduciary relationship, between the victim and the perpetrator.” (People v. Wooten (1996) 44 Cal.App.4th 1834, 1845 [because the relationship between debtor and creditor is not a special or fiduciary relationship, fraud by either is not embezzlement].) Here, it should go without saying that there was no evidence of a special relationship between Cogswell and Bailey. She had never seen him before that night. Accordingly, the trial court had no duty to instruct the jury on larceny by embezzlement.[10]

DISPOSITION

The judgment is affirmed.

Richman, Acting P.J. and Stewart, J., concurs.

Footnotes:

[1] Further undesignated statutory references are to the Penal Code.

[2] The entire incident transpired quickly. Cogswell once described the incident as lasting about 30 seconds and also testified, “Well, when it pulled up, passing them all the phone part, and then the firearm was shown and they drove off. It was quick” and “it was really short.”

[3] Sloan was the backseat passenger who pointed the gun at Cogswell. He was alleged to have personally used a firearm in the commission of the offense within the meaning of sections 12022.5, subdivision (a)(1), and 12022.53, subdivision (b). The driver was the subject of a separate juvenile proceeding.

[4] In Anderson, the defendant Anderson entered a pawnshop and asked to see a rifle and a box of shells. He said he would take the rifle, and an employee began totaling the price of the rifle plus the ammunition. Anderson then loaded the rifle and pointed it at the employee. A second employee told Anderson he could have the rifle, and to take it and leave. Anderson shot and killed the second employee. He was convicted of robbery and murder, among other things. (Anderson, supra, 64 Cal.2d 633 at pp. 635-636.) On appeal, Anderson argued there could be no robbery as a matter of law because he obtained possession of the rifle without the use of force or fear. Our high court upheld the robbery conviction, explaining: “In this state, it is settled that a robbery is not completed at the moment the robber obtains possession of the stolen property and that the crime of robbery includes the element of asportation, the robber’s escape with the loot being considered as important in the commission of the crime as gaining possession of the property. [Citations.] [¶] Accordingly, if one who has stolen property from the person of another uses force or fear in removing, or attempting to remove, the property from the owner’s immediate presence, as defendant did here, the crime of robbery has been committed.” (Id.at p. 638.)

[5] Bailey argues for the first time in his reply brief that the larceny was complete as soon as Cogswell handed the phone to him because he was already in a place of temporary safety in the SUV. We do not consider this arguments or any other arguments raised for the first time in the reply brief. (People v. Mickel (2016) 2 Cal.5th 181, 197.) We also find the argument unconvincing. We decline to conclude that a person who is still in the presence of the victim has reached a place of safety.

[6] In contrast to larceny by trick, larceny by false pretenses “is the fraudulent or deceitful acquisition of both title and possession.” (People v. Randono, supra, 32 Cal.App.3d at p. 172, italics added.)

[7] Thus, the jury was given the following instruction on the elements of robbery: “The defendants are charged in Count 1 with robbery in violation of Penal Code section 211. To prove that the defendants are guilty of this crime, the People must prove that:

“1. The defendants took property that was not their own;

“2. The property was in the possession of another person;

“3. The property was taken from the other person or her immediate presence;

“4. The property was taken against that person’s will;

“5. The defendants used force or fear to take the property or to prevent the person from resisting;

“AND

“6. When the defendants used force or fear to take the property, they intended to deprive the owner of it permanently or to remove it from the owner’s possession for so extended a period of time that the owner would be deprived of a major portion of the value or enjoyment of the property.

“The defendant’s intent to take the property must have been formed before or during the time they used force or fear. If the defendants did not form this required intent until after using the force or fear, then they did not commit robbery.

When a person consents to giving property to a defendant based upon fraudulent circumstances, the fraud invalidates the consent and the property is considered to be taken against that person’s will.

“If you find the defendants guilty of robbery, it is robbery of the second degree.

“A person takes something when he or she gains possession of it and moves it some distance. The distance moved may be short.

“The property taken can be of any value, however slight. 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, either personally or through another person.

“Fear, as used here, means fear of injury to the person himself or herself.

“Property is within a person’s immediate presence if it is sufficiently within his or her physical control that he or she could keep possession of it if not prevented by force or fear.”

[8] We find no error in the pinpoint instruction as a description of larceny by trick, but even assuming the language may be ambiguous, it is not reasonably likely the jury misunderstood and misapplied the instruction. (See People v. O’Malley (2016) 62 Cal.4th 944, 991-992 [reviewing challenged jury instruction for reasonable likelihood the jury was misled to the defendant’s prejudice and assuming jurors are intelligent and capable of understanding and correlating jury instructions].)

[9] Defense counsel requested an instruction on the lesser included offense of theft by trick (CALCRIM No. 1805), and the trial court gave that instruction.

[10] Finally, we note that Bailey spends a great deal of his opening and reply briefs discussing Williams, supra, 57 Cal.4th 776. That case involved a defendant’s commission of larceny by false pretenses, and the California Supreme Court recognized, “the crime of theft by false pretenses ends at the moment titleto the property is acquired, and thus cannot become robbery by the defendant’s later use of force or fear. (Id. at p. 787, italics added.) But this holding does not apply to Bailey’s case because there was no evidence of larceny by false pretenses here. The driver asked to borrow Cogswell’s phone, he did not ask for title to her phone, and Cogswell expected to get her phone back.