People v. Macias CA4/1 ( 2022 )

Filed 7/18/22 P. v. Macias CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D078868
Plaintiff and Respondent,
v. (Super. Ct. No. SCE400946)
JESUS DANIEL MACIAS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Patricia K. Cookson, Judge. Affirmed.
Heather Lee Beugen, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Daniel Rogers, Christopher P. Beesley and Kristen
Kinnaird Chenelia, Deputy Attorneys General for Plaintiff and Respondent.
A jury convicted Jesus Daniel Macias of attempted robbery of victim
S.A. (Pen. Code,1 §§ 211, 664; count 2) and exhibiting a deadly or dangerous
1 Undesignated statutory references are to the Penal Code.
weapon other than a firearm, a misdemeanor (§ 417, subd. (a)(1); count 3). It
found true allegations that Macias personally used a deadly and dangerous
weapon—a knife—during the commission of count 2 within the meaning of
sections 12022, subdivision (b)(1), and 1192.7, subdivision (c)(23). The jury
acquitted Macias of assault with a deadly weapon (§ 245, subd. (a)(1); count
1), and the lesser included offense of simple assault. The court suspended
imposition of sentence on count 2 and placed Macias on a two-year grant of
formal probation, including 365 days in county jail as well as various other
terms and conditions. It then denied probation as to count 3 and sentenced
Macias to 364 days in county jail. It stayed imposition of all fines and fees on
the ground Macias had no ability to pay them.
Macias contends we must reverse his attempted robbery conviction
because there is insufficient evidence he either (1) specifically intended to
commit robbery or (2) committed an overt act—a direct but ineffectual step—
towards its commission. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In July 2020, S.A. parked his truck in a liquor store parking lot after
the end of his work day. He was sitting in the driver’s seat with the windows
rolled down when a man, later identified at trial as Macias, walked up and
demanded S.A. give him money. S.A., who observed the man looked dirty
and appeared to be under the influence of something, said no. Macias put his
hand in his pocket and told S.A. that if S.A. did not give him money, he was
going to cut S.A.’s tires. Macias then walked behind S.A.’s truck, so S.A.
exited the vehicle to confront him and saw Macias had a seven- or eight-inch
long knife in his hand. S.A. feared for his own safety. Macias came toward
S.A., who told Macias to calm down or S.A. would call the police. Macias got
much more upset and came closer to S.A. with the knife in his closed fist
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while making strange faces. According to S.A., “[Macias] was already
threatening me, and it was right then when I called the police.” S.A. testified
Macias got about two feet away from him before S.A. called police. Macias
left while S.A. called police.
Police responding to the 911 call later found Macias less than one mile
from the liquor store. Macias matched the suspect’s description. Officers
handcuffed him without incident, and one officer pulled a folding knife from
the front right pocket of Macias’s shorts. The knife had a tab for quickly
flipping the knife out, as well as a clip on its handle for securing it to a pocket
or waistband.
DISCUSSION
I. Standard of Review
The applicable standard is well-settled. “ ‘We “ ‘ “must review the
whole record in the light most favorable to the judgment below to determine
whether it discloses substantial evidence—that is, evidence which is
reasonable, credible, and of solid value—such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt.” ’ ” ’ ” (People v.
Parker (2022) 13 Cal.5th 1, 29.) “We consider ‘ “whether . . . any rational
trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” ’ [Citation.] ‘[A] reviewing court “presumes in support of
the judgment the existence of every fact the trier could reasonably deduce
from the evidence.” ’ ” (People v. Holmes, McClain and Newborn (2022) 12
Cal.5th 719, 780.) When considering the sufficiency of the evidence, we do
not reweigh the evidence or question witness credibility as long as the
witness’s testimony is not inherently improbable. (People v. Reed (2018) 4
Cal.5th 989, 1006.)
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“A reversal for insufficient evidence ‘is unwarranted unless it appears
“that upon no hypothesis whatever is there sufficient substantial evidence to
support” ’ the jury’s verdict.” (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
Due to the deference we must give to the trier of fact, an appellant
challenging the sufficiency of the evidence “bears an enormous burden.”
(People v. Hunter (2017) 15 Cal.App.5th 163, 184.)
II. Elements of Robbery and Attempted Robbery
In general, “[a]n attempt to commit a crime consists of two elements: a
specific intent to commit the crime, and a direct but ineffectual act done
toward its commission.” (§ 21a.) Though it is not always clear when mere
preparation ends and attempt begins, the California Supreme Court has
“long recognized that ‘[w]henever the design of a person to commit crime is
clearly shown, slight acts in furtherance of the design will constitute an
attempt.’ ” (People v. Superior Court (Decker) (2007) 41 Cal.4th 1, 8; see also
People v. Garton (2018) 4 Cal.5th 485, 510.)
“Robbery is defined 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.’ [Citation.] Robbery requires
the ‘specific intent to permanently deprive’ the victim of his or her property.”
(People v. Mora and Rangel (2018) 5 Cal.5th 442, 489.) “ ‘An attempted
robbery requires a specific intent to commit robbery and a direct, ineffectual
act (beyond mere preparation) toward its commission.’ ” (People v. Lindberg
(2008) 45 Cal.4th 1, 24; see also Mora and Rangel, at p. 489; People v.
Sanchez (2016) 63 Cal.4th 411, 470; People v. Watkins (2012) 55 Cal.4th 999,
1018; People v Medina (2007) 41 Cal.4th 685, 694.) “[N]either a completed
theft [citation] nor a completed assault [citation], is required for attempted
robbery.” (Medina, at p. 694; Sanchez, at p. 470.) To commit an attempt, a
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defendant need not commit an element of the underlying offense. (Medina, at
p. 694.)
III. Analysis
Macias contends there is insufficient evidence from which a rational
juror could find beyond a reasonable doubt he had the specific intent to
commit robbery, or that he took a direct but ineffectual step toward a
robbery’s commission. We address these contentions in turn.
A. Intent to Permanently Deprive S.A. of Property
With respect to the element of intent, Macias maintains the evidence
shows only that he intended to ask or “pester[ ]” patrons coming in and out of
the liquor store for money. He points out he did not verbally threaten to
harm S.A., nor did he show S.A. the knife in response to S.A.’s refusal to
comply with his request. Rather, Macias states the evidence shows he merely
said he would cut S.A.’s tires if S.A. did not give him money, and the knife did
not come out of his pants and he did not wield it in the air until S.A. left his
truck to confront him. Macias points out he never again demanded that S.A.
give him money. Macias argues: “While a defendant’s actions can constitute
sufficient circumstantial evidence of a defendant’s specific intent to commit
robbery [citation], appellant’s actions do not clearly establish that he
intended to commit robbery when he asked [S.]A. to give him some money
outside of the . . . [l]iquor store. Appellant’s actions did not evidence an
intent to commit robbery, i.e., the taking of [S.]A.’s money by force or fear.”
The People counter that Macias’s demands to S.A. and threats to S.A.’s
property evidenced an intent to take S.A.’s money. They argue “[t]he most
reasonable inference is that when [Macias] expressly threatened to destroy
[S.A.’s] personal property if he did not give him money, he did so with the
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intent that his threat of force to [S.A.’s] property would cause [S.A.] to
relinquish his money to [Macias].”
We agree with the People. That Macias demanded money from S.A.
while at the same time making a threat to cut S.A.’s truck tires permitted the
jury to conclude Macias had the specific intent to take Macias’s money and
thereby permanently deprive him of it. As the People point out, intent to
steal is often proved by circumstantial evidence (People v. Abilez (2007) 41
Cal.4th 472, 508), and we apply the same review standard in cases involving
such evidence. (People v. Watkins, supra, 55 Cal.4th at p. 1020; People v.
Kerley (2018) 23 Cal.App.5th 513.) Here, it was sufficient that Macias
focused his intent on S.A. specifically, not patrons generally, and demanded
money from him while possessing a knife and threatening to damage S.A.’s
property. (Accord, People v. Mora and Rangel, supra, 5 Cal.5th at p. 489
[evidence was sufficient to show intent to permanently deprive a person of
their property when defendants “asked the victims for their wallets”; “as
[defendant] acknowledges, this evidence alone is sufficient to convict a person
of attempted robbery ‘in the appropriate case’ ”].) The evidence did not need
to show S.A. actually saw Macias’s knife or that Macias succeeded in actually
obtaining S.A.’s money, where the record shows Macias removed his knife
and moved to the rear of S.A.’s truck, evidence from which a jury could infer
he sought to make good on his threat in an effort to either force S.A. to hand
over his money or prevent S.A. from leaving. (Id. at p. 490 [that wallets were
not taken from the victims did not matter where the evidence showed the
defendants made their demand and permitted the victims to take steps
acquiescing to them].) The jury based its verdict upon all of the evidence, and
its conclusion that Macias possessed the intent to rob S.A. was amply
supported by these facts.
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Macias’s arguments to the contrary ask us to draw different inferences
from the evidence, which we cannot do. “[W]e are not free to reform the
verdict simply because another theory is plausible. [Citation.] Whether a
reasonable trier of fact could reach a different conclusion based upon the
same facts does not mean the verdict is not supported by sufficient evidence.”
(People v. Mora and Rangel, supra, 5 Cal.5th at p. 490.)
B. Overt Act
“The overt act element of attempt requires conduct that goes beyond
‘mere preparation’ and ‘show[s] that [defendant] is putting his or her plan
into action.’ ” (People v. Watkins, supra, 55 Cal.4th at p. 1021.) The overt act
“ ‘need not, however, be the last proximate or ultimate step toward
commission of the crime.’ ” (People v. Sanchez, supra, 63 Cal.4th at p. 470,
quoting People v. Bonner (2000) 80 Cal.App.4th 759, 764.) Further, “[w]here
the intent to commit the crime is clearly shown, an act done toward the
commission of the crime may be sufficient for an attempt even though that
same act would be insufficient if the intent is not as clearly shown.” (Bonner,
at p. 764.)
According to Macias, the record lacks substantial evidence of an overt
act, since it does not establish he committed a sufficient step toward the
commission of a robbery. He maintains he “never voiced any words from
which one could reasonably infer an intent to rob [S.]A.”; “there was no verbal
threat to harm [S.]A. if [S.A.] did not give [Macias] money”; Macias did not
“come up to [S.]A.’s pick-up truck with his knife in his hand when he asked
[S.]A. for money”; and “there was no evidence that [Macias] was wielding his
pocket knife when he said he was going to ‘poke’ [S.]A.’s tires if [S.]A. did not
give [him] any money.” Macias argues that his dirty clothing and disheveled
appearance, coupled with him asking for money from patrons of the liquor
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store, suggests he was homeless; he claims it is “not uncommon” to see a
homeless person on the street carrying a pocket knife clipped to his or her
waistband. He says that while there is evidence he held his open knife in his
fist when he approached S.A. making strange faces, these acts occurred after
he demanded money and after S.A. left his truck, and he did not demand any
money while doing so.
Macias also points out that after S.A. left his vehicle, S.A. angrily
confronted him, and posits he “could have been approaching [S.]A. while
holding his pocket knife out in front of him, because he was trying to tell
[S.]A. to back away from him.” He maintains this conclusion is supported by
the fact he was no longer exhibiting the knife by the time S.A. had retrieved
his phone from inside his truck. Macias argues the facts here are different
from those in People v. Anderson (1934) 1 Cal.2d 687, in which the court
found a defendant committed sufficient acts to constitute an attempted
robbery by concealing a gun on his person, walking into a theater entrance,
pulling out the gun and preparing to put it in a ticket office cage, when it
went off and killed a person there. (Id. at pp. 689-690.)
The People assert that Macias committed an overt act by arming
himself with a knife and making threats while approaching S.A. They
correctly point out that it is not necessary that the People prove the crime
progressed to the use of force or fear to constitute an attempt. (See People v.
Vizcarra (1980) 110 Cal.App.3d 858, 862 [while force or fear must be proved
in order to establish a conviction for robbery, “[i]t is not necessary . . . for this
element to be reflected in the overt act of an attempted robbery if the crime
has not progressed to that point”].)
We agree there is sufficient evidence of an overt act toward completing
Macias’s goal of depriving S.A. of his money. Macias did not merely arm
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himself or take other acts constituting “mere preparation.” (People v.
Watkins, supra, 55 Cal.4th at p. 1021.) He took further steps by approaching
S.A. and demanding money, threatening to use his knife to cut S.A.’s truck
tires. These acts represented “ ‘ “some appreciable fragment of the crime.” ’ ”
(Ibid.; see also People v. Moran (1912) 18 Cal.App. 209 [defendant’s act of
pushing open a door of a saloon, thrusting his head inside, then fleeing after
seeing a crowd of men inside while possessing a loaded gun was a sufficient
overt act for attempted robbery]; People v. Bonner, supra, 80 Cal.App.4th at
p. 764, fn. 3 [evidence was sufficient to support requisite direct act for
attempted robbery conviction where defendant “went armed to the scene,
placed a mask over his face, [and] waited in hiding moments before his
victim’s approach,” even though the defendant was never in close proximity
to either victim and made no demand for money]; accord, People v. Sanchez,
supra, 63 Cal.4th at p. 470 [summarizing Bonner with approval and finding
sufficient evidence of attempted robbery where defendant and others were
armed, arrived at a coffee shop, positioned a car for a quick getaway and
actually entered the shop, but left and lingered until the proprietor called
police].) That S.A. declined to act on Macias’s threat and did not hand over
his money does not change the result. As stated, the crime of attempted
robbery does not require proof the defendant put the victim in a state of fear
or complete the crime.
In People v. Anderson, supra, 1 Cal.2d 687, cited by Macias, the court
stated that the “[d]efendant’s conduct in concealing the gun on his person and
going to the general vicinity of the . . . theater with intent to commit robbery
may, for present purposes, be classified as mere acts of preparation.” (Id. at
p. 690.) However, the requisite overt act took place when the defendant then
entered the theater and raised his gun to the person in the ticket office.
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(Ibid.) Like Anderson, Macias did not merely arm himself and place himself
in the general vicinity of the liquor store, he went ahead and approached S.A.
to demand money using threats to damage S.A.’s truck tires if he did not
hand it over.
Nor was it necessary for Macias to display his knife in a menacing
manner to S.A. before or while asking for money and making his threats, as
Macias contends. In People v. Bonner, supra, 80 Cal.App.4th 759, it was not
necessary for the defendant to show his victims his gun, or even get in close
proximity to them, for this court to find an overt act toward a commission of
robbery had occurred. (Accord, People v. Sanchez, supra, 63 Cal.4th at p.
470.) Here, as in Bonner, we hold substantial evidence supports the jury’s
verdict for attempted robbery.
DISPOSITION
The judgment is affirmed.
O’ROURKE, Acting P. J.
WE CONCUR:
IRION, J.
DO, J.
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