People v. Stover CA2/3 ( 2021 )

Filed 1/14/21 P. v. Stover CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B300315
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA150132)
v.
STEVEN MATHEW STOVER,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Debra Cole-Hall, Judge. Affirmed as
modified.
Katja Grosch, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Michael C. Keller and Charles J. Sarosy,
Deputy Attorneys General, for Plaintiff and Respondent.
——————————
A jury convicted Steven Mathew Stover of second degree
robbery. On appeal, he contends that the evidence was
insufficient to support his conviction and that his one-year priors
must be stricken. We reject his sufficiency of the evidence
contention but strike his one-year priors.
BACKGROUND
On March 1, 2019, a customer at a grocery store informed
an employee that Stover was taking two large buckets of laundry
detergent without paying for them. After Stover ignored requests
to leave the buckets in the store, the store’s manager followed
Stover two to three blocks from the store and asked Stover to
return the items. Stover warned the store manager not to mess
with “papa.” He swung the buckets at the store manager,
striking his arm and leg. They wrestled over the buckets until
Stover dropped them and left.
Based on this evidence, a jury found Stover guilty of second
degree robbery (Pen. Code,1 § 211). On July 29, 2019, the trial
court sentenced Stover to three years. Although the information
had alleged two priors within the meaning of section 667.5,
subdivision (b), the prosecutor elected not to pursue one and
Stover admitted the other, which was for assault (§ 245,
subd. (a)(4)). The trial court stayed the sentence on the prior.
DISCUSSION
I. Sufficiency of the evidence
Stover contends that the evidence was insufficient to prove
the force or fear element of robbery. We disagree.
1 All further statutory references are to the Penal Code.
2
To determine whether the evidence was sufficient to
sustain a criminal conviction, “ ‘ “we review the entire record in
the light most favorable to the judgment to determine whether it
contains substantial evidence—that is, evidence that is
reasonable, credible, and of solid value—from which a reasonable
trier of fact could find the defendant guilty beyond a reasonable
doubt.” ’ ” (People v. McCurdy (2014) 59 Cal.4th 1063, 1104.) We
presume in support of the judgment the existence of every fact
the trier of fact could reasonably deduce from the evidence.
(People v. Medina (2009) 46 Cal.4th 913, 919.)
Robbery is the felonious taking of personal property in the
possession of another, from his person or immediate presence,
and against his will, by means of force or fear, with the intent to
permanently deprive the victim of the property. (§ 211; People v.
Anderson (2011) 51 Cal.4th 989, 994.) Taking has two aspects:
achieving possession of the property, known as caption, and
carrying the property away, known as asportation. (People v.
Gomez (2008) 43 Cal.4th 249, 255.) “Although the slightest
movement may constitute asportation [citation], the theft
continues until the perpetrator has reached a place of temporary
safety with the property.” (Ibid.) The requisite intent must arise
before or during commission of the act of force or fear, and the
defendant must apply the force or fear for the purpose of
accomplishing the taking. (Anderson, at p. 994.) For the force to
be sufficient, the defendant must use more force than that
necessary to achieve the mere taking of the property. (Id. at
p. 995.)
If a defendant abandons the property, the defendant is still
guilty of robbery if he used force prior to abandonment. (People v.
Torres (1996) 43 Cal.App.4th 1073, 1079.) In Torres, a car owner
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discovered the defendant removing her car stereo. When
confronted, the defendant swung a screwdriver at the owner’s
friend. The defendant got out of the car with the stereo but when
the owner told him to return the stereo, the defendant complied
and left. The court found that the defendant did not have to
leave with the stereo to complete the crime. A taking
accomplished by force or fear occurred when the defendant swung
the screwdriver and got out of the car with the stereo. (Ibid.)
An Estes robbery occurs when the defendant does not use
force or fear while initially taking the property but does so to
retain it. (People v. Estes (1983) 147 Cal.App.3d 23, 27–28; Miller
v. Superior Court (2004) 115 Cal.App.4th 216, 223.) The typical
Estes robbery begins with a shoplifting that turns into a robbery
when a loss prevention officer confronts the thief, who then uses
force or fear to get away. (People v. Robins (2020) 44 Cal.App.5th
413, 419.)
This case presents the typical Estes robbery: Stover left the
store with the laundry detergent and only used force in an
attempt to retain the items when the store manager confronted
him. Stover’s argument that there nonetheless was insufficient
evidence to support his conviction relies on an improper
reweighing of the evidence. He argues that he merely swung the
buckets in an effort to abandon them. In support, he points to
the testimony of the store employee who saw Stover swing the
buckets, and according to Stover, testified that Stover swung the
buckets merely in an effort to put them down. That is not what
the employee said. She testified that Stover and the store
manager were extremely close when Stover swung the buckets,
and she “thought [Stover] was going to put them down . . . when
he turned around, but then [the store manager] jumped back. So
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it was close enough where he had to jump back away from him.”
The store employee therefore did not unambiguously say that
Stover swung the buckets while abandoning them and with no
intent to hit the store manager. Indeed, this is not how the store
manager saw it. He testified that Stover used the heavy buckets
as a “weapon,” deliberately swinging them and hitting him. And,
contrary to Stover’s argument that there was no other evidence
he intended to do anything but abandon the buckets, Stover
warned the store manager not to mess with “papa” before hitting
him with the buckets.
Stover next compares the force he used to other cases
involving what he characterizes as more egregious force. He
states that the force he used is far below that ordinarily found
necessary to support an Estes robbery. Whatever an insufficient
amount of force may be, swinging two heavy buckets filled with
laundry detergent at someone is undoubtably not it. Stover used
a sufficient amount of force to support his conviction of robbery.2
II. One-year prison priors
The trial court stayed the enhancement for a one-year
prison prior and the prosecutor did not pursue the other prior,
which the trial court did not dismiss (§ 667.5, subd. (b)).
However, after Stover was sentenced, Senate Bill No. 136 became
effective on January 1, 2020. Before that law became effective,
trial courts were required “to impose a one-year sentence
enhancement for each true finding on an allegation the defendant
had served a separate prior prison term and had not remained
free of custody for at least five years.” (People v. Jennings (2019)
2
The prosecutor did not pursue a theory that Stover
accomplished the robbery by fear.
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42 Cal.App.5th 664, 681.) Senate Bill No. 136 amended section
667.5 to limit the enhancement to prior prison terms for sexually
violent offenses, as defined in Welfare and Institutions Code
section 6600, subdivision (b). (Stats. 2019, ch. 590, § 1.) Because
Stover’s prison priors were not sexually violent offenses within
the meaning of that section, they must be stricken.
DISPOSITION
The judgment is modified to strike the two Penal Code
section 667.5, subdivision (b) enhancements. The trial court is
directed to prepare an amended abstract of judgment and to
forward it to the Department of Corrections and Rehabilitation.
As modified, the judgment is affirmed.
NOT TO BE PUBLISHED.
DHANIDINA, J.
We concur:
EDMON, P. J.
LAVIN, J.
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