People v. Ricardo CA3 ( 2021 )

Filed 1/15/21 P. v. Ricardo CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C091745
Plaintiff and Respondent, (Super. Ct. No. 19FE006222)
v.
ROBERT DANIEL RICARDO,
Defendant and Appellant.
Defendant Robert Daniel Ricardo fought a loss prevention officer while trying to
remove merchandise from a store. He was convicted of attempted robbery based on
People v. Estes (1983) 147 Cal. App. 3d 23 (Estes), which found a robbery occurs when
force or fear is used to retain possession of stolen goods. Defendant makes two related
arguments on appeal: (1) Estes is invalid because it improperly interprets the
requirements for robbery; and (2) even if it is valid, there can be no crime of attempted
Estes robbery. We will affirm.
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BACKGROUND
At a home improvement store, defendant took a can of spray paint, concealed a
power tool in his jacket, and headed to one of the store’s exits, away from the cash
registers, before he was confronted by Timothy Tipton, a loss prevention officer.
Defendant dropped the can of paint, but refused to drop the power tool when requested,
and sprayed pepper spray towards Tipton, burning Tipton’s face and eyes. Defendant
then headed towards the parking lot. Tipton tried to stop defendant, and the two
struggled, falling to the ground just outside the store. Two other shoppers then helped
Tipton restrain defendant until sheriff’s deputies arrived and arrested defendant.
Defendant admitted he took product from the store because he understood their policy
was to not chase thieves.
Defendant was charged with attempted robbery (Pen. Code, §§ 664, 211),1
unlawful possession of tear gas by a convicted felon (§ 22810, subd. (a)), and unlawful
use of tear gas (§ 22810, subd. (g)(1)). It further was alleged that defendant had three
prior strike convictions (§§ 667, subd. (e)(2), 1170.12, subd. (c)(2)).
After a jury trial, the jury found defendant guilty on all three counts. At
sentencing, the trial court found the prior conviction allegations true and that they fell
within the three strikes law. The trial court then sentenced defendant to the middle term
of two years for attempted robbery, doubled to four years for the prior strike, plus eight
months (one-third the midterm) for possession of tear gas, doubled to 16 months for the
prior strike conviction, for a total term of five years four months. The court also imposed
eight months (one-third the midterm) for unlawful use of tear gas but stayed this sentence
pursuant to section 654.
1 Undesignated statutory references are to the Penal Code.
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DISCUSSION
Defendant challenges his attempted robbery conviction, arguing Estes incorrectly
expanded the scope of a robbery to include what would otherwise be a common law
larceny, and that, when the law is correctly interpreted, there was insufficient evidence to
support his attempted robbery conviction. Defendant also asserts that, assuming Estes is
valid, there cannot be a crime of attempted Estes robbery. We disagree with both
contentions.
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.” (§ 211.) An attempted robbery consists of two elements: (1) the
specific intent to rob; and (2) a direct, unequivocal, but ineffectual, overt act towards the
commission of the intended robbery. (People v. Dillon (1983) 34 Cal. 3d 441, 454-456 &
fn. 4; People v. Vizcarra (1980) 110 Cal. App. 3d 858, 861.)
The court in Estes found that a thief who uses force or fear to retain stolen
property has committed a robbery. (Estes, supra, 147 Cal. App. 3d 23.) The defendant
had walked out of a store with clothing he did not purchase, a security guard employed
by the store confronted him outside, and the defendant pulled out a knife and threatened
to kill the guard. (Id. at p. 26.) The defendant argued he did not commit a robbery
because, in part, “the merchandise was not taken from the ‘immediate presence’ of the
security guard.” (Id. at p. 27.) The court disagreed because defendant had used force to
retain possession of the merchandise, finding that “[b]y preventing the guard from
regaining control over the merchandise, defendant is held to have taken the property as if
the guard had actual possession of the goods in the first instance.” (Ibid.)
In reaching its conclusion, the Estes court relied on People v. Anderson (1966) 64
Cal. 2d 633, in which a defendant was found guilty of robbery after asking a salesperson
to see a gun and ammunition, then loading the gun and robbing the shop. Though force
or fear was not used to take possession of the gun, the Supreme Court found that “the
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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.” (Id. at p. 638.) The Estes court concluded, “as in Anderson, a robbery
occurs when defendant uses force or fear in resisting attempts to regain the property or in
attempting to remove the property from the owner’s immediate presence regardless of the
means by which defendant originally acquired the property.” (Estes, supra, 147
Cal.App.3d at pp. 27-28.) Robberies in which force or fear are used against the victim to
retain, as opposed to obtain, stolen goods are commonly referred to as “ ‘Estes
robberies.’ ” (Miller v. Superior Court (2004) 115 Cal. App. 4th 216, 223.)
The initial hurdle for defendant is the validity of Estes. He asserts Estes is counter
to the common law understanding of robbery, which required force or fear to obtain
possession of the stolen goods. (See 3 LaFave, Substantive Criminal Law (3d ed. 2020)
Offenses Against Property, § 20.3(e) [“under the traditional view it is not robbery to steal
property without violence or intimidation”].) But, as defendant acknowledges, the
Supreme Court has approved and adopted Estes’s analysis. (People v. Gomez (2008) 43
Cal. 4th 249, 261 [“The force or fear element of robbery can be satisfied during either the
caption or the asportation phase of the taking,” citing People v. Anderson, supra, 64
Cal.2d at p. 638, and Estes, supra, 147 Cal.App.3d at p. 28]; People v. Williams (2013)
57 Cal. 4th 776, 787 [“Because larceny is a continuing offense, a defendant who uses
force or fear in an attempt to escape with property taken by larceny has committed
robbery,” citing Estes, at pp. 27-28].) We are bound by these decisions. (Auto Equity
Sales, Inc. v. Superior Court (1962) 57 Cal. 2d 450, 455.)
Defendant’s secondary argument is that, assuming Estes is valid, there can be no
crime of attempted Estes robbery because an Estes robbery is completed once force or
fear is applied to the victim to retain the property. Defendant acknowledges there also is
case law directly against this position in People v. Robins (2020) 44 Cal. App. 5th 413
(Robins), but argues the analysis in Robins is flawed.
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Robins involved an Estes robbery. The defendant’s accomplice removed clothing
from a store without paying, dropped all the merchandise during a confrontation with a
loss prevention officer, and then defendant physically threatened the officer before
escaping. (Robins, supra, 44 Cal.App.5th at p. 417.) “[E]ven though the evidence
suggested a completed robbery,” the trial proceeded only on the charge of attempted
robbery because the evidence suggested the accomplice dropped the merchandise before
confronting the officer. (Id. at p. 418.) On appeal, the defendant made the same
arguments defendant does now: “the concept of an attempted Estes robbery is incoherent
and cannot logically exist. And because the crime does not exist, the argument goes,
defendant cannot be convicted of it.” (Ibid.)
The key, the court found, was the concept of a “successful attempt” under section
663. (Robins, supra, 44 Cal.App.5th at p. 420.) This provision provides that “[a]ny
person may be convicted of an attempt to commit a crime, although it appears on the trial
that the crime intended or attempted was perpetrated by such person in pursuance of such
attempt . . . .” (§ 663.) “As our high court explained, ‘Under section 663, a defendant
can be convicted of an attempt to commit a crime even though the crime, in fact, was
completed.’ [Citation.]” (Robins, at p. 420.) The court therefore rejected the assertion
an attempted Estes robbery does not exist, explaining, “[E]ven if every attempted Estes
robbery is necessarily a completed crime, the crime of attempt still exists and may be
punished under section 663.” (Robins, at p. 421.) The court added, “[W]e are loath to
adopt a rule that would allow a defendant to go unpunished because he committed the
greater offense and not the lesser.” (Ibid.)
We find Robins persuasive and apply it here. The jury in this case was instructed
that “[d]efendant may be guilty of attempt[ed] [robbery] even if you conclude that
[robbery] was actually completed.” This is a correct statement of the law. (People v.
Hubbard (2020) 52 Cal. App. 5th 555, 568 [“ ‘[A] defendant can be convicted of an
attempt to commit a crime even though the crime, in fact, was completed’ ”].) Thus,
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even if defendant completed the robbery, defendant was properly convicted of an
attempted robbery.
DISPOSITION
The judgment is affirmed.
KRAUSE , J.
We concur:
ROBIE , Acting P. J.
HOCH , J.
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