People v. Moore CA2/3 ( 2020 )

Filed 12/2/20 P. v. Moore 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B298559
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. NA110625
v.
KENNITH MOORE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Laura L. Laesecke, Judge. Affirmed.
Christine Dubois, 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, David E. Madeo and Noah P. Hill,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
A jury convicted defendant and appellant Kennith Moore
of two counts of robbery. The jury found true an allegation that
Moore used a knife in the commission of the crimes. On appeal,
Moore contends the trial court was required to instruct the jury
on theft as a lesser offense of robbery, because he “abandoned”
the items he had stolen from the grocery store before he produced
a knife and waved it at store employees who had asked him to
give back the merchandise. We disagree and therefore affirm
Moore’s conviction.
FACTS AND PROCEDURAL BACKGROUND
1. Moore takes items from a grocery store then waves
a knife at store employees
On November 4, 2018, around 4:30 p.m., Timothy Thomas
was working as a security guard at the Superior Warehouse in
Long Beach. Thomas was standing outside the front of the store.
A store employee told Thomas a customer was shoplifting.
Thomas notified the manager, Saul Rodriguez, then “engaged
the customer”—later identified as Moore—and asked him if he
had “a receipt or ‘How can I help you?’ ”
Moore told Thomas “the merchandise he had was his.”
Then Moore said, “[L]eave me the fuck alone.” In the meantime,
Rodriguez came outside. He asked Thomas if he’d seen anyone
“walking out with stuff.” Thomas pointed out Moore, who was
standing at the bicycle rack. Moore was wearing a “really big”
jacket and Rodriguez “noticed that he had something.” Thomas
could see a six-pack of beer in Moore’s jacket.
Rodriguez told Moore, “ ‘Hey, just give me what you have.’ ”
Moore was “kind of like aggressive”; it seemed he just “want[ed]
to go.” When Moore “tried to grab his bicycle,” “all the things
that he had in his body started falling down.” Moore started
walking toward the sidewalk on Long Beach Boulevard, then
“just pulled out a knife” from his right jacket pocket. Moore
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extended his arm and moved the knife back and forth from side
to side. Items—including raw meat and rotisserie chicken—
were dropping from Moore’s jacket.
Thomas told Rodriguez to call the police and Rodriguez did.
Rodriguez’s 911 call was played for the jury at trial. Rodriguez
told the dispatcher, “[W]e have stopped a guy and he has a knife
and he was attacking us.”
Thomas thought Moore was going to “get his bike and
leave” but Moore started walking toward Thomas. Moore “pulled
out his knife a second time.” In the 911 call, Rodriguez told
the dispatcher, “[H]e’s coming back with the knife. Look! He’s
coming back.” Rodriguez then said, “Hey! Hey! Watch out man!”
and “Hey! Stop!”
Moore got on his bike and began to ride it. Thomas
“grabbed [Moore] from behind.” Thomas was able to get the knife
and “toss[ ] [it] to the side.” Rodriguez put his foot on the knife.
Surveillance footage from a store camera—shown to the jury at
trial—recorded the next four minutes or so. We have watched
the footage.
Moore enters the screen from the bottom left-hand corner,
riding his bike. Thomas grabs him from behind. Items fly from
Moore and land on the pavement. One item appears to be full of
liquid: it breaks and clear liquid runs down the pavement toward
the parking lot. (This is likely one of the three bottles of Ketel
One vodka that officers later found in Moore’s possession. Moore
is seen minutes later picking up a broken glass bottle off the
ground.)
Moore and Thomas struggle on the pavement. Another
man arrives and tries to help Thomas. After about two minutes
of struggle, Moore stands up. Thomas is off to the right side
of the screen. Moore picks a few items up from the pavement,
takes his bicycle, then leaves the bicycle and walks away.
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Thomas never was able to handcuff Moore. After the
scuffle, Moore made off with the handcuffs. Thomas sustained
a cut to his right hand from the broken bottle during the
altercation with Moore.
Long Beach Police Officer Juan Ortiz was called to the
area. Ortiz saw Moore sitting on a bus bench. A passerby
flagged Ortiz down and told him “the guy [who] ran from security
at the Superior” was “sitting right over there.” Moore matched
the description Ortiz had been given of the robbery suspect.
Moore made eye contact with Ortiz, immediately got up, started
walking away at a fast pace, and ran up an alley and then around
a corner. Eventually Ortiz was able to “detain” Moore. Both
Rodriguez and Thomas identified Moore in a field show-up.
Officers found cooked chicken “along” the main entrance to
the store and raw chicken lying on the nearby sidewalk. In a bag
Moore was carrying, Ortiz found two bottles of Ketel One vodka,
a third vodka bottle that was broken and empty, frozen French
fries, candy, and cookies. Officers took the items back to the
store. Rodriguez identified some of them as merchandise from
his store.
At trial, the prosecutor introduced photographs of pieces
of raw meat and of a knife lying on the pavement.
Jurors were shown video surveillance from cameras inside
the store. We have watched the footage. The video—totaling
just over four minutes—is not one continuous recording but
eight clips from different areas and aisles of the store.
In the first clip, a man enters the store wearing a zippered
jacket, zipped about halfway up, and carrying two bags, a dark
blue bag and what appears to be a white plastic grocery bag. At
trial, Moore admitted that man was him. The second clip is of
the meat aisle. Moore puts both bags down, picks up a package
from the open refrigerated case, and uses his left hand to open
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his jacket. He places the package inside his jacket with his right
hand, then adjusts his jacket as he walks toward the camera.
In the third clip, Moore opens the door of a refrigerated
case and takes out what appears to be a half gallon of milk
in a plastic container. In the fourth clip, Moore walks toward
the camera, still holding the milk, then leans forward and puts
the milk container into his jacket on the left side by reaching
in from the top with his right hand.
In the fifth clip, Moore picks up a red rectangular item. He
walks toward the camera, then steps to his right. A large poster
or display obscures the camera’s view of him. When he emerges
from behind the poster, there is no sign of the red item. Moore
adjusts his now-bulging jacket.
In the sixth clip, Moore stops and puts both bags down.
He adjusts his jacket, pulling the bottom of it over a large bulge
in his stomach area, especially to the left side.
In the seventh clip, Moore walks between cashiers’ stations,
bypassing them, walking toward the camera. In the eighth clip,
Moore leaves the store.
2. The charges, trial, verdicts, and sentence
The People charged Moore with two counts of second
degree robbery, alleging Moore took property from Thomas
and Rodriguez. As to both counts, the People alleged Moore
personally used a deadly and dangerous weapon: a knife.
Before the preliminary hearing, Moore made a motion under
Faretta v. California (1975) 422 U.S. 806 to represent himself.
The court granted the motion. After Moore was held to answer,
he successfully renewed his Faretta motion at arraignment in
the superior court.
The case went to trial in May 2019. Moore testified on his
own behalf. The court permitted Moore to testify in a narrative.
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Moore told the jury he had bought candy, cookies, potatoes,
and socks from the 99 cent store that day. Moore then stopped
at the Superior Warehouse to buy steaks. Moore testified, “When
I went through some aisles, I guess I picked something up. When
I picked something up, my intention was not to walk out of that
store with those items. Something got me sidetracked. But I
did because my hands were so full, I put the stuff on me.” Moore
had not picked up a shopping cart when he entered the store.
Moore left the store. When he got to his bike—which was
either 60 yards or 120 feet from the exit1—Thomas approached
him and asked him if he had a receipt. Moore said Thomas
“immediately tried to snatch my property and me.” Moore told
the jury he called Thomas “a fag.” Moore testified he planned
to ride away on his bike but a car almost hit him. Moore said
Thomas knocked him off his bike. Moore claimed he suffered
a broken hand. Moore testified his bike was damaged and
so he “limped away.” He said 10 or 15 police cars arrived
and he “thought I was going to lose my life right there.”
On cross-examination, Moore admitted he is the man seen
in the in-store surveillance video and that he had put something
from the meat section as well as a container of milk in his jacket.
Moore said he didn’t recall what the meat item was. When the
prosecutor pointed out in the video “a very large bulge on the left
side of [Moore’s] jacket” and asked “what items are creating that
bulge?,” Moore responded, “I don’t know.”
Moore admitted the video shows him walking past the cash
registers and leaving the store. Then he stated he paid for “some
cookies” and “one pack of meat.” When asked if he had paid for
1 Moore gave both distances in his testimony.
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the milk he had put in his jacket, he answered, “I didn’t have
no milk.” Moore claimed his receipt was in the white bag.
Moore testified that no items ever fell from his jacket.
Moore denied ever having pulled out a knife.
Before opening statements, the court gave both the
prosecutor and Moore copies of proposed jury instructions.
The court encouraged Moore to read the proposed instructions,
and offered to loan him copies of the CALJIC instruction books.
The court told Moore he “might want to look up the term, ‘lesser-
included offense.’ ” The court explained that, “contained within
robbery, there is theft.” The court told Moore, “There are only
certain times that I can give that theft instruction when you
have been charged with robbery. And right now, I don’t know
if that applies. I won’t know until I listen.”
The court continued, “Nothing that I know about right now,
though, would cause me to give it. But if you’re going to develop
that, you’re going to somehow want that instruction, then you
need to be familiar with it and make sure you ask the right
questions so that I can give you that instruction that you’re
entitled to.” Moore said he understood and had no questions
about what the court had just said.
Four days later, the court asked Moore if he had “any
issues” with the jury instructions. He said he did not.
The court instructed the jury with CALJIC Nos. 9.40
(Robbery), 9.40.2 (Robbery—After Acquired Intent), 9.40.3 (Store
Employee as Victim of Robbery), 9.41 (Robbery—Fear—Defined),
and 9.43 (Second Degree Robbery as a Matter of Law). The court
did not instruct on theft as a lesser included offense.
In his closing argument, Moore told the jury he had a knife
in his pocket and it fell out of his pocket when he “got struck from
behind.” Moore stated, “You cannot prove a knife was struck or
used against Timothy Thomas or Saul Rodriguez.” Moore said
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Thomas and Rodriguez “falsified the police report, they falsified
a printed receipt, and they falsified evidence.”
The jury convicted Moore on both counts and found the
weapon allegation true as to both. The court sentenced Moore
to seven years and four months in the state prison. The court
chose the upper term of five years on one of the robbery counts
plus one year as one-third the midterm on the second count,
plus one year plus four months (one-third the midterm) for
the weapon enhancements.
DISCUSSION
Penal Code 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. (People v. Gomez (2008) 43 Cal.4th 249,
254 (Gomez).) Robbery is, therefore, a species of aggravated
larceny. (Ibid.)
Robbery “includes two phases: acquiring the property,
and carrying it away (in the parlance of legalese: caption and
asportation).” (People v. Robins (2020) 44 Cal.App.5th 413, 418
(Robins).) In California, robbery is a continuing offense that
begins from the time of the original taking and lasts until the
robber reaches a place of relative safety. (People v. Anderson
(2011) 51 Cal.4th 989, 994.)
The type of robbery at issue here is an Estes robbery,
named for People v. Estes (1983) 147 Cal.App.3d 23 (Estes).
“What sets an Estes robbery apart from a standard robbery
is that the force or fear is used not in the acquisition of the
property, but in the escape.” (Robins, supra, 44 Cal.App.5th
at p. 419.) “The typical case starts with a shoplifting and turns
into a robbery when the thief is confronted by a [loss prevention
officer], and the thief assaults the [officer] in an attempt to get
away.” (Ibid.)
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The facts in Estes were nearly identical to ours. There, a
store security guard saw Estes take clothing from a rack, put it
on, and leave the store without paying. The guard followed Estes
outside and confronted him. Estes refused to return to the store
and began walking away. When the guard tried to detain him,
Estes pulled out a knife and swung it at the guard. (Estes, supra,
147 Cal.App.3d at p. 26; see also Gomez, supra, 43 Cal.4th at
p. 258.) The court of appeal held Estes’s use of force to prevent
the guard from retaking the property and to facilitate his escape
was sufficient to support his conviction for robbery. (Gomez,
at p. 258.)
Moore does not dispute this governing law. Instead—
having testified under oath at trial that no items ever fell from
his jacket during his interaction with Rodriguez and Thomas—
he now contends that any and all items he stole from the store
had fallen out of his jacket before he pulled out his knife and
pointed it at the store employees. Moore asserts he had “dropped
and abandoned the items he had unlawfully taken” from the
store before he “menac[ed] [Rodriguez and Thomas] with his
knife.” Accordingly, Moore argues, the trial court was required
sua sponte to instruct the jury on theft as a lesser included
offense of robbery.
A trial court must—even in the absence of a request—
instruct the jury on all general principles of law relevant to
the issues raised by the evidence. (People v. Breverman (1998)
19 Cal.4th 142, 154.) The general principles of law governing
the case are those principles closely and openly connected with
the facts before the court, and that are necessary for the jury’s
understanding of the case. (People v. St. Martin (1970) 1 Cal.3d
524, 531.) However, the court is required to give a particular
instruction sua sponte only if there is substantial evidence
from which a jury composed of reasonable people could find
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true the facts underlying the instruction. (Breverman, at p. 162.)
A sua sponte duty to instruct does not arise from the existence
of any evidence, no matter how weak. (Ibid.)
The determination whether sufficient evidence supports
an instruction must be made without reference to the credibility
of that evidence. (People v. Salas (2006) 37 Cal.4th 967, 982.)
Doubt as to the sufficiency of the evidence to warrant a particular
instruction should be resolved in the defendant’s favor. (People
v. Tufunga (1999) 21 Cal.4th 935, 944.) However, the court need
not give instructions based solely on conjecture and speculation.
(People v. Day (1981) 117 Cal.App.3d 932, 936.)
Moore contends the evidence showed he took only meat
from the store, and he dropped it “before confronting the
employees with a knife.” The record does not support that
contention.
The in-store surveillance video shows Moore taking a
package from the meat case and a container of milk from the
refrigerator.2 The video is a collection of clips; there was no
testimony that the footage contains everywhere Moore went
and everything he did within the store. For example, rotisserie
chicken was found on the sidewalk but the video doesn’t show
Moore taking chicken inside the store.
2 Moore says in his brief he “put the milk . . . back before
leaving the store” but the page he cites from the reporter’s
transcript doesn’t say that. The prosecutor asked Moore,
“Did you pay for the milk?” Moore responded, “I didn’t have
no milk.” The prosecutor began, “The carton of milk that we
saw you grab and put into your jacket—.” Moore interrupted,
“I did not have—.” The prosecutor continued, “Did you purchase
the milk?” Moore answered, “No, I didn’t.”
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Moreover, by the time Moore left the store, his jacket had
a very large bulge—much larger than one package of meat and
a half gallon of milk would cause. While showing Moore the
video on cross-examination, the prosecutor asked Moore—just
after the “red package” clip—“how many items do you have in
your jacket at that point?” Moore responded, “I don’t know.”
He did not say “two,” or “one.”
The surveillance video of the area just outside the exit
does not contain Moore’s interaction with Rodriguez and Thomas
before Moore got on his bicycle to leave. There is no video of
Moore’s display of the knife, which happened before Moore
got on the bike. There is no video that shows what items fell
from Moore’s jacket or when they fell in the sequence of events.
Rodriguez testified items had fallen from Moore’s jacket before
he pulled out the knife the first time, but the second time
Moore displayed the knife was after items had fallen.
Thomas testified he saw “some beer bottles” in Moore’s
jacket when he first encountered him outside the store. When
Thomas grabbed Moore, after Moore had twice displayed the
knife, things fell and at least one glass container broke on the
ground. When apprehended a short time later, Moore had two
unopened bottles of vodka in his bag as well as a broken vodka
bottle. On appeal, Moore asserts he had purchased that alcohol
elsewhere. But Moore never testified to that at trial, even though
given ample opportunity to tell his story in narrative form.
Moore testified he had bought candy, cookies, potatoes, and
socks at the 99 cent store. He made no mention of buying vodka,
there or anywhere else. The jury reasonably could assume that
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the dollar store does not sell Ketel One vodka for 99 cents.3 Nor
was Moore’s testimony on this point consistent. He first said
three bottles of alcohol were in his blue bag. Then he testified
“all of the glass” was in the white bag and he was “laying in
the liquor” from the white bag after Thomas grabbed him.
Moreover, as the Attorney General notes, Moore did
not voluntarily relinquish or “abandon[ ]” whatever items fell
from his jacket in any event. The meat, chicken, and bottle
of vodka fell despite Moore’s efforts to keep possession of them.
(See People v. Torres (1996) 43 Cal.App.4th 1073, 1077, 1079,
disapproved on other grounds in People v. Mosby (2004) 33
Cal.4th 353, 365, fn. 3 [no duty to instruct on theft as lesser
to robbery where defendant, while holding radio he’d removed
from victim’s car, swung screwdriver at victim’s companion;
even though defendant then placed radio on victim’s car seat,
he had used screwdriver to keep possession of victim’s property];
cf. People v. Pham (1993) 15 Cal.App.4th 61, 64, 67-68 [no duty
to instruct on attempted robbery where victim chased defendant
to stop his escape and defendant dropped victim’s property and
slugged victim in the head; defendant had not “truly abandoned”
victim’s property before using force].)
Moore relies on People v. Hodges (2013) 213 Cal.App.4th
531. That case does not assist him. Hodges involved a trial
court’s response to a jury question. Hodges had shoplifted some
items from a grocery store. Security guards followed him to his
car and demanded he come back inside. Hodges offered to give
the merchandise back. The guards refused the offer, insisting
Hodges return to the store. Hodges threw the items at a guard,
3 Indeed, an exhibit Moore himself introduced shows the
two bottles of Ketel One vodka found in his possession when
Ortiz detained him rang up at $34.98 and $19.99 respectively.
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hitting him in the face or chest. As Hodges then tried to drive
away, a guard reached into his car in an attempt to grab his keys
and was dragged some distance. (Hodges, at pp. 535-536.) The
appellate court held the trial court had erred in its response to
a jury question about the sequence of these events because the
evidence was susceptible to a conclusion that Hodges’s theft of
the merchandise ceased after he no longer had the intent to keep
the store’s property. (Id. at pp. 538, 543.) Here, by contrast,
there is no evidence Moore sought to return or relinquish the
items he’d stolen, before he waved his knife at the employees
or—for that matter—at any time.
In sum, there was no substantial evidence that Moore’s
intent to keep and carry away the Superior Warehouse’s property
ever ceased or that he intentionally dropped or abandoned the
stolen items. The trial court had no obligation to instruct on
theft as a lesser offense to robbery.
DISPOSITION
We affirm Kennith Moore’s judgment of conviction.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
EDMON, P.J. LAVIN, J.
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