People v. Armstrong CA4/1 ( 2023 )

Filed 7/17/23 P. v. Armstrong 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D080132
Plaintiff and Respondent,
v. (Super. Ct. No. SCD287517)
CHRISTIAN ANTHONY ARMSTRONG,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Jeffrey F. Fraser, Judge. Affirmed.
Denise M. Rudasill, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General,
Collette C. Cavalier and Joy Utomi, Deputy Attorneys General, for Plaintiff
and Respondent.
Christian Anthony Armstrong took a drink from a convenience store
cooler, intending to steal it. When a store employee blocked his exit,
Armstrong dropped the can and assaulted another employee. A jury
convicted him of second-degree robbery (Pen. Code, § 211)1 and assault by
force likely to produce great bodily injury (§ 245, subd. (a)(4)). On appeal
from the judgment, Armstrong contends insufficient evidence supports the
robbery conviction because he abandoned the property before attacking the
employee. As we shall explain, we disagree and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On September 29, 2020, around 10 p.m., three employees, Gwyneth G.,
Anna M., and Miguel O., were at the end of their shift at a convenience store.
Another employee from the prior shift, J. Mark M., was still at the store to
spend time with his girlfriend, Anna. Gwyneth worked at the cash register,
while Miguel, Anna, and J. Mark took a break outside the store. The store’s
double doors were steadied that night, meaning customers could only use the
left door because the right door was locked.
Armstrong arrived at the store and started a conversation with the
three employees outside. He asked Miguel for either a drink, or cigarettes
and money. Miguel was annoyed by the request and did not give Armstrong
anything. Armstrong testified at trial that he then entered the store carrying
a glass mug and intending to steal a drink. As he entered the store, one of
the employees asked Armstrong to put on a facemask, but he refused.
Armstrong then walked to the back of the store where the drink coolers
were located. The employees who had been outside followed Armstrong
inside because, according to Anna, “he looked like he was up to no good.”
Anna, Miguel, and J. Mark stood by the exit. Anna testified that she stood by
1 All further undesignated statutory references are to the Penal Code.
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the door because she could tell Armstrong was trying to steal something. She
intended to ask him to hand over whatever he stole and leave.
Armstrong grabbed an energy drink from the cooler and quickly walked
toward the door. As he approached the door, he threw his glass mug, which
shattered on the floor, and tried to run out the door with the drink without
paying. However, Anna blocked the open left door.2 When Armstrong
realized the right door was locked, he turned around, and in one motion
threw down the energy drink and punched at Miguel.
Armstrong’s swing glanced Miguel’s head, and Miguel fell back into a
display. Miguel stood up and stepped toward Armstrong, and Armstrong
tackled him into a wall. The two fell to the ground, and Anna got on top of
Armstrong to stop the attack. Armstrong continued to struggle, wrestling
with Anna and Miguel. Gwyneth called the police, and J. Mark handed a
stun gun to Anna. Anna used the stun gun multiple times on Armstrong,
who continued to resist her and Miguel. The police arrived a few minutes
later and took Armstrong into custody.
The People charged Armstrong with second-degree robbery (§ 211) and
assault with force likely to cause great bodily injury (§ 245, subd. (a)(4)). The
charging document also alleged Armstrong suffered a prior conviction, which
constituted a serious prior felony (§§ 667, subd. (a)(1); 668; 1192.7, subd. (c)),
and a prior strike (§§ 667, subds. (b)–(i); 668; 1170.12). The People further
alleged that Armstrong committed the offenses while on bail (§ 12022.1,
subd. (b)).
2 There was conflicting testimony as to whether Gwyneth locked both
doors before Armstrong tried to leave.
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At trial, the prosecution introduced the testimony of Gwyneth and
Anna, and one of the responding police officers. The prosecution also showed
two surveillance videos depicting the incident from different angles.
Armstrong took the stand in his own defense. He testified that he
went into the store to get a drink and, in response to his counsel’s question
about whether he was going to pay for the drink, stated, “No, I was not.” His
counsel then asked, “So you were going to commit petty theft?” to which
Armstrong responded, “Yeah, I was.” In response to his counsel’s question as
to why he fought Miguel, Armstrong stated, “I felt like I was trapped inside
the store and I needed to get out before I got hurt.” Armstrong denied that he
was trying to use force to steal or regain control of the energy drink.
Before the parties presented their closing arguments, the jury was
instructed on robbery and the lesser included offense of attempted robbery.
During her closing statement, Armstrong’s counsel argued that Armstrong
only used force after abandoning the drink and, therefore, he could not be
convicted of robbery.
Thereafter, the jury returned its verdict finding Armstrong guilty of
both charged offenses. The court struck the prior strike and prior serious
felony allegations, and also struck the on-bail enhancement allegation. The
court sentenced Armstrong to the upper term of five years for the robbery
conviction and a concurrent two-year term for the assault conviction. The
court suspended execution of the five-year prison sentence and placed
Armstrong on two years of formal probation.
DISCUSSION
Armstrong’s sole contention on appeal is that the robbery conviction
must be reversed because the evidence shows he abandoned the energy drink
before he used force. The People respond that the jury’s verdict is supported
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by sufficient evidence because Armstrong used force against the employees as
they attempted to stop him from leaving the store with the stolen property.
The People contend that because Armstrong had not reached “a place of
safety” before using force, the robbery conviction must be affirmed.
A
Robbery is “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.) Property is within a
person’s immediate presence if it is “ ‘ “so within his [physical control] that he
could, if not overcome by violence or prevented by fear, retain his possession
of it.” ’ ” (People v. Hayes (1990) 52 Cal.3d 577, 626‒627.) To find a
defendant guilty of robbery, the People must show the “defendant use[d] force
or fear in resisting attempts to regain the property or in attempting to
remove the property from the owner’s immediate presence ....” (People v.
Estes (1983) 147 Cal.App.3d 23, 27 (Estes).) The People must also prove that
“ ‘the specific intent [to permanently] deprive [the victim] of [the] property’ ”
motivated the defendant’s use of force or fear. (People v. Clark (2011) 52
Cal.4th 856, 943.)
Robbery includes two phases: “caption,” achieving possession of the
property; and “asportation,” carrying the property away. (People v. Gomez
(2008) 43 Cal.4th 249, 255 (Gomez).) This means that “[a] robbery is not
completed at the moment the robber obtains possession of the stolen
property. The [robber’s] ... asportation, [or] escape with the loot[, is]
considered as important in the commission of the crime as gaining possession
of the property.” (Estes, supra, 147 Cal.App.3d at p. 27.) The crime remains
in progress “from the time of the original taking until the robber reaches a
place of relative safety.” (Id. at p. 28.) The use of force or fear can occur
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either during the caption or asportation in order to support a robbery
conviction. (Gomez, at p. 257.) However, “[t]he robber’s escape with the loot
is not necessary to commit the crime.” (People v. Pham (1993) 15 Cal.App.4th
61, 65 (Pham).) Thus, even if the perpetrator does not ultimately retain
possession of the stolen property, any force used after the taking of the
property and before the robber reaches a place of relative safety supports a
robbery conviction. (Id. at p. 66.)
To determine if sufficient evidence supports the jury’s verdict, we first
“ ‘ “review the entire record in the light most favorable to the judgment ....” ’ ”
(People v. Ware (2022) 14 Cal.5th 151, 167.) We “determine whether the
record contains ‘ “evidence that is reasonable, credible, and of solid value” ’
such that a reasonable jury could have found the defendant guilty beyond a
reasonable doubt.” (Ibid., quoting People v. Renteria (2022) 13 Cal.5th 951,
970.) “We presume every fact in support of the judgment the trier of fact
could have reasonably deduced from the evidence. [Citation.] If the
circumstances reasonably justify the trier of fact’s findings, reversal of the
judgment is not warranted simply because the circumstances might also
reasonably be reconciled with a contrary finding. [Citation.] ‘A reviewing
court neither reweighs evidence nor reevaluates a witness’s credibility.’ ”
(People v. Albillar (2010) 51 Cal.4th 47, 60 (Albillar).)
B
Armstrong argues he used force only after abandoning the energy
drink. He contends, therefore, that the evidence does not establish two
required elements of robbery: (1) that he used force or fear to take the
property or to prevent the owner from resisting the taking; and (2) that when
he used force or fear, he intended to deprive the owner of the property
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permanently. However, the record contains credible evidence from which a
reasonable trier of fact could find these two elements satisfied.
First, substantial evidence supports the jury’s conclusion that
Armstrong used force or fear to prevent the employees from resisting his
taking of the drink. “A robbery [is] committed if the stolen item ‘is so within
[the victim’s] reach, inspection, observation, or control, that [the victim]
could, if not overcome by violence or prevented by fear retain his possession of
it.’ ” (Pham, supra, 15 Cal.App.4th at p. 67, quoting People v. Webster (1991)
54 Cal.3d 411, 440.) Anna testified that as Armstrong tried to flee with the
drink, she blocked him from leaving the store and planned to ask him to
return the stolen property. The surveillance video shows that Anna never
had the chance to regain possession of the drink because Armstrong escalated
the situation instantaneously, punching and tackling Miguel. Anna testified,
and the video shows, she then immediately jumped on top of Armstrong.
Armstrong’s struggle with the employees prevented them from immediately
regaining possession of the drink. (Id. at p. 65.) The jury reasonably inferred
from this evidence that Armstrong used force in furtherance of the robbery.
Armstrong relies on People v. Etheridge (2015) 241 Cal.App.4th 800,
803–805 (Etheridge) to support his argument that he abandoned the drink
before using force. In Etheridge, the defendant snuck a steak underneath a
grocery store’s loading door and picked it up outside the store. (Id. at p. 803.)
When the store’s security guards confronted him, he threw the steak onto the
roof of a nearby building and ran. (Id. at pp. 803–804.) When one of the
guards overtook the defendant, he hit the guard with a rock. (Id. at p. 804.)
The court found insufficient evidence supported the robbery conviction
because the defendant “used force only after he abandoned the steak. Thus,
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he did not ‘rel[y] on force or fear to gain possession or to maintain
possession.’ ” (Ibid., quoting Gomez, supra, 43 Cal.4th at p. 265.)
Armstrong argues his case is no different than Etheridge because he
used force only after dropping the drink. (Etheridge, supra, 241 Cal.App.4th
at p. 804.) However, the surveillance video shows Armstrong dropped the can
only as he swung to punch Miguel. Unlike the defendant in Etheridge,
Armstrong did not throw the property and then flee the scene before
attacking store personnel. (Id. at pp. 803‒804.) Rather, he attempted to open
the door with the drink, then dropped the can within his vicinity and
immediately attacked the store employee. Armstrong’s assaultive behavior
was sufficiently contemporaneous with the taking of the can to create a
reasonable inference that he intended to keep the drink, given that robbery is
“a continuing offense ... from the time of the original taking until the robber
reaches a place of relative safety.” (Estes, supra, 147 Cal.App.3d at p. 28.)
These facts supported the jury’s findings that Armstrong did not
abandon the stolen property and that he intended to take the drink. (See
Pham, supra, 15 Cal.App.4th at pp. 64, 66‒67 [Though the defendant dropped
the stolen property right before using force against the owner, the court
found substantial evidence supported the defendant’s robbery conviction.].)
The jury was free to reject Armstrong’s contrary testimony. (See People v.
Silva (2001) 25 Cal.4th 345, 369 [A rational trier of fact may disbelieve the
portions of a defendant’s statements that are self-serving.].) It is not our role
to reevaluate its findings. (Albillar, supra, 51 Cal.4th at p. 60.)
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DISPOSITION
The judgment is affirmed.
McCONNELL, P. J.
WE CONCUR:
KELETY, J.
CASTILLO, J.
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