Filed 1/19/00

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County. Curtis B. Rappe, Judge. Affirmed as modified.

Linda Starr, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Lance E. Winters, Supervising Deputy Attorney General, Ronald A. Jakob, Deputy Attorney General, for Plaintiff and Respondent.

Defendant, Christopher Flynn, was sentenced to state prison following his conviction of robbery. He now argues insufficiency of evidence, improper exclusion of the victim’s prior misdemeanor conduct, and erroneous denial of a motion for new trial. The People oppose these contentions and note the absence of a mandatory parole revocation fine. We modify the judgment and affirm. In the published portion of our opinion, we uphold a robbery conviction on the theory that the perpetrator used fear to accomplish retention of the property after it was taken.

A jury trial on charges of robbery (Pen. Code, § 211) and battery on a police officer (Pen. Code, § 243, subd. (b)) resulted in conviction of the robbery. The jury hung on the other charge, which was eventually dismissed. The People charged a number of prior felony convictions, but proceeded only on two: (1)  assault with a firearm (Pen. Code, § 245, subd. (a)(2)) as a "strike," serious felony, and prior prison term; and (2)  possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)) as a prior prison term. The trial court found both priors true, and used them to double defendant’s base term, then increase it by six years, resulting in a 16-year sentence.

Viewed in a light most favorable to the judgment (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Marshall (1997) 15 Cal. 4th 1, 34), the evidence can be briefly stated as follows.

Defendant was a member of the "74 Hoover" gang. On October 3, 1997, at about 6 p.m., he was standing in the area of 74th and Hoover streets in Los Angeles with five other men, all but one of whom appeared to the victim to be gang members.

The female victim is five feet, four inches tall and is smaller than the defendant. The date of this incident was her 36th birthday. She lived at 75th and Hoover. As she walked past the group of men, defendant grabbed a bag that hung on her left shoulder, causing her shoulder to be pulled backward. The victim was angry, shocked and afraid of being jumped. She "kept reaching for [the bag], and [the defendant] just kept pulling [it] back." After defendant took the bag, he removed a gun and five-dollar bill and showed them to his companions. The victim took a good look at defendant’s face so that she would remember it. The defendant screamed at the victim to get away from his car as she backed away from him. She ran home, and waited ten days to report the incident.

Within days of the crime, the victim saw defendant’s car drive slowly down her street on a number of occasions. After defendant’s arrest, the wife of defendant’s friend returned the gun to the victim, and had her talk to the defendant on the telephone on two occasions. The defendant apologized and asked her to drop the charges. He also asked her to talk to his parole agent. Several people came to the victim’s home on different occasions. The victim was asked what she was going to do about the case. She was told she better have her gun with her when she leaves home, and one of the visitors threatened to burn her house down.

The victim identified the defendant by photograph when she first reported the crime ten days after it happened. She delayed the report out of fear. The victim recanted her identification of defendant at the police station in January of 1998, after the victim arrived there in the company of the woman who returned her gun. The victim did not testify at the preliminary examination in late January. The weekend after the preliminary hearing, the case detective relocated the victim because she was scared. She testified and reluctantly identified the defendant at trial on April 16. Earlier on April 16, she testified at a pretrial hearing that she was uncertain of the identification because she refused to look at the defendant and she was scared.

The victim had seen defendant in his car on many occasions before the current incident. At trial, she described the perpetrator as wearing a visor and a "Jheri-curl" hairstyle of unknown length but not to his shoulders.

Los Angeles Police Department Detective Darryl Norwood, a gang investigator assigned to this case, was cross-examined about a prior contact with defendant which resulted in defendant filing a formal complaint against the detective. Cross-examination also covered the detective’s motivation for causing the jail to place defendant in special custody and monitor his telephone calls to prevent threatening of the victim.

The defense at trial was mistaken identity. In addition to cross-examination of the victim and investigating detective regarding discrepancies in the victim’s description and other statements, friends and relatives of the defendant testified the victim had recanted her identification to them, and willingly recanted to law enforcement. One witness claimed the victim had stated the man who took her property had returned it to her. Defendant’s mother-in-law testified that there was a second vehicle identical to defendant’s in the neighborhood.

Two videotapes taken by an acquaintance of defendant on approximately September 2 and October 8, 1997 showed defendant with a short, natural hairstyle, not a Jheri curl.

On April 17, 1998, after the victim had been relocated to a safe house with no telephone, Detective Norwood contacted Sergeant Patrick Weeks of the sheriff’s custody division regarding the defendant. Sergeant Weeks relayed information to another deputy, who prepared a report indicating that defendant had been harassing the victim by telephone in the last week, and that further intimidation was feared. As a result, defendant was placed in administrative segregation with suspension of access to the telephone and other privileges. Sergeant Weeks testified that he had the impression defendant had been making harassing calls, though he did not specifically recall Detective Norwood saying that. At the time of the new trial motion hearing, Sergeant Weeks did not believe the incident report accurately reflected Detective Norwood’s call to him. He did recall that Detective Norwood was concerned that intimidation of the witness might occur during the upcoming trial. Detective Norwood testified that he made the call to the custody division after the victim told him someone had cut the chain link fence at the safe house. Detective Norwood told Sergeant Weeks he was concerned that the defendant might use the telephone to generate intimidation of the victim by other people.

The jury convicted defendant of robbery, despite being instructed on their option to convict of grand theft from the person as a lesser included offense. The robbery instruction (CALJIC No. 9.40, as modified) presented a prosecution theory of force or fear after the initial taking of the property. In argument, the prosecutor conceded insufficient force or fear at the time of the taking, urging the jury to find a robbery based on defendant’s use of fear to prevent the victim from reclaiming her property. Defendant now argues he used no more force than necessary to take the victim’s bag, and that the fear expressed by the victim was not created by the defendant to facilitate the robbery. Our task is to "review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence . . . from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt." (People v. Jennings (1991) 53 Cal.3d 334, 364.)

Whether the manner by which the bag was snatched from the victim’s shoulder constituted sufficient force for a robbery is an arguable point. (People v. Wright (1996) 52 Cal.App.4th 203, 210; but see People v. Lescallett (1981) 123 Cal.App.3d 487, 490-492.) However, we decline to reach this issue because the People did not argue such a theory at trial, and the jury was not instructed on it. Since the defendant used no other force, we turn to the prosecution theory that the crime was accomplished by fear which arose after the initial taking.

"Robbery is the . . . taking of . . . property . . . accomplished by means of force or fear." (Pen. Code, § 211.) Accordingly, "to support a robbery conviction, the taking, either the gaining possession or the carrying away, must be accomplished by force or fear." (People v. Cooper (1991) 53 Cal.3d 1158, 1165, fn. 8.) "Gaining possession or . . . carrying away" includes forcing or frightening a victim into leaving the scene, as well as simply deterring a victim from preventing the theft or attempting to immediately reclaim the property. (People v. Prieto (1993) 15 Cal.App.4th 210, 211-216 [victim too "fearful and shocked" to intervene in nearby struggle between perpetrator and second victim over purses belonging to both victims]; People v. Dominguez (1992) 11 Cal.App.4th 1342, 1346-1349 [victim ordered out of his residence at gunpoint before property is carried off]; People v. Hays (1983) 147 Cal.App.3d 534, 541-542 [fearful victim flees before taking of property].)

Most robberies involve actual or threatened force, resulting in fear on the part of the victim, at the time the property is taken. (People v. Wright, supra, 52 Cal.App.4th at pp. 209-210.) However, the requisite fear need not be the result of an express threat. (See People v. Garcia (1996) 45 Cal.App.4th 1242, 1246 ["rather polite . . . tap" of cashier sufficient where it caused cashier to fear defendant might be armed]; People v. Davison (1995) 32 Cal.App.4th 206, 214 [victim is confronted by two men at an automatic teller machine, and ordered to "stand back"]; People v. Brew (1991) 2 Cal.App.4th 99, 104 [relative size of defendant and victim a factor]; In re Anthony H. (1982) 138 Cal.App.3d 159, 166 [after following victim in car, suspect says, "I don’t want to harm you, but I want your purse"].) Further, the requisite force or fear need not occur at the time of the initial taking. The use of force or fear to escape or otherwise retain even temporary possession of the property constitutes robbery. (People v. Torres (1996) 43 Cal.App.4th 1073, 1077-1079 [use of force by car burglar after he had possession of the victim’s stereo sufficient even though perpetrator subsequently abandons the stereo and flees]; People v. Pham (1993) 15 Cal.App.4th 61, 65-68 [where thief used force against victims as thief carried property away, robbery occurred even though victims subdued thief and no further asportation occurred]; People v. Estes (1983) 147 Cal.App.3d 23, 27-28 [force used against store security guard who tries to prevent escape of shoplifter].)

A theft or robbery remains in progress until the perpetrator has reached a place of temporary safety. (People v. Carroll (1970) 1 Cal.3d 581, 585.) The scene of the crime is not such a location, at least as long as the victim remains at hand. (People v. Ramirez (1995) 39 Cal.App.4th 1369, 1375 ["Phrased otherwise, the robbery is not ‘over’ until the victim has reached a place of temporary safety"]; see also People v. Haynes (1998) 61 Cal.App.4th 1282, 1292.) When the perpetrator and victim remain in close proximity, a reasonable assumption is that, if not prevented from doing so, the victim will attempt to reclaim his or her property. (People v. Webster (1991) 54 Cal.3d 411, 442 [assuming that murder victim had willingly given car key to defendant, jury could infer from later violence that defendant used force to prevent victim from retrieving the key].)

It follows from these principles, and we hold, that the willful use of fear to retain property immediately after it has been taken from the owner constitutes robbery. So long as the perpetrator uses the victim’s fear to accomplish the retention of the property, it makes no difference whether the fear is generated by the perpetrator’s specific words or actions designed to frighten, or by the circumstances surrounding the taking itself.

The facts of the present case substantially support this theory of robbery. Although defendant did nothing designed to instill fear prior to the taking, he chose the moment and location of the crime knowing the likely effect on the lone, female victim. He also chose to remain at the scene. Defendant is taller and bigger than the victim. Although in her own neighborhood, the victim was outnumbered six to one by a group of male gang members located in their own territory. Defendant’s brazen behavior once he was armed with the stolen gun revealed his confidence in the powerlessness of the victim. After defendant yelled at the victim to stay away from his car, she ran from the scene and was afraid to report the crime until her mother convinced her to do so ten days later.

On these facts, defendant used fear to accomplish the robbery just as surely as if he had verbalized the threats inherent in the surrounding circumstances. Defendant’s argument concerning his passivity and all the things he did not do ignores the fact that his snatching of the bag, not to mention his subsequent display of the stolen weapon, immediately changed what might have been an innocuous set of circumstances into one of significant fear for the victim. To the extent that it was the victim’s perceptions of her circumstances that directly caused the fear, those perceptions were reasonable and a reasonable jury could have found that defendant took advantage of them in a calculated fashion.

There was sufficient evidence of robbery.

A. Exclusion of Victim’s Prior Misdemeanor Conduct

Defendant contends the trial court abused its discretion in excluding on grounds of remoteness the conduct involved in the victim’s 14 and 18-year-old misdemeanor convictions for theft and issuance of a check without sufficient funds. The trial court based its ruling on the remoteness of the evidence.

Misdemeanor conduct bearing on veracity is admissible pursuant to People v. Wheeler (1992) 4 Cal.4th 284, subject to the court’s analysis under Evidence Code section 352. (Id. at pp. 295-296.) Where the witness to be impeached is not the defendant, the two most important factors are the age of the priors and the degree to which they reflect on honesty. (People v. Clair (1992) 2 Cal.4th 629, 654.) Priors as recent as ten years old may be considered presumptively remote (People v. Pitts (1990) 223 Cal.App.3d 1547, 1553-1554), while a 20-year-old felony prior has been held not necessarily too remote. (People v. Burns (1987) 189 Cal.App.3d 734, 738-740.) We review for abuse of discretion. (People v. Clair, supra, 2 Cal.4th at p. 655.)

Unfortunately, this issue was raised and resolved at an unreported sidebar conference, which was later summarized for the record. Defendant now relies on that summary to argue that the trial court relied solely on remoteness and failed to consider other factors. We are unwilling to make that assumption, but must presume in light of the record that remoteness was the most significant factor to the trial court.

We find no abuse of discretion in the trial court’s implied conclusion that the remoteness of the misdemeanor conduct at issue outweighed any probative value related to the fact that the conduct involved dishonest acts. The acts involved here were misdemeanors, which are "less forceful indicator[s] of moral character or dishonesty than [felonies]," and involve more problems of proof. (People v. Wheeler, supra, 4 Cal.4th at pp. 296-297.) Further, although the victim’s credibility was at issue in light of her recantations, there was no evidence the victim had a motive to falsely accuse the defendant. Rather, the question before the jury revolved around whether she had given an accurate initial description and had been pressured to recant her identification. Given these factors, the trial court was not arbitrary or capricious in concluding the remoteness of the prior conduct was highly significant, and justified excluding the evidence.

B. Denial of New Trial Motion

Defendant contends the trial court abused its discretion in denying his motion for a new trial, which he based on an assertion of newly discovered evidence pertaining to his hairstyle and Detective Norwood’s credibility.

Among the requirements for a new trial to be granted on such grounds are that the new evidence not be cumulative, and that a different outcome would be probable at a retrial. (Pen. Code, § 1181, subd. 8; People v. Turner (1994) 8 Cal.4th 137, 212.)

Concerning defendant’s hairstyle, the trial court found the new videotape evidence "cumulative, at best" because "the hair . . . issue . . . was thoroughly flushed out at the trial and she [the victim] was thoroughly impeached on that." The trial court added that "there wasn’t really much to impeach" because the victim had been rather vague about the hairstyle, which the victim had only seen part of under the perpetrator’s hat. The trial court also specifically relied on the fact that the victim knew the defendant from the neighborhood. We agree that the hairstyle was thoroughly covered at trial, and was not of great significance to the victim’s identification. There is no reasonable probability that the videotapes would change the result at a retrial.

As for Detective Norwood’s credibility, the trial court noted that the issue had been covered at trial, characterizing the new evidence as "tangential." The trial court added it accepted the testimony of Detective Norwood and Sergeant Weeks at the new trial motion. That testimony included Detective Norwood’s explanation that the mid-trial call to the custody division was prompted by an incident during trial where a chain link fence at the victim’s "safe house" had been cut. Detective Norwood denied telling Sergeant Weeks that there had been a recent threatening telephone call to the victim. Sergeant Weeks testified that he had not personally prepared the report at issue following his conversation with Detective Norwood, that the entire matter was handled in haste, and that the report was not accurate as to Norwood’s exact statements. A memo Sergeant Weeks prepared two weeks later was more accurate, and it did not quote Detective Norwood as claiming defendant had made recent intimidating telephone calls.

The trial court was well within the bounds of its discretion in concluding the new evidence concerning Detective Norwood would not lead to a different result on retrial. As always, the trial court was in the best position to evaluate the state of the trial evidence, as well as the effect of new evidence affecting the credibility of witnesses on a theoretical retrial. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1252; People v. Turner, supra, 8 Cal.4th at p. 213.)

C. Restitution Fines and Penalty Assessments

The trial court imposed the $200 mandatory minimum restitution fine pursuant to Penal Code section 1202.4, subdivision (b), but failed to impose the corresponding mandatory $200 parole revocation restitution fine pursuant to Penal Code section 1202.45. We will correct the judgment and order the abstract amended. (People v. Hong (1998) 64 Cal.App.4th 1071, 1084.)

The judgment is modified to impose a $200 parole revocation restitution fine and suspended pursuant to Penal Code section 1202.45. The clerk of the superior court is directed to correct the abstract of judgment to reflect this modification and forward the corrected abstract to the Department of Corrections. As modified, the judgment is affirmed.

CERTIFIED FOR PARTIAL PUBLICATION.

We concur:

GRIGNON, Acting P.J.

ARMSTRONG, J.