People v. Smith

At 11:16 p.m. on Sunday, April 6—after the video surveillance camera had stopped recording—a motion detector at the jewelry store, probably the one in the safe room, triggered an alarm. The alarm company alerted the police and then called Zimmelman. Zimmelman asked to be notified if the police found a problem, but did not take any further action. A police officer checked the exterior of the store and saw no problem; the exterior grate was down, no windows were broken, no alarm bells were ringing, and he did not observe anything amiss in the showroom when he looked through the windows with his flashlight. After about five minutes passed and no additional movement was detected, the alarm ceased. The police officer reported the premises secure, and no further action was taken.

The following morning, Monday, April 7, 2003, Frey returned to the jewelry store about 9:15 or 9:30 a.m. to open up. Standard security procedures required that there be two people present to open the store, so Frey met another store employee there, Erin Beeghly, a student who worked part time as a gemologist and sales assistant. Frey opened the store, went into the safe room to disable the alarm system, and then went upstairs to the office. Beeghly headed through the safe room and into the bathroom, intending to change her clothes.

When Beeghly opened the bathroom door, two tall African-American men with guns jumped out. They ordered her to the floor, and told her not to look at them. Frey heard Beeghly scream, and started down the stairs, only to encounter a man waiting at the bottom of the stairs with a gun pointed at him. The man was not wearing a mask, so Frey got a good look at his face. Frey described the man as African-American, about six feet tall, with a medium or light complexion, and a nose resembling that of football player Jerry Rice. Later, Frey was able to identify the man as Dino Smith, appellant’s brother.^[1] When shown a photographic lineup, Frey picked appellant’s photograph, as well as Dino Smith’s, as depicting possible suspects.

When Frey opened the door for Gonsalves, he told her quietly that they were being robbed, but she did not really grasp what he was saying, and started to head upstairs to work on the accounts. As Gonsalves neared the top of the stairs, Frey called to her, and a light-skinned African-American man emerged from the safe room, ran upstairs after her, pointed a gun at her, and ordered her into the safe room. There, a second man, who was darker skinned and seemed older, then directed her to face the back wall. The first man seemed to be wearing a mask, but he had pushed it up onto his forehead, so Gonsalves could see his face. Two years later, after seeing a news story about the robbery, Gonsalves identified the first man as George Turner.^[2] Shortly after the robbery, Gonsalves picked appellant’s photograph, as well as Dino Smith’s, as depicting possible suspects from a photographic lineup, but she was not sure of these identifications.

Frey then resumed trying to open the safes. He was able to open the second one, but not the third, which was the one that had recently been moved into the jewelry store from a different location. As Frey was working on getting the third safe open, the doorbell rang again. It was Martinez, the store manager. Martinez had a key, but because she could not see any other store employees in the front room, she complied with the store’s standard security procedures by ringing the doorbell rather than unlocking the front door herself.

Frey let Martinez in, quietly told her that a robbery was in progress and that Beeghly was being held hostage, and went back into the safe room with her. Frey tried again to open the third safe, but failed, so he asked Martinez to try, and she succeeded.

The intruders emptied the contents of the safes into large plastic bags. At the request of Frey and Martinez, they left behind some of the items in the safes that were not part of the store’s inventory, but had been left by customers for repair or on consignment. Because the store kept very complete

Before leaving, the intruders bound the employees with plastic handcuffs and duct tape, and left them lying or sitting on the floor. While this was happening, Frey noticed for the first time that there was a large hole in the wall of the safe room, which had not been there when he left the store on Saturday. Gonsalves also noticed the hole at some point during the crime, though she could not recall exactly when. Frey and Gonsalves both looked through the hole and could see a figure moving around in the room on the other side of the wall. They could not see the person’s face or even determine gender, however, because of their angle of view. Around this time, Gonsalves, Martinez, and Beeghly all heard a female voice that seemed to be coming from a walkie-talkie in the room on the other side of the hole. The voice sounded very professional, like a dispatcher, and seemed to be counting down time.

Finally, one of the intruders said, “Time’s up, let’s go,” and they left through the hole in the wall. Martinez, who was the only one of the store employees who had been bound only with duct tape and not with handcuffs, was able to free her hands shortly thereafter, and then got scissors and freed the others. None of the employees was physically harmed, but all of them had been frightened while the crime was occurring. After freeing her coworkers, Martinez called another employee who was at the store’s central office location and told that employee to call the police.

When the police arrived and investigated, they found that, as already indicated, the hole in the safe room wall led into the vacant restaurant premises. They also discovered that the hole had been drilled at a spot that constituted the weakest place in the wall dividing the store from the restaurant, because that part of the wall had formerly been occupied by a door with a glass panel in it.^[3] Two people who had been in the restaurant space within a few days before the robbery—a prospective tenant and an electrician—confirmed that the hole had not been there when they last saw the wall.

The police investigation also revealed that the latch of the exterior door from Tillman Place into the restaurant space had been rigged with a wire so that it could be opened from the outside. The building owner had not seen this wire mechanism prior to the police investigation.

Five days later, police searched Warner’s apartment. In it they found the box of papers, including appellant’s mail, that had been in the trunk of Kim’s car. They also found appellant’s wallet and driver’s license. They did not, however, find any of the stolen jewelry.

The police arrested George Turner in June 2003, and later traced Dino Smith to New York, where he was arrested about a year after the crime. Appellant remained at large until March 2006, when he surrendered to the police in the company of his attorney.

On May 22, 2006, appellant was charged by information with four counts of second degree robbery (Pen. Code, § 212.5, subd. (c)),^[4] each with an excessive taking allegation (§ 12022.6, subd. (a)(4)). Appellant was also charged with four counts of false imprisonment (§ 236), with an enhancement under section 12022.1, subdivision (a)(1); two counts of second degree burglary (§ 459); and one count of conspiracy to commit robbery (§ 182, subd. (a)(1)). All of the charges except the conspiracy count included an allegation that a principal in the crime was armed with a firearm. (§ 12022.1, subd. (a)(1).) The information alleged that appellant had prior serious felony convictions, including three “strikes” (§667, subds. (a), (d), (e); § 1170.12, subds. (b), (c)), and that he had served a prior prison term (§ 667.5, subd. (b)).

The jury at appellant’s trial found him guilty on all counts, and found the gun use and excessive taking enhancement allegations true. Appellant waived jury trial as to the prior conviction allegations, and the court found them true.

On May 8, 2007, the trial court struck two of appellant’s three “strike” priors, and sentenced appellant to 26 years in prison, which included upper term sentences on some of the counts. Appellant filed a timely notice of appeal on June 6, 2007.

A. Robbery of Store with Owner’s Consent in Owner’s Absence

At appellant’s trial, the prosecution advanced the theory that the crime was an “inside job” staged by Zimmelman in order to collect the insurance money

Appellant also relies on four out-of-state cases that do deal specifically with the “inside job” or “staged robbery” situation presented in this appeal. (Williams v. State (Mo.Ct.App. 2003) 92 S.W.3d 348 (Williams); Leeson v. State (1982) 293 Md. 425 [ 445 A.2d 21 ]; State v. Wright (1935) 337 Mo. 441 [ 85 S.W.2d 7 ]; People v. Goldberg (1922) 302 Ill. 559 [ 135 N.E. 84 ].) As respondent points out, however, none of these cases reversed a conviction for robbery on the ground of consent in a situation in which the property owner who set up the alleged bogus robbery was not present at the time it occurred, and the actual victims of the force or fear used by the perpetrators were all unaware of the owner’s consent to the taking of the property of which they had possession.^[5] Thus, none of the out-of-state authorities is helpful, let alone persuasive, authority supporting appellant’s legal contention.

Therefore, because this situation presents a question of first impression under California law, we begin with the language of the statute defining the crime of robbery. Section 211 provides: “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.” Case law has elaborated this definition further. “Robbery is essentially

As noted, appellant’s argument is, essentially, that the property owner’s consent in the “inside job” scenario negates one of the elements of robbery by rendering the taking nonfelonious. For guidance on this issue, we look to the California Supreme Court’s examination of the meaning of the term “felonious taking.” “[B]y use of the . . . term ‘felonious taking’ in section 211, the Legislature was . . . incorporating into the . . . statute the affirmative requirement, derived from the common law rule applicable to larceny and robbery, that the thief or robber has to intend to take property belonging to someone other than himself in order to be guilty of theft or robbery, that is to say, the common law recognition of the defense of claim of right.” (Tufunga, supra, 21 Cal.4th at p. 947, italics added.) Tufunga held, on the basis of this reasoning, that a good faith claim of right to the ownership of specific property can negate the element of felonious taking that is necessary to establish theft or robbery.

This holding does not, however, necessarily imply that the taking involved in an “inside job” robbery is not felonious, and may, in fact, imply the opposite because it requires only that the property belong to someone other than the taker. The common law understanding of the “felonious taking” element of larceny and robbery, on which Tufunga relied, also includes the concept that “[a] person may be a victim of larceny even though he is not the owner [of the property taken]; he need only have a special property right, as in the case of a bailee or pledgee. It is enough that he has possession and that it is lawful as to the defendant, or that because of a legally recognized interest in the property he is entitled to possession as against the defendant. Moreover, the person from whom the property is taken qualifies as a victim of larceny even though he does not have the right of possession as against the true owner.” (3 Wharton’s Criminal Law (15th ed. 1995) § 381, pp. 454-456, fns. omitted.)^[6]

Reaffirming this rule, the California Supreme Court recently noted that “neither ownership nor physical possession is required to establish the element of possession for the purposes of the robbery statute. [Citations.] ‘[T]he theory of constructive possession has been used to expand the concept of possession to include employees and others as robbery victims.’ [Citation.] Two or more persons may be in joint constructive possession of a single item of personal property, and multiple convictions of robbery are proper if force or fear is applied to multiple victims in joint possession of the property taken.” (People v. Scott (2009) 45 Cal.4th 743 , 749-750 [ 89 Cal.Rptr.3d 213 , 200 P.3d 837 ].) As this discussion implies, it is the possession of property, not its ownership, which is the determining factor regarding whether a robbery has occurred. This principle makes sense, because the risk of injury or death resulting from confrontations between robbers and victims is not significantly reduced merely because the victims lack legal title to the property in their possession.

For all of the foregoing reasons, we hold that when the owner of a store consents to an “inside job” robbery that occurs while the store is under the control of employees who are unaware of the owner’s plan, the owner’s consent does not vitiate the “felonious taking” element of robbery. If the property that is taken was in the possession of the owner’s innocent employees or agents, that is sufficient to make the taking felonious, even if the owner himself or herself is secretly in league with the perpetrators.^[7]

B.-F.^[8]