Filed 9/11/14 P. v. Benson 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                                           NOT TO BE PUBLISHED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
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or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                    (San Joaquin)
                                                            ----




THE PEOPLE,                                                                                  C072978

                   Plaintiff and Respondent,                                    (Super. Ct. No. SF117832A)

         v.

ANTIONE BENSON,

                   Defendant and Appellant.




         A jury found defendant Antione Benson guilty of conspiracy to commit robbery
and (misdemeanor) possession of a concealed firearm and resisting a peace officer. (Pen.
Code, §§ 148, 182, subd. (a)(1)/211, former 12025, subd. (a)(2).)1



1   Further undesignated statutory references are to the Penal Code.



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          Codefendants Patrick Smith and James Edward Ware were charged only with
conspiracy to rob. Smith was acquitted; Ware was convicted, given probation and did not
appeal.
          The trial court suspended imposition of sentence and granted probation.
Defendant timely appealed, contending insufficient evidence supports the conspiracy
conviction. Disagreeing, we affirm.
                                      BACKGROUND
          The People’s theory was that defendant, together with Smith and Ware, planned to
rob a pizza delivery driver at gunpoint, by ordering a pizza delivered to another person’s
house, while they lurked, armed, waiting to rob the driver.
          Carl Almirol had worked as a delivery driver for two Stockton Domino’s pizza
parlors since 2008, and had been working at one on Charter Way since 2009. Domino’s
has a safety policy for their delivery employees, which included minimizing the cash
carried, being careful with first-time customers by calling them to verify the order, and
not delivering to certain locations at night due to risk of robbery. The store commonly
received three “prank” orders per night, and about once per night Almirol returned with
an undelivered pizza. Almirol had his own safety practices of parking in the middle of
the street, personally calling the customer with his mobile telephone when he was near
the delivery address, asking the customer to turn on a porch light, and not carrying a
wallet.
          On Sunday, June 26, 2011, Almirol was working the night shift. He was
delivering three pizzas, two side orders, and two liters of soda pop to South Shasta Street.
He called the number on the order before leaving the store and told the customer he
would be there in 10-15 minutes. On the way, he tried calling the same number several
times, but nobody answered. Immediately before he turned onto Shasta, he saw to his left
“a guy wearing a [black or blue] hoodie sitting down” in the dark on one corner, and saw
to his right another “guy” wearing a hoodie standing on the opposite corner.

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       Almirol became wary because he had seen no one else as he was heading toward
the delivery address and it was odd that two men were outside at “11-ish” at night. He
did not at first think he was necessarily going to be robbed, but thought they were going
to run toward his car. He slowed at the delivery address, which was unlit. There were no
cars in front, and the parking lot gate was closed. He called the customer’s number again
several times, left a message, called the store, and reported “looks like this is a set up and
so I’m heading back.” After he made a U-turn and drove away from the address, he saw
three men together walking away. As he made a turn, he called the customer, and saw
the man who had been standing on the corner earlier looking at his own mobile
telephone; “I saw him waiting for a phone call, but he’s not answering it. I just saw it lit
up in there,” and at the same time he saw something in the man’s hoodie pocket and
Almirol thought “it looks like it’s a gun.” He also saw the third man kneeling behind a
car.
       Almirol saw a patrol car, caught up to it, and reported his suspicions to the officer.
Almirol followed the patrol car and tried to assist by using his own spotlight, when he
saw one suspect run as the officers neared. When one officer held a suspect at gunpoint,
Almirol called out that suspect was the man with the gun, but his hoodie was missing.
He gave another officer the customer’s telephone number. He saw that officer dial the
number with the officer’s own mobile telephone, and another mobile telephone in the
officer’s hand rang. He was sure that the three men next to the patrol car, before one ran
off, were the three men he had seen before he flagged down the patrol car.
       A resident at 839 South Shasta testified she and her boyfriend were both asleep
when she was awakened by an officer that night, nobody at her house orders food for
delivery, and she did not recognize any of the codefendants.
       Stockton Police Sergeant Garlick testified he was on patrol with Officer Jeffery
Pope when they saw three men walking on Anderson Street, and spoke with them while
slowing down. Then Almirol arrived and reported “it’s a setup and they just tried to rob

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me.” One of the three men then ran off, with Garlick in foot pursuit. The man
(defendant) was wearing a red sweatshirt and had his hands in front of his waist as he ran,
but by the time Garlick caught him, after briefly losing sight of him, the sweatshirt was
gone. Almirol told Garlick defendant was the man who had the gun.
       Officer Garlick then retraced the route of the chase, and by the house where he had
briefly lost sight of defendant he found the red sweatshirt (a “hoodie”) defendant had
been wearing, which he had spotted on the ground during the chase, and he found a
loaded 9-millimeter pistol in the gutter of the house, “directly above” where he found the
sweatshirt. He saw no other people walking around in the area that night.
       Officer Pope testified he had seen three men walking together, with no one else
around. As the patrol car neared them, two split off and crossed the street. He pulled up
to speak to the two on his side of the street (Smith and Ware), and noticed the third man
(defendant) was about 20 feet behind the others. Then Almirol drove up and made his
report of a suspected robbery attempt, whereupon Pope stopped the patrol care and both
officers got out; Smith and Ware remained, but defendant fled, with Garlick in pursuit.
When Pope dialed the number Almirol gave as the customer’s number, Ware’s mobile
telephone registered the call.
                                       DISCUSSION
       Defendant contends there was insufficient evidence of a specific intent to commit
robbery. He posits that “[t]he only reasonable conclusion to reach, after viewing the
evidence, is that the entire incident grew out of [Almirol’s] understandable but unfounded
fear that he was once again being ‘set up’ to be robbed as he had been in the past.”
       We disagree with this benign view of the record. In determining whether
substantial evidence supports a criminal conviction, “[w]e review the whole record in a
light most favorable to the judgment to determine whether it contains substantial
evidence, i.e., evidence that is credible and of solid value, from which a rational trier of
fact could find beyond a reasonable doubt that the accused committed the offense.” (In

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re Ryan D. (2002) 100 Cal.App.4th 854, 859; see People v. Barnes (1986) 42 Cal.3d 284,
303-304.) “Evidence is sufficient to support a conviction only if . . . it ‘ “reasonably
inspires confidence” ’ . . . and is ‘credible and of solid value.’ ” (People v. Raley (1992)
2 Cal.4th 870, 891.) We find such credible, solid, evidence here.
       A conspiracy occurs when “two or more persons” agree “to commit any crime.”
(§ 182, subd. (a)(1).) “ ‘A conviction of conspiracy requires proof that the defendant and
another person had the specific intent to agree or conspire to commit an offense, as well
as the specific intent to commit the elements of that offense, together with proof of the
commission of an overt act “by one or more of the parties to such agreement” in
furtherance of the conspiracy.’ [Citations.] ‘Disagreement as to who the coconspirators
were or who did an overt act, or exactly what that act was, does not invalidate a
conspiracy conviction, as long as a unanimous jury is convinced beyond a reasonable
doubt that a conspirator did commit some overt act in furtherance of the conspiracy.’ ”
(People v. Jurado (2006) 38 Cal.4th 72, 120-121; see People v. Vu (2006) 143
Cal.App.4th 1009, 1024.) “A conspiracy can generally be established only by
circumstantial evidence. It is not often that the direct fact of a common unlawful design
can be proved other than by the establishment of independent facts bearing on such
design.” (People v. Robinson (1954) 43 Cal.2d 132, 136 (Robinson).)
       Here the charge was conspiracy to commit robbery. “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.) “The
defining features of robbery are (1) the taking of property, (2) from a person, (3)
accomplished by force or fear.” (In re Travis W. (2003) 107 Cal.App.4th 368, 374.)
       The evidence, viewed in the light favorable to the verdict, amply shows defendant
carried the gun that was found in a gutter directly above his sweatshirt, discarded during
his flight from the police, after Ware called in a phony order for pizza delivery, late at
night, as the three men waited nearby to rob the driver. No one else was on the street

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near the three men that night, according to the testimony, and Ware’s mobile telephone
had been used to place the pizza order. The delivery address was to a house whose
occupants did not order out and its resident testified she and her boyfriend were asleep,
and she did not recognize any of the codefendants. These facts give rise to the reasonable
conclusion that defendant and Ware (if not also Smith) had agreed to rob the delivery
driver, with Ware using his mobile telephone to lure the victim to the scene, and
defendant was carrying a gun to facilitate the robbery.
       Defendant’s briefing relies on discrepancies in the evidence, or innocent
inferences, but he fails to adhere to the proper standard of review. He challenges the
strength of the evidence of each of the four overt acts, but each of these acts is supported
by the evidence.2
       As to the first overt act, defendant argues it “was based on murky evidence which,
by the end of the case, remained in some doubt” and whether Ware’s telephone was
connected to the delivery order “was shaky and contradictory.” But Almirol testified
what number he called repeatedly, to complete the delivery, and when Ware was arrested,
he was found with a telephone that responded when an officer dialed that number. That
evidence supports the first overt act. As to the second overt act, defendant points to a
discrepancy in Domino’s records which showed an address of 925 South Shasta Street,
whereas Almirol confirmed the address was 839 South Shasta. But such discrepancy
does not vitiate Almirol’s testimony, which supported the second overt act. Defendant
concedes overt acts three and four are supported by the evidence.
       Further, proof of an agreement for conspiracy liability is not limited to the four
corners of the pleaded overt act or acts. “The overt act . . . need not amount to an attempt



2 The four charged overt acts were (1) Ware ordered a pizza to be delivered, (2) the
delivery was to be made to 839 South Shasta Street, (3) defendant was armed, and (4) all
codefendants placed themselves on the street near the delivery address.

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to commit the underlying offense.” (1 Witkin & Epstein, Cal. Crim. Law (4th ed. 2012)
Elements, § 95, pp. 398-399.) “The purpose of statutes requiring an overt act is to allow
an opportunity to repent and terminate the unlawful agreement before any decisive act is
done in furtherance of it.” (Id. at p. 398.) Indeed, the overt act or acts need not be
criminal. (Id. at § 96, p. 400.) Instead, the jury must consider all of the circumstances
shown by the evidence in determining whether a conspiracy was agreed. “It is well-
settled that the unlawful agreement among conspirators may be inferred from the conduct
of defendants in mutually carrying out a common illegal purpose, the nature of the act
done, the relationship of the parties, the interests of the alleged conspirators and other
circumstances.” (People v. Remiro (1979) 89 Cal.App.3d 809, 843 (Remiro).)
       Defendant asserts “there was no evidence of any prior association, or
communication of any kind, between appellant and his co-defendants, nor evidence that
they even knew each other. There was no evidence that any one of them had agreed with
any other to commit any crime at any time, or any place.” We disagree.
       While there was no direct evidence of an agreement, such as an inculpatory
admission, such evidence is rarely present in conspiracy cases, and circumstantial
evidence suffices. (See Robinson, supra, 43 Cal.2d at p. 136; Remiro, supra, 89
Cal.App.3d at p. 843.) Ample circumstantial evidence exists in this case.
       Defendant’s claim amounts to little more than an invitation to this court to reweigh
the evidence. We decline to do so. As outlined above, viewing the testimony in the light
most favorable to the verdict, substantial evidence supports defendant’s conviction.




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                                  DISPOSITION
     The judgment is affirmed.




                                                DUARTE   , J.



We concur:



     RAYE               , P. J.



     BUTZ               , J.




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