Filed 1/21/20




                             CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              FOURTH APPELLATE DISTRICT

                                        DIVISION THREE


THE PEOPLE,

    Plaintiff and Respondent,                        G057291

        v.                                           (Super. Ct. No. 17NF3567)

WESLEY JOHN ROBINS,                                  OPINION

    Defendant and Appellant.



                  Appeal from a judgment of the Superior Court of Orange County, Nancy E.
Zeltzer, Judge. Affirmed.
                  Aaron J. Schechter, under appointment by the Court of Appeal, for
Defendant and Appellant.
                  Xavier Becerra, Attorney General, Lance E. Winters, Senior Assistant
Attorney General, Kenneth C. Byrne and Gregory B. Wagner, Deputy Attorneys General,
for Plaintiff and Respondent.
                                    *          *          *
              Defendant Wesley John Robins was alleged to have aided and abetted in
                                                                    1
what started out as a shoplifting, but turned into an Estes robbery, followed by
recklessly evading authorities. He was convicted of attempted second-degree robbery
                                                              2
(Pen. Code, §§ 664, subd. (a), 211, 212.5, subd (c); count 1) and felony reckless evading
(Veh. Code, § 2800.2; count 2). Defendant admitted a prior strike (§§ 667, subds. (d) &
(e), 1170.12, subds. (b) & (c)(1)), a prior prison term (§ 667.5, subd. (b)), and a prior
serious felony (§ 667, subd. (a)(1)). The court sentenced defendant to 32 months in
prison on count 1, which was double the low term because of the prior strike. It
sentenced defendant to a concurrent 32 months in prison on count 2, which was also
double the low term. The court imposed but immediately struck a five-year enhancement
for the prior serious felony and a one-year enhancement for the prior prison term. The
result was a total prison sentence of 32 months.
              Defendant raises three issues on appeal.
              First, defendant contends he cannot be convicted of an attempted Estes
robbery because there is no such crime. The gist of defendant’s argument is that the
concept of an attempted Estes robbery is incoherent. When someone takes clothes from a
retail store and uses force to get away, it does not matter if a store employee successfully
retrieves the property. The instant force is used, the Estes robbery is complete. There is
no possibility of a mere attempt, according to defendant. While this is a clever argument,
we ultimately reject it for reasons we explain below.
              Second, and third, both the attempted robbery conviction and the reckless
evading conviction were on the theory that these were natural and probable consequences
of aiding and abetting the theft. Defendant was neither the thief, nor the getaway driver.



1
              People v. Estes (1983) 147 Cal.App.3d 23.
2
              All statutory references are to the Penal Code unless otherwise stated.

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Defendant contends there was insufficient evidence to support the theory in either case.
We disagree and affirm the convictions.


                                          FACTS


              On a December evening in 2017, a few days before Christmas, a loss
prevention officer (LPO) for a department store in the Brea Mall observed codefendant
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Kristin Linn Benson behaving suspiciously. Namely, Benson was haphazardly
accumulating a large quantity of clothing, apparently without regard to size or price.
Benson began working her way toward the exit, talking on a cell phone, and continuing
to collect merchandise in the same manner.
              The LPO exited the store ahead of Benson and noticed a van parked near
the entrance, with an Arizona license plate, flashing its emergency lights. The LPO saw
the driver was on his cell phone and took a photo of the van’s license plate. The LPO
continued watching Benson inside the store through the glass doors. The LPO saw
Benson exit the store, arms full of merchandise, without paying.
              The LPO confronted Benson outside the store, identified herself verbally
and by presenting her loss prevention badge. Benson became aggressive and swung the
pile of merchandise at the LPO, pushing her back a few steps. The LPO commanded
Benson to let go of the merchandise, but Benson did not comply, so the LPO pushed
down on the clothing, causing most of it to slip out of Benson’s grasp and onto the
ground. The LPO then forcibly opened Benson’s arms to cause the remaining
merchandise to fall.
              Benson then pushed the LPO and made a break for the van. The LPO
grabbed Benson by her arm and jacket in an attempt to apprehend her, prompting Benson
3
              Defendant was tried with two codefendants. Only defendant Wesley John
Robins is a party to this appeal.

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to scream and yell at the LPO. About the time the LPO managed to detain Benson on the
ground, two men emerged from the van with hands clenched into fists, assuming a
fighting stance (the men were defendant and codefendant Brandyn Michael Scotto). One
of the men told the LPO to let Benson go. Fearful of a physical confrontation, the LPO
complied. The same man yelled, “Let’s go,” and the three climbed into the van and
drove away. The LPO immediately called the police, then collected the merchandise on
the ground. The value of the merchandise totaled about $765.
              A Brea Police officer was on patrol near the Brea Mall at the time. After
details of the robbery were broadcasted, he noticed a van fitting the description of the
getaway vehicle. He activated his police lights and siren to initiate a traffic stop, but the
van accelerated away. It then turned into a shopping center where it raced through the
parking lot at speeds between 30 and 45 miles per hour, eventually making its way
behind a retail store. The officer pursued the van, which then turned down an alleyway
back toward the front of the store. The exit from the alleyway was blocked by a car, so
the van turned into a brick wall, damaging the wall enough for the van to break through
and onto a sidewalk. It drove for approximately 30 feet on the sidewalk, then back onto
the parking lot, at speeds of 30 to 35 miles per hour. There were pedestrians in the area,
and at least one pedestrian suffered a minor injury after attempting to jump out of the
van’s way.
              The van eventually lost control, slammed into parked cars, and came to a
halt. The driver, codefendant Scotto, jumped out of the van and made a run for it, but
was quickly apprehended. Codefendant Benson was found in the front passenger seat,
and defendant was in the rear cargo area. The cargo area had no seats or seatbelts.
              The trial proceeded on the charge of attempted robbery, even though the
evidence suggested a completed robbery, because defendant had only been held to




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                                                            4
answer at the preliminary hearing on the charge of attempt. The LPO did not testify at
the preliminary hearing. At its conclusion, the evidence showed that Benson had
abandoned some of the merchandise prior to any physical confrontation with the LPO,
which, in the magistrate’s view, demonstrated only attempted robbery. Accordingly,
even though the complaint had charged robbery, the court held defendant to answer on a
charge of attempted robbery.


                                      DISCUSSION


              Defendant raises three issues on appeal. He contends there is no such thing
as an attempted Estes robbery, and thus his conviction on count 1 must be reversed. He
also contends there was no substantial evidence to support the jury’s conclusion that he
aided and abetted either the attempted robbery or the reckless evasion afterward. We
disagree on all three fronts.


Attempted Estes Robbery
              Defendant first contends that the concept of an attempted Estes robbery is
incoherent and cannot logically exist. And because the crime does not exist, the
argument goes, defendant cannot be convicted of it. (See People v. Bean (1989) 213
Cal.App.3d 639, 642 [finding a defendant cannot plead guilty to the nonexistent crime
“attempted petty theft with a prior conviction,” and stating, “Defendant’s claim is
refreshingly simple: ‘[Defendant] was convicted of a non-crime.’ This claim has merit”];
see also Adams v. Murphy (5th Cir. 1981) 653 F.2d 224, 225 [“Nowhere in this country


4
              The People initially filed a charge of robbery in the information. This
prompted a section 995 motion to dismiss by defendant. At the hearing, of which we do
not have the transcript, the People voluntarily moved to amend the information to charge
attempted robbery instead of robbery.

                                             5
can any man be condemned for a nonexistent crime”].) To understand defendant’s
argument, we begin with the basic principles of 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.) It includes two phases: acquiring the property, and
carrying it away (in the parlance of legalese: caption and asportation). (People v. Gomez
(2008) 43 Cal.4th 249, 255; People v. Lopez (2003) 31 Cal.4th 1051, 1058-1059.) What
sets robbery apart from simple theft is the use of force or fear and taking from the
victim’s immediate presence. “Theft by larceny may be committed without force or the
threat of violence and may be completed without the victim ever being present.” (Gomez,
at p. 254.) In the prototypical case, a person commits robbery by assaulting a person and
then stealing the person’s property. The force or fear is used to acquire the property.
              What sets an Estes robbery apart from a standard robbery is that force or
                                                                     5
fear is used not in the acquisition of the property, but in the escape. (People v. Estes,
supra, 147 Cal.App.3d at p. 28.) The typical case starts with a shoplifting and turns into
a robbery when the thief is confronted by a LPO, and the thief assaults the LPO in an
attempt to get away.
              A key premise of defendant’s argument is that, to constitute robbery, the
robber need only possess the property briefly—as one court phrased it, “but a moment.”
(People v. Pruitt (1969) 269 Cal.App.2d 501, 506; see People v. Pham (1993) 15
Cal.App.4th 61, 67 [“however temporarily”].) As another court explained, “‘[I]n order to
constitute a carrying away, the property need not . . . be removed from the premises of
the owner. Any removal of the article from the place where it was kept by the owner, . . .
whereby the thief obtains possession and control of the property at least for a fraction of



5
              In the parlance of legalese: not in the caption phase, but in the asportation.

                                             6
time is sufficient to constitute the element of carrying away.’” (People v. Nazzaro (1963)
223 Cal.App.2d 375, 381.)
              We now have all of the building blocks for defendant’s argument. The
chronology of an Estes robbery is that the thief will necessarily have possessed the
property, however temporarily, before using force. If the thief uses force while in
possession of the property, the Estes robbery is complete the moment force or fear is
used: there has been a taking coupled with force. This is true even if the thief is
ultimately unsuccessful in escaping with the goods. If, on the other hand, the thief
abandons the property or the property is confiscated before using force, then there is no
robbery at all. That is simply a theft plus an assault. As a result, defendant concludes,
there is no such thing as an attempted Estes robbery.
              As it happens, there is at least one case that lends support to defendant’s
argument. In People v. Pham, supra, 15 Cal.App.4th 61, the victims caught the
defendant in the act of taking items from their car; the defendant fled, and the victims
gave chase. About the time the victims caught up, the defendant threw the stolen goods
on the ground and attempted to fight off the victims. The victims ultimately subdued the
thief. (Id. at p. 64.) On appeal, the defendant argued the court erred in failing to instruct
the jury on the lesser included offense of attempted robbery. (Id. at p. 67.) The Court of
Appeal disagreed, reasoning that if the defendant abandoned the property, there would be
no robbery at all (attempted or otherwise), but that if he did not abandon the property
then it could only be a completed robbery, not an attempt: “If the prosecution’s evidence
was believed, it would not support an offense less than robbery. Defendant’s conduct
was either a robbery committed by the use of ‘force or fear in resisting attempts to regain
the property or in attempting to remove the property from the owner’s immediate
presence . . .’ [citation], or it was simply an assault or a battery. If defendant truly
abandoned the victims’ property before using force, then, of course he could be guilty of
theft, but not of an Estes-type robbery. Indeed, in the situation where property is taken

                                               7
without the use of force or the threat thereof and thereafter such force or threat is
employed to prevent the owner from recovering the property or to facilitate an escape, the
offense committed simply could not be an attempted robbery. Thus, defendant was not
entitled to an instruction on attempted robbery since such a theory was contrary to the
evidence.” (Id. at p. 68.)
              The key to unraveling this apparent riddle is a simple concept: that of a
successful attempt. There is nothing logically incoherent about the idea of a successful
attempt. Indeed, in California this concept is established by statute. Section 663
provides, “Any person may be convicted of an attempt to commit a crime, although it
appears on the trial that the crime intended or attempted was perpetrated by such person
in pursuance of such attempt . . . .” (Italics added.) As our high court explained, “Under
section 663, a defendant can be convicted of an attempt to commit a crime even though
the crime, in fact, was completed.” (People v. Rundle (2008) 43 Cal.4th 76, 138 fn. 28,
disapproved on other grounds by People v. Doolin (2009) 45 Cal.4th 390, 421 fn. 22).
              Defendant responds that section 663 can only apply to attempt crimes that
actually exist. Defendant contends that an attempted Estes robbery is akin to attempt
crimes that our courts have found not to exist, such as attempted assault (In re James M.
(1973) 9 Cal.3d 517, 522), attempted involuntary manslaughter (People v. Johnson
(1996) 51 Cal.App.4th 1329, 1332), and attempted reckless causing of a fire (In re Kent
W. (1986) 181 Cal.App.3d 721, 724).
              Those crimes, however, entail true logical contradictions. An assault is
already defined in terms of an attempt: “An assault is an unlawful attempt, coupled with
a present ability, to commit a violent injury on the person of another.” (§ 240.) In
finding attempted assault not to exist, our high court reasoned, “Juries should not be
required to engage in fruitless metaphysical speculation as to differing degrees of
proximity between an assault and a general attempt, nor as to the logical possibility of
attempting to commit any crime of assault, either simple or aggravated, the basic nature

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                                  6
of which is an attempt in itself.” (In re James M., supra, 9 Cal.3d at p. 522.) The
logical conundrums grow even worse with the concepts of attempted involuntary
manslaughter and attempted reckless causing of a fire. A thing attempted must be
intended. Yet involuntary manslaughter by its nature is unintended. “If there were such
a crime, it would necessarily be based on the internally contradictory premise that one
can intend to commit an unintentional killing.” (People v. Johnson, supra, 51
Cal.App.4th at p. 1332.) The same is true of an attempted reckless causing of a fire: “To
have that intent, he must (1) intend to cause a fire and (2) intend to unintentionally cause
burning of property. . . . [I]t is a logical impossibility to intend an unintentional result.
We conclude there can be no attempt to commit a violation of section 452.” (In re Kent
W., supra, 181 Cal.App.3d at pp. 723-724.)
              No such logical contradiction is entailed in the concept of an attempted
Estes robbery. Defendant’s only argument on that front is that an attempt is incoherent
because an attempt is necessarily a completed robbery. But we have already shown that a
successful attempt is a rational concept that is well established in the Penal Code. Thus,
even if every attempted Estes robbery is necessarily a completed crime, the crime of
attempt still exists and may be punished under section 663. Generally, attempted robbery
is a lesser included offense of robbery. (People v. Webster (1991) 54 Cal.3d 411, 443
[“The jury received instructions correctly defining robbery and the lesser included
offense[] of attempted robbery”].) Defendant’s argument seeks to parse the crime of
robbery in such a way as to eliminate the lesser included offense in the Estes situation.
We are not aware of any authority that would allow such a result, and we are loath to




6
               The court also found that the absence of a statute defining attempted assault
as a crime was indicative of Legislative intent not to punish attempted assault (e.g., an
attempt to commit violence without the present ability to do so). (In re James M., supra,
9 Cal.3d at p. 522.)

                                               9
adopt a rule that would allow a defendant to go unpunished because he committed the
greater offense and not the lesser.
              So, what do we make of the comments in Pham? The Pham court was
correct as far as it goes. The only issue in Pham was whether the defendant was entitled
to a jury instruction on the lesser crime of attempted Estes robbery. (People v. Pham,
supra, 15 Cal.App.4th at p. 67.) But if every attempt is a completed robbery, then there
were no set of facts in which defendant could be liable for attempted robbery and not a
completed robbery. Thus, if the jury were to find the defendant guilty, it could return but
                                                           7
one verdict: conviction for the greater offense of robbery. The evidence did not support
giving an instruction on the lesser offense. Here, the issue is not whether defendant was
entitled to an instruction on attempt. He was, after all, charged with attempted robbery,
not robbery. And we have concluded that commission of the completed robbery does not
preclude conviction of the attempted robbery with which he was charged.


Natural and Probable Consequences
              Next, defendant contends that the evidence does not support the conviction
for aiding and abetting an attempted robbery. The People proceeded on the theory that a
natural and probable consequence of aiding and abetting in the theft was that an Estes
robbery would be attempted. We conclude substantial evidence supports that theory.

7
                We do not necessarily agree with defendant’s premise that every attempted
Estes robbery is a completed Estes robbery. Consider the following hypothetical:
suppose a defendant takes property off a store rack and places it into a bag with the intent
to steal it, but, unnoticed by the defendant, the property falls out of the bag. If he then
exits the store, is confronted by an LPO who also does not notice the merchandise had
fallen out, and a scuffle ensues, arguably that would be an attempted Estes robbery but
not a completed Estes robbery because the defendant did not have possession of the
property at the time force was used. (See People v. Peppars (1983) 140 Cal.App.3d 677,
688 [“factual impossibility is not a defense to a charge of attempt”].) This scenario is
somewhat outlandish, but we simply make the point that it is not necessarily true that
every attempted Estes robbery is a completed Estes robbery.

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              “[A]n aider and abettor’s liability for criminal conduct is of two kinds.
First, an aider and abettor with the necessary mental state is guilty of the intended crime.
Second, under the natural and probable consequences doctrine, an aider and abettor is
guilty not only of the intended crime, but also ‘for any other offense that was a “natural
and probable consequence” of the crime aided and abetted.’” (People v. McCoy (2001)
25 Cal.4th 1111, 1117.) “‘The latter question is not whether the aider and
abettor actually foresaw the additional crime, but whether, judged objectively, it
was reasonably foreseeable. [Citations.] Liability under the natural and probable
consequences doctrine ‘is measured by whether a reasonable person in the defendant’s
position would have or should have known that the charged offense was a reasonably
foreseeable consequence of the act aided and abetted.’” (People v. Medina (2009) 46
Cal.4th 913, 920.) “‘[T]o be reasonably foreseeable “[t]he consequence need not have
been a strong probability; a possible consequence which might reasonably have been
contemplated is enough. . . .” [Citation.] [Citation.] A reasonably foreseeable
consequence is to be evaluated under all the factual circumstances of the individual
case [citation] and is a factual issue to be resolved by the jury.” (Ibid.) We review a
jury’s finding for substantial evidence. (People v. Chavez (2018) 22 Cal.App.5th 663,
685.)
              Here, the evidence supports the conclusion that defendant intentionally
aided and abetted theft when he exited the van to aid Benson in escaping from the LPO.
Arguably, that same evidence would support a conclusion that he intentionally aided and
abetted robbery, but the People did not present that theory to the jury. We will restrict
our analysis, therefore, to whether the robbery was a natural and probable consequence of
the theft.
              We conclude the evidence supports the verdict. Defendant was in a
getaway van, in front of a department store, three days before Christmas, and Benson
went in to steal a substantial amount of merchandise. Given the amount at stake, the

                                             11
prospect of a ready getaway, and the consequences of apprehension, it was reasonably
likely that Benson would use force or fear if necessary to get to the van. Defendant
contends there is no evidence in the record that Benson was prone to violence or had
committed robberies in the past. Although such evidence would have aided the
prosecution, it was not necessary; its absence furnished a viable jury argument, not a
winning appellate argument.
              Defendant raises a similar argument regarding count 2, reckless evading.
He contends there was no substantial evidence to support his conviction on a theory of
natural and probable consequences. Once again, we disagree. Defendant was waiting in
a getaway vehicle, which was parked right in front of the store. Making a quick escape in
the van was an essential part of the plan. Under these circumstances, a jury could
conclude that the probability of an ensuing chase was sufficiently high to make it
reasonably foreseeable.


                                     DISPOSITION


              The judgment is affirmed.




                                                 IKOLA, J.

WE CONCUR:



O’LEARY, P. J.



MOORE, J.



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