Filed 11/10/15 P. v. Snyder CA4/2
                 NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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      IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FOURTH APPELLATE DISTRICT

                                            DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                 E060990

v.                                                                 (Super.Ct.No. SWF1201846)

JOSHUA FRANKLIN SNYDER,                                            OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of Riverside County. Michael B.

Donner, Judge. Affirmed.

         Reed Webb, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant

Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr,

Randall Einhorn, and Raquel M. Gonzalez, Deputy Attorneys General, for

Plaintiff and Respondent.




                                                        1
       Angered when his girlfriend, Jane Doe, informed him she wanted to date

others, defendant Joshua Snyder grabbed an ultrasound device and headed out of

her house. The two argued, and the argument poured out of the house to the

defendant’s pickup truck, then back into the house, where defendant removed a

container of protein powder and an empty five-gallon water bottle before head-

butting Doe and returning to his truck. After further argument and struggle,

during which Jane Doe attempted to reach into the truck to grab her property,

defendant attempted to close the pickup door on Jane Doe’s arm. Defendant was

charged with assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1), count

1), 1 assault by means of force likely to produce great bodily injury (§ 245, subd.

(a)(4), count 2), and robbery (§ 211, count 3), along with two prior convictions,

and an allegation that the offenses were committed while out on bail in another

case (§ 12022.1); he was tried by a jury. He was acquitted of assault with a deadly

weapon, convicted of misdemeanor assault as a lesser offense in count 2, and

robbery, and sentenced to eight years in prison. He appealed.2

       On appeal, defendant argues that there is insufficient evidence to support

the conviction for robbery. We affirm.



       1
         All further statutory references are to the Penal Code, unless otherwise
specified.
       2
         Defendant also filed a companion petition for writ of habeas corpus, In re
Joshua Snyder on Habeas Corpus, Case No. E063245, in propria persona. We
will decide that petition separately.

                                          2
                                  BACKGROUND

       On August 23, 2012, Jane Doe, a fitness professional, was recovering from

cosmetic surgery she had undergone a few months before. To remove scar tissue

and improve circulation at the surgery site, she used a small hand-held electronic

ultrasound device, paid for by defendant, that plugged into the wall.

       At that time, she had been dating defendant for a few months, although she

had been friends with him prior to engaging in a more intimate relationship with

him. On the date in question, defendant came to the house where Jane Doe lived

with her parents to talk to her. Doe explained she wanted to see other people

besides just defendant, which made defendant upset. When she tried to explain,

defendant’s anger escalated, he raised his voice and started to become combative.

Doe asked him to leave. Defendant grabbed the ultrasound device from where it

was plugged into the wall. When Doe asked defendant what he was doing,

defendant replied that the device was his. Doe protested that the item had been a

gift and belonged to her,3 but defendant said he was taking it back.

       Defendant exited the house and tossed the device onto the passenger seat of

his pickup truck. The couple argued loudly enough to bring Doe’s mother outside.

The yelling continued and a neighbor came out to see if help was needed. Doe’s




       3
         The device was purchased from Doe’s doctor to aid her post surgery
recovery. However, defendant testified Doe had left her credit cards in the car, so
he paid for the device for her. Doe thought it was a gift.

                                         3
mother convinced Doe and defendant to return to the house, and offered defendant

$50.00 for the device.

      Defendant opened the driver’s door, and as he did so, Doe tried to reach

over him to grab the device. Defendant pushed her away from the vehicle and

pulled the door closed, striking Doe’s arm approximately three times. Then they

returned to the house, where they resumed their argument. Doe told defendant to

leave and he walked to the doorway, after grabbing a large bottle of protein

powder Doe had just purchased worth $50 or $100, and a five-gallon water bottle.

At the doorway, defendant braced himself as Doe tried to push him out the door.

Then defendant stopped bracing himself and started to walk out the door, followed

closely by Doe. After several steps, defendant turned around and head-butted

Doe, causing a bump on her forehead and a black eye. Then defendant proceeded

to drive off, taking with him the ultrasound device and protein powder belonging

to Doe.4

      In the days that followed, defendant sent text messages to Doe and her

mother, advising them of his desire to take his own life. Defendant continued

sending text messages of apology to Doe in the days that followed. Doe agreed to

meet with defendant in a public place, at a hotel in San Diego where she planned

to meet a friend. They conversed for a time, and defendant asked to see Doe’s cell

phone. Defendant threatened to submerge the phone in water and would not return

      4
         Doe eventually recovered the ultrasound device, but did not recover the
protein powder.

                                         4
it to her, which upset Doe, a real estate broker (in addition to being a professional

fitness competitor), who needed the phone for business.

       Concerned for her safety, Doe took her purse and the laptop she had with

her, and left for the lobby to meet a friend. In the lobby, defendant told Doe her

phone was up in the room, and defendant went out. Doe followed defendant to the

street where both she and her friend requested return of the phone. Defendant

removed the phone from his pocket and smashed it against the ground, then took

off running after dropping it into a trash can. Doe called the police who arrested

defendant at the hotel.

       Defendant was charged with assault with a deadly weapon (§ 245, subd.

(a)(1), count 1), assault by means of force likely to produce great bodily injury

(§ 245, subd. (a)(4), count 2), robbery in a dwelling (§§ 211, 212.5, subd. (a),

count 3), and driving on a suspended license. (Veh. Code, § 14601.2, subd. (a),

a misdemeanor, count 4.) It was further alleged that defendant had been twice

convicted of and sentenced to state prison for separate felonies (prison priors),

within the meaning of Penal Code section 667.5, subdivision (b), and that the

offenses were committed while defendant was out on bail on another case.

(§ 12022.1.)

       Jury trial commenced on July 29, 2013, on which date the People dismissed

count 4, the misdemeanor charge of driving on a suspended license. Defendant

testified in his own defense at trial. He denied that the ultrasound device was a



                                          5
gift to Doe: he had paid for her device with the understanding that she would buy

another one at her next doctor visit to give to defendant. He also testified that Doe

had jumped on his back and was punching and choking him with her arm around

his neck, when he tried to leave the house the first time, and that she had slammed

his head into the doorway.

         In his truck, defendant noticed that the power adapter for his phone and

computer was missing from the console, and returned to the house demanding that

she return it. Doe demanded that he leave, so he took the protein powder as

collateral until she returned his power adapter. He felt Doe trying to jump on his

back again and turned around, hitting her on her head with his head. Back in his

truck, he had not realized her arm was in the opening when he went to close his

pickup door to leave. Defendant’s roommate saw defendant when he returned

home that night, with such bruising and cuts that it looked like he had been in a

fight.

         The jury acquitted defendant of assault with a deadly weapon as to count 1,

found him guilty of simple assault, as a lesser included offense within count 2, but

convicted him of robbery as charged in count 3. On the date of the scheduled

court trial respecting the enhancement allegations, defendant admitted two prior

prison terms for separate convictions for felony drunk driving, and admitted he

was out on bail at the time of the commission of the current offenses. Defendant




                                           6
made a motion for new trial, which was denied, and was sentenced to state prison

for an aggregate term of eight years.5 Defendant timely appealed.

                                        DISCUSSION

       Defendant argues that there is insufficient evidence to support his robbery

conviction where there is no evidence he intended to deprive the owner of her

property permanently. Specifically, defendant argues the ultrasound device was

taken under a claim of right, and the protein powder was taken without the intent

to permanently deprive Doe of its use for an extended period of time. We

disagree.

       In reviewing a sufficiency of evidence claim, our role is limited; we

determine whether, on the entire record, a rational trier of fact could find the

defendant guilty beyond a reasonable doubt. (People v. Smith (2005) 37 Cal.4th

733, 738-739.) On appeal, we must view “‘the whole record in the light most

favorable to the judgment’ to determine whether it contains sufficient evidence

‘such that a reasonable trier of fact could find the defendant guilty beyond a

reasonable doubt.’ [Citations.]” (People v. Nguyen (2015) 61 Cal.4th 1015, 1097-

1098 [conc. & dis. opn. of Cuellar, J.].) We view the evidence in the light most

favorable to the People and must presume in support of the judgment the existence


       5
         On February 14, 2014, the initial sentencing date, the court stayed the
two-year term for the on-bail enhancement, pending resolution of the case for
which defendant had been released on bail prior to his arrest on the current
charges. On June 30, 2014, the court vacated that sentence and resentenced
defendant to eight years, imposing the two-year term for the on-bail enhancement.

                                          7
of every fact the trier could reasonable deduce from the evidence. (People v.

Ochoa (1993) 6 Cal.4th 1199, 1206.) Reversal is unwarranted unless it appears

that upon no hypothesis whatever is there sufficient substantial evidence to

support the conviction. (People v. Mason (2006) 140 Cal.App.4th 1190, 1199.)

       Substantial evidence must be of ponderable legal significance, reasonable

in nature, credible and of solid value. (People v. Johnson (2014) 229 Cal.App.4th

910, 919.) While we must ensure that the evidence is reasonable, credible and of

solid value, it is the exclusive province of the judge or jury to determine the

credibility of a witness and the truth or falsity of the facts on which that

determination depends. (People v. Smith, supra, 37 Cal.4th at p. 739.) The

uncorroborated testimony of a single witness is sufficient to support a conviction

unless it is physically impossible or inherently improbable. (People v. Prunty

(2015) 62 Cal.4th 59, 89 [conc. & dis. opn. of Cantil-Sakauye, C.J.], citing People

v. Brown (2014) 59 Cal.4th 86, 106; see also, People v. Duncan (2008) 160

Cal.App.4th 1014, 1018.)

       Here, defendant claims the ultrasound device was taken under a claim of

right, although he acknowledges there was conflicting evidence about whether the

device was purchased by defendant as a gift to Doe, or whether he expected to be

repaid for the item. However, in ruling on defendant’s motion for new trial, the

court noted that defendant’s own testimony conceded the device had been bought




                                           8
for Doe, and that when Doe said she thought it was a gift, defendant replied he

was taking it “back,” rather than contradict her understanding.

       Defendant also claims that insofar as he took the protein powder to hold

until Doe returned his power adapter, he did not intend to permanently deprive

Doe of the protein powder. However, to constitute robbery, the requisite mental

state includes the intent to remove it from the owner’s possession for so extended

a period of time the owner would be deprived of a major portion of the value or

enjoyment of the property. (CALCRIM 1600; People v. Avery (2002) 27 Cal.4th

49, 57.) The protein powder was never returned to Doe. The jury was properly

instructed on the theory of claim of right, as defendant also acknowledges, and it

was also properly instructed on the requisite intent for robbery. However, the jury

unanimously rejected these defenses, as indicated by its verdict.

       Jurors are free to disbelieve some or all of a defendant’s version of events

in favor of other conflicting evidence (see People v. Silva (2001) 25 Cal.4th 345,

369; People v. Wharton (1991) 53 Cal.3d 522, 547), and we are not entitled to

substitute our judgment for that of the trier of fact, even if the circumstances might

also support a contrary finding. (People v.Ceja (1993) 4 Cal.4th 1134, 1139.)

       Here, the jury rejected defendant’s version of the incident and accepted

Doe’s version. We are bound to accept it also because it is not physically

impossible or inherently improbable. There is substantial evidence to support the

robbery conviction.



                                          9
                                 DISPOSITION

     The judgment is affirmed.

     NOT TO BE PUBLISHED IN OFFICIAL REPORTS
                                        RAMIREZ
                                                  P. J.


We concur:

MILLER
                       J.

CODRINGTON
                       J.




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