Filed 10/30/13 P. v. Williams CA2/7
Opinion following remand from Supreme Court
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


THE PEOPLE,                                                          B222845

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. MA046168)
         v.

DEMETRIUS LAMONT WILLIAMS,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Bernie C. LaForteza, Judge. Reversed and remanded with directions.
         Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle and
Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.
       Demetrius Lamont Williams used re-encoded payment cards to buy gift cards at
Walmart and struggled with one of its security guards as he tried to leave the store after
his scheme was discovered. A jury convicted Williams on four counts of robbery (Pen.
              1
Code, § 211), three counts of forgery of access cards (§ 484i, subd. (b)), and one count
each of burglary (§ 459), grand theft of personal property (§ 487, subd. (a)) and
fraudulent use of an access card or account information (§ 484g, subd. (a)).
       On appeal to this court Williams’s primary contention was that the use of force
when fleeing a retail store following the successful acquisition of personal property
through a theft by false pretenses, as opposed to theft by larceny or theft by trick, does
not constitute robbery. He also argued his forgery convictions were not supported by
sufficient evidence, which the People conceded, and advanced several other challenges to
his convictions and sentencing. We affirmed the robbery convictions, reversed the
forgery convictions and modified the remaining judgment to stay imposition of the
burglary sentence but affirmed in all other respects.
       Williams petitioned the Supreme Court for review of our decision, limited to the
question whether a conviction for robbery may be based on an underlying theft by false
pretenses. The Court granted Williams’s petition and held a theft by false pretenses does
not satisfy the “felonious taking” element of robbery: “[L]arceny requires a ‘trespassory
taking,’ which is a taking without the property owner’s consent. [Citation.] This element
of larceny, like all its other elements, is incorporated into California’s robbery statute.
[Citations.] By contrast, theft by false pretenses involves the consensual transfer of
possession as well as title of property; therefore, it cannot be committed by trespass. . . .
[¶] Here . . . defendant did not commit larceny. Walmart, through its store employees,
consented to transferring title to the gift cards to defendant. Defendant acquired
ownership of the gift cards through his false representation, on which Walmart relied,
that he was using valid payment cards to purchase the gift cards. Only after discovering
the fraud did the store seek to reclaim possession. Because a ‘felonious taking,’ as
1
       Statutory references are to the Penal Code.
                                               2
required in California’s robbery statute [citation], must be without the consent of the
property owner or “‘against his will’” [citation], and Walmart consented to the sale of the
gift cards, defendant did not commit a trespassory (nonconsensual) taking, and hence did
not commit robbery.” (People v. Williams (2013) 57 Cal.4th 776, 788.)
       The Court reversed our judgment upholding Williams’s four robbery convictions
(People v. Williams, supra, 57 Cal.4th at p. 790) and remanded the matter to us
“[b]ecause other aspects of the Court of Appeal’s decision may be affected” by that
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reversal. (Ibid.)
       1. Williams’s Conviction and Sentencing; this Court’s Prior Opinion
       In addition to charging Williams with 10 felony counts of robbery, burglary,
forgery and theft, the information specially alleged Williams had suffered one prior
serious or violent felony conviction (robbery) within the meaning of the three strikes law
(§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and section 667, subdivision (a)(1), and
had served five separate prison terms for prior felony convictions (§ 667.5, subd. (b)).
The jury found Williams guilty of all the crimes charged. In a bifurcated proceeding
Williams waived his right to trial and admitted the prior robbery conviction allegation.
The People dismissed the prior prison term allegations.
       The People submitted a sentencing memorandum urging the court to impose an
aggregate state prison term of 23 years eight months, including the upper term for the
first robbery conviction and consecutive terms for the remaining three robbery
convictions. At the outset of the sentencing hearing the court denied Williams’s motion
to dismiss his prior felony strike conviction on the grounds of his “extremely long
criminal history” and “the dangerousness” of the case. The court explained, “[The case]
involved four victims . . . and that makes it even more dangerous. If it was just one
person, so be it but the person who is challenging four people, to me, indicates a serious
potentially dangerous situation.”

2
      No supplemental briefing after remand was filed by either party. (See Cal. Rules
of Court, rule 8.200(b).)
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       After hearing argument the court sentenced Williams to an aggregate state prison
term of 23 years eight months: A principal term of five years, the upper term, for robbery
(count 1), doubled to 10 years under the three strikes law, plus an additional five years for
the section 667, subdivision (a)(1), enhancement, and consecutive subordinate terms of
one-third the middle term of three years, doubled to two years, for each of the three
additional robbery convictions (counts 2, 3 and 4); one-third the middle term of two
years, doubled to one year and four months for burglary (count 5); and one-third the
middle term of two years, doubled to one year and four months for forgery (count 8).
Sentences for the remaining counts were stayed pursuant to section 654.
       In our prior opinion, (July 31, 2011, B222845), in addition to concluding
Williams’s robbery convictions were properly predicated on the use of force to attempt to
escape with gift cards he had stolen by false pretenses—the ruling reversed in People v.
Williams, supra, 57 Cal.4th 776—we reversed the forgery convictions for insufficient
         3
evidence, held Williams could not be separately punished for the robbery convictions
                                               4
and the burglary conviction under section 654 and found the trial court had not abused its


3
      We explained, to be convicted of forgery under section 484i, subdivision (b), the
evidence must demonstrate the defendant modified or altered access card account
information or authorized or consented to such alteration or modification. There was no
evidence of either, and “‘[a]n inference is not reasonable if it is based only on
speculation.’” (See People v. Hughes (2002) 27 Cal.4th 287, 365.)
4
       Section 654 prohibits separate punishment for multiple offenses arising from the
same act or from a series of acts constituting an indivisible course of criminal conduct.
(People v. Rodriguez (2009) 47 Cal.4th 501, 507; People v. Latimer (1993) 5 Cal.4th
1203, 1216.) As we explained, courts have repeatedly found section 654 to bar separate
punishment when a defendant commits robbery after being confronted during a burglary,
which we believed had occurred in the case at bar. (See, e.g., People v. Perry (2007)
154 Cal.App.4th 1521, 1527 [“it cannot be said that appellant acted with multiple
independent objectives in committing the burglary and the robbery”]; People v. Le (2006)
136 Cal.App.4th 925, 931 [§ 654 barred punishment for both burglary and robbery; “the
robbery offense arose from defendant’s use of force to steal the [drugstore’s]
merchandise, which occurred when defendant struggled with the [drugstore’s] department
manager over the car keys and then drove off while the manager’s upper body was still in
                                              4
discretion in ordering consecutive, rather than concurrent, sentences. We also held
Williams had forfeited his claim the court erred in failing to advise him of the penal
consequences of admitting his prior robbery conviction. No issue relating to these
matters was addressed by the Supreme Court. Accordingly, our initial decision remains
determinative on those points. (See Agricultural Labor Relations Bd. v. Tex-Cal Land
Management, Inc. (1987) 43 Cal.3d 696, 709, fn. 12 [following voters’ amendment of the
constitutional jurisdiction of the California Supreme Court by adoption of Proposition 32
in November 1984, the Supreme Court may review limited portions of the Court of
Appeal’s decision in a case; “[w]e need not address portions of the opinion as to which
the parties did not seek review, and the Court of Appeal’s opinion remains determinative
on those matters”].)
       2. The Matter Must Be Remanded for Resentencing on the Burglary Conviction
       Based on the Supreme Court’s decision on the robbery counts and our prior
opinion regarding the forgery charges, Williams’s judgment must be reversed save only
for his convictions for second degree burglary, grand theft and fraudulent use of an
access card, as well as his admission of a prior serious or violent felony conviction under
the three strikes law. (Because none of the remaining current felony convictions is for a
serious felony, the five-year enhancement in section 667, subdivision (a), cannot be
applied to Williams’s sentence.) The trial court previously determined, correctly in our
view, sentence on the theft and fraudulent use convictions should be stayed pursuant to
section 654 pending the finality of the judgment and service of the sentence on the
second degree burglary count. Accordingly, all that remains on remand is for the trial
court to sentence Williams as a second strike offender for second degree burglary.




the vehicle, in an effort to depart with the [whiskey and diapers] obtained in the store
burglary”].)
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                                     DISPOSITION
       The judgment is reversed and the matter remanded to the trial court for
resentencing consistent with the Supreme Court’s opinion, this opinion and those portions
of our initial decision that have not otherwise been reversed or modified.




                                                 PERLUSS, P. J.

       We concur:



              WOODS, J.



              ZELON, J.




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