Filed 2/25/14 P .v. Sammons CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E057028

v.                                                                       (Super.Ct.No. FVA1101851)

ALEXANDER DESHAWN SAMMONS,                                               OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Ingrid Adamson

Uhler, Judge. Affirmed with directions.

         Steven S. Lubliner, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

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

Lam, Deputy Attorneys General, for Plaintiff and Respondent.




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       A jury convicted defendant Alexander Deshawn Sammons of five charges: three

counts of second degree robbery (Pen. Code,1 § 211)—two arising out of the same

incident on December 6, 2011, and a third from December 11, 2011—as well as one

count of assault with a deadly weapon (§ 245, subd. (a)(1)) and one count of burglary

(§ 459) related to the events of December 11, 2011. On appeal, defendant challenges the

sufficiency of the evidence with respect to one of the two robbery convictions for the

December 6 incident, arguing there is no evidence that defendant intentionally directed

any force or fear-inducing conduct at one of two store employees. The trial court

sentenced defendant to a total of 18 years in state prison; the punishment for the

challenged robbery conviction is a concurrent six-year term. Defendant also requests that

we order the abstract of judgment to be corrected to reflect accurately the trial court’s

oral pronouncement of sentence.

       There is substantial evidence to support defendant’s conviction on the challenged

robbery count, so the judgment will be affirmed. We will order that the abstract of

judgment be corrected to accurately reflect the trial court’s oral pronouncement of

sentence.

                        I. FACTS AND PROCEDURAL HISTORY

       On December 6, 2011, the victim of the challenged robbery count (victim 1) was

working with the victim of the unchallenged robbery counts (victim 2) at a cell phone

sales store in Rialto, California. At approximately 3:30 p.m., defendant came into the

store. He had been in the store earlier in the day but left because victim 1 was then

       1   All further statutory references are to the Penal Code unless otherwise indicated.

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working alone and busy with another customer. Now, no other customers were in the

store. Victim 1 assisted him; victim 2 was in the back of the store. Defendant requested

that victim 1 show him “the most expensive phones that you have.” Victim 1 then

demonstrated a phone model for defendant using an inoperative “dummy” phone. Victim

2 walked to the front of the store and observed victim 1’s conversation with defendant.

       Defendant requested to purchase two of the phones, and the real phones were

brought out and placed on a shelf behind the store’s counter as victim 1 processed the

transaction. Victim 1 walked seven or eight feet away to the side of the store to process

defendant’s debit card for payment; meanwhile, victim 2 stood behind the counter by the

cash register, near where the phones had been placed. Defendant’s card was declined, as

was a second and third card provided by defendant. Defendant then told victim 1 he

would make a phone call to find out why the transaction did not go through.

       After a short telephone conversation, defendant hung up his phone and approached

victim 2, who was still behind the counter by the cash register. He came around the

counter quickly and in an aggressive manner, causing victim 2 to back up. Victims 1 and

2 both testified that it looked like defendant was preparing to punch victim 2, balling up

his hands into fists and posturing with his body. Defendant cursed at victim 2,

demanding that she give him the phones. She acceded to the demand, allowing defendant

to take the phones and leave. While defendant approached victim 2, victim 1 remained a

few steps away, by the machine for processing debit transactions. Victim 1 saw what

defendant was doing, but did not act to try to stop him; she testified that she “froze up,”

and that she feared defendant might hurt her.

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       After the close of evidence, the trial court denied a motion for acquittal with

respect to the robbery count involving victim 1. After the jury’s verdict, the court denied

defendant’s motion for a new trial on that count.

                                     II. DISCUSSION

       Defendant contends there is a lack of substantial evidence to support the fear

element of the robbery offense as to victim 1. He does not dispute there is substantial

evidence supporting both of his convictions for robbery of victim 2. 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, italics added.) Multiple robbery convictions for a single incident “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, 750.) Proof of either force or fear is sufficient to

sustain the conviction; it is not necessary to prove both. (People v. James (1963) 218

Cal.App.2d 166, 170.)

       “[T]he court must review the whole record in the light most favorable to the

judgment below to determine whether it discloses substantial evidence—that is, evidence

which is reasonable, credible, and of solid value—such that a reasonable trier of fact

could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980)

26 Cal.3d 557, 578.) “‘[U]nless the testimony is physically impossible or inherently

improbable, testimony of a single witness is sufficient to support a conviction.’

[Citation.]” (People v. Jones (2013) 57 Cal.4th 899, 963.) “We presume ‘“in support of

the judgment the existence of every fact the trier could reasonably deduce from the

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evidence.’ [Citation.] This standard applies whether direct or circumstantial evidence is

involved.’ [Citation.]” (People v. Prince (2007) 40 Cal.4th 1179, 1251.) Stated another

way, “[a]lthough the jury was instructed that if two reasonable inferences arise from

circumstantial evidence, it must accept the inference that points to innocence, on appeal

we draw all reasonable inferences in support of the judgment. [Citation.]” (People v.

Whalen (2013) 56 Cal.4th 1, 56, fn. 22.)

       The element of fear is satisfied by evidence of conduct, words, or circumstances

reasonably calculated to produce sufficient fear to cause the victim to be deterred from

preventing the theft or attempting to immediately reclaim the property (See, e.g., People

v. Flynn (2000) 77 Cal.App.4th 766, 771.) The requisite fear includes fear of “unlawful

injury to the person or property of the person robbed . . .” or “an immediate and unlawful

injury to the person or property of anyone in the company of the person robbed at the

time of the robbery.” (§ 212; People v. Brew (1991) 2 Cal.App.4th 99, 103-104.) The

law does not require that force or fear-inducing actions be specifically and intentionally

directed at the victim, only that the taking be “accomplished by means of force or fear.”

(§ 211; see People v. Prieto (1993) 15 Cal.App.4th 210, 211-216 [victim too “fearful and

shocked” to intervene in nearby struggle between perpetrator and second victim over

purses belonging to both victims].) Nor does the fear need to be the result of an express

threat. (Flynn, supra, at pp. 771-772.) “[I]t makes no difference whether the fear is

generated by the perpetrator’s specific words or actions designed to frighten, or by the

circumstances surrounding the taking itself.” (Id. at p. 772.)



                                             5
       Thus, as applied to this case, substantial evidence supports the conviction of

defendant for the robbery of victim 1 if testimony in the record that is neither physically

impossible nor inherently improbable, together with its reasonable implications, shows

that defendant’s words and actions, or the circumstances surrounding his taking of the

phones, produced the required fear.

       Here, victim 1’s and victim 2’s testimony constitutes substantial evidence

supporting the conviction. As noted above, victim 1 testified that when she observed

defendant’s aggressive actions toward victim 2, she was standing only seven or eight feet

away, and that she was afraid she might herself be hurt. Victim 1 also feared immediate

and unlawful injury to victim 2: she saw defendant rush behind the counter, toward

victim 2, with body language that seemed to indicate he was about to hit victim 2. The

two women were alone in the store when defendant began acting aggressively; there was

no one else to come to their aid or call police. Victim 1’s fear was sufficient to deter her

from preventing the theft or immediately reclaiming the property: she “froze up,” and

was unable to take any action. Victim 1’s testimony is neither physically impossible nor

inherently improbable. Additionally, victim 2’s testimony corroborates in all material

respects victim 1’s description of the circumstances and defendant’s words and conduct

that actually and reasonably gave rise to victim 1’s fear.

       In short, in light of the entire record, there is substantial evidence—specifically,

the testimony of victim 1 and victim 2—supporting the fear element of defendant’s

conviction for robbery with respect to victim 1. The judgment will therefore be affirmed.



                                              6
Defendant insists there is no substantial evidence that defendant intentionally directed

any force or fear-inducing conduct toward victim 1. We disagree. Defendant’s conduct

threatened injury to victim 2 most directly. But the jury could reasonably have concluded

that defendant’s threatening conduct toward victim 2 was also intended as a display to

deter victim 1 from interfering with his attempt to take the phones. Defendant had been

interacting directly with victim 1 only minutes before, and it is reasonable to infer he

remained well aware of her presence in the store, only a few steps away, even if he did

not look at or gesture towards her at the moment of the taking. (See Whalen, supra, 56

Cal.4th at p. 56, fn.22 [“on appeal we draw all reasonable inferences in support of the

judgment”].)

       In any case, however, as noted, the law does not require that force or fear-inducing

conduct be intentionally directed at the victim, only that the taking be “accomplished by

means of force or fear.” (§ 211; see Prieto, supra, 15 Cal.App.4th at p. 211-216). Here,

there is strong evidence that the taking was accomplished by means of the fear actually

and reasonably caused by defendant’s words and conduct, which caused both victims to

submit to defendant’s demand for the phones. As such, defendant was properly

convicted of robbery not only with respect to victim 2, but also victim 1.

       Defendant argues by reductio ad absurdum that Prieto and any other case

suggesting that force or fear-inducing conduct need not be intentionally directed at the

victim must be wrongly decided. He raises the specter of a defendant being held liable

for robbery of an employee that is never seen by the defendant, but who observes a theft

via surveillance camera or from a back room, and is placed in fear. This argument fails

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because, among other things, it does not account for the statutory definition that robbery

is theft from the “person or immediate presence” of the victim. (§ 211.)

       Regarding the second issue raised by defendant on appeal: The first page of the

abstract of judgment correctly reflects the trial court’s oral pronouncement of sentence,

indicating that the punishments for the assault and burglary convictions (counts 2 and 3)

were stayed pursuant to section 654. The minutes of the sentencing are also correct.

Handwritten notations on the second page of the abstract of judgment, however,

erroneously omit mention of the stays. The People concede that the abstract of judgment

should be corrected. We agree.

                                      III. DISPOSITION

       The judgment is affirmed, and the superior court is directed to transmit to the

Department of Corrections and Rehabilitation an amended abstract of judgment corrected

on the second page in item 11 to state that the sentences on counts 2 and 3 are stayed

pursuant to section 654.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                               HOLLENHORST
                                                                                         J.
We concur:

       RAMIREZ
                              P.J.
       MCKINSTER
                                 J.




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