Filed 2/23/15 P. v. Collier CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                                     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,                                       E060943

v.                                                                       (Super.Ct.No. FVI1300754)

SKYLAR PETYON COLLIER,                                                   OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of San Bernardino County. Eric M. Nakata,

Judge. Affirmed.

         Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

William M. Wood and Felicity Senoski, Deputy Attorneys General, for Plaintiff and

Respondent.




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       A jury convicted defendant and appellant Skylar Peyton Collier of second degree

robbery. (Pen. Code,1 § 211, count 1.) He was sentenced to three years in state prison.

On appeal, defendant argues that his conviction should be reversed and reduced to grand

theft person (§ 487, subd. (c)) on the ground that there was insufficient evidence to

support the finding of force or fear necessary for a robbery conviction. Defendant also

contends that reversal is warranted because he was prejudiced by the admission of

testimony that he invoked his Miranda2 rights during a police interview. For the reasons

explained below, we affirm the judgment.

                                               I

                    FACTUAL AND PROCEDURAL BACKGROUND

       1. Testimony regarding the taking of the bank bag

       At trial in December 2013, the parties presented the following evidence to the

jury. On February 16, 2013, defendant and his friend were at a truck stop in Hesperia

looking for money to buy heroin. The victim, a 12-year-old Girl Scout, was also at the

truck stop that day, selling cookies at a table with her mother, three other scouts, and

another adult. Under Girl Scouts’ procedure, when a cookie sale occurs the money is to

be placed into a zippered bank bag. The scout who is responsible for collecting money is

instructed to keep the bag close to her at all times.


       1   Unless stated otherwise, all further statutory references are to the Penal Code.

       2   Miranda v. Arizona (1966) 384 U.S. 436.



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       Defendant walked up to the victim’s table three separate times that afternoon and

looked at or inquired about the cookies. The fourth time defendant returned to the table,

the victim and her mother were there alone because the others had gone to use the

restroom.

       The victim testified that defendant approached the table from her left side and that

she was holding the bank bag and “grabbing it kind of tight.” As she was looking at

other customers, she “noticed there was a tug” on the bag and, because she thought it was

her friend pulling on the bag, she “pulled back lightly.” After she pulled back on the bag,

defendant “grabbed the money [bag]” and, with his other hand, took a donations

container and a box of cookies from the table. The victim recalled a total of three tugs on

the bag—defendant’s first tug, her tug back, and his final tug.

       The victim’s mother testified that she was sitting close to her daughter, a “few feet

away,” when the defendant took the bank bag. She testified that she saw a “little

struggle” between her daughter and defendant and that “[w]ith one hand he grabbed the

money bag from [the victim].” When asked about the struggle on cross examination, she

said she saw “[t]he bag pulled back and forth really quick [¶] . . . [¶] left and right.”

       After taking the items, the defendant ran to his friend’s car, which was parked in

the truck stop parking lot. They drove to another friend’s house to buy heroin with the

Girl Scouts’ money.

       Defendant testified that he agreed with every aspect of the victim and her mother’s

testimony about the incident except for their description of how he took the bank bag.



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Defendant denied taking the bag from the victim’s hands and testified that he had taken it

from the table. Defendant’s friend who was driving the car that day (and who was in

custody at the time of trial) testified that after defendant got into the car he told him that

he “just ran up and grabbed [the bank bag] off the table.” When asked on cross-

examination why he had not mentioned that defendant had told him he had taken the bag

from the table during previous police interviews, he replied that the police had “never

asked” that specific question.

       2. The invocation testimony

       A few weeks after the incident, an officer questioned defendant about the incident

after having read defendant his Miranda rights. During the interview, defendant lied

about having been to the truck stop in Hesperia during the time of the incident. Before

trial, the prosecution moved to introduce defendant’s dishonest statement to the police for

purposes of impeachment if defendant testified.

       At the close of the People’s case, the officer testified that during the interview

defendant denied he had been at the truck stop in Hesperia in the past few months. He

further testified that when he told defendant he had an incriminating video of him and his

friend at the truck stop on the date of the incident, defendant indicated that he no longer

wanted to talk to the officer. Defense counsel did not object during the officer’s

testimony.

       After the parties rested, the court asked the prosecutor why he had called the

officer as a witness. The prosecutor explained that his purpose in calling the officer as a



                                               4
witness was to attack defendant’s credibility by demonstrating that he had lied about

being at the truck stop. The prosecutor explained that he stopped questioning the officer

when he elicited the testimony regarding defendant’s invocation of his Miranda rights

because he “was not trying to go there.” The court described the prosecutor’s elicitation

of the invocation testimony as a “tactical mistake,” but concluded that it was “okay with

it.” Defense counsel then indicated that he had no objection to the testimony.

       3. The conviction

       At the close of the prosecution’s case, defendant made a section 1118.1 motion to

acquit on the charge of robbery, arguing insufficient evidence to support a finding that

defendant used force to take the bank bag. The People opposed the motion, arguing that

there was a struggle between defendant and the victim for the bag and that defendant

used force to overcome her resistance and take the bag from her. The trial court denied

the motion on the ground that “a reasonable jury could find the defendant guilty as

charged.” On December 11, 2013, the jury convicted defendant of robbery. On April 4,

2014, defendant was sentenced to three years in state prison.

                                             II

                                        ANALYSIS

       1. Sufficiency of the evidence

       Defendant argues that his robbery conviction should be reversed because there

was insufficient evidence to support a finding that he used “force or fear”—a necessary




                                             5
element of robbery—to take the bank bag. Because we hold that there is substantial

evidence to support a finding of actual force, we disagree.

       When considering a challenge to the sufficiency of evidence supporting a

conviction, we must “ ‘review the whole record in the 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 have found the

defendant guilty beyond a reasonable doubt.’ ” (People v. Jennings (1991) 53 Cal.3d

334, 364.) To succeed under a substantial evidence review, defendant must establish that

no rational jury could have concluded as it did—it does not matter that “the evidence

could reasonably be reconciled with a finding of innocence or a lesser degree of crime.”

(People v. Hill (1998) 17 Cal.4th 800, 849.) Indeed, under a substantial evidence review,

“the testimony of a single witness is sufficient to support a conviction,” so long as that

testimony is not inherently improbable or physically impossible. (People v. Elliott (2012)

53 Cal.4th 535, 585.)

       The Penal Code defines the crime of robbery as the taking of personal property

from another’s possession “by means of force or fear.” (§ 211; see People v. Gomez

(2008) 43 Cal.4th 249, 254.) Absent force or fear, the crime committed is grand theft

from the person, not robbery. (People v. Mungia (1991) 234 Cal.App.3d 1703, 1707

(Mungia).)

       The amount of force required to constitute a robbery “ ‘ “is such force as is

actually sufficient to overcome the victim’s resistance.” ’ ” (People v. Burns (2009) 172



                                              6
Cal.App.4th 1251, 1259 (Burns).) “[T]he force need not be of an extreme character.

Thus, even a snatching may be robbery if it is forcible, as by . . . knocking an object out

of a person’s hands.” (2 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Crimes

Against Property, § 99, p. 137; see Burns, at pp. 1255, 1259 [grabbing purse from the

elbow of the victim who tried to clutch the purse constituted sufficient force]; People v.

Clayton (1928) 89 Cal.App. 405, 411 [knocking property out of the victim’s hands in two

attempts constituted sufficient force].) Thus, if there is substantial evidence to support a

finding that defendant took the bank bag by overcoming the victim’s resistance, we will

affirm a robbery conviction.

       Here, the jury heard testimony from both the victim and her mother that there was

a brief struggle between the defendant and the victim for the bank bag. The victim

testified that, as she was holding the bag in her hands, she felt a tug to the left, she tugged

back to the right, and then defendant pulled the bag one more time to the left, removing it

from her grip. The victim’s mother testified that she saw a “struggle” between defendant

and her daughter that consisted of the bag being “pulled back and forth.” Her description

of the events corroborates the victim’s testimony, which testimony alone is substantial

evidence from which the jury could reasonably infer that defendant used force to take the

bag.

       Defendant argues that the evidence does not demonstrate that the degree of force

he used to take the bank bag from the victim was sufficient to satisfy the force element.

Defendant points to differing testimony on the taking of the bank bag and asserts that



                                               7
“the facts were contradictory as to whether sufficient force was used to overcome [the

victim’s] resistance.”

       As stated, sufficient force for a robbery is simply force that is “ ‘ “actually

sufficient’ ’ ” to overcome the victim’s resistance. (Burns, supra, 172 Cal.App.4th at

p. 1259.) In other words, the degree of force is immaterial so long as the victim resisted

the taking. (See Mungia, supra, 234 Cal.App.3d at p. 1709 [force is a “relative concept”

because some people are more vulnerable than others, and the determination of whether

the physical act applied to the victim constitutes force is a factual question the jury must

determine “using its own common sense”].) Here, the jury could reasonably infer based

on the victim’s and her mother’s testimony that when taking the bag defendant used force

sufficient to overcome the resistance of a 12-year-old girl.

       Finally, defendant’s contention that “[t]he testimony of various witnesses was all

over the map” is unpersuasive in a substantial evidence analysis. Neither the fact that the

jury heard a conflicting description of the taking from both defendant and his friend nor

any of the alleged weaknesses in the victim’s or her mother’s testimony render the

evidence supporting the conviction insufficient. The substantial evidence standard

requires more than a showing that the jury heard conflicting or unconvincing evidence.

“In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility

issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in

the testimony is the exclusive province of the trier of fact.” (People v. Young (2005) 34

Cal.4th 1149, 1181.) As we determined ante, the victim’s and her mother’s testimony



                                              8
regarding the manner in which defendant took the bank bag from the victim constitutes

substantial evidence.

       2. The invocation testimony

       Defendant contends that the trial court erred when it admitted the officer’s

testimony that he invoked his right against self-incrimination during his police interview.

In the alternative, he argues that trial counsel rendered ineffective assistance of counsel

by failing to object to the invocation testimony. He asserts that the invocation testimony

prejudiced him by tainting his credibility before he testified and “might well have tipped

the scales of credibility in favor of a verdict of robbery versus grand theft person.” In

effect, defendant argues that a Doyle3 error occurred at his trial. Because no such error

occurred, we reject both of defendant’s claims.

       Under Doyle, “the use against defendant of a postarrest invocation of rights

following a Miranda admonition violates due process.” (People v. Thomas (2012) 54

Cal.4th 908, 936 (Thomas), citing Doyle, supra, 426 U.S. at p. 619.) However, the Doyle

rule is not violated where “ ‘ “the evidence of defendant’s invocation . . . was received

without objection and the remarks of the prosecutor did not invite the jury to draw any

adverse inference from either the fact or the timing of defendant’s exercise of his

constitutional right.” ’ ” (Thomas, at p. 936, italics added, original italics omitted, citing

People v. Huggins (2006) 38 Cal.4th 175, 199.) In other words, a “ ‘Doyle violation does

not occur unless the prosecutor is permitted to use a defendant’s postarrest silence against

       3   Doyle v. Ohio (1976) 426 U.S. 610.


                                              9
him at trial.’” (Thomas, at p. 936, citing People v. Clark (2011) 52 Cal.4th 856, 959,

original italics.) Finally, the failure to object to the testimony at trial waives a claim of

Doyle error. (People v. Hughes (2002) 27 Cal.4th 287, 332 (Hughes).)

          Here, the prosecutor ceased questioning the officer as soon as he elicited the

invocation testimony. Defense counsel did not object to the testimony, and the

prosecutor did not attempt to use the testimony against defendant (e.g., by inviting the

jury to draw an adverse inference from his invocation). Therefore, not only was there no

violation of defendant’s constitutional rights, but also defendant waived any Doyle error

argument by failing to object during trial.

          Putting aside the issue of waiver and assuming the invocation testimony violates

Doyle, any error in permitting the violation is not reversible if it is harmless beyond a

reasonable doubt. (Thomas, supra, 54 Cal.4th at pp. 936-937.) In People v. Hinton

(2006) 37 Cal.4th 839 (Hinton), the prosecutor elicited testimony that the defendant had

invoked his Miranda rights during an interview, as well as testimony that the defendant

had admitted to giving police false statements both before and after his invocation. (Id. at

p. 867.) The trial court denied the defendant’s motion for a mistrial on the basis of Doyle

error, expressing doubt that the jurors were “ ‘going to do much with [the invocation

testimony]’ ” and directing the prosecutor not to mention or refer to the testimony.

(Ibid.)

          On appeal, the court upheld the trial court’s ruling, concluding that the Doyle error

was harmless beyond a reasonable doubt. (Hinton, supra, 37 Cal.4th at pp. 867-868.)



                                               10
The court based its conclusion on the dual grounds that “the prosecutor never again

mentioned the invocation during trial or closing argument” and that the invocation

testimony was “both cumulative of—and inferior to—the other evidence indicating that

he had fabricated the account he . . . provided . . . at trial.” (Ibid.) The court reasoned

that while “the jury could in theory have relied on defendant’s unwillingness to speak to

the police . . . to infer that he was fabricating a defense . . . . The problem with

defendant’s trial testimony was not that the jury heard that he once invoked his Miranda

rights, but that he repeatedly provided in the other interviews untrue accounts of his

involvement . . . .” (Id. at pp. 867-868, italics added.)

       Similarly here, the prosecutor did not mention the invocation testimony after

having elicited it, and defendant admitted to having given the officer untrue accounts of

his involvement in the incident. As in Hinton, the problem with defendant’s trial

testimony was not that the jury heard that he once invoked his Miranda rights, but that he

testified he lied to the officer about being at the truck stop because he “was scared to get

into any trouble.” While it is conceivable that the invocation testimony could allow a

jury to conclude that defendant’s credibility is poor and, thus, that he could be lying

about the central issue in the case—whether he used force to take the bank bag from the

victim—that testimony was cumulative of, and inferior to, the direct evidence that

defendant affirmatively lied to the officer during the interview before invoking his

Miranda rights. Because the prosecutor did nothing with the testimony and because the

testimony was cumulative of, and less harmful than, other testimony the jury heard



                                              11
during trial,4 we conclude that the invocation testimony could not have affected the jury’s

finding on the force element. We therefore hold that any Doyle error here was harmless

beyond a reasonable doubt.

                                     DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                               RAMIREZ
                                                                                      P. J.


We concur:


HOLLENHORST
                          J.


McKINSTER
                          J.




       4 This testimony includes defendant’s admission that he lied to the police about
his presence at the truck stop as well as the testimony given by the victim and her mother
describing the taking as a struggle. (See Hughes, supra, 27 Cal.4th at p. 332 [any Doyle
error was harmless beyond a reasonable doubt “in light of the overwhelming evidence of
defendant’s guilt”].)


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