People v. Williams CA2/7

Filed 10/30/13 P. v. Williams CA2/7 Opinion following remand from Supreme Court NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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