People v. Benson CA3

Filed 9/11/14 P. v. Benson CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (San Joaquin) ----

THE PEOPLE, C072978

Plaintiff and Respondent, (Super. Ct. No. SF117832A)

v.

ANTIONE BENSON,

Defendant and Appellant.

A jury found defendant Antione Benson guilty of conspiracy to commit robbery and (misdemeanor) possession of a concealed firearm and resisting a peace officer. (Pen. Code, §§ 148, 182, subd. (a)(1)/211, former 12025, subd. (a)(2).)1

1 Further undesignated statutory references are to the Penal Code.

1

Codefendants Patrick Smith and James Edward Ware were charged only with conspiracy to rob. Smith was acquitted; Ware was convicted, given probation and did not appeal. The trial court suspended imposition of sentence and granted probation. Defendant timely appealed, contending insufficient evidence supports the conspiracy conviction. Disagreeing, we affirm. BACKGROUND The People’s theory was that defendant, together with Smith and Ware, planned to rob a pizza delivery driver at gunpoint, by ordering a pizza delivered to another person’s house, while they lurked, armed, waiting to rob the driver. Carl Almirol had worked as a delivery driver for two Stockton Domino’s pizza parlors since 2008, and had been working at one on Charter Way since 2009. Domino’s has a safety policy for their delivery employees, which included minimizing the cash carried, being careful with first-time customers by calling them to verify the order, and not delivering to certain locations at night due to risk of robbery. The store commonly received three “prank” orders per night, and about once per night Almirol returned with an undelivered pizza. Almirol had his own safety practices of parking in the middle of the street, personally calling the customer with his mobile telephone when he was near the delivery address, asking the customer to turn on a porch light, and not carrying a wallet. On Sunday, June 26, 2011, Almirol was working the night shift. He was delivering three pizzas, two side orders, and two liters of soda pop to South Shasta Street. He called the number on the order before leaving the store and told the customer he would be there in 10-15 minutes. On the way, he tried calling the same number several times, but nobody answered. Immediately before he turned onto Shasta, he saw to his left “a guy wearing a [black or blue] hoodie sitting down” in the dark on one corner, and saw to his right another “guy” wearing a hoodie standing on the opposite corner.