People v. Drew CA4/3

Filed 1/25/16 P. v. Drew CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE,

Plaintiff and Respondent, G050593

v. (Super. Ct. No. 12NF1694)

ANTHONY JOEL DREW, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, W. Michael Hayes, Judge. Affirmed. Joshua H. Schraer and Howard C. Cohen, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent. * * *

Defendant Anthony Joel Drew appeals his conviction for robbery. (Pen. Code, § 211; all undesignated statutory references are to the Penal Code.) He argues his conviction must be reversed because his conduct only qualifies as a robbery under People v. Estes (1983) 147 Cal.App.3d 23 (Estes), and that Estes was wrongly decided. We disagree and affirm the judgment. I FACTS A jury convicted defendant of second degree robbery. (§§ 211, 212.5, subd. (c).) After the verdict, defendant admitted he served two separate prior terms in state prison. (§ 667.5, subd. (b).) The trial court sentenced defendant to the middle term of three years on the robbery, struck the prior prison term enhancements for purposes of sentencing (§ 1385), and gave defendant credit for time served of 178 days (155 days actual credit and 23 days conduct credit). The following facts suffice for purposes of the issue presented. On May 28, 2012, defendant and Erin Quinones were in the Nordstrom’s in the Brea Mall together. Quinones rapidly selected a number of items without paying attention to what the items looked like, including two dresses, sunglasses, a wallet, a Fedora, a watch, and a necklace she put on. Defendant was with her the whole time and looked around furtively. They took the escalator up to the next floor and Quinones went into a fitting room in the lingerie department. When she left the fitting room, security observed that several of the items Quinones took into the fitting room were not left in the room. She was still wearing the necklace and a wallet was visible inside the Fedora Quinones held upside down. Quinones and defendant went back down the escalator and exited on the second floor toward the parking garage within a minute of leaving the fitting room. They passed a number of registers and made no effort to pay for any of the items.