People v. Ricardo CA3

Filed 1/15/21 P. v. Ricardo CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Sacramento) ----

THE PEOPLE, C091745

Plaintiff and Respondent, (Super. Ct. No. 19FE006222)

v.

ROBERT DANIEL RICARDO,

Defendant and Appellant.

Defendant Robert Daniel Ricardo fought a loss prevention officer while trying to remove merchandise from a store. He was convicted of attempted robbery based on People v. Estes (1983) 147 Cal.App.3d 23 (Estes), which found a robbery occurs when force or fear is used to retain possession of stolen goods. Defendant makes two related arguments on appeal: (1) Estes is invalid because it improperly interprets the requirements for robbery; and (2) even if it is valid, there can be no crime of attempted Estes robbery. We will affirm.

1

BACKGROUND At a home improvement store, defendant took a can of spray paint, concealed a power tool in his jacket, and headed to one of the store’s exits, away from the cash registers, before he was confronted by Timothy Tipton, a loss prevention officer. Defendant dropped the can of paint, but refused to drop the power tool when requested, and sprayed pepper spray towards Tipton, burning Tipton’s face and eyes. Defendant then headed towards the parking lot. Tipton tried to stop defendant, and the two struggled, falling to the ground just outside the store. Two other shoppers then helped Tipton restrain defendant until sheriff’s deputies arrived and arrested defendant. Defendant admitted he took product from the store because he understood their policy was to not chase thieves. Defendant was charged with attempted robbery (Pen. Code, §§ 664, 211),1 unlawful possession of tear gas by a convicted felon (§ 22810, subd. (a)), and unlawful use of tear gas (§ 22810, subd. (g)(1)). It further was alleged that defendant had three prior strike convictions (§§ 667, subd. (e)(2), 1170.12, subd. (c)(2)). After a jury trial, the jury found defendant guilty on all three counts. At sentencing, the trial court found the prior conviction allegations true and that they fell within the three strikes law. The trial court then sentenced defendant to the middle term of two years for attempted robbery, doubled to four years for the prior strike, plus eight months (one-third the midterm) for possession of tear gas, doubled to 16 months for the prior strike conviction, for a total term of five years four months. The court also imposed eight months (one-third the midterm) for unlawful use of tear gas but stayed this sentence pursuant to section 654.