California Court of Appeal May 31, 2013 No. D060665Unpublished
Filed 5/31/13 P. v. Ortega CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D060665
Plaintiff and Respondent,
v. (Super. Ct. No. SCD229618)
OSCAR ALFREDO ORTEGA et al.,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of San Diego County, Louis R.
Hanoian, Judge. Affirmed.
Nancy E. Olsen, under appointment by the Court of Appeal, for Defendant and
Appellant Oscar Alfredo Ortega.
Martha L. McGill, under appointment by the Court of Appeal, for Defendant and
Appellant Jelani Akeem Bigsby.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Laura A.
Glennon, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found Oscar Alfredo Ortega and Jelani Akeem Bigsby (together
defendants) guilty of four counts of robbery with personal use of a firearm, one count of
burglary and four counts of assault with a semiautomatic firearm with personal use of a
firearm. The trial court sentenced Ortega and Bigsby to total prison terms of 35 years
Applying these principles here, the evidence clearly supported the robbery finding
as to Jacqueline. While the evidence is not nearly as strong as to Eva, applying the
substantial evidence standard, a rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. (People v. Marshall (1997) 15 Cal.4th
1, 34.)
Substantial evidence existed from which a reasonable jury could conclude that
Jacqueline had constructive possession over the money stolen from the safe and dresser
drawers. (CALCRIM No. 1600.) Namely, Jacqueline, an adult, lived at the home with
her parents and had a key to the home. Jacqueline knew about the floor safe, its
combination and how the safe opened, but did not know the combination by memory as
she had never opened it before. Elva also told Jacqueline that she kept envelopes of
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money in dresser drawers. Jacqueline told Bigsby that she could open the safe, but her
mind "went blank" when Bigsby asked her for a "guarantee." This evidence, combined
with the fact that Bigsby held Jacqueline at gunpoint, showed that Jacqueline was in
constructive possession of the stolen property.
Substantial evidence also existed from which a reasonable jury could conclude
that based on her special relationship with Marco and Elva, Eva had constructive
possession of the stolen property because she similarly "had authority . . . to protect the
stolen property on behalf of the owner." (Scott, supra, 45 Cal.4th at p. 753.) Eva was the
best friend of Jacqueline and had lived with the Ibanez family for about one year to attend
school. At the time of the robbery, Eva was an adult and Elva considered her to be a
family member. Although there was no direct evidence presented that Eva had a key to
the residence, the jury could reasonably infer that she did based on the above evidence.
Similarly, there was no direct evidence that Eva knew about the safe or the money hidden
in the drawers, but the jury could reasonably infer that she had such knowledge because
she was present when the police investigated the burglary that occurred the day before the
robbery where the burglar attempted to open the safe and stole an envelope of money that
Elva kept inside a drawer.
Civil Code section 50 establishes the right to use "necessary force" to protect the
"property of oneself, or of a wife, husband, child, parent, or other relative, or member of
one's family, or of a ward, servant, master, or guest." (Italics added.) Under this statute,
Eva had the authority to protect the stolen property, and thus had constructive possession
of it. She actually resisted the robbery and tried to protect the property by calling 911.
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Defendants considered Eva a threat to the completion of their crimes by keeping a gun
pointed at her, along with Elva and Jacqueline. Moreover, it is well settled that multiple
people may simultaneously "possess" a single item of personal property; thus, Marco and
Elva's presence does not change the analysis. (Scott, supra, 45 Cal.4th at p. 750.)
Defendants' reliance on People v. Ugalino (2009) 174 Cal.App.4th 1060 (Ugalino)
is misplaced as this case is distinguishable on its facts. In Ugalino, victims Johnson and
Rider shared an apartment with several other people, when defendant and a cohort
entered the apartment to purchase marijuana from Johnson, a drug dealer. (Id. at p.
1062.) Defendant and the cohort pointed firearms at Johnson and Rider, and defendant
told Johnson, " '[Y]ou're getting jacked.' " (Id. at p. 1063.) Johnson fled the apartment
with the drugs, and defendant followed him in pursuit. (Ibid.) On appeal, the court
reversed defendant's conviction for attempted robbery of Rider, noting that "Rider did not
have actual possession of the marijuana, and Johnson stored the marijuana locked in a
safe in his bedroom." (Id. at p. 1065.) The court impliedly concluded that Rider did not
have constructive possession of the drugs because a special relationship did not exist
between him and Johnson. Namely, the Ugalino court noted that there was no parent-
child relationship or employee relationship between Johnson and Rider, Rider did not
have a key to the apartment, coming and going only when someone else was home, and
there was no evidence Johnson expected Rider to assist him in protecting his belongings.
(Ibid.)
In summary, the evidence supported the jury's implied conclusion that both
Jacqueline and Eva were in constructive possession of the stolen property. Accordingly,
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defendants' robbery convictions pertaining to Jacqueline (count 3) and Eva (count 4) are
affirmed.
DISPOSITION
The judgments are affirmed.
MCINTYRE, J.
WE CONCUR:
NARES, Acting P. J.
MCDONALD, J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that there was sufficient evidence to support the defendants' robbery convictions because the victims had constructive possession of the stolen property due to their special relationships with the homeowners and their authority to protect the property.
Issues
Whether there was sufficient evidence to support robbery convictions for two victims who did not have actual possession of the stolen money.
Whether the victims had constructive possession of the property based on their relationship to the homeowners and the property.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“a person must have either actual or constructive possession of the property taken to be a robbery victim.”
“the evidence supported the jury's implied conclusion that both Jacqueline and Eva were in constructive possession of the stolen property.”