Filed 2/23/15 P. v. Collier CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E060943
v. (Super.Ct.No. FVI1300754)
SKYLAR PETYON COLLIER, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Eric M. Nakata,
Judge. Affirmed.
Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
William M. Wood and Felicity Senoski, Deputy Attorneys General, for Plaintiff and
Respondent.
1
A jury convicted defendant and appellant Skylar Peyton Collier of second degree
robbery. (Pen. Code,1 § 211, count 1.) He was sentenced to three years in state prison.
On appeal, defendant argues that his conviction should be reversed and reduced to grand
theft person (§ 487, subd. (c)) on the ground that there was insufficient evidence to
support the finding of force or fear necessary for a robbery conviction. Defendant also
contends that reversal is warranted because he was prejudiced by the admission of
testimony that he invoked his Miranda2 rights during a police interview. For the reasons
explained below, we affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
1. Testimony regarding the taking of the bank bag
At trial in December 2013, the parties presented the following evidence to the
jury. On February 16, 2013, defendant and his friend were at a truck stop in Hesperia
looking for money to buy heroin. The victim, a 12-year-old Girl Scout, was also at the
truck stop that day, selling cookies at a table with her mother, three other scouts, and
another adult. Under Girl Scouts’ procedure, when a cookie sale occurs the money is to
be placed into a zippered bank bag. The scout who is responsible for collecting money is
instructed to keep the bag close to her at all times.
1 Unless stated otherwise, all further statutory references are to the Penal Code.
2 Miranda v. Arizona (1966) 384 U.S. 436.
2
Defendant walked up to the victim’s table three separate times that afternoon and
looked at or inquired about the cookies. The fourth time defendant returned to the table,
the victim and her mother were there alone because the others had gone to use the
restroom.
The victim testified that defendant approached the table from her left side and that
she was holding the bank bag and “grabbing it kind of tight.” As she was looking at
other customers, she “noticed there was a tug” on the bag and, because she thought it was
her friend pulling on the bag, she “pulled back lightly.” After she pulled back on the bag,
defendant “grabbed the money [bag]” and, with his other hand, took a donations
container and a box of cookies from the table. The victim recalled a total of three tugs on
the bag—defendant’s first tug, her tug back, and his final tug.
The victim’s mother testified that she was sitting close to her daughter, a “few feet
away,” when the defendant took the bank bag. She testified that she saw a “little
struggle” between her daughter and defendant and that “[w]ith one hand he grabbed the
money bag from [the victim].” When asked about the struggle on cross examination, she
said she saw “[t]he bag pulled back and forth really quick [¶] . . . [¶] left and right.”
After taking the items, the defendant ran to his friend’s car, which was parked in
the truck stop parking lot. They drove to another friend’s house to buy heroin with the
Girl Scouts’ money.
Defendant testified that he agreed with every aspect of the victim and her mother’s
testimony about the incident except for their description of how he took the bank bag.
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Defendant denied taking the bag from the victim’s hands and testified that he had taken it
from the table. Defendant’s friend who was driving the car that day (and who was in
custody at the time of trial) testified that after defendant got into the car he told him that
he “just ran up and grabbed [the bank bag] off the table.” When asked on cross-
examination why he had not mentioned that defendant had told him he had taken the bag
from the table during previous police interviews, he replied that the police had “never
asked” that specific question.
2. The invocation testimony
A few weeks after the incident, an officer questioned defendant about the incident
after having read defendant his Miranda rights. During the interview, defendant lied
about having been to the truck stop in Hesperia during the time of the incident. Before
trial, the prosecution moved to introduce defendant’s dishonest statement to the police for
purposes of impeachment if defendant testified.
At the close of the People’s case, the officer testified that during the interview
defendant denied he had been at the truck stop in Hesperia in the past few months. He
further testified that when he told defendant he had an incriminating video of him and his
friend at the truck stop on the date of the incident, defendant indicated that he no longer
wanted to talk to the officer. Defense counsel did not object during the officer’s
testimony.
After the parties rested, the court asked the prosecutor why he had called the
officer as a witness. The prosecutor explained that his purpose in calling the officer as a
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witness was to attack defendant’s credibility by demonstrating that he had lied about
being at the truck stop. The prosecutor explained that he stopped questioning the officer
when he elicited the testimony regarding defendant’s invocation of his Miranda rights
because he “was not trying to go there.” The court described the prosecutor’s elicitation
of the invocation testimony as a “tactical mistake,” but concluded that it was “okay with
it.” Defense counsel then indicated that he had no objection to the testimony.
3. The conviction
At the close of the prosecution’s case, defendant made a section 1118.1 motion to
acquit on the charge of robbery, arguing insufficient evidence to support a finding that
defendant used force to take the bank bag. The People opposed the motion, arguing that
there was a struggle between defendant and the victim for the bag and that defendant
used force to overcome her resistance and take the bag from her. The trial court denied
the motion on the ground that “a reasonable jury could find the defendant guilty as
charged.” On December 11, 2013, the jury convicted defendant of robbery. On April 4,
2014, defendant was sentenced to three years in state prison.
II
ANALYSIS
1. Sufficiency of the evidence
Defendant argues that his robbery conviction should be reversed because there
was insufficient evidence to support a finding that he used “force or fear”—a necessary
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element of robbery—to take the bank bag. Because we hold that there is substantial
evidence to support a finding of actual force, we disagree.
When considering a challenge to the sufficiency of evidence supporting a
conviction, we must “ ‘review the whole record in the light most favorable to the
judgment to determine whether it contains substantial evidence—i.e., evidence that is
credible and of solid value—from which a rational trier of fact could have found the
defendant guilty beyond a reasonable doubt.’ ” (People v. Jennings (1991) 53 Cal.3d
334, 364.) To succeed under a substantial evidence review, defendant must establish that
no rational jury could have concluded as it did—it does not matter that “the evidence
could reasonably be reconciled with a finding of innocence or a lesser degree of crime.”
(People v. Hill (1998) 17 Cal.4th 800, 849.) Indeed, under a substantial evidence review,
“the testimony of a single witness is sufficient to support a conviction,” so long as that
testimony is not inherently improbable or physically impossible. (People v. Elliott (2012)
53 Cal.4th 535, 585.)
The Penal Code defines the crime of robbery as the taking of personal property
from another’s possession “by means of force or fear.” (§ 211; see People v. Gomez
(2008) 43 Cal.4th 249, 254.) Absent force or fear, the crime committed is grand theft
from the person, not robbery. (People v. Mungia (1991) 234 Cal.App.3d 1703, 1707
(Mungia).)
The amount of force required to constitute a robbery “ ‘ “is such force as is
actually sufficient to overcome the victim’s resistance.” ’ ” (People v. Burns (2009) 172
6
Cal.App.4th 1251, 1259 (Burns).) “[T]he force need not be of an extreme character.
Thus, even a snatching may be robbery if it is forcible, as by . . . knocking an object out
of a person’s hands.” (2 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Crimes
Against Property, § 99, p. 137; see Burns, at pp. 1255, 1259 [grabbing purse from the
elbow of the victim who tried to clutch the purse constituted sufficient force]; People v.
Clayton (1928) 89 Cal.App. 405, 411 [knocking property out of the victim’s hands in two
attempts constituted sufficient force].) Thus, if there is substantial evidence to support a
finding that defendant took the bank bag by overcoming the victim’s resistance, we will
affirm a robbery conviction.
Here, the jury heard testimony from both the victim and her mother that there was
a brief struggle between the defendant and the victim for the bank bag. The victim
testified that, as she was holding the bag in her hands, she felt a tug to the left, she tugged
back to the right, and then defendant pulled the bag one more time to the left, removing it
from her grip. The victim’s mother testified that she saw a “struggle” between defendant
and her daughter that consisted of the bag being “pulled back and forth.” Her description
of the events corroborates the victim’s testimony, which testimony alone is substantial
evidence from which the jury could reasonably infer that defendant used force to take the
bag.
Defendant argues that the evidence does not demonstrate that the degree of force
he used to take the bank bag from the victim was sufficient to satisfy the force element.
Defendant points to differing testimony on the taking of the bank bag and asserts that
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“the facts were contradictory as to whether sufficient force was used to overcome [the
victim’s] resistance.”
As stated, sufficient force for a robbery is simply force that is “ ‘ “actually
sufficient’ ’ ” to overcome the victim’s resistance. (Burns, supra, 172 Cal.App.4th at
p. 1259.) In other words, the degree of force is immaterial so long as the victim resisted
the taking. (See Mungia, supra, 234 Cal.App.3d at p. 1709 [force is a “relative concept”
because some people are more vulnerable than others, and the determination of whether
the physical act applied to the victim constitutes force is a factual question the jury must
determine “using its own common sense”].) Here, the jury could reasonably infer based
on the victim’s and her mother’s testimony that when taking the bag defendant used force
sufficient to overcome the resistance of a 12-year-old girl.
Finally, defendant’s contention that “[t]he testimony of various witnesses was all
over the map” is unpersuasive in a substantial evidence analysis. Neither the fact that the
jury heard a conflicting description of the taking from both defendant and his friend nor
any of the alleged weaknesses in the victim’s or her mother’s testimony render the
evidence supporting the conviction insufficient. The substantial evidence standard
requires more than a showing that the jury heard conflicting or unconvincing evidence.
“In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility
issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in
the testimony is the exclusive province of the trier of fact.” (People v. Young (2005) 34
Cal.4th 1149, 1181.) As we determined ante, the victim’s and her mother’s testimony
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regarding the manner in which defendant took the bank bag from the victim constitutes
substantial evidence.
2. The invocation testimony
Defendant contends that the trial court erred when it admitted the officer’s
testimony that he invoked his right against self-incrimination during his police interview.
In the alternative, he argues that trial counsel rendered ineffective assistance of counsel
by failing to object to the invocation testimony. He asserts that the invocation testimony
prejudiced him by tainting his credibility before he testified and “might well have tipped
the scales of credibility in favor of a verdict of robbery versus grand theft person.” In
effect, defendant argues that a Doyle3 error occurred at his trial. Because no such error
occurred, we reject both of defendant’s claims.
Under Doyle, “the use against defendant of a postarrest invocation of rights
following a Miranda admonition violates due process.” (People v. Thomas (2012) 54
Cal.4th 908, 936 (Thomas), citing Doyle, supra, 426 U.S. at p. 619.) However, the Doyle
rule is not violated where “ ‘ “the evidence of defendant’s invocation . . . was received
without objection and the remarks of the prosecutor did not invite the jury to draw any
adverse inference from either the fact or the timing of defendant’s exercise of his
constitutional right.” ’ ” (Thomas, at p. 936, italics added, original italics omitted, citing
People v. Huggins (2006) 38 Cal.4th 175, 199.) In other words, a “ ‘Doyle violation does
not occur unless the prosecutor is permitted to use a defendant’s postarrest silence against
3 Doyle v. Ohio (1976) 426 U.S. 610.
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him at trial.’” (Thomas, at p. 936, citing People v. Clark (2011) 52 Cal.4th 856, 959,
original italics.) Finally, the failure to object to the testimony at trial waives a claim of
Doyle error. (People v. Hughes (2002) 27 Cal.4th 287, 332 (Hughes).)
Here, the prosecutor ceased questioning the officer as soon as he elicited the
invocation testimony. Defense counsel did not object to the testimony, and the
prosecutor did not attempt to use the testimony against defendant (e.g., by inviting the
jury to draw an adverse inference from his invocation). Therefore, not only was there no
violation of defendant’s constitutional rights, but also defendant waived any Doyle error
argument by failing to object during trial.
Putting aside the issue of waiver and assuming the invocation testimony violates
Doyle, any error in permitting the violation is not reversible if it is harmless beyond a
reasonable doubt. (Thomas, supra, 54 Cal.4th at pp. 936-937.) In People v. Hinton
(2006) 37 Cal.4th 839 (Hinton), the prosecutor elicited testimony that the defendant had
invoked his Miranda rights during an interview, as well as testimony that the defendant
had admitted to giving police false statements both before and after his invocation. (Id. at
p. 867.) The trial court denied the defendant’s motion for a mistrial on the basis of Doyle
error, expressing doubt that the jurors were “ ‘going to do much with [the invocation
testimony]’ ” and directing the prosecutor not to mention or refer to the testimony.
(Ibid.)
On appeal, the court upheld the trial court’s ruling, concluding that the Doyle error
was harmless beyond a reasonable doubt. (Hinton, supra, 37 Cal.4th at pp. 867-868.)
10
The court based its conclusion on the dual grounds that “the prosecutor never again
mentioned the invocation during trial or closing argument” and that the invocation
testimony was “both cumulative of—and inferior to—the other evidence indicating that
he had fabricated the account he . . . provided . . . at trial.” (Ibid.) The court reasoned
that while “the jury could in theory have relied on defendant’s unwillingness to speak to
the police . . . to infer that he was fabricating a defense . . . . The problem with
defendant’s trial testimony was not that the jury heard that he once invoked his Miranda
rights, but that he repeatedly provided in the other interviews untrue accounts of his
involvement . . . .” (Id. at pp. 867-868, italics added.)
Similarly here, the prosecutor did not mention the invocation testimony after
having elicited it, and defendant admitted to having given the officer untrue accounts of
his involvement in the incident. As in Hinton, the problem with defendant’s trial
testimony was not that the jury heard that he once invoked his Miranda rights, but that he
testified he lied to the officer about being at the truck stop because he “was scared to get
into any trouble.” While it is conceivable that the invocation testimony could allow a
jury to conclude that defendant’s credibility is poor and, thus, that he could be lying
about the central issue in the case—whether he used force to take the bank bag from the
victim—that testimony was cumulative of, and inferior to, the direct evidence that
defendant affirmatively lied to the officer during the interview before invoking his
Miranda rights. Because the prosecutor did nothing with the testimony and because the
testimony was cumulative of, and less harmful than, other testimony the jury heard
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during trial,4 we conclude that the invocation testimony could not have affected the jury’s
finding on the force element. We therefore hold that any Doyle error here was harmless
beyond a reasonable doubt.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
HOLLENHORST
J.
McKINSTER
J.
4 This testimony includes defendant’s admission that he lied to the police about
his presence at the truck stop as well as the testimony given by the victim and her mother
describing the taking as a struggle. (See Hughes, supra, 27 Cal.4th at p. 332 [any Doyle
error was harmless beyond a reasonable doubt “in light of the overwhelming evidence of
defendant’s guilt”].)
12