People v. Garcia CA1/4

Filed 10/26/23 P. v. Garcia CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,
Plaintiff and Respondent, A166511
v. (Sonoma County Super. Ct.
DAVID GARCIA, No. SCR7537581)
Defendant and Appellant.

Defendant David Garcia appeals from his judgment of conviction for
attempted robbery with a deadly and dangerous weapon stemming from his
efforts to escape from a department store’s loss prevention officer after Garcia
took various items of merchandise from the store without paying for them.
Garcia claims there was insufficient evidence to convict him of attempted
robbery in the absence of evidence that the officer was frightened by Garcia’s
efforts; the trial court wrongly instructed the jury on attempted robbery in
the absence of that evidence and thereby permitted the jury to convict him
based on an improper legal theory; and there was insufficient evidence that
he used a dangerous or deadly weapon in any attempted robbery. We
disagree with each claim and affirm.

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 I. BACKGROUND
In July 2022, the Sonoma County District Attorney filed an information
charging Garcia with one count of robbery of Steven Andrew Velasquez (Pen.
Code, § 2111), a violent felony within the meaning of section 667.5,
subdivision (c). The information alleged that Garcia personally used a deadly
and dangerous weapon, a knife, during his attempted commission of the
robbery (§ 12022, subd. (b)(1)), causing the crime to be a serious felony within
the meaning of section 1192.7, subdivision (c).
At trial, Velasquez testified that on April 27, 2022, he was employed as
a loss prevention officer (LPO) at Kohl’s department store in Santa Rosa,
California, charged with observing any potential theft and providing
customer service. His responsibilities included operating a surveillance
camera system from his office to observe customers in the store. On April 27,
he saw via the camera system a man (who he later identified as Garcia) in
the store wearing sunglasses and carrying a very large backpack. Velasquez,
dressed in black clothes pursuant to the store’s dress code and wearing a
Kohl’s lanyard visible around his neck, went to the man and “customer
serviced” him, interacting with him for a minute or two. He then returned to
his office and continued to watch the man, who took various items of
merchandise and ran out of the store and into the parking lot without making
any attempt to pay for them.
Velasquez chased after the man. He was within 10 to 12 feet of him
when the man dropped a couple of items and Velasquez “yelled . . . something
like . . . you know, you can’t get away.” The man “stopped . . . , turned
around, and . . . pulled out a knife, and that’s when I stopped pursuing.”
Specifically, as he turned around to face Velasquez, the man pulled a red

1 Undesignated statutory references are to the Penal Code.

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pocket knife out of his pocket with his right hand and whipped open its black
blade while holding the merchandise in his left hand, and said something
like, “[Y]ou can’t outrun this.” Velasquez immediately stopped, took a couple
of steps back, and called the police. He continued to observe the man,
keeping a distance away for his own safety, as the man, still holding the
merchandise, was picked up by a driver of a car that then drove away.
Police came to the scene “a little bit later” that same day and
interviewed Velasquez. The interview was recorded and played at trial.
During it, Velasquez was asked if he had been scared during the incident and
he said he had not been scared. He also testified that if the man had taken a
couple of steps towards him with the knife, he “would have had some fear in
me.” He further testified that, having had some time to think about and
process the incident, he thought he felt some fear when the man pulled out
his knife. He also acknowledged that his memory of the incident was fresher
at the time of the police interview.
Velasquez further testified that Kohl’s was “a hands[-]off company;”
that is, he was trained not to have any physical contact with suspected
shoplifters. Further, he was trained to “[d]isengage immediately” if a
suspected shoplifter displayed a weapon, which is what he did in this case.
California law provides that a shoplifter who uses force or fear against
an LPO in the course of escaping capture may be convicted of robbery or
attempted robbery of the LPO. (People v. Estes (1983) 147 Cal.App.3d 23, 25–
29 [robbery] (Estes); People v. Robins (2020) 44 Cal.App.5th 413, 421
[attempted Estes robbery] (Robins).) Accordingly, the trial court instructed
the jury on both second degree robbery and attempted second degree robbery.
It instructed that second degree robbery included as an element that a
defendant “used force or fear to take the property or to prevent the person

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from resisting.” It further instructed, “Fear . . . means fear of injury to the
person himself or herself,” requires that the person be “actually afraid,”
which “may be inferred from the circumstances,” and which is “subjective in
nature, requiring proof that the victim was in fact afraid, and that such fear
allowed the crime to be accomplished.”
The court also instructed that attempted second degree robbery was a
lesser crime of second degree robbery. It further instructed, “To prove that
the defendant is guilty of this crime, the People must prove that: One, the
defendant took a direct [but] ineffective step towards committing second
degree robbery; and two, the defendant intend[ed] to commit second degree
robbery.”
In closing argument, the parties debated whether the evidence showed
that Garcia’s display of his pocket knife to Velasquez caused Velasquez to
experience genuine fear, with each side citing parts of Velasquez’s testimony
or police interview that supported its position.
The jury acquitted Garcia of second degree robbery, but found him
guilty of attempted second degree robbery. It found the allegation that
Garcia used a deadly and dangerous weapon in committing this offense to be
true.
The trial court sentenced Garcia to 24 months of formal probation. It
ordered him to complete a residential drug treatment program and imposed
various conditions, fines, fees, and assessments.
Garcia filed a timely notice of appeal.
II. DISCUSSION
A. Law and Sufficient Evidence Support Garcia’s Attempted
Robbery Conviction and the Court’s Related Jury Instructions
Garcia first argues that we must reverse his attempted robbery
conviction for lack of evidence that, in the course of his escaping with the

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Kohl’s merchandise, he used force or fear against LPO Velasquez. According
to him, use of force or fear is an element of the offense of attempted Estes
robbery. We disagree. The law governing attempted Estes robbery does not
require proof that Garcia used force or fear against Velasquez as long as he
took a direct, if ineffectual, step beyond preparation to commit robbery, and
there is substantial evidence that he took such a step. Garcia also argues the
trial court should not have instructed the jury on attempted robbery in light
of the evidence that he did not frighten Velasquez, contending the court
thereby permitted the jury to convict him based on an improper legal theory.
This argument is incorrect for the same reasons.
1. Legal Standards
“ ‘Robbery is the felonious taking of personal property in the possession
of another, from his person or immediate presence, and against his will,
accomplished by means of force or fear.’ (§ 211.) It includes two phases:
acquiring the property, and carrying it away . . . . [Citations.] What sets
robbery apart from simple theft is the use of force or fear and taking from the
victim’s immediate presence. ‘Theft by larceny may be committed without
force or the threat of violence and may be completed without the victim ever
being present.’ [Citation.] In the prototypical case, a person commits robbery
by assaulting a person and then stealing the person’s property. The force or
fear is used to acquire the property.” (Robins, supra, 44 Cal.App.5th at
pp. 418–419.)
“ ‘ “The element of fear for purposes of robbery is satisfied when there is
sufficient fear to cause the victim to comply with the unlawful demand for
[her] property.” ’ [Citation.] ‘The extent of the victim’s fear “do[es] not need
to be extreme . . . .” ’ ‘[T]he fear necessary for robbery is subjective in nature,
requiring proof “that the victim was in fact afraid, and that such fear allowed
the crime to be accomplished.” ’ [Citation.] ‘Actual fear may be inferred from

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the circumstances, and need not be testified to explicitly by the victim.’ ”
(People v. Bordelon (2008) 162 Cal.App.4th 1311, 1319.) “[T]he crime of
robbery occurs when property is forcefully retained in the victim’s presence,
even when the victim was not present in its initial caption . . . .” (People v.
Gomez (2008) 43 Cal.4th 249, 264.)
Garcia was convicted of attempted second degree robbery only. “An
attempt to commit a crime is comprised of ‘two elements: a specific intent to
commit the crime, and a direct but ineffectual act done toward its
commission.’ (§ 21a; see § 664 [prescribing punishment].) Other than
forming the requisite criminal intent, a defendant need not commit an
element of the underlying offense.” (People v. Medina (2007) 41 Cal.4th 685,
694.) Rather, “[a]n attempted robbery requires a specific intent to commit
robbery and a direct, ineffectual act (beyond mere preparation) toward its
commission. [Citations.] Under general attempt principles, commission of an
element of the crime is not necessary.” (Ibid.)
Further, Garcia was convicted of the attempted robbery of LPO
Velasquez, even though Velasquez did not own, control, or possess the
merchandise Garcia stole. That a shoplifter may commit a robbery of a
store’s LPO in the course of escaping capture was established in Estes, supra,
147 Cal.App.3d 23. There, the defendant, Estes, took various items of
merchandise in a Sears store and left the store without paying for them. (Id.
at p. 26.) A Sears security guard followed Estes into the parking lot and
attempted to detain him. (Ibid.) Estes pulled out a knife, swung it at the
guard, and threatened to kill him. (Ibid.) Eventually, defendant returned to
the store with the guard and his manager; at trial he admitted to stealing the
merchandise but denied using force of fear against anyone. (Ibid.) Convicted

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of robbing the guard, he argued on appeal that this conviction was legally
improper for multiple reasons. (Id. at pp. 26–28.)
The appellate court affirmed Estes’s conviction. (Estes, supra,
147 Cal.App.3d at pp. 26–29.) It held that robbery, as an offense against a
person in actual or constructive possession of the merchandise taken, may be
committed against a store employee, including one charged with preventing
thefts of merchandise, even if the employee does not own, is not in charge,
and is not in immediate control of the merchandise at the time of the robbery.
(Id. at p. 27.) Further, because robbery “is a continuing offense that begins
from the time of the original taking until the robber reaches a place of
relative safety,” “[i]t is sufficient . . . that [Estes] used force to prevent the
guard from retaking the property and to facilitate his escape.” (Id. at p. 28.)
A person who uses force or fear to enable a shoplifter to escape also
may be convicted of the attempted robbery of an LPO. In Robins, supra,
44 Cal.App.5th 413, a department store LPO saw a woman accumulate a
large quantity of clothing, leave the store without paying for it, and head
towards a van parked near the store’s entrance. (Id. at p. 417.) The LPO
confronted the woman, forced the clothing out of her hands, and managed to
detain her on the ground. (Ibid.) About that time, the defendant, Robins,
and another man emerged from the van and assumed a fighting stance.
(Ibid.) Upon the demand of one of the men, the LPO let the woman go.
(Ibid.) The three got into the van and drove away without the merchandise,
were later arrested, and Robins was tried and convicted for attempted
robbery. (Ibid.) On appeal, he argued “that the concept of an attempted
Estes robbery is incoherent and cannot logically exist” and, therefore, he
should not have been convicted of it. (Id. at pp. 418–419.) He reasoned,
apparently relying on People v. Pham (1993) 15 Cal.App.4th 61 (Pham), that

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a thief in possession of stolen property completes an Estes robbery the
moment he or she uses force of fear in an escape, while a thief who abandons
the property or has the property confiscated before using force has merely
committed a theft plus an assault. (Robins, at p. 419.)
The appellate court affirmed Robins’s conviction. It rejected his
argument that the concept of completed robbery excluded the possibility of
attempted robbery because “[t]here is nothing logically incoherent about the
idea of a successful attempt.” (Robins, supra, 44 Cal.App.5th at p. 420.) It
added, “in California this concept is established by statute. Section 663
provides, ‘Any person may be convicted of an attempt to commit a crime,
although it appears on the trial that the crime intended or attempted was
perpetrated by such person in pursuance of such attempt . . . .’ (Italics
added.) As our high court explained, ‘Under section 663, a defendant can be
convicted of an attempt to commit a crime even though the crime, in fact, was
completed.’ (People v. Rundle (2008) 43 Cal.4th 76, 138, fn. 28, disapproved
on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)”
(Robins, supra, 44 Cal.App.5th at p. 420.) “Thus, even if every attempted
Estes robbery is necessarily a completed crime, the crime of attempt still
exists and may be punished under section 663. Generally, attempted robbery
is a lesser included offense of robbery. [Citation.] [Robins’s] argument seeks
to parse the crime of robbery in such a way as to eliminate the lesser included
offense in the Estes situation. We are not aware of any authority that would
allow such a result . . . .” (Id. at p. 421.)
We review Garcia’s insufficient evidence claim for substantial evidence.
(People v. Maciel (2013) 57 Cal.4th 482, 514–515.) That is, we review for
“ ‘evidence that is reasonable, credible, and of solid value’ ” and “determine
‘whether, after viewing the evidence in the light most favorable to the

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prosecution, any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.’ [Citation.] In so doing, [we]
‘presume[] in support of the judgment the existence of every fact the trier
could reasonably deduce from the evidence.’ ” (Id. at p. 515.) “Whether or not
to give any particular instruction in any particular case entails the resolution
of a mixed question of law and fact that . . . is . . . predominantly legal. As
such, it should be examined without deference.” (People v. Waidla (2000)
22 Cal.4th 690, 733.)
2. Analysis
There is substantial evidence to support Garcia’s attempted robbery
conviction. The jury could have reasonably concluded from the evidence that
Garcia, after he stole merchandise from the Kohl’s store, intended in the
course of his escape to frighten LPO Velasquez away by displaying his pocket
knife and telling Velasquez he could not outrun it. There is also substantial
evidence that Velasquez’s attempt was ineffectual because Velasquez stopped
at the sight of Garcia’s knife not because he was actually frightened, but
because he was trained to disengage with a shoplifter who displayed a
weapon. This evidence includes Velasquez’s statement to police on the day of
the incident that he was not scared during the incident and his trial
testimony that he was trained to immediately disengage when a suspected
shoplifter displayed a weapon. That Velasquez also testified that, upon
reflection, he thought he felt some fear during the incident is of no matter
under our substantial evidence standard of review. (In re Caden C. (2021)
11 Cal.5th 614, 640 [a reviewing court looking for substantial evidence does
not “reweigh the evidence” and should uphold the fact finder’s determinations
“ ‘if . . . supported by substantial evidence, even though substantial evidence
to the contrary also exists . . . .’ ”]; In re James R. (2009) 176 Cal.App.4th 129,
134–135 [“In reviewing the sufficiency of the evidence on appeal . . . [w]e do

9
not pass on the credibility of witnesses, attempt to resolve conflicts in the
evidence or weigh the evidence.”].)
Garcia argues he cannot be convicted of attempted Estes robbery
because of the absence of evidence that he employed either force of fear,
based largely on Pham, supra, 15 Cal.App.4th 61. As the Robins court
explained, in Pham, “the victims caught the defendant in the act of taking
items from their car; the defendant fled, and the victims gave chase. About
the time the victims caught up, the defendant threw the stolen goods on the
ground and attempted to fight off the victims. The victims ultimately
subdued the thief. [Citation.] On appeal, the defendant argued the court
erred in failing to instruct the jury on the lesser included offense of attempted
robbery. [Citation.] The Court of Appeal disagreed, reasoning that if the
defendant abandoned the property, there would be no robbery at all
(attempted or otherwise), but that if he did not abandon the property then it
could only be a completed robbery, not an attempt . . . .” (Robins, supra,
44 Cal.App.5th at pp. 419–420.) Therefore, the defendant was not entitled to
the lesser included attempted robbery instruction “since such a theory was
contrary to the evidence.” (Pham, at p. 68.)
Besides the fact that Pham involved a different issue than what Garcia
raises here—whether Pham, along with a robbery jury instruction, was
entitled to a lesser included attempted robbery jury instruction—the case is
easily distinguishable from the circumstances before us for a simple reason:
unlike the case before us, it did not involve any substantial evidence that the
defendant attempted to cause, but did not succeed in causing, the victims to
actually become afraid. Rather, Pham argued he was entitled to the
attempted robbery instruction because the evidence indicated that he did not
accomplish a “ ‘taking’ ” of the stolen property. (Pham, supra, 15 Cal.App.4th

10
at p. 67.) The appellate court rejected his interpretation of the evidence and,
therefore, his argument that he was entitled to the lesser included
instruction. (Id. at pp. 67–68.)
Here, on the other hand, as we have discussed, there is substantial
evidence that in the course of his escape Garcia attempted to frighten
Velasquez away by displaying his pocket knife to Velasquez and telling him
he could not outrun it, but that he failed to actually frighten Velasquez.
Thus, we have substantial evidence that Garcia attempted but did not
complete a required element of the Estes robbery of Garcia. (See People v.
Bordelon, supra, 162 Cal.App.4th at p. 1319 [the element of “ ‘fear necessary
for robbery is subjective in nature, requiring proof “that the victim was in fact
afraid, and that such fear allowed the crime to be accomplished” ’ ”].) In his
briefs, Garcia offers a simple and straightforward version of this line of
argument, contending that he should not have been convicted of attempted
robbery in the absence of proof that Velasquez was actually afraid, since
proof of actual fear is required for attempted robbery. And in a related vein,
he argues that the trial court’s jury instructions incorrectly permitted the
jurors “to conclude that proof of Velasquez’s subjective fear was unnecessary
to convict Garcia of attempted robbery.”
Both arguments are incorrect because, as we have already discussed, in
proving the crime of attempt, “[o]ther than forming the requisite criminal
intent, a defendant need not commit an element of the underlying offense.”
(People v. Medina, supra, 41 Cal.4th at p. 694.) Rather, “[a]n attempted
robbery requires a specific intent to commit robbery and a direct, ineffectual
act (beyond mere preparation) toward its commission.” (Ibid.) We disagree
with the contention that proof of actual fear is an element of attempted
robbery as a matter of law. There is substantial evidence on this record that,

11
during his escape, Garcia, in an attempt to scare Velasquez away, brandished
his knife and said something to Velasquez that could reasonably be seen as
an implied threat of physical harm—and a threat serious enough to instill
fear in Velasquez, even though in the end Garcia failed to actually frighten
him. That, in our view, is enough to constitute a direct, ineffectual act
beyond mere preparation to commit an Estes robbery.
The court’s jury instructions were consistent with our reading of the
law. The court instructed that second degree robbery includes as an element
that a defendant “used force or fear to take the property or prevent the
person from resisting”, that fear requires that the person be “actually afraid,”
which is “subjective in nature”, and that to prove Garcia was guilty of
attempted second degree robbery, the People were required to prove that he
“took a direct [but] ineffective step towards committing second degree
robbery” with the intent to commit that crime. Garcia fails to provide any
legal authority showing that these instructions were improper or deficient in
light of the record evidence. (See People v. Simon (2016) 1 Cal.5th 98, 132 [“A
trial court has a sua sponte duty to instruct the jury on a lesser included
uncharged offense if there is substantial evidence that would absolve the
defendant from guilt of the greater, but not the lesser, offense.”].)
At oral argument, Garcia’s counsel attempted to deal with the fact
there is undeniably substantial evidence of conduct designed to scare
Velasquez by arguing that the fecklessness of that conduct means he cannot
be guilty of an attempted Estes robbery. This argument, as we understand it,
is that (1) the defendant’s intent to instill fear is not an element of robbery,
(2) on this record, the jury’s decision not to return a robbery verdict must
mean that it found the victim (i.e. Velasquez) was not subjectively in fear, so
(3) the only thing we have is Garcia’s intent to deprive Velasquez of property,

12
which he successfully accomplished without the use of force or fear. Counsel
emphasized that, with this argument, he does not go so far here as to contend
there is no such thing as an attempted Estes robbery or that such an offense
is “incoherent and cannot logically exist,” which is the argument the Robins
court rejected (Robins, supra, 44 Cal.App.5th at p. 418), but only that, on a
record where a defendant charged with an Estes robbery succeeds in taking
property, and does so without using force, while engaging in a failed effort to
instill fear, then, on those facts, the evidence supports no more than a
completed larceny. “While this is a clever argument, we ultimately reject it
. . . .” (Id. at p. 416.)
To be sure, we accept Garcia’s premise that the defendant’s intent to
instill fear is not an element of robbery. (People v. Anderson (2011)
51 Cal.4th 989, 995.) As enunciated in the instructions on robbery that were
given in this case, the only place intent is referenced is where the jury is told,
“When the defendant used force or fear,” you must find that he “intended to
deprive the owner of the property permanently . . . ,” and, further, that his
intent was “formed before or during the time [he] used force or fear.”
(CALCRIM No. 1600.) Other than this mandatory finding on intent, the
remaining elements of the offense are that “1) The defendant took property
that was not [his] own; [¶] 2) The property was in the possession of another
person; [¶] 3) The property was taken from the other person or [his]
immediate presence, and [¶] 4) The property was taken against that person’s
will.” (Ibid.) All of the above elements, including the requisite finding on the
defendant’s intent while using force or fear, relate to the taking of property.
To that extent, Garcia is correct.
But while Garcia’s premise is correct, his conclusion—that it is
irrelevant whether his attempt to deprive Velasquez of property included the

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ineffectual use of fear—does not follow. The substantive offense of robbery
does not require proof of a specific intent to cause fear, but it does require the
use of force or fear. Here, by displaying and threatening Velasquez with a
knife, Garcia undertook a “direct but ineffectual act” to use fear to deprive
Velasquez of property. Had Garcia not undertaken such an act, then we
agree he would be guilty only of larceny. But his ineffectual act to use fear
makes him guilty of attempted robbery and not simply larceny. Focusing on
the language of section 664 that punishment for attempt applies where a
person “attempts to commit any crime, but fails, or is prevented or intercepted
in its perpetration” (italics added), Garcia argues that the attempt statute
does not apply here because Garcia did not fail, and was not prevented or
intercepted, in perpetrating the crime, as shown by the fact that he
successfully made off with the property (including by dissuading Velasquez
from further efforts to stop him, even though Velasquez abandoned those
efforts for reasons other than fear).
This argument is flawed. As the instructions given in this case state,
the offense of attempted second degree robbery simply requires, that “1. The
defendant took a direct but ineffective step toward committing Second Degree
Robbery; [¶] AND [¶] 2. The defendant intended to commit Second Degree
Robbery.” (CALCRIM No. 460; see § 21a [“An attempt to commit a crime
consists of two elements: a specific intent to commit the crime, and a direct
but ineffectual act done toward its commission.”].) Attempt under section 664
is a specific intent crime. (People v. Houston (2012) 54 Cal.4th 1186, 1217.)
Garcia was validly convicted of attempted second degree robbery because the
evidence supports the jury’s finding that he took a direct but ineffective step
toward committing second degree robbery and he specifically intended to
accomplish it. Whether he succeeded or not in committing second degree

14
robbery, or whether he also succeeded in committing some lesser included
offense (i.e., larceny), is irrelevant. (See People v. Chandler (2014) 60 Cal.4th
508, 517 [“a person may be convicted of an attempt to commit a crime he
never could have completed under the circumstances”]; ibid. [“the commission
of an attempt does not require proof of any particular element of the
completed crime”].)
What Garcia appears to assume, incorrectly, is that the only way to
prove use of “fear”—or in an attempt case, an attempt to instill “fear”—is
subjectively, though evidence of the victim’s state of mind. It is true that the
test for fear turns on the victim’s subjective sense of actual fear, and one
source of proof of this, obviously, is what the victim says about his own state
of mind. But actual fear may be proved by circumstances. As the jury was
instructed, the other person’s “[a]ctual fear may be inferred from the
circumstances and need not be testified to explicitly by the victim.” Applying
this instruction on circumstantial proof of actual fear, a reasonable jury could
have believed that Velasquez was not put in fear (thus explaining why no
robbery verdict was returned), but at the same time, based on circumstances
other than what Velasquez said—in particular, the brandishing of a knife
and the threatening words—could also have reasonably found that the threat
from Garcia was serious enough to instill fear in Velasquez, even if the
attempt at a threat was ultimately ineffective because Garcia happened to
encounter a well-trained or especially brave loss prevention officer.
At oral argument, Garcia’s counsel repeated several times that,
technical though his argument may sound, there is simply not enough
evidence here to show that Garcia was “scary enough” to have committed an
attempted Estes robbery. Factually, we have explained why we disagree;
legally, we cannot improve on what the Robins court said. “The key to

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unraveling th[e] apparent riddle” of how a defendant may be guilty of an
attempted Estes robbery when he successfully completed all elements of the
target offense “is a simple concept: that of a successful attempt.” (Robins,
supra, 44 Cal.App.5th at p. 420, italics in original.) In Robins, the evidence
showed that the defendant committed every element of the offense of second
degree robbery, but he was only charged with attempting that target offense.
(Id. at p. 418.) This case goes a step beyond Robins because Garca was
charged with second degree robbery and the jury declined to convict on that
offense, presumably because of Velasquez’s testimony that he was not in fear.
But under the law of attempt as articulated in Chandler, the reasoning of
Robins still applies. Although the jury concluded the evidence was
insufficient to return a verdict finding Garcia guilty of the completed offense
of an Estes robbery, it did find him guilty of—and there is substantial record
evidence to support—the completed offense of an attempted Estes robbery.
Accordingly, we conclude Garcia’s insufficient evidence claim lacks
merit, as does his jury instruction claim, assuming for the sake of argument
that he did not forfeit this instructional claim as the People contend by failing
to object to the attempted robbery instruction below.
B. Sufficient Evidence Supports the Jury’s Finding That Garcia
Used a Deadly and Dangerous Weapon in Attempting To Rob
Velasquez
Garcia also argues the jury’s finding that he used a deadly and
dangerous weapon, his pocket knife, to rob Velasquez within the meaning of
section 12022, subdivision (b)(1) must be reversed because there is no
evidence he did so “ ‘in a manner not only capable of producing but also likely
to produce death or great bodily injury,’ ” quoting In re B.M. (2018) 6 Cal.5th
528, 530. He is incorrect.

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 Section 12022, subdivision (b)(1) provides that, subject to exceptions
that do not apply here, “a person who personally uses a deadly or dangerous
weapon in the commission of a[n] . . . attempted felony” shall be sentenced to
an additional and consecutive term of imprisonment. “In order to find ‘true’ a
section 12022(b) allegation, a fact finder must conclude that, during the crime
or attempted crime, the defendant himself or herself intentionally displayed
in a menacing manner or struck someone with an instrument capable of
inflicting great bodily injury or death.” (People v. Wims (1995) 10 Cal.4th
293, 302, quoted in People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1197,
disapproved on another ground in People v. Rangel (2016) 62 Cal.4th 1192,
1216.) Knives are not considered inherently dangerous or deadly weapons,
but may be found to have been used as such on a particular occasion. (In re
Bartholomew D. (2005) 131 Cal.App.4th 317, 323, citing People v. Graham
(1969) 71 Cal.2d 303, 327–328.)
Here, Velasquez testified that as he came within 10 to 12 feet of Garcia,
Garcia turned in his direction, “whipped open” the blade of a pocket knife,
and responded to Velasquez’s statement that Garcia could not get away by
saying something like, “You can’t outrun this.” This was substantial evidence
that Garcia intentionally displayed a deadly or dangerous weapon in a
menacing manner because a jury could reasonably conclude from these facts
that Garcia took this action to threaten Velasquez with physical harm in
order to scare him away. Garcia provides no reason for us to conclude
otherwise, citing only case law regarding assault with a deadly weapon
brought under section 245, subdivision (a)(1), not an enhancement allegation
under section 12022. (See People v. Aguilar (1997) 16 Cal.4th 1023, 1029–
1038, In re B.M., supra, 6 Cal.5th at pp. 531, 532–533 and In re Brandon T.
(2011) 191 Cal.App.4th 1491, 1493–1494, 1496–1498.) His argument is

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unpersuasive in the absence of his acknowledging the standard for section
12022, subdivision (b) articulated in People v. Wims and subsequent case law.
III. DISPOSITION
The judgment is affirmed.

STREETER, Acting P. J.

WE CONCUR:

GOLDMAN, J.
HIRAMOTO, J.*

* Judge of the Superior Court of California, County of Contra Costa,

assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.

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