By Tiffany Devlin
SACRAMENTO – Assistant Public Defender Stephen Nelson argued this Monday in Sacramento Superior Court that defendant Michael Wilson’s actions did not equate to a robbery when the victim gave him one of the “Obama” (government) phones that she was selling.
He also argued $1 million bail for a homeless man in a disputed robbery of a cell phone was excessive.
Despite Nelson’s argument, Sacramento County Superior Court Judge Shelleyanne W.L. Chang ruled that the victim gave Wilson the phone against her will, and the judge believed that there was sufficient evidence to charge Wilson with second-degree robbery.
Wilson’s was reduced to $500,000 after Nelson opposed the $1 million figure.
At one point during the cross-examination of Sacramento Police Officer Anthony Nunez, Nelson asked, “Did you ask her whether it was because he was threatening to take her property, or was he just threatening to her because he was a ‘scary Black man’?”
Wilson is known to be homeless, along with having established mental health issues. Wilson was charged with robbery from the alleged victim by means of force and fear on June 18.
Deputy District Attorney Sylvia La Rosa called Officer Anthony Nunez to give witness testimony in this case. During La Rosa’s questioning, Nunez explained that he was dispatched to a Dollar Tree regarding a robbery.
When Nunez contacted the victim upon arriving at the scene, the victim explained to him that she was selling cell phones when she was approached by a Black male who demanded a phone from her. Nunez 
identified Wilson as the Black male suspect when asked to point him out in court.
Upon Nunez’ recollection, the victim told him that Wilson said, “I need a phone and you’re gonna give it to me.” After he said that, the victim gave him the phone. Wilson left with the phone in the box, but then the victim took a picture of Wilson. The victim showed Nunez the picture of Wilson. Another officer arrested him shortly thereafter.
“When I approached her (the victim) and made contact, she was crying, she was shaking, and she appeared scared,” Nunez explained. He also claimed that she recognized the defendant as a local transient that is known to be unstable, and has seen him yell at inanimate objects in the past.
As La Rosa’s questioning continued, Nunez said that Wilson did not assault or physically touch the victim. However, due to the victim’s knowledge of Wilson, Nunez explained that she felt like something bad would happen to her if she did not give him the phone. “She felt like she had to in order for her to (be able to) leave,” Nunez explained.
When asked about whether or not Wilson was searched once apprehended, Nunez said he was searched, only finding the black Storm C3+ cell phone of which was given to him by the victim. Additionally, the charger, box, and cable were found.
Nelson proceeded to ask about the body camera footage taken, to which Nunez confirms that the victim said, “This guy totally creeps me out,” in her statement, and that “he has been here before. He has yelled at the garbage can and tree before while yelling ‘bitch, bitch.’”
Nunez also confirmed that the victim was selling phones that are commonly known as “Obama Phones” outside within the Dollar Tree parking lot. Her table was approximately 50-75 yards away from the entrance, and the parking lot was identified by Nunez to be busy.
Nelson asked if these phones are usually given out for free, to which Nunez explained that it is a common thought, however he was not sure. Nunez also did not ask the victim if she gives the phones out to people for free if they qualify.
While the questioning continued, Nunez claimed that he did not check to see if Dollar Tree had store security. Nunez also did not check the parking lot cameras because it would not have been much help, given that most of the time there is no audio recording.
“I want to go into how she gave him the phone,” Nelson started. He asked Nunez if the victim had driven there, and how close her car was. Nunez replied, saying that her car was in close proximity. The phones were stored in her car while the boxes on the table contained rocks.
“Did you inquire why… if she walked to her car, she didn’t lock herself into the car and exit the parking lot if she was so afraid of Mr. Wilson?” Nelson asked. Nunez did not inquire, nor did he inquire if she shouted for help.
Nelson proceeded to ask about the victim’s age, to which Nunez did not know exactly, but guessed at least 35 years of age. Once Nelson asked about her nationality or race, La Rosa attempted to object due to irrelevance, however Judge Chang overruled. Nunez identified that the victim was white.
Nunez confirmed that in his report the victim claimed that Wilson accurately said, “Where are your phones? What ones do you have? You’re gonna give me a phone. I need to look at it.”
“So, she was there selling phones, and he asked to look at a phone. That is the threat from Mr. Wilson that made her so scared?” Nelson asked, to which Nunez agreed.
When Nelson asked Nunez if he inquired as to what she based her opinion on, and why she thought that he wasn’t going to leave, Nunez said that he did not inquire. He assumed that it was because of her prior observations of Wilson.
Nelson continued to press Nunez and raised his voice, asking, “she gave him something to leave her alone, correct? It wasn’t that he was demanding and trying to rob her, she gave him a phone to leave her alone?”
La Rosa objected for speculation, to which Judge Change sustained.
“Yes, because she was scared of him,” Nunez replied.
“She was scared of him; because she said, ‘he was not right in the head’, correct? And ‘he is totally off,’ correct? Then she further explained to you, ‘I don’t know if he had a weapon, and I didn’t want to deal with his crazy ass, so I gave him the phone with the top part of the box off, correct?’ ” Nelson asked.
“So once again, she went to her car, she got a phone, she came back, she gave it to him to make him leave?” Nelson asked, to which Nunez agreed to all questions.
When asked about whether the victim pursued him to take his picture when he walked away, Nunez clarified that she took the picture from the parking lot.
“Well your report said, ‘he took the phone with the box and then walked away to the sidewalk. That is when I took his picture’, correct?” Nelson argued, to which Nunez then agreed.
Nelson verified with Nunez that in the statement, the victim said, “he didn’t assault me, he didn’t put his hands on me, he was just threatening me.” Nelson then went on to ask, “was it that he was threatening her to take things, or that he was a threatening Black man that appeared to be crazy?”
La Rosa objected, to which Judge Chang sustained.
Nelson continued to ask, “did you ask her whether it was because he was threatening to take her property, or was he just threatening to her because he was a ‘scary Black man’?”
La Rosa objected a second time, however Judge Chang overruled.
“She appeared to be threatened based on his prior actions that she has seen him yell at inanimate objects, and how he’s acted on previous occasions,” Nunez explained, “which is why she wanted him to leave; and in order to do that she thought she needed to give him the phone.”
Once Nelson was finished cross examining, La Rosa joined for further questions. Nunez clarified that the victim never specified giving the phones away for free, and that she provided a $70 monetary value for the phone.
“Regarding the people that you spoke to who knew Mr. Wilson,” La Rosa asked, “did you speak to a female transient that had a nickname for Mr. Wilson?”
“Yes, based on the description that we gave them, they know him to be known as ‘crazy Mike’,” Nunez replied.
Once all questioning ceased, Nelson was given the chance to argue by Judge Chang. He repeated Wilson’s exact words, which stated, “Where are your phones? What ones do you have? You’re gonna give me a phone. I need to look at it.”
“This is not anything different than what anybody else would say when they go to a store to buy a phone,” Nelson argued. “She had to leave her stand, walk to her car… Rather than drive away from ‘crazy Mike’, she instead grabs the phone, she hands it to him and he walks away.”
“This doesn’t equate to a robbery. Giving someone personal property to make them go away is age old,” Nelson continued, “we have a phone that’s a value of $90; this is not even a theft… So, I would ask the court for a no holding order on this case.”
La Rosa shot back, arguing that the statement, “you’re gonna give me a phone” was not a question, it was a demand.
“As a well-mannered individual, nobody goes into a cell phone store and demands ‘you’re going to give me a phone’,” La Rosa explained. She adds that this is not the first time that the victim has seen Wilson and his conduct.
“It has not scared her enough before to where she felt the need to do anything, however this time, because she has seen his behavior before, this time he approached her, and she was in fear,” La Rosa argued.
“The officer (Nunez) spoke to the victim. She was still crying, visibly shaken, and upset,” La Rosa continued, “This was not someone that was just bothering her and she was giving the phone so that he would go away, she was giving the phone out of fear so that he would not continue to cause that fear in her.”
“As far as giving away phones, the victim never said that. She provided a value for the phone, she never said she was giving them away for free. It begs to be a little more obvious that she wouldn’t have kept them in the car, away from the table and instead put rocks in empty boxes on the table. If they’re really free and up for grabs, why keep them hidden away behind?” La Rosa claimed.
La Rosa concluded that due to the victim’s prior interactions with Wilson, and due to the element of fear, all elements have been met to constitute a robbery.
“His mental health conditions instill fear into her,” Nelson said, trying to make sense of La Rosa’s argument, “that means everybody who’s mentally ill, it’s a robbery or an assault that’s going on? The criminalizing of someone with a mental health issue, and undoubtedly he does… I get it. I’d be scared too. But it doesn’t make it a robbery.”
“As far as the bigger policy issue of criminalizing individuals who have mental health issues, I agree,” Judge Chang concurred, “But I have to go with what the evidence has shown, and I do believe there is sufficient evidence to show second degree robbery.”
“With respect to fear, jury instruction says, “fear as used here means fear of injury to the person, himself, or herself,” Judge Chang explained to the court. “The jury instruction defines an act is done against a person’s will if that person does not consent to the act. In order to consent, a person must act freely and voluntarily, and know the nature of the act.”
“And I say, with respect to this last element, I do believe that the act of giving a defendant the phone was not free and voluntary,” Judge Chang continued. “I do think that it was against her will. With respect to the fear, I believe there is sufficient evidence to show the victim’s fear. The officer testified that she was scared, she was crazy, she was flustered, she was crying, and emotionally upset when he contacted her.”
While the trial readiness conference is set for Nov. 19, the trial date is Nov. 23.
To sign up for our new newsletter – Everyday Injustice – https://tinyurl.com/yyultcf9
Support our work – to become a sustaining at $5 – $10- $25 per month hit the link:
