Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County. Donald E. Shaver, Judge. No. 1240514
William I. Parks, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Peter H. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HILL, J.
A jury convicted defendant Henry Alvarado Rosales of one count of grand theft from the person of another (Pen. Code, § 487, subd. (c)), as a lesser included offense of robbery (§ 211), and one count of kidnapping (§ 207, subd. (a)), and the trial court found defendant suffered two prior serious felony convictions for robbery (§§ 667, subd. (a); 1192.7, subd. (c)). The court sentenced defendant to prison for a total of 17 years four months. On appeal, defendant contends: (1) insufficient evidence supports his conviction of grand theft from the person based on the theft of the victim’s cell phone; (2) the trial court erred in failing to adequately instruct the jury on the offense of grand theft from the person; and (3) section 654 precluded the imposition of consecutive sentences for the kidnapping and grand theft counts. We affirm.
Further statutory references are to the Penal Code unless otherwise specified.
FACTS
On January 19, 2008, around 5:30 p.m., 18-year-old Oscar Avila was in the driveway washing his car when he looked up and saw defendant standing three or four feet away. Defendant asked Avila where he was going. Avila replied, “Nowhere.” Defendant then asked Avila for a ride. Avila told defendant he did not know how to drive.
Avila became scared as defendant continued asking for a ride. Defendant had his hand clenched in a fist and looked like he was going to hit Avila. Defendant then said he would just take the car if Avila did not give him a ride. Avila finally agreed after defendant grabbed him by the shirt and shouted, “You better give me a f[ucking] ride.” Avila did not try to run away from defendant because Avila’s mother and little sister were inside the house, and he was afraid defendant might try to run inside.
Avila began to drive while defendant gave him directions. Avila thought defendant might be drunk because he smelled like alcohol. Defendant was also laughing and mumbling things Avila did not understand.
After driving seven or eight minutes, Avila’s cell phone started ringing. The phone was in Avila’s pocket. Defendant told Avila to pull over and said, “Let me see your phone.” Avila did not want to give defendant his phone, but he thought he had no choice. Avila pulled over and gave the phone to defendant. Defendant made some calls and told Avila to keep driving.
After they had traveled about a block, defendant told Avila to pull over again. Defendant got out of the car and started walking across the street to meet two people who had come out of the alley and were standing on the sidewalk. Avila got out and followed defendant because defendant still had his cell phone.
When defendant saw Avila, he said, “Get the fuck out of here.” Avila asked for his cell phone two or three times. Defendant said no and told him he better leave. Defendant became louder and told Avila he better leave before he took the car, at which point Avila started walking back to his car.
As Avila was opening the driver’s door, defendant grabbed his left shoulder and yelled, “I told you to get the fuck out of here.” Avila replied, “I am.” Defendant then started “socking” Avila in the back of his head. Avila fell to the sidewalk and defendant kicked him three or four times in his sides. Avila covered himself and yelled for help.
After defendant kicked Avila, he said he was going to take Avila’s car. Avila saw defendant run back to the car and start going through the front console like he was looking for something. Avila then heard a lot of noise and saw defendant using his hands like he was grabbing or pulling something.
Avila ran away with his car keys in his pocket. He approached some people inside their garage and asked to use their phone. One of the residents called the police. Officers arrived within minutes and drove Avila a short distance down the street. Avila saw defendant standing next to an officer and identified him as the person who had assaulted him. He also identified a faceplate that had been removed from his new car stereo.
DISCUSSION
I. Sufficiency of the Evidence
Defendant claims insufficient evidence supports his conviction of grand theft from the person because there was no evidence he possessed the requisite specific intent when he took possession of the cell phone from Avila’s person. According to defendant, until the moment he “took the cell phone with him and headed across the street, and then told Mr. Avila to leave,” he had not exhibited an intent to permanently deprive Avila of his phone. Since the phone was not on Avila’s person at the point defendant arguably demonstrated the requisite intent, defendant contends his conviction of grand theft from the person cannot stand.
On appeal, we review the entire record to determine whether it contains evidence that is reasonable, credible and of solid value on the basis of which any rational trier of fact could have found appellant guilty beyond a reasonable doubt. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) We view the evidence in the light most favorable to the judgment and presume in support of the judgment every fact the trier could reasonably deduce and infer from the evidence. (Ibid.)
Grand theft is committed when property is taken from the person of another. (§ 487, subd. (c).) It is well settled that “the crime of theft from the person contemplates that ‘ … the property shall at the time be in some way actually upon or attached to the person, or carried or held in actual physical possession … or … held or carried in the hands, or by other means, upon the person; … [the crime] was not intended to include property removed from the person and laid aside, however immediately it may be retained in the presence or constructive control or possession of the owner while so laid away from his person and out of his hands.’ [Citation.]” (In re George B. (1991) 228 Cal.App.3d 1088, 1091-1092, citing and quoting People v. McElroy (1897) 116 Cal. 583, 586.)
“In order to prove the crime of theft, it must be shown defendant had the specific intent at the time of the taking to permanently deprive the owner of the property. ‘[I]ntent is inherently difficult to prove by direct evidence. Therefore, the act itself, together with its surrounding circumstances must generally form the basis from which the intent of the actor may legitimately be inferred.’ [Citation.]” (People v. Edwards (1992) 8 Cal.App.4th 1092, 1099.)
Contrary to defendant’s assertions, the circumstances support a reasonable inference that defendant intended permanently to deprive Avila of his cell phone when he initially took possession of it from Avila’s person. When Avila’s phone rang, defendant directed Avila to pull over and let him see the phone. Avila testified he did not want to give defendant his phone but gave it to him because he thought he had no choice. After using the phone, defendant did not return it but directed Avila to continue driving. As defendant acknowledges, he kept Avila’s phone when he got out of the car and crossed the street. When Avila followed defendant and asked for his phone back, defendant told him to “Get the fuck out of here” and threatened to take Avila’s car if he did not leave. A reasonable jury could infer from all these circumstances that defendant formed the requisite larcenous intent as soon as he asked to see Avila’s phone. There was no evidence indicating that defendant was simply borrowing the phone or that he intended to give it back, notwithstanding Avila’s cross-examination testimony that he thought defendant would give him back the phone because he had just given defendant a ride. Avila’s wishful thinking in this regard was not supported by defendant’s conduct during the encounter. For these reasons, we conclude sufficient evidence supports defendant’s conviction of grand theft from the person.
II. Instructions on Grand Theft
Defendant contends the trial court failed to adequately instruct the jury on the elements of grand theft from the person, in violation of his due process rights. He also contends his trial counsel was ineffective in failing to object to the inadequate instructions. The People counter that the court adequately instructed the jury on the elements of grand theft by instructing the jury under Judicial Council of California Criminal Jury Instructions (2008) CALCRIM Nos. 1800 and 1801, which define theft generally, and distinguish between grand and petty theft.
“In reviewing claims of instructional error, we look to whether the defendant has shown a reasonable likelihood that the jury, considering the instruction complained of in the context of the instructions as a whole and not in isolation, understood that instruction in a manner that violated his constitutional rights. [Citations.] We interpret the instructions so as to support the judgment if they are reasonably susceptible to such interpretation, and we presume jurors can understand and correlate all instructions given. [Citations.]” (People v. Vang (2009) 171 Cal.App.4th 1120, 1129.)
Ordinarily we would agree with the People that CALCRIM Nos. 1800 and No. 1801 work together to adequately define all the elements of grand theft from the person, including that the property taken by the defendant must have been “in the clothing of, on the body of, or in a container held or carried by, that person” (CALCRIM No. 1801) and that defendant must intend “to deprive the owner of it permanently” or “to remove it from the owner’s … possession for so extended a period of time that the owner would be deprived of a major portion of the value or enjoyment of the property” (CALCRIM No. 1800). It appears, however, the trial court inadvertently omitted some of the language in CALCRIM No. 1800 defining the specific intent element of theft. As given in this case, CALCRIM No. 1800 simply stated that the prosecution was required to prove that “When the defendant took the property he intended it.”
Despite this omission, we believe the instructions, as a whole, adequately instructed the jury on the elements of grand theft and there is no reasonable possibility the jury would have understood it could find defendant guilty of grand theft from the person, even if it did not find that defendant intended to permanently deprive Avila of his cell phone at the time he took possession of it from Avila’s person. Immediately after instructing the jury under CALCRIM Nos. 1800 and 1801, the trial court instructed the jury under CALCRIM No. 3426, on evidence of voluntary intoxication. That instruction emphasized the specific intent requirement of the theft offenses. CALCRIM No. 3426 instructed the jury it could consider evidence of defendant’s intoxication “only in deciding whether the defendant acted with the intent to permanently deprive the owner of his property.” (Italics added.) CALCRIM No. 3426 went on to state:
In connection with the lesser offenses of Grand Theft from the Person the People have the burden of proving beyond a reasonable doubt that the defendant acted with the intent to permanently deprive the owner of his propertyWe presume, as we must, that the jury consists “of intelligent persons who are fully able to understand, correlate and follow the instructions given to them.” (People v. Archer (1989) 215 Cal.App.3d 197, 204.) Given CALCRIM No. 3426’s emphasis on the prosecution’s burden to prove defendant acted with the intent to permanently deprive the victim of his property and its proximity to CALCRIM Nos. 1800 and 1801 defining the elements of theft and distinguishing the crimes of petty theft and grand theft, we conclude the instructions, as a whole, adequately instructed the jury on the elements of grand theft from the person and reject defendant’s contention to the contrary.
Because we find no reasonable probability the jury read the instructions in the manner defendant suggests, we also reject his ineffective assistance of counsel claim, which requires defendant to show his counsel’s deficient performance was prejudicial; i.e., that a reasonable probability exists that, but for counsel’s failings, the result would have been more favorable to the defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687-688; People v. Waidla (2000) 22 Cal.4th 690, 718.)
III. Section 654
Defendant contends section 654 precludes separate terms of punishment because, assuming there was sufficient evidence of grand theft from the person, the jury found defendant took Avila’s cell phone in the course of the kidnapping and the circumstances show defendant had a single objective for both crimes, namely, “to take whatever he could easily acquire from Oscar Avila.”
Section 654 prohibits punishment for two crimes arising from a single, indivisible course of conduct. (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) If all of the crimes were merely incidental to, or were the means of accomplishing or facilitating one objective, a defendant may be punished only once. (Ibid.) If, however, a defendant had several independent criminal objectives, he may be punished for each crime committed in pursuit of each objective, even though the crimes shared common acts or were parts of an otherwise indivisible course of conduct. (People v. Harrison (1989) 48 Cal.3d 321, 335.) The defendant’s intent and objective are factual questions for the trial court, and we will uphold its ruling on these matters if it is supported by substantial evidence. (People v. Coleman (1989) 48 Cal.3d 112, 162.) We review the trial court’s determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312-1313; People v. Jones (2002) 103 Cal.App.4th 1139, 1142-1144.)
In the present case, the trial court could reasonably have found the kidnapping and grand theft constituted separate offenses. The facts of the present case show the kidnapping was well under way and that defendant’s apparent objective was to obtain transportation, when Avila’s cell phone rang in his pocket. There is no evidence defendant was previously aware of the phone’s existence. Defendant asked Avila to pull over and to see the phone, which he then appropriated for his own personal use. Although defendant’s conduct during the incident reflected a singly opportunistic attitude, the trial court could reasonably find defendant harbored multiple criminal intents under the circumstances. Thus, multiple punishment for the crimes is not prohibited by section 654.
DISPOSITION
The judgment is affirmed.
WE CONCUR: VARTABEDIAN, Acting P.J.GOMES, J.