Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 06CF3055, William Lee Evans, Judge.
James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Sharon Rhodes and Rhonda Cartwright-Ladendorf, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MOORE, J.
Defendant raises two issues. He argues the trial court erred in not instructing the jury that battery is a lesser included crime to robbery. He also claims the court erred when it did not inform him of the penalties for admitting that the allegations of his prior convictions were true. We find no error and affirm.
I
FACTS
A jury convicted defendant Eduardo Mariche Ruiz of second degree robbery and possession of a controlled substance. The court sentenced him to 11 years in state prison.
Jesus Rosas Fresnares (Rosas) testified that on April 22, 2006 between 6:00 and 7:30 p.m., outside BK Liquor near Harbor Boulevard in Garden Grove, he was waiting for a ride. Defendant came up to him and hit him two times in the face, causing a bloody nose and lip. Rosas said defendant took his money and fled on a bicycle.
Rosas told Garden Grove police officers ”the suspect had reached into his pocket, taken out money, and he attempted to restrain him from taking it, realized that the money was taken, then the suspect had left.” He estimated the amount taken was $100. Rosas said the attacker reached into his right front jacket pocket where he kept his money, and one of the officers noticed the victim’s jacket pocket was torn. Rosas described the assailant as Hispanic with a shaved head wearing black pants, a bluish short sleeved shirt with buttons and a backpack. He last saw the suspect going into the Humdinger bar.
As they were speaking, the police and Rosas saw defendant riding a bicycle away from the Humdinger bar. Rosas became excited, identified defendant and started yelling at defendant. The officers had to restrain Rosas from running after defendant. Rosas yelled at defendant that he wanted his money back.
A uniformed officer made eye contact with defendant and ordered him to stop, but defendant did not. When he finally was stopped, the police found no marks, bruising, redness or torn clothes on defendant. He admitted he had been at the BK Liquor store and that he ran into some friends there. When they searched him, they found “a $10 bill, two fives and a one.” In his coin pocket, they found a white powdery substance resembling cocaine. Defendant said it was cocaine and said he had just purchased it in the bar. He also admitted “maybe he had in fact been involved in the robbery.”
Prior to trial, defendant successfully moved to bifurcate his prior convictions. After the jury was sent to deliberate, the court inquired whether defendant wanted a jury to decide the prior allegations, the court to decide them or wanted to enter a plea regarding his priors. After consulting with his lawyer, the court was informed defendant wanted to “admit his prior strikes.” The court then explained the prior allegations and advised defendant of his rights, and defendant admitted all of the prior allegations.
II
DISCUSSION
Lesser included offense
Defendant contends the trial court erred when it failed to instruct that battery was a lesser included offense of robbery under the accusatory pleading test. “Under the accusatory pleading test, a lesser offense is included within the greater charged offense ‘“if the charging allegations of the accusatory pleading include language describing the offense in such a way that if committed as specified the lesser offense is necessarily committed.” [Citation.]’ [Citations.]” (People v. Lopez (1998) 19 Cal.4th 282, 288-289.) Here, the charging allegation states defendant “by means of force and fear [took] the personal property against the will of and from the person, possession, and immediate presence of Jesus Rosas.”
The Attorney General argues “a robbery can be committed by means of fear; but a battery cannot.” To that, defendant points out that, while the pleading used the conjunctive, the statute uses the disjunctive. He says the robbery statute proscribes takings accomplished by means of force or fear. Thus, defendant’s argument is that, since the pleading requires the use of force and fear, under the facts of this case, battery is a lesser included crime. He explains further: “Under the accusatory pleading test, the alleged robbery could not have been committed without necessarily committing a battery.”
A 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.” (Pen. Code, § 211.) “A battery is any willful and unlawful use of force or violence upon the person of another.” (Pen. Code, § 242.)
“When a statute . . . lists several acts in the disjunctive, any one of which constitutes an offense, the complaint, in alleging more than one of such acts, should do so in the conjunctive to avoid uncertainty. [Citations.] Merely because the complaint is phrased in the conjunctive, however, does not prevent a trier of fact from convicting a defendant if the evidence proves only one of the alleged acts. [Citation.]” (In re Bushman (1970) 1 Cal.3d 767, 775.)
“[T]he ‘force’ required for robbery is not necessarily synonymous with a physical corporeal assault. [Citation.] An assault consists of an attempt coupled with the physical ability to inflict an ‘injury’ unlawfully on another; this ‘injury’ can be the least unwanted touching. [Citation.] When actual force is present in a robbery, at the very least it must be a quantum more than that which is needed merely to take the property from the person of the victim, and is a question of fact to be resolved by the jury taking into account the physical characteristics of the robber and the victim. [Citations.]” (People v. Wright (1996) 52 Cal.App.4th 203, 210, fn. omitted.) The court went on to note that “‘force’ is not an element of robbery independent of ‘fear’; there is an equivalency between the two.” (Id. at p. 211.) Defendant disagrees with the Wright decision and asks us to reject its interpretation.
“[A] trial court must, sua sponte, or on its own initiative, instruct the jury on lesser included offenses ‘when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged.’ [Citation.]” (People v. Barton (1995) 12 Cal.4th 186, 194-195, fn. omitted.)
In the case before us, the evidence does not raise a question whether all of the elements of robbery were present. The court did not err in instructing the jury.
Prior conviction
Defendant also contends the court erred in failing to advise him of penalties resulting from his admission of his prior convictions. The Attorney General argues defendant waived this argument by failing to object in the trial court.
“Under long and well-established principles, a trial court is obligated to advise a defendant of the direct consequences of a plea of guilty or no contest to a felony or misdemeanor before it takes the plea. [Citations.]” (People v. Zaidi (2007) 147 Cal.App.4th 1470, 1481.) A defendant must also be advised of all direct consequences. (People v. Bernal (1994) 22 Cal.App.4th 1455.)
The Attorney General cites People v. Wrice (1995)38 Cal.App.4th 767, for the proposition that a defendant’s failure to object prior to sentencing is a waiver. The Wrice court said: “A defendant who admits a prior criminal conviction must first be advised of the increased sentence that might be imposed. [Citations.]. However, unlike the admonition required for a waiver of constitutional rights, advisement of the penal consequences of admitting a prior conviction is not constitutionally mandated. Rather, it is a judicially declared rule of criminal procedure. [Citations.] Consequently, when the only error is a failure to advise of the penal consequences, the error is waived if not raised at or before sentencing.” (Id. at pp. 770-771.)
The record reflects the court spent a considerable period of time explaining defendant’s constitutional rights as well as the allegations of a prior assault with a deadly weapon, a prior burglary and a lack of remaining free from custody for a continuous five year period. The court asked defendant several questions with regard to the allegations and the defendant answered them.
Under the circumstances of the record before us, it appears defendant understood the consequences of his admissions. If he had any more questions of the court or disagreed with the court’s explanations, he should have asked his questions or objected at trial. We conclude his argument is waived.
III
DISPOSITION
The judgment is affirmed.
WE CONCUR, RYLAARSDAM, ACTING P. J., IKOLA, J.