Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. VA102113, Michael A. Cowell, Judge.
Alan Mason, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Jason C. Tran and Robert M. Snider, Deputy Attorneys General, for Plaintiff and Respondent.
WILLHITE, Acting P. J.
INTRODUCTION
A jury convicted defendant Veronica Soto of one count of attempted robbery (§§ 664/211) and one count of attempted unlawful taking of a vehicle (§§ 664 & Veh. Code, § 10851, subd. (a)). Her appeal contends that there was prejudicial instructional error. We are not persuaded and therefore affirm the judgment.
All undesignated statutory references are to the Penal Code.
STATEMENT OF FACTS
This case arises out of a confrontation between defendant and her mother Marilu Soto.
Defendant was not welcome at her mother’s home. During the evening of August 15, 2007, defendant arrived unannounced at the residence. Her mother was not there. Defendant’s adult sister Arlene Soto told defendant to leave. Defendant refused. Arlene Soto contacted her mother, Marilu Soto. Approximately 30 to 40 minutes later, Marilu Soto arrived. Defendant yelled at her mother that “she wanted a ride.” Marilu Soto rejected the demand and told defendant to leave. Defendant then yelled at her mother “to give her the [car] keys [so] that she would take the car.” Marilu Soto, who was holding her car keys in her hand, declined to do so and again asked defendant to leave. Defendant hit Marilu Soto in the face and tried to take the car keys from her. Arlene Soto intervened and began to struggle with defendant. Another relative eventually restrained defendant and the police were called.
Defendant presented no evidence on her behalf.
DISCUSSION
Defendant contends that prejudicial instructional error occurred because the trial court improperly instructed the jury about the specific intent required for attempted robbery. We are not persuaded.
The trial court instructed that an attempted robbery required the jury to find, among other things, that “[w]hen the defendant used force or fear in attempting to take the property, she intended to deprive the owner of it permanently or to remove it from the owner’s possession that the owner would be deprived of a major portion of the value or enjoyment of the property.”
Defendant correctly notes that the submitted instruction omitted one phrase found in the pattern CALCRIM instruction. CALCRIM No. 1600 provides (and we italicize the phrase omitted at trial): “When the defendant used force or fear to take the property, (he/she) intended (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).”
The record contains no explanation for the omission of the phrase in the instruction used. To the extent the discussion about instructions was reported, the parties never mentioned this issue. However, we do note that while the official version of the CALCRIM instruction (published by LexisNexis Matthew Bender) contains the phrase, the unofficial version of the same instruction (published by Thomson West) does not. It therefore appears that the trial court simply submitted the unofficial version of CALCRIM No. 1600. Because defense counsel failed to ask the trial court to include the omitted language, defendant cannot now complain about the omission of the one phrase. (People v. Valdez (2004) 32 Cal.4th 73, 113 [“Defendant’s failure to either object to the proposed instruction or request that the omitted language be given to the jury forfeits his claim on appeal”].)
In any event, defendant’s contention of prejudicial instructional error fails on the merits. In that regard, the two issues are whether the submitted instruction properly stated the law, and, if it did not, whether the error was prejudicial.
In regard to the first issue, People v. Avery (2002)27 Cal.4th 49 (Avery) is instructive. There, the question was whether a Texas conviction for burglary of a habitation with intent to commit theft qualified as a serious felony conviction. Texas theft statutes require only the “‘intent to deprive the owner of property’” and define “deprive” as “‘withhold[ing] property from the owner permanently or for so extended a period of time that a major portion of the value or enjoyment of the property is lost to the owner.’” (Avery, supra, 27 Cal.4th at p. 54.) In light of the Texas statutory scheme, Avery stated the issue as: “Does the intent to deprive the owner of property only temporarily, but for so extended a period of time as to deprive the owner of a major portion of its value or enjoyment, satisfy the California requirement of intent to deprive the owner of the property permanently?” (Ibid.)
After examining decisional law which had held that the requirement of intent to permanently deprive is broader than its literal language, Avery stated its agreement with the holding of People v. Zangari (2001) 89 Cal.App.4th 1436, 1443 that “‘the intent to deprive an owner of the main value of his property is equivalent to the intent to permanently deprive an owner of property.’” (Avery, supra, 27 Cal.4th at p. 57.) Avery therefore held that the Texas conviction necessarily included conduct that would qualify as a serious felony in California. It concluded: “[The] requirement, although often summarized as the intent to deprive another of the property permanently, is satisfied by the intent to deprive temporarily but for an unreasonable time so as to deprive the person of a major portion of its value or enjoyment.” (Id. at p. 58.)
Given Avery’s analysis, we conclude that the submitted instruction properly stated the law. The instruction explained that defendant had the required intent if she intended “to remove [the property] from the owner’s possession [so] that the owner would be deprived of a major portion of the value or enjoyment of the property.” This language adequately focused the jury on the requirement that defendant’s taking must result in a deprivation of a major portion of the value or enjoyment of the car. That the instruction omitted any reference to the length of time of the taking does not change this conclusion. As set forth in the previous two paragraphs, the Avery opinion formulated its holding in various ways and, at one point, noted that because of the way the issue arose, it had to decide it “in the abstract without a concrete factual context.” (Avery, supra, 27 Cal.4th at p. 55.) We therefore believe that Avery does notrequire the portion of the jury instruction explaining intent to contain a reference to the length of time the victim is deprived of property. Stated another way, the length of time the defendant withholds the property is but one factor to consider in determining the ultimate question: does the withholding deprive the victim of the substantial value or enjoyment of the property?
Further, we are not persuaded by defendant’s claim of prejudice. She argues that “had the trial court properly instructed the jury that it needed to find that [defendant] had to deprive Marilu Soto of her keys either permanently or for so extended a period of time to deprive Marilu Soto of a major portion of the value or enjoyment of the keys, the jury would have understood that it had to decide the issue of how long a period of time [defendant] intended to keep the keys. [¶] A reasonable interpretation of the evidence presented was that [defendant] only wanted to borrow the keys and then return them a short time later. Likely [defendant] did not intend to keep the keys or vehicle for an extended period of time. [¶] Instead, as it was instructed, the jury would understand that it only needed to determine whether or not [defendant] attempted to take the keys from Marilu Soto’s possession. As worded, the jury would not have been clear that it had to determine what [she] intended to do with the keys after she had first acquired possession of them.” (Italics added.)
Contrary to what defendant argues, nothing in the evidence suggests that she intended to quickly return the car keys to her mother. That she was unwelcome at her own mother’s home, refused to leave when repeatedly asked to do so, verbally abused her mother, and hit her mother all suggest to the contrary.
This argument fails for two separate reasons.
The first reason is that it ignores a significant portion of the language of the submitted instruction. The jury was directed to decide whether defendant’s attempted taking of the keys would have deprived Marilu Soto of “a major portion of the value or enjoyment of the [car].” Thus, defendant errs when she claims that the jury did not realize it needed to determine what she intended to do with the car keys had she succeeded in forcibly taking them from her mother. The second reason is that it overlooks the manner in which the case was presented to the jury. (See People v. Avena (1996) 13 Cal.4th 394, 417 [given counsel’s closing arguments, there was no reasonable likelihood that the jury misunderstood and misapplied the instruction].) In closing argument, defense counsel urged that the People had failed to establish an attempted robbery beyond a reasonable doubt. He characterized the operative events as “a family dispute.” He claimed that “the argument and struggle” between defendant and her mother was about defendant’s presence in the house, nothing more. Addressing the specific intent required for attempted robbery, he argued: “Is there any intent on behalf of [defendant] to deprive her mother . . . permanently of the vehicle[?] There is not. And you can infer that by the statement, give me a ride. Give me the keys, I will drive myself. . . . [¶] She [defendant] wanted to use the car to take a ride to go somewhere. There’s no indication that she was going to permanently deprive or attempt to permanently deprive [her mother] of the car. . . . [¶] She wants to take the car, go where she wants to go for the ride, bring it back, unless you think the evidence shows there’s [an intent to] permanently deprive, there isn’t.” This closing argument therefore framed the issue for the jury in the same way defendant now claims it would have been framed had the instruction included the omitted phrase: was defendant’s attempted taking so temporary that it did not satisfy the intent required for attempted robbery? In convicting defendant of attempted robbery, the jury resolved the issue against defendant. It implicitly found that her attempt to take the car would have deprived her mother of a major portion of the car’s value or enjoyment. Substantial evidence supports that finding. (See fn. 2, ante.) Consequently, any instructional error which may have occurred was not prejudicial. (People v. Watson (1956) 46 Cal.2d 818, 836.)
DISPOSITION
The judgment is affirmed.
We concur: MANELLA, J., SUZUKAWA, J.