Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County No. RIF129339. Robert George Spitzer, Judge.
Allison H. Ting, 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, Senior Assistant Attorney General, Steve Oetting, Supervising Deputy Attorney General, and Robin Derman, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
King J.
I. INTRODUCTION
Defendant was charged with a single count of robbery (Pen. Code, § 211) with personal infliction of great bodily injury upon unnamed victim Jane Doe (§ 12022.7, subd. (a)). A jury found him guilty as charged and found the enhancement allegation true. Defendant was sentenced to a total term of six years: the middle term of three years for the robbery, plus three years for the enhancement.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant appeals. He claims the trial court erroneously failed to instruct the jury sua sponte on the lesser included offenses of grand theft person (§ 487, subd. (c)) and petty theft (§ 488). He further claims the error was prejudicial because there is a reasonable probability that the jury, if it had been instructed on the lesser offenses, would have found him guilty of grand theft person or petty theft, but not robbery.
We reject defendant’s claim of error. We conclude there was insufficient evidence that defendant was guilty of grand theft person or petty theft, but not robbery. Hence, the trial court did not have a duty to instruct on these lesser offenses sua sponte. We therefore affirm the judgment, including defendant’s robbery conviction and the great bodily injury enhancement.
The present trial, which concluded in July 2006 under case No. RIF129339, was the second time defendant was tried for the robbery and great bodily injury enhancement. The first trial concluded in May 2004 under case No. RIF113348. In the first trial, defendant was convicted of the robbery charge and great bodily injury enhancement (§§ 211 & 12022.7, subd. (a)), together with assault by means of force likely to produce great bodily injury (§ 245, subd. (a)) with personal infliction of great bodily injury (§ 12022.7, subd. (a)). He was acquitted of forcible rape (§ 261, subd. (a)(2)), rape of an intoxicated victim (§ 261, subd. (a)(3)), and forcible sexual penetration with a foreign object (§ 289, subd. (a)(1)). Following the first trial, the trial court imposed but stayed a six-year term for the aggravated assault and great bodily injury enhancement.
II. FACTS AND PROCEDURAL HISTORY
A. Background
On November 8, 2003, 22-year-old Jane Doe and her friend Laura Fernas went to the Boogie nightclub in Anaheim to celebrate Doe’s birthday. They had no trouble getting into the club because the manager and bouncer, 7-foot tall, 400-pound Chris Dray, was Doe’s best friend. Doe later began dating Chris and had a child by him.
On the night of November 8, Doe was driving a new Chevy Tahoe she had recently purchased with a large inheritance. Doe had over $100 in the small pants pocket of her jeans, including one $50 bill, several $20 bills, and some $1 bills. She paid for drinks for herself and Fernas at the club. According to Doe, she was not carrying a purse; however, Fernas recalled that Doe was carrying a small black purse.
Doe drank heavily at the Boogie, and had smoked two bowls of marijuana earlier that day. She admitted she was drunk and passing out by the time she and Fernas left the club near closing time. At the club, Fernas described Doe as “running around and just not acting like herself.” Fernas recalled that, near closing time, Doe was with a group of guys, including defendant, talking and joking around. Doe, however, did not recall speaking to defendant at the club that night, although she remembered seeing Fernas speaking to him, and she remembered seeing him at the club on prior occasions. Doe said Chris warned her to stay away from defendant, and Doe told Fernas not to let anyone in her truck.
Fernas recalled walking out of the club at closing time without Doe and waiting for Doe at her truck. According to Fernas, Doe arrived at her truck several minutes later with defendant and another male. According to Doe, Chris or one of the other bouncers was with her when she left the club, and a male friend of defendant’s was already inside her truck. At some point, defendant also got inside the truck. Doe recalled that Chris grabbed defendant, told him to “get the [fuck] out” of Doe’s truck, and said he would “kick his ass” if he found him in the truck again. By all accounts, defendant and his friend both got out of the truck.
Fernas took Doe’s car keys because Doe was clearly too drunk to drive. She drove a short distance, around 100 feet, to a Del Taco restaurant that shared a parking lot with the Boogie. There, they purchased some food and Doe paid for it with some of the money she had in her pants pocket. They ate the food inside the truck. Doe remembered that she fell down at the Del Taco, but she did not recall whether she fell before or after she got her food.
At the Del Taco, defendant, but not his friend, got back inside Doe’s truck. Doe began to vomit, and said she wanted to go to Chris’s house. Doe and Fernas agreed to allow defendant to come with them.
When the three of them left the Del Taco, Fernas was driving; Doe was in the front seat; and defendant was in the backseat. Defendant repeatedly put his hands on Doe and Fernas, and they were both telling him to stop. Doe told Fernas to pull over on the freeway and “kick his ass out” of the truck. Meanwhile, defendant was trying to convince Fernas that he knew Chris and he would take them to Chris’s house.
Fernas stopped in Fullerton where she got Doe a pillow, blanket, and a Styrofoam cooler to vomit in. In Fullerton, Doe and defendant switched places in the truck. Doe lay down in the backseat, and defendant got in the front passenger seat.
Eventually, they arrived at a house in Corona. On the way there, defendant said he did not have any cigarettes and wanted some. Fernas was also out of cigarettes, so they stopped at a 7-Eleven store to buy some. Fernas gave defendant $5 to buy her a pack of cigarettes, and he did so. Defendant told Fernas he did not have any money to buy his own cigarettes and asked Fernas if he could borrow some money. Fernas did not give defendant any more money, and he did not buy any cigarettes or anything else for himself.
When they arrived at the house in Corona, Fernas and defendant went inside the house and went their separate ways while Doe stayed in the backseat of her truck, sleeping. Fernas took the keys to the truck with her and thought she had locked the doors to the truck.
Doe woke up in the backseat of her truck to find defendant pulling down her pants and punching her in the face, side, and stomach. He threatened to kill her if she screamed. He made her lie on her stomach facing away from him, took out her tampon, sexually assaulted her, and continued hitting her. Finally, he put his shirt around his face and walked away.
At this point, Doe saw someone in the bushes throw a pillow, and defendant used the pillow to cover his face. Doe recognized the person in the bushes as defendant’s friend who was in her truck as they were leaving the Boogie. Doe later saw defendant’s friend at the Boogie, telling everyone what had happened. Doe told Chris, and Chris knocked out all of the man’s teeth to the extent the man required hospitalization.
After defendant walked away, Doe began screaming and could not move. Some people came to her assistance, helped her get her pants on, and carried her into the house. Fernas went to check on Doe around 30 minutes after they arrived, and was told that Doe was upstairs. Fernas found Doe in an upstairs bedroom of the house, crying and hysterical. Someone called the police.
Doe yelled at Fernas for leaving her alone. Fernas said she did not know defendant was going out to the truck; he just said he had to go outside and do something. Fernas went to the truck shortly before the police arrived. She saw Doe’s small black purse on the front seat “sprawled open,” as though it had been “digged through.” The seats and the blanket were bloody and the cooler was outside the truck.
Before Doe was brought inside the house, Fernas saw defendant in the house with at least $20 in his hand. He was trying to buy $20 worth of “weed” from someone in the backyard. This struck Fernas as odd because defendant said he did not have any money when they were at the 7-Eleven store a short time earlier.
Officer Gerardo Larios responded to the scene. He found Doe in an upstairs bedroom in a fetal position on the bed, crying and hysterical. She said she had been raped and punched in the face. Her eyes were swollen shut; her nose was bloodied; her upper lip and right cheek were swollen; and she said her stomach hurt a lot. It was later discovered that Doe had a broken lower rib cage, a punctured liver, internal bleeding, and several bruises and wounds. She was hospitalized for five days and on bed rest for several weeks.
Another officer found defendant in a downstairs bathroom of the house, washing his hands. He identified himself as Eric Simms. He had $151 on his person, one $50 bill, five $20 bills, and one $1 bill. He also had several scratches on him and two bloodstains on the lower abdomen area of his shirt. At trial, the parties stipulated that the blood on defendant’s shirt was a mixture of defendant’s and Doe’s blood.
Doe identified defendant in a live lineup at the house. She was unable to see but recognized his voice. The police had to protect defendant from several men at the party who were threatening to beat him up and who had prevented him from leaving before the police arrived.
At the house, Doe did not mention she was missing any money and did not say she had been robbed. She also did not mention missing any money when police interviewed her at the hospital shortly after she was subjected to a sexual assault examination. She first realized that money was missing from her pants pocket when Detective Richard Avila returned to the hospital and specifically asked her whether she had any money with her that night. Doe said she had one $50 bill, several $20 bills, and some $1 bills in her pants pocket; however, no money was found in her pants pocket after the assault.
B. Defendant’s Statements to Police
Detective Avila interviewed defendant after he waived his Miranda rights. He stated that, at certain points, he had no memory of what had happened because he had been on a cocaine binge since Friday, November 7. At the Boogie, he drank heavily and was kicked out for punching someone in the face. He claimed the blood on his shirt came from a cut on one of his fingers. As he was leaving the club with Fernas and Doe, he told his friend, George Villa, to follow him.
Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694].
When Detective Avila asked whether it was possible he raped someone, his exact words were that he could not “discount” that, but he did not see himself raping anyone. He later broke down crying and said he could not possibly have raped anyone. He said he had been the victim of a rape when he was younger and knew how it felt to go through that. He did not say anything about punching or hitting Doe. He claimed he brought $350 in cash with him to the club that night.
C. Defendant’s Prior Testimony
Defendant testified at his first trial. He did not testify at the present trial; however, his testimony from the first trial was read into the record as part of the prosecution’s case-in-chief. Defendant did not present any affirmative evidence.
As a juvenile in 1994 and 1995, he committed theft of $180 from his father’s ATM card, got into a collision while driving a stolen car, and robbed a boy of his jacket. As an adult in 2002, he committed felony grand theft from a Target store and was placed on felony probation.
Defendant stayed up all night on Friday, November 7, using cocaine and drinking beer. He brought $300 to the Boogie on Saturday, November 8, and drank heavily. He flirted with Doe and bought drinks for Doe and Fernas. He asked Doe to show him her “tits” and she complied. He kissed Doe, talked to the disc jockey, then went outside to smoke a cigarette. At some point, he got into a fight inside the club.
In the parking lot outside the club, Doe ran up to defendant. She jumped in his arms, wrapped her legs around his waist and her arms around his neck, and began kissing him. Then she grabbed him by the wrist and led him to her truck. Defendant and “a Mexican dude” got in the backseat. The Mexican dude said something sarcastic to the bouncer, and the bouncer told him to get out. Defendant got out to watch. Then Doe said she was missing her cell phone, and defendant and Doe walked to Del Taco together. When they returned to the Tahoe, defendant asked whether Doe and Fernas still wanted him to accompany them to the party, and Doe and Fernas agreed.
Fernas drove; Doe sat in the front passenger seat; and defendant sat in the backseat. Doe began throwing up before they left the parking lot near the Del Taco. They arrived at Ty’s place, an escort service in Fullerton. There, defendant got Doe a pillow and blanket because she wanted to stay in the Tahoe and sleep. Fernas brought Doe a cooler to vomit in. After five or ten minutes in Fullerton, the three of them headed to Corona. Defendant understood that a man named Ross Debow, whom he did not know, owned the house in Corona where the party was to be held.
At the Corona house, defendant and Fernas went to the backyard and began smoking cigarettes. Defendant did not know anyone, so he decided to got back to Doe’s truck. The door was locked, so he knocked on the rear window. Doe let him in and asked him whether he knew where her cell phone was. He said Fernas had it. Doe thanked defendant for being nice to her. He asked her what she did for a living, and she told him she was a stripper. He asked her how much she wanted for a lap dance, and she asked whether that was all he wanted. He asked how much she wanted for a blow job. She said she did not think she could do that because she might puke, so he asked her how much she wanted for sex. She asked him how much money he had, and he counted out $100 and placed it on the center console of the truck.
They had sex, but defendant felt an itching or burning sensation. Doe said it might be because she was on her period. He grabbed his money off the console. She grabbed his shirt and demanded the money. He called her a “dirty bitch” and told her to let him go. When she did not let go, he back-handed her twice on the nose, and punched her in the cheek and stomach. He then got out of the car and went back to the party. He said Doe had lived up to her end of the bargain; however, he wanted the money back because he thought she may have given him a disease.
Defendant said he gave police a false name because he had an outstanding warrant for failing to appear in court in connection with his Target grand theft conviction. He was planning to turn himself in after the holidays. He told Detective Avila that his memory of that night was not very clear because of his cocaine use and lack of sleep. He did not tell Detective Avila everything because he believed having sex for money was against the law.
III. DISCUSSION
Defendant contends the trial court erroneously failed to instruct the jury sua sponte on the lesser included offenses of grand theft person (§ 487, subd. (c)) and petty theft (§ 488) and the error was prejudicial because there is a reasonable probability that the jury, if properly instructed, would have convicted him of one of the lesser offenses. We disagree that the trial court had a duty to instruct on the lesser offenses, because there was insubstantial evidence that defendant took any money from Doe other than by means of force or fear.
A. Applicable Law
A trial court has a duty to instruct sua sponte on lesser included offenses whenever there is substantial evidence that the lesser offense, but not the greater, was committed. (People v. Cunningham (2001) 25 Cal.4th 926, 1008.) “‘“Substantial evidence is evidence sufficient to ‘deserve consideration by the jury,’ that is, evidence that a reasonable jury could find persuasive.” [Citation.]’ [Citation.]” (Ibid.) The existence of any evidence, no matter how weak, will not justify instructions on a lesser included offense. (People v. Breverman (1998) 19 Cal.4th 142, 162.)
Robbery is the taking of personal property from the person or immediate presence of another by means of force or fear and with the intent to permanently deprive the person of the property. (§ 211.) Theft is a lesser offense of robbery, which excludes the element of force or fear. (People v. Bradford (1997) 14 Cal.4th 1005, 1055.) Grand theft from the person is committed when property of any value is taken from the person of another, but not by means of force or fear. (§ 487, subd. (c).) Petty theft is committed when less than $400 is taken, but not from the person of another or by means of force or fear. (§§ 487, 488.)
B. Analysis
Defendant maintains that the evidence supported instructions on grand theft person and petty theft in addition to robbery, because the evidence raised a question whether he took money from Doe by means of force or fear. He emphasizes that Doe was unaware any money was missing from her pants pocket until after she was assaulted.
Defendant concedes that substantial evidence supports his robbery conviction under two alternative scenarios: (1) based on the testimony of Doe and Fernas, he took Doe’s money from her immediate presence by force or fear either before or during the sexual assault; or (2) based on his testimony in the prior trial, Doe had a claim of right to the $100 he placed on the console in exchange for her having sex with him, and he took the $100 from Doe by force.
More specifically, he argues that the evidence supported instructions on petty theft because he may have taken Doe’s money from the floorboard of the truck, from her small black purse as it lay on the front seat of the car, or from the ground near Del Taco where Doe fell and dropped it. Any of these scenarios, he argues, supported instructions on petty theft. Defendant also argues that instructions on grand theft person were warranted because he may have taken Doe’s money from her pants pocket while she slept in her truck and before he developed an intent to assault her in connection with the uncharged sex offense. We reject these claims, because there is insufficient evidence that defendant took any money from Doe at any time without force or fear.
First, the evidence did not support instructions on petty theft, because there is no evidence that Doe dropped any money in the parking lot of the Del Taco or on the floorboard of her truck. Nor is there any evidence that she had any money in her purse. No one’s testimony or statements supported any of these scenarios. Nor did defendant claim he took Doe’s money from her purse or after she dropped it somewhere. His prior testimony showed he paid Doe $100 of his money to have sex with him, then took the $100 from Doe by force after he believed she gave him a sexually transmitted disease. And he concedes his prior testimony did not support instructions on petty theft or grand theft person.
See footnote 4, ante.
Nor did the evidence support any instructions on grand theft person. (§ 487, subd. (c).) Defendant argues the evidence showed he may have taken money from Doe’s pants pocket while she was sleeping in the back of her truck before he formed an intent to assault her. But there is insufficient evidence to support this claim. When Fernas stopped at the 7-Eleven store to buy cigarettes shortly after she stopped in Fullerton, she gave defendant $5 to buy her a pack of cigarettes, and defendant did so. At the 7-Eleven store, defendant told Fernas he did not have any money, she refused to give him any money, and defendant did not purchase anything for himself. Although defendant may have been lying when he said he did not have any money, this possibility in no way indicates that any money he may have had came from Doe’s pants pocket. And, although defendant was fondling Doe and Fernas during the ride to Corona, there is no evidence he took money from Doe’s pocket at any time between the stop at the 7-Eleven store and the Corona house. Instead, the evidence showed only that he took Doe’s money from her pants pocket immediately before or during his brutal assault on Doe.
Defendant’s reliance on People v. Reeves (2001) 91 Cal.App.4th 14 (Reeves) is misplaced. There, it was held that the evidence warranted instructions on the lesser included offense of attempted theft in addition to attempted robbery. (Id. at p. 54.) A woman named Debra awoke to find the defendant on her back and grabbing her hair and shoulder. The defendant told Debra he would not hurt her if she did not scream, but she screamed. The defendant then tied Debra up and brutally beat her. The assault ended when the defendant fled after hearing police sirens. (Id. at pp. 22-23.) Before the defendant woke Debra, he moved a jewelry box from the bathroom into the living room. In addition, a ring and gold necklace belonging to Debra’s roommate were later discovered to be missing, but were never recovered. (Id. at p. 52.)
The Reeves court said it was clear the defendant moved the jewelry box before the assault on Debra, because the defendant fled during the assault and had no chance to move the jewelry box after the assault began. Thus, the court reasoned, this was “not a case of a perpetrator who, having peacefully acquired property, uses force to retain or escape with it. [Citation.] Rather, the evidence suggests [the defendant] had the opportunity to leave peacefully with the property he gathered from Debra’s apartment, but instead he chose to wake Debra and assault her.” (Reeves, supra, 91 Cal.App.4th at pp. 52-53.) In the same vein, the court said there was no indication that the assault on Debra “was in any way motivated by an intent to steal her property,” and noted that, “[t]o support a charge of robbery, ‘[t]he wrongful intent and the act of force or fear “must concur in the sense that the act must be motivated by the intent.” [Citations.]’ [Citation.]” (Id. at p. 53.) Thus, the court concluded that the prosecution did not demonstrate a “nexus” between the movement of the property and the subsequent assault. (Id. at p. 54.) For this reason, the evidence supported instructions on attempted theft in addition to attempted robbery. (Id. at pp. 53-54.)
Defendant argues that here, as in Reeves, there is not necessarily a nexus between his use of force on Doe and his taking of money from Doe’s pants pocket. We disagree. As we have discussed, there is insufficient evidence that defendant took money from Doe’s pants pocket during the ride to the house in Corona, or at any other time before defendant began brutally assaulting Doe. In addition, Fernas saw defendant with at least $20 at the house in Corona well after they had arrived there, and after defendant had an opportunity to assault Doe. The facts of Reeves are distinguishable because there it was clear the defendant asported a jewelry box and other belongings before he assaulted and used force on the victim, Debra. Here, in contrast to Reeves, the evidence does not permit the possibility that defendant took money from Doe’s pants pocket and only later formed the intent to assault her.
Further, and as defendant points out, a robbery is continuing until the robber reaches a place of temporary safety with the stolen property. (People v. Navarette (2003) 30 Cal.4th 458, 502.) The defendant in Reeves did not reach a place of temporary safety with the asported jewelry box before he brutally assaulted Debra. Nor did defendant reach a place of temporary safety with the money he took from Doe’s pants pocket before he brutally assaulted her. Nor could he have taken Doe’s money after he assaulted her, because he immediately ran from the truck after the assault. The evidence showed only that defendant took money from Doe’s pants pocket during or immediately before he brutally assaulted her; thus, his use of force on Doe was indivisible from his taking of her money.
As defendant points out, “[t]here is a rule that taking property without force from a person found unconscious, or extracting property stealthily and without force from a conscious person who remains unaware, is not robbery. ‘“[S]uch activities as rolling a drunk, picking a pocket or snatching a purse from an unsuspecting and unresisting victim [citation] may properly bring forth a felony count of larceny from the person [citation]; but, because of the lack of physical force involved, these actions will not support any robbery charge.”’ [Citation.]” (People v. Jackson (2005) 128 Cal.App.4th 1326, 1331, quoting People v. Kelly (1990) 220 Cal.App.3d 1358, 1369.) This is because “a theft from an unconscious or sleeping person ‘does not pose the increased threat of actual or potential harm to the theft victim which the robbery statute was designed to discourage.’” (People v. Kelly, supra, at p. 1369.)
Conversely, if force is used, it makes no difference that the victim does not know he is being robbed. (People v. Jackson, supra, 128 Cal.App.4th at p. 1331.) Force is the power or energy by which the victim’s resistance is overcome. (People v. Kelly, supra, 220 Cal.App.3d at pp. 1367-1368.) “[T]he test for finding force ‘is the overcoming of resistance without the voluntary co-operation of the subject whose resistance is repressed . . . .’” (Id. at p. 1368.) For example, in Kelly, the evidence supported an inference that the defendant did not use force in taking the victim’s money, because the defendant took money from the victim’s person after the victim voluntarily got drunk and passed out. (Id. at pp. 1368-1369.) Here, however, there was no evidence that defendant took money from Doe without force, even though Doe was unaware defendant took any money from her pants pocket until after the assault. It makes no difference that Doe was unaware that money was being taken from her.
IV. DISPOSITION
The judgment is affirmed.
We concur: McKinster Acting P.J., Gaut J.
The robbery conviction and attendant great bodily injury enhancement were reversed on appeal in the nonpublished opinion of People v. Stoltie (Oct. 25, 2005, E036322); however, the aggravated assault conviction was affirmed. The robbery conviction was reversed on the grounds the trial court prejudicially erred by commenting on the evidence. Defendant does not claim that this error occurred in the present trial.
Defendant also concedes that his prior testimony that he offered to pay Doe $100 in exchange for sex supported instructions on robbery but not grand theft person or petty theft. He acknowledges that, because he admitted taking the $100 from Doe by force after he had sex with her, the jury could have found him guilty of robbery if it believed Doe had a claim of right to the $100, but could have acquitted him of robbery if it believed Doe had no claim of right to the $100.
In view of defendant’s prior testimony that he paid Doe $100 for sex, the jury was given a modified instruction on claim of right. (Judicial Council of Cal. Crim. Jury Instns. (2006-2007) CALCRIM No. 1863.) On the appeal from the judgment in the first trial, this court reversed the robbery conviction because the trial judge told the jury it was indisputable that Doe had a claim of right to the $100 defendant claimed to have given her in exchange for sex.