Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
City & County of San Francisco Super. Ct. No. 196709
Pollak, Acting P. J.
A jury found defendant Cuong Vinh Tran guilty of two counts of robbery and one count of attempted robbery. He appeals, arguing that the trial court should have instructed the jury on attempted theft as a lesser included offense of attempted robbery, and that the court erred in admitting certain hearsay statements. We conclude the trial court properly refused to instruct on attempted theft and that the hearsay statements were properly admitted as prior consistent statements. Therefore we shall affirm.
Background
Defendant was charged with committing a string of robberies and one attempted robbery against numerous individuals. The trial testimony can be summarized as follows.
Kenneth Zheng, the victim of an attempted robbery, testified that around 8:30 p.m. on January 16, 2005, he was in front of his house at 32nd Avenue and Balboa Street in San Francisco when, “[s]uddenly there was a truck pulled up, with a camper shell, and then there is a gentleman looking kind of funny. He said that I shot his friend.” The vehicle was an older model black truck which Zheng thought “looked like a Ford.” The driver’s side of the truck was approximately one foot from Zheng. The man, whom Zheng identified as defendant, asked him, “Do you know Bobby Seng?” Zheng replied that he did not, and defendant told Zheng that he “was partying with somebody and [Zheng] shot [defendant’s] friend.” Defendant was speaking “English and kind of like Cantonese with a heavy Vietnamese accent.” Zheng thought defendant’s demeanor was “hostile, threatening,” and testified that he was using “lots of foul words.” Defendant demanded Zheng’s identification. Zheng felt “[k]ind of nervous in a way because . . . in my mind I don’t want to be the one person that . . . he thinks that I shot his friend . . . and he comes to seek revenge, you know.” While Zheng and defendant were speaking, defendant shoved his hand into his sweatshirt “kind of like a gun.” On direct examination Zheng was asked, “You thought that there was a gun under his sweatshirt?” and he replied, “Yeah, in a way.” On cross-examination, Zheng admitted that he had told the police that he was “pretty calm during the incident” and that he had testified to the grand jury that he did not believe defendant had a gun. He added that he “was calm, because this is not my first time of being robbed. This is probably my third time being robbed.” Although defendant demanded his identification more than once, Zheng never gave it, or anything else, to defendant “because I am afraid that . . . once he got the I.D., then he can go into your house too. And I have my family living in the house.” “I don’t know that he got a gun or not. If I give him the i.d. and stuff like that, you know, there’s people in the house . . . . So I was scared that, you know, for the sake of my family, in a way.” Zheng observed a San Francisco 49ers decal on the truck window. Zheng recalled that defendant had a “piercing like a ball type of thing, ball type of piercing” above his left eye and that the letters and numbers on the truck’s license plate were 5GSJ999.
Davis Cheng testified that at approximately 9:00 p.m. that same evening, he was getting out of his car at 37th Avenue and Balboa Street when he “saw a truck drove very fast and parked parallel with my car, and then someone shout to me . . . to come over, and he said, ‘I recognize you. Do you know Bobby Shen in Chinatown?’ and I said ‘no.’ ”The man, whom Cheng identified as defendant, spoke in Cantonese with a Vietnamese accent and used a hostile tone. He told Cheng to “come over.” When Cheng protested, defendant said, “If you don’t come, I will shoot you.” He put his hand in his pocket, and Cheng testified that “I didn’t know whether he had a gun or not, so I just followed his order.” Defendant asked Cheng to prove that he did not know Bobby Shen and then asked for Cheng’s identification. Cheng felt that, “At that point I have no choice because I [was] scared. He has a gun. So I just followed his order . . . .” Cheng took his wallet from his pocket and defendant grabbed it and removed $160. He then drove away “very fast” and threw the wallet at Cheng.
Han Feng testified that on February 9, 2005, at approximately 11:15 a.m., he was trying to open his car at 13th Avenue and Clement Street when a pickup truck stopped about two feet from him. The man in the car called him “Kevin,” and Feng replied that was not his name. The man was speaking both English and Cantonese and insisted that Feng’s name was Kevin. Feng produced his driver’s license, and the man took it. Feng thought the man might have a gun, and he was nervous because he was holding a red envelope with money in it that his aunt had given him for Chinese New Year. Feng told the man, “I don’t have [much] cash. I have only red envelope, just like this $20 bill. That’s all I have today. . . . [¶] But he didn’t believe it. He just . . . grabbed my wallet.” The man showed Feng “a big hammer,” about two and a half feet long, with a wooden handle. After the man took Feng’s money he drove away. Feng identified defendant as the assailant in a photographic lineup, but was unable to identify him at trial.
Wu Shao-Wei testified that on March 16, 2005, at around 8:15 p.m., at Second Avenue and Clement Street, he was robbed by a man in a truck, whom he identified at trial as defendant. Defendant spoke Cantonese with a heavy Vietnamese accent and said, “[d]on’t be that conceited,” before Wu had spoken to him. He was “very hostile” and told Wu, “Don’t move,” while making a motion that suggested to Wu that he had a weapon. Wu was “very scared.” Defendant directed Wu to come to the driver’s side of the car and he complied because defendant threatened to shoot him. Defendant “grabbed my gold necklace from my neck . . . then asked me to show him my I.D. After I gave it to him, he told me, ‘don’t move.’ ” He “took my money out and then returned the wallet back to me.” He took approximately $500 and “a few hundred dollars of Hong Kong dollars, and $200 of” Chinese money.
Defendant was charged by grand jury indictment with the attempted second degree robbery of Kenneth Zheng (count one)) (Pen. Code, §§ 664, 212.5, subd. (c) ), alleged to be a serious felony within the meaning of section 1192.7, subdivision (c)(19); and three counts of second degree robbery, of Davis Cheng, Han Feng, and Shao Wei Wu, (§ 212.5, subd. (c)), with allegations that the crimes were serious felonies and, with regard to Feng, that defendant used a deadly weapon in commission of the crime (§ 12022, subd. (b)(1). The indictment also alleged that defendant had suffered two prior serious felony convictions (§ 667, subd. (a)) and two prior “strike” convictions (§ 667, subds. (d), (e)), one of which was later stricken at the request of the district attorney. Defendant pled not guilty to the charges and denied the allegations.
Further unspecified statutory references are to the Penal Code.
Section 211 defines robbery as “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.” Section 212.5, subdivision (c) states that any robbery not described by subdivisions (a) or (b) (robberies performed in specific enumerated circumstances) is robbery in the second degree.
A jury found defendant guilty of second degree robbery of Cheng and Wu and of attempted second degree robbery of Zheng. The jury found defendant not guilty of any offense with respect to Feng. The trial court found the prior conviction allegations to be true and sentenced defendant to the midterm of three years for one second degree robbery, doubled to six years because of the prior conviction, a consecutive one-year term for the second count of second degree robbery, doubled to two years because of the prior conviction, and a consecutive eight-month term for the attempted second degree robbery, doubled to 16 months because of the prior conviction. Defendant was also sentenced to two consecutive five-year terms for the prior serious felony enhancements, for a total sentence of 19 years and 4 months in prison. Defendant timely appealed.
Discussion
Jury instructions
Defendant requested that the jury be instructed that grand theft is a lesser included offense as to all of the counts in the indictment. Grand theft is a lesser included offense of robbery because the latter includes the added element of force or fear. (People v. DePriest (2007) 42 Cal.4th 1, 50; People v. Bordelon (2008) 162 Cal.App.4th 1311, 1319.) Over the prosecutor’s objection, the trial court gave the requested instruction for the three counts of second degree robbery, but for reasons not explained on the record did not instruct the jury on the lesser included offense of attempted grand theft with regard to the count of attempted second degree robbery.
The jury was instructed, “If you are not satisfied beyond a reasonable doubt that the defendant is guilty of the crimes charged, namely, one count of attempted robbery and three separate counts of robbery, you may nevertheless convict the defendant of any lesser included crime if you are convinced beyond a reasonable doubt that the defendant is guilty of the lesser included crime. [¶] Grand theft from the person is a felony in violation of section 487, subdivision (c) of the Penal Code. It is a lesser included offense within the crime of robbery as charged in counts II, III and IV of the indictment. [¶] Thus, you are to determine whether the defendant is guilty or not guilty of the crimes charged in counts two, three and four or any lesser crime.”
The Attorney General defends the trial court’s refusal to give the requested instruction as to count one by arguing that the actual use of fear or force is not necessary for the commission of an attempted robbery. (See People v. Vizcarra (1980) 110 Cal.App.3d 858.) That may be true, but, nonetheless, an intent to use force or fear is necessary to establish the attempt (id. at p. 863; People v. Dillon (1983) 34 Cal.3d 441, 453). Without that intent one who has taken the property of another may still be guilty of theft. Were the record sufficient to support a finding that defendant attempted to unlawfully take property from Zheng but without intending to use force or fear, the failure to have included count one within the instruction on the lesser included offense would have been error. However, that predicate was not established. “[T]he existence of ‘any evidence, no matter how weak’ will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is ‘substantial enough to merit consideration’ by the jury. [Citations.] ‘Substantial evidence’ in this context is ‘ “evidence from which a jury composed of reasonable [persons] could . . . conclude [ ]” ’ that the lesser offense, but not the greater, was committed.” (People v. Breverman (1998) 19 Cal.4th 142, 162.)
The Attorney General also argues that defendant did not request this instruction for the count of attempted second degree robbery. The written motion states, “Defendant request[s] CALCRIM 1800, a violation of Penal Code section 487(c), as a lesser included offense of 212.5. . . . [¶] . . . [¶] [T]he evidence presented during the course of this case supports an inference that the incidents constituted grand larceny rather than robbery.” At the hearing on the motion, the parties explicitly argued about whether this instruction should be given on the first count as well.
“ ‘The extent of the victim’s fear “do[es] not need to be extreme . . . .” ’ [Citation.] ‘[T]he fear necessary for robbery is subjective in nature, requiring proof “that the victim was in fact afraid, and that such fear allowed the crime to be accomplished.” ’ [Citation.] ‘Actual fear may be inferred from the circumstances, and need not be testified to explicitly by the victim.’ [Citation.] ‘ “ ‘Where intimidation is relied upon, it [can] be established by proof of conduct, words, or circumstances reasonably calculated to produce fear.’ ” ’ ” (People v. Bordelon, supra, 162 Cal.App.4th at p. 1319.)
Defendant urges comparison with People v. Brew (1991) 2 Cal.App.4th 99. In that case, the defendant walked behind the counter at a drug store and took money from the register. The store clerk who was at the register testified that “[a]s she was placing the money into the drawer, appellant ‘came inside’ the register area. Scared, [she] moved away from the register. Appellant then lifted the register drawer and confiscated money, checks and credit card charge slips from underneath the drawer. In the process of doing this, he said nothing to [the clerk]. Nor did he touch her.” (Id. at p. 103.) The defendant argued that the court had erred by instructing the jury only on robbery and not on the lesser included offense of grand theft. The appellate court agreed and reversed, holding that the trial court was required to instruct on the lesser offense. “[T]here is sufficient evidence to sustain a finding that appellant’s offense as against [the clerk] was committed through use of fear or intimidation. However, arguably, the evidence would support a finding that the offense was committed without these elements being present. In his defense at trial, appellant argued strongly against a finding of fear or force. In the case of [the clerk], defense counsel told the jury: ‘She communicated to you that she was scared. But is it the type of force or fear required that the People have to prove beyond a reasonable doubt, a 211, or is it the shock of somebody reaching and making an unexpected movement toward the cash register drawer?’ It is this question which was imperative for the jury to determine on count two. An instruction on grand theft by larceny would have insured that the jury confronted it head-on.” (Id. at p. 105.)
Here, the evidence does not reasonably support the interpretation that defendant engaged in an attempted theft without using or intending to use force or fear. Defendant’s use of intimidation was established by his conduct, the words he used and the circumstances of the crime. The only evidence concerning the incident was from Zheng, who testified that defendant’s demeanor was hostile and threatening, that defendant accused him of shooting his friend, “demanded” his identification, and made gestures suggesting he was carrying a gun. Although Zheng testified that he remained relatively calm, he said he did so because he had been the victim of previous robberies. He testified unequivocally that he was scared for his family’s safety if he were to turn over his identification to defendant. These facts distinguish the case from Brew, where the defendant said nothing to the clerk and there was no evidence that his conduct was intimidating. Here, if there was an attempted taking, defendant unquestionably intended to accomplish the taking by the use of fear. The court did not err by refusing to instruct on the lesser offense of attempted theft.
Hearsay
Defendant also argues that the trial court erred by permitting a police officer to testify on redirect examination to hearsay statements that were offered to refute implications of his cross-examination.
On direct examination, Inspector John Peterson of the San Francisco Police Department testified about his interviews with the victims. He spoke with Zheng, who gave him the truck’s license plate number as 5GSJ999. Upon further investigation, Peterson discovered that the vehicle associated with that license plate was a silver Toyota van owned by a Spanish-speaking man who was not defendant. Peterson concluded that this was not the vehicle involved in the robberies because it did not fit the victims’ description of the vehicle. In speaking with another police officer Peterson learned that a car that was suspected of having been involved in robberies in the Richmond district had the license plate number 5GSJ993, that of defendant’s vehicle.
Peterson showed a photograph of defendant to Mei who “immediately” identified defendant as the man who had robbed him. He spoke with Feng, who also identified defendant in the photo array. Zheng “also immediately went to the photo of [defendant] and said that ‘that was the person that tried to rob me.’ ” Cheng also picked defendant out of the photo array as the person who robbed him.
During cross-examination, defense counsel asked, “During the course of your interview with Mr. Zheng, . . . he actually told you that he was not intimidated by the suspect; correct?” Peterson answered, “He made a statement to that effect, yes.” Defense counsel also asked, “During the course of your interview with Mr. Cheng, he didn’t mention a pierced eyebrow or any tattoos to you . . . correct?” Peterson answered, “Correct.” He asked if Feng had mentioned the eyebrow piercing, mustache or goatee, and Peterson agreed that he had not. Feng also told Peterson that there was no shell on the back of the truck, and did not mention any stripes or stickers on the vehicle. Defense counsel also elicited from Peterson that Wu did not recall a mustache, beard or goatee, or any piercings or tattoos on the man who robbed him.
On redirect, the prosecutor asked if Zheng mentioned that the robber drove “a Ford Bronco or pickup truck” and Peterson said he did, and also that Zheng told him that “the suspect spoke in Cantonese and appeared to be Vietnamese” and mentioned the name Bobby Seng. Zheng told Peterson that he had been scared and that the attacker “simulate[ed] a gun in the sweatshirt,” and that he was “threatened and [afraid] he would be shot right now by the robber.” The prosecutor went through other details that Zheng had told Peterson about the incident: that there was “a sticker on the back window with the letter[s] S.F. inside a circle,” that the robber had a “stocky build,” a “piercing . . . with a stud over the left eye,” “a slight goatee,” and that he was wearing a gray sweatshirt. The prosecutor also went over Peterson’s interview with Cheng and elicited testimony that Cheng had told him that “the robber threatened to shoot him,” that he “mentioned . . . Bobby from Chinatown,” asked for Cheng’s identification, simulated a gun, “grabbed the wallet out of [Cheng’s] hand” and threw it back at him, and that the suspect spoke in Cantonese. Peterson testified that Feng had told him the robber referred to him as “Kevin” and demanded his driver’s license, and that he spoke in both English and Cantonese. Peterson testified that Wu had told him “the suspect said he . . . saw Mr. Wu’s cousin John in Chinatown the day before,” and asked for Wu’s identification, that “the robber grabbed his chain from around his neck,” and “that he was posturing like he had a gun hidden behind the door.” Wu described the robber to Peterson as “38 to 40, Cantonese with a Vietnamese accent . . . [and] a chubby build.” Finally, Peterson testified that Mei told him “something about a Bobby Shen and whether Mr. Mei was down in Chinatown,” that the robber “indicated he would shoot Mr. Mei,” and “acted as if he had a weapon but that Mr. Mei couldn’t see one.” The robber “asked for his identification,” and “spoke Cantonese with a Vietnamese dialect,” had “a chubby build” “and drove a possible Ford Bronco, blue or black, of ’95 or earlier vintage.”
Defendant objected to the redirect testimony, citing Evidence Code section 352. Having failed to object on the ground of hearsay, the objection was waived. (See, e.g., People v. Wheeler (1992) 4 Cal.4th 284, 300 [“defendant waived any hearsay claim by making no trial objection on that specific ground”].) Even if the objection were preserved, the trial court did not err in admitting the evidence. “Under Evidence Code section 791, subdivision (a), a witness’s prior consistent statements are generally inadmissible to support his or her trial testimony unless evidence of a prior inconsistent statement has already been introduced to impeach that witness, and the consistent statement was made before the inconsistent one.” (People v. Cook (2007) 40 Cal.4th 1334, 1357, italics omitted.)
Evidence Code section 791 provides: “Evidence of a statement previously made by a witness that is consistent with his testimony at the hearing is inadmissible to support his credibility unless it is offered after: [¶] (a) Evidence of a statement made by him that is inconsistent with any part of his testimony at the hearing has been admitted for the purpose of attacking his credibility, and the statement was made before the alleged inconsistent statement; or [¶] (b) An express or implied charge has been made that his testimony at the hearing is recently fabricated or is influenced by bias or other improper motive, and the statement was made before the bias, motive for fabrication, or other improper motive is alleged to have arisen.”
In People v. Randle (1992) 8 Cal.App.4th 1023, a robbery victim testified that he had trouble identifying the defendant at a lineup because the defendant’s hairstyle had changed from the time of the robbery. On cross-examination “he admitted that at the preliminary hearing he was unable positively to identify” the defendant. (Id. at p. 1038.) The court held that the trial court had properly admitted the testimony of the investigating police officer, who stated the victim had told her at the time of the lineup that he was uncertain about his identification because of the change in hairstyle. The court reasoned that the admission on cross-examination that the victim had not been able to identify the defendant at the preliminary hearing “subjected [the victim] to the implied charge that his positive identification at trial was recently fabricated and that his statement at trial that appellant had changed his hairstyle was a weak and belated effort to explain why he was unable positively to identify appellant previously. In the face of such a charge the prosecution was entitled to elicit testimony from the investigating officer that [the victim] had told her prior to trial and prior to the preliminary hearing that he had difficulty identifying appellant at the line-up because of the change in hairstyle, thus dispelling the contention that his testimony at trial was recently fabricated.” (Ibid.)
Similarly, in Cook a prosecution witness testified that he had seen the victims on either Thursday or Friday but could not remember which. The defense produced testimony of a police officer that several days after the crime the witness told him he had seen the victims on Friday. The court held that it was proper to admit the testimony of a second officer, who testified that he had interviewed the witness before the first officer and the witness had told him he had seen the victims on Thursday or Friday but could not remember which. (People v. Cook, supra, 40 Cal.4th at p. 1357; see also 3 Witkin, Cal. Evidence (4th ed. 2000) Presentation at Trial, § 366, p. 453 [noting that Evid. Code § 791, subd. (a) codified expansions on previous limitations to admission of prior consistent statements, “allowing proof of a prior consistent statement of a witness when ‘[e]vidence of a statement made by him that is inconsistent with any part of his testimony at the hearing has been admitted for the purpose of attacking his credibility’ ”].)
Defendant argues that the statements he elicited on cross-examination were not intended to question the credibility of the victims’ testimony. But because the cross-examination brought out inconsistencies between their statements to Peterson and their trial testimony, the jury might reasonably question the reliability of their identifications, which is to say their credibility. The prosecution was entitled to introduce the victims’ prior consistent statements to rehabilitate their credibility.
Disposition
The judgment is affirmed.
We concur: Siggins, J. Jenkins, J.