Opinion
C089860
06-05-2020
THE PEOPLE, Plaintiff and Respondent, v. TERRANCE BOXLEY, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 18FE013828)
Defendant Terrance Boxley was found guilty of attempted robbery of a necklace. He appeals his conviction, arguing the trial court erroneously rejected his proposed jury instruction for the lesser included offense of petty theft. Defendant believed the jury could find the taking lacked the necessary force for a robbery. We will affirm because in this case the snatching of a necklace worn by the victim involved the force required for robbery.
BACKGROUND
Defendant stole the victim's gold necklace off her neck while she was unloading groceries. She testified defendant pushed her down while ripping off the necklace. She cut her elbow, bruised her buttocks, and got a bruise and scratch on her collarbone area from where the necklace was taken. The necklace was also broken into two pieces and the necklace's pendant fell to the ground. Half of the necklace stayed on her neck but the other half was never found.
A woman witnessed at least part of the event from her car parked a few houses away. She testified she looked up from her phone after hearing screaming and saw a man run to a car. She also saw the victim getting up off the ground. The witness later identified defendant after police pulled over a car matching the description she gave. She also gave a statement to police. At trial, an officer testified the witness did not tell the officer she had witnessed anybody being pushed. Defendant was charged with second degree robbery.
The exact exchange about the witness between the prosecutor and the officer at trial was:
"Q: Okay. Now, nowhere in thatin the report that you took from her did she say that she saw anybody pushed; is that correct?
"A: Did you say 'being pushed'?
"Q: Yes.
"A: I don't recall her saying that.
"Q: She didn't say that she saw any other form of assault?
"A: No, sir.
"Q: Just the snatching of the necklace and running back to the vehicle?
"A: Correct, sir."
Defendant requested the court to instruct on petty theft as a lesser included offense of robbery. Defendant argued the jury could find he did not use more force than the incidental touching necessary to accomplish the taking as based on the witness's statement to the police she did not see defendant push the victim. After reviewing the evidence, the court denied the request determining no reasonable person could find there was not sufficient force for robbery. The court did add an attempted robbery instruction, in addition to robbery, because it was unclear what happened to the remainder of the necklace.
The jury found defendant guilty of attempted robbery and acquitted him of robbery. Defendant timely appealed.
DISCUSSION
Defendant argues the trial court committed reversible error in denying his request to instruct on petty theft based on the officer's testimony that the witness did not see defendant push the victim; the testimony was substantial evidence he did not use the requisite force for robbery. Since he was found guilty of attempted robbery, there is a reasonable probability the jury could have found he committed only theft. Defendant asserts the denial of the jury instruction also violated his rights under the federal Constitution. The People contend there was no evidence supporting a petty theft instruction but even if the court erred in not instructing, the error was harmless beyond a reasonable doubt.
Petty theft is a lesser included offense of robbery where the property was taken without force or fear. (People v. Burns (2009) 172 Cal.App.4th 1251, 1256.) The force required to elevate a theft to a robbery is a force more than an incidental touching, beyond "just that quantum of force which is necessary to accomplish the mere seizing of the property." (People v. Morales (1975) 49 Cal.App.3d 134, 139.) "The degree of force is immaterial." (People v. Jones (1992) 2 Cal.App.4th 867, 871.) "Thus, even a snatching may be robbery if it is forcible, as by tearing something attached to clothing." (2 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Crimes Against Property, § 99, p. 137.)
Courts must instruct, sua sponte, on all lesser included crimes supported by substantial evidence. (People v. Breverman (1998) 19 Cal.4th 142, 162.) Failing to instruct on supported theories "is not subject to reversal unless an examination of the entire record establishes a reasonable probability that the error affected the outcome." (Id. at p. 165.) Conversely, denying a defense's request for a lesser included offense instruction may violate the defendant's federal constitutional right to present a complete defense. (People v. Vasquez (2018) 30 Cal.App.5th 786, 792-793.)
We review de novo the trial court's failure or refusal to instruct on a lesser included offense. (People v. Cook (2006) 39 Cal.4th 566, 596.)
To take the victim's necklace, defendant pulled it off her and the resistance from her neck predictably broke the necklace into pieces, leaving her upper chest bruised. Defendant does not dispute this. Independent of whether defendant pushed the victim, taking the necklace by breaking it off her was necessarily more than the quantum of force needed to secure possession of the necklace. The trial court did not err in refusing a theft instruction because, even if there was evidence defendant did not push the victim, the force required to remove the necklace from her neck was indisputably enough to constitute a forceful taking.
DISPOSITION
The judgment is affirmed.
/s/_________
RAYE, P. J. We concur: /s/_________
ROBIE, J. /s/_________
BUTZ, J.