Opinion
A150969
10-10-2018
THE PEOPLE, Plaintiff and Respondent, v. OMAR J. BREEDLOVE, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco City and County Super. Ct. No. SCN226812)
Omar J. Breedlove appeals from convictions of robbery and inflicting injury on an elder. He contends the evidence was insufficient to support the robbery conviction and the jury instructions on the elder abuse count improperly lightened the prosecution's burden of proof. We affirm.
BACKGROUND
The incident resulting in appellant's convictions occurred on November 19, 2017, as 67-year-old Larraine Ewing and her 94-year-old mother, Irene Lach, were about to cross Market Street in the Civic Center area of San Francisco. Lach was walking with a cane in her right hand and holding onto Ewing's right arm with her left; Ewing was holding an umbrella open over them with her right hand and had both of their purses in the crook of her left arm, held against her chest under her left arm. Ewing's purse was on top of Lach's, and her cell phone was in a pocket of the purse with the top edge of the phone visible. Ewing suddenly felt something pull on her left arm that "pulled me to the left," and she realized her purse was being pulled. The pulling did not cause her to move her arm or lose hold of the purses; it "[j]ust pulled me to the left side." Ewing saw a man with his back to her, starting to head away, and "it just dawned on me he had tried to grab something from my purse." She yelled at him, he turned and she saw her phone, which was in a distinctive bright pink case, in his hand. She grabbed his backpack and he "struggled out of it and took off." Ewing then realized that Lach was on the ground, having fallen "because when he pulled me to the left she let go of my right arm and lost her balance."
Lach had fallen on her right side, her glasses were on the ground and there was blood on the side of her nose. Her right knee quickly began to swell and turn black and blue, and over the next days her foot and toes also became swollen and bruised. Lach testified that she had bruising on her right arm and on her right leg, from her hip to her toes, and at the time of trial she was going to therapy for her hip.
Appellant was charged with second degree robbery (Pen. Code, § 211) (Ewing's cell phone, count 1); elder abuse likely to cause great bodily injury (§ 368, subd. (b)(1)) (Lach, count 2), one count of grand theft person (§ 487, subd. (c)) (Ewing's cell phone, count 3), and one count of attempted second degree robbery (§§ 664, 211) (Ewing's purse, count 4). Count 3 was subsequently dismissed at the request of the prosecution, as grand theft was a lesser included offense to count 1. The jury found appellant guilty of robbery and elder abuse likely to cause great bodily harm or death as charged in counts 1 and 2, not guilty of attempted robbery as charged in count 3, and not guilty of the lesser included offense of attempted petty theft.
Further statutory references will be to the Penal Code. --------
Following the denial of his motion for a new trial, appellant was sentenced to the midterm of three years in prison on count 1 and a concurrent 141 days in county jail, with credit for 141 days of time served, on count 2. This timely appeal followed.
DISCUSSION
I.
Appellant contends the evidence was insufficient to support the robbery conviction because it did not establish that he employed force beyond that necessary to remove Ewing's cell phone from her purse. "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." (§ 211.) Absent the element of force or fear, the taking of property from the person of another is grand theft. (§ 487, subd. (c).) "To establish force for the purpose of a robbery conviction, 'something more is required than 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.) But the degree of force need only be sufficient to overcome the victim's resistance. (People v. Clayton (1928) 89 Cal.App. 405, 411.)" (People v. Mullins (2018) 19 Cal.App.5th 594, 604.)
There can be a fine line between larceny and robbery in a purse snatching case. The question before us is only whether substantial evidence supports the jury's conclusion that the element of force was established. For example, in People v. Lescallett (1981) 123 Cal.App.3d 487, 491-492, the victim testified that she saw someone running toward her and suddenly " 'felt a purse being snatched from my hand' "; asked whether she was afraid or frightened when this happened, she said she was frightened. Noting that it was best to leave to the jury the question whether sufficient force was used to make a purse snatching robbery, Lescallett upheld the robbery conviction because the jury could reasonably have concluded the purse was taken "by 'force or fear,' or both." (Ibid.)
Appellant attempts to minimize the offense in the present case by arguing that the entire incident lasted only a matter of seconds, Ewing did not realize someone had taken her phone until after she perceived the pulling sensation, and she was not forcibly pulled to the left but rather turned after feeling the tug on her purse. Appellant acknowledges that Ewing testified she was pulled to the left, but maintains that she subsequently "clarified" that her purse did not move from her arm, she did "respond or resist the pulling," and "it took 'a couple of seconds' from when she felt the pulling sensation to the time . . . she turned" and saw appellant.
Appellant is correct that Ewing testified she did not consciously pull in the other direction and her purse remained on her arm. We disagree, however, with his assertion that this means Ewing did not resist, and the only force used was that necessary to remove the cell phone from the pocket of her purse. Ewing never testified that she "turned" after feeling the pulling sensation; the clear import of her testimony as a whole was that she looked and saw appellant with her phone as a result of being "pulled" to the left. The movement was sufficient to cause Lach to lose hold of Ewing's arm and fall to the ground, sustaining significant injury. It is apparent that appellant did not simply employ the force needed to remove the phone from Ewing's purse.
Further, it is abundantly clear that when Ewing realized appellant had taken her phone, she attempted to stop him and he forcibly avoided her efforts. "The crime of robbery is a continuing offense that begins from the time of the original taking until the robber reaches a place of relative safety." (People v. Estes (1983) 147 Cal.App.3d 23, 28; People v. McKinnon (2011) 52 Cal.4th 610, 686-687.) For this reason, " '[a] defendant who does not use force or fear in the initial taking of the property may nonetheless be guilty of robbery if he uses force or fear to retain it or carry it away in the victim's presence.' " (McKinnon, at p. 686.) Ewing testified that she grabbed appellant's backpack and he "struggled" out of it and ran. While she said at another point that he "slipped out of it," a witness who saw the incident as she was crossing Market Street testified that she saw "a struggle" in which a man was "kind of grappling with a woman and there was another woman on the ground.," with their arms "interlocked kind of struggling with something" before he "managed to, like, pull away from her and she just kind of let it go."
The evidence supports the jury's conclusion that this was not a simple pickpocketing but rather a forcible taking.
II.
With respect to the count of elder abuse, appellant argues that the trial court erred in instructing the jury on causation pursuant to CALCRIM No. 240 because causation was not at issue, and that this instruction lightened the prosecution's burden of proof.
The jury was instructed on the elements of the offense pursuant to CALCRIM No. 830 as follows: "The defendant is charged in Count Two with elder abuse likely to produce great bodily harm or death in violation of Penal Code section 368(b)(1). [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant willfully caused Irene Lach to suffer unjustifiable physical pain or mental suffering; [¶] 2. The defendant caused Irene Lach to suffer or be injured under circumstances or conditions likely to produce great bodily harm or death; [¶] 3. Irene Lach is an elder; [¶] and [¶] 4. When the defendant acted, he knew or reasonably should have known that Irene Lach was an elder[.] [¶] Someone commits an act willfully when he or she does it willingly or on purpose. [¶] Great bodily injury means significant or substantial injury. It is an injury that is greater than minor or moderate harm. [¶] An elder is someone who is at least 65 years old. [¶] An elder does not need to actually suffer great bodily harm. But if an elder does suffer great bodily harm, you may consider that fact, along with all the other evidence, in deciding whether the defendant committed the offense."
The challenged instruction on causation stated: "An act causes unjustifiable physical pain or mental suffering if the unjustifiable physical pain or mental suffering is the direct, natural, and probable consequence of the act and the unjustifiable physical pain or mental suffering would not have happened without the act. A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all the circumstances established by the evidence. [¶] There may be more than one cause of unjustifiable physical pain or mental suffering. An act causes unjustifiable physical pain or mental suffering, only if it is a substantial factor in causing the unjustifiable physical pain or mental suffering. A substantial factor is more than a trivial or remote factor. However, it does not have to be the only factor that causes unjustifiable physical pain or mental suffering."
Appellant argues that causation was not relevant in the present case because the jury did not need to find that Lach was in fact injured, only that appellant willfully acted in a manner likely to produce great bodily injury or death. Instructing on natural and probable consequences, appellant maintains, reduced the prosecution's burden of proof on the element of appellant's knowledge that his actions might cause unjustifiable pain.
Elder abuse likely to produce great bodily harm or death is a general intent crime. (People v. Thiel (2016) 5 Cal.App.5th 1201, 1213 (Thiel).) " 'General criminal intent thus requires no further mental state beyond willing commission of the act proscribed by law.' " (Id. at p. 1209, quoting People v. Sargent (1999) 19 Cal.4th 1206, 1214-1215 (Sargent).)
Appellant's argument that causation was not at issue in the present case is difficult to comprehend. Appellant could not have been convicted without evidence that he committed an act that caused injury to Lach. The challenged instruction addressed the fact that appellant did not directly inflict force upon Lach; the question was whether his forcible act against Ewing caused Lach's injury. CALCRIM No. 240 instructed the jury that Lach's injury was a "direct natural and probable consequence[]" of appellant's act in taking Ewing's cell phone if "a reasonable person" would have known it was "likely to happen if nothing unusual intervened." This instruction did not alter the requirement that the prosecution prove appellant acted willfully—that he committed the act of taking the phone "willingly or on purpose." It clarified that if appellant willfully took Ewing's cell phone and the circumstances were such that a reasonable person would have known this act was likely to cause Lach "unjustifiable physical pain or mental suffering," appellant could be found to have caused Lach's injury.
Appellant acknowledges that the danger to Lach "might well have been apparent" from the way the women were walking, with Ewing supporting her mother. He argues, however, that he could not be convicted on the basis of a finding that the injury to Lach was a natural and probable consequence of his act in taking Ewing's phone, only on findings that he "willfully used force and other means to willfully cause Lach to suffer." (Italics added.) First, the jury instructions did not permit a finding of guilt solely on finding Lach's injury was a natural and probable consequence of taking Ewing's phone; the jury could find appellant guilty only if it found he "willingly" or "on purpose" took the cell phone "under circumstances" or conditions "likely to produce great bodily harm or death." In other words, the challenged instruction addressed only the issue of causation; it did not relieve the prosecution of any burden regarding proof of intent. Second, to the extent appellant's insertion of the second iteration of "willfully" into his description of the required element of the offense is meant to suggest a requirement of proof that he caused Lach's injury on purpose, it erroneously implies a need for something more than general criminal intent. "The word 'willfully,' when applied to the intent with which an act is done or omitted, implies simply a purpose or willingness to commit the act, or make the omission referred to. It does not require any intent to violate law, or to injure another, or to acquire any advantage." (§ 7.) As elder abuse under section 368 is not a specific intent crime, there is no requirement that the prosecution prove appellant acted with intent to, or for the purpose of, causing injury to Lach. (See Thiel, supra, 5 Cal.App.5th at p. 1210.)
Citing People v. Lara (1996) 44 Cal.App.4th 102, 105, appellant argues that the jury could find the "willfulness" required for conviction of elder abuse only if there was proof he had knowledge that his act would likely lead to the elder's injury and committed the act despite this knowledge. His reliance upon Lara is misplaced, as Lara was simply discussing a situation, not relevant in the present case, in which evidence of something short of general intent—recklessness—could serve to establish the required criminal intent. Lara explained that "if an act ' "inherently dangerous to others" . . . [is] done "with conscious disregard of human life and safety," the perpetrator must be aware of the nature of the conduct and choose to ignore its potential for injury, i.e., act willfully.' " (Lara, at pp. 108-109, quoting People v. Colantuono (1994) 7 Cal.4th 206, 220.) In other words, in the absence of evidence that a defendant acted "on purpose," evidence that the defendant committed an inherently dangerous act with conscious disregard of human life and safety is sufficient to establish general criminal intent. This point was relevant in Lara because the trial court had instructed on criminal negligence, which requires a " 'lesser' " mental state than general intent in that it is measured by an objective, reasonable person standard that would allow jurors to convict without proof that the defendant "intended to commit the act." (Lara, at p. 108.)
Here, by contrast, there was no evidence that appellant acted unintentionally when he took Ewing's cell phone, and nothing in Lara suggests a requirement that he intended to cause harm to Lach. In the statutory definition of the crime—willfully causing unjustifiable physical pain or mental suffering to a person the defendant knows or reasonably should know to be an elder "under circumstances or conditions likely to produce great bodily harm or death"—the quoted language " 'states the context in which the subdivision applies' " and does not require "additional proof of intent." (Thiel, supra, 5 Cal.App.4th at p. 1213.) There is ample evidence that appellant acted willfully—willingly and on purpose—in taking Ewing's phone, that he did so "under circumstances or conditions likely to produce great bodily harm or death," and that his act caused Lach to suffer "unjustifiable physical pain or mental suffering." (§ 368, subd. (b)(1).)
DISPOSITION
The judgment is affirmed.
/s/_________
Kline, P.J. We concur: /s/_________
Stewart, J. /s/_________
Miller, J.