Opinion
E065999
09-27-2017
THE PEOPLE, Plaintiff and Respondent, v. ALASTAIR CANIDA, Defendant and Appellant.
Gary V. Crooks, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Annie Featherman Fraser and Kelley Johnson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FSB1501893) OPINION APPEAL from the Superior Court of San Bernardino County. R. Glenn Yabuno, Judge. Affirmed. Gary V. Crooks, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Annie Featherman Fraser and Kelley Johnson, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Defendant Alastair Canida appeals from judgment entered following a jury conviction for attempted robbery (Pen. Code, § 211). The trial court sentenced defendant to two years in prison. Defendant contends the trial court abused its discretion by denying his motion to reopen the case, thereby depriving him of his right to testify in his own defense. Defendant also contends there was insufficient evidence to support his attempted robbery conviction, and the trial court erred in failing to instruct the jury on the lesser included offense of attempted grand theft. We reject defendant's contentions and affirm the judgment.
II
FACTS
On June 1, 2015, defendant entered a Wells Fargo bank and, after waiting in line, approached a customer window and handed the bank teller a handwritten note. The bank teller read the note, which said, "I need $50,000 now. If I'm shot or injured we will be at war." The bank teller testified that, although she was standing behind a protective glass window, she was afraid. The bank teller testified she believed she was being robbed and feared for the safety of those on the other side of the protective glass barrier. Defendant did not display a weapon or explosive device. While pretending to get the $50,000 for defendant, the bank teller pushed the silent alarm button and whispered to coworkers, "I need help. I really need help."
The bank service manager testified that she was standing behind the counter, near the bank teller, when the bank teller pushed the alarm button. The bank service manager heard a ruckus and asked the bank teller if she was okay. She said no. The bank teller looked "frozen," "immobile," "shocked, scared." The bank service manager asked if the bank teller was being robbed, and the bank teller said, yes. The bank service manager then shouted that they were being robbed and told everyone to drop to the ground. Someone called the police. There was no audible alarm. The employees dropped to the ground but the customers remained standing in line, waiting for their turn at the counter.
When the bank service manager looked at defendant before dropping to the ground, he was standing at the counter quietly. He did not have a weapon in his hands and did not make any gestures or say anything. Defendant did not receive any money during the incident. The bank service manager did not hear defendant say anything until after the police arrived.
Officer Castro testified that he responded to a "robbery-in-progress" call. When he arrived at the subject Wells Fargo bank branch, defendant had already been detained by other officers. Defendant was handcuffed and placed in the back of Castro's car. Castro read defendant his Miranda rights and told him he was under arrest for robbery. Defendant responded, "[A]ll I did was pass them a note. Maybe if they had given me some money, but they didn't give me no money." Defendant then asked if Castro "was going to go out and arrest every kindergartner in the city for passing a note in class." Defendant added that he was out of Castro's jurisdiction and he had not committed a crime. Defendant robotically repeated, "U.S. codes dash 207" or "UD1 dash 207 without prejudice."
III
MOTION TO REOPEN THE CASE
Defendant contends the trial court abused its discretion in denying his motion to reopen the case for the purpose of testifying in his own defense. We disagree. A. Procedural Background
After the prosecution rested, the trial court asked defense counsel if he had discussed with defendant his right to testify. Defense counsel said he had done so that morning and also discussed it in the courtroom at the counsel table, during the last few minutes. Defense counsel stated that he and defendant had just concluded their discussion about defendant's right to testify.
Defense counsel then told defendant: "Mr. Canida, we're at the point in the trial now where if you want to testify, which is your right, if you want to do so, you have the absolute right to take the stand and tell your side of the story. I will assist you in doing that. You also, if you choose, have the right to remain silent and not say anything and not take the stand. And if you choose that, the Court will give the jury an instruction that they are not to consider for any reason the fact that you did not testify. [¶] Based on our conversations, it's my understanding that you do not want to testify; is that correct?" Defendant responded, "Correct. I use my right not to testify." The court then asked defendant, "So you are going to exercise your right to remain silent at this time; is that correct, sir?" Defendant replied, "Yes, sir."
The defense did not present any witnesses and rested. After the court read the jury instructions to the jury, defense counsel told the court that defendant had changed his mind and wanted to testify. Outside the presence of the jury, defendant explained to the court: "I have evidence that I have an account with the bank. I also have a check in my possession. I thought he was going to present that to the jury tomorrow or whenever. I didn't know that he was going to close out the case without presenting that to the jury that I have evidence that I have an account with the bank. I also have a check in my possession."
The court told defendant he had been given an opportunity to testify. Defendant responded: "I didn't know I had to testify to present that evidence. That evidence I thought was being brought into the case when I released my property to him and it came here to the court. If that was the case I would never have released my property to him or brought that evidence here to the court. . . . I wanted that evidence to be shown to the jury that I do have an account with Wells Fargo. And I do have a check for $2,500 in my possession." In response, the court requested that the following morning counsel present legal authority on reopening the case. The court reserved until then ruling on whether the court would allow additional testimony.
The following day, the court filed defendant's additional exhibits, which defendant wanted entered into evidence upon providing testimony laying a foundation for admissibility of the evidence. The exhibits (the four items) included (1) a $2,500 check made out to defendant, (2) a bus ticket, (3) a Wells Fargo Visa Debit card, and (4) defendant's Texas driver's license. The court described the four items as a $2,495 check dated May 28, 2015; bus tickets, with an itinerary from Los Angeles to San Bernardino on May 30th; an "instant issue" Wells Fargo debit card, with no name on the card; and defendant's Texas driver's license.
During the hearing on defendant's motion to reopen, the court requested defendant to provide an offer of proof as to his anticipated testimony and as to the new evidence he intended to present. Defense counsel stated that defendant wanted the four items entered into evidence. It was anticipated defendant would testify that he traveled by bus to San Bernardino. He went to the subject Wells Fargo bank branch where he thought he had an account. He intended to withdraw money. Defense counsel argued the four items showed that, when defendant went to the bank teller window, he did not intend to rob the bank. Rather, he wanted to withdraw money from his Wells Fargo bank account. According to defense counsel, "his testimony and the supporting documents . . . are going to be all focused on what his intent was, what his state of mind was at the time that he approached the teller window and gave them the note."
Defense counsel argued the four items were relevant to showing that he went to the bank teller window with the intent to perform legitimate bank transactions, and not to rob the bank. Citing United States v. Peterson (1st Cir. 2000) 233 F.3d 101 (Peterson), in support of reopening the case to allow defendant to testify, defense counsel explained that defendant changed his mind about testifying because he did not originally fully understand his testimony was necessary for the admission of the four items. Defense counsel estimated that defendant's testimony and cross-examination would take less than an hour. The prosecution objected to reopening the case to allow defendant to testify.
After hearing argument, the court denied defendant's motion to reopen. The court concluded Peterson, supra, 233 F.3d 101 was not on point and the four items were not relevant to the attempted robbery charge. In addition, the court stated that allowing the additional evidence and defendant's testimony would create delay, and might also require the People to present rebuttal evidence and require the court to reinstruct the jury. Defense counsel clarified that defendant wanted to testify and present the four items to show that, when he approached the teller window, he had an account there, and had adequate funds in his account to withdraw. Defendant wanted to show he intended to transact legitimate bank business. The court was not persuaded and again stated the motion to reopen was denied. B. Discussion
"In determining whether a trial court has abused its discretion in denying a defense request to reopen, the reviewing court considers the following factors: '(1) the stage the proceedings had reached when the motion was made; (2) the defendant's diligence (or lack thereof) in presenting the new evidence; (3) the prospect that the jury would accord the new evidence undue emphasis; and (4) the significance of the evidence.'" (People v. Jones (2003) 30 Cal.4th 1084, 1110, quoting People v. Funes (1994) 23 Cal.App.4th 1506, 1520.)
The first factor weighs against defendant and supports the trial court's denial of the motion to reopen. Although the motion was made within an hour after defendant rested has case-in-chief, the motion was made after defendant had told the court he did not wish testify, and after both parties rested and the jury instructions had been read to the jury. (See People v. Earley (2004) 122 Cal.App.4th 542, 546 [denial of defendant's motion to reopen and testify after both sides had rested but before the jury was instructed, not an abuse of discretion.].)
The second factor, diligence, also weighs against defendant and supports the trial court's denial of the motion. Defendant did not move to reopen the case until after both parties rested and the court had read the jury instructions to the jury. The four items defendant wanted to introduce into evidence did not constitute newly discovered evidence. Defendant revealed that the four items were available during the trial and provided to his attorney.
Defendant offered no valid justification for failing to present the evidence during the trial. Defendant asserted that he did not personally know that he would not be permitted to introduce the evidence without his testimony. The record, however, reflects that defendant and his attorney discussed defendant's right to testify and defendant provided the evidence to his attorney before resting his case. Under such circumstances, there appears to be no reasonable justification for defendant not presenting the four items and testifying before the close of evidence, or at a minimum securing a ruling on the admissibility of the four items before the defense rested and the jury was instructed. The trial court therefore was entitled to rely on defendant's lack of diligence in denying the motion to reopen. (People v. Monterroso (2004) 34 Cal.4th 743, 779.)
Both parties agree the third factor (the prospect that the jury would accord the new evidence undue emphasis) does not weigh in favor of either party.
As to the fourth factor, the significance of the evidence, this factor also weighs against defendant and supports the trial court's denial of the motion to reopen. Defendant argues the four items and his related testimony was significant in showing that his intent when he entered the bank was to conduct legitimate bank business. But none of the four items supported such an inference. None of the items were presented to the bank teller during the attempted robbery. In addition, the $2,495 check, dated May 28, 2015, was not for the amount defendant requested in his note, stating he "needed" $50,000. The Wells Fargo Visa Debit card did not have defendant's name on it. The bus tickets and defendant's Texas driver's license also had nothing to do with the attempted robbery.
Defendant requested to testify for the purpose of laying a foundation so that the four items could be admitted into evidence. But defendant did not proffer any evidence that his testimony would show that any of the four items were relevant. While a defendant has a right to testify on his own behalf, the right must be asserted expressly and in a timely fashion. (Rock v. Arkansas (1987) 483 U.S. 44, 51-52, 56-68 (Rock); People v. Bradford (1997) 15 Cal.4th 1229, 1332.) "It is true that a criminal defendant has a constitutional right to testify in his own defense. [Citation.] However, the right to testify is not absolute; it must sometimes 'bow to accommodate other legitimate interests in the criminal trial process.' [Citation.] Hence, a defendant does not have an unrestricted right to testify at any point during trial. Generally, if he wishes to testify, he must do so before he rests his case; otherwise, he can move the trial court to reopen the evidence, but the choice whether to reopen is left to the court's sound discretion. [Citation.] Such a rule serves to ensure that the trial proceeds in a fair and orderly manner, with the defendant's testimony occurring when the judge, jury, and prosecution reasonably expect it. [Citation.]" (Peterson, supra, 233 F.3d at pp. 105-106; see Rock, at p. 49; United States v. Jones (8th Cir. 1988) 880 F.2d 55, 59-60.)
In reviewing whether the court properly exercised its discretion not to reopen the evidence, "we look to whether the court properly weighed the defendant's right to testify against the need for order and fairness in the proceedings." (Peterson, supra, 233 F.3d at p. 106; see Rock, supra, 483 U.S. at p. 56.) "In short, the court must consider whether the likely value of the defendant's testimony outweighs the potential for disruption or prejudice in the proceedings, and if so whether the defendant has a reasonable excuse for failing to present the testimony during his case-in-chief." (Peterson, supra, 233 F.3d at p. 106.) "[W]hile reopening the evidence always can be expected to disrupt trial proceedings to some extent, here the disruption would have been comparatively minor." (Ibid.) Nevertheless, the trial court was at liberty to deny the motion to reopen because defendant's testimony and proposed documents were likely to be of little or no value. (Id. at p. 107.)
Here, the trial court properly weighed the defendant's right to testify against the need for order and fairness in the proceedings. In doing so, the trial court reasonably concluded the likely value of the defendant's testimony did not outweigh the potential for disruption in the proceedings. The court further reasonably concluded that defendant failed to provide a reasonable excuse for failing to present his testimony and related documents during his case-in-chief. (Peterson, supra, 233 F.3d at p. 106.) "Without such a requirement of excuse, the rule generally limiting testimony to the evidence-taking stage of a trial would hardly be a rule at all, and it would be too easy for a defendant to postpone testifying for strategic reasons until after the close of evidence." (Id. at p. 107.)
Defendant's request to testify and introduce into evidence the four items was not timely. The four items were not newly discovered or relevant, and there was no valid reason for the delay. We therefore find no abuse of discretion in denying defendant's request to reopen the case to present additional evidence, and no infringement of defendant's constitutional right to testify.
IV
SUFFICIENCY OF EVIDENCE OF ATTEMPTED ROBBERY
Defendant contends there was insufficient evidence to support his conviction for attempted robbery. He argues there was no evidence he used force or fear to obtain money from the bank teller, and the note defendant passed to the bank teller did not show a specific intent to rob. We disagree. A. Applicable Law
In assessing defendant's insufficiency of evidence challenge, this court must review the whole record in the light most favorable to the judgment to determine whether there is substantial evidence; that is, "evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] . . . The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. [Citation.] '"Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court[,] which must be convinced of the defendant's guilt beyond a reasonable doubt. '"If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment."' [Citations.]"'" (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
Defendant challenges the sufficiency of evidence of his attempted robbery conviction. Robbery is defined in Penal Code section 211 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." (Pen. Code, § 211.) "An attempted robbery requires a specific intent to commit robbery and a direct, ineffectual act (beyond mere preparation) toward its commission. [Citations.] Under general attempt principles, commission of an element of the crime is not necessary. . . . As such, neither a completed theft [citation] nor a completed assault [citation], is required for attempted robbery. [Citations.]" (People v. Medina (2007) 41 Cal.4th 685, 694; see Pen. Code, §§ 21a, 664.) B. Discussion
Defendant acknowledges that an attempted robbery conviction does not require evidence of the element of force or fear. Defendant argues, however, that evidence of force or fear was required in order to distinguish the crime of attempted robbery from the lesser included crime of attempted grand theft. Grand theft does not require evidence of force or fear. (Pen. Code, § 487.) But here there was substantial evidence of fear, as well as sufficient evidence of a specific intent to commit robbery, and a direct but ineffectual act done toward its commission. Such evidence includes defendant's note passed to the bank teller, which stated "I need $50,000 now. If I am shot or injured we will be at war."
Defendant argues this note was insufficient to establish defendant intended to commit a robbery because the note does not expressly demand any money, and there was no evidence of use of, or a threat to use, a weapon or violence. We disagree. Defendant's act of passing the note to the bank teller went beyond an act in mere preparation for committing the robbery, and conveyed a threat of violence, which reasonably induced fear in the bank teller. During the incident, defendant did not present any legitimate bank documents for withdrawal of any money, and there was no evidence he had $50,000 available for withdrawal from a Wells Fargo bank account.
It could also be reasonably inferred from the bank note statement threatening war, that defendant intended to evoke fear and coerce compliance with his request for $50,000 "now." Although defendant's note did not state what would happen if the bank teller did not hand over $50,000, the note could be reasonably construed as threatening violence if defendant did not receive the money and there was resistance.
Furthermore, even though evidence of the use of force or fear was not required for an attempted robbery conviction, there was substantial evidence of use of fear. Defendant's act of silently passing the handwritten note to the bank teller was more than sufficient to support a reasonable finding that defendant used fear to attempt to rob the bank teller. Also, the bank teller testified she believed defendant was robbing her and was afraid. The service manager testified the bank teller looked shocked, scared and frozen. The bank teller testified that, although she was standing behind protective glass, she feared for the safety of the customers, children, and employees on the other side of the glass. She said she was also fearful because of the reference in the note to "war," which evoked fear by suggesting defendant had accomplices who might bomb the bank.
The totality of the evidence demonstrated that defendant's conduct engendered both actual and reasonable fear in the bank teller. (People v. Morehead (2011) 191 Cal.App.4th 765, 778.) The evidence was therefore more than sufficient to support reasonable findings that defendant intended to rob the bank teller, and committed a direct act toward committing attempted robbery.
V
INSTRUCTION ON ATTEMPTED GRAND THEFT
Defendant contends the trial court erred by failing to instruct the jury sua sponte on the lesser included offense of attempted grand theft. We disagree. A. Applicable Law
The trial court is required to instruct the jury on all general principles of law relevant to the issues raised by the evidence. This includes instructing sua sponte on lesser included offenses if there is substantial evidence that would absolve the defendant of guilt of the greater offense but not of the lesser. (People v. Whalen (2013) 56 Cal.4th 1, 68; People v. Waidla (2000) 22 Cal.4th 690, 733. However, "'"the existence of 'any evidence, no matter how weak' will not justify instructions on a lesser included offense . . . ." [Citation.] Such instructions are required only where there is "substantial evidence" from which a rational jury could conclude that the defendant committed the lesser offense, and that he is not guilty of the greater offense. [Citations.]' [Citation.]" (Whalen, at p. 68.)
Grand theft is a lesser included offense of robbery. (People v. Ortega (1998) 19 Cal.4th 686, 694, 699.) 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." (Pen. Code, § 211.) In general, grand theft is committed by the felonious taking of money or personal property which "is of a value exceeding nine hundred fifty dollars ($950)" (Pen. Code, § 487, subd. (a)) or is property taken from the person of another (Pen. Code, § 487, subd. (a)). "'The greater offense of robbery includes all of the elements of theft, with the additional element of a taking by force or fear. [Citation.]'" (People v. Whalen, supra, 56 Cal.4th at p. 69.) If the defendant takes property from the possessor but does not use force or fear, the taking is only a theft, not a robbery. (Ibid.; People v. Brew (1991) 2 Cal.App.4th 99, 105.)
This court applies the de novo standard of review to the determination of whether the trial court erred in failing to instruct on a lesser included offense. (People v. Waidla, supra, 22 Cal.4th at p. 733.) B. Discussion
Defendant argues there was no evidence of use of force or fear because the note defendant passed to the bank teller did not threaten any consequences if defendant did not receive $50,000, and the bank teller was not vulnerable to any threat of harm because she was protected behind a glass barrier. Therefore, defendant argues the crime defendant committed was, at most, attempted grand theft, thereby requiring the court to instruct on attempted grand theft.
We are not persuaded. The evidence supports a finding of only one theft-related offense, attempted robbery. If defendant committed a crime against the bank teller, fear and intimidation were used in perpetrating the crime. As discussed above, the evidence establishes that, when defendant contacted the bank teller at the counter, he used fear and intimidation as a means of attempting to compel her to give him a large sum of money. Defendant passed the bank teller a note from which it could be reasonably inferred defendant was attempting to commit a bank robbery and threatened violence. The bank teller reasonably construed the note as a demand for $50,000, and as a threat that, if she resisted and defendant was hurt, others would join defendant in retaliating, using extreme violence ("war"). The evidence demonstrated that the bank teller was both subjectively afraid and her fear was objectively reasonable. (People v. Morehead, supra, 191 Cal.App.4th at p. 778.)
Since the evidence supports a finding of attempted robbery only, the trial court did not err in not instructing the jury sua sponte on attempted grand theft. Factually, it was an all-or-nothing situation. Defendant was either guilty of attempted robbery or he was innocent of any crime. There was no basis upon which the jury could conclude that a crime took place but there was no use of force or fear. (People v. Brew, supra, 2 Cal.App.4th at p. 105.)
VI
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: MILLER
Acting P. J. SLOUGH
J.