Opinion
NOT TO BE PUBLISHED
Superior Court County of Los Angeles No. TA081961, Gary E. Daigh, Judge
Landra Rosenthal, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec, Supervising Deputy Attorney General, Kenneth N. Sokoler, Deputy Attorney General, for Plaintiff and Respondent.
YEGAN, J.
Henry Carrillo appeals from the judgment entered following his conviction by a jury of the first degree felony murder of Antoine Butler (Pen. Code, §§ 187, subd. (a), 189), the attempted second degree robbery of Butler and Harry Martinez (§§ 664, 211), and the second degree robbery of Andres Soto. (§ 211.) He was sentenced to prison for 28 years to life.
All statutory references are to the Penal Code.
Appellant contends that the trial court failed to instruct the jury sua sponte on the lesser included offenses of grand theft and attempted grand theft from the person (§§ 664, 487, subd. (c)), as well as second degree murder. He also contends that the prosecutor committed misconduct in her opening statement and closing argument. We affirm.
Facts
Martinez, the surviving victim of the attempted robberies, testified as follows:
Martinez, Soto and Butler were walking away from a strip bar where they had been drinking. Appellant and three other men approached them. Appellant "asked if [they] had any money." Martinez said that he did not have any money. One of the suspects removed Soto's wallet from his person. Butler cursed at the suspects. While Martinez and Butler were walking away, Martinez heard at least four gunshots and "saw the bullets going through [Butler's] back." Butler fell to the ground, fatally wounded. Martinez did not see who was firing the gun.
There were inconsistencies between the testimony of Martinez and Soto, the robbery victim. Soto testified as follows:
Martinez, Soto, and Butler were approached by a man who asked for money. The man was accompanied by two or three other men. Soto handed "a stack of dollars" to them because one of the suspects had a gun Another suspect emptied Soto's pockets. Soto saw Butler talking to the suspect with the gun. It appeared that Butler "was trying to snatch the gun away." Butler was saying "Hold up, hold up, hold up." The suspect with the gun "jumped back" and started shooting at Butler.
From a photographic lineup, Soto identified appellant as the suspect who had asked for money. But at trial Soto was unable to identify appellant.
Lesser Included Offenses: Grand Theft and Attempted Grand Theft from the Person
"Robbery is the taking of personal property in the possession of another, from the person or immediate presence, and against the will, accomplished by means of force or fear. [Citation.] Where the elements of force or fear are absent, a taking from the person is grand theft, a lesser included offense of robbery. [Citations.]" (People v. Jones (1992) 2 Cal.App.4th 867, 869.) Appellant contends that the trial court erred in failing to instruct the jury sua sponte on the uncharged, lesser included offenses of grand theft and attempted grand theft from the person.
" 'We apply the independent or de novo standard of review to the failure by the trial court to instruct on an assertedly lesser included offense. [Citation.] A trial court must instruct the jury sua sponte on a lesser included offense only if there is substantial evidence, " 'that is, evidence that a reasonable jury could find persuasive' " [citation], which, if accepted, " 'would absolve [the] defendant from guilt of the greater offense' [citation] but not the lesser " [citation].' [Citation.]" (People v. Licas (2007) 41 Cal.4th 362, 366.) "[E]ven on request, a trial judge has no duty to instruct on any lesser offense unless there is substantial evidence to support such instruction. [Citation.] (People v. Cunningham (2001) 25 Cal.4th 926, 1008.)
Appellant argues that substantial evidence supports the conclusion that, in the taking and attempted taking of property from the victims, the element of force or fear was absent so that the crimes were no more than grand theft and attempted grand theft from the person. Appellant contends that the jury could have reasonably inferred that the shooting of Butler had occurred after the completion of these crimes. Therefore, appellant maintains, the jury could also have reasonably inferred that the shooting did not elevate the theft and attempted theft to robbery and attempted robbery.
We disagree. Soto testified that he had handed "a stack of dollars" to the suspects because one of them had a gun. Thus, the taking of property from Soto was accomplished by the use of force or fear and was unquestionably a robbery. The display of the gun meant that the attempted taking of property from Martinez and Butler also involved the element of force or fear. Accordingly, there is no substantial evidence that appellant was guilty only of the lesser included offenses of grand theft and attempted grand theft from the person.
Even if the initial taking and attempted taking of property had not involved the element of force or fear, the crimes would have been elevated to robbery and attempted robbery when Butler was shot. The theft, attempted theft, and shooting would have constituted a continuous course of conduct comprising an indivisible transaction. (See People v. Cooper (1991) 53 Cal.3d 1158, 1166, fn. 8 ["mere theft becomes robbery if the perpetrator, having gained possession of the property without use of force or fear, resorts to force or fear while carrying away the loot"]; Miller v. Superior Court (2004) 115 Cal.App.4th 216, 222 ["Circumstances otherwise constituting a mere theft will establish a robbery where the perpetrator peacefully acquires the victim's property, but then uses force to retain or escape with it."].)
Lesser Included Offense: Second Degree Murder
The trial court instructed the jury on first degree felony murder using robbery or attempted robbery as the underlying crime. We accept respondent's concession that, pursuant to the accusatory pleading test for lesser included offenses, second degree murder was a lesser included offense. Appellant contends that the trial court erred in failing to instruct the jury sua sponte on second degree murder. Appellant reasons: "The duty of the trial court [to instruct sua sponte on second degree murder] arises because the evidence would support a finding that [he] was guilty only of the lesser offense [of grand theft or attempted grand theft from the person]." However, as explained in the preceding section, there is no substantial evidence to support the conclusion that appellant was guilty only of these lesser offenses. Accordingly, the trial court did not err.
"Two tests have traditionally been applied in determining whether an uncharged offense is necessarily included within a charged offense - the statutory or legal 'elements' test and the 'accusatory pleading' test. 'Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former. Under the accusatory pleading test, if the facts actually alleged in the accusatory pleading include all of the elements of the lesser offense, the latter is necessarily included in the former. [Citation.]' [Citation.]" (People v. Sloan (2007) 42 Cal.4th 110, 117.)
Misconduct
Andres Soto
Appellant contends that, during her opening statement, the prosecutor committed misconduct when she stated that, after the preliminary examination, Soto had told her "in the presence of her investigator that he was never coming back to court again." Appellant objected to this statement on the ground that "the district attorney [is] testifying." The trial court overruled the objection.
"The purpose of the opening statement is to inform the jury of the evidence the prosecution intends to present . . . ." (People v. Millwee (1998) 18 Cal.4th 96, 137.) The statement in question did not constitute misconduct because it was confirmed by evidence admitted during the trial. The investigator, Deputy Sheriff Richard Tomlin, testified that after the preliminary examination the prosecutor had told Soto "that he would have to come back to court and testify when the case went to trial." Soto "became very agitated and was adamant that he was not going to come back." "Thus, the prosecutor's opening [statement] did no more than outline what the evidence would, and did, show." (People v. Cook (2006) 39 Cal.4th 566, 606.)
Appellant contends that, during closing argument, the prosecutor committed misconduct when she stated that appellant had taken "it upon himself to contact [Soto], to make comments to him, to have others make comments to him about his testimony in this case." Appellant objected that there was "no evidence" in support of the prosecutor's statement. The trial court overruled the objection.
" ' " '[A] prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom.' " ' [Citation.]" (People v. Bonilla (2007) 41 Cal.4th 313, 336-337.)
The trial court properly overruled appellant's objection because the prosecutor's statement was supported by the evidence. Soto testified that, while in a court holding cell with appellant, appellant had told him "not to testify and to say that he wasn't there." Soto also testified that he had been placed in another court holding cell with a person who had told him that "it was best if [he] just didn't say anything" about the crime. This person, identified by a deputy sheriff as Vince Gallardo, said that appellant "was facing 25 [years] to life for this." The jury could have reasonably inferred that appellant had asked Gallardo to speak to Soto about the case. Appellant told a deputy sheriff that Soto and Gallardo "needed to be separated and [he] didn't want to be held responsible."
Jose Vasquez
Jose Vasquez heard gunshots and saw several persons running away from the area where the shooting had occurred. Shortly after the shooting, deputies detained appellant and showed him to Vasquez. Vasquez "could not identify faces" and therefore was unable to "make a positive identification." But he "identified [appellant] as wearing the same clothing and being the same height and weight as the individual he saw running away seconds after hearing the gunshots." Appellant contends that, during closing argument, the prosecutor committed misconduct by suggesting that Vasquez had positively identified him.
We reject the claim of misconduct. The prosecutor never suggested to the jury that Vasquez had positively identified appellant. The prosecutor said, "Jose Vasquez stated based on the height, the weight and the clothing that he saw of one of the suspects fleeing the area he identified the defendant, Henry Carrillo." Later during argument, the prosecutor made the following statements: Appellant was "identified in the field as one of the [suspects] by height, weight and clothing description as fleeing." "Jose Vasquez says, 'I wasn't close enough to see his face, but based on his height, his weight and the clothing of the person fleeing the scene, he is one of the suspects there."
Since we conclude that the prosecutor did not engage in any misconduct, we need not consider respondent's contention that appellant waived the issue by failing to request that the jury be admonished to disregard the alleged improprieties.
Disposition
The judgment is affirmed.
We concur: GILBERT, P.J. COFFEE, J.