Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F10038
DAVIS , J.
A jury convicted defendant Lamont Carter of robbery. The trial court sustained recidivist allegations that doubled the imposed middle prison term and added five years to it.
The defendant contends that evidence of the victim’s “reasonable” fear is insufficient (as is evidence of force with respect to one item of the victim’s property); that the court erred in failing to instruct on “reasonable” fear on its own motion; and that the court improperly instructed on the lesser offense of grand theft rather than some species of petty theft because his appropriation of the victim’s property was not theft from the victim’s person. We shall affirm.
Facts
On a Sunday afternoon in November 2005, the 17-year-old victim was waiting at the 16th Street light rail stop for a train to Rancho Cordova. There were about three other people waiting some distance away. The defendant approached him and offered to give him a ride for $5. The defendant was slightly shorter than the victim but with a more solid build, and was 27 years old. The victim said he did not have any cash. The defendant asked if he could use the victim’s cell phone. After the victim handed it to him, however, the defendant simply stood there without using it. When the victim asked if he were going to place a call, the defendant told him to “hold on” and gestured the victim away from him.
In reporting the crime, the victim had believed the defendant was taller than him.
When the train to Rancho Cordova arrived, the victim got on. The defendant only put a foot on a step without climbing up. The victim asked the defendant to return the cell phone. Defendant said the victim could have it back after giving him money. The victim got off the train and offered him $5. The defendant noticed that the victim had more than $5 in his wallet and demanded all of it for the return of the cell phone. There was $19 in the wallet.
In closing argument, the prosecutor cited this point as the commencement of the robbery.
At this point, the victim “was feeling pretty scared, that [the defendant] could possibly have a weapon on him and that I could get hurt if I [didn’t] do what he [said].” The defendant did not seem forceful but was getting more determined to obtain money from the victim; he was talking more loudly and “fearly [sic]” to the victim. The victim felt “the only way I could get away from there without being hurt was to give him what he wanted.”
The victim handed the cash and the wallet to the defendant, who returned the wallet after looking through the cards. He now demanded an additional $20 from the victim. The victim held out his messenger bag with its flap open to show him that he did not have any more money. The defendant rooted around through it and removed a small umbrella, announcing that “‘the umbrella is mine’” before putting it in his pocket. According to the victim, “[a]t that point I was more scared, and I was more anxious to get away from him than I was worried about my possessions.”
The defendant motioned for the victim to follow him across the tracks. No one else was waiting there. He asked how the victim could get more money. The victim suggested that he could call his girlfriend and ask her to bring it. The defendant took the cell phone out of his pocket. When the victim tried to take the phone from his hand to place a call, the defendant tightened his grip and reasserted that the victim would not get it back until he gave the defendant more money.
A train heading the other direction approached the stop. Although still frightened, the victim unsuccessfully attempted to grab the phone out of the defendant’s hand, then jumped on the train. When he saw that the defendant had followed him onto the train with a “mean look,” the victim quickly got off just before it departed. He fled up 16th Street and across Fremont Park to a coffee shop, where he was able to summon the police. When the officer arrived, the victim was still trembling. Even though there had not been any weapon or threats involved, he had been “absolutely” afraid of the defendant when he surrendered his property.
An officer hearing a broadcast about the incident saw the defendant walking away from the Alkali Flat stop. He detained him. The victim, brought to the scene, identified him as the person who had taken his property. The defendant still had the property on his person.
Discussion
I
Robbery is a “felonious taking of personal property in the possession of another, from [the other’s] person or immediate presence, and against his will, accomplished by means of force or fear.” (Pen. Code, § 211.) “The fear mentioned in Section 211 . . . [is t]he fear of an unlawful injury to the person or property of the person robbed . . . .” (Id., § 212, subd. (1).) The court accordingly instructed the jury that the People must prove that the defendant “took property that was not his own . . . from another person’s possession and immediate presence . . . against that person’s will” through the employment of “force or fear to take the property or to prevent the person from resisting,” the fear being “of injury to the person himself.” The jury’s attention was therefore focused on whether the defendant took felonious action (i.e., with an intent to steal (People v. Lain (1943) 57 Cal.App.2d 123, 131)) that had the result of causing the victim to part with his property against his will out of fear of injury. In a contention that runs through a number of arguments in the defendant’s brief, he asserts that in determining whether the felonious taking was against the will of the victim, a jury must assess the resulting fear on both an objective and subjective basis.
In his reply brief, the defendant asserts that the People’s failure to address this argument directly should be taken as a concession. The defendant does not provide any authority that this court is bound to accept any such improvident implicit concession on the People’s part.
The defendant does not cite any case addressing this issue expressly. Contrary to the jurisprudential maxim that decisions are authority only for issues explicitly considered (Honey Baked Hams, Inc. v. Dickens (1995) 37 Cal.App.4th 421, 428 (Honey Baked Hams)), he relies on language from cases that simply employ the term “reasonable” while evaluating whether a robbery victim was fearful.
Our venerable case of People v. Borra (1932) 123 Cal.App. 482, 484-485 (Borra), was concerned only with whether the element of use of fear is established if a victim testifies that he was not afraid when he surrendered his money (though admitting that the presence of a firearm motivated him to take this action). We concluded that even in the face of this disclaimer, there was sufficient evidence to support the element (as one ordinarily does not surrender money to a stranger absent coercion). We cited a text on the point that even in the absence of proof of actual fear, it may be inferred where reasonable from all the circumstances of the offense. (This is the customary limitation on a trier of fact’s power to draw an inference, as inferences must have a reasonable basis as a matter of law. (California Shoppers, Inc. v. Royal Globe Ins. Co. (1985) 175 Cal.App.3d 1, 44-45.)) The case did not suggest that a trier of fact must find that a victim’s fear was objectively reasonable in addition to finding actual fear. People v. Renteria (1964) 61 Cal.2d 497, 499, involved a similar situation, and cited our reasoning in Borra with approval in concluding that a claim of bravado on the part of a victim is simply contrary evidence that does not bind the trier of fact to accept it, particularly where it is not reasonable to infer that one would part with property otherwise.
“‘Where intimidation is relied upon, it must be established by proof of . . . circumstances reasonably calculated to produce fear. But it is not necessary that there be proof of actual fear, as fear may be presumed where there is just cause for it.’” (Id. at p. 484 [although a purported quote from 54 Cal.Jur. 1067, People v. Davison (1995) 32 Cal.App.4th 206, 214, fn. 7 (Davison), unable to locate quote anywhere in cited text].)
In People v. Wright (1996) 52 Cal.App.4th 203, 210-211, we concluded that fear-inspiring threats could be a species of force (and therefore assault was not a lesser included offense of robbery by means of force), and quoted a dictionary definition of force as including threats that “reasonably” inspired fear. A trial court relied on this passage in instructing the jury in People v. Cuevas (2001) 89 Cal.App.4th 689, which the defendant contended on appeal resulted in an impermissible focus on only the likely result of his conduct without considering whether the taking was in fact a result of the victim’s fear; the Court of Appeal rejected this argument as not being a reasonably likely interpretation on the part of the jury (especially in the light of the arguments of counsel). (Id. at pp. 697, 698-699.) Davison involved a similar context. Davison found that the instructions were ambiguous because they suggested that proof of intimidation could be an alternative to proof that the taking was against the victim’s will, and supplementary instructions (drawn from Borra) that defined intimidation as circumstances reasonably calculated to produce fear could result in the jury focusing only on the defendant’s conduct without considering the effect on the victim. (Davison, supra, 32 Cal.App.4th at pp. 211-215.) However, the error was harmless beyond a reasonable doubt, as there was overwhelming evidence of the victim’s actual fear. (Id. at pp. 216-217.) Notably, neither of these cases suggested that an objective assessment of the fearfulness of a defendant’s conduct was necessary in addition to evidence of a victim’s subjective fear.
Two other cases involve defendants who did not make express threats against the robbery victim or use weapons. People v. Brew (1991) 2 Cal.App.4th 99, 104, reiterated our quotation in Borra in finding that the circumstances could be intimidating even without threats or weapons, rejecting the argument of the defendant to the contrary. As there was evidence of the victim’s actual fear, this evaluation of whether the circumstances were reasonably fearful would seem superfluous, but in any event the court did not expressly discuss whether the actual fear of the victim was reasonable. People v. Flynn (2000) 77 Cal.App.4th 766, 771-773, declined to decide if the initial taking had been by force; after holding that retaining a victim’s property through use of fear can constitute a robbery, the court found that even though the circumstances were not “designed to instill fear,” there was evidence that the defendant took advantage of the victim’s actual fear to keep her property, and this was sufficient to sustain his conviction for robbery. In rejecting the defendant’s emphasis on other nonthreatening circumstances in the record, the court asserted, “To the extent that it was the victim’s perceptions of her circumstances that directly caused the fear, those perceptions were reasonable and a reasonable jury could have found that defendant took advantage of them in a calculated fashion.” (Id. at p. 773.) Again, in light of evidence of the victim’s actual fear, this final sentence of analysis does not explain why the reasonableness of this perception of the circumstances was relevant in assessing the sufficiency of the evidence. As with the previous case, however, the opinion does not identify this as an express issue before it. As a result, we do not regard these remarks in these two cases as being in the same category as a carefully considered holding. (Cf. Honey Baked Hams, supra, 37 Cal.App.4th at p. 428, fn. 4.)
In contrast, People v. Mungia (1991) 234 Cal.App.3d 1703, 1709, footnote 2, considered the circumstances of the crime in the absence of any evidence of actual fear, finding them insufficient as well to supply this element.
Even though none of these authorities supports his premise directly, the defendant seems to suggest that we should interpret the robbery statute as including an objective assessment of the resulting fear by analogy to other offenses. He notes that a rape victim’s fear of bodily injury must be both actual and reasonable. (People v. Iniguez (1994) 7 Cal.4th 847, 856-857.) This, however, is an expression of a policy consideration that a trier of fact should resolve the issue of consent on all the evidence of the conduct of both the defendant and the victim. (People v. Barnes (1986) 42 Cal.3d 284, 304.) The defendant does not explain how a similar policy consideration is present in the context of robbery, as taking the property of another generally does not present equally equivocal circumstances--a defendant who is confronted with a victim who unreasonably surrenders property in the face of objectively inadequate circumstances does not risk criminal liability if there is no intent to acquire the victim’s property through use of this fear (and if the defendant had in fact intended to commit “mere” theft, then the risk of a victim’s unreasonable response is simply an additional deterrent).
The defendant also adverts to the requirement that a victim’s fear of a criminal threat must be reasonable. (E.g., In re Ricky T. (2001) 87 Cal.App.4th 1132, 1139.) This is a matter of express statutory language that is not present in the robbery statute. Finally, the defendant points out that a prosecution for bank robbery under federal law focuses only on whether a defendant’s conduct would have inspired fear in a reasonable person without needing to consider the actual reaction. (U.S. v. McCarty (5th Cir. 1994) 36 F.3d 1349, 1357 [actual fear need not be proven, if defendant’s acts would threaten ordinary reasonable person; need show only that “an ordinary person in the teller’s position would feel a threat of bodily harm from the perpetrator’s acts”].) We do not find this alternative focus in a different jurisdiction to have any bearing on the crime of robbery in California.
The general consensus of criminal law is also contrary to the defendant’s argument. “The statement is sometimes made (and some cases even hold) that the threat of harm, for robbery, must be such as would, under the circumstances, arouse in the victim a reasonable fear of harm . . . . Of course, if the circumstances are such that a reasonable person would not be scared, a jury might properly infer that the victim, in spite of . . . testimony to the contrary, was not in fact scared . . . . But if the victim is actually frightened . . . into parting with . . . property, the defendant’s crime . . . is robbery, even though an ordinary person, with more fortitude than the victim, would not have been thus frightened.” (3 LaFave, Substantive Criminal Law (2d ed. 2003) § 20.3(d), pp. 188-189, fns. omitted, italics added.)
In short, we do not discern any reason to accept this novel departure from the law of robbery. As a result, we can make short shrift of the defendant’s claim that the evidence of fear is insufficient because the victim was unreasonably in a state of fear. We have related the abundant evidence of the victim’s subjective fear. That contrary inferences might be drawn from the evidence (a questionable proposition) does not affect the substantial nature of the evidence of subjective fear. Moreover, in light of the evidence of use of fear, his argument regarding the force used to rob the victim of his cell phone is moot, there not being any affirmative indication that the jury relied on this allegedly insufficient theory. (People v. Guiton (1993) 4 Cal.4th 1116, 1129-1130, 1131; see Griffin v. United States (1991) 502 U.S. 46, 59 [116 L.Ed.2d 371].) Finally, the defendant’s argument that the trial court had an obligation to instruct on “reasonable” fear sua sponte collapses along with its premise.
In closing arguments, the prosecutor had relied on a theory of taking the victim’s property by means of fear, but had adverted to the use of force to keep the victim from grabbing back the phone as an available alternative theory.
II
The trial court, perhaps giving the defendant too generous a benefit of the doubt, agreed to instruct on the lesser included offense of grand theft. It refused the defense request for any other lesser theft offense because the defendant acquired all of the victim’s property from the person of the victim.
In closing arguments, the prosecutor did not concede that the offense was anything less than a robbery. He explained that the option of grand theft was available but he did not think it applied, because it was appropriate for a taking without the use of force or fear.
The defendant argues that the trial court erred in finding that he took the property from the person of the victim. As a result, he believes he was therefore entitled to instructions on petty theft on a theory of theft by trick as to the cell phone and on a theory of theft by false pretenses as to the $19 and the umbrella.
In the first place, we do not understand how the defendant can deny that he took property from the person of the victim. He entirely misapprehends In re Jesus O. (2007) 40 Cal.4th 859, 861, which states: “When someone, intending to steal, causes property to become separated from the victim’s person, then gains possession of the property, the theft is from the person.” The particular means in the case (assault) does not make the holding inapposite to the present case.
Moreover, the defendant does not posit a tenable argument of prejudice. It is not as if the jury had in fact convicted him of the lesser offense of grand theft and he was now complaining that the evidence showed only some species of petty theft. Including grand theft as the lesser offense did not in any way prevent the jury from accepting the defendant’s argument that he did not use either fear or force in gaining possession of the property since he did not employ any weapons, or verbal or physical threats. Nor did the option of grand theft in any way leave the jury with an “all or nothing” choice. That the jury did not find the defense theory convincing is simply a function of its lack of merit.
Disposition
The judgment is affirmed.
We concur: BLEASE , Acting P.J., SIMS , J.