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People v. Espinoza

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR
Jan 31, 2012
A130862 (Cal. Ct. App. Jan. 31, 2012)

Opinion

A130862

01-31-2012

THE PEOPLE, Plaintiff and Respondent, v. EBONY ESPINOZA, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 County Super. Ct. No. 212042)

Defendant Ebony Espinoza was convicted of grand theft for her role in the taking of property from a woman who was listening to music as she was getting off a bus. Defendant was sentenced to four years in prison. We reject her argument that the trial court erred in denying a motion for a mistrial after learning that a witness had communicated with others regarding his testimony. We also conclude that (1) any possible error in admitting evidence that defendant was involved in a prior robbery was harmless, and (2) although the trial court did not properly instruct the jury on the elements of grand theft, that error likewise was harmless. We therefore affirm.

I.

FACTUAL AND PROCEDURAL

BACKGROUND

In the late-night hours of March 15, 2010, the 19-year-old victim rode on a bus toward the Bay Area Rapid Transit (BART) Civic Center station in San Francisco, while listening to music on her iPod that she held in her hand. She also carried a cell phone in her back pocket, and she used it during her bus ride to send about five text messages. About 10 minutes before the victim reached her destination, defendant and two other women boarded the bus together and sat near the victim. When the victim was getting off the bus near the BART station, she returned her phone to her back pocket. As the victim left the bus, one of defendant's companions confronted the victim, then kicked her in the face from the stairs of the bus. The companion tried to grab the victim's iPod out of her hand, and bit her finger.

During the victim's struggle over her iPod, defendant said, " 'Just give us your money and we'll leave you alone,' " and she took the cell phone from the victim's back pocket. The victim then let go of her iPod, turned around, followed defendant as she began walking away, and asked for her phone to be returned. Defendant denied having the victim's cell phone, and she and her two companions got into a taxicab. They got out again after the victim told the driver not to drive away, and the three companions then all got into the back seat of a second taxicab. A man stood in front of the taxicab, and a car pulled over and also blocked the taxi's way. Police arrived a short time later and removed defendant and her companions from the second taxicab. Police searched the cab and found the victim's cell phone on the floorboard behind the driver, near where defendant had been seated before she was removed from the cab.

Police searched the second taxicab for the victim's iPod but were unable to locate it. The victim searched the area where she had struggled over the device, but she was unable to find it.

Defendant and the two others were charged by information with second degree robbery (Pen. Code, § 211). The information also alleged that defendant had suffered two prior serious felonies (both second degree robberies), pursuant to Penal Code section 667, subdivisions (a)(1), (d), and (e), and section 1170.12, subdivisions (b) and (c). Defendant and her two companions were tried together.

As discussed in more detail below, the jury heard evidence, which was admitted pursuant to Evidence Code section 1101, subdivision (b), that defendant was involved in a robbery in 2008.

All statutory references are to the Evidence Code unless otherwise indicated.

The jury found defendant not guilty of the charged crime of robbery, but guilty of the lesser crime of grand theft. In a bifurcated proceeding, defendant admitted one of the prior strikes, and the trial court struck the other prior on the People's motion. The trial court sentenced defendant to the midterm of two years, doubled because of the prior strike. This timely appeal followed.

The codefendant accused of kicking the victim and struggling to take her iPod was acquitted of robbery and grand theft, but convicted of simple assault. The trial court granted the second codefendant's motion to acquit after the People rested (Pen. Code, § 1118.1).

II.

DISCUSSION

A. No Error to Deny Mistrial Motion.

1. Background


a. Nathanial Winston

The People called as a witness Nathaniel Winston, who witnessed the commotion after the victim and the three codefendants got off the bus, and who blocked the second taxicab from leaving the area. He testified on direct examination on July 13, 2010, and defendant's counsel began cross-examining him that same day. Counsel did not finish her cross-examination by the end of the day, and the trial court ordered Winston to return the following day. The court also told Winston that he was not to discuss his testimony with any other witness while the case was being tried.

The next day, defendant's attorney and an attorney for one of her codefendants reported that they had seen Winston that morning in the hallway outside the courtroom sitting near law enforcement members, who were discussing a police officer's role in testifying. Counsel further reported that a few jurors witnessed the exchange and were close enough that they could have possibly heard the conversation. A second attorney representing defendant reported that he had seen the victim hug Winston and speak to him the previous day during a break. The prosecutor acknowledged that Winston and the victim had hugged, and that Winston asked the victim how she was doing, but the prosecutor explained that she separated the two so that they would not have further contact.

b. Evidence Code section 402 hearing

The trial court held a hearing regarding counsels' reports. The trial court first questioned the jurors and alternates individually about whether they had seen Winston speaking with anyone in the hallway. Nine jurors reported seeing Winston talking to various people at different times in the hall, but they did not overhear anything that was said. Two jurors reported seeing Winston with other people but could not specifically recall whether any conversations took place. One juror reported hearing Winston talking with a Hispanic man about "different types of music," and another juror reported hearing Winston "talking about some Wi-Fi." Two jurors reported not having seen Winston engaged in any conversations. No juror reported having heard Winston discuss the case outside the courtroom.

The driver of the second taxicab that the three codefendants entered on the night in question had been scheduled to testify on the same day as Winston. He testified outside the presence of the jury that while he was waiting outside the courtroom to testify, an officer involved with the case introduced himself to the cab driver. He also saw Winston, told him, " 'You were the person standing directly in front of my cab,' " and Winston responded, " 'Oh, oh you're the cab driver.' " The taxicab driver testified: "He [Winston] started talking about the case. And I said, 'I don't know, I wasn't there. I got there towards the end.' ¶ And then he proceeded to describe how the three [B]lack ladies or girls were assaulting the Hispanic girl on the bus. ¶ But, you know, he talked so incoherently that I don't [sic] understand what he's trying to say, anyway. Just went over my head." This conversation could have taken place within earshot of the police officer in the hallway, according to the cab driver.

The taxicab driver later saw Winston speak with the same police officer and a woman with blond hair (apparently, an intern with the district attorney's office) after Winston was cross-examined. The cab driver thought that the conversation "was more in reference to how he was being cross-examined, rather than, you know commenting on the case, itself," and he had the impression that Winston "probably felt a little badgered by the defense lawyers." The intern was trying to calm him down, saying things such as, " 'You know, it's okay. You did well. You did just fine. A lot of this is just legal procedures. Don't worry about it. You did fine.' " The taxicab driver was not sure how many people were in the hallway at the time. The taxicab driver was not part of the second conversation, and he did not remember anything specific about the conversation: "Nothing that made sense, anyway. Like I say, he [Winston] talks so incoherently, so . . . ." The taxicab driver testified that he did not think that anything he heard Winston say would have an effect on his testimony, or his feelings about the case. He also noted that the prosecutor was "constantly" in the hallway "saying, 'Don't talk about the case. Don't talk about the case.' She's been doing that all the time." When asked if he recalled the police officer in the hallway talking to Winston about the case, the taxicab driver testified, "Half the time, I'm not listening to what they're saying, anyway. My mind is on something else, to tell you the truth."

The taxicab driver further testified that he saw a "Hispanic lady" (presumably, the victim) hug Winston after the victim came out of the courtroom during a recess. Winston and the victim did not talk about the case. When asked what they talked about, the cab driver testified, "I can't recall, but they didn't say much. Just hugged and kind of greeted each other."

Finally, the cab driver testified that after he received a subpoena regarding testifying in the case, he called the district attorney's office. A prosecutor asked him to describe what he had seen on the night in question, and at some point she mentioned that a cell phone had been found in his cab. He explained that "I knew the officer found an item; I just didn't know what the item was." He also learned from the prosecutor that assault charges had been filed in the case.

Winston said that on the day he testified, he "wasn't talking to anybody about anything" outside the courtroom. He also testified that he "just chatted" with the taxicab driver about cab companies, and they did not discuss the case. He confirmed that he was "frustrated" after he was cross-examined. Winston expressed his frustration to the intern with the district attorney's office, but she told Winston "to stop right there, and I did," according to Winston. Winston denied speaking with a police officer about what had taken place in the courtroom, but said that the officer told him what to expect when testifying (such as the fact that sometimes it takes a long time, and other times it is "cut and dry"). Winston testified that he greeted the victim and hugged her, but did not say anything about the case to her. He also acknowledged that an officer gave him a lift to the courtroom on the days he was scheduled to testify, and that he had been told by multiple people not to discuss anything about the case with other potential witnesses.

The intern with the district attorney's office testified that she had brought the victim to court the previous day, and she (the intern) had been instructed not to let the victim talk to other witnesses in the case. The intern also testified that on the previous day, she ran after Winston after he testified "just to make sure he didn't run away." Winston told the intern that he was upset that the defense had been argumentative, and she told him to calm down. The intern saw Winston in the hallway the next morning. He still seemed frustrated, and referred to the fact that the case was " '[o]pen and shut.' " He also "went on some narrative" comparing cab companies.

The police officer assigned to the case (but who did not testify at trial) testified at the 402 hearing that he was responsible for making sure that Winston was at court for the proceedings, and he drove him to court on the day he testified before the jury. The officer had several conversations with Winston, but he did not discuss the case with Winston. He waited in the hall with Winston; however, he did not hear Winston speak with the taxicab driver about the case. After Winston testified, he was "a little agitated, but that's his general personality." The officer "told him just answer the questions and just accept it, and to tell the truth." The next morning, the officer drove Winston from Winston's residence to the courthouse. During the drive, Winston talked about the three codefendants' actions against the victim, and the officer told him, " 'Tell that inside, but I don't need to hear it.' " When they were in the hallway outside the courtroom, the officer said something to Winston about having the " 'easy part,' " because he just reviewed the police report, whereas Winston was testifying as a witness.

c. Trial court's ruling

All three codefendants requested that Winston be excluded as a witness and that his testimony be stricken. Defendant and one codefendant also asked that the trial court declare a mistrial; the third defendant did not join that request. The trial court denied the motion for a mistrial, concluding that, based on the questioning of jurors, "the Court is persuaded that whatever happened outside did not have any impact on the jury for their consideration of this case." The court did, however, grant the motion to exclude Winston as a witness, and struck his testimony, based on concerns that "there has been a contamination of him and improper contact and conduct by him to other witnesses in this case." The jury was instructed to disregard Winston's testimony, and to "treat it as if it never happened." Defendant's counsel raised concerns that the testimony of the taxicab driver (who had not yet testified) "may be contaminated." The court did not exclude any other witnesses, however, concluding that Winston's behavior had not affected any of the other witnesses, including the taxicab driver.

d. Taxicab driver's trial testimony

The taxicab driver testified before the jury that on the night in question, he stopped to pick up passengers when an African-American woman hailed his cab. Three women got into the back seat of his cab. He asked where they wanted to go, but they simply said, " 'Just go' " multiple times. The driver was not able to leave the area, however, because there was a lot of activity in the area, and because he could not leave without being provided with a destination. Someone stood in front of the taxicab, blocking the driver's path. The cab driver never drove away, and eventually police arrived and searched his cab. An officer found "an item" in the back-seat area of his taxicab that the driver did not recognize, and that did not belong to him.

2. Analysis

Defendant argues that the trial court erred in not granting a mistrial, or, in the alternative, declining to bar the taxicab driver from testifying. "In reviewing rulings on motions for mistrial, we apply the deferential abuse of discretion standard. [Citation.] 'A mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions. [Citation.]' [Citation.]" (People v. Wallace (2008) 44 Cal.4th 1032, 1068.)

On the record before us, we cannot conclude that the trial court abused its discretion. As for whether the taxicab driver should have been allowed to testify, it is questionable whether this objection was preserved. Although defendant raised concerns about possible witness contamination before the driver testified and requested that he be excluded as a witness, it does not appear that she requested that his testimony be stricken after he testified. (§ 353, subd. (a) [no reversal based on erroneous admission of evidence absent a timely motion to strike]; People v. Frank (1990) 51 Cal.3d 718, 733 [failure to move to strike testimony amounts to waiver of objection].)

Even assuming arguendo that the objection was not waived, it lacks merit. Defendant argues that the taxicab driver's "perception of events had to be colored by the actions of Winston and the District Attorney," without directing this court to any specific testimony of the driver that would support this argument. In fact, the taxicab driver specifically testified at the section 402 hearing that nothing he heard Winston say would have an effect on his testimony or his feelings about the case. At trial, the driver testified before the jury that he was unable to make an in-court identification of any of the three defendants, and he likewise could not positively identify them in photographs he was shown during his testimony, undermining the argument that Winston's comments influenced the driver's recollection of events. Although the driver testified at the section 402 hearing that a prosecutor had told him that the item police found in his cab was a cell phone, he testified before the jury that he did not know what police discovered: "I had black seats. The interior of the cab is just pitch dark. I couldn't see whatever it was, and I didn't recognize whatever it was at the moment, at the time." None of the defense attorneys elected to cross-examine the taxicab driver. In light of all these circumstances, defendant fails to establish that the trial court abused its discretion in permitting the taxicab driver to testify.

As for whether the trial court abused its discretion in denying the motion for a mistrial, defendant makes several speculative statements (many of which are unsupported by citation to the record), without sufficiently specifying how she supposedly was incurably prejudiced by the trial court's ruling. As defendant herself acknowledges, we presume on appeal that jurors understand and follow the trial court's instructions. (People v. Gray (2005) 37 Cal.4th 168, 231.) Defendant has not established that the jury in this case was unable to understand or follow the trial court's instruction to disregard Winston's testimony. She claims that the instruction was insufficient because of "the confused nature of th[e] entire trial," but then proceeds to focus on aspects of the trial that had little or nothing to do with the denial of the motion for a mistrial, such as the prosecutor's unsuccessful attempt to play the recording of a 911 call during opening statements. Although it may be true, as defendant notes, that the trial court struck various portions of other witnesses' testimonies after sustaining defense objections, that is irrelevant to the question of whether the jury followed the instruction to disregard Winston's testimony. It may also be true that the victim could not recall various aspects of the night in question; however, this is of course often the case in any criminal trial where a victim describes a crime against himself or herself, and this fact is not relevant on the issue of whether the jury was able to disregard Winston's testimony in this case. And although there was conflicting testimony about whether one of defendant's companions was seated in the front seat or the back seat of the taxicab when police arrived, there was no conflicting testimony over whether defendant was seated in the back, near where the cell phone was discovered. Finally, defendant has not established that any conversation that the taxicab driver had with Winston improperly affected the driver's testimony, which focused solely on events that he personally witnessed, and not on events that Winston may have told him occurred before his arrival on the scene. The taxicab driver repeatedly stated that he had trouble understanding what Winston said to him, further supporting an inference that he was not influenced by conversations with Winston.

Based on all the evidence and particular circumstances of the case, we conclude that defendant has not shown that the trial court abused its discretion in allowing the taxicab driver to testify, and in denying the defense motion for a mistrial.

B. Evidence of Prior Robbery.

1. Background

The People filed a motion before trial seeking the introduction, pursuant to section 1101, subdivision (b), of an incident in February 2008, when defendant and two other females attacked a woman walking by herself and took her iPod. Defendant opposed the introduction of the evidence, arguing that the prior incident was not relevant to prove her intent or motive in this case, and that the evidence was extremely prejudicial. The trial court ruled at a hearing before trial that the evidence was admissible to show intent and lack of mistake or accident (§ 1101, subd. (b)).

Three witnesses testified at trial about the 2008 incident. The victim testified that on the afternoon of February 18, 2008, defendant and two other women attacked her while she was walking from a grocery store, listening to her iPod with headphones, and carrying grocery bags on 46th Avenue in San Francisco. After a struggle, one of the women took the victim's tote bag, which contained her wallet and the keys to her apartment. The three women ran away, and the victim followed them. The victim reached the three women as they started to get into a car that was waiting for them. The victim struggled to get her bag, but was unable to do so, and the women drove away. Police later detained the vehicle after the victim provided police with information about the car's license plate, and the victim positively identified the women inside as the people who had attacked her. The victim in the 2008 incident testified that she thought her iPod was still in her pocket after her bag was taken, but she also testified that she did not remember seeing her iPod after the incident, and that, at the time she testified in this case, she had a different iPod from the one she had when her bag was taken in 2008.

The prosecutor later explained, outside the presence of the jury, that she was surprised that the victim in the 2008 incident could not recall whether her iPod was taken, because it was the prosecutor's understanding that the victim's iPod in fact had been taken.

A person who was on the roof of a nearby apartment when the 2008 victim's bag was taken also testified at trial about what he witnessed. Finally, the jury heard testimony from a police officer who was dispatched to the scene, and who also transported the victim to where defendant and her companions had been detained, so that the victim could identify them. He testified that the victim positively identified defendant as one of the people involved in the incident.

Following the witnesses' testimonies, defendant renewed her objection that the evidence of the 2008 incident was not relevant to show lack of mistake or intent. After the court and counsel discussed jury instructions, the court ruled that it would instruct the jury that the evidence was relevant only to show intent (but not lack of mistake), rejecting defendant's argument that intent was not an issue in the case (because the issue to be decided was whether defendant took the phone, and not what her intent was).

2. Analysis

Evidence of a defendant's prior conduct is generally inadmissible to prove his or her conduct on a specified occasion. (§ 1101, subd. (a).) However, evidence of defendant's commission of other crimes is admissible if it is relevant to prove some fact other than her disposition to commit such an act, such as intent. (§ 1101, subd. (b); People v. Nible (1988) 200 Cal.App.3d 838, 847.) " 'The admissibility of other crimes evidence depends on (1) the materiality of the facts sought to be proved, (2) the tendency of the uncharged crimes to prove those facts, and (3) the existence of any rule or policy requiring exclusion of the evidence.' [Citation.]" (People v. Steele (2002) 27 Cal.4th 1230, 1243.) "Evidence of intent is admissible to prove that, if the defendant committed the act alleged, he or she did so with the intent that comprises an element of the charged offense. 'In proving intent, the act is conceded or assumed; what is sought is the state of mind that accompanied it.' [Citation.]" (People v. Ewoldt (1994) 7 Cal.4th 380, 394, fn. 2, italics omitted; see also People v. Thomas (2011) 52 Cal.4th 336, 355.) "[T]he standard framework for admission of evidence of other crimes is if there is no doubt that defendant has committed an act, but some question as to his intent in doing so." (People v. Guerrero (1976) 16 Cal.3d 719, 726 [evidence of prior rape inadmissible to show intent in subsequent murder trial].) The "least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent" for purposes of section 1101, subdivision (b). (Ewoldt, supra, 7 Cal.4th at p. 402.) We review the trial court's determination of the issue for abuse of discretion. (People v. Lenart (2004) 32 Cal.4th 1107, 1123.)

The California Supreme Court has " ' " 'long recognized "that if a person acts similarly in similar situations, he probably harbors the same intent in each instance" [citations], and that such prior conduct may be relevant circumstantial evidence of the actor's most recent intent. The inference to be drawn is not that the actor is disposed to commit such acts; instead, the inference to be drawn is that, in light of the first event, the actor, at the time of the second event, must have had the intent attributed to him by the prosecution.' " [Citation.]' [Citation.]" (People v. Thomas, supra, 52 Cal.4th at pp. 355356, original italics.)

Defendant argues that, because her defense was that she did not take the victim's property, this defense "rendered [her] intent immaterial." In other words, because her act of taking property in this case was neither conceded nor assumed, the prior incident was inadmissible to show her intent. (People v. Ewoldt, supra, 7 Cal.4th at p. 394, fn. 2; People v. Robbins (1988) 45 Cal.3d 867, 879 [evidence admissible under § 1101, subd. (b), where intent is ambiguous, such as when defendant admits acts but denies intent because of mistake or accident]; see also Bowen v. Ryan (2008) 163 Cal.App.4th 916, 926 [where dentist denied choking or shoving patient, evidence of prior acts against patients inadmissible pursuant to § 1101, subd. (b) to show intent].)

Respondent argues that, by pleading not guilty, defendant put her intent at issue. (People v. Rowland (1992) 4 Cal.4th 238, 260 [defendant's intent generally becomes " 'disputed' " when raised by plea of not guilty].) A fact such as intent "remains 'disputed' until it is resolved." (Ibid.) We need not decide this question, however, because any error in allowing the jury to consider evidence of defendant's involvement in the 2008 incident was harmless. "It is not reasonably probable that a result more favorable to defendant would have been reached in the absence of the alleged error." (People v. Thomas, supra, 52 Cal.4th at p. 356 & fn. 20 [Watson test applicable to errors in admission of other-crimes evidence]; People v. Watson (1956) 46 Cal.2d 818, 836.) Although there may have been a question over whether defendant used the force or fear necessary to convict her of the charged crime of robbery, there was overwhelming evidence supporting the crime of which she was convicted. The victim testified that she felt her cell phone being taken from her pocket when defendant—the only person behind her—was so close that the victim "could just feel her body against mine." The cell phone was later found on the floorboard of the taxicab near where defendant had been sitting. The other-crimes evidence did not consume a great amount of time at trial, and it was not even clear from the evidence what role defendant played in the 2008 robbery. The jury was properly instructed that it could consider this evidence only for a limited purpose. (CALCRIM No. 375.) We find no reversible error on the record before us.

In an argument that may well have been lifted from another brief, defendant claims that the admission of "propensity evidence" violated her federal due process and equal protection rights, and that the jury instruction regarding the "propensity evidence" violated her federal due process rights, arguments that she raises solely to preserve them for federal review. Defendant states in her opening brief that the jury instruction required proof only by a preponderance of the evidence that she "committed other domestic violence," and cites cases addressing propensity evidence admissible under sections 1108 and 1109, which were not applicable in this case. (People v. Falsetta (1999) 21 Cal.4th 903 [admissibility of prior sexual offenses under § 1108]; People v. Hoover (2000) 77 Cal.App.4th 1020 [admissibility of prior domestic violence under § 1109].) Indeed, no "propensity evidence" was admitted in this case. The jury was specifically instructed here that evidence of the 2008 incident was not to be used to conclude that defendant was disposed to commit crime.

C. No Reversible Error to Omit Grand Theft Instruction.

Defendant argues that the trial court erred by not properly instructing the jury sua sponte on the elements of the crime of grand theft. We agree, but conclude that the error was harmless beyond a reasonable doubt.

1. Background

As set forth above, defendant was charged with one count of second degree robbery. After the People rested, the trial court granted defendant's request that the jury also be instructed on the lesser offense of grand theft. The court instructed the jury pursuant to CALCRIM No. 1800, which is the instruction for theft by larceny (Pen. Code, § 484). The trial court did not, however, instruct the jury pursuant to CALCRIM No. 1801, which directs the jury to decide whether the crime committed was grand or petty theft, and instructs the jury on the elements of the various forms of grand theft (Pen. Code, §§ 486, 487-488, 491). The jury found defendant guilty of grand theft, a "[v]iolation of Section 487 of the California Penal Code, a felony," without reference to a particular subdivision of the statute, or any particular form of grand theft.

As modified, the instruction provided: "Grand theft is a lesser included offense of robbery. [¶] To prove that the defendant is guilty of this crime, the People must prove that: 1. The defendant took possession of property owned by someone else; [¶] 2. The defendant took property without the owner's consent; [¶] 3. When the defendant took property[,] she intended to deprive the owner of it permanently; and; 4. The defendant moved the property even a small distance, and kept it for any period of time, however
brief."

2. Analysis

"The trial court must instruct even without request on the general principles of law relevant to and governing the case. [Citation.] That obligation includes instructions on all of the elements of a charged offense. [Citation.]" (People v. Cummings (1993) 4 Cal.4th 1233, 1311.) "Under state law, instructional error that withdraws an element of a crime from the jury's consideration is harmless if there is 'no reasonable probability that the outcome of defendant's trial would have been different had the trial court properly instructed the jury.' [Citations.] Under federal law, the 'Fifth Amendment right to due process and Sixth Amendment right to jury trial . . . require the prosecution to prove to a jury beyond a reasonable doubt every element of a crime.' [Citations.] Accordingly, a trial court's failure to instruct on an element of a crime is federal constitutional error that requires reversal of the conviction unless it can be shown beyond a reasonable doubt that the error did not contribute to the jury's verdict. [Citations.]" (People v. Cole (2004) 33 Cal.4th 1158, 1208-1209, citing Chapman v. California (1967) 386 U.S. 18, 24.)

The jury convicted defendant after being instructed, pursuant to CALCRIM No. 1800, on the elements of theft by larceny; that is, that defendant was guilty if jurors found that defendant took and moved the victim's property without her consent, and with the intent to permanently deprive her of the property. (Pen. Code, § 484; People v. Catley (2007) 148 Cal.App.4th 500, 505.) Theft committed when property is "taken from the person of another" is grand theft (Pen. Code, § 487, subd. (c)), the only possible form of grand theft at issue here. Defendant is correct that the trial court erred when it did not instruct the jury pursuant to CALCRIM No. 1801, which directs the jury to decide whether petty theft or grand theft was committed. It also provides that a defendant who has committed a theft is guilty of grand theft if the following additional element is proven: "Theft of property from the person is grand theft, no matter how much the property is worth. Theft is from the person if the property taken was in the clothing of, on the body of, or in a container held or carried by, that person." (Italics omitted.)

Defendant argues that the trial court erred by not instructing the jury sua sponte on the lesser included offense of petty theft (Pen. Code, §§ 484, 488). In fact, CALCRIM No. 1800 is the jury instruction for petty theft. The Bench Notes to the instruction provide that "[i]f the defendant is charged with petty theft, no other instruction is required, and the jury should receive a petty theft verdict form." (Bench Notes to CALCRIM No. 1800 (Summer 2011 ed.) p. 1258, italics added.) There is thus no question that the decision of whether defendant was guilty of theft was resolved adversely to defendant. The only question is whether it was reversible error not to instruct the jury on whether the People had established the additional element necessary for a grand theft person conviction.

Defendant argues that there were in fact two possible theories of grand theft—grand theft person (Pen. Code, § 487, subd. (c)), or grand theft based on the value of the item taken (Pen. Code, § 487, subd. (a)). However, there was no evidence presented regarding the value of the victim's cell phone or her iPod. The prosecutor specifically told jurors during closing arguments that they had to decide "is this a robbery or theft from a person," but did not mention the value of the items taken from the victim.

Because there was virtually uncontradicted evidence that the takings of both the victim's iPod and her cell phone were from the victim's person, we conclude that the trial court's error in failing to instruct on all the elements of grand theft person was harmless beyond a reasonable doubt. As for the victim's iPod, the victim testified that defendant's companion tried to grab it out of her hand, and she let go only after she felt her cell phone being taken. As for the cell phone, the victim testified that defendant was behind the victim right before the phone was taken, within an arm's length of her. The victim testified that defendant "t[ook] my phone from my back pocket," that she felt her cell phone leave her back pocket, and that she turned around the moment she felt her cell phone leave her back pocket. The victim assumed it was defendant who took her phone, because she was the only person behind the victim. She also testified that her cell phone had never fallen out of her pocket.

Both the prosecutor and defendant's attorney focused on whether defendant took the victim's cell phone (as opposed to her iPod). However, the jury was instructed that the People had presented evidence of more than one act to prove that defendant committed robbery, and that jurors had to unanimously agree that defendant committed at least one of the acts and agree on which act she committed. The jury was further instructed that defendant could be found guilty of robbery based on an aiding and abetting theory.

Defendant argues, without citation to the record, that jurors could have found that the victim's cell phone was "accidentally jostled" from her pocket during the struggle over the victim's iPod, and that the phone was taken after it "hit the ground." Even assuming arguendo that this is a reasonable interpretation of the evidence, the record nonetheless supports a grand theft person conviction. "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." (In re Jesus O. (2007) 40 Cal.4th 859, 861 [evidence supported grand theft person conviction where cell phone fell from victim's pocket during a struggle, then was taken from ground after victim fled].) A taking from the person can take place in two steps, by first wrongly causing property to become separated from the person with the intent to steal, then taking possession of it after the separation. (Id. at p. 868.) Here, during the victim's struggle over her iPod, defendant said, " 'Just give us your money and we'll leave you alone,' " showing an intent to steal property before the taking of the cell phone began, i.e., while the victim's cell phone was still on her person. (Ibid. [generalized intent to steal at time telephone was on victim's person satisfied larcenous intent element of grand theft].) Even if defendant, contrary to the victim's testimony, took the cell phone after the victim became separated from it, this was sufficient under Jesus O. to support a grand theft person conviction. (Ibid.) In light of all this evidence, we conclude that the error in failing to instruct on all the elements of grand theft person is harmless under Chapman v. California, supra, 386 U.S. at page 24, because we are satisfied beyond a reasonable doubt that the jury would have reached the same result had it been properly instructed on the elements of grand theft person.

This argument likely is based on the victim's testimony that when she let go of her iPod and turned to confront defendant, she heard a crashing sound, as if something plastic had broken on the ground. She believed that it was her iPod (which was made of both plastic and metal) that had fallen to the ground. The victim acknowledged on cross-examination that her cell phone had a hard plastic cover, and that she did not know if it was her cell phone that fell to the ground, evidence which could possibly support an inference that it was her phone, and not her iPod, that fell on the ground.
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III.

DISPOSITION

The judgment is affirmed.

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Sepulveda, J.
We concur:

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Ruvolo, P. J.

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Rivera, J.


Summaries of

People v. Espinoza

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR
Jan 31, 2012
A130862 (Cal. Ct. App. Jan. 31, 2012)
Case details for

People v. Espinoza

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. EBONY ESPINOZA, Defendant and…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR

Date published: Jan 31, 2012

Citations

A130862 (Cal. Ct. App. Jan. 31, 2012)