Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. YA072757 Mark S. Arnold, Judge.
Pamela J. Voich, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Russell A. Lehman, Deputy Attorneys General, for Plaintiff and Respondent.
BIGELOW, P. J.
A jury convicted Harold Franklin of second degree robbery, assault by means of force likely to produce great bodily injury, and making a criminal threat. (See Pen. Code, §§ 211; 245, subd. (a)(1); & 422.) The trial court sentenced Franklin to a five-year upper term on the robbery count, and imposed and stayed terms on the assault and threat counts pursuant to section 654. Franklin contends the evidence was insufficient to support the convictions for robbery and criminal threats, and that the trial court failed to properly instruct the jury. We affirm.
All further section references are to the Penal Code.
FACTS
On August 21, 2008, Franklin walked into the Wahoo’s Fish Tacos restaurant on Manhattan Avenue in Manhattan Beach, picked up a Wahoo’s cup from the counter, and filled the cup with soda without paying. Three employees, including the manager, Maria Montes, saw Franklin take the cup and soda without paying. When Montes told Franklin that he had to pay for the soda, Franklin began arguing with her, and stated, “I’ve already paid.” When Montes said that she was going to call the police if he did not pay, Franklin yelled he was going to “beat up” Montes, and walked out of the restaurant.
Franklin had done the same thing on two prior occasions during the previous two weeks.
Montes followed after Franklin, walking behind him down the street, and taking out her cellular telephone. Another restaurant employee, Jose Carreon, followed behind Montes. When Franklin saw Montes trying to use her phone, he looked directly at her, and stated several times, “If you call the police, I will kill you.” Near the intersection of Manhattan Avenue and 12th Street, Franklin crossed the street, and Montes followed him. At that point, Franklin turned, and punched Montes with a closed fist on the left side of her head. Franklin’s punch knocked Montes to the ground, and tore an earring from her left ear. A nearby eyewitness, Joseph Kacic, heard Franklin and Montes arguing, and saw Franklin punch Montes in the head. Montes’s fellow worker, Carreon, also saw Franklin punch Montes. Kacic called 911.
Manhattan Beach Police Officers Dave Caveney and Michael Allard took Franklin into custody in a parking lot near the city hall building (a few blocks away from the scene of the assault). Franklin had a plastic Wahoo’s cup, but did not have a receipt. Officer Allard noted that Montes was visibly shaken, and had visible redness and swelling on the left side of her face and a small laceration on her left earlobe.
On November 14, 2008, the People filed second amended information charging Franklin with second degree robbery, assault by means of force likely to produce great bodily injury, and making a criminal threat. At a trial by jury in late 2008, the People presented evidence establishing the facts summarized above. Franklin’s defense rested on evidence elicited on cross-examination of the People’s witnesses, and on testimony from his defense investigator. The gist of Franklin’s evidence suggested that something was amiss because a restaurant surveillance videotape had been not been saved.
According to Montes, the videotape was automatically taped over 14 days after the events on August 21, 2008. She could not remember whether she had told police about the video. Officers Allard and Caveney testified that Montes did not tell them about the videotape. Manhattan Beach Police Detective Mark Sabosky also testified that Montes did not tell him about the videotape. Franklin’s investigator testified that Montes had told him that she had told the police about the videotape. The issue of the unavailable videotape was addressed in a pre-trial hearing on Franklin’s motion to dismiss on the ground the People had failed to preserve evidence. The trial court denied the motion, believing the police witnesses’ testimony that Montes had not made them aware of the videotape before it was taped over.
In her argument to the jury, the prosecutor argued that Franklin “used both force and fear... when trying to get away with that cup of soda and to prevent [Montes] from either collecting payment or getting the property back. [¶] The force that was used was when he punched her on her head. And the fear [was] when he threatened to beat her up and threatened to kill her.” In his argument to the jury, Franklin’s attorney highlighted a number discrepancies between the witnesses’ pre-trial statements and their testimony at trial, noted the absence of the surveillance videotape, and, broadly summarized, argued that the People’s evidence did not prove the charged offenses against Franklin beyond a reasonable doubt.
On December 23, 2008, the jury returned verdicts convicting Franklin as charged. On January 30, 2009, the trial court sentenced Franklin to a five-year upper term on the robbery count, and imposed and stayed a mid-term of three years on the assault count, and imposed and stayed a mid-term of two years on the criminal threat count.
DISCUSSION
I. Robbery
Franklin contends his robbery conviction must be reversed because it is not supported by substantial evidence. We disagree.
When presented with a claim that the evidence at trial is not sufficient to support a defendant’s conviction, we follow well-settled rules. First, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the jury could reasonably deduce from the evidence. Although we must be satisfied that the trial evidence is reasonable, credible, and of solid value, it is the exclusive province of the jury to determine the credibility of a witness. When a verdict is supported by substantial evidence, we must accord due deference to the jury, and may not substitute our assessment of the witnesses’ credibility in place of the jury’s assessment of the witnesses’ credibility. (See, e.g., People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
According to Franklin, the evidence presented at his trial is insufficient to support his robbery conviction because “[his] display of force was clearly in response to being tailed by Montes and Carreon, and not an effort to retain possession of the cup of soda.” We reject Franklin’s argument for two reasons. First, his argument that the evidence shows no more than an assault is, in our view, a veiled request that we reweigh the evidence, and substitute our finding on his mental state for the jury’s finding that he acted with the intent to take possession of the soda away from Montes. We may not engage in such a reweighing of the evidence. The jury’s finding that Franklin acted with the intent that his punch would accomplish his taking away of the soda is a reasonable inference from the evidence, and no more is necessary to sustain its finding. Second, Franklin’s argument runs afoul of People v. Gomez (2008) 43 Cal.4th 249 (Gomez), in which the Supreme Court addressed the materiality of a victim’s confrontational behavior during a theft-related event. As the Supreme Court explained in Gomez, the victim’s actions are immaterial in evaluating the evidence of a theft-involved-offense: “It is the conduct of the perpetrator who resorts to violence to further his theft, and not the decision of the victim to confront the perpetrator, that should be analyzed in considering whether a robbery has occurred.” (Id. at p. 264.)
We are satisfied that substantial evidence supports Franklin’s robbery conviction.
II. Making a Criminal Threat
Franklin contends his conviction for making a criminal threat must be reversed because it is not supported by substantial evidence. Again, we disagree.
“In order to prove a violation of section 422, the prosecution must establish all of the following: (1) that the defendant ‘willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person, ’ (2) that the defendant made the threat ‘with the specific intent that the statement... is to be taken as a threat, even if there is no intent of actually carrying it out, ’ (3) that the threat-which may be ‘made verbally, in writing, or by means of an electronic communication device’-was ‘on its face and under the circumstances in which it [was] made, ... so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, ’ (4) that the threat actually caused the person threatened ‘to be in sustained fear for his or her own safety or for his or her immediate family’s safety, ’ and (5) that the threatened person’s fear was ‘reasonabl[e]’ under the circumstances. [Citation.]” (People v. Toledo (2001) 26 Cal.4th 221, 227-228). “Sustained” fear means fear over a period of time that “extends beyond what is momentary, fleeting, or transitory.” (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.)
There is no dispute that Franklin directed threats toward Montes. The issue, according to Franklin, is whether his threats caused Montes to be reasonably and subjectively in sustained fear. We believe the evidence was sufficient in this case. Even before the day of the assault, Franklin had been aggressive toward her. While it is true that Montes followed Franklin after he told her he would “beat [her] up” if she called the police, this does not mean she was not frightened while doing so. In fact, she testified that when she was following him outside she felt a great deal of fear, and that it caused her to shake. Montes testified, she was afraid, “but I had to [follow him] because I didn’t want it to repeat.” Montes testified she believed he was serious about beating her up. She said she was in such fear after Franklin threatened to kill her that she was not able to call the police. Montes said the fear continued even after she was hit and Franklin had left; that she was still upset 10 minutes later when the police arrived. This evidence was sufficient to prove sustained fear within the meaning of the statute.
III. The Lesser Included Offense of Theft
Franklin contends his robbery conviction must be reversed because the trial court failed to instruct sua sponte on petty theft as a lesser included offense of robbery. We disagree.
We reject Franklin’s argument because we see no evidence in the record upon which a reasonable jury could have concluded that he committed the lesser offense of petty theft. (People v. Duncan (1991) 53 Cal.3d 955, 970.) Franklin’s argument suffers from an inherent flaw in that he focuses on his original taking of the soda inside the store when he was prosecuted on the theory that the robbery occurred when he threatened and punched his victim outside the store in order to accomplish his taking away of the soda. There was no room for petty theft instructions when it was undisputed that Franklin hit Montes with enough force to knock her to the ground and tear out an earring.
IV. The Claim-of-Right Defense
Franklin contends his robbery conviction must be reversed because the trial court did not instruct sua sponte on the “claim of right defense.” We disagree.
“The claim-of-right defense provides that a defendant’s good faith belief, even if mistakenly held, that he has a right or claim to property he takes from another negates the felonious intent necessary for conviction of theft or robbery.” (People v. Tufunga (1999) 21 Cal.4th 935, 938.) We agree with Division Five of our court that the claim of right defense is not a “general principle of law” applicable in all theft-related contexts, and that this means a trial court does not have a sua sponte duty to instruct on the defense in all theft-related cases. (People v. Stevens (1969) 269 Cal.App.2d 470, 474.) Indeed, a trial court does not create error by refraining from giving an instruction on the claim of right defense when the evidence does not support an inference that the defendant acted with the subjective belief that he or she had a lawful claim on the property. (See People v. Barnett (1998) 17 Cal.4th 1044, 1141-1147.) Whether or not the evidence provides the necessary support for drawing such an inference is a question of law. (Id. at p. 1145.) Although a trial court should not weigh the credibility of witnesses, the court need not give the instruction where the supporting evidence is “minimal and insubstantial.” (Ibid.)
In Franklin’s current case, the only evidence tending to support an inference that he acted with a subjective belief he had a lawful claim to the soda which he took from the Wahoo’s restaurant was his self-serving words, while still in the restaurant, in response to a request to pay, that he had “already paid” for the soda. This evidence is too minimal and insubstantial to have supported an instruction on the claim of right defense.
Finally, we would find under any standard of review that an error in failing to give an instruction on the claim of right defense was harmless. (Compare People v. Watson (1956) 46 Cal.2d 818, 836 with Chapman v. California (1967) 386 U.S.18, 26; and see also People v. Demetrulias (2006) 39 Cal.4th 1, 23 [even assuming an instruction on the claim defense should have been given, the error was harmless even under the heightened constitutional standard articulated in Chapman].) Given the testimony of the multiple employee witnesses that Franklin did not pay for the soda, and the evidence showing that Montes took the effort (despite her fear) to follow him down the street, and the evidence showing his threats and assault, we are more than amply satisfied that no reasonable juror would have found that Franklin actually believed in his mind that he had the right to take and keep the soda.
DISPOSITION
The judgment is affirmed.
We concur: RUBIN, J., FLIER, J.