Opinion
G056520
01-29-2020
THE PEOPLE, Plaintiff and Respondent, v. DAVID EUGENE HANRAHAN, Defendant and Appellant.
Nancy Susan Brandt, 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, Andrew Mestman and Arlene A. Sevidal, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15NF2170) OPINION Appeal from a judgment of the Superior Court of Orange County, Gary S. Paer, Judge. Affirmed. Nancy Susan Brandt, 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, Andrew Mestman and Arlene A. Sevidal, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury convicted David Eugene Hanrahan of attempted second degree robbery (Pen. Code, §§ 211; 212.5, subd. (c); 664, subd. (a); all further statutory references are to this code). The trial court suspended imposition of sentence and instead placed Hanrahan on three years' formal probation, with the condition that he serve 180 days in jail. Although the court instructed the jury on attempted petty theft as a lesser included offense of robbery, Hanrahan contends an instruction on attempted "grand theft of the person" was also required. He argues he received constitutionally ineffective assistance of counsel when his attorney failed to make that request or to craft a pinpoint instruction regarding force. Hanrahan further asserts the prosecutor committed misconduct in closing argument. As we explain, we find no instructional error and, in any event, any conceivable error was harmless under the facts here. Nor was there prosecutorial misconduct. We therefore affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In August 2015, 73-year-old Elaine B. and her daughter, Gretchen B., were putting bags of groceries in the trunk of their car in an Anaheim parking lot. Gretchen told her mother to move her purse from the grocery cart and keep it close to her. Elaine testified she had the purse in the trunk while she was loading the groceries, but when she noticed someone had "got[ten] out of a car and came over," she moved the purse to her shoulder. At that point, she was "just kind of adjusting" the loaded groceries. She wore the two straps of the purse over her shoulder, with the purse itself tucked underneath her arm.
Gretchen testified she noticed a car pass "too close," which gave her a "weird" feeling, as she and her mother were putting away the groceries. As Gretchen returned the cart to its corral, about 20 feet away, she saw the same car nearby and heard her mother yell, "That's my purse." She also heard her mother cry out to Hanrahan, whom Gretchen later identified in court, not to "take [it], not my purse."
Elaine testified the man "came running up to me and grabbed ahold of my purse and tried to yank it off my arm." When he pulled on the purse, she responded, "That's my purse. You can't have it." He would have succeeded in taking it, but Elaine "grabbed it and turned like this to try to keep him from getting it," explaining in court that she "turned to the left and pulled this way," hunching her body down and away from Hanrahan.
At the start of the confrontation, Gretchen rushed toward the car, yelling, "Hey, that's my mom." Gretchen testified that Elaine and Hanrahan both had their hands on the purse at the same time, and she described them as "fighting for it." Gretchen described it as a "tug of war" in which Hanrahan moved "like two steps back," then Elaine pulled the other way. Elaine "was tugging . . . . He moved back. She moved towards him. And then she moved back, and he moved in." Gretchen testified her mother was shocked and appeared "shookin'" up.
Elaine described the incident as a "scuffle" that was over in "a jiffy. A minute or so." People in nearby cars had begun honking their horns. Hanrahan relinquished his grip, and Elaine saw him jump into his car; she said he "left in a big hurry." Hanrahan drove away erratically, ignoring stop signs and failing to signal. Both Elaine and another patron managed to recall portions of Hanrahan's vehicle license plate. He was later apprehended by police.
Hanrahan testified. He claimed that as he drove through the parking lot, he saw an older lady, who reminded him of his aunt, loading groceries in her car. Thinking she needed assistance, Hanrahan exited his car. He thought he said, "Let me help you with this," or "Here's your bag," as he picked up one of the bags in the shopping cart. He said the bag was not on her shoulder. The woman screamed and took the bag. Hanrahan testified he did not try to take it back from her. He then heard and saw another woman yelling and running towards him while making a growling noise. Hanrahan retreated into his car and departed because he was scared. He claimed the incident was a misunderstanding and that he was not trying to hurt anyone.
DISCUSSION
1. Instructional Claim
Hanrahan contends that in addition to attempted petty theft, on which the trial court instructed the jury, the court should also have given an instruction on attempted grand theft "of the person" as a lesser included offense of attempted robbery. Hanrahan's argument involves the interplay of two statutory enactments regarding theft—the original Penal Code provisions passed by the Legislature and recent revisions enacted by the electorate in Proposition 47. Before addressing Hanrahan's arguments, we must review both statutory schemes and determine how the latter altered the former.
A. Grand Theft and Petty Theft
The Penal Code has long divided theft into two degrees, "the first of which is termed grand theft; the second, petty theft." (§ 486.) Grand theft is a "wobbler" offense, punishable as either a felony or a misdemeanor depending on the circumstances. (§ 489; see People v. Morales (2016) 63 Cal.4th 399, 404 (Morales).) Petty theft is punishable by a "fine not exceeding one thousand dollars ($1,000), or by imprisonment in the county jail not exceeding six months, or both. (§ 490.)
Section 487 identifies conduct constituting grand theft. First, subdivision (a) makes it grand theft to steal money, labor, or property with a value exceeding $950. Subdivision (b) makes it grand theft to steal various agricultural and aquacultural products with a value exceeding $250. Subdivision (c), on which Hanrahan bases his claim, makes it grand theft to steal property "from the person of another," regardless of the property's value. Finally, under subdivision (d), it is grand theft to steal an automobile or firearm of any value. "In sum, section 487 makes it grand theft to steal more than $950 worth of anything; more than $250 worth of the crops or critters listed in subdivision (b); anything at all from the victim's person; or any cars or guns." (People v. Romanowski (2017) 2 Cal.5th 903, 907 (Romanowski).)
Historically, the crime of stealing property from the person was punishable as a felony, even if the stolen item's value was low, because the crime was considered a "more heinous offense than ordinary or common theft—partly by reason of the ease with which it can be perpetrated and the difficulty of guarding against it, and partly because of the greater liability of endangering the person or life of the victim." (People v. McElroy (1897) 116 Cal. 583, 584.)
"Theft in other cases is petty theft." (§ 488.) In other words, "petty theft [is] defined in the negative, by what it [is] not." (People v. Van Orden (2017) 9 Cal.App.5th 1277, 1287-1288 (Van Orden).)
B. Proposition 47
In 2014, California voters altered the above statutory framework by passing Proposition 47, the Safe Neighborhoods and Schools Act, which downgraded several nonviolent drug- and theft-related crimes from felonies to misdemeanors. (Harris v. Superior Court (2016) 1 Cal.5th 984, 988; Morales, supra, 63 Cal.4th at p. 404.) The downgrade is inoperative only when precluded by the defendant's criminal history. The proposition's primary purpose included "reduc[ing] the number of prisoners serving sentences for nonviolent crimes, both to save money and to shift prison spending toward more serious offenses." (Romanowski, supra, 2 Cal.5th at p. 907.)
Defendants with prior convictions for sexually violent offenses, lewd acts with a child under age 14, and other specified offenses are ineligible for the downgrade to petty theft. (See § 490.2, subd. (a).) As "[t]he summary of the proposition's purpose and intent . . . stated, 'In enacting this act, it is the purpose and intent of the people of the State of California to: [¶] (1) Ensure that people convicted of murder, rape, and child molestation will not benefit from this act.'" (People v. Montgomery (2016) 247 Cal.App.4th 1385, 1391.)
Proposition 47's statutory changes include the addition of section 490.2, which provides: "Notwithstanding Section 487 or any other provision of law defining grand theft, obtaining any property by theft where the value of the . . . personal property taken does not exceed nine hundred fifty dollars ($950) shall be considered petty theft and shall be punished as a misdemeanor." (§ 490.2, subd. (a), italics added.) This new language "broadly reduced punishment for 'obtaining any property by theft' where the value of the stolen [item] is less than $950." (Romanowski, supra, 2 Cal.5th at p. 906.)
Section 490.2 thus "redefined" (Van Orden, supra, 9 Cal.App.5th at p. 1287) and "expanded the offense of petty theft" (id. at p. 1288). It effectively "abolished the former theft regime that utilized property categories (e.g., cars and avocados) and replaced it with an entirely value-based regime—the $950 threshold. . . . [It] eliminate[d] any previous categorization of thefts, such that all theft offenses—regardless of whether the statute setting out the theft explicitly identified it as grand or petty—must be considered petty if the offense involves property worth $950 or less." (Id. at pp. 1291-1292.)
Thus, although Proposition 47 did not expressly amend section 487, it implicitly rewrote it. Before Proposition 47, "[s]ection 487 . . . made it 'grand theft' to steal automobiles, as well [as] to steal 'from the person of another.' (§ 487, subds. (c)-(d).) These forms of theft previously required no evidence of the value of the stolen property. Now they do." (Romanowski, supra, 2 Cal.5th at p. 911.) "[A]fter the passage of Proposition 47, 'obtaining any property by theft' constitutes petty theft if the stolen property is worth less than $950. Of course, section 487, subdivision (a), already made it grand theft to steal property worth over $950. But various other theft provisions carved out separate categories of grand theft based on the type of property stolen, with either a lower value threshold or no value threshold at all. These are the provisions that Proposition 47 modified by inserting a $950 threshold." (Id. at p. 908, fn. omitted.)
C. Lesser Included Offense Instructions
Theft is a lesser included offense of robbery; robbery requires the taking be accomplished by force or fear. (People v. Williams (2013) 57 Cal.4th 776, 799 (Williams); see § 211.) It is the use of force or fear that turns a theft into a robbery. (People v. Jones (1992) 2 Cal.App.4th 867, 869; People v. Mungia (1991) 234 Cal.App.3d 1703, 1707.) Hanrahan argues he was entitled to an instruction on grand theft "from a person" under section 487, subdivision (c), as a lesser included offense of robbery.
"California law has long provided that even absent a request, and over any party's objection, a trial court must instruct a criminal jury on any lesser offense 'necessarily included' in the charged offense, if there is substantial evidence that only the lesser crime was committed. This venerable instructional rule ensures that the jury may consider all supportable crimes necessarily included within the charge itself, thus encouraging the most accurate verdict permitted by the pleadings and the evidence." (People v. Birks (1998) 19 Cal.4th 108, 112.) "[A] trial court errs if it fails to instruct, sua sponte, on all theories of a lesser included offense which find substantial support in the evidence." (People v. Breverman (1998) 19 Cal.4th 142, 162 (Breverman).) "We independently review a trial court's failure to instruct on a lesser included offense." (People v. Cook (2006) 39 Cal.4th 566, 596.)
D. Application
Before the enactment of Proposition 47, Hanrahan's attempt to take Elaine's purse from her person would have constituted attempted grand theft under section 487, subsection (c). Proposition 47, however, amended section 487 by transforming theft of property "from the person of another" from grand theft to petty theft, unless the property stolen was worth over $950 or the defendant was disqualified. (§ 490.2, subd. (a).) Here, there was no evidence that Elaine's purse and its contents were worth more than $950 or that section 490.2 did not apply to Hanrahan. Thus, he was entitled to—and the jury properly received—a lesser included offense instruction on petty theft.
Pertinent to the $950 threshold, Elaine testified her purse was worth about $35 and contained $100 in cash, other items totaling about $30, a Samsung "smart phone," and three credit cards that the prosecutor made no attempt to value. Regarding the phone, the trial court sustained defense counsel's objection to Elaine's statement that her son "got it for me" for "I think around $300."
Hanrahan argues that section 490.2 did not make any substantive change to section 487, subdivision (c), but instead amended it only for sentencing purposes. In effect, he argues the crime of "theft from a person" is a species of theft distinct from all others—entirely independent from whether it is punished as petty or grand theft. We are not persuaded.
By its terms, section 487 does not purport to establish different types of theft as independent crimes. Instead, it identifies conduct that constitutes "grand" theft (§ 487). The purpose of section 487 and related provisions is to differentiate thefts by degree, not kind. (§ 486.) Thus, the statutory framework does not indicate an additional crime exists for "theft from a person" outside the parameters of sections 487 and 490.2. To the contrary, the relevant code provisions state only that grand theft is theft in the first degree, and that all others are petty, second degree theft. (§§ 486, 488.) Section 487 does not establish an independent theft crime, only the degree of certain types of theft.
Nor do we agree with Hanrahan's argument that section 490.2 merely creates an alternative sentencing scheme. To the contrary, its express language identifies dual purposes—both to specify misdemeanor punishment where it applies ("shall be punished as a misdemeanor") and to redefine formerly grand theft offenses ("shall be considered petty theft"). (§ 490.2, subd. (a).) Focusing on the word "considered," Hanrahan suggests the electorate in using the phrase "shall be considered petty theft" meant that the operative change was a nominal shift in form or designation, but not substance. According to Hanrahan, the change did not eliminate an underlying theft offense defined by section 487, subdivision (c).
This argument fails for two reasons. First, it assumes rather than proves that section 487, subdivision (c), defines "theft from a person" as an independent offense rather than a degree of theft. Second, the purpose of section 487 is to divide thefts into degrees of grand or petty, not to establish different theft offenses constituting independent crimes.
Additionally, section 490.2's introductory language—"[n]otwithstanding Section 487 or any other provision of law defining grand theft"—makes clear that section 487, subdivision (c), is not an independent source of statutory authority defining crimes of theft outside the reach of section 490.2, as Hanrahan argues. Instead, this language demonstrates that section 490.2, when applicable, takes precedence over preexisting statutory provisions. The '"[n]otwithstanding any other law"' language eliminated potential conflict with existing law (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 524), thereby establishing the new enactment's priority. The introductory language saves section 490.2's "ameliorative operation . . . against interference from other statutory provisions defining certain conduct as grand theft." (People v. Page (2017) 3 Cal.5th 1175, 1186.)
In sum, we see no reason to adopt Hanrahan's view that section 487, subdivision (c), defines an independent "theft from a person" offense on which the jury must be instructed as a lesser included offense of robbery. It simply defines—in tandem with section 490.2—the degree of a theft, which under the circumstances here could only be petty theft. The court therefore properly instructed the jury on petty theft as a lesser included offense of robbery, and no additional instruction on "theft from a person" was necessary.
E. Ineffective Assistance of Counsel
Hanrahan contends he received ineffective assistance of counsel (IAC) with respect to the issue of lesser included robbery instructions. Hanrahan's claim only strengthens our conclusion that no additional lesser included instructions were required. He argues counsel should have requested a pinpoint instruction on the "quantum of force" necessary for the jury to differentiate between attempted robbery and attempted "theft from a person." He identifies that force as something more "'than just that quantum of force which is necessary to accomplish the mere seizing of the property'" from a person. (Quoting People v. Morales (1975) 49 Cal.App.3d 134, 139.) This, however, is precisely the difference between attempted robbery and attempted theft—whether petty or grand—and the jury was instructed on this distinction in CALCRIM No. 1600.
That instruction told the jury that an attempted taking rises to the level of attempted robbery only when a perpetrator "use[s] force or fear to take the property." (CALCRIM Nos. 1600 (robbery) & 460 (attempt), italics added.) In contrast, the court instructed the jury that petty theft or attempted petty theft occurs when the defendant "took the property" or attempted to take it, and "moved [it]" or attempted to move it "even a small distance," but implicitly without the "force or fear" element of robbery, which the petty theft instruction omitted. (CALCRIM Nos. 1800 & 460.)
In our view, "taking" and "force and fear" are not opaque terms. As the Supreme Court has explained, '"[T]he terms "force" and "fear" as used in the definition of the crime of robbery have no technical meaning peculiar to the law and must be presumed to be within the understanding of jurors."' (People v. Anderson (2007) 152 Cal.App.4th 919, 946.)
Because the instructions told the jury that both petty theft (CALCRIM No. 1800) and robbery (CALCRIM No. 1600) involved the taking of property, but the latter also required "force or fear," we conclude a pinpoint instruction on gradations of force was not necessary. By differentiating between instances where a defendant made the necessary physical motion only to take and move property, but without using "force or fear" to do so, the instructions adequately distinguished between, on one hand, pickpocketing and a surprise, unresisted purse snatching, and, on the other hand, robbery or attempted robbery involving force or fear. The difference can be slight, given that "[e]ven a purse snatching can constitute a robbery if the victim simply resists the effort to wrest the purse away." (In re Jeremiah S. (2019) 41 Cal.App.5th 299, 308.) But by distinguishing between a mere taking and a taking in which the defendant also employs force or fear, the instructions correctly stated the law. (Williams, supra, 57 Cal.4th at p. 799; see § 211.)
Because the instructions correctly stated the law, Hanrahan was not entitled to a pinpoint instruction, and his attorney therefore did not render ineffective assistance of counsel by failing to request one. (People v. Smithey (1999) 20 Cal.4th 936, 986-987.) Where the given instructions adequately advise the jury of the law, competent counsel reasonably may conclude a pinpoint instruction is unnecessary. (Ibid.; People v. Castillo (1997) 16 Cal.4th 1009, 1018.) Nor did counsel render ineffective assistance by failing to request an instruction on "theft from a person" as a lesser included offense of robbery since there is no such independent theft crime requiring an additional instruction beyond the petty theft instruction the trial court gave.
F. Harmless Error
Even assuming for the sake of argument that the trial court and counsel erred respectively by not sua sponte providing or requesting the "theft from a person" instruction Hanrahan claims was necessary, any error was harmless. Hanrahan contends the absence of such an instruction presented the jury with an unnecessary and coercive "all or nothing" choice between felony attempted robbery and misdemeanor petty theft when an intermediate, wobbler-level option of personal theft would have more accurately reflected the facts. He argues the jury reasonably could have concluded he did not utilize, and did not intend to utilize, force or fear to take Elaine's purse, but instead she generated the additional force beyond that constituting a mere taking when she turned away from him and held tight. We cannot agree.
As noted, the jury was instructed on the requisite force or fear—and the corresponding specific intent to employ force or fear—required for attempted robbery. The question Hanrahan presented to the jury was whether to credit his testimony that he "picked up a bag" to be helpful to Elaine. He did not specify whether the bag was a grocery bag or a purse, testifying instead that he "did not grab anyone's purse, uh, on purpose." The task for the jury therefore was to decide whether Hanrahan's conduct was entirely innocent or whether, as Gretchen testified, there was a "tug of war" over the purse as Hanrahan tried to steal it while Elaine resisted. In light of the testimony and the petty theft instruction that omitted the force or fear element, we do not believe it is reasonably probable the jury would have found Hanrahan guilty of "theft from a person" rather than robbery if such an instruction had been given. Any error was therefore harmless. (Breverman, supra, 19 Cal.4th at pp. 165, 177-178.)
2. Prosecutorial Misconduct
Hanrahan argues he did not receive a fair trial because the prosecutor committed three types of misconduct during closing argument. "'[T]he term prosecutorial "misconduct" is somewhat of a misnomer to the extent that it suggests a prosecutor must act with a culpable state of mind. A more apt description [is] prosecutorial error.'" (People v. Centeno (2014) 60 Cal.4th 659, 666-667.) The applicable law is well-settled: '"Under California law, a prosecutor commits reversible misconduct if he or she makes use of "deceptive or reprehensible methods" when attempting to persuade either the trial court or the jury, and it is reasonably probable that without such misconduct, an outcome more favorable to the defendant would have resulted. [Citation.] Under the federal Constitution, conduct by a prosecutor that does not result in the denial of the defendant's specific constitutional rights . . . is not a constitutional violation unless the challenged action '"so infected the trial with unfairness as to make the resulting conviction a denial of due process.'"'" (People v. Fuiava (2012) 53 Cal.4th 622, 679.) As we explain, there was no misconduct here.
Respondent argues Hanrahan forfeited his claim of prosecutorial error by failing to object below. (People v. Gamache (2010) 48 Cal.4th 347, 371; People v. Panah (2005) 35 Cal.4th 395, 462.) Hanrahan claims an objection would have been futile because the court overruled other misconduct objections. Respondent points out, however, that the court simultaneously admonished the jury that arguments of counsel are not evidence. Respondent also highlights that the court sustained numerous defense objections throughout the trial, undercutting the claim of futility. Because the record is clear that counsel's performance was not deficient, we will address the claim briefly to eliminate it from potential habeas consideration. (People v. Crittenden (1994) 9 Cal.4th 83, 146.)
Hanrahan contends the prosecutor committed misconduct by telling the jury he lied on the stand. It may be improper for a prosecutor to resort to epithets like "liar" or "perjurer" (People v. Ellis (1966) 65 Cal.2d 529, 540), and to tell the jury that he or she "personally believed the defense witness to be telling an 'outright lie'" (People v. Johnson (1981) 121 Cal.App.3d 94, 102, italics added), but our review of the record discloses the prosecutor did neither.
The prosecutor did not call Hanrahan names during or after his testimony, nor did he express a personal belief about the testimony. Instead, statements here such as calling out Hanrahan's initial claim to police that he was not present and that he did not speak to the women as untruths, and questioning Hanrahan's clear memory of certain details before the incident, but inability to recall grabbing Elaine's purse, qualified as fair comment expressly asking the jury to "consider all of the other evidence in this case." A prosecutor may refer to testimony as '"lies"' provided the argument is based on the evidence rather than personal belief. (People v. Sandoval (1992) 4 Cal.4th 155, 180.) There was no error.
Hanrahan asserts the prosecutor personally vouched for Gretchen's testimony. The prosecutor stated: "We heard from Officer Edwards that [Hanrahan] matched the description that he was given of the individual involved in the robbery. That further enhances the reliability of every single other thing that [Gretchen] saw. She got that right and she got everything else right in this case. Ladies and gentlemen, what she saw is what happened."
A prosecutor may not vouch for the credibility of witnesses or otherwise bolster the veracity of their testimony by referring to evidence outside the record. The prosecutor here did neither. (People v. Caldwell (2013) 212 Cal.App.4th 1262, 1269.) The excerpt above shows the prosecutor was commenting on the evidence and suggesting reasonable inferences to be drawn from the evidence, including Gretchen's ability to provide an accurate description of what Hanrahan was wearing, given that it matched the officer's description. The court's instructions directed the jury to consider "[h]ow well" the witnesses could "see, hear, or otherwise perceive the things about which [they] testified." (CALCRIM No. 226.) The prosecutor did not err in exhorting the jury that this same principle increased Gretchen's credibility.
Hanrahan asserts the prosecutor misstated the evidence by arguing several times that he used force sufficient to pull Elaine "two feet." Gretchen testified that Hanrahan took two steps back while grabbing Elaine's purse and that, as he pulled, Elaine "moved towards him. And then she moved back, and he moved in. It was a tug of war." Fair comment by the prosecutor includes '"reasonable inferences [and] deductions to be drawn therefrom."' (People v. Wharton (1991) 53 Cal.3d 522, 567.) Summarizing Hanrahan's two steps back and Elaine's corresponding movement as "two feet" reasonably approximated Gretchen's testimony, and may even have understated Elaine's movement. It did not constitute misconduct. Nothing in Hanrahan's claims of prosecutorial error requires reversal.
DISPOSITION
The judgment is affirmed.
GOETHALS, J. WE CONCUR: BEDSWORTH, ACTING P. J. ARONSON, J.