Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC472451
RUSHING, P.J.
Defendant Frank Lazos, Jr. was convicted following a jury trial of second degree robbery (Pen. Code, § 211, 212.5, subd. (c)), and petty theft (§ 484). On appeal, defendant asserts there was not substantial evidence of the element of force or fear to support the robbery conviction. Defendant also argues the trial court erred in instructing the jury. Finally, defendant asserts his conviction for petty theft must be reversed, because it is a lesser included offense to robbery.
All further statutory references are to the Penal Code.
Statement of the Facts and Case
On November 11, 2004, defendant walked into B & A Doughnuts in San Jose around 8:00 a.m. Bhauder Aktar owned the store, and was there that morning alone. There was no one else in the store at the time.
Defendant ordered four or five ham and cheese croissants, four or five milk and juice drinks. Aktar put the croissants in one bag, and the drinks in another and handed them to defendant. He then asked defendant if he wanted the croissants heated, to which defendant replied: “No, it’s okay.” Aktar totaled the order on the cash register, at which point Aktar testified defendant pulled out a knife.
Aktar testified that at first, defendant held the knife in his right hand, down by his side. Defendant then raised the knife up, about waist high, and moved it down and forward. This motion caused the knife blade to extend. Aktar testified that the knife blade was five to eight inches long. Aktar immediately stepped back about five or six feet because he was scared defendant was going to hit him. As Aktar stepped back, he fell to the ground.
Defendant then tried to open the cash register by pressing buttons with his left hand, while he held the knife with his right. The cash register did not open. Three women then entered the door, causing the door to chime. Defendant turned to look, saw the women, grabbed the food and drinks and fled the store.
The women asked Aktar what happened. Aktar asked the women to watch the store. Aktar went outside, where he found a friend of his. The two of them chased after defendant. Aktar saw defendant enter an apartment building, at which point, he returned to the store and called 911.
When the police arrived at Aktar’s store, his friend had left to go to work. Aktar talked to the police, who took him to an in-field show-up where Aktar identified defendant as the person who had stolen the food. The police returned Aktar to his store, and later brought back the stolen food and drinks, worth about $25.
The police found defendant around 8:30 a.m., about one quarter of a mile from the doughnut shop, standing behind two big trucks talking to one of the drivers. Defendant had some chocolate milk in a plastic bag.
Crystal Mills was living at 337 Checkers Drive in San Jose with her daughter and her mother. Defendant was the father of Mills’s child, and although he did not live with her, he spent the night at their home on November 10, 2004. Mills woke up that morning hearing defendant tell her roommate that he was dropping off some food for Mills and the baby. After defendant left around 8:15 a.m., Mills found a bag with orange juice and some croissants. The police arrived at the house about 15 minutes later, and took the croissants and the orange juice. The police never found the knife defendant used in the robbery.
The parties stipulated that Aktar called 911 that morning, and a tape of the conversation was played for the jury. Aktar told the dispatcher that the robber showed him a knife when Aktar asked him to pay for the food and drinks. Aktar described the knife as a switchblade, with a blade portion being about six to eight inches long.
An information was filed on December 9, 2004, charging defendant with one count of second degree robbery (§§ 211, 212.5, subd. (c)), and one count of commercial burglary (§§ 459, 460, subd. (b)). In addition, the information alleged that with respect to the robbery charge, defendant personally used a knife (§ 12022, subd. (b)(1)).
Defendant was convicted following a jury trial of robbery. The jury acquitted defendant of commercial burglary, but convicted him of the lesser included offense of petty theft (§ 484). The jury found the personal use of the weapon allegation not true.
In April 2005, the court suspended imposition of sentence, and placed defendant on probation.
In January 2009, this court granted defendant relief form default for not timely filing a notice of appeal. Defendant subsequently filed a notice of appeal.
Discussion
Sufficiency of Evidence of Force or Fear to Support the Robbery Conviction
Defendant asserts there was insufficient evidence of the element of force or fear to support his conviction for robbery. Specifically, defendant argues the fact that the jury found defendant did not use a weapon negates the force or fear element. In addition, defendant asserts that even though the victim testified he was in fear, his fear was not objectively reasonable, and as such, did not support the element for the robbery conviction.
In reviewing the sufficiency of the evidence to support a conviction, we determine “ ‘whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged.’ [Citations.]” (People v. Crittenden (1994) 9 Cal.4th 83, 139, fn. 13.) Under such standard, we review the facts adduced at trial in full, and in the light most favorable to the judgment, drawing all inferences in support of the judgment to determine whether there is substantial direct or circumstantial evidence the defendant committed the charged crime. (People v. Hillhouse (2002) 27 Cal.4th 469, 496.) The test is not whether the evidence proves guilt beyond a reasonable doubt. Rather, the test is whether substantial evidence, of credible and solid value, supports the jury’s conclusions. (People v. Arcega (1982) 32 Cal.3d 504, 518.)
In making the determination of whether there is substantial evidence to support the verdict, we do not reweigh the evidence. The credibility of witnesses and the weight to be accorded to the evidence are matters exclusively within the province of the trier of fact. (Evid. Code, § 312.) Simply put, we consider whether “ ‘ “any rational trier of fact could have found the essential elements of [the charged offenses] beyond a reasonable doubt.” ’ [Citations.]” (People v. Rich (1988) 45 Cal.3d 1036, 1081.) We will not reverse the conviction unless it is clearly shown that “on no hypothesis whatever is there sufficient substantial evidence to support the verdict.” (People v. Hicks (1982) 128 Cal.App.3d 423, 429.)
Robbery is “the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” (Pen. Code, § 211.)
Here, defendant asserts the element of force or fear was not present, because the jury specifically found that there was no use of a weapon. However, the victim in this case testified to defendant’s use of a knife, and in fact stated defendant used a knife to the police dispatcher when reporting the crime, the police officer, the defense investigator and ultimately, to the jury at trial.
Moreover, regardless of the existence or non-existence of the knife in this case, the victim testified he was in fear, moving back from defendant five or six feet and ultimately falling backward to the ground. After the victim fell to the ground, defendant reached over and tried to open the cash register by pushing buttons, but he was unsuccessful. As defendant was attempting to open the register, customers walked in the door, and defendant fled with the food.
Defendant’s conduct in this case caused the victim to be in fear. “ ‘Where intimidation is relied upon, it [can] be established by proof of conduct, words, or circumstances reasonably calculated to produce fear.’ ” (People v. Borra (1932) 123 Cal.App. 482, 484; People v. Brew (1991) 2 Cal.App.4th 99, 104 (Brew).) In Brew, a cashier in a drug store was robbed when the defendant, considerably larger than the cashier, with alcohol on his breath, stood close to her, without a barrier or counter between them, causing the cashier to step back from the cash register drawer in fear. The court in Brew found the element of force or fear was present to support the robbery conviction. (Id. at p. 104.)
Defendant attempts to distinguish Brew from his case. Initially, defendant notes the similarities between Brew and the present facts, in that like Brew, in this case, defendant argues there was no weapon, no threats and no assault. However, defendant notes the differences between the cases are significant. Unlike Brew, here, there was no size difference between defendant and the victim, and there was a barrier between defendant and the victim in this case. These differences, defendant asserts, require a finding that there was no force or fear in the present case to support the conviction.
Defendant’s reliance on Brew is misplaced. The fact that there was a barrier between the victim and defendant, and no significant size difference between the two does not necessitate a finding that there was no force or fear in the present case. The victim testified that he was in fear, and his actions of stepping back from defendant and ultimately falling to the ground demonstrate his fear at the time.
Moreover, the use of a knife is not necessary to the element of force or fear for robbery. Here, the jury’s finding that defendant did not use a weapon is clearly inconsistent with the victim’s testimony that defendant had a knife. However, whether or not defendant had a knife does not affect the fact the victim was in fear, and acted consistently with being in fear by moving and falling back from defendant.
We find the victim’s testimony and conduct provided substantial evidence of the element of force or fear to support the robbery conviction.
Objectively Reasonable Fear
Defendant argues that because the jury found the use of a weapon allegation not true, the victim’s fear in this case was not objectively reasonable, and therefore, does not support the element of fear required for robbery.
In order to establish the fear element for robbery, there must be evidence “ ‘from which it can be inferred that the victim was in fact afraid, and that such fear allowed the crime to be accomplished.’ [Citation.] Actual fear may be inferred from the circumstances, and need not be testified to explicitly by the victim. [Citation.]” (People v. Cuevas (2001) 89 Cal.App.4th 689, 698.)
Defendant finds support for his assertion that fear must be objectively reasonable in the element of other crimes, such as kidnapping (People v. Curry (2007) 158 Cal.App.4th 766, 781), and rape (People v. Iniguez (1994) 7 Cal.4th 847 (Iniguez). In Iniquez, the court held that the element of fear of immediate and unlawful bodily injury has two components, one subjective and one objective. “The subjective component asks whether a victim genuinely entertained a fear of immediate and unlawful bodily injury sufficient to induce her to submit to sexual intercourse against her will. In order to satisfy this component, the extent or seriousness of the injury feared is immaterial. [Citations.] [¶] In addition, the prosecution must satisfy the objective component, which asks whether the victim’s fear was reasonable under the circumstances, or, if unreasonable, whether the perpetrator knew of the victim’s subjective fear and took advantage of it.” (Iniguez, supra, 7 Cal.4th at pp. 856-857.)
Defendant posits that since the definition of fear for kidnapping and rape include an objective standard, so too should the element of fear in robbery. However, he cites no cases for the proposition that the element of fear for robbery includes a component of objective reasonableness. Indeed, the requirement for fear as an element of robbery expressed consistently throughout the cases is that the victims subjectively experience it, and circumstances surrounding the defendant and victim’s actions can be interpreted to determine whether the victim actually experienced fear. Fear may be inferred from the circumstances despite even superficially contrary testimony of the victim. (See People v. Renteria (1964) 61 Cal.2d 497, 499 [in robbery prosecution, People not bound by clerk’s testimony that he was not in fear, since there was other evidence to support conclusion “ ‘that he acted in fear and would not have disgorged the contents of his employer’s till except in fear of the harm which might come to him or his employer if he failed to comply with defendant’s demands’ ”]; People v. Borra, supra, 123 Cal.App. 482, 484-485 [not necessary that there be proof of actual fear, as fear may be presumed where there is just cause for it, and thus “ ‘In spite of the bravado of the merchant in declaring that he was not much afraid, we are inclined to believe he meant he was not afraid of receiving bodily harm so long as he complied with the demands of the robber’ ”]; see also Brew, supra, 2 Cal.App.4th 99, 104 [cashier in retail store robbed when defendant, considerably larger than she, with alcohol on his breath, stood close to her, without barrier or counter between them, causing cashier to step back from cash register drawer in fear]
“[W]hen the prosecution seeks to prove a robbery was committed by means of fear, it must present evidence ‘from which it can be inferred that the victim was in fact afraid, and that such fear allowed the crime to be accomplished.’ [Citation.] Actual fear may be inferred from the circumstances, and need not be testified to explicitly by the victim.” (People v. Cuevas, supra, 89 Cal.App.4th 689, 698.) There is no requirement in the law that the fear required for robbery has an objective component that must be proven, in addition to actual fear.
Force or Fear in the Taking of the Property
Defendant asserts the evidence in this case was insufficient to support a finding that the taking of the food was accomplished through force or fear. Specifically, defendant argues he simply took the food and drinks without paying for them, and that any fear the victim experienced was from the attempted robbery of the cash register.
While it is true that the victim handed defendant the bag of food and drinks in anticipation of defendant paying for them, and did not actually experience fear until he saw defendant with a knife, this fact does not negate the force or fear element of robbery. “[M]ere theft becomes robbery if the perpetrator, having gained possession of the property without use of force or fear, resorts to force or fear while carrying away the loot. [Citations.]” (People v. Cooper (1991) 53 Cal.3d 1158, 1165, fn. 8.) The underlying legal theory is that a robbery occurs when a defendant, having already committed a theft without force or fear, proceeds to use force or fear to retain the property, still in the victim’s constructive possession, against the victim’s will and from the victim’s immediate presence, with the specific intent to permanently deprive him of that property. (See People v. Estes (1983) 147 Cal.App.3d 23, 25-28.)
Here, defendant may in fact have come into possession of the property without the use of force or fear, but when he was asked to pay for those items, he employed fear and intimidation to maintain possession and leave with the items. This conduct satisfies the requirement for the element of force or fear to support a robbery. (People v. Cooper, supra, 53 Cal.3d at p. 1165, fn. 8.)
Instructional Error
Defendant asserts the trial court erred in failing to instruct the jury that it needed to find the victim’s fear was objectively reasonable in order to convict him of robbery.
Section 211 defines robbery as “the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” The trial court gave the standard instruction set forth in former CALJIC No. 9.40. During deliberations, the jury asked the court for the “legal description of force and fear, and does it have to include a weapon (knife).” At this point, the court instructed the jury with a modified version of former CALJIC No. 9.41 as follows: “The element of fear in the crime of robbery is[:] the fear of an unlawful injury to the person or the property of the person robbed. The word ‘force’ does not have a special legal definition. The element of ‘force or fear’ does not require the use of a weapon.”
Defendant argues the trial court erred in instructing the jury regarding the fear element of robbery. He asserts that the trial court should have altered the definition of fear by instructing the jury that it had to find the robbery victim’s fear was not only actual but also objectively reasonable.
“The general rules regarding a trial court’s obligation to instruct the jury suasponte in a criminal case are well established. ‘ “It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.” ’ ” (People v. Freeman (1978) 22 Cal.3d 434, 437.) Furthermore, the law is settled that the fear element of robbery has no technical meaning that must be explained to the jury. (People v. Anderson (1966) 64 Cal.2d 633, 639.)
Defendant contends, in effect, that it is a general principle of law, on which the court was required to instruct sua sponte in this case, that the “fear” required for robbery has an objective reasonableness component.
As we discussed in the section above regarding the reasonable component of the element of fear, we are not persuaded by defendant’s argument that the prosecution must prove the conduct of the defendant caused the victim to incur actual fear of injury to himself or a family member, and that such fear is that which a reasonable person would suffer under the same circumstances. In our view, such is not a general principle of law governing this robbery case, where the victim testified in no uncertain terms that he was, in fact, actually afraid and that he believed defendant had a knife and would harm him. Therefore, the court had no sua sponte duty to so instruct.
Because we find the law does not require proof of objectively reasonable fear as an element of robbery, we need not address defendant’s alternative argument that his trial counsel was ineffective for failing to request a modified jury instruction to that effect.
Lesser Included Offense of Petty Theft
Defendant asserts, and the Attorney General concedes that in the event we find substantial evidence to support the robbery conviction, the petty theft conviction pursuant to section 484 must be vacated because it is a lesser included offense to robbery.
Petty theft is a lesser included offense to robbery. (People v. Estes, supra, 147 Cal.App.3d at p. 28). In addition, “ [a] defendant cannot be convicted of both the greater offense and the lesser included offense.” (Ibid.) “If the evidence supports the verdict as to the greater offense, the conviction of that offense is controlling, and the conviction of the lesser offense must be reversed. [Citations.]” (People v. Moran (1970) 1 Cal.3d 755, 763 (maj. opn. of Peters, J.).)
Because we find substantial evidence to support the robbery conviction in this case, we must reverse the conviction for petty theft.
Disposition
The judgment is modified to reflect that the conviction of petty theft in violation of Penal Code, section 484 is reversed. As modified, the judgment is affirmed.
WE CONCUR: ELIA, J. DUFFY, J.