Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SF104012A
BLEASE, Acting P. J.
A jury convicted defendant Charles Lockheart of second degree robbery (Pen. Code, § 211) and the trial court sentenced him to the lower term of two years in state prison. Defendant claims there was insufficient evidence to support a robbery conviction, the trial court should have instructed on the lesser included offenses of assault and battery, the trial court erred in denying his motion to dismiss, and the prosecutor committed misconduct.
References to an unnamed section are to the Penal Code.
We find no merit to defendant’s arguments on appeal, and shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
As Marshall Ramirez was walking home from work around 9:00 p.m. on Pershing Avenue in Stockton, California, he heard someone whistling and calling to him in an attempt to get his attention. At first Ramirez ignored the person, but the person got closer and hit Ramirez from behind. Ramirez turned around, saw defendant, then kept walking. Defendant continued to hit Ramirez, punching him in the face and head.
As Ramirez was passing on the sidewalk in front of Eddie’s Liquor Store, two other men came up from the liquor store. Two of the three men attacked him. Defendant was one of the attackers. The other attacker was identified as Robert J. Robert J. wore jeans with patches on them. They punched him, and when he fell to the ground, they kicked him.
When the two began kicking him, Ramirez felt someone rummaging through his pockets. The person with patches on his jeans (Robert J.) kept kicking him while the other one went through his pockets. One of them said something like, “Get his wallet.”
Ramirez eventually was able to run away and get help.
Jose Vega owned a restaurant in the same shopping center as the liquor store. As he looked out toward Pershing Avenue, he saw a black male wearing a black jacket and jeans kicking someone on the ground. Vega identified the attacker as defendant. He also saw another black male come from the liquor store to join the fight. He said that one or two of the men went inside the liquor store when they saw the police. The other one went south on Pershing Avenue, and Vega saw him looking through a wallet as if he were counting money. Vega said he thought it was defendant with the wallet. He saw the police arrest one man in the area of the liquor store. He did not think that person was defendant.
Daniel Harris, a police officer for Delta College, was in the same shopping center when he heard a dispatch regarding a fight in progress. Harris saw defendant walking south on Pershing. He detained defendant. Defendant at first told Harris he had not done anything. He later admitted he had been in a fight, but said it was “no big deal.”
Michael Ward was a police officer with the City of Stockton. He responded to the call regarding the attack on Ramirez, and began searching the area for suspects. He found Robert J. in an area southwest of where the attack had occurred. Robert J. had Ramirez’s driver’s license, social security card, bank card, identification cards, and other items from Ramirez’s wallet in his pants pocket. Robert J. was wearing pants with patches on them when he was arrested.
DISCUSSION
I
Sufficient Evidence for Robbery Conviction
Defendant argues there was insufficient evidence of robbery because there was no evidence he took the wallet from Ramirez. He concedes he attacked Ramirez, but argues Ramirez was unable to tell who took the wallet, and that when apprehended, Robert J. was the only one holding Ramirez’s property.
The jury was instructed that defendant could be guilty of the crime either directly or as an aider and abettor. There was sufficient evidence that defendant took Ramirez’s wallet both directly and as an aider and abettor.
Ramirez testified that defendant was one of two men attacking him, and that the other man had patches on his pants. He stated that while the attacker with patches kicked him, the other one went through his pockets. This was sufficient evidence for a reasonable jury to conclude that defendant, the attacker without the patches on his pants, was the one going through Ramirez’s pockets, from which the jury could logically infer defendant was the one who took the wallet from Ramirez’s pockets. The fact that Robert J., rather than defendant, was found with the contents of Ramirez’s wallet might conceivably lead to the conflicting inference that Robert J. took the wallet. However, we must resolve any conflict in favor of the verdict. (People v. Mack (1992) 11 Cal.App.4th 1466, 1468.)
Additionally, Vega testified he saw defendant looking through a wallet after the attack, as if he were counting money. However, in closing argument the prosecutor told the jury he thought Vega was mistaken when he identified defendant as the person going through the wallet, and that it was clear that Robert J. was the person Vega saw.
For liability under an aiding and abetting theory, the jury must find the defendant acted with knowledge of the perpetrator’s unlawful purpose; intended to commit, encourage, or facilitate the commission of the offense; and by act or advice aided, promoted, encouraged, or instigated the commission of the crime. (People v. Beeman (1984) 35 Cal.3d 547, 561.)
Defendant argues there was no substantial evidence that he had knowledge of Robert J.’s intent to rob Ramirez, or intended to aid Robert J. in the commission of the robbery. He argues there was no evidence he and Robert J. knew each other, and no evidence he knew Robert J. took Ramirez’s wallet. He claims that even though the victim testified he heard one of his attackers say, “get his wallet,” this testimony was discredited when it was revealed Ramirez never told police about this statement, and never mentioned it at the preliminary hearing. Defendant argues he merely assaulted Ramirez, and that Robert J., seeing the assault in progress, seized the opportunity to take Ramirez’s wallet and escape.
The circumstances of the assault were sufficient to allow a reasonable inference that defendant intentionally facilitated the crime of robbery. Proof that an aider and abettor intended to facilitate the crime may be adduced “by way of an inference from [his] volitional acts with knowledge of their probable consequences.” (People v. Beeman, supra, 35 Cal.3d at p. 560.) Assuming for the sake of argument that defendant was not the one who took Ramirez’s wallet, then he was the one kicking Ramirez while Robert J. took the wallet. Ramirez testified he felt someone rummaging through his pockets while the other person was kicking him, ruling out a scenario in which Robert J. stole the wallet when defendant was not present. Thus, even if defendant was unaware of Robert J.’s intent to steal the wallet before the wallet was actually taken, his continuing attacks on the victim during the time it took to find and take the wallet are sufficient evidence of his intent to aid the taking.
Additionally, Ramirez testified one of his attackers told the other attacker to get his wallet. A finding that defendant intended to facilitate the robbery was supported by this evidence alone. The credibility of the witness was the exclusive province of the jury, and not an issue for this court to resolve. (People v. Maury (2003) 30 Cal.4th 342, 403.)
II
Assault and Battery Instructions Were not Required
The trial court instructed the jury on the elements of robbery, but did not instruct on the elements of assault or battery as lesser included offenses of robbery. Defendant contends this was error because the evidence raised a question as to whether he took Ramirez’s wallet and whether he had the specific intent to steal.
“A trial court has a sua sponte obligation to instruct the jury on any uncharged offense that is lesser than, and included in, a greater charged offense, but only if there is substantial evidence supporting a jury determination that the defendant was in fact guilty only of the lesser offense. [Citations.] An uncharged offense is included in a greater charged offense if either (1) the greater offense, as defined by statute, cannot be committed without also committing the lesser (the elements test), or (2) the language of the accusatory pleading encompasses all the elements of the lesser offense (the accusatory pleading test). [Citations.]” (People v. Parson (2008) 44 Cal.4th 332, 348-349.)
The Supreme Court has determined that an assault is not a lesser included offense of robbery under the elements test, but has not made a similar determination under the accusatory pleading test. (People v. Parson, supra, 44 Cal.4th at pp. 349-350.) Similarly we have found no published case holding battery is a lesser included offense of robbery. However, we need not determine whether assault and battery are lesser included offenses of robbery, because we conclude there was not substantial evidence in this case that defendant was guilty of the lesser offenses only.
“[T]he existence of ‘any evidence, no matter how weak’ will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is ‘substantial enough to merit consideration’ by the jury. [Citations.] ‘Substantial evidence’ in this context is ‘“evidence from which a jury composed of reasonable [persons] could . . . conclude [ ]”’ that the lesser offense, but not the greater, was committed. [Citations.]” (People v. Breverman (1998) 19 Cal.4th 142, 162.)
Defendant contends the elements of taking and intent to steal were insufficient to convict him of robbery. As phrased, this is a substantial evidence question. Therefore, his claim may be more accurately phrased as: the evidence that he did not take Ramirez’s wallet, and that he did not intend to steal the wallet was substantial enough to merit consideration by the jury.
The only evidence that defendant did not take the wallet or intend to steal, was that Robert J., not he, was in possession of the contents of the wallet when apprehended. Given the circumstances of the offense, this is minimal evidence of either taking or intent. There was substantial evidence that two people, acting in concert, committed the robbery. The fact that only one of them fled the scene with the wallet is understandable. It would have been highly unlikely for the perpetrators to remain at the scene of the crime, open the wallet, and divide its contents, before fleeing. The fact that only one of them had the wallet contents when apprehended does not indicate that only one of them formed the intent to steal and took the wallet. It was merely a logistical necessity for only one of them to flee the scene with the loot.
The trial court did not err in failing to give instructions on assault and battery as lesser included offenses to robbery.
III
Defendant’s Motion to Dismiss was Properly Denied
Defendant brought a motion pursuant to section 1118.1 following the close of the prosecution’s case. Under that section the court may, upon a defendant’s motion or upon its own motion, order entry of judgment of acquittal if the evidence is insufficient to sustain a conviction.
The standard applied by the trial court on a section 1118.1 motion is the same standard we apply in reviewing the sufficiency of the evidence. (People v. Stevens (2007) 41 Cal.4th 182, 200.) On appeal from denial of the motion, we review the whole record in the light most favorable to the judgment to determine whether there is evidence that is reasonable, credible, and of solid value, such that any reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Dalerio (2006) 144 Cal.App.4th 775, 780.)
Defendant contends there was insufficient evidence of a taking and insufficient evidence of a specific intent to aid and abet the commission of a robbery. We have already determined there was sufficient evidence of a taking, we now turn to the evidence of defendant’s intent.
Defendant argues there was no evidence defendant had a specific intent to aid and abet the robbery. This is not so. The evidence was sufficient for the jury to draw an inference that defendant was the one to rummage through Ramirez’s pockets looking for the wallet, and that one of the two perpetrators told the other to get Ramirez’s wallet. The evidence showed Robert J. continued to kick Ramirez while defendant looked through Ramirez’s pockets. Defendant was the one to initiate the attack. This evidence was sufficient for any jury to conclude defendant had the intent to aid and abet a robbery.
IV
Prosecutorial Misconduct Argument Forfeited
Defendant makes several claims of prosecutorial misconduct, all of which are forfeited for failure to raise a timely and specific objection below.
With some exceptions not present here, a defendant forfeits a claim of prosecutorial misconduct on appeal unless he makes a timely assignment of misconduct on the same ground raised on appeal, and requests the jury be admonished to disregard the misconduct. (People v. Gray (2005) 37 Cal.4th 168, 215.) “‘Because we do not expect the trial court to recognize and correct all possible or arguable misconduct on its own motion [citations], defendant bears the responsibility to seek an admonition if he believes the prosecutor has overstepped the bounds of proper comment, argument, or inquiry.’ (People v. Visciotti (1992) 2 Cal.4th 1, 79, [5 Cal.Rptr.2d 495, 825 P.2d 388].)” (Ibid.)
1. Failure to Instruct Witness
Defendant claims the prosecutor committed error when he failed to instruct a witness not to give improper testimony. The prosecution moved in limine to admit evidence that defendant and Robert J. were seen in the vicinity of a similar robbery near Eddie’s Liquor Store, which occurred earlier the same evening. The prosecution also sought to admit evidence defendant was arrested for a similar robbery near Eddie’s Liquor Store that occurred a few days earlier.
Later, the trial court granted a motion that both sides admonish their witnesses about the outcome of the in limine motions. The court told the prosecutor, “you also need to make sure your officers don’t give any mention to any of the other cases that the Court is not allowing in as [Evidence Code section] 1101.” The court also told the prosecutor, “make sure your witnesses know that nothing that you’re asking them, you’re trying to elicit any such information. They have to be very careful because I know they responded, the reports were interlinked, the way I read them.”
Nevertheless, when the prosecutor asked one of the responding officers what happened when he arrived at Eddie’s Liquor Store, the officer stated, “There was a series of robbery calls that had occurred.” Defense counsel stated, “Well, objection, nonresponsive.” The trial court sustained the objection and struck the response.
Because defendant did not object on the basis the witness disclosed inadmissible evidence and did not request an admonition, the claim of prosecutorial misconduct is forfeited.
2. Closing Argument
Defendant also claims the following statements made by the prosecutor during closing argument constituted misconduct:
(1) “Mr. Ramirez, who testified here. I think he -- he was scared. . . . He didn’t want to be here. He has no -- he has no stake in the outcome of this trial, but he came in here. . . . [A]nd he told the truth and I think he was truthful. He was truthful both times he testified. [¶] The only statements we have from the defendant about what happened that night -- there are two statements he says and one of them a lie. So who are you going to believe, the victim or the defendant?”
(2) “It’s irrelevant who is caught with the stolen property because clearly it’s Robert [Robert J.] who eventually ends up with what’s left of that wallet. Two people can have possession of the same thing. You don’t have to hold onto a piece of property to be guilty of a robbery. You can hold onto it for a short period of time and take it a short distance, that is sufficient taking of someone else’s property.”
(3) “If he’s beating somebody, while somebody is going through that person’s wallet, going through that person’s pockets, he is he’s an aider and abettor. There’s no way you can be attacking someone and not see your co-attacker going through their wallets, going through their pockets. He’s right there. He’s up close. He knows what’s going on.”
(4) “Well, if you’re with somebody else and you’re both fighting somebody, and one of the persons -- one of the people is going through that person’s pants and you continue to fight and you continue to participate in that fight, you’re aiding and abetting. You know what’s happening. You know a robbery is occurring. If you keep fighting at that point, you’re aiding and abetting, regardless of what happened when you walk up to that fight. There is your intent right there under the aiding and abetting theory, there is . . . your guilt right there.”
(5) “The Judge mentioned some lesser included offenses. I’ll leave up to the defense attorney. I charged the defendant with robbery. That’s the crime I think that happened and I’ll leave that up to Mr. Healey to explain how that occurs. I don’t think they apply in this case. This is a robbery.”
(6) “Another circumstantial piece of evidence is the defendant’s statements to the police. It shows his consciousness of guilt. He says, ‘I don’t know what’s going on here. I was just walking home.’ That’s a lie and he recants that lie moments later. Why did he lie to the officer? Because he just robbed somebody, he knew that. Then he says, ‘Well, I was in a fight. It’s no big deal.’”
Defendant claims the first statement was improper because the prosecutor was stating a personal belief about the credibility of the witness and improperly commenting on defendant’s failure to testify. He argues the second statement was a misstatement of the facts and law because there was no evidence defendant took Ramirez’s wallet then handed it to Robert J. He asserts the third and fourth statements were misstatements of the law because they informed the jury it could infer his intent to steal from the circumstance that he was present at the scene of the crime. Defendant argues the fifth statement invited the jury to ignore the court’s instructions on lesser included offenses, and was “dismissive” of the trial court. Defendant claims the sixth statement argued consciousness of guilt in the absence of an instruction on that theory.
Defendant failed to preserve the issue of prosecutorial misconduct based on these statements by failing to make a timely and specific objection. (People v. Wilson (2008) 44 Cal.4th 758, 800.) This is not a case, as defendant claims, governed by Hale v. Morgan (1978) 22 Cal.3d 388, 394, in which the constitutionality of a statute is raised for the first time on appeal, presenting a pure question of law presented by undisputed facts. Defendant also claims the issue was not forfeited because he is claiming federally guaranteed constitutional rights. However, even constitutional issues may be forfeited by failing to raise them below. (See People v. Boyette (2002) 29 Cal.4th 381, 415 [defendant’s claim that prosecutorial misconduct violated his federal constitutional rights were not preserved for appeal].)
DISPOSITION
The judgment is affirmed.
We concur: NICHOLSON, J., RAYE, J.