Opinion
E070685
10-29-2019
THE PEOPLE, Plaintiff and Respondent, v. GILBERT LEONARD MARTINEZ, Defendant and Appellant.
Tyrone Sandoval and Anna Jauregui-Law, 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, and Daniel Rogers and Christopher P. Beesley, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FSB18000340) OPINION APPEAL from the Superior Court of San Bernardino County. Steve Malone, Judge. Affirmed. Tyrone Sandoval and Anna Jauregui-Law, 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, and Daniel Rogers and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant and appellant, Gilbert Leonard Martinez, was tried by jury and convicted of second degree robbery. (Pen. Code, §§ 211, 212.5.) Defendant was sentenced to five years in prison. Defendant appealed.
All further statutory references are to the Penal Code. --------
On appeal, defendant argues the trial court erred by failing to instruct the jury on the elements of battery, which defendant claims was a lesser included offense of the robbery conviction. We affirm.
II. FACTUAL AND PROCEDURAL BACKGROUND
On the night of January 22, 2018, Gabriel D. was test driving his car around his neighborhood after installing some new parts. At some point Gabriel D. noticed that two people in another car were following him. When Gabriel D. stopped across from his home, the other car stopped behind him. Gabriel D. "felt there was something not right about that vehicle following me . . . and then stopping right there at the same time as I did." Gabriel D. decided to keep driving and tried to evade the following car with a series of turns and attempted U-turns. Gabriel D. also called 911.
Before Gabriel D. could evade the pursuing car, his car stalled. The pursuing vehicle stopped "at a sideways slant" directly in front of Gabriel D.'s car. Two men got out of the car. Gabriel D. later identified the driver as Michael R. and the passenger as defendant.
Defendant ordered Gabriel D. to shift the car into park and yelled questions at him, while Michael R. struck Gabriel D. Michael R. took items from Gabriel D.'s person, struck Gabriel D. some more, then went to the back of the car to look in the trunk. When Michael R. went to Gabriel D.'s trunk, defendant struck Gabriel D. once in the head. Michael R. took tools from Gabriel D.'s trunk. Michael R. then returned to the driver's side of Gabriel D.'s car and struck Gabriel D. some more. After Michael R. finished, defendant told Gabriel D.: "[N]ext time we will kill you. We do know where you live and your family." Both men then got back in their car and left.
Gabriel D. returned home and called the police again. Police met Gabriel D. at his home. While speaking to a police officer, Gabriel D. saw defendant and Michael R. pass by in their car. The officer followed them. The defendant and Michael R. eventually pulled into a driveway. When they exited the vehicle, the officer instructed both to stop and get on the ground, but they initially ignored this instruction. The officer saw defendant throw something before finally complying.
After searching the area where defendant threw the item, police found Gabriel D.'s driver's license. They also found a toolbox in the car matching Gabriel D.'s description of his toolbox.
The San Bernardino County District Attorney charged defendant and Michael R. with second degree robbery. Defendant was also charged with dissuading a witness. (§ 136.1, subd. (b)(1).) Both proceeded to a joint jury trial. Two mistrials were declared, the first before the presentation of evidence and the second pertaining only to Michael R. After the second mistrial, defendant decided to continue with the second trial as the sole defendant.
A jury found defendant guilty of second degree robbery and not guilty of dissuading a witness. Defendant was sentenced to the upper term of five years for the robbery conviction. Defendant timely appealed.
III. DISCUSSION
Defendant argues that the trial court erred by not instructing the jury on the elements of battery. Defendant argues this was error because under the accusatory pleading test, battery was a lesser included offense of the robbery as pleaded.
"'[A]ssertions of instructional error are reviewed de novo.'" (People v. Hernandez (2013) 217 Cal.App.4th 559, 568, quoting People v. Shaw (2002) 97 Cal.App.4th 833, 838.) "Whether or not the trial court should have given a 'particular instruction in any particular case entails the resolution of a mixed question of law and fact,' which is 'predominantly legal.' [Citation.] As such, it should be examined without deference." (People v. Hernandez, supra, at p. 568.)
A trial court is obligated to "'giv[e] instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged.'" (People v. Breverman (1998) 19 Cal.4th 142, 154.) "'The obligation to instruct on lesser included offenses exists even when as a matter of trial tactics a defendant not only fails to request the instruction but expressly objects to its being given.'" (Ibid.)
There are two tests to determine whether a crime is a lesser included offense: the elements test and the accusatory pleading test. (People v. Gonzalez (2018) 5 Cal.5th 186, 197.) "Under the elements test, one offense is another's 'lesser included' counterpart if all the elements of the lesser offense are also elements of the greater offense. [Citation.] Under the accusatory pleading test, a crime is another's 'lesser included' offense if all of the elements of the lesser offense are also found in the facts alleged to support the greater offense in the accusatory pleading." (Ibid.) Under the accusatory pleading test "we review the information to determine whether the accusatory pleading describes the crime . . . in such a way that if committed in the manner described, [the lesser] must necessarily be committed." (People v. Moses (1996) 43 Cal.App.4th 462, 470, italics added.)
"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." (§ 211, italics added.) That robbery requires either force or fear, but not both, means that assault is generally not a lesser included offense of robbery. (People v. Wright (1996) 52 Cal.App.4th 203, 209 ["Because a robbery can thus be committed strictly by frightening a victim into surrendering property, this would not necessarily include assault, which requires an unlawful attempt to apply physical force and a present ability to apply such physical force."].) Like assault, battery requires the use of physical force against another. (§ 242 ["[B]attery is any willful and unlawful use of force or violence upon the person of another."].) Thus, like assault, battery is not a lesser included offense of robbery under the elements test.
However, the operative accusatory pleading in this case—the information—alleges that defendant accomplished the robbery by means of force and fear. Thus, as another court grappling with a similar issue put it, "as charged, the robbery . . . [was] necessarily accompanied by force. As a result, the $64,000 question . . . is whether the force required to commit a robbery necessarily includes the force required to commit," the lesser assaultive act. (People v. Wright, supra, 52 Cal.App.4th at p. 210.)
"[T]he 'force' required for robbery is not necessarily synonymous with a physical corporeal assault." (People v. Wright, supra, 52 Cal.App.4th at p. 210.) "'[T]he force by means of which a robbery may be committed is either actual or constructive. The former includes all violence inflicted directly on the persons robbed; the latter encompasses all . . . means by which the person robbed is put in fear sufficient to suspend the exercise of . . . will or prevent resistance to the taking.'" (Ibid.) "This 'constructive force' means 'force, not actual or direct, exerted upon the person robbed, by operating upon [a] fear of injury . . . .'" (Ibid.) Thus, "'force' is not an element of robbery independent of 'fear'; there is an equivalency between the two. '"[T]he coercive effect of fear induced by threats . . . is in itself a form of force, so that either factor may normally be considered as attended by the other."'" (Id. at p. 211.)
In contrast, battery requires that the defendant "willfully . . . touch[] [the victim] in a harmful or offensive manner." (CALCRIM No. 960.) "The slightest touching can be enough to commit a battery if it is done in a rude or angry way. . . . The touching does not have to cause pain or injury of any kind." (CALCRIM No. 960.)
As charged in this case, both battery and robbery require the application of force. However, battery requires an actual touching while for robbery "the element of force can be satisfied by evidence of fear." (People v. Wright, supra, 52 Cal.App.4th at p. 211.) "Since . . . it is possible to commit a robbery by force without necessarily committing a[] [battery] . . . under the 'accusatory pleading' test [battery] is not necessarily included when the pleading alleges a robbery by force. As a result, the trial court had no duty to instruct sua sponte on [battery] as a lesser included offense of robbery . . . ." (Ibid.)
Additionally, "'the court "has no duty to instruct on any lesser offense unless there is substantial evidence to support such instruction."' [Citation.] This substantial evidence requirement is not satisfied by '"any evidence . . . no matter how weak,"' but rather by evidence from which a jury composed of reasonable persons could conclude 'that the lesser offense, but not the greater, was committed.' [Citation.]" (People v. Avila (2009) 46 Cal.4th 680, 704-705.) Here, there was no substantial evidence the crime was anything other than robbery.
A defendant may be guilty of robbery as an aider and abettor if he forms the intent to aid and abet the robbery any time up until the perpetrator carries the property away to a place of temporary safety. (CALCRIM No. 1603.) "When two or more persons commit a crime together, both may act in part as the actual perpetrator and in part as the aider and abettor of the other, who also acts in part as an actual perpetrator," so that "the dividing line between the actual perpetrator and the aider and abettor is often blurred," and it becomes "an oversimplification to describe one person as the actual perpetrator and the other as the aider and abettor." (People v. McCoy (2001) 25 Cal.4th 1111, 1120.) Thus, "[t]he aider and abettor doctrine merely makes aiders and abettors liable for their accomplices' actions as well as their own. It obviates the necessity to decide who was the aider and abettor and who the direct perpetrator or to what extent each played which role." (Ibid.) At trial, the People's theory of the case was that defendant acted as both a direct perpetrator and aider and abettor of robbery, and the jury was instructed on both theories.
Here, there is insufficient evidence that the lesser offense but not the greater was committed because the evidence is overwhelming that defendant's use of force and fear was incident to a robbery committed in concert with Michael R. Defendant was the passenger in Michael R.'s vehicle throughout the time it pursued Gabriel D. Once the car stopped, defendant got out of the car with Michael R. and made no attempt to stop him from striking Gabriel D. Instead, defendant actively assisted Michael R. by ordering Gabriel D. to put the car in park and yelling at him. After Michael R. struck Gabriel D. and took some items on his person, defendant stepped up and hit Gabriel D. while Michael R. went to the trunk of the car to take more of Gabriel D.'s property. Before departing, defendant threatened Gabriel D.'s life. Thus, from the moment defendant stepped out of the car until the moment he retreated, his use of force and fear was calculated to intimidate Gabriel D. and to effectuate a robbery.
The conclusion that defendant's use of force was incident to a robbery and nothing else is bolstered by circumstantial evidence suggesting that Michael R. and defendant split some of Gabriel D.'s property between them. Immediately before being apprehended, the defendant threw something in an apparent attempt to get rid of it before police searched him. When officers looked in the area where defendant threw the object, they found Gabriel D.'s driver's license. Because the testimony is clear that Michael R. was the one who took Gabriel D.'s wallet, this implies that defendant obtained the driver's license from Michael R. Thus, the evidence suggests that defendant and Michael R. used force and fear together in order to take Gabriel D.'s property, then split the proceeds. This further suggests that defendant's use of force was calculated to effect a taking, and not merely to batter Gabriel D.
Defendant points to no evidence in the record that his decision to assault Gabriel D. was not intended to aid and abet a robbery. Defendant's only defense at trial was that Gabriel D. might have misidentified defendant, that the presence of Gabriel D.'s driver's license near defendant was a coincidence, and that the toolbox discovered in Michael R.'s car might have been a duplicate. Defendant offered no independent proof that he did not take Gabriel D.'s property, that he was not acting in concert with Michael R., or that he assaulted Gabriel D. for some reason other than to effectuate a robbery. "'[I]f there is no proof, other than an unexplainable rejection of the prosecution's evidence, that the offense was less than that charged,'" no instruction on the lesser charge is necessary. (People v. Abilez (2007) 41 Cal.4th 472, 514, quoting People v. Kraft (2000) 23 Cal.4th 978, 1063.)
Given the overwhelming evidence that defendant's use of force and fear was part of a robbery, and that there was no substantial evidence to support giving an instruction on simple battery as a lesser included offense in this case, the court was not required to do so.
Even if there was substantial evidence to support giving an instruction on battery, "the failure to instruct sua sponte on a lesser included offense in a noncapital case . . . is not subject to reversal unless an examination of the entire record establishes a reasonable probability that the error affected the outcome." (People v. Breverman, supra, 19 Cal.4th at p. 165.) This harmless error standard means that an error is only reversible if it is not reasonably probable a more favorable verdict would have occurred but for the error. (People v. Cortez (2018) 24 Cal.App.5th 807, 822, citing People v. Breverman, supra, at p. 165.)
Defendant argues that the failure to instruct the jury on battery was not harmless because it prevented the jury from convicting defendant on battery rather than robbery, despite the fact that "the evidence shows that [defendant] took no property from [Gabriel D.]."
We agree that the record contains no evidence that defendant himself took property from Gabriel D. However, as discussed above, there was substantial evidence to conclude that defendant acted in concert with Michael R. to effectuate a robbery, and no evidence to conclude the opposite. Defendant did not even try to argue otherwise, resting on a defense of mistaken identity and coincidence. Defendant did not attempt to defend his actions or explain how they might have constituted less than a robbery, only that he did not participate at all. In convicting defendant, the jury necessarily rejected these defenses and concluded that he did participate in the robbery. There is no reason to believe that a battery instruction would have changed these conclusions. Thus, it is not reasonably probable that the jury would have concluded defendant was guilty of only battery and not robbery even if they had been instructed on battery, and any alleged error was harmless.
IV. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: RAMIREZ
P. J. McKINSTER
J.