Opinion
E033398.
10-29-2003
THE PEOPLE, Plaintiff and Respondent, v. MATTHEW EARL PALMER, Defendant and Appellant.
Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Melissa A. Mandel, and Michael T. Murphy, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant guilty of robbery (Pen. Code, § 211). Defendant was thereafter sentenced to three years in state prison. Defendants sole contention on appeal is that the trial court prejudicially erred in failing to instruct the jury on theft as a lesser included offense of robbery. We reject this contention and affirm the judgment.
I
FACTUAL BACKGROUND
On July 15, 2002, about 10:00 p.m., Clint Davis, a tow truck driver, was on a footbridge at the Tyler Galleria Mall waiting for his girlfriend to get off work when some of his friends drove by and told him that someone needed his assistance. After they directed Davis to a car parked near his tow truck, they drove off.
Davis walked towards the car and spoke with defendant. Defendant stated that he had his wallet stolen and asked Davis for gas and money. Davis agreed to give defendant some gas but said that he had no money. Davis then walked over to the side of his tow truck and retrieved a gas can that was kept in a compartment behind the cab of the truck. Defendant continued to badger Davis for money, offering Davis various items in exchange for money and opening the trunk of his car to display "a trunk full of polo shirts."
As Davis put some gas into defendants car, defendant continued to ask Davis for money, imploring Davis to give him 20 "bucks." Davis said that all he had was a $100 bill. Defendant stated that he would go and cash the $100 bill and bring Davis back the change. Davis said no, and defendant continued to pester him. Exasperated, Davis eventually showed defendant his $100 bill and told him that was all he had. Davis then put the $ 100 bill back in his wallet. During this time, defendant did not do anything threatening and was "calm, cool, and collected."
When Davis finished putting the gas into defendants car, he walked to the passenger side of his tow truck to replace the gas can in its compartment. As Davis bent down behind the tow truck, he felt a hard, round object about the size of a marker on his back above his right kidney. Davis heard defendant say calmly, "[G]ive me your wallet." Davis could not say if it was a gun or a knife or something else, and he did not ask, but he gave defendant his wallet, being afraid and having been shot once before. Defendant took the $100 bill and dropped the wallet. He then instructed Davis to walk around to the other side of the tow truck like nothing happened. Defendant got into his car and asked Davis if he had anything else in his wallet. After Davis showed defendant a check stub he had in his wallet, defendant drove away. Davis attempted to get the license plate number of defendants car, but there were no license plates on it. No one else was in the area during the robbery.
Davis called 911. Police Officer Stephen Pounds responded to the scene. After Officer Pounds took a report from Davis, who was shaking, he dispatched the information over the police radio. Defendant, however, could not be found.
Several weeks later, on August 8, 2002, Officer Pounds saw a vehicle matching the description of the suspect vehicle, and the driver appeared to match the description given to him by Davis. Defendant had been stopped. Inside the car, Officer Pounds saw a load of polo shirts. Eventually, police contacted Davis and asked him to come down to identify the person. Davis came and identified defendant as the assailant of the robbery. When defendant saw Davis, he stated, "[T]hats the guy that gave me the hundred dollars."
Defendant did not testify at trial or put on an affirmative defense.
II
DISCUSSION
At trial, defense counsel asserted the trial court had a sua sponte duty to instruct the jury on all theories of theft, or at least the theory of theft by trick and device, as a lesser included offense to the charged crime of robbery. (§ 484; CALJIC No. 14.00.) Counsel explained the evidence that defendant declared, "[T]hats the guy that gave me the hundred dollars," along with the fact that defendant was not found in the immediate area after the crime, led to the reasonable inference that defendant had talked the victim into giving him the $100 to buy gas and that he simply never returned. The prosecutor replied that the defense was not entitled to the requested lesser instruction because there was no evidence to support the theory of theft by false pretense. The trial court rejected defendants argument, observing that theft by means of trick or fraud are mutually inconsistent with robbery. The court stated, ". . . To trick someone into giving you something is 180 degrees different than taking it from them by force and fear."
On appeal, defendant maintains that the trial court prejudicially erred in failing to instruct the jury on theft as a lesser included offense to robbery. Specifically, he claims there was substantial evidence from which a jury could have found that he committed only a theft under any of the possible theories of theft. We disagree.
"[T]he trial court must instruct on a lesser offense necessarily included in the charged offense if there is substantial evidence the defendant is guilty only of the lesser. [Citations.]" (People v. Birks (1998) 19 Cal.4th 108, 118.) Substantial evidence is evidence sufficient to deserve consideration by the jury; that is, evidence that a reasonable jury could find persuasive. (People v. Cunningham (2001) 25 Cal.4th 926, 1008.)
Although a sua sponte duty to instruct may exist, "[a] trial court need not . . . instruct on lesser included offenses when the evidence shows that the defendant is either guilty of the crime charged or not guilty of any crime (for example, when the only issue at trial is the defendants identity as the perpetrator). Because in such a case `there is no evidence that the offense was less than that charged [citation], the jury need not be instructed on any lesser included offense." (People v. Barton (1995) 12 Cal.4th 186, 196, fn. 5; People v. Breverman (1998) 19 Cal.4th 142, 154-155, 162; People v. Eilers (1991) 231 Cal.App.3d 288, 292-293.)
The California Supreme Court has declared that theft in all of its forms is a lesser included offense of robbery. (People v. Ortega (1998) 19 Cal.4th 686, 694-695, 699; see also People v. Bradford (1997) 14 Cal.4th 1005, 1055.) Theft is a lesser included offense of a charge of robbery, as robbery is "simply an aggravated form of theft with the additional element of force or fear." (People v. Miller (1974) 43 Cal.App.3d 77, 81; see also Bradford at p. 1055 ["`[t]heft is a lesser included offense of robbery, which includes the additional element of force or fear"].) Even theft by trick or device has been treated as a lesser included offense of robbery. (See, e.g., Miller at p. 81 [appellate court held the trial court in robbery case erred in failing to give instructions on lesser included offense of theft where the defendant testified he did not use force or fear to take the victims money, but instead employed the con game known as the "Jamaican Switch"]; People v. Ortega, supra, 19 Cal.4th at p. 692 ["`"[t]he test in this state of a necessarily included offense is simply that where an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense""].)
Nonetheless, the fact that theft is deemed a lesser included offense of robbery does not, or course, mean that a trial court must give instructions on any or all forms of theft in each robbery case. Rather, if there has been sufficient evidence presented at trial to support a finding by the jury that the defendant was guilty of the lesser included offense of theft under any of the possible theories (e.g., by trick or device or grand theft person) rather than the offense of robbery, the trial court would have had a sua sponte duty to instruct the jury on the lesser offense of theft. (People v. Breverman, supra, 19 Cal.4th 142, 160, 162 [a trial court is required to instruct sua sponte only on lesser included offenses, or theories thereof, that are supported by substantial evidence]; People v. Barton, supra, 12 Cal.4th 186, 198; People v. Eilers, supra, 231 Cal.App.3d 288, 292.) However, defendant here fails to demonstrate whether there was evidence of theft in the record "`substantial enough to merit consideration by the jury." (Breverman at p. 162.)
The offense of theft is defined in section 484 as the taking, carrying, stealing, leading, or driving away the personal property of another, or one who fraudulently appropriates "property which has been entrusted to him or her, or who knowingly and designedly, by any false or fraudulent representation or pretense, defraud[s] any other person of money . . . ." (§ 484, subd. (a).) The offense of grand theft person is defined in section 487 as the taking of real or personal property valued in excess of $400. (§ 487.) "Theft in other cases is petty theft." (§ 488.) The offense of robbery is defined in section 211 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." (§ 211.) As stated above, theft is a necessarily included offense of robbery; it is the element of force or fear that distinguishes a robbery from a theft. (People v. Ortega, supra, 19 Cal.4th 686, 699.)
In the present matter, there was insubstantial evidence that defendant merely took the $100 bill from Davis without the use of force or fear. Davis testified that he repeatedly refused to give defendant the $100 bill and that only after defendant pressed an object against Daviss back and demanded it did Davis give up his money. Davis explained that he felt a hard, round object about the size of a marker on his back above his right kidney as he bent down to reach the gas compartment. Davis also stated that, when he felt the object against his back, the first thought that went through his mind was to "[j]ust give him what I had," having been shot once before. When asked if he was frightened, Davis testified that he was afraid, but was not traumatized; he was "just afraid," so he gave defendant his wallet unwillingly. "Courts have recognized that the `force required for robbery is not necessarily synonymous with a physical corporeal assault. [Citation.]" (People v. Wright (1996) 52 Cal.App.4th 203, 210.) "Generally, `the force by means of which 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 free exercise of . . . will or prevent resistance to the taking. [Citation.] This `constructive force means `force, not actual or direct, exerted upon the person robbed, by operating upon [a] fear of injury . . . . [Citation.]" (Ibid.)
Substantial evidence shows that defendant took the $100 bill by force or fear. There was no evidence to the contrary. Defendants admission to police several weeks later, that Davis was the person who gave him the $100 bill, did not indicate a theft by trick or device or any other form of theft. The evidence indicates that Davis gave up the $100 bill only when he was forced to give it to defendant. On the other hand, there was no evidence that defendant committed grand theft person, petty theft, or theft by trick or device. The undisputed evidence presented at trial clearly demonstrates that what took place was a robbery and not merely a theft. The evidence also suggests that the crime was nothing less than a robbery. Accordingly, we conclude the trial court did not err in failing to instruct on the lesser offenses of theft, because the evidence did not support such instructions.
Even if we assume the trial court erred by not giving lesser included offense instructions on theft, any such error was harmless. We do not believe it is reasonably probable that a jury would actually conclude that this was merely a theft. In all probability, a jury would conclude that defendant intended to frighten Davis by pressing an object on Daviss back, invading Daviss space, and demanding Daviss wallet. Hence, defendant forced Davis to give him his wallet, rather than simply helping himself to the wallet. Based on the evidence adduced at trial, there is no reasonable probability that the failure to instruct on theft affected the outcome of this case. (People v. Breverman, supra, 19 Cal.4th 142, 165, 178.)
III
DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ, P.J., McKINSTER, J.
All future statutory references are to the Penal Code unless otherwise stated.