Opinion
A157229
03-05-2020
THE PEOPLE, Plaintiff and Respondent, v. DESHAUN J. ROBERTS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco County Super. Ct. No. SCN229402)
Deshaun J. Roberts was convicted following a jury trial of first degree robbery of a transit passenger and possession of stolen property. On appeal, he contends (1) the magistrate erred in denying his motion to suppress evidence because the prosecution failed to justify his warrantless detention and arrest based on a police dispatcher's hearsay statement; (2) the trial court erred in failing to instruct the jury on the lesser included offense of theft from the person; and (3) the trial court erred when it answered a jury question regarding the amount of force required for robbery by referring the jury back to the robbery instruction. We shall affirm the judgment.
PROCEDURAL BACKGROUND
On November 10, 2016, appellant was charged by felony complaint with first degree robbery of a transit passenger (Pen. Code, § 211—count I), and possession of stolen property (§ 496, subd. (a)—count II).
All further statutory references are to the Penal Code unless otherwise indicated.
On November 16, 2016, appellant filed a motion to suppress evidence (§ 1538.5), which was heard jointly with his preliminary hearing on July 6, 2018, and denied by the magistrate.
On July 16, 2018, an information was filed containing the same charges set forth in the 2016 complaint.
On September 13, 2018, appellant filed a motion to set aside the information (§ 995), challenging the magistrate's denial of the motion to suppress, which the trial court denied. On November 2, 2018, this court denied appellant's petition for writ of prohibition, in which he challenged the denial of his motion to set aside the information.
On January 17, 2019, following a jury trial, the jury found appellant guilty as charged.
On May 7, 2019, the court sentenced appellant to four years in state prison on count I and dismissed count II. The court suspended execution of sentence, however, and placed appellant on three years' probation.
On May 8, 2019, appellant filed a notice of appeal.
FACTUAL BACKGROUND
M.B., the victim in this case, testified that on November 8, 2016, about 3:25 a.m., she boarded the 14 Muni bus to travel from her home in Daly City to her job at a restaurant in San Francisco's Financial District. She was carrying her purse, a medium-sized brown Coach shoulder bag. She was seated in the "middle front" area of the bus and was on her cell phone when a group of teenagers got on the bus. Most of them went to the back of the bus, but one of them sat down in front of her, around four feet away, and started staring at her, which made her feel "[a] little scared." She put her cell phone away in her purse.
A few minutes later, another one of the teenagers sat down beside M.B. and started laughing and joking with the other teenager who was staring at her. M.B. then started "hugging" her purse in front of her and also had the shoulder strap over her right shoulder. The purse contained her wallet, California ID, debit card, Chase card, Costco card, Kaiser card, and library card. As the bus approached M.B.'s bus stop at 5th and Mission Streets, the teenager who was staring at her asked his friend who was sitting next to M.B. where they were getting off, and the friend said, "Here on 6th Street."
As the rest of the group got off the bus, the teenager sitting beside her started grabbing M.B.'s purse. She testified, "So I was yelling, like, Stop. Stop. So we were grabbing each other. So it was really hurting my arm here (indicating), so I gave up my purse." Specifically, during the struggle, the teenager pulled her purse "[v]ery hard" and the strap of the purse was hurting her right biceps. She then tried to pull the purse back and "he pulled more." As he pulled, he moved M.B. from the window seat to the next seat over. She tried to hold onto her purse, "trying to get it back. But he's so strong. He was really trying to get it from me. So we're pulling each other; and it really hurt my arms already, so I gave it up, my purse." She finally let go because "I was so scared and he pulled too hard from my arms, so I let it go." When the incident occurred, M.B. felt "[s]cared" and "[s]haking," and continued to feel that way for two or three days. She also had "a little bruise" on her right biceps from the struggle. The bruise and accompanying pain lasted two days.
The prosecutor played video footage from the Muni bus just before her purse was taken, and M.B. identified herself, the teenagers who got on the bus, and the person staring at her, who was wearing a black T-shirt and black pants. The prosecutor also played a portion of the video showing the other teenager taking her purse.
M.B. described the value of the various items taken from her. Her purse cost $100; her iPhone 6 plus cost $300; her wallet cost $10; and, in addition to the various cards, there was cash in the amount of $6 in her wallet.
A short time after her purse was taken, the police took M.B. to look separately at two suspects, who were standing on the sidewalk. M.B. told police that both suspects were part of the group of teenagers, but neither was the one who took her purse. She did identify appellant at trial, saying, "I think that's him."
Robert Valenzuela, the driver of the Muni bus at the time M.B.'s purse was taken, testified that as the group of "kids"—by which he meant "late teens, early adults, 20s maybe"—got off the bus at 5th Street, one of them "snatched the purse and ran off the bus down to 5th Street." He described the person who took the purse as an "African-American male; no facial hair at the time; maybe 5'7", 5'8"; light build; dark clothing; no jacket; short-sleeved shirt." During the incident, Valenzuela saw appellant tugging on the victim's purse "and then by the force of the action, pulled it away from her." The victim was jerked from an inside seat to an outside seat during the incident.
The police subsequently showed Valenzuela four individuals, one by one, and he recognized appellant as the person who took the purse. He also recognized the other three people as the individuals who were on the bus with appellant.
Valenzuela narrated the video footage captured by a camera on the bus during the incident. He described appellant as the person on the bus in a "[b]lack T-shirt, dark pants with a decal on the left side of his shirt, short sleeves." The incident occurred about 3:24 a.m.
San Francisco Police Officer John Ching testified that around 3:30 a.m. on November 8, 2016, he heard a police dispatch of a call for service at 5th and Mission Streets. Ching and his partner, Officer Merriman, who were about a block and a half away from that location, quickly drove northbound on 6th Street and then eastbound on Minna Street towards 5th Street.
Dispatch had advised "that the suspect was a black male juvenile, approximately 15 to 17 years old, and was wearing a black T-shirt and a dark pants [sic], with a baby face." As the officers drove on Minna, just past Mary Street, Ching saw four people walking southbound from Mission Street. One of the individuals matched the description given in the dispatch broadcast in that he was a young black male wearing a black T-shirt and dark pants.
The officers, who were in a marked patrol car, then drove toward the four individuals, who "stopped and looked at us," and then "turned around" and began walking up in the other direction. The officers were able to contact the group seconds later on Mission Street. Ching identified appellant as one of the four people he contacted. The prosecutor played a portion of video footage from Officer Merriman's body worn camera, and Ching described appellant as the black male in the back of the group in the video, who was wearing a black backpack and a black T-shirt, and holding a blue sweatshirt in his hand.
After contacting appellant, Ching moved his backpack away from him, pat searched him for weapons, and had appellant sit down on the ground, along with the other three individuals. While appellant was sitting down, Ching saw a cell phone on the ground sticking out from underneath appellant. Ching subsequently observed another officer turn on the phone and saw a photograph of the victim on the screen. Ching identified a phone at trial as the phone he found underneath appellant.
Ching took the bus driver, Valenzuela, and the victim, M.B., to a "cold show" to identify the four people who had been detained. When M.B. observed appellant, she said, "That's not him. I could tell the guy that grabbed my purse." When Valenzuela observed appellant, he said, "Yeah, that's the one who snagged the purse. I remember the T-shirt and short afro." Valenzuela also recognized the three other teenagers as having been on the bus with appellant.
Appellant was arrested and transported to the police station. An officer searched appellant's backpack and gave Ching cards that were found inside the backpack, including a California ID; credit cards; and Costco, Kaiser, and library cards.
San Francisco Police Officer Anthony Merriman also testified at trial about the dispatch he and Ching received directing them to Fifth and Mission Streets at 3:30 a.m. on November 8, 2016. On the way to that location, the officers observed the four suspects walking on Mary Street. Merriman observed "a young black male juvenile about 17, 18, 19 years old, [who] had a backpack." The juvenile matched the description given by dispatch in that he had blue jeans on, although Merriman could no longer recall anything about his shirt. Merriman identified appellant as one of the four individuals the officers detained. At some point after appellant was first detained, Merriman saw him reach into his left pants pocket and then saw a cell phone in his right hand. Merriman ordered him to get his hands out of his pockets and sit down. Ching subsequently told Merriman he had located a cell phone next to appellant's backpack and Merriman recovered and examined the phone, which he later showed to the victim.
DISCUSSION
I. Denial of the Motion to Suppress Evidence
Appellant contends the magistrate erred in denying his motion to suppress evidence because the prosecution failed to justify his warrantless detention and arrest based on a police dispatcher's hearsay statement.
A. Standard of Review
"When a suppression motion is made before a magistrate in conjunction with a preliminary hearing, as in this case, the magistrate tries the facts, resolving credibility issues and conflicts in the evidence, weighing the evidence, and drawing appropriate inferences. [Citations.] If the magistrate denies the motion and holds the defendant to answer, the defendant must, as a prerequisite to appellate review, renew his challenge before the trial court by motion to dismiss under section 995 or in a special hearing. [Citations.] At that stage, the evidence is generally limited to the transcript of the preliminary hearing, testimony by witnesses who testified at the preliminary hearing (who may be recalled by the prosecution), and evidence that could not reasonably have been presented at the preliminary hearing. [Citation.] The factual findings of the magistrate are binding on the court, except as affected by any additional evidence presented at the special hearing. [Citation.]
"We, too, are 'concerned solely with the findings of the [magistrate].' [Citation.] After submission on the transcript at the special hearing, the appellate court, like the superior court, is bound by the magistrate's factual findings so long as they are supported by substantial evidence. [Citations.] On review of the superior court ruling by appeal or writ, a two-step standard of review applies. In the first step of our review, 'we in effect disregard the ruling of the superior court and directly review the determination of the magistrate.' [Citation.] At this stage, we consider the record in the light most favorable to the People since 'all factual conflicts must be resolved in the manner most favorable to the [superior] court's disposition on the [suppression] motion.' [Citation.]
"Accepting as established all implied or express factual findings by the magistrate as are supported by substantial evidence, we then proceed to measure those findings against Fourth Amendment standards articulated by the United States Supreme Court. [Citation.] At this stage, we independently apply the law to the factual findings [citations], determining de novo whether the factual record supports the magistrate's conclusion that the challenged search met the constitutional standard of reasonableness. [Citations.]" (People v. Romeo (2015) 240 Cal.App.4th 931, 941-942.)
B. Trial Court Background
On November 16, 2016, appellant filed a motion to suppress evidence, in which he requested production of the sources of the police dispatch that led to appellant's detention. The motion challenged appellant's detention pursuant to the Harvey-Madden rule, a set of evidentiary rules "established to govern the manner in which the prosecution may prove the underlying grounds for [an arrest or detention] when the authority to arrest [or detain] has been transmitted to the arresting [or detaining] officer through police channels. [Citation.]" (People v. Collins (1997) 59 Cal.App.4th 988, 993; see People v. Madden (1970) 2 Cal.3d 1017; Remers v. Superior Court (1970) 2 Cal.3d 659; People v. Harvey (1958) 156 Cal.App.2d 516.)
The suppression motion was heard on July 3 and 6, 2018, jointly with appellant's preliminary examination. Two police witnesses testified at the hearing.
Around 3:30 a.m. on November 8, 2016, San Francisco Police Officers Anthony Merriman and John Ching were on patrol when they received a call for service about a strong-arm robbery on a Muni bus. Based on information provided in the call, Merriman and Ching drove toward the intersection of Fifth and Mission Streets to search for the suspect the dispatcher had described. On Mission Street, enroute to the intersection, Ching located one possible suspect, appellant, whom he detained based on the dispatcher's information "that a purse snatch suspect [was] wearing [a] certain type of clothes and this subject matched the clothing." Specifically, the dispatcher had described the suspect as "a black male with a baby face, wearing a black T-shirt and jeans." The officers encountered three other suspects with appellant, and had all four suspects sit on the ground. Appellant was handcuffed during the detention. The cell phone of the victim (M.B.) was found on the ground next to appellant, who also had a backpack beside him. Ching subsequently looked at the phone and saw a photograph of the victim in the background on the screen. Ching could not recall whether appellant was wearing a sweatshirt or a black T-shirt when originally spotted, although he did recall that one of the four individuals detained was wearing a black T-shirt and sweatpants.
Ching spoke with the victim, who participated in a cold show but did not identify appellant, saying he was not the person who took her purse. Ching also spoke with the bus driver, Robert Valenzuela, who participated in a cold show and identified appellant as the person who "snagged the purse," saying, "I remember him for a T-shirt and a short afro." Following that cold show, Merriman arrested appellant. At the police station, an officer searched appellant's backpack and located the victim's identification cards and credit cards.
Merriman watched video footage taken from the Muni bus and recognized appellant in the video by his appearance, including his face, his clothing, and the backpack he was wearing when Merriman and Ching detained him a short time later. Merriman described the video as showing the victim sitting on the right side of the bus. Subsequently, the video showed appellant—a black male wearing a black T-shirt and black sweatpants—also sitting on the right side of the bus.
Following the examination of witnesses, defense counsel noted that, under the Harvey-Madden rule, it was the prosecution's "burden to establish that there was, in fact, a dispatch as to a certain description and that [appellant], sufficiently met that description such that the officer was justified and had reasonable suspicion to detain." According to counsel, because the description given by the dispatcher was hearsay and the description of appellant did not match that description, the police were not justified in relying on it to detain appellant. Counsel further argued that, even if the prosecution had satisfied Harvey-Madden, the evidence presented at the hearing did not show that the description—a Black male in a black T-shirt and jeans—matched appellant at the time of the detention, citing a photograph showing him wearing a light blue hoodie sweater and sweatpants. Counsel stated that "a vague description or someone who doesn't match it . . . , for example, race and age is insufficient for a detention."
The prosecutor argued that the photographic evidence demonstrated that appellant, whom she described as a "black male, young man, with a baby face," was wearing a black shirt and blue sweatpants at the time of the detention, which was very similar to the description provided in the dispatch. The prosecutor also noted that the place appellant was detained was "close in time and close in distance to where they were responding in this case" and that the encounter occurred at 3:30 a.m., "the middle of the night." Finally, the prosecutor argued that the Harvey-Madden rule was satisfied because the prosecution had "put on sufficient evidence to show that the dispatch was not a figment of the officer's imagination because you see corroborated here on the video . . . ."
Defense counsel responded that the video evidence of the crime did not satisfy Harvey-Madden because the later discovered video "doesn't establish what the officers knew at the time which is the only thing relevant for the court's consideration to decide if a detention is justified. And we still don't know what the officers knew at the time. . . ."
The magistrate ultimately agreed with defense counsel that the video evidence could not justify the initial detention, but nonetheless denied the motion to suppress, explaining, "it's apparent from all of the evidence the officer did not manufacture a description. Got a description of a black male with a baby face, black shirt and blue jeans although the defendant did not have blue jeans, did have blue pants, sweatpants. And Exhibit 6 which is a dark photograph [taken at the time of appellant's detention] shows the defendant and that is apparent from the video stills which show that he has a Michigan shirt on that is the same as Exhibit 6. So the stop in the court's view was appropriate [and the motion] to suppress based on Harvey-Madden is denied."
A holding order issued and appellant renewed his suppression claim in the trial court in a motion to dismiss, pursuant to section 995. On September 28, 2018, following a hearing, the court denied the motion to dismiss.
C. Legal Analysis
First, respondent does not dispute that appellant was detained during the encounter with Officers Merriman and Ching. (See, e.g., People v. Souza (1994) 9 Cal.4th 224, 229 [a seizure under Fourth Amendment "occurs whenever a police officer 'by means of physical force or show of authority' restrains the liberty of a person to walk away"].)
Instead, the sole issue is whether the prosecution did not satisfy the requirements of the Harvey-Madden rule because it failed to provide sufficient evidence to justify the detention of appellant based solely on information the detaining officers received from the police dispatcher.
In a recent discussion of the Harvey-Madden rule, the California Supreme Court explained that a police officer "may arrest or detain a suspect 'based on information received through "official channels." ' [Citations.] If a 911 call 'has sufficient indicia of reliability . . . a dispatcher may alert other officers by radio, who may then rely on the report [citation], even though they cannot vouch for it.' [Citations.] However, upon proper objection [citation], ' " 'the People must prove that the source of the information is something other than the imagination of the officer who does not become a witness.' " ' [Citations.] This requirement can be met by calling the police dispatcher as a witness at the suppression hearing or by introducing a recording of the 911 call. [Citations.]" (People v. Brown (2015) 61 Cal.4th 968, 983, citing, inter alia, People v. Harvey, supra, 156 Cal.App.2d at pp. 523-524; People v. Madden, supra, 2 Cal.3d at p. 1021 & Remers v. Superior Court, supra, 2 Cal.3d at p. 666.)
In In re Richard G. (2009) 173 Cal.App.4th 1252 (Richard G.), relied on by both the magistrate and the trial court in this case in ruling against appellant, the appellate court discussed other ways the prosecution can satisfy the Harvey-Madden rule, beyond calling the police dispatcher as a witness or introducing a recording of the 911 call into evidence at the suppression hearing.
In Richard G., police officers received a radio dispatch around midnight that two males were causing a disturbance outside a home and that one of them possibly possessed a firearm. The dispatcher further stated that the suspects were walking across the street towards a park, and that one male was wearing a black T-shirt and the other was wearing a blue Pendleton-type jacket. (Richard G., supra, 173 Cal.App.4th at p. 1256.) The officers drove around that park and, within a few minutes, saw two males and two females walking near the park. The males were wearing clothing identical to the descriptions given by the dispatcher. The officers detained the group. (Ibid.)
Following a hearing on the defendant's motion to suppress, the magistrate rejected his Harvey-Madden objection and permitted the officers to describe the radio dispatch they had heard and responded to and, based on that testimony, denied the motion to suppress. (Richard G., supra, 173 Cal.App.4th at p. 1256.)
The appellate court affirmed, finding that "there was no 'manufacture' of information. The information received by the police dispatcher was radioed to multiple officers in multiple patrol cars and it provided detailed descriptions of the two suspects. Absent 1. The officer himself calling in the report to the dispatcher or, 2. Clairvoyance on the part of the dispatcher, there is no way that the dispatcher could have manufactured these detailed descriptions at or near the place and time the officers saw appellant and his companion matching the detailed descriptions.
"Where, as here, the evidence and the reasonable inferences flowing from it show that the police dispatcher actually received a telephone report creating a reasonable suspicion of criminal wrongdoing, it is not necessary to require strict compliance with the 'Harvey-Madden' rule. [Citations.]" (Richard G., supra, 173 Cal.App.4th at p. 1259; accord, People v. Johnson (1987) 189 Cal.App.3d 1315, 1320 (Johnson) [magistrate did not violate Harvey-Madden rule "in relying on circumstantial evidence proving that the information transmitted to the officers must have come from some source outside the police department" where that information "was corroborated by what the officers observed at the scene, making it virtually impossible for the information to have been made up in the police department"]; People v. Orozco (1981) 114 Cal.App.3d 435, 444-445 ["The best way of negating 'do it yourself probable cause' is to have the officer who received the information from outside the police department testify, but that is not the only way," and, in that case, "the veracity of the dispatcher's statement that he received a call was circumstantially proved"].)
In the present case, like the court in Richard G., we find that the evidence and reasonable inferences flowing from it demonstrate that the police dispatcher could not have manufactured the information used to justify the detention. After receiving the dispatch minutes after the incident, at 3:30 a.m., the officers spotted four males walking near the location described by the dispatcher at a time when it would be reasonable to infer that the streets would not be crowded. (See People v. Souza, supra, 9 Cal.4th at p. 241 [" 'Three a.m., . . . is both a late and unusual hour for anyone to be in attendance at an outdoor social gathering' "].) Moreover, as the magistrate found, appellant, a 19-year-old black male was wearing a black T-shirt and blue sweatpants, which closely matched the dispatcher's description of a black male with a baby face, wearing a black T-shirt, and jeans. (See Richard G., supra, 173 Cal.App.4th at p. 1256.)
Although it may have been preferable for the prosecution to call the police dispatcher or introduce a recording of the 911 call into evidence, the officers' testimony as a whole sufficiently corroborated the information provided by the dispatcher to show that the dispatch was made based on information "other than the imagination of" the dispatcher who was not a witness at the hearing. (People v. Brown, supra, 61 Cal.4th at p. 983; see also Richard G., supra, 173 Cal.App.4th at p. 1259.)
Appellant quotes In re Eskiel S. (1993) 15 Cal.App.4th 1638, 1643 (Eskiel S.) for the proposition that, under the Harvey-Madden rule, "where a police communication is the source of the information assertedly constituting cause to detain, the court must look to the transmitting officer and determine whether that officer had information constituting probable cause or reasonable suspicion." The court in Eskiel S. further stated, however, that information from a radio broadcast that cannot be traced back to its source "can support a detention only where that information is 'sufficiently corroborated to furnish the requisite reasonable suspicion.' [Citation.] Where significant portions of the broadcast can be verified, it is reasonable to conclude that the source of the information 'is probably right about other facts . . . including the claim that the object of the tip is engaged in criminal activity.' [Citations.]" (Id. at p. 1644 [noting that same appellate court had found sufficient corroboration in officers' observations at scene in Johnson, supra, 189 Cal.App.3d at pp. 1317-1320].)
The Eskiel S. court found, considering the general nature of the information in the radio broadcast in the case before it, in which only the race of suspects was given and the "general 'area' " was provided for their location, that "no amount of corroboration could have justified a detention based on the broadcast." (Eskiel S., supra, 15 Cal.App.4th at p. 1644.) Contrary to appellant's assertion, however, the court did not hold, in general, that only the police dispatcher or a recording of the 911 call could provide sufficient evidence to corroborate a detention based on such a dispatch.
In this case, we conclude "[t]he information received by the officers, coupled with their corroborating observations of [appellant] near the scene of the reported [robbery], constituted specific and articulable facts sufficient to raise a reasonable suspicion." The Harvey-Madden rule was therefore satisfied. (Johnson, supra, 189 Cal.App.3d at p. 1320; see also Richard G., supra, 173 Cal.App.4th at p. 1259; People v. Orozco, supra, 114 Cal.App.3d at pp. 444-445.)
The motion to suppress was properly denied. (See People v. Romeo, supra, 240 Cal.App.4th at pp. 941-942.)
II. Failure to Instruct the Jury on Theft from the Person
Appellant contends the trial court erred in failing to instruct the jury on the lesser included offense of theft from the person, pursuant to section 487.
A. Trial Court Background
At the jury instruction conference, both defense counsel and the prosecutor agreed that the court should instruct the jury with CALCRIM No. 1800 on petty theft as a lesser included offense of robbery. They also agreed with the court that CALCRIM No. 1801, which addresses the need to determine whether a theft is grand or petty theft, need not be given.
CALCRIM No. 1801 includes optional bracketed language that "[t]heft of property from the person is grand theft if the value of the property is more than $950. Theft is from the person if the property taken was in the clothing of, on the body of, or in a container held or carried by, that person."
The court instructed the jury with CALCRIM No. 1800 as follows:
"Petty theft is a lesser offense to the crime of robbery as charged in Count I.
"To prove that the defendant is guilty of this crime, the People must prove that:
"1. The defendant took possession of property owned by someone else;
"2. The defendant took the property without the owner's consent;
"3. When the defendant took the property he intended to deprive the owner of it permanently;
"AND
"4. The defendant moved the property, even a small distance, and kept it for any period of time, however brief.
"For petty theft, the property taken can be of any value, no matter how slight."
B. Legal Analysis
Appellant claims that the court should have informed the jury that the lesser included offense of robbery was theft from the person, pursuant to section 487, subdivision (c), and not petty theft, pursuant to section 490.2 He maintains that by instructing only on petty theft as an alternative to robbery, the court left the jury "with an all-or-nothing choice between robbery and a simple taking."
Appellant notes that during in limine proceedings, when the court asked, "What happens if they find that he took the property, but he didn't use the requisite force for robbery? Then what happens? What's the verdict on that charge, Charge 1? [¶] What's the lesser?" the prosecutor responded, "A [section] 487."
Section 487, which sets forth several types of thefts that constitute grand theft, provides in relevant part:
"Grand theft is theft committed in any of the following cases: [¶] . . . [¶]
"(c) When the property is taken from the person of another."
Although several of the provisions of section 487 define the offense by the value of the property taken, the language of subdivision (c) does not require that theft from the person exceed any dollar amount to qualify as grand theft.
To address appellant's claim that theft from the person, described in section 487, subdivision (c), is a lesser included offense to robbery and that the court erred in failing to instruct on that offense, we must first discuss recent changes in the law affecting theft crimes, including section 487.
In 2014, California voters approved Proposition 47, the Safe Neighborhoods and Schools Act, which reduced punishment for various crimes that were previously punished as felonies. (People v. Romanowski (2017) 2 Cal.5th 903, 906.)
Among the statutory changes put into effect by Proposition 47 was the enactment of section 490.2, which provides in relevant part: "(a) Notwithstanding Section 487 or any other provision of law defining grand theft, obtaining any property by theft where the value of the money, labor, real or personal property taken does not exceed nine hundred fifty dollars ($950) shall be considered petty theft . . . ." Section 490.2 thus "expanded the offense of petty theft," by including in its definition all theft in which the value of the property taken does not exceed $950. (People v. Van Orden (2017) 9 Cal.App.5th 1277, 1288.)
1.
Appellant argues that, regardless of the changes made by Proposition 47 and the addition of section 490.2, the offense of theft from the person in an amount not exceeding $950 remains an offense under subdivision (c) of section 487, even though it is now punished as a misdemeanor, pursuant to section 490.2. Appellant is incorrect.
As our Supreme Court recently explained: "Among [Proposition 47's] various provisions, this initiative redefined grand theft. At the time of [the defendant in that case's] crimes, taking property from the person of another was grand theft, a felony offense, regardless of the property's value. (See § 487, subd. (c).) Section 490.2, subdivision (a), added by Proposition 47, altered this rule." (People v. Valenzuela (2019) 7 Cal.5th 415, 420.) Now, " 'after the passage of Proposition 47, "obtaining any property by theft" constitutes petty theft if the stolen property is worth less than $950.' [Citation.]" (People v. Page (2017) 3 Cal.5th 1175, 1186, quoting People v. Romanowski, supra, 2 Cal.5th at p. 908.)
Indeed, the introductory language of section 490.2, subdivision (a)—"[n]otwithstanding Section 487 or any other provision of law defining grand theft"—makes clear that section 490.2, where applicable, will take precedence over the preexisting provisions in section 487 purporting to define certain thefts as grand theft. (See People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 524.) Section 490.2, subdivision (a)'s introductory language thus "does not limit the provision's ameliorative operations, but instead saves that operation against interference from other statutory provisions defining certain conduct as grand theft." (People v. Page, supra, 3 Cal.5th at p. 1186.)
Despite the foregoing legal authority, appellant attempts to salvage his claim that theft from the person of property not exceeding $950 in value still exists as a separate offense under section 487, subdivision (c) by pointing to People v. Lara (2019) 6 Cal.5th 1128, in which our Supreme Court found, in the context of vehicle theft, that "[w]hile a theft-based violation of Vehicle Code section 10851 may be punished as a felony only if the vehicle is shown to have been worth over $950, a violation committed by posttheft driving may be charged and sentenced as a felony regardless of value." (Id. at p. 1136, fn. omitted.) Contrary to appellant's claim, the Lara court's distinction between post-theft driving of a vehicle and the theft itself is simply not applicable to the present case, in which the actual taking itself is the only offense at issue.
In light of the foregoing authority, we conclude appellant's claim that the court erred in failing to instruct on the lesser offense of theft from the person, pursuant to subdivision (c) of section 487, is without merit.
2.
Appellant also argues that, "[a]lternatively and additionally, lesser included instruction was required because the value of the goods taken may have exceeded $950," given that "there was no stipulation or proof that the value of good[s] taken was below the $950 threshold." We disagree.
First, during the jury instruction conference, the prosecutor said that "[t]here is no evidence to support the value [of the property] being over $950, to which defense counsel responded, "I agree." Second, during trial, M.B. testified that her purse cost $100, her iPhone 6 plus cost $300, her wallet cost $10, and there was $6 in cash in her wallet. This evidence plainly demonstrated that the value of the property taken did not exceed, $950.
In a footnote, appellant argues that "the value of the credit, identification, and other cards has a somewhat greater value than their simple replacement cost." This vague suggestion that the total value of the property could perhaps exceed $950, is completely unsupported by any evidence or argument in the trial court. Moreover, appellant's citation to cases addressing the valuation of a stolen access card information under section 484e, subdivision (d), is inapplicable to this case. That section provides: "Every person who acquires or retains possession of access card account information with respect to an access card validly issued to another person, without the cardholder's or issuer's consent, with the intent to use it fraudulently, is guilty of grand theft." The taking in this case involved no allegations or evidence that appellant took the victim's "access card account information . . . with the intent to use it fraudulently. . . ." (§ 484e, subd. (d).)
For these reasons, we conclude the trial court properly instructed the jury on the lesser included offense of petty theft (§ 490.2), rather than theft from the person (§ 487, subd. (c)).
III. Trial Court's Response to a Jury Question
Appellant contends the trial court erred when it answered a jury question regarding the amount of force necessary to find appellant guilty of robbery by referring the jury back to the robbery instruction. Respondent counters that this claim is precluded by the invited error doctrine because defense counsel in fact argued that the court should simply refer the jury back to that instruction.
A. Trial Court Background
During the initial discussion of jury instructions, the court observed that the prosecution had requested that the robbery instruction include the following language regarding necessary force: "All the force that is required to make the offense a robbery is such force as is actually sufficient to overcome the victim's resistance." Defense counsel responded, "I agree that it's a correct statement of law. I think that the way it's written is a little bit overly burden shifting" and that, therefore, the force portion of the instruction should instead read, "What is required is force sufficient to overcome the victim's resistance. I think that makes more sense." After defense counsel and the prosecutor argued further about possible language, defense counsel objected to the prosecutor's suggested language, " 'all the force that is required' " as essentially directing a verdict. When the court asked what counsel would suggest instead, counsel said, "What I suggested was—I wrote, 'what is required is sufficient force to overcome the victim's resistance.' " The court determined that it would use defense counsel's suggested language on the force required in the instruction on robbery.
The robbery instruction ultimately given to the jury—CALCRIM No. 1600—included defense counsel's requested language on force: "The Force required must be more than that which is needed merely to take the property from the person of the victim. What is required is sufficient force to overcome the victim's resistance."
During jury deliberations, the jury sent a note to the court asking, "Does robbery require more than minimal force necessary to overcome the victim's resistance?"
The court informed defense counsel and the prosecutor of its receipt of the jury's note, first asking for a response from defense counsel, who stated that "[t]he court should reiterate what the jury instruction says." The prosecutor expressed concern that there was some ambiguity in the phrasing of the instruction regarding "whether it needs to be sufficient to overcome the victim's resistance or whether it leaves any ambiguity as to whether it needs to be somewhat more than that." Defense counsel responded, "I think that we're running into territory of directing a verdict. I think we should refer them back to the instruction as written in [CALCRIM No.] 1600. We gave them the law . . . and I think that that's that. We should just refer to the instruction because that's what it is. . . ." When the prosecutor suggested substituting the instruction's wording regarding "sufficient force" with what "the law actually says, 'force that's sufficient to overcome the victim's resistance,' " the court asked defense counsel what was wrong with "put[ting] that quote in there." Counsel said, "Because the statements that we have given are correct statements of the law. If the court sends them a response that emphasizes one part of the law over the other, then I am concerned that it is a directed verdict."
After further discussion, the court indicated that it was going to direct the jury back to CALCRIM No. 1600. When the prosecutor then asked the court to also "instruct the jury that if they have further questions on this issue, they can ask," defense counsel stated, "I think if they have a question, they will ask another question. I think for now referring them back is the appropriate thing to do; and if they come up with another question, we'll address that." The court then confirmed that it would simply direct the jury back to the instruction.
The court's written response to the jury stated: "The court is going to direct you to review Jury Instruction 1600." The jury asked no additional questions on this point.
B. Legal Analysis
Considering the discussion between the prosecutor, defense counsel, and the trial court, as set forth above, we will first address respondent's argument that, under the invited error doctrine, appellant has forfeited his contention because his counsel requested the allegedly erroneous response to the jury's question.
" 'When a defense attorney makes a "conscious, deliberate tactical choice" to [request or] forego a particular instruction, the invited error doctrine bars an argument on appeal that the instruction was [given or] omitted in error.' [Citations.]" (People v. McKinnon (2011) 52 Cal.4th 610, 675.)
We agree with respondent that defense counsel plainly invited any alleged error when, after the jury asked for clarification on the use of force language in CALCRIM No. 1600—which was originally requested by defense counsel—counsel asked the court to simply refer the jury back to that instruction, which it did. Accordingly, appellant may not now challenge the court for doing exactly what counsel asked it to do. (See People v. McKinnon, supra, 52 Cal.4th at p. 675.)
Appellant asserts that "the language given [in the original instruction] was a long ways from what appellant wanted." The record reflects that, although defense counsel had suggested somewhat different language on force in its memorandum on proposed jury instructions, at the subsequent hearing, counsel immediately requested the language ultimately given by the court.
Although appellant makes no ineffective assistance of counsel argument in his opening brief, he does respond in his reply brief to respondent's observation that "a defendant who is barred from raising instructional error by the invited error doctrine may 'always claim he received ineffective assistance of counsel.' [Citation.]" (People v. Wader (1993) 5 Cal.4th 610, 658.) According to appellant, "[h]ad the jury been reinstructed on the quantum of force necessary to elevate a taking to a robbery, jurors would likely have declined to render a greater verdict." (See, e.g., People v. Morales (1975) 49 Cal.App.3d 134, 139 ["it is established that something more is required than just that quantum of force which is necessary to accomplish the mere seizing of the property"].)
There is no showing of ineffective assistance of counsel in this case. First, while the robbery instruction, to which the court referred the jury after it asked the question about force, did not include the words, "quantum of force," which appellant now claims was required for the jury to understand the amount of force needed for the taking to rise to the level of robbery, the original instruction included similar language making the same point. (Cf. People v. Beardslee (1991) 53 Cal.3d 68, 97 [where jury requests clarification of an instruction, but original instruction is "full and complete," court "should decide as to each jury question whether further explanation is desirable, or whether it should merely reiterate the instructions already given"].) Second, when defense counsel asked the court to refer the jury back to this instruction, she was countering the prosecutor's suggested language regarding force, which counsel believed would have essentially directed a verdict for the prosecution.
Again, that instruction stated: "The Force required must be more than that which is needed merely to take the property from the person of the victim. What is required is sufficient force to overcome the victim's resistance."
We conclude that, had appellant in fact made an ineffective assistance of counsel claim to challenge a potential finding of invited error, the claim would not have succeeded both because counsel's request to refer the jury back to the original instruction constituted a reasonable tactical decision in the circumstances and because appellant cannot show that the failure to give the language on "quantum of force" prejudiced him in any way. (See Strickland v. Washington (1984) 466 U.S. 668, 688, 694; People v. Maury (2003) 30 Cal.4th 342, 416.)
DISPOSITION
The judgment is affirmed.
/s/_________
Kline, P.J. We concur: /s/_________
Richman, J. /s/_________
Miller, J.