Opinion
NOT TO BE PUBLISHED
Sup.Ct. No. 04F03389
MORRISON, J.
A jury convicted defendant Sanjeet Singh of carjacking (Pen. Code, § 215, subd. (a); further statutory references are to the Penal Code) and second degree robbery (§§ 211, 212.5, subd. (c))). It found that he personally used a knife (§ 12022, subd. (b)(1)) in the commission of the carjacking, but not in the commission of the robbery. Imposition of sentence was suspended and defendant was placed on probation for five years on the conditions, among others, that he serve one year of incarceration with 195 days of credit and pay a $200 restitution fine (§ 1202.4) and a $200 restitution fine suspended unless probation is revoked (§ 1202.44).
On appeal, defendant contends (1) his trial counsel rendered ineffective assistance by expressly refusing jury instructions on lesser included offenses of robbery, (2) the jury was erroneously instructed with CALJIC No. 2.21.2 on rejection of witness testimony, and (3) the stayed restitution fine must be stricken because section 1202.44 cannot be applied retroactively to this case; the Attorney General concedes this point. We shall modify the judgment.
FACTS
Prosecution case-in-chief
On an evening in October 2003, Dharamjeet “Vic” Singh was driving home from his uncle’s house in his father’s new Toyota Camry. At an intersection, Vic recognized defendant and Sandip Singh riding in a green compact car behind him. Defendant was in the front passenger seat, and Sandip was driving. Ikwal Singh, a friend of defendant and Sandip, was in the car behind Sandip’s car at the intersection. Vic recognized defendant, Ikwal and Sandip because they attended the same Sikh temple and cultural functions as Vic.
Several parties and witnesses have the surname Singh. For clarity, we refer to these persons by their first names or nicknames.
Sandip was a codefendant at trial. A separate jury acquitted him on both counts.
Vic drove through the intersection and turned onto a cross street. Sandip drove his car around Vic’s car, turned in front of Vic’s car and slammed on the brakes, forcing Vic to stop as well. Vic saw that Ikwal’s car was behind his, boxing him in. Defendant and Sandip got out of Sandip’s car, came up to the driver’s side window of Vic’s car, and asked Vic for money. Vic replied that he did not have any money. Defendant then went around to the passenger side and entered Vic’s car. After telling Vic that he had a nice tape deck and a stereo, defendant placed the transmission in park, turned off the engine, and took Vic’s keys. Defendant and Sandip told Vic to get out of the car. When he complied, Sandip searched Vic’s pockets for money. Sandip found no money but did find Vic’s driver’s license, which he took. Defendant and Sandip then searched Vic’s car. Defendant told Vic they needed to take his car and told Vic to come with them, but Vic refused. At this point, defendant pulled out a knife and Vic took off running.
Vic ran half a block to the Sikh temple, where he found his friend, Ranveer Singh. Vic told Ranveer he had been carjacked. Ranveer noticed that Vic was scared and nervous, “like he had seen a ghost or something.” The duo entered Ranveer’s car, searched the neighborhood for five to ten minutes without success, and then returned to the temple.
Vic found his father, Gurmel “Mel” Singh, at the temple and told him the car had been stolen. Vic and Mel went home to call the police.
When Vic’s car was recovered, the stereo had been stolen, the steering wheel was damaged, a window had been shattered, and a side-view mirror had been damaged. The car yielded one latent fingerprint that did not match defendant, Sandip or Ikwal.
Vic viewed a photographic lineup and identified defendant as the carjacker and robber.
Defendant told an investigating detective that he was with Sandip and Ikwal on the night of the incident. Defendant claimed that Sandip forced Vic’s car to the curb, intending to steal the car’s stereo. Defendant said Sandip stole the stereo and gave it to a girl in exchange for “crank.”
The detective searched defendant’s bedroom and found a large knife underneath the mattress of his bed. When Vic viewed the knife at trial, he noted that the blade was the same width, length and color as the knife used in the carjacking. Vic was unable to identify the knife itself because he had seen only the blade, and not the whole knife, during the carjacking.
Defendant’s defense
Defendant’s brother, Vimal Singh, testified that he purchased the knife found under defendant’s mattress in Cancun, Mexico, in 2002. Vimal gave the knife to defendant as a Christmas gift in late 2003, well after the incident.
Vimal explained that defendant kept the knife under his bed in order to keep nightmares and evil spirits away.
Through the testimony of the investigating sheriff’s deputies, defendant revealed inconsistencies in Vic’s description of the incident. Vic initially reported that his car had been stopped by three East Indians in a green Neon.
Later, Vic claimed that Ikwal was at the scene in a second car--a blue Pontiac.
Sandip’s defense
Sandip’s older sister testified that Vic had given or sold her methamphetamine “[p]lenty of times” and that she had, on occasion, used the drug with him. Vic usually would deliver the drug to her house.
Rohit Singh, who went to school with and socialized with Sandip, testified that he witnessed an altercation between Sandip and Vic prior to the present incident. Sandip punched Vic once in the face, and Rohit broke up the fight. Thereafter, Vic often said that he would do something to get back at Sandip.
DISCUSSION
I
Defendant contends his robbery conviction must be reversed because his trial counsel rendered ineffective assistance by expressly refusing jury instructions on applicable lesser included offenses. He claims the evidence supported an instruction on grand theft of property from the person of another (§ 478, subd. (c)), and counsel’s refusal of an instruction on that offense denied his federal and state rights to due process of law. We are not persuaded.
Background
Defendant and Sandip were charged with carjacking (§ 215, subd. (a)) and second degree robbery (§ 211). It was alleged that defendant personally used a knife (§ 12022, subd. (b)(1)) on both counts.
Following an unreported instructions conference, the trial court noted on the record that trial counsel for defendant and Sandip had differing tactical approaches on the issue of lesser included offenses. Defendant’s trial counsel “specifically ask[ed] the Court not to instruct on any lesser-included or related” instructions. The court stated, “Based on my understanding of the law, the facts of this case and [defendant’s counsel’s] express affirmation that that is a defense-strategic request and -- I will honor that request and not instruct on the lesser-included offenses or lesser-related offenses, which may be Vehicle Code section 10851 and/or 487, the grand theft of an automobile or any, I take it, petty theft or lesser theft-related offense that applies, . . .” Defendant’s trial counsel confirmed that the court was correct.
Analysis
Because defendant expressly agreed to the omission of instructions on lesser-included offenses, the doctrine of invited error bars an appellate claim that the omission was error. (People v. Davis (2005) 36 Cal.4th 510, 539.) “‘[A] defendant may not invoke a trial court’s failure to instruct on a lesser included offense as a basis on which to reverse a conviction when, for tactical reasons, the defendant persuades a trial court not to instruct on a lesser included offense supported by the evidence. [Citations.] In that situation, the doctrine of invited error bars the defendant from challenging on appeal the trial court’s failure to give the instruction.’ [Citation.]” (People v. Horning (2004) 34 Cal.4th 871, 905, quoting People v. Barton (1995) 12 Cal.4th 186, 198.)
In order to demonstrate that trial counsel’s express refusal of lesser included instructions was ineffective, defendant must establish “both of the following: (1) that counsel’s representation fell below an objective standard of reasonableness; and (2) that there is a reasonable probability that, but for counsel’s unprofessional errors, a determination more favorable to defendant would have resulted. [Citations.] If the defendant makes an insufficient showing on either one of these components, the ineffective assistance claim fails. Moreover, ‘“a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.” [Citations.]’” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1126; italics in original.)
In this case, any deficient performance could not have been prejudicial because no substantial evidence suggested that defendant obtained Vic’s personal property without using force or intimidation.
“‘Robbery is the . . . taking of . . . property . . . accomplished by means of force or fear.’ [§ 211].) Accordingly, ‘to support a robbery conviction, the taking, either the gaining possession or the carrying away, must be accomplished by force or fear.’ [Citation.] ‘Gaining possession or . . . carrying away’ includes forcing or frightening a victim into leaving the scene, as well as simply deterring a victim from preventing the theft or attempting to immediately reclaim the property. (People v. Prieto (1993) 15 Cal.App.4th 210, 211-216 [] [victim too ‘fearful and shocked’ to intervene in nearby struggle between perpetrator and second victim over purses belonging to both victims]; People v. Dominguez (1992) 11 Cal.App.4th 1342, 1346-1349 [] [victim ordered out of his residence at gunpoint before property was carried off]; People v. Hays (1983) 147 Cal.App.3d 534, 541-542 [] [fearful victim fled before taking of property].)” (People v. Flynn (2000) 77 Cal.App.4th 766, 771; italics added.)
The evidence showed that Sandip removed Vic’s driver’s license from his pocket and then remained on the scene to search Vic’s car. Defendant presented the testimony of Sacramento County Sheriff’s Deputy Robert White, who had interviewed Vic on the night of the robbery. Vic reported to White that, after he was out of his car, defendant pulled out a knife and Vic thereafter ran to his home. Thus, by defendant’s own evidence, the taking of Vic’s wallet was not complete until after defendant pulled the knife, “forcing or frightening [Vic] into leaving the scene, ” rather than “attempting to immediately reclaim the property.” (People v. Flynn, supra, 77 Cal.App.4th at p. 771; italics added.) There was no substantial evidence that the offense was less than robbery, and the omission of jury instructions on inapplicable lesser offenses could not have been prejudicial.
II
Defendant contends CALJIC No. 2.21.2 impermissibly lightened the prosecution’s burden of proof because it allowed the jury to use the probability standard to evaluate the testimony of crucial prosecution witnesses who had been impeached. We disagree.
The jury was instructed on CALJIC No. 2.21.2 as follows: “A witness who is willfully false in one material part of his or her testimony is to be distrusted in others. You may reject the whole testimony of a witness who willfully has testified falsely as to a material point unless from all the evidence you believe the probability of truth favors his or her testimony in other particulars.”
The California Supreme Court has rejected contentions identical to defendant’s. (People v. Nakahara (2003) 30 Cal.4th 705, 714; People v. Maury (2003) 30 Cal.4th 342, 428-429.) These authorities are binding upon this court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) In any event, this court has previously rejected the contention. (People v. Wade (1995) 39 Cal.App.4th 1487, 1493.)
III
Defendant contends, and the Attorney General agrees, the section 1202.44 fine must be stricken because the statute went into effect after the present crimes were committed. We accept the Attorney General’s contention.
People v. Callejas (2000) 85 Cal.App.4th 667 (Callejas) considered the analogous question whether a parole revocation fine under section 1202.45 could be imposed in a case where the offense was committed before the statute creating the fine was enacted. (Id. at p. 678.) The court concluded that even though the triggering event, the revocation of parole, was to occur subsequent to the enactment of the new statute, the fine could not be applied retroactively to increase the punishment for the original offense. (Ibid.)
In this case, the carjacking and robbery occurred on October 4, 2003. Defendant was ordered to pay a $200 probation revocation restitution fine pursuant to section 1202.44, which became operative on August 16, 2004. (Stats. 2004, ch. 223 (SB 631).) Under the reasoning of Callejas, the section 1202.44 fine cannot be applied retroactively to this case.
DISPOSITION
The judgment is modified by striking the section 1202.44 restitution fine. As so modified, the judgment is affirmed.
We concur: SCOTLAND, P.J., CANTIL-SAKAUYE, J.