Opinion
D051432
7-1-2008
THE PEOPLE, Plaintiff and Respondent, v. BASHAY SIGITI WARD, Defendant and Appellant.
Not to be Published
A jury convicted Bashay Sigiti Ward of two counts of robbery. (Pen. Code, § 211.) Ward admitted that he had suffered a prison prior (§§ 667.5, subd. (b), 668), a serious felony prior (§§ 667, subd. (a)(1), 1192.7, subd. (c)), and a strike prior (§§ 667, subds. (b)-(i), 668, 1170.12). The trial court sentenced Ward to 14 years in prison.
All statutory references are to the Penal Code unless otherwise indicated.
Ward appeals contending that his convictions must be reversed because: (i) the trial court erred by failing to sua sponte instruct the jury that accomplice testimony should be viewed with caution and must be corroborated; (ii) the trial court erred in admitting evidence regarding an impermissibly suggestive "showup" identification conducted shortly after the robbery; (iii) there was insufficient evidence to establish the "force or fear" element of one of the two counts of robbery; and (iv) the trial court erred in failing to sua sponte instruct on the lesser offense of grand theft (person). As discussed below, these contentions are without merit.
FACTS
On December 2, 2006, Ward met Amanda Loftes at a party at a Days Inn Motel. At around 2:00 a.m., Ward asked Loftes for a ride home, and Loftes spent the next 12 hours with Ward, driving to Wards friends and relatives houses, and watching a football game. After the football game, Ward asked Loftes to drive him to the Valley Farms Market in Spring Valley. At around 2:25 p.m., Ward entered the market and approached the cash register with a pack of gum. Bertha Martinez rang up the purchase and opened the register to give Ward his change. Ward reached over, put his hand in the drawer and grabbed a stack of $5 bills. Martinez tried to close the drawer on Wards hand and yelled for assistance from another employee, Lori Marso.
Responding to Martinezs call, Marso came to the front of the store and attempted to stop Ward as he was exiting by "grabb[ing] on to the back of his shirt." During a struggle with Ward, Marso tried to knock loose money that Ward was holding in his hand and succeeded in knocking about $15 to the floor. Ward managed to overpower Marso and escape from the store, spraining Marsos finger in the process.
Once outside, Ward returned to Loftess car, which was parked in front of the market, and Loftes drove away. Soon thereafter, Loftes stopped at a 7-Eleven, and Ward handed her some money for gas. While Loftes was pumping gas, Ward took off the blue shirt he was wearing and placed it in the back of the car.
After Loftes returned to the road, she observed a police car signaling for her to pull over. Loftes did so, although Ward urged Loftes not to stop. While Loftes was being questioned by the police officer who conducted the stop, Ward jumped out of the car and fled. After a 15-minute search, Ward was located nearby, hiding behind a birdcage and under a tarp in a fenced storage area. Ward had two $10 bills and three $5 bills in his right front pocket.
DISCUSSION
Ward contends that his convictions must be reversed on numerous grounds. We address each of his contentions separately below.
I
Any Error in Failing to Instruct on Accomplice Testimony Was Harmless
Ward contends that the trial court erred by failing to sua sponte instruct the jury regarding the "principles of law regarding accomplice testimony." Specifically, Ward contends that the trial court erred by failing to instruct the jury with CALCRIM No. 334, which would have provided the jury with a definition of an accomplice, informed them that accomplice testimony that tends to incriminate the defendant should be viewed with caution, and that a conviction based on an accomplices testimony requires corroboration. We conclude that even if the trial court erred, the error was harmless, and therefore does not warrant reversal.
An accomplice is a person "who is liable to prosecution for the identical offense charged against the defendant." (§ 1111.) If the prosecution presents the testimony of an accomplice, the trial court "`"must instruct the jury that the witnesss testimony should be viewed with distrust"" and that that testimony cannot support a conviction absent corroboration. (People v. Hernandez (2003) 30 Cal.4th 835, 874; People v. Tobias (2001) 25 Cal.4th 327, 331 ["`[w]hen there is sufficient evidence that a witness is an accomplice, the trial court is required on its own motion to instruct the jury on the principles governing the law of accomplices, including the need for corroboration"]; see CALCRIM No. 334.) On the other hand, "`"if the evidence is insufficient as a matter of law to support a finding that a witness is an accomplice, the trial court may make that determination and, in that situation, need not instruct the jury on accomplice testimony."" (People v. Hinton (2006) 37 Cal.4th 839, 879 (Hinton).)
Ward contends that Loftess testimony triggered the trial courts obligation to instruct the jury regarding accomplice testimony because the jury could reasonably have deemed her to be Wards accomplice. The Attorney General responds that the trial court had no such obligation because there was no evidence that Loftes "had knowledge of, and intent to aid or encourage" Wards crimes and, in any event, any error was harmless. As we agree that any error was harmless, we need not resolve whether the trial court erred.
The failure to instruct the jury regarding accomplice testimony is subject to harmless error analysis under People v. Watson (1956) 46 Cal.2d 818, 837. (People v. Lewis (2001) 26 Cal.4th 334, 371; Hinton, supra, 37 Cal.4th at p. 881; People v. Avila (2006) 38 Cal.4th 491, 562 (Avila).) Any error in failing to provide such instructions does not warrant reversal unless there is a reasonable probability that the error influenced the jurys verdict. (Lewis, at p. 371.)
We reject Wards assertion that the proper standard is that contained in Chapman v. California (1967) 386 U.S. 18, 24. The Chapman standard applies when a trial court has committed federal constitutional error. Ward does not cite any case, and we are aware of none, that suggests that a failure to sua sponte instruct the jury regarding accomplice testimony constitutes federal constitutional error. Rather, as cited above, the case law is to the contrary.
In the instant case, there is not a reasonable probability that the jurys verdict would have been any different had the trial court given the now-requested instructions regarding accomplice testimony. An instruction advising the jury to view Loftess testimony "that tend[ed] to incriminate the defendant" with caution, and requiring corroboration, however "slight," of such testimony (CALCRIM No. 334), would have had little effect given the minor role Loftes played at trial in establishing Wards guilt. Martinez and Marso provided testimony establishing that there was a robbery, identifying Ward as the robber, and Loftess vehicle as the getaway car. Police officer testimony established that Ward was in Loftess vehicle shortly after the crime, and that upon the stop of that car, Ward fled and hid in a nearby field. Thus, the prosecutions case — even without Loftess testimony — included powerful evidence that a robbery had been committed, and that Ward was the perpetrator. Loftes, who did not witness the robbery and claimed to have been oblivious to it, solely corroborated the prosecutions evidence with respect to the presence of Ward in her vehicle (something that was confirmed independently by the police).
In addition, although not specifically instructed to discount Loftess testimony, the jury was instructed with respect to factors to consider in evaluating witness testimony, including whether the witnesss testimony was "influenced by a factor such as bias or prejudice, a personal relationship with someone involved in the case, or a personal interest in how the case is decided" as well as "anything that reasonably tends to prove or disprove the truth or accuracy of [the witnesss] testimony." (CALCRIM No. 226.) Thus, to the extent the point was not readily apparent without instruction, these factors suggested that Loftess potential complicity in Wards crime was a factor to be considered in determining her credibility.
In sum, given the minor role played by Loftess testimony in establishing the elements of the offense and the instructions the jury did receive, there is not a reasonable probability that the absence of an accomplice testimony instruction swayed the jurys verdict. Consequently, the challenged instructional omission, even if erroneous, was harmless. (See Hinton, supra, 37 Cal.4th at p. 881 [error in failing to give accomplice instructions was harmless because "`the instructions requested would have informed the jury to view [the accomplices] testimony with distrust if the jury determined that [the accomplice] — and not defendant — committed the crimes. Any reasonable juror would reach this conclusion without instruction"]; Avila, supra, 38 Cal.4th at pp. 562-563 [trial courts failure to instruct on accomplice testimony was harmless due to "`independent evidence, . . . `tend[ing] to connect the defendant with the crime charged without aid or assistance from the accomplices testimony"].)
II
The Trial Court Did Not Err in Permitting Testimony Regarding the Showup Identification
Ward contends that his convictions must be reversed because the trial court erroneously permitted one of the robbery victims (Marso) to testify that she identified Ward as the perpetrator in a showup identification procedure shortly after the arrest. Ward contends that the admission of this evidence violated his due process rights because the identification was unduly suggestive. We disagree.
Due process requires the exclusion of identification testimony "if the identification procedures used were unnecessarily suggestive" and "the resulting identification was also unreliable." (People v. Yeoman (2003) 31 Cal.4th 93, 123.) "[T]he burden is on the defendant to establish that the [eyewitnesss] confrontation resulted in such unfairness that it infringed his right to due process." (People v. Hunt (1977) 19 Cal.3d 888, 893.)
It is well established that a "`"single person showup" is not inherently unfair," and consequently need not, absent unusual circumstances, be excluded from the presentation of evidence on due process grounds. (People v. Floyd (1970) 1 Cal.3d 694, 714 [single person showup identification procedure conducted at the jail within several hours of a robbery did not violate due process], overruled on another point in People v. Wheeler (1978) 22 Cal.3d 258, 287, fn. 36.) In fact, "single-person show-ups for purposes of in-field identifications are encouraged, because the element of suggestiveness inherent in the procedure is offset by the reliability of an identification made while the events are fresh in the witnesss mind, and because the interests of both the accused and law enforcement are best served by an immediate determination as to whether the correct person has been apprehended." (In re Carlos M. (1990) 220 Cal.App.3d 372, 387.)
As the trial court noted, the showup identification procedure utilized in the instant case was essentially indistinguishable from procedures that have repeatedly been deemed proper by the courts. The procedure took place shortly after the robbery, and there was no evidence that prior to Marsos identification of Ward, the police improperly suggested to her that he was the perpetrator. (See People v. Ochoa (1998) 19 Cal.4th 353, 413 ["for a witness identification procedure to violate the due process clauses, the state must, at the threshold, improperly suggest something to the witness"].)
Ward points out that Marso also was shown the blue shirt found in the back of Loftess car, and after she identified it as the shirt worn by the robber, was informed that it had been found in the car they had stopped. We do not find this factor supportive of Wards claim. Ward fails to explain why the police would not be permitted to ask Marso about the shirt, and even if doing so were somehow improper, the record does not reflect that the shirt was shown to Marso prior to her curbside identification of Ward.
Ward contends that admission of the showup identification testimony violated his constitutional rights because, at the time of Marsos identification, the car involved in the robbery was nearby, Ward was the sole Black male in the vicinity, and he was in handcuffs and accompanied by officers. The factors highlighted by Ward, however, are inherent in a single-person showup procedure and have not been found by courts to require suppression of identification testimony. By its very nature, a single-person showup identification involves one person (the suspect) who is often surrounded by the trappings of police activity (officers, handcuffs, and even the car, if any, the person was stopped in). (See, e.g., People v. Green (1998) 256 A.D.2d 85, 85-86 [rejecting challenge to showup identification procedure where "defendant was handcuffed and in the presence of police officers" even assuming "police had made the complainant aware that he was being asked to view suspects arrested in the getaway car for which the complainant had provided a license plate number only minutes previously" because "the complainant would have expected such a circumstance on the basis of his own common sense"]; People v. Stewart (1999) 257 A.D.2d 442, 443 [showup was not rendered unduly suggestive by "the presence of police near defendant . . ., the officers directive that the witness view defendant, nor the presence of the getaway car" because "the witness, using his common sense, could have discerned that the likely reason for the prompt arrest was that the police had located the getaway car he had described" (citation omitted)].) While such a procedure has been recognized to be to some degree "suggestive[]," the courts have consistently refused to deem these factors so suggestive as to render subsequent identification testimony inadmissible, given the countervailing benefits (to law enforcement and the accused) of showup identification procedures. (In re Carlos M., supra, 220 Cal.App.3d at p. 387 [rejecting contention that presence of handcuffs on suspect rendered showup identification unduly suggestive]; see also In re Richard W. (1979) 91 Cal.App.3d 960, 969-970 [no due process violation arose when witness identified suspect shortly after burglary while suspect was handcuffed and seated in the back of a patrol car]; People v. Savala (1981) 116 Cal.App.3d 41, 49 [no due process violation where showup procedures were "factually similar" to those in In re Richard W.]; People v. Contreras (1993) 17 Cal.App.4th 813, 820 [stating that a police officer "[t]elling a witness suspects are in custody . . . is not impermissible" in context of identification procedure].) In accordance with this well-established authority, we conclude that Ward failed to satisfy his burden of demonstrating that the showup was impermissibly suggestive. Consequently, the trial court did not err in permitting the challenged identification testimony.
III
The Robbery Conviction with Respect to Victim Martinez Is Supported by Substantial Evidence
Ward contends that his conviction for robbing Martinez must be reversed because there is not substantial evidence that he used "force or fear" to obtain any money from her, as is required for a robbery conviction. (§ 211.) Instead, Ward argues, the evidence demonstrated that he did not use "any more force than was necessary to pull the money out of the cash drawer." We disagree.
Ward was convicted of two counts of robbery, one for each victim in the store. He does not contend on appeal that there was insufficient evidence to support the jurys conviction on the second count of robbery concerning victim Marso, with whom he struggled prior to departing from the store.
In evaluating a challenge to the sufficiency of the evidence, "we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence — that is, evidence that is reasonable, credible and of solid value — from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Snow (2003) 30 Cal.4th 43, 66.) In addition, we "`must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
For a robbery conviction to be sustained on appeal, there must be substantial evidence that property was obtained by "force or fear." (§ 211; CALCRIM No. 1600.) To establish this element of the offense, "something more is required than just that quantum of force which is necessary to accomplish the mere seizing of the property." (People v. Morales (1975) 49 Cal.App.3d 134, 139; People v. Garcia (1996) 45 Cal.App.4th 1242, 1246 (Garcia) ["A pickpocket touches the victim in extracting a wallet from his pocket, but this does not make the pickpocket a robber"], disapproved on other grounds in People v. Mosby (2004) 33 Cal.4th 353, 365, fns. 2, 3.) "`"The degree of force is immaterial. All the force that is required to make the offense a robbery is such force as is actually sufficient to overcome the victims resistance . . . ."" (People v. Lescallett (1981) 123 Cal.App.3d 487, 491 (Lescallett ), quoting People v. Clayton (1928) 89 Cal.App. 405, 411.) In addition, "[t]he force need not be applied directly to the person of the victim." (People v. Wright (1996) 52 Cal.App.4th 203, 210 (Wright).)
In the instant case, the evidence permitted the jury to conclude that Ward used more force than would have been necessary to remove the $5 bills from the cash register; in particular, the evidence supported a reasonable conclusion that Ward used additional force to "`"overcome the victims [Martinezs] resistance" "and was thus guilty of robbery. (Lescallett, supra, 123 Cal.App.3d at p. 491.)
Martinez testified that when she opened the register, Ward placed his hand inside in an effort to grab the stack of $5 bills. Martinez, then, attempted to close the drawer and yelled for assistance from another employee, Marso. Ward "tried to get the money and [Martinez] tried to close the drawer like two times . . . with his hand inside." Each time Martinez pushed the drawer closed, Ward pushed back to force it open. Martinez testified that the force of this struggle caused the register, which was "pretty heavy," to move. In addition, Marso, who came to Martinezs aid, described the interaction between Ward and Martinez as "a struggle."
Given this testimony, there was sufficient evidence for a reasonable jury to conclude beyond a reasonable doubt that Ward utilized "force" to obtain the money from the register — i.e., more than the quantum of force necessary to accomplish the mere seizing of property — and consequently the jurys verdict may not be disturbed. (See Garcia, supra, 45 Cal.App.4th at p. 1246 [sufficient force to support robbery conviction where defendant "gave [the cashier] a slight push, `like a tap, on her shoulder with his shoulder" to move her away from the register before taking money]; People v. Harris (1977) 65 Cal.App.3d 978, 989 [evidence that defendant was able to pry open jewelry case with knife despite clerks efforts to push lid of case closed sufficient to establish "`force or fear" necessary for robbery conviction]; see also People v. Brew (1991) 2 Cal.App.4th 99, 104 [defendants stepping between cash register and clerk, causing clerk to step back, was sufficient to support finding that taking of money from register was accomplished by "fear or intimidation" as required for robbery conviction].)
IV
The Trial Court Did Not Err by Failing to Instruct the Jury on the Lesser Offense of Grand Theft Person
Ward argues that the trial court erred by failing to sua sponte instruct the jury on the elements of grand theft (person) as a lesser included offense of robbery.
During the bench conference regarding jury instructions, the prosecutor, with defense counsels agreement, suggested that an instruction for theft (CALCRIM No. 1800) should be included as a lesser included offense of robbery. (§ 484 [theft].) This would provide the jury with an alternative offense "[i]f they dont find force or fear." The trial court agreed. Both parties then agreed that CALCRIM No. 1801, which defines various manners in which theft can be deemed grand theft, should not be given to the jury, because, in the words of defense counsel, there was not "an issue [as to] how much money was taken," i.e., it was not more than $400. Consequently, CALCRIM No. 1800, but not CALCRIM No. 1801, was given to the jury, and the jury was not instructed as to the offense of grand theft. (CALCRIM No. 1801.) The trial court did not err.
The trial court has an obligation "to instruct, sua sponte, on all theories of a lesser included offense which find substantial support in the evidence." (People v. Breverman (1998) 19 Cal.4th 142, 162 (Breverman).) An offense is considered a lesser included offense of a greater crime if the greater "crime cannot be committed without also necessarily committing [the] lesser offense." (People v. Lopez (1998) 19 Cal.4th 282, 288 (Lopez); People v. Birks (1998) 19 Cal.4th 108, 117.) The characterization of an offense as a lesser included offense is made solely with reference to the elements of that offense; "[t]he evidence actually introduced at trial is irrelevant . . . ." (Wright, supra, 52 Cal.App.4th at p. 208.)
There is no doubt that theft is a lesser included offense of robbery, but whether grand theft is a lesser included offense of robbery is unclear. (See People v. Cooksey (2002) 95 Cal.App.4th 1407, 1411 ["Grand theft person, depending on the facts, can be a lesser included offense of robbery" (italics added)]; People v. Escobar (1996) 45 Cal.App.4th 477, 483 (conc. & dis. opn. of Woods, J.) ["grand theft auto is not a lesser included offense of robbery"].) Even if we were to assume that grand theft is a lesser included offense of robbery, however, a grand theft instruction was not required in the instant case because a conviction for grand theft was unsupported by substantial evidence. (Breverman, supra, 19 Cal.4th at p. 162 [trial court is required "to instruct, sua sponte, on all theories of a lesser included offense which find substantial support in the evidence" (italics added)].)
While this assumption is arguably supported by statements of our Supreme Court — see People v. Ortega (1998) 19 Cal.4th 686, 697 ("Because theft is a necessarily included offense of robbery [citation], it follows that both degrees of theft, grand and petty, are necessarily included offenses of robbery"); People v. DePriest (2007) 42 Cal.4th 1, 50 ("It is settled that the crime of theft, whether divided by degree into grand theft or petty theft, is a lesser included offense of robbery") — it is a questionable one. A lesser included offense is present only when the greater "crime cannot be committed without also necessarily committing [the] lesser offense." (Lopez, supra, 19 Cal.4th at p. 288.) A person can, however, commit robbery (as in this case) without committing grand theft so long as the property taken is worth less than $400 (and is not shellfish, nuts, fruit, etc.) and is removed from the "immediate presence" of the victim, but not "from the [victims] person." (§§ 211, 487.)
Grand theft (person) requires that property be taken "from the person" of another. (§ 487.) CALCRIM No. 1801 explains that "[t]heft 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." (CALCRIM No. 1801.) In the instant case, the evidence was undisputed that the property stolen was obtained from a cash register sitting on a store counter and not from Martinezs person or a container that she was holding or carrying (e.g., a purse or briefcase). Thus, as the evidence did not support an instruction on grand theft (person), the trial court was not required to instruct on that offense. (Breverman, supra, 19 Cal.4th at p. 162.)
Ward does not contend that any of the other variants of grand theft were supported by the evidence, such as that the value of the property taken was over $400, or the property taken consisted of over $100 worth of fish, shellfish, fruit, nuts or aquacultural products. (CALCRIM No. 1801; § 487.)
We reject Wards suggestion that because Martinez was trying to close the register drawer, and thus touching it, the jury could reasonably conclude that the money taken was on Martinezs person, or in a "container" she "held or carried." (See People v. McElroy (1897) 116 Cal. 583, 586 [explaining that grand theft statute contemplates that the property taken "be in some way actually upon or attached to the person, or carried or held in actual physical possession — such as clothing, apparel, or ornaments, . . . or property held or carried in the hands, or by other means, upon the person"].) The cases Ward cites on this point, which represent the outer borders of the statutory requirement that grand theft be "from the person," are distinguishable. (See People v. Huggins (1997) 51 Cal.App.4th 1654, 1658 [theft of purse upon which victim was holding her foot was "from the person" because the "obvious purpose of the statute is to guard against `the purse-snatcher, "the "purse was actually attached to [the victims] person," and "[i]t would be anomalous to hold that the statute applied had the purse been touching the victims hand but not her foot"]; In re George B. (1991) 228 Cal.App.3d 1088, 1092 [grocery bag taken from cart being pushed by victim was taken "from the person" because "[j]ust as the shopping cart was `attached to [her] person so also were its contents in precisely the same sense as are the contents of a purse which is stolen from the physical grasp of the victim"].)
In addition, even if the trial court had erred in failing to instruct on grand theft (person), that error would be harmless. Ward contends that the trial courts instructional omission was prejudicial because the jury "could easily have concluded that [he] used only the quantum of force necessary to take the money" and thus did not satisfy the "force or fear" element for a robbery conviction. Ward fails to explain, however, why this concern is not rendered moot by the lesser included offense instruction that the jury did receive on theft by larceny, which contains no "force or fear" element. (§ 484; CALCRIM No. 1800.) If, as Ward contends, due process required the jury to be given an alternative offense to convict on if it concluded that no force or fear was applied, that alternative was available in the form of the instruction on theft by larceny. As the jury rejected that alternative, the failure to give an essentially overlapping alternative instruction on grand theft (person) is harmless. (See People v. Elliot (2005) 37 Cal.4th 453, 475 [failure to instruct on lesser included offense is harmless where "`"the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions""].)
DISPOSITION
Affirmed.
WE CONCUR:
HUFFMAN, Acting P. J.
HALLER, J.