Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 05HF1565, David A. Hoffer, Judge.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant, Joseph Patrick Graham.
Shawn O’Laughlin, under appointment by the Court of Appeal, for Defendant and Appellant, Daniel Stephen Graham.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Janelle Marie Boustany, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION.
SILLS, P. J.
Joseph Patrick Graham (Joseph) and Daniel Stephen Graham (Daniel) appeal from the judgment sending them to prison for seven and two years, respectively. This judgment followed a jury trial in which they were found guilty of robbing Lillian Varela, of committing a commercial burglary of a Ralph’s grocery store, and of stealing from Carlos Rubio, as a lesser included offense of the actual charge, robbery. Although the two brothers admitted Daniel had a prior prison term, and Joseph had previously been convicted of a “strike” and a serious felony, the sentencing court struck the prior convictions for sentencing purposes, excepting only Joseph’s prior serious felony which carried a five-year mandatory enhancement. (See Pen. Code, §§ 211, 212.5, 459, 460, 667, 667.5, 1170.12.)
On appeal, Joseph contends the term for the commercial burglary should have been stayed pursuant to Penal Code section 654. He also contends the evidence was insufficient to support the conviction for robbery of Varela, and the court misinformed the jury as to the elements of robbery. Daniel joins in the arguments to stay the burglary term and to attack the sufficiency of evidence for robbery, but then brings several additional grounds as instructional error to that raised by Joseph. In a supplemental brief, Daniel augments his arguments by also contending that the petty theft of Rubio should have been dismissed as a lesser included offense to the robbery of Varela. Joseph joined in these latter arguments. We affirm.
I FACTS
Daniel and Joseph were twins and did everything together, including entering a Ralph’s grocery store one day, looking around furtively, selecting several small items and placing them in their respective pockets. They then walked past the cash registers and out of the door. The store security officers, Lillian Varela and Carlos Rubio, immediately confronted them, having seen them and recorded their actions on videotape.
Joseph took toothpaste and a toothbrush; Daniel took Tylenol and Pediacare. The total cost of the items was $27.01.
When Varela demanded their return to the store’s interior, the twins bolted: Joseph pushed her backwards, knocking her against a pillar, while Daniel took off in the direction opposite to that taken by Joseph. However, Varela managed to grab Joseph who then struggled with her to disengage himself, leaving scratches on Varela’s arms. Varela was able to reclaim the toothbrush and toothpaste once she had subdued him, which she had seen Joseph pocket.
Rubio and another friend, Ryan Ayoub, went after Daniel. They managed to stop him but Daniel was swinging at them, even after Rubio informed him that they were loss prevention personnel. After the security officers called the police, the twins proceeded to provide false names to the responding officers.
Daniel testified at trial, contending that he ran when Varela confronted them, but immediately acquiesced to Rubio’s demands and never fought with him. He testified, moreover, that Joseph could not have fought with Varela because he was tackled, and the store officers were sitting on top of him as he lay on the ground.
Daniel’s girlfriend, Jaime Smalldon, was waiting for him in a nearby car. She agreed that Joseph was thrown to the ground and several people intervened trying to get Varela off him so that he could breathe, as he suffered from asthma.
Daniel testified at trial that he never pushed anyone, but that Rubio and another man ripped off his shirt, threw him to the ground, choked him around his neck and held his leg in a lock. The only resistance he ever offered was that which was necessary to prevent the store agents from seriously injuring him. Daniel did not deny that he and his brother stole the items from the store.
II DISCUSSION
A. Sufficiency of Evidence
Both Daniel and Joseph contend there was no evidence that they ever took anything from the presence of Varela, the person they allegedly robbed. As robbery is defined as “the felonious taking of personal property in the possession of another, from his [or her] person or immediate presence, and against his [or her] will, accomplished by means of force or fear[,]” they cannot be guilty of robbery, they contend.
A robbery may be accomplished even if the original taking of the property was not accomplished by the use of force or was not in the presence of the victim when first seized. If force or fear is used to effectuate the asportation of the taken item to a place of relative safety, then a robbery is committed. (See People v. Estes (1983) 147 Cal.App.3d 23, 27-28; see also 2 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Crimes Against Property, §§ 93-95, pp. 123-127.) As noted by the Attorney General, the Grahams’ complaint is with the Estes case and its progeny, not with the sufficiency of the evidence in this instance. They essentially contend this court should dispute the conceptual application of the crime of robbery to any situation in which the force is not applied at the time of the taking. Relying on language from the dissent in People v. Miller (2004) 115 Cal.App.4th 216, 225-228, they argue that the expanded application of robbery to essentially petty theft cases in which a security officer is impeded from retrieving the stolen items lacks jurisprudential or legislative authority. They also emphasize that the California Supreme Court has granted review in two cases involving this issue, and surmise from that action that the august justices agree with their critical position. (See People v. Johnson (2006) 141 Cal.App.4th 1161, review granted Nov. 15, 2006 but briefing deferred pending consideration of People v. Gomez (2005) 134 Cal.App.4th 1241, review granted March 22, 2006.)
However, the California Supreme Court recently issued its opinion in People v. Gomez (2008) __ Cal.4th __ [74 Cal.Rptr.3d 123], the lead case on the issue. In Gomez, the Supreme Court clearly adopted the Estes rationale, rejecting the characterization by Gomez—and the Grahams in the case before us—that such a rationale essentially “expands” the definition of a crime, which only the Legislature has the authority to do. (Id. at p. __ [id. at p. 132].) Rather, the Court reiterated that “a taking is not over at the moment of caption; it continues through asportation. Second, a robbery can be accomplished even if the property was peacefully or duplicitously acquired, if force or fear was used to carry it away.” (Id. at p. _ [id. at pp. 127-128].) Then, again invoking Estes, the Court declared that “‘to support a robbery conviction, the taking, either the gaining possession or the carrying away, must be accomplished by force or fear. . . .” (Id. at p. _ [id. at p. 129]; original italics, in part.) The Court, relying on Estes and finding its application to Gomez’s crime appropriate, declared that the property need not be taken from the presence of the victim nor done by force if the asportation of that property is accomplished by force or fear from the victim’s presence. (Id. at p. __ [id. at pp. 129-131].) Finally, it held that “the crime of robbery occurs when property is forcefully retained in the victim’s presence, even when the victim was not present at its initial caption,” (id. at p.__ [id. at p. 135]), emphasizing that it rejected “any effort by [a] defendant to shift the blame to the victim. It is the conduct of the perpetrator who resorts to violence to further his theft, and not the decision of the victim to confront the perpetrator, that should be analyzed in considering whether a robbery has occurred. . . . ‘[T]he central element of the crime of robbery [is] the force or fear applied to the individual victim in order to deprive him of his property.’ That deprivation of property occurs whether a perpetrator relies on force or fear to gain possession or to maintain possession against a victim who encounters him for the first time as he carries away the loot.” (Ibid.)
Thus, the viability of the Estes doctrine has been firmly and directly established. The defendants’ attack on it is rejected.
B. Jury Instructions
1. Elements of Robbery
Joseph contends the trial court prejudicially erred when it instructed the jury as to the elements of an Estes robbery. Because we have already established that the Estes doctrine has been firmly established under California law, we reject his attack on the instruction describing that type of crime.
Pursuant to CALCRIM No. 1600, the trial court instructed that “[a] store or business employee may be robbed if property of the business is taken, even though he or she does not own the property and was not, at that moment, in immediate physical control of the property. If the facts show that the employee was a representative of the owner of the property and the employee expressly or implicitly had authority over the property, then that employee may be robbed if property of the business is taken by force or fear. . . .” The court then specifically informed the jurors that a “robbery occurs when a person uses force or fear in resisting attempts to regain the property or in attempting to remove the property from another person’s immediate presence, regardless of the means by which the perpetrator originally acquired the property. [¶] Mere theft becomes robbery if the perpetrator, having gained possession of the property, without use of force or fear, resorts to force or fear while carrying away the property. [¶] . . . [R]obbery is a continuing offense that begins from the time of the original taking until the robber reaches a place of relative safety.”
2. Failure to Instruct Under
People v. Morales (1975) 49 Cal.App.3d 134
Daniel argues the trial court failed to adequately instruct the jury as to the quantity of force required for robbery, contending the main defense was that the brothers only exerted that force necessary to prevent serious injury to them. The jury was obviously confused as to this issue, they contend, because it sent a note to the court, asking for a “[d]efinition of force[.]” The judge responded with the written statement, “[t]he word, ‘force,’ is not specifically defined in the jury instructions. Words not specifically defined in the jury instructions are to be applied using their ordinary, everyday meaning.”
This reply was sent to the jury after consultation with both defense counsel and the prosecutor, although the contents of that discussion were never recorded. Nonetheless, Daniel argues that it is irrelevant that no objection was entered by his counsel because the “trial court has a duty to instruct on basic legal principles relevant to the issues raised by the evidence. . . .” and “instructional error affect[ing] his substantial rights” may be raised irrespective of the lack of any objection below. (See Pen. Code, § 1259 [the “appellate court may also review any instruction given . . . even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected”].)
We address the issue on its merits because it is so easily resolved. The terms, force or fear, as used in the definition of robbery “have no technical meaning peculiar to the law and must be presumed to be within the juror’s understanding.” (People v. Anderson (1966) 64 Cal.2d 633, 640, italics added.) Recently, that declaration was reiterated emphatically in People v. Anderson (2007) 152 Cal.App.4th 919 at pages 945-946. In upholding the newly printed jury instructions, and particularly CALCRIM No. 1600 defining robbery, the Anderson court rejected an argument identical to Daniel’s, even when “‘the evidence raises the issue of whether the force used was substantially more than that required to commit the underlying [theft].’” (Anderson, supra, 152 Cal.App.4th at p. 946.)
Nonetheless, Daniel argues the court was required to further define the amount of force required to elevate a petty theft to a robbery, citing People v. Morales (1975) 49 Cal.App.3d 134 as authority. But in Morales no instruction defining force was required in the case. On the contrary, the appropriate instruction when a jury is presented with a choice under the evidence of whether force was used or not is to instruct as to the lesser included offense to the robbery charge: “‘An instruction relating to a lesser included offense is required where the evidence or defense is susceptible of an interpretation, . . ., which if accepted would render the defendant guilty of the lesser included rather than the specifically charged offense.’” (Id. at p. 139-140.) And no one disputes that the trial court informed the jury it could find the defendants guilty of petty theft as a lesser included offense in the event it found the proof of force or fear to be lacking.
The importance of this distinction in the Morales case was that Morales was charged with, and convicted of, felony murder flowing from the robbery. The elderly victim whose purse Morales “snatched,” died from the injury she received when he grabbed her purse, causing her to fall. Had the jury been given the option of finding the lesser offense of grand theft in the event it found no force was employed, the felony-murder rule would not have been triggered as grand theft was not an inherently dangerous felony, a prerequisite to application of the rule. (People v. Morales, supra, 49 Cal.App.3d at pp. 142-143.)
Daniel has failed to provide authority for his argument that a special instruction defining force and the quantity necessary for robbery was essential. On the other hand, there is a vast body of authority that a party who desires an amplification or clarification to an instruction employing the very language used in the penal statute must draft such a modification and request it. (See People v. Dunkle (2005) 36 Cal.4th 861, 894; People v. Lang (1989) 49 Cal.3d 991, 1024 [“A party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.”].) There is no sua sponte duty to read a party’s mind as to specific details relating to an instruction.
Daniel refers us to several cases discussing the elements of robbery, especially in the circumstances of a “purse-snatch.” (See e.g., People v. Thomas (2005) 133 Cal.App.4th 488, 492-495; People v. Wright (1996) 52 Cal.App.4th 203, 210; People v. Mungia (1991) 234 Cal.App.3d 1703, 1708.) However, in two of those cases, it was noted that the appropriate action is not to craft a definition of force sua sponte, but to instruct the jury as to possible lesser included offenses to robbery should it find no force was exerted. (Thomas, supra, 133 Cal.App.4th at 494-495; Wright, supra, 52 Cal.App.4th at 211.) In the third case, no error was found at all so no curative action was needed. (Mungia, supra, 234 Cal.App.3d at pp. 1708-1709.)
3. Failure to Instruct on Grand Theft
As an alternate argument, Daniel contends the trial court erred when it failed to instruct on the lesser included offense of grand theft from the person. The only lesser offense for which the trial court instructed was that of petty theft, although grand theft from the person is a necessarily included offense of robbery—generally speaking—irrespective of the value of the property taken. (See People v. Ortega (1998) 19 Cal.4th 686, 697-699 [“a defendant may not be convicted of both robbery and grand theft based upon the same conduct” as the latter is necessarily included in the former].) And the trial court has the duty to instruct on all lesser, necessarily included offenses “supported by the evidence.” (People v. Breverman (1998) 19 Cal.4th 142, 148-149.)
The Attorney General replies that the only evidence in the case regarding the robbery of Varela was provided by Varela and Rubio. They were consistent that Joseph used force by pushing Varela and then scratching her arm, and thus the evidence only supports the greater offense and not the lesser. Thus, there was no sua sponte duty to instruct on the lesser offense, citing People v. Kaurish (1990) 52 Cal.3d 648, 696. And as to the charge of robbery of Rubio, for which there was a conflict between the defense and prosecution witnesses, the jury rejected the actual charge, finding only the lesser offense of petty theft. Thus, there was no error.
As stated in People v. Breverman, supra, 19 Cal.4th at page 148, the trial court has the sua sponte duty “to instruct fully on all lesser necessarily included offenses supported by the evidence.” (See also People v. Barton (1995) 12 Cal.4th 186, 190.) Moreover, as Joseph’s defense was that he did not exert sufficient force to constitute robbery on any of the loss prevention officers, that factual dispute emphasized the need for the lesser offense instruction of grand theft. (See fn. 3, ante.)
Daniel argues that the trial court was required to instruct on all lesser included offenses, citing language in Barton. (See People v. Barton, supra, 12 Cal.4th at p. 196 [“‘Our courts are not gambling halls but forums for the discovery of truth.’ [Citation.] Truth may lie neither with the defendant’s protestations of innocence nor with the prosecution’s assertion that the defendant is guilty of the offense charged, but at a point between these two extremes . . . .”].) But his interpretation of that language is not the rule. The rule remains, as stated in Breverman, that “a trial court, sua sponte, [must] instruct fully on all lesser necessarily included offenses supported by the evidence.” (People v. Breverman, supra, 19 Cal.4th at pp. 148-149, italics added.)
Although grand theft from the person is normally a necessarily included offense of robbery, an exception occurs when the taking is not literally off the person: Grand theft from the person requires that something is removed from the person of the victim, irrespective of the value of the property. (See People v. Williams (1992) 9 Cal.App.4th 1465, 1471.) Under any interpretation of the evidence, neither Graham took property off the person of another. Thus, the instruction would have been in error had it been given. (See People v. Lee (1999) 20 Cal.4th 47, 61.)
4. Instructions on Lesser Offenses of the Non-Target Offense
Daniel argues that the trial court erred, after instructing the jury that he could be liable as an aider and abettor of Joseph’s robbery of Valera based on the natural and probable consequences of his conspired intent to commit commercial burglary of the Ralph’s store (see CALCRIM No. 402, as given), by failing to instruct the jurors of all possible lesser included offenses of that intended burglary. (See People v. Woods (1992) 8 Cal.App.4th 1570, 1586-1588; see also People v. Padilla (1995) 11 Cal.4th 891, 920-921.) Because the court failed to instruct that grand theft was a lesser included offense to the “intended” crime of robbery, the jury was left—he contends—with less than a “‘full range of possible verdicts.’” (People v. Breverman, supra, 19 Cal.4th at p. 155.)
He misstates the situation. The jury received instruction as to the full range of verdicts possible under the evidence but did not receive information as to a verdict outside the range supported by the evidence. Daniel replies that the jury never knew that it could have found he was not responsible of the Varela robbery at all if it had learned that the natural and probable consequence of the intended burglary may have been merely grand theft from the person and not robbery. But the jury knew its own duty was to find what the natural and probable consequence of the target offense was. And it knew that larceny was a lesser included offense to robbery. It did not find that the natural and probable consequence of the Grahams’ intended crime was anything less than robbery, otherwise it would have found Daniel not guilty of the Varela robbery, but guilty of only the larceny from Varela. It did not. The issue was resolved factually under other instructions. (See People v. Lee, supra, 20 Cal.4th at pp. 62-63.)
The jury was informed that larceny was the lesser included offense to the robbery, and was simultaneously informed that the degree of larceny had to be petty theft.
C. Multiple Convictions
In a supplemental brief, Daniel contends the conviction for the petty theft from Rubio was a lesser included offense to the robbery of Varela, thus necessitating a dismissal of the petty theft. Joseph later joined in that argument, and their premise is that the theft from the store occurred once, and thus only one robbery could arise from that theft, no matter how many security agents attempted to stop them and were injured in the process. (See People v. La Stelley (1999) 72 Cal.App.4th 1396, 1401.)
The conviction for petty theft arises from Daniel’s personal refusal to comply with Rubio’s order to return to the store and hand over the Pediacare and Tylenol in his possession. The conviction for the robbery of Varela arises from Daniel’s aiding and abetting Joseph in his efforts to impede Varela from retrieving the toothbrush and toothpaste in Joseph’s possession. As such, there were two distinct victims of two different takings. Thus, the petty theft from Rubio was not a lesser included offense of the Varela robbery. (See People v. Miller (1977) 18 Cal.3d 873, 885.)
D. Sentencing
The Graham brothers both contend the trial court improperly imposed a concurrent term for the burglary count when, under Penal Code section 654, multiple sentences cannot be imposed for two offenses committed for the same goal or objective. (See People v. Latimer (1993) 5 Cal.4th 1203, 1207.) They are correct. The trial court specifically found that both the burglary and the robbery of Varela were committed as two parts of a single transaction. Thus, the court should have properly imposed a subordinate term for the burglary (eight months) and then stayed execution of that term pending completion of the term for the robbery. (See e.g., People v. Miller, supra, 18 Cal.3d at p. 886.)
III DISPOSITION
We modify the judgment (see Pen. Code, § 1260), and order the clerk of the superior court to send a copy of the amended abstract of judgment to the Department of Corrections, by ordering an eight-month term for the subordinate count for commercial burglary in place of the concurrent term for each defendant, and then staying execution of that subordinate count pending completion of the service on the principal term. Once modified the judgment is affirmed.
WE CONCUR: RYLAARSDAM, J., ARONSON, J.