Opinion
2d Crim. No. B228948
10-25-2011
THE PEOPLE, Plaintiff and Respondent, v. SALVATORE LARUSSA, JR., Defendant and Appellant.
David Andreasen, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Mary Sanchez, Tasha G. Timbadia, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 2009004345)
(Ventura County)
Salvatore Larussa, Jr. appeals an order of probation following his conviction of first degree residential burglary and first degree residential robbery, with a finding that a person was present during commission of the burglary. (Pen. Code, §§ 459, 211, 212.5, subd. (a), 667.5, subd. (c)(21).) We affirm.
All further statutory references are to the Penal Code.
FACTS AND PROCEDURAL HISTORY
Larussa and Geraldine Gross began dating in 2006. Later that year, Larussa moved into Gross's Thousand Oaks home after he was evicted from his apartment. Their relationship was "on and off," however, and in January 2007, Gross lent Larussa $3,500 to move into an apartment. Larussa then left Gross's home and returned her house key. He later repaid her the $3,500.
In the fall of 2008, Gross ended their relationship. She described Larussa as "depressed," and stated that their relationship was "a lot of work." Gross then began dating Mark Riboh.
Following the breakup, Larussa repetitively phoned Gross and visited her workplace. He cursed and threatened her, and referred to her as "[b]itch, slut, [and] whore." On February 1, 2009, Larussa sent Gross a text-message demanding that she repay him the $3,500. Gross did not respond to Larussa's telephone calls or text-messages.
In the early morning of February 2, 2009, Gross was at her home with Riboh. Larussa telephoned Gross and demanded the $3,500. Gross ignored him and ended the telephone call. Approximately 30 minutes later, Gross saw Larussa in her backyard. She confronted him and demanded that he leave. Larussa refused, pushed Gross aside, and entered her home through an open patio door. Gross followed and ordered Larussa to leave. Instead, he ran to the fireplace mantel, seized an urn containing the remains of Gross's deceased child, and ran from the home through the patio door.
Gross and Riboh followed Larussa to his vehicle parked nearby. Inside the vehicle, Larussa sat on or near the urn and tried to place his vehicle key in the ignition. Riboh entered the vehicle, seized the key, and threw it outside. Meanwhile, Gross and Larussa shouted at each other. A few minutes later, police officers arrived and arrested Larussa.
Larussa testified at trial and stated that he telephoned and sent messages to Gross, but she did not respond. On February 2, 2009, he spoke with her and stated that he would be at her home shortly to collect the $3,500. When Larussa arrived at the home, he walked in through the open patio door. After Gross introduced Riboh as her new boyfriend, Larussa walked to the mantel, took the urn, and walked through the open door. When Gross "came out after [him]," Larussa "picked up" his pace, and ran to his vehicle. He stated that he did not intend to keep the urn, but "wanted to talk [with Gross] face-to-face to see [if we] are . . . done." Larussa added that he hoped to "get some closure." He testified that he was unable to return the urn while sitting in his vehicle because Gross reached inside the vehicle and struggled with him.
The jury found Larussa guilty of first degree residential burglary and first degree residential robbery. (§§ 459, 211, 212.5, subd. (a).) It also found that a person was present during commission of the burglary. (§ 667.5, subd. (c)(21).) The trial court suspended imposition of sentence and placed Larussa on formal probation for 36 months, with terms and conditions including 45 days of confinement in county jail. The court imposed various fines and fees, ordered victim restitution, and awarded Larussa six days of presentence custody credit.
Larussa appeals and contends that the trial court erred by: 1) not instructing sua sponte regarding theft as a lesser-included offense of robbery, and 2) instructing that residential robbery may include the application of force after leaving the residence.
DISCUSSION
I.
Larussa argues that the trial court erred by not instructing sua sponte regarding theft, a lesser-included offense of robbery. He points to his testimony that he did not use force to take the urn and that he did not use force to resist its recovery. (§ 211 ["Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear"].)
It is well settled that the trial court must instruct on necessarily included offenses when the evidence raises a question whether all the elements of the charged offense are present and there is evidence that would justify conviction of a lesser offense. (People v. Gray (2005) 37 Cal.4th 168, 219 [insufficient evidence defendant committed theft as opposed to the greater offense of robbery].) Due process requires instruction with a lesser-included offense only when the evidence warrants the instruction. (Ibid.) "[M]ere speculation [that] the crime was less than that charged is insufficient to trigger the duty to instruct." (Ibid.) The existence of any evidence, no matter how weak, does not justify instruction regarding a lesser-included offense. (People v. Moye (2009) 47 Cal.4th 537, 553.) In sum, there must exist substantial evidence from which a reasonable jury could conclude that the lesser offense, but not the greater, was committed. (Ibid.; People v. Barton (1995) 12 Cal.4th 186, 201 [minimal and insubstantial evidence does not require instruction with lesser-included offense].)
Theft is a lesser-included offense of robbery. (People v. DePriest (2007) 42 Cal.4th 1, 50.) Robbery, of course, includes the additional element of force or fear. (§ 211; DePriest, at p. 50.)
The trial court did not err because evidence here established the force element of robbery. Gross testified that Larussa pushed her aside to enter the house, whereupon he ran to the mantel, took the urn, and ran to his vehicle. Larussa testified that he picked up the urn and walked through the open door, but that Gross "came out after [him]," causing him to run and "pick[] up [his] pace." He stated: "[S]he caught on what I had and she started like chasing me." Inside the vehicle, Gross grabbed Larussa through the open window to reclaim the urn. Larussa pushed her away and tried to put his key in the ignition. Larussa's testimony that Gross's struggle with him in the vehicle inexplicably precluded his return of the urn is insubstantial and does not warrant a lesser-included instruction regarding theft. Thus there is no question whether all the elements of robbery were present. (People v. Abilez (2007) 41 Cal.4th 472, 514 [sua sponte duty to instruct on lesser-included offense to robbery only if evidence raises question whether all elements of robbery present].)
II.
Larussa contends that the trial court erred by instructing regarding the legal theory that first degree residential robbery includes application of force to retain the property after leaving the residence. (CALCRIM No. 1600.) He points to the prosecution's argument that he applied force by pushing Gross to enter the home and take the urn, and later by "sitting in the car on top of the urn or leaning over it" and "fighting off" Gross and Riboh outside. Larussa reasons that the crime of residential robbery within section 212.5, subdivision (a) does not include takings within a residence where application of force or fear is applied outside the residence. He asserts that CALCRIM Nos. 1600 and 1603 do not dispel the prosecution's asserted incorrect argument that application of force outside the residence could support a residential robbery conviction. In support of his argument, Larussa relies upon the policy purpose for imposing enhanced penalties for residential robberies. (People v. McCullough (1992) 9 Cal.App.4th 1298, 1300 [residents have a "heightened vulnerability" within their homes].)
The residential robbery instructions were proper and did not allow conviction based upon an incorrect legal theory.
The taking requirement of robbery has two necessary elements - gaining possession of the victim's property and asporting or carrying it away. (Miller v. Superior Court (2004) 115 Cal.App.4th 216, 221.) The taking must also be accomplished by force or fear. (Id. at p. 222.) "Circumstances otherwise constituting a mere theft will establish a robbery where the perpetrator peacefully acquires the victim's property, but then uses force to retain or escape with it." (Ibid.) It is well settled law that the elements of force or fear may be supplied after the defendant has initially gained possession of the victim's property. (Id. at p. 224 [defendant physically resisted victim's efforts to regain wallet that was inadvertently left in beach restroom].)
The nature of the crime of robbery is such that a robber's escape is just as important to the execution of the crime as obtaining initial possession of the property. (People v. Ramirez (1995) 39 Cal.App.4th 1369, 1374.) It is longstanding law that the crime of robbery is not complete until the defendant has reached a place of temporary safety. (People v. Carroll (1970) 1 Cal.3d 581, 585; Ramirez, at p. 1374.) "The scene of the crime is not such a location, at least as long as the victim remains at hand." (People v. Flynn (2000) 77 Cal.App.4th 766, 772.)
Here Larussa's use of force, either at the initial taking or when resisting recovery of the urn in the vehicle, supports the residential robbery conviction because he did not reach a place of temporary safety. Section 212.5, defining first degree robbery as including, among other things, "an inhabited dwelling house," does not require a different result. The statute does not purport to limit first degree robberies to those where force is applied within the "inhabited dwelling house." Whether Larussa applied force to take the urn within the Gross home or during the altercation in the vehicle, a danger to Gross and Riboh inside the home existed. (People v. Thomas (1991) 235 Cal.App.3d 899, 906 [residential burglary creates danger that intruder will harm the occupants in attempting to commit the crime or escape, inviting violent response from occupants].) We decline to so interpret the statute to limit its application as Larussa urges.
The judgment is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P.J. We concur:
YEGAN, J.
COFFEE, J.
Jeffrey G. Bennett, Judge
Superior Court County of Ventura
David Andreasen, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Mary Sanchez, Tasha G. Timbadia, Deputy Attorneys General, for Plaintiff and Respondent.