Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. 208979.
Bruiniers, J.
Shane A. Perry was convicted by jury of robbery (Pen. Code, § 211) and for receiving stolen property (§ 496). He challenges his conviction for robbery on the ground that the trial court erroneously refused to instruct the jury on the lesser included offense of theft. Perry also challenges his conviction for receipt of the same property that he was convicted of taking in the robbery. We affirm the robbery conviction because there was no substantial evidence that Perry committed theft but not robbery. As the People concede, his conviction for receiving stolen property must be set aside.
All statutory references are to the Penal Code unless otherwise noted.
I. Background
On May 15, 2009, Perry was charged by information with second degree robbery (§ 211; count 1) and receipt of stolen property (§ 496, subd. (a); count 2). Perry pled not guilty and the case was tried to a jury.
The information was later amended to allege a prior conviction within the meanings of sections 667, subdivisions (a)(1), (d) and (e), 1170.12, subdivisions (b) and (c), but Perry successfully moved to strike the allegation.
Kim Nguyen testified that at about noon on May 13, 2009, she was waiting for a bus at Mission and Third Streets in San Francisco and typing a text message on her iPhone. Nguyen testified that Perry, who was standing near her, told her, “ ‘Give me the phone, ’ ” and grabbed her right hand very hard in the knuckles area (the top bony part of the hand). “It felt like my bones were being smashed. [¶]... [¶] He kept holding my right hand and I was in pain. And because I was in pain, he just got to my left hand and grabbed the phone.” Nguyen and Perry “struggled and then he finally pried the phone out of my case. [¶]... [¶]... I had my phone in my left hand, but I have a soft [gel] case around my iPhone, so he just pried it out[, ]” and she was left holding the phone case in her left hand. The struggle over the phone lasted about a minute. Another witness testified that he saw Perry and Nguyen struggle over something in Nguyen’s possession for about 15 seconds.
When Nguyen was asked how Perry got the phone away from her, she responded, “Because he kept squeezing my hand really hard.”
While testifying, Nguyen made gestures indicating that she held the phone in her right hand and typed with her left hand, but she testified that she was held the phone in her left hand.
Perry ran across Mission Street with the phone. Nguyen ran after him and called out for help. She tripped over a bush in the street median and when she looked up she saw Perry pinned down on the sidewalk by three men. Two witnesses testified that they had chased and subdued Perry with the assistance of other bystanders. One of these men got Perry to drop the phone and he gave the phone back to Nguyen.
Nguyen used the phone to call 911. She told the dispatcher that a man had tried to steal her phone by grabbing it out of her hand and running off, and that some people had stopped him and were holding him at Mission and Third Streets. She also told the dispatcher she was not hurt and did not need an ambulance.
At trial, Nguyen testified that she had bruising on her right hand where Perry had grabbed it (by the knuckles and palm) and the hand swelled immediately. She told the 911 dispatcher she did not need an ambulance because she did not want to pay for one. Nevertheless, an ambulance arrived and paramedics gave her a cold pack for her hand. Also, a police officer took a photograph of her hand on the day of the incident, and the photograph was shown to the jury. A detective testified that he observed that Nguyen’s right hand was bruised on the day of the incident. Nguyen testified that about a week after the incident she saw a doctor about the injury and was prescribed medication to relax her muscles and calm her nerves.
In the trial court, and here, Perry attempted to focus on alleged inconsistencies in Nguyen’s testimony. On cross-examination, defense counsel asked Nguyen if, when she tripped over the bushes in the street median, she put her hands “down somewhere” when she fell, and she replied that she had. On redirect, however, she testified that she did not hurt her hand from tripping over the bushes and her hand was already hurt before she chased after Perry. On the day of the incident, Nguyen gave a statement to a uniformed officer within minutes of the robbery and a statement to a detective about a half hour later. She told the officer that she had been holding her phone in her right hand and that Perry grabbed her right hand. In a written statement, she wrote, “Then the guy walked next to me and reached over and said, ‘give me that’ and grabbed my hand and squeezed it hard and took the phone from my phone case.” Perry called police Inspector Luke Martin as a defense witness. Nguyen told the detective that Perry grabbed her right hand and wrist and twisted her hand around to get the iPhone out of it. She told him she was holding a bag with her left hand, so she could not protect herself with that hand. She also told the detective, “He grabbed my hand and squeezed it and he was trying to like pry my iPhone from the case, ” and “[M]y other hand was preoccupied, ... [and] he kept squeezing it harder and then he just slid it out.” At the preliminary hearing, Nguyen testified that the struggle over the phone lasted “a matter of seconds.”
Perry requested a jury instruction on a lesser included offense of grand theft and a special instruction on the meaning of “force” in the definition of robbery. Defense counsel argued the force required to establish the crime of robbery is “ ‘something more 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].)” She argued that the court should instruct on grand theft because “no witness testified that the defendant used any extra force than that needed to take the phone away from the victim’s hand” and there was conflicting evidence about whether Nguyen suffered an injury as a result of Perry’s grabbing her hand. The trial court held the evidence clearly showed that Perry wrested the phone out of Nguyen’s hand as she resisted and that this constituted substantial evidence supporting a charge of robbery but not theft.
The court instructed the jury that to establish the crime of robbery the People had to prove that the defendant “used force or fear to take the property or to prevent the person from resisting.” (CALCRIM No. 1600.) The court also gave the requested special instruction on the meaning of force: “The force required for robbery is more than just the quantum of force which is necessary to accomplish the mere seizing of the property.”
In closing argument, the prosecutor told the jury the force element of robbery is established if there is a struggle over the item the defendant takes from the victim, if the property taken is damaged during the incident, or if the victim is injured during the incident. He argued that the evidence established all three of these facts. On the injury to Nguyen’s hand, he argued that if she had injured her hand from tripping over the bushes, the injury would have been on the palm of her hand, whereas she was hurt on the back of her hand. Defense counsel raised questions about the reliability of Nguyen’s testimony, noting her natural bias against Perry and the discrepancies between her trial testimony and her statements to police on the day of the incident. She argued, “This is what really happened. It seems obvious now that [Nguyen] was holding her iPhone in her right hand and texting with her left hand, because that’s what she naturally does. My client came up to her and grabbed her hand that had the iPhone because he was trying to get the phone. [¶] Now, there’s no way not to make contact with her hand when he’s trying to get the phone. Just think about it. You’re holding your phone like this (demonstrating) with your fingers and your palm around the phone. He has to touch the hand to get to the phone. [¶]... [I]f someone is holding a purse over their shoulder yes, you can take the purse without making contact with the body, but you cannot take the phone from somebody’s hand without making contact with the hand. [¶]... [Perry] grabs the phone, he pulls on the phone and it slides out of the case, it slides out of the case. [¶] Force necessary to accomplish the seizing, that’s what this was. [¶]... [¶] In this case for him to get to the phone he had to touch the hand and he had to grab the hand to get the phone out. He didn’t [use]... ‘... extra or additional force than necessary to take the property.’ ” In rebuttal, the prosecutor conceded for purposes of argument that Perry only grabbed one of Nguyen’s hands and argued the facts still established robbery. “A hand got injured.... A hand had a struggle. Pick your hand, it’s still robbery.” The prosecutor measured out 15 seconds for the jury and argued that a struggle lasting that long was “more force than necessary merely to take” a phone. “Robbery is the application of force to a person beyond just the taking of the object. That’s all. Not how much more, not a lot more, not a little more. More. And we have more here.”
The jury reached a verdict after about 45 minutes of deliberations. It found Perry guilty of robbery and receipt of stolen property. The court sentenced Perry to three years in prison for the robbery conviction and, pursuant to section 654, stayed a two-year sentence for the receipt of stolen property conviction.
II. Discussion
A. Lesser Included Offense Instruction
Perry first argues the trial court erred by refusing to instruct the jury on the lesser included offense of grand theft. In response, the People argue no instruction was required because there was no substantial evidence that the crime was less than robbery. We agree.
Instructions on lesser included offenses are required “whenever evidence that the defendant is guilty only of the lesser offense is ‘substantial enough to merit consideration’ by the jury. [Citations.] ‘Substantial evidence’ in this context is ‘ “evidence from which a jury composed of reasonable [persons] could... conclude[]” ’ that the lesser offense, but not the greater, was committed. [Citations.] [¶] In deciding whether there is substantial evidence of a lesser offense, courts should not evaluate the credibility of witnesses, a task for the jury. [Citations.]” (People v. Breverman (1998) 19 Cal.4th 142, 162–163 (Breverman); see also People v. Burns (2009) 172 Cal.App.4th 1251, 1256 (Burns).) “On the other hand, the court is not obliged to instruct on theories that have no such evidentiary support” (Breverman, at p. 162), even if the instructions have been specifically requested by the defense (People v. Flannel (1979) 25 Cal.3d 668, 684–685, fn. 12, superseded in part by statute on other grounds as stated in In re Christian S. (1994) 7 Cal.4th 768, 777). In other words, “the trial court need not instruct on a lesser included offense whenever any evidence, no matter how weak, is presented to support an instruction, but only when the evidence is substantial enough to merit consideration by the jury. [Citation.]” (People v. Barton (1995) 12 Cal.4th 186, 195, fn. 4.)
“Every person who shall feloniously steal, take, carry, lead, or drive away the personal property of another... is guilty of theft....” (§ 484, subd. (a).) When the property is taken from the person of another, it is grand theft. (§ 487, subd. (c).) “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.” (§ 211.)
“Theft in any degree is a lesser included offense to robbery, since all of its elements are included in robbery. The difference is that robbery includes the added element of force or fear. [Citation.]” (Burns, supra, 172 Cal.App.4th at p. 1256.) A person who runs up and snatches property in the victim’s immediate presence without otherwise using force or fear is clearly guilty of theft from the person rather than robbery, and a person who strikes a victim to effectuate the taking is clearly guilty of robbery rather than theft. When a person surprises a victim and grabs property from a victim’s grasp or otherwise removes it from the victim’s person, the dividing line between robbery and theft is less clear.
As discussed post, several courts have attempted to define that dividing line where the issue is the element of taking by force. The prevailing view has emerged that when a person surprises a victim and takes property without injuring the victim or overcoming resistance by the victim, the crime is theft. However, when the victim is injured by the perpetrator or the perpetrator overcomes resistance by wresting property away from the victim, the crime is robbery. Where the evidence is in conflict on whether the victim was injured in the encounter or whether the perpetrator overcame resistance and wrested the property away from the victim and there is substantial evidence supporting each view of the case, the jury should be instructed on both crimes.
In Burns, for example, the court held there was no substantial evidence supporting an instruction on theft as a lesser included offense of robbery where “appellant came up to Ms. Hollowell and grabbed the purse she was holding; she tried to hold onto it but his strength and his act in stepping on her foot overcame her resistance, and he got away with the purse.” (Burns, supra, 172 Cal.App.4th at p. 1259.) Similarly, in People v. Cooksey the court held a theft instruction was not required where the evidence showed that the defendant and the victim struggled over the property for about two minutes before the defendant was able to get it away from the victim. (People v. Cooksey (2002) 95 Cal.App.4th 1407, 1410, 1413; see also People v. Bordelon (2008) 162 Cal.App.4th 1311, 1320 [no lesser included offense instruction required where defendant pushed a customer aside and made escalating demands for money to a bank teller, causing the teller to fear that he might use force]; People v. Garcia (1996) 45 Cal.App.4th 1242, 1246 [no lesser included offense instruction required where defendant “intentionally pushed [a cashier] to move her out of the way so he could reach into the register” and take money], disapproved on other grounds by People v. Mosby (2004) 33 Cal.4th 353, 365, fn. 2; People v. Jefferson (1939) 31 Cal.App.2d 562, 567 [no lesser included offense instruction required where defendant showed weapon and threatened to harm victim before snatching her purse]; cf. People v. Clayton (1928) 89 Cal.App. 405, 410–412 [substantial evidence of robbery where defendant knocked a strong box out of the victim’s arms]; People v. Lescallett (1981) 123 Cal.App.3d 487, 491–492 [substantial evidence of robbery where defendant ran toward victim before snatching purse, causing her to be frightened]; People v. Mungia (1991) 234 Cal.App.3d 1703, 1708 [substantial evidence of robbery where victim testified that defendant shoved her before snatching purse].)
In Morales, by contrast, the court held the lesser included theft instruction should have been given where the defendant approached the victim from behind, grabbed her purse and ran off. (People v. Morales, supra, 49 Cal.App.3d at pp. 137, 140.) Although the victim fell during the encounter, only one witness testified that the defendant caused the victim to fall by pushing her, and that witness observed the incident from a distance. (Ibid.) If the jury disbelieved the witness’s testimony, the evidence established only a purse snatching without a struggle, which was theft rather than robbery. (Ibid.; see also People v. Roberts (1976) 57 Cal.App.3d 782, 785, 787 [lesser included offense instruction required where evidence showed defendant approached victim from behind and grabbed her handbag, even though he broke the handle by jerking it down], disapproved on other grounds by People v. Rollo (1977) 20 Cal.3d 109, 120, fn. 4; People v. Church (1897) 116 Cal. 300, 301–303 [lesser included offense instruction required where witnesses noticed “difficulty” or “trouble” between the defendant and the victim before the defendant grabbed the victim’s property and fled].)
Whatever Perry’s arguments as to purported conflicts in Nguyen’s testimony, the evidence showed that Perry either squeezed Nguyen’s right hand in order to overcome her resistance as he forced the iPhone out of its case in her left hand, or that he squeezed Nguyen’s right hand while it was holding the iPhone and thereby forced it out of its case. In either circumstance, he used force-squeezing Nguyen’s hand-in order to overcome her resistance and to obtain the phone; he did not merely snatch the phone from her grasp without encountering resistance. Although defense counsel attempted to characterize Perry’s conduct as mere bodily contact as he took the phone, Nguyen consistently reported in her statements to police and her testimony that Perry squeezed her hand to the point that it caused her pain. Moreover, both Nguyen and a bystander testified that there was a struggled over the phone for anywhere from a few to 15 or 60 seconds, with force used by Perry to overcome her resistance to the taking. There was no substantial evidence that the offense was anything less than a robbery.
Relying on Morales and the court’s special instruction on force (based on Morales), Perry argued to the jury that he used no more force than necessary to seize the property from Nguyen and therefore did not commit robbery. That is, he argued he used only the force necessary to pop the phone out of its case as it was being held by Nguyen, which required the squeezing of her hand. The instruction, however, provided that the use of force for the “mere seizing” of the property was insufficient to establish robbery. Here, the evidence showed that Perry did not merely seize the property, but also forcibly squeezed Nguyen’s hand to induce her to release the property. If force is required to seize property from the victim because the victim resists the taking (for example, by trying to maintain her hold on the phone)-i.e., if the defendant wrests the property from the victim rather than simply snatching it from the victim-then the use of such force elevates the crime from theft to robbery. The amount of force in that circumstance is immaterial. (People v. Lescallett, supra, 123 Cal.App.3d at p. 491.)
We conclude the trial court did not err in refusing to instruct the jury on the lesser included offense of theft.
B. Conviction of Robbery and Receipt of the Same Stolen Property
Perry correctly argues that he could not lawfully be convicted of both robbery and receipt of the same stolen property. (§ 496, subd. (a) [“no person may be convicted both [receipt of stolen property] and of the theft of the same property”]; People v. Stephens (1990) 218 Cal.App.3d 575, 586 [§ 496, subd. (a) applies to robbery as well as theft].) The court recognized that he could not be punished for both, and stayed sentencing on the receiving stolen property count under section 654. Perry argues that the remedy for this error is to set aside the receipt of stolen property conviction. The People agree.
The Supreme Court recently held that when a defendant is erroneously convicted of both theft (or robbery) and receipt of the same stolen property, the receipt of stolen property conviction should be set aside. (People v. Ceja (2010) 49 Cal.4th 1, 3–4.) Accordingly, we set aside Perry’s conviction for receipt of stolen property.
The People cryptically argue, “With respect to the fines and fees, ... [Perry] is mistaken that they should be dismissed because they ‘accompanied’ count 2 [the receipt of stolen property charge]. [Citation.] To the contrary, the fines and fees apply to any felony conviction, including [Perry’s] conviction for robbery... [and] are mandatory.” The trial court, however, imposed the following fees for each of Perry’s convictions: a $30 assessment pursuant to Government Code section 70373, subdivision (a), and a $30 court security fee pursuant to section 1465.8. One of each of these fees must be set aside because Perry’s conviction for receipt of stolen property must be set aside.
Government Code section 70373, subdivision (a)(1) provides, “To ensure and maintain adequate funding for court facilities, an assessment shall be imposed on every conviction for a criminal offense.... The assessment shall be imposed in the amount of thirty dollars ($30) for each misdemeanor or felony and in the amount of thirty-five dollars ($35) for each infraction.” (Italics added; see also People v. Lopez (2010) 188 Cal.App.4th 474, 480 [correcting abstract of judgment to show penalty was imposed for each of three convictions in the case].)
Section 1465.8, subdivision (a)(1) now provides for a $40 fee, but at the time of Perry’s sentencing it provided for a $30 fee: “To ensure and maintain adequate funding for court security, a fee of thirty dollars ($30) shall be imposed on every conviction for a criminal offense....” (Stats. 2009, ch. 342, § 5, italics added; see also People v. Schoeb (2005) 132 Cal.App.4th 861, 865–866 [section 1465.8 unambiguously required a court security fee to be imposed for each of defendant’s convictions; because defendant was convicted of nine criminal offenses, he was subject to nine court security fees].)
On the restitution and parole revocation fines, the record is somewhat confused. At the sentencing hearing, the trial court imposed a $200 restitution fine pursuant to section 1202.4 and a $200 suspended parole revocation fine pursuant to section 1202.45 for each of the convictions. The abstract of judgment, however, reflects only one $200 restitution and one $200 parole revocation fine for the entire case. Sections 1202.4 and 1202.45 authorize only one fine per case, although the court has discretion to set the fine anywhere from $200 to $10,000 commensurate with the seriousness of the offense. It is not entirely clear whether the court intended the total restitution fine for the two convictions (and the equivalent parole revocation fine for the two convictions) to be $200 or $400. However, it does seem clear that the trial court intended that only a $200 restitution fine and $200 parole revocation fine be imposed for the robbery conviction alone. Because the conviction for receipt of stolen property conviction has been set aside, we conclude that restitution and parole revocation fines of no more than $200 each remain in effect. The abstract of judgment already reflects a $200 restitution fine and a $200 parole revocation fine and thus does not need to be modified.
Section 1202.4, subdivision (b) provides, “In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine....” (Italics added; see also People v. Schoeb, supra, 132 Cal App 4th at p. 865 [noting difference between “in every case” language of section 1202.4 and “on every conviction” language in section 1465.8 and explaining that in a single case only one restitution fine up to $10,000 may be imposed].) Section 1202.45 similarly provides, “In every case where a person is convicted of a crime and whose sentence includes a period of parole, the court shall at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional parole revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4....” (Italics added.)
Finally, Perry does not contend that the direct victim restitution he was ordered to pay to Nguyen and the Victim Compensation Board needs to be modified. Therefore, it will remain as stated on the abstract of judgment.
III. Disposition
The conviction and sentence for receipt of stolen property are reversed. On remand the trial court shall correct the abstract of judgment by deleting the conviction and stayed prison sentence for the receipt of stolen property charge, reducing the court security fee pursuant to section 1465.8 to $30, and reducing the assessment pursuant to Government Code section 70373, subdivision (a) to $30. The trial court shall send a corrected abstract of judgment to the California Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: Jones, P. J. Needham, J.