P. v. Bracy

Filed 2/26/10 P. v. Bracy CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

I.

Appellant Robert Nathaniel Bracy appeals from his conviction for attempted second degree robbery (Pen. Code,  664/211) following a jury trial. He contends the trial court prejudicially erred in not instructing the jury sua sponte on the lesser included offenses of battery and assault, in violation of his due process rights under the Fourteenth Amendment of the federal Constitution.

We reject his contention and affirm.

II.

An information was filed on August 28, 2008, by the Solano County District Attorneys Office charging appellant with one count of attempted second degree robbery (Pen. Code,  664/211). Appellant entered a plea of not guilty to the charge, and the matter proceeded to trial on February 4, 2009. The following day, the jury returned a guilty verdict.

A sentencing hearing was held on March 6, 2009. The court suspended imposition of sentence and placed appellant on three years formal probation, with conditions, including that he serve six months in county jail. This timely appeal followed.

III.

The victim, Rosalino Cortez Arellano, testified that on the evening of August 14, 2008, he was on his way to a Mexican food store in Vallejo when he was approached by two men, one of whom was appellant. The victim was wearing a gold chain around his neck. Appellant attempted to get the chain by yanking it with one hand when he got close to the victim, breaking the chain. The victim started to run, and the chain fell onto the ground. The victim was then hit with a bottle thrown by a second person who was with appellant. The victim bent over and picked up the chain as the police arrived. He did not feel much pain from the yanking of the chain; only from the thrown bottle. The only time appellant touched the chain was when he yanked it, causing it to break and fall to the ground.

Espino Hernandez testified that he was in a nearby car upholstery shop when the incident occurred. As he exited the shop, he saw three young Black males exiting a liquor store. He saw them approach the victim and try to take his necklace and a thick, gold bracelet he was also wearing. Hernandez stated that appellant tried to pull off both the victims necklace and the bracelet. During the struggle between appellant and the victim, the necklace broke and fell on the ground, but the bracelet did not come off. Hernandez saw appellant and the victim struggle over the chain. The victim put his foot on the chain after it fell to the ground. The second person with appellant threw a bottle at the victim. The third person with appellant ran as the police arrived.

While on routine patrol, Vallejo Police Officer Jeff Coburn saw the struggle in progress as he drove by. Coburn testified that he saw two Black males and a Hispanic male. One of the Black males appeared to be holding a broken bottle over his head getting ready to strike the Hispanic male with it. According to Coburn, appellant was the man holding the broken bottle.

Officer Coburn got out of his marked police car and ordered the men to stop. Appellant and another man followed the command, but Coburn saw a third Black male run away. As he approached, he saw that the victim was holding a gold chain or necklace. According to Coburns testimony, Hernandez told Coburn that appellant had grabbed the necklace and it broke. Then the victim fought back, and the second person threw a bottle at him.

IV.

A.

Appellants sole contention on appeal is that the trial court had a duty to instruct the jury sua sponte on the lesser included offenses of assault and battery, in violation of his due process rights under the Fourteenth Amendment of the federal Constitution. The trial court must instruct the jury 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).)

Robbery is defined as 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. (Pen. Code,  211.) An attempted robbery consists of two elements: (1) the specific intent to commit the robbery, and (2) a direct, unequivocal, overt act (beyond mere preparation) toward its commission. (People v. Vizcarra (1980) 110 Cal.App.3d 858, 861.)

Two tests apply in determining whether an uncharged offense is necessarily included within a charged offense: the elements' test and the accusatory pleading test. Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former. Under the accusatory pleading test, if the facts actually alleged in the accusatory pleading include all of the elements of the lesser offense, the latter is necessarily included in the former. [Citation.] (People v. Reed (2006) 38 Cal.4th 1224, 1227-1228.)

Under the elements test, robbery does not include assault or battery as lesser offenses. (See People v. Wolcott (1983) 34 Cal.3d 92, 100 [a defendant can commit robbery without attempting to inflict violent injury, and without the present ability to do so]; see also People v. Medina (2007) 41 Cal.4th 685, 694 [completed assault is not an element of attempted robbery].)

However, appellant asserts that assault and battery are lesser included offenses of attempted robbery under the accusatory pleading test because he was charged with a felonious taking by means of force and fear.

This same argument was made and rejected in People v. Wright (1996) 52 Cal.App.4th 203 (Wright). As here, in Wright the accusatory pleading alleged that an attempted robbery resulted from the defendants application of force and fear to the victim. (Id. at pp. 209-210, original italics.) In light of the conjunctive language of the pleading, the court concluded: Since the element of force can be satisfied by evidence of fear, it is possible to commit a robbery by force without necessarily committing an assault. Consequently, under the accusatory pleading test, assault is not necessarily included when the pleading alleges a robbery by force. As a result, the trial court had no duty to instruct sua sponte on assault as a lesser included offense of robbery . . . . (Id. at p. 211.)

Similarly, appellant argues that the use of the conjunctive (force and fear) in the information, rather than the statutory disjunctive, meant the prosecution had to prove the attempted theft was accomplished by both force and fear. Therefore, the crime of attempted robbery could not have been committed without also committing a battery, making battery a lesser included offense.[1]

First, for appellant to be convicted of the greater offense of attempted robbery, it was not necessary that an actual battery was committed, and the information did not allege that an actual battery had been completed. Rather, all that is required to sustain a charge of attempted robbery is proof of specific intent to commit robbery and a direct unequivocal overt act toward its commission going beyond mere preparation. (People v. Vizcarra, supra, 110 Cal.App.3d at p. 861.) Thus, an attempted robbery is completed even without proof of either force or fear being used. For this reason alone, battery is not a lesser included offense to attempted robbery, under the accusatory pleading test.

Moreover, applying Wright to appellants alternative claim relating to battery, it is clear that despite the reference to force and fear, an attempted robbery may involve either alone. Since robbery can occur without the use of force, a battery is not necessarily committed in an attempted robbery.

Even if battery or assault were lesser included offenses of attempted robbery, an instruction on a lesser included offense is necessary only  when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged. [Citation.] (People v. Barton (1995) 12 Cal.4th 186, 194-195, fn. omitted.) As our Supreme Court clarified in Breverman, supra, 19 Cal.4th at page 177, the sua sponte duty to instruct on a lesser included offense arises if there is substantial evidence the defendant is guilty of the lesser offense, but not the charged offense. [Citation.] This standard requires instructions on a lesser included offense whenever  a jury composed of reasonable [persons] could . . . conclude[]  that the lesser, but not the greater, offense was committed. [Citations.] In deciding whether evidence is substantial in this context, a court determines only its bare legal sufficiency, not its weight. [Citations.] (Original italics.)

There is no question in this case that both of the elements of an attempted robbery were present. All of the witnesses observed appellant attempting to snatch the victims necklace from around his neck in order to take it for himself. While he succeeded in breaking it free from the victim, the victim was able to recover it. The fortuitous arrival of police officers apparently curtailed any further effort to take the jewelry from the victim. Therefore,  there is no evidence that the offense was less than that charged. [Citation.] (People v. Barton, supra, 12 Cal.4th at pp. 194-195, fn. omitted.)

Lastly, we note that the failure to instruct on assault or battery was harmless in any event. In this context we apply the test set forth in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson): whether it appears reasonably probable that the defendant would have obtained a more favorable outcome had the purported error not occurred. (Breverman, supra, 19 Cal.4th at p. 178 [in a noncapital case, error in failing sua sponte to instruct, or to instruct fully, on all lesser included offenses and theories thereof which are supported by the evidence must be reviewed for prejudice exclusively under Watson].)

In addition to instructions on attempted robbery, the trial court here did instruct on the lesser included offense of attempted theft. Theft is a lesser included offense of robbery. (People v. Sakarias (2000) 22 Cal.4th 596, 620.) However, despite this alternative, the jury found that appellant committed the charged crime and not the lesser crime. Based on these findings, we have little doubt that, had the jury been also instructed on the crimes of assault and battery, it is not reasonably probable that appellant would have obtained a more favorable outcome. Hence, assuming it was error not to instruct on assault and battery as lesser included offenses, any such alleged error was harmless.

V.

DISPOSITION

The conviction and judgment are affirmed.

_________________________

RUVOLO, P. J.

We concur:

_________________________

SEPULVEDA, J.

_________________________

RIVERA, J.

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[1] A battery is any willful and unlawful use of force or violence upon the person of another. (Pen. Code,  242.)