Filed 5/9/18 P. v. Grijalva CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO



THE PEOPLE,

Plaintiff and Respondent,

v.

FRANKY GRIJALVA,

Defendant and Appellant.


E068638

(Super.Ct.No. FWV17000809)

OPINION


APPEAL from the Superior Court of San Bernardino County. Ingrid Adamson Uhler, Judge. Affirmed.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant and appellant Franky Grijalva guilty of second degree robbery. (Pen. Code, § 211.) Defendant admitted that he had served two prior prison terms. (§ 667.5, subd. (b).) A trial court sentenced him to a total of five years in state prison, consisting of three years on the robbery conviction and a consecutive one-year term on each of the prison priors.
On appeal, defendant contends that the trial court prejudicially erred in not instructing the jury sua sponte on the lesser included offense of grand theft. We affirm.
FACTUAL BACKGROUND
On February 15, 2017, Kimberly G. (the victim) was at work at a dental office. Her manager suggested they get something sweet from the market next door. The victim went to her car and got her wallet. She came back into the office, gave her manager some money, and placed her wallet on top of a cabinet in the break room. After her manager left, the victim started mopping the floor. The phone rang, so she answered it and talked to a patient. When she finished the call, she hung up the phone and turned around to see a man wearing a hoodie take her wallet and put it in his back pocket. The man walked out the back door of the office. She followed him around the building and then grabbed his wrist, turned him around, and told him to give her stuff back. When he turned around, she noticed he had tattoos on his face, and he was holding a steering wheel in his other hand. He denied having anything. The victim grabbed the steering wheel because she was afraid he was going to hit her with it. They started arguing, and defendant said they should go to the back of the building. The victim said they should go through the front door of the office. She then screamed to ask other people for help. Defendant started to run away, so the victim grabbed him again. Defendant pushed her back and ran away. She began to chase him, but could not catch up, so she stopped and called the police.
About 30 minutes later, the police received a suspicious person call at a nearby park. The person matched the description of the person who took the victim’s wallet. He also had a steering wheel. The police detained him and brought the victim to the location for an in-field lineup. The victim identified the suspect, who was defendant. Defendant was arrested and transported to the detention center for booking. The deputies did a strip search and found approximately $70 on him. They did not find a wallet on him.
The next day, the victim looked everywhere in her office to make sure her wallet did not fall on the floor. She could not find it anywhere. Her wallet contained her driver’s license, money, a credit card, and bank cards.
ANALYSIS
The Trial Court Did Not Have a Sua Sponte Duty to Instruct the Jury on Grand Theft
Defendant’s sole contention on appeal is that his robbery conviction should be reversed because the trial court failed to sua sponte instruct the jury on the lesser included offense of grand theft. We disagree.
A. Background
After the parties rested their cases, the trial court indicated that it would be instructing the jury on petty theft as a lesser included offense of robbery. The trial court stated: “The logical argument based on her initial 911 call is that no force was ever used, that he had just taken the wallet out of the business and left with the wallet. So I think assuming the jurors believe he stole the wallet and didn’t use force or fear, then it would be a regular petty theft because there was nothing to indicate the amount that was in the wallet. There was no testimony as to how much cash there was, nothing of that nature.” Defense counsel responded, as follows: “Correct. And that would be one of my requests for a lesser would be petty theft.”
B. The Evidence Did Not Support a Finding of Grand Theft
“ ‘ “It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.” [Citation.] That obligation has been held to include giving instructions on lesser included offenses 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.’ ” (People v. Breverman (1998) 19 Cal.4th 142, 154 (Breverman).)
Section 484 defines the crime of theft as the taking of personal property of another. Theft is divided into two degrees—grand theft and petty theft. (§ 486.) Where the value of the property taken is over $950, the offense is grand theft. (§ 487, subd. (a).) It is settled that the crime of theft, whether grand theft or petty theft, is a lesser included offense of robbery. (People v. Ortega (1998) 19 Cal.4th 686, 694.)
Here, the court properly chose to instruct the jury on the lesser included offense of petty theft, rather than grand theft. As the court noted, there was no evidence that defendant took property worth over $950. The victim testified that defendant took her wallet, which contained her social security card, driver’s license, bank cards, a credit card, and cash. She did not testify as to how much money was in her wallet. Moreover, when the deputies searched defendant, they found only $70 on him.
Defendant argues that the jury “could have believed the stolen property was worth more than $950.” In support of this theory, he asserts that “[w]allets can be quite pricey.” Defendant’s claim is based on pure speculation. There was no testimony regarding the value of the victim’s wallet.
Assuming arguendo the court erred in failing to sua sponte instruct the jury on the lesser included offense of grand theft, such error was harmless. (Breverman, supra, 19 Cal.4th at p. 178; People v. Watson (1956) 46 Cal.2d 818, 836.) The court here instructed the jury on robbery and the lesser included offense of petty theft. The jury was instructed that to find defendant guilty of robbery, it had to find that he took another’s property from her person or immediate presence, against her will, and that he used force or fear to take the property or prevent her from resisting, with the intent to permanently deprive her of it. The court instructed the jury that if it decided defendant was not guilty of robbery, it could find him guilty of a lesser crime if it was convinced beyond a reasonable doubt that he was guilty of that lesser crime. To find him guilty of petty theft, the jury had to find that he took another’s property without her consent, with the intent to permanently deprive her of it. The court further instructed the jury that it could not convict defendant of any crime unless it was convinced that he was guilty of that crime beyond a reasonable doubt.
The jury found defendant guilty of second degree robbery, and such conviction was supported by the evidence. The evidence showed that the victim confronted defendant and asked for her wallet back. When he suggested they go back to the building, and she said they should go through the front door, defendant tried to run away. The victim grabbed him, and defendant pushed her back and ran away with her wallet. Defendant now claims that the jury “could have rejected the idea that [his] push of [the victim] was sufficient force for robbery.” However, by finding defendant guilty of robbery, the jury found beyond a reasonable doubt that he used force or fear to take the victim’s wallet. Defendant further claims that “[m]erely because the jury rejected petty theft does not mean that it would have rejected grand theft.” This claim is completely baseless. If the jury had believed the crime was a mere theft and there was no use of force or fear, it would have convicted defendant of petty theft. Moreover, there was no evidence the stolen wallet or its contents were worth more than $950.
Given the jury’s finding that defendant was guilty of second degree robbery, it is not reasonably probable he would have obtained a more favorable outcome had the court instructed the jury on grand theft.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS


McKINSTER
J.


We concur:


RAMIREZ
P. J.


FIELDS
J.