Filed 4/5/17 P. v. Guerrero CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT


THE PEOPLE,

Plaintiff and Respondent,

v.

FRANK VINCENT GUERRERO,

Defendant and Appellant.
H042947, H043021
(Santa Clara County
Super. Ct. Nos. C1490233, C1511285)
In case No. C1490233, a jury found defendant Frank Vincent Guerrero guilty of second degree robbery, being under the influence of methamphetamine, possessing paraphernalia, and unlawfully possessing tear gas. He admitted two prior prison terms. The trial court imposed a total term of three years in prison.
In case No. C1511285, Guerrero pleaded no contest to grand theft and resisting a peace officer. The trial court imposed a term of 8 months in prison consecutive to the three-year term imposed in case No. C1490233. We ordered these cases considered together for purposes of briefing, oral argument, and disposition.
Guerrero raises three claims on appeal. As to case No. C1490233, he contends the trial court erred by refusing to instruct the jury on the lesser included offense of theft. Second, he contends the court erred by imposing a $50 criminal laboratory analysis fee for possessing paraphernalia. Third, he contends the trial court erred by failing to list the statutory bases for the penalty assessments on the combined abstract of judgment. The Attorney General concedes this last claim.
We conclude the trial court did not err by refusing to instruct the jury on the lesser included offense of theft. However, the trial court erred by imposing an unauthorized criminal laboratory analysis fee. We will reverse the judgment, strike the fee, and remand with instructions to correct the abstract.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Case No. C1490233—The Home Depot Robbery
1. Facts of the Offense
Loss prevention officer Jorge Grimaldo testified as follows. Grimaldo worked at a Home Depot in East San Jose. He agreed that the area could be described as “a tough neighborhood.”
On the morning of May 13, 2014, Grimaldo was in the loss prevention office at the Home Depot when another employee called him to report a suspicious customer in the hardware section. Grimaldo immediately left the office and located Guerrero in the hardware section. Grimaldo, acting undercover, did not have a badge or any other items identifying him as a security guard. He was wearing jeans, a black short-sleeved t-shirt, and plain tennis shoes. The tattoos on his arm were visible.
Grimaldo watched Guerrero from a distance of about ten feet away. Guerrero quickly selected an expensive flashlight and put it in his shopping cart. Grimaldo thought this was unusual because most customers compare prices on items before selecting them. Guerrero then went to the electrical department a few aisles away, quickly selected a pair of wire cutters, and put them in his cart. The two items had a total value of $87.
Grimaldo saw Guerrero remove the items from their packaging and put them in his front pants pocket. Guerrero then proceeded to the outside garden area, but he did not stop at the cash registers. He exited the store, and Grimaldo followed him outside. About 15 or 20 feet outside the store, Grimaldo jogged up to Guerrero from behind, grabbed his left wrist, and stated, “I’m Home Depot security.” Guerrero did not seem surprised. He immediately punched Grimaldo on the side of his head with a closed fist. As Grimaldo tried to get his arms around Guerrero, Guerrero struck Grimaldo on the head again. Grimaldo then pulled Guerrero to the ground, and a bystander held down Guerrero’s legs. Once Grimaldo gained control, he handcuffed Guerrero, took him back into the store, and called the police.
While Grimaldo kept Guerrero inside the store, Guerrero became verbally aggressive. Grimaldo explained that he called the police because Guerrero had punched him on the head. Guerrero responded, “You’re lucky I didn’t get you in the face. I would have got you good, fucker.” Guerrero never said anything to suggest he did not know Grimaldo was a security guard.
A San Jose police officer arrived and took Guerrero into custody. Guerrero appeared to be under the influence of a controlled substance. The officer found a canister of pepper spray in Guerrero’s left pocket and a glass pipe with burnt residue in his right pocket. The parties stipulated that the pipe contained methamphetamine. Guerrero admitted that he smokes methamphetamine. His blood tested positive for amphetamine and methamphetamine.
2. Procedural Background
The prosecution charged Guerrero by information with five counts: Count One—Second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)) ; Count Two—Being under the influence of methamphetamine (Health & Saf. Code, § 11550, subd. (a)); Count Three—Possession of controlled substance paraphernalia (former Health & Saf. Code, § 11364.1); Count Four—Unlawful possession of tear gas (§ 22900); and Count Five—Altering the identification mark on a tear gas canister (§ 22910, subd. (a)). The information also alleged Guerrero had served two prior prison terms. (§ 667.5, subd. (b).)
In July 2015, a jury found Guerrero guilty on Counts One through Four. The prosecution dismissed Count Five. Guerrero admitted the prior prison terms.
The trial court denied probation and imposed the middle term of three years on Count One. The court also imposed 60-day terms on the remaining counts and deemed them served. The court then struck the prison priors under section 1385.
B. Case No. C1511285—Grand Theft of a Bicycle
The prosecution charged Guerrero by complaint with two counts: Count One—Grand theft of a bicycle with a value exceeding $950 (§§ 484, 487, subd. (a)); and Count Two—Resisting a police officer (§ 148, subd. (a)(1)). The complaint further alleged Guerrero had served two prior prison terms and had been released on his own recognizance at the time of the offense. (§§ 667.5, subd. (b), 12022.1.)
Guerrero pleaded no contest to both counts and admitted the allegations. The trial court denied probation and imposed a term of eight months, equal to one-third the middle term on Count One, consecutive to the three-year term in case No. C1490233. As to Count Two, the court imposed a concurrent term of 10 days in county jail. The court struck the enhancements.
II. DISCUSSION
A. Refusal to Instruct on the Lesser Included Offense of Theft
As to case No. C1490233, Guerrero contends the trial court erred by refusing to instruct the jury on the lesser included offense of theft. The Attorney General contends the court properly refused the instruction because it was unsupported by substantial evidence. We conclude the court did not err in refusing to give the instruction because the record does not show sufficient evidence to support it.
1. Procedural Background
After the close of evidence, Guerrero requested a jury instruction on the lesser included offense of theft as to Count One. He argued that the use of force does not make theft a robbery if the use of force is not motivated by an intent to steal. He asserted that substantial evidence would support a finding that his use of force on Grimaldo was a reaction to being grabbed—i.e., that he was acting out of self-defense because he did not know Grimaldo was a security guard—not to accomplish the taking of the property. The prosecution opposed the instruction on the ground that Guerrero’s theory was unsupported by substantial evidence. The prosecution emphasized the absence of any testimony by Guerrero to the effect that he was acting out of self-defense or that he did not know Grimaldo was a security officer.
The trial court took the matter under submission and issued its ruling the next day. The court concluded that Guerrero’s theory—that he thought Grimaldo was not a loss prevention officer, but someone presenting a threat of assault—was speculative and unsupported by evidence sufficient to justify the instruction. The court noted that a defendant requesting a lesser included instruction is not required to give testimony supporting it, but the court found the circumstantial evidence “too slight” to support the instruction. Accordingly, the court declined to instruct the jury on theft.
2. Legal Principles
“Robbery is defined as the taking of personal property of some value, however slight, from a person or the person’s immediate presence by means of force or fear, with the intent to permanently deprive the person of the property.” (People v. Marshall (1997) 15 Cal.4th 1, 34.) “The elements of theft by larceny are well settled: the offense is committed by every person who (1) takes possession (2) of personal property (3) owned or possessed by another, (4) by means of trespass and (5) with intent to steal the property, and (6) carries the property away. [Citations.] The act of taking personal property from the possession of another is always a trespass unless the owner consents to the taking freely and unconditionally or the taker has a legal right to take the property. [Citation.]” (People v. Davis (1998) 19 Cal.4th 301, 305.) “Theft is a lesser and necessarily included offense in robbery; robbery has the additional element of a taking by force or fear.” (People v. Ramkeesoon (1985) 39 Cal.3d 346, 351 (Ramkeesoon).)
“[I]t is the ‘court’s duty to instruct the jury not only on the crime with which the defendant is charged, but also on any lesser offense that is both included in the offense charged and shown by the evidence to have been committed.’ [Citation.]” (People v. Gutierrez (2009) 45 Cal.4th 789, 826.) “Conversely, even on request, the court ‘has no duty to instruct on any lesser offense unless there is substantial evidence to support such instruction’ [Citation.]” (People v. Cole (2004) 33 Cal.4th 1158, 1215 (Cole).) Substantial evidence is evidence from which reasonable jurors could conclude the defendant committed the lesser offense, but not the greater. (People v. Cruz (2008) 44 Cal.4th 636, 664.)
“We apply the independent or de novo standard of review to the failure by the trial court to instruct on an assertedly lesser included offense.” (Cole, supra, 33 Cal.4th at p. 1218.)
3. The Trial Court Did Not Err by Refusing the Theft Instruction
Guerrero raises the same argument he raised below—that the jury could have found he did not know Grimaldo was a loss enforcement officer rather than an attacker. He argues that if he did not use force to accomplish his taking of the property because he was only acting in self-defense, then the offense was theft, not robbery. (See Ramkeesoon, supra, 39 Cal.3d at p. 351 [if defendant did not harbor a larcenous intent before or during the assault, the taking was theft rather than robbery].) Guerrero contends several facts support such a finding: That the Home Depot was in a dangerous neighborhood; that he was under the influence of a controlled substance and in a confused state of mind; that Grimaldo was dressed in plainclothes, with visible tattoos; and that Grimaldo grabbed Guerrero’s wrist before announcing he was a guard. Guerrero contends this evidence was sufficient to support a finding that he used force not to effect the taking, but to defend himself from a possible assailant.
The Attorney General points to several facts cutting against such a finding. First, Grimaldo stated he was a security guard as soon as he grabbed Guerrero’s wrist. While Guerrero’s first blow could have been an instinctual reaction, thrown immediately after Grimaldo grabbed him, Guerrero then punched Grimaldo a second time. Moreover, Guerrero continued to resist physically until he was finally subdued on the ground and handcuffed. At no point did Guerrero make any statement to suggest he thought Grimaldo was anything other than a security guard. He did not ask Grimaldo who he was or offer any apology afterwards. To the contrary, after Grimaldo handcuffed Guerrero and took him into the store, Guerrero told him, “You’re lucky I didn’t get you in the face. I would have got you good, fucker.” Guerrero must have known Grimaldo was a genuine security guard by then, but Guerrero continued to menace him.
We find the Attorney General’s argument persuasive. Guerrero responds that the jury could have found he did not hear Grimaldo state he was a security guard, but this is pure speculation. Furthermore, it was obvious that Grimaldo was a security guard once he handcuffed Guerrero and took him back into the Home Depot. The theory that Guerrero had mistaken Grimaldo for an attacker cannot be reconciled with the fact that Guerrero continued to resist Grimaldo and verbally assaulted him even when it was clear he was a guard. Guerrero may well have suffered confusion from methamphetamine use, but the record holds no evidence showing he thought Grimaldo was anything other than a guard. And there is no evidence that Guerrero thought he was in a dangerous neighborhood. These assertions are purely speculative.
Guerrero does not dispute that he used force on Grimaldo. Absent any evidence that he did not know Grimaldo was a guard, a reasonable jury could only find that his use of force was intended to accomplish the taking of property. Even assuming the trial court should have given an instruction on theft, the failure to do so would have been harmless, as it is not reasonably probable the jury would have found Guerrero innocent of the greater charge but guilty of the lesser. (See People v. Breverman (1998) 19 Cal.4th 142, 169 [applying the state law harmless error standard to a failure to give an instruction on a lesser included offense].)
For the reasons above, we conclude this claim is without merit.
B. Imposition of a Criminal Laboratory Analysis Fee on Count Three
Guerrero contends the trial court erred by imposing a $50 criminal laboratory analysis fee on Count Three (possessing paraphernalia). He contends the fee was unauthorized because Health and Safety Code section 11372.5 did not impose such a fee for possession of paraphernalia at the time of the offense. The Attorney General contends the fee was authorized because Guerrero could have been convicted under a related statute for which the fee was authorized. We conclude the fee was unauthorized.
Guerrero was convicted of possession of paraphernalia under former Health and Safety Code section 11364.1. Health and Safety Code section 11372.5 authorizes a $50 criminal laboratory analysis fee for certain enumerated offenses that do not include Health and Safety Code section 11364.1. The trial court, however, imposed a total of $100 in criminal laboratory analysis fees, apparently for both of Counts Two and Three. Guerrero is correct that a $50 fee was properly imposed on Count Two while the $50 fee on Count Three was unauthorized.
The Attorney General points out that Health and Safety Code section 11372.5 authorizes the fee for a violation of Health and Safety Code section 11364, which punishes the same conduct. He contends the fee was therefore authorized, notwithstanding the fact that the charging documents and the verdict specified Health and Safety Code section 11364.1. But Health and Safety Code section 11364 did not become operative until January 1, 2015. (Health & Saf. Code, § 11364, subd. (d).) Guerrero committed the offense on May 13, 2014, before that statute became operative. We must apply the statutes in effect at the time of the offense. (People v. Robertson (1989) 48 Cal.3d 18, 51.)
For the reasons above, we will strike the $50 criminal laboratory analysis fee and related penalty assessments imposed on Count Three.
C. Absence of Statutory Grounds for Penalty Assessments on the Abstract of Judgment
Guerrero contends the abstract of judgment must be modified to state the statutory grounds for the penalty assessments. The Attorney General concedes this claim. We accept the concession.
“Although we recognize that a detailed recitation of all the fees, fines and penalties on the record may be tedious, California law does not authorize shortcuts. All fines and fees must be set forth in the abstract of judgment.” (People v. High (2004) 119 Cal.App.4th 1192, 1200.) “If the abstract does not specify the amount of each fine, the Department of Corrections cannot fulfill its statutory duty to collect and forward deductions from prisoner wages to the appropriate agency. [Citation.] At a minimum, the inclusion of all fines and fees in the abstract may assist state and local agencies in their collection efforts. [Citation.] Thus, even where the Department of Corrections has no statutory obligation to collect a particular fee, such as the laboratory fee imposed under Health and Safety Code section 11372.5, the fee must be included in the abstract of judgment.” (Ibid.)
Here, the abstract of judgment listed several fines, fees, and the related penalty assessments. While the form states the basis for most of the fines, the Attorney General concedes that at least some of the penalty assessments are not properly reflected. Accordingly, we will order the abstract amended on remand.
III. DISPOSITION
The judgment is reversed. The $50 criminal laboratory analysis fee and related penalty assessment imposed on Count Three are stricken, and the matter is remanded to the trial court. On remand, the trial court shall amend the abstract of judgment to state the proper amounts and statutory grounds for all fines, fees, and penalty assessments. The trial court shall furnish the Department of Corrections with a certified copy of the corrected abstract.
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RUSHING, P.J.





WE CONCUR:






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PREMO, J.






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GROVER, J.