P. v. Jones

Filed 3/16/06 P. v. Jones CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Appellant Deshaun Jones was tried before a jury and convicted of second degree robbery. (Pen. Code, §§ 211, 212.5, subd. (c).)^[1] We reject his argument that the evidence was insufficient to support the judgment, but agree that the trial court should have given sua sponte jury instructions on grand theft person as a lesser included offense of robbery.

FACTS

Michael Nzegwu was stopped at a traffic signal at about 2:00 a.m. when he was approached by a woman who asked him for a ride. He drove her to the Nickerson Gardens Housing Projects. The woman demanded money from Nzegwu and would not leave his car. He refused and they argued for awhile before she grabbed his cell phone from a cup holder in the car. Nzegwu did not attempt to physically retrieve the phone. The woman told him she would only give it back to him if he gave her money.

After arguing for about fifteen minutes, the woman left the car with the cell phone in her hand. Appellant was standing nearby and the woman gave him the phone. She said something to appellant along the lines of, "What if he takes the cell phone away from me?" According to Nzegwu, appellant responded, "Don't worry, I have a big pistol." Nzegwu asked appellant for the phone and appellant told him to negotiate with the woman for its return.

Nzegwu followed appellant, asking him for the phone. Appellant showed him the wooden handle of a gun inside his coat pocket, but did not remove a gun or threaten to shoot Nzegwu. Nzegwu waited for a brief period and then followed appellant to see where he was going. Appellant walked into one of the apartments.

In the hours that followed, Nzegwu made several attempts to retrieve his cell phone, including calling the police, paying residents money to help him find it and calling the phone number to try to talk to whoever was holding it. He eventually reached the person who had the phone and offered to pay him for its return. These efforts eventually led the police to appellant, whom Nzegwu identified as the man who took his phone.

The jury convicted appellant of second degree robbery. It rejected an allegation that he had personally used a firearm in the commission of the offense and found him not guilty of a firearm possession count. Appellant admitted a prior conviction allegation that made him eligible for a five-year serious felony enhancement and a doubled sentence under the Three Strikes law. (§§ 667, subd. (a), 1170.12.) The trial court struck the Three Strikes allegation and sentenced him to prison for an aggregate term of seven years (the two-year lower term plus a five-year serious felony enhancement).

DISCUSSION

Sufficiency of the Evidence

Appellant contends the evidence was insufficient to support a robbery conviction because the People did not prove that he knew the phone belonged to Nzegwu or that he used force or fear to maintain possession of the phone. We review the record in the light most favorable to the judgment to determine whether a reasonable trier of fact could have found guilt beyond a reasonable doubt. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)

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.) Although the force or fear element typically occurs at the time of the taking, the crime is not complete until the robber reaches a position of relative safety and it is sufficient that he used force or fear to prevent the victim from regaining property that was illegally taken. (People v. Estes (1983) 147 Cal.App.3d 23, 28; see also People v. Pham (1993) 15 Cal.App.4th 61, 65.) The prosecution proceeded on the theory that appellant committed an "Estes"-type robbery when he displayed the gun handle to Nzegwu and instilled a fear that prevented him from retaking the cell phone.

Appellant argues that there was no evidence showing he knew the phone belonged to Nzegwu; hence, he could not have intended to retain Nzegwu's property by means of force or fear. We disagree. The evidence supported a finding that the woman in the car took Nzegwu's phone without his permission and that she gave it to appellant after a brief conversation. Nzegwu asked appellant directly for the phone. Appellant's argument that we should reverse because appellant could have just as easily believed the phone belonged to the woman is little more than a request that we reweigh the evidence on appeal. This we will not do. (People v. Ochoa, supra, 6 Cal.4th at p. 1206.)

We also reject appellant's argument that the evidence did not support the element of force or fear. Actual fear may be inferred from the circumstances, and Nzegwu's testimony that appellant displayed the handle of a gun was more than adequate for this purpose. (People v. Holt (1997) 15 Cal.4th 619, 690.) It does not matter that appellant did not draw the weapon or that Nzegwu continued to follow appellant despite having seen the gun handle.

Failure to Instruct on Theft as Lesser Included Offense

Appellant argues that the judgment must be reversed because the court did not instruct on theft as a lesser included offense of robbery. We agree.

Theft is a lesser included offense of robbery because it contains the same elements with the exception of force or fear. (People v. Ortega (1998) 19 Cal.4th 686, 694.) Jury instructions must be given sua sponte on a lesser included offense when substantial evidence would support a determination that the crime was less than that charged. (People v. Breverman (1998) 19 Cal.4th 142, 162.) "Substantial evidence" for this purpose is that sufficient to deserve consideration by the jury, that is, evidence that a reasonable jury could find persuasive. (People v. Cunningham (2001) 25 Cal.4th 926, 1008.) We independently review the question of whether the court should have given the instruction. (People v. Cole (2004) 33 Cal.4th 1158, 1215.)

The rule requiring instruction on a lesser included offense prevents the jury from facing an untenable choice when the evidence is clear that the defendant committed a crime but reasonable minds could differ as to the nature of the offense. (See People v. Webster (1991) 54 Cal.3d 411, 444, fn. 17.) "A trial court's failure to inform the jury of its option to find the defendant guilty of the lesser offense would impair the jury's truth-ascertainment function. Consequently, neither the prosecution nor the defense should be allowed, based on their trial strategy, to preclude the jury from considering guilt of a lesser offense included in the crime charged. To permit this would force the jury to make an 'all or nothing' choice between conviction of the crime charged or complete acquittal, thereby denying the jury the opportunity to decide whether the defendant is guilty of a lesser included offense established by the evidence." (People v. Barton (1995) 12 Cal.4th 186, 196.)

Although the record supports a robbery conviction, there was also evidence from which a reasonable jury could have determined that appellant committed a theft without using force or fear. The victim testified that appellant displayed a gun handle to prevent the retaking of the cell phone, but that he (the victim) continued to pursue appellant after seeing the handle. His decision to follow appellant arguably was not the act of a person in fear and called into question the victim's assertion that he had seen a weapon. During closing argument, defense counsel urged the jury to reject the victim's testimony about the gun handle as lacking in credibility and to find that the force or fear element had not been established.

The failure to instruct on a lesser included offense requires reversal when it is reasonably probable the jury would have reached a more favorable verdict if the instruction had been given. (People v. Breverman, supra, 19 Cal.4th at p. 177.) The jury's rejection of the firearm possession count and firearm use allegation strongly suggests it did not believe appellant was carrying a gun when the cell phone was taken. Apart from the display of the gun handle, the circumstances supporting the element of force or fear were not particularly strong, and it is reasonably probable the jury would have returned a verdict of theft rather than second degree robbery if it had been instructed on that lesser crime.

Our resolution of this issue makes it unnecessary to consider appellant's alternative contention that reversal is required because the court did not instruct on aiding and abetting principles. In the event of a retrial on the robbery charge, it would be prudent for the trial court to fully instruct on an aiding and abetting theory. (Compare People v. Cook (1998) 61 Cal.App.4th 1364, 1371, with Cook v. Lamarque (E.D. Cal. 2002) 239 F.Supp.2d 985, 996.)

DISPOSITION

Appellant's second degree robbery conviction is conditionally reversed. On remand, the prosecution may elect to retry him on this charge within 60 days of the filing of the remittitur in the trial court. (§ 1382, subd. (a)(2).) If the prosecution declines to retry the case, the trial court shall treat the remittitur as a modification of the judgment to reflect a conviction of grand theft person under section 487, subdivision (c) and shall hold a new sentencing hearing. The five-year enhancement allegation under section 667, subdivision (a) may not be added to a sentence for grand theft, as grand theft is not a serious felony, but the court may utilize the Three Strikes allegation that was stricken at the original sentencing hearing. We express no opinion as to whether the Three Strikes allegation should be stricken on remand.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

YEGAN, Acting P.J.

PERREN, J.

Henry W. Shatford, Judge

Superior Court County of Los Angeles

______________________________

Jennifer A. Mannix, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey, Erin P. Pitman, Deputy Attorneys General, for Plaintiff and Respondent.

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^[1] All statutory references are to the Penal Code.