Fear Not Law Articles: P. v. Robles

P. v. Robles

Filed 2/14/07 P. v. Robles CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

MARCO ANTONIO ROBLES,

Defendant and Appellant.

F049208

(Super. Ct. No. DF007169C)

OPINION

APPEAL from a judgment of the Superior Court of Kern County. L. Bryce Chase, Judge.

Roshni Mehta, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, John G. McLean and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant Marco Antonio Robles was convicted of robbery after driving off with the victim's portable electric generator. Robles challenges on appeal the fact that the trial court did not give a jury instruction on the lesser-included offense of petty theft. We conclude that the evidence warranted that instruction and that the court was required to give it on its own motion. Since the jury's choice between robbery and petty theft would have depended simply on which witnesses the jury believed, the failure to give the instruction was not harmless error.^{^[1]}

FACTUAL AND PROCEDURAL HISTORIES

Robles was arrested after the victim, Oliver Glover, identified him in a photograph as one of three men who came to the ranch where Glover was working, who brandished a gun, and took a generator while Glover was fleeing to call the police. The district attorney filed an information charging one count of second degree robbery. (Pen. Code, § 212.5, subd. (c).)^{^[2]} The information also alleged that, pursuant to section 12022.5, subdivision (a), Robles personally used a firearm in committing the robbery.

At trial, Glover and Robles told sharply contrasting versions about the circumstances of Robles's taking the generator. Glover testified for the prosecution. On the morning of December 29, 2004, he said that he was at his uncle's ranch, where he lived and had an auto-body repair business. He used a portable generator to supply electricity for the auto-body work. That day, he was fixing the roof of a goat pen when a car and a pick-up drove up and Robles and two other men got out. Glover knew one of the other men, having worked on his family's car. He had also seen Robles once before, when Robles brought a customer in who needed work done on a car. Thinking they were there on car-repair business, he went with them into the garage where he did the auto-body work. Robles then drew a handgun, pointed it at Glover's face, and demanded all of Glover's tools. Robles also said he was owed $100 for the generator and that he was going to take the generator. As the other two men were â€

Description	Defendant was convicted of robbery after driving off with the victim's portable electric generator. Defendant challenges on appeal the fact that the trial court did not give a jury instruction on the lesser-included offense of petty theft. Court conclude that the evidence warranted that instruction and that the court was required to give it on its own motion. Since the jury's choice between robbery and petty theft would have depended simply on which witnesses the jury believed, the failure to give the instruction was not harmless error.
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