P. v. Ross

Filed 5/10/07 P. v. Ross CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County.

David M. Mintz, Judge. Affirmed.

Barbara Michel, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Robert F. Katz and Lauren E. Dana, Deputy Attorneys General, for Plaintiff and Respondent.

STATEMENT OF THE CASE

In an amended information, the District Attorney of Los Angeles County charged appellant and his co-defendant, Antoinette Renee Falice, with robbery (Pen. Code 211, count 1)[1]and assault by means of force likely to cause great bodily injury ( 245, subd. (a)(1).) It was alleged as to both counts that appellant had suffered five prior convictions pursuant to section 1170.12, subdivisions (a) through (d) and 667, subdivision (b) through (i). It was further alleged that appellant had suffered two prior serious felony convictions within the meaning of section 667, subdivision (a)(1) and five prior convictions within the meaning of section 667.5, subdivision (b).

Appellant pled not guilty and denied the allegations. His motion to bifurcate the prior convictions was granted. The case was tried to a jury and on December 13, 2005, appellant was found guilty as to both counts. On January 10, 2006, the trial court found all of the Three Strike Law prior convictions to be true, and two of the serious felony convictions to be true.

The court denied appellants request to strike the strike prior convictions and sentenced appellant to 35 years to life in state prison: 25 to life on count 1, plus 10 years for the prior serious felony convictions. A separate 25 to life sentence on count 2 was stayed pursuant to section 654. Appellant was ordered to pay a restitution fine of $7,500 pursuant to section 1202.4, subdivision (b) and a parole revocation fine of $7,000 pursuant to section 1202.45. Appellant was given credit for 198 days of presentence custody plus an additional 29 days for good time/work time.

Appellant filed a timely notice of appeal.

STATEMENT OF FACTS

Except with regard to the alleged instructional error, we view the evidence in the light most favorable to the People and presume the existence of every fact the trier could reasonably deduce from the evidence that supports the judgment. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) The following summary is based on this appellate standard of review.

Prosecution Evidence

On June 27, 2005, at approximately 10:15 a.m., Marie-Antoinette Manetti-Scott was leaving her job as a bookkeeper at a friends loft at 657 Santa Fe Avenue, and walking to her car parked about a block away. It was bright and sunny. Ms. Manetti-Scott noticed a man, subsequently identified as appellant, and a woman, walking towards her. Both individuals were about six feet tall. The man was wearing a blue plaid shirt and blue jeans. The woman was wearing red from head to toe. Ms. Manetti-Scott was carrying a set of keys to her friends loft in her right hand and she was carrying a shoulder bag with two straps, on her left shoulder. The bag contained her wallet, eyeglass case, phone, car keys, a pair of scissors, earphones for her phone and possibly, a lip balm.

As Manetti-Scott walked down Santa Fe Avenue, a fence was on her left side and the street to her right. Appellant and the woman passed her on her right [street] side. After appellant passed her, he turned around and ripped the purse off her shoulder, breaking the straps. Manetti-Scott turned and saw appellant standing about three feet away from her with the bag in his hand. Manetti-Scott looked directly into his face and screamed, I want my keys, and he replied, You have your keys. Manetti-Scott screamed, These are not my car keys. I want my car keys.

The next thing she remembered, Manetti-Scott was laying on he back on the ground. Appellant was standing over her, holding her purse in both hands at crotch level. Manetti-Scott grabbed the purse back from him and continued to scream. Appellant told Manetti-Scott several times, Shut up or Im going to knock you out. Manetti-Scott and appellant continued to struggle over the purse for about a minute. During the struggle, Manetti-Scotts hands were cut by the scissors which were poking through the purse.

Appellants companion remarked that people were coming. Appellant then grabbed Manetti-Scott by the hair on the top of her head and hit her with his fist on her right jaw. As a result of the blow, Manetti-Scott had a bruise and a couple of teeth were loosened, making it difficult to chew for a few days. Manetti-Scott was in pain for a few days and sustained a scratch on her forehead from appellants fingernail, scrapes on her knees and bruises on her shoulder.

Manetti-Scott continued screaming to draw attention. Appellant kept trying to get the purse back and his accomplice tried to help him. During this time, Manetti-Scott could see people at a distance and as the people got closer, appellant and his companion got up. Manetti-Scott then got up. Appellant and his female companion stood about three feet away. Other people arrived and appellant told the people that Manetti-Scott had tried to steal the other womans bag and then stood there for another 15 to 30 seconds. Appellant and the woman then walked away in a leisurely manner and went around the corner.

Next, someone walked Manetti-Scott to her car. She got in and drove off to follow appellant and the woman. She initially lost sight of them, but located them walking on the street about a block away. Manetti-Scott called 911 and continued to follow appellant and his companion until they went into the Greyhound bus station. Manetti-Scott gave a description of them to the 911 operator. She stayed outside with her car until the police arrived.

Manetti-Scotts 911 call was responded to by Los Angeles Police Department Officer Christian Urbina and his partner, Officer Bell. Officer Urbina testified that Manetti-Scott described her assailant as a black male, about 59 tall, weighing 190 pounds, and wearing a multi-colored shirt with dark pants. The officers went into the station and returned in about 15 minutes with appellant and the woman. The officers had located appellant in the restroom and appellant advised them that his female companion was in the womens restroom.

Officer Albert Gonzalez was with Manetti-Scott during the show-up at the Greyhound station. Manetti-Scott identified both appellant and the woman. She was 100% positive of her identifications. She will never forget appellants face. After her identification, both persons were transported to the police station.

The parties stipulated that appellant is five feet seven inches tall.

Defense Evidence

On June 27, 20205, Officer Douglas Bell spoke with Manetti-Scott. Manetti-Scott told him that she had left work and was walking on the sidewalk when she saw two people walking towards her and they exchanged polite head nods. As she approached her car, the man ripped the purse off of her shoulder. They became involved in a small argument about her keys and she begged for the keys that were in the purse. She was yelling. The man said, Bitch, you already have your keys. As she yelled for her keys back, the woman who was standing on the sidewalk, yelled at her to be quiet because she was causing people to come outside, and the woman was telling people to mind their own business.

Manetti-Scott became fearful, and wanted to leave, so she grabbed the purse away from him. She told Officer Bell she was in fear for her life. After that, the man grabbed her by the hair, threatened to kill her, then punched her in the face and knocked her to the ground. The man and woman then walked away as if nothing had happened. Manetti-Scott did not say anything about a second struggle for the purse after she had been knocked down, or that appellant told anyone that she had tried to take the other womens purse.

CONTENTIONS ON APPEAL

Appellant raises several contentions on appeal. First, he contends that the evidence is insufficient to sustain a conviction of attempted robbery. He also contends that the trial court erred by failing to instruct the jury on grand theft person as a lesser-included offense to robbery. Last, appellant contends that his 35-years-to-life sentence in this case is constitutionally disproportionate because these convictions arose out of a simple, unpremeditated, attempted purse-snatching, accomplished without significant bodily harm, with no use of a weapon and without any loss of property . . . .

Appellants first issue on appeal is whether the evidence presented was sufficient to support the attempted robbery conviction. When the sufficiency of the evidence is challenged on appeal, the court must review the whole record in the light most favorable to the judgment to determine whether substantial evidence exists to support the decision of the trier of fact. (People v. Diaz (1992) 3 Cal.4th 495, 534; People v. Jennings (1991) 53 Cal.3d 334, 364.) In making this determination, the court presumes every fact in support of the judgment that the jury could have reasonably deduced from the evidence. (People v. Rayford (1994) 9 Cal.4th 1, 23; People v. Ochoa, supra, 6 Cal.4th at p. 1206; People v. Jones (1990) 51 Cal.3d 294, 314.) We do not put ourselves in the position of the jury and ask whether in our judgment the evidence proves guilt beyond a reasonable doubt, but merely decide whether the verdict is supported by any substantial evidence, contradicted or uncontradicted. (People v. Farmer (1989) 47 Cal.3d 888, 924, overruled in part on another ground in People v. Waidla (2000) 22 Cal.4th 690; People v. Alcala (1984) 36 Cal.3d 604, 623.)

Appellant complains that his conviction was based solely on the testimony of a single eyewitness: Ms. Manetti-Scott. Appellant identifies several discrepancies in Manetti-Scotts testimony. Initially she described her assailants as being about six feet tall. Later to an officer, she indicated five feet nine inches. Appellant is five feet seven inches tall. There were also inconsistencies in her testimony and/or recollection regarding the struggle over the bag and how she ended up on the ground. Appellant argues the fact that Manetti-Scott lost sight of appellant and his companion, after they walked away, is also important to the evaluation of her testimony.

Appellant acknowledges the general evidentiary rule that the testimony of a single witness is sufficient to prove a disputed fact, and eyewitness identification alone can sustain a conviction. (Evid. Code 411; People v. Robertson (1989) 48 Cal.3d 18, 44; People v. Hughes (1969) 271 Cal.App.2d 288, 291; In re Gustavo M. (1989) 214 Cal.App.3d 1485, 1496-1497.) In addition to this general principal, we note further that [a]ny contradictions . . . or other weakness in the witnesss testimony are matters to be explored on cross-examination and argued to the trier of fact. (People v. Robertson, supra, at p. 44.) [W]hen the circumstances surrounding the identification and its weight are explored at length at trial [and] where eyewitness identification is believed by the trier of fact, that determination is binding on the reviewing court. [Citation.] (In re Gustavo M., supra, at p. 1497.)

The discrepancies and inconsistencies in Manetti-Scotts testimony were brought to the attention of the jury, which had the opportunity to consider these factors in weighing her credibility and the accuracy of her recollection. We find nothing in her testimony that would allow us to ignore the evaluation of the jury and conclude that her evidence was incredible or unsubstantial.

Instructions on Grant Theft Person

Appellant contends the trial court erred when he failed to instruct on grand theft person as a lesser-included offense to robbery. He contends that the evidence presented a jury question as to whether more force than that necessary to accomplish the mere seizing of the purse was used. The sum of the evidence on this question came from Manetti-Scott. Manetti-Scott, testified that as appellant passed her, he turned around and then ripped the bag off [her] shoulder which broke the straps. Manetti-Sott felt the tug first. His contention is that the facts in the case at bench were equivocal with respect to the force involved in the taking of Ms. Manetti-Scotts purse. It is reasonably probable that a properly instructed jury would have found appellant guilty of grand theft person, had it been given the choice.

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.] . . . . [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 ] . . . . (People v. Sedeno (1974) 10 Cal.3d 703, 715, overruled on another point in People v. Blakeley (2000) 23 Cal.4th 82, 89; see also People v. Breverman (1998) 19 Cal.4th 142, 177, People v. Alcalde (1944) 24 Cal.2d 177, 188.)

The crime of 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. [Citation.] (People v. Mungia (1991) 234 Cal.App.3d 1703, 1707; People v. Flynn (2000) 77 Cal. App.4th 766, 771; People v. Morales (1975) 49 Cal.App.3d 134, 139; 211.) Thus, to support a robbery conviction, the taking, either the gaining possession or the carrying away, must be accomplished by force or fear. [Citation.] (People v. Flynn, supra, at p. 771.) Whether force or fear existed is a question for the trier of fact. (People v. Mungia, supra, at p. 1707.) Where the element of force or fear is absent, a taking from the person is grand theft rather than robbery. (People v. Morales, supra, at p. 139.)

If the robbery is based upon the use of force, the force employed must be more than just that quantum of force which is necessary to accomplish the mere seizing of the property. (People v. Morales,supra, 49 Cal.App.3d at p. 139; People v. Garcia (1996) 45 Cal.App.4th 1242, 1246, disapproved on another ground in People v. Mosby (2004) 33 Cal.4th 353, 365, fn. 2.) However, the force or fear required by section 211 is not synonymous with a physical corporal assault, and resistance by the victim is not a necessary element. (People v. Mungia,supra, 234 Cal.App.3d at p. 1707.)

Appellants use of force against Manetti-Scott in furtherance of the offense is sufficient to establish the element of force or fear. (People v. Estes (1983) 147 Cal.App.3d 23, 28 [Whether defendant used force to gain original possession of the property or to resist attempts to retake the stolen property, force was applied against the guard in furtherance of the robbery and can properly be used to sustain the conviction].) Because there was no substantial evidence presented that force or fear was not used, and because appellants defense was Ms. Manetti-Scotts identification was suspect, the trial court was not required to instruct the jury with respect to the offense of grand theft from the person. (People v. Jones (1992) 2 Cal.App.4th 867, 871 [when no evidence was presented to contradict the circumstances of the robbery, the only witness testifying to the robbery was the victim, and the victim testified to the use of force, [t]here was no contradictory version of the evidence to support instruction on the lesser offense of grand theft from the person].)

We also note this error, like any other type of instructional error, is subject to a harmless error analysis. [T]he failure to instruct sua sponte on a lesser included offense in a noncapital case is, at most, an error of California law alone, and is thus subject only to state standards of reversibility. . . .  [S]uch misdirection of the jury is not subject to reversal unless an examination of the entire record establishes a reasonable probability that the error affected the outcome. (People v. Breverman, supra, 19 Cal.4th at p. 165.) In making that evaluation, an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result. (Id. at p. 177.) We find there is no reasonable probability that a properly instructed jury would have returned a verdict more favorable to appellant.

Cruel and Unusual Punishment

Appellant contends his sentence of 35-years-to-life in state prison constitutes cruel and unusual punishment under the federal Constitution, and under the California State Constitution. We disagree.

A sentence may violate the state constitutional ban on cruel or unusual punishment if . . . it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity. [Citations.] [] In order to determine whether a particular punishment is disproportionate to the offense for which it is imposed, we conduct a three-pronged analysis. [Citations.] First, we examine the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society. A look at the nature of the offense includes a look at the totality of the circumstances, including motive, the way the crime was committed, the extent of the defendants involvement, and the consequences of defendants acts. A look at the nature of the offender includes an inquiry into whether the punishment is grossly disproportionate to the defendants individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind. [Citation.] Next, we compare the challenged punishment with the punishment prescribed for more serious crimes in the same jurisdiction. And finally, the challenged punishment is compared with punishment for the same offense in other jurisdictions. [Citation.] (People v. Romero (2002) 99 Cal. App.4th 1418, 1431-1432.)

Appellants prior record and the present offense demonstrate that his sentence does not violate constitutional principles. In 1983, appellant was convicted of robbery with use of a firearm (211, a felony), assault with a deadly weapon ( 245, subd. (a)(1), a felony) and assault ( 240, a misdemeanor). Sentenced to six years in state prison, appellant was paroled on December 26, 1986.

Appellant was convicted in 1987 of assault with a deadly weapon, not a firearm

( 245, subd. (a)(1), a felony) and sentenced to two years state prison. He was released on that offense and returned to prison for parole violations on June 9, 1989 and December 28, 1990. He was subsequently paroled on February 19, 1991.

On June 7, 1991, appellant was convicted of possession of a narcotic controlled substance (Health & Saf. Code 11350, subd. (a), a felony). He was sentenced to 180 days in county jail and placed on three years probation. This also resulted in a violation of parole for which he was returned to custody on July 5, 1991 and paroled again on October 22, 1991.

Appellant was convicted of misdemeanor theft convictions in 1992 (petty theft) and 1993 (petty theft with a prior). His parole was violated for the 1993 conviction, and appellant was returned to state prison to finish his term.

On March 11, 1994, appellant was convicted of first degree robbery ( 211, (counts 1 and 2, felonies), first degree burglary ( 459, count 3, a felony), assault with a firearm on a person ( 245, subd. (a)(2), count 4, a felony) and possession of a firearm by a felon ( 12021, subd (a), count 5, a felony). He was sentenced to sixteen years in state prison.

On October 26, 2003, appellant was convicted of two counts of misdemeanor battery on ex-spouse/fiance for which he was sentenced to 365 days in county jail. On July 7, 2004 his parole was violated and he was returned to state prison to finish his term. According to the report, appellant was on parole at the time of this offense and that his performance on probation has been poor. His parole officer recommended that appellant be returned to state prison. Based on the nature of his current crime, his recidivist behavior, and his failure at rehabilitation, appellants sentence was proportionate to the nature of the offense and the offender.

The second prong of analysis involves a comparison of the challenged punishment with the punishment prescribed for more serious crimes in the same jurisdiction. [Citation.] (People v. Romero, supra, 99 Cal.App.4th at p. 1433.) However . . . this step is inapposite to three strikes sentencing because it is a defendants recidivism in combination with current crimes that places him under the three strikes law. Because the Legislature may constitutionally enact statutes imposing more severe punishment for habitual criminals, it is illogical to compare [defendants] punishment for his offense, which includes his recidivist behavior, to the punishment of others who have committed more serious crimes, but have not qualified as repeat felons. [Citation.] [Citation.] (Ibid.)

The third prong calls for comparison of the California punishment with punishment for the same crimes in other states. That Californias punishment scheme is among the most extreme does not compel the conclusion that it is unconstitutionally cruel or unusual. This constitutional consideration does not require California to march in lockstep with other states in fashioning a penal code. It does not require conforming our Penal Code to the majority rule or the least common denominator of penalties nationwide. [Citation.] Otherwise, California could never take the toughest stance against repeat offenders or any other type of criminal conduct. [Citation.] (People v. Romero, supra, 99 Cal.App.4th at p. 1433.) We conclude that appellants sentence of 25 years to life does not constitute cruel or unusual punishment under the California Constitution.

Further, contrary to appellants claim, his sentence is not grossly disproportionate to the crime and does not violate the Eighth Amendment of the federal Constitution. (U.S. Const., 8th Amend.; Ewing v. California (2003) 538 U.S 11; Lockyer v. Andrade (2003) 538 U.S. 63; People v. Cooper (1996) 43 Cal.App.4th 815, 820-828.)

DISPOSITION

The judgment is affirmed.

COOPER, P.J.

We concur:

RUBIN, J.

BOLAND, J.

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