P. v. Whitley

Filed 4/26/07 P. v. Whitley CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

A jury found appellant Delmos Whitley (appellant) guilty as charged of two counts of second degree robbery. (Pen. Code,^[1] 211.) At a bifurcated trial, the court found true the numerous prior convictions alleged in the information as qualifying as serious felonies ( 667, subd. (a)), strikes ( 667, subd. (e), 1170.12, subd. (c)), and prior prison terms ( 667.5, subd. (b)). The trial court sentenced appellant to two consecutive 25 years to life sentences under the Three Strikes law, enhanced 15 years for three prior serious felony convictions, for a total sentence of 65 years to life. On appeal, appellant contends that the trial court erred in denying his request for a jury instruction on the lesser included offense of theft. Appellant also claims that the People committed prosecutorial error which violated his due process rights. We affirm the judgment.

I. FACTS

On May 21, 2003, appellant went to the Mechanics Bank in Berkeley, wielding a note which said that he had a gun and he wanted $20s and $50s. Appellant never brandished a gun but, believing the content of the note was accurate, teller Brian Marcus gave appellant approximately $1,000 within which he included serial number-recorded bills (bait money) and a tracking device that was embedded in a stack of $20 bills. Appellant promptly left the bank after receiving the money.

Officer Thomas Jeremiason of the Berkeley Police Department and Officer Roy Flecklin of the Oakland Police Department responded to the incident and followed the tracking device signal to a gas station in Oakland where they found appellant. The police handcuffed appellant, searched his person and found a large wad of bills, including the bait money. The police did not uncover a gun or the note used at the crime scene.

The police brought Marcus to the gas station to identify the perpetrator. He affirmatively identified appellant and while being identified, appellant told Officer Jeremiason that Marcus was the teller [he] robbed.

On April 22, 2003, appellant entered a Berkeley Citibank bank where he presented a note to the teller, Rina Houngviengkham. The note read this is a robbery. Appellant verbally demanded $50s and $100s. Houngviengkham handed appellant everything in her cash drawer but, since she had not fully set up her station,^[2]she was unable to include the bait money or the tracking device. During the incident, Houngviengkham was able to press a silent alarm button which activated a surveillance camera. After appellants arrest, police showed Houngviengkham a photographic lineup. She identified appellant as the perpetrator she encountered at Citibank in April 2003. Additionally, Houngviengkham reconfirmed appellant as the perpetrator after viewing Citibanks surveillance images from the day of the robbery.

At trial, both Marcus and Houngviengkham testified that they feared for their safety when appellant demanded money from them at the respective banks.

II. DISCUSSION

A. Lesser Included Offense

Appellant urges us to reverse his conviction because the trial court erroneously refused to instruct the jury on theft as a lesser included offense of robbery. He reasons that he did not use the requisite force or fear to obtain the money at the banks. He argues, instead, that the victim tellers relinquished the money because they followed bank procedure under these circumstances and, thus, were not motivated out of fear for their own safety. The People contend, however, that there was insufficient evidence of theft (i.e., an absence of fear or force) to trigger the courts duty to instruct on that lesser included offense.

A trial court has a sua sponte duty to include instructions on lesser included offenses when there is substantial evidence that could acquit a defendant of the greater crime but not of the lesser crime. (People v. Breverman (1998) 19 Cal.4th 142, 154.) The existence of scant evidence does not trigger a sua sponte duty. (Id. at p. 162.) Substantial evidence exists if a reasonable jury could find that the lesser, but not the greater, offense was committed. (Ibid.) A reviewing court should not evaluate the credibility of witnesses in determining if there is substantial evidence. (Ibid.)

Robbery requires a showing that a defendant took 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.) 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.) The force element can be either actual or constructive. (People v. Wright (1996) 52 Cal.App.4th 203, 210.) Constructive force encompasses all . . . means by which the person robbed is put in fear sufficient to suspend the free exercise of . . . will or prevent resistance to the taking. [Citation.] (Ibid.) The Wright court acknowledged that force can merely be such threat or display of physical aggression toward a person as reasonably inspires fear of pain, bodily harm, or death. [Citation.] (Id. at pp. 210-211.) The fear element is satisfied when there is fear of an unlawful injury to the person or property of the person robbed . . . . ( 212, subd. 1.) Moreover, the line between force and fear is blurry in that pointing a handgun at a victim and demanding money is direct evidence of force and is inferably evidence of the victims fear. (Wright, supra, 52 Cal.App.4th at p. 211.) Thus, there is an equivalency between the two such that one logically invokes the other. (Ibid.)

In this case, there was no substantial evidence to justify an instruction on theft. Both Houngviengkham and Marcus testified that they experienced fear when appellant presented the demand notes at the respective banks. Marcus testified that he received the note from appellant which stated I have a gun. Twenties and fifties. After receiving this note, Marcus testified that he was fearful for [his] safety. Houngviengkham also revealed that she was fearful during the robbery. When the prosecutor asked if she was afraid during the incident and feared for her safety, she responded [y]es. Additionally, after appellant had left the bank, Houngviengkham testified that she was so scared that words wouldnt even come out of [her] mouth. Thus, the record clearly reflects that the People established the element of fear to support a robbery theory. Moreover, regardless of whether the tellers were complying with bank procedures when they handed over the money, there was no evidence negating the fear they experienced and hence no evidence to support an instruction on theft.^[3]

B. Prosecutorial Misconduct

During closing argument, the prosecutor stated, So I ask you, the con game thats being spun here, isnt it being done by [defense counsel]? Appellant immediately objected to this comment during trial. The trial court overruled the objection. On appeal, appellant contends that the prosecutor committed misconduct, reasoning that the disparaging remark amounted to an accusation that defense counsel fabricated a defense, rather than a fair comment on the evidence. The People assert that the con game reference appeared in defense counsels closing argument and, thus, the prosecutor did not commit misconduct.

A prosecutor has wide latitude during closing argument. If the argument constitutes fair comment on the evidence and the reasonable inferences or deductions therefrom, it can be vigorous. (People v. Hill (1998) 17 Cal.4th 800, 819.) A prosecutor may refer to defense counsels argument as one that may twist a little, poke a little, try to draw some speculation, try to get you to buy something without it constituting an attack on defense counsel. (People v. Medina (1995) 11 Cal.4th 694, 759.) However, a prosecutor has committed misconduct when he or she uses deceptive or reprehensive methods to persuade either the court or the jury. (People v. Price (1991) 1 Cal.4th 324, 447.) On appeal, a defendant may bring a claim for prosecutorial misconduct if he or she made a timely objection at trial and requested the court to admonish the prosecutor. (Ibid.) There is an exception to this procedurea prosecutorial misconduct claim is reviewable only if an admonition would not have cured the harm caused by the misconduct. (Ibid.)

Here, appellant did not preserve his prosecutorial claim at trial. He objected to the prosecutors reference to him spinning a con game but failed to seek an admonition from the judge. Even if he preserved his claim, we would find no merit to it. The comment was an acceptable response to defense counsels interpretation of the evidence, not an improper personal derogation of counsel. (People v. Young (2005) 34 Cal.4th 1149, 1192.) During closing argument, defense counsel referred to the alleged crime as a bank con, alluding to his justification for the crime being a theft and not a robbery.^[4] It was not misconduct to comment on appellants closing argument and his justification for acquittal of the robbery charge.

The judgment is affirmed.

_________________________

Reardon, Acting P.J.

We concur:

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Sepulveda, J.

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Rivera, J.

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

^[2]According to Houngviengkham, a proper station set-up prior to opening a booth would include positioning prerecorded bait money and the stack of money with the tracking device in the cash drawer.

^[3]Appellant urges that since his primary defense was that he committed theft, not robbery, the courts refusal to deliver his requested instruction amounted to a violation of his due process right to present a complete defense. This argument ignores relevant law which sanctions such requests only when the evidence warrants such an instruction. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1145.) The request was appropriately denied because appellant cannot support a theft instruction where the victims testified that they experienced fear during the robberies.

^[4]Defense counsel further argued that appellant tricks the bank tellers into believing he has a gun because, he claims, this will trigger bank procedure to respond to the demand. In turn, under these circumstances, resorting to bank procedure precludes a reaction of fear and thus no robbery can occur.