Filed 10/4/17 P. v. Haro CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Gregory S. Tavill, Judge. Affirmed.

Laurel M. Nelson, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Peter Quon, Jr., Randall D. Einhorn, and Susan Elizabeth Miller, Deputy Attorneys General, for Plaintiff and Respondent.

I. INTRODUCTION

A jury convicted defendant and appellant, Eric Haro, of attempted second degree robbery after hearing evidence that he demanded money from Arturo Rojas Mier (Rojas), threatened to kill Rojas, and physically attacked Rojas. (Pen. Code, §§ 211, 212.5, subd. (c), 664.)[1] The trial court sentenced defendant to a two-year prison term. On appeal, defendant contends the trial court prejudicially erred when it failed to instruct sua sponte on theft and simple assault, which he contends are lesser included offenses. He also contends the court should have sentenced him to 18 months’ imprisonment rather than two years. We affirm.

II. FACTS

Rojas testified that, one morning in November 2015, he was selling flowers on a street corner in Bloomington, California. Defendant approached Rojas and asked him for money in Spanish. (Rojas does not speak or understand English.) Rojas replied that he did not have any money, even though he had sold approximately 10 flowers and had some money in his pocket. Rojas tried to walk away but defendant followed him. Defendant pulled Rojas by the shirt, tearing it and scratching Rojas in the process, and grabbed at Rojas’s pocket. Rojas was afraid and struggled with defendant to get away. Rojas lifted his arm in a twisting motion as he was attempting to escape, but he never

threw a punch at defendant. Defendant said—also in Spanish—that he would kill Rojas if he did not give defendant money. Defendant put his hand in his own pocket and “said he had something in there.” Rojas saw something black in defendant’s hand. Officers began approaching, and Rojas saw defendant run to a storm drain and throw the black thing in it.

Melissa Murillo and her family witnessed part of these events when they tried to buy flowers from Rojas. Murillo had never met Rojas before that day. She and her family pulled into a parking lot near Rojas and defendant. Murillo motioned for Rojas to come to the car. Rojas did so and, as she was asking about the flowers, defendant started yelling at Rojas to give him money. Defendant seemed mad and said he was going to kill Rojas. Rojas asked Murillo’s husband whether he should give defendant money, and her husband replied that he should not, and Murillo would call 911 if defendant was bothering him. Defendant was becoming “real angry” and said something like, “I’m going to fight you.” Murillo was nervous and scared, and Rojas looked scared as well. She looked at defendant and told him, “No. No problems,” and called 911. Defendant was holding something in his pocket.

While Murillo was talking to the 911 operator, defendant descended on Rojas and began hitting Rojas and ripping his shirt. Rojas tried to back away from defendant and hit back at him. Murillo’s husband circled the car around the block so that they could

park farther away from the altercation, and Murillo lost sight of Rojas and defendant for that period of time.

Officers with the San Bernardino County Sheriff’s Department responded to the scene. One officer observed defendant throw something into the storm drain. A second officer retrieved what appeared to be a black handgun from the storm drain, though on further inspection he thought it was a pellet gun.

Defendant testified in his own defense. He related that right before he encountered Rojas, he had injected a “speed ball,” which is a mixture of heroin and methamphetamine, and he was walking home. According to defendant, as he neared the corner where Rojas was selling flowers, Murillo appeared and asked defendant, “How much are the flowers? Are you working with this guy?” Rojas ran toward him and, while brandishing a pocket knife, said, “No, no, no. Go. Leave. No. I don’t need you here.” Defendant grabbed Rojas to disarm him, twisting Rojas’s shirt and perhaps ripping it in the process. Rojas dropped the knife and defendant released him. Defendant was walking away when Rojas said, “Come here,” and called defendant a “[f]ucker.” Rojas followed defendant and hit him in the face three times. Defendant again walked away and then noticed the officers. He flagged them down and threw his needles, a pipe, and a toy gun in the storm drain. He had the gun because it was part of his Halloween costume. Defendant denied punching Rojas, demanding money from Rojas, saying he was going to kill Rojas, reaching toward Rojas’s pocket, and having the intent to steal from Rojas. According to the officer who interviewed defendant at the scene, defendant did not say Rojas pulled a knife on him. Nor did he say Rojas struck him in the face.

Rojas had a 2014 conviction for providing false information to a police officer because he had given an officer his cousin’s name instead of his own.

III. PROCEDURE

The information charged defendant with one count of attempted second degree robbery. Specifically, it alleged that defendant “unlawfully, and by means of force and fear,” attempted to take personal property from Rojas’s person, possession, and immediate presence. (Italics added.) The court instructed the jury on attempted robbery (CALCRIM No. 460) and the elements of robbery (CALCRIM No. 1600), but no other substantive offenses. After the jury found defendant guilty as charged, the court sentenced him to “the middle term of two years” in state prison.

IV. DISCUSSION

A. The Court Did Not Err in Failing to Instruct on Theft and Simple Assault

Defendant contends theft and simple assault are lesser included offenses of robbery, and the court therefore had a sua sponte duty to instruct the jury on them. We disagree. There was no substantial evidence defendant committed only theft, and assault is not a lesser included offense of robbery.

We apply de novo review to determine whether the court should have instructed on a lesser included offense. (People v. Cole (2004) 33 Cal.4th 1158, 1215.) Two tests

exist for determining whether an offense is necessarily included within another: the elements test and the accusatory pleading test. (People v. O’Malley (2016) 62 Cal.4th 944, 984.) “Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former. Under the accusatory pleading test, if the facts actually alleged in the accusatory pleading include all of the elements of the lesser offense, the latter is necessarily included in the former.” (People v. Reed (2006) 38 Cal.4th 1224, 1227-1228.)

A trial court must instruct sua sponte on any lesser offense supported by substantial evidence. (People v. Breverman (1998) 19 Cal.4th 142, 162.) Substantial evidence is “‘“evidence that a reasonable jury could find persuasive”’ [citation], which, if accepted, ‘“would absolve [the] defendant from guilt of the greater offense” [citation] but not the lesser’ [citation].” (People v. Cole, supra, 33 Cal.4th at p. 1218.) In determining whether there is substantial evidence of a lesser offense, we consider the evidence in the light most favorable to the defendant and do not evaluate the credibility of witnesses. (People v. Breverman, supra, at p. 162; People v. Brothers (2015) 236 Cal.App.4th 24, 30.)

Even on request, however, “a trial judge has no duty to instruct on any lesser offense unless there is substantial evidence to support such instruction.” (People v. Cunningham (2001) 25 Cal.4th 926, 1008.) The court need not instruct on theories

unsupported by the evidence or only weakly supported by the evidence (People v. Reeves (2001) 91 Cal.App.4th 14, 51), nor need it instruct on a lesser included offense “‘where the evidence establishes if the defendant was guilty at all, he was guilty of the higher offense.’” (People v. Peregrina-Larios (1994) 22 Cal.App.4th 1522, 1524.)

1. Theft

Robbery is the taking of personal property from another’s person, or the person’s immediate presence, against that person’s will and accomplished by force or fear. (§ 211.) Under the elements test, theft is a lesser included offense of robbery that does not include the added element of force or fear. (§ 484, subd. (a); People v. Bradford (1997) 14 Cal.4th 1005, 1056.)

Here, the trial court was not required to instruct on theft because there was no substantial evidence defendant attempted to commit theft instead of robbery. The prosecution’s witnesses to the crime—Rojas and Murillo—painted a consistent general picture of the events. Defendant demanded money from Rojas, and when Rojas did not provide it, defendant threatened to kill him and attacked him. Defendant’s testimony, on the other hand, was that he never demanded money from Rojas, never intended to steal from Rojas, and never threatened Rojas; the whole altercation occurred because Rojas was trying to scare defendant away from Rojas’s customer and brandished a knife. No reasonable jury could have concluded from this evidence that defendant attempted to commit only theft. The evidence showed defendant either attempted to steal money and threatened and attacked Rojas in the process, or he did not attempt to steal money at all and was merely defending himself against an unwarranted attack. Even when we credit defendant’s testimony, there was no evidence—substantial or otherwise—showing that he merely tried to steal from Rojas without force or fear. His evidence suggested he was not guilty of either attempted robbery or attempted theft. Further, defendant contends the court should have instructed on theft, not attempted theft, but an instruction on completed theft without an attempted theft instruction would have been unsupported for an additional reason—there was no evidence defendant actually stole anything. The court did not err in failing to instruct on theft, whether attempted or completed.

2. Simple Assault

“An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” (§ 240.) According to the statutory definition of robbery, a perpetrator can accomplish it through force or fear. (§ 211.) Because a perpetrator can commit robbery strictly by means of fear, “assault is not a lesser included offense of robbery under the elements test.” (People v. Parson (2008) 44 Cal.4th 332, 349.) Defendant acknowledges this but contends assault is a lesser included offense under the accusatory pleading test. Here, the pleading accused defendant of a taking through force and fear. Defendant argues that, because the robbery as charged was accomplished with force, assault is a lesser included offense of robbery in this case.

People v. Wright (1996) 52 Cal.App.4th 203, 209-211, review denied March 26, 1997, S058527, rejected defendant’s argument.[2] We agree with Wright and conclude that, even under the accusatory pleading here, assault is not a lesser included offense of robbery.

Wright reasoned that “the ‘force’ required for robbery is not necessarily synonymous with a physical corporeal assault. [Citation.] . . . If ‘force’ for purposes of robbery meant no more than the direct (or indirect) application of physical might to the person of the victim, then we would agree that an assault is necessarily included any time a prosecutor alleges a robbery was committed by means of force. ‘Force,’ however, has a broader meaning” when it comes to robbery. (People v. Wright, supra, 52 Cal.App.4th at p. 210.) The force used may be “‘constructive force,’” which means “‘force, not actual or direct, exerted upon the person robbed, by operating upon [a] fear of injury,’” or a “‘threat or display of physical aggression toward a person as reasonably inspires fear of pain, bodily harm, or death.’” (Id. at pp. 210-211.) In other words, “‘force’ is not an element of robbery independent of ‘fear’; there is an equivalency between the two. ‘“[T]he coercive effect of fear induced by threats . . . is in itself a form of force, so that either factor may normally be considered as attended by the other.”’” (Id. at p. 211.) The Wright court concluded that, because evidence of fear may satisfy the element of force, it was “possible to commit a robbery by force without necessarily committing an assault,” and consequently, assault is not necessarily included when a pleading alleges a robbery by force and fear. (Ibid.) Wright’s reasoning applies with equal weight here.

B. The Court Did Not Err in Sentencing Defendant to a Two-year Prison Term

Defendant contends the court should have sentenced him to 18 months’ imprisonment rather than two years, when it expressly selected a middle term sentence. He asserts section 213 prescribes a sentencing triad of two, three, or five years for second degree robbery, and section 664 prescribes one-half the term of imprisonment for attempts. (§§ 213, subd. (a)(2), 664, subd. (a).) Thus, he argues, half the middle term of three years—or 18 months—was the correct sentence. We also reject this argument.

Defendant’s analysis relies on incorrect sentencing statutes. Section 664, establishing that courts should sentence attempted crimes at one-half the prison term for the offense attempted, does not apply here. That section applies only “where no provision is made by law for the punishment” of an attempted offense. (§ 664.) In the case of attempted second degree robbery, section 213, subdivision (b) sets forth a specific provision for punishment. This statute expressly removes attempted robbery from the purview of section 664.

Section 213, subdivision (b) states: “Notwithstanding Section 664,” “attempted robbery in violation of paragraph (2) of subdivision (a),” that is, attempted second degree robbery, “is punishable by imprisonment in the state prison.” (Italics added.) This language makes clear that attempted second degree robbery is a felony. (§ 17, subd. (a) [“A felony is a crime that is punishable . . . by imprisonment in the state prison . . . .”].) And, every offense declared to be a felony, where the punishment is unspecified, is punishable by imprisonment for 16 months, two years, or three years. (§ 18, subd. (a).) Hence, the court was correct that the applicable middle term sentence was two years’ imprisonment. (People v. Moody (2002) 96 Cal.App.4th 987, 990 [considering and rejecting the defendant’s argument, and holding the applicable triad for attempted second degree robbery is 16 months, two years, or three years, as stated in § 18].)

Defendant contends the plain language of sections 213 and 664 contains nothing indicating “the general equation” for calculating a prison term for an attempted offense is to be ignored. But defendant’s interpretation is the one at odds with the plain language of the statutes. As we have discussed, both statutes indicate the general equation set forth in section 664 does not apply. Section 664 starts by saying it does not apply where the law makes other provision for punishment of an attempted offense, and section 213 directs the court to punish attempted second degree robbery under the sentencing scheme for felonies, “notwithstanding” section 664. We do not, like defendant, see any ambiguity in the language of the applicable statutes, which ultimately directs that the sentencing triad for felonies (§ 18, subd. (a)) applies.

V. DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS

J.

We concur:

RAMIREZ

P. J.

SLOUGH

J.