P. v. Threats
Filed
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF
THE PEOPLE, Plaintiff and Respondent, v. MARCUS E. THREATS, Defendant and Appellant. | D048089 (Super. |
APPEAL from a judgment of the Superior Court of San Diego County, Joel M. Pressman, Judge. Affirmed.
A jury convicted Marcus E. Threats as charged of kidnapping for rape (Pen. Code,[1] § 209, subd. (b)(1); count 1), assault with intent to commit rape (§ 220; count 2), second degree robbery (§ 211; count 3), and assault by means likely to produce great bodily injury (§ 245, subd. (a)(1); count 4). After denying a new trial motion, the trial court sentenced Threats to prison for an indeterminate term of life with the possibility of parole for the count 1 aggravated kidnapping and a consecutive three-year term for the count 3 robbery, staying the sentence on the remaining counts under section 654.
Threats appeals, contending there was insufficient evidence to support his convictions of robbery and kidnapping for rape, and that the trial court prejudicially erred by failing to instruct the jury on petty theft as a lesser included offense of robbery. We affirm.
FACTUAL BACKGROUND
Because Threats challenges the sufficiency of the evidence, we set out the whole record in the light most favorable to the judgment (People v. Hillhouse (2002) 27 Cal.4th 469, 496 (Hillhouse)), which show that in the early morning hours of December 21, 2004, Threats was arrested at Buccaneer Beach in Oceanside, California, after being identified curbside as the man who had just sexually attacked Carly W. in the DAV (Disabled American Veterans) parking lot off of the Pacific Coast Highway (PCH) and had taken her purse.
At the trial on the above charges, Carly testified she had been drinking with friends at a bar in Oceanside until shortly after
When Carly struggled and continued screaming, the man dropped her on her knees, threw her on her back, got on top of her, pinned her down on the ground, covered her mouth with his hand, and again told her " to shut the fuck up" or he would " snap [her] neck." As the man then started messing with her clothes, Carly told him there was money in her purse that had flown out of her hands and had landed about five feet away from her when he had pushed her to the ground. She also told the man she " had family." The man did not care, telling her that he " just wanted to fuck the shit out of [her]." When the man tried to take Carly's pants off by unlatching her belt and pulling them down, the latch on the belt flipped back and the pants would only come halfway off her hips. When Carly started screaming again, the man grabbed her forehead and smacked her head into the ground about five times, causing bruising and lumps all over her head.
Carly estimated that about two or three minutes after the attack began, three people came running over and screaming into the parking lot from across the street, and the skateboard man came " running around the corner" toward them. At that point, the man stopped his activity, picked Carly up by her crotch, threw her over his shoulders, and tried to carry her further into the parking lot, but dropped her after a couple of steps. As the people approached them, the man grabbed Carly's purse and ran through the back of the parking lot while she got up screaming and called her dad, using a phone from one of the people. The man on the skateboard chased the attacker.
When Oceanside Police Officer Mark LaVake responded to the scene, Carly, whose knees and upper back were scraped and bleeding, pants ripped and clothing disheveled, ran up to him and grabbed him in " a death grip," crying hysterically. Carly gave LaVake a description of the suspect and an initial statement. Carly said her attacker was wearing a white shirt and blue shorts, but she was not sure whether he was wearing any shoes. The man on the skateboard, who had returned to the parking lot and was then identified as Ricky Estrada, also talked with LaVake, giving a description of Carly's attacker that matched the one she had given, and additionally noted the man was not wearing any shoes. As LaVake broadcast a description of the suspect to other officers, Estrada left again to look for the attacker. Estrada returned shortly to the parking lot to report that the suspect was walking at
Several Oceanside police officers then went to the beach and detained the suspect, who was wearing shorts and appeared to have fresh scratches on his chest and arms, an injury on the top of his head, and a cut on his right palm. While LaVake drove Carly to the suspect's location, Estrada skateboarded there. Both Carly and Estrada said the man, whose identity was determined to be Threats, was Carly's attacker. Threats was arrested and searched. A dollar bill, his wife's ATM card, and car keys were found in Threats's possession. Police later located a white t-shirt in the middle of some rocks on the beach where Threats had been found.
Carly testified that she met with another Oceanside police officer the next morning at the crime scene. The officer then measured the distance from where she had first been accosted to the area in the DAV parking lot where she had been carried. Such measured 44 feet. Carly also called the police later that evening after she received a visit from a man named Anthony Florio who had found her purse and its contents. Nothing was missing from the purse. Carly noted she had carried no money in her purse the night of the attack. Although the police dusted the purse for fingerprints, no useable prints were found. Carly identified Threats in court as her attacker.
On cross-examination, Carly said that the area where she was carried was an open area with no bushes or parked cars, and that there was one light in the parking lot. She thought the lighting was " about the same" in the parking lot as along PCH. The area where she was taken was " [a]way from the street." She did not recall " what time [her] purse flew out of [her] hands and flew somewhere . . . next to [her]." Threats picked up her purse after he had dropped her as he tried to carry her further into the parking lot.
Estrada testified that when he passed a woman, whom he later learned was Carly, as she walked on the sidewalk next to PCH at 2:30 a.m. on December 21, 2004, she appeared nervous and started walking really fast after he had said hello to her. When he turned off PCH onto
Estrada thought the lighting in the DAV parking lot was " really good" because it was " close to the corner" where other street lights were. He clarified during further questioning, however, that when he first ran from Morse to the area of the sidewalk where a fence ends by the DAV parking lot, he did not see Carly and the man on the street or in the parking lot. Nor did he see the initial contact, the man carry Carly into the parking lot, or the man pick up a purse. Estrada went further into the parking lot when he heard the woman scream again. When Estrada saw the incident going on, the man already had the purse on his shoulder. Three people came up as the man ran off. After watching the man jump the fence and turn left, Estrada walked back toward Morse to try to find the man there. In addition to having picked Threats's photograph out of a photo line-up as the man who had attacked Carly, Estrada also identified Threats in court as her assailant.
Florio, who lived above a garage on property overlooking a street that ran along the back part of the DAV building and " due east" of the parking lot, was awakened by screams around 2:00 a.m. on December 21, 2004, coming from the DAV area. When he looked out the window he could not see anything because it was " so dark over there." When Florio went out on his balcony, he heard someone yell at a man in a white shirt and blue boxers, who Floria then saw running. Florio also saw some people walking along PCH at that time. He explained that " there's more light down by the street than over here (indicating). This is all dark out here (indicating)." Florio lost sight of the man who was being chased by a white man, as he ran toward his house. Shortly thereafter, Florio heard some rocks drop from his fence out back and assumed somebody had jumped over the fence.
When Florio went down to his garage to go to work at about
In addition to the above evidence, Officer LaVake testified about the lighting in and around the crime scene area. He noted there was " good lighting on [PCH]" because there were " street lights up and down," but that the DAV parking lot near the corner of Morse and PCH was " darker" and " not as well lit as the street" because there was only one light on each side of the lot. LaVake explained that the lighting in the parking lot " gets less" as one " goes farther east towards the back end. . . ." He noted there were " shadow" areas that were also not as light as the street.
Forensic evidence was also presented in the prosecution case which showed that a blood stain on the white t-shirt found by the police matched Threats's DNA profile, that Carly was a possible donor of nail scrapings collected from Threats's left hand, that Threats was excluded as a possible source of nail scrapings from Carly's right hand, and that nail scrapings from Threats's right hand and Carly's left hand were insufficient for DNA analysis.
The Defense Case
Threats testified in his own defense. In the early morning of December 21, 2004, around 2:20 to 2:25 a.m., he had driven to Morse Street near PCH from his home in Oceanside, where he lived with his wife, children and wife's mother, to go jogging at Buccaneer Park and Beach and to pay for a prostitute to get " a blow job." Threats explained that he decided to look for a prostitute because he was upset with his wife and the two had not been intimate for about two and a half to three months.
After parking his car on Morse, Threats saw a woman, later identified as Carly, crossing that street and thought she was " working the streets." When he jogged up behind her right side at an angle, Carly jumped and turned to look at him, appearing startled. As he began telling her he thought she was a prostitute, and if she were, he could pay because he had a credit card, Carly started screaming and swinging her arms at him. About 10 to 15 seconds later, Threats saw a man with a skateboard in his hand running toward him. Thinking the man was Carly's boyfriend or " pimp," and that he was being set up to be robbed, Threats ran through the DAV parking lot, jumped the fence, cutting his hand, and then ran toward Buccaneer Park and some railroad tracks, where he started to walk to the beach. When he got to the beach, he took his t-shirt off and tossed it because it was ripped. Threats also noticed that he had bruises he had not had before.
As he walked along the beach, Threats saw some lights and then police officers, who told him to stay and kneel down. Threats complied and was placed in handcuffs. He initially told the police that he had not seen or had any contact with Carly. After somebody was brought by to identify him, he was arrested for robbery and rape. Threats denied he attacked or ever touched Carly. He also denied that he took Carly's purse.
On cross-examination, Threats said his only contact with Carly was on the sidewalk in front of the DAV parking lot and that both she and Estrada, the man with the skateboard, were lying. Threats conceded he had lied to police, but explained he did so only because he did not understand what was going on or know the legal system.
DISCUSSION
I
SUFFICIENCY OF THE EVIDENCE
Threats contends the evidence was insufficient to support his convictions for kidnapping to commit rape and for robbery. We disagree.
In reviewing the sufficiency of the evidence to support a conviction, we determine " 'whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged.' [Citations.]" (People v. Crittenden (1994) 9 Cal.4th 83, 139, fn. 13.) Under such standard, we review the facts adduced at trial in full and in the light most favorable to the judgment, drawing all inferences in support of the judgment to determine whether there is substantial direct or circumstantial evidence the defendant committed the charged crime. (Hillhouse, supra, 27 Cal.4th 469, 496; People v. Rodriguez (1999) 20 Cal.4th 1, 11.) The test is not whether the evidence proves guilt beyond a reasonable doubt, but whether substantial evidence, of credible and solid value, supports the jury's conclusions. (People v. Arcega (1982) 32 Cal.3d 504, 518; In re Nathaniel C. (1991) 228 Cal.App.3d 990, 996.)
In making the determination, we do not reweigh the evidence; the credibility of witnesses and the weight to be accorded to the evidence are matters exclusively within the province of the trier of fact. (Evid. Code, § 312.) We simply consider whether " ' " any rational trier of fact could have found the essential elements of [the charged offenses] beyond a reasonable doubt." ' [Citations.]" (People v. Rich (1988) 45 Cal.3d 1036, 1081.) Unless it is clearly shown that " on no hypothesis whatever is there sufficient substantial evidence to support the verdict" the conviction will not be reversed. (People v. Hicks (1982) 128 Cal.App.3d 423, 429.)
With these rules in mind, we review the record before the jury in light of Threats's separate assertions of insufficient evidence.
A. Kidnapping to Commit Rape
Threats contends his kidnapping for rape conviction must be reversed because there was insufficient evidence that the movement of Carly satisfied the statutory requirement of asportation, a crucial element of aggravated kidnapping. We find that a reasonable jury could have concluded the evidence of asportation was sufficient in this case.
Threats was charged in count 1 with a violation of section 209, subdivision (b)(1), which provides in pertinent part that " [a]ny person who kidnaps or carries away any individual to commit . . . rape. . . , shall be punished by imprisonment in the state prison for life with possibility of parole." Subdivision (b)(2) of section 209 states that " [t]his subdivision shall only apply if the movement of the victim is beyond that merely incidental to the commission of, and increases the risk of harm to the victim over and above that necessarily present in, the intended underlying offense." This latter subdivision " codifies both [People v. Rayford (1994) 9 Cal.4th 1 (Rayford),] and a modified version of the People v. Daniels (1969) 71 Cal.2d 1119 [(Daniels)] asportation standard. [Citations.]" (People v. Martinez (1999) 20 Cal.4th 225, 232, fn. 4 (Martinez); see also People v. Ortiz (2002) 101 Cal.App.4th 410, 415 (Ortiz).)
Our Supreme Court set out in Daniels, supra, 71 Cal.2d 1119 and reiterated in Rayford, supra, 9 Cal.4th 1, that aggravated kidnapping, " requires movement of the victim that is not merely incidental to the commission of the [rape], and which substantially increases the risk of harm over and above that necessarily present in the crime of [rape] itself. [Citations.] These two aspects are not mutually exclusive, but interrelated. [¶] As for the first prong, or whether the movement is merely incidental to the crime of [rape], the jury considers the 'scope and nature' of the movement. [Citation.] This includes the actual distance a victim is moved. However, we have observed that there is no minimum number of feet a defendant must move a victim in order to satisfy the first prong. [Citation.]" (Id. at p. 12.) Moreover, " the context of the environment in which the movement occurred," must also be considered. (Ibid.)
As to the second prong of the asportation requirement, the movement must subject " the victim to [an] increase in harm above and beyond that inherent in [rape]. [Citations.]" (Rayford, supra, 9 Cal.4th at p. 13.) Although most decisional authority has talked about this increase in harm as having to be " substantial," the amendment to section 209, subdivision (b) in 1997 " does not require that the movement 'substantially' increase the risk of harm to the victim. [Citation.]" (Martinez, supra, 20 Cal.4th at p. 232, fn. 4.) Thus, it is generally " enough that commission of the offense creates a risk of harm greater than that incidental to [the commission of a rape]." (Ortiz, supra, 101 Cal.App.4th at p. 415.)[2] Nonetheless, this second requirement still takes into consideration such factors " as the decreased likelihood of detection, the danger inherent in a victim's foreseeable attempts to escape, and the attacker's enhanced opportunity to commit additional crimes. [Citations.] The fact that these dangers do not in fact materialize does not, of course, mean that the risk of harm was not increased. [Citations.]" (Rayford, supra, 9 Cal.4th at pp. 13-14.)
Here, the trial court instructed the jury with CALJIC No. 9.54 which defined substantial distance for aggravated kidnapping as being " more than slight, brief or trivial," and told the jury that the movement had to " substantially" increase the risk of harm " above that necessarily present in the crime of rape itself." Applying these instructions to the evidence at trial, the jury found the forced movement of Carly from the sidewalk in front of the DAV building and into the adjacent DAV parking lot satisfied the two-prong asportation test.[3] We may not disturb such finding on appeal if it is supported by substantial evidence. (Rayford, supra, 9 Cal.4th at p. 23.) Having reviewed the facts in the light most favorable to the judgment and applying the same standard the jury applied, we conclude that the evidence of asportation in this case was sufficient to support the aggravated kidnapping conviction.
In this case, Threats originally encountered Carly in the middle of the night on the sidewalk next to PCH in front of several closed businesses. He then attacked her and carried her 44 feet away from the sidewalk and street around the side of the DAV building, into its adjacent parking lot going toward the back, where the lighting was much darker and contained shadows, before he started disrobing her in his attempt to rape her. On these facts, the movement of Carly was not merely incidental to the commission of the underlying sexual assault. Although the movement was arguably done to facilitate completing the rape, it was not necessary for completion of that crime. As this court noted in People v. Salazar (1995) 33 Cal.App.4th 341 (Salazar), " a rape . . . does not necessarily require movement to complete the crime." (Id. at p. 348, fn. 8.)
Because it was very early in the morning and no one else was around when Threats approached Carly on the PCH sidewalk in front of the closed DAV business, he could have simply raped Carly there and avoided moving her at all. " Where a defendant drags a victim to another place, and then attempts a rape, the jury may reasonably infer that the movement was neither part of nor necessary to the rape. [Citations.]" (People v. Shadden (2001) 93 Cal.App.4th 164, 169 (Shadden).) Similar to the situation in Shadden, where the defendant dragged the victim from the front of a video store into a back room where he attempted to rape her, the jury could have reasonably inferred that the movement of Carly from the sidewalk to the darker parking lot away from the street was not incidental to the attempted rape because Threats only began his sexual assault after he moved and dropped Carly in the parking lot. (Ibid.)
As noted above, the jury was properly instructed on its need to find the movement was " more than slight, brief or trivial" in order to support the first prong, " Where movement changes the victim's environment, it does not have to be great in distance to be substantial. [Citation.]" (Shadden, supra, 93 Cal.App.4th at p. 169.) Threats carried Carly 44 feet from a sidewalk on a lighted street, around the corner of a closed business building into its darker parking lot away from the street. From these facts the jury could reasonably infer that the movement changed Carly's environment, was for a substantial distance, and was not necessary to the commission of an uninterrupted rape.
Contrary to Threats's reliance on kidnapping for robbery cases where movement is often necessary to complete the crime or where the movement is in a confined area, the underlying nature of the crime of robbery is quite different from a sexual assault or rape. Sexual offenses necessarily require close physical proximity between the victim and the defendant. Movement of the victim is simply " not a necessary or a natural part of committing [a] rape." (Salazar, supra, 33 Cal.app.4th at p. 347.)
Moreover, Threats's movement of Carly subjected her to an increase in the risk of harm above and beyond that necessarily present in rape itself satisfying the second-prong of Daniels, supra, 71 Cal.2d 1119. (Rayford, supra, 9 Cal.4th at p. 13.) " [W]here a defendant moves a victim from a public area to a place out of public view, the risk of harm is increased even if the distance is short." (Shadden, supra, 93 Cal.App.4th at p. 169.) Here, as stated before, Threats forced Carly in the middle of the night from a sidewalk on the side of a well-lighted street to a spot in an adjacent parking lot 44 feet away from the street. Although the distance may not be that great, evidence revealed Carly was moved to a darker outdoor location where it was less likely any passing driver or person walking on the sidewalk by the closed businesses would see her. Such movement " thus changed the victim's environment from a relatively open area alongside the road to a place significantly more secluded, substantially decreasing the possibility of detection, escape or rescue." (Dominquez, supra, 39 Cal.4th at p. 1153; see also People v. Diaz (2000) 78 Cal.App.4th 243, 248 [victim moved from well lit sidewalk to the dark isolated area around the back of a recreation center].)
Nonetheless, Threats argues the evidence of asportation was insufficient because Carly's testimony showed the parking lot was " open and lit" with no obstructions to lessen the risk of detention and that she was in fact able to summon help from her location in the parking lot. Threats, however, fails to appreciate that the evidence was conflicting as to the lighting, with Officer LaVake and Florio testifying the parking lot was " darker" and " not as well lit as the street" and Estrada clarifying he could not see the attack until he got into the parking lot, and that conflicts in the evidence are purely within the trier of fact's province to resolve. (See People v. Kraft (2000) 23 Cal.4th 978, 1054.) We do not reweigh the evidence.
Moreover, that Carly was eventually rescued due to her persistent screaming, does not change the fact that Threats removed her from public view on the street's sidewalk to an area more obscured from public view. Carly's rescuer Estrada was only able to get a good view of Threats attacking Carly when he turned off the street, entered the parking lot, and followed her screams to within a " couple of feet" from them. By that time, Threats had already started his sexual assault on Carly and had bashed her head against the pavement numerous times. Contrary to Threat's assertion, forced movement of a victim to an " enclosure" so that detection is not possible, is not necessary to show an increase in the risk of harm. (Dominquez, supra, 39 Cal.4th at p. 1154.) Rather, a jury could reasonably infer from the evidence in this case, including the time of night, the delayed detection, and the isolated environment where Threats had carried Carly, that no passersby on the street, either in cars or on foot, would likely enter the empty, dark parking lot away from the street and adjacent to the closed DAV business to determine whether any people were there and crimes were being committed.
Further, Threats's reliance on People v. Stanworth (1974) 11 Cal.3d 588 (Stanworth),[4] where the 25-foot movement of the victim from a road to an open field in the early evening was deemed not to be substantial, is unfounded. In Stanworth " there is no evidence that the relatively brief movement of the victim . . . removed her from public view or in any other manner substantially increased the risk, beyond that inherent in the underlying crimes, that she would suffer physical harm." (Id. at p. 598.) Unlike Stanworth, Threats's forced movement of Carly here removed her from public view on a well-lit street to a darker, isolated area away from the street where they were less detectable from public view and increased her risk of harm.
In sum, considering the context of the forced movement of the victim here and viewing the evidence in the light most favorable to the People, we conclude there was sufficient evidence of asportation as defined under the two-pronged test of Daniels, supra, 71 Cal.2d 1119 which was reiterated in Rayford, supra, 9 Cal.4th 1, to support the jury's verdict. (See Dominquez, supra, 39 Cal.4th at pp. 1153-1155.) Accordingly, we affirm the count 1 kidnapping for rape conviction.
B. Robbery
Threats also claims his robbery conviction should be reversed because there was insufficient evidence he harbored the requisite intent to steal at the time he used force on Carly. We disagree.
With regard to the crime of robbery, section 211 provides that " [r]obbery 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." Generally, " [t]o support a robbery conviction, the evidence must show that the requisite intent to steal arose either before or during the commission of the act of force. [Citation.]" (People v. Marshall (1997) 15 Cal.4th 1, 34.) If a defendant forms the intent to steal only after the victim is assaulted, " the robbery element of stealing by force or fear is absent. [Citations.]" (People v. Bradford (1997) 14 Cal.4th 1005, 1055-1056 (Bradford).) However, " [w]here a defendant begins a sexual assault, aware that the victim has property and takes it, the jury may infer the defendant intended to commit both rape and robbery. [Citations.] Or it may infer that the force used for the sexual offense was also force for robbery. [Citations.]" (Shadden, supra, 93 Cal.App.4th at p. 170.) An intent to rob may be proved by inferences from all of the circumstances of the case. (People v. Vizcarra (1980) 110 Cal.App.3d 858, 863.)
Here, the evidence showed that Threats only had one dollar and a Visa card with him when he first attacked Carly. At that time she was startled, afraid, and screaming as she told him she had money in the purse she carried. Even though he initially said he did not care and that he was only interested in sex, at some point after Carly started screaming again and struggling with him, he ended up with her purse. Although Carly testified Threats did not pick up the purse until he was frightened off by Estrada with his skateboard, Estrada testified Threats had the purse over his shoulder when he approached him as Threats was slamming Carly's head into the ground. The responding officer noted that Carly was hysterical when he first arrived. Carly further clarified in her testimony that she was uncertain at what point Threats took her purse. Threats denied taking the purse, but argued in closing that whoever did take the purse did so as an afterthought and did not form the intent to steal the purse until after the attempt to sexually attack Carly was complete. The jury requested a reread of those portions of Carly's and Estrada's testimony regarding the purse.
From the totality of this evidence, a jury could reasonably have inferred that in Threats's frustration at not being able to rape Carly, he formed the intent to steal her purse to get some money while he was still attacking her. The jury could have found Carly's memory of the sequence of events regarding the purse clouded due to her fear and hysteria during and just after the attack, and found that Estrada's recollection that Threats already had the purse in his possession when he happened upon the scene was the correct version of the incident. From such facts the jury could have inferred Threats had formed the intent to steal Carly's purse while he was using force even though his attempt to sexually assault her had been unsuccessful. Thus viewing the evidence in the light most favorable to the judgment and drawing all reasonable inferences from the facts, there was substantial evidence from which a reasonable juror could infer Threats's intent to steal arose during his forceful acts against Carly and while she still feared for her life.
Contrary to Threats's reliance on Rodriguez v. Superior Court (1984) 159 Cal.App.3d 821 (Rodriguez) to support his position there was no evidence he harbored the requisite intent to steal at the time he used force on Carly, the facts of that case are distinguishable from the instant case. In Rodriguez, the defendant was not aware that the victim's purse was in his car at the time he drove off after forcing the victim out of the car and raping her. (Id. at pp. 823-824.) In this case, however, Threats was fully aware of Carly's purse before and during the time he assaulted her. Although Carly testified that Threats had stated he was not interested in the purse and only wanted sex with her at the beginning of the assault, the jury was not bound to limit its view of the evidence to only that time. Because there was also evidence that Threats continued to beat Carly after he was unable to remove her pants and that he had the purse on his shoulder when Estrada appeared on the scene, the jury could have reasonably inferred that Threats had formed the intent to take Carly's purse by force and fear in such latter part of the attack on Carly. (See also Shadden, supra, 93 Cal.App.4th at pp. 170-171.)
In sum, we conclude there is sufficient substantial evidence in this record to support the count 3 robbery conviction.
II
REFUSAL TO INSTRUCT ON THEFT AS LESSER INCLUDED OFFENSE
During jury instruction discussions, Threats's counsel explained that he was requesting that theft as a lesser included offense (LIO) to the robbery charge be given " because, in [his] opinion, [based upon the fact that the victim stated that the purse was not on her at the time Threats picked it up as he was leaving,] the specific intent to steal was not formed until after the assault was completed. In other words, Mr. Threats was now leaving the scene [and] there was no evidence that he wanted to steal anything from this person and as an afterthought picked up the purse while he was running." Counsel thought that " simply forming a specific intent to steal something at a later time . . . would make it a simple petty theft."
The prosecutor opposed the request because " it's an elemental defense, [that] either . . . the force and fear existed at the time the taking occurred or it did not, and therefore it's either an acquittal or a conviction, and that the LIO is just confusing." The prosecutor also did not think that the facts as presented by Threats in his testimony gave " rise to an LIO of simple or petty theft in that he denie[d] taking the purse at all. Therefore, it would be inconsistent [with his defense] to argue that he didn't take the purse."
When the court stated it agreed with the prosecutor that " it's an element of defense," and did not think defense counsel's reference to Rodriguez, supra, 159 Cal.App.3d 821, applied to the situation, defense counsel explained that he was making two different requests, one for the LIO of theft, and the other for an instruction stating " that robbery requires a showing on intent to steal before or during the application of force rather than merely after the application of force." After further discussion and reading both Rodriquez and Shadden, supra, 93 Cal.App.4th 164, upon which the prosecutor relied for concurrent intent purposes, the court stated it was " not inclined to go with the defense request."
In closing, the prosecutor advised the jury that defense counsel would probably argue that the taking of Carly's purse was " some afterthought" and that there was not really force or fear in the taking. However, the prosecutor, argued, that the facts showed that Threats took Carly's purse after he had knocked her to the ground and she laid there in fear without being able to move and that from such facts it could be inferred that Threats had used force when he grabbed her purse. Because the other elements of robbery were satisfied by the evidence, the prosecutor argued a robbery was committed.
Defense counsel in closing argument on the robbery charge, stated:
" Okay. So first let's talk about did any crimes actually take place. Now, I'm going to give you an example of one right now. The robbery charge. Okay. A purse was taken. That's what the testimony is. A purse was taken by somebody, and it was found later on. [¶] Element No. 4 states that the property -- the purse, the taking of it had to be accomplished by force or fear. Now, the evidence that we have in front of the jury from [Carly] is that when her assailant left her while he was running away, he picked up this purse. But I'd submit as an afterthought to what happened, he just picked it up while he was running. [¶] The only other evidence is that [Carly] said that the assailant said to her, I don't want your money. So in my mind that means it's an afterthought of what happened. Why am I saying that? Because that's element 4 of a charge with a lot of elements. And even if you think all the other elements are met beyond a reasonable doubt, I submit to you that the taking of that purse by force or fear or by anybody does not go beyond a reasonable doubt, and therefore you should find somebody not guilty of that charge."
On appeal, Threats contends the trial court prejudicially erred when it denied his request to instruct the jury on the LIO of theft for his count 3 robbery charge. Although we agree the court's refusal to do so was error, we conclude the error was harmless on this record.
The general rule is that in a criminal case the trial court " 'has a sua sponte duty to instruct on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present and there is evidence that would justify a conviction of such a lesser offense.' [Citation.]" (Bradford, supra, 14 Cal.4th at p. 1055.) " Theft is a lesser included offense of robbery, which includes the additional element of force or fear." (People v. Melton (1988) 44 Cal.3d 713, 746.) As already noted above, if the intent to steal arises " only after the victim was assaulted, the robbery element of stealing by force or fear is absent. [Citations.]" (Bradford, supra, 14 Cal.4th at pp. 1055-1056.)
Any error in failing to instruct on a lesser included offense which is supported by the evidence, " must be reviewed for prejudice exclusively under [People v. Watson (1956) 46 Cal.2d 818]. A conviction of the charged offense may be reversed in consequence of this form of error only if, 'after an examination of the entire cause, including the evidence' (Cal. Const., art. VI, § 13), it appears 'reasonably probable' the defendant would have obtained a more favorable outcome had the error not occurred [citation]." (People v. Breverman (1998) 19 Cal.4th 142, 178, fn. omitted (Breverman).)
Here, although Threats testified he did not take Carly's purse, Carly initially testified Threats had taken her purse after he had stopped attacking her and at the time he was running away. Though Carly later changed her testimony to say she was unsure of when Threats actually took the purse, and Estrada testified that Threats had already taken the purse when he arrived on the scene of the on-going attack, we believe Carly's testimony provided a sufficient conflict in the evidence to require instruction on theft as a lesser offense of robbery. Similar to the situations in Bradford, supra, 14 Cal.4th 1005 and People v. Ramkeesoon (1985) 39 Cal.3d 346 (Ramkeesoon), there was sufficient evidence in this case that, if believed by the jury, would support the LIO of theft rather than the charged robbery, and the court failed to so instruct the jury. (Bradford, supra, 14 Cal.4th at p. 1056; Ramkeesoon, supra, 39 Cal.3d at p. 351.) We thus find, as the courts did in Bradford and Ramkeesoon, that the trial court erred in not instructing on the LIO of theft.[5]
Moreover, as in those cases, because the jury had not been instructed on " after-formed intent," the factual question posed by the omitted theft instruction, and the robbery instruction alone does not require the jury to make such decision, thus leaving the jury with only an " all-or-nothing choice," the error would have been prejudicial under the decisional standard before the holding in Breverman, supra, 19 Cal.4th at pages 164-165. (See Bradford, supra, 14 Cal.4th at pp. 1056-1057; Ramkeesoon, supra, 39 Cal.3d at pp. 351-353.) In Breverman, our Supreme Court sent the matter back for consideration under this new standard of prejudice because the court of appeal there had reviewed the instructional error under the former standard that required the defendant's conviction be reversed " unless 'the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions.' [Citation.]" (Breverman, supra, 19 Cal.4th at pp. 164-165.)
A review of the entire record under the current Breverman standard (Breverman, 19 Cal.4th at pp. 165, 178) shows that although the prosecution evidence was conflicting on when Threats took Carly's purse, Threats himself testified he did not take the purse. Threats's counsel then argued the People had not met their burden of proof beyond a reasonable doubt to show that whoever took Carly's purse did so with the specific intent to deprive it from her while applying force or putting her in fear. Both counsel essentially stressed the element of the taking of the purse from Carly had to be accomplished by either force or fear to find the charged robbery and that the intent to permanently deprive her of the purse had to concur with such conduct. After being properly instructed on all the elements of the charged robbery, including the required specific intent and the necessity of concurrence of act and that specific intent, the jury found Threats guilty of robbing Carly. Under these circumstances, we do not believe it " reasonably probable" that Threats would have obtained a more favorable outcome had the jury been instructed with theft as an LIO of robbery. (Breverman, supra, 19 Cal.4th at p. 178.)
Contrary to Threats's position that the fact the jury requested a readback of Carly's and Estrada's testimony regarding the purse shows prejudice, such reveals the jury carefully reviewed the record to determine whether the element at issue, that the taking concurred with the force or fear, was sufficient to establish Threats's guilt of the charged robbery. If the jury had been properly instructed with the LIO of theft, it is likely on this record that the jury would have requested the same portions of testimony and would have made the same determination. (See Breverman, supra, 19 Cal.4th at p. 177.) Accordingly, we can find no prejudicial, reversible error on this record in this regard.
DISPOSITION
The judgment is affirmed.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
O'ROURKE, J.
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[1] All statutory references are to the Penal Code unless otherwise specified.
[2] Although our Supreme Court in People v. Dominguez (2006) 39 Cal.4th 1141 (Dominguez) recently revisited the question of when evidence of forced movement of a victim is sufficient to satisfy the asportation element for aggravated kidnapping, it did so in the context of a crime predating the amendment to section 209, subdivision (b) which is applicable in this case. (Id. at pp. 1150, fn. 5, 1153.)
[3] Though the jury was thus technically instructed under the former law applicable to cases before the amendment to section 209, subdivision (b), Threats has not claimed any prejudicial error in the instructions. Nor would such claim have any merit because the jury determined there was sufficient evidence to support the kidnapping for rape conviction even under the former higher " substantial" increased risk of harm standard.
[4] " Stanworth's discussion of the asportation standard for simple kidnapping was disapproved in part in [Martinez, supra,] 20 Cal.4th [at pp.] 233-235." (Dominguez, supra, 39 Cal.4th at p. 1154, fn. 7.)
[5] Although not raised as error on appeal, we also believe the court erred in failing to grant Threat's additional request to give a pinpoint instruction on after-acquired intent for robbery.
