P. v. Carrion
Filed
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, Plaintiff and Respondent, v. LUIS FERNANDO CARRION, Defendant and Appellant. | 2d Crim. No. B185592 (Super. Ct. No. 2005001840) ( |
A jury convicted appellant Luis Fernando Carrion of attempted second-degree robbery (Pen. Code, §§ 664/211)[1] and found that a personal knife use allegation was not true. (§ 12022, subd. (b)(1).) The court found true the allegation that appellant had served a prior prison term and sentenced him to the middle term of two years in state prison, plus a one-year prior prison term enhancement. (§ 667.5, subd. (b).) Appellant claims that the jury may have relied on a legally incorrect theory because the jury instructions omitted an element of the offense; the prosecutor misstated the law; and the court did not give a clarifying instruction. We agree and reverse.
FACTS
Benjamin Harrold and his wife, Darla, live in Ojai with their two small children. One afternoon Harrold was standing in his driveway, helping Darla buckle their children into her car. Several minutes later his minor sister rode up on her bike. As Darla left the driveway, Harrold noticed appellant standing across the street, about 20 feet away. He wore a large black jacket and held a beer can in a brown bag. He appeared intoxicated and was staring at Harrold's sister.
Harrold yelled at appellant twice, saying, " Hey man, keep walking." Appellant looked at Harrold, raised his arms, as if challenging him to a fight, and began to walk slowly towards him until he was five feet away. Harrold asked, " What do you want?" and appellant reached into his pocket with his right hand, pulled out something that looked like a switchblade and said, " I want your fucking money." He repeated, " Give me your fucking money." Appellant fumbled with the button on the knife, which was chrome-colored and about four inches long. The blade was not extended.
Harrold was using crutches. He dropped a crutch and hopped on one leg, using the other crutch like a baseball bat to keep appellant away from his sister. By then appellant was approximately two to three feet away from them. He did not slur his words or have difficulty walking.
Darla saw the events unfold through her rearview mirror as she was driving away. She turned the car around, sped up the driveway and slammed on her brakes. Appellant jumped back and walked quickly away. Darla called the police on her cell phone and followed appellant in her car. She watched him take off the black jacket and walk to a bus stop. He sat down on a bench and threw his beer into a trashcan.
The police arrived and saw appellant sitting on the bench, with his jacket and several photo albums at his side. Appellant's mother drove by and approached him. He became agitated and kept telling her to go home. The officers gave her the photo albums and appellant's jacket. They searched appellant and the surrounding area for a knife, but did not find one.
Appellant's mother testified that he had been getting psychiatric treatment and had been prescribed medication. They had attended family therapy together, but stopped when it became too expensive.
DISCUSSION
Attempted Robbery
Appellant argues that his conviction must be reversed because the jury may have rendered its verdict based on an incorrect theory of law. He acknowledges that the jury was instructed that it must find that he harbored the specific intent to permanently deprive Harrold of his property. However, he claims the jury was not informed that it must also find that he had the specific intent to use force or fear in the commission of the attempted robbery. He also asserts that the prosecutor confused the jury by omitting this element of the offense and the error was compounded by the court's failure to give a clarifying instruction.
The offense of robbery consists of the felonious taking of personal property in the possession of another, from his person or immediate presence, by force or fear. (§ 211; Miller v. Superior Court (2004) 115 Cal.App.4th 216, 221.) It requires the specific intent to permanently deprive the victim of his or her property. (People v. Huggins(2006) 38 Cal.4th 175, 216.) Attempt requires a specific intent to commit the crime and a direct but ineffectual act done towards its commission. (§ 21a; People v. Bonner (2000) 80 Cal.App.4th 759, 764; People v. Dillon (1983) 34 Cal.3d 441, 452.) To convict a defendant of attempted robbery, the jury must find: 1) the defendant specifically intended to permanently deprive the victim of his property; and 2) the defendant specifically intended to use force or fear in the commission of the offense.
Appellant contends that there was no evidence that he possessed the specific intent necessary for attempted robbery. At trial, he maintained that he merely appeared on the street and responded to Harrold's question, " What do you want?" As such, there was no showing that he intended to permanently deprive Harrold of his property or that he intended to accomplish the crime by the use force or fear. Moreover, appellant claims, the attempt was stopped at its inception when Darla drove up in her car. Given that the jury did not make a true finding that he possessed a knife, there was no " direct but ineffectual act done towards the commission of the crime." Appellant asserts that the offense was, at most, an attempted theft. We agree.
" Theft is a lesser included offense of robbery, which includes the additional element of force or fear." (People v. Webster (1991) 54 Cal.3d 411, 443.) Failure to distinguish between the completed crime of robbery and an attempt erases the distinction between attempted theft and attempted robbery. If the jury failed to find the intent to use force or fear, it may have unwittingly elevated appellant's crime to attempted robbery.
Prosecutor's Closing Argument
During closing argument, the prosecutor affirmatively stated that the jury need not find that appellant intended to use force or fear. She argued that the evidence showed that appellant " attempted to take property from Ben Harrold in the [sic] immediate presence by the application of force or fear. [¶] And the intent issue is not that he intended to cause fear, that he intended to harm him, that he intended to use the knife. The intent is that he intended to permanently deprive Ben Harrold of property, and he was interrupted."
Later in her closing, the prosecutor again misstated the law, by omitting an element of the offense as well as giving conflicting descriptions of intent. She argued, " . . . you have the definition of a robbery. It's taking personal property in the possession of another against the will from that person or immediate presence of that person accomplished by a means of force or fear, and the specific intent is to permanently deprive. [¶] So, you see, it's not the specific intent to take the property [temporarily]. . . ."
The prosecutor created further confusion by paraphrasing Harrold's testimony to establish the element of fear. She told the jury, " . . . if you heard Ben Harrold's testimony, he was starting to say he wasn't afraid. Well, [then] he admitted he was afraid . . . ."
It is improper for the prosecutor to misstate the law. (People v. Bell(1989) 49 Cal.3d 502, 538.) In facts similar to ours, a prosecutor misstated the definition of robbery in his closing argument by omitting the element of force or fear. (People v. Hill (1998) 17 Cal.4th 800.) He told the jury that " 'pretend[ing] to sell [someone] something in order to get money'" is a robbery. (Id. at p. 830.) The Supreme Court held that, although the mischaracterization of the law was " brief and tangential" to the argument, it undermined the defense and contributed to the overall unfairness of the trial. (Id.at p. 831.)
Specific Intent to Use Force or Fear
The jury was instructed with CALJIC No. 9.40, which provides in part that commission of a robbery requires proof of the following elements: " 1. A person had possession of property of some value however slight; [¶] 2. The property was taken from that person or from his or her immediate presence; [¶] 3. The property was taken against the will of that person; [¶] 4. The taking was accomplished either by force or fear;[2] and [¶] 5. The property was taken with the specific intent permanently to deprive that person of the property." (Italics added.)
The court instructed the jury that the crime of attempt requires " a specific intent to commit a crime, and a direct but ineffectual act done toward its commission" CALJIC No. 6.00)[3] and also informed them that voluntary intoxication can negate the " specific intent to permanently deprive a person of personal property." (CALJIC No. 4.21).[4]
Although the jury was correctly instructed that it must find the specific intent to permanently deprive, the instructions did not establish whether the " specific intent" referred to the use of force or fear or the deprivation of personal property. Nor did the instructions convey the distinction between an attempted robbery and the completed crime.
The People rely on People v. Plager (1987) 196 Cal.App.3d 1537, to argue that the intent for attempted robbery is solely the intent to permanently deprive. In Plager, the only issue before the court was the defendant's identity. The evidence of intent to use force or fear was overwhelming: the suspect approached the victim from behind, pulled back her hair and she began to scream. He put a knife to her throat, another hand over her mouth and demanded her money. The suspect fled when he heard a door opening nearby.
The Plager court acknowledged that the defense conceded that an attempted robbery had occurred. (People v. Plager, supra, 196 Cal.App.3d at p. 1548.) The court concluded that " the specific intent to commit an attempted robbery logically must be the same specific intent necessary for the commission of the robbery itself, i.e., the specific intent to permanently deprive the victim of his property." (Ibid.) Plager is factually distinguishable. There, the evidence of specific intent to use force or fear was compelling. The same is not true of the case before us.
According to the Harrold's testimony, appellant, who was standing several feet away, retrieved from his pocket something that looked like a switchblade. He fumbled with it but was unable to open it. Given that the jury rejected the knife use allegation, we are left with appellant raising his arms overhead and demanding money. This is a far cry from the Plager defendant who wielded a knife and held it to the victim's throat. We can discern from the record no evidence to suggest that appellant intended to use force or fear.
Legally Incorrect Theory
" Trial courts have the duty to screen out invalid theories of conviction, either by appropriate instruction or by not representing them to the jury in the first place." (People v. Guiton (1993) 4 Cal.4th 1116, 1131.) " '" [W]hen the prosecution presents its case to the jury on alternate theories, some of which are legally correct and others legally incorrect, and the reviewing court cannot determine from the record on which theory the ensuing general verdict of guilt rested, the conviction cannot stand." '" (People v. Morales (2001) 25 Cal.4th 34, 43, quoting People v. Green (1980) 27 Cal.3d 1, 69.)[5]
There is a distinction between a mistake of law, which generally requires reversal, and a mistake concerning the weight of the evidence, which does not require reversal when another valid basis for the conviction exists. (People v. Perez (2005) 35 Cal.4th 1219, 1233; People v. Guiton, supra, 4 Cal.4th at p. 1125 [factually inadequate theory].) The rationale is that " '[j]urors are not generally equipped to determine whether a particular theory of conviction submitted to them is contrary to law . . . . Quite the opposite is true, however, when they have been left the option of relying upon a factually inadequate theory, since jurors are well equipped to analyze the evidence [citation].'" (Ibid., citing Griffin v. United States (1991)502 U.S. 46, 59.)
In Green, in the course of an alleged kidnap, the victim had been moved three separate times. Two of the " asportations" were legally insufficient to support a verdict of guilt. The record contained evidence that could have led the jury to base its verdict on either the legally sufficient or legally insufficient portion of the asportation. The prosecutor's argument actively urged the jury to rely on legally insufficient grounds and the instructions did not clarify any confusion. The Supreme Court concluded that it was impossible to determine from the record which theory the jury adopted, and reversed the kidnapping conviction. (People v. Green, supra, 27 Cal.3d at p. 71.)
Here we cannot determine whether the jury convicted appellant based on the legally sufficient theory that he had committed all the elements of the crime, or convicted him without a finding of the intent to use force or fear. In light of the jury instructions, the prosecutor's closing argument and the lack of a clarifying instruction, the jury may have relied on a legally incorrect theory to convict appellant of attempted robbery.
The judgment is reversed and the matter remanded for further proceedings.
NOT TO BE PUBLISHED.
COFFEE, J.
We concur:
GILBERT, P.J.
PERREN, J.
Glen Reiser, Judge
______________________________
Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Ana R. Duarte, Linda C. Johnson, Supervising Deputy Attorneys General, for Plaintiff and Respondent.
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[1] All further statutory references are to the Penal Code.
[2] " The fear mentioned in Section 211 may be either: [¶] 1. The fear of an unlawful injury to the person or property of the person robbed, or of any relative of his or member of his family; or, [¶] 2. The fear of an immediate and unlawful injury to the person or property of anyone in the company of the person robbed at the time of the robbery." (§ 212.)
[3] CALJIC No. 6.00 provides in part that " An attempt to commit a crime consists of two elements, namely, a specific intent to commit the crime, and a direct but ineffectual act done toward its commission. [¶] . . . [A]cts of a person who intends to commit a crime will constitute an attempt where those acts clearly indicate a certain, unambiguous intent to commit that specific crime. These acts must be an immediate step in the present execution of the criminal design, the progress of which would be completed unless interrupted by some circumstance not intended in the original design." (Italics added.)
[4] CALJIC No. 4.21 provides that " In the crime of which the defendant is accused, a necessary element is the existence in the mind of the defendant of the specific intent to permanently deprive a person of personal property. [¶] If the evidence shows that the defendant was intoxicated at the time of the alleged crime, you should consider that fact in deciding whether defendant had the required specific intent. [¶] If from all the evidence you have a reasonable doubt whether the defendant formed that specific intent, you must find that he did not have such specific intent." (Italics added.)
[5] People v. Green, supra, 27 Cal.3d 1 was overruled on other grounds in People v. Hall (1986) 41 Cal.3d 826, 834, footnote 3, and People v. Martinez (1999) 20 Cal.4th 225, 239.
