People v. Garcia

• Decision Date: 28 May 1996
• Docket Number: Nos. B091153,B091154,s. B091153
• Citation: 45 Cal.App.4th 1242,53 Cal.Rptr.2d 256
• Court: California Court of Appeals
• Parties: , 96 Cal. Daily Op. Serv. 3838 The PEOPLE, Plaintiff and Respondent, v. Edward GARCIA, Defendant and Appellant. The PEOPLE, Plaintiff and Appellant, v. Edward GARCIA, Defendant and Respondent.

Page 256

53 Cal.Rptr.2d 256

45 Cal.App.4th 1242, 96 Cal. Daily Op. Serv. 3838

The PEOPLE, Plaintiff and Respondent, v. Edward GARCIA, Defendant and Appellant.

The PEOPLE, Plaintiff and Appellant, v. Edward GARCIA, Defendant and Respondent.

Nos. B091153, B091154.

Court of Appeal, Second District, Division 7, California.

May 28, 1996.

Robert Derham, under appointment by the Court of Appeal, San Francisco, for Appellant and Respondent Garcia.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Sanjay T. Kumar, Supervising Deputy Attorney General, Sharon Wooden-Richard, and Lisa J. Brault, Deputy Attorneys General, for Respondent in No. B091153.

Gil Garcetti, District Attorney of Los Angeles County, Brent Riggs, Pasadena, and Diana L. Summerhayes, Los Angeles, for Appellant in No. B091154.

JOHNSON, Associate Justice.

A jury convicted defendant of second degree robbery and the unlawful taking of a vehicle. Defendant appeals his robbery conviction and the finding he previously had been convicted of other felonies. Both defendant and the People appeal the sentence claiming the trial court misapplied the "three strikes" law. We find no error in the robbery conviction. As to the sentencing, we do not reach the "three strikes" issues because the trial court committed reversible error in failing to obtain valid waivers of the defendant's constitutional rights before accepting his admissions of three prior convictions. For these reasons, we affirm the convictions and reverse the sentence, remanding the cause for a trial on the prior convictions and resentencing.

FACTS AND PROCEEDINGS BELOW

Defendant entered a market and approached one of the cashiers as she stood in front of an open cash register. Defendant lightly pushed his left shoulder against the cashier's right shoulder, "like a tap." Feeling this push or "tap" on her shoulder, the cashier moved away from the cash register because she was afraid defendant might be armed. The defendant scooped up stacks of bills from the register and escaped.

Several weeks after the market robbery, defendant was observed driving a stolen car and arrested. The car attracted the arresting officer's attention because there was no key in the ignition and the steering column assembly was missing.

The People charged defendant with robbery, grand theft of a vehicle and the unlawful taking of a vehicle. The People alleged under Penal Code sections 667, subdivision (a)(1) and 667.5, subdivision (b) ¹ defendant had served two prior prison terms for assault with a deadly weapon and possession of drugs or alcohol in jail. In addition, the People alleged under the "three strikes" law (§ 667, subd. (b)-(i)) defendant had previously been convicted of two serious felonies: assault with a deadly weapon and robbery. A jury convicted defendant of second degree robbery and the unlawful taking of a vehicle. Following these verdicts, defendant admitted the prior felony convictions.

The trial court sentenced defendant under the "three strikes" law to a term of 25 years to life on the robbery conviction. (§ 667, subd. (e)(2)(A).) As to the conviction for unlawful taking of a vehicle, the trial court treated this "wobbler" as a felony but declined to sentence defendant under the "three strikes" law. Instead, the court imposed the upper term of three years to run concurrently with the robbery sentence. The court imposed no sentence enhancements.

DISCUSSION

I. DEFENDANT WAS NOT ENTITLED TO AN INSTRUCTION ON THE LESSER INCLUDED OFFENSE OF THEFT.

Defendant contests his robbery conviction on the ground the trial court had a duty to instruct sua sponte on the lesser included offense of theft because the evidence was sufficient to justify a conviction on the lesser offense. In People v. Wickersham (1982) 32 Cal.3d 307, 323-324, 185 Cal.Rptr. 436, 650 P.2d 311, our Supreme Court discussed a trial court's duty to instruct on lesser included offenses. "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. The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case. 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, but not when there is no evidence that the offense was less than that charged." (Internal citations and quotation marks omitted.) Thus, whether the trial court erred in failing to give an instruction on the lesser included offense turns on whether there was some evidentiary basis on which the jury could have found the offense to be less than robbery.

The evidence was defendant approached the cashier while the register drawer was open and gave her a slight push, "like a tap," on her shoulder with his shoulder. Fearful defendant might be armed, the cashier moved away. Defendant then reached into the open register, grabbed the money and escaped. The cashier was not injured.

Defendant concedes he touched the cashier in the course of taking the money. He argues, however, the force required for robbery is more than an incidental touching. A pickpocket touches the victim in extracting a wallet from his pocket, but this does not make the pickpocket a robber. The force required for robbery is more than "just the quantum of force which is necessary to accomplish the mere seizing of the property." (People v. Morales (1975) 49 Cal.App.3d 134, 139, 122 Cal.Rptr. 157.) In the present case, however, the touching was more than incidental and was not merely the force necessary to seize the money. The defendant did not simply brush against the cashier as he grabbed for the money. He intentionally pushed against her to move her out of the way so he could reach into the register. In terms of Morales, pushing the cashier went beyond the "quantum of force which [was] necessary" to grab the money out of the cash register. We agree defendant appears to have been rather polite in his use of force, giving the cashier a mere "tap." Nevertheless, for purposes of the crime of robbery, the degree of force is immaterial. (People v. Jones (1992) 2 Cal.App.4th 867, 871, 3 Cal.Rptr.2d 602.)

Finally, this is not a case like Morales, supra, in which there was a factual question whether the defendant did nor did not use force against the victim, thus requiring a theft instruction. Here defendant was either guilty of robbery or not guilty of any crime.

II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FAILING TO OBTAIN VALID WAIVERS OF THE DEFENDANT'S CONSTITUTIONAL RIGHTS BEFORE ACCEPTING HIS ADMISSIONS OF THREE PRIOR FELONIES.

Defendant contends his admissions of prior felony convictions were invalid because he was not advised of his right to confront witnesses and his privilege against self-incrimination. Furthermore, because his entire sentence was predicated on proof of those priors, his sentence must be reversed. We agree.

Following the guilty verdicts on the current offenses, the trial judge discussed the issue of the priors with the People and defendant. In the course of this discussion, the judge stated he had presided over the case in which defendant entered a plea of guilty on the charge of assault with a deadly weapon and in that proceeding defendant had admitted the prior robbery conviction. After conferring with his counsel, defendant affirmed his desire for a jury trial on the priors. The matter was continued to the afternoon session.

When court reconvened in the afternoon the trial judge advised the defendant "You're entitled to have the same jury that tried the case try the truth of these priors.... I have told you you can waive that right to a jury trial and have the court make that determination, or simply admit that the priors are true. How do you wish to proceed?" Counsel for defendant responded, "After discussing the matter with my client I believe he is willing to admit that these prior convictions are indeed his." The judge then asked the defendant: "So you waive your right to a jury trial on this issue?" The defendant responded, "Yes." The defendant then admitted he had previously been convicted of robbery, assault with a deadly weapon and possession of drugs or alcohol in jail. The trial judge then made a finding "the defendant has knowingly, intelligently, waived his right to a jury trial, and has freely and voluntarily admitted the priors alleged, and the court finds the priors to be true." The judge went on to state: "The court also takes judicial notice of the court's own file in which a plea was taken to the [assault], and at that time the robbery prior was specifically admitted to be true."

Our decision in People v. Howard (1994) 25 Cal.App.4th 1660, 31 Cal.Rptr.2d 103 is dispositive here. In Howard, as in the present case, the trial court took the defendant's admission of a prior felony conviction without advising the defendant of his constitutional...