People v. Green, B189051 (Cal. App. 8/24/2007)
| Decision Date | 24 August 2007 |
| Docket Number | B189051 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. JEREMIAH MARKEITH GREEN, Defendant and Appellant. |
Appeal from a judgment of the Superior Court of Los Angeles County, No. YA062563, Mark S. Arnold, Judge. Affirmed with modifications.
Heather J. Manolakas, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters and Tasha G. Timbadia, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant, Jeremiah Markeith Green, appeals from his convictions for two counts of second degree robbery and a finding he was previously convicted of serious felony. (Pen. Code1, § 211, 667, subd. (a), 667, subds. (b)-(i), 1170.12.) Defendant contends: there was no substantial evidence he committed a robbery as charged in count 1; the jury should have been instructed as to grand theft from the person as to count 1; he was entitled to a jury trial on the aggravating circumstances utilized to impose the upper term as to count 1; the abstract of judgment must be modified and the parole restitution fine must be reduced. The Attorney General argues that certain fines and penalties should be imposed. We affirm with modifications.
Defendant argues there is no substantial evidence force or fear was present when the bag of money was taken from Jackie McNeely as charged in count 1. The Supreme Court has explained the limited scope of our review thusly: ` (People v. Rodriguez (1999) 20 Cal.4th 1, 11; see People v. Bean (1988) 46 Cal.3d 919, 932.) The foregoing is the controlling rule of law in connection with defendant's sufficiency of the evidence contention.
Ms. McNeely described the incident thusly, "As I was putting [the bag of money] under my left arm to go into the bank, it was snatched from under." Later she described co-defendant Quennel Hill's conduct: At another point, Ms. McNeely testified the bag was under her left arm and Mr. Hill was running "full tilt" away from her. When asked whether she was afraid "at the time" Mr. Hill took the bag of money, Ms. McNeely testified, Ms. McNeely began to chase Mr. Hill for 30 to 40 feet. Ms. McNeely described why she stopped running, "I stopped chasing him, and I just — I just was in total shock that it had happened." The grainy photograph of the incident, exhibit No. 9, identified by Ms. McNeely, which we have added to the record, shows Mr. Hill in an aggressive stance at the instance of the taking. Nidia Lainez saw Mr. Hill run through the parking lot with a bag in his hand. Ms. Lainez saw Mr. Hill get into a car driven by defendant. Ms. Lainez gave the police a part of the car's license plate number. The car was later determined to be registered to defendant.
No doubt, a logical argument could have been made as to absence of force in the trial context. But on appeal our role is limited to a review for substantial evidence. The jury reasonably could have concluded the force used to "snatch[]" the purse from Ms. McNeely's possession while Mr. Hill was running "full tilt" was beyond that necessary to secure possession of the bag of money. (People v. Church (1897) 116 Cal. 300, 302; People v. Morales (1975) 49 Cal.App.3d 134, 139.) Further, the photograph of the incident could have been relied upon by the jury in finding force was used.
In any event, the crime of robbery is committed when either "force or fear" is present. (People v. Cooper (1991) 53 Cal.3d 1158, 1165, fn. 8.) There is no merit to defendant's suggestion that fear was not used on the forceful taking of the bag of money. Ms. McNeely testified she was afraid "at the time" the bag was seized. Ms. McNeely's state of fear was such that she described herself as being in "total shock" after the incident as she tried to chase defendant. This constitutes substantial evidence of the use of fear to accomplish the taking of the bag of money. (People v. Renteria (1964) 61 Cal.2d 497, 499; People v. Flynn (2000) 77 Cal.App.4th 766, 771; People v. Prieto (1993) 15 Cal.App.4th 210, 215; People v. Brew (1991) 2 Cal.App.4th 99, 104; see People v. Davison (1995) 32 Cal.App.4th 206, 217.) Even if there was no fear present during the taking phase of the incident, it was indisputably present during the asportation of the bag of money. The presence of fear and shock during the asportation phase of the incident, as Ms. McNeely gave chase, was sufficient to satisfy the fear element of a robbery. (People v. Cooper, supra, 53 Cal.3d at p. 1165, fn. 8; People v. Morales (1975) 49 Cal.App.3d 134, 143 [].)
As to count 1, defendant argues the jury should have been instructed as to the lesser included offense of grand theft from the person. (§ 487, subd. (c).) There is no merit to defendant's instructional error contention. The evidence of fear was uncontroverted. Ms. McNeely testified she was afraid when the bag of money was snatched and in a state of shock as she unsuccessfully attempted to chase Mr. Hill. Defendant presented no evidence. There was no duty to give a grand theft from the person instruction if there was no substantial evidence the included offense was committed. (People v. Breverman (1998) 19 Cal.4th 142, 154-155; People v. Barton (1995) 12 Cal.4th 186, 196, fn. 5.) The evidence of Ms. McNeely's entirely understandable shock and fear was not in dispute; hence, the only larceny related crime defendant committed was robbery.
Even if the trial court should have given grand theft instructions, any error was harmless. Failing to give lesser included offense instructions in a noncapital case is subject to California Constitution article VI, section 13 review for prejudice within the meaning of People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Lasko (2000) 23 Cal.4th 101, 111; People v. Breverman, supra, 19 Cal.4th at p. 172.) Any error was harmless. There was no evidence Ms. McNeely was not in fear. Her uncontroverted testimony was that she was fearful and in shock. Thus, there was no reasonable probability of a more favorable verdict had grand theft instructions been read to the jury.
Defendant argues he was entitled to a jury trial on the issue of the existence of aggravating factors. In the recent case of People v. Black (July 19, 2007, S126182) ___ Cal.4th ___, ___, the California Supreme Court examined the imposition of an upper term under the state determinate sentencing law in light of Cunningham v. California (2007) ___ U.S. ___ [127 S.Ct. 856, 863-864]. Our Supreme Court held: "[A]s long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi [v. New Jersey (2000) 530 U.S. 466] and its progeny, any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant's right to jury trial." (People v. Black, supra, ___ Cal.4th at p. ___, original italics.) The Black court further held: "It follows that imposition of the upper term does not infringe upon the defendant's constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant's record of prior convictions." (People v. Black, supra, ___ Cal.4th. at p. ___.)
In this case, defendant admitted his prior serious felony conviction for robbery. In addition, the trial court relied upon defendant's prior convictions in imposing the upper term as to count...
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