People v. Jones

• Decision Date: 15 January 1992
• Docket Number: No. B046297,B046297
• Citation: 2 Cal.App.4th 867,3 Cal.Rptr.2d 602
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Marquis La Shoan JONES, Defendant and Appellant. Crim.

Page 602

3 Cal.Rptr.2d 602

2 Cal.App.4th 867

The PEOPLE, Plaintiff and Respondent, v. Marquis La Shoan JONES, Defendant and Appellant.

Crim. No. B046297.

Court of Appeal, Second District, Division 5, California.

Jan. 15, 1992.

Review Denied March 26, 1992.

[2 Cal.App.4th 868] Ralph H. Goldsen, Santa Monica, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Carol Wendelin Pollack, Acting Asst. Atty. Gen., Donald E. de Nicola and Lauren E. Dana, Deputy Attys. Gen., for plaintiff and respondent.

ASHBY, Associate Justice.

By jury trial appellant Marquis La Shoan Jones was convicted of second degree robbery. (Pen.Code, § 211.) By nonjury trial the court also found appellant was previously convicted of a serious felony and served two prior prison terms. (Pen.Code, §§ 667, subd. (a), 667.5, subd. (b).) Appellant was sentenced to ten years in state prison.

This case involves a purse snatch type of robbery. The victim was walking on a sidewalk. She had a shoulder-strap purse. The straps were on her left shoulder and the purse was under her left elbow. She held an umbrella in her right hand.

She saw appellant walking toward her. She moved toward the right so he could pass her. When appellant reached her he stopped. He then grabbed her purse and started running.

In response to the prosecutor's question whether she was injured when appellant grabbed her purse, the victim testified, "Well, not much. Only one of my fingers was a little blood [sic ] and my shoulder a little bit."

The victim and another person chased appellant and summoned police. Appellant, distinctively dressed in a shower cap, was in sight of either the victim, the witness, a police helicopter unit or other police officers during nearly all of the 20 to 30 minutes it took to arrest him. The victim's purse was found in a partially constructed house appellant entered.

Appellant, who represented himself at trial, presented no defense.

Appellant contends (1) the trial court erred in failing to instruct sua sponte on the lesser included offense of grand theft from the person and (2) the trial court had a duty to advise appellant that he had a right to testify. Finding no merit to these contentions we affirm, with correction of a minor clerical error in the abstract of judgment.

LESSER INCLUDED OFFENSE

Robbery is the taking of personal property in the possession of another, from the person or immediate presence, and against the will, accomplished by means of force or fear. (Pen.Code, § 211.) Where the elements of force or fear are absent, a taking from the person is grand theft, a lesser included offense of robbery. (Pen.Code, § 487, subd. 2; People v. Morales (1975) 49 Cal.App.3d 134, 139, 122 Cal.Rptr. 157; People v. Church (1897) 116 Cal. 300, 303, 48 P. 125.)

As appellant concedes, the evidence supports conviction of robbery. The purse was held by straps on the victim's left shoulder, with the purse itself under her left elbow. The purse was grabbed with such force that it injured the victim. Her finger was cut ("a little blood") and her shoulder was injured ("a little bit"). This makes the taking a robbery. In People v. Roberts (1976) 57 Cal.App.3d 782, 785, 129 Cal.Rptr. 529, the robber reached under the victim's left arm, grabbed her handbag and jerked it down, snapping it off at the handle. The court held "[c]ertainly, the evidence that the purse was grabbed with such force that the handle broke supports the jury's implied finding that [the requisite force for robbery] existed." (Id. at p. 787, 129 Cal.Rptr. 529.) In People v. Clayton (1928) 89 Cal.App. 405, 411, 264 P. 1105, the victim carried a strongbox under his arm. The robber knocked the box out of the victim's arm in two attempts. The first time, the box did not fall, the victim caught it with his hand; the second time, the box fell, the robber grabbed it and ran away. The court upheld the robbery conviction, stating, " 'The degree of force used is immaterial. All the force that is required to make the offense a robbery is such force as is actually sufficient to overcome the victim's resistance (citing cases).' " (Id. at p. 411, 264 P. 1105.)

Appellant contends, however, that the evidence also supports a conclusion the crime was theft but not robbery, therefore the court was required to instruct sua sponte on theft as a lesser included offense. An early case concerning the duty of a trial court to instruct on included offenses is People v. Church, supra, 116 Cal. 300, 48 P. 125, where the court held that "where the evidence justifies it," a trial court on its own motion should instruct the jury that larceny is included in the offense of robbery. (Id. at p. 303, 48 P. 125.) The court cautioned, on the other hand, that "[m]any cases of robbery may be disclosed by the evidence where the trial court would be justified in refusing an instruction to the effect that the defendant could be convicted of grand larceny. Such cases would be those where the evidence, without contradiction, indicates the offense to have been accomplished by means of force or fear." (Id.) A more modern statement of the test for instructing on lesser included offenses is found in People v. Lewis (1990) 50 Cal.3d 262, 276, 266 Cal.Rptr. 834, 786 P.2d 892: "The court has a duty to instruct sua sponte on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present, but has no such duty when there is no evidence that the offense was less than that charged." Put another way, there is no obligation to instruct on included offenses unless there is some evidence, not merely minimal or insubstantial evidence but evidence from which a jury could reasonably conclude, that the offense was less than that charged. (People v. Wickersham (1982) 32 Cal.3d 307, 324-325, 185 Cal.Rptr. 436, 650 P.2d 311; see People v. Flannel (1979) 25 Cal.3d 668, 684-685 and fn. 12, 160 Cal.Rptr. 84, 603 P.2d 1.)

In the present case, there was no contradictory evidence concerning the circumstances of the robbery. There was only one testifying witness to those circumstances, the victim. Appellant presented no defense. The victim's uncontradicted testimony showed her finger was bloodied and her shoulder injured by the force exerted by appellant in taking her purse. Although the injuries were minor, the inference that force was used is compelling. The degree of force is immaterial. (People v. Clayton, supra, 89 Cal.App. at p. 411, 264 P. 1105; People v. Lescallett, (1981) 123 Cal.App.3d 487, 491, 176 Cal.Rptr. 687.) There was no contradictory version of the evidence to support instruction on the lesser offense of grand theft from the person.

The record here contrasts with the only two cases cited by appellant where the appellate courts reversed robbery convictions for failure to instruct the jury on theft. In People v. Church, supra, 116 Cal. at pages 301 to 302, 48 P. 125, the victim did not testify. Several eyewitnesses gave ambiguous testimony because none of them saw precisely what happened. They saw "some difficulty" between the defendant and the victim and observed that the defendant made a grab for a gold watch on a chain on the victim's vest. The Supreme Court held it was a close question on that evidence whether force was used in the taking, therefore the jury should have been instructed on theft.

Similarly, in People v. Morales, supra, 49 Cal.App.3d at pages 138-140, 122 Cal.Rptr. 157, the victim did not testify, and there were contradictions in the account given by an eyewitness. The main prosecution witness was across a four-lane boulevard from the crime scene and was partly preoccupied with other matters. Although the eyewitness testified the victim fell down as a direct result of the defendant's pushing her, the court held there was contradictory evidence justifying an inference the victim merely lost her balance because she was startled or when she spun around to catch a glimpse of the robber. (Id. at pp. 139-140, 122 Cal.Rptr. 157.) ¹

Thus, Church and Morales are not like the present case, where there is no contradictory evidence in the record. Of the other cases cited by appellant, none is persuasive that an instruction on theft was required as a matter of law in this case. In People v. Lescallett, supra, 123 Cal.App.3d 487, 176 Cal.Rptr. 687, the discussion on the desirability of instructions was unnecessary because the trial court gave instructions on both robbery and grand theft. Instructions on theft were justified there by the victim's testimony that she held the purse casually in her hand and felt it snatched from her hand. (Id. at pp. 490, 491, 176 Cal.Rptr. 687.) In People v. Roberts, supra, 57 Cal.App.3d 782, 129 Cal.Rptr. 529, the robbery conviction was reversed on other grounds, and the court merely suggested in a footnote that the evidence might possibly justify an instruction at retrial on the lesser included offense of grand theft. (Id. at p. 787, fn. 1, 129 Cal.Rptr. 529.) The Roberts court was not required to decide, as are we, whether the lesser included offense instruction must be given on the specific state of the evidence in the record. Roberts is further distinguishable because the victim there did not claim physical injury, merely that the purse handle snapped off. Finally, reversal in this case is not required by the statement in People v. Morales, supra, 49 Cal.App.3d at page 139, 122 Cal.Rptr. 157, that "[w]e have not discovered any California case which purports to define precisely how much force is required to elevate a taking from the person to the status of a robbery. However, it is established that something more is required than just that quantum of force which is necessary to accomplish the mere seizing of the property.... 'Grabbing or snatching property from the hand has often been held to be grand larceny, and not robbery.' " (Emphasis added.) The Morales court there was discussing the mere...