People v. Morales
| Decision Date | 13 June 1975 |
| Docket Number | Cr. 6491 |
| Citation | 122 Cal.Rptr. 157,49 Cal.App.3d 134 |
| Court | California Court of Appeals |
| Parties | PEOPLE of the State of California, Plaintiff and Respondent, v. Richard Corral MORALES, Defendant and Appellant. |
Defendant was convicted of robbery and first degree murder in connection with a purse-snatching incident. He appeals from the judgment on the verdict rendered in the presence of reversible error in the form of a failure to give a requested jury instruction.
On August 17, 1973, Mrs. Garnet Libby and her mother, Mrs. Minnie Smith, were walking home from the store down a residential street in Anaheim. Defendant passed the two ladies walking in the opposite direction. He then turned and, approaching Mrs. Smith from behind, grabbed her purse and fled down the street. A witness who was standing across the street testified that defendant pushed Mrs. Smith as he seized the purse. Mrs. Smith fell to the ground, suffering a dislocation and fracture of her elbow.
Mrs. Smith was 79 years old. The evidence indicated that before the crime she was in relatively good health and led a very active physical life for someone of her age. After the purse-snatching incident, Mrs. Smith was taken to a hospital where minor surgery was performed on her elbow. She remained in the hospital for three days and then returned home. Both while in the hospital and during the ensuing two weeks at home Mrs. Smith was less active physically than she had been before the surgery. She did not engage in her customary activities but generally stayed in the house and rested in bed.
The elbow appeared to heal rapidly and did not cause Mrs. Smith any great amount of discomfort. Soon after returning home, however, she began to experience a pain in her left side. The pain became progressively worse, and on September 1 she was readmitted to the hospital. The next morning she died suddenly of a pulmonary thromboembolism (a blood clot in the lung). The embolus apparently originated in the Left leg and traveled to the lung. Medical testimony indicated that formation of the clot was caused by the physical inactivity of Mrs. Smith while recuperating from the elbow injury.
Defendant was charged with robbery (Pen.Code, § 211) and first degree felony murder (Pen.Code, § 187). It was also alleged that defendant intentionally inflicted great bodily injury upon the victim in the commission of the robbery (Pen.Code, § 213). The jury returned verdicts of guilty of robbery and murder, but was unable to reach a decision on the allegation of intentional infliction of great bodily injury.
We have determined that the trial court erred in refusing to instruct the jury on a lesser included offense, and that the judgment must therefore be reversed.
The trial court instructed the jury on the elements of robbery and first degree felony murder, but refused defendant's requested instructions on grand theft from the person and second degree felony murder. The failure to give these requested instructions was error because the evidence was such that the jury might have entertained a reasonable doubt as to whether defendant used sufficient force in his snatching of the purse for the theft to constitute robbery.
Although several people saw defendant running from the scene with the purse and could identify him as the thief, only one person actually observed the purse-snatching. This witness, a Mrs. Romero, testified that she saw defendant approach Mrs. Smith from behind and push her with one hand while grabbing the purse with the other. At the time she made this observation Mrs. Romero was standing at a gasoline station across a four lane boulevard from the crime scene. She was conversing with another lady and also keeping an eye on her young child. She was not gazing constantly in the direction of Mrs. Smith, but turned and witnessed the theft only when the lady with whom she was talking suddenly turned. While she was positive that she saw defendant push Mrs. Smith, she could not recall certain details such as which hand he pushed her with. Several discrepancies were established between her testimony at trial and her earlier statements. Also, according to the testimony of Mrs. Romero as well as other witnesses, it appeared that Mrs. Smith fell Backwards; that is, she fell towards the direction from which the push allegedly came. Mrs. Romero testified that Mrs. Smith's body 'kind of like made a spindle turn' and then fell.
Robbery is defined by Penal Code section 211 as the '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.' Where the element of force or fear is absent, a taking from the person is only theft; although by virtue of Penal Code section 487 it constitutes grand theft regardless of the value of the property. 1 We 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. In People v. Church, 116 Cal. 300, 48 P. 125, the court stated: 'Grabbing or snatching property from the hand has often been held to be grand larceny, and not robbery.' (Id., at 303, 48 P. at 126.) In Church the defendant was charged with having grabbed a gold watch and chain from the person of another. Several witnesses testified vaguely to seeing 'some trouble' between defendant and the victim (Id., at 301, 48 P. 125), another that he saw the victim 'start back, and his hat fell off.' (Id., at 302, 48 P. at 126.) The court held that under such evidence 'the jury should not have been deprived of the right to find the defendant guilty of grand larceny, if they so saw fit.' (Id., at 304, 48 P. at 127; see also Anno., Purse Snatching as Robbery or Theft, 42 A.L.R.3d 1381.)
An instruction relating to a lesser included offense is required where the evidence or defense is susceptible of an interpretation, no matter how remote, which if accepted would render the defendant guilty of the lesser included rather than the specifically charged offense.' (People v. Stanton, 274 Cal.App.2d 13, 17, 78 Cal.Rptr. 771, 774.) '. . . a defendant is entitled to instructions on his theory of the case as disclosed by the evidence, no matter how weak.' (People v. Carmen, 36 Cal.2d 768, 773 2, 228 P.2d 281, 284.) We think that the evidence in this case left sufficiently open the question of whether the element of force was present so as to entitle the defendant to have the jury consider the matter. The witness' distance from the event, her preoccupation with other matters, her inability to remember details, and the fact that the victim fell backwards all arguably cast doubt upon the accuracy of her testimony that the defendant deliberately pushed the victim. It is true that the bare fact that Mrs. Smith fell tends to show that she was shoved in some manner. But it is also plausible that she was startled and lost her balance, or that she fell in an attempt to turn and catch a glimpse of the culprit. It is also true that Mrs. Romero was quite positive if not vehement in her assertion that defendant pushed Mrs. Smith. But if the evidence disclosed reasons to doubt this testimony the witness' expression of certainty could hardly empower the court to ignore those reasons and withdraw the evidentiary issue from the jury. Such reasons did exist here. The circumstances surrounding Mrs. Romero's observation, as well as the rapidity of the event, were such as naturally to give rise to some question regarding the reliability of her perception. Also, her testimony was not entirely consistent with the undisputed evidence as to how Mrs. Smith fell. If, as described by Mrs. Romero, the defendant hit Mrs. Smith from behind 'with such a hard force that she fell immediately,' it is unlikely that Mrs. Smith would have fallen backwards toward the defendant. Given such reasons to question Mrs. Romero's version of the event, her adamant insistence on the correctness of her testimony could not defeat defendant's right to argue to the jury that she was mistaken. Such careful scrutiny by us is compelled by the extreme importance of this issue in the context of this case. The alleged use of force by defendant served not merely to raise the theft offense to a robbery; it was also the sole basis for imputing to defendant the malice for first degree murder. 3
The trial court therefore erred in failing to instruct on the lesser included offense of grand theft. Such error deprived the defendant of his constitutional right to have the jury determine every material issue presented by the evidence, and it 'cannot be cured by weighing the evidence and finding it not reasonably probable that a correctly instructed jury would have convicted the defendant of the lesser included offense.' (People v. Sedeno, 10 Cal.3d 703, 720, 112 Cal.Rptr. 1, 12, 518 P.2d 913, 924.) 4
Because there is likely to be a retrial in this matter, it is necessary that we consider what effect a finding that defendant committed only grand theft would have on his culpability for the death of Mrs. Smith. At the instant trial, defense counsel requested that the jury be instructed on second degree felony murder in conjunction with the instruction on grand theft, on the apparent assumption that a killing committed in the perpetration of grand theft from the person would be second degree murder. Appellate counsel has adopted this assumption in his...
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