People v. Randle

• Decision Date: 12 August 1992
• Docket Number: No. B057217,B057217
• Citation: 8 Cal.App.4th 1023,10 Cal.Rptr.2d 804
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Felix T. RANDLE, Defendant and Appellant.

Page 804

10 Cal.Rptr.2d 804

8 Cal.App.4th 1023

PEOPLE of the State of California, Plaintiff and Respondent, v. Felix T. RANDLE, Defendant and Appellant.

No. B057217.

Court of Appeal, Second District, Division 2, California.

Aug. 12, 1992.

Review Denied Nov. 19, 1992.

Lawrence C. Hersh, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Carol Wendelin Pollack, Acting Sr. Asst. Atty. Gen., John R. Gorey, Supervising Deputy Atty. Gen., Ernest Martinez and Kenneth C. Byrne, Deputies Atty. Gen., for plaintiff and respondent.

RUBIN, Associate Justice (Assigned) ^*.

Appellant Felix T. Randle ("appellant") appeals from a judgment entered following a jury trial in which he was convicted of second-degree robbery in violation of Penal Code section 211. He also admitted to the court that he had suffered a prior Penal Code section 667(a) conviction of a serious felony (robbery). Appellant was sentenced to state prison for the upper term of five years for the robbery, and the court imposed an additional five year enhancement for the prior conviction.

Contentions on Appeal

Appellant contends as follows on this appeal: (1) The trial court erred in failing to instruct on two lesser included or related offenses. (2) His admission of the prior conviction was constitutionally defective. (3) The modified version of CALJIC 2.06 (efforts to suppress evidence) which the trial court gave was an improper pinpoint instruction. (4) Appellant's objection to certain testimony should have been sustained because it was hearsay.

Statement of Facts

Viewed in accordance with the usual rules of appellate review (People v. Barnes (1986) 42 Cal.3d 284, 303, 228 Cal.Rptr. 228, 721 P.2d 110), the evidence established that on March 3, 1990, at approximately 2:30 a.m., James Salz ("Salz") was driving his car in the 9500 block of Alcott Street in the County of Los Angeles. Salz parked, got out of his car, and was approached by a white sedan with two occupants. Appellant was the driver. The passenger asked directions; a conversation ensued; Salz was asked if he could spare two or three dollars; he obliged; and then the passenger got out of the car.

Salz backed away, but the passenger rushed him and spun him around and up against the white sedan. Salz was pushed in a position where he was facing the sedan, with the passenger behind him and Salz' head in the open window looking in the direction of the driver. Appellant, the driver, told Salz that all they wanted was money and threatened him with a gun. (Salz did not testify that he saw a gun, nor was one found.) Initially, appellant remained in the car, while Salz struggled with the passenger. Thereafter, appellant got out of the car, and hit Salz in the face, causing him to fall and to drop his car keys. While on the ground, Salz was told not to get up or they would kill him. He was also told not to look up. Salz next heard both the white sedan and his own car being driven away. He then ran to a friend's residence and called 911.

Some 30 minutes later, the police told Salz they had found his car and had a suspect they wanted him to identify. After taking Salz to the car's location, the police admonished him not to make an identification unless he was positive. Salz positively identified appellant as the driver of the white sedan. Appellant was still wearing the same long-sleeved white dress shirt he had on earlier.

Approximately a month later, a six-man line-up was conducted. Although Salz was unable to identify positively appellant at the line-up, he narrowed his choices to two persons. Salz testified that appellant was one of the two individuals, but he could not differentiate between them because of their similar hairstyles. He also testified that appellant's hairstyle had changed from the day of the incident to the day of the line-up.

At the preliminary hearing, Salz was not one hundred percent certain that appellant was the person who had robbed him of his car but stated that appellant reminded him of the person. At trial, Salz positively identified appellant as the person who assaulted and robbed him.

Discussion

A. The Trial Court's Refusal to Instruct on Lesser Included or Related Offenses.

The sole count contained in the information was robbery. At trial, appellant asked the court to give CALJIC 14.35 (grand theft of an automobile; Pen.Code, § 487.3) and CALJIC 14.36 (unlawful taking of a vehicle; Veh.Code, § 10851). The trial court refused to give either instruction, for reasons that apparently were discussed in an unreported conference with counsel.

The parties do not seriously disagree on the general legal principles governing what constitute lesser included or related offenses. Thus, the Attorney General concedes that as a general rule grand theft is a lesser included offense to robbery. "Theft is a lesser included offense of robbery without the additional element of taking by force or fear." (People v. Brito (1991) 232 Cal.App.3d 316, 325, 283 Cal.Rptr. 441, quoting People v. Ramkeesoon (1985) 39 Cal.3d 346, 351, 216 Cal.Rptr. 455, 702 P.2d 613.)

Similarly, since the information did not specifically allege that what was taken in the robbery was a vehicle, appellant concedes that the unlawful taking of a vehicle offense could only be a lesser related not a lesser included charge. Appellant relies on general language in People v. Geiger (1984) 35 Cal.3d 510, 531-532, 199 Cal.Rptr. 45, 674 P.2d 1303 [vandalism as a lesser related offense to burglary] for the proposition that Vehicle Code section 10851 is a lesser related offense. The Attorney General does not seriously quarrel with the notion that under the appropriate circumstances the unlawful taking of an automobile could be a lesser related offense to robbery but contends that under the facts of this case there is no evidence to support the giving of such an instruction.

We begin our discussion with a review of the evidence that conceivably bears on the issue of the lesser offenses. Appellant did not testify. However, the prosecution introduced a statement which appellant made to a police detective who interviewed him after his arrest. The detective testified that appellant told her "that he had been in West Los Angeles that evening with his girlfriend; and that approximately five minutes before the police stopped him and arrested him, he had gotten in an argument with his girlfriend, and she had kicked him out of the car. He said he was stranded and--looked over, and there sitting by the curb was a car with the door open, and the motor running, and the keys in the ignition. And he knew it was wrong to steal the car, but he needed a ride home, so he got into it and was arrested five minutes later." On further questioning appellant stated that he did not know the name of his girlfriend or the street where she had left him. According to the detective, appellant then said, "You have got me on grand theft auto but not a robbery."

In determining whether the above evidence supports the giving of instructions on lesser offenses, we first review the applicable principles of law on the circumstances under which a trial court is obligated to give such instructions. For the most part, the parties are in agreement on the law. A trial court must give requested instructions on lesser offenses whenever there is substantial evidence enough to deserve consideration and which supports a finding that all of the elements of the lesser offense, but not all the elements of the greater offense, were present. (People v. Wickersham (1982) 32 Cal.3d 307, 323-324, 185 Cal.Rptr. 436, 650 P.2d 311; People v. Sedeno (1974) 10 Cal.3d 703, 715-716, 112 Cal.Rptr. 1, 518 P.2d 913, revd. on other grounds, People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12, 160 Cal.Rptr. 84, 603 P.2d 1. See People v. Geiger, supra, 35 Cal.3d 510, 531-532, 199 Cal.Rptr. 45, 674 P.2d 1303 [test for lesser related offenses].) In determining whether there is evidence to support a conviction of the lesser but not the greater offense, the court may not determine the credibility of witnesses. (People v. Wickersham, supra, 32 Cal.3d at p. 324, 185 Cal.Rptr. 436, 650 P.2d 311.) Since the failure to instruct on lesser included offenses may undermine a defendant's right to a fair trial (People v. Ramkeesoon, supra, 39 Cal.3d 346, 351, 216 Cal.Rptr. 455, 702 P.2d 613), trial courts have a sua sponte obligation to instruct on lesser included offenses. (People v. Wickersham, supra, 32 Cal.3d at p. 323, 185 Cal.Rptr. 436, 650 P.2d 311.) ¹

However, in each of the above cited decisions and in the other cases relied upon by appellant, it is the same act which the defendant argued constituted the lesser offense, and which the prosecution argued constituted the greater offense. Here, appellant seeks an instruction on lesser offenses which, if they took place at all, took place wholly separate from the Salz robbery and at a time and place different than the robbery. This difference distinguishes the case at bench from the principal authorities on which appellant relies.

For example, in Wickersham, the only act was the homicide of the defendant's husband. The Supreme Court reversed a murder conviction because testimony that the defendant acted out of fear and/or discharged the gun accidentally required the trial court to instruct sua sponte on manslaughter. (People v. Wickersham, supra, 32 Cal.3d 307, 328, 185 Cal.Rptr. 436, 650 P.2d 311.) In Sedeno, the Supreme Court reversed a murder conviction for failure to instruct on involuntary manslaughter based on defendant's alleged diminished capacity. (People v. Sedeno, supra, 10 Cal.3d 703, 720, 112 Cal.Rptr. 1, 518 P.2d 913.) And in Ramkeesoon, the court reversed a conviction based on a robbery/felony murder theory where defendant testified that he did not form the intent to steal until after the victim had been killed. That...