People v. Thomas
| Decision Date | 01 November 2007 |
| Docket Number | No. B169300.,B169300. |
| Citation | 156 Cal.App.4th 988,67 Cal.Rptr.3d 804 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Cora Lee THOMAS, Defendant and Appellant. |
Diana M. Teran, under appointment by the Court of Appeal, Los Angeles, for Defendant and Appellant.
Bill Lockyer and Edmund G. Brown Jr., Attorneys General, Robert R. Anderson and Dane R. Gillette, Chief Assistant Attorneys General; Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters, Marc J. Nolan, William H. Davis, Jr. and Kristofer Jorstad, Deputy Attorneys General for Plaintiff and Respondent.
In the published portion of this opinion on remand, we conclude, as we did in our original opinion, that a purse snatch satisfies the force or fear element of robbery where the thief wrests the purse from the individual who has it on his or her person, using the amount of force necessary to get it away. In the nonpublished portion of the opinion we again conclude that the trial court adequately instructed the jury, that any violation of defendant's Fourth Amendment rights incident to a search of her "bulk property" was harmless.
In the nonpublished part of our original opinion, we had concluded that there was no sentencing error under Blakely v. Washington (2004) 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (Blakely), in light of the subsequent decision of the California Supreme Court in People v. Black (2005) 35 Cal.4th 1238, 29 Cal.Rptr.3d 740, 113 P.3d 534 (Black I), which held that upper term sentencing under the California determinate sentencing law was consistent with Blakely and other high court decisions. Subsequently, the United States Supreme Court granted certiorari to review our decision. In Cunningham v. California (2007) 549 U.S. ___, 127 S.Ct. 856, 871, 166 L.Ed.2d 856 (Cunningham), the court rejected the rationale of Black I and held that the California statute was not consistent with federal constitutional requirements insofar as it applied to imposition of the upper term based on factors other than recidivism. The instant case was remanded to this court for reconsideration in light of Cunningham. While the case was pending on remand, the California Supreme Court decided People v. Black (2007) 41 Cal.4th 799, 62 Cal.Rptr.3d 569, 161 P.3d 1130 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825, 62 Cal. Rptr.3d 588, 161 P.3d 1146 (Sandoval). We invited the parties to present letter briefs on the application of these cases, and they have done so. We have reviewed their responses, and, following the decision in Black II, conclude that the sentencing in this case does not offend constitutional principles. We shall affirm the judgment of the trial court.1
On a Saturday afternoon in June 2002, defendant Cora Lee Thomas and a companion engaged in a robbery crime spree in the Lancaster area of Los Angeles County. There were three separate episodes. In each, her companion (who was not tried with he]* and about whom little identifying information is supplied in this record) accosted a woman in the parking area of a supermarket or large shopping store or mall, and, using force, took or tried to take her purse. Defendant drove a car used to transport the companion to the location of the crimes, then, when he fled the scene, she drove it to a location at which he jumped into the car, usually headfirst into an open window, and she drove off.
Once defendant was apprehended, four counts were charged against her: one for attempted robbery, two for robbery, and one for receiving stolen property. She also was charged with two prior serious felonies and a prior prison term. There is no factual dispute raised as to the attempted robbery count; a suppression issue is raised as to the third count; and the fourth count, for receiving, eventually was dismissed., We shall reserve our factual summary as to the third count to our discussion of the search and seizure issue. It is only necessary at this point to set out the factual information concerning the second count, for a completed robbery.
On appeal from a criminal conviction we "review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value— such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578, 162 Cal.Rptr. 431, 606 P.2d 738.) In doing so, "we view the evidence in the light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Lewis (1990) 50 Cal.3d 262, 277, 266 Cal.Rptr. 834, 786 P.2d 892.) The following summary is based on this standard of review.
On June 29, 2002, between 2:05 and 2:30 in the afternoon, Carol Ippolito was with her husband and daughter in the parking lot of an Albertson's store in Lancaster. She was loading groceries into the family truck. Her purse hung down to her waistline and was secured by a strap around her left shoulder. She The hot object was a knife. She tried to hang onto her purse. It started going off her arm, and she held on to it, but the strap, then broken, slipped through her hands— although she tried to do so with both hands. Prior to this incident the strap was in good condition, not broken. It was connected to the purse with loops and sewn leather, which also were in good condition. She got a good look at the person who took her purse, and described him. She saw his hands, which were gripping the purse, and she felt it pulling away. The entire episode took only seconds, and after getting the purse, the man ran to a white Nissan, dove into the back open window with his feet remaining outside the car, and the car sped away. Mrs. Ippolito got the license plate numbers with the assistance of a man who drove up and wrote them down as she called them off. Her credit card, which was in the purse, was used twice within the next 15 minutes; some $150 was charged on the card.
The other person went into the store. Within minutes after that, law enforcement officers arrived. A deputy sheriff spoke to Mrs. Ippolito, who was distraught and visibly shaken by the incident. Mrs. Ippolito related that she had just finished shopping and was outside her vehicle when she felt something cold touch the inside of her arm; she looked down and saw a knife, or stainless steel knife blade. Immediately after that she felt tension on her purse, and the knife cut through the purse strap, which was pulled loose. She saw the man run several steps to a waiting vehicle, into which he dove headfirst, and the vehicle drove away.2
On the evening of June 29, the vehicle was observed at Sierra Highway and Avenue J-8. Defendant was the driver. The license plate number matched the one reported by Mrs. Ippolito. The car was pulled over, and some of Mrs. Ippolito's property was found inside.
Defendant was convicted as an aider and abettor and accomplice to the robbery of Mrs. Ippolito, as well as on three other counts. She admitted the prior convictions charged against her. The receiving stolen property count was dismissed on motion of the prosecutor, and at sentencing the court struck one of the two serious felony prior convictions and eventually dismissed a prior prison term enhancement. (Pen.Code, § 667.5, subd. (b); all further code citations are to this code.) Defendant was sentenced on the three counts and two prior serious felonies to an aggregate term of 24 years and 3 months. She filed a timely notice of appeal.
Defendant argues that the evidence is insufficient to support her conviction of robbery of Mrs. Ippolito. Instead, she argues, her crime was grand theft from the person, a violation of section 487, subdivision (c), which is a lesser included offense to robbery. (People v. Ramkeesoon (1985) 39 Cal.3d 346, 351, 216 Cal.Rptr. 455, 702 P.2d 613.) She argues that the facts demonstrate nothing more than a simple purse snatch, and that a snatch of something from the victim's person, without threatening, scaring, harming, pushing, or otherwise confronting the victim physically, is grand theft from the person, not robbery.
There may be some generalized impression abroad that a purse snatch—grabbing a purse (or similar object) from a person— is grand theft and nothing more. Thus, it has been said that the purpose of section 487 is to "guard against `the purse snatcher.'" (People v. Huggins (1997) 51 Cal. App.4th 1654, 1658, 60 Cal.Rptr.2d 177.)3 And a 1972 American Law Reports annotation on the subject concludes that most of the state courts that have considered the issue have said that purse snatching is not robbery, although the weight of authority is otherwise where the force used is sufficient. (Annot., Purse Snatching as Robbery or Theft (1972) 42 A.L.R.3d 1381, 1383, 1385, in which few cases are cited, none of them from California.)
We have found no California case that holds that purse snatch cannot qualify as a robbery. As we shall explain, whether it does or not depends on the force used.4
The robbery statute, section 211, describes robbery as "the felonious 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." This is the original Field Code statute, enacted in 1872, and never changed. The law was the same even before then. The original penal law of California, an Act Concerning Crimes and Punishments, describes robbery as "the felonious and violent taking of money,...
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