NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Defendant, Ronnie Lee Moody, was convicted of seven counts arising out of a crime spree during which he stole a car, attempted to rob a tourist, was involved in a hit and run accident, and ultimately resisted arrest. He claims the trial court erred in not instructing the jury on attempted theft as a lesser included offense and with pinpoint instructions on force. Defendant also asserts admission of evidence of injuries to the tourist's husband violated his due process rights, and the sentence for one count of resisting arrest should have been stayed.
The People also appeal, asserting the trial court erred in granting defendant's Romero
Defendant's convictions arose out of a series of crimes on February 7, 2015. Around 10:00 that morning, a man drove his black Mercedes C350 to an ATM in the Mission district of San Francisco. He got out of the car, leaving the keys and his companion inside. After he got cash from the ATM, he noticed a commotion, and saw his companion get out of the car and a man get in and drive away.
Later that day, around 5:30 p.m., police responded to a report of a disturbance at a Safeway on Mission Street. Officers approached defendant, identified by a security guard as the cause of the disturbance. Defendant did not comply with their request to stop, and ran to a black Mercedes and got in. As officers attempted to open the passenger door and break the window, defendant drove backward into another vehicle, then sped away.
Shortly afterwards, defendant "tr[ied] to rip the purse off" a woman who was visiting Chinatown. Defendant, driving a black Mercedes, pulled up along the sidewalk, approached the victim, and asked her for the time. As she looked at her watch, he "immediately encroached upon [her] and went for [her] purse." Defendant "was pulling it and she was pulling it back," while screaming and yelling. The victim testified defendant "grabbed for my purse and was right up . . . against me. And he ended up leading me into [a] little alcove area, which is where we wrestled with my purse a little bit." Afterwards, the victim's "thumb was quite sore from . . . trying to hold onto [her] purse and not allowing him to take it."
The victim's husband yelled "`Get off her,'" and "stepped in" to try to prevent the taking of the purse. He saw defendant's hands on his wife's shoulder and grabbed defendant's shoulders "to pull him off," because he "was trying to protect [his] wife." Defendant lunged at him, and the next thing the victim's husband remembered was being on the ground. He had a lump over his left ear, abrasions on his face and neck, and a lacerated finger. Defendant ran to the black Mercedes, got in the driver's seat, and "tried to speed away."
Around 6:00 p.m., a Bart police officer saw a black Mercedes C35 make a left turn at a red light, speed down Mission Street, and hit a taxi causing a five-vehicle traffic accident. Multiple vehicle occupants were injured. Defendant, who was driving the Mercedes, fled the scene.
About half an hour later, a San Francisco police officer responded to a call indicating a man matching the description of the suspect in the hit and run accident was riding a red mountain bicycle, heading southbound from the accident scene. The officer saw a man matching that description, identified in court as defendant, and ordered him to stop. Defendant turned the bicycle around and pedaled away. The officer ran after and caught up with defendant, who said "`You already got my Benz.'" The bike "laid down," the officer went to grab defendant, and they both fell. Both men stood up, and defendant charged the officer, put "both hands on the butt of [his] gun," and tried to pull it from its holster. Defendant pulled so hard the gun "rotated around in front of [him]." The officer then charged at defendant, defendant fell backwards while still holding on to the gun, and the officer was pulled down on top of him. The officer pulled out his expandable baton and hit him twice on the head, and was then able to handcuff defendant.
A jury found defendant guilty of unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a)), attempted second degree robbery (Pen. Code,
The Court Properly Denied the Requested Jury Instructions on Attempted Theft and Force
Defendant claims the trial court erred in denying his request for jury instructions on attempted theft from the person as a lesser included offense of attempted robbery. He maintains "the evidence on whether [he] used the quantum of force necessary for attempted robbery was susceptible to an interpretation that supported a conviction on attempted theft only."
"Instruction on a lesser included offense is required only when the record contains substantial evidence of the lesser offense, that is, evidence from which the jury could reasonably doubt whether one or more of the charged offense's elements was proven, but could find all the elements of the included offense proven beyond a reasonable doubt." (People v. Moore (2011) 51 Cal.4th 386, 408-409.) "`"[T]he existence of `any evidence, no matter how weak' will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is `substantial enough to merit consideration' by the jury."'" (People v. Wyatt (2012) 55 Cal.4th 694, 698, italics omitted.) "`Substantial evidence' in this context is `"evidence from which a jury composed of reasonable [persons] could . . . conclude"' that the lesser offense, but not the greater, was committed." (People v. Breverman (1998) 19 Cal.4th 142, 162.) "`"[I]f there is no proof, other than an unexplainable rejection of the prosecution's evidence, that the offense was less than that charged, such instructions [on lesser included offenses] shall not be given."'" (People v. Friend (2009) 47 Cal.4th 1, 51-52.)
"An attempted robbery requires a specific intent to commit robbery and a direct, ineffectual act (beyond mere preparation) toward its commission." (People v. Medina (2007) 41 Cal.4th 685, 694 (Medina).) Robbery is "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." (§ 211.) "Theft by larceny may be committed without force or the threat of violence and may be completed without the victim ever being present. To elevate larceny to robbery, the taking must be accomplished by force or fear and the property must be taken from the victim or in his presence." (People v. Gomez (2008) 43 Cal.4th 249, 254.)
In order to prove attempted robbery, no evidence of actual force or fear is necessary. As explained in People v. Vizcarra, "an element of force or fear must be proved in order to establish a conviction for robbery under Penal Code section 211. It is not necessary, however, for this element to be reflected in the overt act of an attempted robbery if the crime has not progressed to that point." (People v. Vizcarra (1980) 110 Cal.App.3d 858, 862.) "Under general attempt principles, commission of an element of the crime is not necessary. . . . As such, neither a completed theft [citations] nor a completed assault [citation] is required for attempted robbery." (Medina, supra, 41 Cal.4th at p. 694.)
Defendant nevertheless maintains the jury "had to consider whether [he] actually applied the requisite force during the incident, to decide whether he intended to do so." He cites no authority for this claim and, in fact, concedes Vizcarra and other cases have held to the contrary.
In any event, the evidence in this case demonstrated actual use of force, which for the purpose of robbery, must be "more than `just the quantum of force which is necessary to accomplish the mere seizing of the property' . . ., [although] the degree of force is immaterial." (People v. Garcia (1996) 45 Cal.App.4th 1242, 1246, disapproved on another ground by People v. Mosby (2004) 33 Cal.4th 353.) Defendant "tr[ied] to rip the purse off" the victim and "encroached upon [her] and went for [her] purse." The defendant "was pulling it and she was pulling it back," while screaming and yelling. The victim also testified that during the struggle, defendant "ended up leading me into [a] little alcove area, which is where we wrestled with my purse a little bit." Afterwards, the victim's "thumb was quite sore from . . . trying to hold onto my purse and not allowing him to take it."
There was simply no evidence substantial enough to merit consideration that defendant was guilty only of the lesser offense. The trial court did not err in denying defendant's request for an instruction on attempted theft.
Evidence of Injuries to the Attempted Robbery Victim's Husband and Denial of Pinpoint Instructions Did Not Present an Erroneous Theory of Guilt
Defendant claims the trial court's admission of evidence of the injuries suffered by the attempted robbery victim's husband, combined with the denial of his request for pinpoint instructions on force, presented the jury with "an erroneous theory of guilt." He contends the complained of evidence was irrelevant, and in combination with the court's denial of his request for instructions on (a) the meaning of force and (b) "that the force used against [the victim's husband] was not part of the attempted robbery," denied him due process.
"[A]n appellate court . . . examines for abuse of discretion a decision on admissibility that turns on the relevance of the evidence in question. . . . Evidence is relevant if it has any tendency in reason to prove a disputed material fact." (People v. Waidla (2000) 22 Cal.4th 690, 717-718.)
Evidence of the injuries to the victim's husband was relevant to the issue of defendant's intent to commit robbery. Only because the victim's husband intervened did defendant stop "wrestling" with the victim and turn his attention to the husband, thus negating any inference that defendant voluntarily abandoned his plan to commit robbery. Thus, even though force used against another does not satisfy the force requirement for a robbery (People v. Nguyen (2000) 24 Cal.4th 756, 764), the fact defendant escalated his force from wrestling with the victim to causing injuries to her husband when he tried to intervene is relevant to the issue of defendant's intent to commit a robbery.
And even if admission of evidence of the husband's injuries was error, its admission does not justify a reversal unless any error "`resulted in a miscarriage of justice.'" (People v. Earp (1999) 20 Cal.4th 826, 878.) "`"[A] `miscarriage of justice' should be declared only when the court, `after an examination of the entire cause, including the evidence,' is of the `opinion' that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error."'" (Bowman v. Wyatt (2010) 186 Cal.App.4th 286, 327.) Given the other evidence in this case, it is not reasonably probable the jury would have reached a result more favorable to defendant had evidence of the victim's husband's injuries not been admitted.
Defendant also claims the court erred in failing to give pinpoint instructions, one on the definition of "force," and one instructing the force used against the victim's husband was "not part of the robbery." "Under appropriate circumstances, `a trial court may be required to give a requested jury instruction that pinpoints a defense theory of the case. . . .'" (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 99.) The court may decline a requested "`pinpoint instruction if it is argumentative [citation], merely duplicates other instructions [citation], or is not supported by substantial evidence [citation].'" (Ibid.) It can also "`refuse instructions that highlight "`specific evidence as such.'"' `Because the latter type of instruction "invite[s] the jury to draw inferences favorable to one of the parties from specified items of evidence," it is considered "argumentative" and therefore should not be given.'" (People v. Hughes (2002) 27 Cal.4th 287, 361.)
The trial court properly denied defendant's request for a special instruction on the meaning of "force." "The terms `force' and `fear' as used in the definition of the crime of robbery have no technical meaning peculiar to the law and must be presumed to be within the understanding of jurors." (People v. Anderson (1966) 64 Cal.2d 633, 640.)
The requested instruction regarding force used against the victim's husband was similarly unnecessary. The jury was properly instructed on the elements of robbery and attempt. The prosecutor agreed that the force used against the victim's husband was not an element of the attempted robbery, and the court noted defense counsel could "explain to the jury, if you wish, that any force used on [the victim's husband] is not part of the robbery." Defense counsel did just that, arguing defendant did not use force against the victim, only against her husband, and that force against the husband was "not relevant to whether or not there was an attempted robbery." The prosecutor, in turn, did not dispute these assertions during his closing argument. The prosecutor's only reference to the husband was that he "intervened" in the attempted robbery, explaining "it was enough on the part of [the victim's husband] to interrupt the defendant's direct but ineffective step toward committing that robbery."
Under these circumstances, we conclude that the jury was adequately informed concerning the use of force. And, again, even if the trial court erred in failing to provide the jury with a requested pinpoint instruction, it is not reasonably probable that had such instruction been given, the jury would have come to a different conclusion. (See People v. Hughes, supra, 27 Cal.4th at p. 363; People v. Earp, supra, 20 Cal.4th at p. 887.) Accordingly, neither admission of evidence of the husband's injuries nor the denial of the requested instructions operated to deny defendant due process.
The Court Did Not Err in Refusing to Stay Sentence on Count 9 under Penal Code Section 654
Defendant maintains that resisting an executive officer under section 69 (count 8) and the attempted taking of a firearm while resisting a peace officer under section 148 (count 9) were part of an indivisible course of conduct, requiring the court to stay the sentence on count 9 under section 654.
"[T]he purpose of section 654 is to ensure that a defendant's punishment will be commensurate with his culpability." (People v. Correa (2012) 54 Cal.4th 331, 341.) It provides: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." (§ 654, subd. (a).) "`A person who commits separate, factually distinct, crimes, even with only one ultimate intent and objective, is more culpable than the person who commits only one crime in pursuit of the same intent and objective.'" (People v. Correa, at p. 341.) "Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one." (Neal v. State of California (1960) 55 Cal.2d 11, 19, disapproved on another ground by People v. Correa, at p. 344.)
The statute "`literally applies only where [multiple] punishment arises out of multiple statutory violations produced by the "same act or omission." [Citation.] However, . . . its protection has been extended to cases in which there are several offenses committed during "a course of conduct deemed to be indivisible in time." [Citation.]' [Citations.] [¶] `It is defendant's intent and objective, not the temporal proximity of his offenses, which determine whether the transaction is indivisible. [Citations.] . . . [I]f all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once.'" (People v. Hicks (1993) 6 Cal.4th 784, 789.) A trial court's implied finding that a defendant harbored a separate intent and objective for each offense will be upheld on appeal if it is supported by substantial evidence. (People v. Racy (2007) 148 Cal.App.4th 1327, 1336-1337.)
Defendant maintains he "had a single intent during the entire incident: to avoid police apprehension." The evidence showed, however, that defendant had two intents and objectives. The initial objective was to resist being arrested, the second objective was to take the officer's gun. At the outset of defendant's encounter with the officer, he refused the officer's order to stop and rode away on a bicycle. The officer pursued him, and as he grabbed defendant they both fell to the ground. The two men struggled, then "pushed off and stood up and faced each other in the street." Defendant "began to kind of stutter step and looked over his shoulder like he was going to run," which is what the officer thought he was going to do. Instead, he charged at the officer, "closed the distance" between them, wrapped his arms around the officer's waist and started "driving through" him. The officer "traveled backwards" and was "kind of sprawled, leaning over on [defendant], trying to stay upright." At that point, defendant "began to yank very hard on the butt of [the officer's] gun repeatedly, dragging [him] back out into" the street and causing his gun belt to rotate on his hips. There was a mechanism on the officer's holster to prevent the gun from being removed, and the officer was "hanging on . . . for dear life."
Abundant evidence supports the trial court's implicit finding that defendant had two separate intents and objectives. Thus, section 654 did not require staying the sentence on count 9.
Reversal of the True Finding on One of Defendant's Prison Priors
In a supplemental brief, defendant claims the true finding on one of the prior prison terms alleged under section 667.5 must be reversed because two of the priors were based on convictions occurring on the same date and resulting in a single prison term. The Attorney General agrees.
Section 667.5 provides "the court shall impose a one-year term for each prior separate prison term . . . imposed . . . for any felony." (§ 667.5, subd. (b).) A prior prison term is "a continuous completed period of prison incarceration imposed for the particular offense alone or in combination with concurrent or consecutive sentences for other crimes. . . ." (§ 667.5, subd. (g).) "Courts have consistently recognized that this statutory language means that only one enhancement is proper where concurrent sentences have been imposed in two or more prior felony cases. ([Citations] [`"The plain meaning of section 667.5, subdivision (g) is to prevent multiple one-year enhancements under section 667.5 itself where the offender has served one period of prison confinement, or block of time, for multiple offenses or convictions."'] [Citations] [`Section 667.5(g) provides that a defendant serves a single term in state prison notwithstanding that the term consists of several separate sentences attributable to different convictions.' (Italics omitted.)] [Citations].)" (People v. Jones (1998) 63 Cal.App.4th 744, 747.)
The record shows two of defendant's prison priors were based on convictions in Stanislaus County on June 9, 2005 for resisting an executive officer and assault on a peace officer. The convictions occurred on the same date and resulted in an aggregate sentence as part of a single prison term.
Thus, the terms served for the two offenses were not "separate" within the meaning of section 667.5, subdivision (b), and the true finding on one of the allegations must be vacated.
The Trial Court Did Not Abuse Its Discretion in Granting Defendant's
The People appeal from the trial court's granting of defendant's Romero motion and striking one of his prior strike convictions, asserting the court abused its discretion.
In Romero, the Supreme Court held section 1385, subdivision (a) permits a court to strike prior felony conviction allegations in cases brought under the Three Strikes law. (Romero, supra, 13 Cal.4th at pp. 529-530.) "To guide the lower courts in the exercise of their discretion under section 1385(a), . . . we emphasize the following: A court's discretion to strike prior felony conviction allegations in furtherance of justice is limited. Its exercise must proceed in strict compliance with section 1385(a), and is subject to review for abuse. . . . [¶] `The trial court's power to dismiss an action under section 1385, while broad, is by no means absolute. Rather, it is limited by the amorphous concept which requires that the dismissal be "in furtherance of justice." . . . [¶] `"`. . . [F]urtherance of justice,' requires consideration both of the constitutional rights of the defendant, and the interests of society represented by the People, in determining whether there should be a dismissal. [Citations.]" [Citations.] At the very least, the reason for dismissal must be "that which would motivate a reasonable judge."'" (Romero, at pp. 530-531, italics omitted.)
The Attorney General claims the trial court failed to consider defendant's current convictions and history of escalating violence. To the contrary, the record reflects the court did consider defendant's current convictions, stating; "I in no way minimize what [defendant] has done in this trial or to this particular officer. . . ." The court further noted it had considered the probation report, as well as the "police reports and narratives that were attached to the People's Response to the Defense Motion to Strike."
The trial court made the following findings: "[I]t is in the interest of justice to dismiss the second strike because it falls outside the spirit of the three strikes law. The strike resulted from broken glass falling on a police officer who was not injured. Defendant was handcuffed and seated in the back of a police car. The defendant twisted the hand and arm of a second officer and suffered a separate strike conviction. It would not further the interests of justice to enhance defendant's sentence based on acts that arose from the same operable facts. Defendant was also twenty[-]two years old. The strike is remote in time having occurred twenty years ago. Defendant's mother and father died of AIDS when defendant was an adolescent. Defendant currently suffers from a psychiatric disorder, post[-]traumatic stress, and was under the influence of narcotics at the time of the current crime."
The trial court made a reasoned decision, and the People have failed to demonstrate any abuse of discretion in dismissing one of the strike convictions.
The true finding on one of the section 667.5, subdivision (b) allegations that defendant served a prior prison term is vacated. The superior court shall modify the judgment accordingly and forward a copy of the amended abstract of judgment to the Department of Corrections. In all other respects, the judgment is affirmed.
Humes, P.J. and Margulies, J., concurs.