People v. Jones

2 Cal. App. 4th 867, 3 Cal. Rptr. 2d 602
California Court of Appeal·Decided January 15, 1992·No. B046297·Published·Cited by 28 cases

Opinion

2 Cal.App.4th 867 (1992)
3 Cal. Rptr.2d 602

THE PEOPLE, Plaintiff and Respondent,
v.
MARQUIS LA SHOAN JONES, Defendant and Appellant.

Docket No. B046297.

Court of Appeals of California, Second District, Division Five.

January 15, 1992.

*868 COUNSEL

Ralph H. Goldsen, under appointment by the Court of Appeal, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Acting Assistant Attorney General, Donald E. de Nicola and Lauren E. Dana, Deputy Attorneys General, for Plaintiff and Respondent.

*869 OPINION

ASHBY, J.

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 10 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 over 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 sue 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

(1) 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].)

*870 (2) As appellant concedes, the evidence supports conviction of robbery. The purse was held by straps over 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.) 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.)

(3a) Appellant contends, however, that the evidence also supports a conclusion the crime was theft but not robbery, therefore the court was required to instruct sue 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, 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.) 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." (Ibid.) (4) 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 sue 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].)

*871 (3b) 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; 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, the victim did not testify. Several eyewitnesses gave ambiguous testimony because none of them saw precisely what happened.

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People v. Jones, 2 Cal. App. 4th 867, 3 Cal. Rptr. 2d 602 (Cal. Ct. App. 1992).

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