Filed 8/18/26
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B344807
Plaintiff and Respondent, Los Angeles County
Super. Ct. No.
v. 24WCCF00717
BENJAMIN VELIZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, David C. Brougham, Judge. Affirmed.
Ashwini Mate, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Zee Rodriguez and Patricia Rosman, Deputy
Attorneys General, for Plaintiff and Respondent.
____________________
Convicting someone of attempted robbery does not require
proof of force or fear, because a robbery attempt may not have
progressed to the stage of force or fear. This case illustrates the
principle. Benjamin Veliz tried to take Johnny Brown’s bicycle
outside of Benny’s Liquor Store. Brown confronted Veliz, who—
after a standoff—eventually walked away. We affirm Veliz’s
conviction for attempted robbery. We also reject his claim the
trial court should have instructed on attempted theft as a lesser
included offense.
I
Brown rode his bicycle to a store in the city of Azusa,
leaned it against the store window, and went inside. Veliz
grabbed the handle bars and middle of the bike, as if “[h]e was
taking possession of it.” While inside buying beer, Brown saw
Veliz putting his hands on the bicycle. Brown said, “Hey, this
guy’s trying to take my bike.” Beers in hand, Brown went
outside. Veliz moved the bicycle “a little bit more than” an inch.
Brown said, “Hey, what are you doing with my bike?”
Veliz dropped the bicycle on the ground and stood next to
it. He said, “Oh, it’s my bike now.” He added, “I’m going to mess
you up because you’re talking crap and this is my bike.”
Veliz produced two knives, holding one in each hand.
Brown called out, “Somebody call the cops, he has a knife.”
Veliz and Brown remained in a standoff about five feet
apart. The store cashier came outside, said she already had
called the cops, and told Veliz to leave, which he did.
Brown testified he was not scared during the encounter.
He did not reach for his bicycle because of the knives: he “was
trying to be cautious” and “didn’t want to get stabbed.”
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A jury convicted Veliz of attempted second degree robbery
and battery. The trial court sentenced him to two years and six
months in prison.
II
Veliz argues insufficient evidence supported his attempted
robbery conviction because he abandoned the bicycle before
showing the knives, and because Brown was not in fear. His
second argument is that the trial court should have instructed on
the lesser included offense of attempted theft. These hammer
swings miss the nail.
A
We apply the substantial evidence standard to Veliz’s
substantial evidence arguments. (People v. Watkins (2012)
55 Cal.4th 999, 1019 (Watkins).)
Robbery occurs when a defendant uses force or fear to take
property from another against that person’s will. (Pen. Code,
§ 211; CALCRIM No. 1600.)
Attempted robbery, however, has different elements:
1. Veliz had the purpose of committing robbery, and
2. He took a direct but ineffectual step towards his goal.
(See Watkins, supra, 55 Cal.4th at pp. 1020–1021; cf.
CALCRIM No. 460 [general attempt instruction].)
On element one, the evidence showed Veliz’s purpose was
robbery. Veliz may have hoped he could thieve the bike and
escape unnoticed, but Brown did notice. Brown confronted Veliz,
who responded with the aggressive claim that “it’s my bike now.”
Veliz stood his ground next to the bike. This showed Veliz had
the purpose of robbery, if robbery was what it took to get the
bike.
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On element two, Veliz took direct but ineffectual steps to
accomplish his goal. He grabbed the bike and, when Brown
confronted him, Veliz stayed near the bike and he claimed it was
his. This proved Veliz was putting his plan into action. His
effort went beyond mere preparation. (E.g., People v. Sanchez
(2016) 63 Cal.4th 411, 469–470 (Sanchez).)
Veliz argues Brown testified he was not afraid. But force or
fear is not an element in an attempted robbery case. (People v.
Vizcarra (1980) 110 Cal.App.3d 858, 862–863 (Vizcarra).) A
robbery attempt may not have progressed to the point of fear, as
where armed robbers approach with the forbidden purpose,
linger, but leave when a suspicious observer phones police. There
may be no force or fear, but that still can be attempted robbery.
(E.g., Sanchez, supra, 63 Cal.4th at pp. 469–470.)
Veliz claims he abandoned the bike before using force. We
repeat: force is not an element of attempted robbery. The crime
was complete once Veliz formulated his purpose of robbery and
then acted directly on it, as he did by grabbing the bike. Then
Veliz announced the bike was his now, and he remained standing
next to it. The proof was ample.
B
Veliz argues the trial court erred by failing to instruct the
jury on the lesser included offense of attempted theft. There was
no error.
A trial court has a sua sponte duty to instruct on a lesser
included offense if there is substantial evidence the defendant is
guilty of the lesser offense. (People v. Landry (2016) 2 Cal.5th 52,
96.) In this context, substantial evidence is evidence that would
allow a reasonable jury to find that the defendant committed the
lesser, but not the greater, offense. (Ibid.) Thus, the court must
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give the instruction only when substantial evidence shows that
an element of the charged offense is missing, and the defendant
is guilty of the lesser offense. (Ibid.)
Theft is the taking of another’s property, with the intent to
steal and carry it away. (People v. Gomez (2008) 43 Cal.4th 249,
254–255.) Unlike robbery, theft does not require the defendant to
take property from the person or immediate presence of another
or to accomplish the taking by force or fear. (People v. Anderson
(2011) 51 Cal.4th 989, 994.) Attempted theft is a lesser included
offense of attempted robbery. (People v. Reeves (2001)
91 Cal.App.4th 14, 53.)
No evidence showed Veliz’s purpose was to commit theft
only and not robbery. Veliz’s actions revealed his plan: if the
bike owner detected Veliz, Veliz would not flee but would persist
by asserting ownership of the bike. There was no contrary
evidence. The trial court had no duty to instruct on a lesser
included offense.
DISPOSITION
We affirm.
WILEY, J.
We concur:
STRATTON, P. J.
VIRAMONTES, J.
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