P. v. Moreno

Filed 10/15/09 P. v. Moreno CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Oscar Moreno appeals from the judgment following his conviction by jury of second degree robbery and assault. (Pen. Code,  211, 240.)[1] The jury found that he personally used a knife during the robbery and that both offenses were committed for the benefit of a criminal street gang. ( 12022, subd. (b)(1); 186.22, subd. (b)(1)(C).) The court found true the allegation that appellant had prior serious felony convictions. ( 1170.12, subds. (a)-(d); 667, subds. (b)-(i).) It sentenced him to serve 19 years in state prison, consisting of 4 years for robbery (twice the low term), a concurrent one-year term for assault, 10 years for the criminal street gang enhancement, and 5 years for the prior serious felony conviction. Appellant contends that the trial court erred by denying his requests for lesser included offense instructions. We affirm.

FACTS

The Lincoln Heights gang has approximately 110 active members and its territory includes the area near Baldwin and Keith Street and other parts of Lincoln Heights. Its symbol is LHTS and some members have LHTS tattoos. The gang's primary activities include robbery, assault, murder, thefts, and other crimes. Appellant is a Lincoln Heights gang member and has LHTS gang tattoos.

On July 26, 2007, at about 9:30 p.m., Jose Munoz was walking home with his friend, Paul Vargas, on Keith Street, near Baldwin. Appellant, another man, and two young women were on the same side of the street as Munoz and Vargas.

As Munoz and Vargas were passing appellant and his companions, Munoz felt something tug on his bicycle and heard appellant say, "Let me see your bike." Munoz looked back and saw appellant grabbing the bicycle seat. Appellant asked what kind of bicycle it was and continued tugging at it. Munoz told him that he was trying to get home. Appellant responded, "No, let me see it," and kept tugging on the bicycle. When Munoz tried to pull the bicycle away, appellant got angry and kept tugging on it. Munoz tried to continue walking but appellant grabbed the bicycle from the crossbar and kept pulling it away from him.

Fearing that he would get hurt, Munoz shoved the bicycle toward appellant and "tried to step away from the situation" by moving back about two feet. Appellant dropped the bicycle, walked around it, announced that he was from "Lincoln Heights," and asked Munoz, "Where you from?" Viewing the question as an inquiry about his gang affiliation, Munoz responded, "I don't bang."

Appellant raised his fists, at shoulder height, like a boxer, and swung at Munoz. Munoz, who outweighed appellant by approximately 50 pounds, punched back and they landed on the ground. Munoz continued hitting appellant while Vargas struggled with appellant's male companion. Appellant and his companion then both hit Munoz. After hearing Vargas say that one of the men had a knife, Munoz tried to run away. Munoz reached for his telephone but appellant grabbed his collar, knocked him to the ground, and kicked his face. Appellant's companion kicked Munoz in the head. As Munoz lay there, one of appellant's female companions took his wallet from his right back pocket. Appellant and his companions ran away, and one of them carried Munoz's bicycle. A few days later, a police officer found Munoz's bicycle outside an apartment next to appellant's apartment.

DISCUSSION

Appellant contends that the court erred by failing to instruct the jury that attempted robbery and petty theft are lesser included offenses of robbery. We disagree.

"Robbery is the taking of personal property in the possession of another, from the person or immediate presence, and against [his or her] will, accomplished by means of force or fear. [Citation.]" (People v. Jones (1992) 2 Cal.App.4th 867, 869.) Attempted robbery and petty theft are lesser included offenses of robbery. (People v. Crary (1968) 265 Cal.App.2d 534, 540; People v. St. Germain (1982) 138 Cal.App.3d 507, 520-521.)

"'We apply the independent or de novo standard of review to the failure by the trial court to instruct on an assertedly lesser included offense. [Citation.] A trial court must instruct the jury sua sponte on a lesser included offense only if there is substantial evidence, "'that is, evidence that a reasonable jury could find persuasive'" [citation], which, if accepted, "'would absolve [the] defendant from guilt of the greater offense' [citation] but not the lesser" [citation].' [Citation.]" (People v. Licas (2007) 41 Cal.4th 362, 366.) "[E]ven on request, a trial judge has no duty to instruct on any lesser offense unless there is substantial evidence to support such instruction. [Citation.]" (People v. Cunningham (2001) 25 Cal.4th 926, 1008.) "In deciding whether [the] evidence is 'substantial,' . . . a court determines only its bare legal sufficiency, not its weight. [Citations.]" (People v. Breverman (1998) 19 Cal.4th 142, 177.)

Appellant argues that he was entitled to an instruction concerning the lesser included offense of attempted robbery because "there was no asportation of the bike." Although asportation (carrying the property away) is an element of robbery (People v. Cooper (1991) 53 Cal.3d 1158, 1165), this argument misconstrues the facts and the law.

When appellant and his accomplices ran from the crime scene, immediately after attacking Munoz, one of them took his bicycle. A police officer recovered the bicycle outside appellant's neighbor's apartment. Appellant nonetheless claims that he "never gained possession of the bike and he never moved it," and "the other male took the bike." Assuming that the facts support his claim, appellant overlooks the principle that he is culpable for the acts of his accomplices. (People v. Cooper, supra, 53 Cal.3d at p. 1161.) The court properly instructed the jury with CALCRIM 400 regarding accomplice liability.

Appellant also argues that he was entitled to an instruction concerning the lesser included offense of petty theft because "a jury could have reasonably believed that . . . appellant was only attempting to look at the bike and had no specific intentions at the time of keeping it permanently." He claims that due to the significant evidence of his intoxication, the jury could have believed that he was not capable of forming the requisite intent to permanently deprive Munoz of his bicycle. Appellant further claims that had he specifically intended to steal the bicycle, he would not have allowed it to fall while he attacked Munoz. In so arguing, he stresses that the gang expert testified, "It might not have . . . begun as a robbery . . . . It escalated to a robbery when everything was taken and people were hit and people were struck."

"Robbery requires the 'intent to steal . . . either before or during the commission of the act of force' [citation] because '[if the] intent to steal arose after the victim was assaulted, the robbery element of stealing by force or fear is absent' [citation]." (People v. Huggins (2006) 38 Cal.4th 175, 214.) The question whether a defendant harbored the necessary intent to steal must be inferred from the acts and circumstances of the crime. (People v. Ramos (2004) 121 Cal.App.4th 1194, 1207-1208.)

The evidence does not support the inference that appellant lacked the intent to steal the bicycle. As soon as he and his companions passed Munoz and Vargas, appellant began using force by grabbing and tugging at Munoz's bicycle. Despite Munoz's repeated attempts to walk away, appellant persistently tugged at the bicycle. Appellant and his companions outnumbered Munoz and Vargas. After Munoz dropped the bicycle, appellant announced his gang, demanded to know Munoz's gang affiliation, and soon assaulted him. At one point when Munoz tried to use his cell phone, appellant grabbed his collar, pulled him back, knocked him to the ground, and kicked his face. Appellant's male companion joined him and kicked Munoz in the head. While Munoz lay on the ground, one of appellant's female companions took his wallet. Appellant and his three companions ran from the scene, as one of them carried Munoz's bicycle away. A police officer found the bicycle very close to appellant's apartment.

Even if the initial taking and attempted taking of the bicycle had not involved the element of force or fear, the crimes would have become robbery when appellant and his male companion assaulted Munoz. The theft, attempted theft, and assaults would have constituted a continuous course of conduct comprising an indivisible robbery transaction. (See People v. Cooper, supra, 53 Cal.3d 1158, 1166, fn. 8 ["mere theft becomes robbery if the perpetrator, having gained possession of the property without use of force or fear, resorts to force or fear while carrying away the loot"]; Miller v. Superior Court (2004) 115 Cal.App.4th 216, 222 ["circumstances otherwise constituting a mere theft will establish a robbery where the perpetrator peacefully acquires the victim's property, but then uses force to retain or escape with it"].)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

GILBERT, P.J.

YEGAN, J.

Joseph A Brandolino, Judge

Superior Court County of Los Angeles

______________________________

Mark Yanis, under appointment by the Court of Appeal, for Defendant and Appellant

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Chung L. Mar, Ana R. Duarte, Deputy Attorneys General, for Plaintiff and Respondent.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

[1] All statutory references are to the Penal Code unless otherwise stated.