Opinion
C083471
03-20-2018
THE PEOPLE, Plaintiff and Respondent, v. DAVID WAYNE FERRIS, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16FE001527)
Convicted by a jury of second degree robbery (Pen. Code, § 211—count one); unlawful taking of a vehicle with a prior conviction of the same offense (Veh. Code, § 10851, subd. (a)—counts two through four), felony grand theft (Pen. Code, § 487, subd. (a)—count five), and misdemeanor larceny (Pen. Code, § 484, subd. (a)—counts six and seven), and subsequently found by the trial court to have committed two prior strikes, defendant David Wayne Ferris contends the trial court erred prejudicially as to count one by failing to instruct the jury sua sponte on the lesser included offense of grand theft from the person. We shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Since defendant challenges only his conviction on count one, we need not recite the facts in depth. Suffice it to say that in committing the charged crimes defendant used a consistent modus operandi. First, he would steal a used car from a dealership by obtaining the keys on the pretense of preparing to take a test drive (counts two through four). Then he would drive one of the stolen cars to a large store, cruise the parking lot until he spotted a woman who had left her purse in her shopping cart while unloading purchases, drive up behind her, reach out of his window, snatch the purse, and drive off (counts five through seven).
In the incident charged as count one, Kathryn K. was unloading purchases into her car, parked in the lot of a Target store, when she noticed a car approaching her from behind. Thinking the driver was going to ask for directions, she turned toward the car. An arm reached out of the car through an open window toward her purse, which was in the child's seat of her shopping cart. Unlike the other victims, she saw what was happening in time to lunge for the purse and grab the sides, while defendant grabbed the handles. His grip was stronger, and he jerked it out of her hands. He then drove off very quickly. The whole incident took less than two seconds. Kathryn K. calculated the total value of the purse and its contents as at least $1,459.20.
A video of the incident was introduced in evidence and played for the jury. However, the prosecutor stated in closing argument that the video did not depict the incident clearly and the jury would need to rely on Kathryn K.'s testimony to determine the facts.
At defense counsel's request, the trial court instructed on both grand theft and petty theft as lesser included offenses to count one, after giving instructions defining grand and petty theft as to counts five through seven. In instructing on robbery, relying on People v. Burns (2009) 172 Cal.App.4th 1251 (Burns), the court modified CALCRIM No. 1600 to insert the sentence: "Force as used here is such force as is actually sufficient to overcome the victim's resistance."
In Burns, a purse-snatching case, the court rejected the appellant's argument that his crime was only grand theft because he used no more force than necessary to seize the victim's purse. (Burns, supra, 172 Cal.App.4th at p. 1257.) The court held instead that "where a person wrests away personal property from another person, who resists the effort to do so, the crime is robbery, not merely theft." (Ibid.) The court then quoted the "accepted articulation of the rule" in older case law: " ' "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 . . . ." ' " (Id. at p. 1259.) --------
In closing argument, both counsel stressed that whether the jury found robbery or theft on count one depended on whether it believed Kathryn K.'s testimony that defendant wrenched the purse from her grasp.
DISCUSSION
Defendant contends the trial court should have instructed the jury sua sponte on grand theft from the person (Pen. Code, § 487, subd. (c)) as a lesser included offense on count one. As he notes, the pattern instruction the trial court gave on the distinction between grand and petty theft includes the following optional bracketed language, which the court did not give: "[Theft of property from the person is grand theft if the value of the property is more than $950. Theft is from the person if the property taken was in the clothing of, on the body of, or in a container held or carried by, that person.]" (CALCRIM No. 1801, boldface omitted.) According to defendant, this instruction was necessary because it "would have tightly focused the jury's attention on the distinction, factually relevant in the instant case, between [grand theft from the person] and robbery: whether 'force' was used to overcome resistance in taking property from the person." We are not persuaded.
"Theft in any degree is a lesser included offense to robbery, since all of its elements are included in robbery. The difference is that robbery includes the added element of force or fear. [Citation.] It also is settled law that, as a general proposition, the trial court is required to instruct on all lesser included crimes [citation], and this is true even though the defendant asks that the lesser offense instructions not be given [citation]." (Burns, supra, 172 Cal.App.4th at p. 1256.) Where substantial evidence would allow the jury to find that only the lesser offense was committed, the trial court must instruct on that offense even without request. (People v. Breverman (1998) 19 Cal.4th 142, 162.)
Because defendant argued that Kathryn K.'s testimony as to the use of force was not credible and the video capturing the offense did not clearly show otherwise, substantial evidence could have supported a verdict of grand theft on count one. Therefore, the trial court properly instructed on grand theft as a lesser included offense to robbery. However, defendant cites no authority holding that instruction on a particular theory of grand theft, such as grand theft from the person, is required under Breverman. He cites Burns, supra, 172 Cal.App.4th at page 1256, for the proposition that "grand theft from the person is a lesser included offense of robbery" (and therefore an offense on which the jury must be instructed where robbery is charged). But the decision does not say that: At the page cited, it says only that "[t]heft in any degree is a lesser included offense to robbery . . . ." (Ibid.) Thus, Burns does not support defendant's claim.
The Attorney General asserts that instruction on grand theft from the person, on the facts of this case, would have been a "pinpoint" instruction, calling attention to defendant's theory that the taking was accomplished without force. (See People v. Wilkins (2013) 56 Cal.4th 333, 348-349.) We agree. Trial courts have no duty to give pinpoint instructions sua sponte. (Id. at p. 349.) Therefore, the court here had no duty to instruct on grand theft from the person without request. Defendant has shown no error.
In any event, we do not see how it could have made any difference to the outcome if defendant's proposed instruction had been given. There was no dispute as to count one that the taking was from the victim's person, and the definition of grand theft from the person does not mention force or the absence of force. The instructions distinguishing robbery from grand theft and the arguments of counsel squarely focused the jury's attention on the issue of force. Instruction on grand theft from the person would have added nothing useful to the jury here.
DISPOSITION
The judgment is affirmed.
BUTZ, Acting P. J. We concur: HOCH, J. RENNER, J.