Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. YA062563, Mark S. Arnold, Judge.
Heather J. Manolakas, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters and Tasha G. Timbadia, Deputy Attorneys General, for Plaintiff and Respondent.
TURNER, P. J.
I. INTRODUCTION
Defendant, Jeremiah Markeith Green, appeals from his convictions for two counts of second degree robbery and a finding he was previously convicted of serious felony. (Pen. Code , § 211, 667, subd. (a), 667, subds. (b)-(i), 1170.12.) Defendant contends: there was no substantial evidence he committed a robbery as charged in count 1; the jury should have been instructed as to grand theft from the person as to count 1; he was entitled to a jury trial on the aggravating circumstances utilized to impose the upper term as to count 1; the abstract of judgment must be modified and the parole restitution fine must be reduced. The Attorney General argues that certain fines and penalties should be imposed. We affirm with modifications.
All future statutory references are to the Penal Code.
All references are to the Penal Code unless otherwise indicated.
II. SUFFICIENCY OF THE EVIDENCE
Defendant argues there is no substantial evidence force or fear was present when the bag of money was taken from Jackie McNeely as charged in count 1. The Supreme Court has explained the limited scope of our review thusly: “In assessing a claim of insufficiency of evidence, the reviewing court’s task is to review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence--that is, evidence which is reasonable, credible, and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 317-320.) The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. (People v. Stanley (1995) 10 Cal.4th 764, 792.) ‘“Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court[, ] which must be convinced of the defendant’s guilt beyond a reasonable doubt. “‘If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.”’ [Citations.]”’ (Id. at pp. 792-793.)” (People v. Rodriguez (1999) 20 Cal.4th 1, 11; see People v. Bean (1988) 46 Cal.3d 919, 932.) The foregoing is the controlling rule of law in connection with defendant’s sufficiency of the evidence contention.
Ms. McNeely described the incident thusly, “As I was putting [the bag of money] under my left arm to go into the bank, it was snatched from under.” Later she described co-defendant Quennel Hill’s conduct: “I was putting the money under my arm to carry it into the bank. As soon as I got it – it wasn’t even completely under my arm. It was just in the middle. Just snatched it, and took off running.” At another point, Ms. McNeely testified the bag was under her left arm and Mr. Hill was running “full tilt” away from her. When asked whether she was afraid “at the time” Mr. Hill took the bag of money, Ms. McNeely testified, “Yeah. I was.” Ms. McNeely began to chase Mr. Hill for 30 to 40 feet. Ms. McNeely described why she stopped running, “I stopped chasing him, and I just -- I just was in total shock that it had happened.” The grainy photograph of the incident, exhibit No. 9, identified by Ms. McNeely, which we have added to the record, shows Mr. Hill in an aggressive stance at the instance of the taking. Nidia Lainez saw Mr. Hill run through the parking lot with a bag in his hand. Ms. Lainez saw Mr. Hill get into a car driven by defendant. Ms. Lainez gave the police a part of the car’s license plate number. The car was later determined to be registered to defendant.
No doubt, a logical argument could have been made as to absence of force in the trial context. But on appeal our role is limited to a review for substantial evidence. The jury reasonably could have concluded the force used to “snatch[]” the purse from Ms. McNeely’s possession while Mr. Hill was running “full tilt” was beyond that necessary to secure possession of the bag of money. (People v. Church (1897) 116 Cal. 300, 302; People v. Morales (1975) 49 Cal.App.3d 134, 139.) Further, the photograph of the incident could have been relied upon by the jury in finding force was used.
In any event, the crime of robbery is committed when either “force or fear” is present. (People v. Cooper (1991) 53 Cal.3d 1158, 1165, fn. 8.) There is no merit to defendant’s suggestion that fear was not used on the forceful taking of the bag of money. Ms. McNeely testified she was afraid “at the time” the bag was seized. Ms. McNeely’s state of fear was such that she described herself as being in “total shock” after the incident as she tried to chase defendant. This constitutes substantial evidence of the use of fear to accomplish the taking of the bag of money. (People v. Renteria (1964) 61 Cal.2d 497, 499; People v. Flynn (2000) 77 Cal.App.4th 766, 771; People v. Prieto (1993) 15 Cal.App.4th 210, 215; People v. Brew (1991) 2 Cal.App.4th 99, 104; see People v. Davison (1995) 32 Cal.App.4th 206, 217.) Even if there was no fear present during the taking phase of the incident, it was indisputably present during the asportation of the bag of money. The presence of fear and shock during the asportation phase of the incident, as Ms. McNeely gave chase, was sufficient to satisfy the fear element of a robbery. (People v. Cooper, supra, 53 Cal.3d at p. 1165, fn. 8; People v. Morales (1975) 49 Cal.App.3d 134, 143 [“If the thief does use force, either to effect the taking or to resist the victim’s efforts to retrieve the property . . . the crime becomes robbery”].)
III. INSTRUCTIONAL ERROR
As to count 1, defendant argues the jury should have been instructed as to the lesser included offense of grand theft from the person. (§ 487, subd. (c).) There is no merit to defendant’s instructional error contention. The evidence of fear was uncontroverted. Ms. McNeely testified she was afraid when the bag of money was snatched and in a state of shock as she unsuccessfully attempted to chase Mr. Hill. Defendant presented no evidence. There was no duty to give a grand theft from the person instruction if there was no substantial evidence the included offense was committed. (People v. Breverman (1998) 19 Cal.4th 142, 154-155; People v. Barton (1995) 12 Cal.4th 186, 196, fn. 5.) The evidence of Ms. McNeely’s entirely understandable shock and fear was not in dispute; hence, the only larceny related crime defendant committed was robbery.
Even if the trial court should have given grand theft instructions, any error was harmless. Failing to give lesser included offense instructions in a noncapital case is subject to California Constitution article VI, section 13 review for prejudice within the meaning of People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Lasko (2000) 23 Cal.4th 101, 111; People v. Breverman, supra, 19 Cal.4th at p. 172.) Any error was harmless. There was no evidence Ms. McNeely was not in fear. Her uncontroverted testimony was that she was fearful and in shock. Thus, there was no reasonable probability of a more favorable verdict had grand theft instructions been read to the jury.
IV. ABSENCE OF A JURY TRIAL ON AGGRAVATING FACTORS
Defendant argues he was entitled to a jury trial on the issue of the existence of aggravating factors. In the recent case of People v. Black (July 19, 2007, S126182) ___ Cal.4th ___, ___, the California Supreme Court examined the imposition of an upper term under the state determinate sentencing law in light of Cunningham v. California (2007) ___ U.S. ___ [127 S.Ct. 856, 863-864]. Our Supreme Court held: “[A]s long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi [v. New Jersey (2000) 530 U.S. 466] and its progeny, any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial.” (People v. Black, supra, ___ Cal.4th at p. ___, original italics.) The Black court further held: “It follows that imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (People v. Black, supra, ___ Cal.4th. at p. ___.)
In this case, defendant admitted his prior serious felony conviction for robbery. In addition, the trial court relied upon defendant’s prior convictions in imposing the upper term as to count 1, noting: “[I]n 2000 [defendant] received convictions for robbery of a postal carrier and disposing of mail. [¶] Regarding the robbery of the postal carrier, which occurred on January 4th, 1999, it’s already been mentioned [defendant] was the driver while three other people robbed a letter carrier of mail. [Defendant] was also convicted in the same case of disposing of stolen mail taken during a separate robbery, that robbery occurring on December 31st of 1998. Because prior convictions are becoming of increasing seriousness, the crime involved violence to Ms. Mc Neely, the manner in which the crime was committed indicated planning and sophistication, the taking involved $4,600, the upper term of five years is imposed.” As a result, defendant’s constitutional right to a jury trial was not violated by the trial court’s imposition of the upper term sentence for his conviction of second degree robbery. The “‘statutory maximum’” sentence to which defendant was exposed was the upper term. (People v. Black, supra, ___ Cal.4th at p. ___.)
V. ERRORS CONCERNING THE RESTITUTION FINES
Defendant argues errors were made in connection with the restitution fines. (§§ 1202.4, subd. (b)(1), 1024.45.) However, after the notice of appeal was filed, in response to a motion filed by defendant, the trial court corrected the orders concerning the restitution fines. Hence, the issue is now moot. (People v. Yanez (1995) 38 Cal.App.4th 1622, 1625; People v. Vacca (1995) 38 Cal.App.4th 804, 808, disapproved on other grounds in People v. Ledesma (1997) 16 Cal.4th 90, 101, fn. 5.)
VI. Penalty Assessments and Court Security Fees
A. State court construction penalties
The Attorney General argues that the trial court should have imposed additional state court construction penalties. We agree. The trial court imposed a $200 section 1202.4, subdivision (b)(1) restitution fine and stayed the $200 section 1202.45 parole revocation restitution fine. These two restitution fines are not subject to section 1464, subdivision (a) and Government Code section 76000, subdivision (a) penalty assessments. (§ 1202.4, subd. (e); People v. Sorenson (2005) 125 Cal.App.4th 612, 617; People v. McHenry (2000) 77 Cal.App.4th 730, 734.) However, the fines are subject to a Government Code section 70372, subdivision (a) state court construction penalty which, states in part, “[T]here shall be levied a state court construction penalty, in addition to any other state or local penalty including, but not limited to, the penalty provided by Section 1464 of the Penal Code and Section 76000 of the Government Code, in an amount equal to five dollars ($5) for every ten dollars ($10) or fraction thereof, upon every fine, penalty, or forfeiture imposed and collected by the courts for criminal offenses . . . .” The state court construction penalty applies to “every fine, penalty, or forfeiture imposed and collected by the courts for criminal offenses . . .” which includes restitution fines applicable to those counts. Therefore, a state court construction penalty of $100 is to be added to both the section 1202.4, subdivision (b)(1) and 1202.45 restitution fines. (Needless to note, the additions to the section 1202.45 parole revocation restitution fines are stayed.)
B. Court Security fees
The Attorney General argues that the trial court should have imposed a $20 court security fee pursuant to section 1465.8, subdivision (a)(1) as to each count. We agree. (See People v. Schoeb (2005) 132 Cal.App.4th 861, 865-866.) The trial court imposed only one section 1465.8, subdivision (a)(1) court security fee. Defendant was convicted of two counts of robbery. As a result, one additional section 1465.8, subdivision (a)(1) fee shall be imposed. The trial court is to personally insure the abstract of judgment is corrected to comport with the modifications we have ordered. (People v. Acosta (2002) 29 Cal.4th 105, 109, fn. 2; People v. Chan (2005) 128 Cal.App.4th 408, 425-426.)
VII. DISPOSITION
The judgment is affirmed as modified to impose the state court fees and penalties as noted. The trial court is to personally insure a corrected abstract of judgment is prepared and forwarded to the Department of Corrections and Rehabilitation.
I concur: ARMSTRONG, J.
MOSK, J., Dissenting
I respectfully dissent on the grounds that there is not substantial evidence to support a conviction for robbery under Penal Code section 211, 1 and that the trial court prejudicially erred in failing to give an instruction for the lesser included offense of grand theft person under section 487. This case involves an important and recurring issue concerning the interpretation and application of section 211.
FACTS
At about 10:30 a.m. on July 26, 2005, Jackie McNeely, the manager of a gas station in Torrance, went to the Bank of America branch located at 17512 Crenshaw Boulevard in Torrance to make a deposit for her employer. McNeely parked in front of the bank and removed a bank bag containing about $4,600 in cash from her trunk. As McNeely was putting the bag under her arm, Quennel Hill approached her from behind and “snatched” the bag “from under” and ran away in the direction of a Ralphs Market. McNeely did not see Hill before he came up to her – he caught her “totally” by surprise. By the time McNeely saw Hill, she only saw the back of his head or back. After McNeely realized that Hill had taken her bag, she chased him for about 30 to 40 feet to the front of the Ralphs Market where she “just gave up” and “stopped.” McNeely “just was in total shock that it had happened.” McNeely last saw Hill running at the end of the shopping center. McNeely was “afraid at the time that [Hill] was taking the bag” from her.
STANDARD OF REVIEW
“‘In reviewing the sufficiency of evidence under the due process clause of the Fourteenth Amendment to the United States Constitution, the question we ask is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”’ ([People v.] Rowland [(1992)] 4 Cal.4th [238, ] 269, quoting Jackson v. Virginia (1979) 443 U.S. 307, 319 [61 L.Ed.2d 560, 99 S.Ct. 2781].) We apply an identical standard under the California Constitution. (Ibid.) ‘In determining whether a reasonable trier of fact could have found defendant guilty beyond a reasonable doubt, the appellate court “must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.”’ (People v. Johnson (1980) 26 Cal.3d 557, 576 [162 Cal.Rptr. 431, 606 P.2d 738].)” (People v. Young (2005) 34 Cal.4th 1149, 1175.) In deciding the sufficiency of the evidence, we do not resolve credibility issues or evidentiary conflicts. (Ibid.) The trier of fact, exclusively, resolves conflicts and inconsistencies in the testimony. (Ibid.)
SECTION 211Section 211 provides, “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.” Absent the element of force or fear, a taking from the person is grand theft, a lesser included offense of robbery. (People v. Jones (1992) 2 Cal.App.4th 867, 869; People v. Morales (1975) 49 Cal.App.3d 134, 139; see In re Jesus O. (2007) 40 Cal.4th 859.) “[T]he requisite force or fear need not occur at the time of the initial taking. The use of force or fear to escape or otherwise retain even temporary possession of the property constitutes robbery. [Citations.]” (People v. Flynn (2000) 77 Cal.App.4th 766, 771-772.) “[W]hether there is force or fear is a factual question for the jury. [Citation.]” (People v. Mungia (1991) 234 Cal.App.3d 1703, 1707.)
FORCE
For purposes of the offense of robbery under section 211, generally there are two types of force – actual force and constructive force. (People v. Wright (1996) 52 Cal.App.4th 203, 210.) Actual force “‘includes all violence inflicted directly on the persons robbed’” and constructive force “‘encompasses all . . . means by which the person robbed is put in fear sufficient to suspend the free exercise of . . . will or prevent resistance to the taking.’ [Citation.]” (Ibid.) In People v. Morales, the Court of Appeal stated that it had “not discovered any California case which purports to define precisely how much force is required to elevate a taking from the person to the status of a robbery.” (People v. Morales, supra, 49 Cal.App.3d at p. 139.) The court, however, observed “it is established that something more is required than just that quantum of force which is necessary to accomplish the mere seizing of the property.” (Ibid.; People v. Wright, supra, 52 Cal.App.4th at p. 210 [“When actual force is present in a robbery, at the very least it must be a quantum more than that which is needed merely to take the property from the person of the victim . . .”].) The rule is, “[a]ll the force that is required to make the offense a robbery is such force as is actually sufficient to overcome the victim’s resistance . . . .” (People v. Clayton (1928) 89 Cal.App. 405, 411; see People v. Jones, supra, 2 Cal.App.4th at p. 870.)
“‘Grabbing or snatching property from the hand has often been held to be grand larceny, and not robbery.’” (People v. Morales, supra, 49 Cal.App.3d at p. 139.) “‘“[R]olling a drunk, picking a pocket or snatching a purse from an unsuspecting and unresisting victim [citation] may properly bring forth a felony count of larceny from the person [citation]; but, because of the lack of physical force involved, these actions will not support any robbery charge.”’ [Citation.]” (People v. Jackson (2005) 128 Cal.App.4th 1326, 1331.)
In People v. Thomas, supra, 133 Cal.App.4th 488, the victim had a purse she was carrying by a strap around her shoulder. The defendant used a knife to cut the strap and then pulled the purse away from the victim who tried to hold onto the purse with both hands. The court said that the description of what occurred “perfectly fits the force provision of the crime of robbery.” (Id. at p. 494.)
In this case, the evidence shows that Hill approached McNeely from behind just as she was putting the bank bag under her arm. When Hill took the bag, the bag was not “completely under [McNeely’s] arm. It was just in the middle.” ~(RT 496)~ McNeely did not see Hill approach and was caught “totally” by surprise. She apparently first saw him as he was fleeing with the bag. There is no evidence that Hill touched McNeely when he took the bag or that McNeely resisted the taking. The evidence presented to the jury supports only one conclusion – that Hill used only “that quantum of force” that was “necessary to accomplish the mere seizing of the property.” (People v. Morales, supra, 49 Cal.App.3d at p. 139; People v. Wright, supra, 52 Cal.App.4th at p. 210.) Under that evidence, McNeely is the analytical equivalent of the “unsuspecting and unresisting” purse snatching victim described in People v. Jackson, supra, 128 Cal.App.4th 1331 against whom a larceny or theft may have been committed, but not a robbery under section 211.
FEAR
In connection with the fear element of section 211, a victim need not explicitly testify that she was afraid to establish that fear was used to facilitate a taking, but there must be evidence from which a trier of fact can infer that the victim was in fact afraid, and that the victim’s fear allowed the crime to be accomplished. (People v. Mungia, supra, 234 Cal.App.3d at pp.1709-1710, fn. 2.) In People v. Mungia, supra, 234 Cal.App.3d 1703, the Court of Appeal, on facts somewhat similar to those presented in this case, rejected the People’s claim that sufficient evidence of fear had been presented to support a robbery conviction for a purse snatching. There, the court summarized the relevant facts as follows: “The evidence showed that [the victim] was not aware of defendant’s approach or planned purse snatch until he had actually snatched her purse from behind. After realizing that her purse was gone and that no one was nearby, she pursued him on foot, and, failing to catch him, nonetheless bent over behind his getaway car long enough to repeat its license number to herself three times in her successful attempt to memorize it. [¶] Although the People attempt to characterize the Kmart parking lot as being deserted, thus adding to the frightening aspect of the crime, a fair reading of the testimony does not indicate that the lot was deserted, but only that there was no one close enough that [the victim] could call him or her to stop defendant.” (Id. at pp. 1709-1710, fn. 2.) In rejecting the People’s claim that the defendant used fear to accomplish the purse snatching, the Court of Appeal held that “[t]here is nothing in the record which indicates, or from which it can be inferred, that [the victim’s] purse was taken from her through the use of fear.” (Ibid.)
In People v. Flynn, supra, 77 Cal.App.4th at p. 772, the court said, “we hold, that the willful use of fear to retain property immediately after it has been taken from the owner constitutes robbery. So long as the perpetrator uses the victim’s fear to accomplish the retention of the property, it makes no difference whether the fear is generated by the perpetrator’s specific words or actions designed to frighten, or by the circumstances surrounding the taking itself.” That the victim had fear is not sufficient. Most victims of a grand theft person (§ 487) would undoubtedly have some fear. It is only when that fear causes the victim to relinquish the property or not try to recover it before the theft is complete that a robbery has occurred.
In this case, the evidence presented to the jury of McNeely’s fear came from her affirmative response to the prosecutor’s question, “Were you afraid at the time that he was taking the bag from you?” This testimony does not serve as evidence that Hill used McNeely’s fear to take the bag from McNeely’s possession because, as the perpetrator in People v. Mungia, supra, 234 Cal.App.3d at page 1710, the evidence shows that Hill approached McNeely from behind and that she was unaware of his presence until after he had taken the bag from her possession.
Based on McNeely’s testimony, McNeely could only have become afraid after her bag was taken, and, thus, her fear can support a robbery conviction only if it assisted Hill in escaping. (See People v. Flynn, supra, 77 Cal.App.4th at pp. 771-772.) There is no evidence, however, from which a reasonable juror could infer that McNeely’s fear assisted Hill in escaping. Hill ran away after taking the bag from McNeely’s possession and McNeely chased after him. Because McNeely chased Hill, despite her fear, no reasonable juror could conclude that McNeely’s fear prevented her from attempting to thwart, or impeded her effort to thwart, Hill’s escape.
Respondent argues that it was reasonable for the jury to infer from the fact that McNeely gave up after chasing Hill for 30 or 40 feet that “McNeely’s ‘fear, ’ because she was alone and unaided, persuaded her to not continue in her pursuit of Hill, which allowed him to get away with the money.” Respondent’s argument is not supported by the record. There was no evidence that McNeely was alone and unaided. In fact, the record shows that the Bank of America branch where McNeely was to make her deposit – at about 10:30 in the morning – was part of a shopping mall that was apparently open. Accordingly, there is not sufficient evidence of the requisite fear to sustain the robbery conviction.
INSTRUCTIONAL ERROR
“Theft is a lesser included offense of robbery. (People v. Valdez (2004) 32 Cal.4th 73, 110 [8 Cal.Rptr.3d 271, 82 P.3d 296].) A criminal defendant has a constitutional right to have the jury determine every material issue presented by the evidence, and an erroneous failure to instruct on a lesser included offense constitutes a denial of that right. To protect this right and the broader interest of safeguarding the jury’s function of ascertaining the truth, a trial court must instruct on an uncharged offense that is less serious than, and included in, a charged greater offense, even in the absence of a request, whenever there is substantial evidence raising a question as to whether all of the elements of the charged greater offense are present. (People v. Heard [(2003)] 31 Cal.4th 946, 980-981 [4 Cal.Rptr.3d 131, 75 P.3d 53]; People v. Waidla [(2000)] 22 Cal.4th 690, 733 [94 Cal.Rptr.2d 396, 996 P.2d 46].)” (People v. Huggins (2006) 38 Cal.4th 175, 215.)
A trial court’s duty to instruct sua sponte on lesser included offenses does not include all possible lesser included offenses. (People v. Huggins, supra, 38 Cal.4th at p. 215.) Instead, “‘“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. [Citations.] ‘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. Hughes [(2002)] 27 Cal.4th 287, 366-367 [116 Cal.Rptr.2d 401, 39 P.3d 432], italics omitted.) The classic formulation of this rule is expressed in People v. Webster [(1991)] 54 Cal.3d 411, 443 [285 Cal.Rptr. 31, 814 P.2d 1273]: ‘When there is substantial evidence that an element of the charged offense is missing, but that the accused is guilty of a lesser included offense, the court must instruct upon the lesser included offense, and must allow the jury to return the lesser conviction, even if not requested to do so.’” (People v. Huggins, supra, 38 Cal.4th at p. 215.)
Substantial evidence was adduced at trial from which a reasonable juror could have concluded that the offense committed against McNeely was grand theft person and not robbery. Without the element of force or fear, a taking from the person is not robbery, but grand theft—a lesser included offense of robbery. (People v. Jones, supra, 2 Cal.App.4th at p. 869; People v. Morales, supra, 49 Cal.App.3d at p. 139.) As discussed above, there was at least substantial, if not conclusive, evidence from which a reasonable juror could have concluded that Hill took McNeely’s bag and escaped with it without the use of force or fear. In earlier cases in which robbery convictions were reversed, the jury was not given that choice through the court’s instructions. Here too, the instruction should have been given. Accordingly, the trial court erred in failing to instruct, sua sponte, on grand theft person as a lesser included offense of robbery. (People v. Huggins, supra, 38 Cal.4th at p. 215.)
A trial court’s error in failing to instruct, sua sponte, on a lesser included offense is reviewed for prejudice under People v. Watson (1956) 46 Cal.2d 818. (People v. Breverman (1998) 19 Cal.4th 142, 178.) Under that standard, in view of the facts set forth above, it is reasonably probable that defendant would have obtained a more favorable outcome had the trial court instructed the jury on grand theft person.