Opinion
D072160
02-06-2018
THE PEOPLE, Plaintiff and Respondent, v. MARIO PEREZ LARA, Defendant and Appellant.
Donna L. Harris, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCS285439) APPEAL from a judgment of the Superior Court of San Diego County, William J. McGrath, Jr., Judge. Affirmed. Donna L. Harris, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant Mario Perez Lara, Jr. guilty of robbery (Pen. Code, § 211, count 1); burglary (§ 459, count 2); unlawful taking of a vehicle (Veh. Code, § 10851, subd. (a), count 3); and false imprisonment (§§ 236 & 237, subd. (a), count 4). The jury also found true the allegations that count 1 was committed in concert with others (§§ 212.5, subd. (a) & 213, subd. (a)(1)(A)); that count 2 involved an inhabited and occupied dwelling (§§ 460, subd. (a) & 667.5, subd. (c)(21)); and that counts 1, 2, and 4 were committed by defendant when he was vicariously armed (§ 12022, subd. (a)(1)).
Defendant and codefendant Eduardo Castro were tried together. The jury acquitted Castro of all charges.
All further statutory references are to the Penal Code unless otherwise noted.
In a subsequent proceeding, defendant admitted he had suffered a prior conviction (i.e., vehicular manslaughter while intoxicated)). The court found the prior conviction qualified as a serious felony prior (§ 667, subd. (a)). At sentencing, the court struck defendant's strike prior and sentenced him to 12 years eight months in prison.
On appeal, Lara contends there is insufficient evidence in the record to support his robbery conviction (i.e., count 1), and the true finding on the in concert allegation appended to this count. He further contends the court erred in failing sua sponte to instruct the jury on the lesser included offense of attempted robbery and on the defense of withdrawal in connection with count 1. As we explain, we disagree with these contentions and affirm his judgment of conviction.
FACTUAL AND PROCEDURAL BACKGROUND
As we must, our review of the evidence is in the light most favorable to the judgment of conviction. (See People v. Osband (1996) 13 Cal.4th 622, 690.)
Jose Treto-Colin testified that on February 15, 2016, he was living in an apartment in National City with his wife, Lorena Leon, and a roommate, Manual Ramirez, whom Treto had known for about seven or eight years. Treto worked construction as a framer. As such, he owned myriad expensive power tools including a compressor, saws, and grinders, which he kept at the apartment.
On February 15, Treto was working on a job in Vista when Leon called at about 9:00 a.m. crying, informing him that several men had just broken into their apartment and pointed a gun at her. Leon testified that while she was sleeping at about 8:30 a.m. that day, she heard "loud banging" at the front door. Because she was in her underwear, Leon began to dress as she sat on the edge of the bed. As she did, she heard another "loud sound" as if someone was attempting to knock down the door. Just then, Leon saw two men come through her bedroom door, which had been closed. One of the men pointed a gun at her. Leon identified codefendant Castro as the man who pointed the gun at her and Lara as the man who stood next to him in the doorway of her bedroom.
Once inside, Lara began questioning Leon about a man named "Fernando." Scared and in shock, Leon told Lara she did not know anyone by that name. Leon also told the men she was pregnant and asked them to put the gun down. Lara's accomplice, however, continued to point the handgun at Leon while both men stood in the doorway of her bedroom.
Lara, who Leon described as visibly upset, explained they had come to the apartment looking for a man who allegedly had stolen his truck. Although frightened, Leon again pleaded with the men to put the gun down and explained she did not know the man Lara was asking about. At some point, Lara, who was doing most of the talking, told his accomplice to put the gun away.
Although Leon was inside the bedroom, she could see at least two other men inside the apartment. Even though her view was somewhat obstructed, Leon saw the men going into other rooms in the apartment. At one point Leon heard one of these other men clearly say, "It is here." Because Lara and his accomplice blocked the doorway, Leon could not leave the bedroom.
After Lara's accomplice put the handgun away, he walked over to Leon's nightstand, took about $350 off of it, and "put it away." As the man was taking the money, Leon heard him say he did so because of what "had been stolen from them." The man then left the bedroom with the money but then returned shortly thereafter. All the while, Lara continued to tell Leon they were at the apartment looking for the man who allegedly had stolen his truck. At some point, Lara mentioned that the man they were looking for owned a green Xterra that was parked at the apartment complex and that Lara and this man had traded vehicles.
The record shows Leon also testified that, when Lara's accomplice took the money off the nightstand, the man stated it was "because of what had been stolen from him." (Italics added.) As noted, however, we view the evidence in the light most favorable to the judgment. (See fn. 3, ante.)
Lara next told Leon to calm down, as they were going to leave the apartment. Leon again pleaded with Lara to return the money they had taken from her nightstand, telling the men neither she nor her husband had anything to do with the missing truck and that she needed the money to go to the doctor. Lara in response instructed his accomplice to give back the money. The man took the money out of his pocket, handed it back to Leon, and demanded she "count it."
As the two men were about to exit the apartment, Leon saw another man with gray hair leaving with what appeared to be a bag containing property taken from the apartment. Before Lara left, he instructed Leon to "stay calm, not to look out, not to do anything." Leon testified that regardless of what Lara told her, she then felt as if she could not move because she was too frightened.
After the men left, Leon waited a few minutes before leaving her bedroom. She went to the front door and found the wooden door frame broken. Leon immediately noticed some of Treto's tools, which she saw under a chair when he left for work early that morning, were missing. She also looked outside and saw the green Xterra, that had been parked right behind their apartment, was gone. Leon knew Ramirez was her husband's friend and had only seen Ramirez a few times because she had recently moved from Tijuana into the apartment to live with her husband.
When Treto arrived home, he found the front door to the apartment wide open, the door frame and jamb split, and dust everywhere. Treto saw that several of his expensive power tools were gone. Treto secured the front door then called police.
About six months before the incident, Treto bought a 2001 Ford truck. Treto never used or drove the truck, which was in disrepair. After unsuccessfully attempting to repair the truck, he sold it to Ramirez for $800. About three weeks before the incident, Ramirez and Lara agreed to a trade of the Ford truck for the Xterra. Ramirez told Treto about the pending trade and Treto assumed Ramirez would complete all the necessary paperwork when he transferred the truck. On the day of the incident, when Treto left for work he saw the Xterra parked outside the apartment. When he arrived home after receiving Leon's call, he too testified that the Xterra was gone.
Ramirez testified he bought the truck from Treto about a month before the incident. Ramirez and Lara worked together in construction and Lara sometimes would pick up Ramirez at the apartment and together they would drive to job sites. Lara at one point told Ramirez he liked the Ford truck and they agreed to a trade. The only time Ramirez drove the Xterra was when he took it to the apartment and parked it.
On the day of the incident, Treto called and informed Ramirez what had happened at their apartment. Ramirez at the time was working in Fallbrook. A short time later, Lara also called Ramirez. Ramirez testified that Lara was extremely upset, accused Ramirez of stealing the Ford truck, and said Ramirez should not have "messed with him." Ramirez explained to Lara that he had not stolen the truck and that he respected Lara and Lara's wife, who at one point had opened their home to him. Lara in response told Ramirez "they had gone looking for [him]" at the apartment and not to involve the police.
About an hour later, Ramirez went to the apartment and found the front door had been broken. Once inside, he noticed some of his clothes, tools, and money missing from his room. Ramirez next drove to Lara's house, parked and called Lara who did not answer. Ramirez testified he went to Lara's house because Ramirez wanted to show his "face" and prove to Lara he had not stolen the Ford truck.
After waiting in front of Lara's house for a "reasonable time," Ramirez went back to his apartment. Because he realized the men who had broken down the door were looking for him, Ramirez left shortly thereafter because he did not feel safe. At some point, Lara called Ramirez and told him to "stop everything that was happening" ostensibly with respect to police involvement. Ramirez told Lara it was out of his hands because other people were involved who had been "most affected" by what Lara and the other men had done. "[F]earing for [his] life," Ramirez stayed away from the apartment for two days. A few days after the incident, Lara's wife called Ramirez and arranged the return of the Xterra to Ramirez.
San Diego police officer Michael Gonzalez testified he was on routine patrol sometime after 2:00 a.m. on February 15, 2016. While investigating an unrelated incident, Officer Gonzalez observed the Ford truck and found its registration had been expired for more than six months. As such, he had the truck impounded and towed.
Before doing so, Officer Gonzalez ran a record's check on the truck's license plate and found the truck was registered to an individual named Jose Ochoa. The records check also showed the truck had been bought by Hector Guzman and sold to Treto. Officer Gonzalez testified it was "not uncommon" for someone to hold title to a vehicle, such as a bank, and for the vehicle to be registered to another person who then sells it to a third person.
Leon gave police a statement on the day of the incident. A few days later, she was shown a photographic lineup after receiving the standard admonishment. Leon immediately identified Lara from the lineup as the man without the gun who had stood in the doorway and questioned her during the incident. Leon also was shown a photographic lineup and given the same admonishment with respect to codefendant Castro. She then was unable to identify Castro as the man who pointed the gun at her during the home invasion robbery. However, at the preliminary hearing and at trial, Leon identified Castro as the gunman.
DISCUSSION
I
Lara contends his conviction on count 1 and the true finding on the robbery in concert allegation should be reversed because there is insufficient evidence to establish that he formed the intent to aid and abet in the commission of the robbery before or while the taking occurred. We reject his contention.
A. Guiding Principles
"In reviewing a sufficiency of evidence claim, the reviewing court's role is a limited one. ' "The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." ' " (People v. Smith (2005) 37 Cal.4th 733, 738-739.)
"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." (§ 211.) The crime is essentially a theft with two aggravating factors, that is, a taking (1) from the victim's person or immediate presence, and (2) accomplished by the use of force or fear. (People v. Marquez (2000) 78 Cal.App.4th 1302, 1308; see People v. Avery (2002) 27 Cal.4th 49, 53, fn. 4.)
B. Analysis
1. Direct Participation
Although Lara did not personally take the $350 in cash or it appears Treto's power tools, the division of labor between him and his accomplices does not mean he is not guilty of robbery under a direct participation theory. The case of People v. Delgado (2013) 56 Cal.4th 480 (Delgado) informs our decision on this point.
There, our high court noted it " 'is often an oversimplification to describe one person as the actual perpetrator and the other as the aider and abettor. When two or more persons commit a crime together, both may act in part as the actual perpetrator and in part as the aider and abettor of the other, who also acts in part as an actual perpetrator.' " (Delgado, supra, 56 Cal.4th at p. 487.) The Delgado court thus recognized that in cases where two defendants jointly participate in a crime, the aider and abettor doctrine " 'obviates the necessity to decide who was the aider and abettor and who was the direct perpetrator or to what extent each played which role.' " (Delgado, supra, 56 Cal.4th at p. 487, quoting People v. McCoy (2001) 25 Cal.4th 1111, 1120.)
Turning to the robbery instructions in the instant case, the court instructed the jury with modified CALCRIM No. 1600 as follows: "The defendants are charged in Count One with robbery in violation of Penal Code section 211. [¶] To prove that a defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant took property that was not his own; [¶] 2. The property was in the possession of another person; [¶] 3. The property was taken from the other person or her immediate presence; [¶] 4. The property was taken against that person's will; [¶] 5. The defendant used force or fear to take the property or to prevent the person from resisting; [¶] AND [¶] 6. When the defendant used force or fear to take the property, he intended to deprive the owner of it permanently or to remove it from the owner's possession for so extended a period of time that the owner would be deprived of a major portion of the value or enjoyment of the property.
"The defendant's intent to take the property must have been formed before or during the time he used force or fear. If the defendant did not form this required intent until after using the force or fear, then he did not commit robbery.
"A person takes something when he or she gains possession of it and moves it some distance. The distance moved may be short. [¶] The property taken can be of any value, however slight. [¶] Two or more people may possess something at the same time.
"A person does not have to actually hold or touch something to possess it. It is enough if the person has control over it or the right to control it, either personally or through another person.
"Fear, as used here, means fear of injury to the person herself or injury to the person's family or property or immediate injury to someone else present during the incident or to that person's property.
"Property is within a person's immediate presence if it is sufficiently within his or her physical control that he or she could keep possession of it if not prevented by force or fear.
"An act is done against a person's will if that person does not consent to the act. In order to consent, a person must act freely and voluntarily and know the nature of the act."
Thus, when the court gave modified CALCRIM No. 1600 it did not specify which of the two defendants (i.e., Lara or Castro) was the aider and abettor and/or the direct perpetrator. The same is true when the court instructed the jury with modified CALCRIM Nos. 400 and 401 regarding aiding and abetting.
The jury was instructed as follows regarding the general principles of aiding and abetting: "A person may be guilty of a crime in two ways. One, he or she may have directly committed the crime. I will call that person the perpetrator. Two, he or she may have aided and abetted a perpetrator, who directly committed the crime. [¶] A person is guilty of a crime whether he or she committed it personally or aided and abetted the perpetrator."
The jury also was instructed regarding the elements of aiding and abetting as follows: "To prove that a defendant is guilty of a crime based on aiding and abetting that crime, the People must prove that: [¶] 1. The perpetrator committed the crime; [¶] 2. The defendant knew that the perpetrator intended to commit the crime; [¶] 3. Before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime; [¶] AND [¶] 4. The defendant's words or conduct did in fact aid and abet the perpetrator's commission of the crime.
"Someone aids and abets a crime if he or she knows of the perpetrator's unlawful purpose and he or she specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator's commission of that crime. [¶] If all of these requirements are proved, the defendant does not need to actually have been present when the crime was committed to be guilty as an aider and abettor.
"If you conclude that defendant was present at the scene of the crime or failed to prevent the crime, you may consider that fact in determining whether the defendant was an aider and abettor. However, the fact that a person is present at the scene of a crime or fails to prevent the crime does not, by itself, make him or her an aider and abettor."
Nor did the jury verdict on count 1 delineate guilt based on a direct perpetrator versus an aider and abettor theory of liability, as it merely provided: "We, the jury in the above entitled cause, find the defendant, Mario Perez Lara, Jr., [guilty] of the crime of ROBBERY, in violation of Penal Code section 211, as charged in Count One of the Information."
Here, as in Delgado, the evidence in the record supports the finding Lara and his accomplices jointly participated in the crime of robbery. (See Delgado, supra, 56 Cal.4th at p. 487.) As such, it is unnecessary to decide between these men, including the accomplice who stood next to Lara and pointed a gun at Leon, "who was the aider and abettor and who was the direct perpetrator." (See ibid.)
Specifically, the evidence in the record shows Lara and his accomplices were involved in the taking of property that was not their own, including the $350 on the nightstand in Leon's bedroom that Lara's accomplice took while announcing it was for repayment of the truck allegedly stolen from "them." The record further shows after the accomplice took the money, he left the bedroom while Lara continued to remain in the doorway, blocking not only Leon's exit from the room but also preventing her from seeing the other men roaming inside the apartment taking property that did not belong to them. Although Lara's accomplice returned to the bedroom and, as a result of Leon's pleas and Lara's command, later returned the money, the evidence in the record shows the accomplice both possessed the money with the intent to keep it and carried it away. (See People v. Cooper (1991) 53 Cal.3d 1158, 1165 (Cooper) [noting the "taking element of robbery itself has two necessary elements, gaining possession of the victim's property and asporting or carrying away the loot"].)
With respect to the power tools belonging to Treto that were stolen from the apartment, the record also supports the finding they were in Leon's "immediate presence" for purposes of the robbery statute. (See § 211.) "Immediate presence" is "spatially, rather than temporally, descriptive" (Cooper, supra, 53 Cal.3d at p. 1166), and thus "refer[s] to the area from which the property is taken, not how far it is taken" or for what duration. (Ibid.) Key to the instant case, a " ' "thing is in the [immediate] presence of a person, in respect to robbery, which is so within his [or her] reach, inspection, observation or control, that he [or she] could, if not overcome by violence or prevented by fear, retain his [or her] possession of it." ' " (People v. Hayes (1990) 52 Cal.3d 577, 626-627, italics added, citations omitted; see People v. Frye (1998) 18 Cal.4th 894, 956 [noting the "immediate presence" component focuses on whether the stolen property was located in an area in which the victim could have been expected to take effective steps to retain control over his or her property]; see also People v. Estes (1983) 147 Cal.App.3d 23, 27 [concluding a shoplifting defendant who was confronted by a store security guard outside the store unlawfully took the merchandise in the guard's "immediate presence" because the guard was "in constructive possession of the merchandise to the same degree as a salesperson"]; People v. Phillips (1962) 201 Cal.App.2d 383, 384-387 [concluding the defendant took gasoline in the "immediate presence" of the victim employee after the defendant had the employee pump gasoline into his car and then confronted the employee with a rifle, refusing to pay for the gas], cited with approval in People v. Anderson (1966) 64 Cal.2d 633, 638.)
The evidence in the record also shows Lara and his accomplice accomplished the taking of the money and power tools against Leon's will and by "force or fear." Clearly, having a gun pointed at her while others roamed the apartment taking property supports a finding on both elements. (See Cooper, supra, 53 Cal.3d at p. 1165, fn. 8.)
Finally, although Leon ultimately persuaded Lara and his accomplice to return the money, this is not a defense to a completed theft, as is the case here. (See People v. Pond (1955) 44 Cal.2d 665, 674 [noting that "[r]estoration of property feloniously taken or appropriated is no defense to a charge of theft"]; People v. Bradley (2012) 208 Cal.App.4th 64, 81-82 (Bradley) [noting " 'offers of restoration, in whole or in part, [are] only matters which the court might consider in mitigation of punishment' "].) There is more than sufficient evidence in the record to support the finding that when Lara's accomplice took the money from the nightstand as Lara stood guard, they intended to deprive Leon of it permanently, inasmuch as the money was taken as repayment, or a quid pro quo, for the truck which they believed had been stolen from them. (See People v. Kelley (1990) 220 Cal.App.3d 1358, 1366 [noting robbery requires among other elements a showing of a taking "with an intent to permanently deprive the owner of his [or her] property"].)
In sum, we conclude this evidence is sufficient to support Lara's conviction on count 1 and the true finding on the in concert allegation in connection with that count under the theory he and his accomplices jointly participated in the robbery of the $350 from Leon's nightstand and of Treto's power tools. (See Delgado, supra, 56 Cal.4th at p. 487.)
2. Aiding and Abetting
We further conclude aiding and abetting provides yet another avenue to support Lara's conviction on count 1. (See Delgado, supra, 56 Cal.4th at p. 492.) In contrast to a direct perpetrator, " 'an aider and abettor is a person who, "acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime." ' " (People v. Jurado (2006) 38 Cal.4th 72, 136 (Jurado).) The requisite intent to render such aid must be formed prior to or during the commission of the crime. (Cooper, supra, 53 Cal.3d at p. 1164.)
Factors that are probative on the issue of knowledge and intent include "presence at the scene of the crime, companionship and conduct before and after the offense, including flight." (People v. Mitchell (1986) 183 Cal.App.3d 325, 330 (Mitchell); see also People v. Miranda (2011) 192 Cal.App.4th 398, 407 [same].) "Whether defendant aided and abetted the crime is a question of fact, and on appeal all conflicts in the evidence and reasonable inferences must be resolved in favor of the judgment." (Mitchell, at p. 329.)
Here, all of the probative factors relative to aiding and abetting are present. Lara not only was present at the scene of the crime, but he and his companions went to the apartment because Lara believed his Ford truck allegedly had been stolen. (See Jurado, supra, 38 Cal.4th at p. 136.)
Moreover, Lara's conduct both before and after the incident strongly support the finding he knew of the unlawful purpose of his accomplices and intended to facilitate and aid in the commission of the crime. (See Jurado, supra, 38 Cal.4th at p. 136.) Indeed, instead of calling police to report his truck stolen, as he believed was the case and as most people would have done, or instead of calling Ramirez to ask about the truck, Lara along with three accomplices went to the apartment, broke down the front door, and confronted Leon at gunpoint about the missing truck.
Moreover, Lara and an accomplice stood side by side in the doorway preventing Leon from leaving her bedroom. While they stood in the doorway, at least two other accomplices roamed the apartment and took property, including Treto's power tools which were never returned. The record shows Lara at no point attempted to stop his accomplices from taking this property or questioned their reason for doing so. Nor did Lara stop his accomplice from taking the $350 on the nightstand, even after this man remarked it was repayment for the missing truck. And of course, when the men left they also took the Xterra that Lara had traded to Ramirez.
But that's not all. Right before they left, Lara told Leon to "stay calm," "not to look out" and "not to do anything." In light of Ramirez's testimony that Lara wanted Ramirez to call off the police when they spoke by phone later that day, a jury could reasonably find that Lara's instructions "not to do anything" meant Leon was not to involve police.
We conclude this evidence supports the finding Lara was not merely "present" at the apartment during the commission of the crime. (See People v. Nguyen (1993) 21 Cal.App.4th 518, 529-530 [noting "[m]ere presence at the scene of a crime is not sufficient to constitute aiding and abetting, nor is the failure to take action to prevent a crime, although these are factors the jury may consider in assessing a defendant's criminal liability"].) Rather, it is strong circumstantial evidence that Lara and his accomplices went to the apartment to obtain property as a quid pro quo for Lara's missing truck.
Lara contends there is insufficient evidence that he intended to aid or encourage the robbery because he ultimately instructed his accomplice to return the money taken from Leon's nightstand. While this may have been one possible interpretation of the evidence, it by no means was the only interpretation, as we have discussed. As the trier of fact, the jury was entitled to accept or, as turned out to be the case here, reject Lara's argument and make different findings that as noted, are supported by sufficient evidence in the record. (See People v. Koontz (2002) 27 Cal.4th 1041, 1078 [recognizing the well-accepted principle that a court of review cannot substitute its evaluations of the credibility of a witness or witnesses for the of the trier of fact].) We thus conclude Lara also was properly convicted on count 1 under an aider and abettor theory of vicarious liability.
II
Lara next contends the court erred when it failed sua sponte to instruct the jury on the lesser included offense of attempted robbery because he contends a jury reasonably could have concluded that his accomplice (i.e., Castro) took a direct, albeit ineffectual, step when he pocketed the $350 from Leon's nightstand and later returned it. We reject his contention.
A. Guiding Principles
It is axiomatic that a court must instruct the jury on all general principles of law relevant to the issues raised by the evidence. This includes instructing sua sponte on lesser included offenses if there is substantial evidence that would absolve the defendant of guilt of the greater offense but not of the lesser. (People v. Whalen (2013) 56 Cal.4th 1, 68 (Whalen); People v. Waidla (2000) 22 Cal.4th 690, 733.)
However, " ' "the existence of 'any evidence, no matter how weak' will not justify instructions on a lesser included offense . . . ." [Citation.] Such instructions are required only where there is "substantial evidence" from which a rational jury could conclude that the defendant committed the lesser offense, and that he [or she] is not guilty of the greater offense. [Citations.]' [Citation.]" (Whalen, supra, 56 Cal.4th at p. 68.) We independently review the question of whether the court failed to instruct on a lesser included offense. (People v. Avila (2009) 46 Cal.4th 680, 705.)
B. Analysis
The issue concerning this claim of error is not whether attempted robbery is a lesser included offense of robbery, as that clearly is the case. (See People v. Webster (1991) 54 Cal.3d 411, 443; see also § 21a [providing an "attempt to commit a crime consists of two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission"].) Instead, the issue is whether there was substantial evidence to support such an instruction. (See Whalen, supra, 56 Cal.4th at p. 68.)
As noted ante, the record provides more than sufficient evidence that Lara was guilty of robbery under both a direct perpetrator and aiding and abetting theory. As also noted ante, that Lara's accomplice took the money off the nightstand, but later returned it, does not make the crime an attempted robbery. Rather, once Lara's accomplice took the money, put it in his pocket, and announced he was taking it in return for the truck that had been stolen from them, the crime of robbery was completed. (See Cooper, supra, 53 Cal.3d at p. 1174 [concluding a robbery is complete " 'when the robbers without lawful authority and by means of force or fear obtain possession of the personal property of another in the presence of its lawful custodian and reduce it to their manual possession' "].)
Moreover, putting aside the money that was taken from Leon's nightstand, the record shows Treto's power tools also were taken. Thus, even assuming the court erred in failing to give the lesser included instruction of attempted robbery in connection with the taking of the $350, we conclude this error was harmless in light of the fact Lara and his accomplices also took Treto's power tools, which were never returned. (See People v. Banks (2014) 59 Cal.4th 1113, 1161 [observing its "precedent holds that an erroneous failure to instruct the jury on a lesser included offense is subject to harmless error analysis under People v. Watson (1956) 46 Cal.2d 818, 837, and that evidence sufficient to warrant an instruction on a lesser included offense does not necessarily amount to evidence sufficient to create a reasonable probability of a different outcome had the instruction been given"].) For this separate reason, we reject Lara's contention that the court erred in failing sua sponte to instruct the jury on the lesser included offense of attempted robbery.
III
Finally, in light of our decision in this case in connection with count 1, we reject Lara's contention that the court erred when it failed sua sponte to instruct the jury on the defense of withdrawal based on his accomplice's return of the $350. In any event, we note this defense applies, if at all, when a defendant withdraws from the commission of a contemplated crime before it is committed by the perpetrators. (See People v. Fiu (2008) 165 Cal.App.4th 360, 383-384 [noting a defendant will not be liable as an aider and abettor for a contemplated crime "despite the fact he [or she] aided, promoted, encouraged, or instigated the commission of the crime with the intent that it be committed, if he [or she] effectively withdraws from participation in the crime before it is committed"].)
Here, we note there is no substantial evidence in the record to support the finding Lara voluntarily withdrew from participating in the robbery of the money, which as noted, was complete when his accomplice put it in his own pocket as he announced his intention to keep the money as a quid pro quo for the missing truck; or of the power tools, before those crimes were committed by him and his accomplices.
We further note the court at sentencing relied in part on Lara's attempts to "deescalate the situation" with the gun, once the men had burst into the apartment, when it exercised its discretion and struck Lara's strike prior under People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 505. (See Bradley, supra, 208 Cal.App.4th at pp. 81-82 [noting " 'offers of restoration, in whole or in part, [are] only matters which the court might consider in mitigation of punishment' "].)
DISPOSITION
Lara's judgment of conviction is affirmed.
BENKE, J. WE CONCUR: McCONNELL, P. J. DATO, J.