Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F08561
BLEASE, Acting P.J.
A jury found defendant Brian Scott Meyers guilty of grand theft from a person (Pen. Code, § 487, subd. (c); further undesignated section references are to this code), a lesser included offense to the charged crime of robbery (§ 211). The trial court suspended imposition of sentence, placing defendant on five years probation and ordering him to serve one year in county jail.
The offense is often referred to as “grand theft person” and will be referred to as such in this opinion.
On appeal, defendant contends the jury’s verdict is not supported by substantial evidence because there was no evidence he did anything to separate the purse from the victim’s person, and that the trial court failed to instruct the jury as to the lesser included offense of petty larceny. Because defendant’s first contention has merit, we shall reverse the judgment of conviction for grand theft person and direct that the trial court enter a judgment for petty theft and modify the sentence accordingly. In all other respects we shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
After bringing her boyfriend lunch at work, Francine Nguyen sat in her car in the parking lot listening to music and napping before going to class. The driver’s side window was halfway down, and Nguyen’s purse was lying on the passenger seat next to her. Nguyen awoke to find the defendant, whom she had seen earlier in the parking lot, hovering over her through the driver’s side window and reaching for her purse. Startled, she tried to grab her purse, but was unable to because the defendant “yanked it” out of her reach. Nguyen opened the door and tried again unsuccessfully to grab her purse as defendant ran away. When she told her boyfriend what happened, he ran after the defendant and recovered the purse. $180 in cash was missing. Defendant was later apprehended and positively identified by Nguyen as the thief.
By a complaint deemed to be the information, defendant was charged with a single felony count of second degree robbery in violation of section 211.
At the conclusion of trial, the jury was instructed on both the robbery count and the lesser included offense of grand theft person. Although it was unable to reach a unanimous verdict on the charge of robbery, the jury found defendant guilty of grand theft person. The prosecution dismissed the robbery count in the interest of justice.
The trial court suspended sentence and placed defendant on formal probation for five years, ordering him to serve one year in county jail.
Defendant filed a timely notice of appeal.
DISCUSSION
I
Substantial Evidence to Prove Grand Theft Person
Defendant contends there was no evidence that he took the purse from Nguyen’s person, a necessary element to prove the crime of grand theft person. As a consequence, he argues, his conviction must be reversed. We agree that there was insufficient evidence to prove an element of grant theft person.
In reviewing the sufficiency of the evidence on appeal, the appellate court “must 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.)
Grand theft is committed when property is taken from the person of another. (Pen. Code, § 487, subd. (c).) Defendant contends Nguyen was neither carrying her purse nor holding it on her lap, but rather had set it aside on the passenger seat, and never made contact with the purse “at any time as [defendant] was removing it from the car.” Indeed, the record confirms that to be true. Whether or not those facts are sufficient to prove that defendant took the purse from Nguyen’s person for purposes of grand theft person requires a brief recitation of relevant case law on that subject.
The seminal case regarding what constitutes taking property “from the person of another” is People v. McElroy (1897) 116 Cal. 583 (McElroy). In that case, Shaw and the defendant had their beds near each other in the open air. Upon going to bed, Shaw removed his trousers, in the pocket of which was the money, and placed them under his head as a pillow. While Shaw slept, the defendant stole the money from his pants. (Id. at p. 584.) In interpreting section 487, subdivision (c), the California Supreme Court noted that the “obvious purpose [of the statute] was to protect persons and property against the approach of the pickpocket, the purse-snatcher, the jewel abstracter, and other thieves of like character who obtain property by similar means of stealth or fraud, and that it was in contemplation that the property shall at the time be in some way actually upon or attached to the person, or carried or held in actual physical possession -- such as clothing, apparel, or ornaments, or things contained therein, or attached thereto, or property held or carried in the hands, or by other means, upon the person; that it was not intended to include property removed from the person and laid aside, however immediately it may be retained in the presence or constructive control or possession of the owner while so laid away from his person and out of his hands. (Id. at p. 586.) Against that backdrop, the court concluded that the facts did not constitute grand theft person, given that “[t]he garment from which the money was taken was not at the time on the person of Shaw; it was folded up and used as a part of his bed. Had the garment alone been taken under like circumstances the theft could not be held to have been from the person.” (Id. at pp. 586-587.)
McElroy has since been put to the test by a number of cases. Of relevance here are In re George B. (1991) 228 Cal.App.3d 1088 (George B.) and People v. Huggins (1997) 51 Cal.App.4th 1654 (Huggins), in which taking grocery bags from a grocery cart pushed by the victim and stealing a purse from its resting place against the victim’s foot were both acts sufficient to constitute taking from the person of another, and People v. Williams (1992) 9 Cal.App.4th 1465 (Williams), in which the act of taking a purse off the passenger seat of the victim’s car was not found to be sufficient to constitute taking from the person of another.
In George B., the court held that the theft of a bag of groceries from a shopping cart as the victim was pushing the cart in the parking lot of a market constituted grand theft person because the victim carried the bag by means of the shopping cart, and the contents of the shopping cart were therefore attached to the victim through the medium of the shopping cart, which the victim was both in physical contact with and in control of. (George B., supra, 228 Cal.App.3d at pp. 1091-1092.)
In Huggins, the victim sat down in a chair and put her purse on the floor, placing it against her foot to make sure she knew where it was. Defendant grabbed the purse and ran out the door. (Huggins, supra, 51 Cal.App.4th at p. 1656.) This court concluded that, because “the purse was at all times in contact with the victim’s foot” and her purpose in placing it there “was to retain dominion and control” over it, there was sufficient evidence to show that the purse was taken from her person. (Id. at p. 1657.)
Huggins is not applicable here because, unlike the victim in Huggins, no part of Nguyen’s body was in physical contact with her purse. Although the People urge us to expand the holding in George B. to liken contact with a shopping cart to contact with the interior of an automobile (by virtue of sitting in it), we are not persuaded that such an expansion is appropriate.
This case is, however, closely analogous to Williams, in which the victim, after just completing her grocery shopping, put her groceries on the back seat of the car, threw her purse onto the front passenger seat, sat down in the driver’s seat, and opened the passenger door. The defendant approached her, pushed her back in her seat, and grabbed her purse from the passenger seat. (Williams, supra, 9 Cal.App.4th at pp. 1468-1469.) The court found that, at the time the defendant took the victim’s purse, the purse was lying on the car seat and was neither “upon [her] person, attached to her in any way, or carried by her.” Further finding that she had “laid the purse aside, although it remained in her immediate presence and was under her actual control,” the court concluded, under the authority of McElroy, that the evidence was insufficient to sustain a conviction for grand theft person. (Id. at pp. 1471-1472.)
Here, as in Williams, Nguyen’s purse was laying on the passenger seat next to her. She was not touching the purse in any way and had laid it aside while she listened to music and napped. We conclude that, because defendant did nothing to separate the purse from Nguyen’s person, the evidence was insufficient to support the verdict as to grand theft person.
When the verdict is contrary to the law or evidence, this court may modify the verdict by reducing the degree of the offense to that of a lesser included offense. (§ 1181, subd. 6 and § 1260; see People v. Adams (1990) 220 Cal.App.3d 680, 688.) 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.) “Theft is a lesser included offense of robbery without the additional element of taking by force or fear.” (People v. Brito (1991) 232 Cal.App.3d 316, 325, citing People v. Ramkeesoon (1985) 39 Cal.3d 346, 351, fn. omitted.) The evidence demonstrated that defendant took Nguyen’s purse from her immediate presence and against her will. Pursuant to the authority granted us by section 1181, subdivision 6, we do find the evidence was sufficient to support a conviction of petty theft (§ 488). We shall therefore modify the judgment and remand for resentencing. Consequently, we need not address defendant’s second contention regarding failure to instruct the jury on the lesser included offense of petty theft.
DISPOSITION
The judgment of conviction of grand theft of the person in violation of Penal Code section 487, subdivision (c) is reversed and the trial court is ordered to enter a judgment of conviction of petty theft in violation of section 488. So modified, the judgment is affirmed. The matter is remanded to the trial court for resentencing in accordance with that modification. Following resentencing, the clerk of the court shall forward a copy of the new abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: RAYE, J., CANTIL-SAKAUYE, J.