Opinion
2d Crim. No. B227829 Super. Ct. No. KA089302
09-28-2011
THE PEOPLE, Plaintiff and Respondent, v. GARY GABRIEL SANCHEZ, Defendant and Appellant.
Alan C. Stern, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, Elaine F. Tumonis, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County)
Gary G. Sanchez appeals from judgment after conviction by jury of one count of second degree robbery. (Pen. Code, § 211.) In a bifurcated proceeding, he admitted he had sustained seven prior felony convictions within the meaning of the Three Strikes law (Pen. Code, §§ 667, subds. (b)-(i); 1170 subds. (a)-(d)) and one prior serious felony conviction within the meaning of section 667, subdivision (a)(1)). The trial court sentenced appellant to 30 years to life in state prison, consisting of 25 years to life (§ 667, subd. (e)(2)(A)), plus a consecutive five-year term. (§ 667, subd. (a)(1).)
Appellant contends that the trial court prejudicially erred when it refused to instruct the jury on petty theft as a lesser included offense of the charged robbery. He contends the jury could reasonably have concluded that his use of an aerosol spray to resist a store employee's efforts to retrieve stolen merchandise did not constitute use of force or fear. We affirm.
FACTUAL AND PROCEDUAL BARKGROUND
Appellant left a 99 Cent store with a bag for which he had not paid. The manager told him to stop, but he continued. She directed a cashier, Alejandro Martin, to chase him. Martin caught up to appellant and they confronted each other. Appellant was holding the store's bag. Martin, who was wearing a store uniform, asked appellant to show him a receipt. Appellant responded, "No, I already paid for it," and "Fuck no." Martin continued to insist on seeing the receipt and tried to get the bag. Appellant started to walk towards Martin and Martin backed up. Appellant then walked away and Martin followed. Appellant turned back and sprayed something toward Martin's face that smelled like air freshener. Martin protected his face with his arm and appellant ran away. Another cashier saw the confrontation and saw appellant spray Martin and run. The spray left something white on Martin's arm. At trial he still did not know what it was.
Martin got into the other cashier's car and they chased appellant. Appellant sprayed something at the car and tried to kick the car with his foot. They backed off so he wouldn't hurt the car and he got away. They did not initially tell the police about chasing him with the car and the prosecution did not rely on the encounter with the car to prove the element of force or fear.
Appellant had left his own backpack in the store, which contained identifying information. Martin identified appellant in court, but not in a photo line-up. The other cashier identified Martin in a photo line-up. The employee who saw appellant take the bag from the store without paying also identified appellant in a photo line-up and in court. Each said appellant had a beard and mustache on the day he took the bag. At trial, he was clean shaven.
At trial, appellant's sister testified that she was with him at the 99 Cent store. They met at the store, shopped together, she paid for their items, they left together in her car, and she dropped him off at a bus stop. She testified that her brother was clean shaven at the time. Store employees testified that appellant was alone. Surveillance footage could not be retrieved.
The court denied appellant's request to instruct the jury on petty theft as a lesser included offense of robbery. The court instructed the jury that force or fear was an essential element of robbery. The prosecution argued that appellant used force when he sprayed Martin to facilitate his escape. The defense argued to the jury that appellant was not the perpetrator. The defense did not challenge the sufficiency of evidence of force or fear, and counsel acknowledged to the jury that "[t]here's not a lot of contention we have as to what happened out there."
DISCUSSION
Theft is a lesser, necessarily included offense of robbery. (People v. Ramkeesoon (1985) 39 Cal.3d 346, 351.) A trial court must instruct on necessarily included offenses, whether or not requested, if the evidence raises a question whether all the elements of the charged offense are present and there is evidence that would justify a conviction of a lesser offense. (Ibid.)"[I]nstructing on lesser included offenses shown by the evidence avoids forcing the jury into an 'unwarranted all-or-nothing choice' [citations] that could lead to an unwarranted conviction." (People v. Hughes (2002) 27 Cal.4th 287, 365, quoting People v. Wickersham (1982) 32 Cal.3d 307,324, disapproved on another ground in People v. Barton (1995) 12 Cal.4th 186, 201.)
Appellant argues that the evidence raised a question as to whether he used force or fear when he used a "benign" spray to facilitate his escape. The elements of robbery are (1) a felonious taking, (2) of personal property in the possession of another, (3) from his person or immediate presence and against his will, (4) accomplished by means of force or fear. (§ 211.) Forcible resistance of a store employee's efforts to retake stolen merchandise may be sufficient to constitute robbery, even where the merchandise is initially removed from the store without force of fear. (People v. Gomez (2008) 43 Cal.4th 249, 257; People v. Estes (1983) 147 Cal.App.3d 23, 26.)
Here, the jury heard conflicting evidence regarding the identity of the perpetrator, but the evidence of force was entirely consistent. The undisputed testimony was that the perpetrator sprayed Martin in the course of resisting Martin's efforts to retake the merchandise and was thereby able to run away from him. The degree of force is immaterial; all that is required is sufficient force to overcome the victim's resistance. (People v. Jones (1992) 2 Cal.App.4th 867, 870.) Martin was not injured and the spray may have been harmless, but the testimony was undisputed that the spray was sufficient to overcome Martin's efforts to retake the bag and it allowed appellant to escape. There was no duty to instruct on the lesser included offense because there was no evidence that the crime was less than that charged. (People v. Moore (2011) 51 Cal.4th 386, 408-409.)
Appellant's reliance on People v. Brew (1991) 2 Cal.App.4th 99 and People v. Morales (1975) 49 Cal.App.3d 134 is misplaced. In Brew, a lesser included instruction should have been given, because the perpetrator did not speak to or touch the cashier from whom he took the money, and the defense argued that there was no force or fear. (Brew, at pp. 104-106.) In Morales, a lesser included instruction should have been given because the evidence supported conflicting inferences as to whether the victim was pushed or whether she lost her balance. (Morales, at p. 140.) Here, no lesser included instruction was required because the only version of events involved the use of force.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
COFFEE, J. We concur:
GILBERT, P.J.
PERREN, J.
George Genesta, Judge
Superior Court County of Los Angeles
Alan C. Stern, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, Elaine F. Tumonis, Deputy Attorney General, for Plaintiff and Respondent.