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People v. Harrell

Court of Appeal of California
May 10, 2007
No. E040439 (Cal. Ct. App. May. 10, 2007)

Opinion

E040439

5-10-2007

THE PEOPLE, Plaintiff and Respondent, v. JOSHUA HARRELL, Defendant and Appellant.

Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, and Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED


I. INTRODUCTION

Joshua Marshall ("defendant") was charged with and convicted of second degree robbery, in violation of Penal Code section 211. The court sentenced defendant to two years in state prison.

Defendant appeals his conviction, contending (1) the evidence was insufficient to support his conviction for robbery, and (2) the special instruction defining the term "force" violated due process by reducing the prosecutions burden of proof. We find no error, and we affirm.

II. STATEMENT OF FACTS

Through the use of a Korean translator, Jung Hee Kim ("the victim") testified that on the morning of December 8, 2005, she went shopping at the Home Goods store in Rancho Cucamonga. While looking at some blankets on the shelves, the victim momentarily left her purse unattended in her shopping carts child seat. When the victim turned back around, she realized her purse was gone.

She looked up from the shopping cart and saw defendant walking away. She caught up to him and said that her "hand bag [had] disappeared." The victim knew defendant had her purse tucked away in his jacket, so she tried to stop him from leaving the store. Walking along side defendant, the victim screamed, "`help me, help me." When she actually saw the purse inside defendants jacket, she grabbed the left side of the jacket.

At this point, the victims testimony regarding the events became confusing. The victim testified that when she grabbed defendants jacket, he "just snatched it away from [the victim] [and] then ran away." The victim clarified that defendant never actually touched or pushed her, but she fell down after grabbing defendants jacket. The clearest description from the victim was that defendant "just snatched [his jacket] so he could get away."

Shortly thereafter, the police apprehended defendant and returned the victims purse.

III. DISCUSSION

A. Sufficiency of Evidence for "Force" Requirement of Robbery

Defendant challenges the sufficiency of the evidence in establishing the "force" element in the crime of robbery. Section 211 defines robbery as "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." (Italics added.) Without the use of force or fear, the crime changes from robbery to theft. (People v. Church (1897) 116 Cal. 300, 303-304.) No one contends that "fear" was used in perpetuating the robbery, so we focus solely on the use of force.

The jury must determine force based upon the evidence at trial. (People v. Church, supra, 116 Cal. at pp. 302-303; People v. Lescallett (1981) 123 Cal.App.3d 487, 491; People v. Mungia (1991) 234 Cal.App.3d 1703, 1708-1709 (Mungia).) To analyze a challenge to a criminal conviction based on insufficiency of the evidence, the 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.) Further, if the trier of facts findings are reasonable, a reversal is not warranted when the reviewing court determines that the circumstances could justify alternate findings. This means the defense bears an "`enormous burden" when challenging the sufficiency of the evidence. (People v. Vasco (2005) 131 Cal.App.4th 137, 161.)

A theft becomes a robbery "`"if the perpetrator, having gained possession of the property without use of force or fear, resorts to force or fear while carrying away the loot."" (People v. Torres (1996) 43 Cal.App.4th 1073, 1079, disapproved on other grounds in People v. Mosby (2004) 33 Cal.4th 353, 363, 365; see also Miller v. Superior Court (2004) 115 Cal.App.4th 216, 222; People v. Cooper (1991) 53 Cal.3d 1158, 1164-1165.) The level of force has to exceed what is needed to take the property. (People v. Morales (1975) 49 Cal.App.3d 134, 139; People v. Thomas (2005) 133 Cal.App.4th 488, 494.) However, all the force needed is that which overcomes the victims resistance (People v. Clayton (1928) 89 Cal.App. 405, 411; People v. Lescallett, supra, 123 Cal.App.3d at p. 491 [force applied when woman felt purse being snatched from her hand], overruled on another point in People v. Allison (1989) 48 Cal.3d 879, 895), and because force is relative, the jury can take into account that a small person is more vulnerable to applied force than a larger person. (Mungia, supra, 234 Cal.App.3d at p. 1709.)

In Mungia, the defendant applied force after the initial theft by pushing a vulnerable victim. (Mungia, supra, 234 Cal.App.3d at p. 1709.) The defendant snatched the victims purse and then shoved her off balance as he tried to get away. The victim testified that the shove was a separate motion from the actual snatching of the purse. (Id. at pp. 1706-1707.) The victim testified that she was eight months pregnant and only five feet four inches tall, which made her more susceptible to the use of force. (Id. at pp. 1707, 1709.) The court held that the defendant committed robbery by using "more force than necessary to accomplish the snatching of [the victims] purse and to overcome any resistance by her." (Id. at 1709.)

Similar to the defendant in Mungia, supra, 234 Cal.App.3d 1703, defendant in this case applied force to the victim after the theft by overcoming her resistance. Defendant did not initially commit a robbery when he took the purse out of the shopping cart. However, the theft turned into a robbery when defendant overcame the victims attempt to resist the theft by pulling on his jacket. Similar to the victim in Mungia, here the victim was small (a little over five feet tall), so defendants tug had a substantial enough impact to make her fall down. Thus, the jury could reasonably find that defendant used more force than necessary to overcome the victims resistance when fleeing from the purse theft, which constituted robbery. (People v. Torres, supra, 43 Cal.App.4th at p. 1079; see also Miller v. Superior Court, supra, 115 Cal.App.4th at p. 222; People v. Cooper, supra, 53 Cal.3d at pp. 1164-1165.)

Defendant argues his case is distinguishable because he did not touch the victim, and therefore he could not apply force. However, force is used when the defendant wrestles a purse away from a resisting victim (People v. Thomas, supra, 133 Cal.App.4th at p. 494), which is precisely what occurred here. The victim grabbed defendants jacket in an attempt to regain control of her purse. Defendant used more force than necessary to overcome the victims resistance when he fled from the scene of the theft.

B. Jury Instruction Defining the Term "Force"

Defendant contends that the trial court erred in allowing the prosecution to submit a special instruction to the jury on the force element of robbery. The special instruction stated, "All the force that is required to make the offense a robbery is such force as is actually sufficient to overcome the victims resistance." Defendant claims the instruction violated his due process rights by presuming the presence of the force element, instead of letting the jury make that determination based on fact.

"The Due Process Clause of the Fourteenth Amendment denies States the power to deprive the accused of liberty unless the prosecution proves beyond a reasonable doubt every element of the charged offense. [Citation.] Jury instructions relieving States of this burden violate a defendants due process rights. [Citations.] Such directions subvert the presumption of innocence accorded to accused persons and also invade the truth-finding task assigned solely to juries in criminal cases." (Carella v. California (1989) 491 U.S. 263, 265; see also In re Winship (1970) 397 U.S. 358, 364; §§ 1124, 1126, 1127.) Therefore, when the judge determines matters of fact for the jury, he or she directs a verdict in violation of the defendants Constitutional rights.

"In deciding whether an instruction is erroneous, we ascertain at the threshold what the relevant law provides. We next determine what meaning the charge conveys in this regard. Here the question is, how would a reasonable juror understand the instruction. [Citation.] In addressing this question, we consider the specific language under challenge and, if necessary, the charge in its entirety. Finally, we determine whether the instruction, so understood, states the applicable law correctly." (People v. Warren (1988) 45 Cal.3d 471, 487.)

A trial judge may not direct a verdict of guilt no matter how strong the evidence. (People v. Figueroa (1986) 41 Cal.3d 714, 724.) A judge directs a verdict when he or she gives an instruction that effectually eliminates the jurys fact-finding responsibilities. (Ibid.) "`[No] fact, not even an undisputed fact, may be determined by the judge. [Citations.]" (Ibid.)

In People v. Figueroa, supra, 41 Cal.3d 714, the trial court directed a verdict by instructing the jury that an element of the crime had been established. The defendants were charged with selling unqualified securities in violation of Corporations Code section 25110. (Id. at pp. 717-718.) The judge instructed the jury that the promissory notes the defendants sold were "`securities" within the meaning of the statute and as a matter of law. (Id. at p. 723.) The Supreme Court held that the judge erred. (Id. at p. 724.)

This case is distinguishable from People v. Figueroa, supra, 41 Cal.3d 714, in that the trial court did not instruct the jury that the force element had been established as a matter of law. Rather, the trial court sought to clarify the meaning of "force" within the meaning of section 211. The trial courts instruction more closely resembles those given in People v. Brown (1988) 46 Cal.3d 432, where, in the trial for the murder of a peace officer during the performance of his duties, the trial court instructed that a Garden Grove police officer was a peace officer. The Supreme Court stated that "the [trial] court here did not instruct the jury that Officer Reed was a peace officer as a matter of law; it merely instructed pursuant to the unquestionable and clear terms of the relevant statutes that Garden Grove police officers are peace officers." (Id. at pp. 443-444, fn. 6.) All factual determinations were left for the jury to decide. (Id. at p. 444.)

In this case, similarly, the trial court only instructed as to the amount of force necessary to establish the "force" element under section 211. The jury still had to determine whether force was actually used when defendant snatched the victims purse. (See, e.g. People v. James (1998) 62 Cal.App.4th 244, 250, 271 [the trial court correctly instructed that methamphetamine was inherently dangerous, but left the jury to decide whether defendants manufactured methamphetamine and caused the victims deaths]; People v. Runnion (1994) 30 Cal.App.4th 852, 857-858 [the trial court correctly instructed that a handgun was a firearm, but left the jury to decide whether the weapon in the case was a handgun]; and People v. Dimitrov (1995) 33 Cal.App.4th 18, 26-27 [the trial court correctly instructed that a pipe bomb was a destructive device, but left the jury to decide whether the weapon in the case was a pipe bomb].) In fact, the instructions to the jury clearly stated that each element of the crime needed to be proven beyond a reasonable doubt, and that to be found guilty of robbery, "The People must prove that . . . [t]he defendant used force." The special instruction to the jury does not imply that "force" was established as a matter of law; rather, the jury would reasonably understand the instruction to be a guide in determining if the "force" element of section 211 was present.

In determining whether the special instruction correctly stated the law, we note that the term "force" does not have a technical definition and is presumed to be within the understanding of the jurors. (People v. Griffin (2004) 33 Cal.4th 1015, 1025-1026.) When a word lacks a technical meaning in the law, an instruction to the jury is not required. (People v. Anderson (1966) 64 Cal.2d 633, 639.) Therefore, the judge did not have a sua sponte obligation to instruct the jury defining the force element in the crime of robbery. Choosing to do so, the trial court correctly stated the law of force in regards to robbery. It is undisputed that "`[a]ll the force that is required to make the offense a robbery is such force as is actually sufficient to overcome the victims resistance. [Citations.]" (People v. Thomas, supra, 133 Cal.App.4th at p. 494; People v. Lescallett, supra, 123 Cal.App.3d at p. 491; People v. Clayton, supra, 89 Cal.App. at p. 411.)

The trial court did not err in allowing the jury to consider the prosecutions special instruction. The court correctly stated the law while leaving the jury to decide whether the factual circumstances warranted a finding of the "force" element under section 211.

IV. DISPOSITION

The judgment is affirmed.

We concur:

RAMIREZ, P.J.

KING, J.

All further statutory references will be to the Penal Code unless otherwise noted.


Summaries of

People v. Harrell

Court of Appeal of California
May 10, 2007
No. E040439 (Cal. Ct. App. May. 10, 2007)
Case details for

People v. Harrell

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JOSHUA HARRELL, Defendant and…

Court:Court of Appeal of California

Date published: May 10, 2007

Citations

No. E040439 (Cal. Ct. App. May. 10, 2007)

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