Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tuolumne County. William G. Polley and Eric L. DuTemple, Judges. Super. Ct. No. CRF19617
Judge Polley presided over defendant’s trial; Judge DuTemple was the sentencing judge.
Laura P. Gordon, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Brain Alvarez and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Kane, J.
Defendant Cisco Ray Crawford was convicted by jury trial of robbery. On appeal, he contends (1) the trial court erred by failing to instruct sua sponte on the lesser included offense of theft, (2) the instruction on a witness’s inconsistent statements (CALCRIM No. 318) created an improper presumption and (3) the trial court abused its discretion by permitting the prosecutor to amend the information with a strike allegation. We affirm the judgment.
PROCEDURAL SUMMARY
In case numbers CRF19616 and CRF19617, the Tuolumne County District Attorney charged defendant and his codefendant, Bart Salazar, with kidnapping to commit robbery (Pen. Code, § 209, subd. (b); count I) and second degree robbery (§§ 211, 212.5; count II). The information further alleged as to both counts that defendant personally used a deadly or dangerous weapon (§ 12022, subd. (b)(1)) and that he had served a prior prison term (§ 667.5, subd. (b)).
All statutory references are to the Penal Code unless otherwise noted.
While out on bail, defendant violated Vehicle Code section 20001, subdivision (a), by committing a hit and run causing injury. (Case no. CRF20224.) He pled guilty to the charge and admitted a penalty enhancement for committing a felony while released from custody and before final judgment on a prior felony (§ 12022.1).
During the jury trial in the present case (case no. CRF19617), the prosecutor successfully moved to amend the information to include a prior conviction strike allegation (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)).
The jury found defendant and Salazar guilty of robbery, but not guilty of kidnapping to commit robbery. The jury found not true the personal weapon use allegation.
The court found true the strike allegation and sentenced defendant to a total term of ten years four months as follows: on the robbery conviction (case no. CRF19617), the midterm of three years, doubled to six years pursuant to the “Three Strikes” law, plus a one-year prior prison term enhancement; and on the hit and run conviction (case no. CRF20224), one-third of the midterm, doubled to one year four months, plus a two-year on-bail enhancement.
FACTS
At about 11:00 p.m. on November 23, 2005, 16-year-old Buddy walked to the home of his friend, David. Buddy was carrying his backpack, which contained clothes, video games, CDs, a portable CD player and a Play Station 2. He was wearing pants, a snowboarding jacket and white skateboarding shoes. Buddy and David talked, played games and ate pizza. Buddy also smoked some marijuana.
Buddy had originally planned to spend the night at David’s, but he decided to leave at about 3:00 a.m. When he left, he walked toward the home of another friend because he hoped to see a particular girl there. It was dark and there was no traffic, but he became aware of a white Cadillac when it drove past him then turned around and drove back toward him. The car stopped about one foot from Buddy. Defendant was driving and Bart Salazar was in the passenger seat. Buddy recognized defendant and Salazar (collectively the men), but he did not know them well.
Salazar yelled at Buddy to get in the car. Buddy did not know if the men were armed, and he thought if he took off running they might shoot him in the back. Buddy was nervous and afraid to get in the car. He felt threatened and intimidated by the men. Buddy refused to get in, but the men insisted. Buddy believed they would force him into the car if he did not get in voluntarily. Buddy was afraid so he complied. Once inside, Buddy saw that defendant was holding a hatchet in his hand while he drove. This scared Buddy even more.
As defendant drove, Salazar told Buddy he needed to pay him the $80 he owed him for marijuana he had bought and failed to pay for. During the ride, defendant said nothing, but he held and waved the hatchet. Salazar continued “lecturing” Buddy. Buddy told him he could get the money in about a week. Defendant pulled the car into the cemetery. He told Buddy he “owed his homeboy money.” Defendant stopped the car about 10 or 20 yards past the cemetery’s entrance gates and told Buddy to get out. The men also got out, and Salazar told Buddy, “Give me your stuff.” Defendant was still holding and playing with the hatchet. He did not say anything; he just stood and looked at Buddy, who believed defendant was trying to intimidate him. Buddy gave them his backpack with all its contents. They grabbed the backpack and put it in the trunk. They told him to give them his shoes and his jacket. When he did, they put those in the trunk too. Defendant held up the hatchet and said, “This is for throwing, you better start running.” Buddy was afraid because he believed defendant would throw the hatchet at him. Defendant and Salazar got in the car and drove away, leaving Buddy to walk home.
When Buddy got home about 10 minutes later, he pounded on the front door. His mother woke up and came to the door. Buddy fell into her arms and told her he had been kidnapped. According to his mother, Buddy was panic-stricken, “white as a ghost” and “freaked out.” She had never seen him like that. He was wearing only a T-shirt, pants and socks. He was missing his backpack, his jacket and his shoes. She woke Buddy’s father up. According to his father, Buddy “didn’t look right, he looked like he was scared.” His father also had never seen Buddy like that. Buddy’s parents asked him where his things were. Buddy told them what happened and his father called the police.
An officer testified that when he responded to the call, Buddy and his parents were outside in the apartment parking lot. Buddy appeared to be visibly shaken and scared. He was physically shaking. Buddy told the officer he was frightened and the officer thought he appeared to be frightened during their conversation. The officer wondered why Buddy was not wearing a jacket because it was cold outside. He believed it was possible Buddy was shaking because he was cold.
The officer testified there were some inconsistencies between what Buddy told him that day and what Buddy testified to in court. Buddy did not tell the officer he knew who the men were. He gave the officer their first names and implied they were strangers to him. Buddy told the officer that one of the men got out of the Cadillac, grabbed him and threw him inside. Buddy did not tell the officer that he owed Salazar $80 for marijuana. Buddy told the officer that defendant said, as he held the hatchet, “Get out, homes, take off your shit, do you know what we could do to you[?]” Buddy also told the officer he had been walking south, but he testified he had been walking north. Buddy was consistent, however, with other facts, such as that he was afraid to get into the car, that he did not get into the car voluntarily and that the men took his things.
At trial, Buddy admitted telling the officer a slightly different story than that to which he testified. He told the officer that he was thrown into the car, when in fact no one touched him. He told that to the officer because he was “freaked out, [and] didn’t know what was going on ….” Buddy “told him what came out of [his] mouth.” He was not trying to lie, but “[s]o much stuff [was] going on ….” He said he was “just scared” and “[his] head was going in circles.” Buddy did not tell the officer that he owed Salazar money.
Buddy denied giving Salazar his property to hold as collateral for the $80 debt.
Buddy stated he never got any of his belongings back.
When defendant was interviewed at the jail by an investigator, defendant stated he was driving a white Cadillac on November 23. He stopped, picked up Buddy, drove to the cemetery and left him there.
Defense Evidence
Lindsey Green testified she had known Buddy for four or five months. A few weeks after the incident, Buddy told her he “came across [Salazar] one day” and Salazar asked him if he had the money he owed him. Buddy told him he did not and Salazar took his things. Buddy said he went with defendant and Salazar willingly, getting into the car so they could talk about the money he owed Salazar. He said he was out of the car within 10 or 15 minutes.
Lindsey said Buddy told her his parents forced him to call the police, although he did not know why. He said he got back all but one of his things. He also told her defendant was his friend and he did not do anything wrong.
On cross-examination, Lindsey explained that Salazar’s half brother was the father of her child. She said she met Buddy through a mutual friend and had seen him multiple times at the park. She considered herself his friend. She admitted that at the time Buddy told her these things, she knew Salazar was in jail because of the incident. She had read about it in the newspaper and she approached Buddy because she wanted to know what had happened. She said Buddy was very nonchalant about it.
Buddy testified he did not know Lindsey Green, did not speak to her in the park and did not tell her everything was blown out of proportion.
Tammy Cox testified she knew Buddy and his mother because she previously lived next to them. Tammy knew defendant because he was the father of her 11-year-old half brother. Tammy’s brother was at defendant’s apartment the night of the incident. Early the next morning, Buddy’s mother called Tammy to tell her what had happened and to ask her if she knew where defendant was.
Tammy later called Buddy because she wanted to know what had happened. She told him there were rumors that the incident occurred because he owed Salazar money and Buddy became angry and then “got [in] over his head ….” Buddy told her, “Well, even if that was the truth, you know, I owed [Salazar] a little money and he’s just mad because I have problems with his son[.]”
DISCUSSION
I. Instruction on Theft as Lesser Included Offense
Defendant contends the trial court erred by failing to instruct sua sponte on theft as a lesser included offense of robbery because there was evidence the men took Buddy’s property without the use of fear.
Grand theft is the taking of property from the person of another. (§ 487, subd. (c).)
Theft is a lesser included offense of robbery. (People v. Huggins (2006) 38 Cal.4th 175, 215.) The trial court must instruct on an uncharged lesser included 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. (Ibid.) But this does not mean that the trial court must instruct sua sponte on the panoply of all possible lesser included offenses. “‘[T]he existence of “any evidence, no matter how weak” will not justify instructions on a lesser included offense, but 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. [Citations.]’ [Citation.]” (People v. Hughes (2002) 27 Cal.4th 287, 366-367.) The classic formulation of this rule is expressed in People v. Webster (1991) 54 Cal.3d 411, 443: “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.” We independently review the question of whether the court should have given the instruction. (People v. Cole (2004) 33 Cal.4th 1158, 1215.)
The rule requiring instruction on a lesser included offense prevents the jury from facing an untenable choice when the evidence is clear that the defendant committed a crime but reasonable minds could differ as to the nature of the offense. (See People v. Webster, supra, 54 Cal.3d at p. 444, fn. 17.) “A trial court’s failure to inform the jury of its option to find the defendant guilty of the lesser offense would impair the jury’s truth-ascertainment function. Consequently, neither the prosecution nor the defense should be allowed, based on their trial strategy, to preclude the jury from considering guilt of a lesser offense included in the crime charged. To permit this would force the jury to make an ‘all or nothing’ choice between conviction of the crime charged or complete acquittal, thereby denying the jury the opportunity to decide whether the defendant is guilty of a lesser included offense established by the evidence.” (People v. Barton (1995) 12 Cal.4th 186, 196.)
“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 terms “force” and “fear” as used in the definition of the crime of robbery have no technical meaning peculiar to the law and must be presumed to be within the understanding of jurors.’ [Citation].” (People v. Griffin (2004) 33 Cal.4th 1015, 1025-1026.)
“[W]hen the prosecution seeks to prove a robbery was committed by means of fear, it must present evidence ‘from which it can be inferred that the victim was in fact afraid, and that such fear allowed the crime to be accomplished.’ [Citation.] Actual fear may be inferred from the circumstances, and need not be testified to explicitly by the victim. [Citation.]” (People v. Cuevas (2001) 89 Cal.App.4th 689, 698; People v. Holt (1997) 15 Cal.4th 619, 690.) A jury may infer actual fear from the circumstances “‘despite even superficially contrary testimony of the victim.’” (People v. Davison (1995) 32 Cal.App.4th 206, 215.)
Fear need not be the result of an express threat. (People v. Flynn (2000) 77 Cal.App.4th 766, 771.) Fear for the purposes of robbery is synonymous with intimidation. (People v. Davison, supra, 32 Cal.App.4th at pp. 213-214.) A defendant may “convey a sense of bodily intimidation in order to create a sense of fear or force.” (People v. Briscoe (2001) 92 Cal.App.4th 568, 589.) Robbery may be committed without a weapon, by means of only oral or visual demands. (See People v. White (1995) 35 Cal.App.4th 758, 766; People v. Brew (1991) 2 Cal.App.4th 99, 104.) Intimidation can be established by proof of conduct, words or circumstances reasonably calculated to produce fear. (People v. Brew, supra, at p. 104.)
In People v. Davison, supra, 32 Cal.App.4th 206, the court found sufficient evidence of fear to support a robbery conviction where the defendant and his companion approached a woman at an automated teller machine at night, stood beside her, and instructed her in a calm but firm voice to stand back. The victim followed this command, creating a distance of 20 to 30 feet between herself and the defendant. (Id. at p. 216.) At no point during the incident did the defendant or his companion verbally threaten the victim, display a weapon or make any movements to imply that they were armed. (Id. at pp. 209-210.)
The extent of the victim’s fear need not be extreme (People v. Ramos (1980) 106 Cal.App.3d 591, 601-602, disapproved on another ground in People v. Scott (1994) 9 Cal.4th 331, 353, fn. 16) and the victim need not resist (People v. Griffin, supra, 33 Cal.4th at p. 1025). The element of fear is satisfied when there is sufficient fear to cause the victim to comply with the defendant’s unlawful demand for the victim’s property. (People v. Ramos, supra, at pp. 601-602.)
On the record before us, there was no substantial evidence upon which a reasonable jury could conclude that anything less than a robbery occurred. As we have said, fear is established when there is sufficient fear to cause the victim to comply with a defendant’s demand. Here, there was ample evidence that the men intimidated Buddy when they drove him to the cemetery in the middle of a cold night after demanding payment of a drug debt, ordered him out of the car, held a hatchet and told him to give them his things, including the jacket and shoes he was wearing. Buddy expressly testified he was intimidated and afraid.
On the other hand, there was no substantial evidence that the men did not use intimidation or fear to take Buddy’s property. Evidence that Buddy entered the car willingly did not amount to evidence that he later relinquished his things willingly. Neither did evidence that Buddy was acquainted with the men. Indeed, Buddy’s acquaintance with Salazar was apparently based on a drug sale, a circumstance that would have increased the likelihood of intimidation. Similarly, the jury’s acquittal on the kidnapping charge did not establish a factual finding that Buddy was not induced by fear or intimidation to forfeit his property in the cemetery. Finally, defendant argues that although Buddy “obviously did not want to give up his property, his testimony indicates he did not protest the taking, more likely because he was all too conscious of the debt he owed Salazar.” As we have explained, Buddy’s resistance was not required to demonstrate his fear.
We conclude there was insufficient evidence to require an instruction on the lesser included offense of theft. The trial court did not err.
II. Instruction on a Witness’s Inconsistent Statements
Defendant asserts that CALCRIM No. 318 created an improper presumption that a witness’s unsworn out-of-court statements are true and deserving of greater belief than his in-court statements made under penalty of perjury. The instruction, as read to the jury, provided:
“You have heard evidence of statements that a witness made before the trial. If you decide that the witness made those statements, you may use those statements in two ways: One, to evaluate whether the … witness’s testimony in court is believable; and two, as evidence that the information in those earlier statements is true.”
Defendant argues the instruction “proclaimed the truth of [Buddy’s] earlier statements merely upon the jury’s finding [Buddy] actually made them.” As the People maintain, this instruction does not create any presumption of believability. To the contrary, it directs the jurors to judge the believability of the witness’s statements for themselves. The language of the instruction plainly permits the jurors to consider and compare a witness’s conflicting out-of-court and in-court statements, and determine which are believable and true. This mandate is consistent with the Evidence Code (Evid. Code, §§ 770, 791, 1235, 1236) and the constitutional right to confrontation (see California v. Green (1970) 399 U.S. 149, 158; People v. Cannady (1972) 8 Cal.3d 379, 385-387). We note that other instructions further advised the jurors on evaluating conflicting evidence (CALCRIM No. 302) and the credibility of witnesses (CALCRIM No. 226). The giving of CALCRIM No. 318 was not improper.
We also note that the jurors’ verdicts and findings demonstrate that they followed the instruction to consider Buddy’s inconsistent statements, and that they chose to believe some of his prior out-of-court statements and some of his in-court statements.
III. Amendment of Information
Defendant contends the trial court abused its discretion by allowing the prosecutor to amend the information midtrial to include a prior conviction allegation within the meaning of the Three Strikes law. As a result of the amendment, defendant’s sentence was increased by three years.
Subject to the trial court’s discretion, the prosecution may amend an information to allege prior conviction allegations at any point until the jury is discharged. (§ 969a; People v. Valladoli (1996) 13 Cal.4th 590, 597, 605-608; People v. Tindall (2000) 24 Cal.4th 767, 782.) “[T]he Legislature has written [section 969a] in terms of discovery that the information fails to charge existing priors, not discovery of the existence of a prior felony conviction…. Inasmuch as section 969a speaks in terms of discovery that an indictment or information does not charge all available priors, that section, as written, is broad enough to encompass: (i) amendment to charge prior felony convictions that were previously known; (ii) amendment to charge newly discovered prior felony convictions; and (iii) amendment to charge prior felonies omitted through clerical error ….” (People v. Valladoli, supra, at pp. 605-606, fn. omitted.) Section 969a should be construed “with an eye towards effectuating the Legislature’s expressed view that all known prior felony convictions of an accused be pleaded.” (People v. Valladoli, supra, at p. 602.) Thus, under section 969a, the court has discretion to permit an amendment when the prosecution belatedly realizes it has failed to charge all prior felony convictions.
Section 969a provides: “Whenever it shall be discovered that a pending indictment or information does not charge all prior felonies of which the defendant has been convicted ... said indictment or information may be forthwith amended to charge such prior conviction or convictions ….”
In exercising its discretion, trial courts should consider factors such as “(i) the reason for the late amendment, (ii) whether the defendant is surprised by the belated attempt to amend, (iii) whether the prosecution’s initial failure to allege the prior convictions affected the defendant’s decisions during plea bargaining, if any, (iv) whether other prior felony convictions had been charged originally, and (v) whether the jury has already been discharged [citation].” (People v. Valladoli, supra, 13 Cal.4th at pp. 607-608, fn. omitted.) We review contentions concerning a motion to amend for an abuse of discretion. (People v. Bolden (1996) 44 Cal.App.4th 707, 716.)
In this case, after the prosecution rested and the defense began presenting its case, the prosecutor discovered that the prior conviction, of which he was already aware, qualified as a strike because it had been alleged as a strike in case number CRF22024. Defense counsel objected to the amendment on the ground that he would have encouraged defendant to negotiate a plea had the prosecutor alleged the strike at an earlier time. The trial court asked defense counsel whether he was aware of the prior conviction and thus aware that “the strike was out there.” Defense counsel answered, “I was aware of it in the other case, yeah.”
This conviction was also the basis for the prior prison term allegation in the present case.
While the prosecutor’s ignorance that the prior conviction qualified as a strike is not to be condoned, neither should it alone prevent amendment of the information. Defendant was aware of the prior conviction and knew it had been alleged as a strike in another ongoing case against defendant. The important question is whether defendant was prejudiced by the late amendment of the information. Prejudice in this context does not refer to the greater sentence defendant received based on the amendment; that sentence was specified by the law. The issue is whether the defense proceeded in any fashion to its detriment based on the failure of the prosecution to include the strike allegation in the original information or to amend the information earlier. Contrary to defense counsel’s argument, the omission could not have affected defendant’s plea bargaining decisions since there was no plea bargaining in this case. Nor does it appear the defense would have proceeded differently in trying the case had the enhancements been included in the original information. The trial court therefore did not abuse its discretion in allowing amendment of the information.
Defendant maintains that defense counsel’s argument implies plea negotiations did occur. The probation officer’s report, however, states: “There were no plea negotiations.”
DISPOSITION
The judgment is affirmed.
WE CONCUR: Gomes, Acting P.J., Hill, J.