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NOT TO BE PUBLISHED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. CRF19616
Judge Polley presided over defendant’s trial; Judge DuTemple was the sentencing judge.
Randy S. Kravis, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Kane, J.
Defendant Bart Anthony Salazar 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 and (2) the instruction on a witness’s inconsistent statements (CALCRIM No. 318) created an improper presumption. We affirm the judgment.
PROCEDURAL SUMMARY
In case numbers CRF19616 and CRF19617, the Tuolumne County District Attorney charged defendant and his codefendant, Cisco Ray Crawford, 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 Crawford 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.
The jury found defendant and Crawford guilty of robbery, but not guilty of kidnapping to commit robbery. The jury found not true the personal weapon use allegation against Crawford. The court sentenced defendant to the midterm of three years for the robbery conviction.
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. Crawford was driving and defendant was in the passenger seat. Buddy recognized Crawford and defendant (collectively the men), but he did not know them well.
Defendant 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 Crawford was holding a hatchet in his hand while he drove. This scared Buddy even more.
As Crawford drove, defendant 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, Crawford said nothing, but he held and waved the hatchet. Defendant continued “lecturing” Buddy. Buddy told him he could get the money in about a week. Crawford pulled the car into the cemetery. He told Buddy he “owed his homeboy money.” Crawford 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 defendant told Buddy, “Give me your stuff.” Crawford was still holding and playing with the hatchet. He did not say anything; he just stood and looked at Buddy, who believed Crawford 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. Crawford held up the hatchet and said, “This is for throwing, you better start running.” Buddy was afraid because he believed Crawford would throw the hatchet at him. Crawford and defendant 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 defendant $80 for marijuana. Buddy told the officer that Crawford 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 defendant money.
Buddy denied giving defendant his property to hold as collateral for the $80 debt.
Buddy stated he never got any of his belongings back.
When Crawford was interviewed at the jail by an investigator, Crawford 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 [defendant] one day” and defendant asked him if he had the money he owed him. Buddy told him he did not and defendant took his things. Buddy said he went with defendant and Crawford willingly, getting into the car so they could talk about the money he owed defendant. 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 Crawford was his friend and he did not do anything wrong.
On cross-examination, Lindsey explained that defendant’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 defendant 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 Crawford because he was the father of her 11-year-old half brother. Tammy’s brother was at Crawford’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 Crawford 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 defendant 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 [defendant] 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 defendant 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, 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.”
Joining in Crawford’s argument, defendant contends 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.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Gomes, Acting P.J., Hill, J.