Opinion
Defendant Raphael Deandre Cooksey, appeals from his conviction for second degree robbery. (Pen. Code,
First, defendant argues the jurors should have been instructed on the lesser included offense of grand theft from the person. (§ 487, subd. (c).) On April 1, 2000, at approximately 1:00 p.m., Leticia Vasquez purchased a newspaper near Snappy Market. As Ms. Vasquez walked away, defendant ran toward her. Defendant grabbed Ms. Vasquez from behind with both hands. Defendant tried to take the small purse Ms. Vasquez carried. Ms. Vasquez struggled with defendant for approximately two minutes before he successfully took her purse. Ms. Vasquez was scared. She screamed and cried. Ms. Vasquez yelled as defendant ran away. Two motorists observed the incident. Michael Dirks testified defendant was “tussling” with Ms. Vasquez. James Andrews stated defendant was “wrestling” with Ms. Vasquez. Mr. Andrews saw defendant run away carrying a black object that resembled a purse. Defendant got into the passenger seat of a Jeep parked at the Snappy Market. The driver of the Jeep immediately drove away. No defense witnesses testified.
Defendant argues the trial court improperly refused to instruct the jury on the lesser offense of grand theft from the person. Defense counsel requested the instruction based on a alleged lack of sufficient force to constitute a robbery. The trial court stated: “I find, based upon the facts in this case, that there is no deficiency with regards to the prosecution’s theory of the case and the evidence by which the jury could find on the lesser-included.”
A trial court is obliged to instruct, even without a request, on the general principles of law which relate to the issues presented by the evidence. (§§ 1093, subd. (f), 1127; People v. Wims (1995) 10 Cal.4th 293, 303 [41 Cal.Rptr.2d 241, 895 P.2d 77]; People v. Turner (1990) 50 Cal.3d 668, 690 [268 Cal.Rptr. 706, 789 P.2d 887]; People v. Grant (1988) 45 Cal.3d 829, 847 [248 Cal.Rptr. 444, 755 P.2d 894]; People v. Melton (1988) 44 Cal.3d 713, 746 [244 Cal.Rptr. 867, 750 P.2d 741].) When the evidence is minimal and insubstantial, there is no duty to instruct. (People v. Barton (1995) 12 Cal.4th 186, 196, fn. 5 [47 Cal.Rptr.2d 569, 906 P.2d 531]; People v. Bunyard (1988) 45 Cal.3d 1189, 1232-1233 [249 Cal.Rptr. 71, 756 P.2d 795]; People v. Mayberry (1975) 15 Cal.3d 143, 151 [125 Cal.Rptr. 745, 542 P.2d 1337].) The California Supreme Court recently reiterated: “[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 . . . concluded” ’ that the lesser offense, but not the
Section 211 defines robbery as: “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.” The evidence established all of the elements of robbery in this case, including force. In addition, the evidence definitely demonstrated an element of fear. But there is no evidence which would support a finding that only the crime of grand theft from the person was committed. The uncontradicted evidence indicated: defendant physically grabbed Ms. Vasquez; Ms. Vasquez and defendant struggled for two minutes before he successfully ran off with her purse; Ms. Vasquez was scared; Ms. Vasquez screamed and cried; and as he ran away, Ms. Vasquez screamed at defendant. Such constituted the crime of robbery with the attendant elements of force and fear. There is no substantial evidence defendant merely committed the included offense of grand theft from the person.
Although not conclusive, the facts in this case are materially different from those present in a decision relied upon by defendant, People v. Roberts (1976) 57 Cal.App.3d 782, 785, 787, footnote 1 [129 Cal.Rptr. 529], disapproved on another point in People v. Rollo (1977) 20 Cal.3d 109, 120, footnote 4 [141 Cal.Rptr. 177, 569 P.2d 771]. In Roberts, the defendant appealed from a robbery conviction and argued that there was insufficient evidence to support the judgment. The evidence on the force and fear issue was described by the Roberts court as follows: “On October 5, 1974, at approximately 11 p.m., Carla Jean Spencer was returning to her parked car after spending an evening at the Hollywood Park Race Track. Ms. Spencer left the track prior to the ninth race. At her car, while attempting to remove the car keys from her purse, she heard a ‘shuffle of steps to my left and somebody come right under my left arm, grabbed my handbag jerked it right down and snapped it off the handle.’ ” (People v. Roberts, supra, 57 Cal.App.3d at p. 785.) The court held: “Certainly, the evidence that the purse was grabbed with such force that the handle broke supports the jury’s implied finding that such force existed. (See 1 Witkin, Cal. Crimes (1963)
In the decision cited in Roberts, People v. Morales, supra, 49 Cal.App.3d at pages 138-146, the Court of Appeal did address the merits of a grand theft from the person lesser included offense contention in the context of a robbery theory. The facts in Morales were as follows: “On August 17, 1973, Mrs. Garnet Libby and her mother, Mrs. Minnie Smith, were walking home from the store down a residential street in Anaheim. Defendant passed the two ladies walking in the opposite direction. He then turned and, approaching Mrs. Smith from behind, grabbed her purse and fled down the street. A witness who was standing across the street testified that defendant pushed Mrs. Smith as he seized the purse. Mrs. Smith fell to the ground, suffering a dislocation and fracture of her elbow. [¶] Mrs. Smith was 79 years old. The evidence indicated that before the crime she was in relatively good health and led a very active physical life for someone of her age. After the purse-snatching incident, Mrs. Smith was taken to a hospital where minor surgery was performed on her elbow. She remained in the hospital for three days and then returned home. . . .” (People v. Morales, supra, 49 Cal.App.3d at pp. 137-138.) Despite the fact the victim was hospitalized after falling, the Court of Appeal concluded a grand theft lesser included offense instruction should have been given. The court’s analysis in this regard was as follows: “We think that the evidence in this case left sufficiently open the question of whether the element of force was present so as to entitle the defendant to have the jury consider the matter. The witness’ distance from the event, her preoccupation with other matters, her inability to remember details, and the fact that the victim fell backwards all arguably cast doubt upon the accuracy of her testimony that the defendant deliberately pushed the victim. It is true that the bare fact that Mrs. Smith fell tends to show that she was shoved in some manner. But it is also plausible that she was startled and lost her balance, or that she fell in an attempt to turn and catch a glimpse of the
We need not address the question of whether Morales was correctly decided. (See People v. Morales, supra, 49 Cal.App.3d at pp. 146-149 (dis. opn. of Gardner, P. J.).) Rather, the facts in this case are far different from Morales. In Morales, there was only a momentary contact with the victim; not as in this case a two-minute struggle between defendant and Ms. Vasquez where they fought over the black purse. Therefore, neither Roberts nor Morales is the controlling authority. The trial court correctly refused to instruct on grand theft from the person.
Second, defendant argues that he is entitled to additional credits pursuant to section 2900.5, subdivision (a). Defendant was sentenced as follows. For the crime of robbery, defendant was sentenced to 10 years in prison. The 10-year sentence was the result of a 5-year sentence being doubled pursuant to sections 667, subdivision (e)(1) and 1170.12, subdivision (c)(1). As to the robbery conviction, defendant received 382 days of presentence credits. Additionally, defendant was on probation for discharging a firearm into a residence, in violation of section 246. He was found in violation of probation and received a consecutive one-year, eight-month sentence. Defendant received no credit for time served on the probation violation matter. Further, the trial court imposed a five-year section 667, subdivision (a) enhancement.
The pertinent facts in connection with defendant’s prior conviction for discharging a firearm into a residence are as follows. Defendant was arrested
The trial court credited defendant with all of his time served on the robbery case. But defendant was denied any presentence credits on the one-year, eight-month subordinate term for discharging a firearm into a residence. The sole ground relied upon by the trial court for denying presentence credits on the subordinate term was the provisions of section 2900.5, subdivision (b) which states: “For the purposes of this section, credit shall be given only where the custody to be credited is attributable to proceedings related to the same conduct for which the defendant has been convicted. Credit shall be given only once for a single period of custody attributable to multiple offenses for which a consecutive sentence is imposed.” However, the California Supreme Court has held credit is to be applied for time served on a subordinate term resulting from a probation violation. (People v. Riolo (1983) 33 Cal.3d 223, 228-229 [188 Cal.Rptr. 371, 655 P.2d 723]; People v. Lacebal (1991) 233 Cal.App.3d 1061, 1064-1065 [285 Cal-Rptr. 6].)
The sole remaining issue relates to the amount of additional credit for time served defendant is to receive on his subordinate term. Defendant is entitled to one-year credit for time served as a probation condition. The one-year term would consist of 243 days actually served plus 122 days of conduct credit. However, defendant is not entitled to any credits on the one-year eight-month subordinate term for time spent after April 5, 2000, when his probation was revoked. This is because consecutive sentencing occurred on December 12, 2000. The controlling statutory language is that in the second sentence in section 2900.5, subdivision (b), which as previously noted states, “credit shall be given only once for a single period of custody attributable to multiple offenses for which a consecutive sentence is imposed.” As of April 5, 2000, defendant was subject to a “single period of custody attributable to multiple offenses” within the meaning of section 2900.5, subdivision (b). He was subject to custodial restraint because of the April 1, 2000, robbery arrest as well as the April 5, 2000, summary probation revocation order. When
The judgment is modified to award defendant 365 days, credit on the subordinate terms which includes 122 days of conduct credits. The credits are only to apply to the 20-month subordinate term. The clerk of the superior court is to prepare an amended abstract of judgment which separately reflects the amount of presentence credits on the principal and subordinate terms. The judgment is affirmed in all other respects.
Grignon, J., and Armstrong, J., concurred.
A petition for a rehearing was denied March 1, 2002, and the opinion was modified to read as printed above. Appellant’s petition for review by the Supreme Court was denied May 15, 2002.
All further statutory references are to the Penal Code unless otherwise indicated.
See footnote, ante, page 1407.