THE PEOPLE v. WILLIAM ALBARRAN (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

A jury convicted appellant William Albarran of attempted second degree robbery (Pen.Code, §§ 664, 211) ¹ (count 1).   The trial court sentenced appellant to the midterm of two years.

Appellant appeals on the grounds that:  (1) there was insufficient evidence to support the attempted robbery conviction;  (2) the trial court committed reversible error in failing to instruct on the lesser included offense of attempted petty theft;  and (3) the trial court erred in its determination and award of presentence custody credits.

FACTS

Prosecution Evidence

On April 30, 2010, at approximately 1:20 p.m., Daniel Velazquez was listening to his iPod and carrying his backpack as he walked home from Azusa High School.   Daniel was walking in the street, and a dark “Nissan Altima type” car going in the opposite direction stopped beside him.   Daniel was next to the driver, whose window was down.   Daniel got a good look at the driver.   Daniel noticed that the emblem that should have been on the car's grille was missing.   The driver, later identified as appellant, asked for directions to Sierra Madre.   Daniel replied that he did not know how to get there.   At that point, appellant said, “Give me your iPhone and give me your stuff.” ²  Appellant looked angry when he asked for the iPod. He became more aggressive, and he was not laughing.   Appellant pulled out a gun, and Daniel backed up.   The gun appeared to be a small revolver, and appellant kept it inside the car as he pointed it at Daniel.   Appellant said, “You going to back up for me?”   Daniel was approximately five feet away from appellant.   Daniel “took off running.”   Daniel was positive there was a gun.

As Daniel ran, he heard appellant making a U-turn.   The car began driving at a fast speed towards him and caught up to Daniel when he was near a wall.   Daniel ducked because he thought appellant was going to shoot, and then he jumped over the wall.   He crouched behind the wall and heard the car taking off.   He then telephoned his mother, Brandy Velazquez, with his cell phone.   He asked her to pick him up.

Brandy was driving home from work when she received Daniel's phone call.   Daniel asked her to pick him up at the house of a childhood friend.   Daniel sounded out of breath.   Brandy drove to the house and parked in front.   Daniel jumped over a wall near the house and got into her car.   He was frightened.   He told her that a car had pulled up and the driver had pointed a gun at him after asking Daniel to give up his iPod. The man was wearing a black Raider's cap.   Brandy had never seen her son appear as frightened as he did when she picked him up.   As they drove home, Brandy stopped and told a police officer what had happened.

Azusa Police Officer Jesse Landa responded to a call regarding an attempted robbery and met with Daniel, his mother, and another officer.   Daniel told Officer Landa that while he was walking home from school, a male driving a Nissan sedan displayed a revolver and pointed it at him.   The male asked for Daniel's iPod. Officer Landa asked Daniel three to five times if he saw a gun, and Daniel replied that he was positive he had.   Officer Landa notified other officers to search for a Nissan sedan.

The vehicle was located parked in front of a residence approximately 50 yards from where Officer Landa was speaking with Daniel.   Officer Landa and Daniel walked to the location, and Daniel looked at the front of the vehicle and made a positive identification.   He recalled that the after-market grille did not have a Nissan emblem.   He was 100 percent certain.   Officer Landa went to the house and found appellant, who was wearing a black Raider's cap.   Police did not find a gun in the Nissan.   A police officer searched the living room of the home where appellant was located and did not find a gun.

Defense Evidence

Appellant testified on his own behalf.   He saw Daniel walking in the middle of the street, and Daniel began staring at him, or “dogging” him.   Daniel was wearing baggy pants and a hooded sweater and was mean looking.   Appellant confronted Daniel to see “what his deal was.”   He tried to “come at him generously” by asking him directions.   Daniel smirked at him and answered rudely.   Appellant became “aggravated,” felt disrespected, and asked Daniel, “Hey, what's your problem, what, you got a strap?”   Appellant then said he asked, “What do you got?” and Daniel said in a stuttering fashion that he “ain't got nothing, I'm just listening to my iPod.”

Appellant said, “You think you're fucking hard listening to your iPod.” Appellant then said, “Hold up, let me step out of this vehicle, let me show you something.”   Appellant reached down toward his pocket, which he emptied of a cell phone and pen.   He intended to step out of the car and confront Daniel.   He wanted to “check” him, to “put him in his place without having to do anything.”   When appellant looked up, Daniel was stumbling backwards.   Daniel looked around and just started running.   Appellant did not point a gun at him and did not demand the iPod.

When Daniel ran away, appellant made a U-turn because he did not know what was going on.   He wanted to stop Daniel and tell him to relax.   After Daniel jumped a wall, appellant went to his friend's house, where he had been headed originally.   The police arrived there shortly afterwards and took appellant into custody.   The police searched appellant and did not find a gun.

Appellant spoke with police at the station because he had nothing to hide.   He did not even know he had committed a crime when he spoke with police.   Appellant never told the police that he demanded Daniel's iPod, or that he simulated having a gun.   Appellant did tell them that Daniel may have thought he had a gun.   Appellant believed he had overreacted to Daniel's dogging him.

Alex Gama testified that appellant went to Gama's home on April 30, 2010, to see Gama's brother, Andres, who was appellant's friend.   Andres was not home, and Gama spoke with appellant, who was acting normally.   The police arrived while Gama was in another room, and he saw appellant walking outside.   The police searched Gama's home.   The police did not ask Gama if he had seen appellant with a gun, and Gama had not.   Although appellant had been at the house for only about 20 minutes, Gama lied to a police detective and said appellant had been there for “a couple [of] hours” because he felt the police were being rude.   He then told the truth after “a second.”   Gama was not lying to protect appellant, but only to protect his house.

Rebuttal Evidence

Officer Landa testified that he interviewed appellant after taking him into custody.   A recording of the interview was played for the jury.   Appellant admitted contacting Daniel and asking him for directions to Sierra Madre.   Appellant became upset when Daniel said he did not know, and appellant asked Daniel for his iPod. He was not just questioning Daniel about his iPod. Appellant said that he reached for something right next to the driver's seat in order to “scare Daniel.”   Appellant said that he did, in fact, scare Daniel.

Appellant had seen Daniel “walking ․ like all hard” and made a U-turn to contact him.   The minute appellant stopped, Daniel's face “froze up.”   Appellant did not say he had a gun, but he did say to Daniel, “Do you want to see a gun, yo?”   Appellant “was just trying to scare the fucking living shit out of him.”   Appellant yelled and Daniel “got all spooked and started booking it.”   Appellant wanted to give Daniel a “reality check” because “if you're not a fucking banger don't be walking around like you're with that shit.”   Appellant told Daniel, “why don't you give me that fucking iPod unless you're strapped.”

DISCUSSION

I. Sufficiency of the Evidence

A. Appellant's Argument

Appellant contends that the totality of evidence established that an unarmed appellant, who never got out of his car, made only one demand for the iPod and other property.   This established at most the crime of attempted petty theft.   It was not shown that appellant used some force or fear in connection with the attempted taking of the property.   After the one demand, appellant only taunted Daniel.   The lack of substantial evidence to support the verdict resulted in a denial of due process, and reversal is required.

B. Relevant Authority

“The role of an appellate court in reviewing the sufficiency of the evidence is limited.   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.’  [Citations.]”  (People v. Ceja (1993) 4 Cal.4th 1134, 1138.)  “Reversal on this ground is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ ”  (People v. Bolin (1998) 18 Cal.4th 297, 331.)

C. Evidence Sufficient

In California, “[a]n attempted robbery requires a specific intent to commit robbery and a direct, ineffectual act (beyond mere preparation) toward its commission.  [Citations.]”  (People v. Medina (2007) 41 Cal.4th 685, 694;  People v. Vizcarra (1980) 110 Cal.App.3d 858, 861.)   An intent to rob is an intent to steal by means of force or fear.  (People v. Bradford (1997) 14 Cal.4th 1005, 1055–1056.)   Robbery is also distinguished from ordinary theft by the taking of property from the actual or constructive possession of the victim.  (People v. Nguyen (2000) 24 Cal.4th 756, 764.)   Therefore, a conviction of attempted robbery must be predicated upon the attempted taking of property by means of force or fear from a person in actual or constructive possession of the property.  (See id. at pp. 764–765.)

In the instant case, Daniel testified that appellant pulled up alongside him and asked for directions.   After Daniel was unable to give appellant the information he asked for, appellant said, “Give me your iPhone and give me your stuff.”   Daniel understood that appellant meant his iPod. Daniel stated, “He had his gun out when he asked for that, and then I backed up.”   The gun was pointed directly at Daniel at a distance of approximately five feet.   Daniel “took off running.”   He realized that appellant's car made a U-turn and proceeded to drive rapidly after Daniel.   The car caught up to Daniel when he arrived at a wall.   Daniel ducked because he thought appellant was going to shoot, and then Daniel jumped over the wall.   Daniel testified that he was scared.   Daniel's mother testified that he was out of breath when he called her, and he was frightened when he emerged from behind the wall.   She had never seen her son frightened to that degree.   He told her about appellant asking for his iPod and pointing a gun at him.

Appellant emphasizes that he never got out of his car, but he himself testified that he told Daniel, “Let me step out of this vehicle, let me show you something,” and he then reached down toward his pocket.   He did not get out of the car because Daniel ran away at that point.   Officer Landa testified that appellant told him he demanded the iPod from Daniel, that he reached for something in order to scare him, and that he did in fact scare him.   Appellant said something like, “Do you want to see a gun, yo?”   Appellant admitted he “might have” and then said he “probably” told Officer Landa that he reached down to make Daniel believe he was “reaching to grab some shit.”   Appellant said Daniel seemed scared because he began stuttering.   Thus, even if appellant made only one demand for the iPod, that demand was accompanied by an act to induce fear in Daniel.   The jury saw a DVD of the interview in which appellant made his admissions to Officer Landa.

Appellant clearly used fear in his attempt to take Daniel's property from his person.   There was sufficient evidence to support the jury's guilty verdict on the offense of attempted robbery.

II. Lesser Included Offense Instruction

A. Appellant's Argument

Appellant contends the evidence supported the giving of an instruction on the lesser included offense of petty theft.   The trial court's failure to give the instruction resulted in an all-or-nothing choice for the jury.

B. Relevant Authority

“Instructions on lesser included offenses ‘ “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. Prince (2007) 40 Cal.4th 1179, 1265.)

C. No Error

At the outset, we observe that, when asked by the trial court, defense counsel agreed with the prosecutor that there would be no verdict forms for any lesser included offenses.   Because defense counsel did not express a deliberate tactical purpose for her agreement on this point, we do not find invited error.  (People v. Wilson (2008) 43 Cal.4th 1, 16 [defendant's agreement that the court need not instruct on specific lesser included offenses was not invited error, because defense counsel did not express a deliberate tactical purpose for his agreement].)   In any event, we conclude the evidence did not warrant an instruction on attempted petty theft.   As discussed in the previous section of this opinion, there was abundant evidence that appellant used fear in an attempt to acquire Daniel's iPod. Therefore, any error in failing to read an instruction on attempted petty theft was harmless.   In a noncapital case, an error in failing to instruct on a lesser included offense requires reversal only if the error is prejudicial under the standard of People v. Watson (1956) 46 Cal.2d 818, 836—that is, only if it is reasonably probable that defendant would have obtained a more favorable result if the error had not occurred.  (People v. Breverman (1998) 19 Cal.4th 142, 178.)   In other words, to find the error prejudicial, the entire record must show that if given the choice between the lesser and the greater offenses, it is reasonably probable the jury would have convicted of the lesser.  (Id. at p. 178, fn. 25.)   Here, there was ample evidence of appellant's use of fear in commission of the crime, and there was no evidence to support a charge that he merely attempted to steal the iPod. The trial court had no sua sponte duty to instruct on attempted petty theft, and appellant's argument is without merit.

III. Credits

A. Appellant's Argument

Appellant initially argued that under the version of section 4019 that became effective on January 25, 2010, he was entitled to conduct credits equal to the 151 actual days of presentence custody he served.   In his reply brief, appellant agrees with respondent that he is entitled to only 74 days of conduct credit.

B. Relevant Authority

Under section 2900.5, a criminal defendant sentenced to state prison is entitled to credit against the term of imprisonment for all days spent in custody before sentencing. (§ 2900.5, subd. (a).)  In addition, section 4019 provides that a criminal defendant may earn additional presentence credit for good behavior and work performance. (§ 4019, subds.(b), (c).)  The credits authorized by section 4019 are collectively known as conduct credit.   (People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.)

Under the version of section 4019 that became effective on January 25, 2010, and that was in effect on September 27, 2010, when appellant was sentenced, a criminal defendant sentenced to state prison was deemed to have served four days for every two days of presentence custody, as long as he was eligible.   (Former § 4019, subd. (f);  Stats.2009, 3d Ex.Sess.2009–2010, ch. 28, § 50, p. 5271.)   Former section 4019, subdivisions (b)(2) and (c)(2) provided that the traditional calculation of section 4019 conduct credits still applied to a defendant who committed a crime, such as attempted robbery, that was classified as a serious felony under section 1192.7. (§ 1192.7, subds.(c)(19), (39).)   Therefore, appellant was deemed to have served six days for every four days of actual presentence custody.  (Former § 4019, subd. (f);  Stats.1982, ch. 1234, § 7, pp. 4553–4554.) ³

C. Additional Presentence Conduct Credits Must Be Granted

The trial court awarded appellant 151 actual days, the correctness of which is not disputed, but only 22 days of additional credit.   As set out in In re Marquez (2003) 30 Cal.4th 14, 25–26, the proper method of calculation is to take the number of actual custody days (151) and divide by 4, discarding any remainder, which leaves us with 37.   We then multiply that result by 2 (37 x 2 = 74), for a total of 74 days of conduct credit.   The number of actual days (151) and 74 conduct credit days entitle appellant to a total of 225 days of presentence credits.   Since appellant was awarded only 173 days, he is entitled to 52 additional days.

DISPOSITION

The judgment is modified to award appellant 52 additional days of presentence credits.   In all other respects the judgment is affirmed.   The superior court is directed to prepare an amended abstract of judgment and to forward a copy to the Department of Corrections and Rehabilitation.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_, P. J.

BOREN

We concur:

_, J.

DOI TODD

_, J.

ASHMANN–GERST

FOOTNOTES

FN1. All further statutory references are to the Penal Code unless stated otherwise..  FN1. All further statutory references are to the Penal Code unless stated otherwise.

FN2. Daniel was not holding his phone and understood appellant was referring to his iPod..  FN2. Daniel was not holding his phone and understood appellant was referring to his iPod.

FN3. Section 4019 was amended again effective September 28, 2010, but this latest version applies only to crimes committed after the effective date..  FN3. Section 4019 was amended again effective September 28, 2010, but this latest version applies only to crimes committed after the effective date.