Filed 6/26/13 P. v. Jones CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,                                                          B241310

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. NA089283)
         v.

MELVIN ANDREW JONES,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County. Charles
D. Sheldon, Judge. Reversed with directions.
         Benjamin Owens, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Margaret E. Maxwell,
Supervising Deputy Attorney General, and Tasha G. Timbadia, Deputy Attorney
General, for Plaintiff and Respondent.
                                 _________________________________
       Defendant Melvin Andrew Jones appeals from the judgment entered following a
jury trial in which he was convicted of second degree robbery. Defendant contends the
trial court erred by failing to instruct sua sponte on attempted robbery as a lesser included
offense. We agree.
                                     BACKGROUND
       Robert Ayres testified that as he was driving in Long Beach on the morning of
June 18, 2011, he heard several cars’ horns honking. He looked around and saw
defendant dragging an older woman across an intersection by pulling on the body of a
purse that the woman was wearing on her shoulder. The woman shouted for help. She
repeatedly fell, but maintained a grip on the purse. When defendant and the woman
reached the sidewalk on the far side of the intersection, the woman was on the ground
and defendant kicked her head and shoulders. Ayres parked his truck and shoved
defendant. Ayres testified that defendant “broke loose with the purse” and ran with it for
five or ten feet before tripping, falling, and dropping the purse. Defendant got up and
“took off” without the purse.
       Ayres testified he got back in his truck and followed defendant. A man in a city
truck was also following defendant while speaking on a mobile phone. Ayres again got
out of his truck and approached defendant. Ayres tripped defendant and held him down.
Defendant repeatedly tried to get up. A man on a motorcycle arrived and said he would
hold defendant. Ayres returned to the intersection where he had seen the struggle for the
purse and spoke to police when they arrived. Ayres admitted he had been convicted in
2005 of two felonies: unlawful taking or driving of a vehicle and resisting arrest by force
or violence.
       David Roberts, who worked for the City of Long Beach and was driving a city
vehicle, testified he heard several cars’ horns honking, then saw defendant and a woman
struggling over a purse. Defendant was pulling on the purse and the woman was
attempting to hold onto it. Roberts turned at the light, pulled over, and phoned 911.
When he looked back at defendant, he saw “people intervening,” “trying to assist.” They



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were not hitting defendant. The next thing Roberts saw was defendant walking
northbound on Long Beach Boulevard. Roberts did not see the purse and did not know if
defendant had it with him.1 Roberts also did not see anyone drop the purse or take it
away from defendant. Roberts followed defendant in his truck while continuing to speak
to a dispatcher. Another truck drove up behind Roberts and a man got out and beat
defendant, knocking him to the ground and punching him at least a dozen times. A man
wearing a motorcycle helmet arrived and also punched defendant. Both of those men left
before the police arrived. Defendant got up and continued walking until the police
detained him.
       The police summoned paramedics, who took defendant to a hospital. At the
hospital, defendant told the police that another man walking ahead of him in the
intersection committed a robbery, but two witnesses stopped defendant and beat him up.
       At trial defendant testified he was crossing the intersection alongside a man who
attempted to take the victim’s purse. Defendant wanted to intervene, but the man was big
and had given him a particular look defendant demonstrated in the courtroom. The
victim did not let go of her purse, and the man never succeeded in getting it away from
her. Defendant continued to walk, looking around for police officers to flag down. A
white van pulled up alongside defendant and two men—not Ayres or Roberts—got out.
They used racial slurs and accused him of being involved in attempting to take the
woman’s purse. They hit the back of defendant’s head, knocking him to the ground, then
kicked him, dragged him, spat on him, and took his shoes. After the men left, the police
arrived. Defendant admitted he had a prior felony conviction for assaulting a police
officer.
       Long Beach Police Officer Gabriel Betanzos, who interviewed Ayres at the scene,
testified Ayres said that after he saw defendant dragging the woman across the
intersection, he saw a man punch defendant in the face. Defendant then broke free and


       1   The Attorney General incorrectly states in her brief that Roberts testified he


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started running with the purse. The man who had hit defendant chased him and was able
to retrieve the purse. Ayres said he followed defendant in his vehicle, then approached
him on foot. Defendant punched Ayres in the face twice and Ayres punched defendant
back. At some point, Ayres tripped defendant. Ayres left after two other men arrived
and detained defendant.
       The jury convicted defendant of second degree robbery. The court found true
allegations under the “Three Strikes” law and Penal Code section 667, subdivision (a)(1)
that defendant had a prior serious felony conviction. (Undesignated statutory references
are to the Penal Code.) The court sentenced defendant to prison for 11 years, consisting
of a second strike term of 6 years and a 5-year enhancement under section 667,
subdivision (a)(1).
                                      DISCUSSION
       Defendant contends the trial court erred by failing to instruct sua sponte on
attempted robbery as a lesser included offense. We agree.
       A trial court must instruct sua sponte on a lesser included offense “when the
evidence raises a question as to whether all the elements of the charged offense were
present, but not when there is no evidence that the offense committed was less than that
charged.” (People v. Cruz (2008) 44 Cal.4th 636, 664.)
       Robbery is defined as the taking of personal property of some value, however
slight, from a person or the person’s immediate presence by means of force or fear, with
the intent to permanently deprive the person of the property. (§ 211; People v. Marshall
(1997) 15 Cal.4th 1, 34.) “The taking element of robbery itself has two necessary
elements, gaining possession of the victim’s property and asporting or carrying away the
loot.” (People v. Cooper (1991) 53 Cal.3d 1158, 1165.) Gaining possession of the
victim’s property occurs when the defendant secures dominion over it. (People v.
Alvarado (1999) 76 Cal.App.4th 156, 161, disapproved on another point in People v.


“saw . . . appellant subsequently walking away with the purse.”


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Lopez (2003) 31 Cal.4th 1051, 1063, fn. 2.) Evidence of slight movement is sufficient to
establish the asportation element. (Cooper, at p. 1165.)
       The evidence here raised a question about whether defendant ever obtained
dominion over the victim’s purse. The victim did not testify nor were any statements by
her admitted. The purse was recovered but no evidence was introduced to show where it
was in relation to the victim. Ayres and Roberts both testified that the victim maintained
her hold on her purse as defendant attempted to take it. Although Ayres testified and told
the police that he saw defendant free the purse from the victim’s grasp, Roberts did not
see the purse in defendant’s possession as defendant walked away after bystanders
intervened. Defendant testified that the thief (whoever he was) never succeeded in
removing the purse from the victim. Thus, although Ayres’s testimony was sufficient to
support the conviction, the testimony of Roberts and defendant raised a question about
the taking element of robbery. The trial court should have instructed sua sponte on
attempted robbery as a lesser included offense.
       We assess the prejudicial effect of the trial court’s error in failing to instruct upon
attempted robbery pursuant to People v. Watson (1956) 46 Cal.2d 818, 836. (People v.
Moye (2009) 47 Cal.4th 537, 541.) We conclude there is a reasonable probability a
properly instructed jury would have convicted defendant of attempted robbery, rather
than robbery. The only evidence supporting a finding that defendant obtained dominion
over the victim’s purse was Ayres’s testimony and a portion of his statement to Officer
Betzanos. Notably, Ayres’s testimony and statement to Betzanos differed regarding how
defendant managed to wrest the purse from the victim and how he lost possession of it.
Roberts’s testimony indicated that Ayres savagely beat defendant, which supported an
inference that Ayres was hostile toward defendant and that he may have exaggerated the
extent of defendant’s conduct, possibly to deflect attention from his own violent acts.
Given Ayres’s prior felony convictions, the significant discrepancies between Ayres’s
testimony and his statement at the scene to Betzanos, and evidence of Ayres’s violent
behavior toward defendant, it is reasonably probable that a jury instructed upon



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attempted robbery as an alternative to either acquittal or conviction of robbery would
have concluded that the prosecution had not established beyond a reasonable doubt that
defendant obtained dominion over the victim’s purse and convicted defendant of
attempted robbery.
       We note that the prosecutor may have exacerbated the prejudice flowing from the
failure to instruct upon attempted robbery by arguing to the jury, without objection, “So
when we’re talking about this robbery, I don’t think the argument in this case, given the
testimony, is whether or not a robbery actually occurred here because every single
witness that testified agrees that there was a robbery. And even the defendant testified
that there was a robbery.” Defendant did not testify that there was a robbery. He
testified that the robber did not get the purse away from the victim, which meant there
was only an attempted robbery, not a completed one. Defense counsel neither corrected
the prosecutor’s misstatement nor argued that there was insufficient proof of any of the
elements of the crime, other than defendant’s identity as the robber.
       Because the evidence is sufficient to support an attempted robbery conviction,
upon remand, the prosecutor’s office will have the option of either retrying the robbery
charge or accepting a reduction of the conviction to attempted robbery.
       Given our disposition, we need not address defendant’s contention, which the
Attorney General concedes, that the trial court erred by imposing restitution and parole
revocation fines greater than the statutory minimum at the time of the crime, after stating
an intent to impose the minimum fines. The trial court can reconsider the amount of
these fines upon remand for resentencing.




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                                      DISPOSITION
       The judgment is reversed and the matter is remanded for retrial. If the prosecution
does not elect to retry the robbery charge, the trial court shall reduce defendant’s
conviction to the lesser included offense of attempted robbery (Pen. Code, §§ 664, 211)
and resentence him.
       NOT TO BE PUBLISHED.


                                                  MALLANO, P. J.
We concur:


       ROTHSCHILD, J.


       CHANEY, J.




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