Filed 2/25/14 P. v. Mitchell CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 TWO


THE PEOPLE,                                                          B247553

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. TA121830)
         v.

RAMOND MITCHELL,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County.
Eleanor J. Hunter, Judge. Affirmed.


         Steven A. Brody, 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, Assistant Attorney General, Chung L. Mar and Viet H.
Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.


                  ___________________________________________________
       Appellant Ramond Mitchell was charged with two counts of robbery (Pen. Code,
§ 211)1 but was convicted by a jury of one count of the lesser included offense of grand
theft (§ 487, subd. (a)). The trial court found that appellant had one prior felony
conviction under the Three Strikes law (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1)).
Appellant was sentenced to a prison term of four years in state prison consisting of the
middle term of two years, doubled for the prior strike. The court awarded 307 credit days
consisting of 268 days of actual custody time and 39 days of conduct credits.2 The sole
contention on appeal is that the evidence failed to show that the owner did not consent to
the taking. We affirm.
                               PROCEDURAL HISTORY
       The matter proceeded to a jury trial. At the close of evidence and after the jury
instructions were read, appellant requested leave to reopen so that he could testify. After
he had testified, the court instructed the jury on the lesser included offense of grand theft
without objection from the defense.
       The jury returned verdicts of not guilty on the two counts of second degree
robbery. The jury found appellant guilty of one count of grand theft.
                                          FACTS3
A.     Prosecution Evidence
       Tiffany Cox knew appellant on a personal level through a friend. Cox had a
couple of sexual encounters with appellant, whom she considered a friend. Appellant




1      All further statutory references are to the Penal Code.
2      The award of credits was allegedly amended on July 6, 2013, to reflect an award
of 414 total credit days consisting of 276 days of actual custody and 138 days of conduct
credits. The clerk’s transcript does not include the order amending the awarded credits.
The issue of the credits awarded is not raised in this appeal.
3       Since the differing versions of the altercation that led to criminal charges is basic
to the case, we summarize the evidence separately for the two sides.


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was “always on my [Cox’s] bumper . . . calling [her] phone, texting [her], send[ing] [her]
pictures.”
       On September 1, 2011, Cox got a text message from appellant wanting her to
come “hang out” with him. Appellant told her to bring a friend because he himself was
with a friend. At the time, Cox was out shopping with her friend Lynn Hill.
       Appellant told Cox to meet him at an apartment complex with which she was
familiar but which she had never seen on the inside. Cox drove to the complex with Hill.
Appellant gave her the okay to drive through the apartment complex and told her where
to park. Cox parked, got out of her car, and appellant walked her and Hill to the elevator.
       Cox, Hill and appellant went up the elevator. Once off the elevator, appellant
turned around, holding a gun.
       Cox saw the gun first, then heard appellant say, “Put your purse down.” Cox put
her purse down. Hill initially did not see the gun but heard a “click, click” and “[d]rop
your purse.” After Cox dropped her purse, appellant put the gun on Hill’s stomach and
threatened to shoot her if she did not drop her purse. Hill dropped her purse.
       Cox and Hill ran down the stairs that were in the opposite direction from the
elevator. Cox was “scared to death, trying to get to a public area.”
       When they got outside the complex, Hill called 911. Cox also called 911. Her
call was not as far along as Hill’s, so she hung up her 911 call. Hill gave Cox the phone
so she could give the police directions.
       Hill went back inside the complex to look for help. Hill found the purses on top of
Cox’s car. Their wallets were the only things missing from the purses.
B.     Defense Evidence
       Appellant testified that he considered Cox to be a friend or, more accurately, a
“friend with benefits.” The day before the incident, Cox called appellant saying that she
had a “sucker that she wanted to rip off of some marijuana.” 4 Appellant agreed. The



4      Appellant implied that the unknown drug dealer was a person from whom
appellant received a voicemail sometime after the incident. The caller identified himself

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next day, Cox called him and told him that she was ready. Cox came to Paramount
where appellant was at an apartment complex where he used to live. Appellant directed
Cox and Hill into the underground parking garage.
       Cox was carrying half a pound of marijuana. Appellant tried to take the marijuana
in the parking garage. Cox said no because people were coming in and out. They went
up the elevators to the second floor and went through the transaction there. Cox gave
appellant the marijuana. Cox and Hill then left.
       Appellant denied having a gun on him. He denied pulling a gun on the women.
       Appellant divided the marijuana with Cox the next day at a McDonald’s. Cox got
two ounces of the marijuana and appellant kept about six ounces.
C.     Rebuttal Evidence
       In rebuttal, the prosecution called Erik Shear, a detective with the Los Angeles
Police Department. Detective Shear testified that “cush” marijuana is street vernacular
for high-grade marijuana. A pound of “cush” marijuana sells for about $5,000 to $6,000;
$2,500 to $3,000 for half a pound of “cush” marijuana is common. Detective Shear also
testified that it was uncommon in the narcotics world for people to “front” drugs to be
sold because, chances were, they were never going to get their money back from it.
                                      DISCUSSION
       Appellant contends that there was no evidence presented that the marijuana was
taken without its owner’s consent. Appellant reasons that the grand theft charge and
conviction had to relate to the marijuana because the trial court, before instructing the
jury on grand theft, noted that an officer had testified that the marijuana in question was
valued over $950.5 Appellant goes on to contend that the only evidence about the taking



as “Twist.” The message was related to Cox and the marijuana. Appellant did not return
the call. However, “Twist” was the person who told appellant that he had been reported
by Cox as a suspect in a robbery.
5      Under subdivision (a) of section 487, grand theft is the taking of property in
excess of $950.


                                              4
of the marijuana was his testimony that Cox told him that she would take the marijuana
from the dealer on the pretense that it was to be sold to appellant. The thrust of this
argument is that it is simply unknown how, or under what circumstances, Cox obtained
the marijuana from the dealer.
          The premise of this argument is mistaken. The grand theft here was the taking, by
appellant, of the marijuana from Cox, not the taking of the marijuana by Cox from the
dealer.
          It is true that one of the elements of grand theft is a taking of property without the
owner’s consent. (CALCRIM No. 1800; People v. Williams (2013) 57 Cal.4th 776, 783.)
But the “owner” need not actually be the owner, in the sense of holding legal title. “A
person may be the victim of larceny even though he is not the owner; he need only have a
special property right, as in the case of a bailee or pledgee.” (Footnote omitted.)
(3 Torcia, Wharton’s Criminal Law (15th ed. 1995) Larceny, § 381, pp. 454-455, citing,
inter alia, People v. Nelson (1880) 56 Cal. 77, 82.) “A second thief is guilty of larceny
even though he steals the property from the first thief.” (3 LaFave, Substantive Criminal
Law (2d ed. 2003) § 19.4(c), p. 86.) It is enough that Cox had possession of the
marijuana and that appellant took the marijuana without her consent. (People v. Nelson,
at p. 82; accord, People v. Davis (1893) 97 Cal. 194, 195.)6
          There was circumstantial evidence from which the jury could have reasonably
inferred that Cox did not consent to the taking of the marijuana by appellant. Both Cox
and Hill immediately called the police after they had fled the scene. They would have
hardly done that if the taking had been with their consent. On the other hand, if they had
called the police several days after the incident, doubts could well arise about the nature
of the taking.


6      As noted by LaFave, the Model Penal Code and several jurisdictions, California
not among them, expressly provide that the victim of larceny includes a person whose
interest in the property is unlawful. (3 LaFave, Substantive Criminal Law, supra,
§ 19.4(c), at p. 86.) Although there is no such statute in California, People v. Nelson
approvingly states the same rule. (56 Cal. at p. 82.)


                                                 5
       One should add the consideration that the women came to the scene voluntarily,
expecting a social encounter, but ended up placing 911 calls to the police. Something
obviously went wrong here and that something was a violent confrontation over the
marijuana. It is worth noting that the women’s description of how appellant pulled the
gun and threatened them was detailed and credible.
       In his reply brief, appellant claims that the theory that he committed grand theft
when he took the marijuana from Cox was never presented to the jury. This is not
correct. The prosecutor contended in his closing argument that appellant intended all
along to rob the women and that, in his own testimony, he admitted to the robbery.
Because appellant testified about the marijuana, the prosecutor’s theory was that the net
effect of appellant’s testimony was that he robbed Cox of the marijuana. The prosecutor
stated that he did not think that this was reasonable (robbery of the wallets was more
reasonable) but he unambiguously went on to say that this was a choice that the jury
could make.
       We conclude that the jury in this case could rationally find that Cox did not
consent to the taking of the marijuana. (People v. Marshall (1997) 15 Cal.4th 1, 34 [the
question is whether a rational finder of fact could have found the essential elements of the
crime beyond a reasonable doubt].)
                                     DISPOSITION
       The judgment is affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.


                                                 BOREN, P.J.
We concur:


              ASHMANN-GERST, J.                  FERNS, J.*
_______________________________________________________________

*     Judge of the Los Angeles Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.

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