Brief Bank # B-692 (Re: F 9.40 n14 [Robbery: Knowledge Of Victim’s Presence].)
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IN THE SUPREME COURT OF THE STATE OF CALIFORNIA
THE PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent, Court of Appeal No.
v. E000000
JOHN DOE, Riverside County
No. CR-00000
Defendant, Appellant and Petitioner
_______________________________________/
APPEAL FROM A JUDGMENT OF THE
SUPERIOR COURT OF RIVERSIDE COUNTY
Honorable Dennis Myers, Judge
PETITION FOR REVIEW AFTER AFFIRMANCE OF THE JUDGMENT OF
CONVICTION IN A PARTIALLY PUBLISHED OPINION.
CHARLES R.KHOURY JR.
P.O. Box 1066
Wilton N.H. 03086
(603) 654-2050
State Bar # 42625
Counsel for Petitioner
John Doe
By Appointment of the
Court of Appeal under the
Appellate Defenders’
Independent Case System
ARGUMENT
I
FAILURE TO INSTRUCT THE JURORS SUA SPONTE THAT PETITIONER WAS GUILTY OF THE ROBBERY OF MR. P ONLY IF THEY FOUND PETITIONER HAD BEEN AWARE OF MR. P AT THE TIME OF THE CAR THEFT AND HAD ACCOMPLISHED THAT THEFT BY KNOWINGLY FRIGHTENING OR INTIMIDATING MR. P CONSTITUTED REVERSIBLE ERROR. THE PETITIONER’S FEDERAL CONSTITUTIONAL RIGHT TO TRIAL BY JURY IN THE SIXTH AMENDMENT AND THE FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS WERE VIOLATED BY THE FAILURE OF THE TRIAL JUDGE TO ADEQUATELY INSTRUCT THE JURY.
This was not the typical robbery case. The petitioner admitted driving the car from the lot, he admitted stealing that car but told the jury he didn’t see the car salesman Mr. P in front of his car. He saw him to the side as he was driving out. The opinion at page 7 assumes that the jury concluded petitioner was lying because they had to conclude Mr. P was not to the side but was in front of the car. The opinion misses the point that Mr. P could well have been in front of the car and that petitioner could truthfully say he was certain he did not see him because of his obstructed view due to the stickers on the windshield. Petitioner’s testimony and the facts of the obscured vision left plenty of room for such a scenario. The jury was not told by instructions, however, the significance of Mr. P being in front and petitioner not seeing him. Nowhere in the instructions was the jury told the robber has to be aware of his victim before there is a robbery. All the instructions given were correct as far as they went, they just weren’t relevant to the scenario which the defendant’s testimony painted.
This writer did a computer aided search of all the California law dealing with awareness by the perpetrator of his victim. No cases were found which raised the issue. One case, found in a nation-wide computer search, which did deal with awareness of the presence of the victim was Bowers v. State (1985) 338 S.E.2d 457,117 Ga.App.36. In that case the defendant didn’t deny he fired the shot which struck the victim. He said, however, he wasn’t aware of the victim’s presence in the area when he threw an empty bottle into the air for target practice. The jury was never given a requested lesser charge in Bowers therefore a new trial was required and granted by the Georgia court.
In the instant case, although the jury was given the lesser charge of auto theft, they were never told the significance of petitioner being unaware of Mr. P’s presence in front of the car. They had to be told that if a thief is unaware of his victim’s presence, the thief could not be guilty of robbery but would be guilty of the theft. It was the duty of the judge to so instruct them.
The trial judge is entrusted with the “grave task of determining where justice lies under the law and facts . . . (People v. Carlucci (1979) 23 Cal.3d 249, 256.) Thus “it is the duty of the trial judge to see that a case is not defeated by ‘mere inadvertence’. [citation.]” (People v. St. Andrew (1980) 101 Cal.App.3d 450, 457.)
Federal constitutional rights were implicated here as inadvertence resulted in the jury not being apprised of the necessity the robber be aware of his victim. Failure to instruct on an element of the offense violates the Sixth Amendment right to jury trial and the Fourteenth Amendment right to due process. (See U.S. v. Caldwell (9th Cir. 1993) 989 F2D 1056, 1060-61; People v. Cumminqs (1993) 4 Cal.4th 1233, 1316.)
The opinion below misses the point in stating the instructions as given were correct. Of course they were correct for the typical robbery allegation. This, however, is not the typical case where a robber confronts the victim; the robber threatens or has a weapon in hand. In the overwhelming majority of such cases, the alleged robber and his victim are eye to eye and the accused sees the victim right in front of him. That is not what we have here according to the petitioner’s version which must be credited for purposes of determining appropriate instructions. one can pose a hypothetical of someone who is stealing something from a desk and is observed by someone in the office but, because of the size and demeanor of the thief, the office worker is afraid to stop the thief who never knows that he has been observed. Objectively the victim is afraid, and therefore the theft is certainly “accomplished by fear”. That is not robbery since the thief was not aware of the victim and therefore cannot have the intent to cause the fear he in actuality, but unknown to him, is causing. The standard jury instructions, although correct statements of the law, totally miss this point, however, as did the court below. The jury instruction given in this case was not sufficient to deal with the issue of awareness by the thief of the presence of the victim. CALJIC 9.40, as given in this case, sets forth the elements of robbery as follows:
Every person who takes the personal property in the possession of another, against the will and from the person or immediate presence of that person, accomplished by means of force or fear and with the specific intent permanently to deprive such person of such property, is guilty of the crime of robbery in violation of Penal Code section 211.
In order to prove such crime, each of the following elements must be proved:
1. A person had possession of property of some value however slight,
2. Such property was taken from such person or from his immediate presence,
3. Such property was taken against the will of such person,
4. The taking was accomplished either by force, violence, fear or intimidation, and
5. Such property was taken with specific intent permanently to deprive such person of property.
(CT 85-86.)
This standard instruction, given in this case, makes no reference to petitioner’s awareness of Mr. P, the victim or of any intent to cause fear in the victim because of that awareness. Accordingly, the jury had to have missed this major point in this very unusual case. Petitioner was denied his federal constitutional right to a properly instructed jury. Review should be granted and reversal follow on this issue alone.
