People v. Hale CA2/8

Filed 6/6/22 P. v. Hale CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B312810
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. TA149043
v.
TRACEY BERNARD HALE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Michelle M. Ahnn, Judge. Affirmed.
William Paul Melcher, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Zee Rodriguez, Supervising Deputy
Attorney General, and Michael C. Keller, Deputy Attorney
General, for Plaintiff and Respondent.
____________________
A jury convicted Tracey Bernard Hale of robbery. He
appeals, arguing the trial court should have instructed on simple
theft. We affirm. Statutory citations are to the Penal Code.
On May 22, 2019, Hale and a companion approached Mynor
Espinoza in a liquor store. Hale asked Espinoza his name and
looked at the gold chain around his neck. Then Hale and his
companion went to wait at the store’s entrance.
Fearing robbery, Espinoza stayed inside. But Hale
approached Espinoza from behind, put his arm around his neck,
and dragged Espinoza to a back corner. There, Hale turned
Espinoza toward the wall, demanded money, and took Espinoza’s
wallet from his pants pocket. He took $180 and a debit card from
the wallet, threw the wallet and other contents on the ground,
and told Espinoza to use his card to get money from the ATM.
Espinoza refused, and Hale threw the card at him. Hale pushed
Espinoza’s head down, told him to look at the ground, and
unclasped the gold chain from his neck. Hale and his companion
left. Espinoza called police, who arrived and gathered evidence,
including video footage of Hale pulling Espinoza out of the frame
by the neck.
Espinoza testified to this account at trial, and prosecutors
played the video. The store owner testified he too heard Hale ask
Espinoza, “What’s your name?”
A cashier at the store also testified. He recounted he saw
Hale and Espinoza arguing and heard Hale say to Espinoza,
“Were you the one who was near my car?” and “Did you just spit
on me?” He saw Hale put Espinoza in a headlock and drag him
away. The cashier left the counter and told the men to leave. He
did not see Hale take anything from Espinoza or carry any
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jewelry. Espinoza did not tell the cashier or store owner Hale
robbed him.
When police arrested Hale that same day, he had only $12
in cash and no chain matching Espinoza’s description.
At trial, the court instructed the jury on robbery but not
theft. Denying Hale’s request to instruct on theft, the court said,
“there is no evidence to support petty theft. All the evidence
shows that there was force used during the video and testimony
of the witness.” The jury found Hale guilty of second degree
robbery. (§ 211.)
Hale challenges his conviction, arguing the trial court had
an independent duty to instruct on the lesser included offense of
theft. (See People v. Breverman (1998) 19 Cal.4th 142, 154.)
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.”
(§ 211.) Theft lacks the element of force or fear and is a lesser
included offense of robbery. (§ 484; People v. Ramkeesoon (1985)
39 Cal.3d 346, 351 (Ramkeesoon).) The trial court is not required
to instruct on theft unless there is some evidentiary basis on
which the jury could find the offense to be less than robbery.
(People v. Gonzalez (2021) 59 Cal.App.5th 643, 650 (Gonzalez).)
Hale conceded he used force on Espinoza. Video evidence
confirmed it. At trial, defense counsel argued Hale merely
assaulted Espinoza and did not take anything from him. In
closing argument, he described the casual behavior of shoppers
and staff during the back corner incident and emphasized the
fact the necklace and cash were never found. He invited the jury
to find Espinoza’s testimony incredible and to conclude “[t]here
was a battery, but not a robbery.”
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Hale presents a different theory on appeal. He cites
Ramkeesoon, supra, 39 Cal.3d 346 to argue the theft was
separate and subsequent to the assault. He says a reasonable
jury could find Hale “had not thought about stealing any of
Espinoza’s property until after the assault was completed, and
after the two had their conversation or argument.”
In Ramkeesoon, the defendant offered evidence at trial of a
later-formed intent to take. He testified he killed a man in self-
defense, and it only occurred to him to take the dead man’s
property on his way out. (Ramkeesoon, supra, 39 Cal.3d at pp.
348–350.) The trial court refused to instruct on simple theft, and
the Supreme Court reversed. (Id. at pp. 350–353.) Because the
defendant admitted to taking the property but disputed when he
decided to take it, the error had left the jury with an
“ ‘unwarranted all-or-nothing choice’ ” between acquittal and
robbery. (Id. at p. 352.) The defendant’s account of events was
evidence, and its credibility a question for the jury. (Id. at p.
351.)
This case does not track Ramkeesoon. No evidence
suggests Hale formed the intent to rob Espinoza only after
assaulting him. (See People v. Wilson (2021) 11 Cal.5th 259, 298
[no independent duty to instruct on theft when “little, if any,
evidence” suggested post-assault intent to steal].) On the
contrary, Espinoza testified he feared robbery from the moment
Hale approached him, and video showed Hale drag Espinoza by
force to a secluded corner. Hale’s defense was to undermine
Espinoza’s credibility and attack the taking element of robbery.
The cashier’s testimony contradicted Espinoza’s on that element,
not when Hale’s larcenous intent arose.
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Even considering the events of the corner alone, pushing a
victim’s head down and removing his wallet from his pants and
chain from his neck satisfies the force or fear element of robbery.
(See Gonzalez, supra, 59 Cal.App.5th at p. 650 [yanking a
necklace or tapping a shoulder is sufficient force for robbery].)
Hale does not address this second use of force.
The jury’s choice was all-or-nothing: did Hale take or not
take? Because force was obvious and uncontested, this choice
was warranted. The trial court had no duty to instruct
otherwise.
DISPOSITION
The judgment is affirmed.
WILEY, J.
We concur:
STRATTON, P. J.
HARUTUNIAN, J.*
* Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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