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trialwillappellant

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People v. Brew, 2 Cal.App.4th 99, 2 Cal.Rptr.2d 851

Facts

On July 26, 1990, Darren Brew entered the Thrifty Drug Store in Millbrae, where he was recognized by cashier Cherie Geiman as a former employee. He approached cashier Nayna Patel under the pretense of making a purchase, but instead, he intimidated her into stepping back while he stole money from the cash register. Assistant manager Gary Shaw attempted to intervene but was physically confronted by Brew, who managed to escape with $1,004.

On the evening of July 26, 1990, Cherie Geiman was working as a cashier at the Thrifty Drug Store (Thrifty) in Millbrae. She saw appellant enter the store. She recognized him because he had been in the store a few days earlier and had introduced himself as a former employee. Geiman alerted the store's assistant manager, Gary Shaw, to appellant's presence and Shaw decided to keep an eye on him.

Issue

Did the trial court err in failing to instruct the jury on grand theft by larceny as a lesser included offense of robbery for the charge against Patel?

Appellant contends that his conviction for robbery as against Patel, count two of the information, must be reversed because there is insufficient evidence that the offense was committed by use of force or fear.

Rule

Robbery is defined as the felonious taking of personal property from another's possession by means of force or fear, and theft is a lesser included offense of robbery. The trial court is obligated to instruct on lesser included offenses when the evidence raises a question as to whether all elements of the charged offense are present.

Section 211 defines robbery as the felonious taking of personal property in the possession of another from his or her person or immediate presence and against his or her will accomplished by means of force or fear.

Analysis

The court found that there was sufficient evidence to support the jury's finding that the robbery against Patel was accomplished through fear or intimidation. However, it also recognized that the jury should have been given the option to consider grand theft by larceny as a lesser included offense, as the evidence could support a finding that the offense was committed without the necessary elements of force or fear.

As was demonstrated previously, there is sufficient evidence to sustain a finding that appellant's offense as against Patel was committed through use of fear or intimidation. However, arguably, the evidence would support a finding that the offense was committed without these elements being present.

Conclusion

The court reversed the conviction for robbery against Patel due to the trial court's failure to instruct the jury on grand theft by larceny as a lesser included offense and affirmed the conviction for robbery against Shaw.

The judgment of conviction for robbery ( § 211) on count two is reversed. The cause is remanded for a new trial on count two.

Who won?

The People prevailed in the conviction against Shaw, as the evidence supported a finding of robbery with the use of force.

We find more than ample evidence to support the jury's implied finding that the offense was accomplished in such a manner.

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