PEOPLE v. LESCALLETT

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Docket Number

Docket No. 21360.

Attorney(S)

COUNSEL Quin Denvir, State Public Defender, under appointment by the Court of Appeal, and Allan H. Keown, Deputy State Public Defender, for Defendant and Appellant. George Deukmejian, Attorney General, Robert H. Philibosian, Chief Assistant Attorney General, Edward P. O'Brien, Assistant Attorney General, Ann K. Jensen and Linda Ludlow, Deputy Attorneys General, for Plaintiff and Respondent.

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Smart Summary

Factual and Procedural Background

Defendant Darrell Lescallett, Jr. was found guilty by a jury of robbery following an incident described as a "purse-snatching." The case proceeded on the theory of either grand theft from the person or robbery under California Penal Code sections 487 and 211. The jury returned a verdict of robbery. Lescallett appealed the judgment entered upon this verdict. The appeal was taken from the Superior Court of San Mateo County.

Legal Issues Presented

Whether the evidence of the "force or fear" element was legally sufficient to support the conviction of robbery.
Whether the trial court erred in instructing the jury with CALJIC No. 2.21 in the absence of supporting evidence.
Whether the trial court erred in allowing the 1977 burglary conviction for impeachment without requiring proof that the burglary involved an element of dishonesty.

Arguments of the Parties

Appellant's Arguments

The evidence was insufficient to prove the "force or fear" element necessary for robbery, arguing that the purse-snatching did not meet the legal threshold.
The trial court improperly instructed the jury with CALJIC No. 2.21, claiming no evidence supported such an instruction.
The admission of the 1977 burglary conviction for impeachment was erroneous because it was not established that the burglary involved dishonesty, as it might have involved intent to commit a non-theft felony such as assault.

Respondent's Arguments

The nonconsensual purse-snatching involved sufficient force or fear to support a robbery conviction, as force sufficient to overcome resistance is all that is required.
There was evidence supporting the use of CALJIC No. 2.21 because defense witnesses challenged the credibility of prosecution witnesses, creating a factual basis for the instruction.
The 1977 burglary conviction was properly admitted for impeachment because, absent a showing to the contrary, it is presumed to involve dishonesty (theft), and the appellant did not contest this at trial.
Any claimed error in admitting the prior conviction was harmless given that appellant’s prior felony convictions were already established through other witnesses.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
People v. Clayton (1928) 89 Cal.App. 405	Degree of force required for robbery is that which overcomes victim’s resistance; exact degree immaterial.	Supported the conclusion that the purse-snatching involved sufficient force to constitute robbery.
People v. Jefferson (1939) 31 Cal.App.2d 562	Property snatched from a person constitutes robbery.	Reinforced that nonconsensual purse-snatching may be robbery.
People v. Roberts (1976) 57 Cal.App.3d 782	Similar to Jefferson, supports robbery conviction for purse-snatching.	Used to affirm sufficiency of evidence for robbery.
People v. Welch (1963) 218 Cal.App.2d 422	Confirms that snatching property from person can be robbery.	Supported the court’s view on force element.
People v. Church (1897) 116 Cal. 300	Distinguishes robbery from grand larceny based on use of force; force is a factual issue for the jury.	Emphasized jury’s role in determining whether force or fear existed; supported leaving issue to jury.
People v. Morales (1975) 49 Cal.App.3d 134	Supports the principle that force or fear is a jury question in purse-snatching cases.	Used to confirm that jury could find robbery.
People v. Jimenez (1978) 21 Cal.3d 595	Supports sufficiency of evidence on force or fear for robbery.	Confirmed that the evidence was sufficient to uphold robbery verdict.
People v. Benton (1979) 100 Cal.App.3d 92	Prior burglary conviction presumed to involve dishonesty unless shown otherwise.	Applied to uphold use of 1977 burglary conviction for impeachment.
People v. Stewart (1973) 34 Cal.App.3d 244	Supports presumption that burglary convictions involve dishonesty for impeachment purposes.	Supported trial court’s ruling on impeachment evidence.
People v. Keating (1981) 118 Cal.App.3d 172	Contrary view on burglary convictions and dishonesty element.	Not followed by the court here; cited for contrast.
People v. Beagle (1972) 6 Cal.3d 441	Procedure for determining admissibility of prior convictions for impeachment.	Trial court held a Beagle hearing and ruled admissibility of prior convictions.
People v. Sirhan (1972) 7 Cal.3d 710	Requires specific and timely objection at trial to preserve evidentiary issues for appeal.	Applied to reject appellant’s new claim on appeal regarding impeachment evidence.
Chapman v. California (1967) 386 U.S. 18	Standard for harmless error on appeal.	Used to conclude any error in admitting prior conviction was harmless.
People v. Watson (1956) 46 Cal.2d 818	California’s harmless error standard.	Supported harmless error analysis on impeachment evidence.

Court's Reasoning and Analysis

The court examined each contention raised on appeal. Regarding the sufficiency of evidence for the "force or fear" element of robbery, the court relied on established precedents holding that any force sufficient to overcome resistance satisfies this element. The victim’s testimony describing a sudden purse-snatching and her expressed fear supported the jury’s conclusion that force or fear was present. The court emphasized that whether the force was sufficient is a factual question properly left to the jury.

Concerning the CALJIC No. 2.21 instruction, the court found that the defense witnesses’ testimony, which challenged the prosecution witnesses’ account, provided an evidentiary basis for the instruction on witness credibility. The fact that the defendant did not testify mitigated potential prejudice from the instruction.

On the issue of admissibility of the 1977 burglary conviction for impeachment, the court noted that absent a showing to the contrary, it is presumed that such convictions involve dishonesty (theft). The defendant failed to demonstrate that the conviction involved a non-dishonest felony. The trial court conducted a Beagle hearing and ruled the conviction admissible. The court also held that the failure to object timely in trial barred this issue on appeal. Finally, any error was deemed harmless because the defendant’s prior felony status was otherwise established.

Holding and Implications

The judgment of conviction is affirmed.

The court upheld the robbery conviction, finding the evidence legally sufficient to prove the force or fear element. It also affirmed the propriety of the jury instruction on witness credibility and the admission of the prior burglary conviction for impeachment. The decision directly sustains the jury verdict and the trial court’s rulings without establishing new legal precedent. The appellant’s challenges were either unsupported by the record or waived by procedural default, and any errors found were harmless.

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THE PEOPLE, Plaintiff and Respondent, v. DARRELL LESCALLETT, JR., Defendant and Appellant.

OPINION

ELKINGTON, Acting P.J.

A jury found defendant Darrell Lescallett, Jr., guilty of robbery. He appeals from the judgment which was entered upon the jury's verdict.

We affirm the judgment for reasons which follow.

The several appellate contentions are stated as they are phrased by Lescallett.

Contention: "The evidence of the `force or fear' element of robbery is legally insufficient to support appellant's conviction of that crime."

The offense which was proved to the jury's satisfaction may be described as a "purse-snatching." The case had been given to the jury on the theory of grand theft from the person (Pen. Code, § 487, subd. 2) or in the alternative, robbery (i.e., "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") (Pen. Code, § 211). The jury, as noted, found the crime to be robbery. (1) In support of the instant contention Lescallett argues that: "The evidence of `force or fear' is legally insufficient to support appellant's robbery conviction."

The relevant testimony of the victim of Lescallett's crime follows: ". . . I, all of a sudden, I saw someone, a fellow running towards me, and all of a sudden, I felt a purse being snatched from my hand. . . . I just turned around quick, and I saw this fellow running, . . . I was just walking . . . slowly and just holding it casual, this way [demonstrating], and all of a sudden, I felt it snatch. . . . Well, he ran, ran as fast as he could with the purse."

We note initially that: "`The degree of force used is immaterial. All the force that is required to make the offense a robbery is such force as is actually sufficient to overcome the victim's resistance. . . .'" ( People v. Clayton (1928) 89 Cal.App. 405, 411 [ 264 P. 1105].)

The nonconsensual snatching of a purse has been held to entail such force as to permit a jury to return a verdict of robbery. "Where property is snatched from the person of another . . . the crime amounts to robbery." ( People v. Jefferson (1939) 31 Cal.App.2d 562, 567 [ 88 P.2d 238]; and see People v. Roberts (1976) 57 Cal.App.3d 782, 785, 787 [ 129 Cal.Rptr. 529]; People v. Welch (1963) 218 Cal.App.2d 422, 423 [ 31 Cal.Rptr. 926].)

However, the issue whether sufficient force accompanied the snatching is best left to the jury which may ordinarily find the offense to be either a robbery, or grand theft from the person. In People v. Church (1897) 116 Cal. 300 [48 P. 125], the state's high court said: "`If another feloniously takes it [a watch chain] from him against his will, by violence — by force snatches it and runs away with it — it is robbery. . . .' [U]nder the evidence we have set out, it is a close question whether such taking constituted robbery or grand larceny. That question was dependent upon the absence or presence of the use of force in the taking; and the use or nonuse of force by defendant was a question of fact essential for the jury to determine in fixing the crime of which the defendant should be convicted. Grabbing or snatching property from the hand has often been held to be grand larceny, and not robbery." (Pp. 302-303; italics added.) "[T]he jury should not have been deprived of the right to find the defendant guilty of grand larceny, if they so saw fit." (P. 304.) (See also People v. Morales (1975) 49 Cal.App.3d 134, 138-140 [ 122 Cal.Rptr. 157].)

We observe also that the victim of Lescallett's crime, when asked if she was "afraid or frightened when this happened," responded, "Yes, I was frightened."

Manifestly, under the above-noted authority and the factual circumstances of the case, the jury might reasonably have concluded that Lescallett's nonconsensual removal of the purse from the victim's person was accomplished by "force or fear," or both. Such evidence, believed by the jury, was sufficient to support their verdict of robbery. (See People v. Jimenez (1978) 21 Cal.3d 595, 609 [ 147 Cal.Rptr. 172, 580 P.2d 672].)

II.

(2) Contention: "The trial court committed reversible error by instructing the jury in accordance with CALJIC 2.21 because there was no evidence in the record upon which it could be based."

CALJIC No. 2.21 states: "A witness willfully false in one material part of his testimony is to be distrusted in others. You may reject the whole testimony of a witness who willfully has testified falsely as to a material point, unless, from all the evidence, you shall believe the probability of truth favors his testimony in other particulars.

"However, discrepancies in a witness' testimony or between his testimony and that of others, if there were any, do not necessarily mean that the witness should be discredited. Failure of recollection is a common experience; and innocent misrecollection is not uncommon. It is a fact, also, that two persons witnessing an incident or a transaction often will see or hear it differently. Whether a discrepancy pertains to a fact of importance or only to a trivial detail should be considered in weighing its significance."

Eight witnesses testified for the People at the trial. Lescallett's brother and three other prison inmates testified for the defense. The four defense witnesses stated that defendant Lescallett's physical condition was such that he could not have " run" toward, and then away from, the victim as testified by her. If their testimony were true, it would be probable that the victim and other prosecution witnesses were mistaken or "willfully false" in their testimony. There was thus "evidence in the record upon which [CALJIC No. 2.21] could be based."

It may be, as suggested by Lescallett, that such an instruction should be avoided where, under the circumstances of the case, it might appear to be directed principally toward a defendant's exculpatory testimony. But here Lescallett did not testify at the trial and he was accordingly not so prejudiced.

III.

(3) Contention: "The trial court erred in allowing the 1977 burglary conviction for impeachment purposes without having required the prosecutor to prove that the burglary related to a crime involving an element of dishonesty."

The supporting argument is that since the 1977 burglary conviction may not have involved an intent to commit theft, but instead may have involved an intent to commit some other felony "such as assault (in which case the prior would not be admissible for impeachment)."

We first observe the rule that: "In the absence of a showing by appellant that his prior attempted burglary did not involve a theft, it is assumed that it did and thus is a crime reflecting an appellant's honesty." ( People v. Benton (1979) 100 Cal.App.3d 92, 97 [ 161 Cal.Rptr. 12]; and see People v. Stewart (1973) 34 Cal.App.3d 244, 247-248 [ 109 Cal.Rptr. 826]; contra, People v. Keating (1981) 118 Cal.App.3d 172, 179-180 [ 173 Cal.Rptr. 286].)

Here the trial court held a timely and extensive Beagle ( People v. Beagle (1972) 6 Cal.3d 441 [ 99 Cal.Rptr. 313, 492 P.2d 1]) hearing to determine whether any of Lescallett's prior felony convictions might be used for impeachment, should he elect to testify. The "1977 burglary conviction" was among those under consideration and the court ruled that it might be used, apparently on the theory that the overwhelming majority of such convictions are founded on an intent to perform a dishonest act, i.e., theft. At the hearing Lescallett, who certainly was advised of the charge to which he had earlier pleaded guilty, offered no argument that it involved an intent to commit an offense other than to perform a dishonest act. Indeed he offered no contradictory response to the prosecutor's statement that the 1977 burglary conviction did involve "dishonesty." The instant point, or suggestion, is raised for the first time in this reviewing court. It is, of course, the law "that questions relating to the admissibility of evidence will not be reviewed on appeal absent a specific and timely objection in the trial court on the ground sought to be urged on appeal." ( People v. Sirhan (1972) 7 Cal.3d 710, 745 [ 102 Cal.Rptr. 385, 497 P.2d 1121].)

(4) Moreover, we find the instantly claimed error to be harmless. Lescallett himself, as noted, produced three witnesses from which it appeared that he had served time in prison, and that he had thus been previously convicted of a felony; the here criticized impeachment testimony caused little, if any, additional prejudice. (See Cal. Const., art. VI, § 13; Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711, 87 S.Ct. 824, 24 A.L.R.3d 1065]; People v. Watson (1956) 46 Cal.2d 818, 836 [ 299 P.2d 243] [cert. den., 355 U.S. 846 (2 L.Ed.2d 55, 78 S.Ct. 70)].)

The judgment is affirmed.

Newsom, J., and Grodin, J., concurred.

A petition for a rehearing was denied October 2, 1981, and appellant's petition for a hearing by the Supreme Court was denied November 27, 1981. Bird, C.J., was of the opinion that the petition should be granted.