APPEAL from a judgment of the Superior Court of San Joaquin County, K. Peter Saiers, Judge. (Retired Judge of the San Joaquin Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed in part and reversed in part. (Super. Ct. No. SF108255A)
The opinion of the court was delivered by: Robie, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Convicted of robbery, grand theft (theft from the person of another), and petty theft with a prior, defendant Jason Alexander Morris appeals contending there was insufficient evidence to support a sentence enhancement finding that he knew or should have known his victim was developmentally disabled, and the trial court prejudicially erred in failing to instruct on theft as a lesser included offense of robbery. Defendant also contends the trial court prejudicially erred in instructing the jury on the sentence enhancement and expert opinion testimony was necessary with respect to the enhancement.
In the published portion of our opinion, we agree there was insufficient evidence that defendant knew or should have known the victim, who suffers from schizophrenia, was "developmentally disabled" within the meaning of the enhancement statute (Pen. Code,*fn2 § 667.9, subd. (a)). Accordingly, we will strike that enhancement. In the unpublished portion of the opinion, we also agree the trial court erred in failing to instruct on theft as a lesser included offense of robbery, but find that error harmless as to defendant's robbery conviction. We will, however, vacate defendant's theft convictions, as defendant could not be convicted of robbery and the lesser included theft offenses. In light of these modifications -- particularly the striking of the section 667.9 enhancement -- we will remand the case to the trial court for resentencing.
In May 2008, S. B. was shopping at the S & K Market, as she did every week. Defendant, who shopped at the store regularly, had seen S. B. before and felt she was a nice person from having "seen her around." Defendant saw S. B. go into the store and saw her come out about 5 to 10 minutes later. He saw her put her purse down and asked her if she was "'okay,' because she sort of was looking around." S. B. had put her purse on the ground to load her purchases into her purse, but the purse was touching her foot. Defendant walked up to her and grabbed her purse off the ground. S. B. struggled with defendant over the purse, but she lost her hold and fell down, and defendant fled with the purse. S. B. pursued defendant, yelling at him to give her purse back. As she followed him, he punched her and knocked her down. She got up and continued chasing him.
Debra Williams, a witness in a passing vehicle, saw defendant snatch the purse from S. B.'s feet, saw S. B. catch defendant and grab the purse, and saw defendant punch S. B. and knock her to the ground. Michael Faulkner, Jesse Ramirez, and Tim Ashlock chased after defendant. Faulkner caught defendant and told him to stop. Defendant eventually slowed down and gave Faulkner the purse. Faulkner told the others to call the police. When defendant resisted, Faulkner and Ashlock wrestled him to the ground and ultimately tied his hands to restrain him.
When Stockton Police Officer David Reeder arrived on the scene, he saw two men holding defendant down. Officer Reeder took defendant back to his patrol car. On the way there, defendant said he was not "going to go back to this bullshit." Officer Reeder placed defendant under arrest, gave him Miranda*fn3 warnings, and interviewed him. Defendant admitted he took the purse off the ground and claimed it was not a big deal. He said she said, "'give it back.' He said he didn't have to listen to a crazy lady." Defendant referred to S. B. as a "crazy lady" a couple of times.
Defendant testified he saw S. B. go in the store and come out about 5 to 10 minutes later carrying her purse. She set it on the ground and began to roll a cigarette. He approached her and asked if she was okay, and she responded she was fine. Then he grabbed her purse and ran away.
A number of people chased defendant. He stopped running because he thought the police were chasing him. He returned the purse and apologized for taking it. Then the men chasing him beat him up and detained him until police arrived. Defendant denied punching S. B. or struggling with her for the purse. He denied he knew she had mental health issues, but admitted she looked like an easy target.
S. B. had been taking medication for schizophrenia since she was 18 years old. She lived in a board and care home; she could not live on her own. The home provided her food, did her laundry, administered her medications, cooked her food, and helped with her day-to-day living activities. There was a 9:00 p.m. curfew. If she was doing well, she could come and go as she liked, but if she was not doing well, the home could ask her to stay there. The home also helped with house cleaning and monitored any unusual behavior of its residents.
S. B. stayed in school until she was about 18 years old and received her GED. She also may have taken some community college classes. S. B. walked by herself to places such as the market, the park, and the community center. She did not take the bus because she was afraid the bus would crash based on how it leans. She supported herself financially by selling clothes.
Every two weeks S. B. got an injection of Haldol to control her auditory hallucinations. When she did not get the medications, she talked to herself and could not find her way home. She was on her medication when defendant stole her purse.
S. B. had received assistance from San Joaquin County Behavioral Health Services since 1998. Vicki Simpson had been her behavioral health caseworker since 2006. In 2006, before S. B. moved into the residential care home, Simpson visited her apartment. The apartment was "seriously dilapidated." S. B. was not attending her health care appointments, and her apartment was filthy and cockroach infested. There were dirty dishes in the sink that had not been washed for weeks. There was hardly any food in the apartment. She was afraid to get dentures because she thought her teeth would grow back from taking vitamins. The residential home where she lived brought S. B. to her psychiatric and health care appointments, helped her function in the community, and administered and monitored her medications.
Defendant was charged by information with robbery, grand theft (theft from the person of another), and petty theft with a prior. The information further alleged that defendant had two prior convictions (including one for grand theft) for which he had served prison terms. The information also alleged an enhancement under section 667.9 for each of the three counts. Section 667.9 provides for a one-year sentence enhancement when the defendant knows or reasonably should know that the victim of an enumerated offense is 65 years of age or older, blind, deaf, developmentally disabled, a paraplegic, a quadriplegic, or under 14 years old. Here, the information did not specify which condition applied, but the case was tried on the theory that the victim, S. B., was developmentally disabled.*fn4
The trial on the prior prison term allegations was bifurcated and the substantive charges and the section 667.9 enhancement were presented to a jury. The trial court instructed the jury on robbery, grand theft, and petty theft as distinct charges. The court did not instruct the jury that theft is a lesser included offense of robbery, nor that they could convict defendant on only one of the three charges.
On the section 667.9 enhancement, the court instructed the jury as follows:
"[T]o prove this allegation, the People must prove at the time of the theft [S. B.] was developmentally disabled and at the time of the theft, defendant knew or reasonably should have known that [S. B.] was developmentally disabled.
"Developmentally disabled means a severe, chronic disability of a person that:
"One, is attributable to mental or physical impairment or a combination of mental ...