APPEAL from a judgment of the Superior Court of San Joaquin County, Linda L. Lofthus, Judge. Reversed with directions. (Super. Ct. No. MF032348A)
The opinion of the court was delivered by: Hull , Acting P. J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Defendant was convicted of grand theft from the person (Pen. Code, § 487, subd. (c); further undesignated section references are to the Penal Code) and was granted formal probation for five years. He appeals contending there is insufficient evidence to support the conviction and the trial court erred in instructing the jury on flight. We agree with the first contention and direct that the conviction be reduced to one for petty theft (§ 484). On the second contention, we conclude any error was harmless under the circumstances.
On the evening of June 22, 2009, I.E. left work around 10:00 p.m. and drove to a Wells Fargo Bank to deposit approximately $125 in cash into his account. He parked in the bank's parking lot, walked up to an automatic teller machine (ATM), inserted his bank card and began his transaction. However, some of the cash he inserted into the ATM was rejected as too old and worn.
Meanwhile, defendant had followed I.E. into the Wells Fargo parking lot. Defendant got out of his car and approached I.E. while yelling at him in English. I.E., who had limited English proficiency, did not understand what defendant was saying. I.E. turned around to face defendant. He felt threatened and thought this might be a robbery.
According to I.E., defendant walked up to him and continued to yell. After 10 or 15 seconds of this, defendant hit I.E. in the face and pushed him away from the ATM. I.E., who is significantly smaller than defendant, fled to his car. From there, I.E. observed defendant walk up to the ATM, where I.E. had left his bank card and cash. After 10 or 15 seconds, defendant departed.
Defendant walked back to his car, got in and drove off. I.E. then returned to the ATM and found his card but none of the cash that had been rejected by the machine. The receipt produced by the ATM for his transaction showed that he had successfully deposited only $20.
Defendant admitted being present in the Wells Fargo parking lot but denied that he went there to rob I.E. He testified that his girlfriend worked with I.E. and had complained to defendant about I.E. "creeping her out" when defendant was not around. Each time defendant picked his girlfriend up from work, I.E. would give defendant "weird looks." On June 22, 2009, defendant picked his girlfriend up from work and, as he was driving away, I.E. cut him off on the road. This was the "last straw" for defendant, and he followed I.E. into the Wells Fargo parking lot to confront him.
Defendant acknowledged yelling at I.E. as he approached him at the ATM. According to defendant, they got in each other's face and were both yelling. When I.E. called defendant a name, they began hitting each other and "tussling." I.E. eventually ran off. At that point, defendant grabbed I.E.'s money from the ATM and taunted him with it to try and get I.E. to come back and fight. When I.E. refused to return, defendant tore up the money, returned to his car and departed.
Defendant acknowledged that, the day after the incident, he told a police officer he tore up the money as he drove away from the bank. Defendant claimed he had been mistaken at the time. Defendant further acknowledged a surveillance video of the incident did not show him tearing up the money at the ATM. Defendant then testified he tore up the money as he was walking to his car.
Defendant was charged with robbery. The jury found defendant not guilty of robbery but guilty of the lesser included offense of grand theft from the person. The trial court thereafter suspended imposition of sentence and granted defendant formal probation for five years, on the condition he spend six months in county jail.