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The People v. Jesse Moore

December 12, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JESSE MOORE, DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of Los Angeles County, Carol Williams Elswick, Judge. (Los Angeles County Super. Ct. No. GA082000)

The opinion of the court was delivered by: Aldrich, J.

CERTIFIED FOR PARTIAL PUBLICATION*fn1

Affirmed.

Defendant and appellant Jesse Moore appeals his convictions for attempted second degree robbery and misdemeanor vandalism. In the published portion of this opinion, we conclude a probation condition prohibiting Moore from owning, possessing, or using dangerous or deadly weapons is not unconstitutionally vague, and need not be modified to include a knowledge requirement. In the unpublished portions, we conclude the evidence was sufficient and the prosecutor did not commit prejudicial misconduct. Accordingly, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

I. Facts.

a. People's evidence.

On October 15, 2010, at approximately midnight, Juan Manuel Pineda Hernandez*fn2 was in Alhambra, walking home from work. Moore approached Pineda and asked for a cigarette. Pineda, whose first language was Spanish, spoke "a little" English and understood Moore's request. Pineda smelled alcohol on Moore's breath. Pineda told Moore he did not speak English and did not have any cigarettes. Moore became irate and raised his voice, saying " 'talk to me in English.' " Pineda reiterated that he did not speak English. Moore replied, " 'Fuck you. I'll kick your ass,' " and asked where Pineda was from. Pineda continued walking toward his home.

Moore grabbed Pineda's sleeve, and Pineda pulled away. At the same time,

Pineda answered his cellular telephone. Moore grabbed the phone. When Pineda threatened to call police, Moore said " 'fuck the police' " and broke the phone. When Pineda reached for the phone, Moore swung at Pineda, landing a punch on Pineda's shoulder and face. Moore stated, " 'Do you have money,' " " 'give me money,' " or something similar. He attempted to reach inside Pineda's rear pants pocket, where Pineda carried his wallet. The men struggled and Moore tried to push Pineda to the ground. Pineda landed on his knees, stood back up, and ran toward his house, with Moore chasing him. Moore threw the phone at Pineda, hitting him in the back. When Pineda reached his nearby home, a neighbor summoned police.

b. Defense evidence.

Moore testified in his own behalf. He admitted that on the night of October 15, 2010, he was drunk, approached Pineda, and asked him for a cigarette. Pineda politely told Moore he did not speak English, and Moore's efforts to strike up a conversation with Pineda were unsuccessful. Moore then thought to himself, " 'Fuck this dude. He speaks English.' " Moore ran up to Pineda, who was talking on his cellular telephone, and grabbed the phone. It broke. Pineda ran, screaming in English, " 'Call the police. Call the police.' " Moore screamed after him, " 'You speak English now, don't you, you mother f-er.' " Moore threw the phone at Pineda.

Moore denied demanding money from Pineda, reaching for Pineda's pocket, grabbing his sweater, punching him, or pushing him to the ground. He never intended to rob Pineda. His only mention of money was to inform Pineda he did not have money to pay for cigarettes.

II. Procedure.

Trial was by jury. Moore was convicted of attempted second degree robbery (Pen. Code, §§ 664, 211)*fn3 and misdemeanor vandalism (§ 594 subd. (a)). The trial court suspended imposition of sentence and placed Moore on probation for a term of three years, on condition he serve a year in jail. It imposed a restitution fine, a suspended probation restitution fine, a court security fee, a crime prevention fine, and a criminal conviction assessment, and ordered Moore to pay victim restitution. Moore appeals.

DISCUSSION

I. The evidence was sufficient to sustain the attempted robbery conviction.

Moore contends the evidence was insufficient to prove he attempted to rob Pineda. We disagree.

When determining whether the evidence was sufficient to sustain a criminal conviction, "we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence--that is, evidence that is reasonable, credible and of solid value--from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]" (People v. Snow (2003) 30 Cal.4th 43, 66; People v. Carrington (2009) 47 Cal.4th 145, 186-187; People v. Halvorsen (2007) 42 Cal.4th 379, 419.) We presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. (People v. Medina (2009) 46 Cal.4th 913, 919.) Reversal is not warranted unless it appears " 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' [Citation.]" (People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Zamudio (2008) 43 Cal.4th 327, 357.)

Robbery is 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, with the specific intent to permanently deprive the person of the property. (ยง 211; People v. Burney (2009) 47 Cal.4th 203, 234; People v. Gomez (2008) 43 Cal.4th 249, 254; People v. Young (2005) 34 Cal.4th 1149, 1176-1177.) "[T]o be convicted of attempted robbery, the perpetrator must harbor a specific intent to commit robbery and commit a direct but ineffectual act toward the commission of the crime." (People v. Lindberg (2008) 45 Cal.4th 1, 27; People v. Medina (2007) 41 Cal.4th 685, 694.) Neither the commission of an element of robbery, nor the completion of a theft or assault, is required. (People v. Lindberg, supra, at p. 28; People v. Medina, supra, at p. 694; People v. Superior Court (Decker) (2007) 41 Cal.4th 1, 8.) "[T]he intent required for robbery . . . is seldom established with ...


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