(Super. Ct. No. 10HF1992) Appeal from a judgment of the Superior Court of Orange County, Daniel Barrett McNerney, Judge.
The opinion of the court was delivered by: Fybel, Acting P. J.
CERTIFIED FOR PUBLICATION
A felony information charged Ryan Luke Powell with one count of second degree robbery in violation of Penal Code sections 211 and 212.5, subdivision (c) (further code references are to the Penal Code). Over Powell's objection, the trial court instructed the jury on theft by false pretense as a lesser included offense of the charged crime of second degree robbery. The jury acquitted Powell of robbery but convicted him of theft by false pretense, and the trial court sentenced him to a term of three years in jail.
We hold that theft by false pretense is not a lesser included offense of robbery under the elements test or under the accusatory pleading test as applied to the felony information in this case. The trial court therefore erred by instructing the jury on theft by false pretense and allowing the jury to return a verdict on that offense. The error was prejudicial because it allowed the jury to convict Powell of an offense of which he had no reasonable notice. As the jury acquitted Powell of the only offense for which he was charged, we reverse the judgment without addressing Powell's other contentions.
In November 2010, the sister of Juanita Ulloa was trying to enter into the United States from Mexico. Ulloa had received several telephone calls telling her "they" had her sister. Ulloa was told to bring $5,000 in cash to a McDonald's restaurant in Lake Forest. Ulloa went to the McDonald's on November 10, 2010. As instructed, she brought with her $5,000 cash in $100 bills contained in an envelope she kept in the front pocket of her pants.
While waiting in the McDonald's, Ulloa received a telephone call informing her that someone would arrive soon with her sister. About an hour after Ulloa arrived at the McDonald's, Powell appeared, sat with Ulloa, and asked her, "did you bring the money for your sister?" Ulloa replied, "yes, I brought it, but I want to see my sister." Powell asked for the money several times, and each time Ulloa told him she wanted to see her sister or talk to her on the phone. Powell made a telephone call to the man, who had told Ulloa to go to the McDonald's, and spoke to him in English. Powell then handed the phone to Ulloa. Speaking in Spanish, the man told Ulloa he would have her sister there shortly, but Ulloa first had to give the money to Powell.
At this point in the story, the prosecution evidence and the defense evidence diverge.
The Prosecution's Case: Ulloa's Testimony
Ulloa testified that Powell told her, "give me the money and so that you will trust me, I will give you my passport." She refused. Powell told her they should continue the transaction elsewhere. Powell and Ulloa left the McDonald's and walked to her van, which was parked close by. As Ulloa got into the van, Powell pushed her inside, got inside himself, and closed the door behind them. As Powell pushed Ulloa, he grabbed the envelope of money from her pants pocket.
Ulloa told Powell, "I want my money back or I want to see my sister." She tried to take the money back but was only able to grab a bag containing Powell's car key and driver's license. After telling Ulloa not to move and not to talk with anyone, Powell left and went to his own van. Scared, Ulloa locked the van doors and stayed inside. Powell sat in his van and talked on the phone for five to 10 minutes. He then got out, walked into a gas station, came out, and walked away. When Ulloa noticed that Powell did not return to his van, Ulloa walked to Powell's van and peeked through the window to see if her sister was inside. Ulloa did not see her sister and called the police.
The Defense Case: Powell's Testimony
Powell testified that on November 10, 2010, he drove to a McDonald's restaurant in the City of Lake Forest to meet Ulloa. She was to give him $5,000, which he was going to take to Mexico and give to Eduardo, who was ...