People v. Hanrahan

THE PEOPLE, Plaintiff and Respondent, v. DAVID EUGENE HANRAHAN, Defendant and Appellant.

G056520

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE

January 29, 2020

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. 15NF2170)

OPINION

Appeal from a judgment of the Superior Court of Orange County, Gary S. Paer, Judge. Affirmed.

Nancy Susan Brandt, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Andrew Mestman and Arlene A. Sevidal, Deputy Attorneys General, for Plaintiff and Respondent.

* * * A jury convicted David Eugene Hanrahan of attempted second degree robbery (Pen. Code, §§ 211; 212.5, subd. (c); 664, subd. (a); all further statutory references are to this code). The trial court suspended imposition of sentence and instead placed Hanrahan on three years' formal probation, with the condition that he serve 180 days in jail. Although the court instructed the jury on attempted petty theft as a lesser included offense of robbery, Hanrahan contends an instruction on attempted "grand theft of the person" was also required. He argues he received constitutionally ineffective assistance of counsel when his attorney failed to make that request or to craft a pinpoint instruction regarding force. Hanrahan further asserts the prosecutor committed misconduct in closing argument. As we explain, we find no instructional error and, in any event, any conceivable error was harmless under the facts here. Nor was there prosecutorial misconduct. We therefore affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In August 2015, 73-year-old Elaine B. and her daughter, Gretchen B., were putting bags of groceries in the trunk of their car in an Anaheim parking lot. Gretchen told her mother to move her purse from the grocery cart and keep it close to her. Elaine testified she had the purse in the trunk while she was loading the groceries, but when she noticed someone had "got[ten] out of a car and came over," she moved the purse to her shoulder. At that point, she was "just kind of adjusting" the loaded groceries. She wore the two straps of the purse over her shoulder, with the purse itself tucked underneath her arm.

Gretchen testified she noticed a car pass "too close," which gave her a "weird" feeling, as she and her mother were putting away the groceries. As Gretchen returned the cart to its corral, about 20 feet away, she saw the same car nearby and heard her mother yell, "That's my purse." She also heard her mother cry out to Hanrahan, whom Gretchen later identified in court, not to "take [it], not my purse."

Elaine testified the man "came running up to me and grabbed ahold of my purse and tried to yank it off my arm." When he pulled on the purse, she responded, "That's my purse. You can't have it." He would have succeeded in taking it, but Elaine "grabbed it and turned like this to try to keep him from getting it," explaining in court that she "turned to the left and pulled this way," hunching her body down and away from Hanrahan.

At the start of the confrontation, Gretchen rushed toward the car, yelling, "Hey, that's my mom." Gretchen testified that Elaine and Hanrahan both had their hands on the purse at the same time, and she described them as "fighting for it." Gretchen described it as a "tug of war" in which Hanrahan moved "like two steps back," then Elaine pulled the other way. Elaine "was tugging . . . . He moved back. She moved towards him. And then she moved back, and he moved in." Gretchen testified her mother was shocked and appeared "shookin'" up.

Elaine described the incident as a "scuffle" that was over in "a jiffy. A minute or so." People in nearby cars had begun honking their horns. Hanrahan relinquished his grip, and Elaine saw him jump into his car; she said he "left in a big hurry." Hanrahan drove away erratically, ignoring stop signs and failing to signal. Both Elaine and another patron managed to recall portions of Hanrahan's vehicle license plate. He was later apprehended by police.

Hanrahan testified. He claimed that as he drove through the parking lot, he saw an older lady, who reminded him of his aunt, loading groceries in her car. Thinking she needed assistance, Hanrahan exited his car. He thought he said, "Let me help you with this," or "Here's your bag," as he picked up one of the bags in the shopping cart. He said the bag was not on her shoulder. The woman screamed and took the bag. Hanrahan testified he did not try to take it back from her. He then heard and saw another woman yelling and running towards him while making a growling noise. Hanrahan retreated intohis car and departed because he was scared. He claimed the incident was a misunderstanding and that he was not trying to hurt anyone.

DISCUSSION

1. Instructional Claim

Hanrahan contends that in addition to attempted petty theft, on which the trial court instructed the jury, the court should also have given an instruction on attempted grand theft "of the person" as a lesser included offense of attempted robbery. Hanrahan's argument involves the interplay of two statutory enactments regarding theft—the original Penal Code provisions passed by the Legislature and recent revisions enacted by the electorate in Proposition 47. Before addressing Hanrahan's arguments, we must review both statutory schemes and determine how the latter altered the former.

A. Grand Theft and Petty Theft

The Penal Code has long divided theft into two degrees, "the first of which is termed grand theft; the second, petty theft." (§ 486.) Grand theft is a "wobbler" offense, punishable as either a felony or a misdemeanor depending on the circumstances. (§ 489; see People v. Morales (2016) 63 Cal.4th 399, 404 (Morales).) Petty theft is punishable by a "fine not exceeding one thousand dollars ($1,000), or by imprisonment in the county jail not exceeding six months, or both. (§ 490.)

Section 487 identifies conduct constituting grand theft. First, subdivision (a) makes it grand theft to steal money, labor, or property with a value exceeding $950. Subdivision (b) makes it grand theft to steal various agricultural and aquacultural products with a value exceeding $250. Subdivision (c), on which Hanrahan bases his claim, makes it grand theft to steal property "from the person of another,"regardless of the property's value.¹ Finally, under subdivision (d), it is grand theft to steal an automobile or firearm of any value. "In sum, section 487 makes it grand theft to steal more than $950 worth of anything; more than $250 worth of the crops or critters listed in subdivision (b); anything at all from the victim's person; or any cars or guns." (People v. Romanowski (2017) 2 Cal.5th 903, 907 (Romanowski).)

"Theft in other cases is petty theft." (§ 488.) In other words, "petty theft [is] defined in the negative, by what it [is] not." (People v. Van Orden (2017) 9 Cal.App.5th 1277, 1287-1288 (Van Orden).)

B. Proposition 47

In 2014, California voters altered the above statutory framework by passing Proposition 47, the Safe Neighborhoods and Schools Act, which downgraded several nonviolent drug- and theft-related crimes from felonies to misdemeanors. (Harris v. Superior Court (2016) 1 Cal.5th 984, 988; Morales, supra, 63 Cal.4th at p. 404.) The downgrade is inoperative only when precluded by the defendant's criminal history.² The proposition's primary purpose included "reduc[ing] the number of prisoners servingsentences for nonviolent crimes, both to save money and to shift prison spending toward more serious offenses." (Romanowski, supra, 2 Cal.5th at p. 907.)

Proposition 47's statutory changes include the addition of section 490.2, which provides: "Notwithstanding Section 487 or any other provision of law defining grand theft, obtaining any property by theft where the value of the . . . personal property taken does not exceed nine hundred fifty dollars ($950) shall be considered petty theft and shall be punished as a misdemeanor." (§ 490.2, subd. (a), italics added.) This new language "broadly reduced punishment for 'obtaining any property by theft' where the value of the stolen [item] is less than $950." (Romanowski, supra, 2 Cal.5th at p. 906.)

Section 490.2 thus "redefined" (Van Orden, supra, 9 Cal.App.5th at p. 1287) and "expanded the offense of petty theft" (id. at p. 1288). It effectively "abolished the former theft regime that utilized property categories (e.g., cars and avocados) and replaced it with an entirely value-based regime—the $950 threshold. . . . [It] eliminate[d] any previous categorization of thefts, such that all theft offenses—regardless of whether the statute setting out the theft explicitly identified it as grand or petty—must be considered petty if the offense involves property worth $950 or less." (Id. at pp. 1291-1292.)

Thus, although Proposition 47 did not expressly amend section 487, it implicitly rewrote it. Before Proposition 47, "[s]ection 487 . . . made it 'grand theft' to steal automobiles, as well [as] to steal 'from the person of another.' (§ 487, subds. (c)-(d).) These forms of theft previously required no evidence of the value of the stolen property. Now they do." (Romanowski, supra, 2 Cal.5th at p. 911.) "[A]fter the passage of Proposition 47, 'obtaining any property by theft' constitutes petty theft if the stolen property is worth less than $950. Of course, section 487, subdivision (a), already made it grand theft to steal property worth over $950. But various other theft provisions carved out separate categories of grand theft based on the type of property stolen, with...