Criminal case

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(((People v. Williams Cal.App. 2 Dist.,1992.
Court of Appeal, Second District, Division 5, California. The PEOPLE, Plaintiff and Respondent,
v.

Charles Edward WILLIAMS, Defendant and Appellant. No. B058383.
Sept. 30, 1992.
Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for
publication with the exception of parts II, III, and IV.
As Modified on Denial of Rehearing Oct. 22, 1992. Review Denied Dec. 30, 1992.
*1467 **243 Robert F. Howell, San Diego, under appointment by the Court of Appeal, for defendant and appellant.
Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Carol Wendelin Pollack, Acting, r. Asst. Atty. Gen., Linda C. Johnson, Supervising Deputy Atty. Gen., and Jaime L. Fuster,
Deputy Atty. Gen., for plaintiff and respondent.
**244 GRIGNON, Associate Justice.
Defendant and appellant Charles Edward Williams appeals from a judgment after a jury trial in which he was convicted of three counts of second degree robbery and two counts of grand theft person with findings that two of the victims were 65 years of age or older, that defendant intentionally inflicted great bodily injury on one of the victims, and that he had suffered three prior serious felony convictions. On appeal, he contends: […] (3) there is insufficient evidence to support *1468 a conviction for one of the counts of grand theft person; In the published portion of the opinion, we reverse the conviction of one count of grand theft person …..
PROCEDURAL BACKGROUND
Defendant was convicted […] in count 3 of grand theft person of Francis Cirrencione on April 30, 1990, in violation of Penal Code section 487, subdivision 2; ….
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?FACTS
April 30, 1990
At approximately 5:00 p.m. on April 30, 1990, 72-year-old Frances Cirrencione and 68-year-old Eliette Strasbourg had just completed their shopping *1469 at a Von’s market on Third Street. They returned with their groceries to Cirrencione’s car. Cirrencione put her groceries on the backseat of the car, threw her purse onto the front passenger seat, sat down in the driver’s seat, and opened the passenger door. Defendant approached her, pushed her back in her seat, and grabbed her purse from the passenger seat. Cirrencione got out of the car and screamed for help.
Defendant went around the back of the car to the passenger side where Strasbourg was standing. Strasbourg was holding a purse. Strasbourg saw defendant approach and she began to run. Defendant ran after her, grabbed her purse, and **245 pushed her. She fell and broke her kneecap.
Jane Raymond heard Cirrencione screaming and saw defendant steal Strasbourg’s purse. Raymond saw defendant leave in a blue gray New Yorker or Lincoln automobile with license No. 1MIS375.
At trial, Cirrencione and Strasbourg identified defendant as the person who stole their purses. Raymond testified that defendant resembled the thief somewhat, but Raymond was not 100 percent certain. Cirrencione also identified defendant at a physical lineup on September 5, 1990. Strasbourg identified someone other than defendant at a photographic lineup on August 10, 1990, but identified defendant at a physical lineup on September 5, 1990. Raymond identified defendant at a photographic lineup on June 11, 1990, and at a physical lineup on June 21, 1990.
Cirrencione did not testify at defendant’s preliminary hearing and was not shown a photographic display. At the physical lineup, she indicated she was 80 percent sure of her identification of defendant. Strasbourg testified at defendant’s preliminary hearing on October 1, 1990. She was not asked to identify defendant, although she did describe her attacker. At the photographic lineup, Raymond indicated defendant looked “a little like the person.” At the preliminary hearing, she indicated defendant looked like the purse snatcher, but she was not 100 percent certain.
[…]

*1471 DISCUSSION
I. Sufficiency of the Evidence Grand Theft Person-Cirrencione
?Defendant contends the evidence is insufficient to support his conviction for grand theft person of Cirrencione in count 3. He argues that Cirrencione’s purse was not taken from her person but rather from the car seat beside her. In reviewing the sufficiency of the evidence on appeal, the appellate court “must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence-that is, evidence which is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578, 162 Cal.Rptr. 431, 606 P.2d 738.)
Grand theft is committed when property is taken from the person of another. (Pen.Code, § 487, subd. 2.) “[T]he crime of theft from the person contemplates that ‘… the property shall at the time be in some way actually upon or attached to the person, or carried or held in actual physical possession … or … held or carried in the hands, or by other means, upon the person; … [the crime] was not intended to include property removed from the person and laid aside, however immediately it may be retained in the presence or constructive control or possession of the owner while so laid away from his person and out of his hands.’ ” (In re George B. (1991) 228 Cal.App.3d 1088, 1091-1092, 279 Cal.Rptr. 388, citing People v. McElroy (1897) 116 Cal. 583, 586, 48 P. 718, italics in original.) In McElroy, the Supreme Court held that the theft of money from the pants pocket of a victim who had removed his pants and was sleeping with his head resting on them as a pillow did not constitute grand theft person; the pants had been removed from the victim’s person and laid aside. In George B., the Court of Appeal held that the theft of a bag of groceries from a shopping cart as the victim was pushing the cart in the parking lot of a market constituted grand theft person; the victim carried the bag by means of the shopping cart; the contents of the shopping cart were attached to the victim through the medium of the shopping cart, which the victim was both in physical contact with and in control of.
Compare the elements of robbery set forth in Penal Code section 211, which require a felonious taking from the victim’s person or immediate presence.
The evidence is undisputed that at the time defendant took Cirrencione’s purse from her, the purse was lying on the car seat. The purse was not upon Cirrencione’s person, attached to her in any way, or carried by her. Cirrencione had laid the purse aside, although it remained in her immediate *1472 presence and was under her actual control. Under the authority of McElroy, we are compelled to conclude that the evidence is insufficient as a matter of law to sustain the conviction for grand theft person in count 3. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 20 Cal.Rptr. 321, 369 P.2d 937.)
Respondent cites a number of cases from other jurisdictions with similar statutes which have concluded under similar circumstances that the crime constitutes grand theft person. Although these cases are persuasive and we might arrive at a different**247 conclusion if we were working on a clean slate, we are compelled by stare decisis to conclude that property taken from
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the actual and immediate control of the victim is not taken from “the person” of the victim within the meaning of Penal Code section 487, subdivision 2, unless the property is physically attached to the victim in some manner. (See, e.g., CALJIC No. 14.23, “the property must be either on the body or in the clothing being worn or in a receptacle being carried by the person from whom it is taken.”) Accordingly, the conviction for grand theft person in count 3 must be reversed.
See, e.g., State v. Tramble (1985) 144 Ariz. 48, 695 P.2d 737, 740-741; State v. Blow (1975) 132 N.J.Super. 487, 334 A.2d 341, 342-343; State v. Jones (Mo.App.1973) 499 S.W.2d 236, 237-240; State v. Kobylasz (1951) 242 Iowa 1161, 47 N.W.2d 167, 170; see also People v. Evans (1980) 44 Colo.App. 288, 612 P.2d 1153, 1156; Prigmore v. State (Tenn.Crim.App.1977)565S.W.2d897,898-899; compareAnnotation(1976)74A.L.R. 3d 271 and cases cited therein noting a split of authority on this issue.
Although the grand theft person conviction could be reduced to a misdemeanor petty theft conviction, respondent has not raised this issue on appeal.
[…]
*1475 DISPOSITION
The judgment of conviction of grand theft person in count 3 is reversed. The sentence is modified by striking the eight months imposed on count 3, reducing the total sentence to twenty- nine years and eight months. In all other respects, the judgment is affirmed.
BOREN, J., concurs.TURNER, Presiding Justice, concurring in part.
I concur in the majority opinion except for that portion of the disposition which dismisses the felonious grand theft conviction under count 3. Although defendant may not be convicted of grand theft person, the act of taking the purse was a petty theft, a lesser included offense of grand theft person. **249(People v. McElroy (1897) 116 Cal. 583, 584, 48 P. 718.) Therefore, I would reduce the offense to petty theft pursuant to Penal Code section 1260 and remand for resentencing on the misdemeanor count.
Cal.App. 2 Dist.,1992.
People v. Williams