Filed 6/26/13 P. v. Jones CA2/1 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

SECOND APPELLATE DISTRICT 

DIVISION ONE 

THE PEOPLE, 

 Plaintiff and Respondent, 

 v. 

MELVIN ANDREW JONES, 

 Defendant and Appellant. 

 B241310 

 (Los Angeles County 

 Super. Ct. No. NA089283) 

 APPEAL from a judgment of the Superior Court of Los Angeles County. Charles 

D. Sheldon, Judge. Reversed with directions. 

 Benjamin Owens, under appointment by the Court of Appeal, for Defendant and 

Appellant. 

 Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Lance E. Winters, Senior Assistant Attorney General, Margaret E. Maxwell, 

Supervising Deputy Attorney General, and Tasha G. Timbadia, Deputy Attorney 

General, for Plaintiff and Respondent. 

_________________________________ 
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 Defendant Melvin Andrew Jones appeals from the judgment entered following a 

jury trial in which he was convicted of second degree robbery. Defendant contends the 

trial court erred by failing to instruct sua sponte on attempted robbery as a lesser included 

offense. We agree. 

BACKGROUND 

 Robert Ayres testified that as he was driving in Long Beach on the morning of 

June 18, 2011, he heard several cars’ horns honking. He looked around and saw 

defendant dragging an older woman across an intersection by pulling on the body of a 

purse that the woman was wearing on her shoulder. The woman shouted for help. She 

repeatedly fell, but maintained a grip on the purse. When defendant and the woman 

reached the sidewalk on the far side of the intersection, the woman was on the ground 

and defendant kicked her head and shoulders. Ayres parked his truck and shoved 

defendant. Ayres testified that defendant “broke loose with the purse” and ran with it for 

five or ten feet before tripping, falling, and dropping the purse. Defendant got up and 

“took off” without the purse. 

 Ayres testified he got back in his truck and followed defendant. A man in a city 

truck was also following defendant while speaking on a mobile phone. Ayres again got 

out of his truck and approached defendant. Ayres tripped defendant and held him down. 

Defendant repeatedly tried to get up. A man on a motorcycle arrived and said he would 

hold defendant. Ayres returned to the intersection where he had seen the struggle for the 

purse and spoke to police when they arrived. Ayres admitted he had been convicted in 

2005 of two felonies: unlawful taking or driving of a vehicle and resisting arrest by force 

or violence. 

 David Roberts, who worked for the City of Long Beach and was driving a city 

vehicle, testified he heard several cars’ horns honking, then saw defendant and a woman 

struggling over a purse. Defendant was pulling on the purse and the woman was 

attempting to hold onto it. Roberts turned at the light, pulled over, and phoned 911. 

When he looked back at defendant, he saw “people intervening,” “trying to assist.” They 
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were not hitting defendant. The next thing Roberts saw was defendant walking 

northbound on Long Beach Boulevard. Roberts did not see the purse and did not know if 

defendant had it with him.1 Roberts also did not see anyone drop the purse or take it 

away from defendant. Roberts followed defendant in his truck while continuing to speak 

to a dispatcher. Another truck drove up behind Roberts and a man got out and beat 

defendant, knocking him to the ground and punching him at least a dozen times. A man 

wearing a motorcycle helmet arrived and also punched defendant. Both of those men left 

before the police arrived. Defendant got up and continued walking until the police 

detained him. 

 The police summoned paramedics, who took defendant to a hospital. At the 

hospital, defendant told the police that another man walking ahead of him in the 

intersection committed a robbery, but two witnesses stopped defendant and beat him up. 

 At trial defendant testified he was crossing the intersection alongside a man who 

attempted to take the victim’s purse. Defendant wanted to intervene, but the man was big 

and had given him a particular look defendant demonstrated in the courtroom. The 

victim did not let go of her purse, and the man never succeeded in getting it away from 

her. Defendant continued to walk, looking around for police officers to flag down. A 

white van pulled up alongside defendant and two men—not Ayres or Roberts—got out. 

They used racial slurs and accused him of being involved in attempting to take the 

woman’s purse. They hit the back of defendant’s head, knocking him to the ground, then 

kicked him, dragged him, spat on him, and took his shoes. After the men left, the police 

arrived. Defendant admitted he had a prior felony conviction for assaulting a police 

officer. 

 Long Beach Police Officer Gabriel Betanzos, who interviewed Ayres at the scene, 

testified Ayres said that after he saw defendant dragging the woman across the 

intersection, he saw a man punch defendant in the face. Defendant then broke free and 

 1 The Attorney General incorrectly states in her brief that Roberts testified he 
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started running with the purse. The man who had hit defendant chased him and was able 

to retrieve the purse. Ayres said he followed defendant in his vehicle, then approached 

him on foot. Defendant punched Ayres in the face twice and Ayres punched defendant 

back. At some point, Ayres tripped defendant. Ayres left after two other men arrived 

and detained defendant. 

 The jury convicted defendant of second degree robbery. The court found true 

allegations under the “Three Strikes” law and Penal Code section 667, subdivision (a)(1) 

that defendant had a prior serious felony conviction. (Undesignated statutory references 

are to the Penal Code.) The court sentenced defendant to prison for 11 years, consisting 

of a second strike term of 6 years and a 5-year enhancement under section 667, 

subdivision (a)(1). 

DISCUSSION 

Defendant contends the trial court erred by failing to instruct sua sponte on 

attempted robbery as a lesser included offense. We agree. 

 A trial court must instruct sua sponte on a lesser included offense “when the 

evidence raises a question as to whether all the elements of the charged offense were 

present, but not when there is no evidence that the offense committed was less than that 

charged.” (People v. Cruz (2008) 44 Cal.4th 636, 664.) 

 Robbery is defined as the taking of personal property of some value, however 

slight, from a person or the person’s immediate presence by means of force or fear, with 

the intent to permanently deprive the person of the property. (§ 211; People v. Marshall

(1997) 15 Cal.4th 1, 34.) “The taking element of robbery itself has two necessary 

elements, gaining possession of the victim’s property and asporting or carrying away the 

loot.” (People v. Cooper (1991) 53 Cal.3d 1158, 1165.) Gaining possession of the 

victim’s property occurs when the defendant secures dominion over it. (People v. 

Alvarado (1999) 76 Cal.App.4th 156, 161, disapproved on another point in People v. 

 

“saw . . . appellant subsequently walking away with the purse.” 
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Lopez (2003) 31 Cal.4th 1051, 1063, fn. 2.) Evidence of slight movement is sufficient to 

establish the asportation element. (Cooper, at p. 1165.) 

 The evidence here raised a question about whether defendant ever obtained 

dominion over the victim’s purse. The victim did not testify nor were any statements by 

her admitted. The purse was recovered but no evidence was introduced to show where it 

was in relation to the victim. Ayres and Roberts both testified that the victim maintained 

her hold on her purse as defendant attempted to take it. Although Ayres testified and told 

the police that he saw defendant free the purse from the victim’s grasp, Roberts did not 

see the purse in defendant’s possession as defendant walked away after bystanders 

intervened. Defendant testified that the thief (whoever he was) never succeeded in 

removing the purse from the victim. Thus, although Ayres’s testimony was sufficient to 

support the conviction, the testimony of Roberts and defendant raised a question about 

the taking element of robbery. The trial court should have instructed sua sponte on 

attempted robbery as a lesser included offense. 

 We assess the prejudicial effect of the trial court’s error in failing to instruct upon 

attempted robbery pursuant to People v. Watson (1956) 46 Cal.2d 818, 836. (People v. 

Moye (2009) 47 Cal.4th 537, 541.) We conclude there is a reasonable probability a 

properly instructed jury would have convicted defendant of attempted robbery, rather 

than robbery. The only evidence supporting a finding that defendant obtained dominion 

over the victim’s purse was Ayres’s testimony and a portion of his statement to Officer 

Betzanos. Notably, Ayres’s testimony and statement to Betzanos differed regarding how 

defendant managed to wrest the purse from the victim and how he lost possession of it. 

Roberts’s testimony indicated that Ayres savagely beat defendant, which supported an 

inference that Ayres was hostile toward defendant and that he may have exaggerated the 

extent of defendant’s conduct, possibly to deflect attention from his own violent acts. 

Given Ayres’s prior felony convictions, the significant discrepancies between Ayres’s 

testimony and his statement at the scene to Betzanos, and evidence of Ayres’s violent 

behavior toward defendant, it is reasonably probable that a jury instructed upon 
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attempted robbery as an alternative to either acquittal or conviction of robbery would 

have concluded that the prosecution had not established beyond a reasonable doubt that 

defendant obtained dominion over the victim’s purse and convicted defendant of 

attempted robbery. 

 We note that the prosecutor may have exacerbated the prejudice flowing from the 

failure to instruct upon attempted robbery by arguing to the jury, without objection, “So 

when we’re talking about this robbery, I don’t think the argument in this case, given the 

testimony, is whether or not a robbery actually occurred here because every single 

witness that testified agrees that there was a robbery. And even the defendant testified 

that there was a robbery.” Defendant did not testify that there was a robbery. He 

testified that the robber did not get the purse away from the victim, which meant there 

was only an attempted robbery, not a completed one. Defense counsel neither corrected 

the prosecutor’s misstatement nor argued that there was insufficient proof of any of the 

elements of the crime, other than defendant’s identity as the robber. 

 Because the evidence is sufficient to support an attempted robbery conviction, 

upon remand, the prosecutor’s office will have the option of either retrying the robbery 

charge or accepting a reduction of the conviction to attempted robbery. 

 Given our disposition, we need not address defendant’s contention, which the 

Attorney General concedes, that the trial court erred by imposing restitution and parole 

revocation fines greater than the statutory minimum at the time of the crime, after stating 

an intent to impose the minimum fines. The trial court can reconsider the amount of 

these fines upon remand for resentencing. 
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DISPOSITION 

 The judgment is reversed and the matter is remanded for retrial. If the prosecution 

does not elect to retry the robbery charge, the trial court shall reduce defendant’s 

conviction to the lesser included offense of attempted robbery (Pen. Code, §§ 664, 211) 

and resentence him. 

 NOT TO BE PUBLISHED. 

 MALLANO, P. J. 

We concur: 

 ROTHSCHILD, J. 

 CHANEY, J.