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Filed 8/17/15 P. v. Neff CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

LaDONTE ABRION NEFF,

Defendant and Appellant.

 A140121

 (Contra Costa County

 Super. Ct. No. 51300102)

Defendant LaDonte Abrion Neff was sentenced to state prison for the aggravated

term of five years after a jury found him guilty as charged of a single count of second 

degree robbery. On this timely appeal, he contends the trial court erred by refusing to 

instruct on the lesser-included offense of assault, and by permitting the victim of a prior 

robbery to testify with the aid of a competent interpreter. We reject both contentions, and 

affirm. 

BACKGROUND

The circumstances of the offense are not complicated and not really in dispute. 

Viewing the evidence most favorably to the prosecution (People v. Manibusan (2013) 58 

Cal.4th 40, 87), the trial record shows the following:

In November 2013, Leonardo Macedo was working with his contractor father at a 

house in Antioch. Macedo was returning to the house after an errand when he was 

approached by two Black males—one of whom was defendant—and two Black females. 

Without warning, defendant struck Macedo in the face, knocking him to the ground. 

While Macedo was on the ground, defendant was kicking him and demanding, “What’s 
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in your pocket?” Macedo made no response. Defendant continued kicking Macedo. 

Eventually, defendant reached into Macedo’s pants pocket and removed a cell phone. 

The two females disappeared when the attack began. The other male pulled 

defendant off Macedo and led him away. 

A passing motorist observed the entire attack. He corroborated most of Macedo’s 

version. Once defendant and the other male left the scene, the motorist notified police 

and helped to apprehend defendant. Defendant was detained immediately after disposing 

of a cell phone, which was retrieved. Macedo was brought to the scene, and identified 

both defendant as the attacker and the cell phone as the one taken from him. 

According to the apprehending officer, after being taken into custody defendant 

said he was “upset due to his friend being recently locked up and the recent death of his 

great-grandmother. [¶] He said he was . . . consuming alcohol and he saw a subject, a 

Hispanic male. And he wanted to take out his anger on that person, so he approached the 

subject, punched him. The subject fell. [¶] He punched the subject several more times. 

And then subsequently took a phone from the subject’s pants pocket.”

Geronimo Martin testified about his being the victim of an armed robbery in 

March 2011. Martin was on an Oakland street when two men approached. One of the 

two pointed a gun at Martin while the other took money from Martin’s pants pocket. The 

two men were soon detained, and Martin was brought to the detention scene. He 

identified defendant as the one who held the gun, and defendant’s cousin, DeVonte Neff, 

as the one who took his money. In the apartment where defendant was apprehended, 

police found a gun, which Martin identified as the one pointed at him by defendant. 

Defendant testified at the trial, admitting to an alcohol-induced, unprovoked attack 

on Macedo. The only significant divergence from what he told police was about the 

phone: “When I . . . punched him and he hit the ground, I seen the phone come out. But, 

like, when I first hit him, I didn’t have no intention of taking his phone. But in the heat 

of the moment, I seen it there, I picked it up after everything was done. . . . I wasn’t 

planning on robbing him. It was just when I seen it on the ground in the heat of the 
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moment, I picked it up.” Defendant did not recall asking Macedo, “What’s in your 

pockets?” 

Defendant further testified that he was not involved in robbing Martin, but he 

admitted to doing so because “my attorneys told me the best thing to do was . . . get a 

plea deal. So that’s what I did. The 2011 robbery of Martin was alleged as a prior 

“strike” conviction. The jury found the allegation true, but the finding was stricken at the 

time of sentencing.

REVIEW

There Was No Instructional Error

“Robbery is the felonious taking of personal property in the possession of another, 

from his person or immediate presence, and against his will, accomplished by means of

force or fear.” (Pen. Code, § 211.) “An assault is an unlawful attempt, coupled with a 

present ability, to commit a violent injury on the person of another.” (Pen. Code, § 240.) 

Defendant first contends that the trial court erred in refusing his request that the jury be 

instructed on assault as a lesser included offense of the robbery of Macedo. Defendant is 

mistaken.

“A court must instruct sua sponte on general principles of law that are closely and 

openly connected with the facts presented at trial. [Citation.] This sua sponte obligation 

extends to lesser included offenses if the evidence ‘raises a question as to whether all of 

the elements of the charged offense are present and there is evidence that would justify a 

conviction of such a lesser offense. [Citations.]’ [Citations.] . . . ‘A criminal defendant 

is entitled to an instruction on a lesser included offense only if [citation] “there is 

evidence which, if accepted by the trier of fact, would absolve [the] defendant from guilt 

of the greater offense” [citation] but not the lesser. [Citations.]’ [Citation.]

“The requirement that courts give sua sponte instructions on lesser included 

offenses ‘is based in the defendant’s constitutional right to have the jury determine every 

material issue presented by the evidence. [Citations.]’ [Citation.] This sua sponte duty 

to instruct exists even if the defendant expressly objects to the instruction. [Citation.] . . .

‘ “[A] defendant has no legitimate interest in compelling the jury to adopt an all or 
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nothing approach to the issue of guilt. Our courts are not gambling halls but forums for 

the discovery of truth.” [Citation.]’ [Citations.] [¶] . . . [¶]

“To determine whether a lesser offense is necessarily included in the charged 

offense, one of two tests (called the ‘elements’ test and the ‘accusatory pleading’ test) 

must be met. The elements test is satisfied when ‘ “all the legal ingredients of the corpus 

delicti of the lesser offense [are] included in the elements of the greater offense.” 

[Citation.]’ [Citations.] Stated differently, if a crime cannot be committed without also 

necessarily committing a lesser offense, the latter is a lesser included offense within the 

former. [Citations.]

“Under the accusatory pleading test, a lesser offense is included within the greater 

charged offense ‘ “if the charging allegations of the accusatory pleading include language 

describing the offense in such a way that if committed as specified the lesser offense is 

necessarily committed.” [Citation.]’ [Citations.]” (People v. Lopez (1998) 19 Cal.4th 

282, 287–289.)

More than 30 years ago, our Supreme Court held that “because a defendant can 

commit robbery without attempting to inflict violent injury, and without the present 

ability to do so, robbery does not include assault as a lesser offense.” (People v. Wolcott

(1983) 34 Cal.3d 92, 100.) More recently, it stated: “Because a robbery can be 

committed strictly by means of fear, assault is not a lesser included offense of robbery 

under the elements test.” (People v. Parson (2008) 44 Cal.4th 332, 349 [citing Wolcott].) 

This, defendant concedes.

But no court has held that assault is a lesser-included offense of robbery under the 

accusatory pleading test. Our Supreme Court has gone no further than assuming that 

assault could be a lesser-included under the accusatory pleading test. (People v. Parson, 

supra, 44 Cal.4th 332, 350; People v. Bacigalupo (1991) 1 Cal.4th 103, 127.) This is 

where defendant makes his stand.

The information filed against defendant read: “The District Attorney of the 

County of Contra Costa hereby accuses LaDonte Abrion Neff, Defendant, of the crime of 

felony, a violation of Penal Code Section 211/212.5(c) (Second Degree Robbery), 
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committed as follows: [¶] On or about November 25, 2012, at Antioch, in Contra Costa 

County, the Defendant, LaDonte Abrion Neff, by means of force and fear, did unlawfully 

take personal property from the person, possession and immediate presence of Leonardo 

Macedo.” Based on this language, defendant reasons: “[T]his accusatory pleading 

charged appellant with robbery by ‘force and fear.’ By alleging that appellant used force, 

the information necessarily alleged all the elements because in the assault statute the 

terms force and violence mean the same thing. It has long been established that ‘ “[t]he 

term ‘violence’ as used [in section 240] is synonymous with ‘physical force’ and in 

relation to assaults the two terms are used interchangeably.” ’ [Citations.] So the 

allegations that appellant used force in the robbery also constituted the allegation that 

appellant used violence, which necessarily involves a successful attempt and present 

ability to use violence. That made assault a lesser included offense in the robbery alleged 

here.” 

This reasoning was rejected by the Third District in 1996:

“Courts have recognized that the ‘force’ required for robbery is not necessarily 

synonymous with a physical corporeal assault. [Citation.] An assault consists of an 

attempt coupled with the present ability to inflict an ‘injury unlawfully on another; this 

‘injury’ can be the least unwanted touching. [Citation.] When actual force is present in a 

robbery, at the very least it must be a quantum more than that which is needed merely to 

take the property from the person of the victim, and is a question of fact to be resolved by 

the jury taking into account the physical characteristics of the robber and the victim. 

[Citations.] The force need not be applied directly to the person of the victim. [Citation.] 

If ‘force’ for purposes of robbery meant no more than the direct (or indirect) application 

of physical might to the person of the victim, then we would agree that an assault is 

necessarily included any time a prosecutor alleges a robbery was committed by means of 

force. ‘Force,’ however, has a broader meaning.

“Generally, ‘the force by means of which robbery may be committed is either 

actual or constructive. The former includes all violence inflicted directly on the persons 

robbed; the latter encompasses all . . . means by which the person robbed is put in fear 
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sufficient to suspend the free exercise of . . . will or prevent resistance to the taking.’

[Citation.] This ‘constructive force’ means ‘force, not actual or direct, exerted upon the 

person robbed, by operating upon [a] fear of injury. . . .’ [Citation.] The Supreme Court 

has held that ‘force’ has no technical meaning which must be explained to jurors. 

[Citation.] Included within the common meaning of ‘force’ is ‘such threat or display of 

physical aggression toward a person as reasonably inspires fear of pain, bodily harm, or 

death.’ [Citation.]

“As we have noted, ‘force’ is not an element of robbery independent of ‘fear’; 

there is an equivalency between the two. ‘ “[T]he coercive effect of fear induced by 

threats . . . is in itself a form of force, so that either factor may normally be considered as 

attended by the other.” ’ [Citation.]

“Thus, in a case where the information pled robbery in the conjunctive and the 

defendant claimed there was insufficient evidence of both elements, we held that pointing 

a handgun at a victim and demanding money is direct evidence of force and is ‘inferably’

evidence of the victim’s fear. [Citation.] Notably absent from this statement of the 

evidence supporting the implied finding of force is any indication of an attempt to apply 

physical force rather than frighten, or any indication the handgun was loaded (and thus 

had the present ability to apply force when used as a gun).

“Since the element of force can be satisfied by evidence of fear, it is possible to 

commit a robbery by force without necessarily committing an assault. Consequently, 

under the ‘accusatory pleading’ test, assault is not necessarily included when the pleading 

alleges a robbery by force. As a result, the trial court had no duty to instruct sua sponte

on assault as a lesser-included offense of robbery . . . .” (People v. Wright (1996) 52 

Cal.App.4th 203, 210–211, fn. omitted.)

With commendable candor, defendant does not shy away from confronting 

Wright, and presents a well-written detailed, three-part argument on its logic. But he is 

unable to muster a single reported decision that has disagreed with Wright’s reasoning. 

And it appears sound to us.
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Even if we were inclined to dispute Wright, there is another impediment to 

reversal. “A trial court must instruct sua sponte on a lesser included offense ‘only if there 

is substantial evidence to support a jury’s determination that the defendant was in fact 

only guilty of the lesser offense.’ ” (People v. Bacigalupo, supra, 1 Cal.4th 103, 127; 

accord, People v. Moye (2009) 47 Cal.4th 537, 553; People v. Parson, supra, 44 Cal.4th 

332, 348–349; People v. Breverman (1998) 19 Cal.4th 142, 162.) It must be remembered 

that the charged offense of robbery is not only a crime of violence, it is also a crime of 

larceny. (People v. Gomez (2008) 43 Cal.4th 249, 264 [“Although classified in the Penal 

Code as a crime against the person, robbery is actually a crime against both the person 

and property”]; People v. Bonner (2000) 80 Cal.App.4th 759, 763 [“Robbery is both 

assaultive and larcenous and is a crime against property and persons”].) 

So, what is the likelihood that the jury would convict defendant of assault but not 

robbery? We think it next to inconceivable, because to convict defendant only of assault 

the jury would have had to disregard the unanimous evidence—including defendant’s 

trial testimony—that he did indeed take Macedo’s cell phone. The jury also rejected the 

idea that defendant’s consumption of alcohol prevented his forming the specific intent 

needed for robbery, in the language of CALCRIM No. 3426—“the specific intent to 

permanently deprive the owner of his property.” (See People v. Butler (1967) 65 Cal.2d 

569, 573 [“a specific intent to steal . . . is an essential element of robbery”].) The jury 

rejected the defense argument that “you must acquit the defendant if you find the decision 

to take the property came after the force or fear” because “he did not take that property as 

a part of the assault itself.” And the jury declined the options of convicting defendant of 

the lesser-included of attempted second degree robbery or petty theft. The jury thus 

refused to disassociate the attack from the loss of property, refused to view what 

happened to Macedo as just a physical attack or as merely the loss of property. There is 

no basis to believe that giving the physical attack a different label would have persuaded 

the jury to make that disassociation, looking only at the attack, and ignoring what 

defendant’s counsel point blank told the jury in closing argument: “Here’s a fact. 

LaDonte Neff took Leonardo Macedo’s phone.” In these circumstances, we would have 
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to conclude that even if the claimed error did occur, it would have been harmless 

according to any standard for prejudice. 

There Was No Error in Failing to Replace the Interpreter

Geronimo Martin testified with the aid of a Spanish interpreter. As Martin’s 

testimony progressed, it soon became apparent there was some problem when the 

interpreter asked the court “is it possible to have a sidebar? I have some questions about 

this.” After the sidebar, the following transpired:

“THE COURT: All right. Let’s do this. Let’s inquire of the witness what his first 

language is. 

“THE WITNESS: Mam.

“THE COURT: And what is that?

“THE WITNESS: Mam is my language.

“THE COURT: And for the record, does the interpreter know where the language 

originates?

“THE INTERPRETER: Your Honor, without being an expert on languages, it is a 

Mexican—a language that is spoken in parts of—I believe of southern Mexico and 

Central America, but I’d have to inquire directly from the witness.

“THE COURT: Why don’t you do that.

“(Off-the-record discussion between the interpreter and the witness.)

“THE INTERPRETER: In Guatemala.

“THE COURT: All right. So are you still able to translate his language for these 

proceedings?

“THE INTERPRETER: The interpreter believes that he can interpret the Spanish 

spoken by the witness even though there are clear mannerisms in his speech that are not 

consistent with proper Spanish—mainstream Spanish as used in Mexico. So to the extent 

that there might be some incorrect Spanish structure, grammar, syntax, I still believe I 

can interpret the Spanish of the witness.

“THE COURT: All right. Fine.
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“MS. GRAY [defense counsel]: Judge, I’m not satisfied that we’ve made a 

complete record of what was stated at sidebar.

“THE COURT: We can do that outside the presence of the jury.

“MS. GRAY: Well, I suggested that at sidebar, but I’m sorry Judge, I just—I 

don’t think we’re getting accurate testimony [sic]. And—

“THE COURT: Well—

“MS. GRAY: And that he may need to inquire—

“MR. O’CONNELL [prosecutor]: Your Honor, I’m going to—

“MS. GRAY: Inquire as to the witness’s fluency or lack of fluency in Spanish. 

And I am willing to have this discussion outside the presence of the jury but—

“THE COURT: I think it goes to the weight rather than the admissibility. If this 

witness . . . speaks a language which the interpreter can translate, despite issues of syntax, 

I think it’s perfectly appropriate to continue. So—

“MS. GRAY: I do object. This interpreter is not certified in Mam.

“THE COURT: I understand the objection. It’s overruled. The jury will 

understand that there may be some gradations in terms of syntax or exact grammar, but 

the interpreter who is certified has told this Court that he is capable of translating, so I’m 

going to allow him to proceed. [¶] So let’s have a question, please, and let’s make the 

questions as simple as possible.” 

The first question of Ms. Gray’s cross-examination of Martin was, “Do you speak 

Spanish or Mam at home?” Martin answered, “Mostly Mam, but I—I do always 

understand Spanish.” After a few more questions the jury was excused for lunch, the 

court stated it wanted “recorded . . . what you told us at the bench.” The interpreter then 

stated at greater length the conclusion that Spanish was not Martin’s first language. The 

court then had the interpreter “clarify . . . your obligation regarding the interpretation of 

his [Martin’s] language.” After the interpreter did so, the court inquired, “And would 

you or is it your obligation to inform the Court if you cannot translate that language 

accurately?” The interpreter responded as follows:
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“Yes, your Honor. I would have informed the Court if I felt like I was unable to 

understand or if I felt like there was any indication that—beyond what I already pointed 

out to the Court that the witness was not understanding or that I was not understanding. 

[¶] If it got to the point where I felt like there were simply no communication occurring, 

then I would be obligated to notify the Court.”

The court asked, “Did you at any point feel that you could not perform the 

translation accurately?” The interpreter replied: “At the beginning it wasn’t clear to me 

if—well, it was clear to me that he was using improper grammatical structure and syntax, 

but I do believe that even though at first it seemed to me there was some 

miscommunication because he was adding sounds and words in his responses, I do 

believe that he was able to understand the questions and he was able to—and I was able 

to understand his responses and that they were responsive.”

The court then asked, “And do you believe that you can continue to translate in the 

afternoon session?” The interpreter’s answer was: “I believe I can continue interpreting 

in the afternoon session. And if I do observe any indication that there is failure of 

communication, either because I don’t understand the witness’s testimony or because he 

doesn’t understand my interpretation of the questions, I will notify the Court.”

Defense counsel continued to object. “The issue is not [the interpreter’s] 

qualifications or good faith in translating what he hears in Spanish. The question is 

whether the witness is comprehending questions that are put to him in Spanish. [¶] . . . 

[¶] I’m not challenging at all that our interpreter is accurately bringing the Spanish words 

into English, but the problem is whether the witness is comprehending questions in 

Spanish accurately. [¶] . . . [¶] That he is not sufficiently fluent in Spanish. . . . [¶] . . .

[I]f he’s not understanding Spanish at the level that a courtroom witness needs in order to 

provide responsive answers, I can’t cross-examine him using only a Spanish interpreter. 

I need a Mam interpreter.” 

The court then ruled on the defense objection as follows: “Well, I would agree 

with you except on your cross-examination, Ms. Gray, in response to your question he 

[Martin] said that he converses at home in Mam but also in Spanish, and that when he 
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spoke with Mr. Reyes who was his work companion that he also spoke with him in 

Spanish. So I don’t think it’s a typical situation where the person is fluent only in his 

own dialect.

“It appears to me, from even listening to his answers, once the questions got asked 

in a more simplistic fashion, that he understood perfectly and he responded appropriately.

“So the record is made. I note your objection. And I overrule it.”

Defendant treats the overruling of his objection as a violation of a number of 

constitutional rights, specifically: “The trial court deprived appellant of his rights to due 

process, confrontation of witnesses, cross-examination and presence at trial by allowing a 

critical witness to testify in Spanish, his weak second language, instead of Mam, his 

native language and by refusing to provide a Mam Interpreter.” Defendant includes 

within this contention the assertion that the trial court “failed to comply with the 

applicable statute [i.e., Evid. Code, § 752, subd. (a)] and Court rules [i.e., Cal. Stds. Jud. 

Admin., § 2.10(b)]” by not asking the witness “his name, address, birth date, age, place of 

birth, active vocabulary in vernacular English, and understanding of the court 

proceedings in order to determine the need for an interpreter.” We are not persuaded.

Initially, we note that these arguments are largely being advanced for the first 

time. With the possible exception of the cross-examination ground (“I can’t crossexamine him using only a Spanish interpreter”), none of the grounds now urged was 

advanced to the trial court. They consequently cannot be put forward for the first time on 

appeal. (People v. Abel (2012) 53 Cal.4th 891, 924.) As for the court’s supposed failure 

to question the witness, that seems academic because the need for an interpreter was 

accepted by all concerned from the outset.

However, if, solely for purposes of this discussion, the merits of defendant’s 

contention had been preserved for review, they could not be sustained.

Without question, the need of a non-English speaking witness for a competent 

interpreter is essential for satisfying constitutional due process. (See, e.g., Cal. Const., 

art. I, § 14; People v. Rodriguez (1986) 42 Cal.3d 1005, 1010; Evid. Code, § 752.)

Defendant points to a couple of questions at the start of the witness’s direct examination 
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as proof “that he did not understand the Spanish interpreter.” This is far too broad a 

characterization. The examples occurred when the witness’s unease and nervousness 

would be most pronounced. It is apparent from an examination of the transcript of the 

witness’s entire testimony that, while never completely relaxed, he became adjusted to 

the proceeding. The stress did not disappear, so there were, in defendant’s words, 

“several other incidents of misunderstanding.” This is overstating the matter. The 

incidents covered by defendant’s generic reference (“See 1 RT 197:26-198:1, 198:6-8; 

210:22-211:7; 211:18-28; 213:20-21; 215:17-23”) reflect momentary hesitation, not 

enduring incomprehension.

For example, the final citation shows defense counsel questioning the witness as 

follows:

“Q. On Exhibit 17, does that gun have a brown handle or a red handle?

“A. No, the other one. Brown.

“Q. Okay. You don’t think that handle is brown, do you?

“A. Well, when you get scared, you can’t see very well.”

In another example, defendant cites only the first two lines of the exchange that 

occurred only moments before:

“Q. What color is the gun in People’s 17?

“A. That’s the one that the brown guys had.

“Q. By ‘brown guys’ do you mean African-American guys?

“A. Yes.

“Q. What is the color of the gun?

“A. It’s brown.

“Q. Is the handle of the gun the same color as the barrel?

“A. No, it’s different.

“Q. What color is the handle?

“A. It’s brown.

“Q. What color is the barrel?

“A. Like gray almost.” 
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Another example shows only a brief and transitory confusion. Again, defendant 

cites only the third and fourth lines of the following:

“Q. Can you tell me what clothing that second man was wearing?

“A. Well, the pants of the second man also had pants with stripes in the back.

“Q. And was he—what race was he, the color of his skin?

“A. It was I think white behind the black pants.

“Q. I want to know about his race, though, sir. Was he Mexican? Was he Black? 

Was he White? Was he Asian?

“A. That one was Black.”

Finally, one of the instances cited by defendant shows the interpreter candidly 

telling the court, “The interpreter didn’t understand the witness’s response. I’d like to ask 

him to repeat it, please.” The answer was repeated, and defense counsel proceeded with 

her cross-examination. 

Defendant’s contention is in essence an attack on both the interpreter’s 

competence and the trial court’s decision not to replace him. “The question of an 

interpreter’s competence is a factual one for the trial court.” (People v. Aranda (1986) 

186 Cal.App.3d 230, 237.) “[I]t is within the trial court’s discretion to determine whether 

a challenge to an interpreter’s competency at trial is justified.” (People v. De Larco

(1983) 142 Cal.App.3d 294, 306.)

Even more important than what is in the record is what is not, namely, anything 

from the witness indicating an inability to understand the interpreter. The trial court 

accepted the interpreter’s representation that he would notify the court of “any failure of 

communication, either because I don’t understand the witness’s testimony or because he 

doesn’t understand my interpretation of the questions.” Defendant presents no reason 

why this court should assume the interpreter violated that promise. The test for reversal 

is “whether an actual material interference with the defendant’s rights [to a competent 

interpreter] has been shown.” (People v. Rodriguez, supra, 42 Cal.3d 1005, 1014, fn. 6.) 

Here, no “actual material interference” has been established.
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DISPOSITION

The judgment of conviction is affirmed.

_________________________

Richman, Acting P.J.

We concur:

_________________________

Stewart, J.

_________________________

Miller, J.