P. v. Veliz

Filed 8/18/26
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

BENJAMIN VELIZ,

Defendant and Appellant.
B344807

Los Angeles County
Super. Ct. No.
24WCCF00717
APPEAL from a judgment of the Superior Court of Los Angeles County, David C. Brougham, Judge. Affirmed.
Ashwini Mate, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Zee Rodriguez and Patricia Rosman, Deputy Attorneys General, for Plaintiff and Respondent.
____________________
Convicting someone of attempted robbery does not require proof of force or fear, because a robbery attempt may not have progressed to the stage of force or fear. This case illustrates the principle. Benjamin Veliz tried to take Johnny Brown’s bicycle outside of Benny’s Liquor Store. Brown confronted Veliz, who—after a standoff—eventually walked away. We affirm Veliz’s conviction for attempted robbery. We also reject his claim the trial court should have instructed on attempted theft as a lesser included offense.
I
Brown rode his bicycle to a store in the city of Azusa, leaned it against the store window, and went inside. Veliz grabbed the handle bars and middle of the bike, as if “[h]e was taking possession of it.” While inside buying beer, Brown saw Veliz putting his hands on the bicycle. Brown said, “Hey, this guy’s trying to take my bike.” Beers in hand, Brown went outside. Veliz moved the bicycle “a little bit more than” an inch.
Brown said, “Hey, what are you doing with my bike?”
Veliz dropped the bicycle on the ground and stood next to it. He said, “Oh, it’s my bike now.” He added, “I’m going to mess you up because you’re talking crap and this is my bike.”
Veliz produced two knives, holding one in each hand.
Brown called out, “Somebody call the cops, he has a knife.”
Veliz and Brown remained in a standoff about five feet apart. The store cashier came outside, said she already had called the cops, and told Veliz to leave, which he did.
Brown testified he was not scared during the encounter. He did not reach for his bicycle because of the knives: he “was trying to be cautious” and “didn’t want to get stabbed.”
A jury convicted Veliz of attempted second degree robbery and battery. The trial court sentenced him to two years and six months in prison.
II
Veliz argues insufficient evidence supported his attempted robbery conviction because he abandoned the bicycle before showing the knives, and because Brown was not in fear. His second argument is that the trial court should have instructed on the lesser included offense of attempted theft. These hammer swings miss the nail.
A
We apply the substantial evidence standard to Veliz’s substantial evidence arguments. (People v. Watkins (2012) 55 Cal.4th 999, 1019 (Watkins).)
Robbery occurs when a defendant uses force or fear to take property from another against that person’s will. (Pen. Code, § 211; CALCRIM No. 1600.)
Attempted robbery, however, has different elements:
Veliz had the purpose of committing robbery, and
He took a direct but ineffectual step towards his goal. (See Watkins, supra, 55 Cal.4th at pp. 1020–1021; cf. CALCRIM No. 460 [general attempt instruction].)
On element one, the evidence showed Veliz’s purpose was robbery. Veliz may have hoped he could thieve the bike and escape unnoticed, but Brown did notice. Brown confronted Veliz, who responded with the aggressive claim that “it’s my bike now.” Veliz stood his ground next to the bike. This showed Veliz had the purpose of robbery, if robbery was what it took to get the bike.
On element two, Veliz took direct but ineffectual steps to accomplish his goal. He grabbed the bike and, when Brown confronted him, Veliz stayed near the bike and he claimed it was his. This proved Veliz was putting his plan into action. His effort went beyond mere preparation. (E.g., People v. Sanchez (2016) 63 Cal.4th 411, 469–470 (Sanchez).)
Veliz argues Brown testified he was not afraid. But force or fear is not an element in an attempted robbery case. (People v. Vizcarra (1980) 110 Cal.App.3d 858, 862–863 (Vizcarra).) A robbery attempt may not have progressed to the point of fear, as where armed robbers approach with the forbidden purpose, linger, but leave when a suspicious observer phones police. There may be no force or fear, but that still can be attempted robbery. (E.g., Sanchez, supra, 63 Cal.4th at pp. 469–470.)
Veliz claims he abandoned the bike before using force. We repeat: force is not an element of attempted robbery. The crime was complete once Veliz formulated his purpose of robbery and then acted directly on it, as he did by grabbing the bike. Then Veliz announced the bike was his now, and he remained standing next to it. The proof was ample.
B
Veliz argues the trial court erred by failing to instruct the jury on the lesser included offense of attempted theft. There was no error.
A trial court has a sua sponte duty to instruct on a lesser included offense if there is substantial evidence the defendant is guilty of the lesser offense. (People v. Landry (2016) 2 Cal.5th 52, 96.) In this context, substantial evidence is evidence that would allow a reasonable jury to find that the defendant committed the lesser, but not the greater, offense. (Ibid.) Thus, the court must give the instruction only when substantial evidence shows that an element of the charged offense is missing, and the defendant is guilty of the lesser offense. (Ibid.)
Theft is the taking of another’s property, with the intent to steal and carry it away. (People v. Gomez (2008) 43 Cal.4th 249, 254–255.) Unlike robbery, theft does not require the defendant to take property from the person or immediate presence of another or to accomplish the taking by force or fear. (People v. Anderson (2011) 51 Cal.4th 989, 994.) Attempted theft is a lesser included offense of attempted robbery. (People v. Reeves (2001) 91 Cal.App.4th 14, 53.)
No evidence showed Veliz’s purpose was to commit theft only and not robbery. Veliz’s actions revealed his plan: if the bike owner detected Veliz, Veliz would not flee but would persist by asserting ownership of the bike. There was no contrary evidence. The trial court had no duty to instruct on a lesser included offense.
DISPOSITION
We affirm.
WILEY, J.
We concur:
STRATTON, P. J.
VIRAMONTES, J.