P. v. Jones CA2/1

Filed 6/26/13 P. v. Jones CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B241310

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. NA089283) v.

MELVIN ANDREW JONES,

Defendant and Appellant.

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. _________________________________

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