Morris

Convicted of robbery, grand theft (theft from the person of another), and petty theft with a prior, defendant Jason Alexander Morris appeals contending there was insufficient evidence to support a sentence enhancement finding that he knew or should have known his victim was developmentally disabled, and the trial court prejudicially erred in failing to instruct on theft as a lesser included offense of robbery. Defendant also contends the trial court prejudicially erred in instructing the jury on the sentence enhancement, and expert opinion testimony was necessary with respect to the enhancement.

In the published portion of our opinion, we agree there was insufficient evidence that defendant knew or should have known the victim, who suffers from schizophrenia, was “developmentally disabled” within the meaning of the enhancement statute (Pen. Code, 1 § 667.9, subd. (a)). Accordingly, we will strike that enhancement. In the unpublished portion of the opinion, we also agree the trial court erred in failing to instruct on theft as a lesser included offense of robbery, but find that error harmless as to defendant’s robbery conviction. We will, however, vacate defendant’s theft…

With one exception, my colleagues got it right. We differ only on whether there is sufficient evidence to support the jury’s finding that defendant knew or reasonably should have known that the victim of his crime was “developmentally disabled” within the meaning of Penal Code section 667.9, subdivisions (a) and (d).

*1157 My colleagues begin by assuming the evidence establishes that the victim was “developmentally disabled” within the meaning of the statute. It does.

The evidence showed that the victim suffered from schizophrenia and was unable to live independently. Thus, she stayed in a board and care home to obtain needed help with the tasks of day-to-day living. When the victim had lived alone, her apartment was filthy. Indeed, a mental health specialist described the apartment as “gross.” For example, cockroaches were on the floor, unwashed dishes appeared to have “been there for a number of weeks,” and hardly any food was in the apartment. The victim suffered from anxiety even when taking medication for her mental illness. The medication would stop her from hearing voices, allow her to remember things that she would otherwise forget, and help her to have a normal life.…

Convicted of robbery, grand theft (theft from the person of another), and petty theft with a prior, defendant Jason Alexander Morris appeals contending there was insufficient evidence to support a sentence enhancement finding that he knew or should have known his victim was developmentally disabled, and the trial court prejudicially erred in failing to instruct on theft as a lesser included offense of robbery. Defendant also contends the trial court prejudicially erred in instructing the jury on the sentence enhancement and expert opinion testimony was necessary with respect to the enhancement.

In the published portion of our opinion, we agree there was insufficient evidence that defendant knew or should have known the victim, who suffers from schizophrenia, was "developmentally disabled" within the meaning of the enhancement statute (Pen. Code, [1] § 667.9, subd. (a)). Accordingly, we will strike that enhancement. In the unpublished portion of the opinion, we also agree the trial court erred in failing to instruct on theft as a lesser included offense of robbery, but find that error harmless as to defendant's robbery conviction. We will, however, vacate defendant's…