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In People v. Campbell (Apr. 7, 2022, F080512) (nonpub. opn.) (Campbell I), this court affirmed defendant's convictions but reversed one enhancement and remanded the cause for resentencing.
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F080512
04-07-2022
THE PEOPLE, Plaintiff and Respondent, v. ROLAND BERNARD CAMPBELL, Defendant and Appellant.
Siena Kautz, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Jeffrey D. Firestone, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Order Filed Date 4/25/22
APPEAL from a judgment of the Superior Court of Fresno County. No. F18902433, John F. Vogt, Judge.
Siena Kautz, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Jeffrey D. Firestone, Deputy Attorneys General, for Plaintiff and Respondent.
ORDER MODIFYING OPINION AND DENYING REHEARING
The Court:
It is ordered that the opinion filed herein on April 7, 2022, be modified as follows: On page 13, the third sentence (and the following citation), of the first full paragraph beginning "It may impose" is deleted and the following sentence is inserted in its place:
On remand, the trial court and parties should be aware of the newly enacted procedures set forth in section 1171.1, subdivision (d) for resentencing when a defendant is serving a term for a judgment that includes a prior prison term enhancement.
This modification does not affect the judgment.
Appellant's petition for rehearing is denied.
WE CONCUR: PEÑA, J., MEEHAN, J.
OPINION
LEVY, ACTING P.J.
THE COURT[*]
Roland Bernard Campbell (defendant) was convicted by jury of robbery and aggravated assault. He claims the jury should have been instructed on theft as a lesser included offense of robbery. He further contends two prior prison term enhancements have been invalidated by Senate Bill No. 136 (2019-2020 Reg. Sess.) (Senate Bill 136). We reject the first claim. The second claim is appropriately conceded by the People. We affirm in part, reverse in part, and remand for resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was prosecuted for committing a violent act against a female acquaintance (the victim) and stealing her bicycle. The incident occurred in April 2018, and defendant was tried before a jury in September 2019. The charges, as amended to conform to proof during trial, were as follows (all undesignated statutory references are to the Penal Code):
Count 1: Second degree robbery (§§ 211, 212.5) involving personal use of a deadly or dangerous weapon (§ 12022, subd. (b)(1)) and personal infliction of great bodily injury (§ 12022.7, subd. (a)).
Count 2: Assault with a deadly weapon or instrument (§ 245, subd. (a)(1)), with personal infliction of great bodily injury. A prior strike was alleged for purposes of the "Three Strikes" law. (§§ 667, subds. (b)-(i), 1170.12.) Defendant was further alleged to have served two prior prison terms. (§ 667.5, former subd. (b).)
Prosecution Case
The victim was attacked on a street in southeast Fresno. She was consequently hospitalized and received 23 stitches to close a head wound. The victim identified her assailant as a man named Roland, and she selected defendant's picture from a photographic lineup.
Police canvassed the neighborhood and obtained surveillance video captured by a residential security camera. The black and white video was of low resolution but contained relevant footage. A parole search of defendant's apartment resulted in the seizure of a red bicycle and a U-shaped metal bicycle lock, among other items. Defendant was taken into custody, waived his right to remain silent, and submitted to questioning.
Defendant admitted to striking the victim with the metal bicycle lock. When asked to explain why he did it, his answers were vague or nonresponsive. The most direct answer given was because "[s]he's the one that's tellin' everybody that I raped her."
Defendant told police he was "jumped and robbed" by "three Mexican dudes" immediately prior to his assault on the victim. He alleged the victim had "set [him] up" and was present when the men attacked him. The victim had allegedly handed one of them a Taser, and another a knife, during the altercation. The third man was armed with a large rock. Defendant claimed to have "fought 'em off" after avoiding being hit with the rock and withstanding the effects of being "tased."
Defendant claimed to have been robbed of a bicycle worth approximately $1,000. He repeatedly alleged "they" had taken the bike, which detectives understood to mean the male assailants. However, defendant later indicated the thief was a female companion of the victim. The two women had allegedly walked off with the bicycle while defendant was fending off the male attackers.
The incident reportedly began on Olive Avenue, but defendant struggled to explain how and why he ended up beating the victim with a metal object near the intersection of "Clay and Rowell." He denied following the women to that location, but he also said, "All this happened together. … This is all one incident." When asked how the victim got to that location, defendant replied, "She's on a bike, she can move."
The police told defendant the surveillance video showed him running toward the victim prior to the assault. He replied, "Yeah," then claimed it was because the victim was with the woman who had just stolen his bicycle. He later implied the victim had provoked him by saying "what's up" in a "kinda aggressive" manner.
This excerpt from the police interview directly pertains to the issue on appeal:
"[Detective] Q: All right. So you hit her. She falls. You hit her some more. What happens?
"[Defendant] A: What you mean what happens?
"Q: What did you do after she's on the floor now?
"A: Everything that you seen on that video is what happened.
"Q: I see you grab her bike.
"A: That's 'cause they got my bike.
"Q: Okay so the red bike that-that we-that you have in your house is her bike.
"A: That's-yeah, that's her bike. I ain't gonna lie to you.…"
Defendant later said, "It wasn't a robbery. It was me tryin' to get my bike back. It's like …" The detective interrupted to ask, "So you take her bike because they took your bike?" Defendant replied, "She told them.… [S]he's tellin' 'em to do that." He eventually reiterated, "[I]t wasn't no robbery, man. I'm the one that got robbed. It wasn't-it wasn't nothin' like that."
The victim testified to having almost no memory of the incident. For example: "I remember seeing him get off a truck, but I don't remember nothing after," and "The first hit was a U-lock. I don't know what else after that. I just remember the first hit." The victim acknowledged having accused defendant of raping her, but she claimed not to know why he attacked her with the metal lock.
The victim further testified to being alone and in possession of a red bicycle at the time of the assault. She had no memory of defendant stealing the bicycle. When shown a photograph of the bicycle found in defendant's apartment, the victim testified, "That's my bike."
The victim's testimony was consistent with the surveillance video. In particular, she had recalled seeing defendant "jump out of a truck" and "him running towards [her]." The video shows a pickup truck pass through the area. A figure emerges from where the truck is last seen. The figure jogs down the road, moves toward the sidewalk, and disappears from view. Within 30 seconds the person reappears and walks a bicycle out to the middle of the street. After a brief pause, he mounts the bicycle and slowly pedals away.
Defense Case
The defense called three witnesses, including defendant. Only certain parts of defendant's testimony are relevant to the issues on appeal. Our summary of the defense case is therefore abbreviated.
Defendant's version of events was similar to the story he told to the police. One difference was the presence of the "three Hispanic males" at the time of his assault on the victim. In his police interview, defendant claimed the men retreated in the opposite direction of where the victim and her female companion had walked off with his bicycle. The detectives repeatedly asked why he attacked the victim if her male companions were no longer a threat. Defendant never gave a straight answer to the question.
At trial, defendant claimed the men had reappeared and were "coming towards [him]" when he assaulted the victim. He maintained the assault was an act of self-defense. He explained: "I was afraid for my life because I'm-like I said, just prior to that they just attacked me and-and nearly succeeded, but I seen when he tried to hit me in the head with the rock, so-so I swung. When I swung the U-lock, I didn't pay attention to her. That was the first time that I didn't even know that she-that she received any kind of injury like that."
Defendant's explanation for taking the victim's bicycle was as follows:
"[Defense counsel:] Q Did you see what happened to the other guys that were with her at that time after you swung your U-lock?
"[Defendant:] A No, 'cause at that time I took off.
"Q How did you take off?
"A I took off on-on the bike that was on the ground.
"Q Was it the same bike that you believed they found in your apartment?
"A The one that I found on the ground, yeah.
"Q Was that-you know, you saw a photo of it yesterday which was a red bicycle; right?
"A Yes.
"Q Was that the same bicycle that you rode off on after the-the incident occurred?
"A Yes.
"Q Why-why did you take off on the bicycle?
"A Because the guys were-were coming back and I was afraid again, and that's what I used to get away. I definitely didn't want the bike nor did I care for the bike.
"Q Was it-was it your, what you would call, decision to try to steal [the victim's] bike when you first saw her on that day for any reason?
"A Not at all." The prosecutor followed up on the above testimony in cross-examination:
"[Prosecutor:] Q Last but not least, that bike that was in your apartment, that was-that was the one that [the victim] had; right?
"[Defendant:] A I'm not sure if it was the one that [she] had.
"Q Okay. Wait. Where did you get it then? I'm sorry.
"A It was a bike that was on the ground.
"Q Next to [the victim]?
"A Not next to [the victim], like it was-it was-it was in the neighborhood. It was a house or something. There was like bikes on the ground. I'm not sure if it was hers or not.
"Q Okay.
"A She said it was hers."
Verdicts and Sentencing
During its deliberations, the jury asked to review defendant's custodial statements and the trial testimony of defendant and the victim. Defendant was found guilty as charged and the enhancement allegations were sustained. The allegations of a prior strike and prior prison terms were found true in a separate bench trial.
Defendant was sentenced to a total prison term of 11 years. This was calculated using the middle term of three years for count 1, which was doubled because of the prior strike and increased by three years for the great bodily injury enhancement. Additional one-year terms were imposed for the weapon enhancement and one of the prison priors. A concurrent sentence was imposed for count 2.
DISCUSSION
1. Alleged Instructional Error
A. Additional Background
After the prosecution rested its case, defense counsel argued for an instruction on theft as a lesser included offense of robbery. The trial court denied the request for lacking evidentiary support. Defense counsel then said, "It may once the defense evidence is presented. Maybe I'm-I'm advancing my request ahead of the evidence or expected evidence." The trial court replied, "Okay. Well, I'll reserve that, but I just want to point out that just because something may be recognized as-as a matter of law as a lesser-included offense by the analysis of the elements it still requires that there be a basis in the evidence for the instruction to be given, and I haven't heard one yet."
Following the close of evidence, defense counsel requested an instruction on petty theft. The request was denied. In making its ruling, the trial court observed: "[Defendant] is flat out denying that he had any intent to steal and is denying any theft offense in any form. So as far as I'm concerned, it's [robbery] as charged straight up or straight down."
On appeal, defendant argues "there was evidence, in the form of [his] trial testimony and police interview, that [he] did not form the intent to take [the victim's] property until after he hit her." Therefore, according to defendant, the evidence "warranted instructing the jury with theft as a lesser-included offense of robbery."
B. Law and Analysis
Robbery is defined by statute as "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." (§ 211.) The crime requires a "'specific intent to permanently deprive' the victim of his or her property." (People v. Wilson (2021) 11 Cal.5th 259, 301.) "Theft is a necessarily included offense of robbery." (People v. Ledesma (2006) 39 Cal.4th 641, 715.) The distinguishing element is the use of force or fear. (People v. Webster (1991) 54 Cal.3d 411, 443.) "If intent to steal arose after the victim was assaulted, the robbery element of stealing by force or fear is absent." (Ibid)
"As a general rule, 'a trial court errs if it fails to instruct, sua sponte, on all theories of a lesser included offense which find substantial support in the evidence.' [Citation.] But a court must instruct on such theories only when the record contains '"'substantial evidence' from which a rational jury could conclude that the defendant committed the lesser offense, and that he is not guilty of the greater offense."'" (People v. Smith (2018) 4 Cal.5th 1134, 1163.) The standard of review is de novo. (People v. Avila (2009) 46 Cal.4th 680, 705.) Although "we view the evidence in the light most favorable to the defendant" (People v. Millbrook (2014) 2 22 Cal.App.4th 1122, 1137), the evidentiary requirement for lesser included offense instructions "is not satisfied by '"any evidence … no matter how weak."'" (Avila, at p. 705.)
Defendant's police interview did not support a theory of "after-formed intent," i.e., the intent to steal formed only after the use of force or fear. (E.g., People v. Moore (2011) 51 Cal.4th 386, 408-409; People v. Silva (2001) 25 Cal.4th 345, 371.) The lone explanation given for taking the victim's bicycle was because "they got my bike." Defendant's assertion that "[i]t wasn't a robbery" was also insufficient, as there was no indication he knew the legal definition of robbery or was otherwise distinguishing between robbery and theft. The mere possibility of an after-formed intent to steal is not substantial evidence that only a lesser included offense was committed. (See People v. Sakarias (2000) 22 Cal.4th 596, 620 [rejecting claim of failure to instruct on theft based on after-formed intent; "Although such a course of thought is possible, there was no direct or circumstantial evidence of it here"].)
In his briefing, defendant claims to have "testified that he did not intend to steal [the victim's] bicycle when he hit her." He repeats the assertion in different ways, each time citing to page 266 of the reporter's transcript. We have already quoted the relevant testimony, and it does not support the contention. Defense counsel asked, "[W]as it your, what you would call, decision to try to steal [the victim's] bike when you first saw her on that day for any reason?" (Italics added.) Defendant's answer was, "Not at all."
In both versions of defendant's story-the one told to the police and the one offered at trial-defendant "first saw" the victim prior to being attacked by the three men. His mental state at that time, before he was allegedly robbed of his own bicycle, is not substantial evidence of his intentions when he later assaulted the victim at a different location. According to his testimony, the time interval between the two events was "about ten minutes."
Furthermore, as noted by the trial court, defendant's testimony implied it was never his intent to permanently deprive the victim of her property. He denied knowing or believing the red bicycle belonged to the victim. He also claimed to have taken it only to facilitate his escape from imminent danger. The after-formed intent theory was speculative, and "[s]peculation is insufficient to require the giving of an instruction on a lesser included offense." (People v. Mendoza (2000) 24 Cal.4th 130, 174; cf People v. Ramkeesoon (1985) 39 Cal.3d 346, 350-351 (Ramkeesoon) [failure to instruct on theft held erroneous where defendant repeatedly and specifically "testified that he had not thought about stealing any of [the victim's] property until after the assault was completed"].)
In any event, the alleged error was harmless. The erroneous failure to instruct on lesser included offenses is evaluated under the standard described in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). (People v. Gonzalez (2018) 5 Cal.5th 186, 195-196, 198.) "That standard requires us to evaluate whether the defendant has demonstrated that it is '"reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error."' [Citations]." (Gonzalez, at p. 195.)
Although defendant concedes the Watson standard normally applies in this context, he argues the error is of a different nature when defense counsel affirmatively seeks a lesser included offense instruction and the request is denied. According to defendant, such errors are either "reversible per se" or evaluated under the standard of Chapman v. California (1967) 386 U.S. 18. We are not convinced. The California Supreme Court has described the failure to instruct on lesser included offenses supported by substantial evidence as "nonstructural state law error." (People v. Gonzalez, supra, 5 Cal.5th at p. 195; see People v. Hicks (2017) 4 Cal.5th 203, 215 ["In a noncapital case, the trial court's failure to instruct on necessarily included offenses is reviewed for prejudice under the Watson standard"].) The high court has also said a judge's sua sponte duty to instruct on applicable lesser offenses "persists irrespective of whether the parties request such an instruction." (Gonzalez, at p. 196.)
Defendant relies on Ramkeesoon, supra, 39 Cal.3d 346. The Ramkeesoon appellant was convicted on a theory of felony murder based on an alleged residential robbery. (Id. at pp. 348, 352, fn. 2.) The California Supreme Court concluded defense counsel's requests for instructions on lesser included theft offenses were erroneously denied. (Id. at p. 350.) The prosecutor had objected to the requests, "arguing that the instructions the court proposed to give were adequate because if the jury believed defendant's testimony about having no intent to steal until after the stabbing, it would simply acquit him of murder-at least on a felony-murder theory." (Ibid). In finding the error prejudicial, the high court said the jury "was left with an 'unwarranted all-or-nothing choice' [citation] on both the robbery and murder counts," which "practically guaranteed robbery and felony-murder convictions since [the appellant] had admitted taking [the victim's] property and robbery was the only available theft offense." (Id. at p. 352.)
It is important to note the Ramkeesoon jury was instructed on robbery pursuant to former CALJIC No. 9.10 (later renumbered as No. 9.40), which did not highlight the concept of after-formed intent. (Ramkeesoon, supra, 39 Cal.3d at p. 353; see People v. Hughes (2002) 27 Cal.4th 287, 359 ["CALJIC No. 9.40 is substantively identical to former CALJIC No. 9.10"].) In the present case, however, the jury was instructed pursuant to CALCRIM No. 1600. The instruction explained: "The defendant's intent to take the property must have been formed before or during the time he used force or fear. If the defendant did not form this required intent until after using the force or fear, then he did not commit robbery."
Defendant's trial counsel highlighted the after-formed intent principle during closing argument: "We have a robbery charge here, which again requires the defendant's intent to take the property must have been formed before or during the time he used force or fear. If the defendant did not form this required intent until after using the force or fear, then he did not commit robbery. [¶] Now, obviously, the injury in this case is very serious and we're not trying to belittle it or to try to diminish it. But, nevertheless, was there an intent to take [the victim's] bicycle at the time that this confrontation occurred? I would submit to you not."
Defendant argues the jury's request to review his police interview and trial testimony show the deliberations were close and thus indicate prejudice. We disagree. In light of the CALCRIM No. 1600 instruction and defense counsel's argument, the jury presumably gave due consideration to the after-formed intent theory. (See generally People v. Mejia (2012) 211 Cal.App.4th 586, 627 ["jurors are presumed to follow the law as given to them by the trial court"].) In People v. Turner (1990) 50 Cal.3d 668, the Ramkeesoon case was distinguished on similar grounds, i.e., "the jury was given special instructions high-lighting the issue of 'after-formed intent'" and "was told explicitly that it could not find a robbery if it accepted defendant's claim of 'after-formed intent.'" (Turner, at p. 691; cf Ramkeesoon, supra, 39 Cal.3d at p. 352 ["the jury was never presented with the factual question posed by the omitted theft instructions"].)
In further contrast to Ramkeesoon, this case did not involve a drastic "'all-or-nothing'" choice. (Ramkeesoon, supra, 39 Cal.3d at p. 352.) The jury below was presented with two charges based on the closely related acts of striking the victim and stealing her bicycle. If the jury believed defendant did not intend to steal the bicycle "until after using the force or fear" (CALCRIM No. 1600), it presumably would have acquitted him of robbery and only found him guilty of assault with a deadly weapon. (Cf People v. Lipscomb (1993) 17 Cal.App.4th 564, 571 [reasoning "the jury, confronted with defendant's use of a gun, was not faced with an all-or-nothing choice between finding defendant guilty of assault with a firearm and setting him free. Rather, the jury had the option of, and did in fact, convict defendant of false imprisonment by means of violence, of first degree robbery and of related firearm use enhancements"].)
2. Prior Prison Term Enhancements
The People concede the prior prison term enhancements must be stricken from the judgment. However, they further contend the matter should be "remanded for resentencing for the court to consider all sentencing options available." We agree.
Effective January 1, 2020, the one-year enhancement provided for in section 667.5, subdivision (b) is inapplicable to all prior prison terms except those served for a sexually violent offense within the meaning of Welfare and Institutions Code section 6600, subdivision (b). (Stats. 2019, ch. 590, § 1.) This change in the law applies retroactively to nonfinal judgments. (People v. Lopez (2019) 42 Cal.App.5th 337, 341- 342.) Defendant's prior prison terms were served for a drug conviction under the Health and Safety Code and for failing to comply with the sex offender registration requirements of Penal Code section 290.015. We therefore reverse the findings on the prior prison term enhancements for insufficient evidence.
"[W]hen part of a sentence is stricken on review, on remand for resentencing 'a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances.'" (People v. Buycks (2018) 5 Cal.5th 857, 893.) Because the trial court did not impose the maximum possible sentence, and defendant's aggregate 11-year prison sentence includes a one-year prior prison term enhancement, remand is appropriate to allow the trial court to "revisit all prior sentencing decisions." (People v. Valenzuela (2019) 7 Cal.5th 415, 424-425; see, e.g., People v. Shaw (2020) 56 Cal.App.5th 582, 588-589.) It may impose "any sentence permitted under the applicable statutes and rules…, subject only to the limitation that the aggregate prison term [can]not be increased." (People v. Burbine (2003) 106 Cal.App.4th 1250, 1256.)
DISPOSITION
The enhancement findings made pursuant to section 667.5 are reversed and the corresponding prior prison term enhancements are ordered stricken from the judgment. The matter is therefore remanded for resentencing. In all other respects, the judgment is affirmed.
[*]Before Levy, Acting P. J., Peña, J. and Meehan, J.