Opinion
F072025
09-07-2017
THE PEOPLE, Plaintiff and Respondent, v. RENE LAVELL COLEMAN, JR., Defendant and Appellant.
Rachel Varnell, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra and Kamala D. Harris, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Peter W. Thompson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or reiving on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BF159115A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Michael E. Dellostritto, Judge. Rachel Varnell, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra and Kamala D. Harris, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Peter W. Thompson, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury convicted Rene Lavell Coleman, Jr. of second degree robbery. On appeal, he claims the trial court neglected a sua sponte duty to clarify or expand upon CALCRIM No. 1600, i.e., the standard instruction on the elements of robbery. In the alternative, he alleges ineffective assistance of counsel based on his trial attorney's failure to request additional instructions. Coleman also contends that the prosecutor misstated the reasonable doubt standard during closing argument. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The Kern County District Attorney charged Coleman by information with one count of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)) committed by means of personal use of a knife (§ 12022, subd. (b)(1)) and one count of misdemeanor possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)). It was further alleged that Coleman had suffered a prior strike and serious felony conviction (§§ 667, subds. (a), (b)-(i), 1170.12, subds. (a)-(d)) and served three prior prison terms (§ 667.5, subd. (b)). Coleman pleaded no contest to the methamphetamine charge and the case went to trial on the robbery count. Given the nature of the claims on appeal, we provide only an abbreviated summary of the trial evidence.
Except where otherwise specified, all further statutory references are to the Penal Code. --------
On January 23, 2015, Coleman entered a beauty supply store in Bakersfield carrying a tote bag or large purse. The store manager, Glorianne Martinez, testified that Coleman's bag was "flat," i.e., appeared empty, when he came into the store. Later, after Coleman had browsed the aisles, Ms. Martinez noticed the bag was "bigger." Upon further observation of Coleman in the reflection of the store's ceiling mirrors, Ms. Martinez saw a packaged hair iron inside of the bag. She also witnessed Coleman use a knife to slice open two packages of hair extensions that were attached to a display stand.
After seeing Coleman take possession of the hair extensions, Ms. Martinez began following him to the front of the store. She asked him to return the merchandise, and he said that he was going to purchase it. As they were walking "side-by-side," she said, "Can I have my hair back?" Coleman replied, "No," held up his knife, and told her, "You might want to back up." She immediately stood still, and Coleman proceeded to one of the cash registers. Ms. Martinez eventually went around to the other side of the register, and Coleman placed the hair extensions on the counter. Ms. Martinez picked the items up and told him, "I also want the iron that you have in your purse." Coleman advised that he intended to exchange the iron for the hair extensions. When Ms. Martinez rejected that proposition, Coleman "basically just walked out, left the hair, and took off with the iron."
Police located and arrested Coleman within a half hour of his departure from the store. He was found in possession of two packaged hair irons. After waiving the right to remain silent, Coleman admitted to entering the store with the intent to steal hair extensions but denied the allegations regarding his use of a knife. The alleged weapon was never recovered.
Coleman testified at trial. He claimed to have entered the store with two hair irons: one stolen from another location and one that was given to him as a gift, the latter of which he had intended to exchange for hair extension products. Notwithstanding that testimony, Coleman admitted to telling police that he had been "trying to steal some hair." He denied possessing or using a knife while inside the store.
The jury found Coleman guilty as charged and returned a true finding on the weapon enhancement. The allegations concerning his prior convictions and prison terms were found true in a bifurcated bench trial. The trial court exercised its discretion to strike the prior prison term enhancements and imposed a 12-year sentence for the felony conviction (the middle term of three years for second degree robbery, doubled because of the prior strike, plus one year for the weapon enhancement and five years for the prior serious felony). Coleman received a concurrent sentence for the misdemeanor drug offense. A notice of appeal was filed on the date of sentencing.
DISCUSSION
Alleged Instructional Error
We review allegations of instructional error de novo. (People v. Waidla (2000) 22 Cal.4th 690, 733; People v. Martin (2000) 78 Cal.App.4th 1107, 1111.)
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." (§ 211.) Case law recognizes that "a robbery can be accomplished even if the property was peacefully or duplicitously acquired, if force or fear was used to carry it away." (People v. Gomez (2008) 43 Cal.4th 249, 256.) Such use of force or fear to maintain possession of the victim's property is sometimes described as an "Estes robbery," referring to the holding in People v. Estes (1983) 147 Cal.App.3d 23, 26-28. (Miller v. Superior Court (2004) 115 Cal.App.4th 216, 223.)
Coleman submits that the above principles are not adequately explained in the standard pattern instruction on robbery. Specifically, he claims the trial court had a sua sponte duty to instruct "that a defendant who does not use force or fear in the initial taking of property can only be guilty if he uses force or fear to retain the property or maintain possession of it." The alleged error is said to have misled jurors into believing they could "find appellant guilty of robbery simply based on [his] pulling out a knife without also finding that [he] did so with the intent to retain the hair extensions and hair irons."
The jury below received an instruction based on CALCRIM No. 1600, which identified the elements of robbery: "1. The defendant took property that was not [his] own; 2. The property was in the possession of another person; 3. The property was taken from the other person or her immediate presence; 4. The property was taken against that person's will; 5. The defendant used force or fear to take the property or to prevent the person from resisting; [and] 6. When the defendant used force or fear to take the property, [h]e intended to deprive the owner of it permanently." (Italics added.) In addition, the instruction explained that a defendant's "intent to take the property must have been formed before or during the time [h]e used force or fear. If the defendant did not form this required intent until after using the force or fear, then [h]e did not commit robbery." In our view, the italicized language squarely addresses the concepts that Coleman now claims required further elucidation. (See People v. Anderson (2011) 51 Cal.4th 989, 999 ["The instruction explains the act and the intent elements of the offense and that the act must have been motivated by the requisite intent: the intent to steal."].)
"In criminal cases, even in the absence of a request, a trial court must instruct on general principles of law relevant to the issues raised by the evidence and necessary for the jury's understanding of the case." (People v. Martinez (2010) 47 Cal.4th 911, 953.) This obligation requires instructions on the essential elements of a charged offense. (People v. Merritt (2017) 2 Cal.5th 819, 824.) Trial courts have no sua sponte duty to provide pinpoint instructions, i.e., ones that relate "particular facts to a legal issue ... or 'pinpoint' the crux of a defendant's case." (People v. Saille (1991) 54 Cal.3d 1103, 1119.) In other words, " 'when a defendant presents evidence to attempt to negate or rebut the prosecution's proof of an element of the offense, a defendant is not presenting a special defense invoking sua sponte instructional duties." (Id. at p. 1117.)
Coleman's attempt to analogize this case to People v. Hodges (2013) 213 Cal.App.4th 531 (Hodges) is unavailing. In Hodges, the defendant stole items from a grocery store but relinquished possession of the goods when confronted by security guards after he had exited the building. He later assaulted one of the guards while attempting to flee. (Id. at pp. 535-536.) The jury aptly questioned whether this sequence of events was relevant to the element of force or fear in establishing robbery, and the trial court was found to have erred by providing a misleading response. (Id. at pp. 538, 543.)
The Hodges opinion holds that when a defendant truly abandons a victim's stolen property before using force or fear, he or she may be found guilty of theft, but not of robbery. (213 Cal.App.4th at pp. 539-544.) Here, the verdict turned on credibility determinations rather than the timing of Coleman's actions; it was undisputed that he retained possession of both the hair extensions and the iron following the alleged use of force or fear. The jury asked to review all of Ms. Martinez's statements about seeing a knife, but submitted no questions regarding the elements of robbery.
In summary, we find the assertion of error to be meritless. "Because the court's instruction did not omit or withdraw an element from the jury's determination, [appellant] was required to request an additional or clarifying instruction if he believed that the instructions the court gave under CALCRIM No. 1600 were incomplete or needed elaboration. [Citation.] It is undisputed he failed to do so, and thus error cannot now be predicated upon the court's failure to give such an additional or clarifying instruction." (People v. Morehead (2011) 191 Cal.App.4th 765, 774; accord, People v. Kelly (1992) 1 Cal.4th 495, 535 [" 'The trial court cannot reasonably be expected to attempt to revise or improve accepted and correct jury instructions absent some request from counsel' "].)
As a fallback position, Coleman alleges ineffective assistance of counsel based on his trial attorney's failure to request additional instructions. To prevail on such a claim, he must establish that (1) the attorney's performance fell below an objective standard of reasonableness and (2) prejudice occurred as a result. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland); People v. Anderson (2001) 25 Cal.4th 543, 569.) Pursuant to the foregoing analysis, this claim fails under both prongs of the Strickland test. (See People v. Smithey (1999) 20 Cal.4th 936, 986-987 [no prejudice from failure to request a pinpoint instruction where jury was adequately instructed as to the relevant law]; People v. Castillo (1997) 16 Cal.4th 1009, 1014-1018 [no deficient performance where trial court "correctly and fully instructed the jury" and "competent counsel could reasonably conclude that the instructions adequately advised the jury" of the legal principles underlying a particular defense theory].)
Alleged Misstatements re: Reasonable Doubt
Coleman complains that the prosecutor misstated the law during closing argument by describing the concept of reasonable doubt in terms of a "common sense" standard. The claim is primarily based on the following statement: "You [jurors] have your life experience and your common sense. And I have to prove all the facts necessary for each of these elements beyond a reasonable doubt. So you have to decide if a particular fact that's relevant and important to an element of the offense has been proved beyond a reasonable doubt based on your experience and common sense." (Italics added.)
No challenges were made to the statements in question, but Coleman argues the omission is excusable because an objection would have been futile under existing California law. He thus concedes that prosecutorial misconduct did not actually occur. The crux of his position is that we should adopt certain holdings of other jurisdictions. (E.g., State v. Mitchell (Kan. 2000) 269 Kan. 349, 361 ["While the jury is free to use common sense to evaluate the evidence and the testimony, the burden of proof remains 'reasonable doubt.' By commenting that the State has a 'common sense burden,' the State impermissibly led the jury to believe that it could convict [defendant] by using a burden of proof less than 'reasonable doubt.' "].)
This claim warrants little discussion. First, as we read the record, the prosecutor merely urged the jury to use common sense in determining whether the evidence showed Coleman was guilty beyond a reasonable doubt. There was no conflation of the reasonable doubt standard with a "common sense burden." Second, the statements at issue comport with the holdings of our state Supreme Court.
In People v. Bickerstaff (1920) 46 Cal.App. 764, the appellate court held it was erroneous to tell jurors that reasonable doubt is "a fair doubt, based upon the testimony, reason and common sense." (Id. at p. 772.) The California Supreme Court disapproved of that holding and stated that the instruction "should not be considered erroneous, although it is not as full and possibly not as clear as the instruction usually given." (Id. at p. 775 [opinion re: a "petition to have the cause heard in the supreme court"], citing People v. White (1897) 116 Cal. 17 (White) and People v. Shaughnessy (1895) 110 Cal. 598.) In White, supra, the high court ruled that an instruction partially defining reasonable doubt as "a fair doubt growing out of the evidence, or want of evidence, in the case, based upon reason and common sense ..." was "free from error." (116 Cal. 17, syllabus and p. 19.) We are therefore obligated, under the doctrine of stare decisis, to reject Coleman's claim. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
DISPOSITION
The judgment is affirmed.
/s/_________
GOMES, Acting P.J. WE CONCUR: /s/_________
FRANSON, J. /s/_________
MEEHAN, J.