Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 08F00673.
SIMS, Acting P. J.
A jury convicted defendants India Collins and Troy Hodges of robbery, and found true enhancement allegations that Hodges had served five prison terms. (Pen. Code, §§ 211, 667.5, subd. (b).) The trial court sentenced Hodges to the upper term of five years in prison for robbery, and enhanced his sentence by three years for three prior prison terms, after finding that two of the prison terms had not been served separately. The trial court suspended imposition of sentence for Collins and placed her on probation. Both defendants filed timely appeals.
Defendants contend the trial court misinstructed the jury in two ways. First, they contend the trial court failed to give a unanimity instruction. We shall conclude no unanimity instruction was required. Second, they contend the trial court failed to instruct the jury to consider the guilt of each defendant separately. We agree the trial court should have given such an instruction, but we shall conclude the error was harmless. We shall affirm the judgments.
BACKGROUND
The evidence indicates this was a honeytrap robbery: Collins lured the victim into a compromising position, and Hodges, playing the outraged boyfriend, burst in and robbed him.
In December 2007, Hendricks Onwuazo, the victim, used Craigslist to locate a massage therapist, and responded to an advertisement posted by Collins. Collins’ ad, in the “erotic” services category, offered a “full body [sensual] massage” with a “happy ending, ” in which she might remove her top and the customer was free to touch her, but Onwuazo testified he did not plan to have sex with her and that to him, “happy ending” meant “enhance sexual energy, ” but the ad stated “no full service, ” meaning no intercourse or oral sex. Onwuazo later conceded a “happy ending” could be masturbation. Onwuazo had seen a similar ad Collins had placed on the “Redbook” website, both before he had his first massage and after the robbery. She offered a “basic” massage for $65 and an erotic massage for $100, which Onwuazo understood was “more sexy, which means she will have her underwear without a top.”
Onwuazo called Collins several times after he had had a massage in December 2007, to try to schedule another one. He finally arranged to have a second massage on January 3, 2008. He was employed by Caltrans, but left work around 11:00 a.m. and took the rest of the day off.
Onwuazo brought $140 to Collins’ apartment, but left his wallet-with $300 in it-locked in the glove compartment of his car. After he paid Collins $100 and undressed, she excused herself. She returned in her underwear, with no top or bra, and massaged his feet. After about 10 minutes, the phone rang. Collins took the call in another room, then continued with the massage. About five minutes later, defendant Hodges came in.
Hodges was “kind of menacing and threatening” and told Onwuazo to be quiet or Hodges would bust his teeth. Onwuazo was scared. Hodges took the remaining $40 from Onwuazo’s pants. Hodges also took Onwuazo’s car keys, gave them to Collins, and told her to get Onwuazo’s wallet from his car. Hodges did not threaten Collins and she did not appear to be scared. When Collins left, Hodges continued to threaten Onwuazo
Onwuazo asked to go to the bathroom, then tried to flee, but Hodges blocked him. Onwuazo heard other tenants nearby, so he began to speak loudly, which made Hodges apprehensive. This emboldened Onwuazo, who told Hodges “don’t touch me because I’m going to call police. Don’t touch me.” Then Onwuazo dashed from the apartment in his underwear.
Onwuazo ran toward his car and saw that Collins was by his car door with his car keys in one hand and his wallet in the other. He grabbed for his wallet but she pulled away, leaving her jacket in his grasp. Onwuazo then saw Hodges running toward him, and Onwuazo ran toward the apartment office and asked a woman to call the police.
While waiting for the police, Onwuazo went to check on his car, and he saw Collins and Hodges on a second floor balcony. Collins threw down a bag, stating “these are your things.” Onwuazo found his clothes and car keys in the bag, but when he asked Collins where his wallet was, she said “there’s no wallet.” Onwuazo returned to the apartment office and got dressed before the police arrived.
Later that afternoon, Collins called Onwuazo and said she did not want the problem to escalate and he could retrieve his wallet. Onwuazo told her he had already filed a formal complaint so she should take it either to the police station or to the apartment office, but she refused and said he should get it from her. She called him once again but he hung up. He eventually received his wallet, without the money that had been in it.
When he spoke to the police, Onwuazo did not mention that he touched Collins’ breasts during the first massage or that he had called her repeatedly between the two massages. Although he denied any intent to have sexual contact, he admitted touching Collins on the breasts, and admitted that her ad made erotic references.
Onwuazo testified he sent the police an e-mail on January 11, 2008, giving more details about what happened, including providing information about an unauthorized charge made to his ATM card.
The property manager for the apartment complex to which Onwuazo went for his massage testified that Collins and her children were on the lease, but she also saw a man with Collins on various occasions. The manager was in the apartment office when Onwuazo ran in, panicked, wearing his underwear and a woman’s jacket, and asked her to call 911.
Officer John Tennis was dispatched to the apartment complex about 1:45 that afternoon. Onwuazo “seemed upset.” From the property manager, Officer Tennis learned there was a vehicle registered to Hodges associated with Collins’ apartment, as well as a vehicle associated with Collins. After checking the apartment, Officer Tennis returned to the office, where Onwuazo had logged on to the Internet. Onwuazo showed him the massage ads, which the officer copied.
Detective Christina Mortenson testified she searched Collins’ apartment on January 16, 2008, and found court papers in Hodges’ name, as well as two laptops. Richard Gilleland, a “computer forensic examiner, ” testified those laptops had accessed both Craigslist and Redbook.
Collins testified she was a certified massage therapist, and admitted the Craigslist ad was hers. The more expensive massage involved “a happy ending by stroking the man’s penis” until ejaculation. She did not provide “full service, ” meaning intercourse. Onwuazo called her on December 15, 2007, and again the following day to make an appointment for a massage. She claimed she kept her bra on and he was naked, although Onwuazo had claimed he kept his underwear on both times. She gave Onwuazo a massage and then masturbated him until he ejaculated. Onwuazo never touched her breasts. He called her several times, but she either did not pick up his calls or told him she was ill, until she finally made an appointment with him when he called on January 3, 2008. She had never told Onwuazo not to call her.
Collins testified that at the time of the second massage on January 3, 2008, Hodges was out running an errand for Collins’ mother. Onwuazo was naked on the table and she wore a bra and underwear. Onwuazo made Collins uncomfortable by turning and wanting to talk, so she took a phone call from her cousin as an excuse to leave the room. When she continued the massage, Onwuazo told Collins that she should meet other “girls” on Craigslist to learn how to do “a more sexual massage, he wanted a more body to body massage” and he “wanted full service.” Onwuazo rose from the table and tried to grab her. As she remonstrated with him, Hodges, her boyfriend at the time, burst in. Collins was scared. Hodges was very angry and told Onwuazo that he was asking for more than he was entitled to, and he demanded that Onwuazo identify himself. When Onwuazo did not comply, Hodges took Onwuazo’s keys from his pants. At this point, Collins was scared of both men, and when Hodges told her to take Onwuazo’s keys and find his wallet, she complied. As she was returning with Onwuazo’s wallet, Onwuazo ran toward her and tried to tackle her, which frightened her, so she continued to her apartment and gave Hodges the wallet. She put Onwuazo’s clothes into a bag, but was too scared to ask Hodges for the wallet. When she saw Onwuazo again, she tossed him the bag and told him Hodges had the wallet. She later retrieved the wallet from Hodges and called Onwuazo, but because Onwuazo refused to meet with her, she took Onwuazo’s wallet to his apartment complex and put it in a drop box.
Collins denied planning to rob Onwuazo On cross-examination, she admitted lying to Detective Curtin about whether she performed massages or advertised on the Internet, about her cell phone number, and about whether she knew Onwuazo She also admitted that she sometimes agreed to take off her bra.
Hodges did not testify.
The prosecutor conceded Onwuazo had not admitted his erotic intent, but argued Onwuazo’s testimony about the robbery was credible. The prosecutor emphasized Collins’ many lies, and the fact that both defendants acted together. At one point, the prosecutor referred to Hodges being upstairs “while Miss Collins is committing the robbery downstairs, ” but later stated “we also have the taking of the property up in the room; right. We have a whole course of this robbery totaling just one act.” The prosecutor argued it did not matter whether the robbery had been planned from the beginning.
Collins’ counsel argued that Onwuazo told inconsistent stories to the police, at the preliminary hearing, and at trial, and lacked credibility. Onwuazo made up the robbery story to cover up his attempt to sexually assault Collins-an assault that Hodges fortuitously prevented. Counsel conceded Collins lied to the police, but argued she was scared because she was a prostitute and the police had already made up their minds to charge her with robbery. Counsel argued that Collins obeyed Hodges’s order to get Onwuazo’s wallet because she was afraid and wanted to ascertain Onwuazo’s identity, not because she intended to rob Onwuazo of his wallet.
Hodges’ counsel argued both Onwuazo and Collins lied. Collins and Onwuazo were engaging in prostitution, and there was no credible evidence that Hodges knew what they were doing or planned to participate in a robbery; he simply came on the scene and discovered his girlfriend in a compromising position with a strange man, and became angry. Onwuazo ran out of the room in his underwear, out of fear of an apparently jealous boyfriend, and made up the claim that his money was taken.
The jury convicted both defendants of robbery, as charged.
DISCUSSION
I.
Defendants contend the trial court should have given a unanimity instruction, that is, an instruction stating that all of the jurors had to agree on the same act committed.
For example, CALCRIM No. 3500 provides in part: “The People have presented evidence of more than one act to prove that the defendant committed this offense. You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act (he/she) committed.”
“A requirement of jury unanimity typically applies to acts that could have been charged as separate offenses. [Citations.] A unanimity instruction is required only if the jurors could otherwise disagree which act a defendant committed and yet convict him of the crime charged.” (People v. Maury (2003) 30 Cal.4th 342, 422-423.)
However, “When two offenses are so closely connected in time that they form part of one transaction, no unanimity instruction is required. [Citation.] Similarly, when a prosecutor elects to rely on multiple acts in a continuous course of conduct as one crime, no unanimity instruction is required.” (People v. Lopez (2005) 129 Cal.App.4th 1508, 1533-1534 (Lopez); disagreed with on another point by People v. Lacefield (2007) 157 Cal.App.4th 249, 258-259.)
The charged offense was robbery. Defendants contend the record discloses two separate acts that could support a robbery conviction: First, Hodges took money and keys from Onwuazo’s pants pocket; second, Collins took Onwuazo’s wallet from the glove compartment of Onwuazo’s car.
We disagree, and conclude both acts were part of a continuous transaction comprising one robbery.
“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.” (Pen. Code, § 211.)
Generally, “When a defendant steals multiple items during the course of an indivisible transaction involving a single victim, he commits only one robbery or theft notwithstanding the number of items he steals. [Citations.] Further, a robbery continues until the defendant has escaped with the stolen goods and has reached a place of temporary safety. [Citation.] Thus, a defendant who applies force with the intent to steal, has committed one robbery notwithstanding the number of items he steals during an indivisible transaction, until he has reached a place of safety.” (People v. Brito (1991) 232 Cal.App.3d 316, 326, fn. 8.)
In People v. Haynes (1998) 61 Cal.App.4th 1282 (Haynes), the court rejected a unanimity claim where the evidence showed two instances when, technically, it might have been said a robbery occurred. The incident “consisted of two encounters. In the first, the robber struggled with [the victim] in a parking lot, through [the victim]’s open car window, and took part of the cash when it tore in half as [the victim] drove away. Defendant arrived during this time and kicked [the victim]’s passenger side window. [The victim] then left the lot, and defendant followed, the robber now his passenger, and brought [the victim] to a stop some blocks away. There the robber struggled with [the victim] a second time, getting the rest of the cash, and defendant drove the robber away.” (Id. at p. 1286.)
The Haynes court rejected a claim that a unanimity instruction had been required: “The two encounters were just minutes and blocks apart and involved the same property. The acts were successive, compounding, part of a single objective of getting all the victim’s cash, charged as a single robbery, and arguably barred from multiple punishment by Penal Code section 654. Plus, none of the loot was carried away to a place of temporary safety until all of it was obtained.” (Haynes, supra, 61 Cal.App.4th at p. 1296; see People v. Turner (1983) 145 Cal.App.3d 658, 668, 681 [unanimity instruction not needed; Turner took money and jewelry from victim, then drove her to another location and eventually took her car; “Although Turner’s driving off with the car occurred after the taking of the other items, it was part of one course of continuous conduct all occurring within a brief period of time against a single victim”], disapproved on other points by People v. Majors (1998) 18 Cal.4th 385, 411 and People v. Newman (1999) 21 Cal.4th 413, 415, 422-423, fn. 6, and disagreed with as to harmless error by People v. Smith (2005) 132 Cal.App.4th 1537, 1545-1546 & fn. 9.)
Although Hodges first took Onwuazo’s cash and keys out of his pants pocket, and then gave Onwuazo’s keys to Collins, who took Onwuazo’s wallet out of his car, these acts were moments apart and were directed against one victim. They formed part of one robbery that spanned the entire course of conduct. On these facts, the trial court was not required to give a unanimity instruction. (See Lopez, supra, 129 Cal.App.4th at pp. 1533-1534.)
People v. Davis (2005) 36 Cal.4th 510 (Davis), cited by defendants, is distinguishable. Davis and accomplices intended to steal a car to use to commit a robbery. They killed the alleged owner of the car, Harris, and Harris’s companion, Boyd. At some point, the killers took Boyd’s jewelry. (Id. at pp. 517-518, 519-520, 559-561.) The prosecutor argued defendant could be found guilty of robbing Boyd based on the taking of the car or the taking of her jewelry. (Id. at p. 559.)
Based on the evidence and prosecutorial argument in that case, the California Supreme Court reversed the robbery conviction for lack of a unanimity instruction. (Davis, supra, 36 Cal.4th at pp. 560-562.) “The evidence disclosed two distinct takings: the taking of Harris’s car from Boyd and Harris, and the taking of Boyd’s rings from her person. Moreover, the prosecutor argued that the jury could rely on either theory to convict defendant of the robbery of Boyd.” (Id. at p. 561.) There was a rational basis for the jury to divide on which act was a robbery, because some jurors might have had a doubt whether Boyd was alive when her jewelry was taken and others might have had a doubt about whether she possessed Harris’s car. (Ibid.) The court rejected the People’s claim of a “continuous transaction” robbery, because “the potential defenses to the two acts of robbery were entirely different: as to the car, the defense was that Boyd was not legally in possession of it; as to the rings, the defense was that its taking constituted only the lesser included crime of theft” because Boyd had already been killed before her jewelry was taken, and taking property from a corpse is not robbery, only theft. (Id. at pp. 561-562.)
Here, although Collins presented a different defense than Hodges, neither defendant presented “entirely different” defenses to the allegedly separate takings committed by that defendant. Hodges argued both Collins and Onwuazo lied, and there was no robbery. Collins argued she had not planned any robbery, and complied with Hodges’ order to take Onwuazo’s wallet because she was afraid. On these facts, there was no “reasonable basis for the jury to distinguish between” the two acts. (People v. Stankewitz (1990) 51 Cal.3d 72, 100; see People v. Riel (2000) 22 Cal.4th 1153, 1199 (Riel) [assuming there were two distinct robberies, no evidence from which the jury could find Riel was guilty of one but not the other].) Put another way, as to each defendant, this was not a case where it was plausible that “‘“there is no single offense which all the jurors agree the defendant committed, ”’” which is the danger sought to be avoided by a unanimity instruction. (People v. Norman (2007) 157 Cal.App.4th 460, 464-465 (Norman).) We shall explain.
As for Hodges, it is implausible to conclude that any juror who believed Hodges intended to steal the money and keys from Onwuazo’s pants would not also believe that he instructed Collins to steal Onwuazo’s wallet. And it is implausible to conclude that any juror who believed Hodges aided Collins in stealing Onwuazo’s wallet from Onwuazo’s car would not also believe that Hodges took Onwuazo’s keys and wallet from Onwuazo’s pants pocket with the intent to steal. There was no rational basis to divide on Hodges’ guilt.
As for Collins, she argues some jurors might have based liability on aiding Hodges in taking the car keys and money from Onwuazo’s pants, while others relied on the taking of Onwuazo’s wallet from Onwuazo’s car. We disagree in part. The only plausible construction of the evidence shows that all 12 jurors must have concluded Collins robbed Onwuazo of his wallet.
Suppose half of the jurors believed Collins aided Hodges in taking the keys and money from Onwuazo’s pants, that is, that Collins was in on the robbery from the beginning. There was no plausible basis in the evidence for any of these hypothetical jurors not to believe that Collins willingly obeyed Hodges and stole Onwuazo’s wallet from Onwuazo’s car. Thus, the hypothetical jurors who believed Collins helped rob Onwuazo of his keys and money would also conclude Collins robbed Onwuazo of his wallet.
Suppose the other half of the hypothetical jurors believed Collins did not help Hodges take Onwuazo’s keys and money, that is, believed Collins was not in on the robbery from the beginning. Because these hypothetical jurors still voted to convict Collins, they must have found she robbed Onwuazo of the wallet in his car, while Onwuazo was confined in the apartment by Hodges.
In this hypothetical, posited from Collins’ argument, the only rational outcome shows that all 12 jurors would agree Collins robbed Onwuazo of his wallet from his car. Although possibly some-but not all-also believed she helped Hodges take the money and keys from Onwuazo’s pants, this case does not raise the danger presented by a true “unanimity” problem, because all 12 jurors would still have agreed on at least one act, namely, that Collins robbed Onwuazo of the wallet. (See Norman, supra, 157 Cal.App.4th at pp. 464-465.) Thus, no unanimity instruction was required. (See Riel, supra, 22 Cal.4th at p. 1199; Haynes, supra, 61 Cal.App.4th at p. 1296.)
II.
Defendants contend the trial court should have given an instruction telling the jury to consider the guilt of each defendant separately. We agree.
For example, CALCRIM No. 203 provides in part: “You must separately consider the evidence as it applies to each defendant. You must decide each charge for each defendant separately.”
We have previously held that such an instruction should be given in cases of multiple defendants; however, we have concluded that the failure to give such an instruction will be deemed harmless where the evidence of guilt is strong. (People v. Mask (1986) 188 Cal.App.3d 450, 457.) In this case, contrary to the claims of appellate counsel, Onwuazo’s testimony implicating both defendants was strong. Although it seems clear that Onwuazo minimized his erotic intent in seeking “happy ending” massages, and minor discrepancies were revealed in the various versions he had given, the gist of his story was clear. Collins was an experienced erotic masseuse, yet claimed she became afraid of Onwuazo when he suggested a greater level of erotic services. She claimed the phone call that interrupted the massage was with a cousin, and Hodges fortuitously appeared minutes later, just in time to rescue her from Onwuazo’s improper advances. Her story about fearing Hodges made little sense, and her lies to the police about not knowing Onwuazo and not advertising or giving erotic massages further weakened her story. As stated earlier, Hodges did not testify.
In such circumstances, we reject the claim that the People’s case was not strong, or was materially stronger against one defendant than against another.
Further, “‘“we must consider the instructions as a whole... [and] assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.”’” (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088; see People v. Vang (2009) 171 Cal.App.4th 1120, 1129.) As the Attorney General argues, based on the instructions that were given, as well as common sense, a rational juror would not conclude one defendant was guilty simply because the other was. The jury was instructed it had to find defendants guilty beyond a reasonable doubt. The jury was also instructed that the People had the burden to prove “not only that the defendant did the acts charged, but also that he or she acted with a particular intent.” Further, the jury was also instructed on the effect of false statements, and was told that instruction “applies to Miss Collins only.” Separate verdict forms were used for each defendant. In such circumstances, we do not believe that there was any likelihood the jury would convict either defendant based on the strength of the case against the other defendant.
Accordingly, although the trial court should have instructed the jury to consider the guilt of each defendant separately, we conclude the error was harmless.
The recent amendments to Penal Code section 4019 do not entitle defendants to additional time credits, because they were convicted in this case of a serious felony. (Pen. Code, § 4019, subds. (b) & (c); Stats. 2009-2010, 3d Ex. Sess., ch. 28, § 50.) Robbery (Pen. Code, § 211) qualifies as a “serious” felony. (Pen. Code, § 1192.7, subd. (c)(19).)
DISPOSITION
The judgments are affirmed.
We concur: HULL, J. CANTIL-SAKAUYE, J.
As another example, CALJIC No. 17.01 provides in part: “The prosecution has introduced evidence for the purpose of showing that there is more than one [act] [or] [omission] upon which a conviction [on Count _] may be based. Defendant may be found guilty if the proof shows beyond a reasonable doubt that [he] [she] committed any one or more of the [acts] [or] [omissions]. However, in order to return a verdict of guilty [to Count _], all jurors must agree that [he] [she] committed the same [act] [or] [omission] [or] [acts] [or] [omissions]. It is not necessary that the particular [act] [or] [omission] agreed upon be stated in your verdict.”
As another example, CALJIC No. 17.00 provides in part: “You must decide separately whether each of the defendants is guilty or not guilty.”