Opinion
A150687
11-19-2018
THE PEOPLE, Plaintiff and Respondent, v. CORY MARQUIS CRAIN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. FCR323750)
A jury found defendant Cory Marquis Crain guilty of second degree robbery. Crain raises two claims of instructional error. He contends the trial court erred, first, in failing to give his proposed pinpoint instruction on robbery and, second, in failing to give a unanimity instruction sua sponte.
Crain also asks this court to review the trial court's determination that the victim's personnel records contained no discoverable evidence, and the Attorney General does not object. We have reviewed the personnel records and find no error.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Prosecution's Case
Jacob Cantrell worked as a loss prevention agent at a Home Depot in Vacaville. Around 2:00 p.m. on August 26, 2016, a Home Depot employee in the garden department alerted Cantrell to Crain. Cantrell began watching Crain and observed him take two items of Home Depot merchandise (a pond pump and a pond pump filter) and conceal them in a reusable shopping bag he was carrying on his shoulder. The value of the two items was $148.91.
Crain then walked to the lumber section of the store, stopped at a gift card stand, and went to a register to pay for a gift card. Crain exited the store without paying for the merchandise in his bag. Cantrell approached Crain outside the store and identified himself as "loss prevention." Crain was immediately hostile and said to Cantrell, "You better not fucking touch me, white boy. You touch me, I'm going to knock you out." Cantrell responded that all he wanted was the merchandise. He told Crain, "I'll write up and get you out of here."
Cantrell felt scared and was concerned Crain might hit him. Crain made a fist with one hand. Cantrell grabbed Crain's arm to try to escort him back to the store, and Crain hit him. Crain positioned himself in a fighting stance when Cantrell grabbed him. At this point, Crain still had the reusable bag on his shoulder. There was a struggle, and Cantrell and Crain ended up on the ground. Crain hit Cantrell five to seven times in the face, mouth, neck, and head. Cantrell tried to get Crain under control and tried to place him in handcuffs. While Cantrell and Crain were on the ground, Crain hit Cantrell and then started choking him. Cantrell felt like he was going to pass out.
Two Home Depot employees ran over to help Cantrell. They helped get Crain off Cantrell and place Crain in handcuffs. A short time later, the Vacaville police arrived. The reusable bag with the stolen merchandise was on the ground where Cantrell and Crain were fighting. Cantrell did not recall exactly when Crain lost possession of the bag, but it was "[s]ometime in the fight."
As a result of the confrontation, Cantrell had cuts on his knees and hands, a fat lip, and bumps on the head and neck.
Defense
The defense called Vacaville Police Officer Aaron Potter, who responded to Home Depot on the afternoon of August 26, 2016. Potter spoke with Cantrell, who told him that Crain backed away from Cantrell and told him "don't touch me." Cantrell did not tell Potter that Crain was in a "fighting stance." Cantrell told Potter Crain was aggressive and hostile from the moment Cantrell contacted him. Cantrell said Crain made threats not to touch him, reportedly saying, "I'll beat your fucking ass, white boy." Potter asked Cantrell how he and Crain ended up on the ground, and Cantrell told him "he believed he put his hands on [Crain] to try to control him and next thing he knew, they were fighting." Cantrell admitted to Potter he thought he may have thrown a punch at Crain but he wasn't certain.
In closing argument, defense counsel conceded that Crain shoplifted from Home Depot but asserted he did not commit robbery. She argued Cantrell was the initial aggressor; Crain was only trying to get away from him when he used force, "[b]ut he did not intend to take the property when he used force." Defense counsel urged the jury to consider the location of Crain's bag during the time Crain allegedly used force against Cantrell and suggested Crain had abandoned the property by the time he first used force against Cantrell. She told the jury, "If you're trying to take the property, you're not going to abandon it. And Mr. Crain did just that."
Verdict and Sentence
Crain was charged with second degree robbery (Pen. Code, § 211; count 1) and assault by means likely to produce great bodily injury (id., § 245, subd. (a)(4); count 2). The jury found him guilty of count 1 and could not reach a verdict on count 2. The trial court declared a mistrial as to count 2 and later dismissed the charge on the prosecution's motion. In a bifurcated proceeding, the trial court found Crain had served a prior prison term (Pen. Code, § 667.5, subd. (b)). Crain was sentenced to six years in prison.
DISCUSSION
A. Failure to Give Crain's Proposed Pinpoint Instruction on Robbery
1. Background
Before trial, Crain requested a pinpoint instruction to be added to the end of CALCRIM No. 1600 on robbery. His proposed instruction provided, "The application of force or fear must be used when taking the property or when carrying it away."
The parties went over the jury instructions with the trial court in chambers in an unreported discussion, and the court chose to give a pinpoint instruction offered by the prosecution instead of Crain's proposed pinpoint instruction. This instruction read, "A robbery occurs when defendant uses force or fear in resisting attempts to regain the property or in attempting to remove the property from the owner's immediate presence regardless of the means by which defendant originally acquired the property. [¶] People v. Estes (1983) 147 Cal.App.3d 23, 27-28."
On the record the next day, defense counsel renewed her request for Crain's proposed pinpoint instruction, arguing it was derived from Estes, supra, 147 Cal.App.3d at pages 27-28.
The trial court compared Crain's proposed instruction with the pinpoint instruction it had decided to give. Addressing defense counsel, the court said the two proposed pinpoint instructions "basically say the same thing; don't they?" The discussion continued as follows.
"[Defense counsel]: I think it's a little different. I mean, it's one sentence. I would just ask that it be added. I think it's a little more clear as to
"THE COURT: The one that I've chosen is the robbery occurs when Defendant uses force or fear in resisting attempts to regain the property or in attempting to remove the property from the owner's immediate presence[], regardless of the means by which the defendant originally acquired the property. [¶] That's from People versus Estes.
"[Defense counsel]: Right. So that was the prosecutor's request. My request is that it be added to the
"THE COURT: Read yours.
"[Defense counsel]: I'm sorry. [¶] 'The application of force or fear must be used with taking the property or carrying it away.' . . .
"THE COURT: Your comments?
"[Prosecutor]: I actually think that that is taken somewhat out of context and that . . . my instruction is more clear and on point and covers the totality of the circumstances."
"THE COURT: All right. We'll note your objection, but we'll use the one that's inserted in the packets at this time. Other than that, there's no objection?
"[Defense counsel]: To the rest of the instructions, no."
At the close of evidence, the trial court read the jury the following instructions on robbery (CALCRIM No. 1600 and the prosecution's pinpoint instruction). "The defendant is charged in Count One with·robbery, a violation of Penal Code section 211. . . . [T]o prove that the defendant is guilty of·this crime, the people must prove that, one, the·defendant took property that was not his own; two, the·property was in the possession of another person; three, the property was taken from the other person or his·immediate presence; four, the property was taken against·the person's will. And, five, the defendant used force·or fear to take the property or to prevent the person from resisting. And, six, when the defendant used force or fear to take the property, he intended to deprive the owner of it permanently or to remove it from the owner's possession so an extended period of time that the owner would be deprived of a major portion of the value or enjoyment of the property.
"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 the force or fear, he did not commit·robbery. If . . . you find the defendant guilty of robbery, it is robbery in the second degree.
"A person takes something when he or she gains possession of it and moves it some distance. The distance moved may be short. The property taken can be of any value however slight.
"Two or more people may possess something at the same time. A store or business employee who is on duty·has possession of the store or business owner's property. Fear [as used here] means fear of injury to the person himself, or herself, or property. Property is within the person's immediate presence if it is sufficiently within·his or her physical control, and that he or she could·keep possession if not prevented by force or fear.
". . . An act is done against a person's will if that person does not consent with that act. In order to consent, the person must act freely and voluntarily know the nature of the act. . . .
"A robbery occurs when the defendant uses force or fear in resisting attempts to regain the property, or·an attempt to remove the property from the owner's immediate presence, regardless of the means by which the·defendant originally acquired the property." (Italics added.)
(We note that either the reporter mistranscribed what the trial court read or the trial court misread the written pinpoint instruction given to the jury, which provided, "A robbery occurs when defendant uses force or fear in resisting attempts to regain the property or in attempting to remove the property from the owner's immediate presence . . . ." (Italics added.) "To the extent a discrepancy exists between the written and oral versions of jury instructions, the written instructions provided to the jury . . . control[s]." (People v. Wilson (2008) 44 Cal.4th 758, 803.))
2. Analysis
Crain contends the trial court erred in refusing to give his proposed pinpoint instruction because the proffered instruction was a correct statement of law. We conclude the trial court did not err because Crain's proposed pinpoint instruction was duplicative of the instructions the court already intended to give.
"A trial court must instruct the jury, even without a request, on all general principles of law that are ' "closely and openly connected to the facts and that are necessary for the jury's understanding of the case." [Citation.] In addition, "a defendant has a right to an instruction that pinpoints the theory of the defense." ' [Citation.] The court may, however, 'properly refuse an instruction offered by the defendant if it incorrectly states the law, is argumentative, duplicative, or potentially confusing [citation], or if it is not supported by substantial evidence.' " (People v. Hovarter (2008) 44 Cal.4th 983, 1021.)
"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.) " 'Taking' [for purposes of section 211] . . . has two aspects: (1) achieving possession of the property, known as 'caption,' and (2) carrying the property away, or 'asportation.' [Citations.] Although the slightest movement may constitute asportation [citation], the theft continues until the perpetrator has reached a place of temporary safety with the property." (People v. Gomez (2008) 43 Cal.4th 249, 255 (Gomez).) Since a theft "continues through asportation," "a robbery can be accomplished even if the property was peacefully or duplicitously acquired, if force or fear was used to carry it away." (Id. at p. 256.)
In People v. Cooper (1991) 53 Cal.3d 1158, 1165, our high court held "asportation is not confined to a fixed point in time" and "continues thereafter as long as the loot is being carried away to a place of temporary safety." In a footnote, the court observed, "This reasoning is consistent with a long line of Court of Appeal cases, left undisturbed by this court, holding that mere theft becomes robbery if the perpetrator, having gained possession of the property without use of force or fear, resorts to force or fear while carrying away the loot." (Id. at p. 1165, fn. 8, citing among other cases, Estes, supra, 147 Cal.App.3d at pp., 27-28, italics added.)
In Estes, the defendant entered a Sears, put on a coat and vest that were for sale and walked out of the store without paying for the merchandise. A security guard followed the defendant outside the store, identified himself, and confronted the defendant about the stolen merchandise. The defendant walked away, and the security guard "attempted to detain him." The defendant then pulled out a knife, swung at the security guard, and threatened to kill him. (Estes, supra, 147 Cal.App.3d at p. 26.)
The Estes defendant argued these facts did not establish he committed a robbery because the merchandise was not taken from the "immediate presence" of the security guard. Rejecting this argument, the Court of Appeal explained, "A robbery is not completed at the moment the robber obtains possession of the stolen property. The crime of robbery includes the element of asportation, the robber's escape with the loot being considered as important in the commission of the crime as gaining possession of the property. . . . [A] robbery occurs when defendant uses force or fear in resisting attempts to regain the property or in attempting to remove the property from the owner's immediate presence regardless of the means by which defendant originally acquired the property." (Estes, supra, 147 Cal.App.3d at pp. 27-28, italics added.)
The written pinpoint instruction the trial court chose to give in this case is the italicized phrase we have quoted from Estes. Crain does not dispute that this pinpoint instruction is a correct statement of the law, but he claims the robbery instructions given (CALCRIM No. 1600 and the prosecution's pinpoint instruction) "fail to address the critical issue in this case."
Crain argues, "a robbery could only be established if either force or fear was used to retain the property." (Italics added.) Crain's defense theory at trial was that he "had abandoned the property and was trying to flee when Cantrell grabbed him and tried to drag him back to the store." Crain claims the instructions given were inadequate because "the issue for the jury was the legal significance of whether [Crain] dropped or surrendered the property during the confrontation. In short, the instructions failed to address the relationship of that conduct to the subsequent use of force required for robbery." He argues, "Without further instruction, CALCRIM No. 1600 and the special instruction allowed the jury to find [him] guilty of robbery based on the use of force or fear against Cantrell during the pursuit. It allowed a guilty verdict without any finding that [Crain] used force or fear with the intent to retain the property or prevent its recovery by Cantrell."
We disagree. As part of CALCRIM No. 1600 (element six), the jury was specifically told that to find Crain committed robbery, it had to find "when the defendant used force of fear to take the property, he intended to deprive the owner of it permanently or to remove it from the owner's possession . . . ." Thus, the jury was told that Crain had to possess the requisite intent at the time he used force or fear.
With the pinpoint instruction, the jury was also instructed that a "robbery occurs when defendant uses force or fear in resisting attempts to regain the property or in attempting to remove the property from the owner's immediate presence regardless of the means by which defendant originally acquired the property." This instruction correctly conveyed that a robbery could only be established if the force or fear were used to retain the stolen property. Following the pinpoint instruction, the jury could not find Crain committed robbery based on a mere finding that Crain used force or fear in an effort to get away; the jury could only find Crain guilty if it found that he used force or fear "in resisting attempts to regain the property or in attempting to remove the property from the owner's immediate presence." (Italics added.)
Crain's proposed pinpoint instruction adds nothing to the instructions given. He wanted the trial court to tell the jury, "The application of force or fear must be used when taking the property or when carrying it away." But this principle was adequately stated by CALCRIM No. 1600 and the pinpoint instruction given. The jury was told that it had to find "[t]he defendant used force or fear to take the property or to prevent the person from resisting," and CALCRIM No. 1600 explained that "tak[ing] property" refers to both "gain[ing] possession of it and mov[ing] it some distance." The pinpoint instruction given further explained that the jury could find Crain guilty of robbery if it found he used force or fear in attempting to retain the property even if the property was initially acquired without the use of force or fear. Crain's proposed pinpoint instruction was, at best, duplicative of these instructions. (See People v. Hovarter, supra, 44 Cal.4th at p. 1021.) Accordingly, the trial court did not err in declining to give Crain's proposed pinpoint instruction. (See People v. Harris (2013) 57 Cal.4th 804, 854 ["[T]he court did not err by not giving the jury the proposed instruction. The court's other instructions on reasonable doubt and burden of proof adequately conveyed this argument, and therefore defendant's proposed instruction was duplicative."].) B. Failure to Give a Unanimity Instruction Sua Sponte
At worst, Crain's proposed pinpoint instruction was confusing and imprecise. The jury was correctly told that the term "taking" for purposes of determining whether a robbery occurred has two aspects: gaining possession of the property (caption) and moving the property (asportation). (See Gomez, supra, 43 Cal.4th at p. 255.) Crain's proposed language risked confusing the jury regarding the definition of "taking" by stating the "force or fear must be used when taking the property or when carrying it away." (Italics added.) More precisely, the use of force or fear must be used when either acquiring the property or carrying it away, and the "taking" of property encompasses both acquisition and carrying away.
Given our conclusion that Crain's proposed pinpoint instruction was duplicative of the instructions given, we also reject his derivative constitutional claims that the trial court's refusal to give his proposed instruction violated his rights to due process, to present a defense, and to a fair trial. (E.g., People v. Coffman and Marlow (2004) 34 Cal.4th 1, 84 [where state-law claim of error fails, "derivative claims of constitutional error likewise fail"].) In this case, defense counsel cross-examined Cantrell and the other prosecution witnesses, presented a witness in defense, and vigorously argued the defense theory that Crain did not commit robbery because he abandoned the stolen property before he used force with Cantrell. The refusal to give Crain's proposed pinpoint instruction did not infringe on his constitutional rights.
Next Crain argues the trial court erred "by failing to sua sponte instruct the jury that it must unanimously agree as to the act which constituted the robbery when the prosecutor relied on three separate acts to prove the robbery charge." (Bolding and capitalization omitted.) This argument is without merit.
"In a criminal case, a jury verdict must be unanimous. [Citations.] . . . Therefore, cases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act." (People v. Russo (2001) 25 Cal.4th 1124, 1132 (Russo).)
"This requirement of unanimity as to the criminal act 'is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed.' [Citation.] . . . 'The [unanimity] instruction is designed in part to prevent the jury from amalgamating evidence of multiple offenses, no one of which has been proved beyond a reasonable doubt, in order to conclude beyond a reasonable doubt that a defendant must have done something sufficient to convict on one count.' " (Russo, supra, 25 Cal.4th at p. 1132.)
"On the other hand, where the evidence shows only a single discrete crime but leaves room for disagreement as to exactly how that crime was committed or what the defendant's precise role was, the jury need not unanimously agree on the basis or, as the cases often put it, the 'theory' whereby the defendant is guilty. [Citation.] The crime of burglary provides a good illustration of the difference between discrete crimes, which require a unanimity instruction, and theories of the case, which do not. Burglary requires an entry with a specified intent. (Pen. Code, § 459.) If the evidence showed two different entries with burglarious intent, for example, one of a house on Elm Street on Tuesday and another of a house on Maple Street on Wednesday, the jury would have to unanimously find the defendant guilty of at least one of those acts. If, however, the evidence showed a single entry, but possible uncertainty as to the exact burglarious intent, that uncertainty would involve only the theory of the case and not require the unanimity instruction. (Russo, supra, 25 Cal.4th at pp. 1132-1133.)
Here, the prosecutor argued Crain engaged in three separate acts that constituted the "use of force or fear" necessary to turn his theft into a robbery. First, she argued, Crain used fear when he threatened Cantrell by telling him, "I'll knock you out." Second, he used fear when he took a fighting stance. Third, Crain used force when he physically attacked Cantrell during the fight.
The prosecutor argued Crain did not stop with threats. "What does he do? He squares off and takes a fighting stance. Not only am I going to threaten you, but I'll resort to physical assault if I need to. He took his fighting stance. Mr. Cantrell was even more concerned for his safety at this time, because not only were threats being made, but the defendant was actually doing an action to carry through his threats." --------
Under the prosecution's theory, the evidence showed only a single discrete crime of robbery but left room for disagreement as to how exactly the crime was committed (that is, when and how Crain used force or fear to retain the stolen property). In these circumstances, the jury was not required to "unanimously agree on the basis or . . . 'theory' whereby the defendant is guilty." (Russo, supra, 25 Cal.4th at p. 1132.) The possible uncertainty as to when and how Crain used force or fear to retain the property is analogous to the uncertainty as to "the exact burglarious intent" in the second example of burglary described in Russo, an uncertainty that "would involve only the theory of the case and not require the unanimity instruction." (Id. at p. 1133.) Thus, the trial court was under no obligation to give a unanimity instruction in this case. C. Cantrell's Employment Records
Before trial on October 5, 2016, Crain subpoenaed Cantrell's personnel records from Home Depot. The same day, Home Depot filed a response objecting to the subpoena and requesting a hearing. Home Depot argued, among other things, that good cause was not shown and employment information is protected by a constitutional right to privacy. Two days later, Home Depot submitted certain records for the trial court to review in camera. After reviewing the records, the court found there were no records to disclose. At a hearing on October 17, 2016, the court stated, "And just on the record, I did review the Home Depot records. There was nothing to disclose of evidentiary value."
Crain "requests that this court independently review the sealed transcript to determine if the trial court erred when it withheld documents contained in Jacob Cantrell's personnel file." (Bolding and capitalization omitted.) The Attorney General does not object to the court's independent review of the personnel records.
"When a defendant has issued a subpoena to a person or entity that is not a party for the production of books, papers, documents, or records, or copies thereof, the court may order an in camera hearing to determine whether or not the defense is entitled to receive the documents." (Pen. Code, § 1326, subd (c).)
" '[R]elevant information' in the hands of a private non-party witness is subject to a subpoena duces tecum in a criminal case. . . . [H]owever, the criminal defendant would be required to make a stronger showing of need for the private employer's documents [than necessary for a Pitchess motion] in order to overcome the objection that such discovery constituted an unreasonable search or seizure." (People v. Superior Court (McKunes) (1976) 62 Cal.App.3d 853, 857-858.)
"A motion for discovery by an accused is addressed to the sound discretion of the trial court, which has inherent power to order discovery in the interests of justice." (Hill v. Superior Court (1974) 10 Cal.3d 812, 816.) "An accused, however, is not entitled to inspect material as a matter of right without regard to the adverse effects of disclosure and without a prior showing of good cause. 'In criminal cases, the trial court retains wide discretion to protect against the disclosure of information which might unduly hamper the prosecution or violate some other legitimate governmental interest. [Citations.] Additionally, the court has discretion to deny discovery in the absence of a showing which specifies the material sought and furnishes a 'plausible justification' for inspection." (Id. at p. 817.)
Here, we have reviewed the personnel records provided by Home Depot, and we find no abuse of discretion in the trial court's finding that they contained no discoverable evidence.
DISPOSITION
The judgment is affirmed.
/s/_________
Miller, J. We concur: /s/_________
Kline, P.J. /s/_________
Stewart, J.