Opinion
G057688
10-05-2020
THE PEOPLE, Plaintiff and Respondent, v. DEREK WAYNE DIXIE, Defendant and Appellant.
Stephane Quinn, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters and Susan Sullivan Pithey, Assistant Attorneys General, Michael C. Keller and Charles J. Sarosy, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 17CF2709) OPINION Appeal from a judgment of the Superior Court of Orange County, Elizabeth G. Macias, Judge. Affirmed as modified. Stephane Quinn, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters and Susan Sullivan Pithey, Assistant Attorneys General, Michael C. Keller and Charles J. Sarosy, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury convicted defendant Derek Wayne Dixie of second-degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)). The court sentenced defendant to 180 days in county jail and placed him on probation for three years.
All further statutory references are to the Penal Code.
Defendant raises two issues on appeal. First, he contends the court erred by modifying the standard robbery jury instruction related to the element of "fear" (CALCRIM No. 1600). Second, he claims the court imposed an unconstitutional probation condition restricting his association. While the jury instructions were erroneous, any error was harmless. But we agree with defendant's latter contention and modify the probation condition. In all other respects, we affirm the judgment.
FACTS
In July 2017, the manager of a retail store observed defendant enter the store with reusable shopping bags. The manager alerted the store's loss prevention officer, Omar Garcia, who watched defendant on the surveillance cameras. In addition to placing certain items in his shopping cart, defendant opened a handkerchief box, removed one of the handkerchiefs from the set, put the handkerchief in one of his bags, and placed the box back on the sales rack. He also placed a bowtie and tie in his cart. He then purchased some items, but he did not pay for the handkerchief. Garcia also did not see defendant pay for the bowtie or tie.
Garcia followed defendant outside to his car, a Mercedes, identified himself as store security, and showed an identification badge. Garcia asked defendant to come back to the store to return the items he had taken, but defendant ignored Garcia and continued placing his shopping bags inside the car. As defendant moved toward the driver's side door, Garcia told him not to get into the car, grabbed his arms, and pushed him against the car.
Defendant then freed one of his hands, opened the driver's door, and sat inside the car. Garcia still held defendant's other hand and forearm. Garcia was afraid because he did not know whether defendant had any weapons inside the vehicle and he was "just trying to control his hands." Garcia continued requesting that defendant return to the store. Defendant reversed his car, and the door hit Garcia's back, causing him to move. Garcia asked if defendant was going to run over him. Defendant responded that he was not and stopped the car. Garcia moved away from the door, and defendant eventually drove away leaving behind a bag that was beneath the car.
At trial, the prosecutor asked Garcia, "In that moment [when the car door hit you], were you frightened that, had you fallen, you would have been hurt?" Garcia responded, "Yeah. In some capacity, yes." He testified he returned to the store because he was afraid defendant might have weapons in the car and did not know what defendant would do. The prosecutor also asked if Garcia was afraid when he was talking to the 911 dispatcher. Garcia responded, "Yeah, I believe in some capacity, I'm sure because of the adrenaline still kicked in."
Defendant testified he went to the store to return items he had purchased for around $1,500. He claimed to have removed a handkerchief from a box because he had to wipe his nose. He thought he discarded the handkerchief into his bag but testified he may have left it inside the store. Regardless, he testified he did not steal anything, and if he did take anything from the store, it was unintentional. With respect to his encounter with Garcia, he testified he was frightened, did not know Garcia was a security guard, and drove off because he did not know how to get Garcia to stop.
DISCUSSION
Defendant contends the court erred by modifying the standard robbery jury instruction (CALCRIM No. 1600) to add language requested by the prosecutor. He also claims one of his probation conditions is unconstitutionally vague and overbroad. Although the court erred by adopting the prosecutor's requested instruction, the error was harmless. The court also erred by imposing an unconstitutional probation condition, and we accordingly modify the relevant probation condition. The court's modification of CALCRIM No. 1600 was not prejudicial.
Defendant argues the court erred by modifying language related to the element of "fear" in the standard robbery jury instruction. The court instructed the jury with modified CALCRIM No. 1600, which stated among other things: "No assaultive conduct, verbal threats, or weapons are required under this section. Intimidation may be used by proof of conduct, words, or circumstances reasonably calculated to produce fear. But [it] is not necessary that there be proof of actual fear, as fear may be presumed where there is cause for it." (Italics added.) Defendant claims the court erred by adding the latter sentence and instructing the jury that fear may be presumed. He claims this was an incorrect statement of the law because the People had to prove actual fear and present evidence that Garcia was in fact afraid. Given the court's modified instructions, defendant argues the instruction violated his due process rights "because it created a presumption that benefited the People by lessening their burden of proof on an element of robbery."
Instructing the jury as to how "intimidation" may be proved is a remnant from an earlier day in which former CALJIC 9.40 instructed the jury that a robbery is a taking "'accomplished either by force, violence, fear or intimidation . . . .' Section 211 refers only to a taking 'accomplished by means of force or fear'; it does not mention violence or intimidation. Courts applying the statute, however, [had] often used 'violence' as a synonym for 'force,' and 'intimidation' as a synonym for 'fear.'" (People v. Davison (1995) 32 Cal.App.4th 206, 213 (Davison).) CALCRIM No. 1600 properly uses only the statutory language "force or fear," without introducing ambiguity by adding perceived synonyms. The current version of CALJIC 9.40 does likewise.
But defendant did not challenge the instruction in the trial court proceedings. (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1163 [party forfeits challenge to instructions that correctly state the law even if the instructions are misleading in the particular case].) To the contrary, defendant's counsel said he would agree to the modified jury instructions if the court added his requested special instruction regarding the amount of force that can be used during a citizen's arrest. The court added defendant's requested instruction, and defendant's counsel agreed to the modified CALCRIM No. 1600 instructions requested by the prosecutor. We nevertheless address the merits because defendant contends the court's modification violated his constitutional rights and his trial counsel rendered ineffective assistance by failing to request a proper version of the instruction. While the court erred by modifying the instruction with the challenged language, the error was harmless. We accordingly do not address defendant's ineffective assistance of counsel claim.
"We review defendant's claims of instructional error de novo." (People v. Johnson (2009) 180 Cal.App.4th 702, 707.) "Review of the adequacy of instructions is based on whether the trial court 'fully and fairly instructed on the applicable law.'" (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) "[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction." (People v. Burgener (1986) 41 Cal.3d 505, 538, disapproved on other grounds in People v. Reyes (1998) 19 Cal.4th 743.) Where reasonably possible, we interpret the instructions to support the judgment rather than defeat it. (Ramos, at p. 1088.)
Here, the People acknowledged the offending "language [allowing fear to be presumed] was commonly used by [the prosecutor's] office for Estes robbery cases [People v. Estes (1983) 147 Cal.App.3d 23]." (Fn. omitted.) But this portion of the prosecutor's standard package of Estes robbery instructions is clearly wrong because it creates a presumption in favor of the People regarding the fear element of robbery. The instructions erroneously state that "fear may be presumed where there is cause for it." This language appears to have been derived from People v. Borra (1932) 123 Cal.App. 482. In Borra, the court rejected an evidentiary challenge to a robbery conviction and held there was ample evidence of fear even though the victim said he was not frightened. (Id. at pp. 483-484.) The court noted, "'Where intimidation is relied upon, it must be established by proof of conduct, words, or circumstances reasonably calculated to produce fear. But it is not necessary that there be proof of actual fear, as fear may be presumed where there is just cause for it.'" (Id. at p. 484.) But "Borra is simply another example of a court using the term 'intimidation' as a synonym for the term 'fear.' It does not establish that . . . a jury may return a robbery conviction without finding that the victim was actually afraid. It simply establishes that a jury may infer actual fear 'from the circumstances despite even superficially contrary testimony of the victim.'" (Davison, supra, 32 Cal.App.4th at pp. 214-215.)
If the challenged instruction is indeed part of the Orange County District Attorney's standard package of Estes robbery jury instructions, he would be well advised to discontinue its use.
While it is permissible to allow the jury to infer fear from circumstantial evidence, there is absolutely no presumption triggered by circumstantial evidence. "Fear may be inferred from the circumstances in which a crime is committed or property is taken." (People v. Holt (1997) 15 Cal.4th 619, 690.) But the word "presumed" is not the functional equivalent of "inferred." The commonly understood meaning of "presume" is to consider a fact to be true without proof, and the jury in the instant case was not given any contrary instructions on the meaning of that word. The errant instructions accordingly created a presumption about the existence of fear, which impermissibly reduced the prosecution's burden of proof.
Moreover, the challenged instruction was argumentative. The jury was adequately instructed on circumstantial evidence in CALCRIM Nos. 223 and 224 by advising the jury how to evaluate circumstantial evidence and how it may infer one fact from proof of other facts. More was not needed. It is argumentative to tell the jury that it may find a fact, favorable to one of the parties, from proof of other facts. "A jury instruction is argumentative when it is '"of such a character as to invite the jury to draw inferences favorable to one of the parties from specified items of evidence."'" (People v. Lewis (2001) 26 Cal.4th 334, 380.)
Despite the erroneous instructions, the error was harmless beyond a reasonable doubt because there was direct evidence of force and actual fear. Garcia testified he was in actual fear during the incident. For example, he testified he grabbed defendant's forearm when defendant was inside the car because he was afraid and did not know if defendant had any weapons. He also testified he let go of defendant's forearm after defendant reversed the car because he "was fearful [defendant] might continue to reverse more . . . ." The People asked, "In that moment [when the car door hit you], were you frightened that, had you fallen, you would have been hurt?" Garcia responded, "Yeah. In some capacity, yes." He further testified he returned to the store because he was afraid defendant might have weapons in the car and did not know what defendant would do. When the People asked if he was afraid when he was talking to the 911 dispatcher, he testified, "Yeah, I believe in some capacity, I'm sure because of the adrenaline still kicked in." Given all of this testimony, this was not a case where fear needed to be either inferred or "presumed."
The evidence also established defendant used force to retain possession of the handkerchief and to resist going back inside the store. Garcia testified defendant attempted to drive away and reversed the car while he stood next to the driver's door, which caused the door to hit his back. The impact of the door caused Garcia to move forward. Given this independent basis for conviction on a force theory, any alleged incorrect fear instruction could not have infected the entire trial. (Middleton v. McNeil (2004) 541 U.S. 433, 437.)
Finally, the People did not rely on a presumption of fear in closing argument. Instead, the People emphasized that actual fear or force was a required element for the robbery charge. The People argued, "There are six elements [for the robbery charge]. I need to prove those elements." In explaining the force or fear element, the People argued, "So there are two ways to guilt. There's force and there's fear. The law says it's any force or any fear. The force or fear element for robbery need not occur at the time the property is initially taken." With respect to force, the People argued defendant used force by pushing Garcia and driving away causing the car door to hit Garcia's back. With respect to fear, the People argued Garcia was afraid defendant might grab a weapon from the car and feared he would be run over by the car. In other words, the People only discussed the actual fear Garcia experienced and never suggested the jury should presume fear.
For the above reasons, the court's insertion of a single sentence that "fear may be presumed" into an otherwise correct jury instruction was harmless error. The probation condition restricting defendant's association is unconstitutionally overbroad.
Defendant also challenges the following probation condition: "Do not associate with persons known to you to be parolees, on post-release community supervision, convicted felons, users or sellers of illegal drugs, or otherwise disapproved of by probation or mandatory supervision." (Italics added.) He argues the italicized language is unconstitutionally overbroad because it infringed on his "constitutional right to associate and gives unfettered control to the probation officer to determine who [defendant] can associate with." The People do not dispute the language is unconstitutionally overbroad, and we agree.
We review de novo the question of whether a probation condition is unconstitutionally vague or overbroad. (People v. Arevalo (2018) 19 Cal.App.5th 652, 656.) A probation condition may restrict the probationer's right to associate if the condition furthers the end of rehabilitation and public protection and is reasonably related to those goals. (People v. O'Neil (2008) 165 Cal.App.4th 1351, 1356 (O'Neil).) In O'Neil, the trial court imposed a probation condition requiring the defendant to not "'associate socially, nor be present at any time, at any place, public or private, with any person, as designated by [his] probation officer.'" (Id. at pp. 1354, 1357-1359.) The Court of Appeal held the condition was overbroad and "permit[ted] an unconstitutional infringement on defendant's right of association." (Id. at p. 1358.) The court reasoned, "[T]he condition . . . contains no such standard by which the probation department is to be guided . . . ." (Id. at p. 1359.)
Likewise, here, the condition requiring defendant to not associate with anyone disapproved of by probation or mandatory supervision is lacking any standard to guide the officer in its implementation. We accordingly modify the probation condition by deleting the phrase "or otherwise disapproved of by probation or mandatory supervision."
DISPOSITION
The probation condition that states, "Do not associate with persons known to you to be parolees, on post-release community supervision, convicted felons, users or sellers of illegal drugs, or otherwise disapproved of by probation or mandatory supervision" is modified to read: "Do not associate with persons known to you to be parolees, on post-release community supervision, convicted felons, or users or sellers of illegal drugs." The court is directed to notify the appropriate supervising authorities of the modification. In all other respects, the judgment is affirmed.
IKOLA, ACTING P. J. WE CONCUR: THOMPSON, J. GOETHALS, J.