Opinion
NOT TO BE PUBLISHED
Superior Court County No. BA354019 of Los Angeles, Robert J. Perry, Judge
Kelly Cronin Martin, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels, Supervising Deputy Attorney General, Chung L. Mar, Deputy Attorney General, for Plaintiff and Respondent.
PERREN, J.
Edward Emerson appeals the judgment entered after a jury convicted him of second degree robbery (Pen. Code, § 211), petty theft with a prior (§§ 484/666), and possession of cocaine (Health & Saf. Code, § 11350, subd. (a)). After appellant admitted serving four prior prison terms (§ 667.5, subd. (b)), he was sentenced to five years eight months in state prison. He contends that his robbery conviction must be reversed because the court erroneously instructed the jury on the "escape rule, " in violation of People v. Cooper (1991) 53 Cal.3d 1158 (Cooper). We agree and reverse the conviction.
All further undesignated statutory references are to the Penal Code.
STATEMENT OF FACTS
On March 12, 2009, at approximately 9:30 a.m., appellant entered the Joy Bargain store at 7914 South Avalon Boulevard in Los Angeles and gave the cashier a quarter to purchase a gallon of water. Appellant walked around the store for about two minutes and then left with his bottle of water.
The store manager, Jong Hoon Sun, recognized appellant from prior occasions in which he had engaged in similar conduct. Sun found appellant's behavior suspicious, so he went into the office and reviewed the video recordings from the store's surveillance cameras. The video showed appellant taking two packages of ramen noodles, a bottle of lemonade, and a can of corned beef from the store shelves. When Sun asked the cashier what appellant had purchased, he discovered that he had only paid for the water. The cashier did not know that appellant had taken any other items because he was not visibly carrying them when he exited the store.
About seven minutes after appellant had left the store, Sun walked outside and saw him on the sidewalk about 15 feet away. Sun asked appellant to come back into the store. Appellant did not initially respond, but eventually walked back to the entrance and stopped in the doorway. When Sun asked appellant to return the stolen items, appellant stepped back out of the doorway. Sun asked appellant to step inside because he wanted him to be within the range of the surveillance cameras. When appellant stepped back inside, Sun tried to close the door behind him. Appellant stepped back outside and unsuccessfully attempted to punch Sun in the face. Sun told appellant that he was going to call the police, and appellant walked down the sidewalk. Sun told the cashier to call the police. A few seconds later, appellant returned and told Sun, "If you call the police, I'm going to kill you." Appellant again left the store.
At about 9:45 a.m., the police arrived and spoke to Sun. The officers then drove southbound on Avalon Boulevard and eastbound on 81st Street, where they saw appellant and another individual walking back toward Avalon. At about 10:10 a.m., appellant was arrested at an apartment located at the northeast corner of 81st Street and Avalon, less than two blocks from the store. Appellant was searched and found to be in possession of a white rock that was later determined to contain.20 grams of cocaine base.
DISCUSSION
Appellant contends that his robbery conviction must be reversed because the court erroneously instructed the jury on the "escape rule" pursuant to CALCRIM No. 3261. The People concede that the court erred in this regard, but claim the error was harmless beyond a reasonable doubt. We accept the People's concession, but reject their assertion of harmless error. Accordingly, we shall reverse the conviction.
Background
After the People rested, appellant moved to dismiss the robbery count pursuant to section 1118.1. Counsel argued: "[T]here's [a] full seven minutes that elapses from the time the items were removed from the store until the time that [appellant] returns to the store. Essentially, the theft was completed at the time... that the struggle ensued between [appellant] and Mr. Sun." In denying the motion, the court reasoned that the evidence was sufficient to support a finding that appellant "was still in possession of the stolen property and then allegedly used force to retain possession of the stolen property. I think... the taking of the robbery was not complete because [appellant] hadn't reached a place of temporary safety."
In discussing the proposed jury instructions, the prosecutor referred to the "escape rule" embodied in CALCRIM No. 3261. The court responded: "I prepared a new set to add that in light of the 1118.1 motion, and it reads, 'The crime of robbery continues until the perpetrator has actually reached a temporary place of safety.' [¶] Do you want me to change that phrase to the crime of theft? [¶] Anyway, it goes on to say, 'The perpetrator has reached... a temporary place of safety if he has successfully escaped from the scene and he is no longer being chased and he has unchallenged possession of the property.'" After the prosecutor stated, "I'm fine with it reading robbery, " the court replied, "Okay. Then we're limiting it to the robbery."
As the discussion continued, appellant's attorney stated, "When the Court was using the escape rule [CALCRIM No.] 3261, I actually think the Court was correct when the Court indicated the crime of theft continues because that's what we're talking about, the theft continues unless there's an element of force and fear and then it becomes the robbery." The court responded, "Well, I think it's more helpful for the People for me to instruct that way. If that's the way you want me to instruct, I will do so." Appellant's attorney replied, "That's what I'm requesting." The court went on to state, "The People's theory, as I understand it, is he had committed a theft and the theft was ongoing when he was contacted by the store manager and it escalated into a robbery at that point because the People allege that he used force or fear to retain possession of the property at that point." The prosecutor agreed with this characterization.
In the prosecutor's opening argument, he cited CALCRIM No. 3261 and argued that appellant's theft of the items from the store was still continuing when he struggled with Sun because appellant had not yet reached a place of temporary safety. Appellant's attorney also cited CALCRIM No. 3261 to support his argument that appellant was not guilty of robbery because the struggle took place after appellant had already escaped from the store, was no longer being chased, and had unchallenged possession of the property. In making that argument, defense counsel noted that Sun did not see any of the items appellant had stolen when appellant returned to the store.
In rebuttal, the prosecutor responded, "[I]s it possible [appellant] got rid of the items during that about seven-minute period? Yeah, it's possible. It's also possible he still had them on him because you can't see where he hid them, especially when he's not on camera at all. [¶] So it's possible he still had those items on him, but even if he placed the items somewhere else, it's still a robbery ...." (Italics added.) The prosecutor continued: "Well, Mr. Sun, by closing that door on him, he's challenging [appellant] for possession of that property.... So even if that meant [appellant] had to go walk somewhere else, get the items and bring them back, Mr. Sun is challenging him for those items back.... So legally, it becomes a robbery now." (Italics added.)
At the conclusion of the closing arguments, the jury was instructed as follows: "The crime of theft continues until the perpetrator has actually reached a temporary place of safety. [¶] The perpetrator has reached a temporary place of safety if: [¶] He has successfully escaped from the scene; and [¶] He is no longer being chased; and [¶] He has unchallenged possession of the stolen property."
Analysis
Appellant contends that the court committed prejudicial error in instructing the jury on the escape rule in accordance with CALCRIM No. 3261. Although appellant did not object below, "we may review any instruction which affects the defendant's 'substantial rights, ' with or without a trial objection. (Pen. Code, § 1259.) 'Ascertaining whether claimed instructional error affected the substantial rights of the defendant necessarily requires an examination of the merits of the claim-at least to the extent of ascertaining whether the asserted error would result in prejudice if error it was.' [Citation.]" (People v. Ramos (2008) 163 Cal.App.4th 1082, 1087.) An instructional error that affects an element of a charged offense compels reversal unless it is harmless beyond a reasonable doubt. (Cooper, supra, 53 Cal.3d at pp. 1170-1171.)
The People raise no claim of forfeiture. In light of our conclusion that the instruction is subject to review, we need not address appellant's claim that his trial attorney's failure to object to the instruction amounts to constitutionally ineffective assistance of counsel.
"Section 211 defines robbery 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.' Robbery is, therefore, '"'a species of aggravated larceny.'"' [Citations.] Theft by larceny may be committed without force or the threat of violence and may be completed without the victim ever being present. (See § 484, subd. (a).) To elevate larceny to robbery, the taking must be accomplished by force or fear and the property must be taken from the victim or in his presence." (People v. Gomez (2008) 43 Cal.4th 249, 254, fn. omitted.) "'The taking element of robbery has two necessary elements, gaining possession of the victim's property and asporting or carrying away the loot.' [Citation.]" (People v. Hill (1998) 17 Cal.4th 800, 852.)
Appellant was prosecuted on the theory that his theft of items from the store was continuing when he used force against the victim, such that the theft became a robbery. This theory of criminal liability is based on the principle "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. [Citations.]" (Cooper, supra, 53 Cal.3d at p. 1165, fn. 8, italics added; see, e.g., People v. Estes (1983) 147 Cal.App.3d 23, 27-28; People v. Kent (1981) 125 Cal.App.3d 207, 213.) In other words, appellant could not be convicted of robbery unless the jury found beyond a reasonable doubt that he was still "carrying away the loot, " i.e., in actual possession of the stolen items, when he used force against Sun. For this reason, any instruction that might have led the jury to conclude that appellant was guilty of robbery regardless of whether he was still in the process of "carrying away the loot" would be erroneous.
In Cooper, our Supreme Court was confronted with the question whether the jury instruction on the escape rule (former CALJIC Nos. 9.15 & 9.44, now CALCRIM No. 3261) was erroneously given in the trial of a defendant charged with aiding and abetting a robbery. In deciding that the instruction should not have been given in that context, the court reasoned that "it could have misled the jury into believing that commission of a robbery continues during the escape to a place of temporary safety even if the loot is not being carried away contemporaneously." (Cooper, supra, 53 Cal.3d at p. 1170.) The court also recognized it had "[n]ever... applied the escape rule in contexts other than the construction of statutes concerning certain ancillary consequences of robbery." (Id. at pp. 1166-1167.)
The jury in Cooper was instructed as follows: "'The commission of the crime of robbery is not confined to a fixed place or a limited period of time. A robbery is still in progress after the original taking of physical possession of the stolen property while the perpetrator is in hot flight, that is, while in possession of the stolen property he is fleeing in an attempt to escape. Likewise, it is still in progress so long as he is still being immediately pursued in an attempt to capture him or regain the stolen property. A robbery is complete when the perpetrator has eluded his pursuers, if any; has reached a place of temporary safety and is in unchallenged possession of the stolen property after having effected an escape with such property.' (CALJIC No. 9.44 (5th ed.) [former CALJIC No. 9.15 (4th ed.), italics added.)" (Cooper, supra, 53 Cal.3d at p. 1170.)
In this regard, Cooper reiterates the settled proposition that the asportation of stolen property ends once the thief no longer has his or her loot, and that any force arising thereafter may constitute an assault yet does not elevate the theft to a robbery. That court also recognized that the trial court's error in effectively instructing the jury to the contrary was subject to the harmless-beyond-a-reasonable-doubt standard of review. (Cooper, supra, 53 Cal.3d at pp. 1170-1171.) The error was deemed harmless because it was undisputed that the act of carrying away the loot to a place of temporary safety coincided with the escape, the prosecution did not argue to the contrary, and there was no evidence to support such a theory. (Id. at p. 1171.)
Although appellant was charged as an actual perpetrator of robbery as opposed to an aider and abettor, and the instruction at issue refers to the crime of theft instead of robbery, the People concede that the "escape rule" instruction was erroneously given in this context as well because "'it could have misled the jury into believing that commission of a [theft] continues during the escape to a place of temporary safety even if the loot is not being carried away contemporaneously.' [Citations.]" (Fn. omitted.) The People nevertheless contend the error was harmless beyond a reasonable doubt "because the evidence at trial strongly supported the conclusion that appellant was still carrying away the stolen items (and hence the theft was still continuing) when he used force or fear against Sun in an attempt to retain... the stolen property." Appellant counters that the evidence also "strongly suggested an alternate possibility-that appellant left the store with the items, and, because he lived nearby, stored the items for safekeeping before returning to the front of the store where Sun found him seven minutes after the theft." Appellant also notes that the prosecutor exploited the error by inviting the jury to find him guilty of robbery regardless of whether he was in actual possession of the stolen items when he used force against Sun.
Appellant's position is well taken. As a result of the erroneous instruction and the prosecutor's express reliance thereon, the jury may have convicted him of robbery without finding that he was still in the process of asporting the stolen property when he used force against the victim. Moreover, there was sufficient evidence from which the jury could have found that the prosecution had failed to prove the asportation element of the crime true beyond a reasonable doubt. Appellant was out of the store for seven minutes before Sun discovered the theft, and was standing about 15 feet away on a city street when Sun finally confronted him. During those seven minutes, appellant could have run less than two blocks to the apartment where he was later arrested and returned without the stolen items. He also could have handed the stolen goods off to someone else, or he may have consumed them. Indeed, the prosecutor conceded it was possible that appellant had discarded the stolen goods. The erroneous instruction and the prosecutor's express reliance thereon deprived appellant of this potentially valid defense.
The prosecutor further compounded the error by telling the jury to find that appellant had not reached a place of temporary safety when the confrontation occurred simply by virtue of the fact that Sun had not yet asked him to return the stolen property. On this record, the jury could have reasonably found that appellant had already reached a place of temporary safety by the time Sun confronted him seven minutes after the theft, even if he was still in actual possession of the stolen property. Because it cannot be said the error was harmless beyond a reasonable doubt, appellant's robbery conviction must be reversed. (See People v. Perez (2005) 35 Cal.4th 1219, 1233.)
Because we reverse the robbery conviction, we need not address appellant's alternative claim that the conviction was obtained through prosecutorial misconduct. Appellant's claim that his theft conviction must be reversed as a lesser included offense of robbery is also moot.
DISPOSITION
Appellant's robbery conviction is reversed and the matter is remanded.
We concur: GILBERT, P.J., COFFEE, J.