Opinion
A162353
10-18-2022
THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, v. JONATHAN GONZALEZ, Defendant and Appellant.
NOT TO BE PUBLISHED
(San Mateo County Super. Ct. Case No. 19NF013974A)
PETROU, J.
A jury convicted Jonathan Gonzalez of second degree robbery (Pen. Code, § 212.5, subd. (c)) and making criminal threats (§ 422, subd. (a)). On appeal, Gonzalez argues: (1) the trial court abused its discretion by excluding the testimony of his defense expert on the effects of methamphetamine; (2) the trial court committed instructional errors by refusing to give his requested pinpoint instruction on robbery and giving an incorrect mistake of fact instruction; (3) the cumulative effect of these errors prejudiced him; and (4) his case in any event must be remanded for the trial court to resentence him under amendments to section 654 that took effect after his original sentencing. We find no prejudicial error that requires reversal of his convictions but agree Gonzalez's case must be remanded for resentencing.
All statutory references are to the Penal Code unless otherwise stated.
Factual and Procedural Background
On January 6, 2020, the San Mateo County District Attorney filed a first amended information charging Gonzalez with second degree robbery (§ 212.5, subd. (c)) and felony criminal threats (§ 422, subd. (a)). The information alleged Gonzalez had suffered a prior strike within the meaning of sections 1170.12, subdivision (c)(1), and 667, subdivision (a)(1). It further alleged an enhancement for having committed the charged offenses while on felony probation within the meaning of section 1203, subdivision (k).
A. Prosecution Case
On November 1, 2019, R.B., employed as an "asset protection detective" by Macy's in a Daly City shopping mall, was on duty. While in the CCTV office watching surveillance video feed, he saw Gonzalez carrying multiple bags, a sign of a potential shoplifter. R.B. radioed the two other asset protection detectives and the three visual security officers stationed at the store's entrance points to alert them. As surveillance video played to the jury, R.B. narrated what it depicted and asset protection's response. R.B. saw Gonzalez drop his two large backpacks to the ground in a high theft area of the men's clothing department and select merchandise without regard to price or size, another red flag for asset protection. Gonzalez moved clothes around; he was also looking up and panning left to right. At this point, surveillance was "definitely warranted" and Gonzalez was going to be observed until he either paid for merchandise or exited the store without any merchandise.
J.R., another Macy's asset protection detective, was on the sales floor conducting general observations. His job was to stop any theft. He wore a blue hoodie and jeans, and not a uniform, to blend in with other shoppers.
Although J.R. had a radio, it was not very visible because the wire went underneath his shirt and attached to an area around his collar.
Gonzalez's two backpacks caught J.R.'s attention. He radioed the asset protection team, gave a description of Gonzalez, and asked that Gonzalez be monitored with the surveillance cameras. Meanwhile, J.R. went to the fitting rooms to clear them out. He needed to ensure the rooms were empty so that he could properly account for any merchandise Gonzalez took into any fitting room. Moments later, Gonzalez proceeded to the fitting room area with his backpacks and entered one of the stalls. J.R. observed Gonzalez enter the stall with four items, stay for two minutes, and discard one item upon leaving. After Gonzalez left, J.R. made sure Gonzalez had not left anything else behind. Not finding anything left behind, J.R. believed Gonzalez was concealing merchandise and so informed his asset protection coworkers.
At this point, the asset protection detectives continuously observed Gonzalez to ensure he did not abandon merchandise in the store because they did not want to inappropriately stop him for stealing. As Gonzalez walked towards the store's east exit, J.R. attempted to get in front of him to cut him off. He did not believe Gonzalez noticed him, and they never made eye contact. However, 8 to 10 feet from the exit, Gonzalez looked back, turned around, and went in the opposite direction toward the fine jewelry department. J.R. continued to maintain 8 to 10 feet of space between him and Gonzalez. He still had not identified himself as an asset protection or loss prevention detective, and the two had not spoken.
As surveillance video played to the jury, J.R. explained the next sequence of events. Both he and Gonzalez made their way to the jewelry department, where J.R. began looking at merchandise like a casual shopper. Gonzalez approached him and stared, so J.R. walked away. Gonzalez continued to approach J.R. and soon confronted him. He asked why J.R. was following him and if J.R. had a problem with him; he also volunteered that he did not have anything on him. J.R. confirmed that Gonzalez said to him, "I don't have anything." In an aggressive tone, he told J.R. to "stop fucking following [him]." At this point, J.R. felt afraid but was aware of his job responsibilities. J.R. told Gonzalez he was sorry that he felt like he was being followed. Gonzalez replied, "[D]on't fucking follow me." During the confrontation, J.R. said something into his radio in Gonzalez's view. Based on this interaction, J.R. believed Gonzalez knew he worked at Macy's, even though he had not identified himself as a Macy's employee.
J.R. then tried to make it obvious to Gonzalez he was a Macy's employee working asset protection. He openly and conspicuously followed Gonzalez and was visibly on his radio while speaking in a normal tone and volume. J.R. believed Gonzalez heard him say to his colleagues that Gonzalez had merchandise in his bag and they could proceed to stop Gonzalez if he left the store.
Four to 6 feet from the east exit doors, Gonzalez again turned around. This time, he halfway cocked his arm and took a partial swing at J.R. "like as a punch." Then Gonzalez laughed and commented J.R. "got fucking scared." J.R. took the gesture as a threat that Gonzalez would punch him if he did not stop following him. J.R. did not say anything to Gonzalez after the swing but kept speaking into the radio, informing colleagues he planned to keep his distance.
At this point, J.R. decided they were going to "burn the individual," a term used in asset protection to mean he would disengage because the situation was unsafe. This process involved clearly establishing that he worked at the store and Gonzalez should leave the concealed merchandise behind. To accomplish this, J.R. began speaking loudly on his radio about Gonzalez, while Gonzalez was 5 to 10 feet away and within earshot.
Gonzalez, however, did not abandon any merchandise. Instead, he continued approaching the store's east exit and then suddenly changed direction. J.R. continued to follow at a distance, though he no longer made any attempt at discretion as he wanted Gonzalez to know he was a store employee. Their paths converged near a table set up for writing letters to Santa. As they stood on opposite sides of the table, Gonzalez grabbed one or two pencils from a pencil holder and "[k]ind of just lunged at [him], took like two or three steps in [his] direction with these pencils." Gonzalez told J.R. that if he followed him, he was "going to fucking stab" him. Gonzalez then exited the store.
J.R. was scared and believed Gonzalez could stab him. Although he was initially prepared to approach Gonzalez, identify himself, and apprehend Gonzalez, he ultimately did not confront Gonzalez about the stolen merchandise. The pencil incident prompted him to completely disengage. After Gonzalez left the store, J.R. followed store policy and contacted the store manager about the incident and called 911.
In a lengthy cross-examination, J.R. repeated that when Gonzalez initially confronted him in the jewelry department, he said, "Quit fucking following me. I don't have anything on me." Asked to explain the significance of the latter comment ("I don't have anything on me."), J.R. acknowledged that it could have meant Gonzalez was aware he was working for Macy's or that he just did not like J.R.'s presence. He had not testified at the preliminary hearing that Gonzalez said he did not have anything on him. In discussing his next encounter with Gonzalez, J.R. reiterated that after he resumed his pursuit, Gonzalez quickly turned around and attempted to punch him. At the preliminary hearing, he had stated that Gonzalez turned around and made a fist at him and told him he was going to "fuck [him] up." J.R. did not see his answers as different, explaining that when someone makes a fist towards him he assumes a punch is coming.
On redirect, the prosecutor played J.R.'s 911 call to the jury. On the call, J.R. told dispatch that a shoplifter had grabbed a pencil from a desk and came at him as if he was going to stab him. J.R. also reported that Gonzalez "made a fist as if he was going to punch [him]." He further explained that Gonzalez "lifted his whole arm and kind of swung toward [his] direction" and did not simply make a fist and keep his arm by his side. He added that police gave him the items Gonzalez had taken into the dressing room - two Levi's items and an Adidas top - which was confirmed to be Macy's merchandise. The prosecutor also played surveillance video of J.R.'s final in-store encounter with Gonzalez at the Santa letter writing station. According to J.R., the video showed Gonzalez grab a pencil, quickly turn around, and lunge at him before exiting the store with the pencil in his right hand. J.R. commented, "I was scared. It happened too fast when he turned. He got close enough to stab me, and it seemed like in his face and his demeanor he meant it. I was scared, to be honest."
Daly City Police Department Officers Patrick Dolan and Guillermo Arguelles, both of whom testified at trial, arrived at the mall in response to the 911 call. After mall security identified Gonzalez inside the mall, Officer Dolan detained him.
At the scene, Officer Arguelles spoke with J.R., who appeared shaken up, nervous, and scared. On cross-examination, Officer Arguelles did not recall whether J.R. ever said Gonzalez told J.R. he did not have anything on him. They did not speak about "burning." He recorded J.R.'s statement, which he had transferred to his work computer, but there had been a system-wide computer crash in the police department that caused the files to be deleted. All recordings in the case were similarly inadvertently deleted.
Later at the station, Officer Arguelles spoke to Gonzalez. The interview was recorded but the recording was lost in the department's computer crash. Absent the recordings, he was unable to recall what any witness said to him that day.
The prosecution also introduced evidence of a prior robbery conviction against Gonzalez. Chico Police Department Officer Cory Barrow testified that on July 30, 2018, he responded to a shoplifting report at a sporting goods store in Chico. When he spoke with Gonzalez at the scene, Gonzalez initially denied shoplifting. Gonzalez told Officer Barrow that two employees from the sporting goods store came out as he walked by and wanted to look in the grocery bag he was carrying. Gonzalez told him the employees ripped the bag out of his hands and basically "attacked him." They wrestled, and he tried to defend himself. Gonzalez asked if the incident was captured on video, and Officer Barrow responded it was. At that point, Gonzalez admitted to stealing a pair of sandals from the store.
B. Defense Evidence
Gonzalez, 35 years old at the time of trial, testified on his own behalf. In 2005, when he was 20 years old, he began occasionally using methamphetamine. Around 2015, he became a serious user. By October 2019, he was regularly using about half a gram to a gram daily, or about $20 worth each day. He had to get high at least two or three times a day. He had two stints in rehab in 2014 and 2018 but relapsed.
On November 1, 2019, he was unhoused and living in San Francisco's Tenderloin neighborhood. That day he was "on one" and had been high without sleeping for a week. Around midday, he took methamphetamine. A few hours later, he took a BART train and a bus to get to Macy's. He had stolen clothes from the same store two weeks earlier and intended to do so again to get his methamphetamine fix. He did not pay for methamphetamine with cash but rather traded clothes to support his habit.
When Gonzalez entered the department store, he did not see any security personnel. Not many people were around, and he just wanted to grab some items and quickly leave. He had his backpack with him which contained his blankets, underwear, socks, and belongings. He went straight for the Levi's section and looked for a pair of jeans for himself because his pants were dirty. He also grabbed a couple of Adidas shirts because his dealers had told him they liked "sports stuff," so he planned to trade the shirts for drugs. When near the shirts, he first noticed J.R. but did not think anything of him.
Gonzalez admitted he went into the fitting room and put the items he had selected into his backpack. He then made to leave quickly. As he was walking towards the store's east exit, he noticed a man he did not recognize (J.R.) following him. When he stopped, J.R. also stopped. When he turned around at the east exit, J.R. continued to follow him. Gonzalez felt the need to get out of the store. At the jewelry department, Gonzalez came close to J.R. because he felt scared, paranoid, and high, and he did not want to be followed. He approached J.R. and told him, "[L]eave me the fuck alone. Back the fuck up off me and leave me the fuck alone." Gonzalez also told J.R. to "stop fucking following [him]." Gonzalez wanted to scare away the stranger pursuing him.
After the encounter in the jewelry department, he was still being followed. Gonzalez admitted picking up a pencil from a small table near a store exit, estimating that J.R. was 10 to 15 feet away and "coming up on [him] quick." He told J.R. to "[b]ack the fuck up off [him]" but denied stating that he was going to stab him. He also denied lunging at J.R. or threatening to kill him. At this point, he saw J.R. duck down and heard him ask some clerks to call the police. Gonzalez exited the store. He later returned to the mall with the intention of stealing more merchandise, but police detained him.
At no point did Gonzalez think J.R. was security or a Macy's employee. He did not see J.R. on his radio. If Gonzalez had known J.R. was security, he would have dropped the items. He was not a violent person and would not want a confrontation with store employees. He certainly would not have returned to the mall had he known J.R. was security. Further, once aware of being followed, Gonzalez forgot about the items in his backpack. Because he was high and paranoid, he was more worried about what J.R. was going to do to him.
Gonzalez testified that he had plead no contest to and had been convicted of robbery in Chico in 2018 for stealing sandals from a sporting goods store. He explained that after he stole the sandals, he left the store and went to the adjacent grocery store where he made a purchase. After leaving the grocery store, he walked by the sporting goods store. Two employees from the sporting goods store came out and told him he had their sandals. Even though he knew he had their property, he denied it and kept walking. The employees grabbed him and his bag, in the course of which the sandals and other belongings "went flying." He acknowledged using force against the store employees during the tussle.
On cross-examination, Gonzalez made clear that his intention was to steal property from the moment he started his trip to Macy's. He agreed that the entire time he was in the store, his intention was to get property out. He admitted he was a thief and had stolen from multiple businesses. He was aware businesses had employees whose job it was to stop thieves and that these employees may not wear uniforms. Still, he had no idea why J.R. was following him that day. At other places he had stolen from the loss prevention or security employees had radios. He knew if J.R. had stopped him, he would have been unable to trade the merchandise for methamphetamine. His goal was not to get caught. He only confronted J.R. because he was scaring him.
The defense recalled Officer Arguelles. Officer Arguelles testified that Gonzalez told him that he believed J.R. was a regular civilian and had no idea why J.R. was following him.
The defense sought to introduce the testimony of Kenton Wong, a clinical toxicologist and forensic scientist. During a conditional examination outside of the jury's presence, the court accepted Wong as an expert in the effects of the drug methamphetamine on the human body and the metabolization of methamphetamine in the human body but later excluded Wong's testimony in its entirety.
C. Verdict, Sentencing, and Appeal
The jury found Gonzalez guilty on both counts. The trial court found both the first prior strike alleged under section 11170.12, subdivision (c)(1) and the special allegation under section 667, subdivision (a)(1) to be true. The court also found the alleged enhancement pursuant to section 1203, subdivision (k) for having committed the crimes while in felony probation to be true.
For his second degree robbery conviction, the court sentenced Gonzalez to state prison for two years which was doubled under section 1170.12 for a total term of four years in prison. For his criminal threats conviction, the court sentenced Gonzalez to sixteen months doubled for a total term of two years and eight months but stayed the sentence pursuant to section 654. Gonzalez now appeals the judgment.
Gonzalez challenges only his robbery conviction. He makes no argument on appeal challenging his criminal threats conviction.
Discussion
A. Exclusion of Expert Testimony
Gonzalez contends the trial court abused its discretion in excluding expert witness Wong's testimony and thus deprived him of his constitutional right to present a complete defense.
1. Additional Facts
In the conditional examination, Wong testified that a person under the influence of methamphetamine experiences a rush of euphoria; increased heart rate, respiration, and body temperature; and possibly profuse sweating. He or she may also become restless, anxious, and speak and talk rapidly. He or she may feel "antisocial-type behaviors," such as anxiety, psychosis (problems perceiving reality), and paranoia. It is typical for someone under the influence of methamphetamine to become violent and aggressive. High doses of methamphetamine may cause intense euphoria, dysphoria, or hallucinations.
Wong explained that the physical and mental manifestations of methamphetamine usage become stronger with chronic use. For a chronic user, severe brain abnormalities or brain damage may occur that lead to "very profound" psychosis and paranoia and problems with "day-to-day realistic life." A chronic user may experience withdrawal without a regular dose, which can lead to an intense craving as well as a lack of motivation and drive. He or she may also not care about basic physical needs, such as food and hygiene.
On cross-examination, Wong noted that the physical manifestations of methamphetamine use (e.g., increased body temperature, profuse sweating, dilated pupils, body tremors) were not uncommon. Further, chronic users were more profoundly affected by these physical manifestations than novice users. Someone on a lower dose of methamphetamine may appear to function well and may recognize people and surroundings. In contrast, others may have a "bad trip," "fly off the handle," and "perceiv[e] things in a totally nonrealistic way."
Wong was given an extensive hypothetical involving someone whose actions mirrored Gonzalez's behavior in this case, and when asked if such behavior was consistent with someone experiencing brain damage and acting impulsively due to chronic use of methamphetamine, he replied, "It may." Wong testified that such behavior may reflect someone acting impulsively due to methamphetamine use, but he also agreed that if one has inhibitions, he or she could try to conceal any wrongdoing.
Wong testified that a police report was provided to him in preparation for his testimony. He did not watch any surveillance video, listen to any of Gonzalez's statements, or speak with Gonzalez. Wong acknowledged that "[i]t may be useful" to evaluate a person to determine if he or she is experiencing the kind of chronic brain damage from methamphetamine use he discussed. As an expert testifying as to whether someone was experiencing the effects of methamphetamine, it would be ideal to speak to the person near the time of the act or be able to review some notations or clinical observations. He agreed the police report contained no indication that Gonzalez had been suffering any of the physical signs of methamphetamine use. He also agreed that his testimony provided a general education on the potential for the damaging effects of methamphetamine on the brain, but that he could not testify to damaging effects Gonzalez may or may not have experienced.
On redirect, when asked whether methamphetamine use was "consistent with someone who confuses ordinary strangers around them for more of a threatening presence," Wong replied, "It may and it all depends on the psychosis and hallucinations and things for that individual's perceptions." Asked whether the hypothetical of a person "who confuses a loss prevention person for a stranger who is a threatening presence and tells that person to back away from them and not follow them and makes threatening gestures" was consistent with methamphetamine use, Wong again replied, "It may."
After Gonzalez testified, the parties argued over the admissibility of Wong's testimony. Defense counsel observed that Gonzalez, a chronic user, testified that he used methamphetamine three hours before the theft following a week of consistent use. Defense counsel further argued that Wong was qualified to talk about the effects such use might have on a person and that expert testimony appropriate and relevant as the effects of either short or long term methamphetamine use were not commonly known to lay people. The court responded: "Mr. Wong's testimony was generalized testimony as to what the [e]ffects of methamphetamine might be. He did say that he really knows nothing about the facts of this case other than maybe reviewing one police report." Because the proffered testimony did not relate specifically to Gonzalez, the court wondered if Wong's testimony should be admitted and allowed further argument.
The prosecutor stated, "Evidence Code [section] 801(b) is very clear that an expert['s] testimony must be based by matters that are perceived by or personally known to the witness or made know to him before the hearing." The prosecutor emphasized that Wong never spoke with Gonzalez, was not present for Gonzalez's testimony, and did not watch the surveillance video to assess how Gonzalez appeared or moved through the store. The police report Wong reviewed contained no mention of methamphetamine. In the prosecution's view, Wong had not reviewed anything related to the case to provide a helpful opinion to the jury. The prosecution concluded, "I agree wholeheartedly with the Court. I don't think that this evidence can guide the jury in any way, and based on that I think it should be excluded."
Defense counsel commented that it would be convenient for police to omit details from a report helpful to the defense. Further, the best evidence for Wong to review was the recording of Gonzalez's interrogation but that was lost due to police department's system-wide crash. In light of its unavailability, defense counsel maintained that Gonzalez's own testimony that he was high was the best evidence available of his condition.
The court granted the prosecution's motion to exclude Wong's testimony.
The exclusion of Wong's testimony was also the basis for a defense motion for new trial following the jury verdicts. Gonzalez argued that this exclusion was prejudicial and denied him a fair trial. He asserted that the court should have allowed Wong's testimony to bolster the credibility of his statements that he did not know J.R. was working for Macy's and perceived him to be a threatening stranger. Following a hearing, the court denied the new trial motion on two grounds. First, the court explained that Wong testified "to just [the] general effects of methamphetamine." When questioned, he had no opinion as to Gonzalez specifically and could not give any insight as to whether Gonzalez's actions may have been influenced by his methamphetamine use. Second, Wong's testimony could only have been used to demonstrate voluntary intoxication to negate specific intent. As such, it was irrelevant because Gonzalez had admitted that he had the specific intent required for robbery.
2. Applicable Law
"In determining the admissibility of evidence, the trial court has broad discretion." (People v. Williams (1997) 16 Cal.4th 153, 196.) A trial court's decision on the admissibility of expert testimony is reviewed for an abuse of discretion. (People v. Smith (2003) 30 Cal.4th 581, 627.)
Evidence Code section 801 permits an expert to testify about any subject "sufficiently beyond common experience that the opinion of an expert would assist the trier of fact," and "[b]ased on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates . . ." (Evid. Code, § 801, subds. (a)-(b); People v. Brown (2004) 33 Cal.4th 892, 905.)
3. Analysis
Even if we assume the trial court abused its discretion in excluding Wong's expert testimony about the effects of methamphetamine use on one's ability to accurately perceive reality, we conclude the error to be harmless under People v. Watson (1956) 46 Cal.2d 818 (Watson). (People v. Fudge (1994) 7 Cal.4th 1075, 1103 (Fudge).)
Gonzalez acknowledges the Watson standard for prejudice has been applied by courts where expert evidence was erroneously excluded. Nonetheless, he cites the more strict harmless error standard of Chapman v. California (1967) 386 U.S. 18 (Chapman), which requires reversal for legal errors infringing on a defendant's due process right to present a complete defense unless the state meets its burden of showing beyond a reasonable doubt that the error made no difference in reaching the verdict obtained. He contends the trial court erred under this standard as well. We need not consider prejudice under the Chapman standard. (Fudge, supra, 7 Cal.4th at p. 1103 [stating Watson applies proper standard of review for errors excluding evidence when" 'there was no refusal to allow [defendant] to present a defense, but only a rejection of some evidence concerning the defense' "].)
Under Watson, a defendant must show it is reasonably probable he would have obtained a more favorable outcome had the court not erred. (People v. Romero (1999) 69 Cal.App.4th 846, 856-857.) Gonzalez has not made this requisite showing, that it is reasonably probable he would have obtained a more favorable outcome had the trial court allowed Wong to present his testimony to the jury.
As an initial matter, the trial court's exclusion of Wong's testimony did not prevent Gonzalez from presenting evidence in support of the defense theory of the case. (See People v. Garcia (2019) 28 Cal.App.5th 961, 970- 971.) Gonzalez stated multiple times that he used methamphetamine that day he traveled to Macy's and was high while in the store. He repeated that he was "scared and paranoid," noting he "was more worried about what [J.R.] was going to do to [him] because [he] was high" and "paranoid as it was already." He further added that he never knew J.R. was a security guard or Macy's employee at any point during his interactions with J.R. He threatened J.R. to get J.R. away from him, not to keep the clothes which he had forgotten about once he became aware of being followed. The defense also recalled Officer Arguelles, who testified that Gonzalez said during his station house interview that he believed J.R. was a civilian and had no idea why he was following him. Thus, the defense presented evidence that (1) Gonzalez was under the influence of methamphetamine, causing him to be scared and paranoid during his interactions with J.R. and ignorant of the fact that J.R. was a Macy's security employee, and (2) Gonzalez threatened J.R. because he was a stranger following him, not based on any intent to steal clothes.
Defense counsel also argued the defense theory of the case, namely, that Gonzalez's methamphetamine-induced paranoia, and not any intent to steal, caused him to threaten J.R. In closing, defense counsel invoked Gonzalez's testimony that he did not think J.R. was in loss prevention and had no clue why he was being following by him around the store. She then told the jurors that if they found that Gonzalez used force or fear against J.R. "for any other reason, for any other reason in the world besides trying to keep that merchandise you must find him not guilty." She informed the jury that they could "consider evidence of Mr. Gonzalez's intoxication due to methamphetamine to decide whether he had the required intent in the robbery required." She reminded jurors, "You heard from Mr. Gonzalez about the paranoia and the other aspects of being a chronic methamphetamine user that would inhibit and destroy his ability to interpret and process the world around him appropriately." In making these arguments, defense counsel argued the same points Wong's testimony sought to establish, namely, that his threats to J.R. resulted from fear and paranoia caused by methamphetamine use, not from any intent to deprive Macy's of its merchandise. (See, e.g., People v. Page (1991) 2 Cal.App.4th 161, 189-190 [defense counsel's closing argument arguing same points as excluded testimony rendered any error in excluding testimony harmless].)
Further, although Wong's testimony may have buttressed the credibility of Gonzalez's testimony that he was paranoid and unable to perceive reality, it is not reasonably probable it would have led to a different outcome. Wong acknowledged the police report, which did not say anything about Gonzalez suffering from any of the physical manifestations of methamphetamine, was the only item specific to Gonzalez he had reviewed for his testimony. He made clear his testimony was no more than "general education" and not testimony as to the effects of methamphetamine use on Gonzalez in particular. Further, Wong's testimony evinced that the effects of methamphetamine were largely dependent on the individual user. For instance, he testified that some methamphetamine users may perceive threats where none exist. When given hypotheticals by both the prosecution and defense counsel reflecting Gonzalez's behavior in this case, he replied only that "[i]t may" be consistent with methamphetamine use. Effectively, Wong stated that the impact of methamphetamine on the user varies from person to person, and he did not know its effects on Gonzalez either in general or specifically the day of the charged conduct. Given this equivocal testimony with no nexus to defendant, we are not persuaded that Wong's testimony would have bolstered Gonzalez's credibility such that he would have achieved a more favorable outcome.
Finally, there was powerful evidence from which the jury could readily conclude Gonzalez was neither scared nor paranoid and, instead, his threats to J.R. were motivated by an intent to steal. Gonzalez was able to manage public transit, both BART and a bus, to a suburban mall. By his own testimony, his intent was to steal property from the store and quickly leave to secure his methamphetamine fix. In his first interaction with J.R., Gonzalez informed J.R. that he didn't "have anything on [him]," suggesting he was aware that J.R. was in loss prevention officer or worked for Macy's in some security capacity. Even if we disregard this statement, the evidence showed that after Gonzalez gestured to punch J.R., J.R. engaged in the "burning" process to establish he worked at the store. J.R. followed Gonzalez openly and spoke normally into his radio, which would have reasonably established him as a store employee at this stage. Yet, Gonzalez still lunged at him with a pencil before leaving the store with the merchandise in his backpack. Moreover, the jury was able to watch the surveillance video for themselves and observe Gonzalez's movements and interactions with J.R. Jurors were able to reach their own conclusions as to whether Gonzalez acted out of fear of an unknown stalker pursuing him, or out of a dogged determination to get away with stolen goods without being stopped. It is not reasonably probable that Wong's testimony would have undermined this strong evidence that Gonzalez was motivated by an intent to steal. As such, any error in excluding the expert testimony was harmless.
In light of this conclusion, we need not address the People's contention that section 29.4, which governs the admissibility of evidence of voluntary intoxication, provided an independent basis for barring Wong's testimony. That section provides: "No act committed by a person while in a state of voluntary intoxication is less criminal by reason of his or her having been in that condition. Evidence of voluntary intoxication shall not be admitted to negate the capacity to form any mental states for the crimes charged, including, but not limited to, purpose, intent, knowledge, premeditation, deliberation, or malice aforethought, with which the accused committed the act." (§ 29.4, subd. (a).) An exception to the general rule of inadmissibility is found in section 29.4, subdivision (b), which provides: "Evidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent, or, when charged with murder, whether the defendant premeditated, deliberated, or harbored express malice aforethought." (§ 29.4, subd. (b).) Under this provision, "voluntary intoxication evidence is admissible only when a defendant is charged with a specific intent crime." (People v. Berg (2018) 23 Cal.App.5th 959, 968.) Because robbery is a specific intent crime (People v. Clark (2011) 52 Cal.4th 856, 943), it is not likely that section 29.4 would preclude evidence of Gonzalez's voluntary intoxication, even if Gonzalez conceded that he intended to steal clothes from Macy's.
B. Instructional Errors
Gonzalez argues the trial court made two instructional errors by: (1) refusing to give his requested pinpoint instruction supporting the defense theory of the case; and (2) giving an incorrect mistake of fact instruction.
1. Additional Facts
Defense counsel requested modifications to the jury instruction for robbery, CALCRIM No. 1600 ("CALCRIM 1600"). The form instruction for CALCRIM 1600 lists six elements that a jury must find to convict a defendant 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 his 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, he intended to deprive the owner of the property permanently." Gonzalez requested the trial court modify the sixth element to instead read, "When the defendant used force or fear, he was motivated by the intent to deprive the owner of the property permanently." (Emphasis added.)
Arguing for the pinpoint instruction, defense counsel observed there was a conflict in the evidence as to whether Gonzalez knew J.R.'s status as an employee. If he did not know, they were presented with a "strange situation" where he intended to permanently deprive Macy's of property but did not use force or fear against J.R. for the purpose of keeping the property, or with the intent of permanently depriving Macy's of the property. In defense counsel's view, "the language of [CALCRIM] 1600 [was] just a little confusing as to this specific issue." The proposed pinpoint instruction was to ensure "there [was] no argument that all [Gonzalez had] to have [was] the intent to steal and any force on anyone would have made this a robbery."
The prosecutor opposed the requested modification on the grounds that it was duplicative of element 5 and could confuse the jury into believing that motive is an element of robbery.
The trial court denied Gonzalez's proposed modification but assured defense counsel that the existing CALCRIM 1600 instruction allowed her to argue that "the force or fear" in a robbery must be "motivated [by] the intent to steal." The prosecutor then agreed that a causal connection must exist between the force or fear employed by defendant in a robbery and the defendant's intent to steal.
However, the prosecutor disagreed with defense counsel's contention that it mattered who the force is used against. The trial court proposed to resolve the dispute by giving the jury CALCRIM No. 3406 ("CALCRIM 3406"), the model jury instruction on mistake of fact, which it appears defense counsel had asked the court to add. The court observed that under that instruction, the jury could not convict appellant of robbery unless it found he reasonably believed J.R. was working asset protection, and defense counsel agreed the instruction would assuage her concerns. The prosecutor disagreed, observing that Gonzalez could have used force or fear to facilitate the theft even if he did not believe that his victim was an asset protection detective. The prosecutor further observed that the mistake of fact defense applies only if the defendant's actions would be completely innocent if the mistaken belief were true. The trial court decided to proceed with the mistake of fact instruction.
Ultimately, the court instructed the jury with both an unmodified version of CALCRIM 1600 (as set forth above) and the model mistake of fact instruction, CALCRIM 3406. That instruction read: "The defendant is not guilty of robbery if he did not have the intent or mental state required to commit the crime because he reasonably did not know a fact or reasonably and mistakenly believed the fact. If the defendant's conduct would have been lawful under the facts that he reasonably believed them to be, then he would not have committed robbery. [¶] If you find that the defendant believed [J.R.] was not an agent or an employee of Macy's and that if you find that belief was reasonable, then he did not have the specific intent or mental state to use force or fear to take the specific property required for robbery. If you have a reasonable doubt about whether the defendant had the specific intent or mental state, then you must find him not guilty of that crime."
2. CALCRIM 1600 Pinpoint Instruction
"As a general proposition a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor." (Mathews v. United States (1988) 485 U.S. 58, 63.)" '[I]n appropriate circumstances' a trial court may be required to give a requested jury instruction that pinpoints a defense theory of the case by, among other things, relating the reasonable doubt standard of proof to particular elements of the crime charged. [Citations.] But a trial court need not give a pinpoint instruction if it is argumentative [citation], merely duplicates other instructions [citation], or is not supported by substantial evidence [citation]. An instruction that does no more than affirm that the prosecution must prove a particular element of a charged offense beyond a reasonable doubt merely duplicates the standard instructions defining the charged offense and explaining the prosecution's burden to prove guilt beyond a reasonable doubt." (People v. Bolden (2002) 29 Cal.4th 515, 558-559.) We review de novo the trial court's refusal to give a requested pinpoint instruction. (People v. Johnson (2009) 180 Cal.App.4th 702, 707.) In doing so, we consider the instructions as a whole and assume that the jurors are intelligent persons who are capable of understanding and correlating all jury instructions. (People v. Martin (2000) 78 Cal.App.4th 1107, 1111.)
The defense theory at trial was that Gonzalez did not realize J.R. was a Macy's employee and that exhibiting the pencil or use of other force was not motivated by his intent to steal, but rather by his methamphetamine-induced fear of J.R. Gonzalez argues that his request for a pinpoint instruction to clarify that robbery required that the use of force or fear was motivated by the intent to deprive the owner of property was not duplicative of CALCRIM 1600. He contends that CALCRIM 1600 as given was ambiguous regarding "the requirement that the force or fear be motivated by an intent to deprive" or "whether the act and intent must merely both exist, even if wholly unrelated to one another." He further asserts that the prosecutor "exploited this ambiguity" by "urg[ing] the jury to convict Gonzalez of robbery as long as an act of force or fear and an intent to deprive have been proven, even if the two were independent of each other." In his view, the court's denial of the pinpoint instruction denied him a fair trial because, in combination with the prosecutor's arguments, the jury was allowed to convict him on an invalid legal theory, namely, "that Gonzalez was guilty of robbery if he committed an act of force or fear while still harboring an intent to deprive Macy's of its property, even if that act was wholly unrelated to and not in furtherance of that intent."
We disagree and see no error in the court's ruling that Gonzalez's proposed instruction was duplicative of CALCRIM 1600. CALCRIM 1600 expresses the same idea as Gonzalez's proposed pinpoint instruction because it states the People must prove the defendant "used force or fear to take the property or to prevent the person from resisting." (CALCRIM No. 1600.) It also states that the People must prove that "[w]hen the defendant used force or fear, he intended to deprive the owner of the property permanently or to remove the property from the owner's possession permanently." (CALCRIM No. 1600.) The court informed defense counsel, "I agree that the fifth element in the instructions covers your situation, and everything that you are saying you would be able to argue under the instruction as it is." Thus, the jury was told that Gonzalez had to possess the requisite intent to deprive Macy's of its property at the time he used force or fear.
Nor are we persuaded by Gonzalez's repeated contentions that the prosecution "exploited" ambiguities in the instruction or made arguments that allowed the jury to convict him without recognizing the required nexus between force and intent. As we have noted, the prosecutor agreed with defense counsel in arguments on the instruction that a causal connection must exist between the force or fear in a robbery and a defendant's intent to steal. In closing argument, the prosecutor did not disclaim this causal connection or tell the jury that no nexus was required between intent and act. Rather, the prosecutor argued that Gonzalez used force against J.R. to facilitate his theft. She told jurors that once Gonzalez realized he had been caught "he [did] whatever he [could] to effectuate his goal of getting out and not getting caught. And he [did] that by using force or fear." The prosecutor further reminded jurors that he exhibited similar behavior in the 2018 Chico incident, observing that "when he used force or fear his attempt was to hold onto the property." In concluding her argument on the robbery charge, the prosecutor argued to the jury: "So this is asking you to see if two things occurred at the same time. Did the defendant use force or fear? And at the time he's using force or fear does he have the intention to permanently deprive the owner of the property? Yes. Yes. Yes. Yes. . . . That's a robbery. He's guilt of robbery." All the while, the prosecutor sought to persuade the jury that Gonzalez's testimony that he used force and threats against J.R. because he was scared of him due to methamphetamine-induced paranoia was simply not credible.
Even if the court erred in failing to give the pinpoint instruction, we would conclude it to be harmless error. The failure to instruct the jury on an appropriate pinpoint instruction on the defense's theory of the case is reviewed for harmless error under Watson, supra, 46 Cal.2d at p. 818. (People v. Earp (1999) 20 Cal.4th 826, 886-887.) The denial of a pinpoint instruction is harmless under Watson where the instructions that were given do not preclude findings consistent with the proposed pinpoint instruction's theory and where the defense counsel fully argued the point to the jury. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1144.)
Gonzalez argues the "proper test for determining whether misinstruction on an element of the offense is prejudicial is the harmless beyond a reasonable doubt standard of Chapman, supra, 386 U.S. [18]." An instructional error that "relieves the prosecution of the burden of proving beyond a reasonable doubt each essential element of the charged offense, or that improperly describes or omits an element of an offense" requires the Chapman harmless error review. (People v. Larsen (2012) 205 Cal.App.4th 810, 829.) Because pinpoint instructions merely relate particular facts to legal issues in the case, the failure to give a pinpoint instruction is reviewed for prejudice under the Watson harmless error standard. (Id. at p. 830.)
Here, the CALCRIM 1600 form instruction stated that Gonzalez had to possess the requisite intent to deprive Macy's of its property at the time he used force or fear. In addition, defense counsel vigorously argued in closing argument that to prove a robbery, the prosecutor had to prove that the "reason Mr. Gonzalez used force or fear on [J.R.] . . . was to keep th[e] merchandise" in his backpack. She repeated the point because it was so important. Defense counsel posited that there was no evidence to support that view. She told the jury it would have to acquit Gonzalez if it believed he "used force or instilled fear on [J.R.] . . . for any other reason, any other reason in the world besides trying to keep that merchandise."
As the jury was not precluded from considering the defense theory of the case that was the basis for the requested pinpoint, namely, that there was no connection between Gonzalez's use of force against J.R. and his intent to steal Macy's property, any error in failing to provide the pinpoint instruction was harmless.
3. CALCRIM 3406 Mistake of Fact Instruction
The mistake of fact defense "requires, at a minimum, an actual belief 'in the existence of circumstances, which, if true, would make the fact which the person is charged an innocent act.'" (People v. Lawson (2008) 215 Cal.App.4th 108, 115 (Lawson).) "For general intent crimes, the defendant's mistaken belief must be both actual and reasonable, but if the mental state of the crime is a specific intent or knowledge, then the mistaken belief must only be actual. [Citations.] In all cases, however, the defendant's mistaken belief must relate to a set of circumstances which, if existent or true, would make the act charged an innocent act." (Ibid.)
Gonzalez contends the trial court improperly instructed the jury by stating that only a reasonable mistake of fact could support a finding that he lacked the mental state necessary to commit robbery. Even presuming that contention has merit, we agree with the People that Gonzalez cannot prevail on such a claim because he was not entitled to any mistake of fact instruction.
Here, Gonzalez's purported mistake of fact was believing J.R. was not a Macy's employee. However, Gonzalez's ignorance about J.R.'s role does not amount to a mistaken belief in a set of circumstances which, if true, would have made his conduct lawful. (See Lawson, supra, 215 Cal.App.4th at pp. 111, 115-117 ["The mistake-of-fact defense operates to negate the requisite criminal intent or mens rea element of the crime, but applies only in limited circumstances, specifically when the defendant holds a mistaken belief in a fact or set of circumstances which, if existent or true, would render the defendant's otherwise criminal conduct lawful." (Emphasis added.)].) Regardless of J.R.'s identity, Gonzalez's threats of force and stealing of clothes were still unlawful. Gonzalez acknowledges as much in his reply brief, noting "that despite his mistake of fact, he was nevertheless guilty of petty theft." For this reason alone, the mistake of fact instruction was inapplicable.
The parties agree, correctly, that the standard of prejudice set forth in Watson, supra, 46 Cal.2d 818, is applicable to claims of error regarding a mistake of fact instruction. (See People v. Molano (2019) 7 Cal.5th 620, 670 (Molano).) "Under this standard, a conviction 'may be reversed in consequence of this form of error only if, "after an examination of the entire cause, including the evidence" [citations], it appears "reasonably probable" the defendant would have obtained a more favorable outcome had the error not occurred.'" (Ibid.) Since the incorrect instruction provided Gonzalez a defense to which he was not entitled, there can be no showing of prejudice. (Cf. People v. Mejia (2012) 211 Cal.App.4th 586, 630-632 [no reversible error in case where self-defense instructions should not have but were erroneously given in part because the instructions benefitted defendants by giving each another avenue to argue charges against them had not been proved].)
Gonzalez contends that even if he were not entitled to the mistake of fact instruction, the instruction given by the court prejudiced him. According to Gonzalez, the instruction "suggested that even if appellant's threat was not motivated by an intent to steal, he was guilty unless his belief that [J.R.] was not an asset protection detective was reasonable." He contends the instruction served to confuse the jury, and a juror could reasonably have interpreted the instruction as requiring rejection of the defense theory of the case if Gonzalez's belief about J.R. not being a Macy's employee was unreasonable.
Even assuming Gonzalez was entitled to the mistake of fact instruction and the court provided the instruction without the requirement that his mistake be "reasonable," it is not reasonably probable that Gonzalez would have obtained a more favorable outcome based on his purported mistake for the reasons discussion in Section A.3, ante. (See Molano, supra, 7 Cal.5th at p. 670.) The evidence also showed Gonzalez was an experienced thief with knowledge that plainclothes employees monitored their stores to stop theft. Based on this evidence, it is highly improbable a rational juror would have concluded Gonzalez made the alleged mistake.
C. Cumulative Error
Gonzalez also argues cumulative error." 'Under the 'cumulative error' doctrine, errors that are individually harmless may nevertheless have a cumulative effect that is prejudicial.'" (People v. Loza (2012) 207 Cal.App.4th 332, 365.) We conclude any errors that occurred, whether considered individually or together, are harmless. As a result, there was no cumulative error.
D. Resentencing Under Assembly Bill No. 518
Finally, Gonzalez requests this case be remanded for resentencing to allow the trial court to exercise its discretion under Assembly Bill No. 518 ("AB 518") to decide which count to stay under section 654. "Section 654 prohibits multiple punishment for any single act or omission. If a single action or course of conduct by a defendant violates multiple laws, 'the distinct crimes may be charged in separate counts and may result in multiple verdicts of guilt, [but] the trial court may impose sentence for only one offense.'" (People v. Sek (2022) 74 Cal.App.5th 657, 673.)
When the trial court sentenced Gonzalez, former section 654 provided that when an act or omission was "punishable in different ways by different provisions of law," the trial court was required to punish the defendant "under the provision that provide[d] for the longest potential term of imprisonment." (Former § 654, subd. (a).) Effective January 1, 2022, AB 518 amended section 654, subdivision (a), "to afford sentencing courts the discretion to punish the act or omission under either provision," without regard to the longest potential term of imprisonment. (People v. Mani (2022) 74 Cal.App.5th 343, 351.)
The parties agree, as do we, that AB 518 applies retroactively to defendants like Gonzalez whose convictions were not yet final when the law became effective on January 1, 2022.
Here, Gonzalez was convicted of both second degree robbery (§ 212.5, subd. (c)) and of making criminal threats (§ 422, subd. (a)), two crimes which were based on a single course of conduct. As to the robbery conviction, the court sentenced Gonzalez to the low term of two years, doubled due to the prior strike. As to the criminal threat conviction, the court imposed the low term of sixteen months, doubled due to the prior strike, but stayed this sentence pursuant to former section 654 because it provided for the lesser punishment. In any future sentencing hearing, the trial court will have discretion under the current version of section 654 to sentence Gonzalez under either provision (not solely on the statute with the greater punishment) and to stay his sentence on the robbery conviction rather than his sentence on the criminal threat conviction.
Disposition
Gonzalez's sentence is vacated, and the matter is remanded for resentencing pursuant to newly amended section 654. Following resentencing, the trial court shall prepare an amended abstract of judgment and send certified copies to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
WE CONCUR: Fujisaki, Acting P.J. Rodríguez, J.