Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 07NF2749 Andrew P. Banks, Judge.
Richard Power, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., and Angela M. Borzachillo, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
IKOLA, J.
Defendant Julio Cesar Quintero challenges his convictions for misdemeanor assault on a peace officer and grand theft. He asserts the evidence was not sufficient to show he knew the assault victim was a peace officer. He further asserts the evidence was not sufficient to show the theft victim did not consent to the theft and, relatedly, the court inadequately instructed the jury on consent.
We affirm. Substantial evidence supported the jury’s finding that defendant knowingly assaulted a peace officer. Substantial evidence also showed the theft victim did not consent, and the jury was adequately instructed on that issue.
FACTS
The Heist and Arrest
Around 9:00 a.m., on July 15, 2007, a co-manager named Hernandez and an employee arrived for work at Little Caesars Pizza in Anaheim. Their pre-opening routine included beginning pizza preparation and opening the safe. The safe had a two-door security feature requiring the user first to input a code to open the exterior door, wait 10 minutes, and then key the same code to open the inner door of the safe. Shortly after Hernandez entered the first code, he heard a knock at the door and saw a man dressed in a Little Caesars manager’s uniform standing outside. Hernandez answered the knock and the man asked to borrow some promotional fliers, a common request. Hernandez let the man inside and the two talked about loss prevention and store business as they went to retrieve the fliers. The man then asked to borrow something else and Hernandez began searching for the general manager’s phone number so he could get permission.
While searching the phone book, the timer for the second safe door went off and Hernandez returned to the safe to enter the code. Hernandez squatted down to enter the code when the man picked up Hernandez by the back of his shirt and ordered him to lie down. Hernandez saw the man put a gun on a nearby metal table and heard the sound of metal on metal. The employee walked in and saw the gun; the man directed him to lie down, too. The man took Hernandez’s and the employee’s identification cards, emptied the safe of its $4,000 to 4, 500 in cash, and left. The two later called the police, who dusted the fliers and found defendant’s fingerprints.
Hernandez was able to describe the robber generally, but was unable before or at trial to identify defendant. The employee was able to identify defendant from a pretrial photo lineup, even though he saw the man’s face for only a few seconds.
As the investigation continued, Hernandez told a police detective that an assistant manager, who was also Hernandez’s girlfriend, had been asked by another store employee to help rob Little Caesars. Hernandez learned this after the robbery; the girlfriend did not mention it sooner because she did not take it seriously. Police questioned the girlfriend and the other employee, who confirmed what Hernandez said.
Sixteen days after the robbery, police officers went to arrest defendant at his home. The officers drove unmarked vehicles and wore plain clothes. Defendant was identified as he drove away from his home. Before the officers could stop him, defendant made an unexpected U-turn and ended up driving toward the officers. One unmarked car driven by Officer Linn confronted defendant head-on, and both vehicles came to a complete stop. By this time, the officer had already activated the red and blue flashing lights located on his visor. Another unmarked police car’s lights were also activated as it approached from the rear. After defendant and Officer Linn made eye contact, the officer attempted to exit his vehicle. Defendant rammed his car into Officer Linn’s vehicle as he tried to escape. The other officers converged on defendant, lights flashing, and ultimately arrested defendant.
The Trial
Defendant was charged with two counts of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)) and two counts of aggravated assault on a peace officer (§ 245, subd. (c).) The People further alleged defendant was armed with and personally used a firearm in commission of the robberies (§§ 12022, subd. (a)(1), 12022.53, subd. (b).)
All further statutory references are to the Penal Code.
After closing argument, the court gave the standard form jury instructions on robbery and the lesser included offense of grand theft (§ 487). (See CALCRIM No. 1600 [robbery]; CALCRIM No. 1800 [grand theft].) The robbery instruction required the People to prove “[t]he property was taken against [a] person’s will.” It clarified, “An act is done against a person’s will if that person does not consent to the act. In order to consent, a person must act freely and voluntarily and know the nature of the act.” The grand theft instruction required the People to prove “[t]he defendant took the property without the owner’s or owner’s agent’s consent.”
During deliberations, the jury presented the court with a written question on consent. It asked: “On count 1, if there is a reasonable doubt that count 1 or lesser charge was committed with the consent of the owner’s agent, must we find the defendent [sic] not guilty of robbery or the lesser offence?” The court discussed this with counsel at length and, after satisfying defense counsel’s only concern, replied: “If I understand your question correctly here is the answer: If you have unanimously found the defendant Not Guilty on Count 1, then you must decide whether the People have proven beyond a reasonable doubt each element of the crime of Grand Theft by independently analyzing each element in light of the evidence. Does this answer your question[?]” The jury responded “No.”
The court called the jury into open court to discuss its concerns. The jury foreperson then asked: “I think we have the idea that if robbery of the first degree here – or Number 1 – would be a dwelling; so we’re looking at grand theft, a lesser charge.” The court corrected the foreperson, instructing the jury to examine second degree robbery. The court then directed the jury to analyze the lesser included charge of grand theft if it found defendant not guilty of second degree robbery. The foreperson asked what to do if the jury doubted whether one of the victims was actually a victim, the court answered “it depends on the charge, ” and it instructed the jury to look at the charges element by element. The court told the jury that if it unanimously agreed an element of a charge was not proved, it must find “not guilty” on that charge. When another juror asked a question about a victim’s “possible participation, ” the court immediately interrupted to instruct the jury not to reveal its reasoning. Lastly, the jury asked: “Is if [sic] we conclude that the robbery was committed against the owner, with the assistance of the owner’s agent, can we still find the defendant guilty of robbery in the count against the owner’s agent?” The court reviewed this question with counsel out of the jury’s presence, and everyone agreed the answer was “No.” The court submitted a written response to the jury.
At defense counsel’s request, the court agreed to communicate with the jury in writing for any non-obvious questions and answers.
The jury found defendant guilty of second degree robbery of the employee but acquitted defendant of second degree robbery of Hernandez, instead finding him guilty only of the lesser included offense of grand theft. It acquitted defendant of aggravated assault, but found him guilty of the lesser included offense of misdemeanor assault on a peace officer (§ 241, subd. (c)). It acquitted defendant on the other aggravated assault count. And it found the firearm allegations not true. The court sentenced defendant to a total term of 3 years, 8 months in state prison.
DISCUSSION
Substantial Evidence Supported the Assault Conviction
Defendant challenges his assault conviction, claiming the evidence was not sufficient to show he knew or reasonably should have known Officer Linn was a peace officer engaged in the performance of his or her duties. (See § 241, subd. (c).) We review the record for substantial evidence supporting the verdict. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206 (Ochoa); People v. Johnson (1980) 26 Cal.3d 557, 576.) We “‘view the evidence in the light most favorable’” to the People, presuming the existence of every fact the jury may reasonably derive from the evidence. (Ochoa, supra, 6 Cal.4th at p. 1206.) We do not ask whether the trial evidence established guilt beyond a reasonable doubt, but only whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Jackson v. Virginia (1979) 443 U.S. 307, 319.)
The evidence presented at trial was sufficient for a reasonable jury to find defendant knew or reasonably should have known Officer Linn was a peace officer at the time of the assault. Officer Linn had confronted defendant head-on, their vehicles separated by only 20 feet. The officer testified he activated his visor lights before directly confronting defendant. Other officers testified the same. The police sergeant who drove up behind defendant testified his lights had been flashing, too. Officer Linn testified the events leading up to the confrontation happened “rather slow, ” because neither unmarked police car was driving fast. Though the stand-off lasted only a few seconds, there was enough time for Officer Linn to make eye contact with defendant and begin getting out of his van. We defer to the jury’s acceptance of this testimony. (See Ochoa, supra, 6 Cal.4th at p. 1206.)
Defendant responds only with his own contrary inference from the record. He asserts the unmarked vehicles and plain clothes had the unintended consequences of hiding that Officer Linn was a police officer. Defendant also relies upon the testimony of a neighbor who heard the crash and, by the time he saw the scene, did not notice flashing police lights. But what defendant knew or should have known is a question of fact for the jury, as is witness credibility. (See Ochoa, supra, 6 Cal.4th at p. 1206.) The jury apparently credited the officers’ testimony over defendant’s inferences — that the officers’ lights must have been dark before the neighbor witnessed the scene, and even if they were flashing, defendant did not notice them on the unmarked cars. We will not second-guess the jury’s determination. (Ibid.)
The Grand Theft Conviction Stands
Defendant asserts his conviction for grand theft also should be set aside for insufficient evidence. He asserts no substantial evidence showed Hernandez did not consent to the theft. He stakes his claim on the jury questions, which he asserts revealed its “obvious factual finding of consent by Hernandez.”
Substantial evidence shows Hernandez did not consent to the theft. Hernandez testified he did not know defendant nor recognize his name. He testified defendant forced him to the floor and had a gun. He recalled defendant threatened that he would be shot if he got up off the floor too soon. Finally, Hernandez stated he felt “extremely scared at the time” of the incident. This is sufficient evidence to affirm the grand theft conviction. (See Jackson v. Virginia, supra, 443 U.S at pp. 318-319; see also People v. Zavala (2005) 130 Cal.App.4th 758, 766 [one witness’s testimony may be substantial evidence].)
Defendant rests his contention squarely on the questions of the jury. He claims the jury questions revealed its basis for acquitting defendant of second degree robbery of Hernandez — Hernandez’s consent — and asserts this finding of consent requires his acquittal of grand theft. But this is sheer speculation. The jury did not necessarily find Hernandez had consented to the robbery, despite its questions. The jury could have resolved its concerns about consent and acquitted defendant of the robbery for any number of reasons. And different jurors could have acquitted on different elements, as the court noted. The jury questions and defendant’s speculation about them do not trump the substantial evidence that Hernandez did not consent to grand theft. (See Ochoa, supra, 6 Cal.4th at p. 1206.)
In a similar vein, defendant contends the court failed to fully instruct the jury on consent with respect to grand theft. The court gave the standard form instruction on grand theft, including the element that defendant “took the property without the owner’s or owner’s agent’s consent.” (CALCRIM No. 1800.) Defendant concedes this is a correct statement of law, as far as it goes, but asserts the court inadequately responded to the jury questions demonstrating its confusion on consent.
When a deliberating jury presents the court with questions, the court must inform it on the applicable points of law. (See § 1138; People v. Eid (2010) 187 Cal.App.4th 859, 881-882 (Eid).) We recognize “[j]ury questions can present a court with particularly vexing challenges.” (People v. Moore (1996) 44 Cal.App.4th 1323, 1331.) The court may not “figuratively throw up its hands and tell the jury it cannot help.” (Ibid.) Instead, it must consider whether the jury will be best aided by further explanation or by repetition of the initial instructions. (Ibid.) “Where the original instructions are themselves full and complete, ” the court has discretion to decide what supplemental explanations are “sufficient to satisfy the jury’s request for information.” (People v. Beardslee (1991) 53 Cal.3d 68, 97.) We review any error for abuse of discretion. (Eid, supra, 187 Cal.App.4th at p. 882.)
“After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called.” (§ 1138.)
Any such abuse is subject to harmless error analysis pursuant to People v. Watson (1956) 46 Cal.2d 818, 836. (See Eid, supra, 187 Cal.App.4th at p. 882.) Defendant would have us review the court’s responses instructions under the Chapman standard (see Chapman v. California (1967) 386 U.S. 18, 24) because the court somehow removed consent from the jury’s consideration. But the court stressed the jury must analyze every element of each offense, which would include the element of lack of consent. Because the court did not err, we have no reason to assess prejudice under either standard.
Here, there was no abuse of discretion. The initial jury question used language from the grand theft instruction to ask essentially whether a reasonable doubt about Hernandez’s consent to robbery required acquittal of both robbery and grand theft. The court adequately responded by directing the jury to “independently analyz[e] each element [of grand theft] in light of the evidence.” That the jury did not find this response immediately satisfactory does not mean the court erred. The court did not throw up its hands and refuse to help (People v. Moore, supra, 44 Cal.App.4th at p. 1331), but continued to exercise its discretion by inviting the jury into open court to address its concerns in the presence of counsel. When the jury asked how it should find if it had reasonable doubt about Hernandez being a victim, the court reminded the jury to consider every element of each offense, and if it found an element was not met, the jury must find defendant not guilty of that respective offense. We see no abuse of discretion in that.
Nor was it abusive for the court to answer “No” to the last jury question: “Is if [sic] we conclude that the robbery was committed against the owner, with the assistance of the owner’s agent, can we still find the defendant guilty of robbery in the count against the owner’s agent?” Defendant now contends this response was incomplete because it left the “possibility of the jury then proceeding to consideration of the lesser theft offense.” But there is nothing wrong with that. The jury should consider each charged and lesser included offense. The court’s response did not suggest how the jury should find on the lesser included offenses, appropriately leaving that determination to the jury.
Defendant asserts his trial counsel’s failure to insist on additional clarification amounted to ineffective assistance of counsel. Because the court properly instructed the jury on grand theft and answered the jury questions about consent without abusing its discretion, defendant fails to show either deficient performance or prejudice. (See Strickland v. Washington (1984) 466 U.S. 668, 687.)
In short, defendant incorrectly assumes the jury found Hernandez consented to the robbery and was duty-bound to find Hernandez consented to the grand theft. Not so. The jury must consider each element of each offense. And even if the jury made inconsistent findings on consent — and defendant has not shown it did — reversal does not follow. “[A]n inherently inconsistent verdict is allowed to stand; if an acquittal of one count is factually irreconcilable with a conviction on another... effect is given to both. [Citations.] When a jury renders inconsistent verdicts, ‘it is unclear whose ox has been gored.’ [Citation.] The jury may have been convinced of guilt but arrived at an inconsistent acquittal... ‘through mistake, compromise, or lenity....’” (People v. Santamaria (1994) 8 Cal.4th 903, 911.) Defendant “‘already is afforded protection against jury irrationality or error by the independent review of the sufficiency of the evidence undertaken by the trial and appellate courts.’” (People v. Palmer (2001) 24 Cal.4th 856, 863 [allowing inconsistent verdicts among conspirators].)
Here, the court adequately instructed the jury and substantial evidence supports the grand theft conviction regarding Hernandez. It is immaterial why the jury acquitted defendant of robbing Hernandez. “Because the defendant is given the benefit of the [robbery] acquittal, ‘it is neither irrational nor illogical to require [him] to accept the burden of [the grand theft] conviction....” (People v. Santamaria, supra, 8 Cal.4th at p. 911.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: O’LEARY, ACTING P. J., FYBEL, J.