Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. TA108060, Arthur M. Lew, Judge.
Trisha Newman, 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, Assistant Attorney General, Paul M. Roadarmel, Jr. and Baine P. Kerr, Deputy Attorneys General, for Plaintiff and Respondent.
CHANEY, J.
Kenneth Robertson appeals from a judgment entered after a jury convicted him of robbery and petty theft with a prior. He contends the trial court committed reversible error in instructing the jury by (1) neglecting to read two paragraphs of the reasonable doubt instruction and (2) informing the jury about his prior conviction for a theft offense after he had admitted the prior and entered into a stipulation with the People about it. Any error in instructing the jury was harmless. We also reject Robertson’s contention that the court erred in declining his request for instructions on self-defense. Such instructions were not warranted based on the evidence presented at trial.
Robertson also contends, and the People concede, that he could not be convicted properly of both robbery and petty theft. Petty theft is a lesser included offense of robbery, and these convictions are based on the same course of conduct. Accordingly, we reverse the petty theft conviction.
BACKGROUND
On August 21, 2009, Robertson went to a Rite Aid store. Rite Aid employee Charles Rangel saw Robertson enter the store. Rangel was patrolling the store in plain clothes, looking for shoplifters while posing as a customer. Rangel continued to make his rounds through the store.
About seven minutes later, Rangel saw Robertson again. Robertson was standing in an aisle containing merchandise related to car washing. Robertson was hunched over and he was adjusting the waist area of his pants. Robertson’s actions made Rangel suspicious. Rangel continued to observe Robertson from an adjacent aisle by looking in a mirror on the ceiling. Rangel saw Robertson take “two car wash towels” and some turtle wax off the shelf and place the items in the waistband of his pants. Robertson headed to the front of the store and so did Rangel.
Rangel walked to the exit and waited there for Robertson. Robertson walked past the cash registers without paying for any items. Rangel blocked Robertson from leaving the store and said: “‘Excuse me sir. Would you like to pay for the items in your pants?’” Robertson told Rangel to move out of his way. Rangel stated that he worked as “loss prevention” for the store and would not move out of Robertson’s way until Robertson “unconcealed the items that he put in his pants.”
Rangel reached into his pocket for his Rite Aid identification badge. Before he could pull it out, Robertson moved closer to Rangel, bent his head down and punched Rangel in the face on the cheek. Robertson also hit Rangel on the lip. Rangel hit Robertson back. During the scuffle, Robertson “continued to force his way through the door.”
The prosecutor showed the jury a store surveillance video which showed the scuffle between Robertson and Rangel. As discussed below, we have reviewed the video as it relates to Robertson’s claim that the trial court should have instructed the jury on self-defense.
Two store managers joined Rangel outside and “wrestled” with Robertson and held him. Rangel untied shoelaces which were wrapped around Robertson’s ankles and pulled out the two car wash towels. Rangel was unable to remove the turtle wax from Robertson’s pants. Robertson continued to resist and told the managers to let him go.
Rangel called the police, who arrived five to 10 minutes later. Sheriff’s deputies detained Robertson and handcuffed him. Robertson was lying on the ground. Then he got up and ran about 20 feet. The turtle wax fell out of his pants and he slipped on it. Deputies caught Robertson and arrested him.
At trial, the parties entered into the following stipulation, which was read to the jury: “Kenneth Robertson was previously convicted of a theft-related offense in Case No. NA030591 with a conviction date of December 20, 1996, in the Long Beach Superior Court; and that Mr. Robertson served a term in the penal institution, for purposes of count 2 [petty theft with a prior].”
The jury found Robertson guilty of second degree robbery (Pen. Code, § 211; count 1) and petty theft with a prior (§§ 484, subd. (a) & 666; count 2). Robertson waived his right to jury trial on the prior conviction allegations in the information, and the trial court found them to be true.
Further statutory references are to the Penal Code.
The trial court sentenced Robertson to six years in prison: the mid-term of three years for the robbery, doubled to six years for a prior strike (§§ 667, subds. (b)-(i) & 1170.12, subds. (a)-(d)). The court stayed the sentence on the petty theft with a prior (the low term of 16 months doubled).
The trial court originally stated that the sentence on count 2 for petty theft with a prior was to run concurrently with the sentence on count 1 for robbery. The court later made clear that the sentence on count 2 was stayed. The minute order and abstract of judgment reflect a concurrent sentence. We need not order these clerical errors corrected because we are reversing the conviction on count 2.
DISCUSSION
I. Jury Instructions
A. Reasonable Doubt
When the trial court orally instructed the jury on reasonable doubt using CALCRIM No. 220, the court read the first two paragraphs of the standard instruction but neglected to read the last two paragraphs. Robertson contends the court committed reversible error. We disagree.
As a threshold matter, we reject the People’s assertion that Robertson forfeited this claim by not objecting below. Robertson has argued that the trial court denied him due process by failing “to fully and adequately instruct the jury on the standard of proof beyond a reasonable doubt.” We address his contention on the merits to determine whether there was an impairment of his substantial rights. (See People v. Anderson (2007) 152 Cal.App.4th 919, 927.)
The trial court read to the jury the following part of CALCRIM No. 220: “The fact that a criminal charge has been filed against the defendant is not evidence that the charge is true. You must not -- I’m sorry. You must not be biased against the defendant just because he has been arrested, charged with a crime, or brought to trial. [¶] A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. [¶] Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt unless I specifically tell you otherwise.”
The court neglected to read to the jury the following part of CALCRIM No. 220: “Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. [¶] In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty.”
To state that the jury was not instructed with the complete version of CALCRIM No. 220 is disingenuous. The court included the complete instruction in the packet of written instructions provided to the jury. This is not a case like those Robertson cites where the jury did not have available to it any portion of the standard instruction on reasonable doubt. (See e.g., People v. Vann (1974) 12 Cal.3d 220; People v. Elguera (1992) 8 Cal.App.4th 1214, 1222-1223.) Here, if jurors had any question about the definition of reasonable doubt, or what they were to do if they believed the prosecutor had not proved any element beyond a reasonable doubt, they had the answer with them in the jury room during their deliberations.
“‘It is generally presumed that the jury was guided by the written instructions.’ [Citations.] The written version of jury instructions governs any conflict with oral instructions. [Citations.] Consequently, as long as the court provides accurate written instructions to the jury to use during deliberations, no prejudicial error occurs from deviations in the oral instructions.” [Citations.] (People v. Rodriguez (2000) 77 Cal.App.4th 1101, 1112-1113.)
Any error in the trial court’s reading of CALCRIM No. 220 was harmless. Because the jury received the complete instruction in written form, and the trial court did not read anything that was an incorrect statement of the law, we have no reason to believe that the jury was misled about the standard of proof beyond a reasonable doubt.
B. Prior conviction for theft offense
As set forth above, the parties entered into a stipulation about Robertson’s prior conviction for a theft-related offense, and the stipulation was read to the jury for purposes of count 2, petty theft with a prior. Robertson contends the trial court erred in informing the jury about this prior conviction, given his admission and stipulation. We agree that the court erred, but disagree with Robertson’s assertion that the error is reversible.
The People argue that Robertson forfeited this claim by not objecting to the reading of the stipulation, or to the jury instruction on petty theft with a prior (CALCRIM No. 1850) which referenced the stipulation. We disagree. Robertson’s counsel objected to including in the stipulation the fact that Robertson had served time in a penal institution for the prior theft offense. The trial court made clear that it believed the jury needed to be informed about the prior conviction and the time served: “Well, we do [have to read the stipulation] because [the jurors] have to know the elements and they have to know what’s stipulated to. So I think we do have to do that.”
The People concede “that the trial court should not have informed the jury of [Robertson]’s prior conviction because he had admitted and stipulated to it.” As the California Supreme Court concluded in People v. Bouzas (1991) 53 Cal.3d 467, 480, “the prior conviction and incarceration requirement of section 666 is a sentencing factor for the trial court and not an ‘element’ of the section 666 ‘offense’ that must be determined by a jury.” Robertson “had a right to stipulate to the prior conviction and incarceration and thereby preclude the jury from learning of the fact of his prior conviction.” (Ibid.)
The trial court’s error is harmless in this case because there is not a reasonable probability that the outcome would have been more favorable to Robertson if the court had not informed the jury about the prior theft-related conviction. (People v. Bouzas, supra, 53 Cal.3d at p. 481 [applying Watson standard to this error]; People v. Watson (1956) 46 Cal.2d 818, 836-837.)
The evidence of robbery was strong. Robertson took property off the shelf of a Rite Aid store and concealed it in his pants. He walked to the exit. When Rangel asked Robertson to show him the items, and informed Robertson that he worked for the store, Robertson punched Rangel and tried to get away with the property. The police recovered the items that Robertson took. Given the strength of the evidence against Robertson, it is not reasonably probable that the jury convicted him of robbery due to the trial court’s error in informing the jury about the prior conviction for a theft-related offense.
We reject Robertson’s claim that the trial court’s “cumulative errors” denied him a fair trial. The combination of the court’s failure to read two paragraphs of the reasonable doubt instruction (where the jury received the complete written instruction), and the court’s error in informing the jury about Robertson’s prior theft-related conviction was not prejudicial to Robertson. We find no “substantial detriment to the fairness or reliability of [Robertson’s] trial.” (People v. Sanders (1995) 11 Cal.4th 475, 537.)
C. Self-defense
Robertson requested that the trial court instruct the jury on self-defense. His counsel argued: “I think that given the fact that there is evidence the security guard never identified himself -- the video shows him coming up to my client, blocking him, pulling his arm back to strike him, and the security guard admits striking him -- that the jury can conclude he had the right to act in self-defense.” The trial court declined the request, stating: “I don’t see anything that justifies a self-defense instruction because all the evidence points to is that the defendant hit the victim. [¶] It is true there is some discrepancy or conflict in the testimony as to whether he identified himself as a loss prevention agent. But even so, that doesn’t rise to self-defense, especially when you consider there is other evidence that the defendant was in possession of items from the store, et cetera, et cetera, and that the victim, although he may not have said loss prevention, he did tell him to put the items back.” Robertson contends the court erred in refusing to instruct on self-defense. We disagree.
“Requested instructions on a defense must be given if they are supported by substantial evidence, rather than ‘minimal and insubstantial’ evidence. [Citation.] Evidence is substantial if a reasonable jury could find the existence of the particular facts underlying the instruction. If the evidence is substantial, the trial court is not permitted to determine the credibility of witnesses, which is a task for the jury. [Citations.]” (People v. Lee (2005) 131 Cal.App.4th 1413, 1426.)
“‘To justify an act of self-defense..., the defendant must have an honest and reasonable belief that bodily injury is about to be inflicted on him. [Citation.]’ [Citation.] The threat of bodily injury must be imminent [citation], and ‘... any right of self-defense is limited to the use of such force as is reasonable under the circumstances. [Citation.]’ [Citations.]” (People v. Minifie (1996) 13 Cal.4th 1055, 1064-1065.)
Robertson argues that when Rangel “stood in [his] path” as he “attempt[ed] to exit the store, ” “a reasonable person in [his] shoes, might have felt threatened by possible false imprisonment or other unknown harm such as assault and/or battery.” He asserts there is substantial evidence in the record that he hit Rangel not to accomplish the taking of the property but “to defend himself against this unknown assailant.” A “victim is privileged to resist [an assault or battery] with such force as is reasonable under the circumstances.” (People v. Myers (1998) 61 Cal.App.4th 328, 335.)
Robertson’s theory of the case is not supported by substantial evidence. Robertson took Rite Aid property, secreted it on his person and walked past the cash registers without paying for it. Rangel blocked Robertson from leaving and asked Robertson if he would like to pay for the items concealed in his pants. Rangel testified that he informed Robertson that he worked as “loss prevention” for the store. When Rangel refused to move out of the way, Robertson punched him. The evidence demonstrates that Robertson used force so that he could leave the store with the property. The evidence does not indicate that Robertson was trying to defend himself against an assault or battery by an “unknown assailant.”
Rangel’s testimony that he identified himself to Robertson as a store loss prevention employee, before Robertson punched him, is not contradicted in the record. When the prosecutor asked Rangel at trial if he identified himself to Robertson as a “security guard, ” Rangel stated that he did not recall. When the prosecutor asked the sheriff’s deputy who interviewed Rangel if Rangel told her he had identified himself to Robertson as a “security guard, ” the deputy testified: “I do not recall. I don’t believe so.” This evidence does not contradict Rangel’s testimony that he identified himself to Robertson as a store loss prevention employee (before Robertson punched him). That Rangel did not have time to pull out his identification badge and show it to Robertson before Robertson punched him, does not tend to show that Robertson did not understand Rangel was a store employee based on Rangel’s verbal identification. Rangel’s testimony that Robertson punched him in the face before he hit Robertson back is similarly uncontradicted.
We have reviewed the store surveillance video which shows the scuffle between Robertson and Rangel. The video does not show Rangel threatening Robertson in any manner before Robertson punched Rangel. Because of the delays between frames in the video, it is not possible to discern what Rangel was doing immediately before Robertson punched him. Defense counsel’s self-defense theory was based on speculation that Rangel had threatened Robertson before Robertson threw the first punch. There is no evidence in the record supporting this position.
Robertson’s self-defense theory is not supported by substantial evidence and the trial court did not err in declining to instruct on it.
II. Petty Theft Conviction
Robertson contends that his conviction for petty theft with a prior must be reversed because it is a lesser included offense of robbery. The People agree.
In People v. Villa (2007) 157 Cal.App.4th 1429, 1432, 1433-1435, the Court of Appeal held that the defendant could not be convicted of both robbery of a store employee and petty theft of the store’s property based on the same course of conduct (the taking of a car navigation system) because petty theft is a lesser included offense of robbery. The court rejected the People’s argument that the defendant could be convicted of both robbery and petty theft because the crimes involved different victims. The court concluded that the crimes “legally” had the same victim because the store employee was the agent of the store employer. (Id. at p. 1435.) Moreover, the fact that the defendant was charged with and convicted of petty theft with a prior–as Robertson was in this case–did not mean that the crime was not a lesser included offense of robbery because the prior conviction requirement of section 666 is a sentencing factor and not an element of the offense. (Id. at pp. 1434-1435.)
“Robbery has the elements of theft plus an additional element, use of force or fear.” (People v. Villa, supra, 157 Cal.App.4th at p. 1434.)
Here, Robertson was charged with and convicted of the robbery of a Rite Aid employee and the petty theft (with a prior) of Rite Aid property based on the same course of conduct (his taking of certain store merchandise). The parties correctly conclude that the petty theft with a prior is a lesser included offense of the robbery, and Robertson’s conviction for petty theft with a prior must be reversed.
DISPOSITION
The conviction for petty theft with a prior (count 2) is reversed. In all other respects, the judgment is affirmed.
We concur: MALLANO, P.J., ROTHSCHILD, J.