PEOPLE v. MERRITT

Respondent’s Petition for Review

Cal.January 11, 2016

PTCPPY WATE PERMISSION $2316 44 OY Jn the Supreme Court of the State of California THE PEOPLE OF THE STATE OF CALIFORNIA, Case No. S Plaintiff and Respondent, Vv. OUPREMECOURT FILER ANDRE MERRITT, Defendant and Appellant, JAN 11 2046 Frank A. McGuire Clark Deputy Fourth Appellate District, Division Two, Case No. E062540 San Bernardino County Superior Court, Case No. FVI1300082 The Honorable Debra Harris, Judge PETITION FOR REVIEW KAMALAD. HARRIS Attorney General of California GERALD A, ENGLER Chief Assistant Attorney General JULIE L. GARLAND Senior Assistant Attorney General A. NATASHA CORTINA Supervising Deputy Attorney General CHRISTEN SOMERVILLE Deputy Attorney General State Bar No. 299690 600 West Broadway, Suite 1800 San Diego, CA 92101 P.O. Box 85266 San Diego, CA 92186-5266 Telephone: (619) 645-2403 Fax: (619) 645-2044 Email: Christen.Somerville@doj.ca.gov Attorneysfor Respondent a 1 R S F A T E R A Y A : S S e o : TABLE OF CONTENTS Page Issue Presented... eeessesceeseseecesesseceseeesseeeseeessaeeesesesesensssecsseeeeaseseerseseseesas 1 Statement of the Case oo...eee eeeseeereecseereneesesecesesseceessanesseeenseeseeeeseeags 1 Reasons for Granting REVICW.......:cccccssccesseeeseeeeeseeeeseesessesnaeetenaeenietesaetenes 2 I. Review is necessary to resolve whether the rule under People v. Cummings, that error in failing to instruct on substantially all of the elements of a charged offenseis reversible perse,is still good law in light of Nederv. US. cccccecssecscecssnecessesneveeseseceeeeseeceneesaeceseteasenetenteeaceseasesseteneeease 2 COMCIUSION 00... ceeceesceeeeesneeeeseneenseeeeseeecesseeceesenseesersnaverseasesscesesesenaneeeseeeesags 12 TABLE OF AUTHORITIES Page CASES Neder v. United States (1999) 527 US. 1 iceecccccssecesssnneeessececseeessasceserenneeeenneserseeeseeseeerespassim People v. Aranda (2012) 55 Cal.4th 342 occaceseeeseeersereenaseseeeesaseesseeeseasersnes 3,5,7 People v. Avila (1995) 35 Cal.App.4th 642...ccccscccsseecesneeceseersneessateeseneeseaeeenereeeaes 1] People v. Barrie (Cal. Ct. App., Dec. 7, 2015, F067893) 2015 WL 8053618...eee9 People v. Belmontes (Cal. Ct. App., July 30, 2004, E033510) 2004 WL L701 158eeeceesceteesesnesssceeesaneeseseesssceseesecstesssseesseecenecssaressenesssneeeeeeutas 8 People v. Cummings (1993) 4 Cal.4th 1233 ooo. eccsecccccsseccsstsesssseeseseeseeesssresceseeeessereeersspassim People v. Griesa (Cal. Ct. App., June 21, 2012, C066058) 2012 WL | 2354396 0... eecccseeccesccnsecsecesecesecceaeesaeesseseseeseeesaeeseeeessesseeseesseteeaeerseeenaeeseanees 8 People v. Hill (1998) 17 Cal.4th 800 ooo.eeeecessecneesersaceesecsersaeseseneeaeseaeeatensetsereasens 7 People v. Lohner (Cal. Ct. App., Feb. 17, 2005, A100573) 2005 WL 387970...7,8 People v. Magee (2003) 107 CalApp.4th 188.0... ccsscsessecssessessrssscesrsetsssneseneesseeres 7 People v. Merritt (Cal. Ct. App., Nov. 20, 2015, E062540) 2015 WL TAAAT&9 .occssesseseeseeesnssnnenesessesussssasnssnssansacececsnnansseecececseccencencccccesaeeceeeeneee 8 People v. Mil (2012) 53 Cal.4th 400 oecceesssetessceneceeeseeessecesneeneesseeeeesareeenspassim il TABLE OF AUTHORITIES (continued) Page People v. O'Neal (Cal. Ct. App., Apr. 17, 2007, A112206) 2007 WL 1129366 uc ceescccsscesscsseeesceecsneeecesseceersceceaeecseceessaecesesesaeeeeatscnseesenesensesensaees 8 People v. Sims (Cal. Ct. App., Nov. 20, 2014, B238001) 2014 WL 6634668 oo. ..ccecccccccccescrsscneecnsecesaeeccsecnscaeeeeeseeenaeseserseessaessesesserseeraeranenanersaes 8 People v. Uy (Cal. Ct. App., Nov. 14, 2014, C063037) 2014 WL 6065995 oo eeccccecsetteeeneccerseeeeseaeeeateneenereeereaseseeesetssssesseessseseesensneneestogeeees 8 People v. White (Cal. Ct. App., June 8, 2012, B230371) 2012 WL 2054896 ..a.8 Rose v. Clark (1986) 478 U.S. 570 Lo cecceescceesssecsecssecsseecesaeeenaeesseeenseeeeneecssasensaeeeeeeeeeas 11 Sullivan v. Louisiana (1993) 508 U.S. 275 .o.ccecccccssccesesssessessesesaeecsneeesseeceseeseaesetseeseaeessasecsnesseeners 4 ili TABLE OF AUTHORITIES (continued) Page STATUTES Evidence Code § 452, SUD. (C/o...eeeceeeeeeeteneereneneeeeeeesrseeeneeaeecsaaesessaeeesesenseeseaneeeges 7 Penal Code . SQL iececcsesssesessnecesneeeesaecseesseeesseeecesseeesneeeecaceseseueeeseaaeeesseesneeeseaeene 1 § 12022.53, SUbd. (b) 0...eee eeteeseeeeseeeeeeneeerereeeseeeceeereneesssaateeeseceaeeseeeee 1 COURT RULES California Rules of Court § 8.500... ccceceesssccecsrecencersncecscueseseeeseneesesaaeesseeeseauecsseceeeseceaaeecsatereeeseaters 1 § 8.500, Subd. (D)(1) oo... eccceccccsecesssseeceessesessereceessnessssaneeeceseeessnaaseesags l OTHER AUTHORITIES CALCRIM No.’s SS eeeccecccsceeesessreceensneeeesecaaeeesareseeeueeeceseaueeecandesseasesseeneeeeenaeeeeenanees 10 § 3146eeeccecccessneeecssnceecsesseeesereseseessecesteueeseecauecsestesecnneeseceuaeeseeaneees 10 § 1600...vecaceseecseceesuscecsscaceuecceuesscunecensacececsacecensecenseseeesAL 2,9, 10 iV Pursuantto rule 8.500 of the California Rules of Court, the People of the State of California respectfully request that this court grant review of the November20, 2015, decision of the Court of Appeal, Fourth District, Division Two,in this matter to settle an important question of law. (Cal. Rules of Court, rule 8.500, subd. (b)(1).) The Court of Appeal reversed appellant Andre Merritt’s two robbery convictions because the trial court failed to instruct the jury on multiple elements of the charged offense, and the court held such error was reversible per se. A copy of the Court of Appeal’s slip opinion is attached to this Petition. The Court of Appeal denied the People’s Petition for Rehearing on December 16, 2015. ISSUE PRESENTED Is the failure to instruct the jury on the elements of a charged offense subject to harmless error review under Neder v. United States (1999) 527 US. 1? STATEMENT OF THE CASE A San Bernardino County jury convicted appellant of two counts of second degree robbery (Pen. Code, § 211) and foundtrue that he personally used a firearm in the commissionofthe offenses (§ 12022.53, subd.(b)).' Thetrial court sentenced appellant to prison for 19 years and four months. Thetrial court failed to instruct the jury with CALCRIM No. 1600, the standard instruction on the elements of robbery. On appeal, appellant claimed, in relevantpart, that the trial court erred in failing to instruct the jury on the elements of robbery, and such error was reversible per se under People v. Cummings (1993) 4 Cal.4th 1233 (Cummings). The People concededthat the court erred in failing to instruct on some elements of robbery, but argued that the error was subject to ' All further statutory references are to the Penal Code unless otherwise indicated. harmless error review pursuant to People v. Mil (2012) 53 Cal.4th 400 (Mil), which relied on Neder v. United States (1999) 527 U.S. 1 (Neder). The People argued that any error was harmless beyond a reasonable doubt because (1) the court’s other instructions required that the jury find multiple elements of robbery beyond a reasonable doubt; (2) appellant concededall of the elements of robbery except identity; (3) counsel for both sides listed all of the elements of robbery for the jury during argument; and (4) overwhelming evidence proved appellant was the person who committed the robberies. The Court of Appeal reversed appellant’s two robbery convictions on the groundthat the failure to instruct on substantially all of the elements of the charged offenses was reversible per se under People v. Cummings, supra, 4 Cal.4th 1233. (Slip opn. at p. 9.) The court did not address People v. Mil, supra, 53 Cal.4th 400, cited by the People, which holdsthat failure to instruct on multiple elements of the charged offense is subject to harmlesserror review. The People filed a petition for rehearing, which the court denied without comment. REASONS FOR GRANTING REVIEW I. REVIEW IS NECESSARY TO RESOLVE WHETHER THE RULE UNDER PEOPLE V. CUMMINGS, THAT ERRORIN FAILING TO INSTRUCT ON SUBSTANTIALLY ALL OF THE ELEMENTS OF A CHARGED OFFENSEIS REVERSIBLE PERSE, IS STILL GOOD LAW IN LIGHT OF NEDER V. U.S, This case involves an important issue of law, namely whethercertain constitutional instructional errors should be considered structural and therefore reversible per se or should be subject to harmless error review governing most constitutional errors. The Court of Appeal here, in reversing two robbery convictions for failure to give CALCRIM 1600 setting forth the elements for robbery, opted for finding structural error. It did so based solely on this court’s decision in People v. Cummings, supra, 4 Cal.4th 1233. But post-Cummings, the United States Supreme Court in Nederclarified the law concerning whether harmless error analysis applied to instructional errors of constitutional dimension andheld that it did. And, in Mil and People v. Aranda (2012) 55 Cal.4th 342 (Aranda), this court followed Neder and reached the same conclusion. However, this court did not expressly disapprove Cummings onthis point and lower courts have been struggling to reconcile the decisions eversince. Somecourts, as in this case, have applied Cummings and found instructional error concerning the elements of the charged offense structural and therefore reversible per se while other courts have applied Neder and Milto find the sametype of error subject to harmless error review. Application of the rule in Cummingsleadsto arbitrary results, as demonstrated below, while application of the rule in Neder and Mil preserves judgments obtained from fundamentally fair trials where error is proven harmless beyond a reasonable doubt. Review is necessary to resolve whetherthe holding in Cummingsisstill good law in light of such new authority. Alternatively, the People request that this court remandthis case to the Court of Appeal with directions to address the rule promulgated in People v. Mil, and to conduct a harmlesserror analysis. The People relied on Mil in the respondent’s brief and Petition for Rehearing, however the Court of Appeal reversed appellant’s convictions and denied the petition without addressing Mil. A tension exists within California law and between California law and United States Supreme Court law concerning whether harmless error review applies to instructional errors of constitutional dimension, such as the failure to instruct on substantially all of the elements of a charged crime. At the time this court decided Cummings, state and federal courts lacked guidance from the United States Supreme Court concerning whether harmlesserror analysis could apply to instructional error concerning omitted elements of charged offenses or whether such error wasreversible per se. Accordingly, various courts approachedthe issue differently. (Cummings, supra, 4 Cal.4th 1233 at pp. 1312-1314 [discussing state and federal cases addressing whether suchinstructional errors werestructural].) In Cummings, this court held that harmless error review is inapplicable to an instructional error that withdraws from the jury’s consideration _ substantially all of the elements of an offense, unless, through other instructions, the jury found the facts necessary to support a conclusion that the omitted elements were proven. (/d. at p. 1315.) The United States Supreme Court subsequently resolved the conflict between the courts in Neder v. U.S., supra, 527 U.S. 1. The court held that an instructional error is subject to harmless error review even when the record does not establish that the jury found the facts necessary to show that an omitted element was proven. (Neder, at p. 14.) The court explained that an instructional error omitting an elementofthe offense is not structural error becauseit is possible to determine from the record whether the error is harmless. (/d. at p. 12.) Unlike in Sullivan v. Louisiana (1993) 508 U.S. 275, in which the court held that giving a defective reasonable doubtinstruction is structural error becauseit “vitiates all the jury’s findings,” omitting the elements of an offense does not necessarily “vitiate all the jury’s findings” because the consequencesofthe error may be determined and quantified. (/bid.) “Put another way,”structural errors “deprive defendants of “basic protections” without which “a criminal trial cannotreliably serve its function as a vehicle for determination of guilt or innocence... and no criminal punishment maybe regarded as fundamentally fair’ and “a jury instruction that omits an elementof the offense—differs markedly from the constitutional violations [the Supreme Court has] found to defy harmless-error review.” (/d. at pp. 8-9.) In Neder, the United States Supreme Court rejected the rule that Neder proposed, which was the samerule adopted in Cummings,that an. instructional error that omits an elementofthe crimeis only subject to harmless error review whenthe jury is required to find other facts that satisfy the omitted element. (Neder, supra, 527 U.S. at p. 14.) The court found the rule fundamentally flawed becauseit “imports into the initial structural-error determination (i.e., whether an error is structural) a case-by- case approachthat is more consistent with our traditional harmless-error inquiry (i.e., whether an error is harmless). Under our cases, a constitutional error is either structuralor it is not.” (bid.) Thus, the High Court found the instructionalerrorin failing to instruct on an elementofthe offense was subject to traditional harmless error review. Subsequentdecisions ofthis court such as Mil followed suit and applied harmless error analysis to instructionalerrors of constitutional dimension. (Mil, supra, 53 Cal.4th at p. 410 [failure to instruct on two elements of the alleged felony-murder special circumstance was not structural error but subject to harmless error review]; Aranda, supra, 55 Cal.4th at p. 363 [failure to instruct that the People must prove guilt beyond a reasonable doubtnotstructural error but subject to harmless error review].) This court recognized “Anerroris structural, and thus subject to automatic reversal, only in a very limited class of cases, such as the complete denial of counsel, a biased decisionmaker, racial discrimination in jury selection, denial of self-representation at trial, denial of a publictrial,” - and denial of any instruction of the burden of proof. (il, at p. 410, internal quotations omitted, citing Neder, supra, 527 U.S. at p. 8; also Aranda,at p. 363 [“[M]ost errors implicating a federal constitutionalright, including mostinstructional errors, are amenable to harmlesserror analysis and that only a ‘very limited class of cases’ are subject to per se reversal.”’].) Structural errors “deprive defendants of basic protection without which a criminaltrial cannotreliably serve its function as a vehicle for determination of guilt or innocence... and no criminal punishment may be regarded as fundamentally fair.” (AZi/, at p. 410, internal quotations omitted, citing Neder, supra, 527 U.S. at pp. 8-9.) However, this court never disapproved Cummings, and in Mil, in dicta, it indicated that it wasstill viable by distinguishing Cummings on the basis of the numberof omitted elements. (Mil, supra, 53 Cal.4th at pp. 413-414 [“In this case [. . .] the instructions omitted only two elements from the charge.”].) In Mil, two of the three elements of the charged felony-murder special circumstance allegation were omitted, whereas in Cummings, four of the five elements of the charged robbery offense were missing from the jury instructions. bid.) But the United States Supreme Court’s holding in Neder did not turn on the numberof elements omitted but the nature ofthe error; it examined whetherthe error wasstructural or not without looking at whether other properly given instructions covered the missing element. And the holding in Mi/ relied primarily on Neder. : (Id. at pp. 409-412.) Contrary to Neder, Cummings requires an examination of the other instructions, essentially a limited harmlesserror review, to determine whetherthe instructional error is reversible per se. This processoffirst looking to overlapping instructions to determine whether an instructional error is reversible per se is improper because, as the Supreme Court explained in Neder, “a constitutional error is either reversible perse, orit is not.” (Neder, supra, 527 U.S. at p. 14.) An instructional error that removes substantially all of the elements from jury consideration should be subject to traditional harmless error review under Neder’s reasoning. Also, the “all or substantially all” language in Cummings is a vague and unworkable standard that has led to and will continue to lead to arbitrary and conflicting results, as demonstrated below. Because ofthis tension between Neder, Mil and Aranda on the one hand, and Cummings on the other, California courts of appealare struggling with which standard applies and when. For example, post-Neder, the court in People v. Magee (2003) 107 Cal-App.4th 188, 195 (Magee) had to decide whetherthe failure to instruct on the elements of robbery in an accessory to robbery prosecution wasreversible per se or subject to harmlesserror review. (Magee, at p. 191.) After recognizing the tension, the Magee court elected to follow the Neder line of cases and apply harmless error review. (/d. at pp. 193-194.) But it had to distinguish Cummings on the weak groundthat the defendant in Cummings was convicted of robbery, while Magee was convicted of being an accessory to robbery. (/d. at p. 195.) In doing so, the court agreed with Neder’s rejection of the limited harmless error review to determine whetheran error wasstructural or not, stating, “[w]e reject the assertion that a mathematical computation should be used to determine whenreversal is required.” (bid.) After Magee was decided, another court of appeal examined Neder and Magee and observed,“[i]t is not clear whetherthe failure to instruct on all elements of an offenseis structural error or error that may be harmless beyond a reasonable doubt.” (People v. Lohner (Cal. Ct. App., Feb. 17, 2005, A100573) 2005 WL 387970,at *23.)° It then refused to determine > The People request judicial notice by separate cover of the following unpublished cases. This Court may take judicial notice of unpublished opinions to show “a pattern of behavior or address an institutional problem.” (People v. Hill (1998) 17 Cal. 4th 800, 847-848 [unpublished opinion of court of appeal was in category of “Recordsof ... any court ofthis state,” under Evidence Code section 452, subd. (d); 2 Supreme Court could take judicial notice in evaluating prosecutor's history of misconduct, and doing so did not cite or rely on the opinion in violation of rule generally prohibiting citation of unpublished opinions].) . S e a g e e e e o a S a g e whetherthe error wasreversible per se or not, stating that either way, the error would not be harmless. (/bid.) Additionally, two courts of appeal expressly refused to follow Cummingsin light ofNeder and applied harmless error review. (People v. Belmontes (Cal. Ct. App., July 30, 2004, E033510) 2004 WL 1701158,at *4 [all elements of charged offense omitted]; People v. O'Neal (Cal. Ct. App., Apr. 17, 2007, A112206) 2007 WL 1129366,at *6 [all elements of the charged offense omitted].) One court wrote that Cummings “has been eclipsed by more recentauthority. Both the United States and California Supreme Courts haveclearly stated that the failure to instruct a jury on the statutory elements of an offense is a trial error subject to harmlesserror analysis.” (People v. O'Neal (Cal. Ct. App., Apr. 17, 2007, A112206) 2007 WL 1129366,at *6.) Time did not resolve the confusion in the courts of appeal. Even after this court decided Mi/ in 2012, some courts of appeal have held that failing to instruct the jury on the elements of the offense is error that is reversible per se under Cummings. (This case, People v. Merritt (Cal. Ct. App., Nov. 20, 2015, E062540) 2015 WL 7444789, at *4; People v. Uy (Cal. Ct. App., Nov.14, 2014, C063037) 2014 WL 6065995,at *27 [two ofthe three elements of charged offenses omitted].) In one case, the jury was not instructed on one central element of the charged offense, and the court held the error was reversible per se under Cummings. (People v. Griesa (Cal. Ct. App., June 21, 2012, C066058) 2012 WL 2354396,at *7 [one of the three elements of charged offense omitted].) Other cases, however, have held that failing to instruct on all the elements of the charged crimeis error subject to harmless error review under Mil. (People v. Sims (Cal. Ct. App., Nov. 20, 2014, B238001) 2014 WL 6634668,at *11 [all elements of two charged offenses omitted]; People v. White (Cal. Ct. App., June 8, 2012, B230371) 2012 WL 2054896, at *10 [one of two elements of charged offense omitted].) One court recently struggled to determine what constituted “substantially all” of the elements omitted. It ultimately held that the omission ofa special allegation composedofthree elements functionally only omitted one element, thus Mil, not Cummings, applied. (People v. Barrie (Cal. Ct. App., Dec. 7, 2015, F067893) 2015 WL 8053618, at *3.) This court should review this case to resolve the conflict betweenthe rule in Cummings andthe rule in Mil and Nederline of cases, and to settle the important question of whether the failure to instruct on the elements of the charged offense is subject to harmless error review as with most errors of constitutional dimension orfalls into the very limited category of errors deemedstructural and therefore reversible per se. This case is a good vehicle to resolve this issue, because appellant received a fundamentally fair trial and the facts of this case perfectly illustrate why such instructional errors should be subject to harmless error review; the errorin failing to give the robbery instruction was particularly harmless here. As Neder pointed out, an instructional error cannot be structural where the record showsthe defendant received a fundamentally fair trial. (Neder, supra, 527 U.S.at pp. 8-9.) Thetrial in this case was fundamentally fair. There is no dispute that appellant wastried before an impartial judge with the full panoply of constitutional rights—counsel, confrontation rights and presentation of evidence. (See Mil, supra, 53 Cal.4th at p. 410.) The jury was properly instructed on reasonable doubt. Also, any error was harmiess beyond a reasonable doubt, which demonstrates that this type of error is amenable to harmless error review. Here, appellant was charged with two counts of second degree robbery andattrial, with representation by counsel, he conceded all the elements of robbery except identity. Overwhelming evidence supportedall elements of robbery. During argument, both the prosecutor and the defense counsel enumerated the elements of robbery as set forth in the standard CALCRIM No.1600, that is (1) the defendant (2) took (3) another person’s property (4) from the victim’s person or immediate presence (5) against the victim’s will (6) accomplished by meansof force or fear (7) with the specific intent to permanently deprive the victim of the property.’ Althoughthetrial court failed to instruct the jury with CALCRIM No.1600eitherorally or in writing, it did instruct the jury on the requisite intent to rob (CALCRIM No. 251) and on the elements of the personal gun use enhancement (CALCRIM No. 3146). Elements 1 (identity), 2 (taking), 3 (another person’s property), and 7 (intent) were covered by CALCRIM No.251, which required the jury to find beyond a reasonable doubt that appellant had the specific intent to permanently deprive the ownerofthe property when it was taken. CALCRIM No. 3146 overlapped with elements | (identity), and 6 (the use of force or fear). The jury necessarily found that appellant used force or fear to commit the robberies becauseit found true that appellant personally used a firearm during the commission of the offenses. To find that appellant used a firearm during the commission ofthe robberies, the jury had to find beyond a reasonable doubt that appellant displayed the weapon in a menacing manner, hit someone with the weapon,or fired the weapon. Thus,the jury found beyond a reasonable doubt that appellant used force or fear to commit the robberies becauseit found he used a firearm in a way that would constitute force (hitting someone with the weapon)or fear (displaying the weapon in a menacing wayorfiring the weapon). These instructions cover five out of seven elements of robbery. Nevertheless, the Court of Appeal clearly felt constrained by Cummings to find the omission of CALCRIM No.1600structural error and therefore reversible perse. > This Court in Cummings did not include “identity” as an element of robbery, which is whyit stated that there were six elements of robbery. 10 The rule promulgated by Cummings should be overruled becauseit requires the automatic reversal of fundamentally fair trials in which an instructional error can be proven harmless beyond a reasonable doubt. “The harmless-error doctrine recognizes the principal that the central purpose ofa criminaltrial is to decide the factual question ofthe defendant's guilt or innocence [citation], and promote public respect for the criminal process by focusing on the underlying fairnessofthetrial rather than on the virtually inevitable presence of immaterial error. Cf. R. Traynor, The Riddle of Harmless Error 50 (1970) (“Reversal for error, regardless ofits effect on the judgment, encourageslitigants to abuse the judicial process andbestirs the public to ridicule it”).’” (Rose v. Clark (1986) 478 U.S. 570, 577.) To reverse the judgment here would, to paraphrase the words of former Chief Justice Traynor as quoted in Rose, bestir the public to ridicule such a decision. The constitutionalerror in this case had no effect on the outcome ofthetrial, and it did not violate appellant’s fundamentalrights. This case exemplifies the arbitrariness of the “substantially all” standard for determining whetheran instructional erroris structural error, and it exemplifies the rational basis of adopting a bright-line harmless error analysis applicable to most constitutional violations. The harmless error standard protects the interests of the defendant, the victims, and the People in a fair trial and in the finality ofjudgment. (See People v. Avila (1995) 35 Cal.App.4th 642, 668.) Review in this case is therefore necessary to resolve whetherthe rule that omission of“substantially all” elements of a charged offenseis structural error promulgated by Cummingsisstill viable. 11 CONCLUSION For the foregoing reasons, petitioner respectfully requests that this court grant review of the present case. Alternatively, the People request this court remandthis case to the Court of Appeal with direction to address the rule promulgated in People v. Mil, supra, 53 Cal.4th 400 and to conduct a harmlesserror analysis. Dated: December 31, 2015 Respectfully submitted, KAMALA D. HARRIS Attorney General of California GERALD A. ENGLER ChiefAssistant Attorney General JULIE L. GARLAND Senior Assistant Attorney General A. NATASHA CORTINA Supervising Deputy Attorney General CHRISTEN SOMERVILLE Deputy Attorney General Attorneysfor Respondent CS:tr §$D2015701570 71154463.doc 12 CERTIFICATE OF COMPLIANCE I certify that the attached PETITION FOR REVIEWusesa 13 point Times New Romanfont and contains 3,447 words. Dated: December 31, 2015 KAMALA D. HARRIS Attorney General of California IS & CHRISTEN SOMERVILLE Deputy Attorney General Attorneysfor Respondent ATTACHMENT NOT TO BE PUBLISHEDIN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relyingon Opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion as not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT THE PEOPLE, Plaintiff and Respondent, V. ANDRE MERRITT, Defendant and Appellant. DIVISION TWO E062540 (Super.Ct.No. FVI1300082) OPINION APPEALfrom the Superior Court of San Bernardino County. Debra Harris, Judge. Reversed. John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D.Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Christen Somerville, Deputy Attorneys General, for Plaintiff and Respondent. A jury found defendant and appellant Andre Merritt guilty of two counts of robbery. (Pen. Code, § 211.)! The jury found truethe allegations that defendant personally used a firearm during both robberies. (§ 12022.53, subd. (b).) Thetrial court sentenced defendantto prison for a term of 19 years 4 months. Defendantraises two issues on appeal. First, defendant contendsthetrial court erred by failing to instruct the jury on the crime of robbery—the whole instruction was omitted. (CALCRIM No. 1600, Second, defendantasserts that, because he relied upon an alibi defense,thetrial court erred by instructing the jury that the prosecutor need not prove the crime occurred on a specific date. (CALCRIM No. 207.) We reverse the judgment. FACTUAL AND PROCEDURAL HISTORY A. DEFENDANT’S OFFENSES 1. STORAGE FACILITY On December19, 2012, at approximately 5:00 p.m., Kristen Wickum was working at the front counter of Storage Direct, in Victorville. Defendant approached the front counter. Defendant pulled out a gun and demanded “all the money.” Wickum gave defendant the money“[i]n the drawer” and the petty cash box. All together, defendant took approximately $338. After defendant left, Wickum called for her manager, who wasin a back room with the door closed. Wickum and the manager contacted law enforcement. 1 All subsequentstatutory references will be to the Penal Code, unless otherwise indicated. Defendant’s face was not covered during the robbery. Wickum described the assailant as a black male; approximately 20 years old; 5 feet 11 inchestall; wearing a blue hooded sweatshirt, gray shorts, white socks, and Chuck Taylor shoes. Wickum recalled the handgun being a black semiautomatic. When showna six-pack photographic lineup, Wickum “almost immediately” identified defendant. 2. CONVENIENCE STORE On December19, 2012, at approximately 6:22 p.m., Christian Lopez was working at La Mexicana, a conveniencestore in Victorville. Defendant pointed a gun at Lopez andsaid, “Give me the money ... [{] .. . [§] Muthafucker.” Lopez gave defendant the money from the cash register and from a separate “stash.” Defendant took approximately $700. Defendant’s face was not covered during the robbery. Lopez described the assailant as “a black male in his 20s, about [six] foot with a thin, bulky build, wearing a black shirt, khaki shorts, and he was armed with a silver handgun.” When shown a photographic lineup, Lopez identified defendant “Right away.” The robbery was recorded by the store’s surveillance system. The video recording was played for the jury. Rlmt C1 = 3. SEARCH On January 4, 2013, a San Bernardino County Sheriff's Department detective and deputies searched defendant’s residence in Victorville. In defendant’s bedroom,the law enforcement officers found ammunition. In a girl’s bedroom, where defendant stored someofhis clothes, the officers found cargo-style men’s shorts, two hooded black sweatshirts, and Converse or Chuck Taylor-type shoes. 4, DEFENSE Defendant presented an alibi defense. On the night of December18, 2012, defendant’s mother picked defendantupat the jail in Adelanto. Waiting at her hometo celebrate defendant’s release, were defendant’s brother, defendant’s cousin, and two _ other men. When defendantarrived at the house, the men smoked marijuana and played videogames. The celebration lasted “two or three days.” Defendant wasat the house, using the computer, on December 19 from 4:30 to 6:30 p.m. Defendant did not leave the house for approximately four days after being released from jail 5. REBUTTAL The prosecutor presented a rebuttal witness. San Bernardino County Sheriff's Detective Solorio was present when defendant wasinterviewed following the execution of the search warrant. During the interview, defendant said he was at home “earlier in the day” on December19, but then walked to a friend’s residence at the Rodeo Apartments. Defendant said he spent the night of December19 at the Rodeo Apartments. B. JURY INSTRUCTIONS Defendant was charged with two counts of robbery. (§ 211.) Thetrial court did not instruct the jury on the offense of robbery. (CALCRIM No. 1600.) The elements listed in the robbery jury instruction, which were omitted, were: (1) 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/her 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 to take the property, he intended to permanently deprive the ownerof the property. The instruction went on to provide further information about the offense. (CALCRIM No. 1600.) | Thetrial court instructed the jury on the specific intent requirement for robbery. The instruction informed the jury, “The specific intent and mental state required for the crime of Robberyis the specific intent to permanently deprive the ownerof the property whenit is taken.” (CALCRIM No. 251.) Thetrial court also instructed the jury on the firearm enhancement (§ 12022.53, subd. (b)), which requires proof the defendant (1) displayed the weapon in a menacing manner; (2) hit someone with the weapon;or (3) fired the weapon. (CALCRIM No. 3146.) During the prosecutor’s closing argument, he said, “The instructions are that the defendant took property that was not his own. That the property was in the possession of another person. Property was taken from the other person or immediate presence. Property was taken against that person’s will. The defendant used force or fear to take the property or prevent the person from resisting. And,finally, when the defendant used force or fear to take the property intended to deprive the ownerofit permanently. You’ll see the instruction in the instructionsalso that the employee ownsthe property of the business. So you haveall this.” During defense counsel’s closing argument, he said, “Now,[the prosecutor] already went through the elements of robbery. Number 1, the defendant took property that was not his own. Two,the property was in the possession of another person. Three, the property was taken from the other person or her immediate presence. The | property was taken against that person’s will and the defendant used force or fear to take the property or to prevent the person from resisting. And when the defendant used force or fear to take the property he intended to deprive the ownerofit permanently. That’s [legalese] for, he intendedto stealit.” Defense counsel continued, explaining his argument, “Now,there is no question here, as [the prosecutor] said, no question these people were robbed, okay. Our only contention is with Element Number 1 that it was not the defendant. Not the defendant.” DISCUSSION A. ROBBERY INSTRUCTION Defendant contendsthetrial court erred by not instructing the jury on the offense of robbery, and that the error is reversible per se.(CALCRIM No. 1600.) The People concede thetrial court erred, but assert the error was harmless. The Peopleassert the error is harmless because (1) the jury was instructed on the specific intent requirement for robbery; (2) the jury wasinstructed on the use of a firearm, whichrelates to the force and fear element of robbery; (3) defendant only disputed identity—he did not dispute that the robberies occurred; and (4) both trial attorneys recited the elements of robbery in their closing arguments. Weapply the de novo standard when reviewing an alleged instructionalerror. (People v. Cole (2004) 33 Cal.4th 1158, 1210.) “The trial court must instruct even without request on the generalprinciples of law relevant to and governingthe case. [Citation.] That obligation includes instructions on all of the elements of a charged offense.” (People v. Cummings (1993) 4 Cal.4th 1233, 1311 (Cummings).) Because the trial court did not instruct on the charged offense, we concludethetrial court erred. We now examine whetherthe error is reversible per se or subject to harmless error review. In Cummings, the defendant was convicted of robbery, attempted robbery, and conspiracy to commit robbery, but the trial court failed to instruct the jury on the offense of robbery. (Cummings, supra, 4 Cal.4th at pp. 1256, 1311.) However, thetrial court did instruct the jury that the crime of attempted robbery requires the specific intent to permanently deprive the ownerofhis/her property. (/d. at pp. 1311-1312.) The defendant argued that thetrial court’s failure toinstruct on four of the five elements of robbery wasreversible per se. (/d. at p. 1312.) The People argued the error was harmless because (1) the evidence established the robberies were committed at gunpoint; (2) the jury was instructed on the intent to permanently deprive; and (3) the defendant only disputed identity—he did not dispute that the robberies occurred. (/bid.) The Supreme Court discussed cases that permit a harmless error analysis to be performed when one elementor a portion of an element was omitted from a jury | instruction. (Cummings, supra, 4 Cal.4th at pp. 1313-1314.) The Supreme Court then wrote, “These decisions make a clear distinction between instructional error that entirely precludes jury consideration of an element of an offense and that which affects only an aspect of an element. Moreover, none suggests that a harmless error analysis may be applied to instructional error which withdraws from jury consideration substantially all of the elements of an offense and did not require by other instructions that the jury find the existence of the facts necessary to a conclusion that the omitted element had been proved.” (/d. at p. 1315.) The Supreme Court then concluded the defendant’s convictions ‘“‘must be reversed,” “regardless of the merits of the People’s argumentthat [the defendant] did not dispute the existence of the predicate facts and that the evidence overwhelmingly established all of the elements of robbery, attempted robbery, and conspiracy to commit robbery.” (Jbid.) Thus, Cummings establishes that a harmless error analysis may not be applied to an instructional error that withdraws from the jury’s consideration substantially all of the elements of an offense, unless, through other instructions, the jury foundthe facts necessary to support a conclusion that the omitted elements were proven. (Cummings, supra, 4 Cal.4th at p. 1315.) Cummingsis directly on-point with the instant case. In both cases, (1) the complete robbery instruction was omitted; (2) the juries were instructed that the specific intent requirement for robbery meantestablishing the defendantacted with the intent to permanently deprive; (3) the evidence established the robberies were committed at gunpoint; and (4) the defendants only disputed identity—they did not dispute that the robberies occurred. In the instant case, the jury was also informedofthe elements of robbery via thetrial attorneys’ closing arguments. Similar to Cummings, the instant case did not include instructions that overlapped with all or most of the elements of robbery. For example, a finding that defendant had the specific intent to permanently deprive does not compel a conclusion that the jury found the facts necessary to establish the property was taken from the victims or the victims’ immediate presence. (See Cummings, supra, 4 Cal.4th at p. 1313 [A finding that property was taken with the intent to permanently deprive the owner does not compel a conclusion that the jury has found the facts necessary to establish the remaining elements of the offense”’].) Because the instant case is so closely on-point with Cummings, we conclude, as our Supreme Court did in Cummings, that the error is reversible per se. (/d. at p. 1315.) B. DATE INSTRUCTION Defendant contends, because he wasrelying on an alibi defense, the trial court erred by instructing the jury that the prosecutor was not required to establish the crimes occurred on a specific date. (CALCRIM No. 207.) Defendant urges this court to decide the issue, even if the convictions are reversed for the failure to instruct on robbery, in order to provide guidanceto the trial court uponretrial. The issue has been rendered mootby our conclusion that defendant’s robbery convictions must be reversed. (See People v. Travis (2006) 139 Cal.App.4th 1271, 1280 [issue is moot when noeffective relief can be granted].) We decline the invitation to provide guidance on the issue. (See People v. McMillan (1980) 110 Cal.App.3d 682, 687 [declining to provide additional guidanceto the trial court].) DISPOSITION The judgmentis reversed. NOT TO BE PUBLISHED IN OFFICIAL REPORTS MILLER Weconcur: McKINSTER Acting P. J. KING J. 10 DECLARATION OF SERVICE BY U.S. MAIL Case Name: People v. Merritt No.: I declare: I am employed in the Office of the Attorney General, which is the office of a memberofthe California State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter. I am familiar with the business practice at the Office of the Attomey Generalfor collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondence placed in the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service with postage thereon fully prepaid that same day in the ordinary course of business. On December 31, 2015, I served the attached PETITION FOR REVIEWbyplacing a true copy thereof enclosed in a sealed envelope in the internal mail collection system at the Office of the Attorney General at 600 West Broadway, Suite 1800, P.O. Box 85266, San Diego, CA 92186-5266, addressed as follows: John L. Dodd, Esq. Fourth Appellate District, Div. Two John L. Dodd & Associates Court of Appeal of the State of California 17621 Irvine Boulevard, Suite 200 3389 Twelfth Street Tustin, CA 92780 Riverside, CA 9250] Atty. for Def. Appellate Defenders, Inc. The Honorable Debra Harris 555 West BeechStreet, Suite 300 San Bernardino County Superior Court San Diego, CA 92101 14455 Civic Drive, Dept. V4 Victorville, CA 92392 The Honorable Michael A. Ramos San Bernardino County District Attorney 303 West 3rd Street, 5th Floor San Bernardino, CA 92415-0042 I declare under penalty of perjury under the laws ofthe State of California the foregoing is true and correct and that this declaration was executed on December 31, 2015, at San Diego, California. ‘ R a e o e ra e t e P E T E S P R S e ! N E O H I E R E * Laura Ruiz _ £ i)hy ‘L._ ee Declarant oa Signature SD2015701579 71154500.dac