Arielle N. Bases, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 12WF1029) OPINION Appeal from a judgment of the Superior Court of Orange County, Michael A. Leverson, Judge. Affirmed in part and reversed in part. Arielle N. Bases, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury convicted Sean Patrick Melody of two counts of first degree robbery in concert (Pen. Code, §§ 211; 212.5, subd. (a); 213, subd. (a)(1)(A); counts 4 and 5), but accepted Melody's principal argument at trial that he was not the robber who held a gun to the victims' heads, finding the alleged personal use of a firearm enhancements (Pen. Code, § 12022.53, subd. (b)) not to be true. (All further unlabeled statutory references are to the Penal Code.) When the jury could not reach a verdict on count 3, assault with a firearm (§ 245, subd. (b)), the trial court declared a mistrial and thereafter granted the People's motion to dismiss the count. At the close of evidence, the court also had granted Melody's motion to dismiss counts 1 and 2 alleging kidnapping (§ 209, subd. (b)(1)), finding the movement of the victims incidental to the robbery. Following the jury's verdict, Melody in a bifurcated proceeding pleaded guilty to possession of a firearm by a probationer (§ 29815, subd. (a); count 6). The trial court sentenced Melody to 11 years in prison, consisting of the upper term of 9 years on count 4, a consecutive term of 2 years (one-third the midterm) on count 5, and a concurrent term of two years on count 6.
On appeal, Melody contends he could not properly be convicted on count 5 of robbing the principal victim's girlfriend of that victim's personal property, based on the girlfriend's alleged constructive possession of those items. Alternatively, he argues he did not receive adequate notice of the prosecutor's theory at trial that his taking of the girlfriend's cell phone during the robbery constituted an independent factual basis for count 5, and that the trial court erred in failing to provide the jury a unanimity instruction to ensure the jurors all agreed on the same factual basis for count 5. Specifically, a unanimity instruction would have required the jurors to unanimously agree either that he participated in taking the boyfriend's possessions which the girlfriend constructively possessed, or that he took the girlfriend's cell phone.
As we explain, unlike some states that have broadened the common law definition of robbery, "California follows 'the traditional approach that limits victims of robbery to those persons in either actual or constructive possession of the property taken.'" (People v. Ugalino (2009) 174 Cal.App.4th 1060, 1064-1065.) Under the governing case law and the facts in this record, which do not suggest Allison Buffham knew of the items taken from her boyfriend, Michael Hannegan, or that she otherwise had a duty or authority to control those items, Melody could not be convicted of the robbery charged in count 5 based on Buffham's alleged constructive possession of Hannegan's property. Melody also identifies a greater problem than whether a unanimity instruction was required. Specifically, in light of the prosecutor's argument and the instructions given, even if a unanimity instruction had been provided, it would be impossible to determine whether the jury based its guilty verdict on a proper or improper theory of robbery on count 5. Consequently, we reverse the conviction on count 5 and affirm the judgment in all other respects.
FACTUAL AND PROCEDURAL BACKGROUND
Although the trial record is somewhat ambiguous about who did what, it suggests the following set of facts.
In December 2007, Buffham and Hannegan were dating. They met in 2004 and dated from 2006 through the end of 2007. In April 2007, Hannegan bought a home in Huntington Beach, California. While they dated, Buffham spent time at Hannegan's home, but she did not live with him.
On Saturday, December 1, 2007, Buffham and Hannegan went out to dinner. When they returned to Hannegan's home, he pulled his car into his attached garage to park. As the garage door began closing behind them, two masked men slipped into the garage and yelled, "Police!" Melody and his co-participant were the masked men. One hit Hannegan on the head with a gun.
The two men told Buffham and Hannegan to put their hands behind their backs, and then escorted them into Hannegan's home. Once inside, both Hannegan and Buffham were forced face-first onto the ground and Melody bound their hands and ankles. Hannegan and Buffham thought both men were carrying guns. Both described feeling a gun placed against the back of their heads. One asked Hannegan where the "weed" was, and Hannegan told him he did not have any weed. The men also asked Hannegan where his safe was and where he kept his money. The larger of the two men went upstairs, while his accomplice stayed downstairs with Hannegan and Buffham. When Hannegan kept screaming, his guard warned Hannegan he would shoot him if he did not stay quiet.
The robbers put the hood of Buffham's sweatshirt over her head so she had only a limited view of the men. Buffham asked them, "Are you planning to hurt us or do you just want something?" One responded, "Just give us what we want and we'll leave you alone." The smaller man told Buffham and Hannegan to "[b]e quiet. Keep your head down. If you don't give us anything, we'll hurt you." After a few minutes, the other man came back downstairs and asked Hannegan again where he kept his marijuana; Hannegan again replied that he did not have any. Hannegan later told the men that he did have several thousand dollars in his hamper. The larger man went back up the stairs a second time to look for the cash.
At some point during the robbery, Hannegan was screaming so much that Melody duct taped his mouth to keep him quiet. After one robber made a second trip upstairs, he returned to where the other was holding the victims, and the two robbers discussed whether they had taken enough or if they should take the televisions as well. They decided not to take the televisions because it would require too much work.
Buffham heard someone loading the stolen items into a bag near the front entrance of the house. Then Melody and his co-participant ordered both Buffham and Hannegan to lie down on the couch.
Buffham asked if she could use the bathroom. She was scared and trying to plan her escape. She was concerned because Hannegan had only recently purchased the home, and no one knew where it was located. One robber walked her to the bathroom and let her go inside. Almost immediately, the man entered the bathroom and asked Buffham if she had a cell phone. She said she did, and the man made her give it to him. He put the phone in his pocket. The man stood in the bathroom until Buffham finished.
He then returned Buffham to the couch and told her and Hannegan he was going to tie up their hands and feet. Buffham begged him to bind only her feet because no one knew where Hannegan lived and she worried they would die if no one found them. Buffham promised she would wait 10 to 15 minutes before freeing herself, and that she and Hannegan would not tell anyone what had happened. The robber agreed to tie up only Buffham's feet, leaving her hands free. Melody and his co-participant threatened to kill Buffham and Hannegan if they called the police.
After tying Buffham and Hannegan up, both men left the residence. In total, they were inside for 10 minutes. Immediately after they left, Buffham undid the duct tape around her feet and retrieved a pair of scissors so she could cut Hannegan free. In addition to Buffham's cell phone, Melody and his co-participant stole the watch from Hannegan's wrist, the cash from Hannegan's hamper (between $5,000 and $8,000), three additional watches, jewelry, cologne, and sunglasses from Hannegan's bedroom, and a camera and computer from Hannegan's office desk. Finally, they took Hannegan's luggage to carry away the stolen property.
Hannegan and Buffham did not call police immediately. Instead, they moved a box of glass pipes from Hannegan's garage to Buffham's nearby apartment and slept at Buffham's apartment that night. They reported the incident to the police the next morning. Hannegan was hesitant to report the robbery because of his drug-dealing history. Buffham convinced Hannegan that they should report the incident, but agreed to leave out the facts about marijuana and Hannegan's drug-dealing past.
Following their initial report, the case went unsolved. Police processed the scene for evidence, but for a time had no suspects. Among the items of evidence, police collected the duct tape that had been used to bind Buffham's ankles and submitted it for DNA analysis. Five years later, in 2012, analysts matched the DNA on the duct tape to a DNA sample taken from Melody.
On October 16, 2012, Orange County District Attorney Investigator Michael Reilly interviewed Melody. He admitted committing the robberies. Melody explained that in 2007 he met a man he called "Doc" around his neighborhood; the two played tennis together. At some point, Doc recruited Melody to participate in a robbery of Hannegan. Doc knew Hannegan because he had bought marijuana from him before, and targeted Hannegan because he thought Hannegan would have drugs or money. In addition to Doc and Melody, another associate of Doc's participated in the robbery, although Melody did not know his name.
The men approached Hannegan's house at night and waited for him to return home. When Hannegan drove in, Doc stayed outside as a lookout and getaway driver, while Melody and the other participant went inside Hannegan's garage and confronted him. The other participant approached Hannegan and Melody handled Buffham. Melody denied carrying a gun; he insisted the co-participant was the only one with a gun. Once inside, Melody tied both victims up. Hannegan was hysterical and screaming, so Melody duct taped his mouth.
The robbers demanded marijuana and money, and went upstairs to look for either. Melody said they took Hannegan's cash from a pair of jeans in his hamper, and remembered stealing cologne, but he could not remember taking anything else. Back downstairs, Melody remembered dealing with Buffham. Initially, he bound her wrists and ankles, but then Buffham needed to use the bathroom, so Melody undid the bindings. He could not remember if he retied the bindings after she finished in the bathroom. Melody denied telling the victims not to call police.
Melody challenges the sufficiency of the evidence as to count 5, the robbery involving Buffham, and, in particular, the People's argument that she had constructive possession of items stolen from Hannegan. We agree that on the record presented, Melody could not be convicted of robbing Buffham of those items.
"Robbery is defined in section 211 as 'the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.'" (People v. Scott (2009) 45 Cal.4th 743, 749 (Scott).) Robbery divests the victim of property. "A person from whose immediate presence property was taken by force or fear is not a robbery victim unless, additionally, he or she was in some sense in possession of the property. 'It has been settled law for nearly a century that an essential element of the crime of robbery is that property be taken from the possession of the victim.'" (Ibid.)
Possession may be actual or constructive. "A person who owns property or who exercises direct physical control over it has possession of it, but neither ownership nor physical possession is required to establish the element of possession for the purposes of the robbery statute. [Citations.] '[T]he theory of constructive possession has been used to expand the concept of possession to include employees and others as robbery victims.' [Citation.] Two or more persons may be in joint constructive possession of a single item of personal property, and multiple convictions of robbery are proper if force or fear is applied to multiple victims in joint possession of the property taken." (Scott, supra, 45 Cal.4th at pp. 749-750.)
"[A] person who has the right to control property has constructive possession of it. [Citations.] For constructive possession, courts have required that the alleged victim of a robbery have a 'special relationship' with the owner of the property such that the victim had authority or responsibility to protect the stolen property on behalf of the owner." (Scott, supra, 45 Cal.4th at p. 750.) "[I]t is enough that the person presently has some loose custody over the property, is currently exercising dominion over it, or at least may be said to represent or stand in the shoes of the true owner." (People v. DeFrance (2008) 167 Cal.App.4th 486, 497 (DeFrance).)
In Scott, the Supreme Court held that on-duty employees have constructive possession of their employer's property for purposes of resisting a robbery. As the court explained, "Although not every employee has the authority to exercise control over the employer's funds or other property during everyday operations of the business, any employee has, by virtue of his or her employment relationship with the employer, some implied authority, when on duty, to act on the employer's behalf to protect the employer's property when it is threatened during a robbery." (Scott, supra, 45 Cal.4th at p. 754.)
The high court found ample statutory support for its holding. As Scott observed, "An employee's authority to protect the employer's property is recognized in Civil Code section 50, which establishes the right to use 'necessary force' to protect the 'property of oneself, or of a wife, husband, child, parent, or other relative, or member of one's family, or of a ward, servant, master, or guest.' (Italics added.) In other words, the employee's relationship with his or her employer constitutes a 'special relationship' sufficient to establish the employee's constructive possession of the employer's property during a robbery." (Scott, supra, 45 Cal.4th at p. 754.)
Cases recognizing constructive possession to support a robbery conviction outside the employment context have generally involved family members. (See, e.g., People v. Gordon (1982) 136 Cal.App.3d 519, 529 (Gordon) [parents robbed of drugs and cash belonging to their adult son].) In Gordon, although neither parent knew of the marijuana or $1,000 taken from their son's bag, the court explained, "[P]arents have at least the same responsibility [as employees cited in other cases] to protect goods belonging to their son who resides with them in their home." (Ibid.)
Case law illustrates that a familial relation with the victim may be sufficient to create the "special relationship" necessary to establish constructive possession supporting a robbery conviction. Thus, in People v. Weddles (2010) 184 Cal.App.4th 1365, 1370 (Weddles), the court upheld two counts of robbery where, in an armed home invasion, the robbers took one brother's $1,500. The other brother did not live there, but was present and scuffled with the robbers before they held a gun to his sibling's head, repeating, "'"Where's the money . . . where's the money?"' and, '"We'll shoot you, we'll pop you."'" (Id. at p. 1369.) The hostage directed his brother to show the robbers where, as the visiting brother knew, $1,500 was stashed in a jar in his bedroom (ibid.), giving his brother express authority over those funds to reveal them.
The Weddles court explained, "Although Armando did not live in Alex's apartment, he had a close connection to Alex. Not only was Armando his brother, but Armando was also sufficiently close to Alex that he knew where Alex kept his hidden savings. Armando had a special relationship with Alex that conferred him with constructive possession of Alex's personal property in the apartment." (Weddles, supra, 184 Cal.App.4th at p. 1371.) Similarly, in DeFrance, supra, 167 Cal.App.4th 486, a mother and her adult son were both robbed of the son's car when it was parked outside their home and the mother had implied authority over the vehicle, where she "had access to the keys, had driven it, and was named on the insurance." (Id. at p. 499.) The mother was no mere bystander to the car, but instead had a possessory "connection" to it. (Ibid.)
Absent a special relationship to the property or the person to whom it belongs, an incidental familial relationship is not enough to establish the implied authority or duty to protect property that is necessary to constitute constructive possession. Thus, in People v. Nguyen (2000) 24 Cal.4th 756, 764 (Nguyen), the Supreme Court reversed a robbery conviction where the husband of an employee was present in the break room for a party when the robbery occurred. The court explained that as "a visitor to the business," the husband "was not in actual or constructive possession of the property taken from the business." (Ibid.)
Similarly, where a Good Samaritan intervenes without any relationship to the owner or the property, there is no robbery. In People v. Galoia (1994) 31 Cal.App.4th 595, a man collecting money from his coin-operated video games located in a convenience store tried to stop a robbery. The court found he was not a robbery victim. (Id. at pp. 597-599.) In Sykes v. Superior Court (1994) 30 Cal.App.4th 479, the defendant burglarized one business, stealing a saxophone, and a security guard working for another business gave chase. The absence of any special relationship between the music store and the security guard from a neighboring business precluded a robbery conviction. (Id. at p. 484.)
On the other hand, while authority over another's property will not be assumed, including authority to stop a theft, it may be implied by the circumstances, as in People v. Bekele (1995) 33 Cal.App.4th 1457 (Bekele), disapproved on another ground in People v. Rodriguez (1999) 20 Cal.4th 1, 14. In Bekele, two workers driving a front-end loader saw the defendant stealing a tape deck and speakers from a truck belonging to one of the workers. (Id. at pp. 1459-1460.) Turning to his companion, the truck owner (Jump) said, '"Let's stop,"' and then the duo "acted in concert to interrupt the burglary: they simultaneously left the front-end loader to approach Jump's truck, and both told [the defendant] to stop." (Id. at p. 1462.) The defendant fled, later pulling a gun on Jump's companion (Fernandez), who pursued him. (Id. at p. 1460.) Upholding the robbery conviction, the reviewing court explained that "the evidence demonstrated that Fernandez had a representative capacity with respect to Jump's property, in that he had implied authority from Jump to take action to prevent its theft." (Id. at p. 1462.) The court observed that, in acting together at Jump's invitation ('"Let's stop"'), "[t]he obvious implication was that Jump wanted Fernandez to help safeguard Jump's property by putting a stop to the theft." (Ibid.)
As our Supreme Court has noted, other jurisdictions have sometimes broadened the definition of robbery, including by adopting the Model Penal Code, which defines robbery "to include the use of force or fear against any person during the commission of a theft." (Nguyen, supra, 24 Cal.4th at p. 763.) Similarly, some states "include injury or threat to one other than the custodian of the property; they include escape from commission or attempt; and they eliminate the element of asportation." (Id. at p. 764.) In contrast, "Our Legislature has adopted the traditional approach, as reflected in the language of section 211." (Ibid.) The high court recognized "legitimate concern[s]" in continuing to require possession as an element of robbery, including there that the husband, as a "visitor to the business . . . was subjected to the same level of force as were the employees of the business, yet each of the employees is a victim of robbery while the visitor is not." (Id. at p. 762-763.) But because the prerogative rests with the Legislature to define crimes, "It is up to the Legislature to implement any change that may be desirable." (Id. at p. 764.)
The Attorney General argues that as Hannegan's "girlfriend and an invited guest in his home," Buffham "constructively possessed everything inside the home." We disagree. Buffham was a guest in Hannegan's home. This status imposed on her no duty to defend Hannegan's home or possessions. To the contrary, traditional duties of hospitality typically extend the other way—from host to guest—as recognized in Civil Code section 50, which provides for the right to use requisite force to defend a guest's property, not vice versa.
The facts here do not support a finding of implied or express authority, let alone a duty, under which Buffham had to take action to protect property she may not have known Hannegan possessed. Nothing in the record shows she knew Hannegan stashed several thousand dollars in what was alternately described as his hamper or sock drawer. The record suggests the funds were drug sale proceeds. The suspects asked Hannegan—not Buffham—the whereabouts of his weed, his safe, and his money, and nothing implicated Buffham as Hannegan's accomplice or partner in the drug trade. Nothing suggested she had any authority over, or interest in, the funds.
People v. Fiore (2014) 227 Cal.App.4th 1362 is instructive. There, an acquaintance (Gault) was present when two men robbed the victim (Young) of marijuana in his home; indeed, Gault had given the men the marijuana to sample. But as the reviewing court explained, "Although the evidence permits an inference that Gault had Young's permission to handle the marijuana for the purpose of letting Fields and Fiore sample it, Young's acquiescence to Gault's momentary control over the property for this limited purpose did not establish that Gault had any right or duty to resist the property's taking or that Young expected him to do so." (Id. at p. 1386.) Overturning the defendant's conviction for robbing Gault, the court found "insufficient evidence that Gault "'owned, had access to, [had] control over, or [had] an obligation to protect the [stolen] marijuana.'" (Id. at p. 1387, original brackets.)
The same is true here not only with respect to the stolen cash, but also as to the other items. Hannegan reported his stolen cologne was worth as much as $20,000. Its alleged value suggests Hannegan may have kept it as a commodity to store value, but in any event, the record does not indicate where Hannegan stored it, and nothing suggested Buffham knew of the fragrance or fragrances. The record is similarly devoid of information that Buffham knew of the camera and laptop stolen from Hannegan's office, or that she had access to that room, or knew of his watches and jewelry taken from his bedroom, or that she had traveled with Hannegan or knew of the luggage the robbers took from unspecified areas in his home. Presumably, Buffham knew of the watch one of the robbers removed from Hannegan's wrist, but unlike the mother in DeFrance, who shared a car with her son who lived at home, nothing suggested Buffham had a connection to the watch or a familial or homeowner's duty to protect it. Nor did Hannegan, like the truck owner in Bekele, give Buffham express or implied authority to protect or regain his possessions.
We agree with Melody that Ugalino, supra, 174 Cal.App.4th 1060 is also instructive. There, the defendant went to Johnson's residence to buy marijuana, which Johnson kept in a safe. Instead of buying the drugs, the defendant pointed a gun at Johnson, telling him he was being "jacked" and ordering Johnson to give him the "weed." His accomplice pointed a gun at Johnson's roommate, Rider, ordering him to lie face down on the floor, much as the robbers did to Buffham here. Johnson then ran out of the house with the drugs, and the defendant and his accomplice fled. (Id. at p. 1065.)
Reversing the defendant's conviction for attempted robbery of Rider, the court noted there was no evidence the roommate had access to the safe or even a key to the apartment. (Ugalino, supra, 174 Cal.App.4th at p. 1065.) Instead, like Buffham, he came and went from the home when others were present. "Furthermore, at the time of the robbery, Johnson was present to protect his own belongings and there was no evidence he expected Rider to assist him in that regard." (Ibid.) Faced with this record "[l]acking any evidence that Rider owned, had access to, control over, or an obligation to protect [the stolen property]," the court ruled that the robbery conviction involving Rider "[could] not be sustained." (Ibid.) And so it is here.
The Attorney General argues that Buffham's relationship as Hannegan's girlfriend was more significant than Rider's relationship as Johnson's roommate in Ugalino. But the simple answer is that—on the record presented—neither we nor the jury could know that. The record shows that the pair dated for approximately a year and then broke up the same month as the robbery.
The Attorney General assumes that because Buffham was Hannegan's girlfriend she "would have had access" to "Hannegan's bedroom," where the cash and other items were seized and, conveniently also for the Attorney General's argument, to all other "locations in the home" where items were taken. But the record does not establish these facts. While a relationship with a "significant other" may indeed at some point become significant or special, the "special relationship" the Supreme Court has defined as necessary to infer constructive possession sufficient to support a robbery conviction must be one in which "the victim [has the] authority or responsibility to protect the stolen property on behalf of the owner." (Scott, supra, 45 Cal.4th at p. 750.)
No substantial evidence supported such a conclusion here. The evidence necessary to support a verdict must be "reasonable, . . . credible, and of solid value." (Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1633.) Substantial evidence is—as its name implies—substantive, not presumptive. (See ibid.) "The ultimate determination is whether a reasonable trier of fact could have found for the respondent based on the whole record." (Ibid.; People v. Johnson (1980) 26 Cal.3d 557, 577-578.) Given this legal standard, neither we nor the jury could conclude on the facts presented that Buffham had constructive possession of the items stolen from Hannegan, and therefore Melody's conviction for robbing Buffham cannot rest on his participation in taking those items.
The Attorney General argues that, "[a]lternatively, . . . sufficient evidence supported count 5 because [Melody] stole Buffham's personal cell phone" during the robbery. The fatal flaw in this argument, however, is not, as Melody initially argues, the lack of a unanimity instruction, which the Attorney General asserts was unnecessary under the "continuous conduct" exception in which no such instruction is required. (See People v. Stankewitz (1990) 51 Cal.3d 72, 100 [unanimity instruction not required where defendant offers essentially same defense to each act and no reasonable basis exists for jury to distinguish between them].) As the Attorney General correctly explains, a unanimity instruction is not required in those instances because "'any juror believing one act took place would inexorably believe all acts took place, [and therefore,] the instruction is not necessary to the jury's understanding of the case.'" (People v. Beardslee (1991) 53 Cal.3d 68, 93.)
But the problem here is deeper than the presence or absence of a unanimity instruction. As Melody phrases it, even if a unanimity instruction had been given, and all the jurors on count 5 (robbery of Buffham) unanimously "convicted appellant based on a single, discrete taking"—either of Hannegan's property or Buffham's cell phone—"there is no way to ensure that no juror improperly convicted appellant of robbing [Buffham] based on the taking of [Hannegan]'s items." In other words, it is impossible to determine whether the jury convicted Melody of count 5 based on his taking of Buffham's cell phone or the taking of Hannegan's property.
Here, the prosecutor argued Melody could be convicted of robbing Buffham based on either one. The prosecutor did not distinguish between them. Instead, based on CALCRIM No. 1600, she explained stolen property did not have to be taken directly from the person, as jurors might assume based on the common understanding of robbery. The prosecutor was referring to the portion of CALCRIM No. 1600 that read: "A person does not have to actually hold or touch something to possess it." Moments later, the prosecutor reiterated this point: "Again, like I said, they don't have to be holding the property or touching the property, it could be anywhere inside the home." (Italics added.)
The prosecutor then referred to Buffham's cell phone as an alternate basis for count 5, invoking the portion of CALCRIM No. 1600 that reads, "The property taken can be of any value, however slight." The prosecutor stated, "And again, here's just a few things that come along with the robbery instruction that I was talking about as far as possession, the property can be taken of any value, that's not going to be, again, an issue here because there was property taken including Ms. Buffham's cell phone." (Italics added.)
We do not here decide the ultimate viability of the People's theory that Melody's taking of Buffham's cell phone by force or fear could constitute a robbery. We decide only that when, as here, the jury has been instructed on a legally invalid theory involving constructive possession of one's property, and it is impossible to discern whether in returning its guilty verdict, the jury relied on that theory or a valid one, "'the conviction cannot stand.'" (People v. Guiton (1993) 4 Cal.4th 1116, 1122, quoting People v. Green (1980) 27 Cal.3d 1, 69.) In this case, there is no way to determine, even if a unanimity instruction had been given, whether the jury in convicting Melody of count 5 relied on the theft of Buffham's cell phone or the legally invalid theory of her constructive possession of the items stolen from Hannegan. We therefore must reverse the conviction on count 5.
Melody's conviction on count 5 is reversed. To be clear, there was insufficient evidence to support Melody's conviction on count 5 based on the alleged taking of Hannegan's property. However, the People may, in their discretion, choose to retry Melody based on the alleged taking of Buffham's cell phone. If the People do not elect to retry the case within 60 days, the trial court is directed to prepare an amended abstract of judgment and to forward it to the Department of Corrections and Rehabilitation. The judgment is affirmed in all other respects.
GOETHALS, J. WE CONCUR: MOORE, ACTING P. J. THOMPSON, J.