P. v. Winzer

Filed 8/29/07 P. v. Winzer CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

Lacy Winzer (Winzer) appeals from a judgment of conviction and sentence after a jury found him guilty of robbery and petty theft with a prior. (Pen. Code,  211/212.5, subd. (c), 484/666.)^[1] He contends the trial court erred by refusing to instruct the jury on battery and assault as lesser included offenses of robbery, and by failing to instruct explicitly that robbery requires a nexus between the force exerted and an intent to steal. We will affirm the judgment.

I. FACTS AND PROCEDURAL HISTORY
Winzer was charged in an information with second degree robbery ( 211/212.5, subd. (c)) and petty theft with a prior theft conviction ( 484/666). In connection with the second count, the information alleged that Winzer had five previous convictions. It further alleged four prison terms as sentence enhancements. ( 667.5, subd. (b).) Winzer denied the charges and allegations, and the matter proceeded to trial.

A. Prosecution Evidence at Trial

Alex Azevedo (Azevedo) was employed as a protection specialist at the Target store in Pittsburg on May 10, 2005. Around 4:00 p.m. he was at the front door of the store, dressed in a Target uniform, greeting customers. Winzer, known to Azevedo, entered the store with an adult female companion. Winzer, who was not carrying anything, got a shopping cart and pushed it toward the mens department.

Coworker Tommy Weaver joined Azevedo and call[ed] out Winzers presence to asset protection specialist Blake Rogers (Rogers). A call out is made to undercover security personnel, who are authorized to apprehend an individual, when someone suspicious enters the store.

Azevedo went to the security office in the front of the store to observe Winzer on a monitor. Rogers was in a security office in the back of the store, watching the monitors with his supervisor, David De La Torre (De La Torre). The monitors in the back security office display live images from 60 surveillance cameras. The store security monitors show a steady stream of clear images, like a television.

Rogers and De La Torre in the back security office, and Azevedo in the front security office, observed Winzer take a package of Fruit of the Loom T-shirts from a shelf in the mens department and place it in the top part of his shopping cart. Winzers female companion appeared to be a lookout. Winzer walked about 15 feet, took the package of T-shirts out of the shopping cart, and lifted up his shirt or sweater. He then turned away from the security camera, but Rogers, Azevedo, and De La Torre saw him make the motion of putting something down the front of his pants. When Winzer turned to face the camera again, the package of T-shirts was no longer visible.

When Rogers saw Winzer conceal the merchandise, he left the security office to observe Winzer in person. De La Torre continued watching Winzer on the monitors. Rogers and De La Torre remained in contact by walkie-talkie.

Rogers testified that he observed Winzer and his female companion walk to the front of the store. Winzer parked the shopping cart and walked toward the exit. Rogers was about 10-15 feet behind him. As Winzer was crossing the threshold, Winzer looked back. Rogers, who was in plainclothes and by this point five feet away, immediately identified himself as Target security and attempted to grab Winzer by the arm. Winzer had just walked out the door and Rogers was still inside the store. Winzer then squared himself and struck Rogers in the face approximately three times with his closed fist. Rogers, trained in nonviolent physical intervention, struggled to gain control of Winzer and continued to identify himself as Target security and tell Winzer to stop resisting. Winzer and Rogers ended up on the ground in front of the store.

Rogers could not recall at trial whether he touched Winzer first or Winzer hit him first. At Winzers preliminary examination, Rogers had testified that first he grabbed Winzers arms, and then Winzer broke away with one arm and hit him.

De La Torre, watching the security monitors, observed Rogers being hit by Winzer. He could not remember at trial whether Rogers touched Winzer first or whether Winzer hit Rogers first. His recollection was that, at the time of the punch, Winzer was outside the store and Rogers was inside, right around the threshold.

Azevedo testified that he came out of the front security office when Winzer was about five feet in front of the exit doors. Rogers approached Winzer and, after Winzer stepped over the threshold, Winzer turned around and Rogers identified himself as Target security and asked Winzer to stop. Rogers then reached out to grab or grabbed Winzers arm, and Winzer hit Rogers approximately twice. Winzer and Rogers wrestled outside the store. Azevedo heard Rogers yelling, Target security. Stop resisting. Stop resisting.

Joseph Mahoney, a 17-year-old high school student, was standing outside of Target, about five feet from Targets entrance doors, waiting for his grandmother. Mahoney heard like a bunch of yelling coming out of, like, the doors. He turned toward the doors and saw Winzer run out of the store, followed by a white male (Rogers) about three footsteps behind. He did not recall specifically what was being said, but thought it was the white male, a security guy, who was speaking. The two men started fighting, grabbed one another, got to the street area, and rolled on the ground. The white male tried to handcuff the other man (Winzer), who continued to struggle. Two more Target security guys jumped on Winzer. On cross-examination, Mahoney testified that he had not known that the white male was a Target security person when he first came out of the store. He further testified as follows: Q. Did you ever hear this white male say out loud: []Im Target Security[]? [] A. No. [] Q. Did you hear him -- strike that. [] And did you see this white male touch the black male first? [] A. Yes.

Azevedo helped Rogers gain control over Winzer and handcuffed him. Rogers, Azevedo, and De La Torre escorted Winzer to the front security office, where he was handcuffed to a bench. Azevedo and De La Torre saw the package of T-shirts protruding from Winzers waistband. De La Torre removed the package from Winzer and placed it on a desk. There was pubic hair on the package. As they waited for police to arrive, Azevedo said to Winzer, You know youre going to jail because you assaulted [Rogers]. Winzer replied, No, Im not. Im not going to jail. I have my ways. Ill get out.

Pittsburg Police Officer Michelle Ligouri responded to the scene. Officer Ligouri saw the package of T-shirts on the desk in the security office and noticed pubic hair on the package and on the table around the package. A search by the officer determined that Winzer was not wearing underwear. Officer Ligouri took pictures to document Rogers injuries but forgot to collect the T-shirts as evidence.

Because the T-shirts had pubic hair on them, De La Torre instructed one of his employees to photograph the shirts and then dispose of them for health reasons, after he had obtained permission from the police department. De La Torre believed that photographing and discarding the evidence complied with Target policy and procedures, until confronted with the written Target directive indicating that the T-shirts seized from Winzer should have been stored. Rogers acknowledged that discarding the package of T-shirts was not in compliance with Targets operating procedures.

The next day, Officer Ligouri called Target about the T-shirts and was informed that the shirts had been thrown away. A similar package of T-shirts was provided to police as evidence.

At trial, the jury was shown photographs of Rogers injuries, indicating red marks on his temple and cheek and an injury to his elbow. The jury was also shown a time-lapse videotape from a Target surveillance camera, which De La Torre had compiled and given to the police.^[2] This videotape included zoom-in shots depicting Winzer concealing the package of T-shirts. The videotape was not as clear as the steady stream of images on the monitors in Targets security offices, because the videotape was comprised of still photos taken every two to three seconds,causing the tape to look choppy. Rogers described the quality of the video shown to the jury as horrible.

In the 10 months Rogers had worked at Target, he had been written up twice by supervisor De La Torre: once in December 2004 for assisting a Target employee apprehend a suspected shoplifter while Rogers was off duty, and once in April 2005 for detaining someone who did not have Target items on him. In the latter incident, Rogers had seen the individual take some merchandise out of a package, but the individual had apparently discarded them when Rogers lost sight of him. De La Torre testified that Rogers did not do anything improper in this case. (Rogers had acknowledged that he mistakenly wrote in his incident report that Winzer had stolen socks rather than T-shirts. B. Jury Instructions

At the conference to settle jury instructions after the People had rested their case, the court rejected the notion that battery was a lesser-included offense of robbery and refused to give an instruction on battery.^[3] The court agreed to give, and subsequently gave, several jury instructions relating to robbery, including CALJIC Nos. 9.40, 9.40.2, and 9.40.3.

C. Defense Evidence at Trial

Winzer did not testify. Officer Ligouri testified that Mahoney told her he heard a lot of movement. She also testified that Rogers did not tell her that he said anything to Winzer when they were on the ground or when Winzer was being handcuffed.

In closing argument, defense counsel argued: the prosecutions witnesses failed to follow Targets internal operating directives and Rogers had been written up in the past; there was no evidence Winzer took any merchandise from Target because Target did not retain the package; and when Winzer hit Rogers, he was not fighting back to retain property but just defending himself, because Winzer had no merchandise, Rogers did not look like Target security and did not identify himself as Target security, and Rogers accosted Winzer from behind.

D. Jury Verdict, New Trial Motion, and Sentence

The jury found Winzer guilty of second degree robbery and petty theft with priors. Winzer waived a jury trial on the allegations of the prior convictions.

Winzer moved for a new trial on the ground that the jury should have been instructed on battery as a lesser included offense to robbery. If this instruction had been given, Winzer maintained, the defense would have argued at trial that Winzer was at most culpable of petty theft and battery, not robbery. The court denied the motion.

A bifurcated bench trial on the prior conviction allegations was held on April 14, 2006. The prosecutor withdrew two of the prior convictions previously alleged for purposes of the section 484/666 violation in count two. The court found true the three other prior theft-related convictions connected with that count. ( 666.) For purposes of sentence enhancements under section 667.5, subdivision (b), the court granted the prosecutors motion to amend the information to combine two of the allegations into one, and then found that Winzer had served three prior prison terms.

The court sentenced Winzer to the aggravated term of five years for second degree robbery and stayed the midterm two-year sentence for petty theft with a prior, pursuant to section 654. For sentencing purposes, the three prior prison term enhancements ( 667.5, subd. (b)) were stricken.

This appeal followed.

II. DISCUSSION

Winzer contends that the trial court should have instructed on battery and assault as lesser-included offenses of robbery, because there was substantial evidence that he struck Rogers not with the intent to steal the Target merchandise secreted in his pants, but in self-defense against the attack of an unknown assailant. He also contends that the trial court erred in failing to instruct the jury of the required nexus between the force he exerted and an intent to steal. Neither argument has merit.

A. Failure to Instruct on Assault or Battery as Lesser Included Offense

A trial court must instruct on a lesser offense necessarily included in the charged offense if there is substantial evidence the defendant is guilty only of the lesser. (People v. Birks (1998) 19 Cal.4th 108, 118 (Birks); People v. Breverman (1998) 19 Cal.4th 142, 162 (Breverman) [court not obligated to instruct sua sponte on lesser offense unless there is substantial evidence from which reasonable jury could conclude that the lesser offense, but not the greater, was committed].) We consider first whether battery or assault may be considered a lesser included offense of robbery. We then determine whether an instruction on battery or assault was required in light of the evidence. We conclude that the court did not err in this regard and, in any event, any purported error was harmless.

1. Assault and Battery as Lesser-Included Offenses of Robbery

Two alternative tests are used to determine whether a lesser offense is necessarily included in a greater offense. (People v. Moon (2005) 37 Cal.4th 1, 25.) Under the elements test, the lesser crime is included if all of its legal elements are included in the definition of the greater crime, such that the greater cannot be committed without committing the lesser. (Ibid.) Under the accusatory pleading test, the lesser crime is included if the accusatory pleading describes the greater offense in language such that the offender, if guilty, must necessarily have also committed the lesser crime. (Id. at pp. 25-26.)

Robbery is defined 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. ( 211.) By contrast, a battery is any willful and unlawful use of force or violence upon the person of another. ( 242.) Thus, battery requires use of force or violence, while robbery requires force or fear. Because it is possible to commit robbery without committing battery, battery is not a lesser included offense of robbery under the elements test. (People v. Romero (1943) 62 Cal.App.2d 116, 121.)

Winzer argues, however, that battery was a lesser included offense of robbery in this case under the accusatory pleadings test. In accusing Winzer of robbery, the information alleged that he, by means of force and fear, did unlawfully take personal property belonging to another. (Italics added.) Winzer argues that the force required for battery is not materially different than the force required for robbery. Therefore, he urges, battery (requiring force) is a lesser included offense of the robbery alleged in the information (referring to both fear and force).

The allegation that the robbery was perpetrated by means of force and fear, rather than force or fear, was merely a function of conjunctive pleading. Conjunctive pleading is employed to avoid uncertainty. (In re Bushman (1970) 1 Cal.3d 767, 775 (Bushman), disapproved on other grounds in People v. Lent (1975) 15 Cal.3d 481, 486, fn. 1; People v. Tuggle (1991) 232 Cal.App.3d 147, 154, disapproved on other grounds, People v. Jenkins (1995) 10 Cal.4th 234, 252; People v. Fritz (1970) 11 Cal.App.3d 523, 526; see also People v. Chacon (1995) 37 Cal.App.4th 52, 62, fn. 4.) In Bushman, for example, the complaint had charged malicious disturbance of the peace by tumultuous and offensive conduct. (Bushman, supra, at p. 774.) The court held it was nevertheless proper to instruct the jury that the defendant could be found guilty if, in accord with the statute, he committed tumultuous or offensive conduct. (Ibid.) The court explained: When a statute such as Penal Code section 415 lists several acts in the disjunctive, any one of which constitutes an offense, the complaint, in alleging more than one of such acts, should do so in the conjunctive to avoid uncertainty. [Citations.] Merely because the complaint is phrased in the conjunctive, however, does not prevent a trier of fact from convicting a defendant if the evidence proves only one of the alleged acts. [Citation.] (Bushman, supra, at p. 775, italics added.) We question whether the accusatory pleading test was intended to be met by allegations asserted merely to satisfy our Supreme Courts directive to plead in the conjunctive.

On the other hand, it is literally true that a defendant who exerts force and fear in an attempt to deprive another of personal property has committed a battery (willful and unlawful use of force upon the person of another), unless the use of force upon the person of another can be accomplished by something other than a physical touching. On this point, respondent refers us to People v. Wright (1996) 52 Cal.App.4th 203 (Wright), which held that assault was not a lesser included offense of robbery under the accusatory pleading test. (See id. at p. 211.)^[4]

In Wright, the prosecution had charged that the defendants unlawfully, and by means of force and fear attempt[ed] to take personal property from the victims. (Wright, supra, 52 Cal.App.4th at pp. 209-210, italics in original.) The Court of Appeal considered whether the force required to commit a robbery necessarily includes the force required to commit an assault. (Id. at p. 210.) The court concluded that the force necessary to commit robbery could be merely constructive force, defined as force not actual or direct, exerted upon the person robbed, by operating upon [a] fear of injury . . . . (Id. at p. 210.) Included within the meaning of force, therefore, is such threat or display of physical aggression toward a person as reasonably inspiresfear of pain, bodily harm, or death. (Id. at pp. 210-211, italics in original, quoting Websters

New Internat. Dict. (3d ed. 1981) p. 887.)

Applying Wright to the matter before us, respondent argues that a victim can be forced to surrender his property during a robbery by the means of coercive threats, without resort to assault or battery. Since a robbery could be perpetrated by a mere threat or display of physical aggression rather than an actual (or attempted) application of force upon the victims person, robbery can be committed without necessarily committing a battery or assault and, consequently, neither battery nor assault is a lesser included offense under the accusatory pleading test.

Winzer responds that Wright improperly muddied the concepts of fear and force, which are intended to be separate elements. (See People v. Davison (1995) 32 Cal.App.4th 206, 214; People v. Brew (1991) 2 Cal.App.4th 99; People v. Dreas (1984) 153 Cal.App.3d 623, 628; People v. Cuevas (2001) 89 Cal.App.4th 689, 698.) More specifically, he contends that Wright (1) effectively rewrote the robbery statute by ruling that force is not an element of robbery independent of fear, since the statute provides that robbery can be accomplished by force or fear; (2) incorrectly concluded that force is synonymous with fear; and (3) relied on cases involving whether a defendants actions constituted force or fear, rather than addressing a pleading that alleged both force and fear. Winzer also notes that our Supreme Court has not decided whether assault and battery are lesser included offenses of robbery under the accusatory pleading test. (People v. Sakarias (2000) 22 Cal.4th 596, 622, fn. 4 (Sakarias).)

We need not decide this issue in order to resolve Winzers appeal. For purposes of our analysis we will assume, without deciding, that battery and assault were lesser included offenses of the robbery charge under the accusatory pleading test, and proceed to the next issue. (See Sakarias, supra, 22 Cal.4th at p. 622 [in absence of substantial evidence that defendant entered victims home or attacked victim without an intent to steal, court declined to address defendants claim that assault was a necessarily included offense of robbery under the accusatory pleading test].)

2. Substantial Evidence of Assault and Battery

Winzer does not challenge the jurys finding that he committed theft of the T-shirts or dispute that he struck Rogers while he was leaving Target with the purloined merchandise concealed in his pants. Rather, he contends that the force he used on Rogers supported a conviction only for battery (or assault), not robbery, because he did not strike Rogers with the intent to steal the merchandise. (People v. Green (1980) 27 Cal.3d 1, 54 (Green) [the act of force or intimidation by which the taking is accomplished in robbery must be motivated by the intent to steal], overruled on other grounds in People v. Dominguez (2006) 39 Cal.4th1141, 1155 & fn. 8.) Claiming there was substantial evidence that his intent was not to steal, he urges that he was entitled to an instruction on battery or assault as a lesser-included offense. (See Breverman, supra, 19 Cal.4th at p. 162.) The question, therefore, is whether there is an evidentiary basis from which a reasonable jury could believe that Winzer hit Rogers to defend himself rather than to steal the T-shirts.

Winzer argues that the following constitutes such substantial evidence: Rogers was in plain clothes; according to Rogers preliminary hearing testimony admitted at trial, Rogers grabbed Winzer by the arm before Winzer hit Rogers in the face; although Rogers and Azevedo testified that Rogers identified himself as Target security before he grabbed Winzer, high-schooler Mahoney, the only eyewitness at trial who was not a Target employee, testified that he observed the action outside the store from about five feet away and did not hear Rogers identify himself as Target security; and Rogers had been written up twice before by his supervisor. If the jurors believed Mahoney, Winzer argues, they might have found that Winzer hit Rogers in self-defense, without any intent related to stealing the T-shirts.

We begin with Mahoneys testimony, since the parties dispute how it should be construed. Mahoney testified that he heard like a bunch of yelling coming out of, like, the doors, and he believed it was the white male (Rogers) who was speaking. Mahoney could not remember what the yelling was about. On cross-examination, Mahoney testified that he did not hear Rogers identify himself as Target security: Q. Did you ever hear this white male say out loud: []Im Target Security[]? [] A. No.

Mahoneys testimony, taken in isolation, is subject to different interpretations. Given his testimony that he heard Rogers yelling something at Winzer but did notremember what it was, his further testimony that he did not hear Rogers identifying himself as Target security could simply mean he did not remember any such statement. As suchand this is respondents interpretationhis testimony is not necessarily inconsistent with Rogers and Azevedos testimony that Rogers did identify himself. Alternatively, Mahoneys testimony could be interpreted to mean that, although he did not remember exactly what Rogers said to Winzer, he knows it was not an identification of Rogers as Target security. This would support Winzers position.

The problem with Mahoneys admitted lack of memory, however, is exacerbated by the fact that he did not observe the entire incident. Mahoney testified that he turned to look toward the doors when he heard yelling, and at that point saw Winzer running out the door with Rogers about three steps behind. Rogers testified at trial that he first identified himself as Target security when he was about five feet away from Winzer, just as Winzer walked out the door, while Rogers was still inside the store. Azevedos testimony also suggests that Rogers was still inside the store when Rogers first identified himself as Target security. Mahoneys testimony as to what was said after Rogers and Winzer were outside the store was not in conflict with the evidence that Rogers identified himself before that point. In other words, Mahoney only provided evidence that Rogers did not identify himself as Target security by the time Mahoney observed them, and from what Mahoney could understand them saying, but not that Rogers failed to identify himself at all, including some earlier point, before he was hit by Winzer. As such, we question whether Mahoneys testimony can be considered credible and of solid value, as required of substantial evidence, on the assertion that Winzer was unaware that Rogers was Target security when he hit him in the face.^[5]

Moreover, in deciding whether the evidence cited by Winzer constitutes substantial evidence, we must determine whether the jury could reach the conclusion that Winzer was not motivated by an intent to steal when he hit Rogers in light of all the evidence at trial. The undisputed evidence showed that Winzer took a package of T-shirts off of a shelf, turned his back to the security camera as his companion acted as a lookout, secreted the package down the front of his pants, and then walked out the door of the store without paying for it. The undeniable inference is that Winzer harbored an intent to steal the T-shirts, including at the point he crossed the threshold and was confronted by Rogers. Given this evidence, no reasonable juror could conclude, even if Rogers was in plain clothes, had not announced himself as Target security, and had grabbed Winzers arm, that Winzers reaction in repeatedly striking Rogers face was unrelated to Winzers intent to steal the T-shirts he had concealed in his pants.

Indeed, Winzer did not testify and the defense presented no evidence that, when he hit Rogers, Winzer was operating under the belief that he had to defend himself against a stranger attacking him for no reason. Not once did he claim to Target security or to the police that he thought he was being accosted by someone other than Target security, even when he was being placed in handcuffs, led to the security office, held there until the police arrived, and then arrested. To the contrary, when Azevedo told Winzer while waiting for the police, You know youre going to jail because you assaulted [Rogers], Winzer simply replied, No, Im not. Im not going to jail. I have my ways. Ill get out.^[6]

Nor would the fact that Rogers had previously been written up by De La Torre in other incidents persuade a reasonable jury that Rogers had failed to identify himself as Target security. The previous incidents pertained to assisting a coworker apprehend a suspect when off duty and detaining a person who took merchandise out of a package; neither has anything to do with a failure to identify himself as Target security.

In the final analysis, Winzer failed to present substantial evidence that his striking of Rogers was unmotivated by his intent to steal. The trial court was therefore not required to instruct the jury on battery or assault.

3. Harmless Error

In any event, the failure to instruct on battery or assault was harmless. In this context we apply the test set forth in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson): whether it appears reasonably probable that the defendant would have obtained a more favorable outcome had the purported error not occurred. (Breverman, supra, 19 Cal.4th at p. 178 [in a noncapital case, error in failing sua sponte to instruct, or to instruct fully, on all lesser included offenses and theories thereof which are supported by the evidence must be reviewed for prejudice exclusively under Watson].) As described ante, there was more than ample proof of robbery, given the overwhelming evidence that Winzer took the T-shirts and hit Rogers while intending to commit the theft. It is not reasonably probable the jury would have convicted Winzer of battery or assault, rather than robbery, if it had been instructed on battery or assault as a lesser included offense.

Indeed, Winzer does not contest the jurys finding that he committed theft of the T-shirts, which, like robbery, requires a finding that the defendant had the specific intent to deprive the rightful owner of the property. (People v. Kunkin (1973) 9 Cal.3d 245, 251.) In convicting Winzer of theft, therefore, the jury necessarily found that Winzer intended to steal the T-shirts. Given the evidence in this case, no reasonable juror, having found that Winzer intended to steal the T-shirts from Target, could have concluded that he did not intend to steal when he struck Rogers in the face as he was leaving Target with the T-shirts in his pants.

Winzer contends that the trial courts failure to instruct on assault and battery as lesser included offenses of robbery constituted structural error (requiring reversal per se) or, at a minimum, constitutional error under Chapman v. California (1967) 386 U.S. 18 (Chapman). On this point he refers us to Conde v. Henry (9th Cir. 1999) 198 F.3d 734, 739-741, in which the Ninth Circuit held that the refusal of a requested lesser offense instruction deprived the defendant of his right to instructions on the defense theory of the case and was thus constitutional error. (See People v. Rogers (2006) 39 Cal.4th 826, 871-872.) Winzer thus argues that, although Breverman held the Watson standard applicable where the court failed to instruct sua sponte on lesser included offenses, the Chapman standard applies where the defendant had actually requested the instruction on lesser included offenses.

Winzers argument is unavailing. The court in Breverman proclaimed that in a noncapital case, error in failing sua sponte to instruct, or to instruct fully, on all lesser included offenses and theories thereof which are supported by the evidence must be reviewed for prejudice exclusively under Watson. (Breverman, supra, 19 Cal.4th at p. 178, italics added.) Although the facts in Breverman involved only a failure to instruct sua sponte, our Supreme Court made no distinction between the trial courts sua sponte obligation to instruct and an obligation to instruct when requested. As such, we follow the precedent of our Supreme Court and apply the Watson test. (See Auto Equity Sales, Inc.v.Superior Court (1962) 57 Cal.2d 450, 455.) Moreover, in this case, even if we were to apply the standard for constitutional error under Chapman, the overwhelming evidence of Winzers guilt would still lead us to conclude that any error in failing to instruct on battery or assault was harmless.

B. Adequacy of Instructions Regarding Nexus Between Force and Intent

A trial court must instruct sua sponte on the general principles of law relevant to the issues raised by the evidence. (Breverman, supra, 19 Cal.4th at p. 154.) Winzer contends the trial court erred in this regard, because the evidence raised the issue of whether the force Winzer applied to Rogers face was motivated by an intent to steal, and because defense counsel requested a battery instruction and asserted Winzers purported lack of intent as one of several defense theories. Accordingly, Winzer urges, the court should have instructed sua sponte that the act of force . . . by which the taking is accomplished in robbery must be motivated by the intent to steal. (Green, supra, 27 Cal.3d at p. 54.)^[7]

Winzer acknowledges that the court gave several instructions on robbery, but he maintains that none of them addressed this nexus between force and intent to steal. Furthermore, he argues, the instructions that were given were misleading. The court instructed the jury that robbery requires intent, taking, and force (or fear), explained the nexus between the intent and the taking (intent must arise at or before the taking), and explained the necessary nexus between the force and the taking (force can occur after the initial taking, in order to retain the property). Because there was no comparable instruction requiring a nexus between the intent and the use of force, Winzer asserts, the implication was that any use of force connected with an intentional taking would constitute robbery, even if the force was motivated by an intent other than theft.

A review of the instructions given in this case refutes Winzers argument. The court initially instructed the jury on the elements of robbery, in accordance with CALJIC No. 9.40, including the requirement of proof that: [a] person had possession of property of some value, however slight; the property was taken from that person or from his or her immediate presence; the property was taken against the will of that person; the taking was accomplished either by force or fear; and the property was taken with the specific intent permanently to deprive that person of the property.^[8] (Italics added.)

The court then instructed, consistent with CALJIC No. 9.40.2, that the intent to steal must be formed by the time of the initial taking: To constitute the crime of robbery, the perpetrator must have formed the specific intent to permanently deprive the person of possession of that property, before or at the time that the act of taking the property occurred. [] If this intent was not formed until after the property was taken from the person or immediate presence of the victim, the crime of robbery has not been committed.

The court also read instructions submitted by the prosecutor and modified by the court, that the necessary force or fear may be used in order to escape or keep the property rather than to take the property initially: The requisite force or fear needed to establish a robbery need not occur at the time of the initial taking. Assuming all the other required elements have been proven, the use of force or fear to escape with or otherwise retain even temporary possession of the property constitutes robbery. [] It is not an essential element to the crime of robbery that the use of force or fear be used to gain direct physical possession of the property taken. [] Again, assuming all other elements have been proven, a robbery is committed if an individual uses force or fear to retain possession of the property prior to reaching a place of relative safety.

The implication from these instructions is that the intent to steal must be formed by the time of the initial taking, and the force must be employed at or after the initial taking. Requiring the jury to find that Winzer used force to retain possession of the property and had a specific intent permanently to deprive the person of possession of that property sufficiently tied the exercise of force with the intent to steal. In light of these instructions, no reasonable juror could have missed the connection between these two elements.

Winzer argues that the prosecutor created ambiguity by stating the following in closing argument: Someone comes up on [Winzer], and starts hitting him. Doesnt matter if he identifies himself as Target Security or not. Why is he punching him? Hes trying to get away. Hes using force to get out of the store. Specifically, Winzer asserts, this comment encouraged the jury to understand the robbery instructions to mean that as long as Winzer used force, it did not matter whether the force was motivated by the intent to steal. We disagree. To the contrary, the prosecutor tied Winzers use of force with his intention of getting out of the store with the stolen property, thus emphasizing the nexus between the use of force and the intent to steal.

Winzer has failed to demonstrate reversible error.

III. DISPOSITION

The judgment is affirmed.

NEEDHAM, J.

We concur.

JONES, P. J.

GEMELLO, J.

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^[1] Unless otherwise indicated, all statutory references are to the Penal Code.

^[2] In this regard, De La Torre did not comply with Targets polices and procedures, which required that he retain the non-time-lapse video of the incident. He explained at trial that he gave the police the time-lapse video because it was easier to record and compile in chronological sequence.

^[3] The reporters transcript indicates that the court asked if anybody disagree[d] on this point, and neither defense counsel nor the prosecutor voiced any objection. During a later hearing on Winzers motion for a new trial, the court nonetheless agreed with defense counsel that the battery instruction had been requested by the defense.

^[4] In this appeal, Winzer argues that assault is also a lesser included offense under the accusatory pleading test. Assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another. ( 240.) Winzer did not request an assault instruction, although a court must also instruct on a lesser included offense sua sponte, if there is substantial evidence that the lesser crime was committed rather than the greater. (Birks, supra, 19 Cal.4th at p. 118.) A defendant may be entitled to an assault instruction on request when charged with robbery if the evidence warrants it. (Wright, supra, 52 Cal.App.4th at p. 209, fn. 16; People v. Carter (1969) 275 Cal.App.2d 815, 823-824.)

^[5] Mahoney also testified that he did not realize Rogers was a Target security person when he saw him struggling with Winzer, because Rogers was dressed in street clothes. However, Mahoneys state of mind is not probative of Winzers state of mind: Rogers, unlike Mahoney, knew at the time of the struggle that he was walking out Targets door with stolen merchandise in his pants. Rogers was thus far more likely to expect that the person trying to apprehend him was a Target employee.

^[6] Winzers reliance on People v. Turner (1990) 50 Cal.3d 668 (Turner) is accordingly misplaced. In Turner, the defendant testified that he did not form an intent to steal until after killing his victim, and therefore he did not steal by force or fear and was entitled to an instruction on theft as a lesser included offense of robbery. (Id. at p. 690.) The Supreme Court agreed that the defendants testimony, though less than convincing, constituted substantial evidence requiring the instruction. (Ibid.) Turner is distinguishable: the defendant in Turner testified as to his intent; Winzer did not.

^[7] Defense counsel did not request this instruction at trial. Winzer contends that the omission constituted ineffective assistance of counsel. Because the instructions were adequate as given, however, Winzer does not establish that counsels failure to request the instruction was prejudicial, and the ineffective assistance claim is thus without merit.

^[8] The court also gave CALJIC No. 9.40.3, explaining that a store employee may be the victim of a robbery if he was in constructive possession of the property at the time of the taking. In addition, the court instructed in accord with CALJIC No. 3.31 as follows: For both of the crimes charged in the Information, there must exist a union or a joint operation of act or conduct and a certain specific intent in the mind of the perpetrator. [] Unless this specific intent exists, the crime to which it relates is not committed. [] The specific intent required by the aforementioned crimes is included in the definition of those crimes set forth elsewhere in these instructions.