P. v. Rice

Filed 8/3/07 P. v. Rice CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Bernardino County, Stephen Ashworth, Judge. Affirmed.

A jury found Johnny Leon Rice guilty of five counts of robbery (Pen. Code,^[1] 211; counts 1, 2, 3, 4 & 5) and one count of receiving stolen property ( 496d, subd. (a); count 6).^[2] The jury also found true allegations that a principal was armed with a firearm during the commission of each offense ( 12022, subd. (a)(1)). After a bifurcated proceeding, the trial court found true allegations Rice had suffered four "strike" convictions under the Three Strikes Law ( 667, subds. (b)-(i), 1170.12) and had served three prior prison terms ( 667.5, subd. (b)). The court sentenced Rice to a total prison term of 154 years, consisting of six consecutive indeterminate 25-years-to-life terms for his convictions under the three strikes law, plus one year consecutive for the principal armed enhancement on count 1 (the others being stayed under  654) and three consecutive one-year terms for the prison priors.

Rice appeals, contending the trial court violated his constitutional rights by failing to preinstruct the jurors on the presumption of innocence and the standard of proof and prejudicially erred in instructing the jurors with CALJIC No. 2.52 on flight because identity was a contested issue and in failing to instruct the jurors on battery as a necessarily included offense of the count 2 robbery. Rice additionally asserts the court's failure to instruct on the necessarily included offense of battery constitutes federal constitutional error. We affirm.

FACTUAL BACKGROUND

Because Rice does not challenge the sufficiency of the evidence to support his convictions, we merely summarize the facts to provide background for our discussion of his claims of error on appeal.

At about 1:30 p.m. on August 4, 2003, three armed, masked Black males wearing latex gloves abruptly opened the doors of the Victor Valley Federal Credit Union (the bank) in Victorville, California, jumped over the counter, ordered bank employees to the ground, and demanded that the teller drawers be opened. During the three to four minutes the robbers were in the bank, one grabbed the nap of bank teller Sabrina Knight's neck, stuck a gun to the back of her head, dragged her from her desk area, pushed her to the ground, and threatened to kill her. At about the same time, another robber forced Knight's boss Ramona Winegar, who was the bank's "chief tech executive officer," out of her glass-windowed office behind the teller stations at gunpoint and put her on the ground next to Winegar. While Winegar tried to calm Knight, the armed robbers forced three other tellers, Gloria Santillan, Denise Mihalko, and Michelle Doerksen, to open drawers and then lie on the ground. After the robbers took $16,000, some of it prerecorded "bait" money, from the drawers and loaded it into a canvas gym bag, they ran from the bank to an alley where they got into a white 1991 Toyota Camry and sped away.

Officers immediately responded to the report of the bank robbery. In the subsequent investigation, a parking enforcement officer, who had been outside the bank when the robbers fled, provided the authorities with a license plate number for the Camry, which was discovered a short time later abandoned at a bus station a few blocks from the bank. According to a witness, the men in the Camry jumped into a white van and sped away. A video surveillance camera at the bus station captured the incident.

Inside the Camry, which had been reported stolen from a woman in Los Angeles earlier that same day, the officers found a black ski mask, one pair of white gloves, a light gray t-shirt and some sweatpants. DNA testing conducted on the items recovered from the Camry revealed that DNA on the ski mask and the t-shirt matched Rice's DNA. Other DNA found on the t-shirt and gloves matched a person named Jimmy Willis. Both Rice and Willis were subsequently charged with five counts of robbery, one for each victim in the bank, and the earlier mentioned alternative crimes for the stolen Camry.

In addition to the above evidence being presented at trial, it was stipulated that Rice's codefendant Willis had pled guilty to all of the charges in this case. Further, because the robbers had been masked, heavily clothed and wore gloves, no bank victim was able to make an identification of Rice as a robber in this case. No "bait" money or weapons were ever found, and no fingerprints recovered from the Camry matched Rice's. The only physical evidence found in the bank, a shoe print, did not match any shoe in Rice's possession.

DISCUSSION

I

PREINSTRUCTION ON INNOCENCE PRESUMPTION AND STANDARD

After the jury was sworn and before opening statements of counsel, the trial court preinstructed the jurors as to their basic functions, duties and conduct, and advised them it would give them further instructions on the law at the conclusion of the case. In doing so, the court explained that the instructions given at that time were of the same significance as those that it would give at the end of trial. Later, before closing arguments of counsel, the court instructed the jury on the pertinent law in the case, including a defendant's presumption of innocence and the prosecution's burden of proof of showing beyond a reasonable doubt that the defendant was guilty of the charged offenses. After closing arguments, the court then gave several concluding instructions. The jury was provided a written copy of all the instructions for their deliberations.

On appeal, Rice contends the trial court's failure to "pre-instruct" the jurors on his presumption of innocence and the standard of proof in this case violated federal due process. For this assertion, Rice, who did not make any objection below to the trial court's preinstruction of the jury or to the order of instructing the jury with the presumption of innocence and the standard of proof, relies on section 1122, subdivision (a) to essentially claim such instructions are mandated when a court in its discretion preinstructs the jury. He then asserts the failure to do so in this case is structural error requiring reversal per se, or reversible error under Chapman v. California (1967) 386 U.S. 18. Rice's contention is specious.

Section 1093 sets out the general order in which a trial should proceed. Pursuant to subdivision (f) of that section, at the conclusion of the evidence and after the closing arguments of counsel, the court may charge the jury and give them a written copy of the instructions. Subdivision (f), however, also provides that "[a]t the beginning of the trial or from time to time during the trial, and without any request from either party, the trial judge may give the jury such instructions on the law applicable to the case as the judge may deem necessary for their guidance on hearing the case." Under section 1094, the court may depart from the usual order of trial set forth in section 1093 "for good reasons, and in the sound discretion of the Court[.]" In People v. Valenzuela (1977) 76 Cal.App.3d 218, the court construed these statutes and concluded that it is within the sound discretion of the trial court as to when to instruct a jury and that, even when a party requests an instruction at the close of argument, the court may refuse to reinstruct on a subject already instructed on unless there is a showing that the jury may be confused on the law. (Id. at p. 221.)

Rice has simply not shown any abuse of the trial court's broad discretion in the order of instructing the jury on the law in this case. His reliance on section 1122, subdivision (a) to argue that a court must preinstruct on the presumption of innocence and the standard of proof is unfounded. That section only requires that the court "shall instruct the jury generally concerning its basic functions, duties and conduct[,]" and does not mention the order of instructing on the law. The record reflects that the court fully complied with section 1122, subdivision (a).

Moreover, as already noted, Rice did not object to the preinstruction procedure or request the court to preinstruct on the presumption of innocence and the standard of proof. In addition to Rice's counsel reminding the jurors during closing argument about their discussions during voir dire as to the reasonable doubt standard, she repeated those instructions and reiterated that the jurors would have them in the jury room. Rice did not later complain that the jury was confused as to these legal concepts to require any reinstruction. Under these circumstances, we presume the jurors properly performed their duties and the trial court did not abuse its discretion in instructing the jury with the presumption of innocence and the standard of proof at the end of the case rather than in its preinstruction to the jury. (See People v. Chung (1997) 57 Cal.App.4th 755, 757-760.) Rice's attempt to equate his case with one where a trial court omits the presumption of innocence and the reasonable doubt standard altogether fails.

II

INSTRUCTIONAL ERROR CLAIMS

The general rule in a criminal case is that the trial court must instruct on the "principles of law relevant to the issues raised by the evidence [citations] and has the correlative duty 'to refrain from instructing on principles of law which not only are irrelevant to the issues raised by the evidence but also have the effect of confusing the jury or relieving it from making findings on relevant issues.' [Citation.]" (Peoplev.Saddler (1979) 24 Cal.3d 671, 681.) With this preliminary rule in mind, we address Rice's various contentions of instructional error.

A. Flight Instruction: CALJIC No. 2.52

Although during jury instruction discussions, Rice did not object to the court giving the flight instruction under CALJIC No. 2.52 because there was evidence the perpetrators fled the scene in the getaway car,^[3]he now asserts the court should not have instructed the jury that flight after a crime may be considered as consciousness of guilt. He essentially claims the giving of CALJIC No. 2.52 "provided an irrational means to infer guilt" because identity of the perpetrator was contested at trial, and a rational juror could only conclude he had fled the scene if the juror believed he was a perpetrator of the robberies. In other words, Rice argues such instruction would only have been proper if the prosecution case on identity had been established and if it had been, then there would have been no use for the instruction as it would have been irrelevant on the issue of guilt since identity, which was the sole issue in this case, would already have been established. Rice further argues that the jurors most likely interpreted this "irrationality" or circular, confusing reasoning involved in the giving of CALJIC No. 2.52 in a manner that lowered the prosecutor's standard of proof because the prosecution had proven he was likely present at the robberies because of the DNA evidence and the evidence clearly showed that the perpetrators fled the scene. Aside from the fact that Rice has technically waived the issue by failing to raise it below, it has no merit.

Contrary to Rice's reliance on lower federal court cases for his position (i.e., United States v. Littlefield (1st Cir. 1988) 840 F.2d 143, 149), his argument is essentially the same as that expressed in People v. Anjell (1979) 100 Cal.App.3d 189 (Anjell) which was explicitly rejected by the California Supreme Court in People v. Mason (1991) 52 Cal.3d 909 (Mason). In Mason, the court rejected the defendant's argument that it was error for the trial court to instruct on flight because identity was a contested issue, specifically disapproving the "overly broad dictum" in Anjell and cases following Anjell regarding use of CALJIC No. 2.52 when identity was a contested issue on which the defendant relied. (Mason, supra, 52 Cal.3d at p. 943, fn. 13.) In doing so, the court specifically stated, "[i]f there is evidence identifying the person who fled as the defendant, and if such evidence 'is relied upon as tending to show guilt,' then it is proper to instruct on flight. [Citation.] 'The jury must know that it is entitled to infer consciousness of guilt from flight and that flight, alone, is not sufficient to establish guilt. [Citation.] The jury's need to know these things does not change just because identity is also an issue. Instead, such a case [only] requires the jury to proceed logically by deciding first whether the [person who fled] was the defendant and then, if the answer is affirmative, how much weight to accord to flight in resolving the other issues bearing on guilt. The jury needs the instruction for the second step.' [Citation.]" (Ibid., fn. omitted.)

Here, although there was no eye witness testimony that Rice was one of the perpetrators of the robberies, he was positively identified by DNA testing as one of the masked men who committed the robberies and then fled, together with his cohorts, from the bank in the getaway car, which was then abandoned along with the masks and clothing of the perpetrators, who then switched to another vehicle and continued their flight to avoid apprehension. Because the prosecution relied upon this evidence as showing Rice's identity and "tending to show [his] guilt," it was sufficient to satisfy the requirements of Mason. (Mason, supra, 52 Cal.3d at p. 943; see also People v. Jones (1991) 53 Cal.3d 1115, 1145 & fn. 8.)

Moreover, contrary to Rice's argument otherwise, such instruction in a case like this does not lower the prosecution's burden of proof by only pointing to guilt. As our Supreme Court noted in People v. Barnett (1998) 17 Cal.4th 1044, a flight instruction identical in all material respects to the one used in this case, "adequately conveyed the concept that if flight was found, the jury was permitted to consider alternative explanations for that flight other than defendant's consciousness of guilt." (Id. at pp 1152-1153; see also People v. Bradford (1997) 14 Cal.4th 1005, 1054-1055.)

In sum, the trial court properly instructed on flight in this case.

B. Battery as a Lesser Included Offense of Robbery

Rice next claims that battery is a lesser included offense of the count 2 charged robbery and that the trial court erred in not instructing the jury sua sponte on such lesser offense. He further asserts that contrary to the holding in People v. Breverman (1998) 19 Cal.4th 142 (Breverman), the error must be assessed under federal constitutional standards. We need not reach this latter argument, however, because we find Rice's basic contention technically waived and otherwise without merit.

Initially, we note that during jury instruction discussions, Rice's counsel specifically agreed with the court and prosecutor that any instructions on lesser included offenses in this case would not be appropriate because the only issue was identity of the robbers and not whether the robbery had been completed. When the court later went over each numbered instruction that would be given to the jury, Rice's counsel again agreed that no lesser included offense instructions would be appropriate in this case. Under these circumstances, we believe Rice's express tactical decision to forego any lesser included instructions for the count 2 robbery charge precludes him from complaining about such omission on appeal even if there were error. (See People v. Barton (1995) 12 Cal.4th 186, 198 (Barton).)

Nonetheless, we turn to Rice's substantive claim that the count 2 robbery offense as pled required the court to instruct on battery as a lesser included offense. Before reaching his specific arguments, however, we note the following pertinent law regarding a court's obligation to instruct sua sponte on lesser included offenses. Generally, in the interests of protecting the defendant's constitutional right to have the jury determine every material issue presented by the evidence and safeguard the jury's function of ascertaining the truth, a trial court must, even in the absence of a request, instruct on the lesser included offenses of any charged crimes. (People v. Cunningham (2001) 25 Cal.4th 926, 1007-1008 (Cunningham).) A lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense such that the greater cannot be committed without also committing the lesser. (Breverman, supra, 19 Cal.4th 142, 154, fn. 5; see also People v. Moon (2005) 37 Cal.4th 1, 25-26 (Moon).) The duty to instruct on such lesser offense exists only if the evidence, " ' "raises a question as to whether all of the elements of the charged offense are present and there is evidence that would justify a conviction of such a lesser offense." ' [Citation.]" (Moon, supra, at p. 25; Cunningham, supra, 25 Cal.4th at pp. 1007-1008.)

As relevant here, section 211 defines robbery 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." (Italics added.) Battery is "any willful and unlawful use of force or violence upon the person of another." ( 242.) Battery is not a lesser included offense of robbery under the statutory definition or elements test because it is possible to commit a robbery without the application of physical force against the person of another. (People v. Romero (1943) 62 Cal.App.2d 116, 121.) Although Rice concedes this point, because the information charged him with committing the count 2 robbery against victim Winegar in the conjunctive, i.e., by means of "force and fear," rather than the statutory disjunctive, Rice argues that battery was a necessarily included offense of that robbery under the accusatory pleading test because the prosecution necessarily had to prove the robbery was accomplished by both force and fear.

In other words, in Rice's view, it was impossible to use the required "force" for a conviction of the count 2 robbery without also using such force to commit a battery on Winegar. Rice thus asserts the court was required to instruct sua sponte on battery as a lesser included offense. In so claiming, Rice recognizes the court in People v. Wright (1996) 52 Cal.App.4th 203, 209 (Wright) has found that assault is not a necessarily included lesser offense of robbery in this situation because the term "force" has a broader meaning in the context of robbery than it does in the context of assault, but argues such reasoning does not apply to the crime of battery and that Wright was wrongly decided.

Although we disagree with Rice and believe that the rationale in Wright applies equally to the offense of battery, i.e., that it is possible to commit a robbery by exerting force without touching or battering the victim such as when one waives a knife in the victim's face or fires a gun past the victim's head (Wright supra, 52 Cal.App.4th at p. 210; see also People v. Tufunga (1999) 21 Cal.4th 935, 949), we need not analyze this issue at length because Rice's assertion fails for two other reasons.

First, to the extent Rice bases his assertion that battery is a lesser included offense of robbery on the fact the count 2 robbery was pled in the conjunctive, such argument has been rejected by the court in People v. Lopez (2005) 129 Cal.App.4th 1508. There, the court stated that "[w]hen a crime can be committed in more than one way, it is standard practice to allege in the conjunctive that it was committed every way. Such allegations do not require the prosecutor to prove that the defendant committed the crime in more than one way. [Citation.] We read the information to have charged defendant with violating [the charged offense] in the statute's terms. 'When . . . the accusatory pleading describes a crime in the statutory language, an offense is necessarily included in the greater offense when the greater offense cannot be committed without necessarily committing the lesser offense.' [Citations.] The statutory elements test is the only one relevant here. The trial court need not have instructed the jury that . . . [the claimed lesser included offense] was an offense included in [the charged offense]." (Id. at pp. 1532-1533.) Similar to the situation in Lopez, the mere replacement of the statutory disjunctive with an accusatory conjunctive for the count 2 robbery charge in this case does not create the type of specificity in an accusatory pleading for which a lesser included offense instruction is required. (Ibid.)

Secondly, even if battery were considered a lesser included offense to the charge of robbery, the evidence here, as conceded by Rice below, did not raise a question as to whether all of the elements of the robbery were present. (See Moon, supra, 37 Cal.4th 1, 25; Cunningham, supra, 25 Cal.4th at pp. 1007-1008.) Nor was there any evidence that the offense was less than that charged. (Barton, supra, 12 Cal.4th at pp. 194-195.) Rice's attempt to create for the first time on appeal a question as to whether all the elements of the count 2 robbery were present because the victim Winegar was in a managerial or "technical" position at the bank rather than a teller position fails. Not only was the theory not advanced below, such speculative claim assumes contrary to the evidence and established law that Winegar did not have constructive possession of the bank money, which is sufficient for robbery, even though she was essentially in charge of the other bank employees and in joint possession of the bank's money by virtue of her representative capacity. (See People v. Nguyen (2000) 24 Cal.4th 756, 761-763, fn. 2; People v. Frazer (2003) 106 Cal.App.4th 1105, 1115; People v. Estes (1983) 147 Cal.App.3d 23, 26.)

Rice simply has failed to show that there was only substantial evidence of a battery but not of a robbery involving Winegar. (Barton, supra, 12 Cal.4th at pp. 194-195.) Therefore, even if the issue were not waived, the trial court did not err in failing to instruct the jury sua sponte on battery as a lesser included offense of the count 2 charged robbery.

DISPOSITION

The judgment is affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

HALLER, J.

AARON, J.

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^[1] All statutory references are to the Penal Code unless otherwise specified.

^[2] The jury found Rice not guilty of the count 7 charge of unlawful taking/driving of a vehicle (Veh. Code,  10851, subd. (a)), which was pled in the alternative to count 6.

^[3] CALJIC No. 2.52 provides: "The flight of a person immediately after the commission of a crime, or after he is accused of a crime, is not sufficient in itself to establish his guilt, but it is a fact which, if proved, may be considered by you in light of all other proved facts in deciding whether a defendant is guilty or not guilty. The weight to which this circumstance is entitled is a matter for you to decide."

The parties stipulated that CALJIC rather than CALCRIM instructions would be used in this case.