Filed 6/30/17 P. v. Merritt CA4/2
Opinion on remand from Supreme Court

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO



THE PEOPLE,

Plaintiff and Respondent,

v.

ANDRE MERRITT,

Defendant and Appellant.


E062540

(Super.Ct.No. FVI1300082)

OPINION


APPEAL from the Superior Court of San Bernardino County. Debra Harris, Judge. Affirmed.
John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Christen Somerville, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant and appellant Andre Merritt guilty of two counts of robbery. (Pen. Code, § 211.) The jury found true the allegations that defendant personally used a firearm during both robberies. (§ 12022.53, subd. (b).) The trial court sentenced defendant to prison for a term of 19 years four months. Defendant raised two issues on appeal.
Our Supreme Court resolved the first issue in this case. (People v. Merritt (2017) 2 Cal.5th 819.) The first issue was whether the trial court erred by failing to instruct the jury on the crime of robbery—the whole instruction was omitted. (CALCRIM No. 1600.) The Supreme Court concluded the error was harmless. (Merritt, at p. 832.)
The Supreme Court remanded the case back to this court, in order for this court to address the second issue raised by defendant. (People v. Merritt, supra, 2 Cal.5th at p. 833.) The second issue is whether the trial court erred, because defendant was relying on an alibi defense, by instructing the jury that the prosecutor was not required to prove the crime occurred on a specific date (CALCRIM No. 207). We affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
A. DEFENDANT’S OFFENSES
1. STORAGE FACILITY
On December 19, 2012, at approximately 5:00 p.m., Kristen Wickum was working at the front counter of Storage Direct in Victorville. Defendant approached the front counter. Defendant pulled out a gun and demanded “all the money.” Wickum gave defendant the money “[i]n the drawer” and the petty cash box. All together, defendant took approximately $338. After defendant left, Wickum called for her manager, who was in a back room with the door closed. Wickum and the manager contacted law enforcement.
Defendant’s face was not covered during the robbery. Wickum described the assailant as a black male; approximately 20 years old; 5 feet 11 inches tall; wearing a blue hooded sweatshirt, gray shorts, white socks, and Chuck Taylor shoes. Wickum recalled the handgun being a black semiautomatic. When shown a six-pack photographic lineup, Wickum “almost immediately” identified defendant.
2. CONVENIENCE STORE
On December 19, 2012, at approximately 6:22 p.m., Christian Lopez was working at La Mexicana, a convenience store in Victorville. Defendant pointed a gun at Lopez and said, “Give me the money . . . [¶] . . . [¶] Muthafucker.” Lopez gave defendant the money from the cash register and from a separate “stash.” Defendant took approximately $700.
Defendant’s face was not covered during the robbery. Lopez described the assailant as “a black male in his 20s, about [six] foot with a thin, bulky build, wearing a black shirt, khaki shorts, and he was armed with a silver handgun.” When shown a photographic lineup, Lopez identified defendant “Right away.” The robbery was recorded by the store’s surveillance system. The video recording was played for the jury.
3. SEARCH
On January 4, 2013, a San Bernardino County Sheriff’s detective and deputies searched defendant’s residence in Victorville. In defendant’s bedroom, the law enforcement officers found ammunition. In a female’s bedroom, where defendant stored some of his clothes, the officers found cargo-style men’s shorts, two hooded black sweatshirts, and Converse/Chuck Taylor-type shoes.
4. DEFENSE
Defendant presented an alibi defense. On the night of December 18, 2012, defendant’s mother picked defendant up at the jail in Adelanto. Waiting at home, to celebrate defendant’s release, were defendant’s brother, defendant’s cousin, and two other men. When defendant arrived at the house, the men smoked marijuana and played videogames. The celebration lasted “two or three days.” Defendant was at the house, using the computer, on December 19 from 4:30 to 6:30 p.m. Defendant did not leave the house for approximately four days after being released from jail.
5. REBUTTAL
The prosecutor presented a rebuttal witness. San Bernardino County Sheriff’s Detective Solorio was present when defendant was interviewed following the execution of the search warrant. During the interview, defendant said he was at home “earlier in the day” on December 19, but then walked to a friend’s residence at the Rodeo apartments. Defendant said he spent the night of December 19 at the Rodeo apartments.
B. JURY INSTRUCTIONS
The trial court instructed the jury, “It is alleged that the crime occurred on or about December 19, 2012. The People are not required to prove that the crime took place exactly on that day but only that it happened reasonably close to that day.” (CALCRIM No. 207.)
DISCUSSION
Defendant asserts that, because he relied upon an alibi defense, the trial court erred by instructing the jury that the prosecutor need not prove the crime occurred on a specific date. (CALCRIM No. 207.)
We apply the de novo standard when reviewing alleged instructional errors. (People v. Hamilton (2009) 45 Cal.4th 863, 948.)
In People v. Barney (1983) 143 Cal.App.3d 490, the appellate court explained, “Ordinarily, the People need not plead the exact time of commission of an alleged offense. (§ 955.) However, if the defense is alibi or, as here, lack of opportunity to commit the offense, the exact time of commission becomes critically relevant to the maintenance of the defense. An instruction which deflects the jury’s attention from temporal detail may unconstitutionally impede the defense. The defendant is entitled as a matter of due process to have the time of commission of the offense fixed in order to demonstrate he was elsewhere or otherwise disenabled from its commission.” (Id. at p. 497.)
Our Supreme Court has held, “[W]hen the defense is alibi (or lack of opportunity), it is improper to give the jury an instruction using the ‘on or about’ language.” (People v. Jennings (1991) 53 Cal.3d 334, 359.) The purpose of an alibi defense is to raise a reasonable doubt as to whether the defendant was present at the crime scene. (See People v. Lewis (1947) 81 Cal.App.2d 119, 123-124; see also In re Corey (1964) 230 Cal.App.2d 813, 828.)
Defendant’s mother and brother testified that defendant was at home, using the computer, on December 19 from 4:30 to 6:30 p.m. Posts/comments made from defendant’s Facebook account were timestamped as posted on December 19, 2012, at 4:46 p.m. and 5:43 p.m.
During closing argument, defendant’s trial counsel conceded the robberies occurred, but argued defendant was not the perpetrator. Defense counsel asserted defendant was at home when the robberies took place. Because defendant presented alibi evidence and argued an alibi theory, the trial court erred by instructing the jury that the prosecutor was “not required to prove that the crime took place exactly on [December 19, 2012].”
Because the error concerns defendant’s right to due process, we will apply the federal harmless error standard. Thus, we examine if, beyond a reasonable doubt, the error did not contribute to the verdict. (People v. Aranda (2012) 55 Cal.4th 342, 367.)
Defendant and the prosecution stipulated “that if either party were to call the custodian of records of the Victorville City 911 calls, they would testify that a 911 call regarding Storage Direct on 12/19/2012 came in at 17:06:41 hrs. and a 911 call for La Mexicana on 12/19/2012 came in at 18:21:45 hrs.” Prosecution witnesses testified that the robberies occurred on December 19. During closing argument, the prosecutor argued, “I think we can all agree that there is no question on December 19, 2012 two robberies were committed.” The prosecutor fixed the date of the robberies on December 19, 2012. The evidence, argument, and stipulation were all focused on December 19, 2012.
Defense counsel conceded the robberies occurred, but asserted defendant had an alibi. During closing argument, defendant’s trial counsel argued, “Now, [defendant] brought forth three witnesses who told you where he was on the date of December 19th.” Defendant relied upon Facebook posts/comments with December 19, 2012, timestamps. Thus, defendant’s alibi was focused on December 19, 2012.
There was nothing placing the date at issue. Both the prosecution and defense were focused on December 19, 2012. Accordingly, we conclude, beyond a reasonable doubt, that the instructional error did not contribute to the jury’s verdict because there was no basis for the jury to be concerned about a date other than December 19, 2012. (See People v. Seabourn (1992) 9 Cal.App.4th 187, 194 [when there is uncontradicted evidence of a specific date, the error of instructing with CALCRIM No. 207 is harmless].)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS


MILLER
J.


We concur:


McKINSTER
Acting P. J.


FIELDS
J.