Filed 8/8/17 P. v. Sualez CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

OSCAR SUALEZ,

Defendant and Appellant.


E065956

(Super.Ct.No. BAF1500887)

OPINION


APPEAL from the Superior Court of Riverside County. W. Charles Morgan, Judge. Affirmed.
Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton, and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Oscar Sualez of one count of second degree robbery after hearing evidence he stole an antique fire hydrant from the victim’s front yard and struck the victim’s dog with the hydrant before absconding with his associates. Sualez appeals his conviction on four grounds, arguing: (1) there was insufficient evidence of force or fear; (2) People v. Estes (1983) 147 Cal.App.3d 23 was wrongly decided; (3) the accomplice liability instruction on natural and probable consequences was erroneous; and (4) the trial court violated his right to a fair trial by discouraging the jury from requesting testimony readbacks. We conclude none of these arguments has merit and affirm the judgment.
I
FACTUAL BACKGROUND
The victim testified that on the morning of the incident he and his 130 pound Bullmastiff were in his front yard and he was talking to traffic control about the congestion on his residential block. While on the phone, he watched the same black SUV drive by his house a few times then speed into his driveway. A woman drove the vehicle and Sualez and codefendant Michael Ortiz rode as passengers. Sualez jumped out of the SUV, ran several feet across the victim’s front yard, and grabbed an antique fire hydrant from the side of the house. The Bullmastiff approached Sualez and started barking, and Sualez struck the dog’s nose with the fire hydrant.
Phone in hand, the victim yelled at Sualez to stop and punched him in the back of the head. Sualez screamed for help and ran back into the SUV. Ortiz then got out of the SUV, threw a half-empty can of beer at the victim, and ran back into the car. The can hit the victim in the chest, but it did not hurt and he was not injured. As the SUV drove off, the victim took a photograph of the license plate with his phone and called the police.
Less than an hour later, the police apprehended Sualez and Ortiz about a mile from the victim’s house with the fire hydrant in their possession. Underneath the SUV, the police found a beer can matching the one Ortiz had thrown at the victim.
The victim testified he was afraid for himself during the incident. He also said he feared for his grandparents’ safety, as they lived with him and were nearby on the sidewalk—within his line of sight—when the incident occurred.
The jury found Sualez and Ortiz guilty of robbery. The trial court sentenced Sualez to the low term of two years for the robbery, plus four years for four prior prison terms.
II
DISCUSSION
A. Force or Fear
Sualez contends there was insufficient evidence to satisfy the force or fear element of robbery. We disagree.
When reviewing a claim of insufficient evidence, we consider the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—“evidence which is reasonable, credible, and of solid value”—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) “[T]he relevant question is whether . . . any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 319.) Reversal is unwarranted “unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support.’” (People v. Manriquez (2005) 37 Cal.4th 547, 577.)
Robbery is the taking of personal property from another’s possession “by means of force or fear.” (Pen. Code, § 211; People v. Gomez (2008) 43 Cal.4th 249, 254.) Absent force or fear, the crime committed is grand theft, not robbery. (People v. Mungia (1991) 234 Cal.App.3d 1703, 1707.)
The Penal Code defines fear for purposes of robbery, in relevant part, as “[t]he fear of an unlawful injury to the person or property of the person robbed, or of any relative of his or member of his family.” (Pen. Code, § 212, italics added.) The victim’s fear need not be extreme, and “the jury may infer fear ‘from the circumstances despite even superficially contrary testimony of the victim.’” (People v. Morehead (2011) 191 Cal.App.4th 765, 775.)
As for force, the law “require[s] that the perpetrator exert some quantum of force in excess of that ‘necessary to accomplish the mere seizing of the property.’” (People v. Anderson (2011) 51 Cal.4th 989, 995.) Force may be actual or constructive, and need not be applied directly to the victim. (People v. Wright (1996) 52 Cal.App.4th 203, 210 (Wright).) “‘[C]onstructive force’ means ‘force, not actual or direct, exerted upon the person robbed, by operating upon [a] fear of injury,’” that is, a “‘threat or display of physical aggression toward a person as reasonably inspires fear of pain, bodily harm, or death.’” (Id. at pp. 210-211.) In other words, obtaining property by constructive force is essentially the same as obtaining property by fear. The perpetrator evokes a fear of injury in the victim by threatening the use of force with a display of physical aggression.
Here, there is substantial evidence Sualez accomplished the theft of the hydrant by fear and constructive force. According to the victim’s description of the incident, Sualez scoped out his house a few times before speeding into his driveway, running onto his property, stealing, and—when threatened by the victim’s dog—hitting the animal in the face with the fire hydrant. Taken together, these actions are likely to cause a homeowner to be afraid, and the victim testified he was in fact afraid.
Even Sualez’s display of force against the dog, taken on its own, is enough to elevate what Sualez may have initially intended to be a petty theft into a robbery. By this we mean, the moment Sualez used force against the dog, he conveyed to the victim that he was willing to resort to physical violence to maintain possession of the hydrant. Having seen Sualez strike his dog, the victim had no way of knowing Sualez would not do the same to him or his grandparents. Sualez therefore satisfied the elements of robbery as soon as he struck the dog. (Wright, supra, 52 Cal.App.4th at p. 210 [constructive force is the use of physical aggression to inspire the threat of injury].)
Sualez contends he did not harbor the requisite intent for force or fear when he struck the dog. He asserts his attack was “defensive” and points out the animal came away from the encounter unscathed. Sualez misunderstands the force or fear requirement, which is simply that the force or fear must be used to accomplish the theft. (Pen. Code, § 211.) There is no requirement that a defendant intend his actions to be aggressive (as opposed to defensive) or that those actions cause actual injury. (Ibid.) “[T]he act of force or intimidation by which the taking is accomplished in robbery must be motivated by the intent to steal,” not by an intent to cause fear or injury. (People v. Green (1980) 27 Cal.3d 1, 54, overruled on other grounds in People v. Hall (1986) 41 Cal.3d 826, 834, fn. 3.) Put another way, the intent behind Sualez’s act of hitting the dog need only be larcenous. (Rodriguez v. Superior Court (1984) 159 Cal.App.3d 821, 826-827 [no joint operation of act and intent to constitute robbery if “the larcenous purpose does not arise until after the force has been used against the victim”].) Thus, whether Sualez may have been scared of the dog is irrelevant. The fact remains that batting the dog away allowed Sualez to maintain possession of the hydrant, and from that the jury could reasonably infer the act was done with larcenous intent.
Next, Sualez attempts to undercut the victim’s testimony about the fear he experienced during the incident. He argues that, far from being scared, the victim was angry and wanted to fight. Additionally, he characterizes the victim’s concern for his grandparents’ safety as irrational because, as the victim admitted at trial, neither he nor Ortiz went anywhere near the grandparents. We reject both contentions.
First, it is possible to be simultaneously angry and afraid. Indeed, this strikes us as an appropriate emotional response to watching someone run into your yard, steal your property, and hit your pet in the face. The fact the victim was able to land a blow to Sualez after he stole but before he escaped with the victim’s property does not change the fact he used fear and constructive force to accomplish the theft.
Second, while there is no requirement a victim’s fear be reasonable, on this record a jury could easily conclude the victim’s fear was both actual and rational. (People v. Bordelon (2008) 162 Cal.App.4th 1311, 1319 [the “fear necessary for robbery is subjective in nature”].) According to the victim, Sualez’s initial behavior was aggressive and unpredictable. Having seen Sualez try to harm his dog, he could not be sure Sualez would not have also tried to harm his grandparents. It does not matter that Sualez fled as soon as the victim punched him and in fact never went near the grandparents. In a robbery, the threat of force need not be realized. This particular robbery was complete as soon as Sualez struck the dog, invoking in the victim the fear he might do the same to his nearby family members who were within the zone of danger Sualez created.
Finally, Sualez argues People v. Estes, supra, 147 Cal.App.3d 23—in which the California Supreme Court held robbery occurs when a defendant steals property peaceably and resorts to force or fear only later, to maintain possession of the property—was wrongly decided because it conflicts with the common law definition of robbery. This claim is based on Sualez’s contention the robbery was not complete until Ortiz used force against the victim by throwing the beer can at him. As just discussed, substantial evidence supports a finding the robbery was complete when Sualez struck the dog, so Estes does not come into play. To be clear, however, if Sualez had committed an Estes-type robbery, we would not depart with over three decades of settled precedent. Estes is well-reasoned, binding law. (Auto Equity Sales, Inc. v. Superior Court of Santa Clara County (1962) 57 Cal.2d 450, 455.)
We conclude the record contains sufficient evidence to support the robbery conviction.
B. Instruction on Natural and Probable Consequences
The defense theory at trial was that Sualez and Ortiz had committed only petty theft. The prosecution theory was Sualez committed robbery and Ortiz aided and abetted Sualez in that offense by throwing the beer can at the victim. During closing, the prosecutor acknowledged that Ortiz may have initially intended to help Sualez commit a simple theft, but “[w]hen Mr. Sualez called out for Mr. Ortiz to help him finish up what has become a robbery, Mr. Ortiz is in for a penny, he is in for a pound the moment he gets out of the car and throws that beer.”
Based on the prosecution’s theory of Ortiz’s accomplice liability, the trial court instructed the jury on the natural and probable consequences doctrine. The instruction provided the jury must decide whether “the defendant originally intended to aid and abet petty theft” and if so, whether “robbery was a natural and probable consequence of that crime.” Sualez did not object to the instruction.
Sualez now argues it was error to provide the instruction because by the time Ortiz threw the beer can, Sualez’s petty theft of the fire hydrant was already complete—as he had already returned to the SUV and thereby reached a place of temporary safety. As a result, Sualez argues, he “could not properly be convicted of robbery based on the natural and probable consequences theory because a reasonable person in [his] position would not have known that robbery was a reasonably foreseeable consequence of the petty theft he committed.”
Sualez’s failure to object to the instruction below forfeits the claim on appeal. (People v. Virgil (2011) 51 Cal.4th 1210, 1260.) But the claim also fails on the merits, and for one simple reason—Sualez has the roles backward. The natural and possible consequences instruction was for Ortiz, not Sualez, as Ortiz was the accomplice and Sualez was the direct perpetrator of the robbery. In trying to reverse those roles and recast his offense as a petty theft, Sualez reargues his contention that his use of force against the victim’s dog cannot satisfy the force or fear element of robbery. For the reasons discussed in the previous section, Sualez is incorrect. His actions alone, without the help of Ortiz, constitute a robbery and therefore the natural and probable consequences instruction did not apply to him.
C. Readback of Testimony
Sualez contends his conviction should be reversed because the trial court improperly discouraged the jury from requesting a readback of testimony. We disagree.
1. Additional background
At the beginning of trial, the court informed the jurors they each had a book for taking notes. It then explained the court reporter’s role, which included reading back testimony during deliberation if the jury requested it. The court elaborated:
“What I’m telling you, when you go out to deliberate, if you feel it’s necessary to have some testimony read to you, you can request it, and the court reporter can do that, actually what was spoken. But I have told all juries before you, and there have been hundreds and hundreds over my career, that I frown on that request.
“You just said I have this right, now he tells us he frowns on it. What’s the story?
“Well, the story is, as you go out to deliberate, whatever case comes in here next, it is entitled to a verbatim record. That is, a court reporter takes down every word that’s said in that case. So when you make a request for testimony, we stop doing what we’re doing in that case, she physically takes her rough notes, puts it in a booklet form. After that’s accomplished, physically goes back to read it to you. So it is something we will do for you without question. We want to help you come to some verdict on this, whichever way it goes, at the end of this case. But if I tell you now the value of you writing [things] down [in your notebooks], maybe we can avoid that request. We’re here to help.” (Italics added.)
At the end of trial, the court reminded the jury that it could ask for a readback of testimony, stating “[t]he court reporter has made a record of everything that was said during the trial. If you decide it is necessary, you may ask that the court reporter’s record be read to you.” The court also instructed the jury it was required to “accept the court reporter’s record as accurate.”
In the afternoon on the first day of deliberations, the jury asked the court, “May we request a read-back of [the victim’s] testimony regarding his response to both prosecutor and defense regarding his state of fear?” The court responded, “Yes.” The jury resumed its deliberations the next morning and within an hour it had reached a verdict. The record does not disclose whether the jury received the readback it had requested.
2. Analysis
We independently review claims of instructional error. (People v. Waidla (2000) 22 Cal.4th 690, 733.) “‘In reviewing [a] purportedly erroneous instruction[ ], “we inquire ‘whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way’ that violates the Constitution.” [Citation.] In conducting this inquiry, we are mindful that “‘a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge.’” [Citations.] ‘Additionally, we must assume that jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.’” (People v. Richardson (2008) 43 Cal.4th 959, 1028.)
Penal Code section 1138 states if there is disagreement among the jurors during deliberation “as to the testimony,” the court must provide the “information required.” Sualez contends the court’s remarks about reading back testimony violated this statutory provision as well as his constitutional right to a fair trial.
People v. Hillhouse (2002) 27 Cal.4th 469 (Hillhouse) is instructive on this issue. There, the California Supreme recognized that while Penal Code section 1138 primarily concerns “the jury’s right to be apprised of the evidence,” the provision also “implicates a defendant’s right to a fair trial.” (Hillhouse, at p. 505.) The defendant in Hillhouse argued the trial court had “improperly discouraged” the jury from requesting a readback “by instructing them that in order to hear the testimony the court must first deem it ‘material,’ and that if any portion of a witness’s testimony was requested, the entire testimony had to be reread.” (Id. at pp. 504-506.) The Supreme Court, however, found no error in the trial court’s remarks. It concluded that “informing the jury of the time it may take for rehearing testimony is not impermissible jury coercion.” (Id. at p. 506.) It further concluded that “[n]o reasonable jury would fail to request the readback of testimony it otherwise wanted merely because the court had implied it could only rehear material testimony.” (Ibid.)
Hillhouse teaches that a trial court’s comments on readbacks do not violate Penal Code section 1138 if they simply inform the jury of the time-consumptive nature of the readback process and would not cause a reasonable juror to suppress a readback request. The trial court’s comments here easily meet this standard—they related to the time and effort that goes into a readback, and we know for a fact they would not cause a reasonable juror to suppress a readback request because the jury did in fact submit such a request to the trial court.
Sualez takes issue with the court’s use of the phrase “frown upon” as a means of discouraging the jury from requesting a readback. We disagree with this characterization. On this record, we have the benefit of knowing exactly what the court meant by that phrase, because it told the jury. The court explained it frowned upon readback requests because readbacks can be time consuming. In short, the trial court’s remarks conveyed the following interrelated points about readbacks: (1) the jury had an absolute right to a readback and any requests during deliberation would be granted, but (2) requests should not be made lightly because readbacks can be time consuming. As Hillhouse makes clear, “informing the jury of the time it may take for rehearing testimony is not impermissible jury coercion.” (Hillhouse, supra, 27 Cal.4th at p. 506.) Far from being coercive, the trial court was attempting to educate the jury on what all the readback procedure entailed. Like a beer commercial that endorses drinking but in moderation, the trial court was cautioning the jury to invoke its readback right responsibly. We find nothing improper in those remarks.
Sualez argues the court’s comments about readbacks were improper in light of the fact it never cautioned the jury about the risks of notetaking. He argues the court should have provided CALCRIM 102 and 202, which advise jurors their notes may be unreliable and are not a substitute for the transcript. However, Sualez did not request notetaking instructions and a trial court has no sua sponte duty to provide them. (People v. Marquez (1992) 1 Cal.4th 553, 578 [explaining that while it had previously suggested providing a notetaking instruction was the better practice, “we have since made it clear that a trial court is not required to give the instruction”].) In any event, by instructing the jury it had to “accept the court reporter’s record as accurate,” the trial court eliminated the risk a juror would give more weight to his or her notes on testimony than to the content of the reporter’s transcript.
III
DISPOSITION
We affirm the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

SLOUGH
J.
We concur:


McKINSTER
Acting P. J.


MILLER
J.