Opinion
G052637
03-27-2017
THE PEOPLE, Plaintiff and Respondent, v. JOSUE ALEJANDRO ROMERO, Defendant and Appellant.
Marilee Marshall, 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, Peter Quon, Jr., Randall D. Einhorn and Lise S. Jacobson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15NF0101) OPINION Appeal from a judgment of the Superior Court of Orange County, James A. Stotler, Judge. Affirmed. Marilee Marshall, 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, Peter Quon, Jr., Randall D. Einhorn and Lise S. Jacobson, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
INTRODUCTION
Defendant Josue Alejandro Romero appeals from the judgment entered after a jury found him guilty of second degree robbery. He contends (1) the trial court improperly instructed the jury on an uncharged conspiracy theory of liability, (2) insufficient evidence supported his conviction, (3) the trial court improperly responded to the jury's question regarding the definition of "force" in the robbery instruction, and (4) he suffered prejudice from cumulative error.
We affirm. Because substantial evidence supported the finding Romero conspired with others to rob their victim, the jury was properly instructed with CALCRIM No. 416 regarding the law on uncharged conspiracy to commit a robbery. Substantial evidence showed that immediately after one of Romero's coconspirators rendered their victim unconscious by striking him in the mouth, Romero and another coconspirator searched their victim's pockets and removed property from his possession. The trial court did not err in responding to the jury's question regarding the definition of "force," but, in accordance with California Supreme Court precedent, explained to the jury that there was no technical meaning peculiar to the law and that its meaning was presumed to be within the understanding of jurors. Because we reject each of Romero's contentions of error, there is no cumulative error.
FACTS
Around 10:00 p.m. on January 10, 2015, Daniel Melendez was working as a store clerk at JJ's Liquor in a strip mall in the City of Fullerton when he observed five people in front of a laundromat in the same mall. One of the five individuals was a man whom Melendez recognized as a customer of the liquor store; he was later identified as Victor Perez. The group included two Hispanic males, one who wore a dark shirt and cap and was later identified as Romero, and another unidentified man who wore a Pendleton shirt and dark hat; an African-American man referred to in the record as having the last name of "Henderson"; and Henderson's girlfriend, an African-American woman.
Melendez observed Romero and his companion pushing Perez around in a malicious manner and playing what looked like a game of "keep away" from Perez; Melendez did not know what they were tossing back and forth between them. Perez approached Melendez and told him he wanted to call the police; the four individuals remained near the laundromat. Perez appeared angry and intoxicated. Melendez told Perez he could come into the store and call the police.
Henderson's girlfriend approached Perez who was near the threshold area of the front of the liquor store; she was followed by Romero and his companion. Perez threw a punch at Henderson's girlfriend but missed, instead striking someone named Andrew who helped Melendez stock the liquor store. Romero's companion threw a 40-ounce beer bottle at Perez's face. Romero and his companion said something to the effect of "[y]ou shouldn't be hitting girls."
Perez was stunned and made his way inside the store. Romero and his companion "kept trying to call [Perez] back outside." Perez did not want to go back outside; "[h]e knew what was waiting for him."
About 15 minutes after Perez's swing at Henderson's girlfriend, Henderson appeared inside the store, put his arm around Perez, and escorted him outside where he punched him in the mouth, knocking Perez unconscious. "Right as [Henderson] hit him," Romero and his companion "jumped over the victim and went—went through his pockets like they were looking for something." Melendez heard someone say, "hey, he's got nothing in his wallet." Melendez saw them roll Perez over on his side and feel his pockets.
When Corporal Adam Park of the City of Fullerton Police Department arrived at the liquor store, he saw Perez lying flat on his back and Romero and his companion on top of him rifling through his pockets; Henderson was standing a few feet away. The three men took off running. Park gave chase and ultimately detained Romero some distance away from the liquor store. After Romero was arrested, Park walked back to the liquor store along the same route that he had chased Romero and his companion. Park found business cards and membership cards with Perez's name on them along the street and Perez's empty wallet on top of a bush.
PROCEDURAL HISTORY
Romero was charged in an information with one count of second degree robbery in violation of Penal Code sections 211 and 212.5, subdivision (c), and one count of aggravated assault in violation of section 245, subdivision (a)(1). The information alleged as to each count: (1) pursuant to section 186.22, subdivision (b)(1), the charged offense was committed for the benefit of, at the direction of, and in association with a criminal street gang, with the specific intent to promote, further, and assist in criminal conduct by members of that gang; and (2) pursuant to section 12022.7, subdivision (a), and within the meaning of sections 1192.7 and 667.5, Romero personally inflicted great bodily injury on his victim who was not an accomplice during the commission of the offense.
All further statutory references are to the Penal Code.
The jury found Romero guilty of second degree robbery as charged but not guilty of aggravated assault. With regard to the second degree robbery offense, the jury found the personal infliction of great bodily injury enhancement allegation not to be true, and deadlocked on making a finding as to the gang enhancement allegation. The trial court granted the prosecution's motion to strike the gang enhancement as to the second degree robbery offense.
The trial court sentenced Romero to three years in prison. Romero appealed.
DISCUSSION
I.
SUBSTANTIAL EVIDENCE SUPPORTED INSTRUCTING THE JURY ON UNCHARGED
CONSPIRACY TO COMMIT ROBBERY.
Romero argues the trial court erred by instructing the jury on uncharged conspiracy to commit, inter alia, second degree robbery with CALCRIM No. 416 because that instruction was not supported by substantial evidence. Romero's argument is without merit.
Romero contends the trial court should not have instructed the jury with CALCRIM No. 416 as follows:
"The People have presented evidence of a conspiracy. A member of a conspiracy is criminally responsible for the acts or statements of any other member of the conspiracy done to help accomplish the goal of the conspiracy.
"To prove that the defendant was a member of a conspiracy in this case, the People must prove that:
"1. The defendant intended to agree and did agree with one or more persons to commit assault with a deadly weapon or instrument and robbery;
"2. At the time of the agreement, the defendant and the other alleged member of the conspiracy intended that one or more of them would commit assault with a deadly weapon or instrument and robbery;
"3. The defendant, or unknown person, or both of them committed at least one of the following overt acts to accomplish assault with a deadly weapon or instrument and robbery:
"a. A male Hispanic wearing a Pendleton approached Victor Perez outside of JJ's Liquor;
"b. An African American male put his arm around Victor Perez;
"c. An African American male punched Victor Perez;
"d. An African American male walked out of JJ's Liquor Store;
"AND
"4. At least one of these overt acts was committed in California.
"To decide whether the defendant committed these overt acts, consider all of the evidence presented about the acts.
"To decide whether the defendant and the other alleged member of the conspiracy intended to commit assault with a deadly weapon or instrument and robbery, please refer to the separate instructions that I will give you on those crimes.
"The People must prove that the members of the alleged conspiracy had an agreement and intent to commit assault with a deadly weapon or instrument and robbery. The People do not have to prove that any of the members of the alleged conspiracy actually met or came to a detailed or formal agreement to commit that crime. An agreement may be inferred from conduct if you conclude that members of the alleged conspiracy acted with a common purpose to commit the crime.
"An overt act is an act by one or more of the members of the conspiracy that is done to help accomplish the agreed upon crime. The overt act must happen after the defendant has agreed to commit the crime. The overt act must be more than the act of agreeing or planning to commit the crime, but it does not have to be a criminal act itself.
"You must all agree that at least one overt act was committed in California by at least one alleged member of the conspiracy, but you do not have to all agree on which specific overt act or acts were committed or who committed the overt act or acts.
"The People contend that the defendant conspired to commit one of the following crimes; robbery and assault with a deadly weapon or instrument. You may not find the defendant guilty under a conspiracy theory unless all of you agree that the People have proved that the defendant conspired to commit at least one of these crimes, and you all agree which crime he conspired to commit. You must also all agree on the degree of the crime.
"A member of a conspiracy does not have to personally know the identity or roles of all the other members.
"Someone who merely accompanies or associates with members of a conspiracy but who does not intend to commit the crime is not a member of the conspiracy.
"Evidence that person did an act or made a statement that helped accomplish the goal of the conspiracy is not enough, by itself, to prove that the person was a member of the conspiracy."
The trial court also instructed the jury on aiding and abetting the offense of robbery as a theory of liability; Romero does not challenge the sufficiency of the evidence supporting instructions on that theory of liability. In his opening brief, Romero argues, "[h]e was found guilty of robbery, likely based on the uncharged conspiracy instruction."
California Supreme Court decisions have "'long and firmly established that an uncharged conspiracy may properly be used to prove criminal liability for acts of a coconspirator. [Citations.] "Failure to charge conspiracy as a separate offense does not preclude the People from proving that those substantive offenses which are charged were committed in furtherance of a criminal conspiracy [citation]; nor, it follows, does it preclude the giving of jury instructions based on a conspiracy theory [citations]." [Citation.]' [Citations.]" (People v. Valdez (2012) 55 Cal.4th 82, 150.)
"Even absent a request, the trial court must instruct on the general principles of law applicable to the case. [Citation.] The general principles of law governing a case are those that are commonly connected with the facts adduced at trial and that are necessary for the jury's understanding of the case. [Citation.] The trial court must give instructions on every theory of the case supported by substantial evidence . . . . [Citation.] Evidence is 'substantial' only if a reasonable jury could find it persuasive." (People v. Young (2005) 34 Cal.4th 1149, 1200.)
"'Although the existence of the conspiracy must be shown by independent proof [citation], the showing need only be prima facie evidence of the conspiracy. [Citation.] The prima facie showing may be circumstantial [citation], and may be by means of any competent evidence which tends to show that a conspiracy existed. [Citation.]'" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1134.) "Evidence is sufficient to prove a conspiracy to commit a crime 'if it supports an inference that the parties positively or tacitly came to a mutual understanding to commit a crime. [Citation.] The existence of a conspiracy may be inferred from the conduct, relationship, interests, and activities of the alleged conspirators before and during the alleged conspiracy. [Citations.]' [Citation.]" (Id. at p. 1135.) "Once there is proof of the existence of the conspiracy there is no error in instructing the jury on the law of conspiracy." (Id. at p. 1134.)
In his opening brief, Romero argues, "there [w]as no evidence that [Romero] and the others planned or plotted to commit any type of assault or robbery. Instead, the evidence was that Perez was drunk, became upset about the keep away game, and attempted to punch a woman, which then prompted her boyfriend to retaliate against him. There was no evidence of what relationship, if any, [Romero] had with the other male Hispanic, the African American couple or Andrew. Moreover, there was nothing to suggest that appellant intended to or did agree with them to commit simple assault, let alone assault with a deadly weapon or robbery."
Substantial evidence showed, however, in the form of Melendez's testimony, that Romero and his companion were maliciously "messing" with Perez outside the liquor store by, for example, playing a game of keep away from him, before Perez entered the liquor store and said he wanted to call the police. When Henderson's girlfriend approached Perez, Romero and his companion followed her. After Perez swung at Henderson's girlfriend, and was struck in the face with a beer bottle thrown by Romero's companion, Romero and his companion stood in front of the liquor store, calling Perez to come outside. Fifteen minutes later, Henderson approached Perez, put his arm around him, and escorted him out of the liquor store where Romero and his companion were waiting. At almost the same time, Henderson struck Perez, knocking him unconscious, and Romero and his companion started rifling through Perez's pockets, ultimately complaining that there was nothing in his wallet. The evidence describing this sequence of events supported a finding that Romero, his companion, and Henderson had entered into an agreement whereby Henderson would apply the force to incapacitate Perez so that Romero and his companion could go to work stealing Perez's property that he carried on his person. The trial court, therefore, did not err by instructing the jury with CALCRIM No. 416.
II.
SUBSTANTIAL EVIDENCE SUPPORTED THE SECOND DEGREE ROBBERY CONVICTION.
"'In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citation.]" (People v. Steele (2002) 27 Cal.4th 1230, 1249.) We presume in support of the judgment the existence of every fact that could reasonably be deduced from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) We may reverse for lack of substantial evidence only if "'upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].'" (People v. Bolin (1998) 18 Cal.4th 297, 331.)
In addition to arguing that insufficient evidence supported a conspiracy to commit robbery theory of liability, an argument we reject for the reasons explained ante, Romero argues his conviction for second degree robbery was not supported by substantial evidence because there was insufficient evidence showing that the property was taken from Perez by force or fear, and that the force or fear was applied while Perez was conscious and capable of consent. Section 211 provides: "Robbery is 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."
Substantial evidence showed that after Henderson put his arm around Perez and escorted him out of the liquor store, he punched him in the mouth, knocking Perez unconscious. Melendez testified, "[r]ight as [Henderson] hit [Perez], two Mexican guys had jumped over the victim and went—went through his pockets like they were looking for something." Melendez reiterated that Romero and his companion's conduct of searching Perez occurred "[r]ight almost immediately after" Henderson struck Perez. The almost concurrent timing of Henderson punching Perez and Romero springing into action to search Perez's pockets constitutes sufficient evidence to support the inference Henderson's punch constituted the force designed to incapacitate Perez and enable the taking of his property from his possession.
Substantial evidence also showed property was actually taken from Perez's possession. Melendez further testified that he heard one of the men say, "hey, he's got nothing in his wallet." Park testified that Melendez told him that one of the men stated that Perez had nothing in his wallet to which Melendez responded, "hey, give him his wallet back." He further testified that when he arrived on the scene, he saw Romero and another man leaning over Perez and rifling through his pockets before they ran off. He also testified he found Perez's empty wallet on top of a bush and cards under a bush and found other cards with Perez's name on them along the route Romero and his companion took to escape. Substantial evidence therefore supported the finding that property, which included Perez's wallet, were taken away from Perez by Romero and his companion after the application of force by Henderson.
The trial court rejected Romero's argument that insufficient evidence showed property was taken from Perez when the court denied Romero's section 1118.1 motion for judgment on acquittal, stating, "As far as the robbery is concerned, there's plenty of evidence of a robbery here, and that is the witnesses in the case, one of which was Melendez and the other of which was Park, saw the defendant and his companion going through the guy's pockets. And then we have property strewn from here to there in the area of the liquor store and along the path that the defendant is alleged—has allegedly taken exiting the scene. So the evidence is very strong in my judgment that property was taken from the victim." --------
III.
THE TRIAL COURT'S RESPONSE TO THE JURY'S INQUIRY ABOUT THE DEFINITION OF
FORCE IN THE CONTEXT OF ROBBERY DID NOT CONSTITUTE AN ABUSE OF DISCRETION.
Section 1138 provides: "After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called." The California Supreme Court has explained that section 1138 "imposes on the court the 'primary duty to help the jury understand the legal principles it is asked to apply.'" (People v. Cleveland (2004) 32 Cal.4th 704, 755.) We review the trial court's response to the jury for an abuse of discretion. (People v. Smithey (1999) 20 Cal.4th 936, 985.)
Romero contends the trial court prejudicially erred in its response to the following question, which the jury submitted to the court during deliberations: "We, the jury, in the above entitled action, request the following: [¶] Definition of force as it relates to line 5, item 5 on page 47. [¶] Is rolling the guy over 'force'?"
Romero argues the jury was seeking clarification of the definition of the term "force" as it appeared in the version of CALCRIM No. 1600 given to the jury in this case, which set forth the elements of robbery as follows: "The defendant is charged in Count 1 with robbery in violation of Penal Code section 211. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant took property that was not his own; [¶] 2. The property was in the possession of another person; [¶] 3. The property was taken from the other person or his or her immediate presence; [¶] 4. The property was taken against that person's will; [¶] 5. The defendant used force or fear to take the property or to prevent the person from resisting; [¶] AND [¶] 6. When the defendant used force or fear to take the property, he intended to deprive the owner of it permanently or to remove it from the owner's possession for so extended a period of time that the owner would be deprived of a major portion of the value or enjoyment of the property."
After notifying counsel, the court provided the jury with the following response: "The term 'force' as used in the definition of the crime of robbery has no technical meaning peculiar to the law and is presumed to be within the understanding of jurors. 'Force' is a relative concept. 'Force['] is a factual question to be determined by the jury using its own common sense."
The trial court's response to the jury's inquiry is consistent with authority cited in the commentary to CALCRIM No. 1600, which includes People v. Mungia (1991) 234 Cal.App.3d 1703, 1709, and its holding that "'force' is a factual question to be determined by the jury using its own common sense." (See Judicial Council of Cal., Crim. Jury Instns. (2016) Commentary to CALCRIM No. 1600, p. 1088.) The commentary explains that "[f]orce was not defined [in CALCRIM No. 1600] because its definition in the context of robbery is commonly understood." (Ibid.) In People v. Griffin (2004) 33 Cal.4th 1015, 1025-1026, citing People v. Mungia, the California Supreme Court stated: "Critically, this court has held that 'The terms "force" and "fear" as used in the definition of the crime of robbery have no technical meaning peculiar to the law and must be presumed to be within the understanding of jurors.'"
Romero argues the trial court should have instructed the jury "that rolling Perez over did not constitute sufficient force for the purpose of the robbery." (Capitalization & boldface omitted.) Romero's counsel argued to the trial court that the court should instruct the jury that the act of rolling Perez over when he was unconscious could not constitute force within the meaning of the robbery statute because he was unable to consent. The trial court concluded that the issue of consent of an unconscious person was "not responsive" to the jury's inquiry and refused to provide the jury the response suggested by Romero's counsel.
We conclude the trial court appropriately responded to the jury's inquiry. The court informed the jury that it was to use its common sense in determining force. As explained by the California Supreme Court, the concept of force in the context of robbery does not have a technical meaning; the trial court's refusal to manufacture one or direct a finding on force did not render its response to the jury's inquiry misleading. CALCRIM No. 1600, as given to the jury, was full and complete. Notably, in addition to instructing the jury on the elements of the crime of robbery, CALCRIM No. 1600 also instructs that "[a]n act is done against a person's will if that person does not consent to the act. In order to consent, a person must act freely and voluntarily and know the nature of the act." The instruction required that in order to find Romero guilty of second degree robbery, the jury must find that Romero and his coconspirators applied force to Perez, while conscious, before taking his property. We presume jurors are intelligent and capable of understanding and applying the trial court's instructions. (People v. Gonzales (2011) 51 Cal.4th 894, 940.) The trial court's response to the jury's inquiry did not constitute an abuse of discretion.
IV.
THERE WAS NO CUMULATIVE ERROR.
Romero asserts he was prejudiced by cumulative error. "[A] series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error." (People v. Hill (1998) 17 Cal.4th 800, 844.) As we have rejected each of Romero's contentions of error on appeal for the reasons set forth ante, there was no cumulative error.
DISPOSITION
The judgment is affirmed.
FYBEL, J. WE CONCUR: O'LEARY, P. J. IKOLA, J.