People v. Bell

THE PEOPLE, Plaintiff and Respondent, v. JOEY ERRON BELL, Defendant and Appellant.

F077651

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

October 27, 2020

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. F17906845)

OPINION

APPEAL from a judgment of the Superior Court of Fresno County. Jonathan B. Conklin, Judge.

Matthew J. Watts, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman, Carlos A. Martinez, and Tracy Yao, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo- Joey Erron Bell (defendant) stands convicted, following a jury trial, of second degree robbery. (Pen. Code, § 211.)¹ He admitted having served a prior prison term (§ 667.5, former subd. (b)), and was sentenced to four years in prison and ordered to pay various fees, fines, and assessments. We hold: (1) The trial court did not err by failing to give a unanimity instruction; (2) The trial court did not commit prejudicial error when responding to the jury's request for clarification; and (3) Defendant is not entitled to reversal based on the cumulative effect of asserted errors; but (4) The one-year prior prison term enhancement must be stricken.² We modify the judgment accordingly and, as modified, affirm.

FACTS

IPROSECUTION EVIDENCE

On November 16, 2017, Mark B. was working as a loss prevention officer at a department store in a mall in Fresno County.³ Loss prevention officers at the store wear regular street clothing.

On November 16, Mark saw defendant enter the Levi's department, select two pairs of jeans from the display shelf, and then walk away with the jeans in his hands. As Mark watched on security camera monitors in a control room, defendant went over to another department, produced a blue bag from his waistband area, and put the Levi'sinside the bag.⁴ A woman and two children met up with him. The woman handed defendant a pair of shoes, and he put those in the bag as well.

Mark went out onto the floor and positioned himself behind defendant, who was close to the store doors. Mark had his two-way radio out and tried to make it obvious he was a loss prevention officer.⁵ Defendant said "what's up" to Mark, as if asking what Mark was going to do. Mark responded, "hey, what's up?" Defendant looked at Mark and gave him a little nod, then walked directly out of the store. Alarms went off at the door.

Defendant kept walking as the alarms sounded. Mark contacted him on the sidewalk in front of the doors.⁶ Mark identified himself as a loss prevention officer and asked to have the jeans back. Defendant said he had paid for them. Mark disputed this and said he just wanted the jeans back. Defendant cursed and told Mark to get away from him. When Mark tried to grab the jeans, defendant "ripped" the bag away and shoved Mark's hands away, slapping Mark's arms with enough force that they were red afterwards. Defendant then walked to a car in the parking lot.

Defendant got into the car. The window was rolled down. Mark, who was on the phone with 911, was able to get the vehicle's license plate number and give it to the 911 operator.⁷ As the car was being driven away by the female Mark had seen inside the store, defendant looked at Mark and yelled, "I got that thing on me." Defendant wasreaching into his jacket. Mark interpreted what defendant said to mean defendant had a gun on him. Mark, who was scared, went back into the store.

Fresno Police Detective Xiong investigated the incident. He determined that the license plate number was for a vehicle registered to T.C., who resided on North Marks. A law enforcement database listed defendant as also residing at that address. Xiong obtained a still photograph from the store's surveillance video, compared it to a photograph of defendant, and concluded defendant was the person who committed the robbery. Xiong assembled a photographic lineup and showed it to Mark. Mark identified defendant as the perpetrator.

Defendant was arrested on November 20. His residence was searched, and the stolen items were recovered.

IIDEFENSE EVIDENCE

Defendant testified and admitted he had a prior felony conviction for a crime of moral turpitude. On November 16, he went to the department store with his cousin, T.C., and her two children. As defendant entered the store, T.C. gave him a bag in which to put items to steal.

When defendant entered the store, he intended to exchange something for T.C. and to buy something. Once inside, he put jeans in the bag. He originally was going to pay for them, but he "wasn't really in the right state of mind that day." When he put the jeans in the bag, he intended to take them without paying. T.C. handed him some slippers, and he also put them in the bag. He then walked toward the exit.

Mark walked up to defendant inside the store, but never identified himself as a loss prevention officer. Defendant thought he was "[j]ust a random person."

Once defendant, T.C., and the children exited the store and walked toward their car, Mark aggressively approached defendant. Defendant would have given him back the items had he known Mark was a loss prevention officer, but Mark never identifiedhimself as such and was not wearing anything to show he worked for the store.⁸ Although defendant had heard the alarms sound when he left the store and Mark contacted him immediately after that, defendant did not think Mark was someone from the store. Defendant never saw a radio on Mark, and thought Mark was a "random stranger" who was trying to rob defendant. As Mark kept asking for his stuff back, and given the way he was acting, defendant thought Mark probably was a store employee, but he did not know for certain.

When Mark reached for the bag, he tore it a little bit. He kept saying to give his stuff back. Defendant, who had been robbed before, slapped Mark's hand away to defend himself. Defendant barely hit Mark's hand. He thought Mark wanted to fight.

Defendant, T.C., and the children got into the car with defendant on the passenger side. The windows were up. Mark was standing by the store doorway. Although defendant said "fuck you" to Mark when Mark kept trying to reach for the bag, he did not say anything else. Defendant never said, "I got that thing on me." It was not until defendant spoke with officers that he found out Mark worked for the department store.

DISCUSSION

IFAILURE TO GIVE UNANIMITY INSTRUCTION

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." "In California, '[t]he crime of robbery is a continuing offense that begins from the time of the original taking until the robber reaches a place of relative safety.' [Citation.] It thus is robbery when the property was peacefully acquired, but force or fear was used to carry it away. [Citation.]" (People v.Anderson (2011) 51 Cal.4th 989, 994; see People v. Estes (1983) 147 Cal.App.3d 23, 28 (Estes).)

Here, the prosecutor argued to the jury that both force and fear were shown by the evidence: force, when defendant slapped Mark's hands away; and fear, when defendant made what Mark interpreted as a threat that defendant had a gun. Defendant contends that because the prosecutor adduced evidence of multiple acts that could have constituted force or fear, and argued both instead of making an election, the trial court had a sua sponte duty to give a unanimity instruction.⁹ Failure to do so, he says, was prejudicial error. The Attorney General says no such instruction was required. We agree with the Attorney General.

In order to convict in a criminal case, a jury verdict must be unanimous. (Ramos v. Louisiana (2020) 590 U.S. ___, ___ [140 S.Ct. 1390, 1397]; People v. Russo (2001) 25 Cal.4th 1124, 1132 (Russo).)¹⁰ "Additionally, the jury must agree unanimously the defendant is guilty of a specific crime. [Citation.] Therefore, cases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. [Citations.]" (Russo, supra, at p. 1132, italics omitted.) In other words, "[a] unanimity instruction is required if there is evidence that more than one crime occurred, each of which could provide the basis for conviction under a single count. [Citations.]" (People v. Grimes (2016) 1 Cal.5th 698, 727.) "This requirement of unanimity as to the criminal act 'is intended to eliminate the danger that the defendant will be convicted eventhough there is no single offense which all the jurors agree the defendant committed.' [Citation.] . . . 'The [unanimity] instruction is designed in part to prevent the jury from amalgamating evidence of multiple offenses, no one of which has been proved beyond a reasonable doubt, in order to conclude beyond a reasonable doubt that a defendant must have done something sufficient to convict on one count.' [Citation.]" (Russo, supra, at p. 1132, italics omitted.)

"But the unanimity instruction is not required ' "where multiple theories or acts may form the basis of a guilty verdict on one discrete criminal event." ' [Citation.] '[W]here the evidence shows only a single discrete crime but leaves room for disagreement as to exactly how that crime was committed or what the defendant's precise role was, the jury need not unanimously agree on the basis or . . . the "theory" whereby the defendant is guilty.' [Citation.] This is true even if the theories are based on different...