People v. Cortes

THE PEOPLE, Plaintiff and Respondent, v. JESSIE TAPIA CORTES, Defendant and Appellant.

B293520

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN

July 28, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. VA148092)

APPEAL from a judgment of the Superior Court of Los Angeles County, Raul A. Sahagun, Judge. Affirmed; remanded with directions.

Laurie Wilmore, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Supervising Deputy Attorney General, William H. Shin and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.

____________________ Jessie Tapia Cortes appeals from a judgment entered after a jury convicted him of the attempted second degree robbery (Pen. Code,¹ §§ 211, 664) of loss prevention officer Francisco Manuel Serrano in connection with a physical altercation Cortes had with Serrano after Cortes attempted to leave a shoe store with two pairs of new shoes. On appeal, Cortes contends the trial court erred in instructing the jury not to consider self-defense. Cortes also asserts the trial court erred in refusing to instruct the jury on attempted petty theft and in instructing the jury it had to return a verdict on attempted robbery before it could return a verdict on petty theft. We affirm Cortes's conviction of attempted second degree robbery.

We also affirm the judgment entered in Los Angeles Superior Court case number VA147199 after the trial court found Cortes in violation of his probation for driving or taking a vehicle without consent (§ 10851, subd. (a)) based on the attempted second degree robbery conviction. However, we remand for the trial court to prepare a corrected abstract of judgment reflecting that the sentence on the offense of driving or taking a vehicle is to run concurrently with the sentence on the attempted robbery conviction.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Evidence at Trial

Serrano was a loss prevention officer employed by Warehouse Shoe Sale (WSS) at its store in South Gate. Serrano testified that in the early afternoon of May 21, 2018 Cortesentered the WSS store. Serrano greeted Cortes from his lectern near the store entrance. Cortes looked Serrano up and down and said, "What's good, bro? How you doing?" Cortes's response to Serrano's greeting "threw up a red flag" because Serrano perceived a lack of respect, so Serrano decided to keep an eye on Cortes. Serrano also observed Cortes was wearing a pair of dirty all-white Jordan athletic shoes. Serrano led Cortes to the men's shoe section of the store and then returned to his lectern, which had a monitor that displayed live security footage of the store.

Serrano monitored Cortes from his lectern, but at some point Serrano could not see him, so Serrano returned to Cortes's location to inquire if Cortes needed any help. Cortes responded, "I'm good bro." At that point Serrano noticed Cortes was wearing a new pair of Jordan shoes and holding a box with a second pair of Jordan shoes, both priced at $164.99. Cortes began walking in the general direction of the cash registers and store entrance, and Serrano accompanied him. The store had displays for infant accessories and shoes (with only left shoes displayed) located beyond the cash registers but before the store entrance.

As Cortes walked past the cash registers and approached the front door, Serrano blocked his path and told him to pay for the shoes. Cortes responded, "I'm not going to pay." Serrano extended his arms to try to direct Cortes from the exit, and Serrano tried "to smack the box away from [Cortes's] hand." Cortes backed away. Serrano told Cortes to "get back and take off his shoes," to which Cortes responded, "I'm not going to take them off."² Serrano told the cashier to call Oscar Cabrera, thestore manager. Serrano then put his hands on Cortes to try "to get [Cortes] back further to still try to keep him in [a] good position to see if he tries to run out, so [Serrano] could still grab ahold of him." Cortes responded, "[Y]ou can't be touching me," and he dropped the box in his hands to the floor and placed his hands on Serrano's arms.

In the ensuing scuffle, Cortes hit the left side of Serrano's face, leaving a bruise.³ Serrano swung back, and both men ended up on the floor, with Cortes grabbing Serrano's sweatshirt. Serrano repeatedly told Cortes to take off the shoes, but Cortes did not comply.⁴

About 25 seconds after the physical altercation began, Cabrera arrived from the back of the store and stopped Cortes and Serrano from fighting. Cabrera testified he told Cortes to "put the stuff back . . . calm down[, and] [l]et's everybody just relax." Cortes then said to Serrano, "[W]atch yourself"; he told Cabrera, "[W]atch your boy." Cabrera and Serrano blocked Cortes's path to the store's entrance and told Cortes three or four times to return the shoes. Cortes then walked to the aisle to return the pair of shoes he was wearing and retrieve his old shoes, which he had left in a box. Cortes walked out of the storewith no merchandise, sat down outside to put on his shoes, and left. Serrano called 911 and reported the incident.⁵

B. Jury Instructions, Verdict, and Sentencing

The trial court instructed the jury on robbery with CALCRIM No. 1600, "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 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. The defendant's intent to take the property must have been formed before or during the time he used force or fear. [¶] If the defendant did not form this required intent until after using the force or fear, then he did not commit robbery." The court also instructed the jury on the lesser included offenses of attempted second degree robbery (§§ 211, 664) and petty theft (§ 484).

Cortes's attorney requested an instruction on attempted petty theft. The trial court refused the request, explaining, "The court will not give attempted petty theft because that is not a lesser included of robbery. It's a lesser-related and it's charged that it's in the prosecution's discretion. So the court will not give an attempted petty theft."

The jury found Cortes not guilty of second degree robbery but guilty of the lesser included offense of attempted second degree robbery. The trial court sentenced Cortes to the upper term of three years in state prison.⁶

Cortes timely appealed.

DISCUSSION

A. The Trial Court Properly Instructed the Jury That Self-defense Is Not a Defense to Robbery

1. The jury's questions and the court's responses

Cortes did not request an instruction on self-defense, and the trial court did not instruct on it. However, during his closing argument, Cortes's attorney argued Cortes's use of force was in response to Serrano's harassment and placing his hands onCortes, not in furtherance of an intent to steal the shoes. During deliberations, the jury requested the "legal definition of force." In response, the trial court instructed the jury "[t]he word force, as used in these instructions, is to be given its ordinary, everyday meaning." After further deliberations, the jury notified the court it was deadlocked on the offense of robbery. When the court inquired whether there was anything it could do to assist the jury, the presiding juror responded, "[I]t's on the issue of force." The trial court stated it could not provide an additional definition of force, and it directed the jury to continue deliberating.

Later that day the jury transmitted the following question: "If force is used in the act of self[-]defense, should it be considered applicable?" Over the objection of Cortes's attorney, the trial court responded, "The defense of self defense on behalf of the [d]efendant has not been raised in this case and therefore may not be considered."⁷

2. The trial court's duty to instruct and standard of review

Section 1138 provides in pertinent part that if the jury "desire[s] to be informed on any point of law arising in the case, . . . the information required must be given . . . ." However,as the Supreme Court has explained, the court's duty under section 1138 to help the jury understand applicable legal principles "does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury's request for information. [Citation.] Indeed, comments diverging from the standard are often risky." (People v. Beardslee (1991) 53 Cal.3d 68, 97 (Beardslee); accord, People v. Brooks (2017) 3 Cal.5th 1, 97 [trial court did not abuse its discretion in refusing to elaborate on jury instruction concerning mitigation relating to death sentence].)

But the court in Beardslee cautioned, "[A] court must do more than figuratively throw up its hands and tell the jury it cannot help. It must at least consider how it can best aid the jury. It should decide as to each jury question whether further explanation is desirable, or whether it should merely reiterate the instructions already given." (Beardslee, supra, 53 Cal.3d...