People v. Owens

THE PEOPLE, Plaintiff and Respondent, v. IJUMAA OWENS, Defendant and Appellant.

B305369

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

May 14, 2021

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BA477985)

APPEAL from a judgment of the Superior Court of Los Angeles County, Mark S. Arnold, Judge. Affirmed.

Nicholas Seymour, 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, Senior Assistant Attorney General, Roberta L. Davis and William H Shin, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

A jury convicted Ijumaa Owens of robbing a store after he went behind the counter, caused the store's employee to fear for her life, and took money from several cash registers. Owens argues the trial court committed three instructional errors. We conclude there is no error, no prejudice, and no reason to reverse.

FACTUAL AND PROCEDURAL BACKGROUND

A. Owens Robs a Store

One Saturday morning, a little before noon, Owens walked into the store of a prepaid wireless service provider and began, or pretended, to look at phones. Owens was wearing a black "hoodie sweater" or jacket with pockets in the front. Only one employee, Georgina Hernandez, and one customer, Stephanie White, were in the store. The store had four cash registers. Each register had $150 in cash at the beginning of the day, although by the time Owens entered the store, Hernandez had added cash to her register from customers who had purchased phones earlier in the morning. Each register had a key the employees left in the key hole so they could turn the key and open the register.

White had purchased a cell phone, and Hernandez was helping her transfer her email and contact information from her old phone to her new phone. Hernandez asked Owens if she could help him. Owens, who is over six feet tall, walked up to the counter and spoke to Hernandez, who is five feet three inches tall. Owens had his hands in the front pockets of his jacket.

Owens gave Hernandez a phone number and said he wanted to pay a phone bill. Hernandez entered the numberOwens gave her into her computer, but learned the number was associated with another carrier. Owens gave Hernandez another phone number, but it too was associated with another carrier. Hernandez thought it was unusual Owens gave her two different phone numbers; when customers pay a bill at the store, they usually know their phone number.

Owens pushed through the swinging, "saloon-style" doors that led to an employee-only area behind the counter, keeping one or both of his hands in his pockets. Hernandez was scared that, because Owens had his hands in his jacket pockets, he had "a weapon or something on him." Hernandez testified at trial that she believed Owens had a weapon based on how he was holding his hands in his pocket, which made her fear for her life, but also (on cross-examination) that Owens did not point his pocket at her as if he was pointing a weapon. White, the customer, testified that Owens had his hands in his pockets and that, while she was speaking with her son on her old cell phone, she said to him, "He has his hands in his pocket."

Owens told Hernandez to give him the money. Hernandez was scared Owens would hurt or kill her. Hernandez backed away from Owens, threw her hands up in the air, palms facing forward, and said, "Take whatever you want." She felt she had no choice but to give Owens the money, and she told Owens to take everything but not to hurt her. White, who was still on the phone with her son, said "He's robbing the store." White ran out, leaving Hernandez alone with Owens.

Owens turned the key in Hernandez's register, opened the register, and took all the cash. Owens began to leave, but returned to take the cash from two of the remaining three registers. Owens walked past Hernandez and said, "You aregood," which Hernandez understood to mean he was not going to hurt her.

As soon as Owens left the store, Hernandez locked the front door, pushed the alarm, and called the police.¹ When the police arrived, Hernandez unlocked the front door and explained what had occurred.

A police detective interviewed Hernandez the following Monday. Hernandez, who was still upset, told the detective that Owens had said, "Give me the money." Hernandez also said that Owens had "placed his hands in his jacket pocket and simulated a handgun" and that he "pointed something . . . in his jacket pocket toward her that she believed to be a handgun."² The detective also picked up a surveillance video at the store.

B. Owens Is Followed and Caught

Meanwhile, after White ran out of the store, she called the 911 emergency operator as she was running back to her car. She got into her car, locked the doors, and soon saw Owens walk calmly past her. White drove her car and followed Owens for 10to 15 minutes, as she continued to speak with the 911 operator. White said Owens appeared "very calm," was walking as though he was taking a stroll, and showed no concern he would be caught.

Eventually several police cars arrived with their lights and sirens off. White identified Owens, who by that time was counting money, by pointing to him through her car window. The officers told Owens to stop. When Owens saw the police officers, he looked directly at White and ran. The officers pursued him, some on foot and some in a patrol car. White parked her car in the middle of the street, got out, and joined the pursuit. The officers quickly captured and handcuffed Owens, and White "got down in his face and told him, 'Don't you ever rob no place again that I'm in.'"³ One of the officers searched Owens and recovered $706 in currency and coins (some in a coin wrapper) from his pockets, but no weapons. Hernandez identified Owens in a field show-up.

C. Owens Gives His Version

Owens testified that, 10 or 20 minutes before he went to the wireless service provider store, he had smoked phencyclidine (PCP), which he described as a "tranquilizer . . . for bodybuilders," and that he was feeling the effects of the drug when he entered the store. Owens stated that he had come from a nearby memorial service for his friend, Nipsey Hussle. He said that he had argued with his girlfriend and that he went to the store with $55 in his hand, not to rob the store, but to pay hisgirlfriend's phone bill. He said that, when he walked into the store, his hands were "seeable" and not in his pockets. He said that Hernandez asked if he needed any assistance and that he stated he was there to pay a bill. Owens testified that he gave Hernandez his girlfriend's phone number twice and that he looked at the "call log" on his phone to confirm the number, but that Hernandez said "the number didn't comply with her computer." Owens said that the women in the store smirked and laughed at him and that he became frustrated because he knew the phone number was correct.

Owens testified he walked through the "slinging, Western-style doors" and behind the counter. He said that he was "still high" when he walked through the doors and that, although he did not know what was going through his mind, he went behind the counter to see if Hernandez was typing the correct phone number into the computer. Owens said that he had been listening to music on a speaker around his neck and was in his "own little zone," but that he could not understand why he was having a problem paying the phone bill. He denied saying "Give me the money" or pointing from his pockets at Hernandez. According to Owens, Hernandez said, "Get what you want" and "Take the money and leave." Owens testified that he took the money from the cash register because Hernandez "suggested it" and offered the money. Owens said that he was not going to take any money from the cash register, but that Hernandez "kept offering the money out of the cash register," which Owens admitted was "strange."

Owens had no explanation for why he started to leave after taking cash from one register but returned through the swinging doors to take cash from the other registers. Watching thesurveillance video, Owens said he must have been "out of it" because he was moving "like a slur, slurring" and without "straight posture." He said the video showed him walking as though he was "floating or something," which he considered an effect of PCP. Owens said he was not trying to threaten Hernandez or place her in fear when he took the money. Owens admitted that he stole money from the store, but stated that it was because he was under the influence of PCP.

Owens stated that when he walked out of the store he felt like he was "going to pass out." He explained the effects of PCP: "It's kind of like someone put you in a headlock and didn't let you go. The pressure, you just keep moving or you'll black out." Owens said that, when the police arrived, he ran because he saw "someone with a gun or something."

D. Owens's PCP Use Is the Subject of Rebuttal Testimony

After Owens testified, the prosecutor asked permission to present testimony on rebuttal that Owens was not under the influence of PCP, either by the officers who arrested Owens (based on their background, training, and experience) or by a drug recognition expert. In particular, the prosecutor wanted to present evidence "that someone who is under the influence of PCP does not black out." The court denied the request in part, ruling that the prosecutor could call the officers to say Owens did not "exhibit any symptomology" of PCP, but that she could not call a drug recognition expert because "no...