Filed 11/20/15 P. v. Merritt 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E062540
v. (Super.Ct.No. FVI1300082)
ANDRE MERRITT, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Debra Harris,
Judge. Reversed.
John L. Dodd, 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, Arlene A. Sevidal and Christen
Somerville, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury found defendant and appellant Andre Merritt guilty of two counts of
robbery. (Pen. Code, § 211.)1 The jury found true the allegations that defendant
personally used a firearm during both robberies. (§ 12022.53, subd. (b).) The trial court
sentenced defendant to prison for a term of 19 years 4 months. Defendant raises two
issues on appeal. First, defendant contends the trial court erred by failing to instruct the
jury on the crime of robbery—the whole instruction was omitted. (CALCRIM No.
1600.) Second, defendant asserts that, because he relied upon an alibi defense, the trial
court erred by instructing the jury that the prosecutor need not prove the crime occurred
on a specific date. (CALCRIM No. 207.) We reverse the judgment.
FACTUAL AND PROCEDURAL HISTORY
A. DEFENDANT’S OFFENSES
1. STORAGE FACILITY
On December 19, 2012, at approximately 5:00 p.m., Kristen Wickum was
working at the front counter of Storage Direct, in Victorville. Defendant approached
the front counter. Defendant pulled out a gun and demanded “all the money.” Wickum
gave defendant the money “[i]n the drawer” and the petty cash box. All together,
defendant took approximately $338. After defendant left, Wickum called for her
manager, who was in a back room with the door closed. Wickum and the manager
contacted law enforcement.
1 All subsequent statutory references will be to the Penal Code, unless otherwise
indicated.
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Defendant’s face was not covered during the robbery. Wickum described the
assailant as a black male; approximately 20 years old; 5 feet 11 inches tall; wearing a
blue hooded sweatshirt, gray shorts, white socks, and Chuck Taylor shoes. Wickum
recalled the handgun being a black semiautomatic. When shown a six-pack
photographic lineup, Wickum “almost immediately” identified defendant.
2. CONVENIENCE STORE
On December 19, 2012, at approximately 6:22 p.m., Christian Lopez was
working at La Mexicana, a convenience store in Victorville. Defendant pointed a gun at
Lopez and said, “Give me the money . . . [¶] . . . [¶] Muthafucker.” Lopez gave
defendant the money from the cash register and from a separate “stash.” Defendant
took approximately $700.
Defendant’s face was not covered during the robbery. Lopez described the
assailant as “a black male in his 20s, about [six] foot with a thin, bulky build, wearing a
black shirt, khaki shorts, and he was armed with a silver handgun.” When shown a
photographic lineup, Lopez identified defendant “Right away.” The robbery was
recorded by the store’s surveillance system. The video recording was played for the
jury.
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3. SEARCH
On January 4, 2013, a San Bernardino County Sheriff’s Department detective
and deputies searched defendant’s residence in Victorville. In defendant’s bedroom, the
law enforcement officers found ammunition. In a girl’s bedroom, where defendant
stored some of his clothes, the officers found cargo-style men’s shorts, two hooded
black sweatshirts, and Converse or Chuck Taylor-type shoes.
4. DEFENSE
Defendant presented an alibi defense. On the night of December 18, 2012,
defendant’s mother picked defendant up at the jail in Adelanto. Waiting at her home to
celebrate defendant’s release, were defendant’s brother, defendant’s cousin, and two
other men. When defendant arrived at the house, the men smoked marijuana and played
videogames. The celebration lasted “two or three days.” Defendant was at the house,
using the computer, on December 19 from 4:30 to 6:30 p.m. Defendant did not leave
the house for approximately four days after being released from jail.
5. REBUTTAL
The prosecutor presented a rebuttal witness. San Bernardino County Sheriff’s
Detective Solorio was present when defendant was interviewed following the execution
of the search warrant. During the interview, defendant said he was at home “earlier in
the day” on December 19, but then walked to a friend’s residence at the Rodeo
Apartments. Defendant said he spent the night of December 19 at the Rodeo
Apartments.
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B. JURY INSTRUCTIONS
Defendant was charged with two counts of robbery. (§ 211.) The trial court did
not instruct the jury on the offense of robbery. (CALCRIM No. 1600.) The elements
listed in the robbery jury instruction, which were omitted, were: (1) 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/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 permanently deprive the owner of
the property. The instruction went on to provide further information about the offense.
(CALCRIM No. 1600.)
The trial court instructed the jury on the specific intent requirement for robbery.
The instruction informed the jury, “The specific intent and mental state required for the
crime of Robbery is the specific intent to permanently deprive the owner of the property
when it is taken.” (CALCRIM No. 251.) The trial court also instructed the jury on the
firearm enhancement (§ 12022.53, subd. (b)), which requires proof the defendant
(1) displayed the weapon in a menacing manner; (2) hit someone with the weapon; or
(3) fired the weapon. (CALCRIM No. 3146.)
During the prosecutor’s closing argument, he said, “The instructions are that the
defendant took property that was not his own. That the property was in the possession
of another person. Property was taken from the other person or immediate presence.
Property was taken against that person’s will. The defendant used force or fear to take
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the property or prevent the person from resisting. And, finally, when the defendant used
force or fear to take the property intended to deprive the owner of it permanently.
You’ll see the instruction in the instructions also that the employee owns the property of
the business. So you have all this.”
During defense counsel’s closing argument, he said, “Now, [the prosecutor]
already went through the elements of robbery. Number 1, the defendant took property
that was not his own. Two, the property was in the possession of another person.
Three, the property was taken from the other person or her immediate presence. The
property was taken against that person’s will and the defendant used force or fear to
take the property or to prevent the person from resisting. And when the defendant used
force or fear to take the property he intended to deprive the owner of it permanently.
That’s [legalese] for, he intended to steal it.”
Defense counsel continued, explaining his argument, “Now, there is no question
here, as [the prosecutor] said, no question these people were robbed, okay. Our only
contention is with Element Number 1 that it was not the defendant. Not the defendant.”
DISCUSSION
A. ROBBERY INSTRUCTION
Defendant contends the trial court erred by not instructing the jury on the offense
of robbery, and that the error is reversible per se. (CALCRIM No. 1600.) The People
concede the trial court erred, but assert the error was harmless. The People assert the
error is harmless because (1) the jury was instructed on the specific intent requirement
for robbery; (2) the jury was instructed on the use of a firearm, which relates to the force
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and fear element of robbery; (3) defendant only disputed identity—he did not dispute
that the robberies occurred; and (4) both trial attorneys recited the elements of robbery
in their closing arguments.
We apply the de novo standard when reviewing an alleged instructional error.
(People v. Cole (2004) 33 Cal.4th 1158, 1210.) “The trial court must instruct even
without request on the general principles of law relevant to and governing the case.
[Citation.] That obligation includes instructions on all of the elements of a charged
offense.” (People v. Cummings (1993) 4 Cal.4th 1233, 1311 (Cummings).) Because the
trial court did not instruct on the charged offense, we conclude the trial court erred.
We now examine whether the error is reversible per se or subject to harmless
error review. In Cummings, the defendant was convicted of robbery, attempted robbery,
and conspiracy to commit robbery, but the trial court failed to instruct the jury on the
offense of robbery. (Cummings, supra, 4 Cal.4th at pp. 1256, 1311.) However, the trial
court did instruct the jury that the crime of attempted robbery requires the specific intent
to permanently deprive the owner of his/her property. (Id. at pp. 1311-1312.) The
defendant argued that the trial court’s failure to instruct on four of the five elements of
robbery was reversible per se. (Id. at p. 1312.) The People argued the error was
harmless because (1) the evidence established the robberies were committed at
gunpoint; (2) the jury was instructed on the intent to permanently deprive; and (3) the
defendant only disputed identity—he did not dispute that the robberies occurred. (Ibid.)
The Supreme Court discussed cases that permit a harmless error analysis to be
performed when one element or a portion of an element was omitted from a jury
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instruction. (Cummings, supra, 4 Cal.4th at pp. 1313-1314.) The Supreme Court then
wrote, “These decisions make a clear distinction between instructional error that entirely
precludes jury consideration of an element of an offense and that which affects only an
aspect of an element. Moreover, none suggests that a harmless error analysis may be
applied to instructional error which withdraws from jury consideration substantially all
of the elements of an offense and did not require by other instructions that the jury find
the existence of the facts necessary to a conclusion that the omitted element had been
proved.” (Id. at p. 1315.) The Supreme Court then concluded the defendant’s
convictions “must be reversed,” “regardless of the merits of the People’s argument that
[the defendant] did not dispute the existence of the predicate facts and that the evidence
overwhelmingly established all of the elements of robbery, attempted robbery, and
conspiracy to commit robbery.” (Ibid.)
Thus, Cummings establishes that a harmless error analysis may not be applied to
an instructional error that withdraws from the jury’s consideration substantially all of
the elements of an offense, unless, through other instructions, the jury found the facts
necessary to support a conclusion that the omitted elements were proven. (Cummings,
supra, 4 Cal.4th at p. 1315.)
Cummings is directly on-point with the instant case. In both cases, (1) the
complete robbery instruction was omitted; (2) the juries were instructed that the specific
intent requirement for robbery meant establishing the defendant acted with the intent to
permanently deprive; (3) the evidence established the robberies were committed at
gunpoint; and (4) the defendants only disputed identity—they did not dispute that the
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robberies occurred. In the instant case, the jury was also informed of the elements of
robbery via the trial attorneys’ closing arguments.
Similar to Cummings, the instant case did not include instructions that
overlapped with all or most of the elements of robbery. For example, a finding that
defendant had the specific intent to permanently deprive does not compel a conclusion
that the jury found the facts necessary to establish the property was taken from the
victims or the victims’ immediate presence. (See Cummings, supra, 4 Cal.4th at p.
1313 [“A finding that property was taken with the intent to permanently deprive the
owner does not compel a conclusion that the jury has found the facts necessary to
establish the remaining elements of the offense”].) Because the instant case is so
closely on-point with Cummings, we conclude, as our Supreme Court did in Cummings,
that the error is reversible per se. (Id. at p. 1315.)
B. DATE INSTRUCTION
Defendant contends, because he was relying on an alibi defense, the trial court
erred by instructing the jury that the prosecutor was not required to establish the crimes
occurred on a specific date. (CALCRIM No. 207.) Defendant urges this court to decide
the issue, even if the convictions are reversed for the failure to instruct on robbery, in
order to provide guidance to the trial court upon retrial.
The issue has been rendered moot by our conclusion that defendant’s robbery
convictions must be reversed. (See People v. Travis (2006) 139 Cal.App.4th 1271,
1280 [issue is moot when no effective relief can be granted].) We decline the invitation
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to provide guidance on the issue. (See People v. McMillan (1980) 110 Cal.App.3d 682,
687 [declining to provide additional guidance to the trial court].)
DISPOSITION
The judgment is reversed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
McKINSTER
Acting P. J.
KING
J.
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