People v. Smith CA4/1

Filed 10/6/21 P. v. Smith CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D077847

Plaintiff and Respondent,

v. (Super. Ct. No. SCD278660)

BRANDON SMITH,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County,
Michael S. Groch, Judge. Affirmed in part; reversed in part; sentence
modified.
William P. Melcher, under appointment by the Court of Appeal, for
Defendant and Appellant.
Matthew Rodriquez, Acting Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney
General, A. Natasha Cortina and Alan L. Amann, Deputy Attorneys General,
for Plaintiff and Respondent.
 I.
INTRODUCTION
A jury found Brandon Smith guilty of two counts of robbery (Pen. Code,
§ 211,1 counts 1 & 2) and one count of petty theft (§ 484, count 4).2 Smith
committed the crimes with his brother and codefendant, Anthony Watson.3
Smith admitted having suffered two strike priors (§§ 667, subds. (b)–(i), 668,
1170.12), a serious felony prior (§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)),
and two prison priors (§§ 667.5, subd. (b), 668).
At sentencing, the trial court struck one of the strike priors, and
sentenced Smith to a total of 19 years in prison, consisting of 10 years on
count 1—the upper term of five years doubled because of the remaining strike
prior, a consecutive two years for count 2, calculated at one-third the
midterm doubled due to the strike, a consecutive five years for the serious
felony prior, and two consecutive one-year terms for the prison prior
enhancements. The court sentenced Smith to “time served” on count 4.

1 Unless otherwise specified, all subsequent statutory references are to
the Penal Code.

2 The jury found Smith not guilty of an additional count of petty theft
(§ 484) charged in count 3.

3 We affirmed the judgment as to Watson in People v. Watson (Apr. 8,
2021, D076475) [nonpub. opn.].

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 II.
FACTUAL BACKGROUND

A. Appletree Market theft (Count 4)4
One afternoon in July 2018, Watson and Smith were checking out at
the Appletree Market. After the cashier opened the register, both men
reached over the counter and started grabbing money. They then fled the
store.
B. Yum Yum Yo robbery (Count 2)
One afternoon in August 2018, Watson and Smith walked into a
sandwich shop called Yum Yum Yo. Smith ordered a sandwich and handed
the shop owner, K.D., a five-dollar bill. When K.D. opened the register, both
men reached over the counter and started to grab money. K.D. was scared.
K.D. attempted to close the drawer to the register, but was unable to
immediately do so because Watson’s and Smith’s hands were inside the
drawer. The men fled the shop with money from the register.
C. GameStop robbery (Count 1)
Approximately two weeks after the Yum Yum Yo robbery, Watson and
Smith were at a store that sells video games called GameStop.5 One of the
men told the store’s assistant manager, J.F., that he wanted to purchase a
video game. After J.F. retrieved the game from behind the counter, J.F.
opened the cash register to complete the sale. Watson and Smith
immediately reached over the register and began to grab money from it.

4 We discuss the offenses in the chronological order in which they were
committed.

5 In the record, the store is referred to as “Game Stop”; we use the proper
name of the business, “GameStop.”

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 While taking the money with one hand, Watson grabbed J.F.’s wrist
with his other hand and “pinned” it against the side of the cash register. J.F.
grabbed Watson’s hand to try to stop him. After a brief struggle, Watson
broke free from J.F.’s grasp and followed Smith out of the store with money
that they had stolen. J.F. sustained a minor injury to his hand during the
incident.
III.
DISCUSSION
A. The prosecutor’s closing argument and the trial court’s jury instructions
did not erroneously allow the jury to find Smith guilty of the Yum Yum Yo
robbery merely upon a finding that the defendants were guilty of petty
theft

Smith contends, “The prosecutor’s closing argument, coupled with an
ambiguity in [the] trial court’s instructions, erroneously and prejudicially
allowed the jury to find appellant guilty of robbery on count two [the Yum
Yum Yo robbery] if the jury found both defendants were guilty of the target
offense of petty theft, a legally invalid theory in this case.” (Boldface
omitted.)
We review Smith’s claim de novo.6 (See People v. Uribe (2011)
199 Cal.App.4th 836, 860 [a claim of prosecutorial error is reviewed
independently]; People v. Mitchell (2019) 7 Cal.5th 561, 579 [“An appellate
court reviews the wording of a jury instruction de novo and assesses whether
the instruction accurately states the law”].)

6 The People contend that Smith forfeited this claim by failing to object
in the trial court to either the prosecutor’s argument or to the court’s jury
instruction. Notwithstanding Smith’s possible forfeiture, we exercise our
discretion to consider the substance of Smith’s claim.

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 1. Factual and procedural background
a. The jury instruction on the natural and probable consequences
doctrine

At trial, while the trial court was instructing the jury, the court
excused the jury from the courtroom for a recess. During the recess, the
following colloquy occurred:
“The court: [W]e’re outside the presence of the jury. I
stopped at [CALCRIM] instruction [number] 403 because
I’m concerned about confusion with the jury. [¶] [CALCRIM
No.] 403 reads: Before you may decide whether the
defendant is guilty of robbery, you must decide that he is
guilty of petty theft. And then it goes on to a natural and
probable consequences discussion.

“That’s true in terms of aiding and abetting, it’s not true in
terms of straight and direct liability. So perhaps it should
be modified to say on an aiding and abetting theory, before
you decide whether a defendant is guilty of robbery.

“[The prosecutor]: Your Honor, my intention was to argue
this . . . as it relates to a conspiracy theory. And I was
precluded from -- my request for conspiracy instructions,
which I believe the evidence supports, was denied. But
that is what I believe this instruction really related to,
because they were both direct perpetrators in petty theft in
certain incidents, or two incidents of alleged robbery.

“They were both direct perpetrators in committing the
petty theft, and then one committed a robbery. So I need --
I still think the conspiracy instructions apply.

“The court: Well, I understand your disagreement with me
over conspiracy, and we’ve addressed that. The question is
as it applies to aiding and abetting, whether this
instruction [CALCRIM No.] 403 should be given or not, or
modified.

“[The prosecutor]: I don’t believe that it should be modified.

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 “The court: Either counsel want to weigh in?

“[Watson’s counsel]: No, thank you, Your Honor.
Submitted.

“[Smith’s counsel]: Submitted, Your Honor.

“The court: [CALCRIM No.] 403 is in the aiding and
abetting section of the instructions, not the conspiracy
instructions. It is a correct statement of the law, but one
could read the instruction, not knowing about how chapters
in CALCRIM work, and think they have to make this
finding before finding the defendants guilty of robbery on a
direct liability theory.

“If nobody is concerned about that than me, that’s fine. It
sounds like I’m standing alone, so I’ll leave the instructions
as given.”

After the recess, the jury returned, and the trial court continued
instructing the jury. The trial court instructed the jury concerning the
natural and probable consequences doctrine pursuant to CALCRIM No. 403
as follows:
“Before you may decide whether a defendant is guilty of
robbery, you must decide whether he is guilty of petty theft.
To prove that the defendant is guilty of robbery, the People
must prove that:

“One, the defendant is guilty of petty theft;

“Two, during the commission of petty theft, a co-participant
in that petty theft committed the crime of robbery;

“And three, under all of the circumstances, a reasonable
person in the defendant’s position would have known that
the commission of robbery was a natural and probable
consequence of the commission of the petty theft.

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 “A co-participant in a crime is a perpetrator or anyone who
aided and abetted the perpetrator. It does not include a
victim or innocent bystander.

“A natural and probable consequence is one that a
reasonable person would know is likely to happen if
nothing unusual intervenes. In deciding whether a
consequence is natural and probable, consider all of the
circumstances established by the evidence.

“To decide whether the crime of robbery was committed,
please refer to the separate instructions that I have given
you on that crime.”

Shortly thereafter, the trial court instructed the jury pursuant to
CALCRIM Nos. 1600 and 1800 on the elements of robbery and petty theft,
respectively.
b. The prosecutor’s closing argument

i. The prosecutor’s argument as to the GameStop robbery
charged in count 1

After the court completed its jury instructions, the prosecutor gave her
closing argument. While discussing the incident at the GameStop store, the
prosecutor argued that Watson was guilty of robbery as a direct perpetrator.
The prosecutor argued that Watson “grabbed [the victim’s] wrist[;] that’s
force right there.” The prosecutor further argued that Watson “us[ed] force to
resist [the victim’s] efforts.” After arguing that Watson was guilty of the
robbery of GameStop as a direct perpetrator, the prosecutor argued that
Smith was guilty of that robbery as an aider and abettor pursuant to the
natural and probable consequences doctrine, as follows:
“What about Mr. Smith? Now, you may be saying to
yourself, well, yes, Mr. Smith was there. He committed a
theft. He was there at the register, but he’s not the one
that pinned [the victim’s] hand. He’s not the one that

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struggled. Why is he guilty of a robbery? I submit to you
that Mr. Smith is guilty of a robbery under the natural and
probable consequences theory. This is an offshoot of the
aiding and abetting theory that we already talked about.

“To find Mr. Smith guilty under [a] natural and probable
consequences theor[y], you need to find the following: That
Mr. Smith committed petty theft. He’s guilty of that. That
during the commission of that petty theft, Mr. Watson, his
co-participant in the theft, committed a robbery. And that
under all of the circumstances, a reasonable person in
Smith’s position would have known that the commission of
a robbery was a natural and probable consequence of the
commission of the petty theft. And what that really means
is, was it reasonably foreseeable considering all of the
circumstances?

“So -- and this is not, you know, we’re not talking about
Smith himself, we’re talking about you. We’re talking
about objective, reasonable people. Objectively, would a
reasonable person doing what Smith was doing in all of
those circumstances know, was it reasonably foreseeable
that there may be some force that had to be used in order to
either get that property or to resist the efforts of the victim?
Absolutely. Again, this is a series of crimes. They
committed all these crimes together.

“By the time they committed the GameStop crime, they
already committed the Yum Yum Yo crime two weeks
earlier and another incident as well, the AM/PM crime was
before that as well. But the Yum Yum Yo incident itself.
That’s one where force was used by both of them. They
were both pushing, the victim was trying to close the cash
register. You know, absolutely he would have known, a
reasonable person would have known that, again, you’re
not in a situation where you’re stealing something off of a
shelf when no one is looking and walking out of the store.

“You are making a plan to confront the cashier, with his
hands standing at the register. You’re making a plan to go
into that person’s personal space, aggressively reaching

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 over the counter, overcoming their will to resist and getting
that money.

“Now, you may not intend to hurt them, to use any force at
all. You may hope that it all goes well, we don’t even have
to touch these people or that they don’t touch us. But you
go in there knowing, it is reasonably foreseeable that when
you reach into someone’s personal space and grab the
money that belongs to them, there may be some use of
force. You may have to push that person out of the way.
You may have to struggle with them if they resist. You
may have to pull that drawer open if they try to push it
close[d]. So under the natural and probable consequences
theory, you can find both of the defendants guilty of
robbery.”

“So again, as to Mr. Smith, just a reminder, because these
instructions are a little confusing. Under the verdict,
Count 1, robbery, you fill in guilty. Leave the other one
blank. That Count 1 [lesser included offense], don’t touch
it.” (Italics added.)

ii. The prosecutor’s argument as to the Yum Yum Yo
robbery charged in count 2

Immediately after presenting her argument as to the GameStop
robbery charged in count 1, the prosecutor argued that Smith and Watson
were guilty of the Yum Yum Yo robbery charged in count 2 because both
defendants used force and fear during that incident. The prosecutor argued
in part:
“Count 2, Yum Yum Yo. Again, the question is, is this a
robbery? A reminder of what I already explained to you
about use of force. The use of force, either to take the
money or to resist the victim’s efforts to retrieve the
property or to facilitate the escape both would make this a
robbery.

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 “The amount of force doesn’t matter. We’re not talking
about an assault here, we’re talking about an amount of
force that’s enough to overcome the victim’s resist[a]nce.
Now, in this particular incident, I’m submitting to you that
both, there was the use of force and there was the use of
fear. You only need one, use of force or fear, to support a
robbery conviction, but in this case we actually have both.”

The prosecutor continued by arguing that Smith and Watson both used
force and fear to commit count 2. For example, with respect to the use of
force, the prosecutor argued:
“[T]hey used force to push against the drawer and keep it
open. [The victim] didn’t close that drawer and then they
said, oh, [the victim] resisted, let’s leave. They resisted her
efforts. When [the victim] tried to close the drawer, they
tried to keep it open. They used the weight of their bodies,
their force to get that money, despite the fact that [the
victim’s] resisting. And there was a struggle over the
drawer. [The victim] said she felt the force of the drawer
being pushed back at her. [The victim] said she tried to
close it a second time, unsuccessfully.

“They struggled over the drawer, going back and forth.
And you can see that in the video clearly. Again, it is a
very short video. This all happened very fast, but you can
see there is a struggle, there’s a use of force. [The victim is]
trying to resist. [The victim is] trying to keep her money
that belongs to her, and they are resisting her. And there’s
force going back and forth with the drawer.”

The prosecutor further argued, “[t]hey also used fear in this incident.”
The prosecutor argued in part:
“Both of them reach over at the same time, into her
personal space, aggressively, right in front of her face.
Those are the circumstances. And again, you may infer
fear from the circumstances. This is not taking a piece of
property off of a shelf and walking out with it. This isn’t
even just taking the money in the register while the clerk is

10
 preoccupied, and doesn’t even know it is happening. This
is, she is standing there face-to-face, and these two
gentlemen, both a lot bigger and a lot taller and a lot
stronger than she is, reaching into her space and taking
things from her. This is a robbery.”

2. Governing law

a. The natural and probable consequences doctrine

“Aider-abettor liability exists when a person who does not directly
commit a crime assists the direct perpetrator by aid or encouragement, with
knowledge of the perpetrator’s criminal intent and with the intent to help
him carry out the offense.” (People v. Miranda (2011) 192 Cal.App.4th 398,
407.) “Under the natural and probable consequences doctrine, an aider and
abettor is guilty of not only the offense he intended to facilitate or encourage,
but also of any reasonably foreseeable offense committed by the actual
perpetrator. The defendant’s knowledge that an act which is criminal was
intended, and his action taken with the intent that the act be encouraged or
facilitated, are sufficient to impose liability on him for any reasonably
foreseeable offense committed as a consequence by the perpetrator.” (Id. at
pp. 407–408.)
b. Prosecutorial error
“[I]t is improper for [a] prosecutor to misstate the law.” (People v.
Marshall (1996) 13 Cal.4th 799, 831 (Marshall).) “A defendant asserting
prosecutorial misconduct must further establish a reasonable likelihood the
jury construed the remarks in an objectionable fashion.” (People v. Duff
(2014) 58 Cal.4th 527, 568 (Duff).)

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 c. The law governing error in jury instructions
“When considering a claim of instructional error, we view the
challenged instruction in the context of the instructions as a whole and the
trial record to determine whether there is a reasonable likelihood the jury
applied the instruction in an impermissible manner.” (People v. Houston
(2012) 54 Cal.4th 1186, 1229.) In that context, we must then “determine
whether it is reasonably likely the jurors understood the instruction[s] as
[defendant] suggests. [Citation.] In making that determination, we must
consider several factors including the language of the instruction in question
[citation], the record of the trial [citation], and the arguments of counsel.”
(People v. Nem (2003) 114 Cal.App.4th 160, 165.)
3. Application
In his brief, Smith quotes a portion of the prosecutor’s closing argument
pertaining to the GameStop robbery charged in count 1 that ends with the
line, “So under the natural and probable consequences theory, you can find

both of the defendants guilty of robbery.”7 Smith argues, “As to count two . . .
the prosecutor argued to the jury that by finding petty theft occurred, it
could, as a natural and probable consequence, find both defendants guilty of
robbery.” (Italics added.) We are unpersuaded.
The prosecutor’s statement on which Smith bases his claim pertained
to count 1, the GameStop robbery, not count 2, the Yum Yum Yo robbery.
(See pt. III.A.1.b.i.) As to the Yum Yum Yo robbery, the prosecutor argued
that both Smith and Watson were guilty of the robbery as direct perpetrators;
the prosecutor never argued that either defendant was guilty of count 2 as an
aider and abettor pursuant to the natural and probable consequences

7 The relevant portions of the prosecutor’s argument are quoted in part
III.A.1.b.i, ante.

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doctrine. (See pt. III.A.1.b.ii, ante.) Thus, Smith’s claim that the prosecutor’s
closing argument, when combined with the court’s natural and probable
consequences jury instruction (CALCRIM No. 403), erroneously permitted
the jury to find him guilty of count 2 pursuant to an invalid application of the
natural and probable consequences doctrine, is entirely without merit.
Even if Smith’s argument is applied to count 1, the GameStop robbery,
his prosecutorial error argument fails because, when the prosecutor’s
argument is considered in full, it is clear that the prosecutor was arguing
that Watson was guilty of the GameStop robbery as a direct perpetrator, and
that Smith was guilty of the GameStop robbery as an aider and abettor
pursuant to the natural and probable consequences doctrine. Stated
differently, there is no “reasonable likelihood” that the jury construed the
prosecutor to be arguing that both defendants were guilty of the GameStop
robbery as aider and abettors pursuant to the natural and probable
consequences theory. (Duff, supra, 58 Cal.4th at p. 568.)
In addition, the prosecutor never stated that either defendant could be
found guilty of a robbery without at least one of the coparticipants having
committed a robbery, and the other elements of the natural and probable
consequences doctrine being met. On the contrary, in arguing Smith’s guilt
pursuant to the natural and probable consequences doctrine for the
GameStop robbery, the prosecutor echoed CALCRIM No. 403, and told the
jury that it was required to find that “during the commission of that petty
theft, Mr. Watson, his co-participant in the theft, committed a robbery.” In
short, the prosecutor did not commit prosecutorial error by “misstat[ing] the
law.” (Marshall, supra, 13 Cal.4th at p. 831.)

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 With respect to Smith’s jury instruction claim,8 even if that argument
is applied to count 1, CALCRIM No. 403 is a correct statement of the law, and
Smith does not identify any infirmity in the instruction. While the trial court
expressed its concern that the jury might think that it had to find that the
elements of CALCRIM No. 403 were met before finding the defendants guilty
under a direct liability theory,9 that is an ambiguity that could have only
made it more difficult for the jury to find the defendants guilty. Thus, any
such ambiguity could not possibly have prejudiced either defendant. (See
People v. Lee (1999) 20 Cal.4th 47, 52 [“Defendant may not complain on
appeal about errors favorable to him”].)
The trial court never suggested that it was concerned that the jury
might apply CALCRIM No. 403 to find the defendants guilty of robbery
without finding that one of them committed a robbery, and Smith does not
point to any language in the instruction that would permit such a result. On
the contrary, the court expressly instructed the jury that in order to find a
defendant guilty of robbery pursuant to the natural and probable
consequences doctrine, the jury was required to find, among other elements

8 Smith’s jury instruction claim is that the prosecutor’s closing
argument, when made in connection with CALCRIM No. 403 was “bound to
confuse the jury.” As explained in the text, the statement from the
prosecutor’s closing argument on which Smith bases his claim—“under the
natural and probable consequences theory, you can find both of the
defendants guilty of robbery”—is a statement that the prosecutor made with
respect to count 1, rather than count 2.

9 Specifically, as noted in part III.A.1.a, ante, after referring to
CALCRIM No. 403 outlining the elements of guilt under the natural and
probable consequences doctrine, the trial court stated that the jury might
think that “they have to make this finding before finding the defendants
guilty of robbery on a direct liability theory.”

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that “a co-participant in that petty theft committed the crime of robbery.”
Thus, Smith’s claim that the trial court erred in instructing the jury
concerning the natural and probable consequences doctrine is without merit.
Accordingly, we conclude that the prosecutor’s closing argument and
the trial court’s jury instructions did not erroneously allow the jury to find
Smith guilty of the Yum Yum Yo robbery—or the GameStop robbery—merely
upon a finding that the defendants were guilty of petty theft.
B. Defense counsel did not provide ineffective assistance in failing to object to
the trial court’s jury instruction and the prosecutor’s argument concerning
the natural and probable consequences doctrine

Smith claims that his counsel provided ineffective assistance in failing
to object to the trial court’s giving CALCRIM No. 403 and the prosecutor’s
closing argument pertaining to the natural and probable consequences
doctrine.
1. Governing law
To establish a claim of ineffective assistance of counsel, a defendant
must show that counsel’s performance was deficient in that it “fell below an
objective standard of reasonableness,” evaluated “under prevailing
professional norms.” (Strickland v. Washington (1984) 466 U.S. 668, 688;
accord People v. Ledesma (1987) 43 Cal.3d 171, 216.) The defendant must
also show that it is reasonably probable that a more favorable result would
have been reached absent counsel’s deficient performance. (Strickland, at
p. 694.)
“When examining an ineffective assistance claim, a reviewing court
defers to counsel’s reasonable tactical decisions, and there is a presumption
counsel acted within the wide range of reasonable professional assistance.”
(People v. Mai (2013) 57 Cal.4th 986, 1009.) Thus, “[w]hen the record on
direct appeal sheds no light on why counsel failed to act in the manner

15
challenged, defendant must show that there was ‘ “ ‘no conceivable tactical
purpose’ ” for counsel’s act or omission.’ ” (People v. Centeno (2014)
60 Cal.4th 659, 675 (Centeno).)
2. Application
Our determination in part III.A.3, ante, that CALCRIM No. 403
properly states the law, and that any ambiguity in its application to this case
could only have favored Smith, makes clear that defense counsel was not
ineffective in failing to object to the instruction. Defense counsel could have
reasonably determined that it was not in Smith’s interest to raise an
objection that could have only harmed his client. Thus, Smith cannot
establish the lack of any “ ‘ “ ‘conceivable tactical purpose’ ” ’ ” (Centeno,
supra, 60 Cal.4th at p. 675) for failing to object to the instruction.
In addition, our conclusion that the prosecutor did not commit error
during her closing argument defeats Smith’s claim of ineffective assistance
premised on defense counsel’s failure to object to the prosecutor’s argument.
(See, e.g., People v. Bradley (2012) 208 Cal.App.4th 64, 90 [“Failure to raise a
meritless objection is not ineffective assistance of counsel”].)
Accordingly, we conclude that defense counsel did not provide
ineffective assistance in failing to object to the trial court’s jury instruction
and the prosecutor’s argument concerning the natural and probable
consequences doctrine.
C. The trial court was not required to provide a unanimity jury instruction
Smith claims that the trial court was required to provide the jury with
a unanimity instruction to ensure that “the jury agreed that appellant either
committed petty theft but was guilty of robbery as a natural and probable

16
consequence under CALCRIM No. 403 or committed robbery as a direct
perpetrator under CALCRIM No. 1600.”10
1. Governing law
In People v. Covarrubias (2016) 1 Cal.5th 838, 877–878, the California
Supreme Court provided an overview of the aspects of a criminal case for
which jury unanimity, and a unanimity instruction, are, and are not,
required:
“In a criminal case, ‘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.’
[Citation.] Yet ‘where 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, as the cases often put it,
the “theory” whereby the defendant is guilty.’ [Citation.] ‘In
deciding whether to give the instruction, the trial court
must ask whether (1) there is a risk the jury may divide on
two discrete crimes and not agree on any particular crime,
or (2) the evidence merely presents the possibility the jury
may divide, or be uncertain, as to the exact way the
defendant is guilty of a single discrete crime. In the first
situation, but not the second, it should give the unanimity
instruction.’ [Citation.]” (Id. at pp. 877–878, second italics
added; see, e.g., People v. Armstrong (2019) 6 Cal.5th 735,
794 [“ ‘the jury need not unanimously agree on the theory
under which the defendant is guilty’ ”].)

10 While Smith appears to raise this argument only as to count 2, even if
his argument is applied to count 1, it fails for the reasons stated in this
section.

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 Consistent with the rule that a jury need not unanimously agree as to
the theory under which a defendant is guilty, jurors need not unanimously
agree as to whether a defendant is guilty as an aider and abettor or as a
direct perpetrator. (See, e.g., People v. Russo (2001) 25 Cal.4th 1124, 1133
[citing the “rule that the jury need not agree on whether the defendant was
guilty as the direct perpetrator or as an aider and abettor as long as it agreed
on a specific crime”]; People v. Santamaria (1994) 8 Cal.4th 903, 919
(Santamaria).) The Santamaria court explained:
“Not only is there no unanimity requirement as to the
theory of guilt, the individual jurors themselves need not
choose among the theories, so long as each is convinced of
guilt. Sometimes, as probably occurred here, the jury
simply cannot decide beyond a reasonable doubt exactly
who did what. There may be a reasonable doubt that the
defendant was the direct perpetrator, and a similar doubt
that he was the aider and abettor, but no such doubt that
he was one or the other.”

The Santamaria court offered the following example:
“ ‘ “Assume a robbery with two masked participants in a
store, one as the gunman and one as the lookout. If one
witness makes a voice identification of the defendant as the
gunman who demanded money, but other evidence, such as
a fingerprint, suggests the defendant was actually holding
the door open as lookout, the jury would be faced with the
same theories presented in this case: find the defendant
was the gunman and therefore a direct perpetrator, or find
he was at the door and therefore an aider and abettor.
Either way he would be guilty of robbery.’ If 12 jurors must
agree on the role played by the defendant, the defendant
may go free, even if the jurors all agree defendant
committed the crime. That result is absurd.’ [Citation.]”
(Santamaria, supra, 8 Cal.4th at p. 920.)

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 2. Application
Smith contends that the trial court was required to provide a
unanimity instruction to the jury for the following reason:
“Under the court’s instructions in this case, the jury could
have found appellant guilty of robbery on count two as a
direct perpetrator. The jury could also have found
appellant guilty of robbery if it found appellant committed
petty theft and that a robbery committed by Watson was a
natural and probable cause of that theft.”

The unanimity that Smith suggests was required is, in fact, not
required under California law.11 The California Supreme Court case law
discussed above makes clear that the jury was not required to unanimously
agree whether Smith was guilty of either robbery as a direct perpetrator or as
an aider and abettor (pursuant to the natural and probable consequences
doctrine). (See, e.g., Santamaria, supra, 8 Cal.4th at p. 919.)
Accordingly, we conclude that the trial court was not required to

provide the jury with a unanimity instruction.12

11 We assume for purposes of this opinion that the jury could find Smith
guilty of count 2 pursuant to the natural and probable consequences doctrine
if the jury found Watson to be a direct perpetrator of robbery on count 2, even
though the prosecutor never argued that Smith was guilty of count 2 under
that doctrine.

12 To the extent that Smith’s unanimity argument is premised on the trial
court’s purported error in instructing the jury pursuant to CALCRIM No. 403
when considered in connection with the prosecutor’s closing argument, we
reject that argument for the reasons stated in part III.A, ante.

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D. The two one-year prison prior enhancements (§ 667.5) must be stricken
due to a change in the law and Smith’s sentence must be modified

With respect to his sentence, Smith argues that this court should strike
the two one-year prison prior enhancements due to a change in the law. The
People concede that Smith is entitled to have the two one-year prison prior
enhancements stricken.
1. Smith’s original sentence
As noted in part I, ante, the trial court imposed a 19-year sentence. On
the robbery (§ 211) in count 1, the trial court sentenced Smith to 10 years,
consisting of a five-year upper term doubled due to the prior strike. On the
robbery (§ 211) in count 2, the trial court sentenced Smith to a consecutive
term of two years, consisting of a consecutive one-year term (one-third the
midterm) doubled due to the prior strike. The trial court also imposed a
consecutive five-year term for a serious felony enhancement, plus two
consecutive one-year terms for the two prison prior enhancements. In
addition, the trial court sentenced Smith to “time served” on the petty theft
(§ 484) in count 4, a misdemeanor.13
2. Senate Bill 136
In People v. Gastelum (2020) 45 Cal.App.5th 757 (Gastelum), this court
discussed Senate Bill No. 136 (Senate Bill 136), which amended section
667.5, subdivision (b):
“Prior to this amendment, [section 667.5, subdivision (b)]
provided for a one-year enhancement for each prior
separate prison term, unless the defendant remained free
from both prison custody and the commission of a new
felony for a five-year period after discharge. [Citations.]

13 The trial court also imposed a sentence of “time served” on count 3.
However, as noted in part I, ante, the jury found Smith not guilty on that
count. Accordingly, we strike the court’s imposition of sentence on count 3.

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 After the amendment, ‘a one-year prior prison term
enhancement will only apply if a defendant served a prior
prison term for a sexually violent offense as defined in
Welfare and Institutions Code section 6600,
subdivision (b).’ [Citations.] The amended statute became
effective January 1, 2020.” (Gastelum, at p. 772.)

3. Application
The People concede that Senate Bill 136 applies retroactively to Smith
and requires that we strike the two one-year prison prior enhancements
(§ 667.5). We agree. (See Gastelum, supra, 45 Cal.App.5th at p. 772
[applying Senate Bill 136 retroactively to strike a one-year prison prior
enhancement].)
Smith argues that, rather than remanding for resentencing, this court
should simply “modify the judgment by striking the one-year sentences
imposed for the two . . . section 667.5, subdivision (b) enhancements.” The
People do not request a remand for resentencing, thereby implicitly conceding
that they do not oppose Smith’s request that we modify the judgment by
striking the one-year sentences imposed for the two section 667.5, subdivision
(b) enhancements.
Accordingly, we strike the two one-year prison prior enhancements
(§ 667.5), and modify the judgment to reflect an aggregate sentence of
17 years in prison.
IV.
DISPOSITION
The convictions are affirmed. The court’s imposition of sentence on
count 3 and the two one-year prison prior enhancements (§ 667.5) are
stricken. The judgment is modified to reflect an aggregate sentence of
17 years in prison. The matter is remanded to the trial court with directions
to prepare an abstract of judgment reflecting the modification of Smith’s

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judgment in accordance with this opinion. The trial court is directed to
forward a certified copy of the new abstract of judgment to the Department of
Corrections and Rehabilitation.

AARON, J.

WE CONCUR:

HUFFMAN, Acting P. J.

GUERRERO, J.

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