Filed 11/22/13 In re Etheridge CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


                                                                     B244852
In re DANIEL ETHERIDGE
                                                                     (Los Angeles County
                                                                     Super. Ct. No. LA025300)
         on Habeas Corpus.




         ORIGINAL PROCEEDING; petition for a writ of habeas corpus. Martin L.
Herscovitz and Bert Glennon, Jr., Judges. Petition granted.
         Daniel Etheridge, in pro. per.; and Marilee Marshall, under appointment by the
Court of Appeal, for Petitioner.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, James W. Bilderback III,
Supervising Deputy Attorney General, Chung L. Mar and Peggy Z. Huang, Deputy
Attorneys General, for Respondent.
                                 _________________________________
       Daniel Etheridge petitions for a writ of habeas corpus, contending the jury was
improperly instructed on robbery and the evidence is insufficient to support his robbery
conviction. We grant the petition, modify Etheridge’s robbery conviction to be petty
theft with a prior, and remand for resentencing.
                                     BACKGROUND
       In bifurcated proceedings in 1997, a jury convicted Etheridge of second degree
robbery, acquitted him of petty theft, and found that he had suffered two prior residential
burglary convictions that were alleged pursuant to the “Three Strikes” law and Penal
Code section 667, subdivision (a)(1). The trial court sentenced Etheridge to a third strike
term of 35 years to life.
       Etheridge appealed, and this court affirmed the judgment in case No. B112249
(May 28, 1998 [nonpub. opn.]). Our opinion summarized the evidence at trial: “At
approximately 7:30 p.m. on September 22, 1996, Tony Martinez (Martinez), a security
officer for Lucky’s market, saw defendant pick up a bottle of beer, then walk to the meat
department. Defendant picked up a packaged steak that was ‘a couple’ of inches thick,
walked into the warehouse area at the rear of the store, placed the package of meat in a
Sav-on bag and slipped the bag underneath the loading dock door. According to
Martinez, the loading dock door rolls upward on chains; it normally sits two or three
inches above the ground. The door is easy to lift slightly even if it is locked.
       “Martinez lost sight of defendant for a brief time. He next saw him near the check
stands, carrying a Lucky’s bag that contained the bottle of beer defendant had selected.
Martinez and his fellow security officer, Jared Hollingsworth (Hollingsworth), followed
defendant outside. Defendant walked to the rear of the store; he stopped at the loading
dock door and picked up the package of meat he had slipped beneath the door earlier.
       “Martinez and Hollingsworth identified themselves as store security. Defendant
ran; Martinez and Hollingsworth pursued him. As he ran, defendant threw the bag
containing the steak onto the roof of a nearby building. Martinez overtook defendant;
when he grabbed one of defendant’s arms, defendant pulled his arm loose, then struck



                                              2
Martinez on the collar bone with a palm-sized rock. Martinez’s arm went limp. He had a
large bruise on his left collar bone and was in considerable pain.
       “Defendant ran across the street; Hollingsworth apprehended him. Defendant was
holding one rock in his hand; he had another rock in his fanny pack. Approximately 30
minutes later, Hollingsworth found the package of meat, in the Sav-on bag, on the roof of
the Sav-on store.
       “Martinez failed to record in his store report that defendant had slipped the
package of meat under the loading dock door or that he had thrown it on the roof of a
building. The report did record that defendant concealed the package in a bag and threw
it away during the chase.”
       Our opinion in case No. B112249 summarized the defense evidence: “At 7:33
p.m. someone purchased an item, which could have been some sort of liquor, for $1.13 at
the ‘quick cash register.’ This is the price of the bottle of beer found in defendant’s
possession. [¶] A defense investigator determined that the loading dock door would not
rise higher than seven-eighths of an inch above the ground when it was locked. A
package of two-inch thick meat therefore would not fit beneath it. [¶] Defendant had no
cooking facilities in his apartment. He did not have a pet that would eat meat.”
       We further note that no one testified that Etheridge failed to pay for the beer.
Martinez testified that the beer was not in any sort of bag when Etheridge carried it into
the warehouse area. Martinez lost sight of Etheridge after he left the warehouse area. He
next saw Etheridge at the front of the store in the check stand area. Martinez did not see
whether Etheridge went through a check stand with the beer, but he did see that the beer
was in a Lucky’s bag. Martinez further testified that Etheridge said he had purchased the
beer. The store manager testified that he inquired of the employee on duty at the quick
cashier check stand and learned that someone had purchased at his check stand a bottle of
the same brand of beer Etheridge possessed. The cashier also testified that he got a quick
look at someone the security personnel brought into the store, but he was unsure whether
the person had checked out through his line or not. The cashier testified that Etheridge
might have gone through his line, but he could not be certain.

                                              3
       Although the prosecutor made several references in his closing argument to the
jury to Etheridge “possibly” not paying for the beer, he expressly premised both the
robbery and petty theft counts on the taking of the steak. The defense argued that
Etheridge bought the beer and the store personnel fabricated their tale of him placing the
steak through the loading dock door. In his rebuttal argument the prosecutor denied that
the prosecution was conceding that defendant bought the beer, argued there was “a lot of
evidence” indicating that the defendant stole the beer, but conceded that the evidence
regarding someone purchasing a beer of that brand at that time at the express check stand
“certainly could raise a reasonable doubt” about theft of the beer. The prosecutor
repeatedly argued that the undisputed evidence showed that “defendant took that steak
and in taking that steak the defendant used force.”
       On his appeal, Etheridge did not challenge the sufficiency of the evidence or the
accuracy of the jury instructions.
       On October 31, 2012, Etheridge filed the instant petition for a writ of habeas
corpus, which contends, in essence, that the evidence was insufficient to support his
robbery conviction and the jury was improperly instructed regarding the law pertaining to
robbery. After receiving and considering informal opposition to the petition from the
Attorney General, we issued an order to show cause and appointed counsel to represent
Etheridge. The Attorney General filed her Return, and Etheridge filed his Traverse.
                                      DISCUSSION
       “The general rule is that habeas corpus cannot serve as a substitute for an appeal,
and, in the absence of special circumstances constituting an excuse for failure to employ
that remedy, the writ will not lie where the claimed errors could have been, but were not,
raised upon a timely appeal from a judgment of conviction.” (In re Dixon (1953) 41
Cal.2d 756, 759.) But “that general rule is primarily a discretionary policy which may be
overlooked where “special circumstances” are deemed to exist.” (In re Coughlin
(1976)16 Cal.3d 52, 55.) “[A]lthough a remedy by appeal or other direct attack might
have been available, the writ of habeas corpus nevertheless will lie where special
circumstances are presented.” (In re Antazo (1970) 3 Cal.3d 100, 107.) “This court has

                                             4
held that the presence of a constitutional question of extraordinary importance constitutes
special circumstances sufficient to relieve a petitioner from the operation of the above-
mentioned general rule.” (Id. at pp. 107–108.) Such special circumstances exist here.
       The trial court used CALJIC No. 9.40 to instruct the jury on the elements of
robbery. The court then added its own special instruction: “The crime of robbery is a
continuous offense that begins from the time of the original taking until the robber
reaches a relative place of safety. The element of force or fear is satisfied if the
defendant used force or fear to prevent the recovery of stolen property or to facilitate
escape.” (Italics added.) Etheridge objected to this instruction in the trial court as
unnecessary, but not as an incorrect statement of the law. The trial court overruled his
objection.
       Etheridge argues that the court’s special instruction incorrectly states the law, in
that force or fear must be used to prevent the recovery of stolen property and facilitate
escape. The Attorney General contends the instruction correctly states the law and argues
that Etheridge used force to attempt to escape with the beer.
       “[A] trial court in a criminal case is required—with or without a request—to give
correct jury instructions on the general principles of law relevant to issues raised by the
evidence.” (People v. Mutuma (2006) 144 Cal.App.4th 635, 640.) This includes a duty
to instruct on all of the elements of the charged offense. (People v. Cummings (1993) 4
Cal.4th 1233, 1311.) An instructional error that improperly describes or omits an element
of an offense constitutes federal constitutional error that is subject to review under the
standard of Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824]: the error is
harmless if it appears beyond a reasonable doubt that it did not contribute to the jury’s
verdict. (People v. Flood (1998) 18 Cal.4th 470, 503–504.)
       Robbery is defined as the taking of personal property of some value, however
slight, from a person or the person’s immediate presence by means of force or fear, with
the intent to permanently deprive the person of the property. (Pen. Code, § 211; People
v. Marshall (1997) 15 Cal.4th 1, 34.) “A defendant who does not use force or fear in the
initial taking of the property may nonetheless be guilty of robbery if he uses force or fear

                                              5
to retain it or carry it away in the victim’s presence.” (People v. McKinnon (2011) 52
Cal.4th 610, 686.)
       In People v. Estes (1983) 147 Cal.App.3d 23 (Estes), the defendant put on clothing
that was for sale in a Sears store and walked out of the store without paying for the items.
A Sears security guard followed Estes outside the store and confronted him about the
merchandise. Estes began walking away, and when the guard attempted to detain him,
Estes drew a knife, swung it at the guard, and threatened to kill him. Estes was
subsequently detained without incident when the security guard returned with a second
guard. (Id. at p. 26.) Estes was convicted of robbery and theft. On appeal he argued that
he had not taken the merchandise from the immediate presence of the security guard and
had not used force or fear to take the property because “his assaultive behavior was not
contemporaneous with the taking of the merchandise from the store.” (Id. at p. 28.)
       With respect to the guard’s immediate presence, the appellate court stated, “The
evidence establishes that appellant forceably resisted the security guard’s efforts to retake
the property and used that force to remove the items from the guard’s immediate
presence.” (Estes, supra, 147 Cal.App.3d at p. 27.) “[A] robbery occurs when defendant
uses force or fear in resisting attempts to regain the property or in attempting to remove
the property from the owner’s immediate presence regardless of the means by which
defendant originally acquired the property.” (Id. at pp. 27–28.) With respect to the
timing of Estes’s use of force, the court stated, “The 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. It is sufficient to support the conviction that appellant used force to
prevent the guard from retaking the property and to facilitate his escape. The crime is not
divisible into a series of separate acts. Defendant’s guilt is not to be weighed at each step
of the robbery as it unfolds. The events constituting the crime of robbery, although they
may extend over large distances and take some time to complete, are linked by a single-
mindedness of purpose. [Citation.] Whether defendant used force to gain original
possession of the property or to resist attempts to retake the stolen property, force was



                                               6
applied against the guard in furtherance of the robbery and can properly be used to
sustain the conviction.” (Id. at p. 28.)
         The California Supreme Court cited Estes and earlier cases with approval in
People v. Cooper (1991) 53 Cal.3d 1158, 1165, footnote 8 (Cooper), where the court
succinctly summarized the law: “In order to support a robbery conviction, the taking,
either the gaining possession or the carrying away, must be accomplished by force or
fear.”
         In People v. Gomez (2008) 43 Cal.4th 249, 260 (Gomez), the California Supreme
Court again cited Estes with approval. The issue in Gomez was whether the immediate
presence element could also be satisfied during the asportation phase. The manager of a
business arrived after Gomez seized property from the business, but before Gomez
departed with it. The manager followed Gomez, who fired a gun toward the manager’s
vehicle, causing the manager to abandon pursuit. After discussing Estes, the Supreme
Court concluded, “By the same logic, the immediate presence element can be satisfied at
any point during the taking.” (Gomez, supra, 43 Cal.4th at p. 261.) The court explained,
“It is the conduct of the perpetrator who resorts to violence to further his theft, and not
the decision of the victim to confront the perpetrator, that should be analyzed in
considering whether a robbery has occurred. As we observed in People v. Ramos (1982)
30 Cal.3d 553, 589, ‘the central element of the crime of robbery [is] the force or fear
applied to the individual victim in order to deprive him of his property.’ That deprivation
of property occurs whether a perpetrator relies on force or fear to gain possession or to
maintain possession against a victim who encounters him for the first time as he carries
away the loot.” (Gomez, supra, 43 Cal.4th at pp. 264–265.)
         In People v. Hodges (2013) 213 Cal.App.4th 531 (Hodges), a man walked out of a
grocery store with bottles of soft drink and bananas without paying for them. Security
officers for the store followed the man and confronted him after he was seated in his car.
When the officers asked him to accompany them back into the store, he offered to give
the groceries back. They refused to accept them, and Hodges started his car engine. One
officer told Hodges he had to return to the store. Hodges got out of the car and shoved or

                                              7
“tossed” the groceries at the security officer. Some of the goods struck the officer in the
chest or face. The officer fell back against another vehicle. The same officer reached
inside the car and attempted to removed the keys, but Hodges began driving away,
dragging the officer. (Id. at pp. 535–536.) Hodges was charged with robbery, assault
with a deadly weapon, and petty theft with a prior. During deliberations, the jury asked
the court about the application of the robbery instruction, CALCRIM No. 1600. The
jury’s note stated, “‘[T]he force/fear was subsequent to the act, in the parking lot, after
the defendant had surrendered the goods . . . . [¶] Does the timing/sequence of events—
theft, then force/fear bear on the applicability of this clause—would point 4 [use of force
or fear to take the property or prevent the person from resisting] apply here?’” The court
responded by telling the jury, “‘[T]he theft is deemed to be continuing until the defendant
has reached a point in which he is no longer being confronted by the security guards.
Thus, item 4 of the instruction 1600 applies to the confrontation in the parking lot.’” (Id.
at p. 538.)
       The appellate court in Hodges, supra, 213 Cal.App.4th 531, reversed Hodges’s
robbery conviction because it concluded that the trial court’s response to the jury’s
question “failed to address the crux of the jury’s inquiry,” “was misleading because it
allowed the jury to conclude defendant was guilty of robbery without regard to whether
defendant intended to permanently deprive the owner of the property at the time the force
or resistance occurred,” and “improperly resolved the factual conflict inherent in the
jury’s inquiry regarding the impact of defendant’s surrender of the goods prior to the use
of force.” (Id. at p. 543.) With respect to the final point, the court noted, “Under the case
law discussed ante, because defendant did not use force in taking the property, in order to
convict him of robbery the prosecution had to prove, and the jury had to find, defendant
used force to maintain possession of the property against the lawful efforts of the owner
to regain it.” (Id. at p. 543, fn. 5, italics added.) The court further noted that where a
person leaves a store without paying for goods, drops the goods when confronted by a
security guard, flees, and “uses force to resist the pursuing guard’s attempt to detain
him,” “the escape rule, concerning the duration of the offense, is not in play because no

                                              8
robbery was committed, there being no evidence that the person intended to deprive the
owner of the property at the time force was used.” (Id. at p. 543, fn. 4.)
       Here, Etheridge did not use force or fear to take possession of the steak or to resist
attempts by the grocery store security personnel to retake the stolen steak. He abandoned
the steak by throwing it on the roof before the guards caught up to him. He used force
only after he abandoned the steak. Thus, he did not “rel[y] on force or fear to gain
possession or to maintain possession.” (Gomez, supra, 43 Cal.4th at p. 265.) His crimes
were assault and theft, but not robbery, yet the trial court’s special instruction permitted
the jury to convict Etheridge of robbery based upon his use of force to facilitate his
escape attempt after he abandoned the steak. As in Hodges, the court’s instruction was
erroneous because “it allowed the jury to conclude defendant was guilty of robbery
without regard to whether defendant intended to permanently deprive the owner of the
property at the time the force or resistance occurred.” (Hodges, supra, 213 Cal.App.4th
at p. 543, italics added.) We reject the Attorney General’s claim that Etheridge’s robbery
conviction can rest upon the taking of the beer, given the prosecutor’s concession at trial
the evidence created a reasonable doubt regarding theft of the beer and the prosecutor’s
election that the taking of the steak, and not the beer, was the crux of the robbery.
       The Attorney General relies upon People v. Carroll (1970) 1 Cal.3d 581 (Carroll),
in which Carroll pointed a gun at the victim, Gulsvig, in the rest room, causing Gulsvig to
hand over his wallet. Carroll discovered that there was no money in the wallet and threw
it on the wash basin. Gulsvig ran back into the bar, pursued by Carroll, who threatened to
kill Gulsvig and fired two shots at him. Gulsvig ran behind the bar and hid. Carroll went
behind the bar, shot Gulsvig, removed money from the bar’s cash register, and left.
Carroll was convicted of robbery and a great bodily injury enhancement was found true.
(Id. at p. 583.) On appeal, Carroll challenged the applicability of the enhancement,
arguing that the robbery of Gulsvig was completed when Carroll threw the wallet away,
and “any offense thereafter committed was separate and distinct and did not occur in the
commission of his robbery of Gulsvig.” (Id. at p. 584.) The California Supreme Court
rejected this contention, stating, “The fact that defendant was not engaged in the

                                              9
asportation of any loot at the time he shot Gulsvig is immaterial. He became angry after
discovering no money in the wallet and having the rest room door slammed in his face.
His purpose in running into the bar appears to have been to exact his revenge from
Gulsvig. Under the circumstances, the robbery and shooting of Gulsvig constituted one
indivisible transaction, with the shooting flowing directly from the taking of the wallet.
[¶] In addition, it is settled that the crime of robbery is not confined to the act of taking
property from victims. The nature of the crime is such that a robber’s escape with his
loot is just as important to the execution of the crime as obtaining possession of the loot
in the first place. Thus, the crime of robbery is not complete until the robber has won his
way to a place of temporary safety. [Citations.] In the present case, defendant had not
won a place of temporary safety at the time he shot Gulsvig, as a result of which the
robbery of Gulsvig had not been completed, and the shooting occurred ‘in the course of
commission of the robbery’ of Gulsvig.” (Id. at pp. 584–585.)
       Carroll, supra, 1 Cal.3d 581, is thus inapposite. There was no question that
Carroll used force or fear to take Gulsvig’s wallet, and no question that there was a
completed robbery with respect to the wallet. The issue was simply whether, for the
purpose of applying the great bodily injury enhancement, this robbery could be deemed
to have continued through the time Carroll shot Gulsvig behind the bar. To resolve this
issue the court applied the escape rule. Here, Etheridge did not use force or fear to take
the steak, and he abandoned the steak before he used any force. The issue is whether
there was a robbery and, applying established law, we necessarily conclude there was not.
The escape rule is thus inapplicable. As the court stated in Hodges, supra, 213
Cal.App.4th 531, “the escape rule, concerning the duration of the offense, is not in play
because no robbery was committed, there being no evidence that the person intended to
deprive the owner of the property at the time force was used.” (Id. at p. 543, fn. 4.) In
addition, the Supreme Court has cautioned against applying the escape rule outside of the
contexts of felony-murder and “several other ancillary consequences of robbery,” such as
the enhancement in Carroll. (Cooper, supra, 53 Cal.3d at pp. 1166–1167.) The court
specifically rejected application of the escape rule to determine liability as an aider and

                                              10
abettor of a robbery and noted, “[C]ases applying the escape rule to certain ancillary
consequences statutes do not compel the conclusion that commission of a robbery also
continues through the escape for our purposes here. In each of these cases we have been
careful not to imply that this rule should apply outside the legal contexts expressly
addressed.” (Id. at p. 1169.) In the present case, the Attorney General attempts to apply
the escape rule not to an ancillary consequence of robbery, but to argue the very existence
of a robbery. We reject that attempt.
       The Attorney General also relies upon People v. Pham (1993) 15 Cal.App.4th 61,
which is both distinguishable and supports Etheridge’s contention. There, Pham was
removing objects from a car belonging to Guevara. Guevara approached and Pham fled
with a black bag. Guevara chased and caught Pham. Pham “dropped the bag where he
stood and began slugging Guevara[’s]” head. Guevara’s friend, Oravec, came to assist
and grabbed Pham. Pham kicked, punched, bit, and kneed both Guevara and Oravec, but
they subdued him until the police arrived. Property belonging to Guevara and Oravec
was found inside the black bag. (Id. at p. 64.) On appeal, Pham argued that the evidence
was insufficient to support his robbery conviction because he dropped the bag and never
regained possession or carried it away. (Id. at pp. 64–65.) The appellate court disagreed,
stating, “Under the facts of this case, we conclude the asportation or carrying away of the
property occurred when defendant removed the victims’ property from Guevara’s car and
began to flee. The asportation continued while defendant struggled with the victims and
prevented them from immediately recovering their goods. Contrary to defendant’s
contention, robbery does not require that the loot be carried away after the use of force or
fear.” (Id. at p. 65.) The court noted, “If defendant truly abandoned the victim’s property
before using force, then, of course he could be guilty of theft, but not of an Estes-type
robbery.” (Id. at p. 68.)
       Pham is distinguishable from the present case. Whereas Pham dropped the bag
where he stood and would have been able to pick it up and leave with it if he had
succeeded in his efforts to overcome the victims’ resistance, Etheridge “truly abandoned”
the steak by throwing it on the roof before using force on Martinez. Had Etheridge

                                             11
succeeded in subduing or deterring Martinez, he would not have been able to pick up the
steak and leave with it.
       Accordingly, we conclude that the court’s instruction erroneously stated the law.
       The Attorney General argues the error was harmless because the robbery verdict
could have been based on the beer, the jury could have concluded that Etheridge “used
force to temporarily retain possession of the stolen goods,” or it could have concluded
Etheridge did not intend to abandon the steak when he threw it on the roof because he
retained the beer. As noted, the prosecutor effectively conceded there was a reasonable
doubt regarding whether Etheridge stole the beer and elected to base the robbery solely
upon the steak. In light of the prosecutor’s concession and election and the evidence
tending to show Etheridge bought the beer, we consider it highly improbable the jury
would have found, beyond a reasonable doubt, that Etheridge stole the beer. No force
was used until after Etheridge threw the steak on the roof; a conclusion by the jury that he
used force to temporarily retain it would have been unsupported by any evidence.
Finally, Etheridge’s act of throwing the steak on a roof where he could not regain it
without extraordinary effort was consistent with an intent to abandon it, while his
retention of the beer was consistent with having purchased it. Retention of the beer in no
way suggests Etheridge intended to come back with a ladder to recover the steak. We
cannot conclude the error was harmless beyond a reasonable doubt.
       We further conclude that, viewing the evidence in the light most favorable to the
judgment, substantial evidence does not support Etheridge’s robbery conviction. (People
v. Tully (2012) 54 Cal.4th 952, 1006.) He did not use force or fear to take possession of
the steak or to resist attempts by the grocery store security personnel to retake the stolen
steak. He abandoned the steak by throwing it on the roof before the guards caught up to
him. He used force only after he abandoned the steak. Nor can the robbery conviction
rest upon the beer. Martinez did not see whether Etheridge paid for the beer, as Etheridge
claimed. The testimony of the store manager and the cashier supports Etheridge’s claim
he purchased it, as does Martinez’s testimony that the beer was in a Lucky’s bag and
Etheridge’s failure to treat the beer and steak in the same manner. And, as previously

                                             12
noted, the prosecutor elected not to use the beer as a basis for the robbery conviction.
Accordingly, we conclude the robbery conviction was not supported by sufficient
evidence and may not be retried, as the Attorney General requests.
       The parties agree that the robbery conviction may be reduced to petty theft with a
prior, notwithstanding the jury’s acquittal of that offense in count 2. Accordingly, we
modify Etheridge’s conviction and remand for resentencing.
                                      DISPOSITION
       The petition for a writ of habeas corpus is granted. Etheridge’s conviction of
robbery is modified to be a conviction of petty theft with a prior, pursuant to Penal Code
section 666. The matter is remanded for resentencing.
       NOT TO BE PUBLISHED.


                                                  MALLANO, P. J.
We concur:


       ROTHSCHILD, J.


       CHANEY, J.




                                             13
