Filed 5/13/15 P. v. Ramirez 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,                                                          B257836

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. MA062237)
         v.

ALFREDO RAMIREZ,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County,
Daviann L. Mitchell, Judge. Affirmed.
         Alan S. Yockelson, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, William Shin and Nathan
Guttman, Deputy Attorneys General, for Plaintiff and Respondent.
                                             ——————————
       A jury convicted defendant of one count of second degree robbery (Pen. Code,
§ 211),1 with a true finding that defendant personally used a dangerous or deadly weapon
in the commission of the offense (§ 12022, subd. (b)(1)). Defendant argues the trial court
erred by failing to adequately answer the jury’s question whether they needed to find all
elements of the offense in order to convict him, thereby lowering the prosecution’s
burden of proof. We affirm.
                                      BACKGROUND
       On February 26, 2014, defendant and codefendants Aaron Garcia Reynoso and
Jose Alberto Lopez Hernandez robbed Demetrio Catalan Sanchez. Defendant was
charged in an information filed March 19, 2014, with one count of second degree robbery
(§ 211), with the further allegations that the offense was a violent felony within the
meaning of section 667.5, subdivision (c) and section 1192.7, subdivision (c), and that
defendant personally used a dangerous and deadly weapon, a BB gun, in the commission
of the offense within the meaning of section 12022, subdivision (b)(1).2
       On February 26, 2014, between 5:30 p.m. and 6:00 p.m., Demetrio Catalan
Sanchez was walking by himself on Fifth Street and Avenue R in Palmdale. Defendant
got out of a large truck, approached Sanchez, took out a gun, and asked for Sanchez’s
money. When Sanchez responded that he did not have any money, defendant demanded
his wallet. Defendant pointed the gun downward at a 45-degree angle. The gun in
defendant’s hand scared Sanchez. Sanchez believed it was a real gun.
       Another man opened the passenger door of the truck (codefendant Lopez
Hernandez) and yelled, “Give up the money.” Sanchez gave his wallet to defendant.
Sanchez’s wallet contained approximately $15 to $18, a bank debit card, his driver’s

       1   All statutory references are to the Penal Code unless otherwise indicated.
       2 Reynoso and Lopez Hernandez were also charged with second degree robbery
and the additional offenses of second degree commercial burglary (count 2, § 459) and
Reynoso was charged with possession of ammunition in violation of section 30305,
subdivision (a)(1). The charges against Reynoso were dismissed, and Lopez Hernandez
was found guilty on all counts. Neither codefendant is a party to this appeal.

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license, his permanent residency card, his health insurance card, and his Social Security
card. Both of the men got back into the truck. Sanchez did not see the driver.
       Sanchez called 911. Deputy Travis Ogle responded to Sanchez’s call and made a
traffic stop of a black Ford Expedition. There were three men in the truck. Codefendant
Reynoso was the driver. Defendant was in the front passenger seat. Deputy Ogle
conducted a field lineup with Sanchez, who identified defendant as the man with the gun.
       Deputy Ogle recovered a pellet gun from the back seat of the truck. A pellet gun
can be lethal if the pellet hits the victim in the eye because it can go into the brain. The
loading of a pellet gun has the same appearance as the loading of a nine-millimeter
weapon. A pellet gun can be used in a nonlethal manner.
       Sanchez’s wallet was recovered from defendant. Later that day, defendant
admitted to Los Angeles County Sheriff’s detectives that he had used the BB gun during
the robbery.
       The jury found defendant guilty of the robbery count and found true the deadly or
dangerous weapon enhancement. The trial court sentenced defendant to two years for the
robbery, plus one year for the weapon allegation.
                                       DISCUSSION
       Defendant argues the trial court erred by failing to adequately answer the jury’s
question whether they needed to find all elements of the offense in order to convict him,
thereby lowering the prosecution’s burden of proof. He contends the error was not
harmless because he contested the force or fear element of robbery throughout trial,
relying on the fact he pointed the gun downward in a nonmenacing manner, and thus
there is a reasonable probability one juror would have voted to acquit if the court had
properly clarified the elements of the offense.




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       A.     Factual Background
       The jury was instructed with CALCRIM No. 1600 defining robbery.3 During
deliberations, the jury asked the trial court, “Do all you have to have all items proven to
convict on one count?” The court referred the jury to the reasonable doubt instruction
(CALCRIM No. 220),4 and to the instruction that they must consider each count
separately (CALCRIM No. 3515).5 Defense counsel observed that the reference to “‘all
items’” meant the elements of the offense, and asked whether there was an instruction
that stated that each element had to be proved beyond a reasonable doubt. The court
responded, “I think it’s not stated the way that you’re expressing it. I can assure you, on
my voir dire—I must have discussed it a hundred times, about the peanut butter and jelly
sandwich, that each and every element has to be proved beyond a reasonable doubt, but
we did not—there’s no specific instruction as you’re presenting it. . . . I think you all
covered it in your closing arguments, but I think the proper referral would be to—simply
to reasonable doubt, and each crime is charged separately, so they’re to evaluate them
separately.” Counsel requested the court to instruct the jury in the manner the court did
during voir dire. The court declined to modify the instructions, stating: “If they can’t
resolve it and they need additional argument, I will revisit that and give each five
minutes, where you can cover that, but I’m hoping, with the reference to instruction 220
and 3515, it will be interpreted the way we all understand it to be.”



       3 That instruction provided in relevant part that “[t]he defendant used force or fear
to take the property or to prevent the person from resisting.”
       4 CALCRIM No. 220 defines the reasonable doubt standard. In relevant part, the
instruction states, “A defendant in a criminal case is presumed to be innocent. This
presumption requires that the People prove a defendant guilty beyond a reasonable doubt.
Whenever I tell you the People must prove something, I mean they must prove it beyond
a reasonable doubt.”
       5 CALCRIM No. 3515 states, “Each of the counts charged in this case is a
separate crime. You must consider each count separately and return a separate verdict for
each one.”

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       B.     Discussion
       The trial court “has a primary duty to help the jury understand the legal principles
it is asked to apply.” (People v. Beardslee (1991) 53 Cal.3d 68, 97.) When a jury
inquires further during deliberations, elaborating on the standard instructions is not
always necessary: “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.” (Ibid.) In exercising that
discretion, the trial court “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.” (Ibid.)
       A criminal defendant has the right to have the jury determine every element of the
offense beyond a reasonable doubt. (U.S. v. Gaudin (1995) 515 U.S. 506, 522–523 [115
S.Ct. 2310, 132 L.Ed.2d 444].) An instruction that improperly describes or omits
an element of an offense, or that raises an improper presumption or directs a finding or a
partial verdict upon a particular element, generally is not a structural error. (People v.
Flood (1998) 18 Cal.4th 470, 502–504.) As with any other instructional error, a
“violation of section 1138 does not warrant reversal unless prejudice is shown.” (People
v. Beardslee, supra, 53 Cal.3d at p. 97.)
       Section 211 defines robbery as “the felonious taking of personal property in the
possession of another, from his person or immediate presence, and against his will,
accomplished by means of force or fear.” Either force or fear is sufficient to sustain a
robbery conviction. (People v. Hays (1983) 147 Cal.App.3d 534, 541.) The terms force
and fear “have no technical meaning peculiar to the law,” and are presumed to be within
the understanding of the fact finder. (Id. at p. 543.) Section 212 delineates the meaning
of the term “fear” used in section 211: “‘The fear mentioned in Section 211 may be
either: [¶] 1. The fear of an unlawful injury to the person or property of the person
robbed, or of any relative of his or member of his family; or, [¶] 2. The fear of an
immediate and unlawful injury to the person or property of anyone in the company of the


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person robbed at the time of the robbery.’” (People v. Morehead (2011) 191 Cal.App.4th
765, 771.)
       An earlier version of CALCRIM No. 220 than that given here elaborated on the
prosecution’s burden and also provided that “‘[t]his presumption requires that the People
prove each element of a crime . . . beyond a reasonable doubt.’” (People v. Ramos
(2008) 163 Cal.App.4th 1082, 1088, fn. 3.) Ramos rejected the same contention made
here, namely, that instruction with this phrase was constitutionally required. In Ramos,
the defendant was charged with murder. (Id. at p. 1084.) The jury had been instructed
with the current version of CALCRIM No. 220, and when the trial judge orally instructed
the jury on the elements of murder, it stated that the prosecution needed to prove each of
the elements of the charged offense as the court read the elements to the jury. In light of
this instruction, Ramos concluded that the instructions as a whole adequately informed
the jury of its duty to find all elements of the offense beyond a reasonable doubt.
(Ramos, at pp. 1088–1089.) In People v. Riley (2010) 185 Cal.App.4th 754, the
defendant was charged with possession of a controlled substance in a penal institution in
violation of section 4573.6. However, unlike Ramos, the court did not instruct the jury
that it needed to prove every element of the charged offense. Nonetheless, Riley
concluded that the instructions as a whole adequately informed the jury of the necessity
to find every element of the offense beyond a reasonable doubt because the trial court had
instructed with an instruction that listed each element of the offense as well as with
CALCRIM No. 220. (Riley, at p. 769.)
       Here, a reasonable interpretation of the jury’s question is that they were confused
whether they need to find every element in order to find defendant (or his codefendant
Lopez Hernandez) guilty. Another reasonable interpretation is that the jury could have
been confused because codefendant Lopez Hernandez was charged under an aiding and
abetting theory, and needed to understand whether all elements of the offense must be
proven as to all defendants under such a theory. Given this latter interpretation, which it
appears the trial court adopted based on its reference to CALCRIM No. 3515 (jury to


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consider each count separately), the trial court did not refer the jury to the substantive
offense at issue, unlike People v. Ramos, supra, 163 Cal.App.4th 1082 and People v.
Riley, supra, 185 Cal.App.4th 754. Nonetheless, assuming the jury’s question related to
defendant’s guilt for the count with which he was charged under the first interpretation,
we find no error here because like Riley, the jury was instructed with all of the elements
of robbery by force or fear, as well as with CALCRIM No. 220.
       Even if the trial court’s instruction was erroneous, reversal is not required because
the error was not prejudicial beyond a reasonable doubt. The jury would have not have
acquitted defendant of the robbery of Sanchez because defendant admitted he used the
gun, and the victim Sanchez testified he believed the gun was real and it frightened him,
thus satisfying the element of fear. (Chapman v. California (1967) 386 U.S. 18, 25–26
[87 S.Ct. 824, 17 L.Ed.2d 705].)
                                      DISPOSITION
       The judgment is affirmed.
       NOT TO BE PUBLISHED.


                                                   JOHNSON, J.


We concur:


              CHANEY, Acting P. J.


              BENDIX, J.*




       * Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.

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