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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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