Filed 10/16/14 P. v. Sandoval CA4/1
                  COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                         DIVISION ONE

                                      STATE OF CALIFORNIA



THE PEOPLE,                                      D064331

        Plaintiff and Respondent,
                                                 (Super. Ct. No. SCE328674)
        v.
                                                 ORDER MODIFYING OPINION
SALVADOR SANDOVAL,                               AND DENYING REHEARING

        Defendant and Appellant.                 NO CHANGE IN JUDGMENT


THE COURT:

        It is ordered that the opinion filed herein on September 30, 2014, be modified as

follows:

        On page 9, at the end of the first full paragraph, after the word "issue" add the

following:

               We reject Sandoval's claim that the court's response had the effect of
        removing the intent element from the jury's consideration. The correctness
        of jury instructions is to be determined from the entire charge of the court,
        not from a consideration of parts of an instruction or from a particular
        instruction. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1248.) Here,
        CALCRIM No. 1600 correctly informed the jury of the act and intent
        elements of robbery and that the act — taking using fear — must have been
        motivated by the required intent to steal.!(1CT 39)! CALCRIM No. 1600
        together with CALCRIM No. 251 instructed that the People had to prove
        beyond a reasonable doubt the union of Sandoval's act (taking using fear)
        and his wrongful intent (to steal, i.e., to permanently deprive the owner of
        the property).!(1CT 37)!
        The jury asked whether Sandoval used fear if his act of reaching
under his shirt was entirely unintentional.!(1CT 77)! The instructions to the
jury did not address this specific question and the court's response correctly
informed the jury that specific intent to cause fear is not required.
(Anderson, supra, 51 Cal.4th at p. 995.) The court's response then
addressed the jury's concern that Sandoval's action of reaching under his
shirt might have been unintentional by informing it that Sandoval needed to
have knowingly acted in a manner that caused the victim to be fearful, i.e.,
that his act of reaching under his shirt was not unintentional.!(1CT 78)! It
is not reasonably likely the jury ignored these instructions and construed
the court's response as removing the required intent to steal.

There is no change in the judgment.

Appellant's petition for rehearing is denied.



                                                     McINTYRE, Acting P. J.




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Filed 9/30/14 (unmodified version)
                   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,                                                        D064331

         Plaintiff and Respondent,

         v.                                                        (Super. Ct. No. SCE328674)

SALVADOR SANDOVAL,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County,

Allan J. Preckel, Judge. (Retired judge of the San Diego Sup. Ct.) Affirmed in

part; reversed in part.

         Wayne C. Tobin, under appointment by the Court of Appeal, for Defendant

and Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant

Attorney General, Julie L. Garland, Assistant Attorney General, William M. Wood

and Meagan J. Beale, Deputy Attorneys General, for Plaintiff and Respondent.
       A jury found Salvador Sandoval guilty of robbing Angel Beltran. Sandoval

later admitted two prison prior allegations. The trial court suspended imposition of

sentence and placed Sandoval on formal probation for a period of five years. As a

condition of probation, he was ordered to serve 365 days in county jail with credit

for time served. Sandoval appeals, contending the trial court erred when it

(1) refused his request to instruct the jury that the victim's fear had to be objectively

reasonable and (2) omitted the element of intent from the charge when it replied to a

jury question. We reject these assertions.

       Sandoval also argues that his admission of the two prison prior convictions

should be reversed because he was not advised of and did not expressly waive his

right to a jury trial. We agree that Sandoval never expressly waived his right to a

jury trial before admitting the truth of his prison prior conviction allegations.

Accordingly, we reverse as to those and remand for a new trial on the allegations.

                FACTUAL AND PROCEDURAL BACKGROUND

       On an afternoon in March 2013, Angel Beltran was at his home in Spring

Valley, California with his father-in-law Guillermo Quiroz and other family

members. Beltran's truck was parked in front of the home, about 50 to 60 feet

away. In the bed of the truck was a small trailer that attaches to the rear of a bicycle

to tow children or pets. Beltran saw Sandoval at the corner of the driveway next to

the trailer which had been removed from the truck. Beltran yelled at Sandoval to

bring the trailer back. Quiroz came outside to see why Beltran was yelling.

Beltran's mother-in-law and eighteen-month-old son were also outside.

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         Beltran told Sandoval to return the trailer or he would call the police. At this

point, Quiroz joined Beltran and the men slowly approached Sandoval in an attempt

to intimidate him into leaving the trailer. Sandoval made a reaching motion under

his shirt with his left hand, as if reaching to pull something out of his waistband.

Beltran cautioned Quiroz to stop because he was scared that Sandoval was armed

with a knife or gun and could shoot him or his family. The men backed away from

Sandoval because they did not want to turn their backs to him. Sandoval kept his

hand under his shirt until Beltran and Quiroz started to back up.

         Beltran called the police. In the meantime, Sandoval walked away with the

trailer. Beltran and Quiroz followed, at a distance of about 100 feet, when Sandoval

turned and shook his fist at the men. The men returned to their home after a police

dispatcher told Beltran to stop following the suspect. Beltran and Quiroz later

drove to a nearby store. Beltran saw Sandoval coming out of the store and saw the

trailer nearby. Beltran followed Sandoval in his truck until a sheriff's deputy

arrived. Sandoval had two knives clipped to the right side of his belt, under his

shirt.

                                      DISCUSSION

                             I. Alleged Instructional Error

A. Background

         Before trial, defense counsel told the court she had a pinpoint instruction

requiring that the victim's fear be objectively reasonable. During the postevidence

conference on jury instructions, the trial court proposed modifying CALCRIM No.

                                             3
1600, the standard jury instruction on robbery, to respond to defense counsel's

request by including the words "by his conduct." The modified portions of the

instruction would read (1) " 'The defendant, by his conduct, used fear against the

owner to take and/or retain possession of the property' " and (2) " 'When the

defendant, by his conduct, used fear to take and/or retain the property, he intended

to deprive the owner of it permanently.' " Defense counsel did not object to the

proposed changes, but reiterated her request for a pinpoint instruction. The trial

court rejected counsel's argument, stating California law requires that a victim of

robbery have actual fear, but there is no case law or statute requiring the victim's

fear to be objectively reasonable.

       During closing arguments, the parties emphasized that the prosecution had to

prove Sandoval caused fear by his conduct, with defense counsel suggesting that

Sandoval reached for his waistband to adjust it. The jury was later instructed with

the modified version of CALCRIM No. 1600 and on the lesser offense of petty

theft. The jury was also instructed that robbery required the union of act and

wrongful intent and proof that the defendant intentionally committed the prohibited

act with the specific intent defined in the robbery or petty theft instructions.

(CALCRIM No. 251.)

B. Analysis

       Sandoval first contends that, based on federal and out-of-state authority and

public policy, reasonableness of fear is an element of the offense of robbery. In

People v. Morehead (2011) 191 Cal.App.4th 765 (Morehead), another panel from

                                            4
this court rejected this contention concluding that CALCRIM No. 1600 does not

"omit or withdraw an element from the jury's determination." (Morehead, at p.

774.) The Morehead court noted that "because the term 'fear' as used in the

definition of robbery has no technical meaning peculiar to the law and is presumed

to be within the understanding of the jurors, . . . the court [does] not have a sua

sponte duty to amplify the robbery instructions by telling the jury that each victim's

fear had to be both actual and reasonable." (Ibid.) Although Sandoval concedes the

Morehead court rejected his contention, he claims we should revisit the issue

because the California Supreme Court has not yet addressed this issue. Although

our high court has not yet addressed whether reasonableness of fear is an element of

the offense of robbery, it has concluded that fear "may be proved with

circumstantial evidence" and "may be inferred from the circumstances in which a

crime is committed or property is taken. [Citations.]" (People v. Holt (1997) 15

Cal.4th 619, 690.)

       A number of courts have concluded "the fear necessary for robbery is

subjective in nature, requiring proof 'that the victim was in fact afraid, and that such

fear allowed the crime to be accomplished.' " (People v. Anderson (2007) 152

Cal.App.4th 919, 946; see also People v. Cuevas (2001) 89 Cal.App.4th 689, 698

[Fear "need not be testified to explicitly by the victim."]; People v. Mungia (1991)

234 Cal.App.3d 1703, 1709-1710, fn. 2 [same].) As one legal treatise explained,

"[I]f the circumstances are such that a reasonable person would not be scared, a jury

might properly infer that the victim, in spite of his testimony to the contrary, was

                                           5
not in fact scared . . . . But if the victim is actually frightened by the defendant into

parting with his property, the defendant's crime, on principle, is robbery, even

though an ordinary person, with more fortitude than the victim, would not have

been thus frightened." (3 LaFave, Substantive Criminal Law (2d ed. 2003)

§ 20.3(d), pp. 188-189.) Sandoval's citation to non-California authority does not

convince us to depart from our conclusion in Morehead that CALCRIM No. 1600

correctly sets forth the necessary elements of robbery. (Morehead, supra, 191

Cal.App.4th at p. 774.)

       Sandoval next contends the trial court violated state law by refusing his

request to instruct the jury that the victim's fear must be reasonable and the trial

court's refusal to so instruct was prejudicial as a reasonable probability existed the

outcome would have been different if the jury had been correctly instructed. As a

preliminary matter, we reject the Attorney General's contention that Sandoval

forfeited this issue by failing to provide a proposed pinpoint instruction to the trial

court. Defense counsel twice notified the court of her request for pinpoint

instructions and these requests sufficiently preserved the issue for our review. We

also note that Sandoval does not contest the sufficiency of the evidence establishing

his use of force and fear to commit the robbery. Accordingly, we need not discuss

this evidence and instead note that our review of the record shows ample evidence

existed showing Sandoval's conduct placed Beltran in fear.

       "Pinpoint instructions 'relate particular facts to a legal issue in the case or

"pinpoint" the crux of a defendant's case.' " (People v. Wilkins (2013) 56 Cal.4th

                                            6
333, 348-349.) Such instructions are required to be given upon request when there

is evidence supportive of the theory. (Id. at p. 349.) A trial court errs when it

refuses to give such an instruction. (People v. Hughes (2002) 27 Cal.4th 287, 362.)

A trial court, however, "may properly refuse an instruction offered by the defendant

if it incorrectly states the law, is argumentative, duplicative, or potentially confusing

[citation], or if it is not supported by substantial evidence [citation]." (People v.

Moon (2005) 37 Cal.4th 1, 30.)

       As discussed above, Sandoval cited no California authority to support his

contention that the element of fear for robbery includes a component of objective

reasonableness. Thus, the trial court properly rejected Sandoval's request the jury

be instructed that the victim's fear needed to be objectively reasonable as it did not

correctly state the law. Although Sandoval cites Morehead for the proposition that

a trial court should instruct regarding the reasonableness of a robbery victim's fear if

so requested, we do not read Morehead so broadly. The Morehead court simply

recognized the well established principle that a party is required to request

additional or clarifying instructions or forfeit the issue. (Morehead, supra, 191

Cal.App.4th at p. 774; People v. Coffman and Marlow (2004) 34 Cal.4th 1, 122

[failure to request clarifying instruction forfeits issue].)

       Assuming for the sake of argument the trial court erroneously refused to give

the pinpoint instruction, any error was harmless because it is not reasonably

probable that had the jury been so instructed, it would have come to any different

conclusion in this case. Here, Sandoval ignored Beltran's yelling and threat to call

                                             7
the police if he did not return the trailer. Instead, as Quiroz and Beltran slowly

approached, Sandoval made a reaching motion under his shirt with his left hand, as

if reaching to pull something out of his waistband. Sandoval kept his hand under

his shirt until Beltran and Quiroz started to back up. It is common knowledge that

criminals often store weapons in their waistbands and, in fact, Sandoval had two

knives hidden on his waistband. Thus, the assumed element of objectively

reasonable fear was satisfied.

                   II. Alleged Error in responding to Jury Question

A. Background

       During deliberations, the jury submitted a note asking three questions:

(1) the definition of " 'using fear;' " (2) if the act of reaching under his shirt was

entirely unintentional, yet caused the victim to feel fear, does this satisfy the words

" 'used fear' " in number 4 of the elements of robbery; and (3) does " 'using' " fear

mean the intentional " 'use of fear.' " The court responded to the jury as follows:

"The conduct of the defendant - by word and/or act - must have been such as to

cause the victim to be actually fearful. [¶] The defendant need not be proven to

have specifically intended his conduct to cause the victim fear. But it does need to

be proven that the defendant knowingly acted in a manner that caused the victim to

be fearful." The jury returned its verdict soon after receiving this response.

B. Analysis

       Penal Code "[s]ection 1138 imposes upon the court a duty to provide the jury

with information the jury desires on points of law." (People v. Smithey (1999) 20

                                             8
Cal.4th 936, 985.) Sandoval contends the trial court incorrectly responded to the

jury's question because it allowed the jurors to find him guilty even if they found he

acted unintentionally. We reject Sandoval's argument because the trial court gave a

legally correct response.

       In People v. Anderson (2011) 51 Cal.4th 989 (Anderson), our high court

clarified that robbery does not contain any "heretofore unidentified element of

intent to cause the victim to experience force or fear." (Id. at p. 995.) "It is robbery

if the defendant committed a forcible act against the victim motivated by the intent

to steal, even if the defendant did not also intend for the victim to experience force

or fear." (Id. at pp. 991-992.) Sadly, neither party knew of the existence of

Anderson, which decides this issue.

       III. Improper Advisement regarding Trial on Prison Prior Allegations

A. Background

       After the jury rendered its verdict and before it was excused, the court called

counsel to sidebar and asked if Sandoval would either admit his prior convictions or

submit to a bench trial. After defense counsel answered affirmatively, the trial

court dismissed the jury. On the day set for sentencing, after defense counsel

informed the court that Sandoval would be admitting his prison prior allegations,

the court advised Sandoval that he had a right to a court trial on those allegations

and "the same constitutional rights associated with a trial process that you otherwise

enjoyed upon the original trial of the robbery charge in this case." Sandoval gave

up his right to trial and later admitted the truth of the alleged convictions.

                                            9
B. Analysis

       Sandoval contends his admissions should be reversed because he was never

advised of and did not waive his right to a jury trial on the prison prior allegations.

The Attorney General concedes that Sandoval received an incomplete advisal of his

rights, but argues that the totality of the circumstances show his admission of his

prior convictions was voluntary and intelligent under People v. Mosby (2004) 33

Cal.4th 353, 361 (Mosby). We agree with Sandoval.

       Before accepting a defendant's admission to a prior prison term allegation,

the trial court should "advise the defendant and obtain waivers of (1) the right to a

trial to determine the fact of the prior conviction, (2) the right to remain silent, and

(3) the right to confront adverse witnesses. (In re Yurko (1974) 10 Cal.3d 857, 863

[(Yurko)].)" (Mosby, supra, 33 Cal.4th at p. 356.) Additionally, the trial court

should also tell the defendant "the effect which a determination of habitual

criminality will have on the punishment and other sanctions to be imposed upon the

accused's conviction of the substantive crime charged." (Yurko, at p. 864.) If an

express waiver of the rights is not secured from the defendant, reversal is required

unless the record as a whole shows the admission was voluntary and intelligent

under the totality of circumstances. (Mosby, at pp. 360-361.) When the

admonitions required by Yurko are not provided, we may nonetheless find a plea

valid "if the record affirmatively shows that it is voluntary and intelligent under the

totality of the circumstances." (People v. Howard (1992) 1 Cal.4th 1132, 1175.) A

silent record, however, does not permit us to imply knowledge and a voluntary

                                           10
waiver. (People v. Campbell (1999) 76 Cal.App.4th 305, 310; People v. Carroll

(1996) 47 Cal.App.4th 892, 896-898; People v. Johnson (1993) 15 Cal.App.4th 169,

177-178.) Because the record is silent, we cannot conclude that Sandoval

intelligently and knowingly waived his right to a jury trial on his prison prior

conviction allegations. (People v. Howard, at p. 1175.)

       We reject the Attorney General's contention that we should infer Sandoval

intelligently and voluntarily waived his rights merely because he had experience

and familiarity with the criminal justice system. In Campbell, another panel from

this court rejected this contention, noting that if experience with the criminal justice

system were sufficient to constitute a voluntary and intelligent waiver of

constitutional rights, courts would rarely be required to give such admonitions.

(People v. Campbell, supra, 76 Cal.App.4th at p. 310.) In Mosby, the court agreed

with this reasoning when it cited Campbell with approval in support of the principle

that a court cannot imply a knowing waiver on a silent record. (Mosby, supra, 33

Cal.4th at p. 362.) Because Sandoval did not voluntarily and intelligently admit to

the prior prison conviction allegations, the trial court's true findings on these

allegations and the imposed sentence enhancements under Penal Code section

667.5, subdivision (b) must be reversed and the matter remanded for a new

adjudication of these allegations either by admission or trial, and for resentencing.

(People v. Moore (1992) 8 Cal.App.4th 411, 422 [remedy for error is reversal as to

the prior conviction enhancements and remand for a new trial on that issue only].)



                                           11
                                    DISPOSITION

       The convictions are affirmed. The admission of the prior prison conviction

allegations is reversed and the matter remanded to the trial court for a new

adjudication of these allegations under Penal Code section 667.5, subdivision (b),

either by admission or trial, and for resentencing thereafter.



                                                                   MCINTYRE, J.

WE CONCUR:

HALLER, Acting P. J.

O'ROURKE, J.




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