Filed 10/25/13 P. v. Moody 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.


               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                    SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,                                                         B239021

         Plaintiff and Respondent,                                  (Los Angeles County
                                                                    Super. Ct. No. VA119131)
         v.

DOMINIC MOODY,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County.
Margaret M. Bernal, Judge. Affirmed in part and reversed in part with directions.
         Jonathan E. Demson, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Marc A. Kohm,
Supervising Deputy Attorney General, and Alene M. Games, Deputy Attorney General,
for Plaintiff and Respondent.
                                 _________________________________
       Defendant Dominic Moody appeals from the judgment entered following a jury
trial in which he was convicted of second degree robbery, grand theft, and second degree
burglary. Defendant contends the trial court erred by (1) failing to grant his motion for
judgment of acquittal at the conclusion of the prosecutor‘s case-in-chief because there
was insufficient evidence of force or fear to support his robbery conviction; (2) failing to
instruct, sua sponte, that he could not be convicted of both robbery and grand theft for
taking the same property; and (3) failing to instruct, sua sponte, that if the jury had a
reasonable doubt as to which of the two offenses, robbery or grand theft, defendant
committed, it must convict him only of grand theft. We reverse defendant‘s grand theft
conviction, but otherwise affirm.
                                      BACKGROUND
       On the morning of March 23, 2011, defendant entered Daniel‘s Jewelers in the
Lakewood Mall in Lakewood and asked to see various engagement rings. Store
employee Zoila Romero showed defendant numerous rings. Defendant asked to try on a
$25,000 woman‘s ring. Romero told defendant it was store policy to ask for
identification when showing a customer any ring valued at more than $10,000. Defendant
gave Romero his identification and asked to try on the ring. Romero became nervous
because defendant seemed nervous. Pursuant to another store policy, Romero asked
assistant manager Takuhi Maggie Derian to assist her. Romero handed Derian
defendant‘s identification and the ring he wanted to see. Romero then phoned mall
security officers regarding defendant.
       Defendant repeatedly asked Derian to allow him to try on the ring, and she
repeatedly refused, telling him it was against the store‘s policy. Although defendant was
making Derian very uncomfortable, she showed him the ring by holding it between her
thumb and index finger. Defendant ―reached over,‖ placed his hand over Derian‘s hand
and the ring, ―grabbed‖ the ring, and ―pulled.‖ Derian ―pulled back‖ and struggled to
keep the ring, but defendant was stronger and wrested the ring away from Derian,




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breaking two of her fingernails in the process. Defendant ran out of the store with the
ring.
        A Lakewood Mall security officer watching monitors of the mall‘s security
cameras saw defendant running down the corridor where Daniel‘s Jewelers was located
and out of the mall to the parking lot, where he entered a white U-Haul passenger van that
drove away. Sheriff‘s Deputies Brian Bank and his partner heard a broadcast about a
robbery at Lakewood Mall and the white U-Haul van. Three to five minutes later, they
spotted the van stopped at a traffic light, followed it, and stopped it. They arrested
defendant and advised him pursuant to Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct.
1602], and he agreed to speak to them. Defendant initially said he knew nothing about a
ring, but later said he threw it out of the window of the van after seeing a ―police‖ car get
behind him. Defendant‘s girlfriend, who had also been in van, subsequently handed the
ring over to a deputy. It still had the Daniel‘s price tag attached to it.
        Defendant, who represented himself pursuant to Faretta v. California (1975) 422
U.S. 806, 821 [95 S.Ct. 2525], testified that he needed money to support himself and his
girlfriend, who was pregnant, and decided to steal jewelry that he could sell. He went into
Daniel‘s intending to steal something. He looked at and tried on several rings, but thought
they would not have brought a sufficient amount of money. He asked to see the ring that
was about $25,000. Romero asked for his identification, and he gave it to her. Derian came
over to assist Romero. Romero put the ring on defendant‘s finger. Derian began to remove
the ring from defendant‘s finger, and defendant ran out of the store with the ring.
Defendant admitted he had prior convictions for robbery, grand theft, and unlawfully taking
a vehicle.
        The jury convicted defendant of second degree robbery, grand theft, and second
degree burglary. Defendant waived his right to a jury trial on allegations that he had
suffered a prior serious felony conviction within the scope of the ―Three Strikes‖ law and
Penal Code section 667, subdivision (a)(1), and had served two prior prison terms within
the scope of Penal Code section 667.5, subdivision (b). (Undesignated statutory


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references are to the Penal Code.) The court found all of the allegations true, but struck
the prior prison term enhancements. It sentenced defendant to a second strike term of six
years for the robbery, plus five years for the section 667, subdivision (a)(1) enhancement.
The court stayed the sentence on the other two counts pursuant to section 654.
                                      DISCUSSION
1.     Sufficiency of evidence of robbery
       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. (§ 211; People v. Marshall
(1997) 15 Cal.4th 1, 34.)
       Defendant contends there was insufficient evidence of force or fear to support his
robbery conviction.
       To resolve this issue, we review the whole record in the light most favorable to the
judgment to decide whether substantial evidence supports the conviction, so that a
reasonable jury could find guilt beyond a reasonable doubt. (People v. Tully (2012) 54
Cal.4th 952, 1006.) Substantial evidence is ―‗―evidence that is reasonable, credible and
of solid value—such that a reasonable trier of fact could find the defendant guilty beyond
a reasonable doubt.‖‘‖ (Ibid.) We presume the existence of every fact supporting the
judgment that the jury could reasonably deduce from the evidence and make all
reasonable inferences that support the judgment. (People v. Barnes (1986) 42 Cal.3d 284,
303; People v. Catlin (2001) 26 Cal.4th 81, 139.) When reviewing a claim the trial court
erred by denying a motion for acquittal under section 1118.1, we apply the same standard
as when evaluating the sufficiency of evidence to support a conviction, except that we
consider only the evidence in the record at the time the motion was made. (People v.
Augborne (2002) 104 Cal.App.4th 362, 371; People v. Smith (1998) 64 Cal.App.4th
1458, 1464.)
       ―The force required for robbery is more than ‗just the quantum of force which is
necessary to accomplish the mere seizing of the property.‘ [Citation.]‖ (People v. Garcia


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(1996) 45 Cal.App.4th 1242, 1246, disapproved on another ground in People v. Mosby
(2004) 33 Cal.4th 353, 365, fns. 2, 3.) But the degree of force is immaterial; all that is
required is sufficient force to overcome the victim‘s resistance. (Garcia, at p. 1246;
People v. Jones (1992) 2 Cal.App.4th 867, 870.) ―[W]here a person wrests away personal
property from another person, who resists the effort to do so, the crime is robbery, not
merely theft.‖ (People v. Burns (2009) 172 Cal.App.4th 1251, 1257.) Whether the
evidence demonstrates a use of force or fear is a factual question. (People v. Mungia
(1991) 234 Cal.App.3d 1703, 1707.) In determining whether force was used, the trier of
fact may consider and compare the physical characteristics of the victim and the
defendant. (Id. at p. 1709.)
       Derian‘s testimony about her physical struggle with defendant to retain possession
of the ring constituted substantial evidence supporting the jury‘s implicit finding that
defendant used force to take the ring. Notably, the jury was able to observe the relative
sizes of Derian and defendant and Derian‘s demonstrations during her testimony of what
she and defendant did during their struggle over the ring. We further note that defendant
implicitly acknowledged his greater strength when cross-examined by the prosecutor,
who asked whether Derian had ―control over‖ defendant‘s hand. Defendant responded, ―I
don‘t think she had control of my hand, because she‘s a woman. I‘m a man.‖
       Defendant repeatedly argues that he used surprise, not force, to obtain the ring.
Defendant may have hoped to obtain the ring merely by surprise, but when Derian
physically resisted his attempt to grab the ring, he used force to overcome her resistance,
breaking two of her fingernails in the process.
       Accordingly, the trial court did not err by denying defendant‘s section 1118.1
motion.
2.     Failure to instruct, sua sponte, that defendant could not be convicted of both
robbery and grand theft
       Defendant contends that the trial court erred by failing to instruct, sua sponte, that
defendant could not be convicted of both the greater offense of robbery and the lesser


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included offense of grand theft, and that in order to convict him of grand theft, it must
first acquit him of robbery. He argues that such an instruction ―would have properly
focused the jury‘s attention on the critical issue in this case, namely, whether the quantum
of force used to snatch the ring crossed the line between grand theft and robbery.‖ He
adds, ―Nor did the superior court ever clarify for the jury the amount of force required for
robbery versus grand theft.‖
       A defendant may not be convicted of both a greater offense and a necessarily
included offense based upon the same set of facts. (People v. Sanchez (2001) 24 Cal.4th
983, 987.) ―Conviction of a lesser included offense is an implied acquittal of the offense
charged when the jury returns a verdict of guilty of only the lesser included offense.
[Citation.] When the jury expressly finds defendant guilty of both the greater and lesser
offense, however, there is no implied acquittal of the greater offense. If the evidence
supports the verdict as to a greater offense, the conviction of that offense is controlling,
and the conviction of the lesser offense must be reversed. [Citations.]‖ (People v. Moran
(1970) 1 Cal.3d 755, 763 (Moran).)
       Theft is a lesser offense that is necessarily included within robbery. (People v.
Bradford (1997) 14 Cal.4th 1005, 1055.)
       To avoid double jeopardy issues, a jury may be instructed that it must acquit on a
greater offense before it can return a verdict on a lesser offense (People v. Kurtzman
(1988) 46 Cal.3d 322, 329 (Kurtzman)), and the California Supreme Court has
encouraged trial courts to so instruct at the outset of deliberations (People v. Fields
(1996) 13 Cal.4th 289, 309). But ―the trial court retains discretion to dispense with
instructing the jury pursuant to Kurtzman until such time as a jury deadlock arises.‖
(Fields, at p. 309.) Thus, unless ―jurors express their inability to agree on a greater
inclusive offense, while indicating they have reached a verdict on a lesser included
offense‖ (ibid.), such an instruction need not be given sua sponte. Here, no such deadlock
occurred. Accordingly, the trial court was not required to give such an instruction.




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       In addition, a Kurtzman instruction would not have ―focused the jury‘s attention
on‖ whether defendant used force to take the ring. For example, the non-homicide
Kurtzman instruction in the CALCRIM standard instructions is CALCRIM No. 3519,
which states, in pertinent part, ―If all of you find that the defendant is not guilty of a
greater charged crime, you may find (him/her) guilty of a lesser crime if you are
convinced beyond a reasonable doubt that the defendant is guilty of that lesser crime. A
defendant may not be convicted of both a greater and lesser crime for the same conduct.
[¶] [Now I will explain to you which charges are affected by this instruction:] [¶]
[<insert crime>, as charged in Count __, is a lesser crime to <insert crime> [as charged
in Count __.]] [¶] . . . [¶] It is up to you to decide the order in which you consider each
greater and lesser crime and the relevant evidence, but I can accept a verdict of guilty of
the lesser crime only if you have found the defendant not guilty of the greater crime.‖
Nothing in CALCRIM No. 3519 identifies, compares, or contrasts any elements of the
greater and lesser crimes.
       Defendant cites CALCRIM No. 3516; People v. Allen (1999) 21 Cal.4th 846, 851;
and People v. Jaramillo (1976) 16 Cal.3d 752, 757, in support of his claim, but these
cases and CALCRIM No. 3516 pertain to convictions of inconsistent alternative charges
that do not constitute greater and lesser included offenses, such as a theft offense and
receiving stolen property. The Bench Notes to CALCRIM No. 3516 (2013 ed.) at page
986 state, ―If the case involves separately charged greater and lesser offenses, the court
should give CALCRIM No. 3519.‖
       In addition, there was no need for an instruction to ―focus‖ the jury on the ―critical
issue‖ of whether defendant used force to steal the ring. Defendant‘s testimony
constituted an admission of guilt of grand theft and second degree burglary. In argument,
the prosecutor told the jury that the ―only real question in this case‖ was whether
defendant used force to take the ring. In response, defendant argued, based upon his own
testimony, he did not use force or fear. Thus, it could not possibly have been made more
clear to the jury that the sole issue in dispute was whether defendant used force.


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       To the extent defendant argues that the trial court should have elaborated upon the
definition of ―force,‖ his claim fails because he did not request such an instruction and the
term has no technical meaning peculiar to the law. (People v. Anderson (1966) 64 Cal.2d
633, 639–640.)
       It was, nonetheless, error for the trial court to enter judgment upon both the greater
(robbery) and lesser included (grand theft) convictions. This error is easily solved by
reversing the conviction for the lesser included offense. (People v. Sanders (2012) 55
Cal.4th 731, 736.)
3.     Failure to instruct, sua sponte, pursuant to Dewberry
       When the evidence is sufficient to support a conviction of both the offense charged
and a lesser included offense, the trial court must instruct the jurors that if they have a
reasonable doubt as to which offense has been committed, they must convict only of the
lesser offense. (People v. Dewberry (1959) 51 Cal.2d 548, 555 (Dewberry).) Such an
instruction must be given sua sponte. (People v. Crone (1997) 54 Cal.App.4th 71, 76.)
This requirement applies even if both the greater and lesser offense are charged. (Id. at
p. 78.) Failure to so instruct is subject to harmless error analysis under People v. Watson
(1956) 46 Cal.2d 818, 836. (Crone, at p. 78.)
       We asked the parties to submit letter briefs addressing the issue of whether the trial
court erred by failing to instruct, sua sponte, pursuant to Dewberry, supra, 51 Cal.2d at
page 555, with respect to the robbery and grand theft charges, and, if the court so erred,
whether the error was prejudicial. Defendant argued in his letter brief that the trial court
prejudicially erred by failing to so instruct, while the Attorney General argued in her letter
brief that any error was harmless.
       We necessarily conclude that the trial court erred by failing to instruct, sua sponte,
pursuant to Dewberry, supra, 51 Cal.2d at page 555, with respect to the robbery and
grand theft charges. Nonetheless, we conclude the error was harmless. The jury was
instructed on the reasonable doubt standard and told, ―Whenever I tell you the People
must prove something, I mean they must prove it beyond a reasonable doubt . . . .‖ It was


                                               8
further told, ―Unless the evidence proves the defendant guilty beyond a reasonable doubt,
he is entitled to an acquittal and you must find him not guilty.‖ (CALCRIM No. 220.)
The jury was further instructed that ―[t]o prove that the defendant is guilty of [robbery],
the People must prove that: [¶] 1. The defendant took property that was not his own; [¶]
2. The property was taken from another person‘s possession and immediate presence; [¶]
3. The property was taken against that person‘s will; [¶] 4. The defendant used force or
fear to take the property or to prevent the person from resisting; [¶] AND [¶] 5. When
the defendant used force or fear to take the property, he intended to deprive the owner of
it permanently.‖ (CALCRIM No. 1600.) The jury was given separate verdict forms for
each count and told, ―If you are able to reach a unanimous decision on only one or only
some of the charges, fill in those verdict forms only, and notify the bailiff. Return any
unsigned verdict form.‖ (CALCRIM No. 3550.) We presume the jury followed these
instructions. (People v. Williams (2010) 49 Cal.4th 405, 469.) We further presume that
jurors are intelligent and capable of understanding and correlating all jury instructions
given. (People v. Kegler (1987) 197 Cal.App.3d 72, 80.) Accordingly, we conclude the
jury understood that each charge was to be separately considered, it could return not
guilty verdicts on some charges and guilty verdicts on other charges, and it could not
return a guilty verdict on any given charge unless all jurors unanimously agreed that the
prosecution had proved each element of the charge beyond a reasonable doubt. Thus, the
jury‘s guilty verdict on the robbery charge establishes that the jury found the prosecution
had proved every element of robbery, including the use of force or fear, beyond a
reasonable doubt. There is no reasonable probability that, had the trial court given a
Dewberry instruction, defendant would have obtained a more favorable result with
respect to the robbery charge.




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                                    DISPOSITION
      Defendant‘s conviction of grand theft is reversed and may not be retried. The
judgment is otherwise affirmed. The trial court is directed to prepare an amended abstract
of judgment and forward a copy to the Department of Corrections and Rehabilitation.
      NOT TO BE PUBLISHED.


                                                MALLANO, P. J.
We concur:


      ROTHSCHILD, J.


      JOHNSON, J.




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