Filed 6/21/16 P. v. Edwards CA2/4
               NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 FOUR



THE PEOPLE,                                                           B266762

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. MA063402)
         v.

ANTHONY EDWARDS, JR.,

         Defendant and Appellant.



         APPEAL from judgment of the Superior Court of Los Angeles County, Lisa
M. Chung, Judge. Affirmed.
         Joshua Schraer, 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, Assistant Attorney General, Victoria B.
Wilson and Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent.




                      ___________________________________________
                                 INTRODUCTION
      Anthony Edwards, Jr., appeals from a sentence and judgment, following his
conviction for second degree robbery. He contends the trial court erred when, in
response to the jury’s question about how to apply the facts of the case to the
“force or fear” element of robbery, it reopened closing arguments. Finding no
error, we affirm the judgment.
                            PROCEDURAL HISTORY
                                                                                     1
      A jury found appellant guilty of second degree robbery (Pen. Code, § 211).
In a bench trial, appellant admitted a prior “strike” (§§ 1170.12, subds. (a)-(d), 667,
subds. (a)-(i)) and prior serious felony allegations. The trial court sentenced
appellant to 11 years in state prison. Appellant timely appealed from the judgment.
                           FACTUAL BACKGROUND
      On June 19, 2014, Benjamin Blanco, a security guard for a grocery store,
observed appellant enter the store with an empty backpack. Later, Blanco
observed that appellant’s bag was full of bottles. When appellant walked toward
the store’s exit without stopping by the cash registers, Blanco asked him to stop
and return the items. Appellant “shrugged” and exited the store. Blanco followed
appellant outside, and again requested that appellant return the items. Appellant
refused.
      Evelyn Hernandez, a store manager, also had followed appellant outside.
She approached appellant, stating, “Stop. Can I see your bag?” Appellant
responded, “Get away from me,” and began walking away from her. Hernandez
got in front of appellant and began walking backwards. She held out her hand to
“keep space between us.” When Hernandez noticed that appellant was walking
toward a vehicle, she stated, “‘If you go to the car,’ I [will] write down the license
1
      All further statutory citations are to the Penal Code, unless otherwise stated.

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plate number.” She also repeatedly told appellant, “Please take your items out of
your bag.” Appellant then grabbed her arm and twisted it. In response, Hernandez
grabbed appellant’s wrist and told him to let go. Two other store managers came
on the scene, and appellant released Hernandez’s arm. While the other managers
restrained appellant, Hernandez grabbed a box cutter and cut open the backpack.
She recovered the stolen items.
      Los Angeles County Deputy Sheriff Daniel Ament subsequently arrested
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appellant. After waiving his Miranda rights, appellant told Deputy Ament that he
had gone to the store to purchase alcohol. After grabbing a four-pack of hard cider
and observing that the lines to the cash registers were long, appellant placed the
bottles into his bag, and walked out of the store without paying for them. As he
was leaving, a male Hispanic security guard accused him of stealing. Appellant
walked around the guard and headed toward the parking lot. Hernandez then
approached appellant and accused him of stealing. Hernandez had her arm out and
her hand touched appellant’s stomach, so he used his right hand to “brush” her
hand away. When Hernandez reached for appellant’s backpack, he grabbed her
wrist and moved her arm away from him. At the same time, he made a “flinch
motion” toward Hernandez in order to “intimidate her so he could leave.” Two
other store employees came out, and appellant gave them the four bottles.
Hernandez accused appellant of having additional stolen items. She took out a box
cutter and cut his backpack open.
                                    DISCUSSION
      A.     Relevant Factual Background
      The trial court instructed the jury on the law of robbery with CALCRIM No.
1600, as follows:
2
      Miranda v. Arizona (1966 ) 384 U.S. 436.

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      “The defendant is charged with robbery. [¶] To prove that the defendant is
guilty of this crime, the People must prove that:
      “1. The defendant took property that was not his own;
      “2. The property was in possession of another person;
      “3. The property was taken from the other person in his or her immediate
presence, either at the time the defendant took possession of the property or while
the property was being carried away;
      “4. The property was taken against that person’s will;
      “5. The defendant used force or fear to take the property, either to gain
possession or to maintain possession[,] or to prevent the person from resisting; and
      “6. When the defendant used force or fear to take the property, he intended
to deprive the owner of it permanently.”
      During deliberations, the jury sent the trial court a note, which stated:
“Regarding item 1600 in the jury instructions (pg. 8) . . . [¶] If the force or fear is
used out of fear of reprisal or to avoid culpability, would that still constitute use of
force or fear ‘to maintain possession’ of the stolen property for the sake of proof
under item #5? [¶] Also, we would like to review the detective’s testimony
regarding the defendant’s admission of a ‘flinch’ (or whatever word was used).”
      The trial court discussed the jury’s note with both parties. With respect to
the jury’s question about the use of force or fear, the court told the parties: “This is
an issue that I think is more appropriate for argument. So I’m going to allow
reopening of argument, and we will handle that first. It will just be one
opportunity for each side. People go and then the defense goes.” As to the jury’s
request for readback, the court indicated that it would send the court reporter to
read the requested portion of the trial transcript. Appellant did not object to the




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trial court’s proposed procedure. Nor did he request the court give a specific jury
instruction.
         Subsequently, the court told the jury that its question regarding CALCRIM
No. 1600 “is better addressed with me exercising my discretion to reopen argument
from both sides to allow them to address this. The way it works is the People will
get an opportunity to argue, and then the defense will get the opportunity to argue.”
         The prosecutor argued that the answer to the jury’s question -- whether force
used out of fear of reprisal or to avoid culpability could also constitute force used
to “maintain possession” of stolen property -- was “Yes.” He explained:
“Robbery is at its essence a person who is committing theft but using force or fear
to get away with it.” The prosecutor asked the jury to “look, again, at Element No.
5 [of CALCRIM No. 1600], which says the defendant used force or fear to take the
property either to gain possession or to maintain possession or prevent the person
from resisting.” He argued that appellant’s use of force against Hernandez was
both to prevent her from resisting and to “maintain possession and escape with the
beer.”
         Defense counsel argued that the answer to the jury’s question about the use
of force was “[N]o.” He explained that not all uses of force make a theft a robbery.
Counsel told the jury that a robbery is accomplished only when a defendant uses
force to maintain possession of stolen property, not when force is used out of fear
of reprisal or to avoid culpability. Counsel used as an example a person who,
having stolen property and been confronted by a security guard, throws the
property on the ground and runs away: “[H]e’s trying to avoid culpability” or
“reprisal, but he’s no longer trying to maintain the property”; his conduct would
not, counsel explained, constitute robbery. Counsel argued that appellant’s use of
force was solely to resist Hernandez’s reaching for his bag and cutting it open, not


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to maintain possession of the property. Counsel told the jury: “Ask yourself was
the force used to maintain the property? That’s it. That’s what the law says.
That’s what you can trust, and that’s what you can rely on. [¶] Expanding it
further, afraid of being caught, afraid of being prosecuted, afraid of all those things
is not in the law. If the Legislature wanted it there, they would have put it there.
[¶] So stick with what the law says, and just follow the law.”
      Following the parties’ arguments, the jury heard readback of the requested
testimony.
      B.     Analysis
      On appeal, appellant contends the trial court committed reversible error
when it failed to answer the jury’s question on the law of robbery or provide a
clarifying instruction. He argues the court should have informed the jury that the
“force or fear” element of robbery could be satisfied only if there was proof
beyond a reasonable doubt that the reason appellant used force was in order to
maintain possession of the property. We find no error.
      Section 1138 provides in relevant part: “After the jury have retired for
deliberation, if there be any disagreement between them as to the testimony, or if
they desire to be informed on any point of law arising in the case, they must
require the officer to conduct them into court. Upon being brought into court, the
information required must be given in the presence of, or after notice to, the
prosecuting attorney, and the defendant or his counsel, or after they have been
called.” Under section 1138, the trial court has “a primary duty to help the jury
understand the legal principles it is asked to apply. [Citation.] This does not mean
the court must always elaborate on the standard instructions. 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


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jury’s request for information. [Citation.]” (People v. Beardslee (1991) 53 Cal.3d
68, 97.) While comments diverging from the standard jury instruction are often
risky, “a court must do more than figuratively throw up its hands and tell the jury it
cannot help. It 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., italics omitted.) “A
violation of section 1138 does not warrant reversal unless prejudice is shown.”
(Ibid.)
          Here, the jury was properly instructed on the elements of robbery, including
the use of force or fear to maintain possession of stolen property. When the jury
sought clarification whether appellant’s application of force constituted use of
force to maintain possession of the stolen liquor bottles, the judge acted within her
discretion in reopening argument, as the trial evidence left for the jury’s resolution
whether appellant had used force to maintain possession of the property or merely
to resist Hernandez.
          Contrary to appellant’s argument, the court did not allow the parties to give
the jury “two different and conflicting definitions of an essential element of the
crime.” The essential element of the charged robbery -- use of force to maintain
possession of the property -- was undisputed. The prosecutor urged the jury to find
appellant used force against Hernandez while still in possession of the alcohol,
because he sought to “maintain possession and escape with the beer.” Defense
counsel conceded the relevant question -- “was the force used to maintain the
property?” -- but urged the jury to find appellant’s use of force was merely in
response to Hernandez’s reaching for his backpack or cutting it open. By allowing
additional argument, the trial court did no more than permit each counsel to argue




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to the jury why the evidence did -- or did not -- support the conclusion that
appellant used force to maintain the stolen property. This was not error.
                                  DISPOSITION
      The judgment is affirmed.


      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.




                                                    MANELLA, J.


We concur:




EPSTEIN, P. J.




COLLINS, J.




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