Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F09063
HULL, J.A jury convicted defendant Paul Theiedus Williams of second degree robbery (Pen. Code, § 211; undesignated section references are to this code). Sentenced to state prison, defendant appeals, contending the trial court (1) erroneously denied his motion to suppress the evidence (§ 1538.5), and (2) erroneously instructed the jury in the language of CALCRIM Nos. 376 and 1600. We reject defendant’s arguments and affirm the judgment.
Facts and Proceedings
About 9:55 p.m. on Monday October 16, 2006, 16-year-old Nathan G. arrived at the light rail station located at 19th Street and the south side of Broadway and headed to the stop for the Meadowview train. As he passed a group of five people waiting for the Watt/I-80 train, defendant called Nathan over to the group. About 23 feet away, defendant, an African-American man clad in a Captain Chronic T-shirt and a tan fur coat, sat on a bench surrounded by a group of four men who stood within six feet of defendant. When Nathan got within six to 10 feet, defendant asked if Nathan wanted any “trees,” which Nathan understood to mean marijuana. When Nathan declined, defendant asked if he knew where he could obtain pills, which Nathan understood to mean Ecstasy. Nathan said he did not know. One of the men from the group approached Nathan from behind and ordered Nathan to empty his pockets. Nathan turned around, saw a gun pointed at his stomach and, feeling threatened and discouraged, emptied his pockets. The men were within three to six feet of Nathan. He gave his wallet to one of the men, possibly defendant. His wallet had a light rail/bus pass and may have had $1 but the $1 may have been in his pocket. Nathan also handed over his watch to one of the men. He removed his backpack at the order of Jorge Cabrales or possibly another one of the group and gave it to one of the men. Cabrales was wearing a Mac Dre T-shirt. One of the other men had on a Chuckie T-shirt and another one had short dreadlocks. When Cabrales or another one in the group found Nathan’s laptop in the backpack, all of the men in the group cheered. The backpack also contained a video game. Defendant gave Nathan his wallet back and asked which train Nathan took. One of the men, possibly defendant or Cabrales, told Nathan to get on the approaching train, nudging him onto the track. Nathan estimated that the robbery lasted five to 10 minutes. Nathan got on the train and immediately reported that he had been robbed to a regional transit (RT) security officer on the train which had just left the station. When he told the security officer about the incident, he believed six or seven African-American men had been involved but at trial, he was sure it was five. The security officer reported the incident over the radio.
At 10:11 p.m., Sacramento Police Officer Glen Barretto who was in uniform and on patrol at the 23rd and R Street light rail station heard the report over the patrol channel that a victim had been robbed at gunpoint by five black men at the 19th and Broadway light rail station. He arrived within a few minutes but saw no one matching the description. He spoke with a light rail employee and then, using his radio, reported the suspects had gone west on Broadway. Officer Barretto traveled west on Broadway and noticed very few cars and no pedestrians. About two or three minutes later, he arrived at 16th and Broadway and saw five black men in their 20’s, four on the southwest corner and one on the southeast corner. They crossed the street to walk north on 16th street when the light changed.
On the northwest corner, Officer Barretto detained the four men at gunpoint, ordering them to put their hands on the hood of the patrol car. They all did. Cabrales was one of the four men. Officer Barretto then turned his attention to the man on the northeast corner. Officer Barretto ordered the man to stop. The man looked at the officer and continued walking. The officer ordered the man to stop again but he kept walking. After two more orders to stop, the man stopped behind a tree where the officer could not see him. About that time, a security guard appeared and the man who the officer identified as defendant then complied with the officer’s order. Other officers arrived to assist with the detention. A pat-down search of defendant revealed none of the victim’s belongings. One of the four men, Thaddeus Lewis, had the victim’s backpack which contained the laptop computer and charger. The four men also had the victim’s watch and video game. Officer Barretto searched the southwest corner of Broadway and 16th where the four men had been waiting to cross the street and found a gun. The victim later identified the gun as the one used by the robbers. The gun appeared to Officer Barretto to be a firearm, specifically, a Glock 26, but was actually a pellet pistol. Another one of the four men, Cecil Bryant, had a magazine that fit the pellet gun.
A deputy sheriff met Nathan at the 47th Street station of light rail about 10:18 p.m. and drove him to the place where the suspects had been detained. Nathan further described the men who had robbed him around 10:00 p.m. as five black men and stated that one was about 20 years of age wearing a tan fur coat, another had short dreadlocks, and another, who went through his backpack and told him to get on the train, had a Mac Dre T-shirt. The deputy related the description at 10:30 p.m. About 10:40 p.m., Nathan identified the five men as the men who robbed him three blocks away. At trial, Nathan had no doubt that defendant was involved in the robbery.
According to the deputy, at the time Nathan identified defendant, Nathan stated that he was positive that defendant was the one who had offered him marijuana and had ordered him to take off his backpack and empty his pockets. When Nathan identified Lewis, Nathan stated that Lewis had taken the backpack from his hand. The deputy also testified, however, that Nathan claimed that someone other than defendant had the gun and had ordered Nathan to empty his pockets.
Four of the men were taken to jail and the fifth was a juvenile. When booked into jail, defendant admitted that he had marijuana which he had hidden in his underwear.
Discussion
I
The Detention
Preliminarily, we note that, procedurally, defendant joined in the motion to suppress filed by codefendant Cabrales thus challenging the admissibility of evidence found on either defendant or Cabrales.
A defendant can bring a motion to suppress evidence only when he had a reasonable expectation of privacy in the place that was searched. (People v. Ayala (2000) 23 Cal.4th 225, 254-255.) We need no citation to authority to observe that, under normal circumstances, a defendant does not have a reasonable expectation of privacy as to items held by a codefendant. Moreover, it is the defendant’s burden to establish that his own Fourth Amendment rights were violated by the search or seizure to which he objects. (Rakas v. Illinois (1978) 439 U.S. 128 [58 L.Ed.2d 387].) But, if the People fail to raise the issue on the motion in the trial court, the issue is forfeited on appeal. (People v. Erwin (1997) 55 Cal.App.4th 15, 18, fn. 1.) The People did not raise the issue here.
We also note that the marijuana defendant surrendered at the jail was placed into evidence against him at trial as evidence corroborating his identity as one of the robbers. Defendant, of course, had a reasonable expectation of privacy as to items carried on his person and his motion, at the very least, was sufficient to challenge the admissibility of the marijuana.
Because we affirm the trial court’s ruling on the motion to suppress, we need address these issues no further.
Defendant contends that the trial court erroneously denied his suppression motion, arguing that Officer Barretto lacked reasonable suspicion to detain him. We conclude otherwise.
At the hearing on defendant’s motion to suppress, Officer Barretto testified as follows. At 10:11 p.m. on October 16, 2006, he was dispatched to the light rail station at 19th and Broadway on a report of a robbery of a victim by five black men in their 20’s. When he arrived, Officer Barretto spoke with Ricky Freeney, a light rail employee, who confirmed the dispatch information about the description of the suspects and added that the suspects wore puffy jackets and had left on foot, traveling west on Broadway. Officer Barretto advised dispatch at 10:20 p.m. and drove his patrol car west on Broadway. He explained that the traffic was minimal and that he saw no pedestrians.
At 16th Street and Broadway, three blocks from the light rail station, Officer Barretto saw five black men on the south side of Broadway. They were the only pedestrians the officer had seen on Broadway from 19th to 16th. Four of the men were on the southwest corner and defendant was on the southeast corner. All were wearing jackets and two had puffy jackets. Defendant was wearing a puffy jacket. All five men appeared to Officer Barretto to match the descriptions of the men he was looking for. Before turning on his overhead lights and siren, Officer Barretto advised dispatch at 10:23 p.m. that he was making a stop. When the light changed, the five men crossed Broadway and headed north on 16th Street. Officer Barretto detained the four men on the northwest corner. Officer Barretto called to defendant who crossed to the northeast corner but he ignored the officer. After three or more calls, defendant responded and joined the four other men. At the suppression hearing, Officer Barretto believed that Cabrales may be of mixed race but at a distance, he appeared to be African-American.
Officer Barretto made the stop 12 minutes after the initial call from dispatch. Officer Barretto explained that the victim had reported the robbery to a guard on the train when he boarded, the guard relayed the information to “RT channels” and then dispatch issued the call within a minute or two thereafter, at 10:11 p.m.
On the southwest corner of Broadway, Officer Barretto found a pellet gun that appeared to be a Glock pistol. At a field showup about 10:40 p.m., Nathan identified all five men as having been involved in the robbery. Defendant had none of the victim’s property but some of the victim’s property was found on one (or more) of the other four men.
The trial court concluded that reasonable suspicion justified the detention of the five men. The court found that the dispatch information, although general in nature, was corroborated by a light rail employee who added that the men wore puffy jackets and left on foot, traveling west on Broadway, and was sufficient considering all the circumstances, that is, the lack of other pedestrians on the route identified as the route traveled by the suspects and the closeness in time and to the scene of the robbery. The trial court noted that Cabrales appeared to be of mixed race, including possibly African American.
“A detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity.” (People v. Souza (1994) 9 Cal.4th 224, 231.) “[R]easonable suspicion is ‘something more than an “inchoate and unparticularized suspicion or ‘hunch,’”’ [citation], but something less than probable cause, which has been described as ‘“a fair probability that contraband or evidence of a crime will be found”’ [citation].” (People v. Bennett (1998) 17 Cal.4th 373, 387.) “‘The possibility of an innocent explanation does not deprive the officer of the capacity to entertain a reasonable suspicion of criminal conduct. Indeed, the principal function of [police] investigation is to resolve that very ambiguity and establish whether the activity is in fact legal or illegal . . . .’” (Souza, supra, 9 Cal.4th at p. 233, quoting In re Tony C. (1978) 21 Cal.3d 888, 894 (Tony C.).)
“The standard of appellate review of a trial court’s ruling on a motion to suppress is well established. We defer to the trial court’s factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. [Citations.]” (People v. Glaser (1995) 11 Cal.4th 354, 362.)
Relying upon Tony C., defendant claims he was detained because he was black. Defendant also relies upon People v. Pitts (2004) 117 Cal.App.4th 881 (Pitts) in support of his argument that he was detained merely because he was present and near the four other suspects. Defendant misplaces his reliance on these cases.
Tony C. recounted the facts as follows. Around noontime during a weekday, a highway patrol officer was on patrol in his patrol car when he saw two black youths walking on the sidewalk in a residential area in a city. After driving past the youths a couple of times, the officer pulled over, stopped them and asked who they were, where they lived and why they were in the area. The officer explained he stopped them because they should have been in school and when not in school, juveniles sometimes commit crimes. The officer also noted that the day before, he had “learned informally that several burglaries had been reported” in the area and that “‘three male blacks’ were being sought.” (Tony C., supra, 21 Cal.3d at p. 896.) When he drove past the youths the second time, he only saw one of the youths and “‘thought possibly’ the latter was acting as a lookout” while the other “was committing a burglary nearby.” (Id. at p. 897.)
Tony C. concluded the officer “had been informed only that the suspects in the prior burglaries were ‘three male blacks’ of unspecified ages. Such a vague description could not reasonably have led him to suspect these two black minors were the missing culprits. To hold otherwise would authorize the police to stop and question every black male, young or old, in an area in which a few black suspects were being sought. Such wholesale intrusion into the privacy of a significant portion of our citizenry would be both socially intolerable and constitutionally impermissible.” (Tony C., supra, 21 Cal.3d at p. 898, fn. omitted.) Tony C. also observed: “[N]othing is added to the equation by the fact that Tony and his companion appeared to briefly part company during Officer Joy’s surveillance of their movements. In the circumstances it was highly unlikely the two youths were then in the act of committing a burglary: a marked police car had just driven across their field of vision, the car returned a few moments later, and Tony’s companion exhibited no reported signs of nervousness or concern at its sudden reappearance. Much more is needed to reasonably suspect that a person merely standing on a street corner in broad daylight is acting as a ‘lookout’ for a partner in crime.” (Ibid.)
The facts here are substantially different than those in Tony C. The officer was looking for five black men in their 20’s wearing puffy jackets and traveling west on Broadway. The officer located the described suspects within minutes, not hours or a day, from the time the robbery occurred and within three blocks of the scene of the robbery. Further, the five black men in their 20’s were the only pedestrians the officer had encountered in tracing their witnessed path of travel from the light rail station to Broadway and 16th streets. And defendant was wearing a puffy jacket.
The facts in Pitts are also distinguishable. A police officer suspected that a residence was being used in the sales of methamphetamine based on an arrest for possession of methamphetamine in the neighborhood which occurred two weeks prior. The arrested man had been previously involved in a domestic dispute with the woman who lived at the suspected drug house. The woman, Jennifer Nuguid, had prior juvenile drug arrests as well. During surveillance, about 1:00 p.m., the officer saw a truck with a man parked around the corner from the suspected drug house. The officer drove around the block and then saw the man standing on the corner looking down the street toward the suspected drug house. When the man made eye contact with the officer, the man quickly returned to his truck. The officer believed that the man was involved in drug trafficking and stopped him for questioning. The man explained that he was waiting for a friend. A woman came around the corner from the direction of the suspected drug house and walked towards the man and the officer. The officer asked the man if the woman was his friend. The woman claimed she did not know the man. The officer began questioning the woman, asking her who she was and where she was coming from. The woman identified herself as Kimberly and stated she had been visiting Jen. The officer believed that Kimberly was referring to Nuguid. About that time, the defendant walked around the corner from the direction of the suspected drug house. The officer recognized the defendant from prior contacts. The officer also recalled an old “‘be on the lookout’” (Pitts, supra, 117 Cal.App.4th at p. 884) bulletin which had been issued based on a tip from an untested informant who claimed that the defendant may be involved in the sale of methamphetamine. The bulletin further stated that the defendant was on diversion for a previous arrest. The officer greeted the defendant and immediately told him to put his hands on the patrol car for a pat down. (Id. at pp. 883-884.)
Pitts found that the officer lacked reasonable suspicion to detain the defendant, finding the “‘be on the lookout’” bulletin lacking any indicia of reliability. (Pitts, supra, 117 Cal.App.4th at p. 886.) The court concluded that the defendant’s presence near a suspected drug house was not, alone, a sufficient basis to detain him. (Id. at p. 887.) The court also found that the officer lacked information connecting the defendant to the suspected drug house or to the man in the truck or Kimberly who the officer questioned. Although the man had quickly returned to his truck after making eye contact with the officer, Pitts found that such behavior did not furnish a basis for a lawful detention. (Id. at pp. 887-889.)
Here, the officer was looking for five black men in their 20’s wearing puffy jackets traveling west on Broadway. Within minutes of the report of the robbery, the officer found five black men, all wearing jackets, two puffy including defendant’s, on Broadway, three blocks west of the scene of the robbery. The officer believed the men fit the description. From the scene of the robbery to the suspects location, there were no other pedestrians on Broadway. That defendant was on a corner just across the street from the other four is, under the circumstances, of little consequence.
Reasonable suspicion justified defendant’s detention. The radio dispatch occurred within minutes after the robbery occurred. Officer Barretto learned from dispatch that the robbery suspects were five black men in their 20’s. A light rail employee at the scene of the robbery told the officer that the suspects who were wearing puffy jackets had left on foot traveling west on Broadway. Officer Barretto detained five men, all of whom appeared to him to be black. Defendant argues that the officer only stopped the men because they were black, not that they were in their 20’s. He relies on one question and answer by the officer. The question and answer are as follows: “Q So when you detained them, it was solely based on the description of five black males walking westbound at--a robbery had occurred 15, 20 minutes earlier? [¶] A Yes.” Defendant ignores the officer’s previous testimony, that is, he was looking for five black men in their 20’s based on information from dispatch which was confirmed by the light rail employee and that the men he detained matched the description. The detention of five black men on foot occurred within 20 minutes of the robbery, on Broadway and 16th Street, only three blocks west of the scene of the robbery, and in an area where there were no other pedestrians. Defendant points out that he was across the street from the other four men and that the officer observed nothing to indicate the four men knew defendant or vice versa. Defendant ignores the fact that he and the other four men were the only people on the street and that defendant was wearing a puffy jacket. Contrary to defendant’s claim that the officer simply assumed defendant was associated with the four other men, the trial court properly concluded under the totality of the circumstances that there were specific and articulable facts supporting a reasonable suspicion that defendant was involved in the robbery. The officer would have been derelict in his duties if he had not detained defendant and the others.
II
Instructional Error
Defendant contends the trial court erroneously instructed the jury in the language of CALCRIM Nos. 376 and 1600. He argues CALCRIM No. 376 should not have been given because the recently stolen property was found on the person of others and insufficient evidence supported the instruction since there was insufficient evidence of his constructive possession. He claims the jury convicted him based on Cabrales’s possession of recently stolen property. Defendant claims he was convicted on the basis of guilt by association, violating due process. Defendant argues CALCRIM No. 1600 lessened the prosecution’s burden of proof, deprived him of his right to have the jury decide every element beyond a reasonable doubt and violated due process. He claims the definition of possession was inapplicable. Defendant argues if the jury had believed his defense that all he did was offer Nathan some drugs, returned his wallet and urged him on the train, then the jury would not have convicted him but for the definition of possession which allowed the jury to find that he had the right to control the property the others possessed because he returned Nathan’s wallet, controlling that piece of property, and which lessened the burden of proof on taking. In other words, defendant complains that his constructive possession over the property Cabrales possessed allowed the jury to impute “taking” to him. We find no merit to defendant’s complaints.
The trial court instructed the jury in the language of CALCRIM No. 1600 as follows:
“The defendants are charged in Count 1 with robbery. [¶] To prove that the defendants are guilty of this crime the People must prove that one, the defendant took property that was not his own. [¶] Two, the property was taken from another person’s possession and immediate presence. [¶] Three, the property was taken against that person’s will. [¶] Four, the defendant used force or fear to take the property or to prevent the person from resisting. [¶] And five, when the defendant used force and fear to take the property he intended to deprive the owner of it permanently. [¶] The defendant’s intent to take the property must have been formed before or during the time he used force or fear. [¶] If the defendant did not form this required intent until after using the force or fear, then he did not commit robbery. [¶] A person takes something when he or she gains possession of it and moves it some distance. [¶] The distance moved may be short. [¶] The property taken can be of any value however slight. [¶] Two or more people may possess something at the same time. [¶] A person does not have to actually hold or touch something to possess it. [¶] It is enough if the person has control over it or the right to control it either personally or through another person. [¶] Fear as used here means fear of injury to the person himself or immediate injury to that person’s property. [¶] Property is within a person’s immediate presence if it is sufficiently within his physical control and he could keep possession of it if not prevented by force or fear. [¶] An act is done against a person’s will if that person does not consent to the act. [¶] In order to consent, a person must act freely and voluntarily and know the nature of the act.” (Italics added.)
The trial court instructed the jury in the language of CALCRIM No. 376 as follows:
“If you conclude that a defendant knew he possessed property and you conclude that the property had in fact been recently stolen, you may not convict the defendant of robbery or any lesser offense based on those facts alone. [¶] However, if you also find that supporting evidence tends to prove his guilt, then you may conclude that the evidence is sufficient to prove he committed robbery or any lesser offense. [¶] The supporting evidence need only be slight. It need not be enough by itself to prove guilt. [¶] You may consider how, where and when the defendant possessed the property along with any other relevant circumstances tending to prove his guilt of robbery or any lesser offense. [¶] You may also consider whether the attributes of possession, [e.g.,] time, place and manner of possession that tend to show guilt and the opportunity to commit the crime. [¶] The definition of possession is contained elsewhere in CALCRIM number 1600. [¶] Remember that you may not convict a defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant’s guilt of that crime has been proved beyond a reasonable doubt.” (The trial court’s modifications of CALCRIM No. 3.76 appear in italics.)
The trial court also instructed the jury, inter alia, in the language of CALCRIM Nos. 203 [multiple defendants], 220 [reasonable doubt], 400 [aiding and abetting: general principles], and 401 [aiding and abetting: intended crimes].
The trial court also instructed in the language of CALCRIM No. 200, in relevant part, as follows:
“Some of these instructions may not apply depending on your findings about the facts of the case. [¶] Do not assume just because I give a particular instruction that I am suggesting anything about the facts. [¶] After you have decided what the facts are, follow the instructions that do apply to the facts as you find them.”
The prosecutor argued that defendant was guilty because he was either one of the perpetrators or that he aided and abetted the robbery, suggesting that the latter theory was easier to find.
During deliberations, the jury requested a read back of only a small portion of Nathan’s testimony, that is, his testimony on direct examination by the prosecutor as to where defendant was located when defendant first engaged with Nathan; such testimony required but about three minutes to read back according to the trial court.
In reviewing a challenge to the instructions given to the jury, we consider the entire charge, not parts of an instruction or a particular instruction. (People v. Castillo (1997) 16 Cal.4th 1009, 1016.) Defendant must show a reasonable likelihood that the jury understood the challenged instructions in the manner claimed. (People v. Cain (1995) 10 Cal.4th 1, 36-37; People v. Anderson (2007) 152 Cal.App.4th 919, 938.)
“Where recently stolen property is found in the conscious possession of a defendant . . . an inference of guilt is permissible” (People v. McFarland (1962) 58 Cal.2d 748, 755 (McFarland)) if there is at least “slight corroboration in the form of statements or conduct of the defendant tending to show his guilt.” (Id. at p. 754.) The jury must determine “whether or not the inference should be drawn in the light of all the evidence.” (Id. at p. 755.) This rule “in no way shifts the burden of proof or destroys the presumption of innocence; the prosecution must still satisfy the jury of a defendant’s guilt beyond a reasonable doubt.” (Id. at p. 756.)
CALJIC No. 2.15--the predecessor of CALCRIM No. 376--“has repeatedly withstood challenges on the grounds that it lessens the burden of proof or otherwise denies a defendant due process of law.” (People v. Williams (2000) 79 Cal.App.4th 1157, 1173, and cases cited.)
In People v. Gamble (1994) 22 Cal.App.4th 446, a defendant convicted of robbery challenged CALJIC No. 2.15. (Id. at pp. 448, 452.) Gamble rejected the defendant’s claims, stating, “‘“It is settled that when a person is shown to be in possession of recently stolen property slight corroborative evidence of other inculpatory circumstances which tend to show guilt supports the conviction of robbery.” [Citation.]’ [Citations.]” (Id. at p. 453.) Moreover, “it is not just the inference as to defendant’s knowledge that the property was stolen that may be drawn, but in the context of theft crimes other than receiving stolen property, CALJIC No. 2.15 by its very language permits the jury in a proper case to infer the identity of defendant as the one who committed the crime.” (Gamble, at p. 453.) Gamble further concluded that the instruction did not lessen the prosecutor’s burden of proof or violate due process since it “creat[ed] only a permissive inference, one the jury could either credit or reject ‘based on its evaluation of the evidence, and therefore does not relieve the People of any burden of establishing guilt beyond a reasonable doubt. [Citations.] A permissive inference does not shift the prosecution’s burden of proof, and violates due process ‘only if the suggested conclusion is not one that reason and common sense justify in light of the proven facts before the jury.’ [Citations.]” (Id. at pp. 454-455.)
To apply CALCRIM No. 376, the jury had to first determine that defendant possessed the recently stolen property. CALCRIM No. 1600 properly defined possession in the context of CALCRIM No. 376, that is, the jury had to first determine that defendant exercised direct control or the right to control the property either personally or through another person. Further, sufficient corroborating evidence supported the instructions.
Nathan identified all five men, including defendant, as the men who robbed him. Defendant sat surrounded by the other four when he offered to sell marijuana to Nathan and wanted to buy Ecstasy. Defendant got up and joined the other four men when Nathan was ordered at gunpoint to empty his pockets and hand over his backpack. Defendant and the others all cheered when Cabrales found Nathan’s laptop in his backpack. Defendant had returned Nathan’s wallet to him and urged him onto the train. Defendant left with the others and traveled west on Broadway. When the officer detained the four others, defendant ignored the officer’s repeated orders to stop and hid behind a tree, demonstrating a consciousness of guilt. Defendant did not, when caught, possess any of the victim’s property but there was sufficient evidence of defendant’s constructive possession of the victim’s property possessed by others. Sufficient evidence supported CALCRIM No. 376.
CALCRIM No. 376 refers to possession and the trial court properly defined it by referring to CALCRIM No. 1600. To the extent he argues that the definition of possession set forth in CALCRIM No. 1600 defines possession by the victim of a robbery, whereas it was here used to define possession for purposes of determining whether there could be an inference of guilt, we see no reason why, in this context at least, the legal definition of possession should differ. We reject defendant’s claim that the jury would have been misled or confused. To convict of robbery, the jury had to find that defendant took property. The prosecutor’s theory was that defendant did so either personally or as an aider and abettor. Sufficient evidence supported the definition of possession given here.
Based on the entire charge to the jury, including the elements of robbery, the prosecution’s burden of proof beyond a reasonable doubt, and the cautionary instruction to disregard any instruction that applied to facts it found did not exist (People v. Holt (1997) 15 Cal.4th 619, 677; People v. Johnson (1993) 6 Cal.4th 1, 37), we find no instructional error.
Disposition
The judgment is affirmed.
We concur: BLEASE, Acting P.J., BUTZ, J.