Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 5-090731-1.
SIMONS, Acting P.J.
Defendant Lucero Nataly Herrera (appellant) appeals her conviction by jury trial of receiving stolen property, to wit, a cell phone (Pen. Code, § 496, subd. (a)) (count 2). Her sole contention on appeal is that the court erred in failing to sua sponte instruct the jury on the defense of duress. We disagree and affirm.
The jury acquitted appellant of the offense of second degree robbery and the lesser offense of petty theft (Pen. Code, §§ 211, 212.5, subd. (c), 484, 488) (count 1). She was sentenced to three years’ probation.
BACKGROUND
Shortly after midnight on May 6, 2009, Martin Ramirez drove to a Concord 7 Eleven store where he purchased cigarettes and condoms. While he was seated in his car about to light a cigarette, a woman, later identified as appellant, approached the car, tapped on the window and gestured that she wanted a cigarette. Appellant had two black eyes. Ramirez signaled to her that the car door was open. She then entered the car and asked Ramirez if he wanted sex. Ramirez responded, “Let me think.”
About a minute later, Ramirez heard his car’s rear door open. When he tried to turn around, a man, later identified as Brandon Smith, grabbed him by the neck. In English, Smith said to Ramirez, “Give me your wallet and your money.” When Ramirez said he didn’t understand, appellant translated Smith’s demand into Spanish. Ramirez was scared. After Smith said something to appellant about “the key, ” she turned the car off and took Ramirez’s key and cell phone, which was located next to the gear shift. Appellant then left the car. After struggling with Smith for a few minutes, Ramirez was able to free himself and exit the car.
Ramirez subsequently testified that he did not see appellant take his keys out of the ignition; but later, when he was fighting and arguing with Smith, appellant had the keys in her hand.
Smith got out of the car and appellant was standing on the sidewalk about 20 feet in front of Ramirez’s car. Ramirez wanted to retrieve his keys and cell phone from appellant, but Smith positioned himself in a “fighting stance” between Ramirez and appellant. Ramirez and Smith argued and Smith threw a rock at Ramirez’s car window. Ramirez and Smith followed each other around the car while appellant remained two car lengths away on the sidewalk.
Ramirez retrieved a lug wrench from the trunk of his car. He then chased Smith across the street, kicked him, and hit him four or five times with the wrench. Ramirez stopped when appellant started screaming, “Let him be. You’re going to kill him.” Appellant and Smith flagged down a taxi and left the scene. Shortly thereafter, Ramirez flagged down Concord Police Officer Mark Kincannon, and said he had just been robbed. Ramirez gave Kincannon a cell phone Smith had dropped at the scene and described the two robbers. While interviewing Ramirez, two incoming calls were received by Kincannon on Smith’s cell phone from “Martin Ramirez, ” from Ramirez’s cell phone number.
Kincannon was informed by Concord Police Officer Daniel Golinveaux that two people matching the description of the robbery suspects were at a nearby hospital. Ramirez agreed to accompany Kincannon to the hospital for an “in-field elimination.” At the hospital Ramirez identified Smith and appellant as the robbers.
As Golinveaux was talking to Smith, appellant came into the room; she had a bandage on her head and two black eyes. She and Smith made “normal type” conversation and she did not appear fearful. She told Golinveaux she had been injured in a car accident earlier that day. Kincannon then entered the room and showed Smith the cell phone Ramirez recovered, which Smith identified as belonging to him.
Golinveaux pat searched appellant and found a cell phone in her sweatshirt pocket. Appellant told Golinveaux the cab driver who transported her and Smith to the hospital loaned them the phone and she forgot to return it to him. The cell phone’s number matched Ramirez’s cell phone number. The cell phone number of the cell phone Ramirez found at the scene and gave to Kincannon matched that on a receipt for cell phone activation recovered from Smith at the hospital.
The Defense
Appellant testified that, after she and Smith were romantically involved, he wanted her to engage in prostitution. When she refused, he began slapping her and calling her names. He then apologized and began treating her better and they continued dating.
On May 5, 2009, Smith took appellant to a motel. He left the room for about five or 10 minutes; when Smith returned he accused her of cheating on him. He then hit her in the face with a closed fist, choked her, grabbed her hair, dropped her to the floor and banged her face on the floor. He also sexually assaulted her, called her “bitch” and “ho” and continued to hit her. When she tried to leave the room, Smith grabbed her, slammed her against the wall and began punching her face again with a closed fist and hit her in the head with the motel room phone. At one point after he hit her, she fell, striking her head on a dresser, resulting in a cut above her eye.
Because she was bleeding profusely, Smith found a cab driver to take them to a hospital in Richmond. She was treated there and released at about 11:00 a.m. on May 6. When appellant told Smith she did not want to be with him anymore, he would not let her leave; she was afraid. Smith took her to his aunt’s house in Oakland. Later that day they rode BART (Bay Area Rapid Transit) to Concord, where Smith insisted that appellant prostitute herself because they needed money to get a place to sleep that night. Appellant was uncomfortable with Smith’s demand but complied. Smith said nothing to appellant about committing a robbery. She began walking, looking for a “gentleman”; Smith walked nearby.
Appellant saw Ramirez park his car and stand on the sidewalk as though he was looking for something. In Spanish, Ramirez asked her if she was working, i.e., prostituting, and she said yes. Ramirez told her to get in the car and he was going to take her to 7 Eleven to buy condoms. When she got in the car, he asked how much she charged for oral sex and she said $40. They drove to 7 Eleven; appellant stayed in the car while Ramirez bought condoms. Ramirez said he did not want to “do it” in the parking lot, so he drove and parked a couple of car lengths down on Monument Boulevard.
Because appellant did not want to have sex and wanted to go home, she offered to pay Ramirez if he would take her to San Francisco. Ramirez refused. Appellant kept telling Ramirez she was hurt and needed his help to get home. Smith then entered the rear driver’s side door of Ramirez’s car, grabbed Ramirez by the neck and said Ramirez was not taking appellant anywhere. Appellant denied translating anything Smith said to Ramirez. She heard Smith tell Ramirez, “You’re not going to fucking take [appellant] nowhere. You better fucking pay up and have sex with her.”
Appellant got out of the car and started running. She came back when she saw Smith and Ramirez fighting, and told Ramirez to stop hitting Smith. After Ramirez fled, appellant flagged down a cab, she and Smith got in, and Smith said he needed to go to the hospital.
Smith was belligerent, uncooperative and rude while at the hospital. While he and appellant were seated in a hospital room, Smith realized neither he nor appellant had his cell phone. He handed her a cell phone and told her, “Call my fucking phone to know where my fucking phone [is] at.” Appellant did not know whose cell phone Smith handed her. She complied, but no one answered. A nurse came in the room to check on Smith while appellant was holding the cell phone, and appellant put the phone in her pocket. A police officer then entered the room while appellant was trying to keep Smith calm. At the hospital, appellant did not tell the police or hospital personnel the truth about her black eyes because Smith was present. She did not take the opportunity to leave the hospital alone because she was afraid and did not want to “leave [Smith] by himself.” Appellant said she falsely told the police officer the cell phone recovered from her belonged to the taxi driver. She said she did not tell the officer that Smith gave her the cell phone because Smith was present in the hospital room. She said, “I didn’t want the whole problem going on. He kept screaming my name.”
Appellant admitted that in 2008 she pled guilty to assault with force likely to produce great bodily injury.
During a break in appellant’s direct examination, the court asked defense counsel, Evan Hoppin, if he would be requesting a duress instruction; Hoppin said he did not think so. The prosecutor stated that if no duress defense would be sought, appellant’s prior testimony regarding how she acquired her bruises should be stricken. Hoppin said the testimony was relevant in the absence of a duress instruction. Hoppin conceded that appellant did not testify that Smith made her commit a robbery. However, Hoppin said Smith made her do other things like go to Concord and prostitute herself there because she was afraid of Smith. Hoppin said the events in the 16 hours prior to the incident explained why she feared Smith and did not interfere with Smith’s robbery of Ramirez. Hoppin said the evidence challenged by the prosecutor went to appellant’s intent as an aider and abettor. The court acknowledged that regardless of whether the defense requested a duress instruction, it had a sua sponte duty to give a duress instruction if there was substantial evidence to support it. The court stated, “My guess is that there’s going to be a duress instruction given.” Hoppin said he would not object if such an instruction were given.
No duress instruction was ever requested or given.
On cross-examination, appellant denied ever possessing Ramirez’s car keys or taking his cell phone from the car’s center console. She said she was surprised and afraid when Smith entered Ramirez’s car. Smith, who does not speak Spanish, said in English to Ramirez, “You’re going to fucking pay.” Appellant said that in the hospital, when Smith handed her a phone and told her to call his cell phone number, she asked no questions and “just called [Smith’s] phone.”
On redirect examination, appellant said that while she, Smith and Ramirez were in Ramirez’s car, she was afraid and concerned for her own safety. She did not seek to leave the hospital because she was concerned for Smith and “still love[s] him.”
The thrust of defense counsel’s closing argument was that Smith alone robbed Ramirez. Defense counsel also argued that appellant’s receipt of Ramirez’s phone from Smith might make her guilty of petty theft, not robbery. Defense counsel argued appellant’s falsely telling the police officer that she got the cell phone from the cab driver was “obviously nonsense, ” but the officer asked her about the phone in Smith’s presence at the hospital, 13 or 14 hours after Smith had beaten her. Defense counsel argued, “She made up a silly story that everyone knew made no sense because she was scared.... It doesn’t prove that she committed a robbery.”
The jury acquitted appellant of robbery and petty theft and convicted her of receiving the stolen cell phone.
DISCUSSION
Appellant contends the trial court erred in failing to instruct the jury sua sponte on the defense of duress.
“A trial court has a sua sponte duty to instruct regarding a defense if there is substantial evidence to support the defense and it is not inconsistent with the defendant’s theory of the case. [Citation.]” (People v. Saavedra (2007) 156 Cal.App.4th 561, 567 (Saavedra.) In determining whether the evidence is sufficient to warrant a jury instruction, the trial court does not assess the credibility of the defendant’s evidence, only whether there was evidence which, if believed by the jury, is sufficient to raise a reasonable doubt. (People v. Cole (2007) 156 Cal.App.4th 452, 483-484.) Any doubts as to the sufficiency of the evidence to warrant instructions are resolved in favor of the accused. (Id. at p. 484.)
“Duress is available as a defense to defendants who commit a crime ‘under threats or menaces sufficient to show that they had reasonable cause to and did believe their lives would be endangered if they refused.’ [Citations.] An essential component of this defense is that the defendant be faced with a direct or implied demand that he or she commit the charged crime.” (Saavedra, supra, 156 Cal.App.4th at p. 567.) A fear of future harm to one’s life does not support a duress defense. (People v. Heath (1989) 207 Cal.App.3d 892, 900 (Heath).) Additionally, a threat of unspecified harm to be carried out at some undefined time, a “phantasmagoria of future harm, ” is insufficient. (People v. Otis (1959) 174 Cal.App.2d 119, 125.)
Appellant argues that the evidence established that Smith’s prior threats and beatings against her “prompted [her] to possess, retain, and use Ramirez’s cell phone as ordered by Smith.” She also argues that Smith never left her side on the night of the offense. Thus, she asserts the evidence “clearly indicated that in her presence Smith posed a threat of immediate harm to [her].”
The People assert the duress instruction would have been inconsistent with the defense theory that when Smith handed appellant the cell phone, she did not know it belonged to Ramirez. They also assert that, since appellant testified Smith gave her the phone while they were at the hospital, there was no basis to conclude that she received the stolen phone under an immediate threat of death.
We conclude the court did not have a sua sponte duty to instruct the jury on a duress defense. A duress defense would have been inconsistent with appellant’s theory that she did not know who owned the cell phone when Smith handed it to her. In addition, the evidence does not establish that at the time Smith handed appellant the cell phone she was responding to an immediate threat of danger to her life, with “no time to formulate what is a reasonable and viable course of conduct nor to formulate criminal intent.” (Heath, supra, 207 Cal.App.3d at p. 900.) She testified she did not tell the officer that Smith gave her the cell phone because Smith was present in the hospital room. She said, “I didn’t want the whole problem going on. He kept screaming my name.” Assuming Smith had physically and emotionally abused appellant in the hours prior to the incident, there is no evidence that at the time she took the cell phone from Smith while inside the hospital room, she believed that her life would be in immediate danger if she refused to take the cell phone. While she may have reasonably believed she faced a threat of future harm after she and Smith left the hospital, there is no evidence establishing a threat of immediate harm. No instructional error is demonstrated.
DISPOSITION
The judgment is affirmed.
We concur: NEEDHAM, J., BRUINIERS, J.