Opinion
A140280
10-07-2015
THE PEOPLE, Plaintiff and Respondent, v. STEPHEN KIDWELL JACOBS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 51308089)
Stephen Kidwell Jacobs appeals from his conviction for robbery. (Pen. Code, § 211.) He contends (1) the court erred in allowing the prosecutor to introduce evidence of his drug addiction to show his motive for the robbery; (2) his attorney did not provide effective assistance because she inadequately objected to the admission of the evidence; (3) the prosecutor committed misconduct by referring to the incident as a robbery; (4) the prosecutor incorrectly argued the "force or fear" element of robbery; and (5) the court should have instructed on grand theft from the person (§ 487, subd. (c)) as a lesser included offense. We will affirm the judgment.
Except where otherwise indicated, all statutory references are to the Penal Code.
I. FACTS AND PROCEDURAL BACKGROUND
An information charged Jacobs with second degree robbery (§§ 211, 212.5, subd. (c)) and alleged that the offense was a serious or violent felony (§§ 667.5, 1170, subd. (h)(3)(A), 1192.7, subd. (c)). The matter proceeded to a jury trial.
A. The Prosecution's Case-in-Chief
1. Jacobs's Drug Use
Jacobs lived with his friend, James McCullough, in McCullough's Manteca apartment during parts of June, July, and the first half of August 2012.
On August 12, 2012, after Jacobs had received his prescription medications, McCullough observed him acting incoherent, "loopy," and "too relaxed." The next day, Jacobs blamed his behavior on an incorrect dosage of medication and said he would talk to his doctor to get the dosage changed or new medication.
On August 15, 2012, Jacobs "became inebriated again," apparently after consuming alcohol. Jacobs was slurring his words, unable to focus, and not always able to stand. McCullough's girlfriend found 18 bottles of medication in Jacobs's backpack, including "a lot of painkillers," OxyContin, an empty bottle of Tylenol with codeine, and a "muscle relaxer." More than half of the bottles were empty, and all of the drugs had been prescribed within the month. Jacobs told McCullough, essentially, that he would die if he was not weaned off Valium slowly. McCullough told Jacobs that he could not live with McCullough anymore and should check into a rehabilitation facility. Jacobs moved to Discovery Bay.
2. The Alleged Robbery to Obtain Drugs
On February 27, 2013, Maria Torres worked at the Safeway in Discovery Bay as a pharmacy technician intern. Around 3:22 p.m., Jacobs approached the pharmacy register and told Torres he wanted to pick up a prescription for a female with the last name of "Stephens." Jacobs appeared confused, was mumbling and sweating, and could not prove his identity. Torres did not see a weapon on Jacobs or suspect he had one; nor did he say he possessed one.
Seeing that Torres was having difficulty understanding Jacobs, pharmacist Diana Lipson took over. Jacobs told Lipson that he was picking up a prescription for a female with the last name of "Stephenson," but was unable to provide her first name. Jacobs appeared nervous and was mumbling and "kind of babbling" as if mentally challenged.
Lipson telephoned a customer named Stephenson, who said she had not sent or authorized anyone to pick up a prescription for her. Lipson reported this to Jacobs, who appeared "confounded," like he "didn't know what he was doing." Lipson told Jacobs to sit in a customer waiting area so she could wait on the next customer and Jacobs could have "a chance to figure out what he wanted."
Minutes later, Jacobs returned to the pharmacy window and Lipson asked him if he knew what he wanted. Jacobs replied, "Yes. I'm robbing you." Jacobs had his hands in the area of his belt buckle. Lipson felt threatened that he might hurt her if she did not comply. According to her testimony at trial, it looked like there could possibly be a bulge or something protruding from his clothing; according to what she told police, she saw a bulge and thought it was a weapon.
Lipson said something to Jacobs like, "Oh, really?" By this, she was not being sarcastic; it was to the effect of, "u-g-h." Jacobs again said, "I'm robbing you" and repeatedly said, "I'm really sorry."
Jacobs told Lipson that he wanted Norco, Valium (10 milligrams) and OxyContin in 10 seconds. Nervous and scared, Lipson told Jacobs, "I can't even fill a prescription in 10 seconds." Jacobs replied, "[W]ell, I want it in 10 seconds." Jacobs was "starting to get nervous and a little bit anxious." Lipson grabbed a bag, placed partially full stock bottles of generic Norco (458 pills) and generic Valium (212 pills) in the bag, and gave the bag to Jacobs. She told him: "Here are your pills. Just take it and leave." Jacobs looked in the bag, asked where the OxyContin was, and said he wanted it. When Lipson replied she did not have any OxyContin, Jacobs walked off with the bag of drugs. Lipson called the police.
Store manager Daniel Bonilla learned of the incident right away and saw that Lipson was upset, scared, and rattled. She told Bonilla: "We just got held up. We just got robbed. I think he had a gun."
Lipson remained visibly shaken when police arrived. After she calmed down a bit, she gave a statement. According to the officer at trial, Lipson recounted that Jacobs told her, "I'm sorry, I'm robbing you," and she replied, "Oh, really?" Lipson did not tell the police that she had seen a weapon or a "bulge" in Jacobs's clothing.
The reporter's transcript of the officer's testimony reads: "Q. What did she say? [¶] A. 'Oh, really?' [¶] Q. And did she say it like that, like kind of a sarcastic tone? [¶] A. That's what she told me." Although not entirely clear, one inference is that the officer indicated that Lipson said "Oh, really" sarcastically to the officer, or even to Jacobs. Lipson testified at trial, however, that she was not being sarcastic when she was speaking to Jacobs, and further testified she was afraid. To the extent there is any discrepancy in the testimony, it was for the jury to sort out.
The police obtained the store's surveillance video of the incident and made a still photo of the robber from the video. It was Jacobs.
On March 5, 2013, police showed Lipson a photo lineup, and she immediately picked out Jacobs's photo as the photo of the robber. Lipson stated, "That's him." Torres also identified Jacobs and was definite in her identification.
B. The Defense Case
Craig Locicero, who had played music with Jacobs for many years, testified that Jacobs was a nonviolent and nonconfrontational person who rarely raised his voice, even when under the influence of drugs or alcohol. Jacobs would, however, angrily "lash out if he was cornered" while under the influence. "That's what addicts do," Locicero opined. Locicero stated that Jacobs was in denial about his drug problem.
Jacobs testified on his own behalf. He acknowledged that a photographic image taken in the Discovery Bay Safeway on February 27, 2013, was a photo of him. Jacobs also testified about his drug history.
Beginning in 2003, Jacobs recounted, work-related shoulder injuries led to him regularly taking different types of painkillers. In 2005, he suffered from posttraumatic stress disorder, which developed into generalized anxiety disorder, for which he self-medicated. By 2005, he was abusing Vicodin, and by 2006, he was abusing Vicodin daily and sometimes mixing it with alcohol. He was also taking Norco (hydrocodone and acetaminophen) and using fentanyl. By 2008, he was lying to doctors and obtaining large quantities of Norco from multiple physicians. In 2012, he was taking Valium and Norco to combat the pain from shoulder surgery. He would sometimes check himself into emergency rooms to obtain Norco because he craved it desperately.
Jacobs testified he had "kicked" his narcotics addiction over several weeks beginning in August 2012 by reading a book, The Presence Process. In February 2013, the month of the alleged robbery, Jacobs was taking Norco with a valid prescription but was no longer addicted to it or abusing any drug. He was also taking prescribed Valium, because he needed to stop his consumption slowly. And he obtained a prescription for Ambien to help him sleep because of severe tinnitus.
On February 27, 2013—the day of the alleged robbery—Jacobs consumed a couple of drinks, took some Ambien, and went to sleep. He claimed that he could not recall anything else of that day.
Jacobs learned of the charges against him in March 2013, after he had moved to Ohio—a move he had planned before February 2013. Jacobs asserted that he was "shocked." He was not a violent person and had never carried a weapon.
Jacobs testified that he never had a plan to rob the Discovery Bay Safeway, and he never formed an intent to rob it. He further claimed that standing with his hands at his waist was just "standing relaxed."
C. The Prosecution's Rebuttal Case
McCullough again took the stand and testified that Jacobs was in denial about his addiction. Jacobs had admitted to McCullough that the 18 pill bottles were his; at least one of those bottles was labeled "OxyContin."
D. Jury Verdict and Sentence
The jury found Jacobs guilty of second degree robbery. The trial court suspended imposition of sentence and placed Jacobs on formal probation for three years upon the conditions, among others, that he serve 342 days in county jail (with 342 days of credit for time served) and enter a residential rehabilitation program.
This appeal followed.
II. DISCUSSION
We consider each of Jacobs's contentions in turn.
A. Admission of Evidence Related to Jacobs's Drug Addiction
Jacobs contends the trial court erred in allowing the prosecution to introduce evidence of his drug addiction—specifically, McCullough's testimony recounting incidents in which Jacobs abused narcotics, and the discovery of his numerous bottles of prescription drugs. Jacobs argues the evidence was prejudicial and likely had a powerful effect on jurors out of proportion to its probative value. We find no error.
1. Background
By written motion in limine, the prosecutor proffered that Jacobs was a prescription drug addict; he sought admission of evidence that McCullough kicked Jacobs out of his home after Jacobs had consumed drugs and alcohol and was found to have 18 prescription pill bottles, nearly empty, for drugs including Vicodin, OxyContin, and codeine. The prosecutor contended the evidence was admissible "to prove motive, intent and identity," noting that Jacobs "specifically requested Vicodin, OxyContin, and Valium when he robbed the Safeway pharmacy."
At the ensuing hearing, defense counsel stated that she thought "the case law does recognize that addiction can come in," but objected that the August 2012 incidents to which McCullough would testify were so remote in time to the alleged February 2013 robbery that their "great prejudicial effect" would outweigh their "little probative value."
The next day, the court indicated that the prosecution was entitled to show the extent of Jacobs's drug addiction "in order to show motive which goes to identity." The court asked the prosecutor, however, why motive was relevant "if identity is not being contested." The prosecutor replied that Jacobs's motive to obtain drugs helped to satisfy the "intent to steal" element of robbery.
Defense counsel did not contend the evidence was irrelevant to intent. Instead, she stated that she would request a voluntary intoxication instruction because she wanted to present evidence that at the time of the charged crime Jacobs "was voluntarily intoxicated by a mix of alcohol and Ambien." The court informed counsel that such a defense would "open the door" to the prosecutor "to show anything that he can about intent including motive." Defense counsel replied that she was nonetheless requesting the voluntary intoxication instruction. The court again warned counsel: "[I]f I do allow a theory of voluntary intoxication, that's going to open the door for the prosecution to put in all the evidence of motive that they have." McCullough thereafter took the stand and testified to the evidence that Jacobs now challenges.
2. Law
"Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (§ 211.) To establish the offense, the prosecutor therefore must prove, among other things, that the defendant (1) used force or fear to take the property or to prevent the person from resisting, and (2) when using force or fear to take the property, he intended to deprive the owner of it permanently. (CALCRIM No. 1600.)
Evidence of a defendant's narcotics addiction is admissible if it is directly connected to the commission of the charged offense. (People v. Felix (1994) 23 Cal.App.4th 1385, 1392-1394 [evidence admissible where defendant told the police the reason he burglarized a home was to sell the items to get money for drugs]; People v. Copeland (1959) 169 Cal.App.2d 713, 715 [defendant's addiction to drugs admissible where he denied forging drug prescriptions for similar drugs]; Evid. Code, § 1101, subd. (b) [evidence of prior acts admissible if relevant to prove motive or intent].) It is inadmissible, however, if the use of narcotics is only connected to a material fact " 'remotely or to an insignificant degree.' " (People v. Cardenas (1982) 31 Cal.3d 897, 906 (Cardenas) [inadmissible where defendant was under the influence of narcotics at the time of arrest five days after robbery]); People v. Davis (1965) 233 Cal.App.2d 156, 157-162 [inadmissible where defendant was under the influence of narcotics when arrested over a week after the robbery]; People v. Bartlett (1967) 256 Cal.App.2d 787, 789-790, 793-794 [inadmissible where defendant was under the influence of narcotics when arrested several days after the burglary]; see Evid. Code, § 352.)
We review the trial court's ruling for an abuse of discretion. (People v. Albarran (2007) 149 Cal.App.4th 214, 224-225.)
3. Analysis
It was not unreasonable to conclude that the evidence of Jacobs appearing "loopy" after consuming prescription drugs, asserting he needed to be weaned off Valium slowly, and possessing 18 bottles of drugs including "painkillers," OxyContin, Tylenol, and a muscle relaxer, was directly relevant to whether Jacobs had an intent to permanently deprive his victim of the Norco, OxyContin, and Valium that he had demanded from Lipson. It was therefore not an abuse of discretion for the court to conclude the proffered evidence was sufficiently probative of a material fact (Evid. Code, §§ 350, 1101, subd. (b)) and that its probative value was not substantially outweighed by a probability that it would create substantial danger of undue prejudice (Evid. Code, § 352).
Jacobs nonetheless argues that the evidence was not admissible to show intent because (1) he did not contest that he harbored the requisite intent and (2) there was not a sufficient nexus between his prior acts and the charged crime. (Citing People v. Ewoldt (1994) 7 Cal.4th 380, 406.) His arguments are baseless.
a. Contested
Jacobs maintains that the sole question at trial was whether he used force or fear to take the bag of prescription drugs, and motive and intent were "never at issue in this case."
But Jacobs is incorrect: intent was at issue. At the in limine hearing, defense counsel never indicated that the intent element of robbery would not be challenged, but to the contrary suggested she was going to dispute the intent allegation by introducing evidence of Jacobs's intoxication. Moreover, Jacobs testified under oath that he never formed an intent to rob Safeway and never had a plan to rob the pharmacy. He also claimed that his standing with his hands at his waist was just "standing relaxed." And in closing argument, defense counsel told the jury: "Similarly with intent, you start from the presumption that Mr. Jacobs did not have the requisite criminal intent. He didn't have that intent. And only if the prosecutor can prove to you beyond a reasonable doubt what his intentions were, only then can you find they have met that element." (Italics added.)
b. Nexus Between Addiction Evidence and Intent
Jacobs urges that a defendant's use of drugs, without more, is insufficient for the evidence of drug use to be admissible, citing People v. Reid (1982) 133 Cal.App.3d 354 (Reid). However, Reid is inapposite.
In Reid, evidence of the defendant's drug addiction was held to be inadmissible to show a motive for committing robberies of a gas station, a donut shop, and two dry cleaners, because the prosecution had not established a reasonable basis for inferring the cost of the defendant's habit (and, therefore, his need for money). (Reid, supra, 133 Cal.App.3d at pp. 362-363.) In other words, the prosecutor had to show that the defendant needed money for drugs, not just that he used drugs. Here, however, Jacobs was accused of robbery not to get money, but to get drugs; there is an obvious nexus between addiction to painkillers, Valium, and OxyContin, and an intent to steal Norco, Valium, and OxyContin.
Indeed, this distinction is made crystal clear in one of the very cases Jacobs cites. (People v. Holt (1984) 37 Cal.3d 436 (Holt).) As our Supreme Court stated in Holt decades ago: "[T]he cases which have upheld admission of evidence of an accused's drug addiction involved crimes where obtaining narcotics was the direct object of the crime or where a violation of Health and Safety Code was charged. In cases where the object of the offense was to obtain money for drugs, . . . evidence of the accused's drug use has been found to be inadmissible." (Id. at p. 450, italics added, citing Cardenas, supra, 31 Cal.3d at p. 906 and "cases cited therein.")
Jacobs fails to establish error in the admission of the evidence.
4. The Purported Error Was Harmless
Even if the court had erred in allowing the evidence related to Jacobs's drug use, any such error was harmless in light of the ample other evidence that Jacobs committed a robbery. Lipson testified that Jacobs told her, "I'm robbing you," with his hands at the area of his belt buckle, and she decided to comply with his demands because she thought he might have a weapon. Jacobs said he wanted Norco, Valium, and OxyContin in 10 seconds, and when Lipson replied that she could not even fill a prescription in 10 seconds, Jacobs became anxious and insisted she do it anyway. Frightened, Lipson handed over hundreds of Safeway's generic Norco and Valium pills in stock bottles, and Jacobs left with them. Lipson appeared to multiple people to be upset, scared, rattled, and visibly shaken.
From this evidence, the prosecutor established that Jacobs took medication that was not his, from Safeway pharmacist Lipson's possession and immediate presence, against her will. Although Jacobs claimed he did not use fear to accomplish the taking and had no intent to steal, the evidence that he told Lipson "This is a robbery," had his hands at his belt, insisted she give the drugs to him within 10 seconds, and left with the drugs—along with the evidence Lipson was in fear as she put the drugs in a bag and gave them to him—readily satisfied those elements. We find no reasonable probability that Jacobs would have obtained a more favorable result if the court had not allowed McCullough's testimony. (People v. Watson (1956) 46 Cal.2d 818, 836.)
B. Ineffective Assistance of Counsel
Because the trial court did not commit prejudicial error in allowing McCullough's testimony concerning Jacobs's addiction to drugs and the incidents of his drug use, there was no prejudice in defense counsel's failure to mount a more complete objection to the evidence. And even if, as Jacobs now insists, his attorney's decision to dispute the intent element was misguided, there is no reasonable probability that but for counsel's decision the result would have been more favorable for Jacobs. Accordingly, based on the record before us, Jacobs has no viable claim for ineffective assistance of counsel. (Strickland v. Washington (1984) 466 U.S. 668.)
C. Prosecutor's Reference to "Robbery"
Jacobs contends the prosecutor committed misconduct by "continually referring" to the pharmacy incident as a "robbery" when questioning prosecution witnesses Torres and Lipson. We disagree.
1. Law
A prosecutor's conduct violates the federal Constitution if it infects the trial with such unfairness as to make the conviction a denial of due process. (People v. Hill (1998) 17 Cal.4th 800, 819 (Hill).) Conduct by a prosecutor that does not render the trial fundamentally unfair may still constitute misconduct under state law if it involves using deceptive or reprehensible methods in an attempt to persuade the court or the jury. (Ibid.)
We review a prosecutorial misconduct claim de novo. (People v. Uribe (2011) 199 Cal.App.4th 836, 860.) In so doing, we determine whether there is a reasonable likelihood that the jury would have understood or applied the prosecutor's remarks in an improper or erroneous manner. (People v. Spector (2011) 194 Cal.App.4th 1335, 1403.)
2. Facts
During the prosecutor's direct examination of Torres, the following exchange occurred: "Q. So that bag in the individual's hand with the green jacket, is that the same bag you saw being removed from the counter from Ms. Lipson? [¶] A. Yes. [¶] Q. Is that the person that robbed you? [¶] A. Yes. [¶] [Defense Counsel]: I'm going to object and move to strike the last sentence. [¶] THE COURT: Overruled. Hang on a second. It is not your theory that [Jacobs] robbed Ms. Torres. [¶] [The Prosecutor]: True. Excuse me. But her as an agent of the store. [¶] [Defense Counsel]: But I— [¶] THE COURT: Whether there was a robbery or not will be for the jury to decide, but you may use that in this context." (Italics added.)
During the prosecutor's direct examination of Lipson, these two exchanges took place, without defense objection: "Q. And how long had you been working as a pharmacist at Safeway back in February? [¶] A. Oh, about five years. [¶] Q. On this date, do you recall anything abnormal occurring at around 3:20 in the afternoon? [¶] A. I was robbed. [¶] Q. Okay. Let's step through that. [¶] How do you remember first coming into contact with the individual that robbed you? [¶] A. The intern that was working there was having a—I could see she was speaking to someone, and she was having a difficult time so then I stepped in." "[¶] Q. At what point was it that you actually became fearful that, you know, this really is a robbery? [¶] A. Well, I know I felt uncomfortable because the way the pharmacy is, . . . the counter drops down where the registers are. . . . [¶] . . . I slowly moved myself behind the higher counter because more of my body was protected by a counter." (Italics added.)
As noted, Jacobs's attorney did not object to the prosecutor's use of the word "robbed" or "robbery" at this point. Generally, a "claim of prosecutorial misconduct is not preserved for appeal if [the] defendant fails to object and seek an admonition, if an objection and jury admonition would have cured the injury." (People v. Crew (2003) 31 Cal.4th 822, 839 (Crew).) Respondents assume, without conceding, that Jacobs's one objection at trial preserved his appellate challenge to all of the purported instances of misconduct.
3. Analysis
Jacobs contends the prosecutor's reference to the event at the pharmacy as a robbery was "hybrid" misconduct, including an elicitation of an opinion from the witnesses that a robbery was committed and a prosecutorial announcement that, based on his experience, the elements of robbery were present.
Jacobs does not cite any decision holding that a prosecutor's use of the word "robbery" in questioning witnesses in a robbery prosecution is deceptive or reprehensible or infects a trial with unfairness. The prosecutor simply used the words "robbed" and "robbery" to refer to the incident constituting the charged offense, adopting the witness's statement or reiterating the People's position in the case. Although perhaps leading and argumentative, the prosecutor was not vouching for the evidence, attempting to trick the jury, or engaging in any deceptive or reprehensible method of advocacy. Indeed, "robbery" is the term that Jacobs himself used at the scene of the offense when he convinced Lipson to hand over the drugs, so it is hardly a surprise that the incident would be described in that manner.
Moreover, there is no reasonable likelihood that the jury understood from the prosecutor's use of the word "robbed" or "robbery" that the question of whether Jacobs had committed a robbery—within the legal definition—was conclusively established. When the matter first arose during Torres's direct examination, the court stated that "[w]hether there was a robbery or not will be for the jury to decide." (Italics added.) The jury also knew, from the closing arguments of both the prosecutor and defense counsel, that Jacobs could not be convicted of robbery unless the prosecutor had actually proved that Jacobs had used force or fear to take the drugs and had the specific intent to permanently deprive Lipson and Safeway of the drugs: the prosecutor urged the jury to find that these elements were met and Jacobs had committed a robbery, while defense counsel urged the jury to the contrary. In fact, defense counsel specifically apprised the jury that the use of the word "robbery" does not necessarily mean that all of the elements of the crime of robbery were established. Counsel stated: "The common understanding of the word robbery is really more like a taking. People often say my house got robbed when they weren't home. People say robbery when it means taking something that isn't theirs. So whether that person went into the pharmacy and said, I'm robbing you, my client went into the pharmacy and said, I'm sorry, I'm robbing you, that doesn't necessarily contain this implicit understanding I'm going to do all the legal elements of the crime of robbery right now."
In addition, the court twice instructed the jurors that they had to decide the facts of the case based only on the evidence. (CALCRIM Nos. 104, 200.) The court instructed the jurors that "attorneys' questions are not evidence," that "[o]nly the witnesses' answers are evidence," and not to "assume that something is true just because one of the attorneys asks a question[] that suggests or assumes that fact to be true." (CALCRIM No. 104.) The court also instructed the jury on the presumption of innocence, on the prosecution's burden of proof beyond a reasonable doubt, and that "[t]he fact that a criminal charge has been filed against the defendant is not evidence that the charge is true." (CALCRIM No. 220.) We presume jurors are intelligent persons capable of understanding and following the instructions given them. (People v. Yoder (1979) 100 Cal.App.3d 333, 338.)
Jacobs fails to demonstrate prosecutorial misconduct.
D. Prosecutor's Statement of the Law Regarding "Force or Fear"
Jacobs contends the prosecutor committed misconduct in his closing argument by misstating the "force or fear" element of robbery. (Hill, supra, 17 Cal.4th at pp. 829-831 [even unintentional misstatements of the law may constitute misconduct if it can reasonably be interpreted as suggesting to the jury that the prosecution did not have the burden of proving every element of the crime beyond a reasonable doubt].) Specifically, he argues that the prosecutor stated implicitly or explicitly that it was sufficient that the victim felt fear as a result of the actions of a robbery, and therefore it would not have to find that the defendant used fear. He is incorrect.
1. Law
To establish the crime of robbery, the prosecutor must prove, among other things, that the defendant "used force or fear to take the property or to prevent the person from resisting." (CALCRIM No. 1600.) Although the taking must be accomplished by force or fear, the defendant need not have intended the victim to experience force or fear—only to deprive the victim of the property permanently. (People v. Anderson (2011) 51 Cal.4th 989, 995-996 (Anderson).) The requisite fear need not be caused by an express threat or the use of a weapon. (People v. Flynn (2000) 77 Cal.App.4th 766, 771 (Flynn); People v. Morehead (2011) 191 Cal.App.4th 765, 775 (Morehead).) It may be established by circumstantial evidence, including an unlawful demand that implies a threat of harm. (Morehead, supra, 191 Cal.App.4th at p. 775.) And while the victim must actually become afraid, the fear need not be extreme: it need only be enough to cause the victim to comply with the demand for the property. (People v. Cuevas (2001) 89 Cal.App.4th 689, 698 (Cuevas); Morehead, supra, 191 Cal.App.4th at pp. 774-775.) In short, the prosecutor must show that the defendant used fear, and the victim was compelled by fear.
2. Facts and Analysis
The prosecutor stated in his closing argument: "There are other principles of law that help further explain fear. What those principles state is that fear is just common-sense fear. Was it reasonable to be fearful in that situation? I mean, some of the more general principles are the requisite fear need not be the result of an express threat or use of a weapon. So there [are] legal principles that say you don't even need to use a weapon. If you can scare somebody, if you are a big hulky Mike Tyson circa '89 type, and you go in there and say I'm going to knock you out if you don't give me the pills, that's sufficient. If you made them reasonably fearful, that's enough. Whether or not a weapon is present or whether or not there was a suggestion of a weapon is not a part of it. They need to be fearful. We got that evidence. I'll talk about it a little more, but let me go over a couple more principles."
Defense counsel did not object to these statements; therefore, any error with respect to the statements is forfeited. (Crew, supra, 31 Cal.4th at p. 839.) At any rate, the prosecutor was correct in stating that the element of fear does not require an express threat or weapon. (Flynn, supra, 77 Cal.App.4th at p. 771; Morehead, supra, 191 Cal.App.4th at p. 775.) He was also correct in stating that the victim must be fearful. (Cuevas, supra, 89 Cal.App.4th at p. 698.)
Jacobs contends in his reply brief that defense counsel did object to the prosecutor's statements in this passage. This objection, however, was to the prosecutor's subsequent argument that the victim's fear need not be extreme to constitute robbery, and it would be sufficient if it made the victim willing to comply with the request.
Later, the prosecutor stated: "So the intent to permanently deprive, and I want to—remember, when you are reading this, it is not the intent to rob somebody. The intent is clearly—he doesn't even need to intend to cause fear. Say that same hypothetical. He is Mike Tyson and he doesn't know how tough and [']roided out he looks. And he goes in and says, Give me drugs. He doesn't have to intend to be intimidating, if it was reasonable that the person felt fear based upon that even without words, it doesn't matter. But with regard to the intent to permanently deprive, it needs to be formed during or before and we have before. The defendant used force or fear."
Again, defense counsel did not object, and any error was forfeited. (Crew, supra, 31 Cal.4th at p. 839.) Furthermore, it is true that the defendant does not have to intend to cause fear; the prosecutor need only establish that the defendant had the intent to permanently deprive. (Anderson, supra, 51 Cal.4th at pp. 995-996.)
The prosecutor thereafter remarked to the jury: "And people typically in thefts they pick something up and put it in their pockets. They don't have to go in with a disguise. It is a bigger thing as you are going to take money or something, but that is not part of the instruction. Part of the instruction is you don't have to have the fear that equates to having your baby taken. That's not part of it. I mean, as you heard the Court state, the fear just needs to be sufficient for you to comply with the request and believe some harm may come to you. [¶] [Defense Counsel]: Objection. Misstates the law. [¶] THE COURT: Overruled."
Defense counsel objected to this statement, so the matter is preserved for appeal. But the upshot of the prosecutor's remark was simply that the victim's fear need not be extreme, but merely sufficient to compel the victim to comply with the perpetrator's request. Jacobs does not establish that this was a misstatement of the law. (See Morehead, supra, 191 Cal.App.4th at pp. 774-775.)
Finally, the prosecutor stated: "It is the subjective feeling of the victim in the case. And in this case, that's Ms. Lipson, and all of the evidence supports that she had enough fear that she stepped to the side to avoid any possible attack and complied with the request."
Defense counsel did not object to this statement, and any purported error was therefore forfeited. (Crew, supra, 31 Cal.4th at p. 839.) Furthermore, it is true that the prosecutor must show that the victim subjectively experienced fear. (Cuevas, supra, 89 Cal.App.4th at p. 698.) And to the extent the prosecutor pointed in this passage to the need to find the victim subjectively held a feeling of fear, he did not assert that the jury could convict Jacobs of robbery without also finding that the defendant used this fear to take the property.
Indeed, as to all of the prosecutor's challenged remarks—individually and collectively—there is no reasonable likelihood that the jury would have construed or applied them to convict Jacobs of robbery without finding that he took Safeway's property from pharmacist Lipson by means of fear. Near the beginning of his summation, the prosecutor specifically told the jury that he did have to prove Jacobs used force or fear. He asserted that the offense of robbery required proof that the defendant took property from another person's possession and against their will, and that the defendant "used force or fear to take it." (Italics added.) The prosecutor also read the language of CALCRIM No. 1600 setting forth the elements of robbery, and told the jury "element 4 is the defendant used force or fear to take the property or to prevent the person from resisting."
In addition, defense counsel emphasized to the jury that "the DA has to prove not only that there was a taking but that there was a taking by means of fear or force." (Italics added.) And counsel recited this requirement as an element of robbery: "So in robbery—in robbery there are five elements. And [the prosecutor] went through some of them. The defendant took property that was not his or her own; the property was taken from another person's possession; and the property was taken against that person's will; and the defendant used force or fear to take the property; and when he used force or fear he intended to permanently deprive." (Italics added.)
Finally, the trial court instructed the jury that, in order to find that Jacobs committed robbery, the jury would have to find beyond a reasonable doubt that he "used force or fear to take the property or to prevent the person from resisting" and, when he "used force or fear to take the property, he intended to deprive the owner of it permanently." (See CALCRIM No. 1600, italics added.) The court further instructed that " '[f]ear,' as used here, means fear of injury to the person, himself or herself." And the court also admonished the jury that it must follow the law as stated by the court: "You must follow the law as I explain it you even if you disagree with it. If you believe that the attorneys' comments on the law conflict with my instructions, you must follow my instructions." (CALCRIM No. 200.) We presume the jury understood and followed the instructions the court gave them. (People v. Wilson (2008) 44 Cal.4th 758, 803; see Brown v. Payton (2005) 544 U.S. 133, 146-147).
Jacobs fails to demonstrate error.
E. Not Instructing on Grand Theft from the Person as a Lesser Included Offense
Jacobs contends the trial court erred by failing to instruct the jury on grand theft from the person (§ 487, subd. (c)) as a lesser included offense of robbery. We find no reversible error.
The trial court must instruct the jury on a lesser included offense "if there is substantial evidence from which a jury could reasonably conclude that the defendant committed the lesser, uncharged offense but not the greater, charged offense." (People v. Thomas (2012) 53 Cal.4th 771, 813 (Thomas).)
In the matter before us, the trial court instructed the jury on robbery (CALCRIM No. 1600). It also instructed the jury on petty theft (§ 484) as a lesser included offense to robbery (CALCRIM No. 1800): "The defendant is charged as a lesser charge to Count 1 with petty theft. To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. the defendant took possession of property owned by someone else; [¶] 2. the defendant took the property without the owner's consent; [¶] 3. when the defendant took the property, he intended to deprive the owner of it permanently; and [¶] 4. the defendant moved the property, even a small distance, and kept it for any period of time[,] however brief. [¶] For petty theft, the property taken can be of any value, no matter how slight."
The offense of grand theft from the person is another lesser included offense to robbery. For grand theft from the person, the property must be removed from the victim's personal presence while the property is physically attached to (or in contact with) the person. Like petty theft, no force is required. (People v. Huggins (1997) 51 Cal.App.4th 1654, 1656-1657; People v. Williams (1992) 9 Cal.App.4th 1465, 1472; CALCRIM No. 1801 ["[t]heft is from the person if the property taken was in the clothing of, on the body of, or in a container held or carried by, that person"].) Jacobs contends there was substantial evidence that he committed grand theft from the person.
However, a failure to instruct on a lesser included offense in a noncapital case generally does not require reversal " 'unless an examination of the entire record establishes a reasonable probability that the error affected the outcome.' [Citation.]" (Thomas, supra, 53 Cal.4th at p. 814.) No such reasonable probability exists if the jury necessarily decided the factual question posed by the omitted instruction adversely to the defendant under properly given instructions. (People v. Beames (2007) 40 Cal.4th 907, 928; People v. Ramkeesoon (1985) 39 Cal.3d 346, 351-352.)
Here, as mentioned, the court instructed the jury as to petty theft as well as robbery. By determining that Jacobs was guilty of robbery (requiring the use of force or fear), in lieu of petty theft (not requiring the use of force or fear), the jury necessarily determined that Jacobs used force or fear to take the medication from Safeway's Lipson. The jury thus resolved the issue of the use of force or fear adversely to Jacobs, and it would have convicted Jacobs of robbery whether or not the court had also given instructions on grand theft from the person. Accordingly, any error in omitting instructions on grand theft from the person did not affect the outcome in the case. Indeed, even to the extent that Jacobs complains the court deprived him of his theory of the case, the omission of the instruction was harmless beyond a reasonable doubt.
Furthermore, in light of the overwhelming evidence of robbery, there is no reasonable probability that the jury would not have convicted Jacobs of robbery even if the court had instructed on grand theft from the person.
III. DISPOSITION
The judgment is affirmed.
/s/_________
NEEDHAM, J.
We concur. /s/_________
JONES, P.J.
/s/_________
BRUINIERS, J.