Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County No. 1097055 Scott T. Steffen, Judge.
Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Sarah J. Jacobs, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HILL, J.
A jury convicted Dashelle Sherree Harris (defendant) of robbery (Pen. Code, § 211; counts 1, 2, & 3) and assault with a semiautomatic firearm (§ 245, subd. (b); counts 6 & 7). In counts 1, 2, and 3, the jury found defendant took property in excess of $50,000 (§ 12022.6). With respect to all counts, it was found that one or more of the principals were personally armed with a firearm in the commission of the offenses (§ 12022, subd. (a)). Defendant appeals on the grounds that: (1) insufficient evidence supports her conviction of robbery in count 2; (2) the trial court erred in instructing the jury on the natural and probable consequences doctrine concerning the charges of assault with a semiautomatic firearm; (3) the trial court erred in failing to instruct the jury sua sponte on the lesser included offense of assault with a firearm in counts 6 and 7; (4) the armed principal enhancements in counts 6 and 7 were unauthorized; and (5) the trial court erred in calculating defendant’s actual days of custody credits. We agree with defendant’s last two contentions, and will modify the judgment accordingly. In all other respects, the judgment is affirmed.
Further statutory references are to the Penal Code unless otherwise specified.
FACTS
On August 24, 2005, two armed men ran into the Valley First Credit Union in Turlock and ordered credit union employees to open the vault and cash drawer, from which they took over $80,000, before fleeing in the trunk of a car driven by defendant. When, shortly thereafter, the car was stopped by police, defendant’s codefendants, Rashad Bledsaw and Elmar Scott, were found hiding in the trunk, along with two semiautomatic pistols, and large quantities of cash.
DISCUSSION
I. Sufficiency of the Evidence
Defendant contends there was insufficient evidence to support her robbery conviction in count 2, because the alleged victim, Carmen Raya, was not “on duty” and, therefore, could not have been in constructive possession of her employer’s property during the robbery.
A. Background
Raya testified that on August 24, 2005, she was an employee of the Valley First Credit Union. Around 10:54 a.m., she was “getting ready to go to lunch” when she saw one of the robbers walk in. He ordered her into the vault room, where he pushed her down on the floor along with several other employees.
After the two robbers took money from the cash drawer in the vault, they wanted to get money from the ATM. Raya got up with her manager to go to the ATM room. After Raya realized she did not have the key for the ATM, the robbers left the premises.
On cross-examination, defense counsel questioned Raya, in relevant part, as follows:
“Q. And you had already clocked out to go out on lunch?
“A. I had turned off my computer.
“Q. And you were going to take your lunch hour?
“A. Correct.
“Q. But for the fact this robbery started?
“A. Yes.
“Q. How long was your lunch?
“A. An hour.
“Q. One hour lunch, okay.
“A. Uh-huh.
“Q. So this really did happen on your lunch hour basically?
“A. Pretty much, yes.”
On cross-examination, Joanna Risen, another credit union employee, testified that it was her understanding that, when an employee takes “a 15-minute break, you’re still on duty, but if you leave for lunch, you’re off.”
B. Analysis
“We often address claims of insufficient evidence, and the standard of review is settled. ‘A reviewing court faced with such a claim determines “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” [Citations.] We examine the record to determine “whether it shows evidence that is reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.” [Citation.] Further, “the appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.”’ [Citations.]” (People v. Moon (2005) 37 Cal.4th 1, 22.)
“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.) “A person from whose immediate presence property was taken by force or fear is not a robbery victim unless, additionally, he or she was in some sense in possession of the property.” (People v. Scott (2009) 45 Cal.4th 743, 749 (Scott).)
In Scott, supra, 45 Cal.4th 743, a case relied on by defendant, our Supreme Court resolved the conflict in the Courts of Appeal regarding whether all employees of a business may be separate victims of a robbery. (Id. at p. 746.) In that case, of the three employees who were named victims of the robbery, two hid themselves during the duration of the crime. (Id. at p. 747.) Only the manager had access to the safe, and it was she whom the robbers confronted and who handed over the money. (Ibid.) Scott affirmed the decision of the Court of Appeal, which determined that the trial court had correctly instructed the jurors that “all employees on duty during a robbery have constructive possession of their employer’s property.” (Id. at p. 746.)
“Although not every employee has the authority to exercise control over the employer’s funds or other property during everyday operations of the business, any employee has, by virtue of his or her employment relationship with the employer, some implied authority, when on duty, to act on the employer’s behalf to protect the employer’s property when it is threatened during a robbery.” (Scott, supra, 45 Cal.4th at p. 754.) An employee’s authority to protect the employer’s property is recognized in Civil Code section 50. (Scott, supra, at p. 754.) In addition, “it is reasonable to infer that the Legislature intended that all on-duty employees have constructive possession of the employer’s property during a robbery, because such a rule is consistent with the culpability level of the offender and the harm done by his or her criminal conduct.” (Id. at p. 755.)
Civil Code section 50 provides: “Any necessary force may be used to protect from wrongful injury the person or property of oneself, or of a wife, husband, child, parent, or other relative, or member of one’s family, or of a ward, servant, master, or guest.”
Relying on Scott, defendant contends insufficient evidence supports her conviction of the robbery of Raya because “although Raya was an employee of the credit union and she was present during the robbery, she was not on duty at that time” and the evidence failed to “establish beyond a reasonable doubt that Raya had express or implied authority over the cash in the locked cash drawer in the vault while she was off duty, as required to sustain the conviction on count 2.”
Defendant’s argument focuses on Raya’s statement that she had turned off her computer after defense counsel asked her whether she had “clocked out” to go on her lunch break. According to defendant, Raya’s testimony establishes she was off duty at the time of the robbery. We disagree. The overall gist of Raya’s testimony was that she was preparing to take her lunch break but was prevented from doing so by the appearance of the robbers. Viewing the evidence in the light most favorable to the judgment, a reasonable jury could find that Raya was still “on duty” and had a “special relationship” with her employer at the time of the robbery. (Scott, supra, 45 Cal.4th at pp. 752-755.)
However, even if Raya was no longer on duty at the time of the robbery under the credit union’s rules concerning lunch breaks, it does not necessarily mean she was no longer on duty within the meaning of Scott. In our view, such a conclusion would be contrary to Scott’s focus on the defendant’s culpability, instead of the particulars of the victim’s employment relationship. (Scott, supra, 45 Cal.4th at p. 755.) Scott explained that its construction of the robbery statute “is consistent with the culpability level of the offender and the harm done by his or her criminal conduct. As a matter of common knowledge and experience, those who commit robberies are likely to regard all employees as potential sources of resistance, and their use of threats and force against those employees is not likely to turn on fine distinctions regarding a particular employee’s actual or implied authority.” (Ibid.)
The forgoing rationale is applicable here. The circumstances clearly demonstrated the robbers viewed Raya as a credit union employee and as a potential source of resistance at the beginning of the robbery, when she was forced to lie down inside the vault, and, then, later, as a means of stealing cash from the ATM, when it appeared she had the key. On this record, we do not believe the robbers would have altered their criminal conduct had they learned Raya had just turned off her computer and was technically on her lunch break. Based on the evidence, Raya could properly be considered an on-duty employee under the court’s reasoning in Scott, with constructive possession of the credit union’s property at the time of the robbery.
II. Failure to Instruct on an Essential Element
Defendant contends the trial court erred in instructing the jury, both orally and in writing, on the natural and probable consequences doctrine under CALCRIM No. 402, by substituting the non-target offense of assault with a deadly weapon with the target offense of robbery, so that the instruction read, in part, as follows:
Judicial Council of California Criminal Jury Instructions (CALCRIM).
“To prove that a defendant who did not personally commit an assault with a semi-automatic firearm guilty of that crime, the People must prove that: [¶] 1. The defendant is guilty of robbery. [¶] 2. During the commission of robbery, a coparticipant in that robbery committed the crime of assault with a semi-automatic firearm. [¶] 3.Under all circumstances, a reasonable person in the defendant’s position would have known that the commission of robbery was a natural and probable consequence of the commission of the robbery.” (Italics added.)
Based on the erroneous substitution of “robbery” for “assault with a semiautomatic firearm” in the third element of CALCRIM No. 402, defendant claims the trial court failed to instruct the jury on an element essential element and her convictions of assault with a semiautomatic firearm in counts 6 and 7 must, therefore, be reversed. We disagree.
“In reviewing claims of instructional error, we look to whether the defendant has shown a reasonable likelihood that the jury, considering the instruction complained of in the context of the instructions as a whole and not in isolation, understood that instruction in a manner that violated his constitutional rights. [Citations.] We interpret the instructions so as to support the judgment if they are reasonably susceptible to such interpretation, and we presume jurors can understand and correlate all instructions given. [Citations.]” (People v. Vang (2009) 171 Cal.App.4th 1120, 1129.)
Despite the erroneous substitution of the target offense for the non-target offense in CALCRIM No. 402, we find the instruction, when read in its entirety, adequately instructed the jury on the natural and probable consequences theory of liability pursued by the prosecution, and there is no reasonable possibility the jury would have understood it could find defendant guilty of the crime of assault with a semiautomatic firearm, if it did not find that the commission of assault with a semiautomatic weapon was a natural and probable consequence of the commission of the robbery under the circumstances in this case. After setting out the three elements quoted above, CALCRIM No. 402 correctly told the jury:
“A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence. If the assault with a semi-automatic firearm was committed for a reason independent of the common plan to commit the robbery, then the commission of assault with a semi-automatic firearm was not a natural and probable consequence of robbery.” (Italics added.)
We presume, as we must, that the jury consists “of intelligent persons who are fully able to understand, correlate and follow the instructions given to them.” (People v. Archer (1989) 215 Cal.App.3d 197, 204.) In light of the correct language in the latter half of the instruction, we believe intelligent jurors would have understood CALCRIM No. 402 to be asking them to determine whether the commission of assault with a semiautomatic firearm in this case was a natural and probable consequence of the commission of the robbery, not whether robbery was a natural and probable consequence of robbery, which would constitute a nonsensical reading of the instruction.
III. Failure to Instruct on Lesser Included Offense
While recognizing there was no evidence the guns used were anything other than semiautomatic firearms, defendant nevertheless contends that an instruction on the lesser included offense of assault with a firearm was warranted in this case because the evidence raised a question as to whether defendant personally knew her codefendants were armed with semiautomatic firearms. In support of her contention, defendant observes there was no evidence she either knew the guns were semiautomatic or had the ability to “discern a semiautomatic firearm from any other handgun.”
“A defendant is entitled to instruction on lesser included offenses, without a request or even over objection, if the evidence raises a question as to whether all of the elements of the charged offense were present, but not when there is no evidence the offense was less than that charged. [Citation.] A lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater offense cannot be committed without committing the lesser. [Citation.]” (People v. Miceli (2002) 104 Cal.App.4th 256, 272, citing People v. Breverman (1998) 19 Cal.4th 142, 154.)
Section 245, subdivision (b) provides, “Any person who commits an assault upon the person of another with a semiautomatic firearm shall be punished by imprisonment in the state prison for three, six, or nine years.” Subdivision (a)(2) provides, “Any person who commits an assault upon the person of another with a firearm shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not less than six months and not exceeding one year, or by both a fine not exceeding ten thousand dollars ($10,000) and imprisonment.”
As defendant acknowledges, “witness accounts of the robbers using semiautomatic firearms was thoroughly corroborated by the robbers being in the trunk with semiautomatic firearms.” Additionally, under the instructions discussed above, the jury necessarily found defendant was a coparticipant in the common plan to commit robbery and the commission of assault with a semiautomatic firearm was a natural and probable consequence of carrying out the plan. There is no duty to instruct on the lesser included offense when “‘there is no evidence that the offense was less than that charged.’” (People v. Breverman, supra, 19 Cal.4th at p. 154.) “‘[D]ue process requires that a lesser included offense instruction be given only when the evidence warrants such an instruction’ [citations]” (People v. Kaurish (1990) 52 Cal.3d 648, 696), and the mere speculation that the crime was less than that charged is insufficient to trigger the duty to instruct (see People v. Berryman (1993) 6 Cal.4th 1048, 1081, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1).
In light of defendant’s role as a coparticipant in the crimes, and the ease with which even the noncriminal eyewitnesses were able to describe the robbers’ guns as semiautomatic, it would have been unreasonable for the jury to find that defendant was unaware of what type of firearms her codefendants used. Given the lack of sufficient evidence that the crimes were less than that charged, there was no error in the court’s failure to instruct the jury on the lesser included offense of assault with a firearm in counts 6 and 7.
IV. Other Errors
Defendant contends, the People concede, and we agree the armed principal enhancements (§ 12022, subd. (a)(1)) in counts 6 and 7 were unauthorized, and the judgment will be modified to strike the enhancements.
We also agree with the parties that defendant is entitled to an additional day of actual days of custody credits. The trial court will be instructed to award an additional day, thereby increasing the total of actual days of custody credit from 1, 381 to 1, 382.
DISPOSITION
The judgment is modified on counts 6 and 7 to strike the one-year terms that were imposed for the section 12022, subdivision (a)(1) enhancements. The trial court is instructed to award an additional day of actual days to defendant’s custody credits, to amend the abstract of judgment to reflect the forgoing modifications, and to transmit the amended abstract of judgment to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
WE CONCUR: WISEMAN, Acting P.J., GOMES, J.