People v. Watson CA4/1 ( 2021 )

Filed 4/8/21 P. v. Watson CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D076475
Plaintiff and Respondent,
v. (Super. Ct. No. SCD278660-02)
ANTHONY WATSON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Michael S. Groch, Judge. Affirmed.
Charles R. Khoury, Jr., under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Steven T.
Oetting and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and
Respondent.
I.
INTRODUCTION
A jury found Anthony Watson guilty of two counts of robbery (Pen.
Code, § 211,1 counts 1 & 2) and two counts of petty theft (§ 484, counts 3
& 4). The jury also found Watson’s brother, codefendant Brandon Smith,
guilty of two counts of robbery (counts 1 & 2) and one count of petty theft
(count 4).2 Watson admitted having suffered two strike priors (§§ 667, subds.
(b)–(i), 668, 1170.12), a serious felony prior (§§ 667, subd. (a)(1), 668, 1192.7,
subd. (c)), and a prison prior (§§ 667.5, subd. (b), 668).
At sentencing, the trial court struck one of the strike priors, and
sentenced Watson to 13 years in prison, consisting of the middle term of three
years for count 1, doubled to six years because of the strike prior, two years
for count 2, calculated at one-third the midterm, and five years for the serious
felony prior.3 The court stayed execution of the sentence for the prison prior.
On appeal, Watson claims that the trial court erred in instructing the
jury concerning the natural and probable consequences doctrine, that the
prosecutor committed prosecutorial error in arguing to the jury regarding
that doctrine, and that his trial counsel provided ineffective assistance in
failing to object to these errors. Watson also argues that the court erred in
failing to provide the jury with a unanimity instruction with respect to each
robbery count (counts 1 & 2). In addition, Watson contends that the evidence
is insufficient to support the jury’s guilty verdicts on the robbery counts.
1 Unless otherwise specified, all subsequent statutory references are to
the Penal Code.
2 The jury found Smith not guilty of the petty theft charged in count 3.
3 As to the misdemeanor theft counts (counts 3 & 4), the trial court
stated, “probation is denied. . . . [C]redit for time served.”
2
With respect to his sentence, Watson requests that we remand the matter to
permit the trial court to consider exercising its discretion to strike the serious
felony enhancement, and that we strike all of the fines and fees that the court
imposed at sentencing as violative of his constitutional rights.
We affirm the judgment.4
II.
FACTUAL BACKGROUND
A. GameStop Robbery (Count 1)
One day in August 2018, Watson and Smith were at a store that sells
video games called GameStop.5 One of the men told the store’s assistant
manager, J.F., that he wanted to purchase a video game. After J.F. retrieved
the game from behind the counter, J.F. opened the cash register to complete
the sale. Watson and Smith immediately reached over the register and
began to grab money from it.
While taking the money with one hand, Watson grabbed J.F.’s wrist
with his other hand and “pinned” it against the side of the cash register. J.F.
grabbed Watson’s hand to try and stop him. After a brief struggle, Watson
broke free from J.F.’s grasp and followed Smith out of the store with money
that they had stolen. J.F. sustained a minor injury to his hand during the
incident.
4 Watson also filed a petition for habeas corpus in which he contends
that his trial counsel provided ineffective assistance in failing to object to the
trial court’s jury instruction pertaining to the natural and probable
consequences doctrine and to the prosecutor’s closing argument pertaining to
the application of that doctrine. By way of a separate order filed today, we
summarily deny Waston’s petition.
5 In the record, the store is referred to as “Game Stop”; we use the proper
name of the business, “GameStop.”
3
B. Yum Yum Yo Robbery (Count 2)
On a different day in August 2018, Watson and Smith walked into
a sandwich shop called Yum Yum Yo. Smith ordered a sandwich and handed
the shop owner, K.D., a five dollar bill. When K.D. opened the register, both
men reached over the counter and started to grab money. K.D. was scared.
K.D. attempted to close the drawer to the register, but was unable to
immediately do so because Watson and Smith’s hands were inside the
drawer. The men fled the shop with money from the register.
C. AM/PM Theft (Count 3)
One morning in September 2018, Watson and Smith entered an
AM/PM store. After telling the clerk that he wanted to purchase an item, one
of the men handed the clerk some money. When the clerk opened the cash
register, one of the men6 reached over the counter and grabbed money from
the register. Both men then left the store.7
D. Appletree Market Theft (Count 4)
One afternoon in July 2018, Watson and Smith were checking out at
the Appletree Market. After the cashier opened the register, both men
6 It is unclear from the clerk’s trial testimony whether this was the same
man who told her that he wanted to make a purchase.
7 At trial, the clerk testified that she could not identify the men involved
in the incident. However, the People offered in evidence an excerpt of the
clerk’s preliminary hearing testimony, during which she identified Watson
and Smith as the persons who “took . . . money” from her during the incident.
In addition, the jury was shown a surveillance video from the incident and
still images taken from the video. A police officer who had supervised
Watson and Smith identified the men as the individuals depicted in two of
the photos taken from the surveillance video. The exhibits containing the
surveillance video and images from the AM/PM store robbery have not been
transmitted to this court.
4
reached over the counter and started grabbing money. They then fled the
store.
III.
DISCUSSION
A. The trial court did not err in instructing the jury concerning the natural
and probable consequences doctrine and the prosecutor did not commit
prosecutorial error in arguing to the jury regarding that doctrine
Watson claims that the trial court erred in instructing the jury
pursuant to CALCRIM No. 403 concerning the natural and probable
consequences doctrine and that the prosecutor reinforced that error during
her closing argument. Specifically, Watson appears to contend that the
court’s jury instruction and the prosecutor’s argument could have led the jury
to conclude that it could find Watson and Smith guilty of robbery as a natural
and probable consequence of committing petty theft, even if neither Watson
nor Smith committed a robbery.8
We review Watson’s claim de novo.9 (See People v. Mitchell (2019)
7 Cal.5th 561, 579 [“An appellate court reviews the wording of a jury
8 The precise contours of Watson’s argument are not entirely clear from
his brief. However, we understand his argument to be as summarized in the
text. Watson argues, “The prosecutor’s purpose in wanting [CALCRIM No.]
403 to be given to the jury along with her argument applying it to both
defendants was to be able to get convictions of a violent offense, robbery, on
the theory that it was a reasonably foreseeable consequence of petty theft, an
offense requiring no proof of violent conduct.” In addition, in presenting his
unanimity argument, see part III.C., post, Watson argues: “The entire gist of
this contention can be summed up as follows: CALCRIM [No.] 403 plus the
prosecution argument represented a legally invalid theory that both
defendants could be convicted of robbery as a foreseeable natural and
probable consequence of committing a petty theft.”
9 The People contend that Watson forfeited his claim by failing to object
in the trial court to either the court’s jury instruction or the prosecutor’s
5
instruction de novo and assesses whether the instruction accurately states
the law”]; People v. Uribe (2011) 199 Cal.App.4th 836, 860 [a claim of
prosecutorial error is reviewed independently].)
1. Factual and procedural background
a. The jury instruction on the natural and probable
consequences doctrine
During the trial, while the trial court was instructing the jury, the
court excused the jury from the courtroom for a recess. During the recess, the
following colloquy occurred:
“The court: [W]e’re outside the presence of the jury.
I stopped at [CALCRIM] instruction [number] 403 because
I’m concerned about confusion with the jury. [¶]
[CALCRIM No.] 403 reads: Before you may decide whether
the defendant is guilty of robbery, you must decide that he
is guilty of petty theft, and then goes on, when [sic] the
natural and probable consequences discussion.
“That’s true, in terms of aiding and abetting. It’s not true
in terms of straight direct liability. So perhaps it should be
modified to say on an aiding and abetting theory, before
you decide whether a defendant is guilty of robbery.
“[The prosecutor:] Your Honor, my intention was to argue
this as a -- as it relates to a conspiracy theory. And I was
precluded from -- my request for conspiracy instructions,
which I believe the evidence supports, was denied. [¶] But
that is what I believe this instruction really related to,
because they were both direct perpetrators in petty theft, in
certain incidents. Or the two incidents for the alleged
robbery. They were both direct perpetrators in committing
the petty theft and then one committed a robbery, so I
need -- I still think the conspiracy instructions apply.
“The court: Well, I understand your disagreement with me
over conspiracy, and we’ve addressed that. The question is
argument. Notwithstanding Watson’s possible forfeiture, we exercise our
discretion to consider the substance of Watson’s claim.
6
as it applies to aiding and abetting, whether this
instruction [CACLCRIM No.] 403 should be given or not, or
modified.
“[The prosecutor:] I don’t believe that it should be
modified.
“The court: Either counsel want to weigh in?
“[Watson’s counsel:] No, thank you, Your Honor.
Submitted.
“[Smith’s counsel:] Submitted, Your Honor.
“The court: [CALCRIM No.] 403 is in the aiding and
abetting section of the instructions, not the conspiracy
instructions. It is a correct statement of the law, but one
could read the instruction not knowing about how chapters
and CALCRIM work, and think they have to make this
finding before finding the defendants guilty of robbery on a
direct liability theory.
“If nobody is concerned about that than me, that’s fine.
Sounds like I’m standing alone, so I’ll leave the instructions
as given.”
After the recess, the jury returned, and the trial court continued
instructing the jury. The trial court instructed the jury concerning the
natural and probable consequences doctrine pursuant to CALCRIM No. 403
as follows:
“Before you may decide whether a defendant is guilty of
robbery, you must decide whether he is guilty of petty theft.
To prove that the defendant is guilty of robbery, the People
must prove that, one, the defendant is guilty of petty theft.
“Two, during the commission of petty theft, a co-participant
in that petty theft committed the crime of robbery.
“And three, under all of the 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 petty theft.
7
“A co-participant in a crime is a perpetrator or anyone who
aided and abetted the perpetrator. It does not include a
victim or innocent bystander.
“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.
“To decide whether the crime of robbery was committed,
please refer to the separate instructions that I have given
you on that crime.”
Shortly thereafter, the trial court instructed the jury pursuant to
CALCRIM Nos. 1600 and 1800 on the elements of robbery and petty theft,
respectively.
b. The prosecutor’s closing argument
During her closing argument, while discussing the incident at the
GameStop store, the prosecutor argued that Watson was guilty of robbery as
a direct perpetrator. The prosecutor argued that Watson “grabbed [the
victim’s] wrist[;] that’s force right there.” The prosecutor further argued that
Watson “us[ed] force to resist [the victim’s] efforts.” The prosecutor then
argued that these actions demonstrated that Watson committed a robbery
rather than a petty theft, arguing:
“When you commit a petty theft, and you don’t use any
force, and you don’t have any contact, and you just take
something and you leave, that’s a crime. That’s one type
crime, but when you stand over someone in their face and
you grab them and you touch them and you get into their
space and you cause them to have an injury where they
have to ice their hand. And you have a struggle, and this
person who has never been through that, anything like that
in their life, whose life now has been changed, that is a
different type of crime. It is a robbery.”
8
After arguing that Watson was guilty of the robbery of the GameStop
store as a direct perpetrator, the prosecutor argued that Smith was guilty of
that robbery as an aider an abettor pursuant to the natural and probable
consequences doctrine, as follows:
“What about Mr. Smith? Now, you may be saying to
yourself, well, yes, Mr. Smith was there. He committed a
theft, he was there at the register, but he’s not the one that
pinned [the victim’s] hand. He’s not the one that struggled.
Why is he guilty of a robbery? I submit to you that Mr.
Smith is guilty of a robbery, under the natural and
probable consequences theory. This is an offshoot of the
aiding and abetting theory that we’ve already talked about.
“To find Mr. Smith guilty, under a natural and probable
consequences theory, you need to find the following: That
Mr. Smith committed petty theft. He’s guilty of that. That
during the commission of that petty theft, Mr. Watson, his
co-participant in the theft, committed a robbery. And that
under all of the circumstances, a reasonable person in
Smith’s position would have known that the commission of
a robbery was a natural and probable consequence of the
commission of a petty theft. And what that really means is
was it reasonably foreseeable considering all of the
circumstances?
“So -- and this is not, you know, we’re not talking about
Smith himself. We’re talking about you. We’re talking
about objective, reasonable people objectively. Would a
reasonable person, doing what Smith was doing, in all of
those circumstances know, was it reasonably foreseeable
that there may be some force that had to be used in order to
either get that property or to resist the efforts of the victim?
Absolutely. Again, this is a series of crimes. They
committed all these crimes together.
“By the time they committed the [GameStop] crime, they
already committed the Yum Yum Yo crime two weeks
earlier. And another incident as well, the AM/PM crime
was before that as well, but the Yum Yum Yo incident
itself, that’s one where force was used by both of them.
9
They were both pushing, the victim was trying to close the
cash register.
“You know, absolutely he would have known, a reasonable
person would have known that, again, you’re not in a
situation where you’re stealing something off of a shelf
when no one is looking, and walking out of the store. You
are making a plan to confront the cashier with his hands,
standing at the register. You are making a plan to go into
that person’s personal space, aggressively reaching over the
counter, overcoming their will to resist and getting that
money.
“Now, you may not intend to hurt them, to use any force at
all. You may hope that if all goes well, we don’t even have
to touch these people, or that they don’t touch us. But you
go in there knowing that it is reasonably foreseeable that
when you reach into someone’s personal space and grab the
money that belongs to them, there may be some use of
force. You may have to push that person out of the way.
You may have to struggle with them if they resist. You
may have [to] pull that drawer open if they try to push it
close[d]. So under the natural and probable consequences
theory, you can find both of the defendants guilty of
robbery.” (Italics added.)
2. Governing law
a. The natural and probable consequences doctrine
“Aider-abettor liability exists when a person who does not directly
commit a crime assists the direct perpetrator by aid or encouragement, with
knowledge of the perpetrator’s criminal intent and with the intent to help
him carry out the offense.” (People v. Miranda (2011) 192 Cal.App.4th 398,
407.) “Under the natural and probable consequences doctrine, an aider and
abettor is guilty of not only the offense he intended to facilitate or encourage,
but also of any reasonably foreseeable offense committed by the actual
perpetrator. The defendant’s knowledge that an act which is criminal was
intended, and his action taken with the intent that the act be encouraged or
10
facilitated, are sufficient to impose liability on him for any reasonably
foreseeable offense committed as a consequence by the perpetrator.” (Id. at
pp. 407–408.)
b. The law governing jury instructions
“When considering a claim of instructional error, we view the
challenged instruction in the context of the instructions as a whole and the
trial record to determine whether there is a reasonable likelihood the jury
applied the instruction in an impermissible manner.” (People v. Houston
(2012) 54 Cal.4th 1186, 1229.) In that context, we must then “determine
whether it is reasonably likely the jurors understood the instruction[s] as
[defendant] suggests. [Citation.] In making that determination, we must
consider several factors including the language of the instruction in question
[citation], the record of the trial [citation], and the arguments of counsel.”
(People v. Nem (2003) 114 Cal.App.4th 160, 165.)
c. Prosecutorial error
“The use of deceptive or reprehensible methods to persuade the jury
constitutes [prosecutorial] misconduct.” (People v. Sanchez (2016) 63 Cal.4th
411, 475.) In addition, “it is improper for [a] prosecutor to misstate the law.”
(People v. Marshall (1996) 13 Cal.4th 799, 831 (Marshall).) “A defendant
asserting prosecutorial misconduct must further establish a reasonable
likelihood the jury construed the remarks in an objectionable fashion.”
(People v. Duff (2014) 58 Cal.4th 527, 568 (Duff).)
3. Application
With respect to Watson’s jury instruction claim, CALCRIM No. 403 is a
correct statement of the law, and Watson does not identify any infirmity in
the instruction. While the trial court expressed its concern that the jury
might think that it had to find that the elements of CALCRIM No. 403 were
11
met before finding the defendants guilty under a direct liability theory,10
that is an ambiguity that could have only made it more difficult for the jury
to find the defendants guilty. Thus, any such ambiguity could not have
possibly prejudiced either defendant. (See People v. Lee (1999) 20 Cal.4th 47,
52 [“Defendant may not complain on appeal about errors favorable to him”].)
However, the trial court never suggested that it was concerned that the
jury might apply CALCRIM No. 403 to find the defendants guilty of robbery
without finding that one of them committed a robbery, and Watson does not
point to any language in the instruction that would permit such a result. On
the contrary, the court expressly instructed the jury that in order to find a
defendant guilty of robbery pursuant to the natural and probable
consequences doctrine, the jury was required to find, among other elements
that “a co-participant in that petty theft committed the crime of robbery.”
Thus, Watson’s claim that the trial court erred in instructing the jury
concerning the natural and probable consequences doctrine is without merit.
After quoting a portion of the prosecutor’s argument that is quoted in
part III.A.1.a, ante, pertaining to the GameStop Robbery, Watson claims that
the prosecutor misstated the law by “telling the jury that by finding a petty
theft had occurred, they could, as a natural and probable consequence, find
both defendants guilty of robbery.” As noted ante, we understand Watson to
be arguing that the prosecutor misstated the law by arguing that Watson and
Smith could both be guilty of robbery pursuant to the natural and probable
10 Specifically, as noted in part III.A.1.a, ante, after referring to
CALCRIM No. 403 outlining the elements of guilt under the natural and
probable consequences doctrine, the trial court stated that the jury might
think that “they have to make this finding before finding the defendants
guilty of robbery on a direct liability theory.”
12
consequences doctrine, even if neither committed a robbery, as long as they
had each committed a petty theft.11
This argument fails because, when the prosecutor’s argument is
considered in full, it is clear that the prosecutor was arguing that Watson
was guilty of the GameStop Robbery as a direct perpetrator, and that Smith
was guilty of the GameStop Robbery as an aider and abettor pursuant to the
natural and probable consequences doctrine. Stated differently, there is no
“reasonable likelihood” that the jury construed the prosecutor to be arguing
that Watson was guilty of the GameStop Robbery pursuant to the natural
and probable consequences theory. (Duff, supra, 58 Cal.4th at p. 568.)
In addition, the prosecutor never stated that either defendant could be
found guilty of a robbery without at least one of the coparticipants having
committed a robbery, and the other elements of the natural and probable
consequences doctrine being met. On the contrary, in arguing Smith’s guilt
pursuant to the natural and probable consequences doctrine for the
GameStop Robbery, the prosecutor echoed CALCRIM No. 403, and told the
jury that it was required to find that “during the commission of that petty
theft, Mr. Watson, his co-participant in the theft, committed a robbery.” In
short, the prosecutor did not commit prosecutorial error by “misstat[ing] the
law.” (Marshall, supra, 13 Cal.4th at p. 831.)
B. Defense counsel did not provide ineffective assistance in failing to object to
the trial court’s jury instruction and the prosecutor’s argument concerning
the natural and probable consequences doctrine
Watson claims that his counsel provided ineffective assistance in failing
to object to the trial court’s giving CALCRIM No. 403 and the prosecutor’s
11 Watson argues, “In argument to the jury the prosecutor included both
defendants into the ambit of guilt of robbery due to foreseeability of a petty
theft.”
13
closing argument pertaining to the natural and probable consequences
doctrine as applied to the GameStop Robbery.
1. Governing law
To establish a claim of ineffective assistance of counsel, a defendant
must show that counsel’s performance was deficient in that it “fell below an
objective standard of reasonableness,” evaluated “under prevailing
professional norms.” (Strickland v. Washington (1984) 466 U.S. 668, 688
(Strickland); accord People v. Ledesma (1987) 43 Cal.3d 171, 216.) The
defendant must also show that it is reasonably probable that a more
favorable result would have been reached absent counsel’s deficient
performance. (Strickland, at p. 694.)
“When examining an ineffective assistance claim, a reviewing court
defers to counsel’s reasonable tactical decisions, and there is a presumption
counsel acted within the wide range of reasonable professional assistance.”
(People v. Mai (2013) 57 Cal.4th 986, 1009.) Thus, “[w]hen the record on
direct appeal sheds no light on why counsel failed to act in the manner
challenged, defendant must show that there was ‘ “ ‘no conceivable tactical
purpose’ ” for counsel’s act or omission.’ ” (People v. Centeno (2014) 60
Cal.4th 659, 675 (Centeno).)
2. Application
Our determination in part III.A.3, ante, that CALCRIM No. 403
properly states the law and that any ambiguity in its application to this case
could have only favored Watson makes clear that defense counsel was not
ineffective in failing to object to the instruction. Defense counsel could have
reasonably determined that it was not in Watson’s interest to raise an
objection that could have only harmed his client. Thus, Watson cannot
14
establish the lack of any “ ‘ “ ‘conceivable tactical purpose’ ” ’ ” (Centeno,
supra, 60 Cal.4th at p. 675) for failing to object to the instruction.
In addition, our conclusion that the prosecutor did not commit error
during her closing argument defeats Watson’s claim of ineffective assistance
premised on defense counsel’s failure to object to the prosecutor’s argument.
(See, e.g., People v. Bradley (2012) 208 Cal.App.4th 64, 90 [“Failure to raise a
meritless objection is not ineffective assistance of counsel.”].)
Accordingly, we conclude that defense counsel did not provide
ineffective assistance in failing to object to the trial court’s jury instruction
and the prosecutor’s argument concerning the natural and probable
consequences doctrine.
C. The trial court was not required to provide a unanimity jury instruction
with respect to either robbery count (counts 1 & 2)
Watson claims that the trial court was required to provide the jury with
a unanimity instruction with respect to each of the robbery charges (counts 1
& 2).
1. Governing law
In People v. Covarrubias (2016) 1 Cal.5th 838, 877–878, the California
Supreme Court provided an overview of the aspects of a criminal case for
which jury unanimity, and a unanimity instruction, are, and are not,
required:
“In a criminal case, “the jury must agree unanimously the
defendant is guilty of a specific crime. [Citation.]
Therefore, cases have long held that when the evidence
suggests more than one discrete crime, either the
prosecution must elect among the crimes or the court must
require the jury to agree on the same criminal act.”
[Citation.] Yet ‘where the evidence shows only a single
discrete crime but leaves room for disagreement as to
exactly how that crime was committed or what the
defendant’s precise role was, the jury need not
15
unanimously agree on the basis or, as the cases often put it,
the ‘theory’ whereby the defendant is guilty.’ [Citation.] ‘In
deciding whether to give the instruction, the trial court
must ask whether (1) there is a risk the jury may divide on
two discrete crimes and not agree on any particular crime,
or (2) the evidence merely presents the possibility the jury
may divide, or be uncertain, as to the exact way the
defendant is guilty of a single discrete crime. In the first
situation, but not the second, it should give the unanimity
instruction.’ [Citation.]” (Second italics added.)
(See, e.g., People v. Armstrong (2019) 6 Cal.5th 735, 794 [“ ‘the jury need not
unanimously agree on the theory under which the defendant is guilty’ ”].)
Consistent with the rule that a jury need not unanimously agree as to
the theory under which a defendant is guilty, the California Supreme Court
has repeatedly held that jurors need not unanimously agree as to whether a
defendant is guilty as an aider and abettor or as a direct perpetrator. (See
People v. Smith (2014) 60 Cal.4th 603, 618 (Smith); People v. Wilson (2008)
44 Cal.4th 758, 801 [“the jury need not decide unanimously whether a
defendant was a direct perpetrator or an aider and abettor, so long as it is
unanimous that he was one or the other”]; People v. Jenkins (2000) 22 Cal.4th
900, 1026 [same].) As the Smith court explained:
“ ‘ “[A]s long as each juror is convinced beyond a
reasonable doubt that defendant is guilty of murder as that
offense is defined by statute, it need not decide
unanimously by which theory he is guilty. [Citations.]
More specifically, the jury need not decide unanimously
whether defendant was guilty as the aider and abettor or
as the direct perpetrator. . . . [¶] . . . [¶] Not only is there
no unanimity requirement as to the theory of guilt, the
individual jurors themselves need not choose among the
theories, so long as each is convinced of guilt. Sometimes
. . . the jury simply cannot decide beyond a reasonable
doubt exactly who did what. There may be a reasonable
doubt that the defendant was the direct perpetrator, and a
similar doubt that he was the aider and abettor, but no
16
such doubt that he was one or the other.” [Citations.]
Defendant contends that different facts would support
aiding and abetting liability and liability as a direct
perpetrator, but, as we have explained, the jury need not
unanimously agree “on the precise factual details of how a
killing under one or the other theory occurred in order to
convict defendant of first degree murder.” [Citation.]
Naturally, in order to return a guilty verdict, the jury must
agree unanimously that each element of the charged crime
has been proved, but the factors that establish aiding and
abetting liability are not included as elements of the crime
of murder. [Citations.]’ ” (Smith, supra, at p. 618.)
2. Application
Watson contends that the trial court was required to provide a
unanimity instruction to the jury because, without a such an instruction, “the
jury could rely on two different theories to convict appellant Watson of the
two counts of robbery.” Specifically, with respect to each robbery, Watson
contends that some jurors might have found him guilty as an aider and
abettor of a petty theft that naturally and probably resulted in the robbery,
while other jurors might have found him guilty as the direct perpetrator of
the robbery.
The unanimity that Watson suggests was required is, in fact, not
required under California law. The California Supreme Court case law
discussed above makes clear that the jury was not required to unanimously
agree whether Watson was guilty of the robberies charged in counts 1 and 2
as the direct perpetrator or as an aider and abettor (pursuant to the natural
and probable consequences doctrine). (See, e.g., Smith, supra, 60 Cal.4th at
p. 618 [“the jury need not decide unanimously whether defendant was guilty
as the aider and abettor or as the direct perpetrator”].)
17
Accordingly, we conclude that the trial court was not required to
provide the jury with a unanimity instruction with respect to either robbery
count (counts 1 & 2).12
D. There is substantial evidence in the record of Watson’s use of force to
support the jury’s verdicts finding him guilty of robbery in counts 1 and 2
Watson claims that there is insufficient evidence of his use of force or
fear to sustain the jury’s verdicts finding him guilty of robbery in either
count 1 (GameStop Robbery) or count 2 (Yum Yum Yo Robbery).
1. Governing law
a. Sufficiency of the evidence
In determining whether there is sufficient evidence to support a jury’s
guilty verdict, “the relevant question is 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.”
(Jackson v. Virginia (1979) 443 U.S. 307, 319.) “[T]he court must review the
whole record in the light most favorable to the judgment below to determine
whether it discloses substantial evidence—that is, evidence which is
reasonable, credible, and of solid value—such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt.” (People v.
Johnson (1980) 26 Cal.3d 557, 578.)
b. Substantive law
“Robbery is the ‘felonious taking of personal property in the possession
of another, from his person or immediate presence, and against his will,
12 In light of our conclusion that the trial court was not required to
provide a unanimity jury instruction for either count, we need not consider
Watson’s contention that Ramos v. Louisiana (2020) ___ U.S. ___ [140 S.Ct.
1390] makes clear that the Chapman v. California (1967) 386 U.S. 18standard of prejudice applies in determining whether a trial court’s error in
failing to provide a unanimity instruction is prejudicial.
18
accomplished by means of force or fear.’ ” (§ 211.) It is the use of force or fear
which distinguishes robbery from grand theft from the person.” (People v.
Mungia (1991) 234 Cal.App.3d 1703, 1707.)
In People v. Montalvo (2019) 36 Cal.App.5th 597, the court summarized
the law governing the amount of force necessary to commit a robbery under
California law as follows:
“ ‘[T]he “force” required for robbery is not necessarily
synonymous with a physical corporeal assault.’ [Citation.]
However, ‘[t]he law does require that the perpetrator exert
some quantum of force in excess of that “necessary to
accomplish the mere seizing of the property.” ’ [Citation.]
‘[T]he force need not be great . . . .’ [Citation.] ‘An accepted
articulation of the rule is that “ ‘[a]ll the force that is
required to make the offense a robbery is such force as is
actually sufficient to overcome the victim’s
resistance . . . .’ ” ’ ” (Id. at p. 618.)
In People v Garcia (1996) 45 Cal.App.4th 1242, 1246 (Garcia), the court
discussed the force necessary to commit a robbery in the context of a
defendant’s efforts to take money from a store’s cash register. The Garcia
court described the evidence as to the amount of force that the defendant
used to commit the offense in that case as follows:
“The evidence was defendant approached the cashier while
the register drawer was open and gave her a slight push,
‘like a tap,’ on her shoulder with his shoulder. Fearful
defendant might be armed, the cashier moved away.
Defendant then reached into the open register, grabbed the
money and escaped. The cashier was not injured.” (Garcia,
supra, 45 Cal.App.4th at p. 1246.)
The Garcia court rejected the defendant’s claim that he was entitled to
a lesser included offense instruction on theft, reasoning in part that the force
that he applied to the cashier did not exceed that necessary to accomplish the
seizing of the property:
19
“Defendant concedes he touched the cashier in the course of
taking the money. He argues, however, the force required
for robbery is more than an incidental touching. A
pickpocket touches the victim in extracting a wallet from
his pocket, but this does not make the pickpocket a robber.
The force required for robbery is more than ‘just the
quantum of force which is necessary to accomplish the mere
seizing of the property.’ [Citation.] In the present case,
however, the touching was more than incidental and was
not merely the force necessary to seize the money. The
defendant did not simply brush against the cashier as he
grabbed for the money. He intentionally pushed against
her to move her out of the way so he could reach into the
register.” (Garcia, supra, 45 Cal.App.4th at p. 1246.)
A robbery can also be committed when force or fear is used “to prevent
[a] person from resisting” the taking of property. (People v. Scott (2009) 45
Cal.4th 743, 749 (Scott).) For example, the use of force to prevent a store
employee from resisting efforts to regain property or to facilitate the
defendant’s escape, is sufficient to support a robbery conviction. (People v.
Estes (1983) 147 Cal.App.3d 23, 28 (Estes).)
2. Application
a. Count 1 – GameStop Robbery
J.F. testified that, while attempting to take money from the store’s cash
register, Watson “pinned . . . [J.F.’s] wrist to the register.” When asked to
elaborate, J.F. stated:
“So he grabbed my wrist -- so with my right-hand side, my
right hand was pinned by his, I believe it was his left hand,
which between the index and thumb was around my wrists.
That then pinned it to where normally it sits on the side of
the register drawer that I usually place it on.
“And in the process, the pressure downward forced the
drawer to slide backwards a little bit and that caused my
hand to be caught in the catch of the drawer itself, while
20
also being pinned down by the hand that was grasping my
wrist.”
J.F. stated that his recollection was that “it was a very clear grasp, like
he grabbed my wrist, it wasn’t just him moving my wrist out of the way.”
J.F. also stated that, while Watson was taking money from the cash
register, J.F. grabbed Watson’s hand. When asked to describe this portion of
the incident, the following colloquy occurred:
“[The prosecutor:] Would you -- is it fair to say that there
was some force that he used in trying to resist your efforts
to grab him?
“[J.F.:] Absolutely.
“[The prosecutor:] Would it be fair to call this a struggle?
“[J.F.:] Absolutely.
“[The prosecutor]: Is there anything more to the struggle
or was that sort of it, that you had grabbed his hand and he
had tried to struggle to pull away from you?”
“[J.F.] We struggled for a moment. At that point, my hand
was free and I was trying to actively stop him. And I just --
I said ‘sir’ three times. And he struggled with me for a
moment, and then finally broke free of me. At that point,
his companion had already run out the front door and he
went to follow.”
After the incident, J.F. applied ice to his hand because it was hurting.
The People played surveillance video footage of the incident that
corroborated J.F.’s testimony.
Based on J.F.’s testimony and the surveillance video footage of the
incident, the jury could find that Watson applied force both to take the money
and to resist J.F.’s efforts to prevent the taking. Specifically, the jury could
find that in grabbing J.F.’s wrist and pinning to the register, Watson used a
“quantum of force in excess of that ‘necessary to accomplish the mere seizing
21
of the property.’ ” (Montalvo, supra, 36 Cal.App.5th at p. 618.) The evidence
of the force applied in this case appears to have exceeded the force used by
the defendant in Garcia, in which the court concluded that the amount of
force used established a robbery rather than a theft. (Garcia, supra, 45
Cal.App.4th at p. 1246 [stating that no lesser included offense instruction on
theft was required because there was no “factual question whether the
defendant did or did not use force against the victim” in case in which
evidence demonstrated that defendant used his shoulder to give store clerk a
“slight push”].)
The jury could also find that Watson used force to prevent J.F. from
effectively resisting Watson’s taking of the property. Specifically, the jury
could find that Watson used force to break free from J.F.’s attempt to detain
him, further supporting the jury’s guilty verdict. (See Estes, supra, 147
Cal.App.3d at p. 28 [robbery may be supported by evidence the defendant
used force to “facilitate his escape”].)
Accordingly, we conclude that there is sufficient evidence of Watson’s
use of force to support the jury’s verdict finding him guilty of count 1.
b. Count 2 - Yum Yum Yo Robbery
The jury could also reasonably find that Watson used forced to
overcome K.D.’s resistance in perpetrating the Yum Yum Yo Robbery.
K.D. initially described her efforts to close the cash register while Watson
and Smith were attempting to grab money from the register as follows:
“[The prosecutor:] Where were your hands at the time that
[the defendants] reached over and grabbed money out of
the register drawer?
“[K.D.:] One hand, I was still holding the $5 bill. And
I used my other hand to close the cash register.
“[The prosecutor:] Were you trying to close the cash
register while both of their hands were inside the drawer?
22
“[K.D.:] Yes, both of their hands were on top of the
drawers, and so the drawer popped open.
“[The prosecutor:] All right. Why were you trying to close
the drawer?
“[K.D.:] They were trying to get the money and I was
scared, so I tried to shut the drawer.” [¶] . . . [¶]
“[The prosecutor:] Did you want them to take money out of
your cash register?
“[K.D.:] No.”
Shortly thereafter, while the prosecutor was showing surveillance video
of the incident at the Yum Yum Yo sandwich shop to the jury, the following
colloquy occurred:
“[The prosecutor:] Okay, at 8 seconds in, it looks like one of
these individuals reaches into the cash register while both
of your hands are inside the cash drawer; is that correct?
“[K.D.:] Yes, both of my hands.
“[The prosecutor:] Now, I want you to just watch this
portion of the video and tell us what you are specifically
doing and what they are specifically doing as I go through
and play this. And I stopped the video.
“[K.D.:] Shutting the drawer.
“[The prosecutor:] Okay. Were you successful in closing the
drawer so they could not get the money?
“[K.D:] By that time, they had already taken the money.
“[The prosecutor:] Okay. Did you see in the video some
back and forth with the drawer going forward and back?
“[K.D.:] Yes.
“[The prosecutor:] Can you explain to us what was
happening that was causing the drawer to go forward and
back?
23
“[K.D.:] I was trying to close it and the hands caused the
drawer to open. And then again, I tried to close it.
“[The prosecutor:] Okay. So is it fair to say that at least
twice you tried to push the drawer closed unsuccessfully?
“[K.D.:] Yes, because the hand stopped in there.
“[The prosecutor]: Is it fair to say that when you tried to
stop them, it didn’t work? They kept on doing what they
were doing?
“[K.D.:] Yes.”
The jury could reasonably find that the surveillance video footage
shows the following: Watson and Smith reaching over a cash register into
the register’s drawer; K.D. attempting to close the drawer; the men briefly
struggling with K.D. to keep the drawer open while taking money; and K.D.
closing the drawer as Watson and Smith remove their hands from the
drawer.
From K.D.’s testimony, and the surveillance video footage of the
incident, a reasonable juror could find that Watson used force to keep K.D.
from closing the cash register. The record thus contains evidence that
Watson used force “to prevent [K.D.] from resisting” the taking of property.
(Scott, supra, 45 Cal.4th at p. 743.)
Accordingly, we conclude that there is sufficient evidence of Watson’s
use of force to support the jury’s verdict finding him guilty of count 2. 13
E. Watson is not entitled to a remand to allow the trial court to exercise its
sentencing discretion due to a change in the law
Watson requests that we remand the matter to the trial court to
consider whether to strike his serious felony prior (§ 667, subd. (a)) in light of
13 In light of our conclusion, we need not consider the People’s argument
that there is sufficient evidence of Watson’s use of fear to support the jury’s
guilty verdict on count 2.
24
the enactment of Senate Bill No. 1393 (Stats. 2018, ch. 1013, §§ 1, 2 (Senate
Bill 1393)), which provided trial courts with the authority to strike such
enhancements.
1. The change in the law
On September 30, 2018, the Governor signed Senate Bill 1393, which,
effective January 1, 2019, amended sections 667 and 1385 to give trial courts
the discretion to dismiss five-year sentence enhancements under section 667,
subdivision (a). (See Legis. Counsel’s Dig., Sen. Bill No.1393 (2017‒2018 Reg.
Sess.) [“This bill would delete the restriction prohibiting a judge from striking
a prior serious felony conviction in connection with imposition of [a] 5-year
enhancement”].)
2. Factual and procedural background
The trial court sentenced Watson and Smith on August 29, 2019. In
sentencing Smith, the trial court stated:
“And then 5 years for the serious felony prior. I am
mindful I have the discretion to strike that.”
Immediately after sentencing Smith, the trial court sentenced Watson.
The court stated in relevant part:
“I impose sentence as follows: Count 1, the middle term,
[six] years. That’s [three] years, doubled, as a result of the
strike, to [six] years.
“Count 2, one-third the middle term, doubled, as a
result of the strike, consecutive. That’s an additional
[two] years. [¶] [Five] years on the serious felony prior.”
(Italics added.)
3. Application
The trial court sentenced Watson in August 2019—almost nine months
after the effective date of Senate Bill 1393. During Watson’s sentencing
hearing, while sentencing Watson’s codefendant, the trial court expressly
25
stated that it was aware of its authority to strike a serious felony
enhancement. Thus, we may presume that the trial court exercised its
discretion under Senate Bill 1393 when it imposed the serious felony
enhancement on Watson during the same hearing. (See People v. Superior
Court (Alvarez) (1997) 14 Cal.4th 968, 977 [absent an affirmative showing of
irrationality or arbitrariness “the trial court is presumed to have acted to
achieve legitimate sentencing objectives”]; People v. Mosley (1997) 53
Cal.App.4th 489, 499 [where sentence was imposed 53 days after judicial
decision authorizing the striking of a prior serious felony conviction, “[i]t can
be presumed that the experienced trial judge was aware of his power to strike
the prior serious felony conviction and intelligently chose not to do so”].)
Accordingly, we conclude that Watson is not entitled to a remand to
permit the trial court to consider whether to strike the serious felony
enhancement (§ 667, subd. (a)).
F. Watson’s claim that the trial court violated his constitutional rights
in imposing various fines and fees is forfeited
Citing People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) and its
progeny, Watson claims that the trial court violated his constitutional rights
in imposing various fines and fees at sentencing.
Ordinarily, in order to preserve an objection to the imposition of a fine
or fee at sentencing, a defendant must timely object. (See, e.g., People v.
Aguilar (2015) 60 Cal.4th 862, 866–867 [defendant’s failure to object at
sentencing to certain fees on the basis of his inability to pay forfeited the
challenge on appeal].)
26
As Watson concedes on appeal,14 he never raised any objection at
sentencing to the trial court’s imposition of the fines and fees, and he
provides no argument as to why the forfeiture doctrine does not apply to his
claim.15 Accordingly, we conclude that Watson has forfeited his claim that
the trial court violated his constitutional rights in imposing various fines and
fees at sentencing.16
14 Watson states, “Defense counsel did not object when the judge said he
was going to sentence . . . on the basis of the fines and assessments stated in
the probation report.”
15 To the extent that Watson intends to argue that the trial court had a
sua sponte duty to examine his ability to pay, we disagree. (See People v.
Castellano (2019) 33 Cal.App.5th 485, 490 [“Consistent with Dueñas, a
defendant must in the first instance contest in the trial court his or her
ability to pay the fines, fees and assessments to be imposed and at a hearing
present evidence of his or her inability to pay the amounts contemplated by
the trial court.”].)
16 The trial court sentenced Watson in August 2019, several months after
Dueñas was decided in January of that year.
27
IV.
DISPOSITION
The judgment is affirmed.
AARON, J.
WE CONCUR:
HUFFMAN, Acting P. J.
GUERRERO, J.
28