People v. Swain CA2/7 ( 2021 )

Filed 7/15/21 P. v. Swain CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B299440
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA120256)
v.
CAMERON ONEIL SWAIN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, David C. Brougham, Judge. Conviction
affirmed, sentence reversed.
Jason Szydlik, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance
E. Winters, Chief Assistant Attorney General, Susan Sullivan
Pithey, Senior Assistant Attorney General, Steven D. Matthews,
Supervising Deputy Attorney General, and Gary A. Lieberman,
Deputy Attorney General for Plaintiff and Respondent.
INTRODUCTION
Cameron Swain stole food items from a grocery store and
displayed a screwdriver when several grocery store employees
confronted him. A jury convicted Swain of robbery and found
true the allegation he used a deadly or dangerous weapon in the
commission of the robbery. Swain argues the trial court
committed two instructional errors. We affirm Swain’s robbery
conviction, but vacate the true finding on the weapon allegation.
FACTUAL AND PROCEDURAL BACKGROUND
A. Swain Robs a Grocery Store
On March 17, 2019 Swain entered a grocery store and
“caught [the] eye” of a manager, Alejandro Lopez. Lopez went to
the office computer to access the security camera and saw Swain
conceal hotdogs and granola bars in his bag. Lopez notified
another manager at the store, Arturo Lazaro, of the possible
theft.
Swain went to the register with a different item, a “hot
chicken,” for Lopez to ring up. Lopez asked Swain if he also
wanted to pay for the items in his bag. Swain denied he had any
items in his bag and started to leave the store. Lopez and Lazaro
stood in front of Swain to block his exit. Swain took a silver
object from his right pocket and said he was going to “poke” them,
which caused Lopez and Lazaro to move out of the way. Lopez
thought the object was a knife. Lazaro could not make out what
the object was, “but assumed it was a knife.” Lopez later said the
item was a screwdriver.
As Swain left the store, Lopez and Lazaro followed him,
and Lopez called the 911 emergency operator. A clerk from the
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meat department joined Lopez and Lazaro outside the store.
Lopez told the 911 operator that he saw a knife and that Swain
put the knife up to his face. Lazaro testified that Swain never
held anything to Lopez’s face and that Swain never raised the
object or used it in an aggressive manner.
Several girls were outside the store. As Swain walked
away from the store, the clerk held up a box cutter and yelled, “If
you don’t get back into the store, I’m going to fuck you up.”
Swain turned around and told Lopez, Lazaro, and the clerk he
had no problem murdering them in front of the girls. Swain
lunged at the three grocery store employees and again said he
was going to poke them.
Swain walked toward a bank in the adjacent parking lot,
yelling profanities. Lopez and Lazaro followed Swain from a
distance. Swain took a rock from the bank’s planter and threw it
at Lopez and Lazaro. The rock landed “two to three feet away”
from them.
Police officers eventually apprehended Swain and searched
his bag, where they found “two packages of sausage links” and
“two boxes of protein bars.” The officers also found a screwdriver
in Swain’s coat pocket.
B. A Jury Convicts Swain, and the Trial Court Sentences
Him
A jury convicted Swain of robbery (Pen. Code, § 211)1 and
found true the allegation he used a deadly or dangerous weapon
1 Statutory references are to the Penal Code.
3
to commit the crime (§ 12022, subd. (b)(1)).2 The jury also
convicted Swain on two misdemeanor counts of resisting,
delaying, or obstructing a peace officer (§ 148, subd. (a)(1)). The
jury acquitted Swain on one count of making a criminal threat
(§ 422) to Lopez, and the trial court dismissed one count of
making a criminal threat to Lazaro.
The trial court sentenced Swain to a prison term of six
years, consisting of the upper term of five years for the robbery
conviction, plus one year for the weapon enhancement. The court
imposed concurrent terms on the two convictions for resisting,
delaying, or obstructing a peace officer. Swain appealed.
DISCUSSION
A. Swain Forfeited His Argument the Trial Court Erred
in Instructing on Robbery, and Any Error Was
Harmless
1. Relevant Proceedings
The trial court instructed the jury on the elements of
robbery with CALCRIM No. 1600, which includes the instruction
that the People must prove “the defendant used force or fear to
take the property or to prevent the person from resisting.” The
trial court also instructed the jury that “fear, as used here, means
fear of injury to the person himself or herself.”
2 The jury actually found Swain used a “deadly and
dangerous weapon, to wit, a screwdriver,” but section 12022,
subdivision (b)(1), requires only that the defendant use a weapon
that is deadly or dangerous.
4
During closing argument, counsel for Swain argued that
Lopez was not afraid during the robbery. Referring to store
surveillance videos played (without sound) for the jury, counsel
for Swain stated: “[W]hen you look at [Lopez’s] body language
during the videos, his body language is not consistent with
somebody that’s fearful. When you look at his actions of
continuing to follow [Swain], that’s not a scared person. When
you look at his failure to go back to the store when dispatch told
him to go back, that’s not fear. When you look at his failure to
warn—you know, he’s all concerned, wait a second, there’s [a
group of girls] here. . . . [Y]ou can also hear in his tone. When
you listen to the 911 call, . . . he’s calm as a cucumber.”
During rebuttal argument, the prosecutor responded:
“Now, this idea that there was no fear here—and remember that
we’re talking about separate counts. . . . [W]e have a robbery as
count 1, and we have criminal threats as count 4. Now, in a
robbery it doesn’t matter if the person is scared or not. It just
matters if the person used or attempted to use fear to effectuate a
taking. So if I’ve threaten[ed] you in that situation, and you’re
not afraid of me, it doesn’t matter for a robbery as long as I try to
make you afraid.”
After the trial court excused the jury for the day, counsel
for Swain objected to the prosecutor’s argument on the element of
fear. Counsel stated the prosecutor “was making [it] into an
objective, not a subjective definition. He—it was along the lines
of the person doesn’t need to have fear as long as my client
intended for there to be fear—something along those lines. I
didn’t . . . write down the exact wording.”
The trial court asked if counsel for Swain wanted the jurors
to understand “that the taking has to be effectuated by force and
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fear.” Counsel answered, “[T]he way I took the statement was a
misinterpretation of the last line of fear is fear of injury to a
person.” The trial court responded, “I think [the prosecutor] did
say several times that the taking has to be effectuated by force
and fear, which is the correct statement of the law. I think he
was attempting to distinguish the fear experienced during a
robbery [from] the fear experienced in criminal threats. But in
any case . . . I find no error.”
2. Swain Forfeited His Argument the Trial Court’s
Instructions on Robbery Were Erroneous
A trial court has a duty to “‘“instruct on general principles
of law relevant to the issues raised by the evidence and necessary
for the jury’s understanding of the case.”’” (People v. Covarrubias
(2016) 1 Cal.5th 838, 873.) A party may not argue on appeal that
an instruction “‘correct in law and responsive to the evidence’”
was incomplete unless the party requested a clarifying
instruction. (Id. at p. 901; see People v. Buenrostro (2018)
6 Cal.5th 367, 428 [“‘[a] party may not argue on appeal that an
instruction correct in law was too general or incomplete, and thus
needed clarification, without first requesting such clarification at
trial’”].)
Swain does not dispute that the trial court properly
instructed the jury on the elements of robbery.3 Therefore,
3 Although “the fear necessary for robbery is subjective in
nature, requiring proof ‘that the victim was in fact afraid, and
that such fear allowed the crime to be accomplished,’” the trial
court does not need to instruct the jury on this aspect of the fear
element. (People v. Anderson (2007) 152 Cal.App.4th 919, 946;
see People v. Griffin (2004) 33 Cal.4th 1015, 1025-1026 [“‘The
terms “force” and “fear” as used in the definition of the crime of
6
Swain’s failure to object to the court’s instruction or request an
additional one forfeited his argument the trial court erred in
instructing on robbery. (See People v. Harris (2013) 57 Cal.4th
804, 852, fn. 14 [defendant forfeited any argument the court
should have given an additional instruction on robbery where
“the court correctly instructed the jury on the elements of
robbery, and defendant failed to request a clarifying instruction
at trial”]; People v. Bolden (2002) 29 Cal.4th 515, 557
[instructions on robbery “correctly explained the requirement
that force or fear be used to accomplish the taking,” and if
“defendant thought the point needed additional clarification or
explanation, defendant should have ‘requested appropriate
clarifying or amplifying language’ [citation]; absent such a
request, the point is not preserved for appellate review”]; People
v. Morehead (2011) 191 Cal.App.4th 765, 774 [“Because the
court’s instruction did not omit or withdraw an element from the
jury’s determination, [the defendant] was required to request an
additional or clarifying instruction if he believed that the
instructions the court gave under CALCRIM No. 1600 were
incomplete or needed elaboration,” and because he failed to do so,
“error cannot now be predicated upon the court’s failure to give
such an additional or clarifying instruction.”].)
Swain acknowledges his counsel should have requested the
additional or clarifying instruction he now asserts the court
should have given. (See People v. Covarrubias, supra, 1 Cal.5th
at p. 901; People v. Morehead, supra, 191 Cal.App.4th at p. 774.)
Swain argues, however, that such a request would have been
futile because the trial court overruled counsel for Swain’s
robbery have no technical meaning peculiar to the law and must
be presumed to be within the understanding of jurors.’”].)
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objection to the prosecutor’s rebuttal argument that misstated
the element of fear.4
The record does not support Swain’s argument. A
defendant is excused from failing to object if an objection would
have been futile. (People v. Seumanu (2015) 61 Cal.4th 1293,
1328; People v. Sandoval (2007) 41 Cal.4th 825, 837, fn. 4.) An
objection is futile if making it would have been “fruitless” or an
“‘idle act[ ].’” (People v. Kitchens (1956) 46 Cal.2d 260, 263;
People v. Curlee (2015) 237 Cal.App.4th 709, 715; People v.
Hopkins (1992) 10 Cal.App.4th 1699, 1702.) To invoke the
futility exception, the defendant must demonstrate, with
citations to the record, that an objection would have been futile;
the “ritual incantation that [the] exception applies is not enough.”
(People v. Panah (2005) 35 Cal.4th 395, 462.)
Here, counsel for Swain objected only once, and to the
prosecutor’s argument, not the instruction. Nothing in the record
suggests counsel could not have made a similar objection to the
court’s instructions on robbery or proposed an additional jury
instruction. To the contrary, the record shows the trial court
entertained and ruled on counsel for Swain’s objections
4 The People concede the prosecutor’s rebuttal argument
misstated the law. Swain does not argue, however, his conviction
should be reversed because the prosecutor engaged in
misconduct. (See People v. Rivera (2019) 7 Cal.5th 306, 337 [“‘[I]t
is misconduct for a prosecutor, during argument, to misstate the
law [citation], or to invite or encourage the jury to do what the
law prohibits.’”]; People v. Potts (2019) 6 Cal.5th 1012, 1036
[prosecutorial misconduct “occurs when a prosecutor misstates
the law by, for example, making remarks that would ‘absolve the
prosecution from its prima facie obligation to overcome
reasonable doubt on all elements’”].)
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throughout the trial. A request for an additional or clarifying
instruction on robbery would not have been futile. (See People v.
Friend (2009) 47 Cal.4th 1, 29 [objecting would not have been
futile because defense counsel objected frequently and the “trial
court kept a firm hand” and “maintained a fair proceeding”];
People v. Dykes (2009) 46 Cal.4th 731, 775 [objecting would not
have been futile where defense counsel did not experience
constant “misstatements, demeaning sarcasm, and falsehoods, or
ongoing hostility on the part of the trial court, to appropriate,
well-founded objections”]; cf. People v. Hill (1998) 17 Cal.4th 800,
821 [given the “constant barrage” of unethical conduct by the
prosecutor, “coupled with the trial court’s failure to rein in her
excesses,” any attempt by defense counsel to object “would have
been futile and counterproductive to his client”].)5
3. Any Error in the Instructions on Robbery Was
Harmless
Even if Swain had not forfeited his argument, any failure
by the trial court to instruct that actual fear is an element of
robbery was harmless. Swain argues the applicable harmless
5 People v. Abbaszadeh (2003) 106 Cal.App.4th 642, cited by
Swain, is readily distinguishable. In that case the Supreme
Court held defense counsel was excused from failing to object to a
trial judge’s “astonishing” remarks during jury selection* because
the same judge had rejected defense counsel’s repeated attempts
to challenge the same remarks in another case. (Id. at pp. 645,
648.) There is nothing like that here.
*The trial judge had a practice of instructing “prospective jurors
to lie about racial prejudice and make up reasons to avoid jury
service” and “to hide invidious bias.” (Id. at p. 644.) The court
in Abbaszadeh sent a copy of its opinion to the Commission on
Judicial Performance. (Id. at p. 651.)
9
error standard is the one under Chapman v. California (1967)
386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705] of beyond a reasonable
doubt. The Chapman standard applies, however, when the trial
court misstates or omits an element of the offense. (People v.
Lamas (2007) 42 Cal.4th 516, 526; People v. Campbell (2020)
51 Cal.App.5th 463, 493.) As discussed, that did not occur here.
Instead, the applicable harmless error standard is the one
under People v. Watson (1956) 46 Cal.2d 818, 836, which applies
where there are ambiguous, conflicting, or wrongly omitted jury
instructions. (People v. Chism (2014) 58 Cal.4th 1266, 1299;
People v. Beltran (2013) 56 Cal.4th 935, 955.) Under this
standard, Swain must show he would have obtained a more
favorable result had the trial court given an additional
instruction that “actual fear is an element of robbery.”
Swain has not shown that, had the trial court given this
instruction, he would have obtained a more favorable result. The
evidence Lopez was afraid was strong. (See People v. Brooks
(2017) 3 Cal.5th 1, 41 [any instructional inadequacy was
harmless where the evidence of the defendant’s guilt was strong];
People v. Mayo (2006) 140 Cal.App.4th 535, 551 [instructional
error on the presumption of innocence was harmless where “the
evidence of guilt was strong”].) “‘Actual fear may be inferred
from the circumstances, and need not be testified to explicitly by
the victim.’” (People v. Bordelon (2008) 162 Cal.App.4th 1311,
1319; see People v. Montalvo (2019) 36 Cal.App.5th 597, 612 [“the
victim need not explicitly testify that he or she was afraid of
injury where there is evidence from which it can be inferred that
the victim was in fact afraid of injury”].) And “the victim’s fear
need not be extreme to constitute robbery.” (People v. Morehead,
supra, 191 Cal.App.4th at p. 775; see Bordelon, at p. 1319 [the
10
“‘extent of the victim’s fear “do[es] not need to be extreme”’”].)
Lopez testified that, while he was outside the store, Swain said
he was going to hurt and “poke” Lopez, Lazaro, and the clerk,
which scared Lopez. Lopez testified Swain’s additional
statement, that he had no problem murdering him, made him
“even more terrified.” Lopez stated that his fear “linger[ed] on
throughout the entire incident” and that Swain’s use of the
screwdriver led Lopez to believe Swain was going to cause “bodily
harm to [him].” While Lopez may have appeared unafraid
externally, as suggested by counsel for Swain’s description of
Lopez’s actions in the surveillance video, and the tone of Lopez’s
voice in the recording of his 911 call may not have been unsteady
or quivering, Lopez’s testimony at trial was consistent and
unequivocal: Lopez was actually afraid Swain was going to hurt
him with the screwdriver.
B. The Trial Court’s Instruction on the Weapon
Enhancement Was Erroneous, and the Error Was Not
Harmless Beyond a Reasonable Doubt
1. Relevant Proceedings
The trial court instructed the jury with CALCRIM
No. 3145: “If you find the defendant guilty of the crime charged
in count 1, which is robbery, you must then decide whether the
People have proved the additional allegation that the defendant
personally used a deadly weapon during the commission of that
crime. A deadly weapon is an object, instrument, or weapon that
is inherently deadly or one that is used in such a way that it is
capable of causing and likely to cause death or great bodily
injury.” The trial court also instructed the jury: “Someone
11
personally uses a deadly weapon if he or she intentionally . . .
displays the weapon in a menacing manner.”
In closing argument, the prosecutor argued a screwdriver is
an inherently dangerous weapon: “A deadly or dangerous
weapon is any object, instrument, or weapon that is inherently
deadly or dangerous or one that is used in such way that it is
capable of causing and likely to cause death or great bodily
injury. . . . [I]f you find [Swain] guilty of either [robbery] or
[criminal threats] or both counts, then you ask yourselves: Did
[Swain] personally use a deadly or dangerous weapon? And he
did only if he intentionally did any of the following. The one
thing you have to consider is that he displayed it in a menacing
manner. So if he had that item, that screwdriver, which is an
inherently dangerous item because it’s sharp. It’s like a knife.
Because if you used it on somebody, you could hurt them or cause
great bodily injury. If you use that knife in a menacing manner
. . . or displayed that screwdriver in a menacing manner, then
[at] that point, he has satisfied this particular special
allegation[.]”
2. The Trial Court Presented the Jury with a
Legally Erroneous Theory
The Supreme Court has distinguished two categories of
incorrect theories. (People v. Aledamat (2019) 8 Cal.5th 1, 7
(Aledamat); People v. Guiton (1993) 4 Cal.4th 1116, 1128.) A
factually inadequate theory “is an otherwise valid legal theory
that is not supported by the facts or evidence in a case.”
(Aledamat, at pp. 7-8.) A legally inadequate theory “is incorrect
because it is contrary to law.” (Id. at p. 7.) We presume jurors
are able to evaluate and ignore factually incorrect theories. (Id.
12
at p. 8; Guiton, at p. 1125.) Legally incorrect theories require a
more stringent standard of prejudice because jurors are less able
to identify an incorrect statement of the law. (Aledamat, at p. 8;
Guiton, at p. 1125.)
Here, the trial court presented the jury with two theories to
find the screwdriver was a deadly weapon: the screwdriver was
“inherently deadly” and Swain used the screwdriver “in a deadly
way.” Swain argues, the People concede, and we agree the trial
court committed a legal error because a screwdriver is not an
inherently deadly or dangerous weapon. (See People v. Koback
(2019) 36 Cal.App.5th 912, 924; People v. Simons (1996)
42 Cal.App.4th 1100, 1106-1107.)6
3. The Trial Court’s Error Was Not Harmless
Beyond a Reasonable Doubt
The Supreme Court has held that the Chapman harmless
error standard applies to an “alternative-theory error” like the
one here. (Aledamat, supra, 8 Cal.5th at p. 13.) The Supreme
Court stated that the “reviewing court must reverse the
conviction unless, after examining the entire cause, including the
evidence, and considering all relevant circumstances, it
determines the error was harmless beyond a reasonable doubt.”
(Ibid.) In determining under Chapman “whether the error was
harmless, the reviewing court is not limited to a review of the
6 In addition, as noted, section 12022, subdivision (b)(1),
applies when the defendant “uses a deadly or dangerous weapon
in the commission of a felony or attempted felony.” The court’s
instruction did not refer to “dangerous,” but the prosecutor
argued (consistent with the statute but inconsistent with the
instruction) Swain used a “deadly” or “dangerous” weapon.
13
verdict itself. An examination of the actual verdict may be
sufficient to demonstrate harmlessness, but it is not necessary.”
(Ibid.) The reviewing court should consider the likelihood the
jury applied the incorrect instruction, “not simply the strength of
the evidence to support a guilty verdict using the correct
instruction.” (People v. Thompkins (2020) 50 Cal.App.5th 365,
399.)
In Aledamat, supra, 8 Cal.5th 1, which involved a box
cutter rather than a screwdriver, the Supreme Court held the
same instructional error the trial court in this case committed
was harmless under Chapman. Aledamat, however, is
distinguishable. The trial court in Aledamat gave an instruction
the trial court in this case did not give: “‘In deciding whether an
object is a deadly weapon, consider all of the surrounding
circumstances including when and where the object was
possessed and any other evidence that indicates whether the
object would be used for a dangerous rather than a harmless
purpose.’” (Id. at p. 14.) The Supreme Court concluded that the
jury “would likely view the ‘inherently deadly’ language in light
of this additional instruction that it had to consider all of the
circumstances” and that it was “unlikely the jury would simply
view the box cutter as inherently deadly without considering the
circumstances, including how defendant used it.” (Ibid.) That
crucial instruction is missing here. Therefore, unlike Aledamat,
it is equally likely the jury here found the weapon allegation true
under the “inherently deadly” theory or the “as-used” theory.
Aledamat is distinguishable in another way. The
defendant in Aledamat thrust a box cutter at the victim’s waist
from a few feet away. (Aledamat, supra, 8 Cal.5th at p. 4.) The
Supreme Court held that, even if the jury applied a colloquial
14
understanding of “inherently deadly,” it would have found “the
box cutter deadly in the colloquial sense of the term—i.e., readily
capable of inflicting deadly harm—and that defendant used it as
a weapon.” (Id. at p. 15.) Here, there was conflicting testimony
on how Swain used the screwdriver. Lopez testified that he saw
Swain bring a sharp object out of his pocket and hold it at chest
level and that, when he was outside the store with Lazaro and
the clerk, Swain lunged at them. Lazaro testified, however, that
he did not remember if Swain was still holding the “object” when
the four men were outside the store and that Swain approached
the clerk, not Lazaro. Lazaro also testified he never saw Swain
use the screwdriver aggressively. Thus, even if the jury used the
“colloquial sense” of the term “inherently deadly,” the jury may
not have found that Swain’s use of the screwdriver was readily
capable of inflicting injury. (See Aledamat, at p. 15.)
Courts also “look to the prosecutor’s argument as a relevant
circumstance in determining whether instructional error is
harmless.” (People v. Powell (2021) 63 Cal.App.5th 689, 715.) In
particular, courts consider whether the prosecution focused its
argument on the incorrect theory of law. (Id. at pp. 715-716; In re
Martinez (2017) 3 Cal.5th 1216, 1226-1227.) In Aledamat, supra,
8 Cal.5th 1 the prosecutor “[a]t one point . . . stated that the box
cutter was inherently deadly because ‘you wouldn’t want your
children playing with’ it, without further explaining the term.
But no one ever suggested to the jury that there were two
separate ways it could decide whether the box cutter was a
deadly weapon.” (Id. at p. 14.) In contrast, the prosecutor here
told the jurors they could find the weapon allegation true because
a screwdriver, like a knife, was inherently dangerous and
because a screwdriver could be used or displayed in a menacing
15
manner. Not only did the prosecutor argue both theories, the
prosecutor made incorrect statements of law. As discussed,
neither a screwdriver nor a knife is an inherently deadly or
dangerous weapon. (See People v. McCoy (1944) 25 Cal.2d 177,
188; People v. Simons, supra, 42 Cal.App.4th at pp. 1106-1107.)
The People also argue no reasonable jury could find Swain
displayed the screwdriver “in a menacing manner” without also
finding he used the screwdriver as a deadly or dangerous weapon.
But that’s not true. The trial court instructed the jury that using
a deadly weapon meant displaying it in a menacing manner.
Thus, by finding Swain used the screwdriver menacingly, the
jury found that he used it personally, not that he was necessarily
using it in a way capable of causing death or injury. Considering
the evidence and relevant circumstances (Aledamat, supra,
8 Cal.5th at p. 13), we cannot conclude the trial court’s
instructional error on the deadly or dangerous weapon allegation
was harmless beyond a reasonable doubt.
16
DISPOSITION
The robbery conviction is affirmed. The true finding on the
weapon allegation is reversed. The trial court is directed to
conduct a new trial on the enhancement.
SEGAL, J.
We concur:
PERLUSS, P. J.
McCORMICK, J.*
* Judge of the Orange County Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
17