People v. Cordova CA4/1

Filed 8/23/22 P. v. Cordova 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D079487
Plaintiff and Respondent,
v. (Super. Ct. No. SCS316612)
MICHAEL ANGEL CORDOVA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Enrique Camarena, Judge. Affirmed.
Robert L. Hernandez, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General, Melissa
Mandel, and Britton B. Lacy, Deputy Attorneys General, for Plaintiff and
Respondent.
A jury convicted Michael Angel Cordova of second degree robbery (Pen.
Code,1 § 211) and found true a special allegation that Cordova personally
used a dangerous and deadly weapon (§ 12022, subd. (b)(1)). Cordova also
admitted a prior serious felony (§§ 667, subd. (a)(1), 1192.7, subd. (c), 668)
and a prior strike (§§ 667, subds. (b)-(i), 1170.12, 668). At sentencing, the
court struck the prior serious felony and stayed the deadly weapon
enhancement. The court sentenced Cordova to prison for the lower term of
two years for the robbery, doubled for the prior strike, for a term of four
years. In addition, the court sentenced Cordova for an additional eight
months for a separate charge under section 4573.8, which is not at issue in
this case. Thus, Cordova was sentenced to a total of four years and eight
months.
Cordova argues that the trial court erred by instructing the jury on
shopkeeper’s privilege because it lessened the People’s burden of proof at
trial. We conclude that even if the trial court erred in providing that
instruction, Cordova has not shown that he was prejudiced by such error. As
such, we affirm the judgment.
I.
FACTUAL AND PROCEDURAL BACKGROUND
In January 2021, Cordova entered a Home Depot store. T.F., a Home
Depot asset protection specialist, observed Cordova walk down an aisle, look
around to see who was watching him, select an item off the shelf, and conceal
it inside his jacket. Cordova walked towards an exit and T.F. followed him.
T.F. signaled a manager-on-duty, F.K., to follow him as Cordova exited the
store. Cordova did not pay for the item.
1 All further statutory references are to the Penal Code.
2
Cordova exited the store, and T.F. and F.K. approached him outside.
T.F. identified himself as Home Depot loss prevention and stated, “I need my
merchandise back.” T.F. told him he would be free to leave if he returned to
the store and signed some papers. Cordova refused to reenter the store. He
said he did not have anything from Home Depot and asked T.F. to leave him
alone.
T.F. testified that during the interaction with Cordova, T.F. “was kind
of playing tag” with him. At some point, Cordova handed T.F. a stolen
product but not the product T.F. witnessed him take. T.F. told Cordova that
if he returned the product T.F. witnessed him take, “we will call it even,” and
“[y]ou can leave.”
T.F. continued to ask Cordova for the product and stated, “It’s right
here under your armpit.” During the back and forth over the product, T.F.
testified that he grabbed Cordova’s glasses that were falling off his face.2
As T.F. reached for the product, Cordova moved away, pulled out a
knife, and stated, “Step back or I’ll stab you.” Once Cordova pulled out the
knife, T.F., F.K., and a third witness observing the incident stepped back.
F.K. then called 9-1-1.
Cordova left the front of the store, picked up a backpack he left at the
corner of the store, and ran toward a ravine near the store. He later emerged
from the ravine when police arrived on the scene.
A responding officer found the knife on Cordova’s person. The
responding officer also noticed a red mark on Cordova’s face when later
reviewing the body-worn video camera footage from the day of the incident.
2 F.K. testified that he did not witness T.F. hit Cordova during the
incident. F.K. further testified that according to the store’s policy, the store
would terminate a loss prevention officer who hit a customer or shoplifter.
3
After police detained Cordova, T.F. identified a flashlight that Cordova left in
the ravine as the product he witnessed Cordova conceal under his jacket in
the store.
The People filed a felony complaint charging Cordova with one count of
robbery (§ 211) with a special allegation that he personally used a deadly and
dangerous weapon (§ 12022, subd. (b)(1)). The People further alleged a prior
serious felony (§§ 667, subd. (a)(1), 1192.7, subd. (c), 668) and a prior strike
(§§ 667, subds. (b)-(i), 1170.12, 668).
Cordova pled not guilty. He also admitted the prior serious felony and
the prior strike.
Prior to closing arguments, the People specially requested a jury
instruction on shopkeeper’s privilege. Despite defense counsel’s objection, the
court granted the request but modified the instruction to define “merchant.”
It instructed the jury by quoting the following from section 490.5,
subdivisions (f)(1), (2), and (g)(2):
“A merchant may detain a person for a reasonable time for
the purpose of conducting an investigation in a reasonable
manner whenever the merchant has probable cause to
believe the person to be detained is attempting to
unlawfully take or has unlawfully taken merchandise from
the merchant’s premises.
“In making a detention a merchant may use a reasonable
amount of nondeadly force necessary to protect himself or
herself and to prevent escape of the person detained or the
loss of tangible or intangible property.
“ ‘Merchant’ means an owner or operator, and the agent,
consignee, employee, lessee, or officer of an owner or
operator, of any premises used for the retail purchase or
sale of any personal property capable of manual delivery.”
4
Defense counsel also specially requested a self-defense instruction. The
court denied the request because “self-defense is generally not a recognized
defense to a robbery charge.”
Prior to closing arguments, the court recited the jury instructions. The
court included instructions on reasonable doubt according to CALCRIM
No. 220, the elements of robbery according to CALCRIM No. 1600, and intent
from circumstantial evidence according to CALCRIM No. 225.
During closing argument, defense counsel emphasized that “Each and
element needs to be met beyond a reasonable doubt.” (Sic.) Counsel also
reminded the jurors that if they reasonably concluded that Cordova’s intent
when he displayed the knife was “simply to get away,” then “the required
mental state was not proved,” and “you have to find him not guilty.”
The jury found Cordova guilty of second degree robbery (§ 211) and
found true that he personally used a deadly and dangerous weapon (§ 12022,
subd. (b)(1)).
Cordova filed a timely notice of appeal.
II.
DISCUSSION
Cordova contends that the jury instruction on shopkeeper’s privilege
undermined his defense theory at trial and thereby lessened the People’s
burden of proof. At trial, Cordova argued that he used force to defend himself
from the store employees and did not use force to maintain possession of the
stolen items. On appeal, he asserts that the subject instruction “invited the
jury to conclude that the store employees were acting according to the law,
and that any resistance by [Cordova], therefore, must have been improper
and contrary to the law.” Therefore, the instruction impermissibly placed
“the burden on [Cordova] to prove that he was not acting unlawfully.”
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A. Standard of Review
We review purported instructional error de novo. (People v. Rivera
(2019) 7 Cal.5th 306, 326.) “[W]e 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.)
The court examines jury instructions as a whole and “ ‘ “not from a
consideration of parts of an instruction or from a particular instruction.” ’ ”
(People v. Covarrubias (2016) 1 Cal.5th 838, 905 (Covarrubias), quoting
People v. Solomon (2010) 49 Cal.4th 792, 822.)
Additionally, when reviewing jury instructions for error, “ ‘It is
fundamental that jurors are presumed to be intelligent and capable of
understanding and applying the court’s instructions.’ ” (Covarrubias, supra,
1 Cal.5th at p. 926, quoting People v. Gonzales (2011) 51 Cal.4th 894, 940.)
“ ‘If reasonably possible, instructions are interpreted to support the judgment
rather than defeat it.’ ” (People v. Powell (2021) 63 Cal.App.5th 689, 710,
quoting People v. McPheeters (2013) 218 Cal.App.4th 124, 132.) In addition to
the instructions themselves, “The reviewing court also must consider the
arguments of counsel in assessing the probable impact of the instruction on
the jury.” (People v. Young (2005) 34 Cal.4th 1149, 1202.) Thus, “An
erroneous instruction requires reversal only when it appears that the error
was likely to have misled the jury.” (People v. Tatman (1993) 20 Cal.App.4th
1, 10.)
B. Adequacy of Instructions
In criminal cases, a trial court must instruct the jury on the law that
applies to the issues raised in the case. (People v. Rangel (2016) 62 Cal.4th
1192, 1223.) However, “A technically correct instruction will nevertheless be
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considered erroneous if in light of other instructions it could cause a
reasonable jury to believe that it was required to find against the defendant
on an essential element of the offense [citation], that the burden had shifted
to the defendant with respect to an essential element of the offense [citation],
or that its consideration of all of the evidence with respect to an essential
element of the offense was restricted [citation].” (People v. Frye (1992) 7
Cal.App.4th 1148, 1160.) For example, a jury instruction may be
impermissibly argumentative when “it would invite the jury to draw
inferences favorable to [one party] from specified items of evidence on a
disputed question of fact.” (People v. Wright (1988) 45 Cal.3d 1126, 1135.)
Additionally, a trial court should not permit instructions that might confuse
the jury. (People v. Peoples (2016) 62 Cal.4th 718, 768.)
C. Shopkeeper’s Privilege
Shopkeeper’s privilege is a common law privilege intended to protect
merchants from claims of false imprisonment by providing an affirmative
defense against liability. (Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, 716,
723, fn. 8 (Fermino).) The California Legislature codified this privilege in
section 490.5: “A merchant may detain a person for a reasonable time for the
purpose of conducting an investigation in a reasonable manner whenever the
merchant has probable cause to believe the person to be detained is
attempting to unlawfully take or has unlawfully taken merchandise from the
merchant’s premises.” (Id., subd. (f)(1).) It further provides that “In making
the detention a merchant, . . . may use a reasonable amount of nondeadly
force necessary to protect himself or herself and to prevent escape of the
person detained or the loss of tangible or intangible property.” (Id.,
subd. (f)(2).) The statute defines “merchant” as “an owner or operator, and
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the agent, consignee, employee, lessee, or officer of an owner or operator, of
any premises used for the retail purchase or sale of any personal property
capable of manual delivery.” (Id., subd. (g)(2).)
D. Analysis
The trial court instructed the jury on shopkeeper’s privilege according
to section 490.5, subdivisions (f)(1), (2), and (g)(2). Cordova concedes that this
instruction reflected an accurate statement of the law but argues that it
implied a presumption that the store employees acted lawfully, and Cordova
did not.
We acknowledge that an instruction on shopkeeper’s privilege is
typically given as a defense for a merchant charged with false imprisonment.
(Fermino, supra, 7 Cal.4th at p. 723, fn. 8.) While this instruction provided
an accurate legal standard, we do not see the need for a shopkeeper’s
privilege instruction here in the context of a robbery case where a merchant
was not charged with false imprisonment. However, even assuming the court
erred in providing this instruction, such error was harmless.
We review an instructional error that does not implicate the appealing
party’s constitutional rights under a harmless error standard according to
People v. Watson (1956) 46 Cal.2d. 818.3 (People v. Lamer (2003) 110
Cal.App.4th 1463, 1471.) Under such standard, reversal is required only
when “it is reasonably probable that a result more favorable to the appealing
3 Cordova argues that a finding of instructional error in this case should
be reviewed under a harmless beyond a reasonable doubt standard according
to Chapman v. California (1967) 386 U.S. 18. The Chapman standard is not
applicable here because, as discussed, the instruction did not impermissibly
lessen the People’s burden of proof. Thus, any error did not implicate
Cordova’s constitutional rights such that we must review the instruction
under Chapman.
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party would have been reached in the absence of the error.” (Watson, at
p. 836.) In determining whether an instructional error was harmless under
Watson, we consider “ ‘the specific language challenged, the instructions as a
whole[,] the jury’s findings’ [citation], and counsel’s closing arguments to
determine whether the instructional error ‘would have misled a reasonable
jury . . . ’ [citation].” (People v. Eid (2010) 187 Cal.App.4th 859, 883 (Eid),
quoting People v. Cain (1995) 10 Cal.4th 1, 35-36, 37.)
Considering the sufficiency of the jury instructions as a whole, we do
not find that this single instruction lessoned the People’s burden such that it
prejudiced Cordova when other instructions clearly and repeatedly explained
the People’s burden of proof. For example, the court instructed the jury on
the elements of robbery according to CALCRIM No. 1600. Additionally, the
court instructed the jury on reasonable doubt according to CALCRIM No. 220
and on intent from circumstantial evidence according to CALCRIM No. 225.
Importantly, CALCRIM No. 1600 notes the following: “The defendant’s
intent to take the property must have been formed before or during the time
he used force or fear. If the defendant did not form this required intent until
after using the force or fear, then he did not commit robbery.” CALCRIM
No. 225 further clarifies intent: “The People must prove not only that the
defendant did the acts charged, but also that he acted with a particular
intent or mental state.” It also requires the jury to “be convinced that the
People have proved each fact essential to [finding the defendant guilty]
beyond a reasonable doubt” before relying on circumstantial evidence to make
a conclusion about Cordova’s intent. Thus, the jury received sufficient
instructions about the intent required to convict Cordova and about the
People’s burden to prove his intent beyond a reasonable doubt.
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In addition to these instructions, during closing argument, defense
counsel consistently and repeatedly emphasized the importance of reasonable
doubt and the intent required to find Cordova guilty. Counsel highlighted
that “Each and element needs to be met beyond a reasonable doubt.” (Sic.)
Counsel also advised the jurors that if they found Cordova’s self-defense
theory reasonable, then “the required mental state was not proved,” and “you
have to find him not guilty.” Under a harmless error review, we consider how
these arguments affect an instructional error. (Eid, supra, 187 Cal.App.4th
at p. 883.) Consequently, these arguments, which emphasized the high
burden the People faced, further show that the shopkeeper’s privilege
instruction did not mislead the jury to place the burden of proof on the
defendant or otherwise lessen the People’s burden of proof.
Furthermore, at no point did the jury ask for clarification about the
instructions on shopkeeper’s privilege, the elements of robbery, the requisite
intent, or reasonable doubt.4 Accordingly, the record does not suggest that
the instruction “likely confused the jury about how to address the questions
set before it,” as asserted by Cordova.
Assuming the jurors are capable of understanding all of its instructions
as required by Covarrubias, we find nothing in the record to support
Cordova’s contention that the shopkeeper’s privilege instruction compelled
the jurors to assume the store employees were acting lawfully and presume
Cordova was not. (Covarrubias, supra, 1 Cal.5th at p. 926.) Simply put,
Cordova has not demonstrated how such instruction resulted in a prejudicial
error, and we therefore affirm the judgment.
4 During jury deliberations, the court received one note from the jury
concerning a technical issue with one of the exhibits.
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DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
O’ROURKE, J.
DATO, J.
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