Court San Bernardino County No. FVI1300082, Ct. App. 4/2
E062540 Debra Harris Judge:
L. Dodd, under appointment by the Supreme Court, for
Defendant and Appellant.
D. Harris, Attorney General, Kathleen A. Kenealy, Acting
Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Arlene
A. Sevidal, Steven T. Oetting, Meredith White and Christen
Somerville, Deputy Attorneys General, for Plaintiff and
convicted defendant Andre Merritt of two counts of robbery
and found true allegations that he personally used a firearm
during both robberies. However, the trial court failed to
give the standard jury instruction on the elements of
robbery. The failure to instruct on the elements of a charged
crime is serious constitutional error that impacts a
defendant's fundamental right to a jury trial. We must
decide whether the error can ever be found harmless.
People v. Cummings (1993) 4 Cal.4th 1233
(Cummings), this court held similar error to be
reversible per se. However, developments since then,
including the high court decision in Neder v. United
States (1999) 527 U.S. 1 (Neder), have made
that holding obsolete. Obviously, the more elements that the
instructions omit, the more likely it is that the error is
prejudicial. But we see no need to hold categorically that
error in failing to instruct on elements of the offense can
never be found harmless. Instead, harmless error analysis
applies if the error at issue does not “
‘vitiat[e] all the jury's findings.'
” (Id. at p. 11.) No such vitiation occurred
here. Although this jury did not receive the standard robbery
instructions, it was instructed on the mental state required
for the crime, on the need to find defendant's identity
as the perpetrator, and on the elements of the firearm use
allegation. In such circumstances, the error is not
reversible per se but is reversible unless harmless beyond a
trial, defendant conceded that the perpetrator, whoever he
was, was guilty of robbery, i.e., that all of the elements of
robbery were present. His defense was solely that he was not
the perpetrator. The crimes were recorded, making the
concession virtually compelled. Because of this concession
and other circumstances, the error, serious though it was,
was harmless beyond a reasonable doubt.
Factual and Procedural History
December 19, 2012, around 5:00 p.m., Kristen Wickum was
working at the front counter of Storage Direct, in
Victorville. A man approached the front counter, pulled out a
gun, and demanded money. Frightened, Wickum gave the man
around $338. The man broke the office telephone, and then
left. He was wearing a “hoody, ” but Wickum could
see his face. Wickum identified defendant as the perpetrator
from a photographic lineup, although she could not identify
him at trial. A video camera recorded the events. The
recording was played for the jury.
6:20 p.m. the same day, Christian Lopez was working at La
Mexicana, a convenience store in Victorville. A man pointed a
gun at Lopez and demanded money. Fearful that the man would
shoot him, Lopez gave him around $700. The man kicked Lopez
in the back as he left the store. Lopez identified defendant
in court as the perpetrator and had previously identified him
from a photographic lineup. An audio and video camera
recorded the events. The recording was played for the jury.
presented an alibi defense. Defendant's mother testified
that the night of December 18, 2012, she picked him up from
the local jail and took him home, where he and others
celebrated his release from jail. The group smoked marijuana
and played video games. The party lasted “at least two
or three days.” Defendant's mother testified that
defendant never left the house from 5:00 p.m. to around 6:00
p.m., December 19, 2012. He was at home “on the
computer.” She said he did not leave the house for
about four days after being released from jail.
Defendant's brother testified that he specifically
remembered defendant being home from around 4:30 p.m. to 6:30
p.m. the afternoon of December 19, 2012.
Bernardino County Sheriff's detective testified in
rebuttal that he was present when defendant was interviewed.
Defendant said he was at home “earlier in the
day” on December 19, 2012, but then he walked to a
friend's residence, where he spent the night of December
was charged with two counts of robbery with a firearm use
allegation. (Pen. Code, §§ 211, 12022.53, subd.
(b).) The trial court did not give the jury the standard
instruction on the elements of robbery. (CALCRIM No. 1600.)
It did instruct the jury that the “specific intent and
mental state required for the crime of robbery is the
specific intent to permanently deprive the owner of the
property when it is taken.” It also instructed the jury
on the firearm use allegation. The instruction required the
jury to find that defendant either displayed the weapon in a
menacing manner, hit someone with the weapon, or fired the
weapon. (CALCRIM No. 3146.)
the court instructed the jury that the “People have the
burden of proving beyond a reasonable doubt that it was the
defendant who committed the crime. If the People have not met
this burden you must find the defendant not guilty.” It
also instructed that the “People must prove that the
defendant committed the crimes charged.... The defendant
contends he did not commit these crimes and that he was
somewhere else when the crimes were committed. The People
must prove that the defendant was present and committed the
crimes with which he is charged. The defendant does not need
to prove he was elsewhere at the time of the crime. If you
have a reasonable doubt about whether the defendant was
present when the crime was committed you must find him not
argument to the jury, the prosecutor said, “The
instructions are that the defendant took property that was
not his own. That the property was in the possession of
another person. Property was taken from the other person or
immediate presence. Property was taken against that
person's will. The defendant used force or fear to take
the property or prevent the person from resisting. And,
finally, when the defendant used force or fear to take the
property intended to deprive the owner of it permanently.
You'll see the instruction in the instructions also that
the employee owns the property of the business. So you have
argument to the jury, defense counsel said, “Now, [the
prosecutor] already went through the elements of robbery.
Number 1, the defendant took property that was not his own.
Two, the property was in the possession of another person.
Three, the property was taken from the other person or her
immediate presence. The property was taken against that
person's will and the defendant used force or fear to
take the property or to prevent the person from resisting.
And when the defendant used force or fear to take the
property, he intended to deprive the owner of it permanently.
That's [legalese] for, he intended to steal it. Now,
there is no question here, as [the prosecutor] said, no
question these people were robbed, okay. Our only contention
is with element number one that it was not the defendant. Not
jury convicted defendant of both counts of robbery and found
the firearm use allegations true. The court sentenced him
accordingly. On appeal, he argued that the judgment must be
reversed because the trial court failed to instruct the jury
on the elements of robbery. The Attorney General conceded the
error but argued it was harmless beyond a reasonable doubt.
Relying on Cummings, supra, 4 Cal.4th 1233,
the Court of Appeal found the error reversible per se and
reversed the judgment.
granted the Attorney General's petition for review.
the court failed to give the standard instruction on the
elements of robbery and, instead, instructed only on the
required mental state element, the jury was not instructed on
the following elements of robbery: (1) defendant took
property that was not his own; (2) the property was in the
possession of another person; (3) the property was taken from
the other person or his or her immediate presence; (4) the
property was taken against that person's will; and (5)
the defendant used force or fear to take the property or to
prevent the person from resisting. (Pen. Code, § 211;
see CALCRIM No. 1600.)
instructing on these elements of robbery is constitutional
error. The trial court has a sua sponte duty to instruct the
jury on the essential elements of the charged offense.
(People v. Mil (2012) 53 Cal.4th 400, 409
(Mil).) It is, indeed, very serious constitutional
error because it threatens the right to a jury trial that
both the United States and California Constitutions
guarantee. (U.S. Const., 6th Amend.; Cal. Const., art. I,
§ 16.) All criminal defendants have the right to
“a jury determination that the defendant is guilty of
every element of the crime with which he is charged, beyond a
reasonable doubt.” (United States v. Gaudin
(1995) 515 U.S. 506, 510; accord, Apprendi v. New
Jersey (2000) 530 U.S. 466, 477.)
right to have a jury make the ultimate determination of guilt
has an impressive pedigree. Blackstone described ‘trial
by jury' as requiring that ‘the truth of every
accusation... should afterwards be confirmed by the
unanimous suffrage of twelve of [the defendant's] equals
and neighbors....' 4 W. Blackstone, Commentaries on the
Laws of England 343 (1769) (emphasis added). Justice Story
wrote that the ‘trial by jury'... right was
designed ‘to guard against a spirit of oppression and
tyranny on the part of rulers, ' and ‘was from very
early times insisted on by our ancestors in the parent
country, as the great bulwark of their civil and political
liberties.' [2 Story, Commentaries on the Constitution of
the United States (4th ed. 1873) pp. 540-541.]”
(United States v. Gaudin, supra, 515 U.S.
at pp. 510-511, fn. omitted.)
decide whether error in failing to instruct on the elements
of robbery is amenable to harmless error analysis and, if so,
whether the error was harmless in this case.
the Error Amenable to Harmless Error Analysis?
Cummings, supra, 4 Cal.4th 1233, the
codefendant, Gay, was convicted of multiple counts of
robbery, attempted robbery, and conspiracy to commit robbery.
As in this case, the court instructed the jury on the mental
state required for robbery but otherwise failed to instruct
on the elements of the crime. The failure to so instruct was
obviously error. (Id. at pp. 1311-1312.) We
considered the effect of the error.
reviewing the then-existing United States Supreme Court
decisions, we found the error not subject to harmless error
analysis but instead reversible per se. We explained that the
high court “decisions make a clear distinction between
instructional error that entirely precludes jury
consideration of an element of an offense and that which
affects only an aspect of an element. Moreover, none suggests
that a harmless error analysis may be applied to
instructional error which withdraws from jury consideration
substantially all of the elements of an offense and did not
require by other instructions that the jury find the
existence of the facts necessary to a conclusion that the
omitted element had been proved.” (Cummings,
supra, 4 Cal.4th at p. 1315.) Accordingly, and
“regardless of the merits of the People's argument
that Gay did not dispute the ...