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People v. Merritt

Supreme Court of California

March 20, 2017

THE PEOPLE, Plaintiff and Respondent,
v.
ANDRE MERRITT, Defendant and Appellant.

         Superior Court San Bernardino County No. FVI1300082, Ct. App. 4/2 E062540 Debra Harris Judge:

          John L. Dodd, under appointment by the Supreme Court, for Defendant and Appellant.

          Kamala 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 Respondent.

          Chin, J.

         A jury 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.

         In 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 reasonable doubt.

         At 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.

         I. Factual and Procedural History

         On 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.

         Around 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.

         Defendant 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.

         A San 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 19.

         Defendant 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.)

         Additionally, 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 guilty.”

         In his 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 all this.”

         In his 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 the defendant.”

         The 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.

         We granted the Attorney General's petition for review.

         II. Discussion

         Because 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.)

         Not 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.)

         “The 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.)

         We must 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.

         A. Is the Error Amenable to Harmless Error Analysis?

         In 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.

         After 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 ‚Äúregardless of the merits of the People's argument that Gay did not dispute the ...


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