People v. Collins

• Decision Date: 10 June 2021
• Docket Number: B304853
• Citation: 279 Cal.Rptr.3d 407,65 Cal.App.5th 333
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jesse Quincy COLLINS, Defendant and Appellant.

65 Cal.App.5th 333

279 Cal.Rptr.3d 407

The PEOPLE, Plaintiff and Respondent,

v.Jesse Quincy COLLINS, Defendant and Appellant.

B304853

Court of Appeal, Second District, Division 2, California.

Filed June 10, 2021

Jonathan Soglin, San Francisco, and Megan Hailey-Dunsheath, Berkeley, 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, Assistant Attorney General, Paul M. Roadarmel Jr., Stephanie A. Miyoshi, and David F. Glassman, Deputy Attorneys General, for Plaintiff and Respondent.

HOFFSTADT, J.

CALCRIM No. 1600 is the pattern jury instruction for robbery. Among the other elements of robbery, the instruction requires the jury to find that "[t]he defendant used force or fear to take ... property [from a person's immediate possession] or to prevent the person [from whom the property is taken] from resisting." ( CALCRIM No. 1600.) It defines "fear" as "fear of [ ]injury to the person himself or herself" or "immediate injury to someone else present during the incident or to that person's property." (Ibid .) Critically, CALCRIM No. 1600 does not specify whether the jury must find that (1) the person from whom the property is taken—that is, the victim—was actually, subjectively in fear, or (2) an objective, reasonable person in the same circumstances would have been in fear. In our view, the pattern jury instruction should so specify.

This case illustrates why. Here, the prosecutor in closing argument repeatedly told the jury that "[t]he law is an objective standard" and that it did not "matter if anybody is afraid." However, the law has for decades required proof of the victim's actual, subjective fear. (E.g., People v. Montalvo (2019) 36 Cal.App.5th 597, 612, 248 Cal.Rptr.3d 708 ( Montalvo ); People v. Mungia (1991) 234 Cal.App.3d 1703, 1709, fn. 2, 286 Cal.Rptr. 394 ( Mungia ).) Because the prosecutor misstated the law, because the victim repeatedly denied being actually afraid, because CALCRIM No. 1600 does not speak to this issue, and because the trial court rejected defendant's entreaty to give a supplemental instruction in favor of letting the jury "sort that out," we are compelled to reverse the defendant's robbery conviction. However, because there was substantial evidence to sustain a finding of guilt, we also remand for further proceedings.

FACTS AND PROCEDURAL BACKGROUND

I. Facts

Around 6:00 p.m. on May 2, 2019, Jesse Quincy Collins (defendant) walked into a Walgreens in South Gate holding an empty blue bag. Defendant asked a store employee where he could find the AXE deodorant. He went to the aisle to which he was directed, knelt down, and started to "stuff[ ]" $128 worth of deodorant and shaving supplies into his bag.

The same employee who had answered defendant's question saw what he was doing and alerted the store's assistant manager, Amir Hasan (Hasan).

Hasan approached defendant, who rose to stand and turned to face Hasan after Hasan said, "Excuse me." As they stood arm's length (that is, approximately three feet apart), Hasan "quietly" and "discreetly" informed defendant that he should either pay for those items or place them back on the shelves. Hasan was trying not to make a scene. Defendant responded by asking Hasan if he could "let [defendant] take [the items]," and Hasan replied, "No."

Upon hearing this answer, defendant extended his arm toward Hasan to push Hasan out of his way. Hasan took one step back to avoid being touched, and firmly told defendant, "Don't touch me."

Defendant then reached into his pants pocket and pulled out a folding knife that was already opened. Defendant kept the knife in his palm, but made it visible to Hasan, which Hasan viewed as communicating: "This is what I got and you all ain't going to be able to do nothing."

Upon seeing the knife, Hasan took another step back from defendant and allowed defendant to exit the store with the bag full of merchandise and without paying for it.

II. Procedural Background

The People charged defendant with second degree robbery ( Pen. Code, § 211 ),¹ and alleged that he "personally used a deadly or dangerous weapon" (namely, a knife) (§ 12022, subd. (b)(1)). The People further alleged that defendant's 2014 conviction for robbery, his 2009 conviction for assault with a deadly weapon, and his 2000 conviction for assault with a deadly weapon constituted "strikes" within the meaning of our Three Strikes Law (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(j)) as well as prior serious felonies (§ 667, subd. (a)). The People additionally alleged that defendant had served five prior prison terms. (§ 667.5, subd. (b).)

The matter proceeded to a jury trial. The jury convicted defendant of robbery and found the weapon allegation to be true. After a jury waiver, the court conducted a trial on the prior conviction allegations and found them to be true.

The trial court sentenced defendant to prison for 15 years. Specifically, the court imposed a base sentence of 10 years (comprised of a high-end sentence of five years, doubled due to one prior strike) plus five years for a prior serious felony conviction. In imposing this sentence, the court dismissed two strike allegations, dismissed two prior serious felony allegations, dismissed the prior prison term allegations, and dismissed the weapon enhancement. The court did so because it viewed the case as an "aggravated shoplifting."

Defendant filed this timely appeal.

DISCUSSION

Defendant raises six challenges on appeal. We need only reach two of them—namely, whether the prosecutor erred by misstating the law regarding the "fear" element in closing argument and whether substantial evidence supports the "fear" element had this error not occurred. In light of our resolution of these issues, we have no occasion to reach the remaining issues.

I. Prosecutorial Error

A. Pertinent facts

At the trial, Hasan repeatedly testified that he was not afraid when defendant pulled out the knife, that he "didn't feel threatened," and that he "had no fear." This was different from Hasan's testimony at the preliminary hearing, where Hasan testified that "of course" he "fel[t] threatened when [defendant] pulled out the knife." The jury heard this preliminary hearing testimony.

Prior to closing arguments, the trial court, using the standard CALCRIM No. 1600 instruction, instructed the jury that defendant was guilty of robbery only if the People proved six elements, including the element that "[t]he defendant used force or fear to take ... property [from the victim or in the victim's immediate presence] or to prevent the person [that is, the victim] from resisting." The court further instructed the jury that "[f]ear , as used here, means fear of injury to the person [that is, the victim] himself or herself or immediate injury to someone else present during the incident or to that person's property."

In his initial closing argument, the prosecutor encouraged the jury to credit Hasan's preliminary hearing testimony about being in fear over his trial testimony because Hasan's "actions tell you when he steps back, he [was actually] threatened by the presence of [the] knife."

In his rebuttal argument, the prosecutor shifted gears and argued that whether Hasan was actually afraid did not matter at all:

"[the defense attorney] was trying to say that Mr. Hasan has to be the one that is afraid. That is not the law. The law is an objective standard. [¶] Did someone do something that is an act of force or fear? Yes. The defendant pulled out a knife and displayed it and brandished it. It doesn't matter if anybody is afraid, feared or not. "

(Italics added.)

Defendant objected that this "misstate[d] the law," and the court responded by instructing the jury that "[t]he law is stated in the jury instructions" and that the jury was "to follow the law as it is stated in the instructions."

Immediately thereafter, the prosecutor urged the jury to

"[l]ook at the instructions, if you do an act of force or fear, it is an objective standard . You don't get a break because you pointed a gun at an MMA [mixed martial arts] fighter, for example, and he is not scared in the middle of a robbery. That would be ridiculous."

(Italics added.) Defendant again objected, but the trial court overruled the objection.

At the conclusion of the prosecutor's rebuttal argument, defendant implored the court to give a supplemental instruction clarifying that the victim's fear must be subjective. The trial court refused, responding that the "jury instruction handling that [was] just fine" and that "it will be up to [the jury] to sort that out."

B. Pertinent law

1. On prosecutorial error

A prosecutor's conduct during a criminal trial violates the federal Constitution if it is " ‘so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process’ " and violates the California Constitution if it "involves ‘ " ‘the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.’ " ’ [Citations.]" ( People v. Peoples (2016) 62 Cal.4th 718, 792, 198 Cal.Rptr.3d 365, 365 P.3d 230 ( Peoples ); accord, People v. Rivera (2019) 7 Cal.5th 306, 333-334, 247 Cal.Rptr.3d 363, 441 P.3d 359 ( Rivera ).) Where, as here, the prosecutor is alleged to have misstated the law to the jury, this constitutes error only if (1) the prosecutor misstated the law, and (2) there is " ‘a reasonable likelihood that the jury understood or applied the [prosecutor's remarks] in an improper or erroneous manner.’ [Citation]." ( People v. Centeno (2014) 60 Cal.4th 659, 667, 180 Cal.Rptr.3d 649, 338 P.3d 938 ( Centeno ); Rivera , at p. 334, 247 Cal.Rptr.3d 363, 441 P.3d 359.) Although we generally review claims of prosecutorial error for an abuse of discretion ( Peoples , at pp. 792-793, 198 Cal.Rptr.3d 365, 365 P.3d 230 ), we independently examine what the law is ( People v. Bryant (2014) 60 Cal.4th 335, 370, 178...