People v. Swain

• Decision Date: 15 July 2021
• Docket Number: B299440
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. CAMERON ONEIL SWAIN, Defendant and Appellant.

THE PEOPLE, Plaintiff and Respondent, v. CAMERON ONEIL SWAIN, Defendant and Appellant.

B299440

California Court of Appeals, Second District, Seventh Division

July 15, 2021

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. KA120256, 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.

SEGAL J.

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 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 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.”

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 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, 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 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...