Filed 8/11/09
CERTIFIED FOR PARTIAL PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Yolo)
—-

THE PEOPLE,

​Plaintiff and Respondent,

​v.

CEDRIC HART et al.,

​Defendants and Appellants.

C057652

(Super. Ct. No.
05-7051)

​APPEAL from a judgment of the Superior Court of Yolo County, David Rosenberg, Judge. Reversed in part and affirmed in part.

​Marcia R. Clark for Defendant and Appellant Cedric Hart.

​Robert Navarro, under appointment by the Court of Appeal, for Defendant and Appellant Tyrone Rayford.

​Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, David A. Rhodes and Michael Dolida, Deputy Attorneys General, for Plaintiff and Respondent.

​Defendants Cedric Hart and Tyrone Rayford entered a liquor store intending to rob the husband and wife working there. Hart exhibited a gun and demanded money. When Hart saw a gun in an open drawer below the cash register, he fired on the husband, hitting him in the abdomen.
​Convicted of attempted robbery, attempted murder, and assault with a firearm, the defendants appeal. They make contentions of error relating to the sufficiency of the evidence, the jury instructions, and sentencing.
​In the published portion of this opinion, we focus on the trial court’s instructions with respect to the natural and probable consequences doctrine. Under the instructions as given, the jury may have convicted Rayford of attempted premeditated murder as an aider and abettor under the natural and probable consequences doctrine. The instructions on natural and probable consequences, however, referred to “attempted murder” without noting that, in order to convict Rayford of attempted premeditated murder under the natural and probable consequences doctrine, the jury would have to find that attempted premeditated murder was a natural and probable consequence of the attempted robbery. We therefore conclude that Rayford’s conviction for attempted premeditated murder must be reversed and remanded.
​In the unpublished portion of this opinion, we conclude that the defendants’ remaining contentions are without merit.
FACTS
​On a November evening, Zakkiyyah Spikes, who was defendant Cedric Hart’s girlfriend, drove Hart and defendant Tyrone Rayford from south Sacramento to West Sacramento in her Buick. She got off the freeway in West Sacramento, and Hart took over driving. Hart stopped the Buick on a residential street, and he and Rayford got out but left the engine running. Spikes stayed in the car.
​Hart and Rayford went into the Poplar Food and Liquor Store where Parvinder Singh and Rupindir Kaur (also known as Rimpi Parher), husband and wife, were working. Hart and Rayford entered the store and raised Singh’s suspicions by the way they were acting, looking out the window.
​When the only other customer in the store left, Hart and Rayford approached the counter. Singh was behind the counter, at one of the cash registers. Hart and Rayford paid for some items, and Singh gave them change. Hart asked for a plastic bag, and Singh gave him one. After Singh gave Hart the bag, Hart opened his coat, revealing a gun and pointing it at Singh, and told Singh to put all the money in the bag.
​Rayford moved behind the counter, and Hart moved to the edge of the counter. Singh opened a drawer under the cash register, where money was kept. There was also a gun in the drawer. As Singh put his hand on the money in the drawer, Hart saw the gun and shot at Singh. Hart rapidly fired the gun three times, hitting Singh in the abdomen once. Hart and Rayford moved away from Singh, Hart walking backwards toward the door, and Singh grabbed the gun and shot back. Singh shot Hart in the chest. During the exchange, Kaur was hit in the left hand and Rayford in the left foot.
​Hart and Rayford rejoined Spikes in the Buick, and Spikes drove away. Officers of the West Sacramento Police Department soon gave chase but did not detain the three occupants until they had driven to Methodist Hospital in south Sacramento.
​The two victims survived and testified at trial.
​Additional evidence is summarized as it becomes relevant to the discussion.
PROCEDURE
​The district attorney charged Hart and Rayford by information with two counts of attempted second degree robbery (Pen. Code, §§ 21a, 211, 212.5, subd. (c) — counts 1 and 2); two counts of attempted murder (Pen. Code, §§ 21a, 187, subd. (a) — counts 3 and 4); and two counts of assault with a firearm (Pen. Code, § 245, subd. (a)(2) — counts 5 and 6). As to the attempted robbery and attempted murder counts, the district attorney alleged that Hart personally discharged a firearm causing great bodily injury (Pen. Code, § 12022.53, subd. (d)) and that Rayford participated in a crime in which a principal was armed (Pen. Code, § 12022, subd. (a)(1)). As to the attempted murder counts, the district attorney alleged the attempted murders were willful, deliberate, and premeditated (Pen. Code, § 189). As to the assault with a firearm charged in count 5, the district attorney alleged that Hart personally used a firearm (Pen. Code, § 12022.5, subd. (a)) and personally inflicted great bodily injury (Pen. Code, § 12022.7, subd. (a)). As to the assault with a firearm charged in count 6, the district attorney alleged that Hart personally used a firearm (Pen. Code, § 12022.5, subd. (a)).
​A jury found Rayford not guilty on count 4 (attempted murder of Rupindir Kaur), and could not reach of verdict concerning Hart on the same count. The jury convicted Hart and Rayford on all other counts and found all allegations associated with those counts true.
​Count 4 against Hart was dismissed on the district attorney’s motion.
​The trial court sentenced Hart to an indeterminate term of life with possibility of parole on count 3 (attempted murder) and consecutive indeterminate terms of 25 years to life for the Penal Code section 12022.53, subdivision (d) enhancements (personally discharging a firearm causing great bodily injury) on counts 1 and 2. The court imposed consecutive determinate terms for counts 1 and 2 (attempted robbery) — the upper term of three years for count 1 and eight months (one-third of the middle term) for count 2. The court imposed and stayed terms on counts 5 and 6 (with enhancements) and on the Penal Code section 12022.53, subdivision (d) enhancement associated with count 3. The aggregate sentence imposed on Hart is a determinate term of three years eight months, plus an indeterminate term of 50 years to life, plus an indeterminate term of life with possibility of parole.
​The trial court sentenced Rayford to an indeterminate term of life with possibility of parole on count 3 (attempted murder). The court imposed consecutive determinate terms on counts 1 and 2 (attempted robbery) — the middle term of two years for count 1 and eight months (one-third the middle term) for count 2. The court also imposed a one-year firearm enhancement on count 1 under Penal Code section 12022, subdivision (a)(1). The court imposed and stayed terms on counts 5 and 6 and on the firearm enhancements associated with counts 2 and 3. The aggregate sentence imposed on Rayford is a determinate term of three years eight months, plus an indeterminate term of life with possibility of parole.
DISCUSSION
I
Natural and Probable Consequences Instruction
​One of the prosecution’s theories of guilt as to Rayford was that he aided and abetted Hart in the attempted robbery of Singh and that the attempted murder of Singh was a natural and probable consequence of the attempted robbery. Convicted of attempted murder of Singh with premeditation and deliberation, Rayford contends that the trial court did not sufficiently instruct the jury concerning the relationship between the natural and probable consequences doctrine and the premeditation and deliberation element of attempted premeditated murder. We agree. And we further determine that the error was prejudicial.
​A.​The Natural and Probable Consequences Doctrine
​“At common law, a person encouraging or facilitating the commission of a crime could be held criminally liable not only for that crime, but for any other offense that was a ‘natural and probable consequence’ of the crime aided and abetted. [Citations.] [¶] Although the ‘natural and probable consequences’ doctrine has been ‘subjected to substantial criticism’ [citation], it is an ‘established rule’ of American jurisprudence [citation]. It is based on the recognition that ‘aiders and abettors should be responsible for the criminal harms they have naturally, probably and foreseeably put in motion.’ [Citation.]” (People v. Prettyman (1996) 14 Cal.4th 248, 260 (Prettyman).)
​“The determination whether a particular criminal act was a natural and probable consequence of another criminal act aided and abetted by a defendant requires application of an objective rather than subjective test. [Citations.] This does not mean that the issue is to be considered in the abstract as a question of law. [Citation.] Rather, the issue is a factual question to be resolved by the jury in light of all of the circumstances surrounding the incident. [Citations.] Consequently, the issue does not turn on the defendant’s subjective state of mind, but depends upon whether, under all of the circumstances presented, a reasonable person in the defendant’s position would have or should have known that the charged offense was a reasonably foreseeable consequence of the act aided and abetted by the defendant. [Citations.]” (People v. Nguyen (1993) 21 Cal.App.4th 518, 531.)
​B.​Instructions on Natural and Probable Consequences
​The trial court instructed the jury concerning the natural and probable consequences doctrine. It used CALCRIM No. 402 and inserted “attempted robbery” for the target crime and “attempted murder or assault with a firearm” for the nontarget crime. This instruction on the natural and probable consequences doctrine did not mention the premeditation element of attempted premeditated murder as charged and prosecuted in this case.
​The instruction stated:
​“The defendants are charged in Counts 1 and 2 with attempted second [degree] robbery, and in Counts 3 and 4 with attempted murder, and in Counts 5 and 6 with assault with a firearm.
​“Under certain circumstances, natural and probable consequences doctrine of aiding and abetting, a person who is guilty of one crime may also be guilty of other crimes that were committed at the same time.
​“Under this doctrine, to prove that the defendant is guilty of the attempted murder or assault with a firearm, the People must prove that:
​“ . . . . . . . . . . . .
​“One, the defendant is guilty of attempted robbery.
​“Two, during the commission of the attempted robbery the crime of attempted murder or assault with a firearm was committed.
​“And three, under all of the circumstances, a reasonable person in the defendant’s position would have known that the commission of the attempted murder or assault with a firearm was a natural and probable consequence of the commission of the attempted robbery.
​“A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes.
​“In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence. If the attempted murder or assault with a firearm was committed for a reason independent of the common plan to commit the attempted robbery, then the commission of the attempted murder or assault with a firearm was not a natural and probable consequence of attempted robbery.
​“To decide whether the crimes of attempted murder and assault with a firearm were committed, please refer to the separate instructions that I have given you for those crimes.”
​The court also instructed the jury concerning the elements of attempted murder and how it may be proved. And it instructed the jury that, if the jury found the defendant guilty of attempted murder, it must “decide whether the People have proved the additional allegation that the attempted murder was done willfully, and with deliberation and premeditation.”
​The court did not relate the instruction concerning premeditation and deliberation to the natural and probable consequences instruction. In other words, the court did not instruct the jury that, in order to find Rayford guilty of attempted premeditated murder as an aider and abettor under the natural and probable consequences doctrine, the jury would have to find that attempted premeditated murder is a natural and probable consequence of the attempted robbery. With respect to the natural and probable consequences doctrine, the jury was asked only whether “under all of the circumstances, a reasonable person in the defendant’s position would have known that the commission of the attempted murder or assault with a firearm was a natural and probable consequence of the commission of the attempted robbery.”
​C.​Application of Natural and Probable Consequences to Attempted Premeditated Murder
​We must determine whether the instructions given were sufficient to inform the jury of its duty with regard to the premeditation and deliberation element of attempted premeditated murder as it relates to the natural and probable consequences doctrine. We conclude that (1) the jury, under the facts of this case, could have concluded that attempted unpremeditated murder was a natural and probable consequence of the attempted robbery and that attempted premeditated murder was not a natural and probable consequence and (2) the instructions were insufficient to inform the jury concerning its duty in this regard.
​1.​Attempted Unpremeditated Murder
​The natural and probable consequences doctrine allows a jury to convict an aider and abettor of any nontarget crime committed by the actual perpetrator if it was the natural and probable consequence of the target crime that the aider and abettor intended to aid and abet. In People v. Woods (1992) 8 Cal.App.4th 1570 (Woods), we held that the aider and abettor may also be convicted of a nontarget crime lesser than the nontarget crime committed by the actual perpetrator. The Supreme Court cited and discussed the holding of Woods approvingly in Prettyman, supra, 14 Cal.4th at pages 275 and 276. The Prettyman court stated:
​“In Woods, the defendant and a companion went in search of a rival gang member. They entered the apartment of two acquaintances of the member of the rival gang, and assaulted the occupants. As they were leaving, they saw two people getting into a car. The defendant’s companion fired into the car, killing one occupant and injuring the other. At trial, the prosecution’s theory was that the defendant was criminally responsible for the shootings committed by his companion, contending that the shootings were a natural and probable consequence of the crimes committed in the apartment that the defendant had aided and abetted. During deliberations, the jury asked, ‘Can a defendant be found guilty of aiding and abetting a murder in the second degree if the actual perpetrator of the same murder is determined to be guilty of murder in the first degree?’ The trial court answered, ‘No.’ The Court of Appeal held that this answer was prejudicial error. [Citation.]
​“The Woods court reasoned that when the prosecution contends that the defendant is guilty as an accomplice under the ‘natural and probable consequences’ doctrine, the defendant ‘does not stand in the same position as the perpetrator’; hence, ‘the aider and abettor and the perpetrator may have differing degrees of guilt based on the same conduct depending on which of the perpetrator’s criminal acts were reasonably foreseeable under the circumstances and which were not.’ [Citation.]
​“Woods also addressed the question whether the trial court should have instructed the jury on the lesser included offenses of voluntary and involuntary manslaughter. Although the court concluded that under the facts of that case such instructions were unnecessary, it held that in some cases such instructions would be necessary at the trial of an aider and abettor even if the evidence did not show that the actual perpetrator was guilty only of the lesser included offense. As the court explained: ‘If the evidence raises a question whether the offense charged against the aider and abettor is a reasonably foreseeable consequence of the criminal act originally aided and abetted but would support a finding that a necessarily included offense committed by the perpetrator was such a consequence, the trial court has a duty to instruct sua sponte on the necessarily included offense as part of the jury instructions on aider and abettor liability.’ [Citation.]” (Prettyman, supra, 14 Cal.4th at pp. 275-276, italics omitted.)
​In Woods, we concluded that the trial court should have instructed the jury that it could find the aider and abettor guilty of the nontarget crime of second degree murder even though the actual perpetrator was guilty of first degree murder. Here, we must decide whether that holding also requires the court to inform the jury that it can convict an aider and abettor of attempted unpremeditated murder even though the actual perpetrator is convicted of attempted premeditated murder. We conclude that Woods requires such an instruction.
​Based on the facts of this case, a reasonable jury could have concluded that the actual perpetrator (Hart) was guilty of attempted premeditated murder but that the aider and abettor (Rayford) was guilty of no more than attempted unpremeditated murder. It is beyond dispute that Hart and Rayford planned to rob the victims. Hart had a gun and used it, and it is reasonable to infer that Rayford knew that Hart had a gun and intended to use it if necessary. However, it would also be reasonable on these facts to conclude that a reasonable person in Rayford’s position may not have concluded that attempted premeditated murder would be a natural and probable result of the planned robbery. In other words, it was theoretically possible for the jury to conclude that Hart premeditated the attempted murder but that such premeditation was not a natural and probable consequence of the attempted robbery. That was a factual question for the jury. Although the facts in the record are sufficient to support a jury finding that attempted premeditated murder was a natural and probable consequence of the attempted robbery, the facts do not lead ineluctably to that conclusion.
​2.​Sufficiency of Instructions
​Having determined that the jury could have found, on the facts presented at trial, that attempted unpremeditated murder, and not attempted premeditated murder, was a natural and probable consequence of the attempted robbery, we must decide whether the instructions, as given, properly prepared the jury to determine the extent of Rayford’s culpability for the attempted murder. We conclude that the instructions were inadequate.
​Attempted premeditated murder is the functional equivalent of a greater offense than attempted unpremeditated murder. (People v. Izaguirre (2007) 42 Cal.4th 126, 132.) The instruction properly defined attempted murder and the additional element of premeditation and deliberation. However, with respect to the natural and probable consequences doctrine, the instruction given to the jury by the trial court addressed attempted murder and assault with a firearm without mentioning the premeditation and deliberation element of attempted premeditated murder.
​The Attorney General asserts that attempted murder is not divided into degrees. Therefore, it was unnecessary to relate the premeditation and deliberation element to the natural and probable consequences doctrine because premeditation and deliberation were merely an element of attempted murder. This argument avoids, rather than answers, the question of how the jury is to know its duty with regard to the premeditation and deliberation element. The logic of Woods is not based on the separation of murder into degrees. It is based on the possibility that the jury could conclude that the aider and abettor was not necessarily guilty of all of the elements of the greater crime committed by the actual perpetrator. (Woods, supra, 8 Cal.App.4th at p. 1593.) Therefore, it is necessary to instruct the jury that it may find less culpability in the aider and abettor under the natural and probable consequences doctrine.
​The instructions did not fully inform the jury that, in order to find Rayford guilty of attempted premeditated murder as a natural and probable consequence of attempted robbery, it was necessary to find that attempted premeditated murder, not just attempted murder, was a natural and probable consequence of the attempted robbery.
​The trial court’s general instructions concerning the premeditation and deliberation element of attempted premeditated murder did not suffice. The trial court properly instructed the jury concerning premeditation and deliberation, as it relates to attempted murder, stating, in essence, that it is a subjective state of mind. However, in determining whether the premeditation and deliberation element was a natural and probable consequence of the attempted murder, the jury does not look at the aider and abettor’s subjective state of mind. Therefore, the general instruction concerning the premeditation and deliberation element of attempted murder did not properly inform the jury concerning its duty with respect to the natural and probable consequences doctrine.
​We conclude that the trial court has a duty, sua sponte, to instruct the jury in a case such as this one that it must determine whether premeditation and deliberation, as it relates to attempted murder, was a natural and probable consequence of the target crime. Having failed to do so here, the trial court erred.
​D.​Prejudice Analysis
​Error in instructing the jury concerning lesser forms of culpability is reversible unless it can be shown that the jury properly resolved the question under the instructions, as given. (People v. Chatman (2006) 38 Cal.4th 344, 392.) We conclude that the error was prejudicial and requires reversal.
​Again, Woods is instructive in this regard. We said: “In effect, the jury was given an unwarranted all-or-nothing choice with respect to aider and abettor liability for the killing . . . . Faced with evidence from which it could conclude that only second degree murder was a reasonably foreseeable consequence of Windham’s aiding and abetting Woods in assaulting Allen and Johnson, but having no option to convict Windham of second degree murder, the jury may have been reluctant to acquit him of the greater offense of first degree murder. Stated another way, the jury may have returned a verdict of guilt on first degree murder to avoid the absurd result of absolving Windham of any responsibility for a killing which was a reasonably foreseeable consequence of his act of aiding and abetting the violent assaults on Allen and Johnson. This illustrates why the jury should have been told it could find a defendant guilty of second degree murder as an aider and abettor even if it determined the perpetrator was guilty of first degree murder.” (Woods, supra, 8 Cal.App.4th at p. 1590.)
​Here, the problem is a bit different from the problem in Woods. In that case, the court told the jury that it could not convict the aider and abettor of a lesser crime. In our case, the court was not so explicit. Instead, it merely failed to inform the jury that it could convict Rayford of a lesser crime than Hart’s crime under the natural and probable consequences doctrine. The result, however, is the same. The jury was left to its own devices without proper guidance concerning the law. Under the instructions given, the jury may have found Rayford guilty of attempted murder using the natural and probable consequences doctrine, an objective test, and then found the premeditation and deliberation element true using the only instruction given as to that element, which described a subjective test. Thus, the instructions on the natural and probable consequence doctrine and attempted murder were prejudicially deficient.
​Rayford’s attempted premeditated murder conviction must be reversed and remanded to the trial court for retrial. The jury determined that Rayford committed attempted murder under instructions that were proper to that extent. Thus, the only remaining question is whether he is further guilty under the premeditation and deliberation element. (Woods, supra, 8 Cal.App.4th at p. 1596.)
II
Sufficiency of Arming Evidence (Hart)
​Hart contends that the evidence was insufficient to support the jury’s conclusion that he personally used a firearm. He bases this contention, mainly, on the conflicting eyewitness accounts of the victims. Therefore, argues Hart, the arming enhancements, including the two enhancements pursuant to Penal Code section 12022.53, subdivision (d), which resulted in terms of 25 years to life, must be reversed. We disagree. Viewing the evidence properly, it was sufficient to support the jury’s findings.
​A.​Evidence Concerning Identification
​The victims’ identifications of the defendants were inconsistent. At different times, each victim failed to identify Hart as the gunman. However, at trial, Singh identified Hart as the gunman. Additionally, Hart had gunshot residue on his hand, but Rayford had none.
​When Singh’s wife, Kaur, was presented with a photographic lineup, she failed to pick either of the defendants from that lineup, although she chose three others whom she thought may have been perpetrators. At the preliminary hearing, Kaur identified Hart as the gunman and Rayford as the other perpetrator. But at trial, Kaur identified Rayford as the gunman and Hart as the other perpetrator.
​Singh was more consistent, though not totally, in identifying Hart as the gunman. When shown the photographic lineup, Singh identified Rayford as the gunman and did not identify Hart. He identified someone else as the unarmed perpetrator. At the preliminary hearing and again at trial, Singh identified Hart as the gunman and Rayford as the other perpetrator. However, also at trial, it appears that Singh may have mistakenly picked from the photographic lineup cards a person other than the two defendants as the gunman and Hart as the other perpetrator.
​In addition to the confusion concerning identification of the defendants, Hart asserts that evidence concerning his apparel was conflicting. Both victims testified that the gunman wore a black coat. At the hospital, Rayford was wearing a black coat. There was a black coat in the front seat of the Buick, next to where Hart had been sitting, but there was no blood on it. Citing the lack of blood, Hart asserts that he could not have been wearing it during the robbery.
​There was evidence, other than the identifications of the victims, connecting Hart to the role of gunman. Singh testified that the gunman had on a cap, and a baseball cap was found in the Buick where Hart had been sitting. And Spikes stated that Hart had been wearing a baseball cap. Singh testified that the taller of the two perpetrators was the gunman, and Hart is taller than Rayford. Finally, the defendants were tested for gunshot residue. Rayford had none. Hart had gunshot residue on his left hand.
​B.​Analysis
​When we determine the sufficiency of the evidence to support a conviction or a finding by the jury, we “must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence — that is, evidence which is reasonable, credible, and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.) “Purported weaknesses in identification testimony are to be evaluated by the jury [citation] and the testimony of a single eyewitness, if not inherently incredible, is sufficient to support a verdict. [Citation.]” (People v. Keltie (1983) 148 Cal.App.3d 773, 781-782.)
​Focusing on the eyewitness identification of the victims, Hart contends that there is no solid, credible evidence that he was the gunman. To the contrary, there was ample evidence that he was the gunman. Although the eyewitness identifications conflicted, Singh consistently identified Hart in person as the gunman. Singh also noted that the taller of the perpetrators, who was Hart, was the gunman. In addition to this eyewitness evidence, there was evidence that the gunman’s clothing was in the area where Hart was sitting in the Buick, even if it did not have blood on it. And Hart had gunshot residue on his left hand, which was inculpatory even though there was evidence that Hart is right-handed.
​All of the evidence concerning the various identifications made by Singh and Kaur was presented to the jury, and the jury concluded that Hart was the gunman. Furthermore, the evidence, even without the eyewitness identifications, was sufficient for the jury to reach the same conclusion. Therefore, even if the jury concluded that the eyewitness testimony was unhelpful, it could conclude that Hart was the gunman.
​On this record, Hart’s contention that the evidence was insufficient for the jury to conclude that he was the gunman is without merit.
III
Sufficiency of Premeditation Evidence
​Hart contends that the finding on count 3 that the attempted murder of Singh was committed with premeditation and deliberation is not supported by sufficient evidence. Rayford joins this contention. The contention is without merit.
​“‘[P]remeditated’ means ‘considered beforehand,’ and ‘deliberate’ means ‘formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action.’ [Citations.] The process of premeditation and deliberation does not require any extended period of time. ‘The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly . . . .’ [Citations.]” (People v. Mayfield (1997) 14 Cal.4th 668, 767.)
​Hart argues that his shooting of Singh was nothing more than a panicked reaction to seeing the gun in the drawer that Singh had opened. He reasons: “Singh testified clearly that the assailant shot when he saw the gun in the cash drawer. Further, the evidence was that Singh grabbed the money in the drawer and actually had it in his hand when he was shot. Singh’s reaching for money in the same drawer that held the gun must have appeared as if he was reaching for the firearm instead, thereby triggering undeliberated panic.” (Citations omitted.)
​This may be a reasonable interpretation of the evidence, but it is not the only reasonable interpretation. It is also reasonable to conclude from this evidence (1) that Hart had decided, in advance, to kill the victim to eliminate a witness as soon as Hart had access to the money or (2) that Hart had decided, in advance, to kill Singh if there was any sign that Singh might resist. Both of these scenarios support a finding of premeditation and deliberation, instead of undeliberated panic. On appeal, we draw every reasonable inference in favor of the verdict. (People v. Autry (1995) 37 Cal.App.4th 351, 358.)
​However, Hart contends that there was no evidence of planning of or motive for the attempted killing, citing People v. Anderson (1968) 70 Cal.2d 15, at pages 26 and 27. In People v. Anderson, the court stated that, in assessing the sufficiency of the evidence of premeditation and deliberation, it is appropriate to look at evidence of planning, motive, and manner of killing. (Ibid.) (Hart does not dispute that the manner of the attempted murder supports a finding of premeditation and deliberation.)
​The record does not support Hart’s contention that there was no evidence of planning or motive. As we noted, the fact that he shot Singh as soon as he saw the money and the gun supports the inference that he planned to kill Singh as soon as he had access to the money or Singh resisted in any way. And it is also reasonable to infer that Hart’s motive was to kill Singh so that Hart could get the money or to eliminate any resistance. (See People v. Brito (1991) 232 Cal.App.3d 316, 323 [premeditation includes decision to shoot victim if victim not compliant].)
​In his reply brief, Hart admits that he planned the robbery, but he asserts that “there are no facts beyond that which establish he premeditated the shooting.” To the contrary, Hart carried the gun to the robbery, he drew it and pointed it at Singh, using the threat of being shot to motivate Singh to give up money, and he pulled the trigger, even as Singh was not resisting. Those facts support an inference of premeditation.
​Hart also argues that we cannot conclude that he committed the attempted murder with premeditation because, instead of staying in the store to violently confront Singh for the money, he fled. Our analysis of premeditation, however, is not concerned with what defendant decides to do once the attempted murder has already been committed. That was an argument for the jury, not for the appellate court.
​The record is sufficient to support the jury’s verdict that the attempted murder of Singh involved premeditation and deliberation.
IV
Stay of Terms Imposed (Hart)
​Hart asserts that, because the trial court imposed terms of 25 years to life on counts 1 and 2 for the discharge of a firearm resulting in great bodily injury (Pen. Code, § 12022.53, subd. (d)), the court was required to strike the firearm and great bodily injury enhancements associated with counts 5 and 6 instead of imposing and staying them.
​This issue, as it relates to firearm enhancements, was decided adversely to Hart by the California Supreme Court the same day Hart filed his opening brief. (People v. Gonzalez (2008) 43 Cal.4th 1118.) When multiple enhancements are found true for the use of a firearm, the trial court, after imposing the enhancement with the greatest prison term, must then impose and stay the remaining terms. (Id. at pp. 1122-1123, 1130.)
​Logic dictates that the same is true as to the great bodily injury enhancement. Since the Penal Code section 12022.53, subdivision (d) enhancements were imposed as a result of great bodily injury inflicted on the victims, any other great bodily injury enhancement must be imposed and stayed.
V
Penal Code Section 654 (Rayford)
​In a supplemental brief, Rayford contends the court erred in imposing consecutive sentences for the attempted robbery (count 1) and attempted murder (count 3) of Singh because the crimes were part of an indivisible course of conduct. Although we reverse the premeditation and deliberation finding on the attempted murder count as to Rayford, we consider this contention because the issue may arise on remand. We conclude that the trial court did not err because the facts supported a conclusion that shooting Singh was a gratuitous act of violence.
​Under Penal Code section 654, a defendant may not be punished twice for a single act or an indivisible course of conduct. (Neal v. State of California (1960) 55 Cal.2d 11, 18-19.) If a defendant “entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.” (People v. Beamon (1973) 8 Cal.3d 625, 639.) We review a challenge under Penal Code section 654 for substantial evidence to support the trial court’s determination. (People v. Osband (1996) 13 Cal.4th 622, 730.)
​California courts have repeatedly held that gratuitous violence against a helpless, unresisting victim is not incidental to robbery for purposes of Penal Code section 654. (People v. Nguyen (1988) 204 Cal.App.3d 181, 190-191 [collecting cases]; People v. Cleveland (2001) 87 Cal.App.4th 263, 272 [gratuitous beating of elderly, nonresisting robbery victim was not carried out with same objective as the robbery].) “[A]t some point the means to achieve an objective may become so extreme they can no longer be termed ‘incidental’ and must be considered to express a different and a more sinister goal than mere successful commission of the original crime.” (People v. Nguyen, supra, at p. 191.)
​Rayford claims that he and Hart “had a single criminal objective, to rob Singh and Kaur, and that the attempted murder occurred as a result of Hart’s perception that Singh was about to shoot him. Accordingly, the attempted murder was committed in an effort to escape, and was thus indivisible from the single purpose of accomplishing a robbery.” (Citations omitted.)
​This is only one possible interpretation of the evidence. As noted, we review the trial court’s sentencing decision under the substantial evidence standard. Viewed in the light most favorable to the trial court’s sentencing decision, the evidence adduced at trial supports a conclusion that Singh was not resisting. He went to the cash register and opened the drawer with the money in it. Although there was a gun in the drawer, Singh was reaching for the money. Even though Singh was not resisting, Hart shot at him multiple times, hitting him in the abdomen once.
​Viewed in this light, the evidence was sufficient to support the trial court’s implicit finding that attempted robbery and attempted murder were not part of an indivisible course of conduct because shooting Singh was a gratuitous act of violence. The trial court did not err in imposing consecutive sentences.
DISPOSITION
​The finding that Rayford premeditated and deliberated with respect to the attempted murder is reversed. If, after the filing of the remittitur in the trial court, the People do not bring Rayford to retrial on the premeditation and deliberation element within the statutory time limits, the trial court shall proceed as if the remittitur constituted a modification of the judgment to reflect a conviction of attempted unpremeditated murder and shall resentence Rayford accordingly. In all other respects, the judgment as to each defendant is affirmed.

​ NICHOLSON , Acting P. J.
We concur:

HULL , J.

BUTZ , J.

City tries to crack down on pot shops

By DOUG IRVING

THE ORANGE COUNTY REGISTER

Published: March 9, 2010

Updated: 7:01 a.m.

http://www.ocregister.com/news/marijuana-238218-city-dispensaries.html

SANTA ANA — Bob Guedea sells his marijuana from a sparse room in an otherwise unremarkable office building, breaking the law every day. He has an orange permit on the lobby wall that says he’s licensed by the state of California to sell medical marijuana. What he doesn’t have and  what he can’t get is a permit from the city.

Santa Ana banned marijuana dispensaries more than two years ago. But city officials now believe that at least 29 have opened illegally, including Guedea’s BNT Medical Collective Inc. “How is it you can be legal from California, but you can’t get a damn city license?” said Guedea, who opened his collective with a partner in mid-December. “On the one hand, it’s legal, and on the other hand, it’s not, and you’re still in the same state.”

The issue is by no means unique to Santa Ana. Cities from Yorba Linda to San Clemente and beyond have attempted in recent years to restrict marijuana dispensaries without running afoul of state law, which allows the use of medical marijuana.

Both sides are closely watching a legal challenge to Anaheim’s law, which like the law in Santa Ana outlaws marijuana outlets. An Orange County judge dismissed that challenge in 2008, but marijuana advocates have appealed.

Santa Ana’s law allows the marijuana itself in the hands of a qualified patient, for example, or given out by a hospice or hospital. But it flatly prohibits any dispensary that provides marijuana to more than a single patient.

That law has been on the books since late 2007, but it hasn’t stopped dispensaries from opening. Some apparently lied about what they were doing so they could get a business license, City Attorney Joseph Fletcher said; others opened without one.

The city has sent formal notices in recent months to 29 businesses suspected of being dispensaries and their landlords, warning that they appear to be in violation of the city’s ban. Jay Trevino, the city’s director of Planning and Building, called it an ongoing investigation and said a “small handful” of the dispensaries have shut down.

A shop called SoCal Compassion was one of them. Its owner, Jason Scoby, decided to move to unincorporated Sunset Beach rather than fight Santa Ana. He’s now planning to open a school for medical-marijuana vendors that he calls Cannabis State.

“Shops are going to be in every city in California,” he said. “We just wanted to see if we could work with them, get some regulations. They’re not going to budge.”

He and other dispensary owners say such outright bans of their business overlook an economic reality. The demand for medical marijuana is high, they say and that means someone is always going to be looking for a way to supply it.

A small group of dispensary owners have lobbied Santa Ana in recent weeks, urging city leaders to rethink their ban and to consider regulating dispensaries instead. But, Trevino said, “There is no current effort to change that.”

At BNT Medical Collective Inc., Guedea compared medical-marijuana dispensaries to gophers: try to remove them from one part of town, and they’ll re-appear in another. He and his business partner, Tommy Montejano, said they have every license and permit they need to sell marijuana legally, except for the city business license. They sell their marijuana with names like Grand Daddy Purple and Master Kush to around 120 regular clients from a quiet office building on Fourth Street.

They say they’re not looking for a fight with the city. But they do intend to stay open. “There’s a lot of people here that need their medication,” Montejano said. “That’s what we’re here for. I just think we should be given a chance.”

UPDATE: The California 4^th District Court of Appeal recently ruled on the Anaheim municipal code banning and criminalizing the operation of marijuana dispensaries in their city. The court ruled in favor of dispensaries in on the one hand and refused to rule on another. As it relates to whether a city can impose a criminal penalty for operating a dispensary in violation of 420, the court ruled that a city cannot. However, as it relates to whether a city can ban dispensaries, the court punted. They ruled that the issue, which is an issue of preemption, was not properly before the court and therefore it did not rule on it.

Filed 7/18/08

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE v. MYRON CARLYLE MOWER,

Sections 11357 and 11358 of the Health and Safety Code make it a crime to possess and cultivate marijuana.

 At the general election held on November 5, 1996, the electors approved an initiative statute designated on the ballot as Proposition 215 and entitled “Medical Use of Marijuana.” In pertinent part, the measure added section 11362.5, the Compassionate Use Act of 1996. (Prop. 215, § 1, as approved by electors, Gen. Elec. (Nov. 5, 1996) adding § 11362.5, subd. (a).) Subdivision (d) of section 11362.5 (hereafter section 11362.5(d)) provides that “Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a patient’s primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician.”

In the present case, although recognizing that section 11362.5(d) provides a defense at trial, the Court of Appeal concluded that the provision does not grant what defendant characterized before that court as a novel kind of “complete” immunity from prosecution. The immunity invoked by defendant would have shielded him not only from prosecution but even from arrest, and would have required the reversal of his convictions for possession and cultivation of marijuana because of the alleged failure by law enforcement officers to conduct an adequate investigation of his status as a qualified patient or primary caregiver before proceeding to effect an arrest.

As we shall explain, we conclude that the Court of Appeal was correct in concluding that section 11362.5(d) does not confer the “complete” immunity from prosecution claimed by defendant. But we also conclude that, in light of its language and purpose, section 11362.5(d) reasonably must be interpreted to grant a defendant a limited immunity from prosecution, which not only allows a defendant to raise his or her status as a qualified patient or primary caregiver as a defense at trial, but also permits a defendant to raise such status by moving to set aside an indictment or information prior to trial on the ground of the absence of reasonable or probable cause to believe that he or she is guilty. In this case, however, defendant did not make such a pretrial motion and, contrary to his claim, he was not deprived by the trial court of an opportunity to do so.

In his briefing in this court, defendant raises a question concerning the allocation and weight of the burden of proof as to the facts underlying the section 11362.5(d) defense. Defendant contends that the People are required to prove the nonexistence of these facts by a preponderance of the evidence or, at most, that the defendant is required merely to raise a reasonable doubt about their existence. Accordingly he claims that the trial court committed reversible error by instructing the jury that he was required to prove the facts supporting the defense by a preponderance of the evidence. Although the Court of Appeal did not expressly address this issue, it did imply, in the course of discussing another issue, that the trial court’s instruction was proper. Even though defendant failed to raise this question in the Court of Appeal, it is of general importance for all future cases involving the section 11362.5(d) defense. The People do not argue that the issue is not properly before us, but rather argue its merits directly and at length. Of substantial moment, the pattern jury instruction CALJIC No. 12.24.1 (1999 rev.) (6th ed. 1996) states that the defendant bears the burden of proof as to the underlying facts by a preponderance of the evidence. The general importance of the question counsels us to address it.

We conclude that, under general principles of California law, the burden of proof as to the facts underlying the section 11362.5(d) defense may, and should, be allocated to a defendant, but the defendant should be required merely to raise a reasonable doubt as to those facts rather than to prove them by a preponderance of the evidence. Thus, we conclude that the trial court’s instruction in this case, requiring defendant to prove the underlying facts by a preponderance of the evidence, not only was erroneous but also reversible because it went to the heart of the case against defendant.

Accordingly, we conclude that we must reverse the judgment of the Court of Appeal and order the cause to be remanded to the trial court for a new trial before a properly instructed jury.

I. On December 16, 1997, the People charged defendant Myron Carlyle Mower by information with the crimes of possession and cultivation of marijuana in violation of sections 11357 and 11358. Defendant pleaded not guilty.

At trial before a jury, the evidence, viewed in the light most favorable to the resulting convictions, established the following.

On February 25, 1997, deputies in the Tuolumne County Sheriff’s Department conducted a search of defendant’s residence, while he was present, pursuant to the conditions of probation that had been imposed on him following a prior conviction for the crime of cultivation of marijuana. Defendant was a patient who suffered from “diabetes and all its complications,” including blindness and intractable nausea and consequent weight loss, and often was hospitalized as a result; indeed, as the People expressly acknowledged, defendant was “extremely” ill. Furthermore, defendant possessed and cultivated marijuana on the recommendation of a physician, who advised him to use the substance “to control his nausea and maintain his weight.” In the course of their search, the deputies found seven marijuana plants. In response to defendant’s claim that he was a qualified patient under section 11362.5(d), the deputies made an investigation into the matter, including communicating with his physician, and did not confiscate any of the plants.

Between February 25 and July 11, 1997, the Tuolumne County Sheriff’s Department adopted a policy, apparently as an internal guideline for purposes of investigation and arrest, that limited the possession and cultivation of marijuana by a qualified patient or primary caregiver under section 11362.5(d) to three plants.

On July 11, 1997, deputies conducted another probation search of defendant’s residence, this time while he was in a hospital because of complications arising from diabetes. Upon finding 31 marijuana plants at the residence, the deputies left three plants there in accordance with the three-plant policy, and confiscated the remaining 28. Later that day, a deputy interviewed defendant in the hospital. There, defendant stated that he kept the marijuana plants for himself and for two other persons who were “patients” with “prescriptions” — “[o]ne’s a lady about sixty years old . . . from Britain” who “doesn’t know anybody in California,” and “the other one . . . is just kind of a dumb, dumb person”; defendant refused to “giv[e] up any names until I ask them if they want to be hassled.” Weeks later, defendant was arrested.

At trial, defendant testified that he kept the 31 marijuana plants for himself. Defendant denied the truth of his hospital statement concerning the two other persons, whom he continued to refuse to name, claiming that he made the statement under the influence of various medications that he then was receiving. Defendant testified that he anticipated the plants would yield a harvest of about five pounds, which would supply him for a year at his rate of consumption of approximately eight grams a day. Defendant called an expert witness who testified, based on agricultural and other assessments and projections, that the plants probably would yield a harvest of 4.35 pounds, well below the six pounds that he said the federal government supplies yearly to patients in its Investigational New Drug program. The People called an expert witness who testified, based on different agricultural and other assessments and projections, that the plants would yield a harvest of between 31 and 62 pounds.

After the presentation of evidence, the trial court instructed the jury on the crimes of possession and cultivation of marijuana. It also instructed on the section 11362.5(d) defense, based on defendant’s claim that he was a qualified patient, without any reference to a qualified primary caregiver.

After deliberations, the jury returned verdicts finding defendant guilty of possession and cultivation of marijuana. The trial court rendered a judgment that, among other things, suspended imposition of sentence and placed defendant on probation for five years under specified conditions.

The Court of Appeal affirmed. Declining “to apply . . . principles of waiver” as urged by the People, it considered the claim, raised by defendant for the first time on appeal, that section 11362.5(d) grants a defendant “complete” immunity from prosecution, shielding him not only from prosecution but even from arrest, and requiring reversal of his convictions because of the alleged failure by law enforcement officers to conduct an adequate investigation prior to his arrest. Although the Court of Appeal recognized that section 11362.5(d) allows a defense at trial, it concluded that the provision does not grant any such immunity from prosecution. The Court of Appeal also rejected a claim by defendant that the trial court erred by failing to instruct the jury on a section 11362.5(d) defense based on a theory that he was a qualified primary caregiver, determining, among other things, that such an instruction would not have been supported by substantial evidence.

We granted defendant’s petition for review, subsequently limiting the issue before us to a determination of the meaning and effect of section 11362.5(d).

II. The initial question that we address in this case is whether section 11362.5(d) grants a defendant “complete” immunity from prosecution, an immunity that assertedly would require reversal of a conviction for possession or cultivation of marijuana whenever law enforcement officers fail to conduct an adequate investigation of the defendant’s status as a qualified patient or primary caregiver prior to his or her arrest. As noted, the Court of Appeal rejected the contention that section 11362.5(d) grants any such “complete” immunity from prosecution.

Proposition 215 added section 11362.5, which provides in its entirety:

“(a) This section shall be known and may be cited as the Compassionate Use Act of 1996.

“(b)(1) The people of the State of California hereby find and declare that the purposes of the Compassionate Use Act of 1996 are as follows:

“(A) To ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person’s health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief.

“(B) To ensure that patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction.

“(C) To encourage the federal and state governments to implement a plan to provide for the safe and affordable distribution of marijuana to all patients in medical need of marijuana.

“(2) Nothing in this section shall be construed to supersede legislation prohibiting persons from engaging in conduct that endangers others, nor to condone the diversion of marijuana for nonmedical purposes.

“(c) Notwithstanding any other provision of law, no physician in this state shall be punished, or denied any right or privilege, for having recommended marijuana to a patient for medical purposes.

“(d) Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a patient’s primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician.

“(e) For the purposes of this section, ‘primary caregiver’ means the individual designated by the person exempted under this section who has consistently assumed responsibility for the housing, health, or safety of that person.” (Italics added.)

In his briefing in the Court of Appeal, defendant contended that in addition to allowing a defendant to raise his or her status as a qualified patient or primary caregiver as a defense at trial, section 11362.5(d) grants what defendant characterized as a “complete” immunity from prosecution. In advancing this claim, defendant asserted that section 11362.5 as a whole imposes an obligation on law enforcement officers to “investigate first, arrest later”: Such officers “must determine if a person is cultivating or possesses marijuana,” “if that person represents that he/she is” a qualified patient or primary caregiver, and “how much [marijuana] can be grown or possessed in relation to the actual medical needs of” the person. Because, in defendant’s view, no such officer conducted an investigation of this kind prior to his arrest, he maintained that the “complete” immunity from prosecution that he assertedly was granted by section 11362.5(d) requires reversal of his convictions.

We agree with the Court of Appeal that section 11362.5(d) does not grant any sort of “complete” immunity from prosecution that would require reversal of defendant’s convictions. To be sure, law enforcement officers must have probable cause before they lawfully may arrest a person for any crime. (See, e.g., People v. Campa (1984) 36 Cal.3d 870, 879; see also Pen. Code, § 836.) Probable cause depends on all of the surrounding facts (see, e.g., People v. Campa, supra, 36 Cal.3d at p. 879), including those that reveal a person’s status as a qualified patient or primary caregiver under section 11362.5(d). But contrary to defendant’s position, the requirement that law enforcement officers have probable cause for an arrest does not mean that section 11362.5(d) must be interpreted to grant such persons immunity from arrest. It is well established that immunity from arrest is exceptional, and, when granted, ordinarily is granted expressly. (See generally 4 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Pretrial Proceedings, § 10, pp. 208&endash;209, citing, among other provisions, Pen. Code, § 1334.4 [providing that "[i]f a person comes into this State in obedience to a subpoena . . . , he shall not, while in this State pursuant to the subpoena . . . , be subject to arrest . . . in connection with matters which arose before his entrance into this State under the subpoena”].) Plainly, section 11362.5(d) does not expressly grant immunity from arrest.

Neither can section 11362.5(d) reasonably be read to grant immunity from arrest by implication. As the proponents of Proposition 215 declared in their rebuttal to the argument of the measure’s opponents: “Police officers can still arrest anyone for marijuana offenses.” (Ballot Pamp., Gen. Elec. (Nov. 5, 1996) rebuttal to argument against Prop. 215, p. 61.) Even when law enforcement officers believe that a person who “possesses or cultivates marijuana” is a “patient” or “primary caregiver” acting on the “recommendation or approval of a physician,” they may — as in this case — have reason to believe that that person does not possess or cultivate the substance “for the personal medical purposes of the patient” (§ 11362.5(d)).

Thus, we conclude that section 11362.5(d) does not grant any immunity from arrest, and certainly no immunity that would require reversal of a conviction because of any alleged failure on the part of law enforcement officers to conduct an adequate investigation prior to arrest.

The conclusion that section 11362.5(d) does not grant a defendant the type of “complete” immunity from prosecution urged by defendant below, however, does not signify that the provision does not grant any immunity from prosecution at all.

Certain statutory provisions have been recognized as granting defendants limited immunity from prosecution. (See generally People v. Backus (1979) 23 Cal.3d 360, 381; People v. King (1967) 66 Cal.2d 633, 645.)

One example of a grant of limited immunity from prosecution is found in subdivision (n) of section 602 of the Penal Code (hereafter Penal Code section 602(n)), which makes it a crime to trespass on another’s property and then provides that its terms “shall not be applicable to persons engaged in lawful labor union activities . . . .” (See In re Catalano (1981) 29 Cal.3d 1, 12, fn. 12.) Such a statutory provision bars prosecution by rendering noncriminal certain conduct that otherwise would be criminal.

Another example of a grant of limited immunity from prosecution is seen in subdivision (b) of section 12924 of the Insurance Code (hereafter Insurance Code section 12924(b)), which provides that, as a general matter, “no individual shall be prosecuted or be subjected to punishment for” any crime “concerning which he or she is . . . compelled” by the Insurance Commissioner “to testify or produce” other evidence. (See People v. King, supra, 66 Cal.2d at p. 637.) Such a statutory provision bars prosecution for reasons extrinsic to the criminality of the underlying conduct — here, because of compelled self-incrimination.

A statutory provision that grants a defendant a limited immunity from prosecution may serve as a basis for a motion to set aside an indictment or information prior to trial, as well as a basis for a defense at trial. (People v. Backus, supra, 23 Cal.3d at pp. 380&endash;381; People v. McGee (1977) 19 Cal.3d 948, 968, fn. 9; accord, People v. King, supra, 66 Cal.2d at p. 645.)

As we shall explain, we believe that section 11362.5(d) reasonably must be interpreted to grant a defendant a limited immunity from prosecution, which not only allows a defense at trial, but also permits a motion to set aside an indictment or information prior to trial.

By its terms, section 11362.5(d) provides that sections 11357 and 11358, which criminalize the possession and cultivation of marijuana, “shall not apply to a patient, or . . . a patient’s primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician.” (§ 11362.5(d).) Thus, within its scope, section 11362.5(d) renders possession and cultivation of marijuana noncriminal — that is to say, it renders possession and cultivation of the marijuana noncriminal for a qualified patient or primary caregiver.

As is indicated by the text of section 11362.5, quoted above, the purpose informing section 11362.5(d) is twofold: (1) “[t]o ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person’s health would benefit from the use of marijuana in the treatment of . . . any . . . illness for which marijuana provides relief” (§ 11362.5, subd. (b)(1)(A)); and (2) “[t]o ensure that patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction” (§ 11362.5, subd. (b)(1)(B), italics added).

We believe that just as a grant of limited immunity from prosecution is found in Penal Code section 602(n), which makes it a crime to trespass on another’s property and then provides that its terms “shall not be applicable to persons engaged in lawful labor union activities” (see In re Catalano, supra, 29 Cal.3d at p. 12, fn. 12, italics added), and just as a grant of limited immunity from prosecution is seen in Insurance Code section 12924(b), which provides that, as a general matter, “no individual shall be prosecuted or be subjected to punishment for” any crime “concerning which he or she is . . . compelled” by the Insurance Commissioner “to testify or produce” other evidence (see People v. King, supra, 66 Cal.2d at p. 637, italics added), a grant of limited immunity from prosecution also must properly be found in section 11362.5(d), which provides that sections 11357 and 11358 “shall not apply to” qualified patients and primary caregivers (§ 11362.5(d)), particularly in view of its purpose of prohibiting “criminal prosecution [and] sanction” of such qualified patients and primary caregivers for such crimes (§ 11362.5, subd. (b)(1)(B)).

It is evident that section 11362.5(d)’s grant of limited immunity from prosecution does not operate, as does that of Insurance Code section 12924(b), for reasons extrinsic to the criminality of the underlying conduct. Rather, it operates, in the manner of Penal Code section 602(n), to render noncriminal certain conduct that otherwise would be criminal.

We have held that the prohibition against criminal “prosecut[ion]” and criminal “punishment” found in Insurance Code section 12924(b) “cannot be given its proper effect unless it . . . is recognized as a proper basis for” setting aside an indictment or information. (People v. King, supra, 66 Cal.2d at p. 645.) Otherwise, a criminal prosecution hardly could be said to be subject to prohibition at all, but simply could proceed unimpeded to whatever its resolution might be.

By parity of reasoning, we now hold that the prohibition against “criminal prosecution” as well as “criminal . . . sanction” (§ 11362.5, subd. (b)(1)(B)) that is implicit in section 11362.5(d) cannot be given its proper effect unless it too is recognized as a proper basis for setting aside an indictment or information.

Proposition 215′s ballot pamphlet materials do not speak directly to the issue whether section 11362.5(d) permits a motion to set aside an indictment or information prior to trial. But they say nothing to the contrary. That the proponents of Proposition 215 stated (in their rebuttal to the argument by the measure’s opponents) that section 11362.5(d) “simply gives . . . a defense in court” (Ballot Pamp., Gen. Elec. (Nov. 5, 1996) rebuttal to argument against Prop. 215, p. 61) does not signify that it allows a defense at trial but does not permit a motion to set aside an indictment or information prior to trial. Such a motion broadly would be considered a “defense in court” because, if successful, it would obviate any need for a trial.

Generally, in moving to set aside an indictment or information prior to trial based on a grant of limited immunity from prosecution, a defendant must proceed under the common law if the limited immunity operates for reasons extrinsic to the criminality of the underlying conduct (People v. King, supra, 66 Cal.2d at pp. 644&endash;645), and may proceed under Penal Code section 995 if the limited immunity operates by rendering noncriminal certain conduct that otherwise would be criminal (see People v. Backus, supra, 23 Cal.3d at pp. 380&endash;381).

Because the grant of limited immunity from prosecution in section 11362.5(d) operates by decriminalizing conduct that otherwise would be criminal, a defendant moving to set aside an indictment or information prior to trial based on his or her status as a qualified patient or primary caregiver may proceed under Penal Code section 995. To prevail, a defendant must show that, in light of the evidence presented to the grand jury or the magistrate, he or she was indicted or committed “without reasonable or probable cause” to believe that he or she was guilty of possession or cultivation of marijuana in view of his or her status as a qualified patient or primary caregiver. (Pen. Code, § 995, subd. (a)(1)(B), (2)(B).) ” ‘ “Reasonable or probable cause” means such a state of facts as would lead a man of ordinary caution or prudence to believe, and conscientiously entertain a strong suspicion of the guilt of the accused. “Reasonable and probable cause” may exist although there may be some room for doubt.’ ” (Lorenson v. Superior Court (1950) 35 Cal.2d 49, 56-57, quoting People v. Nagle (1944) 25 Cal.2d 216, 222.) Of course, in the absence of reasonable or probable cause to believe that a defendant is guilty of possession or cultivation of marijuana, in view of his or her status as a qualified patient or primary caregiver, the grand jury or the magistrate should not indict or commit the defendant in the first place, but instead should bring the prosecution to an end at that point.

Although we thus conclude that section 11362.5(d) reasonably must be interpreted to grant a defendant a limited immunity from prosecution allowing him or her to move to set aside an indictment or information prior to trial, in the present case defendant did not make any such motion. Defendant claims that the trial court deprived him of an opportunity to do so, but the record does not support his assertion. From all that appears, defendant simply failed to move prior to trial to set aside the information. The trial court did nothing to prevent or hinder him from doing so.

III. As noted, the Court of Appeal recognized that section 11362.5(d) allows a medical defense at trial. In doing so, the Court of Appeal followed People v. Trippet (1997) 56 Cal.App.4th 1532, 1543&endash;1551, People ex rel. Lungren v. Peron (1997) 59 Cal.App.4th 1383, 1388&endash;1400, and People v. Rigo (1999) 69 Cal.App.4th 409, 412&endash;415.

We agree that, in light of its language and purpose, section 11362.5(d) must be interpreted to allow a defense at trial. For a defendant to be able to avoid “criminal prosecution or sanction” (§ 11362.5, subd. (b)(1)(B)) when charged with possession or cultivation of marijuana in violation of section 11357 or 11358, he or she must be able to defend on the ground that these provisions do “not apply” (§ 11362.5(d)) because he or she is a qualified patient or primary caregiver.

Furthermore, ballot pamphlet materials for Proposition 215 expressly acknowledge that section 11362.5(d) allows a defense at trial. In rebuttal to the argument by opponents of Proposition 215 that section 11362.5(d) “will provide new legal loopholes for drug dealers to avoid arrest and prosecution” (Ballot Pamp., Gen. Elec. (Nov. 5, 1996) argument against Prop. 215, p. 61), the measure’s proponents stated: “Police officers can still arrest anyone for marijuana offenses,” including possession and cultivation of the substance in violation of sections 11357 and 11358. (Ballot Pamp., Gen. Elec. (Nov. 5, 1996) rebuttal to argument against Prop. 215, p. 61.) “Police officers can still arrest anyone who grows too much [marijuana], or tries to sell it.” (Ibid.) Section 11362.5(d) “simply gives those arrested” for possession or cultivation of marijuana “a defense in court, if they can prove” their status as qualified patients or primary caregivers. (Ballot Pamp., Gen. Elec. (Nov. 5, 1996) rebuttal to argument against Prop. 215, p. 61, italics omitted.) Accordingly, section 11362.5(d) “would . . . protect” such persons “from criminal penalties for” possession or cultivation of marijuana. (Ballot Pamp., Gen. Elec. (Nov. 5, 1996) argument in favor of Prop. 215, p. 60.)

A. Defendant contends that the Court of Appeal erred by rejecting his claim that the trial court improperly failed to instruct the jury on a section 11362.5(d) defense based on a theory that he was a qualified primary caregiver. We disagree.

As the Court of Appeal determined, such an instruction would not have been supported by substantial evidence. For a person to be a qualified primary caregiver, he or she must be “designated” as such by a qualified patient, and must have “consistently assumed responsibility” for the qualified patient’s “housing, health, or safety.” (§ 11362.5, subd. (e).) The sole evidence relevant to this issue was the statement made by defendant at the hospital, the truth of which he denied at trial, that he kept the 31 marijuana plants not only for himself but also for two other unnamed persons. Even if these two unnamed persons were in fact qualified patients, there was no evidence whatsoever that defendant had been designated by either one as a primary caregiver, or that he consistently had assumed responsibility for either person’s housing, health, or safety.

Defendant complains that the trial court deprived him of an opportunity to raise a defense under section 11362.5(d) based on defendant’s posttrial contention that he was a qualified primary caregiver. It is true that, in instructing on the section 11362.5(d) defense, the trial court referred only to a qualified patient and not to a qualified primary caregiver. But, as stated, there was no evidence suggesting that defendant had been designated by either one of the two unnamed persons as a primary caregiver or that he consistently had assumed responsibility for either one’s housing, health, or safety. The trial court did nothing to deprive defendant of an opportunity to raise such a defense; defendant simply failed to present any evidence to support it.

B. Defendant next raises a question concerning the allocation and weight of the burden of proof under the defense provided by section 11362.5(d), and the propriety of the trial court’s related instruction.

In its charge to the jury, the trial court instructed that defendant bore the burden of proof as to the facts underlying this defense, and that he was required to prove those facts by a preponderance of the evidence.

1 We begin our analysis of the question of the allocation and weight of the burden of proof under the defense provided by section 11362.5(d) with the observation that the question involves two related but distinct issues.

The first issue is which party, the People or the defendant, bears the burden of proof as to the facts underlying the defense. Evidence Code section 115 defines “burden of proof” as “the obligation of a party to establish by evidence a requisite degree of belief concerning a fact in the mind of the trier of fact or the court.”

The second issue is what is required to be done by the party who bears the burden of proof as to the facts underlying the defense, whether that party is the People or the defendant. Evidence Code section 115 provides that “[t]he burden of proof may require a party to raise a reasonable doubt concerning the existence or nonexistence of a fact or that he establish the existence or nonexistence of a fact by a preponderance of the evidence, by clear and convincing proof, or by proof beyond a reasonable doubt. . . .”

With regard to the first issue — whether it is the People or the defendant who bears the burden of proof as to the facts underlying the defense — the answer is not provided by section 11362.5(d) itself, inasmuch as the statute does not expressly allocate any burden of proof as to the underlying facts, either to the People or to the defendant. Rather, as will appear, the answer is provided by the so-called rule of convenience and necessity, which has been articulated and applied in several prior decisions (see, e.g., People v. Agnew (1940) 16 Cal.2d 655, 663&endash;667; In re Andre R. (1984) 158 Cal.App.3d 336, 341&endash;342, and cases cited; see generally 5 Witkin & Epstein, Cal. Criminal Law, supra, Criminal Trial, § 525, p. 749).

The rule of convenience and necessity declares that, unless it is “unduly harsh or unfair,” the “burden of proving an exonerating fact may be imposed on a defendant if its existence is ‘peculiarly’ within his personal knowledge and proof of its nonexistence by the prosecution would be relatively difficult or inconvenient.” (In re Andre R., supra, 158 Cal.App.3d at p. 342; accord, e.g., People v. Agnew, supra, 16 Cal.2d at pp. 663&endash;667.) The rule often has been invoked when the “exonerating fact” arises from an exception to a criminal statute. (See, e.g., In re Andre R., supra, 158 Cal.App.3d at pp. 341&endash;342, citing cases; see also Model Pen. Code & Commentaries, com. 3 to § 1.12, p. 192; id., pp. 192-193, fn. 16.)

Application of the rule of convenience and necessity supports the conclusion that section 11362.5(d) should be interpreted to allocate to the defendant the burden of proof as to the facts underlying the defense provided by the statute.

First, it would not be unduly harsh or unfair to allocate to the defendant the burden of proving the facts underlying this defense. These facts are that he or she was a “patient” or “primary caregiver,” that he or she “possesse[d]” or “cultivate[d]” the “marijuana” in question “for the personal medical purposes of [a] patient,” and that he or she did so on the “recommendation or approval of a physician” (§ 11362.5(d)). The existence of these facts is peculiarly within a defendant’s personal knowledge, and proof of their nonexistence by the prosecution would be relatively difficult or inconvenient.

Second, section 11362.5(d) constitutes an exception to sections 11357 and 11358, which make it a crime to possess and cultivate marijuana, because section 11362.5(d) provides that sections 11357 and 11358 “shall not apply to a patient, or to a patient’s primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician” (§ 11362.5(d), italics added).

Against this conclusion, defendant argues that section 11362.5(d) allocates to the People the burden of proof as to the facts underlying the defense provided by the statute. In support, defendant attempts to analogize this defense to the statute of limitations, under which the People bear the burden of proof (People v. Zamora (1976) 18 Cal.3d 538, 565, fn. 27). For present purposes, however, section 11362.5(d) is not analogous to the statute of limitations. Section 11362.5(d) plainly allows a defense for which the rule of convenience and necessity supports allocating to the defendant the burden of proof as to the underlying facts. In contrast, the statute of limitations is self-executing and “is not a mere matter of defense” (1 Witkin & Epstein, Cal. Criminal Law, supra, Defenses, § 215, p. 576). The statute of limitations historically has been accorded treatment specific to itself. (See generally id., §§ 214&endash;230, pp. 575&endash;601.) We see no reason to accord the same treatment to section 11362.5(d), which allows a defense like that offered by many other statutory provisions.

With regard to the second issue — what is required to be done by the party who bears the burden of proof as to the facts underlying this defense, whom we have determined to be the defendant — the answer again is not provided by the statute itself, inasmuch as it does not expressly define the weight of the burden of proof. But neither is the answer afforded by the rule of convenience and necessity. Although the People rightly claim that the rule of convenience and necessity is “consistent” with requiring the defendant to prove the underlying facts by a preponderance of the evidence (see People v. Spry (1997) 58 Cal.App.4th 1345, 1367&endash;1369, disapproved on another point by People v. Martin (2001) 25 Cal.4th 1180, 1192), the rule is just as consistent with requiring the defendant merely to raise a reasonable doubt (see People v. Agnew, supra, 16 Cal.2d at pp. 663&endash;667; 5 Witkin & Epstein, Cal. Criminal Law, supra, Criminal Trial, § 525, p. 749; see also Model Pen. Code, § 1.12, subds. (2)(a), (3)(c)). To resolve this issue, we accordingly must look elsewhere.

We begin with Evidence Code section 501. That provision states: “Insofar as any statute, except [Evidence Code] Section 522, assigns the burden of proof in a criminal action, such statute is subject to Penal Code Section 1096.” (Evid. Code, § 501.) Penal Code section 1096 requires the People to prove the facts establishing a defendant’s guilt beyond a reasonable doubt. In contrast, Evidence Code section 522 requires a defendant to prove the facts underlying a defense of insanity by a preponderance of the evidence.

The comment to Evidence Code section 501 by the California Law Revision Commission, which proposed that provision, states in pertinent part: “[Evidence Code] Section 501 is intended to make it clear that the statutory allocations of the burden of proof . . . are subject to Penal Code Section 1096, which requires that a criminal defendant be proved guilty beyond a reasonable doubt, i.e., that the statutory allocations do not (except on the issue of insanity) require the defendant to persuade the trier of fact of his innocence. Under Evidence Code Section 522, as under existing law, the defendant must prove his insanity by a preponderance of the evidence. [Citation.] However, where a statute allocates the burden of proof to the defendant on any other issue relating to the defendant’s guilt, the defendant’s burden, as under existing law, is merely to raise a reasonable doubt as to his guilt. [Citation.] [Evidence Code] Section 501 also makes it clear that, when a statute assigns the burden of proof to the prosecution in a criminal action, the prosecution must discharge that burden by proof beyond a reasonable doubt.” (Recommendation Proposing an Evidence Code (Jan. 1965) 7 Cal. Law Revision Com. Rep. (1965) p. 91, italics added; accord, id. at pp. 88&endash;89 [com. to Evid. Code, § 500].)

Thus, Evidence Code section 501 provides that, when a statute allocates the burden of proof to a defendant on any fact relating to his or her guilt, the defendant is required merely to raise a reasonable doubt as to that fact.

With respect to many defenses, as “ha[s] been and [is] extremely common in the penal law” (Model Pen. Code & Commentaries, com. 3 to § 1.12, p. 192), a defendant has been required merely to raise a reasonable doubt as to the underlying facts. Such defenses relate to the defendant’s guilt or innocence. Perhaps most pertinent here are the defense of possession of a dangerous or restricted drug with a physician’s prescription, against a charge of unlawful possession of such a drug (People v. Montalvo (1971) 4 Cal.3d 328, 333, fn. 3); the defense of lawful acquisition of a hypodermic needle or syringe, against a charge of unlawful possession of such an item (People v. Fuentes (1990) 224 Cal.App.3d 1041, 1044&endash;1047); and the defense of prescribing narcotics to an addict under lawful conditions, against a charge of unlawfully prescribing such substances to such a person (People v. Lawrence (1961) 198 Cal.App.2d 54, 62 [predating Evid. Code, § 501]). Such defenses relate to the defendant’s guilt or innocence because they relate to an element of the crime in question. Thus, the defense of possession of a dangerous or restricted drug with a physician’s prescription negates the element of unlawful possession of such a drug; the defense of lawful acquisition of a hypodermic needle or syringe negates the element of unlawful possession of such an item; and the defense of prescribing narcotics to an addict under lawful conditions negates the element of unlawfully prescribing such substances to such a person.

When a statute allocates the burden of proof to a defendant as to a fact collateral to his or her guilt, however, the defendant may be required to prove that fact by a preponderance of the evidence. (E.g., People v. Frye (1998) 18 Cal.4th 894, 967; People v. Tewksbury (1976) 15 Cal.3d 953, 964&endash;965.)

With respect to only a handful of defenses has the defendant been required to prove the underlying facts by a preponderance of the evidence. Those are defenses that are collateral to the defendant’s guilt or innocence. The most prominent is the defense of entrapment. (See People v. Moran (1970) 1 Cal.3d 755, 760.) “[T]he defense of entrapment . . . is not based on the defendant’s innocence. The courts have created the defense as a control on illegal police conduct ‘out of regard for [the court's] own dignity, and in the exercise of its power and the performance of its duty to formulate and apply proper standards for judicial enforcement of the criminal law.’ ” (Id. at pp. 760&endash;761.) Such defenses are collateral to the defendant’s guilt or innocence because they are collateral to any element of the crime in question. Thus, the defense of entrapment does not bear on the defendant’s conduct in any way, but solely on the conduct of the police.

Applying the foregoing principles, we conclude that, as to the facts underlying the defense provided by section 11362.5(d), defendant is required merely to raise a reasonable doubt.

This conclusion is supported by a comparison of this defense to other defenses under which the defendant is required merely to raise a reasonable doubt. (See generally Model Pen. Code & Commentaries, com. 3 to § 1.12, p. 192.) Most similar is the defense of possession of a dangerous or restricted drug with a physician’s prescription, against a charge of unlawful possession of such a drug. For that defense, a defendant need raise only a reasonable doubt as to his or her possession of the drug in question with a physician’s prescription. (People v. Montalvo, supra, 4 Cal.3d at p. 333, fn. 3.) Also similar is the defense of lawful acquisition of a hypodermic needle or syringe, against a charge of unlawful possession of such an item. For that defense too, a defendant need raise only a reasonable doubt as to the lawfulness of his or her acquisition of the needle or syringe in question. (People v. Fuentes, supra, 224 Cal.App.3d at pp. 1044&endash;1047.) Not dissimilar, from a different perspective, is the defense of prescribing narcotics to an addict under lawful conditions, against a charge of unlawfully prescribing such substances to such a person. For that defense as well, a defendant need raise only a reasonable doubt as to the existence of the conditions in question. (People v. Lawrence, supra, 198 Cal.App.2d at p. 62.)

The same conclusion is supported by an examination of the defense provided by section 11362.5(d) itself. This defense plainly relates to the defendant’s guilt or innocence. As stated, the purpose of the statute is: (1) “[t]o ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person’s health would benefit from the use of marijuana in the treatment of . . . any . . . illness for which marijuana provides relief” (§ 11362.5, subd. (b)(1)(A)); and (2) “[t]o ensure that patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction” (§ 11362.5, subd. (b)(1)(B)). Under section 11362.5(d), qualified patients and primary caregivers “who obtain and use marijuana for medical purposes upon the recommendation of a physician” are exempted not only from “criminal . . . sanction” for possession and cultivation of marijuana, but even from “criminal prosecution” (§ 11362.5, subd. (b)(1)(B)), because their conduct is noncriminal, involving as it does the treatment of “seriously ill” persons who “obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person’s health would benefit” therefrom (§ 11362.5, subd. (b)(1)(A)).

As a result of the enactment of section 11362.5(d), the possession and cultivation of marijuana is no more criminal — so long as its conditions are satisfied — than the possession and acquisition of any prescription drug with a physician’s prescription. Inasmuch as this statute provides that sections 11357 and 11358, which criminalize the possession and cultivation of marijuana, “shall not apply to a patient, or to a patient’s primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician” (§ 11362.5(d)), the provision renders possession and cultivation of marijuana noncriminal under the conditions specified.

In sum, the defense provided by section 11362.5(d) relates to the defendant’s guilt or innocence, because it relates to an element of the crime of possession or cultivation of marijuana. Thus, this defense negates the element of the possession or cultivation of marijuana to the extent that the element requires that such possession or cultivation be unlawful.

Proposition 215′s ballot pamphlet materials do not dictate a contrary conclusion. It is true that the proponents of Proposition 215 stated (in their rebuttal to the argument by the measure’s opponents) that section 11362.5(d) “gives . . . a defense in court” to qualified patients and primary caregivers “if they can prove” its underlying facts. (Ballot Pamp., Gen. Elec. (Nov. 5, 1996) rebuttal to argument against Prop. 215, p. 61, italics added.) But, as Evidence Code section 115 provides, a defendant can “prove” the facts underlying a given defense, i.e., “establish by evidence a requisite degree of belief concerning [such] fact[s] in the mind of the trier of fact,” merely by “rais[ing] a reasonable doubt concerning [their] existence or nonexistence . . . .”

Against this conclusion, the People argue that the defense provided by section 11362.5(d) is collateral to a defendant’s guilt or innocence. But, as explained, within its scope section 11362.5(d) renders possession and cultivation of marijuana noncriminal. Contrary to the People’s implication, the statutory defense simply cannot be likened to a defense such as entrapment, which is “not based on the defendant’s innocence” in any way (People v. Moran, supra, 1 Cal.3d at p. 760).

We note that People v. Trippet, supra, 56 Cal.App.4th at pages 1543&endash;1551, People ex rel. Lungren v. Peron, supra, 59 Cal.App.4th at pages 1388&endash;1400, and People v. Rigo, supra, 69 Cal.App.4th at pages 412&endash;415, which recognize the defense provided by section 11362.5(d), do not address the issue of the allocation and weight of the burden of proof. CALJIC No. 12.24.1 (1999 rev.) (6th ed. 1996) does indeed state that a defendant bears the burden of proof as to the underlying facts by a preponderance of the evidence. All that is cited in support of this pattern instruction is section 11362.5 and Trippet. (Com. to CALJIC No. 12.24.1 (1999 rev.) (6th ed. 1996) pp. 15&endash;16.) Section 11362.5 provides no support. Trippet asserts in dictum that “the burden is, of course, on the defendant to raise the defense and prove its elements.” (See People v. Trippet, supra, 56 Cal.App.4th at p. 1551, fn. 17.) But, as explained, Evidence Code section 115 allows a defendant to “prove” the “elements” of a given defense merely by raising a reasonable doubt as to their existence or nonexistence.

2 We next address defendant’s contention that the trial court’s instruction on the defense provided by section 11362.5(d), which required him to prove the underlying facts by a preponderance of the evidence, amounted to reversible error.

A trial court must instruct the jury on the allocation and weight of the burden of proof (Evid. Code, § 502; People v. Simon, supra, 9 Cal.4th at p. 501 [citing Evid. Code, § 502]; People v. Figueroa, supra, 41 Cal.3d at p. 721 [same]), and, of course, must do so correctly. It must give such an instruction even in the absence of a request (see People v. Simon, supra, 9 Cal.4th at p. 501), inasmuch as the allocation and weight of the burden of proof are issues that “are closely and openly connected with the facts before the court, and . . . are necessary for the jury’s understanding of the case” (People v. St. Martin (1970) 1 Cal.3d 524, 531).

Because, as we have concluded, defendant was required merely to raise a reasonable doubt as to the facts underlying the defense in question, the trial court erred by instructing the jury that he was required to prove those facts by a preponderance of the evidence.

If a trial court’s instructional error violates the United States Constitution, the standard stated in Chapman v. California (1967) 386 U.S. 18, 24, requires the People, in order to avoid reversal of the judgment, to “prove beyond a reasonable doubt that the error . . . did not contribute to the verdict obtained.” (See People v. Simon, supra, 9 Cal.4th at p. 506, fn. 11.) But if a trial court’s instructional error violates only California law, the standard is that stated in People v. Watson (1956) 46 Cal.2d 818, 836, which permits the People to avoid reversal unless “it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” (See People v. Simon, supra, 9 Cal.4th at p. 506, fn. 11.)

We have left open the question whether an instructional error like that committed by the trial court in the present case is of federal constitutional dimension or only of state law import (People v. Simon, supra, 9 Cal.4th at p. 506, fn. 11) and need not resolve this question here, because the error requires reversal even under the less rigorous Watson standard.

There is a reasonable probability of a more favorable result within the meaning of Watson when there exists “at least such an equal balance of reasonable probabilities as to leave the court in serious doubt as to whether the error affected the result.” (People v. Watson, supra, 46 Cal.2d at p. 837.)

Such an equal balance of reasonable probabilities exists in the present case. Defendant unquestionably was a patient — an “extremely” ill patient who suffered from “diabetes and all its complications.” Furthermore, defendant unquestionably possessed and cultivated marijuana on the recommendation of a physician, who advised him to use the substance. What could be questioned, however, was whether defendant possessed and cultivated the marijuana in question entirely for his own personal medical purposes. Had the jury properly been instructed that defendant was required merely to raise a reasonable doubt about his purposes instead of proving such purposes by a preponderance of the evidence, it might have found him not guilty. We come to this conclusion because the jury might have found that defendant raised a reasonable doubt — to wit, whether the 31 marijuana plants would yield a harvest of only about 5 pounds for a year’s supply, in accordance with defendant’s testimony and that of his expert witness. The evidence showed that the yield of the plants was uncertain, based as it was on various agricultural and other assessments and projections. In light of such uncertainty, the jury might have entertained a reasonable doubt in defendant’s favor.

IV For the reasons stated above, we reverse the judgment of the Court of Appeal and remand the cause to the Court of Appeal with directions to reverse the judgment of the trial court and remand the cause for a new trial before a properly instructed jury.

GEORGE, C. J.

WE CONCUR:

KENNARD, J., WERDEGAR, J., CHIN, J., BROWN, J.. MORENO, J., MIHARA, J.*

* Associate Justice, Court of Appeal, Sixth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6, of the California Constitution.

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Mower

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX 85 Cal.App.4th 290

Rehearing Granted

__________________________________________________________________________________

Opinion No. S094490

Date Filed: July 18, 2002

__________________________________________________________________________________

Court: Superior

County: Tuolumne

Judge: Eric L. Du Temple

__________________________________________________________________________________

Attorneys for Appellant:

Gerald F. Uelmen, under appointment by the Supreme Court; and Richard D. Runcie, under appointment by the Court of Appeal, for Defendant and Appellant.

Ann Brick for the ACLU of Northern California as Amicus Curiae on behalf of Defendant and Appellant.

Graham Boyd for American Civil Liberties Union as Amicus Curiae on behalf of Defendant and Appellant.

Mark Rosenbaum for the ACLU of Southern California as Amicus Curiae on behalf of Defendant and Appellant.

Jordan C. Budd for the ACLU of San Diego and Imperial Counties as Amicus Curiae on behalf of Defendant and Appellant.

Daniel N. Abrahamson for the Lindesmith Center-Drug Policy Foundation as Amicus Curiae on behalf of Defendant and Appellant.

Law Office of J. David Nick, J. David Nick and Ean Vizzi for National Organization for the Reform of Marijuana Laws as Amicus Curiae on behalf of Defendant and Appellant.

Massa & Associates and Richard J. Massa for Sudi Pebbles Trippet and Tod Mikuriya as Amici Curiae on behalf of Defendant and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer, Attorney General, David P. Druliner and Robert R. Anderson, Chief Assistant Attorneys General, Jo Graves, Acting Assistant Attorney General, Stephen G. Herndon and Maureen A. Daly, Deputy Attorneys General, for Plaintiff and Respondent.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Gerald F. Uelmen, Santa Clara University School o f Law

500 El Camino Real, Santa Clara, CA 95053-0421. (408) 554-5729

Maureen A. Daly, Deputy Attorney General

1300 I Street, Sacramento, CA 94244-3550. (916) 324-5265

Declaring that “the unlawfulness of an activity does not prevent its taxation,” the state’s tax board reaffirmed its right to collect taxes on the sale of pot on Thursday.

“Sales of illegal medical marijuana and illegal marijuana in California are subject to tax,” said Jerome E. Horton, chair of the California Board of Equalization, in a prepared statement. “The United States Supreme court has ruled that, as a general matter, the unlawfulness of an activity does not prevent its taxation.”

Think of the broader implications!

Anyway, Horton wants to go much farther than this: He’s behind legislation to regulate the distribution of marijuana “as a way of controlling illegal sales and assessing tax when properly due.” 

Said he: “The time is overdue for the state to provide leadership for this industry regarding the manufacturing and sale of marijuana similar to what we did for cigarettes and liquor. Such proposed controls will have the same effect of regulating and controlling sales and capturing the appropriate sales tax.”  

Under the proposed legislation, the Board of Equalization would run a statewide licensing program for every marijuana grower, importer, wholesaler, and retailer. Medical pot would be taxed at “a rate equivalent to that imposed upon tobacco products,” and unlicensed distributors would be subject to fines of up to $5,000 and/or jail time of up to one year.

The whole thing grows out of a faceoff with the Berkeley Patients Group, a medical marijuana dispensary in NoCal. The Board of Equalization audited the co-op’s books for the three years between July 1, 2004 and June 30, 2007 — and decided that the co-op Group owes the state more than $6.4 million in tax and interest.

Ouch.

The Berkeley Patients Group has said that medical marijuana is medicine, and thus exempt from sales tax.

The Board of Equalization said, essentially, nice try, but forget it. ”The Berkley Patients Group is responsible for sales tax payments from 2004 up to the present for sales of medical marijuana,” the board concludes.

We don’t expect this is anywhere close to being over. We asked the Berkeley Patients Group to weigh in, and will let you know when we hear back from them.

Meantime, Orange County co-ops might want to collect sales taxes and forward them to the state. All sellers of marijuana are required to hold a seller’s permit and are required to file and pay sales tax, the board said again Thursday: “Persons who make sales without a seller’s permit are also generally subject to an eight year look-back period for taxes, penalties, and interest.”

Ouch, indeed.

What do you think?

 

Cities traditionally exercise nearly exclusive control over land use. They regularly invoke their land-use authority to limit or prohibit the location of various types of businesses and operations within their communities. They do so under their basic police powers, which permit them to adopt laws protecting health, safety and welfare. In instances where the state has not pre-empted local law-making authority, a city is free to regulate. Medical marijuana dispensaries are not expressly mentioned in either the Compassionate Use Act (CUA) or in the Medical Marijuana Program Act (MMP); and in the recent City of Claremont v. Kruse case the court’s decision confirmed that these laws do not pre-empt a city’s enactment or enforcement of land use, zoning or business license laws as they apply to medical marijuana dispensaries.¹

When a city’s zoning code does not allow marijuana dispensaries or collectives, and it expressly states that any condition caused or permitted to exist in violation of its provisions constitutes a public nuisance, the city can ban the use. Accordingly, the city may enjoin the nuisance by filing a civil abatement action. Despite claims that the state’s medical marijuana laws prevent cities from regulating marijuana dispensaries, the California Court of Appeal’s thorough analysis of state pre-emption law in Kruse concluded that cities retain their police power to regulate and, if necessary, restrict the operation of dispensaries.

The courts have recognized that the CUA and the MMP create only narrow exceptions to criminal drug possession penalties. Numerous judicial decisions have confirmed that California voters approved limited defenses to possession of marijuana and did not intend to allow large-scale commercial operations. Most important to the theory that cities retain the right to ban dispensaries is the 2005 People v. Urcizeanu decision, in which the court of appeal noted that the CUA “creates a narrow defense to crimes, not a constitutional right to obtain marijuana.”²

Two Methods for Banning Marijuana Dispensaries

Some dispensary operators have obtained business permits under false pretenses, applying for city land-use and business permits under the guise of pharmacies or other permissible uses.³ In other cases operators outright refused to comply with city laws requiring business permits.⁴ Operators like these have been ordered by the courts to cease business based on the regulations that the cities had in place.

There are two primary methods cities use to ban dispensaries:

1. Adopt a business license provision that says licenses will be issued only to those operating in compliance with state and federal law; and

2. Prohibit dispensaries in all land-use zones.

Nearly 200 California cities have either banned pot collectives or have enforced moratoriums, according to Americans for Safe Access. The medical cannabis advocacy group reports on its website that 34 cities in California have specific ordinances that allow for medical marijuana cooperatives.

Pending Litigation

The City of Anaheim enacted an ordinance in 2007 banning all marijuana distribution facilities consisting of three or more people who otherwise qualified as patients or caregivers under California’s MMP and CUA. The ban imposed a criminal penalty.

A collective called the Qualified Patients Association filed a lawsuit challenging the ban. The collective argued that local governments’ ability to ban marijuana collectives is pre-empted by the California medical marijuana law. The collective argued that local governments may regulate but not ban marijuana distribution facilities.

The trial court disagreed, concluding there was no pre-emption and that Anaheim could use its police powers to ban marijuana distribution facilities and impose a criminal penalty for violating the ban. The collective has appealed and the matter is pending in the Fourth District Court of Appeal.

Unresolved Issues

While some cities have adopted ordinances permitting marijuana dispensaries under certain rules and regulations, the question of whether cities can authorize such uses by ordinance remains unclear. Government Code section 37100 states that a city’s “legislative body may pass ordinances not in conflict with the Constitution and laws of the state or the United States.” As all use of marijuana is illegal under federal law, cities may lack the authority to adopt enforceable ordinances permitting marijuana dispensaries under any rules or regulations.

 

Footnotes:

 ¹ The California Supreme Court denied review and further denied requests to have the Kruse opinion depublished. City of Claremont v. Kruse, 2009 Cal. LEXIS 12497 (Cal., Dec. 2, 2009).

² People v. Urcizeanu (2005) 132 Cal.App.4^th 747.

³ City of Corona v. Naulls (2008) 166 Cal.App.4th 618.

⁴ City of Claremont v. Kruse (2009) 177 Cal.App.4th 1153.

Medical marijuana sellers can’t take their money to the bank

Pot-sellers find few options for banking, accepting credit cards
by Susan Ladika,Conflict between state and federal laws over the legality of marijuana has left owners of medical marijuana dispensaries finding that their financial services can go up in smoke. They’re caught in a legal gray area that makes big banks wary or downright hostile.

Alpine Herbal Wellness in Denver has been open just 10 months, and co-owner Sue Harank has already switched banks four times. Two banks and a credit union closed her account with just a couple of weeks’ notice.

“It’s been one heck of a nightmare,” says Harank, who recently opened a bank account and switched her credit card account to Colorado Springs State Bank, the only bank in the state now openly offering accounts to those in the medical marijuana industry.

She’s far from alone. “People have gotten their credit card accounts shut down without them even knowing it,” Harank says.

And it’s not just Colorado that’s been hit. Don Duncan, California director of the advocacy group Americans for Safe Access and a member of the board of the medical marijuana collective Los Angeles Patients and Caregivers Group in West Hollywood, says his own account was shut down about a year ago, He’s heard many similar stories around the state. “They just summarily close accounts. Banks are very unsure if it’s OK to do business with medical cannabis organizations. It ripples out to credit card and merchant services accounts.” Merchant services accounts let vendors accept credit cards.

Federal, state laws conflict
The main sticking point is the clash between federal and state marijuana laws.

According to the lobbying group NORML (the National Organization for the Reform of Marijuana Laws), 16 states and the District of Columbia have legalized marijuana for medical use. But the U.S. Drug Enforcement Agency classifies cannabis as a Schedule 1 drug, meaning it has a high potential for abuse and no currently accepted medical use.

California and Colorado are far ahead of the pack when it comes to establishing medical marijuana dispensaries, with hundreds of these facilities in the two states.

Last spring, Rep. Jared Polis, D-Colo., and 14 other members of Congress sent a letter to Treasury Secretary Timothy Geithner seeking reassurance for financial institutions. Among the letter’s signatories were Barney Frank, D-Mass., and former presidential candidate Ron Paul, R-Texas.

The two are co-sponsors of a bill to repeal the federal law that makes marijuana use a crime and instead allow states to decide whether to legalize the drug.

The letter to Geithner asks his office to “issue formal written guidance for financial institutions assuring that Department priorities do not include targeting or pursuing institutions whose account holders are involved in a business ostensibly operating in compliance with a state medical marijuana law.”

No response has been received, Duncan says.

In contrast, U.S. Attorney General Eric Holder issued a memo in October 2009 telling federal prosecutors they “should not focus federal resources in your states on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana.”

Big banks back away
Yet many banks are either hesitant to enter the fray or have backed away after initially offering accounts to medical marijuana dispensaries.

A representative of Wells Fargo, which previously offered accounts to such businesses, said in a statement to CreditCards.com: “In view of the complex, inconsistent legal environment relating to medical marijuana dispensaries, Wells Fargo Regional Banking has opted not to bank these businesses.

“While medical marijuana dispensaries are legal in some states, they are still illegal under federal law. The policy extends to all medical marijuana dispensaries, and based on our customer information, we have advised all such businesses that bank with us that they will need to close their deposit accounts. Additionally, it has been our policy not to provide merchant card processing services to businesses of this type.”

Entrepreneurs see budding opportunity
Instead, smaller companies are stepping in to fill the merchant card processing gap.

In January, MarijuanaPOS.com, based in Los Angeles, announced it was offering merchant account services, with a focus on providing debit and credit card processing services to the medical marijuana industry.

Jesse Cretaro, marketing director for MarijuanaPOS.com, said the company has been in business around six months and has about a dozen medical marijuana collectives signed up for its services.

He said his company works with banks that accept high-risk clients, even though he thinks the higher risk is “going into a (medical marijuana) collective and paying cash,” which can be a lure for robbers.

Martin Khemmoro, executive vice president of Direct Bancard of Livonia, Mich., which also provides services to the medical marijuana industry, says some of the merchant services processors his company works with are overseas.

He’s found some medical marijuana dispensaries bill themselves as a vitamin shop or herbal shop in order to get financial services.

Khemmoro says his business processes credit card payments, handles gift cards and rewards cards, along with point-of-sale systems to keep track of inventory, patients and sales.

Smaller banks better prospects
Lance Ott, chief executive officer of Guardian Data Systems in Thousand Oaks, Calif., says smaller domestic banks and credit unions may be more likely than larger financial institutions to service the medical marijuana industry. Though in some cases, bigger banks will essentially grandfather in existing accounts, but not accept new ones. “There’s a huge stigma associated with the industry.”

Guardian Data Systems offers services such as credit card and debit card processing, gift and loyalty card programs, online payment processing for merchandise — such as clothing — financial reporting and inventory tracking.

For the past three years, Ott’s been “trying to offer honest, secure services to an emerging industry,” and he says he only works with those businesses that are licensed and set up properly under state law.

That matches the desire of people like Duncan and Harank. Duncan says clinics that are on the up and up want to “operate with transparency.” But all the controversy over financial services “forces banking into the shadows.”

Merchant service accounts often are administered through third parties and tend to come under less scrutiny than banks, he says.

Harank says when she switched her bank account to Colorado Springs State Bank, she also brought the bank her credit card business, rather than remaining with a third-party processor.

“Accepting credit cards is critical for our business,” she says, as they serve as a convenience for customers. One recent day, every transaction at Alpine Herbal Wellnessx was done via credit card.

Duncan says, “We just want to obey the law and do what’s normal. At the end of the day, we’re all going to be better off if the cash is in the bank and not tucked under a mattress somewhere.”

  Despite the fact that scores of medical cannabis dispensaries, clubs, and delivery services are currently in business in California, the sale of medical cannabis is strictly illegal under federal law. Under state law, sale is generally illegal. However, non-profit “distribution” may be allowed in certain cases for patient cultivation co-ops and small-scale caregiver gardeners.

Under federal law, sale, cultivation and possession of marijuana remain strictly illegal.  The DEA has raided dozens of medical marijuana growers, clubs and caregivers  in California since the enactment of Prop. 215.  For the most part, the targets have been either high-profile activists who have attracted publicity, or commercial-scale growers whom local law enforcement have decided to turn over for federal prosecution.

Under state law,  the California Compassionate Use Act of 1996 (Prop. 215) exempts patients and their primary caregivers from criminal prosecution for personal possession and cultivation of marijuana, but NOT for distribution or sale to others.

State law was  expanded in 2004 by a new law, SB 420 (Health & Safety Code 11362.7-8), which  (1) authorizes caregivers who provide marijuana to patients to be compensated for the costs of their services, though not on a for-profit basis; and (2)  allows patients to form cultivation “collectives” or “cooperatives.”  On careful examination, however, neither of these provisions provides a green light for sales of cannabis. Those dispensaries that are selling marijuana over the counter accordingly do so at the tolerance of local authorities. Note that there have been instances where hostile local law enforcement agencies have busted medical cannabis dispensaries and charged their personnel with illegal distribution or sales.

For a list of patients’ groups and dispensaries, see www.canorml.org/prop/cbclist.html.

CAREGIVERS:

A  “primary caregiver” is narrowly defined under Prop. 215 to be “the individual designated [by a legal patient] who has consistently assumed responsibility for the housing, health, or safety of that person.”  The law does not explicitly allow for multiple caregivers. While caregivers may serve more than one patient, a new provision in SB 420 has made it illegal for them to have more than one patient outside their own “city or county.”    While the constitutionality of this provision is debatable (not only does it seem to override Prop. 215, but the restriction to a single “city or county” is ambiguous)  prospective caregivers should beware of trying to serve large geographical areas.

 In general, the courts have held that cannabis clubs cannot serve as legal “primary caregivers” for large numbers of patients.   Some persons have claimed caregiver status while growing for multiple numbers of patients on the theory that they are providing for their patients’ health or safety.  This defense has been successful in court for caregivers growing for small numbers of patients.  However, it was explicitly rejected by a state court of appeals in the Peron decision, where the court held that Peron’s San Francisco Cannabis Buyers’ Club could not reasonably claim to function as a “primary caregiver” for its 8000 clients.

In general, medical cannabis providers who cater to walk-in clients should not hope to rely on the caregiver provision.   Caregiver growers should limit themselves to a select membership list of local clients  whom they personally know and who do not have other caregivers.  Within these constraints, SB 420 allows caregivers to be compensated for the costs of their services, but does NOT specifically authorize distribution or cultivation for profit.

COLLECTIVE GARDENS

SB 420 encourages access to medical marijuana through “collective, cooperative cultivation projects. ” Unfortunately, it  provides no guidelines or explanation as to how these should operate.    Presumably, the basic model is a group of patients and caregivers who plant a garden together and share the crop among themselves.   The cultivation cooperative model does not necessarily envision walk-in clients, nor retail sales of medicine to members.  Co-ops may be supported by participation in work, donations or  membership fees.  Under one model, co-op patients pay a set gardening fee for a certain part of the crop, and receive the harvest at no further charge. Unlike caregivers, collective gardens aren’t limited to patients from the same “city or county.”

A notable example of a patients’ collective is the Wo/Men’s Alliance for Medical Marijuana in Santa Cruz  www.wamm.org.  WAMM has over 200 seriously  ill members  who cultivate a collective garden and attend to each others’ health and personal needs.   In 2004, WAMM won a federal injunction protecting their right to cultivate under the Raich decision (see below).  This did not stop the DEA from busting another collective garden , Eddy’s Medicinal Gardens, whose operator was engaged in large-scale cultivation (30,000 plants) for some 2,000 ≠ 3,000 patients. The WAMM injunction was voided in 2005 by the Supreme Court’s Raich decision.

Two examples of patients’ providers officially structured as “cooperative” corporations under California law were the Oakland Cannabis Buyers’ Cooperative and Los Angeles Cannabis Research Center. Both would have been legal under SB 420, but both were shut down by the federal government.

FEDERAL LAW

Under the U.S. Controlled Substances Act (CSA), marijuana is currently classified as a Schedule I drug, meaning that it has no accepted medical use.  The federal government has interpreted the law strictly to mean that all marijuana is illegal regardless of state laws like Prop. 215. The federal law was upheld by the U.S. Supreme Court in the case Raich v Gonzalez (2005), where it ruled that the CSA’s ban on posssession and cultivation did not exceed the federal government’s constitutional authority under the interstate commerce clause even in the case of private, personal use by patients.  While further constitutional challenges to the CSA are being pursued in federal court, medical marijuana remains completely illegal under current federal law.

The Supreme Court rejected a prior, 2001 challenge to the federal law by upholding an injunction ordering the Oakland Cannabis Buyers Cooperative  and five other cannabis clubs to cease operations.  The court overturned a Ninth Circuit Court of Appeals ruling that the OCBC was  entitled to a “medical necessity” defense for distributing marijuana to its members.  While the court ruled for the government on the procedural grounds that the CSA  did not allow for a necessity defense for distributors, it left open the question whether individual patients might invoke a necessity defense.

FEDERAL FORFEITURE:

Another federal weapon against medical marijuana is property forfeiture. Federal law allows the government to forfeit real estate from owners or landlords who let it be used for marijuana distribution or cultivation.  The DEA successfully used forfeiture against the Los Angeles Cannabis Resource Center in 2001.  The LACRC’s building was actually owned by the city of West Hollywood, which had bought it as a gift for the club.  The government had no trouble taking possession of it by means of forfeiture, effectively closing the LACRC. More recently, the government invoked forfeiture to close the  Capitol Compassionate Care center in Roseville and to force a landlord to evict another dispensary in West Hollywood.  The DEA has threatened to employ forfeiture more widely.  So far, the chosen targets have mostly been facilities that actively sought publicity through the media or advertising.   Dispensary operators are advised to operate discreetly to avoid DEA attention.

LOCAL REGULATION

Despite the shaky legality of dispensaries, many cities and counties have enacted ordinances aimed at zoning, regulating, or limiting them.  Some localities have enacted moratoriums banning new dispensaries altogether, including numerous towns in the Central Valley area and the Peninsula.   Others, including Alameda County, Hayward, Berkeley, Santa Rosa, West Hollywood, and Oakland, have put a limit on the number of dispensaries in their area.   A few cities, including San Francisco, Oakland, West Hollywood, and Santa Rosa have established licensing schemes for dispensaries.    Strict zoning regulations are in effect in many localities.  Other regulations that have been adopted include banning on-site consumption and limiting the quantity of marijuana that can be sold or kept on hand. Local regulations are constantly evolving.  For the latest information, check with  local officials.

Anyone interested in opening a medical cannabis facility should be wary about consulting with local authorities. Many towns have moved to ban dispensaries after receiving inquiries from prospective operators. However, anyone planning to open a storefront dispensary should seek a business license and comply with local zoning regulations. It is especially important that dispensaries be appropriately sited so as not to disturb neighbors. Neighborhood complaints are the number one cause of police raids. Dispensaries should also be sure that their landlords are comfortable with what they are doing. Landlord complaints are another leading cause of problems.

Dispensaries have been organized in various ways:  as sole proprietorships, partnerships, non-profit cooperatives or corporations.   Because SB 420 does not specifically protect for-profit operations, non-profit organizations are probably safer.   Prospective operators are advised to consult a business attorney.

SALES TAX

The state Board of Equalization has ruled that medical cannabis sales are subject to sales tax, regardless of their legality. (This is consistent with California law, under which medicinal herbs are generally taxable. The only medicines that are not taxable are those provided in licensed pharmacies with a physician’s prescription.)

ATTORNEYS

Prospective patient providers are strongly advised to consult an attorney. The following attorneys are familiar with the law on cannabis cooperatives, patients’ groups, dispensaries, etc.

 

Robbery in California is the act of taking property from another by means of force or fear. So, consequently, the issues that come up in a robbery case are issues dealing with whether or not a theft occurred, whether or not force or fear occurred and lastly, the timing of the force or fear with respect to the taking. The force or fear must be used to obtain the property or to escape WITH the property. Below are a list of case summaries in California that deal with these issues.

In a robbery offense, larcenous intent or an intent to steal and force must concur in point of time or robbery is not committed because there is no act and intent as required by law. In People v. Green, the court stated, “if the larcenous purpose does not arise until after the force has been used against the victim, there is not “joint operation of act and intent” necessary to constitute robbery. People v. Green (1980) 27 Cal 3^rd 1 at page 54.

In a robbery offense, force or fear must enable the taking. To satisfy the “force” or “fear” element of robbery, it is not enough that a victim is in fear while watching her property being stolen.  The force used, or the fear felt by the victim must provide the means that enabled the defendant to take the victim’s property.  People v. Prieto  (1993) 15 Cal App 4^th 210 at page 215.

Robbery In order for a robbery to exist, an act of force must be motivated by an intent to steal or there is not robbery. In the case of People v. Turner (1990) 50 Cal. 3^rd 668, at page 691, the court stated the following: “An act of force accompanied by a theft does not constitute robbery unless the act of force was motivated by an intent to steal. If the intent to steal does not arise until after the force has been used against the victim, no robbery has taken place….in such an instance, the taking will constitute at most a theft and not a robbery.

ROBBERY – IMMEDIATE PRESENCE ELEMENT
Miller v. Superior Court (People) (2004) Cal.App.4th , 04 C.D.O.S. 703 (Fourth Dist., 1/22/04, D042465)
Immediate presence requirement of robbery is satisfied where defendant, after stealing property belonging to the victim but not from the victim’s presence, is confronted by the victim as he is attempting to carry the property to a place of temporary safety and uses forcible resistance to keep the property. See also, People v. Estes (1983) 147 Cal.App.3d 23, 27.

ROBBERY – PUSHING SECURITY GUARD TO THE GROUND
People v. Gunter (C.A. 2nd, 11/6/07, B196075) 07 C.D.O.S. 12850
Pushing security guard during escape turned shoplifting into robbery under ” Estes ” theory. (People v. Estes (1983) 147 Cal.App.3d 23.)

MULTIPLE CONVICTIONS – CONVICTION OF LESSER INCLUDED OFFENSE
People v. La Stelley (6/17/99) Cal.App.4th , 99 Cal. Daily Op. Serv. 4775
Defendant could not be convicted of both robbery and theft when he took one item from a store and the theft turned into a robbery when he struggled with a store employee. See People v. Ortega (1998) 19 Cal.4th 686 (multiple convictions may not be based on necessarily included offenses); People v. Estes (1983) 147
Cal.App.3d 23 (robbery of security guard was also petty theft of Sears store; only one conviction possible). Note also that when a defendant steals multiple items during the course of an indivisible transaction from the same victim, he commits only one robbery or theft notwithstanding the number of items taken (Ortega).

 ROBBERY – INSUFFICIENT EVIDENCE: People v. Williams (2001) Cal.App.4th , 01 C.D.O.S. 8131,(Fourth Dist., Div. One, 9/13/01, D031198)
DA failed to present evidence that multiple victims of store robberies had actual or constructive possession of money taken. (People v. Estes (1983) 147 Cal.App.3d 23;
People v. Nguyen (2000) 24 Cal.4th 756.) Convictions – reversed, and may not be retried.
http://www.courtinfo.ca.gov/opinions/documents/D031198.pdf

In a robbery prosecution, defendant was improperly convicted of two counts of robbery on the basis of his taking of a pickup truck at gun point from its two occupants. Both victims were in possession of the same vehicle and were victims of a single taking, and defendant therefore could be convicted of robbery as to only one of them, and of assault with a deadly weapon as to the other. , overruled , overruled People v. Hernandez (1981) 30 Cal 3d 462.

The record did not support defendant’s conviction of one count of second-degree robbery and one count of grand theft where defendant had placed more expensive merchandise in a box for cheaper merchandise, paid the lower price, was briefly detained on leaving the store by a store employee (who took possession of the merchandise briefly before returning it to defendant), and then assaulted a store employee in the store parking lot when the employee tried to detain defendant. All these acts were part of a single crime, which changed from grand larceny to robbery due to the incident in the parking lot.. People v. La Stelley (1999, Cal App 2d Dist) 72 Cal App 4th 1396,

Force or Fear 

Where an information alleges that the robbery was “accomplished by means of force and fear” an allegation that it was accomplished “against the will” is unnecessary. People v. Riley (1888) 75 Cal 98.

Where no element of fear entered into the perpetration of the robbery, an instruction in the form of this section was sufficient and there was no need or propriety in instructing on the subject of fear. People v. Modina (1905) 146 Cal 142.

Where record is devoid of any showing that any force was used in taking property of complaining witness or that she was afraid to resist the taking of it, and no money was taken or any act committed which indicated that defendant intended to rob complaining witness, evidence would not sustain conviction of robbery. People v. Welsh (1936) 7 Cal 2d 209.

To constitute first degree robbery it is necessary only that accused be armed with deadly weapon and that he take property of another from his person against his will “by means of force or fear;” if after robbery is accomplished robber beats victim with weapon, he is guilty of separate crime of assault by means of force likely to produce great bodily injury. In re Chapman (1954) 43 Cal 2d 385, 273 P2d 817, 1954 Cal LEXIS 257.

Though a taking under definition of robbery may be accomplished by use of either force or fear, proof of one or the other must be made in order to sustain conviction. People v. Reade (1961, Cal App 2d Dist) 197 Cal App 2d 509, 17 Cal Rptr 328, 1961 Cal App LEXIS 1370.

Robbery need not be accomplished by means of both force and fear, and proof of either is sufficient to sustain conviction. People v. James (1963, Cal App 1st Dist) 218 Cal App 2d 166, 32 Cal Rptr 283, 1963 Cal App LEXIS 1762.

Conviction of robbery requires proof of force or fear. People v. Clayton (1963, Cal App 3d Dist) 218 Cal App 2d 364, 32 Cal Rptr 679, 1963 Cal App LEXIS 1787.

Terms “force” and “fear” used in defining robbery have no technical meaning peculiar to law and must be presumed to be within jurors’ understanding, and where defendant did not request amplification or explanation of such terms, error could not be predicated on trial court’s failure to give them on its own motion. People v. Anderson (1966) 64 Cal 2d 633, 51 Cal Rptr 238, 414 P2d 366, 1966 Cal LEXIS 294.

The larcenous aiming of a handgun at a victim accompanied by a demand (and receipt) of money amounts to “force” and inferably “fear,” within the meaning of Pen C § 211, defining robbery as a “felonious taking” by “force or fear.” People v. Le Blanc (1972, Cal App 3d Dist) 23 Cal App 3d 902, 100 Cal Rptr 493, 1972 Cal App LEXIS 1264.

Where the element of “force or fear,” necessary to the crime of robbery as defined by Pen C § 211, is absent, a taking of property from the person is grand theft under Pen C § 487. People v. Morales (1975, Cal App 4th Dist) 49 Cal App 3d 134, 122 Cal Rptr 157, 1975 Cal App LEXIS 1191.

In a robbery prosecution arising out of a “purse snatch,” the evidence was sufficient to support a finding of “force or fear” required for conviction of robbery under Pen C § 211, where there was evidence that the purse was grabbed from the victim’s arm with such force that the handle broke. People v. Roberts (1976, Cal App 2d Dist) 57 Cal App 3d 782, 129 Cal Rptr 529, 1976 Cal App LEXIS 1490, overruled People v. Rollo (1977) 20 Cal 3d 109, 141 Cal Rptr 177, 569 P2d 771, 1977 Cal LEXIS 172.

In a prosecution for robbery, there was sufficient evidence to support the “force or fear” requisite to conviction for robbery where there was testimony that defendant was armed with a butcher-type knife used in plain view in opening a diamond display case, that defendant overcame the force exerted by a clerk to keep the glass on the case and that the clerk had to call a security guard in her attempts to prevent defendant from obtaining the diamonds. People v. Harris (1977, Cal App 2d Dist) 65 Cal App 3d 978, 135 Cal Rptr 668, 1977 Cal App LEXIS 1106.

While an element of force or fear must be proved in order to establish a conviction for robbery under Pen C § 211, it is not necessary for that element to be reflected in the overt act of an attempted robbery if the crime has not progressed to that point. Moreover, an attempt to commit the crime of robbery does not of itself necessarily amount to an assault and does not require assault as an essential element. People v. Vizcarra (1980, Cal App 2d Dist) 110 Cal App 3d 858, 168 Cal Rptr 257, 1980 Cal App LEXIS 2334.

In a robbery prosecution arising out of a bank holdup, the evidence was sufficient to sustain a jury finding of force or fear inherent to the crime of robbery with respect to two of the bank tellers involved who did not testify at trial, where both defendants were in possession of guns and the weapons were out and pointed in the direction of the tellers and customers alike, where one of the two tellers, though not at her window, was within visual sight of it, and where the other was right next to his cash box at the time of the taking. People v. Childs (1980, Cal App 1st Dist) 112 Cal App 3d 374, 169 Cal Rptr 183, 1980 Cal App LEXIS 2461, overruled People v. Ramos (1982) 30 Cal 3d 553, 180 Cal Rptr 266, 639 P2d 908, 1982 Cal LEXIS 141, overruled People v. Hernandez (1981) 30 Cal 3d 462, 179 Cal Rptr 239, 637 P2d 706, 1981 Cal LEXIS 203.

Where defendant displayed a gun to place two persons in joint possession of property in fear in order to unlawfully take the property, defendant’s conviction of two counts of robbery was proper. People v. Gordon (1982, Cal App 4th Dist) 136 Cal App 3d 519, 186 Cal Rptr 373, 1982 Cal App LEXIS 2036.

The terms “force or fear,” as used in the definition of the crime of robbery (Pen C § 211) have no technical meaning peculiar to the law and must be presumed to be within the understanding of jurors. Thus, jury instructions explaining such terms are not required. People v. Hays (1983, Cal App 4th Dist) 147 Cal App 3d 534, 195 Cal Rptr 252, 1983 Cal App LEXIS 2217.

The administering of drugs to overcome a victim’s resistance constitutes “force” within the meaning of Pen C § 211, providing that robbery is the felonious taking of personal property against the victim’s will accomplished by means of force or fear. Accordingly, the evidence was sufficient to sustain defendant’s conviction for robbery, where the convictions were predicated on evidence showing that in each instance defendant used lorazepam, a tranquilizer, dissolved in hot coffee in order to drug his victims and render them unconscious thereby overcoming their resistance to the taking of various items of personal property from their homes or persons. A showing of “force or fear” is not, and cannot be, limited to external forces such as bludgeoning the victim or displaying a lethal weapon to overcome his will and resistance. People v. Dreas (1984, Cal App 1st Dist) 153 Cal App 3d 623, 200 Cal Rptr 586, 1984 Cal App LEXIS 1812.

Defendant’s use of a knife was not an element of the crime of robbery because the particular means by which force was employed was not an element, and thus the use of the knife could be the basis of an enhancement under Cal. Penal Code § 12022(b). In re Michael L. (1985) 39 Cal 3d 81, 216 Cal Rptr 140, 702 P2d 222, 1985 Cal LEXIS 297.

Robbery (Pen C § 211) is the felonious taking of personal property in the possession of another, from his person or immediate presence and against his will, accomplished by means of force or fear. It is the use of force or fear that distinguishes robbery from grand theft from the person. People v. Mungia (1991, Cal App 4th Dist) 234 Cal App 3d 1703, 286 Cal Rptr 394, 1991 Cal App LEXIS 1179, review denied (1992, Cal) 1992 Cal LEXIS 283.

The force or fear required to establish robbery under Pen C § 211, is not synonymous with a physical corporeal assault. The terms “force” and “fear,” as used in the definition of robbery, have no technical meaning peculiar to the law and must be presumed to be within the understanding of jurors. “Force” is a relative concept, since some people are more vulnerable than others. The determination of whether the physical act applied to the victim constitutes force is a factual question that the jury must determine using its own common sense, and it may consider both the victim’s and the defendant’s physical characteristics. People v. Mungia (1991, Cal App 4th Dist) 234 Cal App 3d 1703, 286 Cal Rptr 394, 1991 Cal App LEXIS 1179, review denied (1992, Cal) 1992 Cal LEXIS 283.

In the context of the robbery statute (Pen C § 211), “force” is not limited to an application of power such as bludgeoning the victim. The test is whether resistance is involuntarily overcome. Thus, administration of intoxicating drugs that render the victim unconscious or dazed can constitute “force” within the robbery statute. People v. Pretzer (1992, Cal App 2d Dist) 9 Cal App 4th 1078, 11 Cal Rptr 2d 860, 1992 Cal App LEXIS 1121.

Substantial evidence supported a conviction of robbery (Pen C § 211), even though the victim managed to escape from his apartment before defendants succeeded in carrying away his property, where the victim could, but for defendants’ use of force or fear, have taken steps to exercise physical control over his property; thus, it was taken from his “immediate presence.” Although a piece of video equipment was still attached to the premises by its cable when the victim left the apartment, the taking (asportation) was begun in his presence, and defendants did successfully carry the property away. People v. Dominguez (1992, Cal App 4th Dist) 11 Cal App 4th 1342, 15 Cal Rptr 2d 46, 1992 Cal App LEXIS 1483.

In the robbery prosecution of a man who snatched two purses from the lap of a woman who was being pushed in a wheelchair by a companion, the element of taking from the companion accomplished by means of fear was satisfied, where substantial evidence permitted the reasonable inference that defendant’s forceful struggle to wrest the purses from the wheelchair victim caused her companion to be fearful and shocked. People v. Prieto (1993, Cal App 2d Dist) 15 Cal App 4th 210, 18 Cal Rptr 2d 761, 1993 Cal App LEXIS 465, review denied (1993, Cal) 1993 Cal LEXIS 4167.

In a robbery (Pen C § 211) prosecution, no reversible error resulted from the trial court’s jury instruction on the element of force or fear. The court instructed the jury that aiming of a gun at a victim accompanied by a demand and receipt of property amounted to force and an inference of fear. In explaining or defining an element of an offense, a trial court must exercise care so as not to confuse legal determinations with factual ones. The court’s instruction intruded on the jury’s role as factfinder. However, this error is reviewed under a harmless-error standard, and the trial court’s error was harmless beyond a reasonable doubt. Only identity was at issue at trial, and defendant did not dispute that each victim had been robbed. Moreover, the court left for the jury’s determination whether a gun had actually been aimed at the victims and whether there had been demands for property. The jury specifically found a firearm was used and could not have reasonably doubted that this use amounted to force or fear. People v. Higareda (1994, Cal App 2d Dist) 24 Cal App 4th 1399, 29 Cal Rptr 2d 763, 1994 Cal App LEXIS 456, review denied (1994, Cal) 1994 Cal LEXIS 4259, cert den (1994) 513 US 1062, 115 S Ct 676, 130 L Ed 2d 608, 1994 US LEXIS 8922.

In a prosecution for a robbery (Pen C § 211) occurring at an automated teller machine, the trial court, after instructing the jury that robbery is accomplished by means of force, violence, fear, or intimidation (CALJIC No. 9.40), erred in further instructing that where intimidation is relied on, it must be established by proof of conduct, words, or circumstances reasonably calculated to produce fear. The taking necessary to support a conviction for robbery must be accomplished by means of force or fear. The trial court’s instruction, however, created an ambiguity as to whether “fear” and “intimidation” are different concepts for purposes of robbery, and as to whether it was necessary for the jury to find that the victim was, in fact, afraid in order to reach a guilty verdict. Moreover, the prosecution stated in closing argument that proof of either fear or intimidation was satisfactory for a conviction, that intimidation was the primary factor in the case, and that the robbery was accomplished by “pure intimidation.” Thus, the prosecution’s arguments exacerbated the ambiguities that the instruction created. People v. Davison (1995, Cal App 1st Dist) 32 Cal App 4th 206, 38 Cal Rptr 2d 438, 1995 Cal App LEXIS 109, rehearing denied (1995, Cal App 1st Dist) 1995 Cal App LEXIS 219.

The element of fear for purposes of robbery (Pen C § 211) is satisfied when there is sufficient fear to cause the victim to comply with the unlawful demand for his or her property. Although the victim need not explicitly testify that he or she was afraid in order to show the use of fear to facilitate the taking, there must be evidence from which it can be inferred that the victim was in fact afraid, and that such fear allowed the crime to be accomplished. The extent of the victim’s fear does not need to be extreme. People v. Davison (1995, Cal App 1st Dist) 32 Cal App 4th 206, 38 Cal Rptr 2d 438, 1995 Cal App LEXIS 109, rehearing denied (1995, Cal App 1st Dist) 1995 Cal App LEXIS 219.

In a prosecution for robbery (Pen C § 211), the trial court’s error in instructing the jury that where intimidation is relied on to support a robbery conviction, it must be established by proof of conduct, words, or circumstances reasonably calculated to produce fear, thus creating an ambiguity as to whether intimidation alone was sufficient to support a robbery conviction, was harmless. Under other instructions that defined robbery as a taking by means of force or fear and stated that the prosecution must prove a taking by force, violence, fear, or intimidation, “fear” was an alternative to “intimidation,” and thus the ambiguous instruction did not improperly restrict the jury’s consideration of the evidence. Moreover, evidence that a defendant’s acts did induce fear in a victim is probative of whether the acts were objectively intimidating. The victim testified that it was night when defendant and his accomplice approached her at an automated teller machine, that no one else was present, and that defendant spoke to her in a way that made her feel he “meant business.” The victim further testified that she did not know whether defendant and the accomplice were going to use violence, and that she moved towards her car for safety. This evidence showed, beyond a reasonable doubt, that the erroneous instruction must have made no difference in the verdict. People v. Davison (1995, Cal App 1st Dist) 32 Cal App 4th 206, 38 Cal Rptr 2d 438, 1995 Cal App LEXIS 109, rehearing denied (1995, Cal App 1st Dist) 1995 Cal App LEXIS 219.

For purposes of Pen C § 211 (robbery is felonious taking of personal property from person, against his or her will, by means of force or fear), the element of force or fear is satisfied if the force or fear caused the victim to give up his or her property. People v. Smith (1995, Cal App 2d Dist) 33 Cal App 4th 1586, 40 Cal Rptr 2d 31, 1995 Cal App LEXIS 347, review denied (1995, Cal) 1995 Cal LEXIS 4464.

In a prosecution for robbery (Pen C § 211), there was sufficient evidence that defendant took the victim’s property by means of force or fear. Defendant, who had forced the victim into a camper, saw her attempting to hide $20 by taking it out of her jeans pocket and putting it in her sock. Defendant told the victim that he would not steal her money and that she could put it back in her sock. He then raped her. When he put down the knife he was holding, the victim took the knife and stabbed defendant in the back. Defendant wrestled the knife away from the victim, bit her on the cheek, and told her to stop screaming, saying, “Shut up because those guys out there told me to come get you and if you don’t be quiet, they will come in and just act like nothing happened because they think you are my girlfriend so that they think we are having a fight.” With the knife positioned towards the victim, defendant said that the pain was killing him, and took the $20 from the victim’s jeans pocket, while she was still on the bed. This was sufficient evidence of the use of force or fear to deprive the victim of her money. People v. Smith (1995, Cal App 2d Dist) 33 Cal App 4th 1586, 40 Cal Rptr 2d 31, 1995 Cal App LEXIS 347, review denied (1995, Cal) 1995 Cal LEXIS 4464.

In order to support a conviction of robbery (Pen C § 211), the taking (either the gaining possession of or the carrying away of the property) must be accomplished by force or fear. This element was satisfied where defendant, while stealing a stereo from the victim’s car, was confronted by the victim and swung at him with a screwdriver, while at the same time getting out of the victim’s car and holding onto the stereo. Even though defendant may have gained possession of the property without the use of force or fear, his mere theft became a robbery when he resorted to force or fear while carrying away the loot. It was sufficient that defendant used force or fear to prevent the victim from regaining the car stereo. People v. Torres (1996, Cal App 2d Dist) 43 Cal App 4th 1073, 51 Cal Rptr 2d 77, 1996 Cal App LEXIS 250, review denied (1996, Cal) 1996 Cal LEXIS 2791.

The willful use of fear to retain property immediately after it has been taken from the owner constitutes robbery (Pen C § 211). So long as the perpetrator uses the victim’s fear to accomplish the retention of the property, it makes no difference whether the fear is generated by the perpetrator’s specific words or actions designed to frighten, or by the circumstances surrounding the taking itself. People v. Flynn (2000, Cal App 2d Dist) 77 Cal App 4th 766, 91 Cal Rptr 2d 902, 2000 Cal App LEXIS 33, review denied (2000, Cal) 2000 Cal LEXIS 4151.

Since the central element of robbery is force or fear, a defendant may be convicted of a separate robbery for each victim of such force or fear, even if the victims are in joint possession of the property taken. However, in a prosecution arising out of a restaurant robbery, defendant was improperly convicted of committing two separate robberies that evening, based on the separate ownership of the two amounts of money taken, where he committed only one larceny against a single victim of one threatened application of force occurring at the same place and time. Under these circumstances, the single larceny could only support a single county of robbery. People v. Marquez (2000, Cal App 3d Dist) 78 Cal App 4th 1302, 93 Cal Rptr 2d 758, 2000 Cal App LEXIS 182, review denied (2000, Cal) 2000 Cal LEXIS 5723.

In a prosecution for robbing a video store (Pen C § 211) and for kidnapping to commit rape, the jury could reasonably infer that defendant took the victim’s property, four videotapes, by either force or fear, despite defendant’s contention that he decided to take the videos after the attack, which was only theft, not robbery. Where a defendant begins a sexual assault, aware that the victim has property and takes it, the jury may infer the defendant intended to commit both rape and robbery. Here defendant knew the victim had videotapes because he was in her video store. Moreover, the victim testified she feared for her life and defendant took the videos against her will. Defendant also admitted hitting her before he left. People v. Shadden (2001, Cal App 2d Dist) 93 Cal App 4th 164, 112 Cal Rptr 2d 826, 2001 Cal App LEXIS 839, review denied (2002, Cal) 2002 Cal LEXIS 345.

Where defendant’s victim testified that he was scared when defendant and defendant’s passenger, claiming to be undercover police officers, approached him late at night as the victim was attempting to tow his car, the evidence was sufficient to show that defendant took the victim’s property, contents from his wallet, by means of fear and unlawful injury. People v. Gonzales (2003, Cal App 6th Dist) 114 Cal App 4th 560, 8 Cal Rptr 3d 88, 2003 Cal App LEXIS 1866, review denied (2004) 2004 Cal. LEXIS 2417 .

Although the manager was not present when defendant broke into a restaurant and took money, defendant used force against the manager, who arrived as defendant was leaving, to retain the stolen money and remove it from the manager’s immediate presence; such use of force was sufficient to support defendant’s conviction for robbery, and the trial court correctly instructed the jury that a taking was from the immediate presence of the victim if it occurred in an area within the victim’s reach, observation, or control such that the victim could, if not overcome by force or fear, retain possession of the property. People v. Gomez (2005, Cal App 4th Dist) 134 Cal App 4th 1241, 36 Cal Rptr 3d 680, 2005 Cal App LEXIS 1908, aff’d (2008, Cal) 43 Cal 4th 249, 74 Cal Rptr 3d 123, 179 P 3d 917, 2008 Cal LEXIS 3860.

Purse snatch satisfied the force or fear element of robbery where the thief wrested the purse from the victim, who had it on her person, using the amount of force necessary to get it away; the thief succeeded by cutting or breaking a strap that was over the victim’s shoulder and pulled on the strap with enough strength to defeat the victim’s efforts to hold on to the purse. People v. Thomas (2005, Cal App 2d Dist) 127 Cal App 4th 368, 25 Cal Rptr 3d 509, 2005 Cal App LEXIS 335, rehearing denied (2005, Cal App 2d Dist) 2005 Cal App LEXIS 558, review gr, depublished (2005, Cal) 30 Cal Rptr 3d 464, 114 P3d 717, 2005 Cal LEXIS 6561, transferred (2005, Cal) 34 Cal Rptr 3d 198, 119 P3d 962, 2005 Cal LEXIS 9988.

Sufficient evidence supported second-degree robbery convictions because the victims were frightened into giving defendant money. In a four-hour period after the victim refused to give him money, defendant threatened to kill the victim and fired gunshots near the front of the store where the victim worked; two hours after the shots were fired, defendant returned to the store and the victim gave him money. People v. Carrasco (2006, Cal App 2d Dist) 137 Cal App 4th 1050, 40 Cal Rptr 3d 768, 2006 Cal App LEXIS 399.

Although defendant, who murdered his mother, argued that he could not be found to have stolen from his mother by means of force or fear because his mother was already dead when he took her property, the point was meritless. It was defendant who applied the force to his mother, and substantial evidence was presented to show that defendant did so with the intent to steal. People v. Abilez (2007) 41 Cal 4th 472, 61 Cal Rptr 3d 526, 161 P 3d 58, 2007 Cal LEXIS 6758, modified, rehearing denied People v. Abilez (Frank Manuel) (2007, Cal) 2007 Cal LEXIS 8987, cert den Abilez v. California (2007) 552 U.S. 1067, 128 S. Ct. 720, 169 L. Ed. 2d 563, 2007 U.S. LEXIS 12828.

Defendant’s claim during his second-degree robbery trial that CALCRIM No. 1600 was deficient because it did not require proof the victim was actually afraid and did not require proof of force beyond that necessary to accomplish seizure of the property lacked merit because there is no requirement that the instruction define the terms fear or force as defendant suggested. Defendant’s argument about the level of force required had no application because the victim gave up the property willingly out of fear after defendant put a knife to the victim’s throat, and the trial court was not required to define the terms fear and force for the jury. People v. Anderson (2007, Cal App 3d Dist) 152 Cal App 4th 919, 61 Cal Rptr 3d 903, 2007 Cal App LEXIS 1042, review denied (2007, Cal.) 2007 Cal. LEXIS 11171.

In a robbery trial under Pen C § 211, defendant’s use of force or fear was established by evidence that defendant pushed a mall security guard when confronted near a music store and thereby prevented the guard from regaining possession of merchandise that defendant took from the music store. People v. Gunter (2007, 2d Dist) 156 Cal App 4th 913, 67 Cal Rptr 3d 700, 2007 Cal App LEXIS 1823, dismissed People v. Gunter (Steven) (2008, Cal.) 79 Cal. Rptr. 3d 2, 186 P.3d 393, 2008 Cal. LEXIS 6895.

Evidence that defendant’s accomplice cut or broke a purse strap over the victim’s shoulder and pulled on the strap with enough strength to defeat the victim’s efforts to hold on to the purse was sufficient to satisfy the force or fear element of robbery; by instructing the jury on grand theft as a lesser included offense, the trial court correctly allowed the jury to decide whether defendant’s accomplice used more force than the amount needed to take the purse without resistance. People v. Thomas (2007, 2d Dist) 156 Cal App 4th 988, 67 Cal Rptr 3d 804, 2007 Cal App LEXIS 1830, dismissed People v. Thomas (Cora Lee) (2008, Cal.) 87 Cal. Rptr. 3d 198, 198 P.3d 1, 2008 Cal. LEXIS 10624.

Purse snatch can qualify as a robbery when the perpetrator wrests the purse from the victim’s person, using the amount of force necessary to overcome the victim’s resistance. People v. Thomas (2007, 2d Dist) 156 Cal App 4th 988, 67 Cal Rptr 3d 804, 2007 Cal App LEXIS 1830, dismissed People v. Thomas (Cora Lee) (2008, Cal.) 87 Cal. Rptr. 3d 198, 198 P.3d 1, 2008 Cal. LEXIS 10624.

There was sufficient evidence that defendant committed robbery when he left a store without paying for merchandise; by brandishing a metallic object that resembled a weapon, defendant induced fear in a store employee and stopped the employee from chasing him, which was sufficient to establish the fear element of robbery. People v. Villa (2007, 2d Dist) 157 Cal App 4th 1429, 69 Cal Rptr 3d 282, 2007 Cal App LEXIS 2043, review denied People v. Villa (Antonio Espinoza) (2008, Cal.) 2008 Cal. LEXIS 2495.

There was sufficient evidence of a use of force or fear to support the robbery conviction under Pen C § 211 because even though the bank teller testified that she was only “a little” afraid, a rational trier of fact could have found the essential elements of the crime in that the teller complied with the prisoner’s demand for money and waited to report the robbery until after he had left the bank. Pressly v. Haws (2010, SD Cal) 2010 US Dist LEXIS 3220.

 If you have any questions about a robbery charge or conviction in California, call Orange County Defense Attorney Randall T. Longwith today at 714-699-4384.

New California case just came down regarding what is needed to get a restraining order or protective order in a non domestic violence case.  In essence, you now need to show that there was some witness intimidation involved in order to obtain the protetive order. Below is the case.

Filed 2/14/11

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

MICHAEL BABALOLA,

Petitioner,

v.

THE SUPERIOR COURT OF LOS ANGELES COUNTY,

Respondent;

THE PEOPLE,

Real Party in Interest.

No. B226170

(Los Angeles County

Super. Ct. No. PA065677)

ORIGINAL PROCEEDING. Petition for a writ of mandate. Daniel B. Feldstern, Judge. Petition dismissed.

Ronald L. Brown and Michael P. Judge, Public Defender, Albert J. Menaster, Marya Shahriary and Karen Nash, Deputy Public Defenders, for Petitioner.

Steve Cooley, District Attorney, Brentford Ferreira and Patrick D. Moran, Deputy District Attorneys, for Real Party in Interest.

___________________________

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Penal Code section 136.2, subdivision (a),1 authorizes the trial court in a criminal case, ¡°upon a good cause belief that harm to, or intimidation or dissuasion of, a victim or witness has occurred or is reasonably likely to occur,¡± to issue orders (generally referred to as ¡°criminal protective orders¡±) including an ex parte no-contact or stay-away order pursuant to Family Code section 6320;2 an order that the defendant or any other person before the court not violate any provision of section 136.1, which prohibits intimidation of victims or witnesses; an order that the defendant have no communication with the victim or a specified witness except through an attorney; and an order protecting the victim of a violent crime from all contact by the defendant.

In People v. Stone (2004) 123 Cal.App.4th 153 (Stone) Division Two of this court construed section 136.2 narrowly, holding restraining orders authorized by this provision ¡°are those aimed at preserving the integrity of the administration of criminal court proceedings and protecting those involved in them. It therefore follows that the required good cause must show a threat, or likely threat to criminal proceedings or participation in them.¡± (Stone, at p. 160.) In an express response to Stone, in 2008 the Legislature added subdivision (h) to section 136.2, which provides, in a case in which a crime of domestic violence is charged, the court may consider, in determining whether good cause exists to issue an ex parte order pursuant to Family Code section 6320, ¡°the underlying nature of the offense charged¡± and the defendant.s history of domestic violence, prior restraining orders and other forms of violence or weapons offenses.

In an aggravated assault case not involving domestic violence may the court issue a criminal protective order, barring any contact between the defendant and the victim and witnesses and directing the defendant to sell or surrender any firearms he or she may

1 Statutory references are to the Penal Code unless otherwise indicated.

2 Family Code section 6320, subdivision (a), provides, ¡°[t]he court may issue an ex parte order enjoining a party from molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning . . . , destroying personal property, contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party . . . .¡±

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possess, solely on information concerning the underlying nature of the charged offense and without any evidence that intimidation or dissuasion of the victim or witnesses has occurred or is reasonably likely to occur? Based on the language of section 136.2 itself and the evolution of that statute during the past 30 years in connection with the Legislature.s efforts to strengthen the protection afforded victims of domestic violence, we conclude that, while past harm alone is sufficient for issuance of a criminal protective order in domestic violence cases, when there is no charge of domestic violence, more is required.

Petitioner Michael Babalola was not charged with crimes involving domestic violence; and there was no basis for a good cause belief he had attempted either during or after the commission of the alleged aggravated assaults to intimidate or dissuade his victims, Donald Jones and Catrina Godfrey, from reporting the crimes or testifying against him and no evidence of any likelihood of future intimidation or harm to the victims. Accordingly, respondent superior court erred in issuing a protective order pursuant to section 136.2 in the underlying criminal proceeding. Nonetheless, because the court vacated that criminal protective order in response to our order and alternative writ of mandate, we dismiss Babalola.s petition for writ of mandate as moot.3

FACTUAL AND PROCEDURAL BACKGROUND

1. Summary of the Evidence Presented at the Preliminary Hearing

a. The People¡¯s evidence

On February 25, 2010 a felony complaint was filed against Michael Babalola charging him with two counts of assault with a semiautomatic firearm against Catrina Godfrey and her boyfriend, Donald Jones. (¡× 245, subd. (b).) At the preliminary hearing Godfrey testified she and Jones were walking home from a bar during the early morning

3 Although the superior court vacated the order challenged by Babalola.s petition immediately after the issuance of the alternative writ, because the petition raises issues of public importance in the context of temporary pretrial orders that may evade review, by order dated September 9, 2010 we stated our intention to exercise our inherent discretion to resolve the issues presented.

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hours on November 1, 2009 when she began to feel ill. To steady herself, Godfrey put her hand against the window of a building on Foothill Boulevard that housed Babalola.s business; Jones and Godfrey.s apartment overlooked the back door of the business. According to Godfrey, Babalola came rushing outside, loudly asking her why she was banging on his window. When Godfrey tried to leave, Babalola pushed her against the window and repeatedly hit her with his fist and a handgun.

In his questioning of Godfrey, Babalola.s counsel began to develop the defense theme that Godfrey and Jones had been the aggressors in the incident, motivated by racial animus: Babalola is an African-American; his girlfriend and business partner, Julie Brooks, is White; Godfrey and Jones are both White. On cross-examination Godfrey admitted she is standing in front of a Confederate flag in a picture posted on her social networking site profile. She explained, however, the photograph was not intended to express any racial hatred. Rather, she had lived in Alabama for several years, and the flag was given to her by her best friend.s grandmother, who had passed away. Godfrey also denied using racial slurs, explaining the words ¡°Fuck Nigger¡± appeared on her profile after her account was ¡°hacked.¡±

Jones.s account of the incident was mostly consistent with Godfrey.s. Jones additionally testified he swung at Babalola in an attempt to rescue Godfrey, but Babalola hit him in the head with his gun and knocked him down. When Jones got up, Babalola pointed the gun in his face and told him he was ¡°going to die tonight.¡± Babalola then retreated into his business and locked the door.

Jones testified he had seen Babalola in the alley behind the business approximately 15 times, but neither he nor Godfrey had had any problems with Babalola or Brooks. During cross-examination Jones insisted there was nothing about Babalola or his cross-racial relationship with Brooks that bothered him. Jones denied there was a picture of him on Godfrey.s social networking site standing near a burning wood cross, explaining the burning boards were in the shape of an anarchy symbol, not a cross. Jones also claimed the gesture he was making with his fingers in the picture had no meaning.

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b. The defense¡¯s evidence

Brooks testified she and Babalola live in adjoining units behind two retail business stores they jointly operate. On October 31, 2009, the day of the incident, she had discovered the security cameras and solar panel used for lighting were missing from the building in which the businesses and residences are located. The police officer who investigated told Brooks the theft or disabling of security and lighting equipment is often a precursor to a burglary and suggested she be on alert that evening.

Just after midnight on November 1, 2009 Brooks and Babalola were working when they heard a loud bang and rattle at one of the doors. Babalola went outside and told Godfrey and Jones to leave. Brooks, who had subsequently gone to the door, saw Godfrey suddenly hit Babalola in the head. When Babalola tried to defend himself, both Jones and Godfrey began hitting him. After they cornered Babalola in the entrance way, Babalola pulled a gun out of his pocket. When Jones began to reach under his shirt, Babalola struck him with the gun. Brooks ran inside the store to get her phone while the three others continued to fight. After she found her phone and returned to the entrance, Babalola had already retreated into the store and was talking to the police on his phone. Brooks could hear Godfrey and Jones outside yelling profanity and racial slurs. Brooks also testified she had previously obtained a temporary restraining order after being harassed by Godfrey and Jones.

2. The Protective Order

Babalola appeared at pretrial hearings on March 18, 2010, April 28, 2010 and May 24, 2010. No request for a criminal protective order was made during any of those proceedings. On June 24, 2010, however, at a further pretrial hearing, the court advised Babalola the prosecutor had submitted a proposed protective order for it to consider. The deputy district attorney, who had not participated in the preliminary hearing, explained he was seeking a protective order to prevent any contact between Babalola and the victims given how close they lived to each other and the possibility of ¡°bad blood¡± between them: ¡°Your Honor, it.s my understanding from the facts of this case that the defendant and the victims reside within feet away from each other. I simply want to prevent any

6

contact between them in the form of inappropriate conduct or trying to dissuade people or talking to them or anything negative. I understand that, based on the facts of this case and other facts that were flushed out at preliminary hearing, that there might be some bad blood between [them].¡±

Babalola.s counsel objected, asking that the court set the matter for a future hearing and then, when the court denied that request,4 contending that Stone, supra, 123 Cal.App.4th 153, ¡°clearly holds that no protective order shall issue unless there is some evidence of situations, incidents, attempted contact or contact after the alleged incident and filing of charges.¡± Noting the transcript of the preliminary hearing had not been provided to the court (the judge at this hearing had not presided at the preliminary hearing) and the prosecutor had apparently read to the court from summary notes, defense counsel argued no evidence had been presented that Babalola had threatened or engaged in any other improper contact with Godfrey and Jones after the November 1, 2009 incident. Counsel also asserted Godfrey and Jones were not credible, having been impeached ¡°in multiple ways,¡± and argued they may have engaged in activities demonstrating racial animus.

The court overruled Babalola.s objection, finding good cause to issue the protective order ¡°based upon the evidence produced at [the preliminary] hearing that there is a reasonable likelihood of danger to the victim in this case based upon the nature of the charge and the information provided.¡± As issued, the protective order provided, in part, that Babalola ¡°must not harass, strike, threaten, assault (sexually or otherwise), follow, stalk, molest, destroy or damage the personal property or real property or disturb the peace, keep under surveillance, or block movements of the protected persons named¡± in the order, Jones and Godfrey, and that he ¡°must have no personal, electronic, telephonic, or written contact¡± with them and ¡°no contact with [Jones and Godfrey] through any third party, except an attorney of record.¡± The order further provided that Babalola ¡°must not attempt to or actually prevent or dissuade any victim or witness from

4 The court responded to defense counsel.s request, ¡°This would be the hearing.¡±

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attending a hearing or testifying or making a report to any law enforcement agency or person¡± and directed him to surrender to local law enforcement or sell to a licensed gun dealer any firearm owned by him or subject to his possession or control.

3. The Petition for Writ of Mandate

On July 29, 2010 Babalola petitioned this court for a writ of mandate contending, as he had in the superior court, issuance of a protective order pursuant to section 136.2 was improper because there was no evidence he had harmed, intimidated or dissuaded any victims or witnesses after the criminal proceedings had commenced with the intent to interfere with the proceedings. (See Stone, supra, 123 Cal.App.4th at pp. 160-161; People v. Ponce (2009) 173 Cal.App.4th 378, 384 [¡°there was no evidence after being charged [the defendant] had threatened, or had tried to dissuade any witness, or had tried to unlawfully interfere with the criminal proceedings¡±].)

On August 26, 2010, after receiving an informal response from the People, we issued an alternative writ of mandate directing the superior court either to vacate the protective order or to show cause why a peremptory writ of mandate requiring it to do so should not issue. In response, on August 27, 2010 the superior court vacated the criminal protective order it had issued against Babalola on June 24, 2010. On September 7, 2010 Babalola.s counsel acknowledged in a letter to this court that the petition for writ of mandate was now moot, but requested we resolve the issues presented because ¡°[p]rotective orders like the one in this case are issued routinely . . . without good cause or due process of law, and often become moot before the issues may be decided.¡± On September 9, 2010 we directed the People to file a written return to the petition, explaining, ¡°[b]ecause the petition presents issues of public importance in the context of orders that elude review, this court will exercise its inherent discretion to resolve the issues.¡± (See Edelstein v. City and County of San Francisco (2002) 29 Cal.4th 164, 172 [¡°.¡°[i]f a pending case poses an issue of broad public interest that is likely to recur, the court may exercise an inherent discretion to resolve that issue even though an event occurring during its pendency would normally render the matter moot¡±.¡±]; Conservatorship of Wendland (2001) 26 Cal.4th 519, 524, fn. 1 [appellate courts have the

8

¡°discretion to decide otherwise moot cases presenting important issues that are capable of repetition yet tend to evade review¡±]; Ramos v. Superior Court (2007) 146 Cal.App.4th 719, 723, fn. 2].)

CONTENTIONS

Babalola contends section 136.2 authorizes a criminal protective order only if the defendant attempted to intimidate a witness or victim or there is a reasonable likelihood that such an attempt to intimidate a witness or victim will occur and no evidence of any such threat was presented in the underlying proceeding. He also contends he was not afforded proper notice of the hearing at which the protective order was issued or an adequate opportunity to present evidence in opposition to the issuance of the order.

DISCUSSION

1. Standard of Review

Issues of statutory interpretation are questions of law subject to our independent or de novo review. (In re Tobacco II Cases (2009) 46 Cal.4th 298, 311; People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432; see California Veterinary Medical Assn. v. City of West Hollywood (2007) 152 Cal.App.4th 536, 546.) ¡°The fundamental purpose of statutory construction is to ascertain the intent of the lawmakers so as to effectuate the purpose of the law. [Citations.] In order to determine this intent, we begin by examining the language of the statute. [Citations.] But .[i]t is a settled principle of statutory interpretation that language of a statute should not be given a literal meaning if doing so would result in absurd consequences which the Legislature did not intend.. [Citations.] Thus, .[t]he intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act.. [Citation.] Finally, we do not construe statutes in isolation, but rather read every statute .with reference to the entire scheme of law of which it is part so that the whole may be harmonized and retain effectiveness..¡± (People v. Pieters (1991) 52 Cal.3d 894, 898-899.)

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2. The Evolution of Section 136.2¡¯s Authorization for Criminal Protective Orders

a. Adoption of the statute

The American Bar Association.s Section of Criminal Justice, Committee on Victims, in 1979 issued a report and recommendations, including a proposed model statute, for reducing victim and witness intimidation in criminal proceedings.5 In large part in response to that report the California Legislature repealed former section 136,6 and replaced it with sections 136, 136.1 and 136.2: Section 136, which remains unchanged today, defines ¡°malice,¡± ¡°witness¡± and ¡°victim¡±; section 136.1 defined misdemeanor and felony offenses of preventing or dissuading, or attempting to prevent or dissuade, a witness or victim; and section 136.2 provided for the issuance of criminal protective orders ¡°[u]pon a good cause belief that intimidation or dissuasion of a victim or witness has occurred or is reasonably likely to occur.¡± (Stats. 1980, ch. 686, ¡× 2.2, p. 2077.)7

5 The American Bar Association House of Delegates approved the recommendations in the report in August 1980.

6 Former section 136, subdivision (a), made it a misdemeanor to ¡°willfully and unlawfully prevent[] or dissuade[] any person who is or may become a witness, from attending upon any trial, proceeding or inquiry, authorized by law.¡± (Stats. 1979, ch. 944, ¡× 1 p. 2352.) Former section 136, subdivision (b), made it a felony to prevent or dissuade a witness by means of force or threats of unlawful injury or damage to property. (Ibid.)

7 As initially enacted, section 136.2 provided, ¡°Upon a good cause belief that intimidation or dissuasion of a victim or witness has occurred or is reasonably likely to occur, any court with jurisdiction over a criminal matter may issue orders including, but not limited to, the following: [¢Ò] (a) An order that a defendant shall not violate any provision of Section 136.1. [¢Ò] (b) An order that a person before the court other than a defendant, including, but not limited to, a subpoenaed witness or other person entering the courtroom of the court, shall not violate any provisions of Section 136.1 [¢Ò] (c) An order that any person described in this section shall have no communication whatsoever with any specified witness or any victim, except through an attorney under such reasonable restrictions as the court may impose. [¢Ò] (d) An order calling for a hearing to determine if an order as described in subdivisions (a) to (c), inclusive, should be issued. [¢Ò] (e) An order that a particular law enforcement agency within the jurisdiction of the court provide protection for a victim or a witness or both. . . . [¢Ò] Any person violating any order made pursuant to subdivisions (a) to (e), inclusive, may be punished for any

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b. Expansion of section 136.2 to provide greater protection to the victims of domestic violence

In 1988, dissatisfied with the refusal of some courts to issue protective orders under section 136.2 in cases involving victims of domestic violence, the Legislature added then-subdivision (f) (now renumbered as subdivision (a)(7)(A)) to section 136.2, expressly authorizing the issuance of orders ¡°protecting victims of violent crime from contact, with the intent to annoy, harass, threaten, or commit acts of violence by the defendant.¡± (Stats. 1988, ch. 183, ¡× 1, p. 777.) Although written broadly to include victims of all violent crime, not just domestic violence, the legislative history plainly demonstrates the Legislature.s concern to protect victims of domestic violence: ¡°According to the bill.s sponsor, the Los Angeles City Attorney.s Office, pretrial restraining orders are essential in crimes involving domestic violence. Current law authorizing judges to issue restraining orders in criminal cases does not specifically authorize orders which protect victims of violent crime from further harassment, threats, or acts of violence by the defendant. In some cases, the lack of specificity in the current law has caused courts to refuse to issue appropriate protective orders. This bill is needed to provide legislative guidance for the courts on this issue.¡± (Assem. Bill No. 3709, as amended Apr. 7, 1988, 3d reading (1987-1988 Reg. Sess.).)

Section 136.2 was amended again in 1990 as part of legislation revising portions of the Domestic Violence Prevention Act (formerly Code Civ. Proc., ¡× 540 et seq., now Fam. Code, ¡× 6200 et seq.; see Stats. 1993, ch. 219, ¡× 154, p. 1654.). Then-designated subdivision (g) (now renumbered as subdivision (e)(1)) was added providing, ¡°In all cases where the defendant is charged with a crime of domestic violence, as defined in Section 13700, the court shall consider issuing the above-described orders on its own motion. In order to facilitate this, the court.s records of all criminal cases involving domestic violence shall be marked to clearly alert to the court to this issue.¡± (Stats. 1990,

substantive offense described in Section 136.1, or for a contempt of the court making the order. . . .¡± (Stats. 1980, ch. 686, ¡× 2.2, pp. 2077-2078.)

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ch. 936, ¡× 6, p. 4001.) A provision was also added requiring the Judicial Council to adopt forms for orders under section 136.2. (Stats. 1990, ch. 936, ¡× 6, p. 4001.)

c. The addition of ¡°harm¡± as a basis for issuing a protective order under section 136.2

In 1996 Assembly Bill No. 2224 was passed to broaden the court.s authority to issue ex parte no-contact and stay-away orders under the Domestic Violence Prevention Act. (Stats. 1996, ch. 904, ¡× 1, p. 4989.) The same legislation also amended section 136.2, authorizing the trial court in a criminal proceeding to issue ¡°[a]ny order issued pursuant to Section 6320 of the Family Code.¡± (Stats. 1996, ch. 904, ¡× 2, p. 4989 [now subdivision (a)(1)].) In addition, the phrase ¡°harm to, or¡± was inserted in the opening paragraph of section 136.2, expanding the grounds for issuance of a criminal protective order to more than than past, or the reasonable likelihood of future, intimidation or dissuasion: ¡°Upon a good cause belief that harm to, or intimidation or dissuasion of, a victim or witness has occurred or is reasonably likely to occur, any court with jurisdiction over a criminal matter may issue¡± orders including those enumerated in the statute. (Stats. 1996, ch. 904, ¡× 2, p. 4989.)

Nothing in the legislative history directly addresses the addition of the term ¡°harm¡± to section 136.2. Yet it can be reasonably deduced from the more general discussion concerning the purpose of Assembly Bill No. 2224 that the Legislature believed its inclusion as a ground for issuance of a criminal protective order was necessary to give effect to the criminal court.s new authority to issue ex parte orders pursuant to Family Code section 6320. Otherwise, there was a likelihood some courts, which had in the past been resistant to issuing domestic violence protective orders in criminal proceedings, would continue to require evidence of intimidation or dissuasion, a standard far narrower than sufficient to protect victims of domestic violence. (See Assem. Bill No. 2224, as amended Apr. 22, 1996, 3d reading (1995-1996 Reg. Sess.) pp. 2-3 [one purpose of the legislation is to ¡°expand[] the scope of restraining order prohibitions, thus allowing for more equitable and successful prosecution of domestic violence cases¡±].)

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d. The Stone court¡¯s narrow interpretation of section 136.2 and the Legislature¡¯s amendment of the statute in response

In Stone, supra, 123 Cal.App.4th at page 156 our colleagues in Division Two considered the validity of a criminal protective order entered against Monti Kirk Stone, who had attacked his roommate, Theodore Walton, and threatened to kill him. Stone was charged with assault and making a criminal threat. At trial Michele Magnosa testified Stone had attacked her several years earlier when they were roommates and also threatened to kill her and her children if she called the police. (Id. at p. 157.)8 Magnosa testified she was still afraid of Stone. (Ibid.) After the jury was instructed but before it returned with a verdict, the trial court issued protective orders pursuant to section 136.2 restricting Stone.s contact with both Walton and Magnosa for three years; the court checked the box on the Judicial Council form for protective orders in criminal proceedings designating the orders as ¡°Order Post-trial Probation Condition.¡± (Id. at p. 158.) Stone was found guilty of both charges and sentenced to an aggregate state prison term of four years. (Id. at pp. 155-156.)

The Stone court reversed the protective orders on two independent grounds: First, orders issued pursuant to section 136.2 are intended to protect victims and witnesses during the pendency of a criminal proceeding and may not extend beyond that period. (Stone, supra, 123 Cal.App.4th at p. 159.) The orders being reversed, however, were not limited to the pendency of the criminal proceedings; nor could they properly be considered probation conditions because Stone was not given probation. Accordingly, they ¡°transcended the authorization of section 136.2.¡± (Id. at p. 160; see also People v. Ponce, supra, 173 Cal.App.4th at pp. 381-383 [protective order issued pursuant to section 136.2 was not authorized where the duration of the order extended beyond the pendency of criminal proceedings].)

8 A close reading of the published portion of the opinion indicates Magnosa was testifying as a witness to instances of uncharged misconduct, not as a victim of the crimes for which Stone was on trial. Magnosa.s status is confirmed in the unpublished portion of the opinion.

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Second, the Stone court held there was no evidence supporting the trial court.s finding of good cause for issuance of the protective orders. The court explained, ¡°[I]t is only wrongdoing aimed at a victim or witness that justifies the restraining order. . . . [A]s we previously stated, . . . the restraining orders authorized by section 136.2 are those aimed at preserving the integrity of the administration of criminal court proceedings and protecting those involved in them. It therefore follows that the required good cause must show a threat, or likely threat to criminal proceedings or participation in them. [¢Ò] At the time of [Stone.s] attacks on Walton and Magnosa, neither was a witness nor a victim with regard to any ongoing criminal prosecution and therefore those attacks presented no direct threat to the administration of any criminal proceedings or to their participation in them. There was no additional evidence here that either Walton or Magnosa were ever harmed, intimidated or dissuaded, or that there was a likelihood that that would occur, after they became victims or witnesses in an ongoing criminal proceeding. There was no evidence, for example, that after being charged in this matter, [Stone], or anyone on his behalf and at his behest, made any efforts by threat or force to dissuade either Walton or Magnosa from testifying against him or proceeding with the prosecution. The fact that he had assaulted both of them before there were any criminal proceedings, and without any intent to interfere with such proceedings, is insufficient to justify the restraining orders.¡± (Stone, supra, 123 Cal.App.4th at pp. 160-161; see also People v. Ponce, supra, 173 Cal.App.4th at p. 384 [quoting Stone].)

The Legislature amended section 136.2 in response to Stone (Assem. Bill No. 1771 (2007-2008) as amended Apr. 29, 2008), adding subdivision (h): ¡°In any case in which a complaint, information, or indictment charging a crime of domestic violence, as defined in Section 13700, has been filed, the court may consider, in determining whether good cause exists to issue an order under paragraph (1) of subdivision (a) [that is, a Family Code section 6320 order], the underlying nature of the offense charged . . . .¡± According to the author of Assembly Bill No. 1771, ¡°.People v. Stone¡¯s interpretation of Penal Code 136.2 is too narrow and does not provide the criminal court with sufficient authority to protect victims of domestic violence. [¢Ò] .Prior to People v. Stone, most

14

criminal courts did not interpret PC 136.2 in this narrow way. Many courts continue to read PC 136.2 to authorize them to protect victims of domestic violence whenever they find good cause to believe that the victim is in danger of future harm based on the facts underlying the charged offense. AB 1771, as amended, simply codifies this practice. [¢Ò] .AB 1771 would clarify Penal Code 136.2 by providing that the underlying nature of the offense charged can be a sufficient basis for determining whether good cause exists to issue a criminal protective order..¡± (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d Analysis of Assem. Bill No. 1771 (2007-2008 Reg. Sess.) as amended Apr. 29, 2008, pp. 3-4.)

3. Section 136.2 Criminal Protective Orders May Be Properly Issued Based on the Underlying Charges in Domestic Violence Cases and Cases Involving Witness and Victim Intimidation

a. Victim and witness intimidation

The 1979 ABA report and recommendations described the ¡°two unique aspects¡± of the crime of victim and witness intimidation: ¡°It is the one crime in which only unsuccessful attempts are ever reported or discovered. It is also a crime which inherently thwarts the process of criminal justice itself.¡± (Reducing Victim/Witness Intimidation: A Package, at p. 1.) The adoption of sections 136.1 and 136.2 in 1980, encouraged by the ABA recommendations, was intended in part to protect victims and witnesses so they would report crimes. This purpose is evident in section 136, subdivision (3).s definition of ¡°victim,¡± as ¡°any natural person with respect to whom there is reason to believe that any crime as defined under the laws of this state or any other state or of the United States is being or has been perpetrated or attempted to be perpetrated¡± (italics added)9and section 136.1, subdivision (b)(1).s criminalization of any attempt to prevent or dissuade a victim of a crime from reporting that crime to the police. A ¡°victim¡± for purposes of

9 Section 136, subdivision (2).s definition of ¡°witness¡± includes any natural person ¡°having knowledge of the existence or nonexistence of facts relating to any crime.¡± Like the definition of ¡°victim,¡± nothing in that statutory definition requires the filing of criminal charges or the pendency of criminal proceedings before the protections of sections 136.1 and 136.2 are available to a ¡°witness.¡±

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section 136.2, therefore, exists from the time the crime is committed; and intimidation or an attempt to dissuade a victim from reporting the crime or testifying at trial.the basis for issuance of a criminal protective order.can occur before criminal charges are filed (although the order itself cannot be made until charges are filed and the criminal court has jurisdiction in the matter). Accordingly, the underlying charges themselves and evidence of the circumstances surrounding their commission may be sufficient for issuance of a criminal protective order if they establish intimidation or dissuasion of a victim occurred or was attempted.

Contrary to the argument advanced by Babalola in the superior court and his petition for a writ of mandate,10 the court in Stone, supra, 123 Cal.App.4th 153, did not hold that only conduct occurring after criminal charges have been filed may be considered in determining whether good cause exists for issuance of a criminal protective order under section 136.2. Rather, emphasizing that such orders are ¡°aimed at preserving the integrity of the administration of criminal court proceedings and protecting those involved in them¡± (Stone, at p. 160), the court concluded evidence of an assault ¡°before there were any criminal proceedings, and without any intent to interfere with such proceedings, is insufficient¡± to justify a criminal protective order. (Id. at p. 161, italics added.) Plainly, evidence of an assault coupled with an intent to dissuade the victim or a witness from reporting the crime would interfere with the criminal justice system and would be sufficient to warrant issuance of a criminal protective order. Any other interpretation of the statutory scheme would be utterly inconsistent with its express wording and its very purpose.

b. Domestic violence

Read literally and in isolation, section 136.2.s disjunctive construction would permit the issuance of a restraining order in the event any harm to a victim or witness has

10 Babalola abandoned this contention in his reply to the People.s return. The People had argued Stone and People v. Ponce, supra, 173 Cal.App.4th at page 384, are wrong to the extent they require after-charged conduct for issuance of a criminal protective order under section 136.2.

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occurred or is reasonably likely to occur. (See Melamed v. City of Long Beach (1993) 15 Cal.App.4th 70, 79 [¡°[o]rdinarily, the word .and. connotes a conjunctive meaning, while the word .or. implies a disjunctive or alternative meaning¡±].) Thus, the alleged commission of an assault alone, without evidence of a threat to criminal proceedings or participation in them by the victim or witness, would be sufficient for issuance of a section 136.2 restraining order. It was this potential unmooring of section 136.2 protective orders from their purpose to safeguard the criminal justice system and its participants that was addressed in Stone, supra, 123 Cal.App.4th 153 and People v. Ponce, supra, 173 Cal.App.4th 378. In both cases (Ponce largely by quoting the relevant analysis from Stone) the court held issuance of a criminal protective order required evidence of an attempt to unlawfully interfere with criminal proceedings by force or threats to dissuade victims or witnesses from proceeding with the prosecution of the defendant: A single assault (even an aggravated assault as charged here), standing alone, is not enough. (See Stone, at pp. 160-161; Ponce, at p. 384; cf. Russell v. Douvan (2003) 112 Cal.App.4th 399, 401-402 [notwithstanding literal language of Code Civ. Proc., ¡× 527.6, single incident of unlawful violence is insufficient basis for civil harassment restraining order; ¡°[a]n injunction is authorized only when it appears that wrongful acts are likely to recur¡±].)

Although Stone did not involve charges of domestic violence, the court.s limitation on the grounds for a criminal protective order appeared broad enough to preclude issuance of restraining orders in domestic violence cases in criminal court based on past abuse even when the evidence would be sufficient in a civil proceeding. (See, e.g., Nakamura v. Parker (2007) 156 Cal.App.4th 327, 334 [¡°trial court is vested with discretion to issue a protective order under the DVPA [Domestic Violence Prevention Act] simply on the basis of an affidavit showing past abuse¡±; ¡°provisions of the DVPA confer a discretion designed to be exercised liberally, at least more liberally than a trial court.s discretion to restrain civil harassment generally¡±].) As discussed, to forestall that undesirable result, in 2008 the Legislature added subdivision (h) to section 136.2, which provides, in a case in which a crime of domestic violence is charged, the court may

17

consider, in determining whether good cause exists to issue an emergency protective order pursuant to section 136.2, subdivision (a)(1), ¡°the underlying nature of the offense charged¡± and the defendant.s history of domestic violence, prior restraining orders and other forms of violence or weapons offenses.

The 2008 amendment to section 136.2 necessarily has two related facets. First, it rejected any limitation on the scope of criminal protective orders in domestic violence cases otherwise suggested by language in Stone, supra, 123 Cal.App.4th 153. The separate.and greater.protection afforded victims of domestic violence is fully consistent with the Legislature.s consistent and repeated efforts to ensure the courts utilize all available tools, including section 136.2, to safeguard victims of domestic abuse. (See, e.g., Stats. 2001, ch. 698, ¡× 1 [¡°The Legislature recognizes that both criminal courts and civil courts may issue protective orders or restraining orders to prevent domestic violence. Orders issued by the criminal court also serve to protect the safety of a victim or a witness in a criminal proceeding.¡±].) Evidence of past harm to the victim of domestic violence may constitute good cause for issuance of a criminal protective order.

Equally important, however, in expressly responding to Stone by authorizing use of the underlying nature of the offense charged to determine whether good cause exists to issue a restraining order in domestic violence cases, but not otherwise disapproving Stone.s holding that a criminal protective order requires evidence of a threat to the criminal proceedings or participation in them by the victim or witness, the Legislature must be presumed to have acquiesced in that construction of section 136.2: ¡°It is a well-established principle of statutory construction that when the Legislature amends a statute without altering portions of the provision that have previously been judicially construed, the Legislature is presumed to have been aware of and to have acquiesced in the previous judicial construction.¡± (Marina Point, Ltd. v. Wolfson (1982) 30 Cal.3d. 721, 734; accord, People v. Harrison (1989) 48 Cal.3d 321, 329 [Legislature ¡°is deemed to be aware of statutes and judicial decisions already in existence, and to have enacted or amended a statute in light thereof¡±].) Here, of course, we need not presume the Legislature knew of Stone.s interpretation of section 136.2 when it added subdivision (h)

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to the statute in 2008. As quoted above, the legislative documents establish the Legislature was fully aware of the decision and disagreed with it only to the extent it narrowed the authority of the criminal court to protect victims of domestic violence. The Legislature.s acquiescence in the Stone court.s construction of section 136.2 in cases not involving domestic violence, therefore, is binding on us.

In sum, in domestic violence cases past harm, as evidenced by the underlying charges or other information concerning the defendant.s criminal history, or threat of future harm to the victim may provide good cause for issuance of a criminal protective order. In all other cases, a criminal protective order must be based on a finding of good cause to believe an attempt to intimidate or dissuade a victim or witness has occurred or is reasonably likely to occur. That finding may be based on the underlying charges and the circumstances surrounding the commission of the charged offenses, but a mere finding of past harm to the victim or a witness is not sufficient.

4. The Superior Court Erred in Issuing the Criminal Protective Order

The superior court issued a criminal protective order prohibiting any contact by Babalola with Godfrey and Jones based solely on a summary of testimony at the preliminary hearing regarding the charged assaults and the proximity of Babalola.s and his alleged victims. residences. This information did not constitute good cause under section 136.2: This is not a domestic violence case, and there was no evidence Babalola had attempted to intimidate or dissuade his victims from reporting the crime. Indeed, according to Jones, Babalola himself had called the police, and officers arrived at the scene of the incident shortly after it occurred. Similarly, there was no evidence Babalola had attempted to intimidate or dissuade his victims from testifying at trial or that there was any reasonable likelihood that intimidation or dissuasion or any other type of harm to Jones and Godfrey would occur in the future.

Although not expressly referred to by the superior court in its brief explanation for issuing the criminal protective order, there was testimony at the preliminary hearing indicating the victims harbored racial animus toward Babalola either because he is African-American or because of his interracial relationship with Brooks. That potential

19

for ¡°bad blood¡± between the participants in the assault, as the prosecutor described it, and the proximity of their residences do suggest further conflict may be possible. But that evidence falls far short of establishing a reasonable likelihood Babalola will attempt to intimidate or dissuade Godfrey and Jones from testifying at trial or otherwise cause them additional harm. To the contrary, as evidenced by Brooks.s testimony she had previously obtained a restraining order against the alleged victims, notwithstanding the hostility Babalola and Brooks appear to have demonstrated their ability to deal with their neighbors in a lawful and appropriate manner.

5. The Superior Court Erred in Failing To Give Babalola Adequate Notice and an Opportunity To Present Evidence

In light of the superior court.s decision to vacate the criminal protective order entered against Babalola following our issuance of the alternative writ, we decline to consider in detail Babalola.s arguments concerning the alleged procedural irregularities that preceded entry of that order. Nonetheless, a few general observations are necessary. First, section 136.2, subdivision (a)(1), expressly authorizes ex parte criminal protective orders in domestic violence cases; and we have no doubt such emergency orders are proper in cases involving violent crimes in other contexts as well, provided there is an adequate showing of the need for a temporary order and the court thereafter schedules a hearing to consider whether the order should continue for the duration of the criminal case. (See ¡× 136.2, subd. (a)(5); cf. Code Civ. Proc., ¡× 527.6, subd. (c) [authorizing temporary restraining order without notice to defendant in civil harassment cases, including assault, battery or stalking].) Here, however, the alleged crimes took place on November 1, 2009; Babalola was charged in February 2010; and he appeared at pretrial proceedings in March, April and May 2010. No application for a protective order was made at those pretrial hearings, and no evidence was presented that any emergency existed in late June 2010 when the prosecutor finally submitted the request. Babalola was entitled at minimum to some notice that the request was going to be made so he could prepare for the hearing. (See Cleveland Board of Education v. Loudermill (1985) 470 U.S. 532, 546 [105 S.Ct. 1487, 84 L.Ed.2d 494] [¡°[t]he essential requirements of due

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process . . . are notice and an opportunity to respond¡±]; In re Large (2007) 41 Cal.4th 538, 552 [¡°[t]he very purpose of giving the parties notice and the opportunity to be heard is to give them a chance to present information that may affect the decision¡±].)

Second, testimony from the defendant.s preliminary hearing concerning the circumstances surrounding the charged offenses, whether or not sufficient for issuance of a criminal protective order by itself, will inevitably be relevant to the determination of good cause under section 136.2, subdivision (a). That testimony may include hearsay not otherwise admissible at trial. (See ¡× 872, subd. (b); Whitman v. Superior Court (1991) 54 Cal.3d 1063, 1072.) We leave to another day the question whether such hearsay testimony may be considered by the court in deciding the question of good cause for issuance of a criminal protective order. (But see ¡× 136.2, subd. (h) [authorizing court in cases involving charges of domestic violence to consider information from enumerated electronic databases regarding defendant.s history].) However, if evidence from the preliminary hearing is to be presented to the court considering issuance of a criminal protective order, the transcript of the hearing itself, not a summary of the testimony by counsel who was not present, should be provided to the court. (Cf. Whitman, at pp. 1072-1073 [officer at preliminary hearing may not simply read police report prepared by absent investigating officer].)

DISPOSITION

The petition is dismissed.

PERLUSS, P. J.

We concur:

WOODS, J.

ZELON,

if you have any questions regarding a protective order, whether you are interested in obtaining a protective order or are the target of one, call Orange County Defense Attorney Randall Longwith today at 714-699-4384

In general, an “Estes Robbery” in California is a theft coupled with the use of force or fear to escape with the property. Below is the seminal case of Estes in which the robbery theory is based on: 

People v. Estes (1983) 147 Cal.App.3d 23 , 194 Cal.Rptr. 909

[Crim. No. 23762. Court of Appeals of California, First Appellate District, Division Five. September 15, 1983.]

THE PEOPLE, Plaintiff and Respondent, v. CURTIS DALE ESTES, Defendant and Appellant.

(Opinion by Low, P. J., with King and Haning, JJ., concurring.) [147 Cal.App.3d 24]

COUNSEL

Frank Offen, under appointment by the Court of Appeal, for Defendant and Appellant.

John K. Van de Kamp, Attorney General, Ann K. Jensen, Morris Lenk and Stan M. Helfman, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

LOW, P. J.

In this case we affirm a robbery conviction for the taking of personal property owned by Sears, Roebuck & Company in the immediate [147 Cal.App.3d 26] presence of a security guard, using force and fear to complete the taking. Defendant Curtis Estes appeals from a judgment entered after a jury found him guilty of robbery (Pen. Code, ? 211) by personal use of a deadly weapon (Pen. Code, ? 12022, subd. (b)) and petty theft (Pen. Code, ? 484) arising out of the theft of merchandise from a Sears department store. Defendant entered the Sears store in Larwin Plaza, Vallejo, wearing only jeans and a T-shirt and was observed by Carl Tatem, a security guard employed by Sears. Tatem next saw defendant wearing a corduroy coat of the type sold by Sears, and watched him remove a down-filled vest from a rack, take off the coat, put on the vest, then the coat, and leave the store without paying for the items. Tatem followed defendant outside the store, identified himself, and confronted him about the coat and vest in the parking lot about five feet from the store. Defendant refused to accompany Tatem to the store and began to walk away. As Tatem attempted to detain him, defendant pulled out a knife, swung it at Tatem, and threatened to kill Tatem. Tatem, who was unarmed, returned to the store for help.

Shortly thereafter, Tatem returned to the parking lot with Mel Roberts, the Sears security manager. Tatem and Roberts confronted defendant and again asked him to accompany them back to the store. Defendant still clutched the knife in his hand. After some time, defendant returned to the store with Tatem and Roberts, but denied using the knife and denied stealing the coat and vest. At the trial, defendant admitted stealing the coat and vest from the store, but again denied using force or fear against the security guard, or any other person.

[1a] Defendant argues that the property was not taken from a person since the security guard did not have the authority or control over the property. “Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by force or fear.” (Pen. Code, ? 211.)

[2] It is not necessary that the victim of the robbery also be the owner of the goods taken. Robbery is an offense against the person who has either actual or constructive possession over the goods. (People v. Gordon (1982) 136 Cal.App.3d 519, 528-529 [186 Cal.Rptr. 373].) Thus, a store employee may be a victim of robbery even though he does not own the property taken and is not in charge or in immediate control of the property at the time of the crime. (See People v. Miller (1977) 18 Cal.3d 873, 880 [135 Cal.Rptr. 654, 558 P.2d 552]; People v. Johnson (1974) 38 Cal.App.3d 1, 9 [112 Cal.Rptr. 834].) Nor is it a defense that the victim was a visitor to a store and w as not the true owner of money or property taken (People v. Moore (1970) 4 Cal.App.3d 668 [84 Cal.Rptr. 771]). Furthermore, a person may be convicted of robbing a janitor or night watchman by taking the employer’s [147 Cal.App.3d 27] property. (People v. Downs (1952) 114 Cal.App.2d 758, 765-766 [251 P.2d 369] and People v. Dean (1924) 66 Cal.App. 602, 607 [226 P. 943].)

Defendant attempts to distinguish these cases on the grounds that these victims were the only persons present at the times of robbery, and, accordingly, were the only persons who had constructive possession from which the personal property could be taken. Defendant reasons that in this case the store manager and sales clerks were the only ones with responsibility over the goods and, thus, they and not the guard, Tatem, could be the only victims.

[1b] The victim was employed by Sears to prevent thefts of merchandise. As the agent of the owner and a person directly responsible for the security of the items, Tatem was in constructive possession of the merchandise to the same degree as a salesperson. (See People v. Gordon, supra, 136 Cal.App.3d at p. 529, and cases cited therein.) Because there were other people present in the store who also had constructive possession of the personal property is not dispositive, since more than one person may constructively possess personal property at the same time and be a victim of the same offender. (See People v. Miller, supra, 18 Cal.3d at p. 881 [security guard was potential robbery victim in addition to sales clerk].)

Defendant further alleges that the merchandise was not taken from the “immediate presence” of the security guard. The evidence establishes that appellant forceably resisted the security guard’s efforts to retake the property and used that force to remove the items from the guard’s immediate presence. By preventing the guard from regaining control over the merchandise, defendant is held to have taken the property as if the guard had actual possession of the goods in the first instance. (See People v. Anderson (1966) 64 Cal.2d 633 [51 Cal.Rptr. 238, 414 P.2d 366].)

In Anderson, defendant entered a pawn shop and, posing as a customer, asked the salesman to show him a shotgun and shells. The salesman complied. No force was used at this point. Defendant took the shotgun, loaded it, and robbed the salesman at gunpoint. (Id, at pp. 635-636.) The court rejected the contention that there was no robbery since defendant obtained possession of the merchandise without force or fear. [3] A robbery is not completed at the moment the robber obtains possession of the stolen property. The crime of robbery includes the element of asportation, the robber’s escape with the loot being considered as important in the commission of the crime as gaining possession of the property. Here, as in Anderson, a robbery occurs when defendant uses force or fear in resisting attempts to regain the property or in attempting to remove the property from the owner’s [147 Cal.App.3d 28] immediate presence regardless of the means by which defendant originally acquired the property.

[1c] Defendant further claims that the robbery verdict cannot stand since his assaultive behavior was not contemporaneous with the taking of the merchandise from the store. Defendant maintains that he was, at most, guilty of petty theft and a subsequent assault. Appellant’s theory is contrary to the law. The crime of robbery is a continuing offense that begins from the time of the original taking until the robber reaches a place of relative safety. It is sufficient to support the conviction that appellant used force to prevent the guard from retaking the property and to facilitate his escape. The crime is not divisible into a series of separate acts. Defendant’s guilt is not to be weighed at each step of the robbery as it unfolds. The events constituting the crime of robbery, although they may extend over large distances and take some time to complete, are linked by a single-mindedness of purpose. (See People v. Laursen (1972) 8 Cal.3d 192, 199-200 [104 Cal.Rptr. 425, 501 P.2d 1145].) Whether defendant used force to gain original possession of the property or to resist attempts to retake the stolen property, force was applied against the guard in furtherance of the robbery and can properly be used to sustain the conviction.

A similar result was reached in People v. Kent (1981) 125 Cal.App.3d 207 [178 Cal.Rptr. 28]. There defendant used a ruse to enter the victim’s house. While defendant was alone in the kitchen he took cash from the victim’s purse. A short time later, the victim discovered the money was missing and confronted defendant. At that point defendant struck the victim, brandished a knife and demanded more money. Defendant left the premises without obtaining additional cash. His conviction of robbery was affirmed. The court rejected defendant’s contention “that the jury could have reasonably concluded that the taking of the money constituted a mere larceny and that the application of force or fear occurred after the larceny was completed.” (Id, at pp. 213-214, fn. 6.)

[4] Finally, theft is a lesser included offense within robbery, and defendant could not be convicted of both petty theft and robbery. (People v. Covington (1934) 1 Cal.2d 316, 321 [34 P.2d 1019]; cf. People v. Guerin (1972) 22 Cal.App.3d 775, 781-782 [99 Cal.Rptr. 573].) [5] A defendant cannot be convicted both of the greater offense and the lesser included offense. (People v. Bauer (1969) 1 Cal.3d 368, 375 [82 Cal.Rptr. 357, 461 P.2d 637, 37 A.L.R.3d 1398]; People v. Sutton (1973) 35 Cal.App.3d 264, 270-271 [110 Cal.Rptr. 635].) Where there is sufficient evidence to sustain the conviction of the greater offense, the conviction of the lesser offense must be reversed. (People v. Moran (1970) 1 Cal.3d 755, 763 [83 Cal.Rptr. 411, 463 P.2d 763].) [147 Cal.App.3d 29]

[6] Here, the jury convicted defendant of both the robbery of the security guard, Tatem, and the petty theft from the Sears store. The theft of the property from Tatem was also a theft from the Sears store since Tatem, as Sears’ agent, was in constructive possession of the merchandise. Therefore, the theft from the store was a lesser included offense to the robbery of Tatem. Since there is substantial evidence to support the conviction of robbery, we must reverse the conviction for petty theft.

Lastly, appellant argues that the trial court improperly instructed the jury. We have examined this contention and find neither error nor reversible error.

The conviction of petty theft (Pen. Code, ? 484) is reversed. In all other respects, the judgment is affirmed.

King, J., and Haning, J., concurred.