P. v. Scott

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Filed 7/19/05 P. v. Scott CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
ANDRE RENE SCOTT et al.,
Defendants and Appellants.
C044964
(Super. Ct. No. 01F03583)
A jury convicted defendants Andre Rene Scott and Maurice
Kenney of three counts of robbery (counts 1-3; Pen. Code, § 211;
undesignated section references are to the Penal Code) and one
count of being a felon in possession of a firearm (counts 4
[Kenney] & 6 [Scott]; § 12021). The jury found that each
defendant had personally used a firearm in the commission of the
robbery (§ 12022.53, subd. (b)). In a bifurcated proceeding,
the jury further found that defendant Scott had two serious

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prior felony convictions and that defendant Kenney had one
(§§ 1192.7, subd. (c), 667, subds. (b)-(i), 1170.12).1
The trial court sentenced Scott to 116 years and eight
months to life, consisting of 25-year-to-life terms on counts 1
through 3 and 6, plus 16 years and eight months consecutive for
the firearm use enhancement. The court sentenced Kenney to 30
years and eight months, consisting of 10 years (the upper term)
on count 1, two-year consecutive terms for counts 2 and 3, and
16 years and eight months consecutive for the firearm use
enhancement, with a one-year, four-month sentence on count 4
(felon in possession) run concurrently.
Scott contends: (1) The trial court erred by denying his
motion to suppress evidence (§ 1538.5) on the grounds that the
warrantless search was justified by “exigent circumstances” as a
“protective sweep.” (2) The trial court erred by ruling that
inevitable discovery pursuant to a later-issued search warrant
saved otherwise unlawful fruits of the original search, and by
denying Scott’s motion to traverse the warrant. (3) The trial
court erred by ruling that the magistrate’s alteration of the
time on the face of the search warrant was merely the correction
of a clerical error. (4) The trial court erred by denying
Scott’s requested instruction on the offense of accessory after
the fact.
Kenney, joined by Scott, contends the trial court erred by
misinstructing a deadlocked jury on constructive possession as
1 A third defendant, Rudy Mamaril, obtained a mistrial after the
jury indicated it was hopelessly deadlocked.

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to counts 2 and 3 in a manner that directed a verdict. Kenney
also contends the trial court erred in imposing a concurrent
term on count 4, rather than staying sentence on that count
under section 654. Kenney further contends in a supplemental
brief that his sentencing violated Blakely v. Washington (2004)
542 U.S. 296 [159 L.Ed.2d 403] (Blakely). Finally, Kenney
purports to join in Scott’s contentions.
We shall affirm the judgments.
FACTS2
Prosecution case
At around 6:00 a.m. on April 29, 2001, employees Jinel
Guillebeau and Diana Salazar and “swing manager” Serena Wong
were on duty at the McDonald’s restaurant at 2331 Broadway in
Sacramento. Guillebeau, a trainee, was working the drive-
through window, taking orders and processing food; Salazar was
preparing food. Raymond Crutcher, a janitorial employee, was
eating breakfast at the restaurant but had not yet started work.
Via a surveillance video camera inside the restaurant,
Guillebeau saw three men standing in the drive-through area.
She notified her coworkers.
Minutes later, Guillebeau saw two men wearing black ski
masks and black gloves, one holding a handgun and one holding a
2 We recite here only the evidence adduced at trial. The
pretrial proceedings on Scott’s motions to suppress evidence and
to traverse the warrant are discussed below in connection with
Scott’s claims of error as to those motions.

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rifle, enter the restaurant.3 After hearing someone say, “Get
down,” she hid under the grill.
Crutcher saw three men, dressed in black and wearing ski
masks, enter the restaurant; one carried a rifle. Two went
behind the counter, while the one with the rifle stayed in front
and ordered Crutcher and a customer to stay where they were.
Crutcher later saw all three leave, then one quickly return and
leave again.
Salazar also saw three men enter; one took a position in
front of the counter while the others went behind it. The
robber in front was holding a rifle pointed at chest level.4
Salazar hid under a table, but saw Wong accompany the other two
to the restaurant’s office.
At around 6:10 a.m., while Wong was working the drive-
through, she heard Guillebeau scream. Wong saw two men wearing
tight-fitting black clothing; one held a black handgun with red
marks on the side, the other a rifle. The one holding a handgun
pointed it at her, told her to put her hands up, and said they
would go to the safe. He directed her to the back of the
restaurant, made her open the safe, and grabbed her purse,
dumping its contents out. Wong took a deposit bag bearing the
McDonald’s logo and put the money from the safe into it, a sum
3 Guillebeau later told a police officer they were African-
American.
4 In court, Salazar identified a rifle obtained in the
investigation of the case as apparently the one used in the
crime.

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she later estimated at $475. The money included “shrink-
wrapped” rolls of coins; it also contained a “RAM tag” that
emits electronic tracking signals. The robber grabbed the
deposit bag and left. Wong placed a call to 911, but had to
hang up in midcall because the robber returned and retrieved his
firearm before leaving for good.
Wong and Guillebeau together succeeded in calling 911; the
audio tape of the call was played in court. They reported a
robbery by three male robbers, two bearing firearms; Wong said
the robbers were African-American.
Police arrived on the scene immediately after the robbery.
Wong appeared “terrified,” Guillebeau “shaken up.”
Sacramento police officers and Sacramento County Sheriff’s
officers received radio calls reporting the robbery and the
activation of a RAM tag at 6:26 a.m. Some of the police cars
could receive and track the signals from the RAM tag.
Numerous police cars converged on an apartment complex on
Calvine Road, in which the residence of defendant Scott was
located. The officers arrived around 6:40 a.m. A black Ford
Mustang with a warm hood was parked near apartment number seven.
Officer Hirai, one of the first officers to arrive, saw a
Black male, later identified as defendant Kenney, jump over a
residential back fence behind the apartments, carrying something
black in his hand; other officers were pursuing him on foot.
Running along the fence, Hirai found a black jacket on the
sidewalk, with a loaded .380 AMT-brand semiautomatic pistol in
its pocket. The jacket was clean and dry and seemed to have

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been placed there recently. Hirai then noticed a window screen
on the ground outside apartment number seven; it was bent from
the inside out, as if someone had forced his way out through it.
A few minutes later, Hirai went back to the previously open
window and saw it was closed.
The officers pursuing Kenney on foot, after unsuccessfully
attempting to get him to stop and watching him jump a fence into
a back yard, set up a perimeter around the house. A “K-9” unit
arrived. The dog alerted on a debris pile covered by a tarp.
Kenney crawled out from under it, but then tried to jump another
fence. Officers subdued him after a struggle and took him into
custody.
Searching Kenney’s person, the officers found rolls of
quarters shrink-wrapped in plastic and two two-way radios.
Kenney claimed ownership of the jacket Officer Hirai had found.
Inside the bag Kenney had been carrying, the officers found an
assault rifle with a folding stock and a banana clip with 25
live rounds of .22-caliber hollow-point ammunition, a knit cap
with eyeholes cut in it, a nylon glove, a deposit bag containing
$412 and a deposit slip, and a dollar bill with a RAM tag in it.
Back at the apartment complex, Officer Hirai made contact
with the occupants of apartment number seven: defendant Scott,
codefendant Mamaril, and a female. Scott admitted he owned the
Mustang parked outside. He said it had been advertised for sale
and parked on Martin Luther King Blvd., but could not explain
how it had gotten from there to the apartment complex. Other
officers subsequently detained Scott in a patrol car.

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The police searched the apartment and found: (1) on a
bedroom floor, a pair of jeans and a shirt matching the
description of the robbers’ clothing; (2) in a hamper in a
closet, items of black clothing including two ski masks with
eyeholes, gloves, and sweatshirts; (3) in another bedroom, a
loaded .380-caliber Lorcin pistol with red lettering on the
side; (4) in a children’s bedroom, a pair of sweat pants and a
jacket, a bag with a McDonald’s logo hidden under the bedding in
a crib, and four rolls of coins shrink-wrapped in plastic behind
the crib; (5) in the kitchen, ammunition for a .22-caliber long
rifle and a .380-caliber pistol. They also found indicia and
documents showing that defendant Scott was the tenant of the
apartment.
Later that morning, the police brought Wong to the
apartment complex. She identified the McDonald’s deposit bag,
the rolls of coins, clothing matching the robbers’ clothing,
black masks, and a deposit slip with her supervisor’s
handwriting on it. Wong also indicated that she was “almost
positive” in identifying defendant Scott as the robber who
forced her to remove the money from the safe, even though he had
been masked. She positively identified the Lorcin .380 pistol
with the red lettering on the side as the one Scott had pointed
at her.5
5 At trial, Wong identified a rifle and a pistol as “similar” to
the weapons used in the robbery, but noted that she had
positively identified the handgun at an in-field showup on the
day of the robbery.

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In a videotaped interview with the police that was played
for the jury, defendant Scott admitted he owned the Mustang and
the Lorcin pistol. The pistol was kept in the dresser for
“self-protection.”
Both defendants stipulated to having been previously
convicted of a felony.
Defense
Defendant Scott, the only defense witness, admitted two
prior felony convictions (one for armed robbery), but denied
participation in the present crime. He testified as follows:
Both defendant Kenney and codefendant Mamaril visited his
apartment the night before the robbery; Mamaril slept over, but
Kenney stayed only about an hour. Scott allowed Kenney to
borrow his Mustang.
Kenney returned early the next morning, while Scott and
Mamaril were asleep. Kenney had a bag and some clothing. He
returned the car keys, then opened the door to leave. Scott
heard sirens. Scott did not know whether Kenney was involved in
wrongdoing, but was “worried about something that ha[d] just
gone on.” Kenney closed the door. Scott asked him what was
going on. When Kenney did not answer, Scott ordered him out.
Scott did not want to become involved or implicated in anything.
He led Kenney to the children’s bedroom and pushed out the
screen. Kenney jumped out the window, leaving property behind.
Although the Lorcin pistol belonged to Kenney, Scott
falsely told the police it was his. He also admitted having

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lied to the police about whether Kenney had been in his
apartment.
Rebuttal
The detective who interviewed Scott testified that Scott
said he was in bed on the morning of the robbery, heard a noise,
grabbed his pistol, and went into another bedroom, where he saw
a window screen was missing. Scott at first denied even knowing
Kenney. He changed his story several times about whether Kenney
had been in the apartment, who owned the Lorcin pistol, who woke
up whom that morning, and what the codefendants said to each
other. Scott said he had bought the pistol on the street for
$50, knowing he was not legally allowed to own a firearm, in
order to protect his wife. Scott also insisted he would never
be a “snitch.”
DISCUSSION
I
Defendant Scott challenges the trial court’s denial of his
motions to suppress evidence and to traverse the search warrant.6
He contends:
1. The court erred by finding that exigent circumstances
justified the initial warrantless entry into his apartment, that
the police performed a legitimate protective sweep once inside,
6 Defendant Kenney’s purported joinder in this challenge is
without merit. As a mere visitor to Scott’s residence, he did
not have a legitimate basis to challenge the search of the
residence and did not attempt to do so in the trial court.
(People v. Ayala (2000) 23 Cal.4th 225, 255.) (He does not
offer argument to show a reasonable expectation of privacy in
any item seized. (See id. at p. 254, fn. 3.)

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and that during that protective sweep they properly seized items
in plain view. In fact, because there were no exigent
circumstances justifying entry (or even if there were, the
police exceeded the legitimate scope of a protective sweep),
they had no right to be where they were when they observed the
items they seized.
2. The court erred by finding that items seized during the
initial search that were not in plain view could come into
evidence because the police would inevitably have discovered
them in executing the later-obtained search warrant. According
to Scott, “inevitable discovery” does not apply because the
warrant purported only to authorize seizing the items already
seized illegally; moreover, the warrant was obtained without
probable cause and the officers could not reasonably have relied
on it in good faith. Thus, the court should have granted
Scott’s motion to traverse the warrant.
3. The court erred further as to the warrant by finding
that the issuing magistrate was merely correcting a clerical
error when he changed the time shown on the face of the warrant
a week after the warrant was issued. According to Scott, the
magistrate’s “correction” invalidated the warrant.
We conclude: (1) Exigent circumstances justified the
initial entry into Scott’s apartment and the protective sweep
performed by the police inside, along with the seizure of any
items in plain view. (2) Items not in plain view were illegally
seized. (3) However, assuming without deciding that “inevitable
discovery” did not make that evidence admissible, any error in

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admitting it was harmless on the whole record of evidence
adduced at trial. (See People v. Tewksbury (1976) 15 Cal.3d
953, 972 (Tewksbury).) Therefore, we need not address Scott’s
arguments about the search warrant.
Background
Scott filed a combined motion to suppress evidence and to
traverse the warrant. The trial court first heard evidence and
argument on the motion to traverse. After tentatively ruling
that the warrant was valid and issued on probable cause, the
court heard evidence and argument on the initial search. The
court then issued a written ruling on all the issues,
incorporating its oral ruling as to the warrant.
As to the initial search and seizure, police officers
testified as follows:
Detective Bruce Dubke testified that around 7:00 or
7:30 a.m. on the date of the crime, after suspects were in
custody, he was told to go to the south station and then to
police headquarters. He began gathering information for a
search warrant application by collecting reports and talking to
patrol officers at the south station. They told him that they
had tracked suspects to the Calvine Road residence, that one
person was seen running “from the rear window of the apartment,”
that the officers had found “a bag of guns and things like that,
that apparently were used in the robbery,” and that one of the
victims had identified people from the apartment; the officers
also mentioned a handgun found in a dresser drawer and clothing
that matched what the suspects allegedly wore.

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Sergeant Ronald Ford testified that he responded to the
Calvine Road location to supervise the ongoing operation there,
having heard from dispatch at around 6:15 a.m. of “[t]hree to
four multiple suspects [sic] that were armed.”7 He went to the
apartment complex, then to the perimeter location on Dartford,
then returned to the complex after the suspect at the Dartford
location was in custody and someone else who had been in the
residence was detained (although he did not learn of that
detention until already inside the residence). He knew by that
time that the Dartford suspect had been carrying a rifle, that
he had a bag with money inside, and that a jacket with a pistol
in it had been found; however, he also knew that suspects often
have multiple guns. Learning from several officers that the
apartment had not been searched, Ford talked to a pregnant woman
at the door of apartment number seven and asked her consent to
search. After she said, “No,” he told her they would search
anyway and ordered the officers in to do a protective sweep at
7:18 a.m. He was concerned for officer safety because he did
not know whether suspects or weapons might still be in the
apartment. He directed the others to search for suspects and
evidence, but did not do so himself. After the search, he froze
the scene on the orders of his superior officer, probably by
7 Ford acknowledged that all the subsequently written police
reports mentioned three suspects at most. He insisted, however,
that the information available as of the time he got to the
scene was “multiple suspects.” After reviewing dispatch
records, he agreed that the number given over the radio was “two
or three.”

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8:22 a.m., by stationing two officers there, so as to prepare
for getting a search warrant and to protect any evidence still
at the scene.
As Ford recalled, there were five or six officers at the
scene when he asked permission to search, but more were arriving
all the time; there could have been nine or 10 there. Things
were happening very fast at more than one location from the
moment Ford arrived.
Officer Gary Baker testified that after hearing of the
robbery he was dispatched to the McDonald’s around 6:18 a.m. and
interviewed Diana Salazar, then proceeded to the Calvine Road
location at around 7:00 a.m. in response to Officer Hirai’s
request for assistance. At the McDonald’s, he was told that
there were three suspects, at least two armed; one was wearing a
black mask, dark jacket, and blue jeans, one was wearing a black
mask, unknown top, and blue pants, and the third’s clothing was
not described.
When Baker arrived at 7166 Calvine Road, Officer Hirai said
he had at least one of the suspects inside apartment number
seven; he asked Baker to broadcast the information and request
assistance because Hirai’s battery was weak. Hirai was the only
other officer at the scene at that time; others were pursuing a
fleeing suspect.8
8 Baker did not recall whether Hirai went into the apartment and
detained codefendant Mamaril before the search began. However,
he admitted that both Scott and Mamaril were detained in squad
cars by that time.

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Officers Phillipe and Trim subsequently arrived, followed
by Sergeant Ford. Officer Trim asked the female occupant of the
apartment (Diane Revelez) for permission to search and was
denied; she did not say that there were no remaining persons or
weapons inside. Sergeant Ford then told Revelez the officers
were going in. At the moment they did so, the residence had not
been cleared. The officers were concerned whether other persons
or weapons were inside and whether evidence might be destroyed.
Searching the residence, Baker and the others looked for
persons and weapons. They did not find any additional persons,
but Baker found a Lorcin pistol in a bedroom dresser drawer,
along with letters addressed to defendant Scott. They searched
for about a half-hour.
Officer Brad Phillipe testified that he responded to the
Calvine Road scene about 7:07 a.m. on April 29, 2001, to help
secure a perimeter around an apartment where two robbery
suspects had been located. He had heard that the robbery had
occurred at a McDonald’s and there were three suspects. Things
were moving so quickly that he had been told not to wait for
roll call, but to get a car that could track a RAM signal.
After Phillipe took his position on the perimeter, Sergeant
Ford arrived. Ford told the officers there were still
outstanding suspects and weapons and the apartment had not been
cleared.9 Phillipe went in with the others and entered the
southeast bedroom, where he saw in plain view a pair of blue
9 Phillipe acknowledged that his report mentioned a protective
sweep for outstanding weapons, but not for outstanding suspects.

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jeans and a red shirt with black writing on it that matched a
robbery victim’s description. Then he entered a walk-in closet
with a clothes hamper that held several articles of black
clothing on top in plain view; he knew that some of the suspects
had worn all-black clothing. He dumped the hamper over to see
if there was a weapon inside. He did not find one, but did find
two unmatched black gloves and a black watchcap with holes cut
in it. He knew that at least one suspect was reported to have
worn a black ski mask and black gloves. He booked all the items
he found.
Officer Tatsumi Hirai testified that after hearing of the
robbery from dispatch at 6:18 a.m. on April 29, 2001, he went
towards the McDonald’s in his patrol car, which had a RAM
tracking device. Following the RAM signals, he wound up at 7166
Calvine Road by 7:00 a.m.
When another unit pulled up, Hirai told the officers to
watch the front of the apartment building while he went around
to the back. There, he saw a person jumping over the back
fence, holding onto something black. Running after him, Hirai
found a black jacket with a .380-caliber Lorcin pistol in the
pocket, dropped by the suspect.
Since several officers had joined in the pursuit, Hirai
went back to the rear of the apartment complex, where he saw the
screen to the bedroom window from apartment number seven on the
ground, lying below the closed window. The screen was bent in a
“V shape,” as if pushed out from the center; it looked as though
someone had jumped through it, and not as though someone had

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stepped on it while it lay on the ground. He could not tell how
long it had been on the ground.
When Hirai returned to the front of the apartment, a
Hispanic female contacted him, saying she lived in the
apartment. He saw a black or dark gray Mustang, which he
recognized as a possible suspect vehicle, parked in front. The
woman said her fiancé, who was inside the apartment, owned the
car. Defendant Scott came out of the apartment and said he
owned the Mustang, but did not know how it had gotten there from
where he had parked it around 43rd and Martin Luther King Blvd.
Scott then went back into the apartment. Hirai did not
immediately detain him because no other officers were present
and Hirai knew there were still suspects and weapons
outstanding.
When Officer Baker arrived, the two of them got Scott to
come out and detained him in a patrol car. The Hispanic female
had said there was another male in the apartment (codefendant
Mamaril), so they had her go in and get him; then they put him
in the other patrol car. A minute or two later, Sergeant Ford
arrived. He took a group of officers to the door while Hirai
stayed outside with Scott.
The court’s ruling
After further briefing, the court issued a written ruling
denying Scott’s motions. The court found:
1. Exigent circumstances justified the initial warrantless
entry because the police were still in pursuit of felons fleeing
the scene of an armed robbery. Scott argues that the exigency

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ended when two suspects were detained and the police were told
that no others remained inside, but the police had no way of
knowing then whether they had detained the real perpetrators or
whether there might be other suspects or persons able to destroy
evidence still in the apartment. The police would have been
derelict in their duty had they accepted Revelez’s assurance
without further investigation.
2. Once inside, the police could properly conduct a
limited search to uncover additional suspects and ensure officer
safety. In the course of this protective sweep, they could
lawfully seize any evidence in plain view that they reasonably
believed to be related to the robbery, including the clothing on
the bedroom floor and on top of the hamper.
3. However, the scope of the search exceeded the limits of
a protective sweep. The police were not entitled to open
dresser drawers or dump out the contents of the hamper and
rummage through them without a warrant. Thus, the Lorcin
semiautomatic handgun, black ski mask, and unmatched gloves
obtained through that search were illegally seized.
4. But if the later-obtained search warrant was valid, all
of that evidence would inevitably have been discovered pursuant
to the valid search and would therefore remain admissible.
5. As previously found, once all paragraphs in the
affidavit supporting the search warrant application that derived
from information obtained through the illegal search and seizure
were deleted, the remaining information in the affidavit
supplied probable cause to issue the warrant. Furthermore,

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Detective Dubke’s testimony that he would have sought the
warrant based on the circumstances of the pursuit and the
evidence obtained through legal means was credible. Thus, the
search warrant provided an independent source for the discovery
of the illegally seized evidence. (As also previously found,
the time change on the face of the warrant was simply the
magistrate’s later correction of a “clerical error” and did not
invalidate the warrant.) Therefore, inevitable discovery made
that evidence admissible.10
Analysis
In reviewing a trial court’s ruling denying a motion to
suppress evidence, we accept the court’s factual findings if
supported by substantial evidence. However, we decide
independently whether the challenged search or seizure was
constitutionally reasonable. (People v. Glaser (1995) 11
Cal.4th 354, 362.)
Exigent circumstances
Although the Fourth Amendment to the United States
Constitution normally requires a warrant for police entry into a
person’s home, exigent circumstances create an exception to that
requirement. (People v. Seaton (2001) 26 Cal.4th 598, 632.)
“There is no ready litmus test for determining whether such
circumstances exist, and in each case the claim of an
10 Judge Borack also found that a statement given by Scott about
the illegally seized gun was fruit of the poisonous tree and had
to be suppressed. That ruling is not challenged on appeal.

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extraordinary situation must be measured by the facts known to
the officers.” (People v. Ramey (1976) 16 Cal.3d 263, 276.)
Exigent circumstances may include the “fresh pursuit of a
fleeing suspect who has committed a grave offense and remains
dangerous to life and limb” (People v. Smith (1966) 63 Cal.2d
779, 797), provided the pursuit is “substantially continuous and
afford[s] the law enforcement authorities no reasonable
opportunity to obtain a warrant[.]” (People v. Escudero (1979)
23 Cal.3d 800, 810.) Exigent circumstances may also include the
officers’ reasonable fear that persons inside a residence may
imminently destroy evidence. (Minnesota v. Olson (1990) 495
U.S. 91, 100 [109 L.Ed.2d 85, 95]; People v. Seaton, supra, 26
Cal.4th at p. 632.) In this case, the People offered both
justifications.
Scott asserts “fresh pursuit” does not justify the
warrantless entry because (1) the police had apprehended three
suspects (the fleeing Kenney, plus Scott and Mamaril, who
emerged peacefully from the apartment) and had no reason to
believe there were more; (2) they did not know how long the
apartment’s window screen (through which Kenney had supposedly
escaped) had been lying on the ground; (3) they had already
recovered two weapons (Kenney’s rifle and the pistol in his
jacket pocket) and no victim or eyewitness had reported seeing
more than two; and (4) they had officers posted at all corners
of the building to prevent escape. Thus, in Scott’s view, the

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officers could simply have removed Revelez, “secured the
apartment,” and awaited a search warrant.11 We disagree.
The police pursuit was fresh and continuous: the 911 call
and the RAM tag signals put the police on the suspects’ trail
almost immediately, and there was no break in the pursuit after
they reached the apartment complex. One suspect tried to flee
as the police were arriving; they apprehended him only shortly
before going into the building. The fact that they had heard of
only three suspects at the crime scene did not prove that only
three persons were involved: there could also have been
accomplices or coconspirators who did not go to the McDonald’s
but awaited the principals’ return to Scott’s apartment. (For
all they knew, Revelez, an admitted associate of Scott, was such
a person.) The fact that they had heard of only two firearms
used in the crime hardly proved that the criminals possessed
only two: violent criminals often have multiple weapons, and
the police had recovered firearms from only one suspect by the
time they entered the apartment. Having officers posted outside
the building would not have prevented an armed criminal inside
from firing on them. (Scott does not explain how the police
could have “secured the apartment” without securing themselves
against that possibility.) And, as the trial court found, the
11 Scott also asserts, relying on United States v. Alvarez (9th
Cir. 1987) 810 F.2d 879, that the government’s claim of exigent
circumstances is “severely undercut” because the police could
have obtained a telephonic warrant. Defendant has not shown
that this argument was raised in the trial court; the argument
cannot be made for the first time on appeal. (See People v.
Williams (1999) 20 Cal.4th 119, 131.)

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fact that they had detained three persons did not establish that
all of those persons or only those persons were the robbers, and
the fact that Revelez said no one else was inside did not prove
that that was so.
Furthermore, because the police had no way of knowing that
all persons able to destroy evidence of the robbery were out of
the apartment, they were also justified in entering without a
warrant to guard against the possibility of such destruction.
(Minnesota v. Olson, supra, 495 U.S. at p. 100 [109 L.Ed.2d at
p. 95]; People v. Seaton, supra, 26 Cal.4th at p. 632.) Scott
does not even attempt to rebut this basis for the officers’
entry.
Protective sweep and “plain view” seizure
If reasonable fear for officer safety justifies a
warrantless entry, the officers may lawfully do a protective
sweep of the premises to search for persons and weapons. This
does not license a general search, but only a cursory visual
inspection of places in which a person might be hiding.
(Maryland v. Buie (1990) 494 U.S. 325, 327 [108 L.Ed.2d 276,
281]; People v. Seaton, supra, 26 Cal.4th at p. 632.) However,
during a protective sweep, as in any other situation where the
police have the right to be on the premises without a warrant,
they may lawfully seize any item in plain view which they have
probable cause to believe is evidence of a crime or contraband.
(Maryland v. Buie, supra, 494 U.S. at p. 330 [108 L.Ed.2d at p.
283]; Arizona v. Hicks (1987) 480 U.S. 321, 325-327 [94 L.Ed.2d

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22
347, 354-355]; People v. Clark (1989) 212 Cal.App.3d 1233, 1238-
1239.)
Scott asserts the police could not properly seize even
items in plain view because they lacked probable cause to
believe the items were connected to a crime. It is not enough,
according to Scott, that the victims had said the robbers were
wearing black and the officers saw black clothing in plain view,
because that clothing had no distinguishing characteristics and
many people own such clothing. We disagree.
Scott’s argument sets the bar for probable cause too high.
In discussing this issue, he relies on United States Supreme
Court decisions that say that the incriminating character of the
evidence must be “immediately apparent.” (Horton v. California
(1990) 496 U.S. 128, 136 [110 L.Ed.2d 112, 136]; Arizona v.
Hicks, supra, 480 U.S. at pp. 326-327 [94 L.Ed.2d at pp. 354-
355].) However, in Texas v. Brown (1983) 460 U.S. 730 at pages
741 through 742 [75 L.Ed.2d 502, 513-514], decided before the
cases Scott cites, the high court explained that this test is
just another way of defining probable cause and does not create
a higher standard.
As the court explained: “Decisions by this Court since
Coolidge [v. New Hampshire (1971) 403 U.S. 443 [29 L.Ed.2d 564]]
indicate that the use of the phrase ‘immediately apparent’ was
very likely an unhappy choice of words, since it can be taken to
imply that an unduly high degree of certainty as to the
incriminatory character of evidence is necessary for an
application of the ‘plain view’ doctrine.” (Texas v. Brown,

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23
supra, 460 U.S. at p. 741 [75 L.Ed.2d at p. 513].) In fact,
only probable cause is required. (Id. at p. 742 [75 L.Ed.2d at
pp. 513-514].) Probable cause “is a flexible, common-sense
standard. It merely requires that the facts available to the
officer would ‘warrant a man of reasonable caution in the
belief’ [citation] that certain items may be contraband or
stolen property or useful as evidence of a crime; it does not
demand any showing that such a belief be correct or more likely
true than false. A ‘practical, nontechnical’ probability that
incriminating evidence is involved is all that is required.”
(Id. at p. 742 [75 L.Ed.2d at p. 514].)12
Here, the officers entered an apartment that they had
reason to believe might be occupied by one or more suspects in a
robbery just performed by persons wearing black clothing, and
found black clothing strewn about the apartment in plain view.
They were not required to be certain that this clothing was
connected to the crime, but only to have a reasonable belief
that it might be. The trial court’s finding on this point was
correct.
Illegally seized evidence and harmless error
As the trial court found, the officers’ protective sweep
did not permit a general search; thus, anything seized that was
not in plain view was illegally seized. The court also found,
however, that due to the later-obtained search warrant, the
12 Scott cites this definition of probable cause when discussing
the warrant. However, he overlooks its relevance to this issue.

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24
doctrines of “inevitable discovery” and “independent source”
cured the illegality and made that evidence admissible.
In the parties’ original briefing, Scott contended this
ruling was not only erroneous but necessarily prejudicial, while
the Attorney General simply argued the ruling was correct.
Thus, neither party considered whether it could have been
harmless error to admit the evidence. We requested supplemental
briefing on that point. Having considered the supplemental
briefing, we are persuaded that even assuming the search warrant
cannot validate the originally illegal seizure of evidence, the
admission of that evidence was harmless in light of the whole
record.
When a defendant is convicted after illegally seized
evidence was improperly admitted, we determine prejudice by
looking to the whole record of evidence adduced at trial.
(People v. Tewksbury, supra, 15 Cal.3d at pp. 971-972.) Here,
as the trial court found, the Lorcin .380 pistol in Scott’s
dresser drawer and the clothing inside the hamper were illegally
seized. Because the court denied Scott’s motion to suppress,
those items came into evidence, along with Scott’s statement
admitting prior ownership of the pistol, and victim Wong was
permitted to identify the pistol. Thus, we must decide whether
the error in admitting this evidence was harmless beyond a
reasonable doubt. (Id. at p. 972.)13
13 As we have explained, we reject Scott’s position that all the
evidence was illegally seized because we agree with the trial
court that the police were lawfully entitled to enter his

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25
Scott asserts in his supplemental brief that the evidence
supporting his conviction was weak because: (1) Eyewitnesses
failed to identify him (aside from Wong’s identification at the
in-field showup, which was based solely on body shape and size,
and which she disavowed at trial). (2) There was evidence
incriminating codefendant Kenney that did not point to Scott.
(3) Scott testified, denied his involvement, and explained that
Kenney had left incriminating evidence in Scott’s apartment
without his knowledge or his awareness of its criminal
significance. (4) Absent the illegally seized evidence, all
that remained was (a) a car belonging to Scott with a warm hood,
which might have been used in the robbery, but which the police
had no evidence Scott had driven; (b) the RAM signals that led
to Scott’s apartment complex, although it was Kenney whom the
police caught with the stolen money; (c) a bent and downed
window screen from one of Scott’s windows, although the police
had no way of knowing how or when it came to be there; and
(d) black clothing with no distinguishing characteristics in the
apartment. Furthermore, Scott asserts, if the illegally seized
pistol had not been admitted in evidence, his admission to the
police that it was his, which supported his conviction on
count 6 (felon in possession of firearm), would also have been
excluded. (Id. p. 8.) We are not persuaded.
First, viewed in its totality, the evidence strongly
suggests Kenney had run from Scott’s apartment. Guns and other
apartment for a protective sweep and to seize the items they
found in plain view.

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26
evidence tied to the crime were found with Kenney when he was
captured. In his testimony, defendant admitted Kenney had been
in defendant’s apartment but gave an implausible explanation for
Kenney’s presence at an early hour of the morning.
Second, it is true that the police could not prove Scott
had driven the Mustang with the warm hood (identified over the
police dispatch as the likely getaway car) which was parked
outside his building and which he admitted owning -- but his
claim that he had left it parked elsewhere and had no idea how
it had gotten to his doorstep was implausible and inconsistent
with his later testimony that he had loaned it to Kenney.
Third, this evidence and the other evidence Scott mentions
is all consistent with, and collectively most easily explained
by, the theory that he took part in the robbery.
Fourth, clothing matching that used by the robber was found
in plain view.
Fifth, Scott’s ultimate attempt to shift all the blame to
Kenney was not credible because Scott had changed his story
frequently and because he had been convicted for a crime of
moral turpitude. As the Attorney General points out, “[f]alse
statements regarding incriminating circumstances constitute
evidence which may support an inference of consciousness of
guilt. [Citations.]” (People v. Showers (1968) 68 Cal.2d 639,
643.)
Finally, if the jury believed the other admissible evidence
against Scott, it would also have believed that he was one of
the principals who brought a firearm to the robbery and

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27
personally used it. Thus, even without his statement admitting
prior ownership of the gun in his dresser drawer, the jury could
have convicted him on count 6 because he possessed a weapon, a
separate and distinct offense for a felon, before committing the
robbery. (See People v. Jones (2002) 103 Cal.App.4th 1139,
1145-1148 [§ 654 does not bar separate sentence for felon-in-
possession where defendant armed himself before committing
felony].) Under all the circumstances, any error in admitting
illegally seized evidence against Scott was harmless beyond a
reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24
[17 L.Ed.2d 705, 710-711].)
II
Scott contends the trial court erred prejudicially by
denying his requested instruction on the offense of accessory
after the fact. The court did not err because the instruction
was unsupported by any evidence.
Background
Before trial, Scott’s counsel advised the court that he
would argue his client was an accessory after the fact (§ 32)
and he would seek instruction on that offense.14 As noted, Scott
testified: (1) he let Kenney borrow the Mustang; (2) Kenney
returned it early in the morning on April 29, 2001, leaving
14 Section 32 provides: “Every person who, after a felony has
been committed, harbors, conceals, or aids a principal in such
felony, with the intent that said principal may avoid or escape
from arrest, trial, conviction or punishment, having knowledge
that said principal has committed such felony or has been
charged with such felony or convicted thereof, is an accessory
to such felony.” (Italics added.)

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28
clothes and other items in Scott’s residence; (3) while Kenney
was in the apartment, they heard sirens; (4) Scott helped Kenney
escape by pushing the screen out of the window of the children’s
bedroom; and (5) Scott then hid a black bag and a Lorcin pistol
Kenney had left behind.
Scott’s counsel requested instruction on the offense of
accessory after the fact pursuant to CALJIC No. 6.40.15 The
trial court refused, stating that the evidence did not support
that instruction because Scott testified he did not know what
was going on and was simply trying to stay out of trouble.
15 The requested instruction stated:
“Defendants are accused [in Count[s] 1, 2 and 3] of having
committed the crime of being an accessory to a felony in
violation of § 32 of the Penal Code.
“Every person who, after a felony has been committed,
harbors, conceals or aids a principal in that felony, with the
specific intent that the principal may avoid or escape from
arrest, trial, conviction or punishment, having knowledge that
the principal has committed that felony or has been charged with
that felony or convicted thereof, is guilty of the crime of
accessory to a felony in violation of [section] 32.
“In order to prove this crime, each of the following
elements must be proved:
“1. A felony, namely, robbery in violation of [section]
211, was committed;
“2. Defendant harbored, concealed or aided a principal in
that felony with the specific intent that the principal avoid or
escape [arrest] [trial] [conviction or punishment]; and
“3. Defendant did so with knowledge that the principal
[committed the felony] [was charged with having committed the
felony] [was convicted of having committed the felony].”

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29
Analysis
Defendant asserts the trial court erred because the
evidence showed he knew he was helping Kenney to escape arrest
and specifically intended that result. He is wrong. Case law
makes even clearer what is already spelled out in both
section 32 and CALJIC No. 6.40: Before a defendant can properly
obtain instruction on the offense of accessory after the fact,
there must be evidence that he knew another person had committed
a specific felony and he had the criminal intent to help that
person escape its consequences. Scott did not so testify: he
testified that he did not know what (if anything) Kenney had
done and that he himself did not commit or intend to commit any
crime whatever.
“The test for determining whether instructions on a
particular theory of guilt are appropriate is whether there is
substantial evidence which would support a conviction on that
theory. [Citation.]” (People v. Nguyen (1993) 21 Cal.App.4th
518, 528.) In other words, a defendant’s “theory of defense”
that he committed some lesser crime than the offense charged, if
not supported by substantial evidence, does not entitle him to
instruction on the lesser crime.
“A conviction under section 32 requires proof that a
principal committed a specified felony, the defendant knew that
the principal had committed a felony, the defendant did
something to help the principal get away with the crime, and
that as a result of this action the defendant intended to help

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30
the principal get away with the crime. [Citations.]” (People
v. Nguyen, supra, 21 Cal.App.4th at p. 536.)
If Scott’s testimony was to be believed, he did not know
that Kenney had committed any particular felony, and he did not
help Kenney get out of the apartment to help him escape arrest
for a felony. According to Scott, when Kenney repeatedly
refused to tell him what was going on, Scott told him to leave
and pushed the screen out of the bedroom window because Scott
was anxious about the welfare of his family and houseguest.
Scott did not know what Kenney might have done because Kenney
would not say, and Scott did not want to help him but to get rid
of him. In short, Scott’s testimony denied both guilty
knowledge and guilty intent. On this “theory of defense,” Scott
was not an accessory after the fact because he was innocent of
any crime. And on the prosecution’s theory of the case, Scott
was not an accessory after the fact but a principal, and his
testimony (except as to pushing out the screen) was wholly
incredible.16
Scott relies on People v. Perryman (1987) 188 Cal.App.3d
1546. But there, the defendant knew that the person she helped
to escape had committed a felony because she saw the felony
occurring. (Id. at p. 1548.) Contrary to Scott’s position,
16 A person can be both a principal and an accessory when there
is evidence of distinct and independent acts supporting each
crime. (People v. Mouton (1993) 15 Cal.App.4th 1313, 1321-1325;
accord, People v. Riley (1993) 20 Cal.App.4th 1808, 1816.)
Scott did not request accessory instructions on that theory,
however: he claimed that the evidence showed he was only an
accessory and did not take part in the robbery.

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31
that case does not hold that a defendant has sufficient
knowledge for accessory liability merely because he might be
able to “deduc[e]” from circumstantial evidence that a crime had
been committed.
The trial court’s denial of the requested instruction was
correct.
III
Defendants contend the trial court misinstructed the jury
on the law of constructive possession after it reported a
deadlock, thus directing a prosecution verdict on counts 2 and
3, which was contrary to law. We disagree.
Background
All three on-duty McDonald’s employees were named as
robbery victims -- Wong in count 1, Salazar in count 2, and
Guillebeau in count 3. The evidence showed, however, that only
Wong, the “swing manager,” had access to the safe, and only she
was forced to give the robbers money as Guillebeau and Salazar
hid.
At the close of the People’s case-in-chief, defendants
jointly moved for acquittal on counts 2 and 3. (§ 1118.1.)
Defendants asserted Guillebeau and Salazar were not robbery
victims because they did not have actual or constructive
possession of the items taken from the safe.
After argument, the trial court denied the motion. The
court cited two recent appellate decisions on point -- People v.
Frazer (2003) 106 Cal.App.4th 1105 (Frazer) and People v. Jones
(2000) 82 Cal.App.4th 485 (Jones II) -- and stated that Jones II

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32
was better reasoned, but defendants’ motion would fail under
either.17 According to the court, Jones II holds as a matter of
law, based on analysis of case law back to 1924 (cf. Jones II,
supra, 82 Cal.App.4th at pp. 490-491), that business employees
have constructive possession of the employer’s property during a
robbery because they have a representative capacity with respect
to the employer, regardless of whether they have personal access
to the property taken. (See ibid.) However, under Frazer --
which holds that constructive possession exists if, as a matter
of fact, the employee has a sufficient representative capacity
with respect to the employer so as to have express or implied
authority over the stolen property (Frazer, supra, 106
Cal.App.4th at pp. 1114-1115 [declining to follow Jones II so
far as it states absolute rule of law]) -- there was sufficient
17 Coincidentally, there are two unrelated cases on point called
People v. Jones: in addition to the one cited above, there is
also People v. Jones (1996) 42 Cal.App.4th 1047. Later
decisions citing both sometimes call the earlier case Jones I
and the later case Jones II, even though they are unrelated.
(See, e.g., Frazer, supra, 106 Cal.App.4th at pp. 1114-1115.)
For convenience, we shall do likewise.
Both in its oral ruling on the motion for acquittal and in
its later oral ruling during jury deliberations, the trial court
spoke of “People v. Jones” without giving a volume-and-page
citation or noting that there are two relevant cases by that
name. Kenney assumes in his opening brief that the court was
talking about Jones I and argues the court erred by finding a
conflict between that case and Frazer. However, we conclude
from the court’s description of “People v. Jones” in its first
ruling that it was really talking in both rulings about Jones
II, which Kenney fails to cite in his opening brief. Thus we
call the case by that name even though the trial court did not.

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33
evidence as to Guillebeau and Salazar to make constructive
possession a jury question.
The trial court instructed the jury on possession with
CALJIC No. 1.24: “There are two kinds of possession[:] actual
possession and constructive possession. Actual possession
requires that a person knowingly exercised direct physical
control over a thing. Constructive possession does not require
actual possession but does require that a person knowingly
exercised control over or the right to control a thing either
directly or through another person or persons. One person may
have possession alone or two or more persons together may share
actual or constructive possession.”
During closing argument, Kenney’s counsel stated that Wong
had constructive possession of the stolen property because, as
the manager, she was “responsible for everything in that store.”
Then he added: “But Jinel Guillebeau, she doesn’t have
constructive possession of the items of [sic] the safe because
she has no access to the items in the safe.” (Italics added.)
The prosecutor objected and asked to approach. Following
an unreported discussion, Kenney’s counsel did not return to
this line of argument.
On rebuttal the prosecutor argued that all three alleged
victims had constructive possession of McDonald’s property
because all were working in a representative capacity for
McDonald’s at the time of the robbery.
The trial court submitted the case to the jury on Thursday,
July 24, 2003. On Friday, July 25, the jury returned a partial

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34
verdict as to the robbery counts, finding Scott and Kenney
guilty on count 1 (robbery of Wong) but returning no verdict on
counts 2 and 3.
The jury continued its deliberations on Monday, July 28,
without reaching any further verdict.
On Tuesday, July 29, the trial court said it had received
an inquiry from the jury the previous afternoon requesting
“clarification of CALJIC 1.24 [sic] . . . regarding Counts 2 and
3.” Specifically, the jury had asked: “Do all employees have
constructive possession of all [company property] while on
duty?”
The trial court then put on the record the discussion it
had held with counsel at that time. The court said it had
observed that the jury appeared to be “going down the road of
Frazer” rather than that of Jones II, which the court still
deemed the better-reasoned decision. Furthermore, it appeared
the jury was “totally focusing in on improper argument by
[Kenney’s counsel] during . . . his closing argument to which
[the prosecutor] objected; and the Court sustained it.” The
court said that in the unreported sidebar it had told Kenney’s
counsel he had misstated the law and if he did not stop the
court would have to give a pinpoint instruction based on
Jones II. However, the court had not stricken the objectionable
argument because the prosecutor had not requested it and the
court had not realized how the argument would affect the jury.
Finally, the trial court said it had originally proposed to
respond to the jury by quoting the rule of Jones II: “[T]he

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35
employees of a business constructively possess the business
owner’s property during a robbery.” (Jones II, supra, 82
Cal.App.4th at p. 490.) However, Scott’s counsel had said this
would amount to directing a verdict for the People on counts 2
and 3. The court now asked all counsels’ views on this point.
The prosecutor said the trial court should give such an
instruction and it would not direct a verdict: the jury would
still have to decide, among other things, whether Guillebeau and
Salazar were subjected to force and fear during the robbery.
Scott’s counsel replied that giving a pinpoint instruction
would necessitate a mistrial as to Scott because it would
effectively punish him for the “misbehavior” of Kenney’s
counsel. Kenney’s counsel replied that he still believed his
argument legally correct and consistent with CALJIC No. 1.24,
and the People could not request a pinpoint instruction now
because they had failed to do so when the parties and the trial
court were discussing proposed instructions. The prosecutor
said she had not anticipated Kenney’s counsel would make an
argument to the jury that the court had already rejected as a
matter of law on his motion for acquittal. The trial court
agreed it had done so.
The trial court then ruled that it would give a pinpoint
instruction based on Jones II. The court explained that this
instruction would not answer either yes or no to the jury’s
question, “Do all employees . . . have constructive possession
of all company property while on duty?” (Italics added.)

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36
Counsel for codefendant Mamaril observed that Jones II was
not binding on the trial court because it was not a Third
Appellate District case. The court replied: “I have two
contradicting cases [i.e., Jones II and Frazer], and whenever
there is two contradictory cases [sic] the Court is free to
choose the case that the Court believes is better reasoned; and
that is what I have done.” The court noted that neither the
Third Appellate District nor the California Supreme Court had
addressed the issue.
The jury was brought in. The trial court then instructed
the jury: “The employees of a business constructively possess
the business owner’s property during a robbery.” The court
added that it was referring the jury back to CALJIC No. 1.24.
Soon afterward, the jury returned with verdicts of guilty
as to Scott and Kenney on counts 2 and 3.
Analysis
Kenney (joined by Scott) contends: (1) The trial court
erred by finding a conflict in the law. Understood correctly,
neither decision cited by the court stands for the absolute rule
of law the court gave the jury in response to its question, and
the inquiry whether an employee had constructive possession of
the employer’s property is necessarily factual. (2) The court’s
erroneous pinpoint instruction removed from the jury’s
consideration the factual question whether Guillebeau and
Salazar had constructive possession of the stolen property and
directed a verdict for the People on counts 2 and 3. (3) This
federal constitutional error was not harmless beyond a

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37
reasonable doubt because the jury was deadlocked on counts 2 and
3 until the court gave the erroneous instruction. We disagree.
First, as explained already, Kenney has simply mistaken the
“Jones” decision on which the trial court relied. Throughout
his opening brief, he discusses only Jones I, supra, 42
Cal.App.4th 1047. There, as he points out, the court found as a
matter of fact that all employees alleged to be victims of a
robbery of their place of employment had constructive possession
of the stolen property because they had sufficient
representative capacity with respect to its owner. (Id. at p.
1054.)18 Similarly, as we have noted, Frazer, supra, 106
Cal.App.4th 1105, holds that employees who have sufficient
representative capacity have constructive possession as a matter
of fact. (Id. at pp. 1114-1115.)
18 The court went on to reject the unexplained holding of an
older decision that a “market box boy” was not a victim of a
robbery at his workplace. (People v. Guerin (1972) 22
Cal.App.3d 775, 782 (Guerin) [disapproved on other grounds in
People v. Ramos (1982) 30 Cal.3d 553, 589].) The court stated
that unless Guerin’s holding was based on the employee’s
possible status as a minor, it was wrong: “[E]ven a market box
boy has sufficient representative capacity vis-à-vis the owner
so as to be in ‘possession’ of the property stolen from the
store owner.” (Jones I, supra, 42 Cal.App.4th at p. 1055.)
Additionally, Jones I cites Guerin as the only case that had
ever found a business employee present during a robbery not to
be in constructive possession of the business’s property.
(Jones I, supra, 42 Cal.App.4th at pp. 1053-1055.)
Kenney is correct, however, to note that Jones I does not
squarely hold as a matter of law that all business employees
have constructive possession of their employer’s property in
cases of robbery (even though such a rule could be inferred from
its discussion). In that sense, as Kenney says, it is not
inconsistent with Frazer, supra.

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38
But Jones II, on which the trial court actually relied,
plainly holds that it is not a question of fact but of law:
“California follows the long-standing rule that the employees of
a business constructively possess the business owner’s property
during a robbery.” (Jones II, supra, 82 Cal.App.4th at p. 490.)
Although Jones II cites Jones I as “[t]he case that is most
factually apposite” (Jones II, supra, 82 Cal.App.4th at p. 491)
and purports to follow its reasoning (ibid.), it goes further to
state flatly: “[B]usiness employees -- whatever their function
-- have sufficient representative capacity to their employer so
as to be in possession of property stolen from the business
owner.” (Ibid.)
As the trial court noted, it is precisely on this point
where Frazer differs. Frazer observes: “Jones II concludes
that employee status, regardless of function, is alone enough to
confer constructive possession. The dissent, and to a limited
extent the majority opinion[,] in Jones I, support a more fact-
based inquiry, i.e., an evaluation of the circumstances of the
case to determine if the particular employee has sufficient
representative capacity to be deemed to have implied authority
over the item taken.” (Frazer, supra, 106 Cal.App.4th at p.
1114.) Frazer then points out that the California Supreme Court
in People v. Nguyen (2000) 24 Cal.4th 756, 762 (Nguyen), decided
after Jones II, had disapproved People v. Mai (1994) 22
Cal.App.4th 117 (Mai), a decision cited with approval in Jones
II. (Frazer, supra, 106 Cal.App.4th at pp. 1114-1115.)
Finally, Frazer holds: “Given our Supreme Court’s reiteration

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39
in Nguyen of the importance of the element of possession to
support a robbery conviction, we conclude a fact-based inquiry
regarding constructive possession by an employee victim is
appropriate. That is, we conclude the proper standard to
determine whether a robbery conviction can be sustained as to an
employee who does not have actual possession of the stolen
property is whether the circumstances indicate the employee has
sufficient representative capacity with respect to the owner of
the property, so as to have express or implied authority over
the property. Under this standard, employee status does not
alone as a matter of law establish constructive possession.
Rather, the record must show indicia of express or implied
authority under the particular circumstances of the case.”
(Frazer, supra, 106 Cal.App.4th at p. 1115; italics added.) The
trial court was right to find that Jones II and Frazer conflict,
since Frazer plainly says as much.
We also agree with the trial court that Jones II states the
correct rule.
First, Frazer’s uneasiness about Jones II’s supposed
reliance on Mai was misplaced, because Jones II does not in any
way derive its rule from Mai. A truly anomalous case, Mai did
not address the issue of employees’ constructive possession;
rather, it held that a mere visitor to a business establishment
became a victim when a robbery occurred on the premises “once
force and fear were applied to him in an attempt to deprive
someone, or anyone, of property[.]” (Mai, supra, 22 Cal.App.4th

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40
at p. 129.)19 The Supreme Court disapproved Mai because Mai
held, contrary to “settled law for nearly a century[,]” that
“the property taken during a robbery need not be taken from the
possession of the victim.” (Nguyen, supra, 24 Cal.4th at pp.
760, 762.) Jones II cites Mai in dictum merely to illustrate
the breadth of recent holdings as to business robberies. (Jones
II, supra, 82 Cal.App.4th at pp. 490-491.) Thus, neither Mai’s
holding nor Nguyen’s disapproval of that holding is critical to
the validity of Jones II.
Second, even though Jones II goes beyond prior cases in
stating as a matter of law that business employees per se have
constructive possession of their employers’ stolen property, it
correctly concludes that (but for the anomalous Guerin) all the
prior cases’ holdings are consistent with such a rule and
logically imply it. (Jones II, supra, 82 Cal.App.4th at pp.
490-492.)
Third, unlike the clear rule of Jones II, the “fact-based
inquiry” of Frazer is essentially standardless. Though Frazer
speaks of “indicia of express or implied authority,” it does not
explain how a court can identify such “indicia” or apply them to
particular facts: it merely cites two cases (“[t]o illustrate”)
in which employees were found to have such authority. (Frazer,
19 Although Mai purported to derive this rule from People v.
Arline (1970) 13 Cal.App.3d 200, one of the seminal cases on
employees’ constructive possession (Mai, supra, 22 Cal.App.4th
at p. 129), that rule is not to be found there.

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supra, 106 Cal.App.4th at p. 1115.)20 Nor does Frazer explain
why the facts of employee status and on-duty presence on the
premises during a robbery are not sufficient to resolve “the
element of possession to support a robbery conviction.” (Ibid.)
For all these reasons, we conclude the trial court
correctly instructed the jury pursuant to Jones II. Contrary to
defendants’ position, the court’s instruction did not remove the
“factual question” of constructive possession from the jury’s
consideration: it simply clarified the law on this subject.
Furthermore, the instruction did not direct a verdict on
counts 2 and 3. As the prosecutor pointed out, constructive
possession was not the only element the jury had to resolve: it
also had to decide whether defendants used force or fear against
Guillebeau and Salazar in order to take “their” property. The
fact that the jury found against defendants on this point does
not prove it was compelled to do so.
Because the trial court’s instruction was correct, we need
not address defendants’ claims of prejudice.
20 Frazer gives the following examples: (1) “[A] janitor may
well be deemed to have implied authority if all other employees
who handle the cash are gone.” (Frazer, supra, 106 Cal.App.4th
at p. 1115, citing People v. Downs (1952) 114 Cal.App.2d 758,
765-766.) (2) “[B]y virtue of his job title charging him with
guarding the premises, a security guard may be deemed to have
authority even when other employees who handle the property are
present.” (Frazer, supra, 106 Cal.App.4th at p. 1115, citing
People v. Miller (1977) 18 Cal.3d 873, 880-881.) We fail to see
how these cases elucidate either Frazer’s “indicia of express or
implied authority” or its criteria for applying them.

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IV
Kenney contends the trial court erred by imposing a
concurrent sentence on count 4 (felon in possession of firearm)
rather than staying sentence on that count under section 654,
because his possession of the firearm was part of an indivisible
course of conduct with the principal crime (as the court
expressly found at sentencing) and the People did not prove any
distinctly separate, antecedent possession. The Attorney
General concedes the point. Having reviewed the record, we
shall accept the People’s concession. The sentence on count 4
is hereby stayed pursuant to section 654.
V
Kenney contends his sentencing violated Blakely, supra, 542
U.S. 296, because the trial court imposed the aggravated term on
count 1 and consecutive sentencing based on facts not submitted
to the jury and found true beyond a reasonable doubt. However,
our Supreme Court has recently rejected these contentions. (See
People v. Black (2005) 35 Cal.4th 1238.)
DISPOSITION
The judgment with respect to defendant Scott is affirmed.
The judgment with respect to defendant Kenney is modified to
show a stay of the sentence imposed on count 4 pursuant to Penal
Code section 654. As modified, the judgment with respect to
defendant Kenney is affirmed. The trial court shall prepare an
amended abstract of judgment showing the aforementioned stay of

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sentence on count 4 and shall forward a certified copy of the
same to the Department of Corrections.
SIMS , Acting P.J.
We concur:
DAVIS , J.
MORRISON , J.

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