P. v. Anderson

Filed 7/2/09 P. v. Anderson CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
PAUL D. ANDERSON,
Defendant and Appellant.
D054740
(Super. Ct. No. RIF113459)
APPEAL from a judgment of the Superior Court of Riverside County, Richard
Couzens, Judge. Affirmed in part, reversed in part and remanded with directions.
Paul D. Anderson appeals a judgment following his jury conviction of first degree
murder (Pen. Code, § 187),1 robbery (§ 211), and receiving stolen property (§ 496, subd.
(a)). The jury also found true the special circumstance allegation that the murder was
committed during the commission of robbery (§ 190.2, subd. (a)(17)). On appeal,
Anderson contends (1) there is insufficient evidence to support his robbery and felony
1 All statutory references are to the Penal Code.

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murder convictions and the related special circumstance finding; (2) the trial court erred
by not instructing sua sponte on the defense of accident; (3) the trial court erred by not
instructing sua sponte on the defense of mistake of fact; (4) the trial court erred by
instructing on robbery that the requisite intent to take may be formed before the
defendant used force or fear; (5) he was wrongly convicted of both robbery and receiving
stolen property; and (6) the court's minutes should be corrected to specify that his robbery
conviction was of the second degree.
FACTUAL AND PROCEDURAL BACKGROUND
During the evening of November 7, 2003, Anderson, an unemployed
methamphetamine addict, was socializing with Ginger Lyle, a drug dealer, at her
Riverside home. Robert Sanchez, Lyle's boyfriend, was also there. While Anderson
smoked methamphetamine, he and Lyle made plans to leave the home separately to
surreptitiously meet at a nearby park and then go to a motel room or friend's house to "get
together or something." Lyle left the home first, believing she and Anderson would walk
to a motel or house because neither one had access to a car at the time. Anderson left the
home second. However, rather than going directly to meet Lyle, Anderson walked to an
apartment complex a few blocks away to steal a car. The fenced and gated complex had
eight buildings, each of which contained carports. In one carport, Anderson, using a
shaved key, gained entry into a blue Nissan car. The car belonged to Pamela Thompson,
who had recently arrived home from work with the plan to then visit her boyfriend. After
entering Thompson's car, Anderson started its engine and drove toward the complex's

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gate, expecting it to automatically open. When the gate did not open, he backed the car
into a parking stall about 30 yards from the gate and waited for another driver to open the
gate. He kept the car's engine running so that he could drive through the open gate as
soon as another car entered or left.
Thompson left her apartment and found her car was missing from its assigned
parking spot. She called Joe Dietz, her stepfather with whom she lived, to inquire
whether he had moved her car. When Dietz told her he had not moved her car,
Thompson told him it had been stolen. Dietz, at a friend's nearby apartment, walked to
his apartment to locate the car's documentation so he could report the stolen car to police.
Thompson telephoned her mother, Barbara Dietz, and told her that her car, along with her
purse inside it, had been stolen and she was outside looking for her car. Shortly
thereafter, in an animated tone, Thompson exclaimed to her mother: "Oh, my God. Here
comes my car real fast." Thompson's cellular telephone then went dead.
Rudy Espinoza, in his apartment about 30 yards from the gate, heard a woman
yelling "very close" outside. He described the yelling as "a quarrel between a couple."
Anya Gonzalez, Espinoza's girlfriend, was also there and heard a female yelling.
Gonzalez believed there was "a fight going on." To Gonzalez, it sounded like the female
was yelling at someone. Gonzalez heard the female voice move toward the gate's
location. She then heard the female shout: "Stop, stop, stop." Two or three seconds later,
Gonzalez heard "a real loud thump." Espinoza heard the noise of a car accelerating and

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then heard the impact. After the impact, he heard "screeching tires going off, going
away" as the car left the complex.
Thompson had been struck by her car on the street just outside the gate to the
parking area. She fell to the ground and Anderson drove over her. Thompson was taken
to a hospital and, three days later, died of multiple blunt force trauma to her brain.
Anderson abandoned Thompson's car less than one mile away. He took
Thompson's Visa check card and driver's license from her purse, and walked to Lyle's
home. During the next few days, Anderson repeatedly attempted to use the check card,
successfully doing so on November 8 and unsuccessfully doing so on November 11 and
13.
On November 14, police contacted Anderson, who identified himself as Michael
Mitchell. He had Thompson's check card and driver's license in his pocket. After he was
arrested, he admitted to police he had used the check card, which he claimed he had
obtained from a guest at Lyle's home. Anderson denied any involvement in a robbery or
homicide.
Count 1 of an information charged Anderson with first degree murder based on the
alternative theories of premeditated murder of Thompson and murder during the
commission, or attempted commission, of robbery (i.e., felony murder). Count 2 charged
him with robbery. Count 3 charged him with receiving stolen property (i.e., Thompson's
check card and driver's license).

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At trial, the prosecution presented witnesses who testified substantially as
described above. In his defense, Anderson testified that he wanted a car to visit his ex-
wife and children. He took Thompson's car by using a shaved key and waited near the
gate for another car to open it so he could leave the complex. He did not hear or see
Thompson or anyone else in the complex. When an entering car opened the gate and
drove into the complex, Anderson ducked down so its driver would not see him. After
that car passed him, he accelerated Thompson's car toward the gate with its headlights off
and its windows closed. Because the gate was beginning to close, Anderson swerved
sharply left to swing out around the closing gate and after passing through the gate turned
back to the right. At that point, he first saw a woman (Thompson) standing outside the
gate, 10 to 12 feet in front of him with her hand out as if to signal "stop." He thought he
also may have heard her say "stop," but he was not sure because events occurred so
quickly. Because he knew he could not stop in time, he swerved sharply left and then felt
an impact. Although he knew he had hit the woman, he did not stop or look back because
he was scared. He had not intended to hit or run over her.
The jury convicted Anderson on all three counts and found true the special
circumstance allegation that the murder was committed during the commission of
robbery. The trial court sentenced him to life in prison without the possibility of parole,
plus a consecutive three-year term. Anderson timely filed a notice of appeal.

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DISCUSSION
I
Substantial Evidence to Support Robbery and Felony Murder Convictions
Anderson contends the evidence is insufficient to support his robbery conviction,
and his felony murder conviction and the special circumstance finding based on the
robbery. He argues the evidence is insufficient to support a finding he intended to
permanently deprive Thompson of possession of her car, which is an element of robbery.
A
"The proper test for determining a claim of insufficiency of evidence in a criminal
case is whether, on the entire record, a rational trier of fact could find the defendant guilty
beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the
light most favorable to the People and must presume in support of the judgment the
existence of every fact the trier could reasonably deduce from the evidence. [Citation.]"
(People v. Jones (1990) 51 Cal.3d 294, 314.)
"Although we must ensure the evidence is reasonable, credible, and of solid value,
nonetheless it is the exclusive province of the trial judge or jury to determine the
credibility of a witness and the truth or falsity of the facts on which that determination
depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must
accord due deference to the trier of fact and not substitute our evaluation of a witness's
credibility for that of the fact finder. [Citations.]" (People v. Jones, supra, 51 Cal.3d at
p. 314.) Alternatively stated, "[i]f the circumstances reasonably justify the jury's

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findings, the reviewing court may not reverse the judgment merely because it believes
that the circumstances might also support a contrary finding. [Citations.]" (People v.
Ceja (1993) 4 Cal.4th 1134, 1139.)
"The same standard applies to the review of circumstantial evidence. [Citation.]"
(People v. Ceja, supra, 4 Cal.4th at pp. 1138-1139.) Therefore, "[w]hether the evidence
presented at trial is direct or circumstantial, . . . the relevant inquiry on appeal remains
whether any rational trier of fact could have found the defendant guilty beyond a
reasonable doubt. [Citations.]" (People v. Towler (1982) 31 Cal.3d 105, 118-119.)
B
Section 211 defines the offense of robbery as "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." Robbery, like larceny, requires the
taking of another person's property with the intent to steal and carry it away. (People v.
Gomez (2008) 43 Cal.4th 249, 254-255.) However, robbery is a species of aggravated
larceny, requiring that the larceny also be accomplished by force or fear and the property
be taken from the victim or his or her presence. (Id. at p. 254.) In general, robbery
requires a specific intent to deprive the victim of his or her property permanently. (In re
Albert A. (1996) 47 Cal.App.4th 1004, 1007; People v. Dominguez (1995) 38
Cal.App.4th 410, 417.) However, the required felonious intent to steal, "although often
summarized as the intent to deprive another of the property permanently, is [also]
satisfied by the intent to deprive temporarily but for an unreasonable time so as to deprive

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the person of a major portion of its value or enjoyment." (People v. Avery (2002) 27
Cal.4th 49, 58.)
In this case, the trial court instructed with CALCRIM No. 1600 on the elements of
robbery:
"The defendant is charged in Count 2 with robbery. Robbery is also
charged as a special circumstance in the commission of the murder
charged in count 1.
"To prove that the defendant is guilty of this crime, the People must
prove that:
"1. The defendant took property that was not his own;
"2. The property was taken from another person's possession and
immediate presence;
"3. The property was taken against that person's will;
"4. The defendant used force or fear to take the property or to
prevent the person from resisting; [¶] AND
"5. When the defendant used force or fear to take the property, he
intended to deprive the owner of it permanently or to remove it from
the owner's possession that owner would be deprived of a major
portion of the value or enjoyment of the property.
"The defendant's intent to take the property must have been formed
before or during the time he used force or fear. If the defendant did
not form this required intent until after using the force or fear, then
he did not commit robbery.
"A person takes something when he or she gains possession of it and
moves some distance. The distance moved may be short.
"The property taken can be of any value, however slight.

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"A person does not have to actually hold or touch something to
possess it. It is enough if the person has control over it or the right
to control it, either personally or through another person.
"Fear, as used here, means fear of injury to the person himself or
herself or immediate injury to someone else present during the
incident or to that person's property.
"Property is within a person's immediate presence if it is sufficiently
within his or her physical control that he or she could keep
possession of it if not prevented by force or fear.
"The use of force or fear can occur with the initial taking of the
property, or it can occur while the defendant attempts to get away
with the stolen property." (Italics added.)
C
Anderson argues that because the evidence is insufficient to support a finding he
intended to deprive Thompson of her car permanently (or, alternatively, to remove from
her a major portion of the car's value or enjoyment), the evidence is insufficient to
support his robbery conviction, and his felony murder conviction and the special
circumstance finding based on that robbery. He argues the only rational inference from
the evidence is that he intended to deprive Thompson of her car temporarily (e.g., for a
single evening).
We conclude there is substantial evidence to support a reasonable inference by the
jury that Anderson intended to permanently deprive Thompson of her car. The record
shows he took her car using a shaved key, accelerated the car to pass through the closing
gate, and drove away after he cleared the gate. A witness (Gonzalez) heard Thompson
shout "stop" three times. Anderson admittedly saw Thompson holding up her hand, in

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effect signaling that he should stop. Although he believed he hit and ran over her, he did
not stop and continued on his way. Another witness (Espinoza) heard "screeching tires
going off, going away" as the car left the complex after striking Thompson. Based on
that evidence, the jury could have reasonably concluded Anderson did not intend to
return the car to Thompson or take it only temporarily, but rather intended to permanently
deprive her of it. (Cf. People v. Carroll (1970) 1 Cal.3d 581, 584 [intent to permanently
deprive could be reasonably inferred from defendant's acts]; People v. Edwards (1992) 8
Cal.App.4th 1092, 1099 [intent may be inferred from defendant's act and surrounding
circumstances].) Based on our review of the entire record, we conclude there is
substantial evidence to support the jury's finding that Anderson intended to permanently
deprive Thompson of her car.
In general, "an intent to permanently deprive someone of his or her property may
be inferred when one unlawfully takes the property of another. [Citations.]" (People v.
Morales (1993) 19 Cal.App.4th 1383, 1391.) Evidence that the defendant subsequently
abandoned a stolen car or purportedly intended to use it only temporarily does not
disprove a contrary reasonable inference that the defendant intended to permanently
deprive the victim of his or her car. (Id. at pp. 1391-1392; People v. DeLeon (1982) 138
Cal.App.3d 602, 604-606; cf. People v. Mainhurst (1945) 67 Cal.App.2d 882, 883-884;
In re Albert A., supra, 47 Cal.App.4th at p. 1008 [substantial evidence of intent to
permanently deprive owner of bicycle because defendant did not return bicycle until
contacted by police].) In the circumstances in Morales, the court stated: "Drawing on

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their ' "knowledge and beliefs about general matters of law and fact that find their source
in everyday life and experience" ' [citations], reasonable jurors could infer that this break-
in of a locked vehicle was done with the intent to permanently deprive the owner of her
property. [Citations.]" (Morales, at pp. 1391-1392.) In DeLeon, a coin dealer was
stopped in his car by the defendants, who forcibly took and drove away his car. (DeLeon,
at pp. 604-605.) His car was found abandoned one hour later less than one mile away.
(Id. at p. 605.) Rejecting the defendants' contention that there was insufficient evidence
to show they intended to permanently deprive the owner of the car, DeLeon stated: "The
fact that the car was subsequently abandoned does not compel the conclusion that [the
defendants] intended to deprive the owner of the car only temporarily. [The defendants']
intent was to be inferred from circumstances and was a question of fact for the jury to
decide." (Id. at p. 606.) The court explained the jury may have reasonably inferred that
the defendants initially intended to permanently deprive the owner of his car, but on
discovery of the valuable coins in the car they may have decided to abandon the car
quickly because police would not consider it to be a routine car theft. (Ibid.) DeLeon
concluded: "Giving all reasonable inferences in favor of the judgment, substantial
evidence supports a conviction of robbery for taking the car by force." (Ibid.)
The cases cited by Anderson do not persuade us to reach a contrary conclusion.
(See e.g., People v. Butler (1967) 65 Cal.2d 569, overruled on another ground in People
v. Tufunga (1999) 21 Cal.4th 935, 939; People v. Pillsbury (1943) 59 Cal.App.2d 107;
People v. Neal (1940) 40 Cal.App.2d 115; People v. Gherna (1947) 80 Cal.App.2d 519.)

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The jury was not compelled to conclude that he intended to take the car only temporarily
to have a romantic rendezvous with Lyle that night. Anderson's evidence that he relied
on friends and others to give him rides for his transportation needs did not show he
necessarily intended to take Thompson's car only temporarily. Likewise, evidence that
Anderson had previously broken into cars only to steal valuable property inside did not
disprove that on the instant occasion he broke into Thompson's car with the intent to
permanently deprive her of it. Anderson has not carried his burden on appeal to show
there is insufficient evidence to support his robbery conviction based on his argument he
did not intend to permanently deprive Thompson of possession to her car. He does not
contend the evidence is otherwise insufficient and we therefore conclude there is
substantial evidence to support Anderson's robbery conviction, and to support his felony
murder conviction and the special circumstance finding based on that robbery.
II
Failure to Instruct Sua Sponte on the Defense of Accident
Anderson contends the trial court erred by not instructing sua sponte on the
defense of accident to the robbery charge.
A
Anderson testified in effect that his collision with Thompson was accidental. He
testified the car's headlights were not on when he drove toward and around the closing
gate. He estimated he was traveling about 25 to 30 miles per hour at the time. He could
not see anyone at or behind the gate. Gonzalez's testimony was consistent with

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diminished visibility in the gate area; she stated that after she heard the impact she could
not see through the gate to determine what had happened. Anderson further testified:
"Q. [A]s you're going through the gate, do you see anyone in front
of you as you're going through the gate?
"A. No, I didn't see anything.
"Q. As you get through the gate, what happens now?
"A. Everything happened just so fast. [¶] . . . [¶] . . . I went around
the gate and . . . [a]s I . . . came around the gate I looked up and
that's when I first seen [Thompson].
"Q. How far away was she from that point, if you know?
"A. It feels like she was only -- must have been 8 to 10 feet. That's
it. It was really close, and . . . it happened just so fast.
"Q. Had you seen her before that instant?
"A. No.
"Q. What did you do?
"A. I immediately just -- I swerved to the left. I just swerved as fast
as I could.
"Q. Why did you swerve to the left?
"A. She was right in front of me, and I wanted to miss her. I didn't
think I had enough time to stop so I swerved to the left. It happened
so fast . . . ."
He testified that he thought the woman (Thompson) was someone walking on the
sidewalk. He further testified:
"Q. Did you mean to run over [Thompson]?
"A. No.

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"Q. Did you intend to in any way?
"A. No, I would never do that. I would never do that."
In closing argument, Anderson's counsel argued Anderson's collision with
Thompson was an accident. He argued:
"And as [Thompson] appeared suddenly in front of [Anderson]
without any warning and as he swerved to try to avoid her, this
impact . . . [,] as tragic and devastating as it was, was clearly
unintentional, inadvertent and accidental. And it was not in any way
the application or . . . the use of force to obtain or retain that car. . . .
[T]his force was accidental rather than intentional to steal that
car. . . . This is not a robbery. This is a theft of a car and a terrible
accident."
He further argued: "[T]he hitting was not intended as a use of force against [Thompson]
to take or keep her car. . . . This was an accident. He tried not to hit her. He tried not to
apply force to her." He further argued: "[Anderson] saw no one around, . . . until that last
split second he tried to avoid her. And this was an accident, an accident, an accident."
The trial court instructed with CALCRIM No. 1600 on the elements of robbery,
including the element that "[t]he defendant used force or fear to take the property or to
prevent the person from resisting" and "[t]he use of force or fear can occur with the initial
taking of the property, or it can occur while the defendant attempts to get away with the
stolen property." However, Anderson's counsel did not request an instruction, and the
court did not instruct sua sponte, on the defense of accident (e.g., CALCRIM No. 3404).
The trial court instructed with CALCRIM No. 540A on the offense of felony murder,

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stating that: "A person may be guilty of felony murder even if the killing was
unintentional, accidental, or negligent."
B
Section 26 provides: "All persons are capable of committing crimes except those
belonging to the following classes: [¶] . . . [¶] Five--Persons who committed the act or
made the omission charged through misfortune or by accident, when it appears that there
was no evil design, intention, or culpable negligence." (Italics added.) "The accident
defense amounts to a claim that the defendant acted without forming the mental state
necessary to make his or her actions a crime. [Citations.]" (People v. Lara (1996) 44
Cal.App.4th 102, 110.)
"[E]ven in the absence of a request, a trial court must instruct on general principles
of law . . . commonly or closely and openly connected to the facts before the court and
. . . necessary for the jury's understanding of the case. [Citations.]" (People v. Montoya
(1994) 7 Cal.4th 1027, 1047.) A trial court has a duty to instruct sua sponte on a defense
if the defendant appears to be relying on that defense or if there is substantial evidence to
support that defense and the defense is not inconsistent with the defendant's defense
theory. (People v. Gonzales (1999) 74 Cal.App.4th 382, 389 (Gonzales); People v.
Breverman (1998) 19 Cal.4th 142, 157 (Breverman).) CALCRIM No. 3404 sets forth the
standard instruction on the defense of accident:
"<General or Specific Intent Crimes>
"[The defendant is not guilty of ______<insert crime[s]> if (he/she)
acted [or failed to act] without the intent required for that crime, but

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acted instead accidentally. You may not find the defendant guilty of
______<insert crime[s]> unless you are convinced beyond a
reasonable doubt that (he/she) acted with the requisite intent.] . . ."2
"If the crime charged requires general criminal intent, then the defense should apply to
acts committed 'through misfortune or by accident, when it appears there was no . . .
[general intent] . . . ,' [citation] . . . ." (People v. Lara, supra, 44 Cal.App.4th at p. 110.)
Although robbery generally may be considered a specific intent crime in that it
requires a specific intent to permanently deprive the victim of his or her property (In re
Albert A., supra, 47 Cal.App.4th at p. 1007), robbery also requires a secondary mental
state equivalent to a general intent to commit the act of using force or fear against the
victim to accomplish the initial taking of the property or retaining it during the
defendant's escape or asportation of the property. Section 211 defines robbery as: "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."
(Italics added.)
2 Because robbery is a qualifying general or specific intent crime, we omit the
alternative instruction that applies when the charged offense is a criminal negligence
crime. Lara stated: "If the crime charged requires general [or specific] criminal intent,
then the [accident] should apply to acts committed 'through misfortune or by accident,
when it appears there was no . . . [general or specific intent] . . . ,' (§ 26, subd. Five)
regardless of whether the defendant was criminally negligent. [¶] Where, as here, the
defendant is charged with a general [or specific] intent crime, instruction on 'criminal
negligence' [or 'culpable negligence'] is erroneous." (People v. Lara, supra, 44
Cal.App.4th at p. 110, italics added.) Accordingly, because robbery is not a criminal
negligence crime, section 26's exception to the accident defense when the evidence shows
the defendant acted with "culpable negligence" cannot apply in this case. (Lara, at
pp. 108-110; CALCRIM No. 3404 (Fall 2008 ed.), Bench Notes, p. 877.)

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Courts have described the required mental state regarding the use of force or fear
in various ways. The California Supreme Court stated: "[T]he act of force or intimidation
by which the taking is accomplished in robbery must be motivated by the intent to steal
. . . ." (People v. Green (1980) 27 Cal.3d 1, 54, italics added, overruled on another
ground in People v. Hall (1986) 41 Cal.3d 826, 834, fn. 3.) Green alternatively stated:
"[T]he defendant's wrongful intent and his physical act must concur in the sense that the
act must be motivated by the intent." (Green, at p. 53.) In Miller v. Superior Court
(2004) 115 Cal.App.4th 216, we stated: "Circumstances otherwise constituting a mere
theft will establish a robbery where the perpetrator peacefully acquires the victim's
property, but then uses force to retain or escape with it." (Id. at p. 222, italics added.)
Likewise, the California Supreme Court noted: "[M]ere theft becomes robbery if the
perpetrator, having gained possession of the property without use of force or fear, resorts
to force or fear while carrying away the loot. [Citations.]" (People v. Cooper (1991) 53
Cal.3d 1158, 1165, fn. 8, italics added.) Another court stated: "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." (People v. Estes (1983) 147 Cal.App.3d 23,
28, italics added.) The California Supreme Court stated: "[T]he central element of the
crime of robbery [is] the force or fear applied to the individual victim . . . to deprive him
of his property." (People v. Ramos (1982) 30 Cal.3d 553, 589, italics added.) Citing
Ramos, that court recently stated: "That deprivation of property occurs whether a

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perpetrator relies on force or fear to gain possession or to maintain possession against a
victim who encounters him for the first time as he carries away the loot." (People v.
Gomez, supra, 43 Cal.4th at p. 265, italics added.) A more apt description of the force or
fear requirement for robbery was set forth in People v. Flynn (2000) 77 Cal.App.4th 766:
"[T]he willful use of [force or] fear to retain property immediately after it has been taken
from the owner constitutes robbery." (Id. at p. 772, italics added.)
Regardless of the phraseology used by various courts in describing the defendant's
mental state for the use of force or fear required for robbery, we conclude section 211's
requirement of the use of force or fear in accomplishing the taking of the property or in
retaining the property during asportation or escape in effect requires a purposeful or
willful act involving a general intent to use force or fear to initially take property or
thereafter retain the stolen property during asportation or escape. Absent that purposeful
or willful use of force, a robbery is not committed. Accordingly, if a defendant only
accidentally strikes or otherwise accidentally applies force or fear against a victim, that
force or fear is insufficient to meet section 211's implicit general intent requirement for
the use of force or fear to accomplish the taking of the victim's property.
Under the above interpretation of section 211 regarding the required general intent
for use of force or fear in committing a robbery, a section 26 defense of accident would
necessarily apply when a defendant only accidentally strikes his or her victim during
asportation of stolen property. In a case in which there is substantial evidence to support
a defense theory of accident, the trial court has a duty to instruct sua sponte on that

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defense. (Gonzales, supra, 74 Cal.App.4th at p. 389; Breverman, supra, 19 Cal.4th at
p. 157.)
C
Anderson asserts that because there was substantial evidence to support his
defense theory that he accidentally struck Thompson, the trial court erred by not
instructing sua sponte on the defense of accident. Anderson testified at trial that he did
not see Thompson (or anyone else) as he drove toward and around the closing gate. After
he passed around the gate, he first saw Thompson standing only 8 to 10 feet away in front
of the car. Believing he did not have sufficient time to stop the car, he swerved to the left
in an attempt to avoid her. Although the car struck and ran over her, Anderson testified
he did not intend to do so. In closing argument, Anderson's counsel argued Anderson
saw Thompson only at the last second and tried to not hit her. He argued the collision
was accidental and not an intentional use of force or fear to steal her car. Therefore, he
argued that the force or fear element of robbery had not been proved. Based on our
review of the record, we conclude there was substantial evidence to support the defense
of accident to the charge of robbery and that defense was not inconsistent with
Anderson's defense theory (and Anderson, in fact, relied on that defense theory).
(Gonzales, supra, 74 Cal.App.4th at p. 389; Breverman, supra, 19 Cal.4th at p. 157.)
Although the People apparently assert Anderson's testimony regarding the accidental
nature of the collision should be disregarded as self-serving, "the trial court does not
determine the credibility of the defense evidence, but only whether 'there was evidence

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which, if believed by the jury, was sufficient to raise a reasonable doubt . . . .'
[Citations.]" (People v. Salas (2006) 37 Cal.4th 967, 982-983.) Accordingly, the trial
court could not disregard Anderson's purported self-serving testimony in determining
whether there was substantial evidence to support an instruction on the defense of
accident. We conclude the trial court had a duty to instruct sua sponte on the defense of
accident to the charge of robbery. (Gonzales, at p. 389; Breverman, at p. 157.) By not so
instructing, the court erred.
D
Because the trial court erred by not instructing sua sponte on the defense of
accident, we must determine whether that error was prejudicial and requires reversal of
his robbery conviction, and his felony murder conviction and the special circumstance
finding based on that robbery. The parties do not cite, and we have not found, any United
States Supreme Court or California Supreme Court case deciding the question of whether
a failure to instruct sua sponte on a defense in a criminal case violates any provision of
the United States Constitution (e.g., right to present a defense, right to a jury trial, right to
due process, etc.), which would require application of the Chapman v. California (1967)
386 U.S. 18 test for prejudice (i.e., reversal required unless error was harmless beyond a
reasonable doubt) instead of the People v. Watson (1956) 46 Cal.2d 818 test for prejudice
(i.e., reversal not required unless it is reasonably probable the defendant would have
obtained a more favorable result had the error not occurred). In fact, the California
Supreme Court recently noted it had yet to decide which standard of prejudice should be

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applied when a trial court errs by not instructing sua sponte on a defense. (People v.
Salas, supra, 37 Cal.4th at p. 984 ["We have not yet determined what test of prejudice
applies to the failure to instruct on an affirmative defense. [Citation.]"].) Nevertheless,
in People v. Corning (1983) 146 Cal.App.3d 83, we applied the Watson standard of
prejudice (without considering first whether the Chapman standard should apply) in
concluding the trial court's failure to instruct on the defense of accident was harmless
error. (Corning, at p. 89.) More recently, in People v. Russell (2006) 144 Cal.App.4th
1415, another appellate court stated: "Error in failing to instruct on the mistake-of-fact
defense is subject to the harmless error test set forth in [Watson]." (Id. at p. 1431.)
We need not decide whether the Chapman or Watson standard for prejudicial error
applies to the failure of a trial court to instruct sua sponte on the defense of accident
because we conclude that under either standard the error here was prejudicial. (People v.
Simon (1995) 9 Cal.4th 493, 506, fn.11 [no need to decide whether Chapman standard of
prejudice applied because reversal was required under Watson standard]; Gonzales,
supra, 74 Cal.App.4th at p. 391 [same].) Applying the Watson standard of prejudice, we
conclude that, based on our review of the entire record, it is reasonably probable
Anderson would have obtained a more favorable result had the trial court instructed on
the defense of accident to the charge of robbery.
In reaching our conclusion, we believe the jurors were likely confused regarding
the viability of Anderson's accident defense to the charge of robbery because the trial
court did not instruct with CALCRIM No. 3404 on the defense of accident, but

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nevertheless instructed with CALCRIM No. 540A on the offense of felony murder,
stating that: "A person may be guilty of felony murder even if the killing was
unintentional, accidental, or negligent." (Italics added.) Absent a specific instruction
expressly stating the defense of accident may apply to the charge of robbery, the jury
likely inferred that the principle set forth in CALCRIM No. 540A regarding felony
murder also applied to robbery. The jury in this case likely believed that if an accidental
killing cannot be a defense to felony murder, an accidental killing by use of force or fear
in accomplishing a robbery likewise cannot be a defense to a robbery charge. As
Anderson argues on appeal, "[a] lay juror would have to be exceptionally astute to
recognize on his own that though accident was not a defense to the felony murder
[charge], it was a defense to the underlying robbery on which the felony murder was
based."
Neither Anderson's testimony nor his counsel's closing argument that his collision
with Thompson was accidental (and therefore he did not use force or fear to take or retain
her car as required for robbery) was a sufficient substitute for an instruction by the trial
court on the defense of accident. (Taylor v. Kennedy (1978) 436 U.S. 478, 488-489
[arguments of counsel cannot substitute for instructions by the court]; People v. Miller
(1996) 46 Cal.App.4th 412, 426, fn. 6, disapproved on another ground in People v.
Cortez (1998) 18 Cal.4th 1223, 1240; Morales v. Woodford (9th Cir. 2004) 388 F.3d
1159, 1170.)

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Based on the evidence and the length of the jury's deliberations, we further
conclude this case was a "close" case. The jury deliberated for more than one day before
reaching a verdict. The jury was presented with evidence showing Anderson was a
methamphetamine addict who obtained money to maintain his drug habit by committing
nonviolent offenses (e.g., breaking into cars to steal valuables inside). Furthermore,
although Anderson broke into and stole Thompson's car, the prosecution's theory was that
he apparently did so to drive Lyle to a location for their planned romantic rendezvous.
There was strong evidence Anderson did not, and could not, see Thompson
standing in the dark behind the gate as he drove her car around the closing gate. The car's
headlights were off and visibility through the gate was obscured, as Gonzalez testified.
Anderson testified he did not see Thompson until the last second and then tried to avoid
striking her by turning sharply to the left. Thompson's mother testified that her telephone
conversation with her daughter ended abruptly after Thompson shouted, "[h]ere comes
my car real fast." Furthermore, it is doubtful Anderson had any compelling reason to
purposefully strike and run over Thompson with the car. There was substantial, if not
overwhelming, evidence to support Anderson's defense theory of accident. "When a
defense is one that negates proof of an element of the charged offense, the defendant need
only raise a reasonable doubt of the existence of that fact. [Citation.]" (Gonzales, supra,
74 Cal.App.4th at p. 390.) Considering our review of the evidence presented at trial,
closing arguments, and the instructions given--and not given--by the trial court, we
conclude the jury likely would have found a reasonable doubt existed whether Anderson

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used force or fear to take Thompson's car or to prevent her from retaking it during his
escape or asportation. The fact the jury implicitly found that element was proved when it
found Anderson guilty of robbery does not show the trial court's instructional error was
harmless. Rather, we conclude it is reasonably probable the jury would have found
Anderson not guilty (or, at least, been unable to reach a unanimous guilty verdict) on the
robbery charge had the trial court instructed sua sponte on the defense of accident.
(People v. Watson, supra, 46 Cal.3d at p. 836.) Accordingly, Anderson's robbery
conviction (count 2) must be reversed. Furthermore, as Anderson asserts, his felony
murder conviction (count 1) and the special circumstance finding, both of which were
based on Anderson's commission of the robbery, must likewise be reversed.
III
Failure to Instruct Sua Sponte on the Defense of Mistake
Anderson contends the trial court erred by not instructing sua sponte on the
defense of mistake to the robbery charge based on his purported mistake of fact that
Thompson was merely a pedestrian rather than the car's owner or possessor. Because we
reverse Anderson's robbery conviction, and his felony murder conviction and the special
circumstance finding based on that robbery, we need not address the merits of this
contention. However, because the People may elect to retry Anderson on those charged
offenses and the special circumstance, we briefly discuss this contention to provide the
trial court with guidance in the event of a retrial.

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As Anderson correctly notes, a robbery may be committed only against a person
who has actual or constructive possession of personal property. (§ 211; People v. Gomez,
supra, 43 Cal.4th at pp. 254, 262; People v. Nguyen (2000) 24 Cal.4th 756, 763-764.)
Accordingly, the force or fear used to accomplish the initial taking or retention during
asportation of the property necessarily must be applied against a person who has actual or
constructive possession of that property. If force or fear is used only against a mere
bystander or other nonpossessor of the property, there can be no robbery, but only a theft
and a possible assault or battery. (People v. Jenkins (2006) 140 Cal.App.4th 805, 811;
Sykes v. Superior Court (1994) 30 Cal.App.4th 479, 481, 484; People v. Cash (2002) 28
Cal.4th 703, 735.) Anderson correctly argues that in this case if the woman he struck
with the car was not Thompson (or another actual or constructive possessor of the car)
and only a mere pedestrian or bystander, he could not have been found guilty of robbery.
However, we disagree with Anderson's attempt to expand the above principle by
applying it to the defense of mistake of fact and in effect create an additional mental state
element for robbery, i.e., that the defendant have knowledge the person against whom
force or fear is used has actual or constructive possession of the property. Section 26
provides: "All persons are capable of committing crimes except those belonging to the
following classes: [¶] . . . [¶] Three--Persons who committed the act or made the
omission charged under an ignorance or mistake of fact, which disproves any criminal
intent." (Italics added.) Anderson does not cite, and we are unaware of, any case holding
robbery requires the defendant have knowledge that the person against whom force or

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fear is used has actual or constructive possession of the property taken. On the contrary,
there is case law holding otherwise. In People v. Prieto (1993) 15 Cal.App.4th 210, the
court stated: "Knowledge of owner [or possessor] identity is not an element of robbery."3
(People v. Prieto, supra, 15 Cal.App.4th at p. 214.) Furthermore, we are unpersuaded by
Anderson's argument that such a knowledge requirement is (or should be) an element of
robbery. Therefore, because any purported mistake of fact by a defendant whether the
person against whom force or fear is used had actual or constructive possession of the
property taken would not "disprove[] any criminal intent" or required mental state for
robbery, it cannot provide a defense to robbery. We reject Anderson's assertion that a
"defendant's mistake of fact as to whether the person has a possessory interest is a
defense" to robbery.
In the circumstances of this case, assuming arguendo there was substantial
evidence to support a finding that Anderson believed Thompson was merely a pedestrian
and had no possessory interest in the car, we conclude the trial court did not have any
duty to instruct sua sponte on the defense of mistake of fact. Any such mistaken belief or
lack of knowledge regarding the possessory interest of the person against whom force or
fear is used does not constitute a defense to robbery. The cases cited by Anderson are
3 Anderson's attempt to narrowly interpret or distinguish Prieto is unpersuasive. In
the context of a charged robbery, Prieto's stated principle logically applies to an actual or
constructive possessor of property who may not be the property's actual owner.
Likewise, although Anderson argues we should not follow Prieto's statement because it is
dictum, we nevertheless agree with Prieto's statement and conclude it accurately sets
forth a sound legal principle regarding the crime of robbery.

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inapposite and do not persuade us to reach a contrary conclusion. (See, e.g., People v
Russell, supra, 144 Cal.App.4th 1415; People v. Dominguez (2006) 39 Cal.4th 1141.)
Accordingly, the trial court did not err by not instructing sua sponte on the defense of
mistake of fact.
IV
Instruction That Intent to Take Property Must Be Formed
Before or During Use of Force or Fear
Anderson contends the trial court erred by instructing on robbery that the requisite
intent to take may be formed before the defendant used force or fear. Because we reverse
Anderson's robbery conviction and his felony murder and the special circumstance
finding based on that robbery, we need not address the merits of this contention.
However, because the People may elect to retry Anderson on those charged offenses and
the special circumstance, we briefly discuss this contention to provide the trial court with
guidance in the event of a retrial.
The court instructed with CALCRIM No. 1600 on robbery, which states in
pertinent part:
"The defendant's intent to take the property must have been formed
before or during the time he used force or fear. If the defendant did
not form this required intent until after using the force or fear, then
he did not commit robbery." (Italics added.)
Anderson argues that instruction conflicted with the instruction that the defendant used
force or fear to take the property or to prevent the person from resisting (i.e., the
requirement that the use of force or fear be purposeful). We are not persuaded by his

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argument that the court's instruction with CALCRIM No. 1600 is internally inconsistent
and misled or confused the jury regarding the elements of robbery. Furthermore, the
instruction Anderson challenges is a correct statement of the law. In People v. Marshall
(1997) 15 Cal.4th 1, the California Supreme Court stated: "To support a robbery
conviction, the evidence must show that the requisite intent to steal arose either before or
during the commission of the act of force [or fear]. [Citation.]" (Id. at p. 34, italics
added.) Likewise, that court previously stated: "[A] conviction of robbery cannot be
sustained in the absence of evidence that the defendant conceived his intent to steal either
before committing the act of force against the victim, or during the commission of that
act; if the intent arose only after the use of force against the victim, the taking will at
most constitute a theft. [Citation.]" (People v. Morris (1988) 46 Cal.3d 1, 19,
disapproved on another ground in In re Sassounian (1995) 9 Cal.4th 535, 545, fn. 6.) We
conclude the trial court did not err by instructing with CALCRIM No. 1600 on robbery
that the defendant's intent to take the property must have been formed before or during
the time he used force or fear.
V
Convictions on Both Counts 2 and 3
Anderson contends he was wrongly convicted of both robbery (count 2) and
receiving stolen property (count 3). He argues that because the stolen items he allegedly
received (i.e., Thompson's purse with check card and driver's license) were taken at the
same time he took Thompson's car, he cannot be convicted of both taking and receiving

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those items. Because we reverse Anderson's robbery conviction (count 2) on other
grounds, we need not necessarily address the merits of this contention. However,
because the People may elect to retry Anderson on the robbery charge (count 2), we
briefly discuss this contention to provide the trial court with guidance in the event of a
retrial and potential conviction on that count.
The theft of several items at one time constitutes just one taking offense. (People
v. Dominguez, supra, 38 Cal.App.4th at p. 420; People v. Bauer (1969) 1 Cal.3d 368,
378.) Furthermore, a principal in a theft of property may not be convicted of both the
theft of and receiving the same property. (§ 496, subd. (a); People v. Allen (1999) 21
Cal.4th 846, 857.) Because robbery consists of a theft of property and use of force or fear
in accomplishing that theft, the prohibition against dual convictions of theft of and
receiving stolen property also applies to dual convictions of robbery and receiving stolen
property that involve the same act of taking. (People v. Stephens (1990) 218 Cal.App.3d
575, 577, 587.)
As the People note, one exception to the general bar against dual convictions is
where the act of receiving is completely divorced from the theft (e.g., where the thief
disposes of the property and in a separate transaction receives it again). (People v. Smith
(2007) 40 Cal.4th 483, 522, fn. 10; People v. Strong (1994) 30 Cal.App.4th 366, 371, fn.
5.) However, the evidence presented at Anderson's trial did not involve that exception.
Rather, the evidence showed Anderson took the car and the contents (e.g., Thompson's
purse with her check card and driver's license) at the same time. When he later

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abandoned the car, he looked in Thompson's purse, took her check card and driver's
license from the purse, and then walked to Lyle's home. During the next few days,
Anderson repeatedly attempted to use the check card. Anderson's abandonment of the car
after he purportedly reached a place of temporary safety did not sufficiently divorce his
initial taking of the check card and driver's license at the time of the car theft from his
subsequent attempts to use the check card for purposes of the Smith exception to the
general rule against dual convictions. There was no "complete divorcement" between the
initial taking and his subsequent use or receiving of the check card and driver's license.
(People v. Smith, at p. 522, fn. 10; People v. Strong, at p. 371, fn. 5.) Rather than
disposing of those items and then reacquiring them in a separate transaction, Anderson
continuously retained possession of those items from the time of their initial taking until
his subsequent attempts to use them. Because the exception to the general rule against
dual convictions does not apply, we conclude the general rule applies to bar Anderson's
conviction of both robbery (count 2) and receiving stolen property (count 3). (Cf. People
v. Stephens, supra, 218 Cal.App.3d at pp. 586-587.) In the event the People elect to retry
Anderson on count 2, he may not be convicted of both counts 2 and 3 (absent new
evidence showing a complete divorcement regarding the stolen items received). In the
event the People do not elect to retry Anderson on count 2, the trial court shall confirm
his conviction on count 3.

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VI
Correction of Minutes
Anderson contends the trial court's minutes should be corrected to specify that his
robbery conviction (count 2) was of the second degree. However, because we reverse
that conviction, we need not address the merits of this contention. Nevertheless, in the
event Anderson is retried and convicted on count 2, the court's minutes need not
expressly specify that such conviction is of the second degree because that conviction
will be presumed to be of the second degree unless it is expressly stated to be of the first
degree. (§ 1157; In re Birdwell (1996) 50 Cal.App.4th 926, 928-931.) Section 1157
provides: "Whenever a defendant is convicted of a crime or attempt to commit a crime
which is distinguished into degrees, the jury, or the court if a jury trial is waived, must
find the degree of the crime or attempted crime of which he is guilty. Upon the failure of
the jury or the court to so determine, the degree of the crime or attempted crime of which
the defendant is guilty, shall be deemed to be of the lesser degree." Accordingly, unless
the jury expressly finds Anderson guilty of first degree robbery, a robbery conviction is
"deemed to be of the lesser [second] degree." (§ 1157.) Anderson does not cite, and we
are unaware of, any case or other authority requiring a trial court's minutes to specify that
a conviction of an offense is of the second or lesser degree where section 1157 applies to
confirm that lesser degree.

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DISPOSITION
The defendant's convictions on counts 1 and 2 and the special circumstance
finding are reversed. In all other respects, the judgment is affirmed. The People shall
have 60 days after remittitur to the trial court to inform the court whether they will retry
the defendant on all or part of the counts and special circumstance alleged in the
information. In the event the People do not timely elect to retry the defendant, the trial
court shall confirm the defendant's original conviction on count 3 and resentence him.
McDONALD, Acting P. J.
WE CONCUR:
O'ROURKE, J.
IRION, J.

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