Filed 10/6/21 P. v. Smith CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

BRANDON SMITH,

Defendant and Appellant.

 D077847

 (Super. Ct. No. SCD278660)

APPEAL from a judgment of the Superior Court of San Diego County, 

Michael S. Groch, Judge. Affirmed in part; reversed in part; sentence 

modified.

William P. Melcher, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Matthew Rodriquez, Acting Attorney General, Lance E. Winters, 

Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney 

General, A. Natasha Cortina and Alan L. Amann, Deputy Attorneys General, 

for Plaintiff and Respondent.
2

I.

INTRODUCTION

A jury found Brandon Smith guilty of two counts of robbery (Pen. Code, 

§ 211,1 counts 1 & 2) and one count of petty theft (§ 484, count 4).2 Smith 

committed the crimes with his brother and codefendant, Anthony Watson.3

Smith admitted having suffered two strike priors (§§ 667, subds. (b)–(i), 668, 

1170.12), a serious felony prior (§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)), 

and two prison priors (§§ 667.5, subd. (b), 668).

At sentencing, the trial court struck one of the strike priors, and 

sentenced Smith to a total of 19 years in prison, consisting of 10 years on 

count 1—the upper term of five years doubled because of the remaining strike 

prior, a consecutive two years for count 2, calculated at one-third the 

midterm doubled due to the strike, a consecutive five years for the serious 

felony prior, and two consecutive one-year terms for the prison prior 

enhancements. The court sentenced Smith to “time served” on count 4.

1 Unless otherwise specified, all subsequent statutory references are to 

the Penal Code.

2 The jury found Smith not guilty of an additional count of petty theft 

(§ 484) charged in count 3.

3 We affirmed the judgment as to Watson in People v. Watson (Apr. 8, 

2021, D076475) [nonpub. opn.].
3

II.

FACTUAL BACKGROUND

A. Appletree Market theft (Count 4)4

One afternoon in July 2018, Watson and Smith were checking out at 

the Appletree Market. After the cashier opened the register, both men 

reached over the counter and started grabbing money. They then fled the 

store.

B. Yum Yum Yo robbery (Count 2)

One afternoon in August 2018, Watson and Smith walked into a 

sandwich shop called Yum Yum Yo. Smith ordered a sandwich and handed 

the shop owner, K.D., a five-dollar bill. When K.D. opened the register, both 

men reached over the counter and started to grab money. K.D. was scared. 

K.D. attempted to close the drawer to the register, but was unable to 

immediately do so because Watson’s and Smith’s hands were inside the 

drawer. The men fled the shop with money from the register.

C. GameStop robbery (Count 1)

Approximately two weeks after the Yum Yum Yo robbery, Watson and 

Smith were at a store that sells video games called GameStop.5 One of the 

men told the store’s assistant manager, J.F., that he wanted to purchase a 

video game. After J.F. retrieved the game from behind the counter, J.F. 

opened the cash register to complete the sale. Watson and Smith 

immediately reached over the register and began to grab money from it.

4 We discuss the offenses in the chronological order in which they were 

committed.

5 In the record, the store is referred to as “Game Stop”; we use the proper 

name of the business, “GameStop.”
4

While taking the money with one hand, Watson grabbed J.F.’s wrist 

with his other hand and “pinned” it against the side of the cash register. J.F. 

grabbed Watson’s hand to try to stop him. After a brief struggle, Watson 

broke free from J.F.’s grasp and followed Smith out of the store with money 

that they had stolen. J.F. sustained a minor injury to his hand during the 

incident.

III.

DISCUSSION

A. The prosecutor’s closing argument and the trial court’s jury instructions 

did not erroneously allow the jury to find Smith guilty of the Yum Yum Yo 

robbery merely upon a finding that the defendants were guilty of petty 

theft

Smith contends, “The prosecutor’s closing argument, coupled with an 

ambiguity in [the] trial court’s instructions, erroneously and prejudicially 

allowed the jury to find appellant guilty of robbery on count two [the Yum 

Yum Yo robbery] if the jury found both defendants were guilty of the target 

offense of petty theft, a legally invalid theory in this case.” (Boldface 

omitted.)

We review Smith’s claim de novo.6 (See People v. Uribe (2011) 

199 Cal.App.4th 836, 860 [a claim of prosecutorial error is reviewed 

independently]; People v. Mitchell (2019) 7 Cal.5th 561, 579 [“An appellate 

court reviews the wording of a jury instruction de novo and assesses whether 

the instruction accurately states the law”].)

6 The People contend that Smith forfeited this claim by failing to object 

in the trial court to either the prosecutor’s argument or to the court’s jury 

instruction. Notwithstanding Smith’s possible forfeiture, we exercise our 

discretion to consider the substance of Smith’s claim.
5

1. Factual and procedural background

a. The jury instruction on the natural and probable consequences 

doctrine

At trial, while the trial court was instructing the jury, the court 

excused the jury from the courtroom for a recess. During the recess, the 

following colloquy occurred:

“The court: [W]e’re outside the presence of the jury. I 

stopped at [CALCRIM] instruction [number] 403 because 

I’m concerned about confusion with the jury. [¶] [CALCRIM 

No.] 403 reads: Before you may decide whether the 

defendant is guilty of robbery, you must decide that he is 

guilty of petty theft. And then it goes on to a natural and 

probable consequences discussion.

“That’s true in terms of aiding and abetting, it’s not true in 

terms of straight and direct liability. So perhaps it should 

be modified to say on an aiding and abetting theory, before 

you decide whether a defendant is guilty of robbery.

“[The prosecutor]: Your Honor, my intention was to argue 

this . . . as it relates to a conspiracy theory. And I was 

precluded from -- my request for conspiracy instructions, 

which I believe the evidence supports, was denied. But 

that is what I believe this instruction really related to, 

because they were both direct perpetrators in petty theft in 

certain incidents, or two incidents of alleged robbery.

“They were both direct perpetrators in committing the 

petty theft, and then one committed a robbery. So I need --

I still think the conspiracy instructions apply.

“The court: Well, I understand your disagreement with me 

over conspiracy, and we’ve addressed that. The question is 

as it applies to aiding and abetting, whether this 

instruction [CALCRIM No.] 403 should be given or not, or 

modified.

“[The prosecutor]: I don’t believe that it should be modified.
6

“The court: Either counsel want to weigh in?

“[Watson’s counsel]: No, thank you, Your Honor. 

Submitted.

“[Smith’s counsel]: Submitted, Your Honor.

“The court: [CALCRIM No.] 403 is in the aiding and 

abetting section of the instructions, not the conspiracy 

instructions. It is a correct statement of the law, but one 

could read the instruction, not knowing about how chapters 

in CALCRIM work, and think they have to make this 

finding before finding the defendants guilty of robbery on a 

direct liability theory.

“If nobody is concerned about that than me, that’s fine. It 

sounds like I’m standing alone, so I’ll leave the instructions 

as given.”

After the recess, the jury returned, and the trial court continued 

instructing the jury. The trial court instructed the jury concerning the 

natural and probable consequences doctrine pursuant to CALCRIM No. 403 

as follows:

“Before you may decide whether a defendant is guilty of 

robbery, you must decide whether he is guilty of petty theft. 

To prove that the defendant is guilty of robbery, the People 

must prove that:

“One, the defendant is guilty of petty theft;

“Two, during the commission of petty theft, a co-participant 

in that petty theft committed the crime of robbery;

“And three, under all of the circumstances, a reasonable 

person in the defendant’s position would have known that 

the commission of robbery was a natural and probable 

consequence of the commission of the petty theft.
7

“A co-participant in a crime is a perpetrator or anyone who 

aided and abetted the perpetrator. It does not include a 

victim or innocent bystander.

“A natural and probable consequence is one that a 

reasonable person would know is likely to happen if 

nothing unusual intervenes. In deciding whether a 

consequence is natural and probable, consider all of the 

circumstances established by the evidence.

“To decide whether the crime of robbery was committed, 

please refer to the separate instructions that I have given 

you on that crime.”

Shortly thereafter, the trial court instructed the jury pursuant to 

CALCRIM Nos. 1600 and 1800 on the elements of robbery and petty theft, 

respectively.

b. The prosecutor’s closing argument

i. The prosecutor’s argument as to the GameStop robbery 

charged in count 1

After the court completed its jury instructions, the prosecutor gave her 

closing argument. While discussing the incident at the GameStop store, the 

prosecutor argued that Watson was guilty of robbery as a direct perpetrator. 

The prosecutor argued that Watson “grabbed [the victim’s] wrist[;] that’s 

force right there.” The prosecutor further argued that Watson “us[ed] force to 

resist [the victim’s] efforts.” After arguing that Watson was guilty of the 

robbery of GameStop as a direct perpetrator, the prosecutor argued that 

Smith was guilty of that robbery as an aider and abettor pursuant to the 

natural and probable consequences doctrine, as follows:

“What about Mr. Smith? Now, you may be saying to 

yourself, well, yes, Mr. Smith was there. He committed a 

theft. He was there at the register, but he’s not the one 

that pinned [the victim’s] hand. He’s not the one that 
8

struggled. Why is he guilty of a robbery? I submit to you 

that Mr. Smith is guilty of a robbery under the natural and 

probable consequences theory. This is an offshoot of the 

aiding and abetting theory that we already talked about.

“To find Mr. Smith guilty under [a] natural and probable 

consequences theor[y], you need to find the following: That 

Mr. Smith committed petty theft. He’s guilty of that. That 

during the commission of that petty theft, Mr. Watson, his 

co-participant in the theft, committed a robbery. And that 

under all of the circumstances, a reasonable person in 

Smith’s position would have known that the commission of 

a robbery was a natural and probable consequence of the 

commission of the petty theft. And what that really means 

is, was it reasonably foreseeable considering all of the 

circumstances?

“So -- and this is not, you know, we’re not talking about 

Smith himself, we’re talking about you. We’re talking 

about objective, reasonable people. Objectively, would a 

reasonable person doing what Smith was doing in all of 

those circumstances know, was it reasonably foreseeable 

that there may be some force that had to be used in order to 

either get that property or to resist the efforts of the victim? 

Absolutely. Again, this is a series of crimes. They 

committed all these crimes together.

“By the time they committed the GameStop crime, they 

already committed the Yum Yum Yo crime two weeks 

earlier and another incident as well, the AM/PM crime was 

before that as well. But the Yum Yum Yo incident itself. 

That’s one where force was used by both of them. They 

were both pushing, the victim was trying to close the cash 

register. You know, absolutely he would have known, a 

reasonable person would have known that, again, you’re 

not in a situation where you’re stealing something off of a 

shelf when no one is looking and walking out of the store.

“You are making a plan to confront the cashier, with his 

hands standing at the register. You’re making a plan to go 

into that person’s personal space, aggressively reaching 
9

over the counter, overcoming their will to resist and getting 

that money.

“Now, you may not intend to hurt them, to use any force at 

all. You may hope that it all goes well, we don’t even have 

to touch these people or that they don’t touch us. But you 

go in there knowing, it is reasonably foreseeable that when 

you reach into someone’s personal space and grab the 

money that belongs to them, there may be some use of 

force. You may have to push that person out of the way. 

You may have to struggle with them if they resist. You 

may have to pull that drawer open if they try to push it 

close[d]. So under the natural and probable consequences 

theory, you can find both of the defendants guilty of 

robbery.”

“So again, as to Mr. Smith, just a reminder, because these 

instructions are a little confusing. Under the verdict, 

Count 1, robbery, you fill in guilty. Leave the other one 

blank. That Count 1 [lesser included offense], don’t touch 

it.” (Italics added.)

ii. The prosecutor’s argument as to the Yum Yum Yo 

robbery charged in count 2

Immediately after presenting her argument as to the GameStop 

robbery charged in count 1, the prosecutor argued that Smith and Watson 

were guilty of the Yum Yum Yo robbery charged in count 2 because both 

defendants used force and fear during that incident. The prosecutor argued 

in part:

“Count 2, Yum Yum Yo. Again, the question is, is this a 

robbery? A reminder of what I already explained to you 

about use of force. The use of force, either to take the 

money or to resist the victim’s efforts to retrieve the 

property or to facilitate the escape both would make this a 

robbery.
10

“The amount of force doesn’t matter. We’re not talking 

about an assault here, we’re talking about an amount of 

force that’s enough to overcome the victim’s resist[a]nce. 

Now, in this particular incident, I’m submitting to you that 

both, there was the use of force and there was the use of 

fear. You only need one, use of force or fear, to support a 

robbery conviction, but in this case we actually have both.”

The prosecutor continued by arguing that Smith and Watson both used 

force and fear to commit count 2. For example, with respect to the use of 

force, the prosecutor argued:

“[T]hey used force to push against the drawer and keep it 

open. [The victim] didn’t close that drawer and then they 

said, oh, [the victim] resisted, let’s leave. They resisted her 

efforts. When [the victim] tried to close the drawer, they 

tried to keep it open. They used the weight of their bodies, 

their force to get that money, despite the fact that [the 

victim’s] resisting. And there was a struggle over the 

drawer. [The victim] said she felt the force of the drawer 

being pushed back at her. [The victim] said she tried to 

close it a second time, unsuccessfully.

“They struggled over the drawer, going back and forth. 

And you can see that in the video clearly. Again, it is a 

very short video. This all happened very fast, but you can 

see there is a struggle, there’s a use of force. [The victim is] 

trying to resist. [The victim is] trying to keep her money 

that belongs to her, and they are resisting her. And there’s 

force going back and forth with the drawer.”

The prosecutor further argued, “[t]hey also used fear in this incident.” 

The prosecutor argued in part:

“Both of them reach over at the same time, into her 

personal space, aggressively, right in front of her face. 

Those are the circumstances. And again, you may infer 

fear from the circumstances. This is not taking a piece of 

property off of a shelf and walking out with it. This isn’t 

even just taking the money in the register while the clerk is 
11

preoccupied, and doesn’t even know it is happening. This 

is, she is standing there face-to-face, and these two 

gentlemen, both a lot bigger and a lot taller and a lot 

stronger than she is, reaching into her space and taking

things from her. This is a robbery.”

2. Governing law

a. The natural and probable consequences doctrine

“Aider-abettor liability exists when a person who does not directly 

commit a crime assists the direct perpetrator by aid or encouragement, with 

knowledge of the perpetrator’s criminal intent and with the intent to help 

him carry out the offense.” (People v. Miranda (2011) 192 Cal.App.4th 398, 

407.) “Under the natural and probable consequences doctrine, an aider and 

abettor is guilty of not only the offense he intended to facilitate or encourage, 

but also of any reasonably foreseeable offense committed by the actual 

perpetrator. The defendant’s knowledge that an act which is criminal was 

intended, and his action taken with the intent that the act be encouraged or 

facilitated, are sufficient to impose liability on him for any reasonably 

foreseeable offense committed as a consequence by the perpetrator.” (Id. at 

pp. 407–408.)

b. Prosecutorial error

“[I]t is improper for [a] prosecutor to misstate the law.” (People v. 

Marshall (1996) 13 Cal.4th 799, 831 (Marshall).) “A defendant asserting 

prosecutorial misconduct must further establish a reasonable likelihood the 

jury construed the remarks in an objectionable fashion.” (People v. Duff

(2014) 58 Cal.4th 527, 568 (Duff).)
12

c. The law governing error in jury instructions

“When considering a claim of instructional error, we view the 

challenged instruction in the context of the instructions as a whole and the 

trial record to determine whether there is a reasonable likelihood the jury 

applied the instruction in an impermissible manner.” (People v. Houston

(2012) 54 Cal.4th 1186, 1229.) In that context, we must then “determine 

whether it is reasonably likely the jurors understood the instruction[s] as 

[defendant] suggests. [Citation.] In making that determination, we must 

consider several factors including the language of the instruction in question 

[citation], the record of the trial [citation], and the arguments of counsel.” 

(People v. Nem (2003) 114 Cal.App.4th 160, 165.)

3. Application

In his brief, Smith quotes a portion of the prosecutor’s closing argument 

pertaining to the GameStop robbery charged in count 1 that ends with the 

line, “So under the natural and probable consequences theory, you can find 

both of the defendants guilty of robbery.”7 Smith argues, “As to count two . . . 

the prosecutor argued to the jury that by finding petty theft occurred, it 

could, as a natural and probable consequence, find both defendants guilty of 

robbery.” (Italics added.) We are unpersuaded.

The prosecutor’s statement on which Smith bases his claim pertained 

to count 1, the GameStop robbery, not count 2, the Yum Yum Yo robbery. 

(See pt. III.A.1.b.i.) As to the Yum Yum Yo robbery, the prosecutor argued 

that both Smith and Watson were guilty of the robbery as direct perpetrators; 

the prosecutor never argued that either defendant was guilty of count 2 as an 

aider and abettor pursuant to the natural and probable consequences 

7 The relevant portions of the prosecutor’s argument are quoted in part 

III.A.1.b.i, ante.
13

doctrine. (See pt. III.A.1.b.ii, ante.) Thus, Smith’s claim that the prosecutor’s 

closing argument, when combined with the court’s natural and probable 

consequences jury instruction (CALCRIM No. 403), erroneously permitted 

the jury to find him guilty of count 2 pursuant to an invalid application of the 

natural and probable consequences doctrine, is entirely without merit.

Even if Smith’s argument is applied to count 1, the GameStop robbery, 

his prosecutorial error argument fails because, when the prosecutor’s 

argument is considered in full, it is clear that the prosecutor was arguing 

that Watson was guilty of the GameStop robbery as a direct perpetrator, and 

that Smith was guilty of the GameStop robbery as an aider and abettor 

pursuant to the natural and probable consequences doctrine. Stated 

differently, there is no “reasonable likelihood” that the jury construed the 

prosecutor to be arguing that both defendants were guilty of the GameStop 

robbery as aider and abettors pursuant to the natural and probable 

consequences theory. (Duff, supra, 58 Cal.4th at p. 568.)

In addition, the prosecutor never stated that either defendant could be 

found guilty of a robbery without at least one of the coparticipants having 

committed a robbery, and the other elements of the natural and probable 

consequences doctrine being met. On the contrary, in arguing Smith’s guilt 

pursuant to the natural and probable consequences doctrine for the 

GameStop robbery, the prosecutor echoed CALCRIM No. 403, and told the 

jury that it was required to find that “during the commission of that petty 

theft, Mr. Watson, his co-participant in the theft, committed a robbery.” In 

short, the prosecutor did not commit prosecutorial error by “misstat[ing] the 

law.” (Marshall, supra, 13 Cal.4th at p. 831.)
14

With respect to Smith’s jury instruction claim,8 even if that argument 

is applied to count 1, CALCRIM No. 403 is a correct statement of the law, and 

Smith does not identify any infirmity in the instruction. While the trial court 

expressed its concern that the jury might think that it had to find that the 

elements of CALCRIM No. 403 were met before finding the defendants guilty 

under a direct liability theory,9 that is an ambiguity that could have only 

made it more difficult for the jury to find the defendants guilty. Thus, any 

such ambiguity could not possibly have prejudiced either defendant. (See

People v. Lee (1999) 20 Cal.4th 47, 52 [“Defendant may not complain on 

appeal about errors favorable to him”].)

The trial court never suggested that it was concerned that the jury 

might apply CALCRIM No. 403 to find the defendants guilty of robbery

without finding that one of them committed a robbery, and Smith does not 

point to any language in the instruction that would permit such a result. On 

the contrary, the court expressly instructed the jury that in order to find a 

defendant guilty of robbery pursuant to the natural and probable 

consequences doctrine, the jury was required to find, among other elements 

8 Smith’s jury instruction claim is that the prosecutor’s closing 

argument, when made in connection with CALCRIM No. 403 was “bound to 

confuse the jury.” As explained in the text, the statement from the 

prosecutor’s closing argument on which Smith bases his claim—“under the 

natural and probable consequences theory, you can find both of the 

defendants guilty of robbery”—is a statement that the prosecutor made with 

respect to count 1, rather than count 2.

9 Specifically, as noted in part III.A.1.a, ante, after referring to 

CALCRIM No. 403 outlining the elements of guilt under the natural and 

probable consequences doctrine, the trial court stated that the jury might 

think that “they have to make this finding before finding the defendants 

guilty of robbery on a direct liability theory.”
15

that “a co-participant in that petty theft committed the crime of robbery.” 

Thus, Smith’s claim that the trial court erred in instructing the jury 

concerning the natural and probable consequences doctrine is without merit.

Accordingly, we conclude that the prosecutor’s closing argument and 

the trial court’s jury instructions did not erroneously allow the jury to find 

Smith guilty of the Yum Yum Yo robbery—or the GameStop robbery—merely 

upon a finding that the defendants were guilty of petty theft.

B. Defense counsel did not provide ineffective assistance in failing to object to 

the trial court’s jury instruction and the prosecutor’s argument concerning 

the natural and probable consequences doctrine

Smith claims that his counsel provided ineffective assistance in failing 

to object to the trial court’s giving CALCRIM No. 403 and the prosecutor’s 

closing argument pertaining to the natural and probable consequences 

doctrine.

1. Governing law

To establish a claim of ineffective assistance of counsel, a defendant 

must show that counsel’s performance was deficient in that it “fell below an 

objective standard of reasonableness,” evaluated “under prevailing 

professional norms.” (Strickland v. Washington (1984) 466 U.S. 668, 688; 

accord People v. Ledesma (1987) 43 Cal.3d 171, 216.) The defendant must 

also show that it is reasonably probable that a more favorable result would 

have been reached absent counsel’s deficient performance. (Strickland, at 

p. 694.)

“When examining an ineffective assistance claim, a reviewing court 

defers to counsel’s reasonable tactical decisions, and there is a presumption 

counsel acted within the wide range of reasonable professional assistance.” 

(People v. Mai (2013) 57 Cal.4th 986, 1009.) Thus, “[w]hen the record on 

direct appeal sheds no light on why counsel failed to act in the manner 
16

challenged, defendant must show that there was ‘ “ ‘no conceivable tactical 

purpose’ ” for counsel’s act or omission.’ ” (People v. Centeno (2014) 

60 Cal.4th 659, 675 (Centeno).)

2. Application

Our determination in part III.A.3, ante, that CALCRIM No. 403 

properly states the law, and that any ambiguity in its application to this case 

could only have favored Smith, makes clear that defense counsel was not 

ineffective in failing to object to the instruction. Defense counsel could have 

reasonably determined that it was not in Smith’s interest to raise an 

objection that could have only harmed his client. Thus, Smith cannot 

establish the lack of any “ ‘ “ ‘conceivable tactical purpose’ ” ’ ” (Centeno, 

supra, 60 Cal.4th at p. 675) for failing to object to the instruction.

In addition, our conclusion that the prosecutor did not commit error 

during her closing argument defeats Smith’s claim of ineffective assistance 

premised on defense counsel’s failure to object to the prosecutor’s argument. 

(See, e.g., People v. Bradley (2012) 208 Cal.App.4th 64, 90 [“Failure to raise a 

meritless objection is not ineffective assistance of counsel”].)

Accordingly, we conclude that defense counsel did not provide 

ineffective assistance in failing to object to the trial court’s jury instruction 

and the prosecutor’s argument concerning the natural and probable 

consequences doctrine.

C. The trial court was not required to provide a unanimity jury instruction

Smith claims that the trial court was required to provide the jury with 

a unanimity instruction to ensure that “the jury agreed that appellant either

committed petty theft but was guilty of robbery as a natural and probable 
17

consequence under CALCRIM No. 403 or committed robbery as a direct 

perpetrator under CALCRIM No. 1600.”10

1. Governing law

In People v. Covarrubias (2016) 1 Cal.5th 838, 877–878, the California 

Supreme Court provided an overview of the aspects of a criminal case for 

which jury unanimity, and a unanimity instruction, are, and are not, 

required:

“In a criminal case, ‘the jury must agree unanimously the 

defendant is guilty of a specific crime. [Citation.] 

Therefore, cases have long held that when the evidence 

suggests more than one discrete crime, either the 

prosecution must elect among the crimes or the court must 

require the jury to agree on the same criminal act.’

[Citation.] Yet ‘where the evidence shows only a single 

discrete crime but leaves room for disagreement as to 

exactly how that crime was committed or what the 

defendant’s precise role was, the jury need not 

unanimously agree on the basis or, as the cases often put it, 

the “theory” whereby the defendant is guilty.’ [Citation.] ‘In 

deciding whether to give the instruction, the trial court 

must ask whether (1) there is a risk the jury may divide on 

two discrete crimes and not agree on any particular crime, 

or (2) the evidence merely presents the possibility the jury 

may divide, or be uncertain, as to the exact way the 

defendant is guilty of a single discrete crime. In the first 

situation, but not the second, it should give the unanimity 

instruction.’ [Citation.]” (Id. at pp. 877–878, second italics 

added; see, e.g., People v. Armstrong (2019) 6 Cal.5th 735, 

794 [“ ‘the jury need not unanimously agree on the theory 

under which the defendant is guilty’ ”].)

10 While Smith appears to raise this argument only as to count 2, even if 

his argument is applied to count 1, it fails for the reasons stated in this 

section.
18

Consistent with the rule that a jury need not unanimously agree as to 

the theory under which a defendant is guilty, jurors need not unanimously 

agree as to whether a defendant is guilty as an aider and abettor or as a 

direct perpetrator. (See, e.g., People v. Russo (2001) 25 Cal.4th 1124, 1133 

[citing the “rule that the jury need not agree on whether the defendant was 

guilty as the direct perpetrator or as an aider and abettor as long as it agreed 

on a specific crime”]; People v. Santamaria (1994) 8 Cal.4th 903, 919 

(Santamaria).) The Santamaria court explained:

“Not only is there no unanimity requirement as to the 

theory of guilt, the individual jurors themselves need not 

choose among the theories, so long as each is convinced of 

guilt. Sometimes, as probably occurred here, the jury 

simply cannot decide beyond a reasonable doubt exactly 

who did what. There may be a reasonable doubt that the 

defendant was the direct perpetrator, and a similar doubt 

that he was the aider and abettor, but no such doubt that 

he was one or the other.”

The Santamaria court offered the following example:

“ ‘ “Assume a robbery with two masked participants in a 

store, one as the gunman and one as the lookout. If one 

witness makes a voice identification of the defendant as the 

gunman who demanded money, but other evidence, such as 

a fingerprint, suggests the defendant was actually holding 

the door open as lookout, the jury would be faced with the 

same theories presented in this case: find the defendant 

was the gunman and therefore a direct perpetrator, or find 

he was at the door and therefore an aider and abettor. 

Either way he would be guilty of robbery.’ If 12 jurors must 

agree on the role played by the defendant, the defendant 

may go free, even if the jurors all agree defendant 

committed the crime. That result is absurd.’ [Citation.]” 

(Santamaria, supra, 8 Cal.4th at p. 920.)
19

2. Application

Smith contends that the trial court was required to provide a 

unanimity instruction to the jury for the following reason:

“Under the court’s instructions in this case, the jury could 

have found appellant guilty of robbery on count two as a 

direct perpetrator. The jury could also have found 

appellant guilty of robbery if it found appellant committed 

petty theft and that a robbery committed by Watson was a 

natural and probable cause of that theft.”

The unanimity that Smith suggests was required is, in fact, not

required under California law.11 The California Supreme Court case law 

discussed above makes clear that the jury was not required to unanimously 

agree whether Smith was guilty of either robbery as a direct perpetrator or as 

an aider and abettor (pursuant to the natural and probable consequences 

doctrine). (See, e.g., Santamaria, supra, 8 Cal.4th at p. 919.)

Accordingly, we conclude that the trial court was not required to 

provide the jury with a unanimity instruction.12

11 We assume for purposes of this opinion that the jury could find Smith 

guilty of count 2 pursuant to the natural and probable consequences doctrine

if the jury found Watson to be a direct perpetrator of robbery on count 2, even 

though the prosecutor never argued that Smith was guilty of count 2 under 

that doctrine.

12 To the extent that Smith’s unanimity argument is premised on the trial 

court’s purported error in instructing the jury pursuant to CALCRIM No. 403 

when considered in connection with the prosecutor’s closing argument, we 

reject that argument for the reasons stated in part III.A, ante.
20

D. The two one-year prison prior enhancements (§ 667.5) must be stricken 

due to a change in the law and Smith’s sentence must be modified

With respect to his sentence, Smith argues that this court should strike 

the two one-year prison prior enhancements due to a change in the law. The 

People concede that Smith is entitled to have the two one-year prison prior 

enhancements stricken.

1. Smith’s original sentence

As noted in part I, ante, the trial court imposed a 19-year sentence. On 

the robbery (§ 211) in count 1, the trial court sentenced Smith to 10 years, 

consisting of a five-year upper term doubled due to the prior strike. On the 

robbery (§ 211) in count 2, the trial court sentenced Smith to a consecutive 

term of two years, consisting of a consecutive one-year term (one-third the 

midterm) doubled due to the prior strike. The trial court also imposed a 

consecutive five-year term for a serious felony enhancement, plus two 

consecutive one-year terms for the two prison prior enhancements. In 

addition, the trial court sentenced Smith to “time served” on the petty theft 

(§ 484) in count 4, a misdemeanor.13

2. Senate Bill 136

In People v. Gastelum (2020) 45 Cal.App.5th 757 (Gastelum), this court 

discussed Senate Bill No. 136 (Senate Bill 136), which amended section 

667.5, subdivision (b):

“Prior to this amendment, [section 667.5, subdivision (b)] 

provided for a one-year enhancement for each prior 

separate prison term, unless the defendant remained free 

from both prison custody and the commission of a new 

felony for a five-year period after discharge. [Citations.] 

13 The trial court also imposed a sentence of “time served” on count 3. 

However, as noted in part I, ante, the jury found Smith not guilty on that 

count. Accordingly, we strike the court’s imposition of sentence on count 3.
21

After the amendment, ‘a one-year prior prison term 

enhancement will only apply if a defendant served a prior 

prison term for a sexually violent offense as defined in 

Welfare and Institutions Code section 6600, 

subdivision (b).’ [Citations.] The amended statute became 

effective January 1, 2020.” (Gastelum, at p. 772.)

3. Application

The People concede that Senate Bill 136 applies retroactively to Smith 

and requires that we strike the two one-year prison prior enhancements 

(§ 667.5). We agree. (See Gastelum, supra, 45 Cal.App.5th at p. 772 

[applying Senate Bill 136 retroactively to strike a one-year prison prior 

enhancement].)

Smith argues that, rather than remanding for resentencing, this court 

should simply “modify the judgment by striking the one-year sentences 

imposed for the two . . . section 667.5, subdivision (b) enhancements.” The 

People do not request a remand for resentencing, thereby implicitly conceding 

that they do not oppose Smith’s request that we modify the judgment by 

striking the one-year sentences imposed for the two section 667.5, subdivision 

(b) enhancements.

Accordingly, we strike the two one-year prison prior enhancements 

(§ 667.5), and modify the judgment to reflect an aggregate sentence of 

17 years in prison.

IV.

DISPOSITION

The convictions are affirmed. The court’s imposition of sentence on 

count 3 and the two one-year prison prior enhancements (§ 667.5) are 

stricken. The judgment is modified to reflect an aggregate sentence of 

17 years in prison. The matter is remanded to the trial court with directions 

to prepare an abstract of judgment reflecting the modification of Smith’s 
22

judgment in accordance with this opinion. The trial court is directed to 

forward a certified copy of the new abstract of judgment to the Department of 

Corrections and Rehabilitation.

AARON, J.

WE CONCUR:

HUFFMAN, Acting P. J.

GUERRERO, J.