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Filed 4/10/14 P. v. Lee CA4/2 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

FOURTH APPELLATE DISTRICT 

DIVISION TWO 

THE PEOPLE, 

 Plaintiff and Respondent, 

v. 

RANDOLPH LEE, 

 Defendant and Appellant. 

 E057187 

 (Super.Ct.No. FVA800151) 

 OPINION 

 APPEAL from the Superior Court of San Bernardino County. Ingrid Adamson 

Uhler, Judge. Affirmed. 

 Christine Vento, under appointment by the Court of Appeal, for Defendant and 

Appellant. 

 Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Julie L. Garland, Assistant Attorney General, Melissa Mandel, and Meredith S. 

White, Deputy Attorneys General, for Plaintiff and Respondent. 
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I 

INTRODUCTION 

 Defendant Randolph Lee appeals from judgment entered following a jury 

conviction for second degree commercial robbery (Pen. Code, § 211;1 count 1). In a 

bifurcated court trial, the court found true allegations that defendant had six prior 

convictions, in which all six qualified as prison priors (§ 667.5, subd. (b)); five qualified 

as five-year enhancement priors (§ 667, subd. (a)(1)); and three qualified as strike 

offenses (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)). The trial court sentenced 

defendant to 25 years to life in prison, plus a determinate term of 17 years. 

 Defendant contends the trial court committed prejudicial error and violated his 

constitutional rights by instructing the jury on burglary when defendant was not charged 

with the crime. We agree the instruction was erroneous. However, we find the error 

harmless. 

 The People assert that the trial court erred in failing to impose a five-year sentence 

on one of defendant’s four prior convictions. The record shows that the trial court 

corrected this initial sentencing error. We therefore affirm the judgment. 

II 

FACTS AND PROCEDURAL BACKGROUND 

 On January 17, 2008, at 1:00 a.m., defendant approached the counter at an 

AM/PM store in Rialto, leaned on the counter with his hands in his sweater pockets, and 

 1 Unless otherwise noted, all statutory references are to the Penal Code. 
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twice told the cashier, Edy Policarpio, to open the register. At the time, Policarpio was 

looking down, counting the money next to the register. Policarpio looked up and saw 

defendant and tried to open the register but she could not get it to open. As defendant 

came around the counter, Policarpio went to the kitchen in the back of the store. While in 

the back hallway of the store, Policarpio called 911 and reported the robbery. The 

AM/PM store had a surveillance camera system that recorded defendant’s presence in the 

store.

 While in the back hallway, Policarpio saw defendant break the register by beating 

it with his fists because he could not open it. Defendant then picked up the register and 

carried it out the front door of the AM/PM store. As defendant was leaving, Policarpio 

saw a police car arrive in front. 

 Police Officer Mike Morales testified that, while he was parked in front of the 

AM/PM market around 1:00 a.m., on January 17, 2008, he saw defendant running out of 

the AM/PM store, carrying a cash register. Policarpio followed him out and yelled that 

defendant had just robbed her. Morales pursued defendant. Eventually, with the help of 

other officers, Morales apprehended defendant near the AM/PM store. Morales found the 

register behind some bushes, in a dirt walkway area, which was between the store and a 

brick wall. About 10 or 15 minutes after the incident, Policarpio identified defendant as 

the perpetrator in an infield showup. 
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III 

INSTRUCTION ON BURGLARY 

 Defendant contends the trial court committed reversible error by instructing the 

jury on burglary when defendant was not charged with the crime. 

Defendant was initially charged with burglary and robbery, but there was a 

mistrial after defendant was acquitted in his first trial of burglary and the jury was 

deadlocked on the robbery charge. The robbery charge was retried. During the second 

trial, the trial court mistakenly instructed the jury on the crime of burglary, even though 

defendant had been acquitted of burglary in the first trial.2 Neither party objected to the 

 2 The trial court instructed the jury on burglary as follows: 

“‘The crimes charged in this case require proof of the union, or joint operation of 

act and wrongful intent. 

 “‘For you to find a person guilty of Robbery as charged in Count 1, Petty Theft, a 

lesser included offense to Robbery as charged in Count 1 and burglary as charged in 

Count 2, that person must not only intentionally commit the prohibited act, but must do 

so with a specific intent or mental state. The act and the specific intent or mental state 

required are explained in the instructions for that crime.’” (CALCRIM No. 251; italics 

added.) 

 The court further instructed the jury: 

“‘The defendant is charged in Count 2 with burglary. 

“‘To prove that the defendant is guilty of this crime, the People must prove that: 

 “‘1. The defendant entered a building; and 

 “‘AND 

 “‘2. When he entered a building, he intended to commit theft or robbery. 

 “‘To decide whether the defendant intended to commit theft or robbery, please 

refer to the separate instructions that I have given you on those crimes. 

 “‘A burglary was committed if the defendant entered with the intent to commit 

theft or robbery. The defendant does not need to have actually committed theft or 

robbery as long as he entered with the intent to do so. The People do not have to prove 

that the defendant actually committed theft or robbery. 

 “‘Under the law of burglary, a person enters a building if some part of his or her 

body penetrates the area inside the building’s outer boundary. 

[footnote continued on next page] 
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burglary instructions. The written instructions provided to the jury did not include any of 

the erroneous instructions on burglary. The written instructions provided to the jury only 

mentioned the crimes of robbery and petty theft as a lesser included offense of robbery. 

A. Applicable Law

“A trial court must instruct the jury ‘on the law applicable to each particular case.’ 

[Citations.] ‘[E]ven in the absence of a request, the trial court must instruct on the 

general principles of law relevant to the issues raised by the evidence.’ [Citation.] 

Therefore, a claim that a court failed to properly instruct on the applicable principles of 

law is reviewed de novo. [Citations.] In conducting this review, we first ascertain the 

relevant law and then ‘determine the meaning of the instructions in this regard.’ 

[Citation.] 

 [footnote continued from previous page] 

 “‘The People allege that the defendant intended to commit theft or robbery. You 

may not find the defendant guilty of burglary unless you all agree that he intended to 

commit one of those crimes at the time of entry. You do not all have to agree on which 

one of those crimes he intended. 

“‘Each of the counts charged in this case is a separate crime. You must consider 

each count separately and return a separate verdict for each one except for Count 1C, 

which is for a lesser included offense and will be addressed in other instructions. 

“‘The defendant, RANDOLPH LEE, is charged in Count 1 of the First Amended 

Information with the offense of ROBBERY.’” 

“‘The defendant, RANDOLPH LEE, is charged in Count 2 of the First Amended 

Information with the offense of BURGLARY.’” (CALCRIM No. 1700.) 

The court also instructed the jury on the possible verdict forms for robbery (count 

1) but then added the following burglary verdict forms for count 2, which did not exist: 

“‘2-A [¶] We, the jury in the above entitled action, find the defendant, 

RANDOLPH LEE, guilty of the crime of BURGLARY, in violation of Penal Code 

Section 459 as charged in Count 2; or 

“‘2-B [¶] We, the jury in the above entitled action, find the defendant, 

RANDOLPH LEE, not guilty of the crime of BURGLARY as charged in Count 2.’” 
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“The proper test for judging the adequacy of instructions is to decide whether the 

trial court ‘fully and fairly instructed on the applicable law . . . .’ [Citation.] ‘“In 

determining whether error has been committed in giving or not giving jury instructions, 

we must consider the instructions as a whole . . . [and] assume that the jurors are 

intelligent persons and capable of understanding and correlating all jury instructions 

which are given. [Citation.]”’ [Citation.] ‘Instructions should be interpreted, if possible, 

so as to support the judgment rather than defeat it if they are reasonably susceptible to 

such interpretation.’ [Citation.]” (People v. Martin (2000) 78 Cal.App.4th 1107, 1111-

1112.) 

B. Analysis

 Defendant asserts that, because of “somnambulism” by the officers of the court, 

the jury erroneously orally instructed the jury that defendant was charged with a second 

count for burglary, when count 2 did not exist. The court further erroneously instructed 

on the elements of burglary and the possible verdicts for count 2. The People agree the 

trial court erred in orally instructing the jury on burglary. The People, however, assert 

that such error does not constitute a violation of defendant’s constitutional rights, 

requiring reversal of the judgment. Defendant argues that the instructional error resulted 

in lowering the prosecution’s burden of proof and confusing the jury by orally instructing 

the jury it could convict defendant of burglary. This, defendant claims, violated his rights 

to a fair trial and due process. 

 We conclude defendant’s constitutional rights were not violated. While there 

appears to be some truth to the accusation of inattentiveness, we cannot say, when 
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considering the record as a whole (People v. Cain (1995) 10 Cal.4th 1, 36-37), that there 

was a reasonable likelihood the oral burglary instructions resulted in defendant not 

receiving a fair trial or that the outcome would likely have been different, had the 

erroneous oral instructions not been given. There was overwhelming evidence that 

defendant committed robbery. The evidence included the surveillance tape showing 

defendant committing the crime, the store clerk’s testimony describing defendant’s 

conduct of walking up to her and demanding she hand over the money from the cash 

register, and using fear to take the property or to prevent the store clerk from resisting. 

Policarpio testified defendant put his hands in his sweater pockets, giving the appearance 

he had a weapon when he demanded the money. Policarpio said she was frightened and 

left the area and called the police as soon as defendant became preoccupied with trying to 

open the register by beating it. There was also unrefuted evidence defendant carried the 

register out of the store. This was confirmed by Morales, who saw defendant running out 

of the AM/PM store, carrying a cash register. In addition, both Morales and Policarpio 

identified defendant at trial and Policarpio identified him right after the robbery. 

 We cannot say that the erroneous oral instructions on burglary contributed in any 

way to the jury entering a guilty verdict against defendant for robbery, particularly when 

the jury was provided correct written jury instructions which would have clarified that 

defendant was charged only with robbery, and findings as to burglary were not required. 

It simply is not reasonably likely that the jury misapplied the erroneous oral burglary 

instructions or that the surplus oral instructions made any difference in the jury’s verdict 

on the single charged count, count 1 for robbery. 
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In addition, closing argument by counsel for both parties, along with the proper 

written instructions, conveyed to the jury that the oral burglary instructions were mere 

surplusage. The trial court gave CALCRIM No. 200, instructing the jury that “Some of 

these instructions may not apply, depending on your findings about the facts of the case. 

Do not assume just because I give a particular instruction that I am suggesting anything 

about the facts. After you have decided what the facts are, follow the instructions that do 

apply to the facts as you find them.” 

Because jurors are presumed to understand and follow the court’s instructions 

(People v. Sanchez (2001) 26 Cal.4th 834, 852), it is reasonably likely that the jury 

disregarded the oral burglary instructions and focused on determining whether defendant 

was guilty of robbery, as instructed in the written instructions and during closing 

argument. Furthermore, where there is a discrepancy between the oral instructions and 

written instructions given to the jury during deliberations, we presume the jury followed 

the written instructions (People v. Rodriguez (2000) 77 Cal.App.4th 1101, 1112-1113), 

particularly since neither the prosecution and defense’s closing arguments made right 

after the court instructed the jury made any mention of burglary. 

Both counsel correctly explained the relevant law during closing argument. It was 

therefore not reasonably likely the jury misunderstood the applicable law and was 

mislead by the superfluous burglary instructions. (See People v. Kelly (1992) 1 Cal.4th 

495, 526 [closing arguments correctly explaining relevant law considered in concluding 

erroneous jury instruction constituted harmless error]; People v. Cain, supra, 10 Cal.4th 

at p. 36.) During closing argument, the prosecutor discussed the evidence as to each 
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element of robbery and urged the jury to find defendant guilty of robbery. Defense 

counsel also made no mention of burglary and explained how the evidence did not 

establish the elements of robbery. Defense counsel argued the prosecution had not 

established that defendant was the perpetrator of the charged crime, and concluded 

Morales arrested the wrong person. By convicting defendant of robbery, the jury rejected 

the defense that defendant was not the perpetrator. It therefore is highly likely the verdict 

would have been the same, even in the absence of the erroneous instruction on burglary. 

 The erroneous oral burglary instructions “did not implicate the United States 

Constitution. [Citation.] In most cases an error of this sort is harmless.” (People v. 

Prettyman (1996) 14 Cal.4th 248, 280.) So was it here. The burglary instructions, which 

were correct in law but irrelevant, likely “must have been understood, and dismissed, by 

the jury as mere surplusage. [Citation.] It cannot be held to have resulted in a 

‘miscarriage of justice.’ (Cal. Const., art. VI, § 13.) It was too insignificant to have 

affected the outcome within a ‘reasonable probabilit[y],’ as required by People v. Watson

(1956) 46 Cal.2d 818, 837.” (Ibid.) Also, applying the Chapman3 harmless error 

analysis, the instructional error cannot be said to have “‘had substantial and injurious 

effect or influence in determining the jury’s verdict.’” (Hedgpeth v. Pulido (2008) 555 

U.S. 57, 58, quoting Brecht v. Abrahamson (1993) 507 U.S. 619, 623.) 

 3 Chapman v. California (1967) 386 U.S. 18, 24.
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 Since it is reasonably likely the jury overlooked the oral burglary instructions as 

mere surplusage, we conclude the erroneous inclusion of the oral burglary instructions 

was harmless error. 

IV 

SENTENCING 

 The People argue that the trial court failed to impose a five-year sentence on one 

of defendant’s four prior conviction enhancements. Defendant had six prior convictions, 

four of which qualified as five-year enhancement priors under section 667, subdivision 

(a)(1). The four qualifying prior convictions included a 1982 conviction for robbery; 

1986 conviction for assault with a deadly weapon; 1993 conviction for attempted 

robbery; and 1996 conviction for robbery. 

Initially, the trial court erroneously imposed only three five-year enhancements, 

totaling 15 years for defendant’s five-year priors. However, at a subsequent hearing, the 

trial court realized the sentencing error in failing to impose all four mandatory five-year 

enhancements and corrected the error by imposing an additional five-year prior 

conviction enhancement. The abstract of judgment and minute orders reflect the correct 

sentence, in which the trial court imposed four five-year enhancements for four prior 

convictions under section 667, subdivision (a)(1). There is therefore no need to correct 

the sentence or abstract of judgment, since the trial court has already done so. 
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V 

DISPOSITION 

 The judgment is affirmed. 

 NOT TO BE PUBLISHED IN OFFICIAL REPORTS 

CODRINGTON 

 J. 

We concur: 

RAMIREZ 

 P. J. 

MILLER 

 J.