1 Filed 4/10/14 P. v. Lee CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 APPELL ATE 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 ap pointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Julie L. Garland, A ssistant Attorney General, Meli ssa Mandel, and Meredith S. White, Deputy Attorney s General, for Plaintiff and Respondent.2 I INTRODUCTION Defendant Randolph Lee appeals from judgment entered following a jury conviction for second degree commer cial 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 qua lified as prison priors (§ 667. 5, subd. (b)); five qualified as five-year enhancement priors (§ 667, su bd. (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 comm itted prejudicial error and violated his constitutional rights by instructing the jury on burglary when defenda nt 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 e rred in failing to impose a five-year sentence on one of defendant’s four pr ior convictions. The record shows that the trial court corrected this initial sent encing error. We therefore affirm the judgment.
II FACTS AND PROCEDUR AL BACKGROUND On January 17, 2008, at 1:00 a.m., de fendant 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 statutor y references are to the Penal Code.3 twice told the cashier, Edy Policarpio, to ope n the register. At the time, Policarpio was looking down, counting the money next to th e 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 k itchen 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 sa w defendant break the register by beating it with his fists because he c ould not open it. Defendant then picked up the register and carried it out the front door of the AM/PM st ore. 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 hi m out and yelled that defendant had just robbed her. Morales pursued defendant. Eventually , with the help of other officers, Morales appreh ended defendant near the AM/PM store. Morales found the register behind some bushes, in a dirt walk way area, which was between the store and a brick wall. About 10 or 15 mi nutes after the incident, Polic arpio identified defendant as the perpetrator in an infield showup.4 III INSTRUCTION ON BURGLARY Defendant contends the trial court comm itted reversible error by instructing the jury on burglary when defendant wa s not charged with the crime. Defendant was initially char ged with burglary and robbery, but there was a mistrial after defendant was acquitted in hi s first trial of burglary and the jury was deadlocked on the robbery charge. The robber y 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 Robber y 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. Th e act and the specific intent or mental state required are explained in the instructions fo r that crime.’” (CAL CRIM No. 251; italics added.) The court further in structed the jury: “‘The defendant is charged in Count 2 with burglary. “‘To prove that the defendant is guilty of this crime, the Peop le 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 de fendant intended to commit theft or robbery, please refer to the separate instructions th at I have given yo u on those crimes. “‘A burglary was committed if the defenda nt entered with the intent to commit theft or robbery. The defe ndant does not need to have actually committed theft or robbery as long as he entered with the intent to do so. Th e 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]5 burglary instructions. The writte n instructions provided to the jury did not include any of the erroneous instructions on bur glary. The written instructions provided to th e 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 re quest, the trial court must instruct on the general principles of law relevant to the i ssues raised by the ev idence.’ [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 meani ng of the instructions in this regard.’ [Citation.]

[footnote continued from previous page] “‘The People allege that the defendant in tended 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 retu rn a separate verdict for eac h one except for Count 1C, which is for a lesser include d offense and will be addre ssed in other instructions. “‘The defendant, RANDOLPH LEE, is char ged in Count 1 of the First Amended Information with the o ffense of ROBBERY.’” “‘The defendant, RANDOLPH LEE, is char ged in Count 2 of the First Amended Information with the offense of BURGLARY.’” (CALCRIM No. 1700.) The court also instructed th e jury on the possible verdic t 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 a bove entitled action, find the defendant, RANDOLPH LEE, guilty of th e crime of BURGLARY, in violation of Penal Code Section 459 as charge d in Count 2; or “‘2-B [¶] We, the jury in the abov e entitled action, find the defendant, RANDOLPH LEE, not gu ilty of the crime of BURGLARY as charged in Count 2.’”6 “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 w hole . . . [and] assume that the jurors are intelligent persons and capable of understandi ng and correlating all jury instructions which are given. [Citation.]”’ [Citation.] ‘Inst ructions should be inte rpreted, 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.Ap p.4th 1107, 1111- 1112.) B. Analysis Defendant asserts that, beca use of “somnambulism” by the officers of the court, the jury erroneously orally in structed the jury that defendant was charged with a second count for burglary, when count 2 did not exist. The cour t further erroneously instructed on the elements of burglary and the possible ve rdicts for count 2. The People agree the trial court erred in orally instructing the ju ry on burglary. The People, however, assert that such error does not constitute a viol ation 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 a nd 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 ri ghts were not violated. While there appears to be some truth to the accusation of inattentiveness, we cannot say, when7 considering the reco rd as a whole ( People v. Cain (1995) 10 Cal.4th 1, 36-37), that there was a reasonable likelihood the oral burglar y 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 give n. There was overwh elming 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 he r and demanding she hand ov er 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 mone y. 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 al so unrefuted evidence defendant carried the register out of the store. This was confir med by Morales, who saw defendant running out of the AM/PM store, carrying a cash registe r. In addition, both Mo rales and Policarpio identified defendant at trial and Policarpi o identified him right after the robbery. We cannot say that the erroneous oral in structions on burglary contributed in any way to the jury entering a gu ilty verdict against defendant fo r robbery, particularly when the jury was provided correct written jury instructions whic h would have clarified that defendant was charged on ly 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 surplu s oral instructions made any di fference in the jury’s verdict on the single charged count, count 1 for robbery.8 In addition, closing argument by counse l for both parties, along with the proper written instructions, conveyed to the jury that the oral burglary instructions were mere surplusage. The trial court ga ve CALCRIM No. 200, instruc ting 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 particul ar 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 inst ructed in the written instru ctions and during closing argument. Furthermore, where there is a discrepancy betwee n 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.4t h 1101, 1112-1113), particularly since neither the prosecution and defense’s closing arguments made right after the court instructed the jury made any me ntion of burglary. Both counsel correctly explained the releva nt law during closing argument. It was therefore not reasonably likely the jury mi sunderstood the applicable law and was mislead by the superfluous burg lary instructions. (See People v. Kelly (1992) 1 Cal.4th 495, 526 [closing arguments correctly explaini ng 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 pros ecutor discussed the evidence as to each9 element of robbery and urged the jury to find defendant guilty of robbery. Defense counsel also made no mention of burglar y and explained how the evidence did not establish the elements of robbery. Defens e counsel argued the prosecution had not established that defendant was the perpetra tor of the charged crime, and concluded Morales arrested the wrong person. By convic ting defendant of robbery, the jury rejected the defense that defendant was not the perpetra tor. It therefore is highly likely the verdict would have been the same, even in the absence of the errone ous instruction on burglary. The erroneous oral burglary instructi ons “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 bu rglary instructions, which were correct in law but irrelevant, likely “m ust 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 ‘r easonable probabilit[y] ,’ as required by People v. Watson (1956) 46 Cal.2d 818, 837.” ( Ibid. ) Also, applying the Chapman 3 harmless error analysis, the instructional erro r cannot be said to have “‘had substantial and injurious effect or influence in determin ing 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, 24.10 Since it is reasonably likely the jury over looked 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 fa iled to impose a five-year sentence on one of defendant’s four prior conviction enhancem ents. Defendant had six prior convictions, four of which qualified as fi ve-year enhancement priors un der section 667, subdivision (a)(1). The four qualifying prior convictions included a 1982 conviction for robbery; 1986 conviction for assault with a dead ly weapon; 1993 conv iction for attempted robbery; and 1996 conviction for robbery. Initially, the trial court erroneously impos ed only three five-year enhancements, totaling 15 years for defendant’s five-year priors. However, at a subsequent hearing, the trial court realized the senten cing 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 j udgment and minute orders reflect the correct sentence, in which the trial court imposed f our five-year enhancem ents for four prior convictions under section 667, subdivision (a)(1). There is therefore no need to correct the sentence or abstract of judgment, si nce the trial court has already done so.11 V DISPOSITION The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS CODRINGTON J.
We concur:

RAMIREZ P. J.

MILLER J.