Filed 2/23/21 P. v. Hernandez CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

EFRAIN HERNANDEZ,

 Defendant and Appellant.

2d Crim. No. B304174

(Super. Ct. No. 2018034376)

(Ventura County)

Efrain Hernandez appeals a judgment following his 

conviction for second degree robbery. (Pen. Code, § 211.) The 

trial court sentenced him to three years in state prison. We 

conclude, among other things, that 1) the trial court did not err 

by admitting evidence of prior uncharged crimes; and 2) the court 

properly instructed the jury with the CALCRIM No. 1600 jury 

instruction on robbery. We affirm.

FACTS

On September 18, 2018, Jorge Barbalazo was employed at 

an Arco am/pm store. He saw Hernandez inside the store in the 

act of stealing two cans used to fix flat tires. He approached 
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Hernandez to prevent him from stealing the cans. Hernandez 

threw one can to Barbalazo’s right leg. Barbalazo told

Hernandez to leave the other can. Barbalazo put his hand on the 

store door.

Hernandez punched Barbalazo in the face. Barbalazo did 

not touch Hernandez prior to the time Hernandez punched him. 

Hernandez went outside the store. Barbalazo and Hernandez 

fought. Hernandez walked away.

The People introduced a video surveillance tape of this 

incident. It was played for the jury. The parties stipulated that 

the person shown on the video wearing “a hooded black 

sweatshirt” is Hernandez.

In the defense case, Hernandez testified that on September 

18, 2018, he went into the store because he needed a tire inflator. 

He had a flat tire on his bicycle. He took two tire inflator cans. 

He concealed one under his armpit and held the other in his 

hand. He testified he had a “shirt draped over [his] arm as well.” 

His intent was to leave the store with the cans without paying.

Hernandez saw two employees “coming at [him].” One 

“looked kind of aggressive”; the other had a bat. He put down one 

can and forgot about the other. His intent was to leave the store 

because he was afraid. He believed that he had “left everything 

behind, not knowing [he] had the second one in [his] armpit.” He 

testified he used force “to defend [him]self.” He swung at one 

employee, punched him once, and then left.

Evidence Involving Three Prior Thefts by Hernandez

At a pretrial hearing the prosecutor asked the court to 

allow the People to introduce evidence to rebut Hernandez’s 

defense testimony. The prosecution wanted to introduce evidence 

about prior thefts committed by Hernandez. Over a defense 
3

objection, the trial court ruled the People could cross-examine 

him about three prior thefts where he had used force.

During cross examination, Hernandez testified that in 2017 

he had stolen items inside a Walgreens store and at a Doc’s Beer 

& Wine. In each case, when an employee tried to prevent the 

thefts, he used force against the employees to take the items and 

then left the store. In 2018, he entered a Circle K, took a beer, 

and when an employee tried to stop him, he used force to steal 

the beer.

The Jury Instruction on Robbery

The trial court indicated it would use the standard 

CALCRIM No. 1600 jury instruction on robbery. Hernandez’s

counsel proposed a modification of that instruction. The court 

denied the request. It found the modification was not necessary.

DISCUSSION

Admitting Evidence of Three Prior Thefts

Hernandez contends the trial court erred when it applied 

Evidence Code section 1101 to admit his three instances of prior 

thefts. 

The People respond that the trial court properly exercised 

its broad discretion when it admitted the evidence of Hernandez’s 

uncharged crimes. We agree.

In a pretrial proceeding, the prosecutor noted that 

Hernandez’s defense was going to be that he left the store with a 

stolen item that he had forgotten about, and he used force 

against a store clerk solely for self-defense, and not with the 

intent to steal the item. She said the People had the right to 

impeach that defense by introducing evidence of prior thefts 

where Hernandez had used force against store employees to take 

stolen items from the stores. The prosecutor said these prior 
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events show that in the current case Hernandez’s “intent was not 

fear and not forgetfulness, but rather . . .he steals, and he uses 

force to steal.” (Italics added.)

The trial court ruled the People could use three prior theft 

cases involving Hernandez where he had used force. It said, “I 

think it is close enough in time and conduct to establish that a 

rebuttal to any argument by the defense that the defendant’s 

intent in using force was something other than to allow him to 

keep the goods that he had secreted in his sweatshirt.” (Italics 

added.) 

Hernandez contends the trial court erred by authorizing

admission of three prior theft cases where he had used force. He 

claims, “Based on the three instances of use of force presented in 

this case, the jury may have convicted [him] merely on the 

assumption that he had a propensity to use force during thefts. 

Without evidence of those three prior thefts that involved the use 

of force, the jury would have necessarily been forced to consider,

in isolation, whether [he] used the required force in this specific 

case.”

The People respond that this “evidence was material to 

determine whether [Hernandez] hit Barbalazo out of fear, as 

[Hernandez] claimed, or to escape with the stolen items.” They 

claim the trial court acted within its discretion because “it 

established [Hernandez’s] intent when he hit Barbalazo.” 

Evidence Code section 1101, subdivision (a) generally 

provides that “evidence of specific instances” of a person’s 

“conduct” is “inadmissible when offered to prove his or her 

conduct on a specific occasion.” But subdivision (b) provides, 

“Nothing in this section prohibits the admission of evidence that 

a person committed a crime, civil wrong, or other act when 
5

relevant to prove some fact (such as motive, opportunity, intent, 

preparation, plan . . . other than his or her disposition to commit 

such an act.” (Evid. Code, subd. (b), italics added.) 

“[E]vidence of a defendant’s uncharged misconduct is 

relevant where the uncharged misconduct and the charged 

offense are sufficiently similar to support the inference that they 

are manifestations of a common design or plan.” (People v.

Ewoldt (1994) 7 Cal.4th 380, 401-402.) “The least degree of 

similarity (between the uncharged act and the charged offense) is 

required in order to prove intent.” (Id. at p. 402, italics added.) 

“ ‘[T]he recurrence of a similar result . . . tends (increasingly with 

each instance) to negative accident or inadvertence or self-defense

or good faith or other innocent mental state, and tends to 

establish (provisionally, at least, though not certainly) the 

presence of the normal, i.e., criminal, intent accompanying such 

an act . . . .’ ” (Ibid., italics added.) “A greater degree of 

similarity is required in order to prove the existence of a common 

design or plan.” (Ibid.)

Here Hernandez testified about the three prior thefts when 

questioned by the prosecutor as follows:

On January 1, 2018, Hernandez went to a Circle K, and 

took beer from a cooler. When a female employee put her hand 

on the cooler to stop the theft, Hernandez pushed her away to 

take the beer without paying for it, and left.

On January 22, 2017, Hernandez went to Walgreens. He 

took a sweatshirt and a Pepsi. When a store employee tried to 

stop him, he shoved the employee out of the way to escape with 

the stolen goods.

On October 5, 2017, Hernandez entered Doc’s Beer & Wine.

He took milk and beer. A lady at the store tried to stop his theft. 
6

He hit her in the head, then left the store with the milk without 

paying for it. 

Here all three incidents were highly relevant on the issue 

of intent. They were all recent events and were very similar to 

the current case. All shared a common intent to use an escape 

plan. When confronted with a store employee seeking to stop the 

theft, Hernandez used force to take the stolen items out of the 

store. The recurrence of these “similar” results is relevant 

evidence to negate the defendant’s claim that he only intended to 

use force in self-defense. (People v. Ewoldt, supra, 7 Cal.4th at 

p. 402.) This evidence tends to show criminal intent, rather than 

innocent intent, was the motivation for his actions. (Ibid.)

The People contend that even aside from intent, the prior 

thefts also showed evidence of a repetitive “common plan” and 

the prior theft evidence was alternatively admissible on that 

ground. We agree. 

The trial court ruled the evidence was admissible to prove 

intent; it did not mention common plan. But a ruling correct on 

the law may also be sustained on a different ground than the one 

the trial court stated, where that ground is supported by the facts 

and the law. (People v. Zapien (1993) 4 Cal.4th 929, 976.) A 

greater degree of similarity is required to prove common design 

or plan than to prove intent. (People v. Ewoldt, supra, 7 Cal.4th

at p. 402.)

Here there were significant common features in each of the 

three prior theft incidents to support admissibility on the ground 

of common plan or design. The prior incidents included the 

following common features: 1) Hernandez entered the store to 

steal property, 2) he took items while in the store, 3) he was 

spotted by a store employee or individuals who intervened to try 
7

to stop the theft, 4) those individuals did not initiate violence or 

force against Hernandez, 5) Hernandez initiated force or violence 

against them, 6) he did not act in self-defense, 7) he left the 

stores with the stolen items, and 8) he used force with the intent 

to steal the item. A reasonable inference is that the three prior 

thefts and the current offense were all part of a consistent 

common plan or design. The “distinctive shared characteristics” 

of the prior thefts with the current offense “increased the 

probative” value to show “the defendant committed both offenses 

pursuant to a common design or plan.” (People v. Balcom (1994) 

7 Cal.4th 414, 425.) It is Hernandez’s burden on appeal to show 

an abuse of discretion. He has not done so.

Moreover, Hernandez has not shown a reasonable 

probability of a different result had the trial court excluded the 

evidence. His defense was based on the claim that he forgot he 

was carrying the stolen item when he used force. But the jury 

could reasonably find this claim was not credible. Hernandez

was not carrying a tiny item such as a watch or pen that he could 

have overlooked after he concealed it. He was carrying a can of 

tire inflator of significant weight at the time he used force. The 

store video surveillance tape DVD evidence shows Hernandez 

initiated violence against the store employee as he left the store 

with the stolen can. The jury could reasonably find that video 

DVD evidence impeached the credibility of Hernandez’s selfdefense testimony. 

The CALCRIM No. 1600 Jury Instruction on Robbery

Hernandez contends the trial court erred by declining to 

use the “modified version” of the CALCRIM No. 1600 jury 

instruction on robbery that his counsel requested. He claims the 
8

modified version was necessary to more accurately reflect the 

defense theory of the case.

The People respond that the “pattern robbery instruction 

adequately explained that [Hernandez] could not be found guilty 

of robbery if he abandoned the tire inflator cans and no longer 

intended to deprive [the victim] of the property when 

[Hernandez] used force against him.” (Boldface & initial 

capitalization omitted.) They contend the modification 

Hernandez proposed was duplicative of CALCRIM No. 1600. We 

agree.

The trial court instructed the jury with CALCRIM No. 

1600, which provides in relevant part, “The defendant is charged 

with robbery in violation of Penal Code section 211. [¶] 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 in the possession of another person; [¶] 3. 

The property was taken from the other person or his or her 

immediate presence; [¶] 4. The property was taken against that 

person’s will; [¶] 5. The defendant used force or fear to take the 

property or to prevent the person from resisting; [¶] AND 6. 

When the defendant used force or fear to take the property, he 

intended to deprive the owner of the property permanently.” 

(Italics added.)

After listing these six elements, the CALCRIM No. 1600

robbery instruction also provides, “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.)
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Hernandez requested the trial court to modify the 

CALCRIM No. 1600 instruction. He claimed “the two sentences 

following the sixth element, as currently phrased, vitiates the 

defense, [which is that he forgot] he had the second can on him 

when he abandoned the other property and then defended 

himself by punching the clerk, [which is] a complete defense to 

the crime of robbery.”

Hernandez requested that the following language should be 

substituted for the two sentences following the sixth element in 

the CALCRIM No.1600 instruction: “The defendant’s intent to 

take the property must have existed at the time he used force or 

fear. If the defendant did not form the required intent until after 

using the force or fear, then he did not commit robbery.” (Italics 

added.) 

The prosecutor objected to this modification on the ground 

that the language of the CALCRIM No. 1600 instruction was 

consistent with California Supreme Court decisions on robbery 

instructions. 

The trial court declined to modify the instruction. It 

instructed the jury with the original CALCRIM No. 1600 jury

instruction.

Hernandez contends the trial court erred by not modifying 

the instruction as he requested because the original CALCRIM 

No. 1600 instruction was not a valid or proper instruction for this 

case. We disagree.

Courts have held that the CALCRIM No. 1600 instruction 

is a proper instruction for the crime of robbery. (People v. 

Morehead (2011) 191 Cal.App.4th 765, 774.) Moreover, the 

specific language Hernandez objected to in the CALCRIM No. 

1600 instruction is the same language our Supreme Court 
10

approved in People v. Bolden (2002) 29 Cal.4th 515, 556. There 

the court said, “[F]or the crime of robbery the defendant must 

form the intent to steal before or during rather than after the 

application of force to the victim . . . .” (Ibid., italics added.) 

The People claim the language that Hernandez wanted to 

add to the CALCRIM No. 1600 instruction is also duplicative of 

language already in the original CALCRIM No. 1600 instruction.

We agree.

The defense has a right for an instruction that pinpoints 

the theory of the defense. (People v. Bivert (2011) 52 Cal.4th 96, 

120.) But a trial court may refuse a request for a defense 

instruction that is duplicative of the language of another 

instruction. (Ibid.)

Here Hernandez wanted to add the following language: 

“The defendant’s intent to take the property must have existed at 

the time he used force or fear.” But element 6 of the CALCRIM 

No. 1600 instruction already provided, “When the defendant used 

force or fear to take the property, he intended to deprive the 

owner of the property permanently.” (Italics added.) Both these 

instructions highlight the same point, that the intent to take 

property must occur at the time the defendant uses force or fear. 

The trial court could reasonably find the requested new language 

was not necessary because of element 6 of the CALCRIM No. 

1600 instruction.

Hernandez contends the modified language he proposed 

was necessary so the jury would not be confused about the intent 

issue. He suggests that CALCRIM No. 1600 was confusing and 

would not allow the jury “to consider whether [he] had the 

requisite intent at the time he used force against the clerk.”
11

In cases where an appellant claims the language of an 

instruction might confuse jurors, we start by determining how a 

juror of reasonable intelligence would understand the language. 

(People v. Pearson (2013) 56 Cal.4th 393, 476.) We presume the 

jury is capable of understanding the instructions given and 

properly applying them to the facts of the case. (People v. Carey

(2007) 41 Cal.4th 109, 130.) Here the language of the CALCRIM 

No. 1600 instruction was not complex and it provided the jury 

with all the required elements of the crime of robbery. (People v.

Morehead, supra, 191 Cal.App.4th at p. 774.) A reasonable juror 

would find the language involving the six robbery elements to be 

very easy to understand. Hernandez has not shown that any 

language in the CALCRIM No. 1600 instruction would cause 

jurors to omit their duty to find whether Hernandez had the 

requisite intent at the time he used force as required by element 

6.

The trial court ruled the language in element 6 of the 

CALCRIM No. 1600 instruction and the sentences that follow

element 6 were not confusing or inconsistent. The court said, 

“The element number six is talking about the timing of the force 

used, and the paragraph below . . . is talking about the timing of 

the intent to steal. So they’re not inconsistent or contradictory. 

They’re talking about two different issues.” The language about 

the intent to steal that Hernandez claimed was confusing is the 

same language that is found in California Supreme Court 

decisions on robbery. (People v. Bolden, supra, 29 Cal.4th at 

p. 556.)

Moreover, the trial court went further and ruled that 

defense counsel, in talking about this jury instruction in closing 

argument, could tell jurors that if they accepted the defense 
12

theory that Hernandez abandoned his intent to steal at the time 

he used force, then under the instruction this would mean

Hernandez could not be convicted of robbery.

In closing argument, Hernandez’s counsel told jurors that 

Hernandez only had the intent to defend himself at the moment 

he swung. Counsel said, “[Hernandez] did not have the intent [to 

steal] at that moment that he swung.” “He no longer had the 

intent to steal at the moment he decided to defend himself.”

The People in closing argument also focused the jury’s 

attention to the key issue – Hernandez’s intent at the time he 

used force. The prosecutor asked the jury, “What was 

[Hernandez] thinking when he punched Mr. Barbalazo in the 

face? Was he really afraid or was he just trying to get out of 

there with that second can of tire inflator?”

On appeal, the reviewing court may consider the 

instruction given and the arguments of counsel in determining 

whether jurors would be confused about their duty to follow the 

instructions. (People v. Musselwhite, supra, 17 Cal.4th at 

p. 1249.) Given the instructions and the arguments of counsel, no 

reasonable juror would be confused about his or her duty to 

decide whether Hernandez had the requisite intent at the time he 

used force. The instruction did not prevent the jury from 

considering Hernandez’s defense theory. If the jury had accepted 

Hernandez’s defense, then, using CALCRIM No. 1600, it would 

have found him not guilty of robbery. 

We have reviewed Hernandez’s remaining contentions and 

we conclude he has not shown grounds for reversal.
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DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

GILBERT, P. J.

We concur:

PERREN, J.

TANGEMAN, J.
14

Ronda J. McKaig, Judge

Superior Court County of Ventura

______________________________

Robert L. Hernandez, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Noah P. Hill and Kathy S. Pomerantz, Deputy 

Attorneys General, for Plaintiff and Respondent.