Filed 5/14/21 P. v. Owens CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

IJUMAA OWENS,

Defendant and Appellant.

 B305369

 (Los Angeles County

 Super. Ct. No. BA477985)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Mark S. Arnold, Judge. Affirmed.

Nicholas Seymour, 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, Senior 

Assistant Attorney General, Roberta L. Davis and William H 

Shin, Deputy Attorneys General, for Plaintiff and Respondent.

_____________________________
2

INTRODUCTION

A jury convicted Ijumaa Owens of robbing a store after he 

went behind the counter, caused the store’s employee to fear for 

her life, and took money from several cash registers. Owens 

argues the trial court committed three instructional errors. We 

conclude there is no error, no prejudice, and no reason to reverse. 

FACTUAL AND PROCEDURAL BACKGROUND

A. Owens Robs a Store

One Saturday morning, a little before noon, Owens walked 

into the store of a prepaid wireless service provider and began, or 

pretended, to look at phones. Owens was wearing a black “hoodie 

sweater” or jacket with pockets in the front. Only one employee, 

Georgina Hernandez, and one customer, Stephanie White, were 

in the store. The store had four cash registers. Each register had 

$150 in cash at the beginning of the day, although by the time 

Owens entered the store, Hernandez had added cash to her 

register from customers who had purchased phones earlier in the 

morning. Each register had a key the employees left in the key 

hole so they could turn the key and open the register. 

White had purchased a cell phone, and Hernandez was 

helping her transfer her email and contact information from her 

old phone to her new phone. Hernandez asked Owens if she 

could help him. Owens, who is over six feet tall, walked up to the 

counter and spoke to Hernandez, who is five feet three inches 

tall. Owens had his hands in the front pockets of his jacket. 

Owens gave Hernandez a phone number and said he 

wanted to pay a phone bill. Hernandez entered the number 
3

Owens gave her into her computer, but learned the number was 

associated with another carrier. Owens gave Hernandez another 

phone number, but it too was associated with another carrier. 

Hernandez thought it was unusual Owens gave her two different 

phone numbers; when customers pay a bill at the store, they 

usually know their phone number. 

Owens pushed through the swinging, “saloon-style” doors 

that led to an employee-only area behind the counter, keeping 

one or both of his hands in his pockets. Hernandez was scared 

that, because Owens had his hands in his jacket pockets, he had 

“a weapon or something on him.” Hernandez testified at trial 

that she believed Owens had a weapon based on how he was 

holding his hands in his pocket, which made her fear for her life, 

but also (on cross-examination) that Owens did not point his 

pocket at her as if he was pointing a weapon. White, the 

customer, testified that Owens had his hands in his pockets and 

that, while she was speaking with her son on her old cell phone, 

she said to him, “He has his hands in his pocket.” 

Owens told Hernandez to give him the money. Hernandez 

was scared Owens would hurt or kill her. Hernandez backed 

away from Owens, threw her hands up in the air, palms facing 

forward, and said, “Take whatever you want.” She felt she had 

no choice but to give Owens the money, and she told Owens to 

take everything but not to hurt her. White, who was still on the 

phone with her son, said “He’s robbing the store.” White ran out, 

leaving Hernandez alone with Owens. 

Owens turned the key in Hernandez’s register, opened the 

register, and took all the cash. Owens began to leave, but 

returned to take the cash from two of the remaining three 

registers. Owens walked past Hernandez and said, “You are 
4

good,” which Hernandez understood to mean he was not going to 

hurt her. 

As soon as Owens left the store, Hernandez locked the front 

door, pushed the alarm, and called the police.1 When the police 

arrived, Hernandez unlocked the front door and explained what 

had occurred. 

A police detective interviewed Hernandez the following 

Monday. Hernandez, who was still upset, told the detective that 

Owens had said, “Give me the money.” Hernandez also said that 

Owens had “placed his hands in his jacket pocket and simulated 

a handgun” and that he “pointed something . . . in his jacket 

pocket toward her that she believed to be a handgun.”2 The 

detective also picked up a surveillance video at the store. 

B. Owens Is Followed and Caught

Meanwhile, after White ran out of the store, she called the 

911 emergency operator as she was running back to her car. She 

got into her car, locked the doors, and soon saw Owens walk 

calmly past her. White drove her car and followed Owens for 10

1 The prosecutor played for the jury the recording of 

Hernandez’s call to the 911 emergency operator, where she told 

the operator Owens said “Give me the money,” and the video of 

the incident taken by the store’s surveillance camera. Hernandez 

testified at trial that watching the video made her want to cry. 

White testified that watching the video gave her “chills.” 

2 The detective clarified that, when he interviewed 

Hernandez, he simulated holding his index fingers and thumb in 

a gun-like position and that Hernandez agreed Owens had made 

that gesture. 
5

to 15 minutes, as she continued to speak with the 911 operator. 

White said Owens appeared “very calm,” was walking as though 

he was taking a stroll, and showed no concern he would be 

caught.

Eventually several police cars arrived with their lights and 

sirens off. White identified Owens, who by that time was 

counting money, by pointing to him through her car window. The 

officers told Owens to stop. When Owens saw the police officers, 

he looked directly at White and ran. The officers pursued him, 

some on foot and some in a patrol car. White parked her car in 

the middle of the street, got out, and joined the pursuit. The 

officers quickly captured and handcuffed Owens, and White “got 

down in his face and told him, ‘Don’t you ever rob no place again 

that I’m in.’”3 One of the officers searched Owens and recovered 

$706 in currency and coins (some in a coin wrapper) from his 

pockets, but no weapons. Hernandez identified Owens in a field 

show-up. 

C. Owens Gives His Version

Owens testified that, 10 or 20 minutes before he went to

the wireless service provider store, he had smoked phencyclidine

(PCP), which he described as a “tranquilizer . . . for 

bodybuilders,” and that he was feeling the effects of the drug 

when he entered the store. Owens stated that he had come from 

a nearby memorial service for his friend, Nipsey Hussle. He said 

that he had argued with his girlfriend and that he went to the 

store with $55 in his hand, not to rob the store, but to pay his 

3 White subsequently requested, and the wireless service 

provider agreed to give her, the new phone she was purchasing 

when the robbery occurred without charge. 
6

girlfriend’s phone bill. He said that, when he walked into the 

store, his hands were “seeable” and not in his pockets. He said 

that Hernandez asked if he needed any assistance and that he 

stated he was there to pay a bill. Owens testified that he gave 

Hernandez his girlfriend’s phone number twice and that he 

looked at the “call log” on his phone to confirm the number, but 

that Hernandez said “the number didn’t comply with her 

computer.” Owens said that the women in the store smirked and 

laughed at him and that he became frustrated because he knew 

the phone number was correct. 

Owens testified he walked through the “slinging, Westernstyle doors” and behind the counter. He said that he was “still 

high” when he walked through the doors and that, although he 

did not know what was going through his mind, he went behind 

the counter to see if Hernandez was typing the correct phone 

number into the computer. Owens said that he had been 

listening to music on a speaker around his neck and was in his 

“own little zone,” but that he could not understand why he was 

having a problem paying the phone bill. He denied saying “Give 

me the money” or pointing from his pockets at Hernandez. 

According to Owens, Hernandez said, “Get what you want” and 

“Take the money and leave.” Owens testified that he took the 

money from the cash register because Hernandez “suggested it”

and offered the money. Owens said that he was not going to take 

any money from the cash register, but that Hernandez “kept 

offering the money out of the cash register,” which Owens 

admitted was “strange.” 

Owens had no explanation for why he started to leave after 

taking cash from one register but returned through the swinging 

doors to take cash from the other registers. Watching the 
7

surveillance video, Owens said he must have been “out of it” 

because he was moving “like a slur, slurring” and without 

“straight posture.” He said the video showed him walking as 

though he was “floating or something,” which he considered an 

effect of PCP. Owens said he was not trying to threaten 

Hernandez or place her in fear when he took the money. Owens 

admitted that he stole money from the store, but stated that it 

was because he was under the influence of PCP. 

Owens stated that when he walked out of the store he felt 

like he was “going to pass out.” He explained the effects of PCP: 

“It’s kind of like someone put you in a headlock and didn’t let you 

go. The pressure, you just keep moving or you’ll black out.” 

Owens said that, when the police arrived, he ran because he saw 

“someone with a gun or something.” 

D. Owens’s PCP Use Is the Subject of Rebuttal Testimony

After Owens testified, the prosecutor asked permission to 

present testimony on rebuttal that Owens was not under the 

influence of PCP, either by the officers who arrested Owens 

(based on their background, training, and experience) or by a 

drug recognition expert. In particular, the prosecutor wanted to 

present evidence “that someone who is under the influence of 

PCP does not black out.” The court denied the request in part, 

ruling that the prosecutor could call the officers to say Owens did 

not “exhibit any symptomology” of PCP, but that she could not 

call a drug recognition expert because “no witness can say that 

another witness is lying.” The court stated there was no reason 

for the prosecutor “to put on a drug recognition expert” because 

“the jury is going to be told that . . . voluntary intoxication will 

not be a defense in this case.” 
8

The next morning the prosecutor recalled one of the officers 

who arrested Owens, who testified about his training and 

experience as a certified drug recognition expert. The officer 

testified he observed no signs or symptoms that would indicate 

Owens was under the influence of PCP. He stated Owens walked 

with a normal stride, spoke coherently and without slurring, had 

no chemical odor, and did not have a blank stare. The officer 

opined Owens was not under the influence of PCP. He also said 

that, based on his interviews of people who have used PCP, 

“they’re fully aware of what’s going on around them, they just 

don’t have any control physically,” and that “there’s no blackouts 

and come back into consciousness or anything like that.” 

E. Owens Is Convicted and Sentenced

The jury found Owens guilty of second degree robbery (Pen. 

Code, § 211),4 and Owens admitted he had two prior convictions 

for felonies that were serious or violent felonies within the 

meaning of the three strikes law (§§ 667, subds. (b)-(i), 1170.12, 

subds. (a)-(d)) and serious felonies within the meaning of section 

667, subdivision (a)(1). The trial court dismissed one of the prior 

serious or violent felony convictions for purposes of the three 

strikes law. The court sentenced Owens to a prison term of 16 

years, consisting of the middle term of three years, doubled under 

the three strikes law, plus 10 years for the two prior serious 

felony convictions under section 667, subdivision (a)(1). Owens 

appealed. 

4 Statutory references are to the Penal Code.
9

DISCUSSION

A. The Trial Court Did Not Err in Refusing To Instruct 

on Voluntary Intoxication

1. Relevant Proceedings

Counsel for Owens requested an instruction on voluntary 

intoxication. The court considered counsel’s request in chambers, 

but subsequently summarized their discussion on the record. 

Counsel for Owens argued that robbery was a specific intent 

crime, that voluntary intoxication was relevant to the issue of 

Owens’s intent to steal, and that Owens’s testimony he was 

under the influence of PCP supported giving the instruction. 

The trial court denied the request, finding that any 

evidence of Owens’s voluntary intoxication was “negligible.” The 

court stated: “[Owens] testified that he has a specific recollection 

of coming from the mourning of Nipsey Hussle. He recalls that 

he was wearing a Bluetooth speaker and how he was wearing it 

on a sling. He remembers walking into the store and looking at 

his cell phone as he walked in. He remembers that he was there 

to pay his cell phone bill. He remembers the specific amount of 

money that he had. He recalls giving the two numbers to the 

victim. He also recalls wanting to look at the computer to make 

sure that she was typing in the right number. He recalls what 

the victim said to him. He recalls the victim laughing. He recalls 

walking behind the counter. He recalls the victim saying to him, 

‘take the money and leave.’”

The court further stated: “After that, it’s a complete blank. 

He doesn’t recall taking the money. He is not aware of the police. 

He exits the store and is sweating and walking. He doesn’t recall 
10

where he went. He doesn’t recall running. It’s just not credible 

and not believable that, . . . if he was under the influence, [it]

affected his specific intent to steal at the time that he committed 

the crime. Giving the defendant—putting him in the best 

possible light, if he had been smoking PCP, then it didn’t hit him 

until after he walked out of the store. It certainly didn’t affect 

him while he was in the store; because if it did, he wouldn’t have 

the remarkable memory of the details of what occurred prior to 

walking into that store and what occurred in the store up until 

that time that he walks behind the counter.” 

2. Substantial Evidence Did Not Support Giving

an Instruction on Voluntary Intoxication

Owens argues his “testimony provided substantial evidence 

that he was intoxicated and that the intoxication affected him 

and his formation of specific intent.” Citing one of the trial 

court’s statements, Owens asserts that the trial court’s “denial of 

the instruction was on the basis that the evidence was not 

credible, not that it was insubstantial.” 

A defendant is entitled to a voluntary intoxication 

instruction “‘only when there is substantial evidence of the 

defendant’s voluntary intoxication and the intoxication affected 

the defendant’s “actual formation of specific intent.”’” (People v. 

Verdugo (2010) 50 Cal.4th 263, 295; see People v. Myles (2012) 

53 Cal.4th 1181, 1217; People v. Olivas (2016) 248 Cal.App.4th 

758, 770-771.) “[A]n intoxication instruction is not required when 

the evidence shows that a defendant ingested drugs or was 

drinking, unless the evidence also shows he became intoxicated 

to the point he failed to form the requisite intent or attain the 

requisite mental state.” (People v. Ivans (1992) 2 Cal.App.4th 
11

1654, 1661; see People v. Miller (1962) 57 Cal.2d 821, 830-831 

[“The mere fact that a defendant may have been drinking prior to 

the commission of a crime does not establish intoxication or 

require the giving of a requested instruction thereon.”].) 

Substantial evidence in this context means evidence from which 

reasonable jurors could have concluded there was sufficient 

intoxication to negate the requisite criminal intent. (People v. 

Carr (1972) 8 Cal.3d 287, 294; see People v. Marshall (1996) 

13 Cal.4th 799, 848 [“what is required is evidence from which a 

reasonable jury could conclude defendant’s mental capacity was 

so reduced or impaired as to negate the required criminal 

intent”].)

The trial court did not err in ruling the evidence in support 

of Owens’s voluntary intoxication theory was insubstantial or, in 

the court’s words, “negligible.” There was substantial evidence 

that Owens ingested PCP (Owens’s testimony). But there was no 

substantial evidence Owens’s use of PCP affected him to the 

extent he could not form the intent to steal. Owens walked into 

the store, approached the counter, had a conversation with 

Hernandez, gave her two invalid phone numbers, looked at (or 

pretended to look at) his cell phone to confirm he gave Hernandez

the right numbers, pushed through the counter doors, entered an 

area customers were not allowed, (accepted an invitation from 

Hernandez to take or) took money from a cash register, started to 

leave the store, returned to take money from two more cash

registers, communicated to Hernandez that he was not going to 

hurt her, walked out of the store, counted his loot as he walked 

down the street, and fled from law enforcement. There was no 

evidence his PCP consumption had any effect on his ability to do 

any of these things or to form an intent to permanently deprive 
12

Hernandez of the money he took. (See People v. Caldwell (1984) 

36 Cal.3d 210, 225 [a “defendant’s actions may refute evidence” of 

voluntary intoxication]; People v. Spencer (1963) 60 Cal.2d 64, 

88-89 [“‘Actions of a defendant may completely refute his 

testimony as to his inability to form an intent to do the thing 

which he did.’”]; People v. Olivas, supra, 248 Cal.App.4th at 

p. 772 [even if there was “substantial evidence that defendant 

was voluntarily intoxicated,” he “offered no evidence at trial to 

demonstrate how that intoxication might have resulted in his 

inability to formulate the specific intent necessary to” commit the 

crime].) 

Owens did mention that PCP “sometimes . . . makes you 

hallucinate,” but he did not say he was hallucinating when he 

was taking the money from the cash registers. (See People v. 

Williams (1997) 16 Cal.4th 635, 677-678 [even if the “scant 

evidence of defendant’s voluntary intoxication,” that the 

“defendant was ‘probably spaced out’ on the morning of the 

killings” and that “he was ‘doped up’ and ‘smokin’ pretty tough 

then,’” qualified as substantial evidence, it did not require 

instruction on voluntary intoxication where “there was no 

evidence at all that voluntary intoxication had any effect on 

defendant’s ability to formulate intent”]; People v. Marshall, 

supra, 13 Cal.4th at p. 848 [“Although the offenses were 

committed after defendant had gone virtually without sleep for 

approximately 24 hours, and after he had drunk an unspecified 

number of alcoholic drinks over a period of some hours, evidence 

of the effect of defendant’s alcohol consumption on his state of 

mind is lacking.”]; People v. Caldwell, supra, 36 Cal.3d at p. 225

[testimony that the defendant appeared “lethargic and . . . 

drifting off to sleep, leading [the sheriff’s sergeant] to suspect him 
13

of being under the influence of a drug, perhaps PCP,” was 

insufficient to justify an instruction on voluntary intoxication 

where the defendant “behaved in a calm, deliberate manner 

during the robbery” and “appeared rational” in responding to law 

enforcement].) Indeed, Owens remembered almost all of his 

actions in detail, including taking the money from the cash 

register; he just did not recall why he did it (other than 

Hernandez said he could). (See People v. Ivans, supra, 

2 Cal.App.4th at p. 1662 [substantial evidence did not support an 

instruction on voluntary intoxication where, even though the 

defendant testified “he had been high on speed for a month and 

had been awake for three or four days,” the defendant “gave 

detailed testimony about the events” on the morning of the 

crime].) A defendant’s failure to remember every detail of a 

crime is not substantial evidence the defendant was unable to 

form the specific intent to commit the crime. 

To be sure, as Owens correctly points out, the trial court 

stated that the evidence Owens’s voluntary intoxication affected 

his specific intent to steal was not credible or believable. That 

was probably not the best choice of words. (See People v. Mitchell

(2019) 7 Cal.5th 561, 583 [“‘In determining whether the evidence 

is sufficient to warrant a jury instruction, the trial court does not 

determine the credibility of the defense evidence, but only 

whether “there was evidence which, if believed by the jury, was 

sufficient to raise a reasonable doubt.”’”]; People v. Young (2005) 

34 Cal.4th 1149, 1200 [“The trial court’s determination of 

whether an instruction should be given must be made without 

reference to the credibility of the evidence.”].) In context, 

however, the court’s statements reflect a ruling there was no 

substantial (i.e., there was “negligible”) evidence that whatever 
14

PCP Owens may have ingested affected his ability to form the 

specific intent to steal cash from the three registers. (See People 

v. Wilson (2005) 36 Cal.4th 309, 331 [“‘Substantial evidence is 

“evidence sufficient ‘to deserve consideration by the jury,’ not 

‘whenever any evidence is presented, no matter how weak.’”’”]; 

see also People v. Powell (2018) 6 Cal.5th 136, 164.)

Owens argues “the prosecutor’s request to and subsequent 

admission of evidence countering [Owens’s] testimony regarding 

intoxication serves as an admission that substantial evidence was 

submitted.” It does not. The trial court allowed the prosecutor 

on rebuttal to introduce evidence on the issue of whether Owens 

exhibited any symptoms of being under the influence of PCP “to 

impeach” Owens’s testimony he had taken PCP. The officer who 

testified on rebuttal may have gone beyond the trial court’s 

ruling, but counsel for Owens did not object to most of the 

officer’s testimony, and on appeal Owens does not challenge its 

admission. And there was no testimony on rebuttal about 

whether whatever amount of PCP Owens smoked affected his 

ability to form the specific intent to steal. 

B. The Trial Court Did Not Err in Instructing on 

Robbery

1. Relevant Proceedings

The trial court instructed the jury on robbery with 

CALCRIM No. 1600. In particular, the court stated: “In order to 

prove that the defendant is guilty of [robbery], 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 
15

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; 6. When the defendant used 

force or fear, he intended to deprive the owner of the property 

permanently.” The court also instructed the jury that “fear, as 

used here, means fear of injury to the person . . . himself or 

herself” and that “a store employee who is on duty has possession 

of the store owner’s property.” 

Citing People v. Morehead (2011) 191 Cal.App.4th 765

(Morehead), trial counsel for Owens requested a pinpoint 

instruction stating that “the genesis of fear must be the 

defendant’s actions, and not something created by the victim.” 

The court stated that it was “a fair request” and that it was “a 

proper pinpoint instruction to give to the jury.” 

Because the court and counsel had several conferences in 

chambers that were not transcribed by a court reporter, it is not 

entirely clear what happened next. The record suggests that the 

prosecutor prepared a special instruction based on Morehead and 

that the court added language counsel for Owens had requested, 

which was that “it must be established that there’s conduct, 

words, or circumstances reasonably calculated by the defendant 

to produce fear.” 

The court ultimately gave the following six-sentence 

instruction on fear: “[1] The element of fear for the purpose of 

robbery is satisfied when there is sufficient fear to cause the 

victim to comply with the unlawful demand for his or her 

property. [2] All that is necessary is [that] the record show 

conduct, words, or circumstances reasonably calculated by the 

defendant to produce fear. [3] It is not necessary that there be 

direct proof of fear; fear may be inferred from the circumstances 
16

in which the property is taken. [4] The requisite fear need not be 

the result of an express threat or use of a weapon. [5] Resistance 

by the victim is not a required element of robbery. 

[6] Intimidation of the victim equates to fear.”5 (Italics added.) 

As Owens concedes, it is not clear whether his trial counsel 

objected to this instruction.

5 The language in the instruction was from the court’s 

opinion in Morehead, supra, 191 Cal.App.4th 765. There the 

court stated: “‘[1] The element of fear for purposes of robbery is 

satisfied when there is sufficient fear to cause the victim to 

comply with the unlawful demand for his property.’ [Citations.] 

[3] It is not necessary that there be direct proof of fear; fear may 

be inferred from the circumstances in which the property is 

taken. [¶] If there is evidence from which fear may be inferred, 

the victim need not explicitly testify that he or she was afraid. 

[Citations.] Moreover, the jury may infer fear ‘“from the 

circumstances despite even superficially contrary testimony of 

the victim.”’ [¶] [4] The requisite fear need not be the result of 

an express threat or the use of a weapon. [Citations.] 

[5] Resistance by the victim is not a required element of robbery 

[citation], and the victim’s fear need not be extreme to constitute 

robbery [citation]. [2] All that is necessary is that the record 

show ‘“‘conduct, words, or circumstances reasonably calculated to 

produce fear . . . .’”’ [¶] [6] Intimidation of the victim equates 

with fear. [Citation.] An unlawful demand can convey an 

implied threat of harm for failure to comply, thus supporting an 

inference of the requisite fear.” (Id. at p. 775.) The language 

requested by counsel for Owens, and added by the court, was the 

italicized phrase “by the defendant” after “reasonably calculated 

to produce fear.”
17

2. The Special Instruction on Fear Was 

Not Erroneous

Owens argues that the special instruction on fear “had the 

effect of lightening the prosecution’s burden of proving every 

element beyond a reasonable doubt . . . .” Owens contends the 

instruction did so by “failing to acknowledge that [the defendant] 

must cause the fear, and that he must do so at the time he has 

the specific intent for robbery,” and instead directing “the jury to 

consider whether Ms. Hernandez was in fear, an undisputed fact, 

or was intimidated, without finding all the required elements of

robbery.” 

Owens challenges three parts of the special instruction.

First, he argues that the first sentence of the instruction, which 

stated that the element of fear for robbery “is satisfied when 

there is sufficient fear to cause the victim to comply” with the 

demand, erroneously allowed “the jury to find that Ms. 

Hernandez’s fear alone satisfies several elements of robbery, 

without considering [Owens’s] conduct.” Owens’s argument, 

however, is based on an unreasonable reading of the instruction.

“‘“It is fundamental that jurors are presumed to be 

intelligent and capable of understanding and applying the court’s 

instructions.” [Citation.]’ [Citation.] ‘“‘A defendant challenging 

an instruction as being subject to erroneous interpretation by the 

jury must demonstrate a reasonable likelihood that the jury 

understood the instruction in the way asserted by the defendant. 

[Citations.]’ [Citation.] ‘“[T]he correctness of jury instructions is 

to be determined from the entire charge of the court, not from a 

consideration of parts of an instruction or from a particular 

instruction.”’”’” (People v. Covarrubias (2016) 1 Cal.5th 838, 905.) 
18

Here, the special instruction on fear followed the court’s 

general instruction on robbery, CALCRIM No. 1600, which 

instructed the jury, among other things, that the People had to 

prove that “the defendant used force or fear to take the property” 

and that, when “the defendant used force or fear, he intended to 

deprive the owner of the property permanently.” The first 

sentence of the special instruction gave the jury additional 

guidance on the meaning of the term “fear” for purposes of 

robbery. It is not reasonably likely the jurors understood it to 

mean they could find the prosecutor met her burden of proof on 

the element of fear by finding Hernandez was in fear, but not 

because of anything Owens did. Indeed, as stated the court 

instructed the jury with the optional sentence of CALCRIM 

No. 1600 that provides, “Fear, as used here, means fear of injury 

. . . to the person himself or herself,” and Owens does not argue 

this instruction allowed the jury to find the element of fear 

without considering Owens’s conduct. It is not reasonably likely

the jury understood either instruction in this way.6

Second, Owens argues the third and fourth sentences of the 

instruction, which stated that fear may be inferred from the 

circumstances and that fear need not be caused by an express 

threat or weapon use, erroneously asked “the jury to find fear 

without finding [Owens] performed an act to cause it” and 

omitted “the finding of [Owens’s] intent when he acted.” This 

argument has the same defect: It is not reasonably likely the 

jurors understood they could find the element of fear based on the 

circumstances, but without considering Owens’s role in creating 

6 Owens also argues this part of the special instruction 

“presupposes an ‘unlawful demand,’” but he does not explain, or 

even argue, why this is so. 
19

those circumstances, with or without a threat or a weapon. 

These instructions provided further guidance on the meaning of 

the term “fear” for purposes of robbery, and the court’s 

instruction based on CALCRIM No. 1600 told the jurors that the 

People had to prove “the defendant” used fear to take the 

property and prove that, when “the defendant” did so, he 

intended to take the property permanently.

Third, Owens argues the sixth sentence, which equated 

intimidation with fear, lowered “the evidentiary burden to prove 

the crime by equating intimidation to fear.” The instruction was 

not erroneous. In the context of robbery, intimidation and fear 

are synonymous. (People v. Bordelon (2008) 162 Cal.App.4th 

1311, 1319; see In re Jeremiah S. (2019) 41 Cal.App.5th 299, 308 

[“robbery can be accomplished by fear alone [citation], which can 

consist of mere intimidation without the use of threats, so long as 

it facilitates the taking of the property”]; People v. Mullins (2018) 

19 Cal.App.5th 594, 604-605 [“intimidation . . . is conduct 

reasonably calculated to produce fear”].) If the prosecution 

proves the defendant intimidated the victim, the prosecution has 

proven the defendant used fear.

The instructional problem arises, not where (as here) the 

court instructs the jury that fear and intimidation are the same, 

but where, as occurred in People v. Davison (1995) 32 Cal.App.4th 

206 (on which Owens principally relies), the court instructs the 

jury that the terms are different. In Davison the trial court 

instructed the jury “that robbery is a taking ‘accomplished by 

means of force or fear.’” (Id. at p. 211.) But the court also 

instructed the jury pursuant to former CALJIC No. 9.40 that one 

of the elements of robbery was “a taking ‘accomplished either by 

force, violence, fear or intimidation’” and that, “‘[w]here 
20

intimidation is relied upon, it must be established by proof of 

conduct, words or circumstances reasonably calculated to produce 

fear.’” (Davison, at p. 213.) The court in Davison held that these 

instructions were erroneous because they “created ambiguity as 

to whether ‘fear’ and ‘intimidation’ are different concepts for 

purposes of robbery and whether the jury had to find that [the 

victim] was, in fact, afraid in order to reach a guilty verdict.” 

(Ibid.) The court traced the problem to the then-current version 

of CALJIC No. 9.40, which (unlike the prior version of that 

pattern instruction)7 defined “the element simply as a taking 

‘accomplished either by force, violence, fear or intimidation,’” 

thus arguably conveying “the idea that each of these terms 

represents a different concept, and that conviction is proper if the 

jury finds any one of the four.” (Davison, at p. 214.) Here, the 

trial court gave the correct instruction: fear and intimidation are 

the same concept. (See ibid. [“If the instruction made clear that 

‘fear’ and ‘intimidation’ were synonymous, further definition of 

the latter term would be unnecessary.”].)

Owens also argues that the “use of appellate opinions,” like 

the one his trial counsel cited to the court (Morehead, supra, 

191 Cal.App.4th 765), for “pinpoint instruction was error.” 

Owens cites People v. Colantuono (1994) 7 Cal.4th 206, where the 

Supreme court recognized “the danger of assuming that a correct 

statement of substantive law” in an appellate opinion “will 

7 The prior version of CALJIC No. 9.10 (4th ed. 1979) 

“defined this element of the crime as a taking ‘accomplished 

either by force or violence or by fear or intimidation or by both

. . . .’” (People v. Davison, supra, 32 Cal.App.4th at p. 214, italics 

in original.)*

* The italics are in the original of the Davison opinion, not 

the original text of the pattern jury instruction.
21

provide a sound basis for charging the jury.” (Id. at p. 221, 

fn. 13.) The Supreme Court stated: “The discussion in an 

appellate decision is directed to the issue presented. The 

reviewing court generally does not contemplate a subsequent 

transmutation of its words into jury instructions and hence does 

not choose them with that end in mind. We therefore strongly 

caution that when evaluating special instructions, trial courts 

carefully consider whether such derivative application is 

consistent with their original usage.” (Ibid.) 

The record does not reflect how much caution the trial 

court took in formulating the special instruction based on 

Morehead; most of the discussion of jury instructions was in 

chambers and not transcribed. But the trial court was cautious 

enough. The language from the court’s opinion in Morehead the 

trial court used stated the law on robbery accurately. The only 

language the trial court added, “by the defendant,” was proposed 

by Owens. The instruction did not include any out-of-context 

language from the Morehead opinion that may have misled or 

confused the jury. 

C. The Trial Court Did Not Err in Instructing on the 

Lesser Included Offense of Theft

1. Relevant Proceedings

The trial court instructed the jury with CALCRIM No. 251

regarding specific intent. Although the court had not yet defined 

the crime of robbery, the court instructed the jurors: “The 

specific intent required for the crime of robbery is to deprive the 

owner of the property permanently or to remove the property 

from the owner’s possession for so extended a period that the 
22

owner would be deprived of a major portion of the value or 

enjoyment of the property.” The court then stated that “the 

specific intent required for petty theft—” but stopped in midsentence, apparently realizing the court had not mentioned petty 

theft or described the concept of a lesser included offense. The 

court continued with this statement, which was not part of the 

pattern instruction: “And I’ll tell you more about this. Petty 

theft is a lesser but included offense of robbery, so you’re going to 

have the opportunity to decide whether the defendant is guilty or 

not of robbery. If you decide that he is not guilty of robbery, you 

can then consider whether he is guilty or not guilty of petty theft. 

Petty theft is a lesser crime.” The court then described the 

specific intent required for petty theft (which was identical to the 

specific intent required for robbery). 

The trial court subsequently instructed the jury with

CALCRIM No. 3517 regarding how to deliberate and complete 

the verdict forms. The court instructed the jurors: “If all of you 

find that the defendant is not guilty of the greater charged crime 

of robbery, you may find him guilty of a lesser crime, petty theft, 

if you are convinced beyond a reasonable doubt that the 

defendant is guilty of that lesser crime, petty theft. A defendant 

may not be convicted of both robbery and petty theft. . . . It is up 

to you to decide the order in which . . . you consider each crime 

and the relevant evidence, but I can accept a verdict of guilty of a 

lesser crime, petty theft, only if you have found the defendant not 

guilty of the corresponding greater crime, robbery.” The court 

also instructed the jury to follow the directions on the verdict 

forms and how to complete the forms. 
23

2. The Trial Court Did Not Err in Instructing 

the Jurors When They Could Consider the 

Lesser Included Offense of Theft 

Citing People v. Kurtzman (1988) 46 Cal.3d 322

(Kurtzman), Owens argues that the trial court’s intra-CALCRIM 

No. 251 statement, that if the jurors decided Owens was not 

guilty of robbery then they could consider whether he was guilty 

of theft, was a directive to the jurors that, contrary to CALCRIM 

No. 3517, they could not consider or discuss theft “without first

acquitting” him of robbery. Again, considering the court’s 

instructions in their entirety, there is no reasonable likelihood

the jury understood the instructions in this way. (See People v. 

Covarrubias, supra, 1 Cal.5th at p. 905.)

Contrary to Owens’s contention, the trial court’s statement 

did not preclude the jurors from considering or discussing the 

lesser included offense of theft until after they had reached a 

verdict on robbery. While the trial court did use the words “you 

can then consider” after the words “if you decide he is not guilty 

of robbery,” the court did not tell the jurors they could not 

consider or discuss whether Owens was guilty of theft unless and 

until they reached a verdict on robbery. And the court made 

clear it was up to the jurors to decide the order in which they 

considered the crimes. The court’s statement here stands in 

stark contrast to the statement by the trial court in Kurtzman

that the jury had to “‘unanimously agree on the second degree 

murder offense before considering voluntary manslaughter.’” 

(Kurtzman, supra, 46 Cal.3d at p. 328; cf. People v. Olivas, supra,

248 Cal.App.4th at p. 774 [trial court’s instruction that the jury 

could not consider an “alternative charge” if they were 

deadlocked on a “more severe aggravated” charged count “had the 
24

same effect on the jury as the [instruction] the Kurtzman court 

found had violated California’s acquittal-first rule”];8 People v. 

Perez (1989) 212 Cal.App.3d 395, 399 [trial court’s statement to 

the jurors, “‘you must resolve count I, the second degree charge, 

before you can consider the other charges,’” violated Kurtzman]; 

People v. Hishmeh (2020) 52 Cal.App.5th 46, 48 [trial court 

violated Kurtzman by twice instructing “the jury that unless it 

found the defendant not guilty of the charged crimes, it could not 

consider the lesser included offenses”].) 

Moreover, any error in the court’s instruction was harmless 

under the standard in People v. Watson (1956) 46 Cal.2d 818. 

(See Kurtzman, supra, 46 Cal.3d at p. 335 [applying the harmless 

error standard of whether it was “reasonably probable that a 

different result would have occurred had the contested 

instructions not been given”]; People v. Olivas, supra,

248 Cal.App.4th at p. 775 [applying “the Watson standard of 

prejudice” to Kurtzman error]; see also People v. Berryman (1993) 

6 Cal.4th 1048, 1077, fn. 7 [Kurtzman error “appears to implicate 

California law only”], disapproved on another ground in People v. 

Hill (1998) 17 Cal.4th 800, 823, fn. 1.) As the Supreme Court has 

recognized, there is an “inherent difficulty” (People v. Fields

(1996) 13 Cal.4th 289, 309, fn. 7) in demonstrating prejudice from 

Kurtzman error: Because “[i]n the abstract” an erroneous 

instruction that a jury must acquit on the greater offense before 

considering the lesser offense “appears capable of either helping 

or harming either the People or the defendant,” in any given case, 

“it will likely be a matter of pure conjecture whether the 

instruction had any effect, whom it affected, and what the effect 

was.” (Berryman, at p. 1077, fn. 7.)

8 There is no indication here the jury was deadlocked.
25

In addition, the trial court’s brief, off-script introduction to 

petty theft and the concept of a lesser offense, which included the 

reference to considering whether Owens was guilty of theft if the 

jury decided he was not guilty of robbery, was not included in the 

set of written instructions the court gave to the jury. (See People 

v. Frederickson (2020) 8 Cal.5th 963, 1026 [“‘[t]o the extent a 

discrepancy exists between the written and oral versions of jury 

instructions, the written instructions provided to the jury will 

control’”]; People v. Mills (2010) 48 Cal.4th 158, 201 [“[b]ecause 

the jury was given the correctly worded instructions in written 

form and instructed with CALJIC No. 17.45 that ‘[y]ou are to be 

governed only by the instruction in its final wording,’ and 

because on appeal we give precedence to the written instructions, 

we find no reversible error” (fn. omitted)].) Although the trial 

court did not instruct the jurors that the written instructions took 

priority over the oral instructions, the trial court instructed the 

jurors that it would provide a copy of the instructions for use in 

the jury room, and there is no dispute the court did so. 

Finally, it is not reasonably probable that, had the court 

not used the words “if you decide he is not guilty of robbery”

before the word “consider,” the result of the trial would have been 

any different. Unlike many of the cases involving Kurtzman

error, here the jurors did not ask any questions during 

deliberations or give any indication they were having trouble 

reaching a verdict, nor is there any suggestion the jurors in fact

refused to discuss or consider theft until they had reached a 

verdict on robbery. (See, e.g., Kurtzman, supra, 46 Cal.3d at 

p. 328; People v. Hishmeh, supra, 52 Cal.App.5th at p. 51; People 

v. Olivas, supra, 248 Cal.App.4th at p. 772; People v. Perez, supra, 

212 Cal.App.3d at p. 399.) And, compared to the court’s isolated
26

and essentially parenthetical reference to “if you decide,” the 

evidence that Owens used fear to steal money from the store’s 

cash registers was strong. Owens did not happen to pick up some 

cash from an open cash register drawer as he walked by; he went 

behind the counter in a threatening manner, causing Hernandez 

to raise her hands in surrender, and robbed three cash registers 

before finally telling Hernandez he was not going to hurt her.9

DISPOSITION

The judgment is affirmed.

SEGAL, Acting P. J. 

We concur: 

FEUER, J. McCORMICK, J.*

9 Owens also argues the cumulative prejudice of the trial 

court’s errors requires reversal. But because there was no error, 

there was no cumulative error. (See People v. Cordova (2015) 

62 Cal.4th 104, 150 [cumulative effect of asserted errors was not 

prejudicial where “there was no error to accumulate”]; People v. 

Avila (2014) 59 Cal.4th 496, 520 [same].)

* Judge of the Orange County Superior Court, assigned by 

the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.