Filed 7/26/22 P. v. Alford 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

 Plaintiff and Respondent,

v.

MARIO S. ALFORD,

 Defendant and Appellant.

2d Crim. No. B312837

(Super. Ct. No. 20F-02462)

(San Luis Obispo County)

Mario S. Alford appeals from the judgment after the jury 

convicted him of robbery (Pen. Code,1 § 211) and found true the 

allegation that he personally used a firearm (§ 12022.53, subd. 

(b)). The trial court found true the allegations that he had

multiple serious prior convictions (§ 667, subd. (a)) and two 

“strike” convictions. (§§ 667, subds. (d), (e); 1170.12, subds. (b), 

(c).) It sentenced him to 25 years to life in state prison for 

robbery as a third striker; plus 10 years for the firearm 

1 Further unspecified statutory references are to the Penal 

Code. 
2

enhancement; plus 10 years for two prior serious felony

convictions.

Appellant contends that the firearm enhancement must be 

reversed because the trial court erred in answering the jury’s 

question. We affirm.2

FACTUAL AND PROCEDURAL HISTORY

In November 2019, the manager of a Check Into Cash (a 

check cashing store) saw appellant standing close behind her at 

the counter. He was wearing a wig and a jumpsuit. He pointed a 

gun at the manager’s side and told her to go to the safe. She told 

him she could not open the safe because it was on a timer, but

she said there was cash in the front register. 

Appellant bound the manager’s face, legs, and wrists with 

duct tape. He told her not to “look up or go out [of the room]” or 

“somebody will get mad.” The manager saw him take money 

from the front register, later determined to be $2,122.

In a photo show-up, the manager recognized codefendant 

Race Flowers as a previous customer at Check Into Cash. She 

stated that Flowers was not the person who pointed a gun at her 

and took the money.

Another witness identified Flowers in a photo show-up as 

one of two people she saw walking together toward Check Into 

Cash around the time of robbery. 

2 We appointed counsel at appellant’s request and we 

respond to counsel’s contention. Appellant has filed a document 

with additional arguments. We do not respond to these 

arguments on the merits. Appointed counsel, not a defendant, is 

in “charge of the case.” (People v. Hamilton (1989) 48 Cal.3d 

1142, 1163.) A represented defendant has “neither a 

constitutional nor statutory right to argue his case on

appeal . . . .” (In re Walker (1976) 56 Cal.App.3d 225, 228.)
3

Cellphone tower records showed multiple text messages 

and phone calls between Alford’s and Flowers’s cellphones before, 

during, and after the robbery. Alford’s and Flowers’s phone

records showed they both searched the internet for information 

about the robbery shortly after it occurred.

Ten days later, police officers stopped a car registered to 

Alford. Alford was driving and Flowers was the passenger. The 

police found a handgun, a wig, and a jumpsuit in the car. The 

manager of the Check Into Cash identified these items as similar 

to those used by the robber who pointed the firearm at her. A 

surveillance video also showed the same wig and jumpsuit. 

During jury deliberations, the jury asked: “If we reach the 

conclusion that Mr. Alford was involved in the robbery at Check-

[Into]-Cash at Morro Bay, but cannot establish that he was the 

person inside the store with the weapon, do[es] the charge[] of 

robbery still apply through aiding and abetting the robbery[?]” 

The court answered the question as follows: “If you 

conclude that Mr. Alford was involved in the robbery at Check-

[Into]-Cash at Morro Bay but cannot establish that he was the 

person inside the store with the weapon, you may consider 

whether his involvement in the robbery constitutes aiding and 

abetting as defined in Instructions 400 and 401.” 

Appellant’s defense counsel objected to the response. He 

argued that since the prosecution did not pursue an aiding and 

abetting theory against appellant, the supplemental instruction 

would be “highly unfair” and “prejudicial” because it modified the 

instructions as they were previously given to the jury. Counsel 

stated that a “better way to do it” would be to “merely refer [the 

jury] to follow the instructions as it was [sic] given to them.” 
4

Over defense counsel’s objection, the court answered the jury’s 

question. 

The next day, the jury found appellant guilty of robbery 

and the personal use of a firearm enhancement true. 

DISCUSSION

Appellant contends the trial court inadequately answered 

the jury’s question regarding whether they could convict him if 

they had a doubt as to whether he was the perpetrator, rather 

than an aider and abettor. He contends the response was 

incomplete, and the court was required to instruct the jury that 

the firearm enhancement could only be found true if the jury 

found he was the perpetrator. The Attorney General contends 

that the issue is forfeited. We agree that the issue is forfeited. 

Here, appellant’s counsel did not object to the supplemental 

instruction on the same grounds he now raises on appeal. 

Rather, he only objected to the instruction on the ground that it 

modified a previously given instruction. (See People v. Navarro 

(2021) 12 Cal.5th 285, 343; see also People v. Seijas (2005) 36 

Cal.4th 291, 302 [“‘failure to make a timely and specific objection’

on the ground asserted on appeal makes that ground not 

cognizable”].) 

Moreover, appellant did not ask the trial court to add any 

language instructing the jury on the firearm enhancement. A 

“party who believes the court’s response should be modified or 

clarified must make a contemporaneous request to that effect; 

failure to object to the trial court’s wording or to request 

clarification results in forfeiture of the claim on appeal.” (People 

v. Dykes (2009) 46 Cal.4th 731, 802.) Had appellant requested 

clarifying language, the trial court could have considered a 

modification.
5

Even on the merits, there was no error. “A trial court is 

required to ‘“instruct[ ] the jury on all the general principles of 

law raised by the evidence which are necessary for the jury’s 

proper understanding of the case.”’ [Citation.] A court also has ‘a 

general obligation to “clear up any instructional confusion 

expressed by the jury.”’ [Citation.] This obligation arises under 

section 1138, which provides that if deliberating jurors ‘desire to 

be informed on any point of law arising in the case, . . . the 

information required must be given’ to them in court.” [¶] Thus, 

‘“[w]hen a jury asks a question after retiring for deliberation, 

‘. . . [s]ection 1138 imposes upon the court a duty to provide the 

jury with information the jury desires on points of law.’ 

[Citation.]’”’” (People v. Doane (2021) 66 Cal.App.5th 965, 980

(Doane).)

“‘If a supplemental instruction is given, . . . its correctness 

presents a question of law that we review de novo.’ [Citation.] In 

determining whether the trial court correctly instructed the jury, 

‘the question is whether there is a “reasonable likelihood” that 

the jury understood the charge as the defendant asserts.

[Citations.] “In addressing this question, we consider the specific

language under challenge and, if necessary, the charge in its 

entirety. [Citation.] Finally, we determine whether the 

instruction, so understood, states the applicable law correctly.”’ 

[Citations.]” (Doane, supra, 66 Cal.App.5th at pp. 980-981.)

Here, the jury asked: “If we reach the conclusion that Mr. 

Alford was involved in the robbery . . . but cannot establish that 

he was the person inside the store with the weapon, do[es] the 

charge[] of robbery still apply through aiding and abetting the 

robbery[?]” (Emphasis added.) It is apparent from the language 

of the jury’s question that it understood the distinction between 
6

the roles of the perpetrator with a weapon and the aider and 

abettor. The only confusion the jurors expressed was whether it 

was permitted to find appellant guilty of the robbery under the 

aiding and abetting theory. 

The court properly responded that under those

circumstances, where the jury concluded appellant was involved 

but could not establish whether he was the perpetrator with a 

weapon, it “may consider whether his involvement in the robbery 

constitutes aiding and abetting.” The court then provided the 

jury with the relevant points of law on aiding and abetting 

pursuant to CALCRIM Nos. 400 and 401. 

Appellant contends it is possible that “the jury was unable 

to unanimously agree on whether appellant was the perpetrator, 

but agreed that he was sufficiently involved in the robbery to 

convict: i.e., they followed the court’s supplemental instruction 

and convicted appellant as an aider and abettor.” Because of 

this possibility, he contends the court was required to instruct 

the jury that it could only find the firearm enhancement true if it 

unanimously determined appellant was the perpetrator. 

We conclude that additional instruction on the firearm 

allegation was not required. Before deliberation, the trial court

instructed the jury that it must decide whether “the People have 

proved the additional allegation that [Alford] personally used a 

firearm during the commission of that crime. [¶] . . . [¶] Someone 

personally uses a firearm if he or she intentionally . . . [¶] 1. 

Displays the weapon in a menacing manner; [¶] 2. Hits someone 

with the weapon; [¶] OR [¶] 3. Fires the weapon.” The trial 

court also instructed that the jury’s verdict on “any special 

findings must be unanimous.” (CALCRIM No. 3550.) We 

presume the jury understood and followed these instructions. 
7

(People v. Yeoman (2003) 31 Cal.4th 93, 138-139.) The jury 

expressed no confusion regarding the firearm allegation. Here,

the evidence showed a perpetrator personally used a firearm. 

There was no reasonable likelihood the jury would have found the 

firearm allegation true if it found appellant was only an aider 

and abettor. 

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P. J.

PERREN, J.
Michael L. Duffy, Judge

Superior Court County of San Luis Obispo

______________________________

Leonard J. Klaif, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Steven D. Matthews and Michael J. Wise, 

Deputy Attorneys General, for Plaintiff and Respondent.