People v. Artiaga, 2020 Cal. App. Unpub. LEXIS 129 (CA Ct. App. 6th 2020)
A violent shoplifter argued at trial that he was entitled to a self-defense instruction because he was resisting the unreasonable defensive force of the merchant. Trial judge denied the self-defense instruction, defendant was convicted (and sentenced merely to probation). Defendant appeals conviction on the basis of the denied self-defense instruction at trial, and the court of appeal affirms the conviction.
Court of Appeal of California, Sixth Appellate District
January 8, 2020, Opinion Filed
2020 Cal. App. Unpub. LEXIS 129 *
THE PEOPLE, Plaintiff and Respondent, v. VICTOR DAVID ARTIAGA, Defendant and Appellant.
Defendant Victor David Artiaga was convicted by jury trial of second degree robbery (Pen. Code, 211, 212.5, subd. (c)). [11 The court suspended imposition of sentence and granted him probation. On appeal, his sole contention is that the trial court prejudicially erred in refusing to give self-defense instructions. We reject his contention and affirm the order of probation.
I. Evidence Presented At Trial
Enrique Carrillo Martinez (Carrillo) was an assistant manager at a Safeway store in Santa Clara. On September 5, 2017, at about 3:40 p.m., Carrillo’s fellow Safeway employee, Freddy Hau Fuentes, saw a man in the “liquor” department putting five or six liquor bottles into a handbag. Fuentes pointed the man out to Carrillo and told Carrillo what he had seen. Safeway store policy was that employees were not permitted to touch shoplifters.
Carrillo saw defendant a few feet from the store’s east exit with a handbag in his hand and wearing a red backpack. When defendant saw Carrillo, who was wearing a Safeway name tag, defendant turned and “went back towards the checkstands instead of going out towards the [east] exit . . . .” Defendant walked past all of the check stands and headed toward the west exit. He did not go to any of the check stands to pay for any items. Carrillo walked along the other side of the check stands and positioned himself at the west exit. Defendant came toward the west exit and saw Carrillo, “but he kept going really fast.”
As defendant neared the west exit and was about two or three feet away from Carrillo, Carrillo told him: ” ‘Stop, stop. Drop the bags. Drop the bottles. I work at Safeway.’ ” Defendant told Carrillo ” ‘Fuck you,’ ” “took a swing,” and “hit [Carrillo] on the head” “really hard” with a closed fist. When Carrillo saw defendant swinging his arm, Carrillo moved sideways in an unsuccessful attempt to avoid the punch. Carrillo also lifted up his own arms “to protect myself,” and “tried to cover” his face and head with his hands and arms. Carrillo testified at trial that he “never touched” defendant.
Carrillo was not injured by the punch. Safeway’s surveillance video recorded the encounter, though the quality of the video was so poor that it did not show defendant hitting Carrillo. 
Defendant left the store, and Carrillo followed him, “started recording” defendant on his phone, and called out ” ‘I got you on fucking video.’ ” Defendant slowed down, opened up the handbag, and “dump[ed]” five bottles of whiskey and tequila on the ground about 20 to 30 feet from the Safeway store. Defendant shifted from walking to running. Defendant kept looking at Carrillo, and Carrillo “called the cops . . . .” While
Carrillo was talking to the 911 operator, defendant “kept looking back at me to see where I was, if I was following him.” The police responded quickly, and they found defendant nearby. He had no bags on him, but the handbag with defendant’s red backpack stuffed inside of it was found nearby.
II. Procedural Background
At the outset of trial, the trial court’s understanding of defendant’s defense was that he would argue that “he did not assault the person.”
The court instructed the jury on the robbery count before the presentation of evidence and again before closing arguments: “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 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 it permanently.” The court also instructed the jury on the lesser included offense of petty theft.
Defendant’s trial counsel argued to the jury that Carrillo moved toward defendant with his hands “in fists coming up in a fighting stance.” She asserted that Carrillo had lied when he said that defendant had punched him. She contended that Carrillo had lied because he had “put hands on” and “grabbed” defendant “as he left the store” and then followed defendant, all in violation of Safeway’s policy. She claimed that “in order to cast himself as the victim in this case, he said he had been punched.”
After the jury began its deliberations, the court acknowledged that the defense had requested instructions on self-defense. “I believe the defense was requesting self-defense instructions. I didn’t see a factual basis for it. [¶] But, Ms. Ruby [defendant’s trial counsel], if you would like to add to the record, you may.” She replied: “We’ll submit on the request.” The court stated: “Okay. Then the state of the evidence in my mind did not support it.” The jury returned a guilty verdict, and the court suspended imposition of sentence and granted defendant probation. Defendant timely filed a notice of appeal from the order of probation.
Defendant acknowledges that Carrillo was entitled to use “a reasonable amount of nondeadly force” to prevent defendant from leaving the Safeway store with the stolen merchandise. “A merchant  may detain a person for a reasonable time for the purpose of conducting an investigation in a reasonable manner whenever the merchant has probable cause to believe the person to be detained is attempting to unlawfully take or has unlawfully taken merchandise from the merchant’s premises.” ( 490.5, subd. (f)(1).) ( 490.5, subd. (g)(2).)
“In making the detention a merchant . . . may use a reasonable amount of nondeadly force necessary to protect himself or herself and to prevent escape of the person detained or the loss of tangible or intangible property.” ( 490.5, subd. (f)(2).)
Defendant nevertheless claims that he was entitled to self-defense instructions because, he argues, there was evidence sufficient to raise a reasonable doubt as to whether defendant’s act of punching Carrillo was an act of self-defense against Carrillo’s use of unreasonable force.
Self-defense instructions are required if the evidence is “sufficient to raise a reasonable doubt” (People v. Lucky (1988) 45 Cal.3d 259, 291) as to “whether a reasonable person in the defendant’s circumstances would have perceived a threat of imminent injury or death.” (People v. Humphrey (1996) 13 Cal.4th 1073, 1088.) Defendant asserts that the surveillance video that the prosecution introduced at trial and Carrillo’s trial testimony provide the requisite evidence. 
The 16-second surveillance video does not show any physical contact between Carrillo and defendant. The extremely low frame rate of the video, which makes the video appear to be a series of snapshots, results in only two frames of the video showing both Carrillo and defendant. The first five seconds of the video show Carrillo standing alone near the exit. At six seconds, Carrillo appears to be walking toward the exit, apparently on a track to meet up with defendant, who has not yet appeared on the video. The very next frame, at seven seconds, shows defendant with a handbag in his right hand and his left arm apparently moving toward Carrillo. Defendant appears to be looking to his left at Carrillo. Carrillo is to the left of defendant and has both of his arms across his chest in what appears to be a protective posture. The next frame shows defendant making his way through the exit, having already passed by Carrillo. Carrillo appears to have pivoted and hunched down to his left and has his right arm outstretched in the direction of defendant, whose back is toward Carrillo. The next frame, at eight seconds, shows Carrillo standing and looking out the exit. Defendant is no longer within sight.
Defendant claims that this video shows “Carrillo advancing on Artiaga with closed fists.” Nothing in the video shows anything of the sort. Only two frames show Carrillo and defendant. In the first of these, defendant is approaching Carrillo, and Carrillo has assumed a protective posture with his arms across his chest. In the second frame, defendant has passed by Carrillo and has his back to Carrillo. At no point does the video show Carrillo “advancing on” defendant. At most, it shows Carrillo moving toward a path that might intercept defendant. When defendant appears in the video, it is defendant advancing toward Carrillo with defendant’s arm appearing to be moving toward Carrillo and Carrillo’s arms protectively across his chest. After that, defendant is no longer looking at Carrillo, so anything Carrillo might be doing could not have constituted a basis for a person in defendant’s position to perceive a need to defend himself from imminent harm. The video does not suggest anything upon which a juror could have based a reasonable doubt as to whether defendant might have perceived that Carrillo was using unreasonable force against him.
Defendant also argues that Carrillo’s testimony provided the basis for a reasonable doubt about his need to employ self-defense. He claims that Carrillo “conceded” that a “screenshot” from the video “appeared to show that he was hitting Artiaga.” That screenshot, exhibit 3, is the second of the two frames of the video that show both Carrillo and defendant. On redirect, the prosecutor asked Carrillo: “[I]n that screen shot . . . are you trying to grab the defendant at that point, or are you . . . going back because you were just hit?” Carrillo responded: “So when he first hit me, I went like that. And then as he was leaving, I went like that, because I thought again I was going to get more punches. [¶] I know that in the picture it seems like I was the one hitting, but I was just trying to still keep distance.” Carrillo’s gestures during this testimony were described by the court. “The first movement is the one we have already seen in which he’s raised his arm. It’s bent at the elbow. And his hand is somewhat closed in coming back to him at about head level. He then stretched out his arms, both sort of from the shoulder and from the elbow and moved it away from his head.” Carrillo testified that he was “just trying to protect” himself.
Carrillo’s testimony left no room for doubt as to the sequence of events. After defendant punched Carrillo, Carrillo extended his arms to protect himself from any further punches. Since the screenshot Carrillo was responding to showed Carrillo’s conduct after the punch and after defendant passed by Carrillo, neither the screenshot nor
Carrillo’s testimony about it could have created the basis for any reasonable doubt as to whether a reasonable person would have perceived a threat of imminent injury from unreasonable force at the earlier time when defendant punched Carrillo.
Since there was no evidentiary basis for self-defense instructions, the trial court did not err in refusing to give such instructions.
The order is affirmed.
1 The information also charged defendant with misdemeanor possession of methamphetamine (Health & Saf. Code, 11377, subd. (a)) and misdemeanor possession of controlled substance paraphernalia (Health & Saf. Code, 11364) and alleged a prison prior (Pen. Code, 667.5, subd. (b)). The possession counts and the prison prior were bifurcated. Defendant pleaded no contest to the possession counts. The court found the prison prior true. However, the parties subsequently stipulated that the underlying felony had been reduced to a misdemeanor under Proposition 47, and the court dismissed the prison prior on the prosecutor’s motion.
2 The prosecutor characterized the video in argument as having “a slow frame speed” of “only one frame for every one and a half seconds.”
3 ” ‘Merchant’ ” is defined to include an employee of a retailer, such as Carrillo.
4 We assume for the sake of discussion only that self-defense could provide a defense to a robbery count. (See People v. Costa (1963) 218 Cal.App.2d 310, 316 [stating, without analysis or citation, that “[s]elf-defense is not, of course, a recognized defense to a charge of robbery.”].)