People v. Copeland, 2017 Cal. App. Unpub. LEXIS 8039 (CA Ct. App. 2017)
Court of Appeal of California, Fourth Appellate District, Division Three
November 22, 2017, Opinion Filed
2017 Cal. App. Unpub. LEXIS 8039 | 2017 WL 5622973
THE PEOPLE, Plaintiff and Respondent, v. JASON KHAMBREL COPELAND, Defendant and Appellant.
James M. Kehoe, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
Judges: IKOLA, J.; MOORE, ACTING P. J., ARONSON, J. concurred.
Opinion by: IKOLA, J.
Jason Khambrel Copeland (Copeland) was convicted of second degree robbery, based on the theory he aided and abetted his girlfriend’s theft of items from a Walmart store when he physically intervened to stop store security from detaining her. Copeland argues the conviction must be reversed because he was denied his right to effective assistance of counsel when his attorney declined to request a jury instruction explaining that “defense of another” was a justification for his conduct.
We affirm the judgment. As Copeland acknowledges in his brief, “defense of another” is “‘a legal justification of battery.'”  But he was charged with robbery, not battery, and he does not explain why his non-culpability for battery would also exonerate him from the robbery charge. He offers no basis for his conclusory assertion that “[he] had to be acquitted if he acted in reasonable defense of another,” and consequently no basis for us to conclude his trial counsel was deficient for failing to seek an instruction on that point.
We conclude there is no reasonable probability the outcome of Copeland’s case would have been different had the jury been instructed on “defense of another.” Copeland’s culpability for robbery turned on the intention underlying his actions, not on their aggression. In order to convict him of robbery based on aiding and abetting, the jury had to conclude both that he knew his girlfriend was committing a robbery and that he “intended to aid and abet [her] in committing the crime.” (CALCRIM No. 401.) And while Copeland denied any knowledge of the robbery, and claimed his actions in the Walmart parking lot had been merely an instinctive effort to rescue his girlfriend from unknown assailants, his conviction on the charge reflects the jury disbelieved him on both points.
When the jury convicted Copeland of robbery, it necessarily concluded he did know his girlfriend was engaged in a robbery and that he had intervened with the intention of helping her succeed. Given those findings, we cannot see how an instruction on “defense of another” would have altered the outcome.
In March 2015, Copeland went to a Walmart store in Garden Grove with his girlfriend, Ashley Wright (Wright). He waited outside with two bicycles while Wright went into the store. While in the store, Wright was observed hiding items in her purse.
When Wright left the store without paying for the items in her purse, she was approached by two male “Asset Protection associates,” both of whom were dressed in black street clothes. They showed her their Walmart employee badges, and one clipped his badge onto his shirt. They asked Wright to return to the store, but she kept saying, “no, no, no, no” and continued walking. The associates stood close to Wright, and one put his hand over her shoulder, albeit without touching her. Asset protection associates are trained to create a barrier around a person suspected of shoplifting, and to encourage them to return to the store, but not to touch them.
A female Walmart store manager, who was wearing a bright green Walmart vest, also approached Wright and assisted in the effort to guide her back to the store. Wright was told she had been observed concealing items in her purse while she was in the store. But Wright kept walking toward Copeland and the bicycles, and the manager followed her. Wright then grabbed her bicycle from Copeland and put her purse in the front basket. At that point, the two male asset protection associates were about 19 feet away. The manager tried to block the path in front of Wright’s bicycle, and may have attempted to grab the purse from Wright’s basket.  She asked Wright to cooperate and return the items.
Wright started to ride away, while the manager was still imploring her to give the items back to the asset protection associates. At that point, Copeland rushed up on the side of the manager and struck her on the head above her right ear. After hitting the manager, Copeland fled on his bicycle. Wright dropped her purse to the ground and rode away as well.
Copeland was apprehended a short while later, after an Electronic Benefit Transaction (EBT) card with his name on it was found in Wright’s purse. During an interview at the police station, Copeland denied having knowledge that Wright was going inside the Walmart store to steal food, although he admitted knowing she had stolen from stores in the past. He explained “she knows I don’t like that s*** so she never tells me.”
Copeland explained his assessment of the situation as it was happening was that “[t]hey were trying to get [Wright] for stealing.” But he also claimed he “[d]idn’t think about that at the moment. I just wanted her to get free.” He admitted “push[ing] someone” who he claimed was “swarming [Wright],” and that he did so “so she could get away.” He stated he acted “off a natural instinct” and reiterated he “didn’t expect [Wright] to steal.”
Copeland also testified at trial. He claimed he did not think Wright had been stealing anything from the Walmart store until he was already riding away, and realized the people who had accosted her “were saying like ‘hey, we’re security.'” At that point, “[it] came to [Copeland’s] mind that they were probably employees and that Ashley might have done something in there.” He stated that when he met up with Wright after they had both fled the Walmart parking lot, she admitted to him she had stolen items from the store.
In his argument to the jury, Copeland’s counsel emphasized Copeland’s claim that he did not know Wright planned to steal anything from Walmart, and highlighted the evidence supporting that claim, including the fact Copeland had given Wright his EBT card so that she could purchase food. Also, counsel argued Copeland did not realize the people accosting Wright when she left the store were Walmart employees, and he simply acted out of an instinct “to go to her rescue” because she appeared to be in a dangerous situation.
Ineffective Assistance of Counsel
In order to obtain a reversal on the grounds of ineffective assistance of counsel, Copeland must demonstrate both that his trial counsel’s performance—was deficient under an objective standard of professional responsibility—i.e., that his counsel erred—and that it is reasonably probable he would have received a more favorable result at trial in the absence of counsel’s error. (Strickland v. Washington (1984) 466 U.S. 668, 693-694, 104 S. Ct. 2052, 80 L. Ed. 2d 674.) “A defendant must prove prejudice that is a ‘”demonstrable reality,” not simply speculation.’ [Citation.] Prejudice requires ‘a reasonable probability that a more favorable outcome would have resulted . . . , i.e., a probability sufficient to undermine confidence in the outcome.'” (People v. Fairbank (1997) 16 Cal.4th 1223, 1241, 69 Cal. Rptr. 2d 784, 947 P.2d 1321.)
“[W]hen considering a claim of ineffective assistance of counsel, ‘a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.'” (People v. Fairbank, supra, 16 Cal.4th at p. 1241.)
Because we conclude Copeland has failed to make any showing of prejudice, we address that issue first.
Copeland’s assertion that the outcome of his trial would likely have been different if his counsel had requested the jury be instructed on “defense of another” is straightforward: He simply claims that “[he] had to be acquitted if he acted in reasonable defense of another.” But as Copeland otherwise acknowledges, “defense of another”—which is analogous to a claim of self-defense (People v. King, supra, 22 Cal.3d at p. 20)—is a justification for battery and other would-be crimes that are based on a use of force. (Pen. Code, § 692 [“Lawful resistance to the commission of a public offense may be made”].)
But in this case, Copeland was charged with robbery, not battery. And nowhere does he explain how “defense of another” would absolve him of culpability for that crime.
As established at trial, Copeland’s culpability for the charged robbery was based on a theory he had aided and abetted his girlfriend. And when the jury convicted him on that basis, it necessarily found that he knew Wright was committing a robbery and that he additionally intended to aid or encourage her. (People v. Cooper (1991) 53 Cal.3d 1158, 1164, 282 Cal. Rptr. 450, 811 P.2d 742 [“A person aids and abets the commission of a crime when he or she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime.”].) Copeland’s jury was instructed on those elements of aiding and abetting, and the instruction also summarized: “Someone aids and abets a crime if he knows of the perpetrator’s unlawful purpose and he specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator’s commission of the crime.”
Giving the jury an additional instruction regarding “defense of another” would have done nothing to negate its conclusion that Copeland knew Wright intended to steal items from Walmart. Although Copeland did deny that knowledge, and explained Wright had not told him because she knew he disapproved of her prior acts of theft, the jury disbelieved him. And once the jury reached the conclusion that Copeland knew about Wright’s planned theft, it inevitably concluded that Copeland’s intervention, after Wright was confronted in the parking lot, amounted to an effort to aid her in the commission of that crime. Indeed, as Copeland himself acknowledged to the investigator after his arrest, he did it “so she could get away.”
At most, Copeland seems to be suggesting that if the jury had been instructed on “defense of another,” it would have been more likely to interpret his intervention in a benign fashion—to view him as someone who was only trying to defend his girlfriend from unknown strangers, rather than as a knowing accomplice to her crime. But Copeland’s counsel—and Copeland himself—had already made that same point to the jury. After all, Copeland never denied striking the Walmart manager in an effort to help Wright get away. He and his counsel simply asserted he had done so out of fear for Wright’s safety, rather than any plan to aid in her commission of a robbery. The jury squarely rejected that view of the situation.
And because we know the jury rejected Copeland’s claim that he was merely acting instinctively, out of fear for his girlfriend’s safety, when he intervened on her behalf in the Walmart parking lot, we cannot conclude it is reasonably probable that instructing that same jury on a theory of “defense of another” would have changed the outcome of this case.
Having concluded there is no possible prejudice from counsel’s failure to request a jury instruction on “defense of another,” we need not separately assess whether counsel’s performance was deficient under an objective standard of professional responsibility.
The judgment is affirmed.
MOORE, ACTING P. J.
1. It can also be employed as a justification for what would otherwise be a criminal use of force in other contexts, including those involving the use of a firearm or other weapon. (See People v. King (1978) 22 Cal.3d 12, 148 Cal. Rptr. 409, 582 P.2d 1000.)
2. The manager denied she ever reached for the purse, but one of the asset protection associates testified he observed her putting her hand on it.