Prosecutor committed prejudicial error by telling the jury that the “fear” element of robbery is judged by an objective rather than subjective standard. Collins put store merchandise into his bag. When approached by the store’s assistant manager, Collins extended an arm to push him but the manager stepped out of the way. Collins then pulled a knife out of his pocket and made it visible to the manager, who stepped further back and allowed Collins to leave without paying. He was convicted of second degree robbery (Pen. Code, § 211) with a weapon use enhancement (Pen. Code, § 12022, subd. (b)(1)) found true. On appeal, he argued, inter alia, that the prosecutor misstated the law regarding the “fear” element of robbery. Held: Reversed and remanded. CALCRIM No. 1600, the pattern jury instruction for robbery, requires the jury to find that the defendant used force or fear to take property from a person’s immediate possession or to prevent the person from resisting. Although the instruction defines “fear,” it does not specify whether the jury must find that (1) the victim was actually, subjectively in fear, or (2) an objective, reasonable person in the same circumstances would have been in fear. Here, the prosecutor repeatedly told the jury an objective standard applies and that it did not “matter if anybody is afraid.” This was error, as the law requires proof of the victim’s actual, subjective fear. Under the circumstances of this case, the error was prejudicial because the prosecutor’s comments were repeated and vehement; the trial court refused the defendant’s request for a supplemental instruction on “fear” in favor of letting the jury “sort that out;” CALCRIM No. 1600 does not speak to the issue; and the evidence in the case was close as the victim repeatedly denied being actually afraid. The robbery conviction was reversed but because there was substantial evidence to sustain a finding of guilt, the case was remanded for possible retrial. [Editor’s Note: The dissent would have affirmed on the basis that the prosecutorial error was not prejudicial.]

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/documents/B304853.PDF