People v. Darling CA3, C093492A

April 6, 2020: Victim Darryl Jackson seated outside a fast-food restaurant was struck by defendant Dylan Darling; surveillance video shows ~30-second scuffle in which defendant kneels/presses victim’s head/neck while defendant’s right hand is obscured. Victim’s wallet later recovered from defendant’s girlfriend’s truck.
Victim did not feel defendant in the pocket; on recross he said video made it "look like" defendant tugged the pocket.
Defendant’s girlfriend (a defense witness) said defendant was intoxicated, they were arguing, and there was no plan to rob anyone.
Indictment: second-degree robbery (§ 211) with a prior serious felony. Jury convicted and found the prior true; trial court sentenced to 11 years (middle term doubled + five-year prior).
On appeal Darling argued (1) insufficient evidence of robbery, (2) trial court misread CALCRIM No. 376 (possession of recently stolen property) orally, and (3) erroneous giving of CALCRIM No. 372 (flight).
After rehearing the court accepted the parties’ concession that Assembly Bill 124 (amending § 1170(b)) applies retroactively (defendant was under 26), affirmed the conviction, vacated the sentence, and remanded for resentencing.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency of evidence for robbery	Evidence and video support inference defendant formed intent during struggle and used force to divert attention to take wallet	Video does not show taking; victim didn’t feel hand in pocket; wallet may have been taken later — no evidence of intent during force	Affirmed — viewing evidence in favor of verdict, jury could infer intent formed during scuffle and force was used to effect the taking
Trial court misread CALCRIM No. 376 (recently stolen property) orally	Misreading harmless because jurors received correct written instructions and were instructed to use them	Misreading lowered the People’s burden and could have misled jurors	Harmless error — written instructions were correct and the record supports presumption jury followed them
Instruction of CALCRIM No. 372 (flight)	Substantial evidence (leaving, returning, getting into girlfriend’s truck) supports flight inference	Departure was not deliberate flight; actions consistent with intoxication or looking for girlfriend with keys	No error — substantial evidence permitted giving the instruction; jury could infer flight though innocent explanations were possible
Application of Assembly Bill 124/resentencing	AB 124 is ameliorative and retroactive under Estrada; defendant was a "youth" under § 1016.7	(Conceded)	Sentence vacated and case remanded for resentencing under AB 124

Mullins v. People, 19 Cal.App.5th 594 (robbery force/fear can include conduct that overcomes or distracts victim)
In re Estrada, 63 Cal.2d 740 (ameliorative statutory changes apply retroactively absent contrary legislative intent)
Letner & Tobin v. People, 50 Cal.4th 99 (intent to steal must be formed before or during the act of force)
U.S. v. Reynolds, 20 M.J. 118 (diversionary contact/patting can constitute force for robbery by enabling unnoticed removal)
Osband v. People, 13 Cal.4th 622 (oral misstatement of instruction is harmless where written instructions are correct)
Waidla v. People, 22 Cal.4th 690 (standard of review for claimed instructional error; review de novo for legal correctness)
Ross v. People, 155 Cal.App.4th 1033 (party entitled to instruction if supported by substantial evidence)