P. v. Butler

Filed 8/19/08 P. v. Butler CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN

APPEAL from a judgment of the Superior Court of Los Angeles County. Kathleen Kennedy-Powell, Judge. Affirmed.

J. Kahn, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.

_______________________

Appellant Kenneth Wayne Butler (Butler) was charged by the Los Angeles County District Attorney with murder in violation of Penal Code section 187, subdivision (a),[1]attempted robbery in violation of sections 664 and 211, and conspiracy to commit robbery in violation of section 182, subdivision (a)(1). The Third Amended Information further alleged that the murder was committed while Butler was engaged in the commission of a robbery within the meaning of section 190.2, subdivision (a)(17), and that Butler had two prior convictions within the meaning of section 667.5, subdivision (b).[2] A jury found Butler guilty of all charges and also found the robbery-murder special circumstance to be true. Butler admitted the prior conviction allegations. The trial court sentenced Butler to life imprisonment without the possibility of parole on the murder charge, plus two years based on the prior convictions. The court also imposed, but stayed three-year terms on the conspiracy and attempted robbery convictions.

Butler raises several arguments on appeal. First, he contends that his convictions for murder and attempted robbery should be reversed because they were based solely on the uncorroborated testimony of an accomplice. Second, he argues that the trial court committed reversible error in refusing to instruct the jury on the lesser included offenses of second degree murder and voluntary manslaughter. Third, he challenges the sufficiency of the evidence supporting his convictions for murder and attempted robbery and the special circumstance finding on the grounds that the evidence failed to establish that Butler had the specific intent to commit the crime of robbery, that he aided and abetted in the commission of a murder and attempted robbery, and that he was a major participant in the robbery attempt. Lastly, he claims that the cumulative effect of the errors alleged denied him due process and a fair trial. For the reasons set forth below, we affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

I.                   The Prosecutions Case

A.                 The Physical Evidence

On January 29, 2006, at 12:20 a.m., Los Angeles police officers responded to the Huntington Hotel (Huntington) in downtown Los Angeles following reports of a shooting. The Huntington was an old, run-down hotel known for drug dealing and prostitution. A steel security door in the lobby prevented anyone from entering the upper levels of the hotel where the rooms were located unless a desk clerk let them in. Upon the officers arrival, they were directed to the third floor. In Room 347, they found a man on the floor with blood coming from under his shirt. He was alive and talking, but said that he could not breathe. An officer asked the man who shot him, but received no reply.

In their search of Room 347, officers found blood-stained clothing on the bed, 20.88 grams of cocaine on a table, and a purse containing a drivers license for a Linda McDowell. Officers also discovered two guns in a microwave a .380 caliber semi-automatic handgun with one bullet in the firing chamber and two bullets in the magazine, and a fully-loaded revolver that did not appear to have been fired. A shell casing was found on the floor outside the doorway and a second casing was recovered from the corner of the room. Neither shell casing matched the semi-automatic firearm found in the microwave, but both were fired from the same gun. There were no bullet holes in the room and no blood in the hall.

The victim, later identified as Marvin Williams (Williams), died from multiple gunshot wounds on January 29, 2006 at 1:30 a.m. One bullet entered his body from the front and traveled to the back in a slightly downward trajectory. This bullet struck the aorta which carried blood to the heart, causing a fatal hemorrhage. It was most consistent with a bullet from a .380 semi-automatic handgun, but it did not match either firearm found in the room. A second bullet, which was not recovered, entered his body at the waist in an upward trajectory and exited at a 45 degree angle through the right side of the back. The medical examiner also found four old bullet wounds and scars on Williams forearm that were consistent with needle track marks. Toxicology tests performed on Williams showed the presence of codeine, ephedrine, and a high level of morphine, an opiate consistent with heroin.

On February 10, 2006, sometime after midnight, co-defendant Harris was arrested at the Cecil Hotel in downtown Los Angeles, approximately one and a half blocks from the Huntington. Officers searched Harris at the time of his arrest and recovered a cell phone and several receipts. Butler was arrested on February 21, 2006 at a Los Angeles apartment occupied by Harris wife, Carrie King. Officers also recovered a cell phone from Butler at the time of his arrest. Pursuant to a search warrant executed on February 10, 2006 for Carrie Kings apartment, officers retrieved a black hooded sweatshirt, health insurance cards in Harris name, and a Lincoln Navigator registered to Harris and a Charles Ray. The Navigator had Harris prints on the drivers side front fender and Butlers prints on the passenger side front and rear doors.

The custodian of records for Sprint-Nextel examined the cell phone records for a pre-paid Boost Mobile phone purchased by an Earl Harlis on January 17, 2006. The call history was contained in a SIM card which was removable and could be inserted into other Sprint-Nextel cell phones. The SIM card associated with this account was found in the cell phone recovered from Butler at the time of his arrest. The actual handset phone for this account was recovered from Harris when he was arrested. The cell phone records revealed that, on January 28, 2006, the SIM card that was recovered from Butler made a call at 9:32 p.m. and received a call at 11:07 p.m. Both calls were made or received via a cell phone tower near the Huntington. On January 29, 2006, the SIM card received calls at 2:06 a.m. and 2:17 a.m. via a cell phone tower near the Compton area. The call at 2:06 a.m. was made from another pre-paid cell phone registered to an Earl Harris to the SIM card recovered from Butler.

B.                The Accomplice Testimony

Charles Ray (Ray) testified at trial under a grant of use immunity. In January 2006, he was a drug addict who was homeless but mostly stayed around the Huntington. He knew Harris and Butler and considered them both as friends. Ray bought crack cocaine from Harris and also worked for him as a lookout when Harris sold drugs. Butler helped Ray by buying him food and telling him to get off drugs when Ray was messing up. According to Ray, Harris and Butler had a business relationship selling crack cocaine at the Huntington. Although they did not live at the hotel, Harris and Butler were together at the Huntington three or four days a week and would remain there while they sold drugs. In January 2006, Harris and Butler ran their drug operation out of Room 253 which was a crack house where people could purchase drugs 24/7. Harris and Butler sold crack cocaine to other individuals at the hotel who would then serve the drugs to the addicts in the room. Harris was the brains of the operation, but split the profits with Butler.

Harris and Butler were not the only drug dealers at the Huntington. Williams, also known as Diamond, sold heroin and crack cocaine from Room 347 on the third floor. A person named T sold crack cocaine from Room 209. Another individual known as Green Eyes sold marijuana from a room across from Williams and had an ongoing feud with Harris and Butler. Kevin Smith (Smith) sold drugs for Harris from a room across from T and also prostituted women to purchase crack cocaine. According to Ray, the Huntington was an open market competition for drug dealers, but one that had begun to dwindle because many dealers could not keep up with the pace.

Ray testified that, on January 28, 2006, around 7:00 or 8:00 p.m., Harris invited him to a meeting in Room 253. Butler and two other individuals were also present at the meeting. Harris discussed a plan to eliminate his competition by robbing Williams and T and making them leave the hotel. Harris decided that they would rob Williams first and T later. Harris also indicated that they would need to involve Smith because he used to date Williams girlfriend and would take care of her if she posed a problem during the robbery. Ray became afraid when advised of the plan, but Harris told him not to worry because he was going to get paid. As Harris discussed the details of the robbery, Butler simply listened. Harris and Butler then loaded guns. Harris firearm was a semi-automatic handgun. Butlers gun was a nine millimeter handgun that Ray recognized as one he had owned. According to Ray, he had purchased the gun in a prior drug deal and had left it in Room 253. Ray first saw Harris and Butler with guns about 30 minutes after they discussed the plan to rob Williams.

As the men waited in Room 253 for Smith to arrive, Harris instructed Ray to find out where Williams was in the hotel. Ray reported back that he saw Williams leaving Ts room and returning to his own room. About an hour later, Harris gave Ray money to purchase heroin from Williams so that they could confirm he was still in his room. Ray went to Williams room and bought the heroin. Ray asked if he could come back to buy more, but Williams said that he did not have any more drugs and closed the door.[3] Through the closed door, Ray heard Williams tell someone that Ray had never bought drugs from him before and that it was weird. Upon returning to Room 253, Ray told Harris that homeboy is spooked, but Harris shrugged it off. Ray then went into the bathroom to smoke crack cocaine.

Smith eventually arrived and Harris explained the plan. Afterward, Smith and Ray went into the hallway to smoke crack cocaine. Ray told Smith, Man I really dont want to do this. Smith replied that he did not want to do it either because T was his boy, but indicated that he was angry at Williams because Williams took his woman. Smith also told Ray that he owed Harris $2,700 for drugs. Smith then walked back to his room and did not return. Ray went back to Room 253 where Harris and Butler were waiting. Ray testified that he agreed to help with the robbery because he wanted crack cocaine. Ray also stated that he was afraid that his relationship with Harris would be over if he did not agree to the plan.

Ray testified that, approximately four hours after the initial meeting about robbing Williams, Harris indicated that it was time to go. The men approached Williams room in two separate groups from opposite directions. Harris went up one staircase with one or two individuals, while Butler and Ray took another set of stairs at the opposite end of the hall. The men all wore hooded sweatshirts with the hoods pulled over their heads, which Ray described as their basic uniform. Harris wore a blue hooded sweatshirt and Butler wore a blue or black one. They also wore gloves to avoid leaving fingerprints. Ray did not see whether Harris or Butler were armed as they departed for Williams room.

When the men arrived on the third floor, Ray placed tape over the peephole of Green Eyes door which was across from Williams. He did so at Harris direction because Green Eyes was their enemy and they did not want him to come out shooting. Ray then went to Williams door, which did not have a peephole, where Harris and Butler were waiting. Ray did not see Harris or Butler holding a gun as they stood at Williams door.

Ray testified that, immediately before he knocked on Williams door, Harris told him for the first time that they were not going to rob Williams and that Harris just want[ed] to talk to him. Ray then knocked on the door and told Williams that it was him. According to Ray, as he knocked on the door, he was still in the frame of mind that Williams was going to get robbed. Ray also was afraid that if he did not move away from the door, he might get caught in the crossfire because he was aware that Williams had a gun. As Williams opened the door, Harris was standing on Rays right side and Butler was to his left. Ray stepped back and heard a sound like someone bumping against a piece of furniture and stumbling. He then heard three gunshots -- one loud shot followed by two lesser shots. Ray testified that Williams was the first person to shoot and that he fired his gun as soon as he opened the door. Harris fell to the ground. As he was falling, Harris took out a gun and fired two shots at Williams.

Immediately after the shooting, Ray heard a woman scream from inside the room. He saw Harris on the ground, but did not see Butler. Ray helped Harris up and they ran down the hall. At the end of the hallway, Harris and Ray ran into Butler. The three men continued downstairs and returned to Room 253. Once inside the room, Harris and Butler took out their guns and placed them on a white towel. They then locked the door and left the hotel. According to Ray, he went into a crack coma shortly after the shooting and spent the next several hours sleeping. The following day, Harris found Ray asleep in a car. Harris asked him if he had warned Williams and Ray replied that he had not. Harris told Ray that Williams was dead and that he should not go back to the Huntington.

On January 30, 2006, Smith was arrested at the Huntington for a parole violation. The following day, Ray contacted the police because he heard that Smith had implicated him in Williams shooting and he was afraid of being charged with murder. Ray told the police that the shooting was in self-defense.

At trial, Ray admitted that, in January 2006, he smoked crack cocaine on a daily basis. Although he had been prescribed psychotropic medication in the past to treat bipolar disorder and schizophrenia, Ray was not taking his medication in 2006. As a result, he would have delusions and hear voices, particularly when he smoked crack cocaine. Ray further acknowledged that on the day of Williams shooting, he was smoking crack cocaine throughout the day. However, he indicated that he consumed significantly less cocaine in the hours preceding the shooting because he had to wait with Harris and Butler and they did not allow Ray to smoke around them. Ray stated that the last time he used any illegal drugs was on February 16, 2006. He also testified that his account of Harris and Butlers actions on the night of Williams shooting was not a hallucination or delusional thinking.

C.                The Non-Accomplice Testimony

1.                  Linda McDowell

Linda McDowell (McDowell) testified under a grant of use immunity. At the time of her testimony, she was in custody for a probation violation following a conviction for narcotics possession. McDowell also had served prior sentences for narcotics possession and second degree commercial burglary. In January 2006, McDowell was a cocaine addict who had stayed at the Huntington periodically for many years. She was Williams girlfriend and was living with him at the hotel on the day of the shooting. Because the Huntington had a policy that required guests to move into a different room every 28 days, Williams and McDowell moved into Room 347 during the third week of January 2006. Room 347 did not have a peephole.

McDowell testified that Williams was a drug dealer who sold heroin and cocaine from his room at the Huntington. He also was a heroin addict. Williams spent several hours a day at the hotel with another cocaine dealer named T, whom Williams referred to as his uncle. When Williams was released from prison, T helped him out by vouching for Williams so that he could stay at the Huntington. Although McDowell obtained her drugs from Williams, she knew other drug dealers who worked out of the hotel, including Smith and Harris. McDowell had a prior sexual relationship with Smith and procured drugs from him before she started dating Williams. She was aware that Harris also sold drugs at the Huntington and she saw him at the hotel at least once a day. McDowell did not personally know Butler, but recalled that he was present at the Huntington about once a week. The vast majority of the time that McDowell saw Butler, he was with Harris. McDowell testified that Williams kept two firearms in his hotel room for protection an automatic handgun and a revolver. When someone knocked on the door, McDowell typically would answer while Williams stood to the side with a loaded gun in hand. They would open the door only a crack because they were concerned about being robbed.

Approximately two weeks before Williams shooting, T was arrested. According to McDowell, after Ts arrest, Williams was no longer accepted at the Huntington. A few days before the shooting, Harris and Butler warned McDowell that Williams should not be selling drugs at the hotel. On that occasion, Harris and Butler approached McDowell as she was walking toward the hotel lobby. They walked on either side of her and each put his arm around her shoulders. Harris and Butler told her that they were cool with her, but she had to tell her old man to quit what he was doing.[4] Harris also said, He thinks he is a bad ass. We know that he has guns. We have them too. McDowell was afraid and continued walking to the parking lot. She then returned to her room and told Williams about the threat. Additionally, McDowell testified that she saw several arguments between Harris and Williams in the two weeks before the shooting. She did not hear what was said on those occasions, but observed that their body language showed aggression and anger.

On January 28, 2006, Williams and McDowell went to sleep around 8:00 p.m. after consuming their usual amount of drugs. A few hours later, they heard a knock at the door. Williams grabbed his automatic handgun and motioned for McDowell to stay in bed. He was moving sluggishly toward the door. According to McDowell, although it was their practice to only open the door a crack, Williams appeared to open the door wide on this occasion as he held his gun downward. McDowell then heard three gunshots one shot followed by two back-to-back shots and saw Williams fall backward holding his gun toward the door. McDowell did not know where each shot originated from or who fired a weapon first. However, she believed that Williams did not fire first because he had his gun pointed downward when he opened the door.

McDowell ran toward Williams as soon as she heard the gunshots. She saw one tall figure in the hallway wearing a black hooded sweatshirt. McDowell was not wearing her glasses when the shooting occurred and she could not determine the race or gender of the figure in the hall nor discern any facial features. She did observe that the person held an automatic gun and either wore dark gloves or had dark hands. McDowell also believed that the person was very dark skinned and that his height, build and skin tone resembled those of Harris. She testified that she saw the figure falling sideways across the doorway as the shots were fired.

After the shooting, McDowell grabbed the revolver and ran down the hall, but did not see anyone. She then returned to the room to aid Williams. When she realized that he was badly injured, she called 911. As they waited for an ambulance, Williams told McDowell to take some money and leave. McDowell testified that she was panicked and concerned that she was on felony probation and that the police would assume she shot Williams. She put the two guns in the microwave and grabbed some money from Williams pocket, but did not take any of the drugs that were on the table. After a security guard arrived, McDowell left. She then went to Smiths room and told him what happened. McDowell gave money to Smith to buy heroin for the addicts in the room so that no one would leave and talk to the police. Smith later helped McDowell leave the hotel. She drove Williams car around for hours and then went to another hotel in downtown Los Angeles where she was arrested a few days later.[5]

2.                  Paul Foley

Foley bought and sold drugs at the Huntington. In 2006, he was a cocaine addict who consumed drugs on a daily basis and occasionally did narcotics business with Harris. Foley knew both Harris and Butler from the hotel and believed that they did narcotics business together, but he was not sure if they were business partners. Foley also knew Williams whom he described as a wannabe pimp and drug dealer. When the shooting of Williams occurred, Foley was standing in the far side of the third floor hallway. He was under the influence of drugs at the time, but he did not believe that his perception was altered terribly.

Foley testified that he saw two groups of two or three individuals come up the stairs from opposite ends of the hallway and converge at Williams door. They wore dark hooded sweatshirts with the hoods drawn over their heads. Foley initially heard a knock on Williams door. When the door was opened, he immediately heard two shots from outside the room followed quickly by a third shot from inside the room that sounded like a different caliber gun.[6] He then heard a woman scream. Foley did not see the face of the shooter or any of the other individuals standing outside the door. However, he believed that one of them was Ray based on his body language. Foley was not sure whether Harris and Butler were among the men at the door, but he did not recall seeing anyone as tall as Harris.

Immediately after the shooting, Foley saw the group disband and flee down the stairs. He also ran downstairs to Smiths room where a number of people were doing drugs. McDowell came to Smiths room five to 10 minutes later, crying and visibly shaken. Sometime after McDowell left, the police arrived and detained everyone in the room.

II.                The Defense Case

After the prosecution rested, defense counsel moved to acquit Butler and Harris of all charges pursuant to section 1118.1. Counsel primarily argued that any attempted robbery or conspiracy to commit robbery was abandoned at Williams door when Harris told Ray that they were not going to rob Williams, but simply talk to him. Counsel also contended that the shooting of Williams was in self-defense because Williams fired his weapon first. The trial court denied the motion for acquittal. Neither Butler nor Harris testified at trial or presented any evidence in their defense.

III.             Jury Instructions and Verdict

Prior to the close of evidence, the parties discussed with the trial court proposed jury instructions. Defense counsel requested specific instructions on second degree murder and voluntary manslaughter based on imperfect self-defense. The prosecution argued against those instructions on the grounds that it was proceeding solely under a felony murder theory. After hearing argument from counsel, the trial court denied the request for the lesser included offense instructions. The trial court instructed the jury on first degree felony murder, but not on manslaughter or murder based on malice aforethought. The jury found Butler guilty of first degree murder, attempted robbery, and conspiracy to commit robbery. The jury also found that the murder of Williams was committed while Butler was engaged in the commission of a robbery within the meaning of section 190.2, subdivision (a)(17). Butler filed a timely appeal.

DISCUSSION

I.                   Butlers Murder and Attempted Robbery Convictions were Supported by Evidence that Sufficiently Corroborated the Accomplice Testimony.

Butler first contends that his murder and attempted robbery convictions should be reversed because they were based solely on the uncorroborated testimony of Ray who was an accomplice to the crimes as a matter of law. Section 1111 provides, in relevant part, that [a] conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. ( 1111.) Accordingly, [t]o corroborate the testimony of an accomplice, the prosecution must produce independent evidence which, without aid or assistance from the testimony of the accomplice, tends to connect the defendant with the crime charged. [Citation.] (People v. Szeto (1981) 29 Cal.3d 20, 27.)[7]

The corroborating evidence required by section 1111 may be circumstantial or slight and entitled to little consideration when standing alone. (People v. Abilez (2007) 41 Cal.4th 472, 505.) Such evidence need not corroborate every fact to which the accomplice testified and need not by itself establish every element of the crime. (People v. Davis (2005) 36 Cal.4th 510, 543; People v. McDermott (2002) 28 Cal.4th 946, 986.) Although the corroborating evidence must do more than raise a conjecture or suspicion of guilt, it is sufficient if it tends in some degree to implicate the defendant. [Citation.] (People v. Szeto, supra, 29 Cal.3d at p. 27.) Moreover, [u]nless a reviewing court determines that the corroborating evidence should not have been admitted or that it could not reasonably tend to connect a defendant with the commission of a crime, the finding of the trier of fact on the issue of corroboration may not be disturbed on appeal. [Citation.] (Ibid.) In this case, we conclude that the corroborating evidence was sufficient to satisfy the requirements of section 1111 because it tended to connect Butler with the charged offenses by establishing both motive and opportunity.

First, the corroborating testimony of McDowell was sufficient to show that Butler had a motive to commit the crimes against Williams. McDowell testified that a few days before the shooting, Harris and Butler approached her as she walked from her room at the Huntington, put their arms around her shoulders, and warned her that Williams needed to cease dealing drugs at the hotel. Harris also said that they knew Williams had guns and that they had guns too. McDowells testimony about this threat against Williams corroborated Rays account that the motive for the robbery was to eliminate the drug competition by forcing Williams to flee the hotel.

Butler argues that, during the conversation with McDowell, Harris was the one who made the threat against Williams while Butler remained silent. Although McDowell initially recalled that Harris did the talking, she acknowledged that she told the police shortly after the shooting that it was Butler who initiated the conversation and Harris who then interjected that Williams had to quit what he was doing. She further testified that her prior statement to the police was in fact accurate and the best account of the threat. Additionally, McDowell was clear in her testimony that both Butler and Harris placed their arms around her shoulders and walked closely beside her as Harris warned that they too had guns. McDowells testimony was sufficient to demonstrate that Butler was a direct participant in the threat against Williams.

Second, independent evidence established that Butler had the opportunity to commit the charged offenses because he was present at the scene of the crime around the time of Williams shooting. The cell phone records reflected that, on the night of January 28, 2006, shortly before the shooting, a telephone using a SIM card later recovered from Butler made and received calls from a location near the Huntington. This physical evidence corroborated Rays testimony that Butler was present at the hotel between 8:00 p.m. and midnight, the time period during which the robbery attempt was planned and executed. The cell phone records also showed that a telephone using the SIM card recovered from Butler received a call from another cell phone registered to Harris within a few hours after Williams shooting.

Butler asserts that the cell phone records are insufficient corroboration because the call history solely tracked the SIM card which was removable and could be transferred to other cell phones. However, no evidence was offered that Butler obtained the SIM card only after the shooting. To the contrary, Butlers possession of the SIM card within a month of the shooting presented sufficient circumstantial evidence to place him at the scene of the crime. While it is true that mere presence at the crime scene does not, by itself, satisfy the requirements of section 1111, the corroborating evidence in this case also established Butlers motive. (See, e.g., People v. Szeto, supra, 29 Cal.3d at pp. 27-29 [corroborating testimony on defendants motive and opportunity to aid in the shooting of a rival gang member was sufficient circumstantial evidence tending to connect defendant to the crime]; People v. McDermott, supra, 28 Cal.4th at p. 986 [accomplice testimony was sufficiently corroborated by evidence tending to show defendants motive to kill the victim, presence at the crime scene, and telephone correspondence with the accomplice around the time of the killing].) The prosecution therefore presented sufficient independent evidence to corroborate the accomplice testimony.

II.                The Trial Court Did Not Commit Reversible Error in Refusing to Instruct the Jury on Lesser Included Offenses of Murder.

Butler argues that the trial court erred in refusing his counsels request for jury instructions on second degree murder and voluntary manslaughter as lesser included offenses of a charge of murder. California law has long provided that a trial court has a duty to instruct a jury on any lesser offense necessarily included in the charged offense if there is substantial evidence that only the lesser offense was committed. (People v. Birks (1998) 19 Cal.4th 108, 112.) A particular offense is considered a lesser included offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser. [Citation.] (People v. Breverman (1998) 19 Cal.4th 142, 154, fn. 5.) This rule ensures that the jury will be exposed to the full range of verdict options which, by operation of law and with full notice to both parties, are presented in the accusatory pleadingitself and are thus closely and openly connected to the case. (People v. Birks, supra, at p. 119.)

Although a trial court has a duty to instruct on lesser included offenses, the duty only arises if the evidence raises a question as to whether the elements of the charged offense are present. (People v. Wilson (2008) 43 Cal.4th 1, 16.) The duty does not arise if there is no substantial evidence that the offense committed was less than charged. (Ibid.) Substantial evidence is evidence sufficient to deserve consideration by the jury, that is, evidence that a reasonable jury could find persuasive. [Citation.] (People v. Lewis (2001) 25 Cal.4th 610, 645.) Absent substantial evidence, a trial court does not err in refusing to instruct a jury on a lesser included offense of murder. (People v. Cunningham (2001) 25 Cal.4th 926, 1008-1009.)

It is well-settled that the crimes of second degree murder and voluntary manslaughter are lesser included offenses of first degree murder. (People v. Blair (2005) 36 Cal.4th 686, 745 [second degree murder]; People v. Rios (2000) 23 Cal.4th 450, 461 [voluntary manslaughter].) Second degree murder is an unpremeditated killing committed with malice aforethought. (People v. Seaton (2001) 26 Cal.4th 598, 672.) Voluntary manslaughter is an intentional and unlawful killing committed without malice aforethought. (People v. Rios, supra, at pp. 460-461.) Voluntary manslaughter, based on imperfect self-defense, is committed when the defendant kills in the actual, but unreasonable belief in the need to defend oneself or another against imminent peril to life or great bodily injury. (People v. Rogers (2006) 39 Cal.4th 826, 883; People v. Manriquez (2005) 37 Cal.4th 547, 581.)

The Third Amended Information charged Butler with murder in violation of section 187, subdivision (a), based on malice aforethought. It did not specifically charge him with felony murder, although it did include the special circumstance allegation that the murder was committed while Butler was engaged in the commission of a robbery. During the course of the trial, the prosecution decided to proceed solely on a felony murder theory and the jury ultimately found Butler guilty of first degree felony murder. However, because the Third Amended Information charged Butler with murder based on malice aforethought, the prosecutions decision to try the case solely on a felony murder theory did not relieve the trial court of its duty to instruct on lesser included offenses of malice-based murder. Instead, the scope of the trial courts duty to instruct on second degree murder and voluntary manslaughter depended on whether there was substantial evidence to support those instructions, i.e., whether there was evidence that, if believed by the jury, would support a finding that Butler was guilty of a crime less than felony murder. (See People v. Anderson (2006) 141 Cal.App.4th 430, 444-446 [where the accusatory pleading charged malice-based murder but the prosecution proceeded solely on a felony murder theory, the trial court had a duty to instruct on second degree murder and voluntary manslaughter if they were supported by substantial evidence].)

Butler contends that there was substantial evidence to support a finding of second degree murder or voluntary manslaughter based on imperfect self-defense. His self-defense theory rests primarily on the testimony of Ray who asserted that neither Butler nor Harris had guns drawn as they approached Williams room and that, before knocking on the door, Harris said they were not going to rob Williams, but simply talk to him. Ray further testified that once Williams opened the door, Williams fired his weapon first and only then did Harris return fire, killing Williams. Ray did not see Butler during the ensuing gunfire, but instead found him at the end of the hallway a few seconds after the shooting ended. Based on this evidence, Butler argues that any attempt to rob Williams was abandoned before they knocked on his door, and thus, the killing was not committed during the commission of a robbery, but rather was in self-defense.

We need not determine, however, whether there was substantial evidence to support a finding of second degree murder or voluntary manslaughter. Even if we assume that there was substantial evidence, we conclude that any error by the trial court in failing to instruct on these lesser included offenses was harmless. Error in failing to instruct the jury on a lesser included offense is harmless when the jury necessarily decides the factual questions posed by the omitted instructions adversely to defendant under other properly given instructions. [Citation.] (People v. Horning (2004) 34 Cal.4th 871, 906; People v. Lewis, supra, 25 Cal.4th at p. 646.) In People v. Horning, for instance, the defendant was convicted of first degree felony murder and argued on appeal that the trial court erred in failing to instruct the jury on second degree murder as a lesser included offense. (People v. Horning, supra, at pp. 904-905.) The California Supreme Court held that any such error was harmless because the jury was instructed on the robbery-murder and burglary-murder special circumstances and found both special circumstances to be true. (Id. at p. 906.) In so doing, the jury found that defendant killed the victim in the perpetration of robbery and burglary, which means it necessarily found the killing was first degree felony murder. (Ibid; see also People v. Lancaster (2007) 41 Cal.4th 50, 85 [finding that an alleged error in failing to instruct on second degree murder was harmless because the jury returned a true finding on the kidnapping-murder special circumstance [citation], and therefore necessarily rejected the factual theory on which defendants argument for a second degree murder instruction rests]; People v. Prince (2007) 40 Cal.4th 1179, 1268 [rejecting argument that the trial court erred in failing to instruct on second degree murder in part because the jury found true the special circumstance allegation that he killed [the victim] in the course of a rape or attempted rape [citation], thereby specifically establishing that the jury determined that the [victims] murder was a felony murder].)

Here, the jury was instructed that, to find the robbery-murder special circumstance to be true, it must be proved that [t]he murder was committed while a defendant was engaged in or was an accomplice in the commission or attempted commission of a robbery. (CALJICNo. 8.81.17.) The jury found the special circumstance true as to both Harris and Butler. In so doing, it necessarily rejected Butlers argument that the killing was committed in self-defense because the robbery had been abandoned by the time Williams was shot. Instead, the jury found that the killing was committed while Butler and Harris were engaged in the commission of a robbery, which means it necessarily found that the killing was felony murder.

Butler notes that the jurys deliberations lasted for four days during which it asked the trial court two questions about the special circumstance instruction.[8] Butler argues that this suggested that the jurors wanted to find the special circumstance allegation true as to Harris as the principal actor, but doubted whether it had been proven true as to Butler. Contrary to Butlers contention, however, the jurys questions were not targeted toward his specific role in the robbery attempt and do not reflect doubt as to whether Butler aided and abetted in the commission or attempted commission of the robbery. Moreover, as our Supreme Court concluded in People v. Horning, questions posed by the jury during deliberations cannot detract from the verdicts the jury ultimately rendered, which show that it found the killing to be felony murder. (People v. Horning, supra, 34 Cal.4th at p. 906.) Because the jury in this case found that Williams was killed while Butler was engaged in the commission of a robbery, it necessarily found that the killing was felony murder and nothing less. Any alleged failure by the trial court to instruct on lesser included offenses was accordingly harmless error.

III.             Butlers Murder and Attempted Robbery Convictions and Special Circumstance Finding Were Supported by Sufficient Evidence.

Butler also challenges the sufficiency of the evidence supporting his murder and attempted robbery convictions and the robbery-murder special circumstance. In reviewing the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Kipp (2001) 26 Cal.4th 1100, 1128.) We do not resolve conflicts in the evidence or reevaluate the credibility of witnesses. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Rather, we draw all reasonable inferences in support of the judgment and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] (People v. Davis (1995) 10 Cal.4th 463, 509.) The test on appeal is not whether we believe the evidence established the defendants guilt beyond a reasonable doubt, but whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.] (People v. Davis, supra, at p. 509.)

A. The Evidence Was Sufficient to Show That Williams Was Assaulted for the Purpose of Theft.

Butler argues that his attempted robbery conviction and robbery-murder special circumstance finding should be reversed because the evidence was insufficient to show that Williams was assaulted for the purpose of theft. Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear. ( 211.) To establish an attempted robbery, there must be a specific intent to commit a robbery and a direct, but ineffectual act toward its commission. (People v. Kipp (1998) 18 Cal.4th 349, 376.) The intent must be formed either before or during the commission of the act of force. (People v. Tafoya (2007) 42 Cal.4th 147, 170.) The direct, but ineffectual act must go beyond mere preparation, and it must show that the perpetrator is putting his or her plan into action, but the act need not be the last proximate or ultimate step toward commission of the substantive crime. [Citation.] (People v. Kipp, supra, at p. 376.) [I]t is sufficient if it is the first or some subsequent act directed towards that end after the preparations are made. [Citations.] (People v. Memro (1985) 38 Cal.3d 658, 698.)

Abandonment is a defense to a charge of attempted robbery, but only if the attempt to commit the crime is freely and voluntarily abandoned before the act is put in the process of final execution. [Citation.] (People v. Claborn (1964) 224 Cal.App.2d 38, 41.) When it is established that the defendant intended to commit a specific crime and that in carrying out this intention he committed an act that caused harm or sufficient danger of harm, it is immaterial that for some collateral reason he could not complete the intended crime. [Citation.] (People v. Dillon (1983) 34 Cal.3d 441, 453.) Accordingly, a person cannot avoid responsibility for acts committed which constitute an attempt to commit a crime either by voluntarily abandoning his purpose or because he was prevented or interfered with in completing the crime. [Citation.] (People v. Ross (1988) 205 Cal.App.3d 1548, 1554.) [S]ubsequent events tending to show . . . abandonment are irrelevant once the requisite intent and act are proved. [Citations.] (People v. Dillon, supra, at p. 454.)

In asserting that there was insufficient evidence to establish that he had a specific intent to rob Williams, Butler relies on the testimony that he did not talk at the meeting in which Harris planned the robbery, that Harris said before they knocked on Williams door that they were not going to rob him, and that no property was taken from Williams room during the assault. There was sufficient evidence, however, that Butler and Harris were in the business of selling drugs at the hotel where Williams was a rival dealer and that they made a threat against Williams within a week before the shooting. Although Ray did not recall Butler saying anything in the meeting about the robbery plan, he testified that both Butler and Harris loaded guns during that meeting. Additionally, Butler was among the four or five men who went up to Williams room at midnight, wearing dark hooded sweatshirts and gloves and approaching his room from opposite directions. Butler was also standing beside Ray and Harris as they knocked on Williams door.

Butlers argument that the evidence was insufficient to show intent because Harris abandoned the robbery attempt does not withstand scrutiny. By the time Harris told Ray that they were not going to rob Williams, Butler and Harris had already armed themselves with guns, had converged at Williams room, and had arranged for Ray to cover the peephole of a rival dealers door. A reasonable jury could find that, at that point in the plan, Butler had not only formed an intent to rob Williams, but also had committed direct, ineffectual acts toward the commission of the crime. Any subsequent abandonment by Harris became irrelevant to the attempted robbery charge once these overt acts occurred. Furthermore, a reasonable jury could find that the robbery attempt never actually was abandoned given that Butler and Harris went forward with their plan to confront a rival drug dealer, armed with guns and supported by two or three other men, and proceeded to knock on his door with their hoods drawn over their heads. Ray himself testified that, as he was knocking on Williams door, he was still in the frame of mind that Williams was going to get robbed and that Ray was going to get caught in the crossfire.

Butlers claim that there was no intent to rob Williams because nothing was taken from his room likewise lacks merit. Butler cannot avoid liability for his role in the attempted robbery simply because Williams interfered with the completion of the crime by firing his weapon first. Once Williams opened the door and began shooting, it is not surprising that his assailants chose to flee rather than try to force their way into the room to complete the robbery. The evidence was therefore sufficient to show that Butler had a specific intent to commit robbery and that the crime was not abandoned, but rather was thwarted by Williams.

B. The Evidence Was Sufficient to Show That Butler Aided and Abetted in the Commission of the Crimes.

Butler also challenges the sufficiency of the evidence supporting his murder and attempted robbery convictions on the grounds that the evidence failed to establish that he aided and abetted in the commission of the crimes. 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. [Citations.] (People v. Hill (1998) 17 Cal.4th 800, 851.) The requisite intent to aid in the crime must be formed prior to or during the commission of the offense. (People v. Cooper (1991) 53 Cal.3d 1158, 1164.) An aider and abettor has the requisite intent when he or she knows the full extent of the perpetrators criminal purpose and gives aid or encouragement with the intent or purpose of facilitating the perpetrators commission of the crime. (People v. Beeman (1984) 35 Cal.3d 547, 560.) The liability of an aider and abettor extends also to the natural and reasonable consequences of the acts he knowingly and intentionally aids and encourages. [Citation.] (Ibid.) Accordingly, all persons who aid or abet in the commission of a robbery are guilty of first degree murder when one of them kills while acting in furtherance of the common design. (People v. Dickey (2005) 35 Cal.4th 884, 900.)

Butler contends that the evidence was insufficient to establish that he was armed with a gun or even present at Williams door when the shooting occurred. Instead, he asserts the evidence showed that he was nowhere near Williams room during the exchange of gunfire, and thus, he had no way of knowing that Williams had been shot. Butlers attempt to minimize his involvement in the shooting, however, is not supported by the evidence. First, the evidence was sufficient to support that Butler was present at the scene of the crime when Williams was shot. Contrary to Butlers claim, no witness stated that he was elsewhere on the day of the shooting, and neither McDowell nor Foley testified that Butler was not one of the men at Williams door. They simply were unable to positively identify him as one of the perpetrators. Ray, on the other hand, testified that Butler was standing beside him as Williams opened the door, an instant before the shooting. Almost immediately after Williams opened the door, Ray heard three gunshots. He then saw Harris on the ground, but did not see Butler. Harris and Ray re-encountered Butler at the end of the hallway a few seconds later and the three men returned to their room before fleeing the hotel. At best, Rays testimony supported the inference that, as Harris and Williams were exchanging gunfire, Butler was running away from the shooting and toward the escape route. The testimony is not consistent with Butlers claim that he was nowhere near the scene of the crime when Williams was shot.

Second, the evidence was sufficient to support the inference that Butler was armed at the time of the shooting. Ray testified that he saw Butler load a nine millimeter gun at the meeting about the robbery plan. Ray further testified that, immediately after the shooting, Harris and Butler returned to Room 253 where Ray saw them take out their guns and place them on a white towel. Given this sequence of events, the mere fact that Ray did not see Butler with his gun drawn as they stood at Williams door did not demonstrate that Butler was unarmed. Instead, a reasonable jury could conclude that Butler aided and abetted in the attempted robbery of Williams by participating in the meeting in which the robbery was planned, by arming himself with a gun during that meeting, by walking up to Williams room with four or five other men wearing dark clothing and gloves, and by standing with Harris and Ray at Williams door. Once it was proved that Butler aided and abetted in the attempted robbery and that Williams was killed during the commission of that robbery, Butler also became liable for Williams murder as an aider and abettor. Butlers murder and attempted robbery convictions were supported by sufficient evidence.

C. The Evidence Was Sufficient to Show That Butler Was a Major Participant in the Attempted Robbery.

Butler asserts that the robbery-murder special circumstance finding should be reversed because the evidence was insufficient to establish that he was a major participant in the attempted robbery. In order to support a finding of special circumstances murder, based on murder committed in the course of robbery, against an aider and abettor who is not the actual killer, the prosecution must show that the aider and abettor had intent to kill or acted with reckless indifference to human life while acting as a major participant in the underlying felony. ( 190.2, subds. (c), (d).) (People v. Hodgson (2003) 111 Cal.App.4th 566, 578, footnote omitted.) There is no requirement that a major participant be the triggerman or ringleader or one whose participation was of greater importance than the other participants. (People v. Proby (1998) 60 Cal.App.4th 922, 931.) Rather, a major participant in the underlying felony includes persons who are notable or conspicuous in effect or scope and one of the larger or more important members or units of a kind or group. (Ibid.)

Here, the evidence was sufficient to show that Butler was a major participant in the planning and execution of the attempted robbery. The evidence established that Butler and Harris were partners in a drug operation at the Huntington and wanted to eliminate Williams, a rival dealer, as their competition. There was no evidence that any of the other participants in the robbery attempt shared a similar motive. Butler also participated in the planning of the robbery by attending the meeting at which Harris discussed the details of robbing Williams. Although other individuals were also present in the room, only Butler and Harris armed themselves with guns during the meeting. A few hours later, Butler and Harris went to Williams room and stood by Rays side as he knocked on Williams door. Immediately after the shooting, Butler, Harris and Ray returned to Room 253 where Butler, along with Harris, took out his gun and placed it on a white towel. The three men then left the hotel. Contrary to Butlers claim, his role in the attempted robbery was important and conspicuous in effect or scope. (People v. Proby, supra, 60 Cal.App.4th at p. 931.) The evidence was therefore sufficient to support the robbery-murder special circumstance.

IV.              There Was No Cumulative Error.

Butler last contends that the cumulative effect of the claimed errors deprived him of due process of law and a fair trial. We disagree. Whether considered individually or for their cumulative effect, none of the errors alleged affected the process or accrued to Butlers detriment. (People v. Sanders (1995) 11 Cal.4th 475, 565.) As the California Supreme Court has observed, a defendant is entitled to a fair trial but not a perfect one. [Citations.] (People v. Cunningham, supra, 25 Cal.4th at p. 1009.) In this case, Butler received a fair trial.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ZELON, J.

We concur:

PERLUSS, P. J.

WOODS, J.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Property line Lawyers.

San Diego Case Information provided by www.fearnotlaw.com

[1] All further statutory references are to the Penal Code.

[2] Earl Harris, III (Harris), was named as a co-defendant on all counts and was charged with additional firearm allegations.

[3] Ray told the police in a tape-recorded statement that he tried to warn Williams during this visit, advising him, Man, you better watch your back. At trial, Ray testified that he did not remember making that statement, but if it was recorded, then that was what he said.

[4] McDowell initially testified that Harris did the talking. However, after her prior statement to the police was read back to her, McDowell clarified that Butler made the initial comment about them being cool with her and then Harris interjected that she needed to tell her old man to quit.

[5] McDowell was not charged with any drug-related offenses in connection with the narcotics found in Williams room. Her attorney told her that any sentence on a drug-related conviction would run concurrently with the time being served on her probation revocation.

[6] On cross-examination, however, Foley acknowledged that he had consumed drugs prior to the shooting and that it was possible that he heard one shot followed by two shots a few seconds later.

[7] Butler did not challenge the sufficiency of the corroborating evidence when he moved for an acquittal at the close of the prosecutions case. However, the California Supreme Court has held that, in making a motion to acquit pursuant to section 1118 or 1118.1, the defendant was not required to specify the basis for the motion, and hence, was not precluded from arguing on appeal that the prosecutions evidence failed to satisfy the requirements of section 1111. (People v. Belton (1979) 23 Cal.3d 516, 519‑522; see also People v. Martinez (1982) 132 Cal.App.3d 119, 127-129 [motion for acquittal on grounds that there was no direct evidence of defendants guilt was procedurally adequate to preserve a challenge on appeal to the sufficiency of the prosecutions corroborating evidence].) We therefore conclude that Butler has not forfeited his argument here.

[8] On the fourth day of deliberations, the jury asked about the meaning of the term escape therefrom as used in the instruction that, to find the robbery-murder special circumstance to be true, it must be proved that [t]he murder was committed in order to carry out or advance the commission of the crime of robbery or to facilitate the escape therefrom. (CALJIC No. 8.81.17.) In reference to that same instruction, the jury also asked whether it could find that [t]he murder was committed in order to carry out or advance the commission of the crime of robbery if the robbery was not completed because no property was taken. (Ibid.)