P. v. Carter

























Filed 6/29/12 P. v. Carter CA3











NOT TO BE PUBLISHED







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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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

THIRD
APPELLATE DISTRICT

(Sacramento)

----




>

THE PEOPLE, Plaintiff and Respondent, v. DONALD CARTER, Defendant and Appellant.

C067055 (Super. Ct. No. 09F05363)

Defendant
Donald Carter, charged with felony murder and the special circumstances of
killing 80-year-old Sophia McAllister while burglarizing,
robbing, and raping her, testified that he broke into her house to get the
money he desperately needed to buy more rock cocaine. He admitted he intended to commit the three
felonies, albeit in his drug induced, crazy state of mind, but he denied
intending to kill her. He reverses his
defense on appeal, now suggesting that the jury might have found that the three
felonies were only incidental to his plan to murder Mrs. McAllister.

The
distinction is, in fact, pivotal. Defendant
asserts the trial court failed to instruct the jurors sua sponte that the
prosecution had to prove that the murder was carried out to advance the
commission of the burglary, robbery, and rape or, in other words, that they
could not find the special instruction to be true if the commission of the
three felonies was merely incidental to the commission of the murder. He offers a clever and legally sound assault
on the instruction delivered by the court, an argument the Attorney General
does not appear to understand or rebut.
It is, however, a Pyrrhic victory; he wins on the law and loses on the
facts. Because there is not significant
evidence that he intended to murder Mrs. McAllister and the other felonies were
merely incidental to his plan to murder, the trial court was not obligated to
give the so-called Green instruction href="http://www.mcmillanlaw.com/">sua sponte. (People
v. Green (1980) 27 Cal.3d 1, 59-62 (Green),
superseded by statute on other grounds as stated in People v. Alcala (1984) 36 Cal.3d 604, 621-622 &
fn. 8.) We affirm.

FACTS

Few
facts are necessary to resolution of the narrow href="http://www.fearnotlaw.com/">instructional issues raised on
appeal. The essential facts are
undisputed.

In
May 1989 defendant was a heavy rock cocaine (“crack”) addict, under the
influence of “ether base” cocaine, and in need of money to replenish his
supply. Mrs. McAllister lived a couple
of blocks away, and he had stolen from her before. Knowing she was an easy target, he went to
her house to steal, but he testified he did not intend to harm her.

Defendant
went into Mrs. McAllister’s house through a window and found her in bed. She asked him to please leave. He testified he was like a “crazy man” and
out of control, and told her he needed money for drugs. The crack made him crave sex, and he tried to
talk her into having sex but she refused.
He became angry and raped her. He
was afraid she was going to yell or call for the police, so he grabbed what he
thought was a shoe, and later learned was a mallet, and struck her. He meant to quiet her, not to kill her. When he was finished raping her, he went
through her bedroom drawers, took something from the kitchen, and went back out
the window.

Mrs.
McAllister was found dead in her house.
The case went cold for 20 years.
In May 2009 the Sacramento County District Attorney’s crime lab received
information from the DNA database that it had a hit. Defendant was identified and provided a DNA
sample. Defendant ultimately confessed
to the burglary, robbery, rape, and murder of Mrs. McAllister. A jury convicted him of first degree murder
with the personal use of a deadly weapon and found that all three special
circumstances were true.

DISCUSSION

Defendant’s
argument goes like this. The trial court
instructed the jury on felony murder and special circumstance felony murder
using the exact same language. By
failing to include the only language that saves its constitutionality and
renders the felony-murder special circumstance distinct from garden-variety
felony murder, the jury was compelled to find the special circumstance true
once it found felony murder. In other
words, the truncated instruction constituted a directed verdict on the special
circumstance and thereby denied defendant his constitutional right to a jury
determination of a fact that would increase his punishment within the meaning
of Ring v. Arizona (2002) 536 U.S.
584 [153 L.Ed.2d 556]. He insists he is
not challenging the constitutionality of the special circumstance, but the
court’s failure to give an instruction consistent with the legislation and the
cases that upheld it. He relies heavily
on Green, supra, 27 Cal.3d 1 and Williams
v. Calderon (9th Cir. 1995) 52 F.3d 1465.

Curiously
missing from defendant’s argument and analysis is any mention of recent
California Supreme Court jurisprudence on the topic, the full body of the
targeted instruction, or the rich history of the standard instruction. Once the more pertinent law is digested, the
argument is not nearly as clever as it first appears.

The
Attorney General’s reply misses the mark by addressing an argument defendant
does not make. As mentioned, he is not
launching a constitutional challenge to the legislation. The Attorney General argues repeatedly that
the elements of felony murder can overlap with the elements of special
circumstance felony murder and that indeed the two share common elements. But as defendant correctly observes, the
problem is not that the instructions were similar, but that they were
identical. We turn to guidance from our
Supreme Court.

In
Green, supra, 27 Cal.3d 1, the Supreme Court observed that the
purpose of the special circumstance was to single out those “defendants who
killed in cold blood in order to advance an independent felonious purpose . . .
.” (Id.
at p. 61.) “Although the defendant in >Green technically committed a robbery,
it was clear from the evidence that it was not ‘a murder in the commission of a
robbery but the exact opposite, a robbery in the commission of a
murder.’” (People v. Valdez (2004) 32 Cal.4th 73, 113, quoting >Green, supra, 27 Cal.3d at p. 60.)
But Green was only the
beginning of the story, and defendant fails to follow its trail.

The
predecessor to CALCRIM No. 730 was CALJIC No. 8.81.17, and the second paragraph
of the latter standardized instruction derives from Green. (People v. Monterroso (2004) 34 Cal.4th 743, 766-767 (>Monterroso).) That paragraph “informed the jury that to
find the special circumstance allegation true, the prosecution must prove that
‘[t]he murder was committed in order to carry out or advance the commission of
the [target crime] or to facilitate the escape therefrom or to avoid
detection. In other words, the special
circumstance referred to in these instructions is not established if the
[target crime] was merely incidental to the commission of the murder.’ (CALJIC No. 8.81.17.)” (People
v. Taylor (2010) 48 Cal.4th 574, 628 (Taylor).)

The
Supreme Court provided additional guidance.
“The second paragraph of CALJIC No. 8.81.17 is appropriate where the
evidence suggests the defendant may have intended to murder his victim without
having an independent intent to commit the felony that forms the basis of the
special circumstance allegation. In
other words, if the felony is merely incidental to achieving the murder—the
murder being the defendant’s primary purpose—then the special circumstance is
not present, but if the defendant has an ‘independent felonious purpose’ (such
as burglary or robbery) and commits the murder to advance that independent
purpose, the special circumstance is present.”
(People v. Navarette (2003) 30
Cal.4th 458, 505 (Navarette).)

Defendant
is far from the first to challenge a trial court for delivering a truncated
version of the standardized instruction.
The central holding of these cases is “that inasmuch as >Green did not announce a new element of
the special circumstance allegation but had merely clarified the scope of an
existing element, a trial court had no sua sponte duty to provide a clarifying
instruction in the absence of evidence to support a finding that the felony was
in fact merely incidental to the murder.
[Citation.]” (>Monterroso, supra, 34 Cal.4th at p. 767.)
“Thus, a trial court has no duty to instruct on the second paragraph of
CALJIC No. 8.81.17 unless the evidence supports an inference that the defendant
might have intended to murder the victim without having had an independent
intent to commit the specified felony.”
(People v. D’Arcy (2010)
48 Cal.4th 257, 297.)

Three
cases provide fitting exemplars. In each
case, the Supreme Court found no instructional error in failing to give the >Green instruction because there was no
significant or substantial evidence to support an inference the defendant
intended to murder but not to commit the other felony. In each case, the Supreme Court marshaled the
evidence of intent.

In
Monterroso, supra, 34 Cal.4th at page 767, the court summarized the
evidence: “Here, there was no
substantial evidence to reasonably suggest defendant entered the store or
committed a robbery merely in order to murder either victim. As to the first murder, href="http://www.mcmillanlaw.com/">uncontradicted evidence revealed that
defendant shot Singh when Singh failed to comply with defendant’s orders not to
move and that defendant relied on the murder to show the other robbery victims
that he was not kidding around. Although
(as defendant points out) Singh may also have been selected because of his
race, concurrent intents to kill and to commit a felony nonetheless support a
felony-murder special circumstance.
[Citations.] As to the second
murder, defendant eliminated the only witness to the burglary-robbery. [Citaton.]
Thus, the evidence showed only that defendant committed these murders to
advance the burglary-robbery or to facilitate his escape or to avoid
detection. Inasmuch as the second
paragraph properly could have been omitted from the instructions, defendant
suffered no prejudice by the trial court’s error in phrasing the two paragraphs
in the disjunctive.”

Similarly,
in Navarette, supra, 30 Cal.4th at page 505, the court explained: “Here, the record includes no significant
evidence of any motive for the murders other than burglary and/or robbery. Defendant asserts, based on ‘the multitude of
stab wounds,’ that the killings might have been an explosive ‘unleashing of
some type of unconscious hatred for women,’ having nothing to do with robbery
or burglary. But the record does not
include any evidence (other than the brutality of the crimes) that defendant
had an unconscious hatred for women, and defendant did nothing to develop this
theory of the case at trial, making only a passing speculative reference to
this theory at closing argument.
Defendant’s primary defense at trial was that he was too intoxicated to
act with intent. Under the circumstances
of the case as presented to the jury, the second paragraph of CALJIC No.
8.81.17 was not required.”

The
same rationale has been reiterated more recently in Taylor, supra, 48 Cal.4th
at page 629: “Likewise, because there
was no evidence here reasonably suggesting that defendant intended to kill the
victim without also having an independent intent to assault her sexually, the
trial court did not err in omitting the second paragraph of CALJIC No. 8.81.17. Indeed, in this case, there was no evidence
suggesting defendant harbored any intent to kill the victim, concurrently or
otherwise. Rather, the evidence showed
that defendant entered the victim’s home unarmed. Within minutes of the entry, he pushed both
the victim and her sister into the back bedroom, where he sexually assaulted
the victim until ejaculating, and then ran from the house after pausing briefly
on his way out to take money from an open purse belonging to the victim’s
sister. The evidence showed, moreover,
that the victim’s death was attributable to cardiac arrest resulting from fear,
stress, and pain, and that a younger woman likely would have survived such an
attack. On this record, there was no
evidence from which the jury could have inferred that defendant entered the
victim’s home to murder her, and that the sexual assaults were merely
incidental to the commission of that offense.
The trial court thus did not err in omitting the second paragraph of
CALJIC No. 8.81.17 when instructing the jury on the special circumstance
allegations.”

What
defendant fails to mention is that CALCRIM No. 730 includes a bracketed option,
which, like CALJIC No. 8.81.17’s second paragraph, contains the >Green instruction he complains was
missing. That option provides:

“[3. If the defendant did not personally commit
[or attempt to commit] ____________ <insert
felony or felonies from Pen. Code, § 190.2(a)(17)>, then a
perpetrator, (whom the defendant was aiding and abetting before or during the
killing/[or] with whom the defendant conspired), personally committed [or
attempted to commit] ____________ <insert
felony or felonies from Pen. Code, § 190.2(a)(17)>;] [¶] . . . [¶]

“[In
addition, in order for this special circumstance to be true, the People must
prove that the defendant intended to commit ____________ <>insert felony or felonies from Pen. Code,
§ 190.2(a)(17)> independent of the killing. If you find that the defendant only intended
to commit murder and the commission of ____________ <insert felony or felonies from Pen. Code, § 190.2(a)(17)>
was merely part of or incidental to the commission of that murder, then the
special circumstance has not been proved.]”

The
question thus presented is the same question raised in Monterroso, Navarette,
and Taylor: was there sufficient evidence from which the
jury could have inferred defendant entered Mrs. McAllister’s house to murder
her, and the burglary, robbery, and rape were merely incidental to the murder? The answer is the same resounding no. Indeed, the inference defendant now asks us
to draw is antithetical to the defense he offered at trial.

After
all, defendant confessed to burglary, robbery, and rape. His defense was predicated on his addiction
to rock cocaine and the fact he was under the influence of a powerful strain of
the substance at the time. He testified
to his motive to steal from Mrs. McAllister so he could get more crack. And he was emphatic that he never intended to
hurt her. He grabbed what he thought was
a shoe, merely intending to quiet her.
On this record, as in Monterroso,
Navarette, and Taylor, there is no evidence the felonies were committed in the
commission of a murder, but rather the murder was committed in the commission
of the felonies. There is no evidence of
any motive for murder other than the burglary and robbery. To the contrary, defendant testified to the
independent felonious purpose required by Green
to differentiate special circumstance murder from other felony murders. The trial court did not, on this record, have
a sua sponte obligation to include the Green
instruction.

II

Defendant’s
second argument is a slight variation on the first but cast through the prism
of his voluntary intoxication defense.
In a replay of his closing argument, he argues that he was in a
crack-induced state of craziness, out of control, and behaving like a
monster. This evidence, he insists, is
sufficient for the jury to reject the notion that he intended to commit either
the felonies or the murder. Rather,
because he was incapable of rational thought, he committed the offenses “based
on an autonomic internal process that did not involve any sort of cognitive
intent.” With his mental state at issue,
he claims the trial court erred by failing to instruct the jury that the
special circumstance requires a union of act and intent, and that he must have
committed the murder to “‘carry out or advance the commission of’” the
felony. We disagree.

First,
we agree with the Attorney General that the instructions, when viewed as a
whole, properly embody the principle that the defendant must intentionally
commit the prohibited act with the requisite specific intent. As for the special circumstance instruction,
the court followed CALCRIM No. 730.
This standard instruction provides:

“The
defendant is charged with the special circumstance of murder committed while
engaged in the commission of Burglary, Robbery and/or Rape in violation of the
Penal Code section 190.2(a)(17).

“To
prove that this special circumstance is true, the People must prove that:

“1)
The defendant committed Burglary, Robbery and/or Rape;

“2)
The defendant intended to commit Burglary, Robbery and/or Rape;

“3)
The defendant did an act that caused the death of another person;

“And

“4)
The act causing the death and the Burglary, Robbery and/or Rape were part of
one continuous transaction;

“To
decide whether the defendant committed Burglary, Robbery and/or Rape, please
refer to the separate instructions that I will give you on those crimes. You must apply those instructions when you
decide whether the People have proved this special circumstance.”

CALCRIM
No. 730 identifies both the act and the intent the jury must find to support a
special circumstance. The union was
further explained with even greater clarity in CALCRIM No. 252, as follows:

“The
crime and other allegations charged in Count One [murder] require proof of the
union, or joint operation, of act and wrongful intent.

“The
allegation of personal use of a deadly or dangerous weapon (Penal Code section
12022(b)(1)) requires general criminal intent.
For you to find this allegation true, the person must not only commit
the prohibited act, but must do so with wrongful intent. A person acts with wrongful intent when he or
she intentionally does a prohibited act, however, it is not required that he or
she intend to break the law. The act
required is explained in the instruction for that crime or allegation.

“The
following crimes and allegations require a specific intent or mental
state: Penal code section 187(a) Murder,
as charged in Count One; Burglary as alleged in Special Circumstance No. 1;
Robbery as alleged in Special Circumstance No. 2; and Rape as alleged in
Special Circumstance No. 3. For you to
find a person guilty of the crime of Murder or to find Special Circumstances
No. 1, No. 2, and No. 3 true, that person must not only intentionally commit
the prohibited act, but must do so with a specific intent and mental
state. The act and the specific intent
and/or mental state required are explained in the instruction for that crime or
allegation.”

Thus,
the jury was properly instructed on the union of act and intent. Defendant could have requested more
specificity, but he did not. Absent a
request, it was not incumbent on the trial court to provide any greater
clarity. Based on the instructions
given, there is no reasonable likelihood the jury misconstrued or misapplied
the instructions. (People v. Maury (2003) 30 Cal.4th 342, 437.)

As
to defendant’s defense that he was incapable of cognitive thought and rational
decision making, the jury found otherwise following proper instruction on
voluntary intoxication. The court
explained to the jury: “You may consider
evidence, if any, of the defendant’s voluntary intoxication only in a limited
way. You may consider that evidence only
in deciding whether: 1) the defendant
acted with express malice; 2) the defendant acted with deliberation and
premeditation; 3) the defendant acted with the specific intent required to commit
the offenses alleged in Special Circumstances No. 1 (Burglary), No. 2 (Robbery)
or No. 3 (Rape); and 4) the defendant intended and acted with the specific
intent to commit the offense of Burglary, Robbery or Rape under the theory of
felony murder.

“A
person is voluntarily intoxicated if he or she becomes intoxicated by willingly
using any intoxicating drug, drink, or other substance knowing that it could
produce an intoxicating effect, or willingly assuming the risk of that effect.

“You
may not consider evidence of voluntary intoxication for any other purpose.”

Defendant
had ample opportunity to present his defense.
Both he and his sister testified to the devastating and debilitating
effects of cocaine addiction, testimony that was given additional credibility
by experts in the field. The testimony
was recapped in a cogent final argument on behalf of the defense, followed by
the instructions on voluntary intoxication.
The jury, therefore, was well-informed and rejected the defense.

Cast
under the same instructional error umbrella, defendant also asserts the trial
court failed to instruct sua sponte that the jury must find the murder was
committed for the purpose of carrying out or advancing the commission of the
underlying felony. But this argument is
nothing more than a restatement of the argument we rejected above. The intoxication defense does not provide the
evidence missing to trigger a sua sponte obligation to give the instruction.

To
say that the murder was committed for the purpose of carrying out or advancing
the commission of the underlying felony is but another way of saying that the
murder must be intended to advance an independent felonious purpose. The commission of any murder during the
course of a felony may constitute felony murder, but it is not sufficient to
establish the special circumstance. This
is ground we have thoroughly covered. In
this iteration of the argument, however, defendant seems to suggest that
because he testified he was acting crazy—like a monster, not a rational man—the
jury could have drawn the reasonable inference that he did not have an intent
to commit any of the felonies.

Unfortunately,
such a revision is at odds with defendant’s testimony at trial. He was clear and direct about his
motivation. He went to Mrs. McAllister’s
house to rob her. As a result, he
entered the house with the intent to commit a felony and thereby committed the
charged burglary. While there, he
testified he had the urge to have sex with her and he forced himself upon her. As a result, his testimony refutes his
appellate theory. He intended to steal
to obtain money for the crack he desperately needed. The murder occurred during the execution of
his burglary, rape, and robbery and not the other way around. Because an instruction that the murder must
be committed for the purpose of carrying out or advancing the commission of the
underlying felony is, for all intents and purposes, another reformulation of
the Green instruction, we conclude
there was no significant evidence upon which the jury could reasonably infer
that the felonies were merely incidental to the murder. There was no href="http://www.fearnotlaw.com/">instructional error.

III

Defendant
and the Attorney General agree that the sentencing issues are moot. The trial court has remedied the alleged errors.

DISPOSITION

The
judgment is affirmed.







RAYE , P. J.







We concur:







NICHOLSON , J.







MAURO , J.