P. v. Harvest
Filed 1/29/13 P. v. Harvest CA1/4
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
JOSHUA
EDWARD HARVEST,
Defendant and Appellant.
A125036
(Contra
Costa County
Super. Ct. No. 059334178)
Joshua
Edward Harvest appeals from a judgment upon a jury verdict finding him guilty
of second degree murder. He contends that the trial court erred in
instructing the jury on the theories of aiding and abetting of implied malice
murder and second degree felony murder.
He also argues that the court erred in refusing to strike a
co-perpetrator’s testimony who refused to answer any questions despite a grant
of immunity. We affirm.
PROCEDURAL BACKGROUND
On
June 5, 1998, this court
affirmed defendant’s conviction of first degree murder in this case and
reversed a second degree murder conviction resulting from the killing of
Michael Gialouris on June 26, 1993. (People
v. Harvest (June 5, 1998, A068802 [nonpub. opn.]); order modifying opinion
filed on July 2, 1998.) We reversed the
conviction for second degree murder with directions to the trial court to
modify the judgment to reflect a conviction of voluntary manslaughter if the
People elected not to retry him. The
People elected not to retry defendant.
The trial court sentenced defendant to 25 years to life for the first
degree murder conviction and to a consecutive 11-year aggravated term for the
On
May 5, 2003, the United
States District Court for the Northern District of California denied
defendant’s petition for habeas corpus.
The Ninth Circuit Court of Appeals affirmed the denial in part but
reversed it in part, finding error in the trial court’s admission of certain
accomplice testimony. The Ninth Circuit
directed “ ‘the district court to order the state to release the petitioner
unless the state either modifies the conviction to one for second degree murder
or retries the petitioner.’ †On March
23, 2005, the federal district court issued the order giving the State 60 days
in which to either release defendant or initiate proceedings to modify the
conviction to second degree murder or retry defendant. The Attorney General’s office failed to
transmit the order to the District Attorney of Contra Costa County. (Harvest v. Castro (9th Cir. 2008) 531 F.3d
737.) The error was not discovered until
July 22, 2005. (Id. at p. 740.) At that
point, the Attorney General’s office nevertheless waited three more days before
officially bringing the error to the District Attorney’s attention, thereby
allowing the District Attorney’s office time to file a new complaint in
superior court recharging defendant with the murder and providing time for the
superior court to issue a no-bail warrant for defendant’s arrest. (Id. at
p. 747.)
On
August 2, 2005, the federal district court granted the State’s application for
an extension of time in which to comply with the court’s order. On July 9, 2008, the Ninth Circuit Court of
Appeals reversed the district court’s order, directing the district court to
issue an unconditional writ of habeas
corpus releasing defendant from custody.
(Harvest v. Castro,
State from rearresting and retrying defendant.
(Id. at p. 750, fn. 9.)
The
retrial, which commenced on September 28, 2008, is the subject of this appeal.
FACTS
The
evidence at trial revealed the following:
At
approximately 3:00 a.m. on July 4, 1993, Deputy Beardsley was on patrol when he
responded to a dispatch call to Inlet Drive between Shore Boulevard and the
Port Chicago Highway in West Pittsburg.
There, he found a body later identified as Joel Vigil, lying on the
ground. Vigil’s face was encrusted with
blood, his head was in the gutter and his pants were down around his
ankles. Vigil was dead, having suffered
a cerebral hemorrhage due to a penetrating wound of the left temple. Vigil had also suffered five additional
wounds to the left side of his face and head.
The wounds were inflicted with a blunt instrument. Coal chisels or spikes could have been used
to inflict the wounds. Vigil also had
several abrasions on his face that could have been caused by kicking and
stomping.
The
police arrested defendant on July 7, 1993.
A videotape of the police interrogation of defendant was played for the
jury. Defendant told the police that on
July 3, 1993, Charles “Chuckie†Myers and James Pittman picked him up at a
friend’s house.
title="">[1] They went to Myers’ house after defendant
picked up some beer. Defendant had been
drinking all day. They left Myers’ house
and went to Roy Jobe’s house. Pittman
left to go to his house and then quickly returned to Jobe’s, saying that there
was a man near his house shooting up heroin with a prostitute. Defendant stated that he, Myers and Pittman,
carrying chisels that were similar to railroad spikes, went after Vigil because
he was shooting up heroin and being orally copulated by a prostitute in front
of Pittman’s home. They did not like
people who used heroin, and did not like prostitutes in the neighborhood. Defendant later said that the reason they
attacked Vigil was because Pittman wanted the truck. He admitted that he punched Vigil a couple of
times but claimed that he did not stick the chisel through his head. He threw the chisels in the river.
Defendant
explained that the incident began when someone threw a chisel through the back
window of Vigil’s truck and hit Vigil in
the head. Defendant then also struck
Vigil with a chisel through the window and ran up to the driver’s side of the
truck and opened the door. He hit Vigil
and stabbed him near his eye. The
prostitute screamed and took off running.
Defendant and Pittman pulled Vigil out of the truck. Vigil fell over on his side and hit his
head. Pittman stomped on Vigil’s head
about four or five times. They then
dragged Vigil to the back of the truck and tried to pick him up, but he was too
heavy. Myers got the chisel out of the
truck and he and Pittman drove off in Myers’s pickup. Defendant took off running but then returned
and drove off in Vigil’s truck.
Myers testified for the prosecution. Prior to his testimony, the jury was informed
that Myers admitted committing two felonies in juvenile court in 1993, and that
the crimes involved moral turpitude and could be considered by the jury for the
limited purpose of determining Myers’s credibility as a witness. Myers had also testified at defendant’s first
trial in August 1994 and at Pittman’s trial in December 1994. When he testified in 1994, he had already
been committed to the California Youth Authority. He remained incarcerated until his 25th
birthday.
Myers
testified that during the early morning hours of July 4, 1993, he was with
defendant and Pittman. They were at
Jobe’s house when Pittman handed him and defendant each a metal spike. Pittman told them, “ ‘Let’s go over
there and whip this guy’s ass.’ â€
They took off and went around the corner, with defendant running off
ahead of them. He saw defendant at the
driver’s side of a pickup, striking Vigil’s head. He did not know whether defendant punched
Vigil or stabbed him. Myers threw a
chisel through the rear window of the truck.
Pittman also threw a chisel,
striking the back of Vigil’s head.
At some point, Myers removed a chisel from the cab of the pickup.
Myers
also testified that earlier that evening, defendant had suggested that they rob
the Bonfare market. He admitted that in
defendant’s prior trial, he testified that he told the police defendant said,
“ ‘Die, motherfucker, die’ †as he stabbed Vigil.
After
the attack, they returned to Myers’s house.
Defendant and Pittman had blood on their pants and hands. They went to the bathroom to wash the blood
off their hands.
Wendy
Morse Nguyen testified that in 1993, she was a prostitute and a heroin
addict. On the morning of July 4, 1993,
Vigil was her client and she was orally copulating him at the time of the
attack. She heard a window break, then
saw Vigil being hit and stabbed in the head.
She heard people talking. She
tried to get the truck in gear to get away when Vigil’s head fell forward. Blood splattered onto her and she got out of
the truck and ran. As she fled, she saw
Pittman standing some distance from the rear of the truck. She had seen Pittman walk past the truck
about five to ten minutes before she heard the truck’s window break.
Richard
Rios’s testimony at defendant’s prior trial was read to the jury. He was 16 on July 4, 1993. Sometime between 2:00 and 3:00 a.m. that
morning, he was at the Bonfare Market on Port Chicago Highway when defendant
drove up in a black pickup truck. The
truck was bloody on the inside.
Defendant told Rios that he had just killed someone. Defendant had blood all over his hands. He drove away without getting out of the
truck.
At
approximately 3 a.m. on July 4, Barbara Popejoy heard a crash outside her home
on Levy Road in West Pittsburg. She went
outside and saw the pickup truck crashed into the fence outside her house.
Sarah
Potter was Myers’s girlfriend in July 1993.
She was then 16 years old and was at Myers’s house on the evening of
July 3, 1993. She testified that Myers,
Pittman, and defendant were at Myers’s house drinking. They were talking about doing a drive-by and
stealing a car. They were a little
intoxicated.
Potter
further recalled that Myers, Pittman, and defendant left the house about
2:00 a.m. on July 4, 1993, saying that they would be back in 15
minutes. When they returned, Pittman
said that he had killed a man that was in a truck. He had thrown an object through the window of
the truck that he thought had killed him.
Pittman also said that he had kicked the man outside the truck because
he thought he was still alive. He
further said that he should have been a baseball player because he threw the
spike so hard. Defendant said that he
had stabbed the man in the eye when he opened the door of the truck. Potter also testified that she saw blood on
the front of defendant’s shoes and that Pittman had blood on his
Witness
Chris Lerch denied that he told the police a day or two after the murder that
he and defendant had a conversation about the man who was killed, and that
defendant made some statements about the killing. A DVD of the police interview of Lerch in
July 1993 was played for the jury.
During the interview, Lerch said that defendant told him he killed the
man in the truck with a metal bar.
Defendant told him that the man was shooting heroin and was with a
hooker in the truck. Defendant also told
Lerch that he was going to beat the guy up and take his truck.
The
court granted Pittman use and derivative use immunity pursuant to section
1324. When the People called him as a
witness, however, Pittman refused to answer any questions about the killing,
replying, “I have nothing to say.†The
court thereafter admonished Pittman that if he refused to testify, the People
and the Board of Prison Terms could consider or use his failure to testify as a
reason to deny him parole in future parole proceedings. When Pittman continued to refuse to answer
any questions, the court found him in contempt of court.
Various
bloody shoeprints were found at the scene.
At the time of his arrest, defendant had abrasions on his hands. When Pittman was arrested, he did not have
any injuries on his hands, but he had a blistered area on his left hand that
was healing and a slight abrasion on his right wrist area. Defendant’s left palm print was found on the
left door window on the driver’s side of Vigil’s truck. The parties stipulated that blood was found
on defendant’s shoes.
A. Jury Instructions
Defendant
contends that the trial court committed prejudicial error in its instructions
to the jury on several theories of second degree murder. We conclude that any
Defendant
first argues that the court erred in its instructions on aiding and abetting of
implied malice murder because the instructions permitted the jury to convict
him of second degree murder on the theory that he could be derivatively liable
as a direct aider and abettor of implied malice murder. As defendant acknowledges, however, the jury
was given several alternative theories on how it might arrive at a second
degree murder verdict, and we fail to discern, in light of the evidence, the
arguments of counsel, and the instructions given, how the jury could have
convicted defendant on the theory he advances.
The
prosecution’s theory was that defendant was the perpetrator of the murder and
that Pittman and Myers aided and abetted him in the commission of the
offense. To the extent that defendant
relied on the theory that he was culpable only as an aider and abettor to
Pittman, the jury was appropriately instructed on the standard instructions for
aiding and abetting an implied malice murder.
In
People v. Beeman (1984) 35 Cal.3d
547, 560, our Supreme Court considered the standard aiding and abetting
instructions then in effect and concluded that in order to support a conviction
for aiding and abetting there must be “proof that an aider and abettor act[ed]
with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of
encouraging or facilitating commission of, the offense.†In People
v. McCoy (2001) 25 Cal.4th 1111, 1118, the Court further explained that
“outside of the natural and probable consequences doctrine, an aider and
abettor’s mental state must be at least that required of the direct
perpetrator. . . . ‘When the offense charged is a specific
intent crime, the accomplice must “share the specific intent of the
perpetrator;†this occurs when the accomplice “knows the full extent of the perpetrator’s
criminal purpose and gives aid or encouragement with the intent or purpose of
facilitating the perpetrator’s commission of the crime.†[Citation.]’
[Citation.] What this means here,
when the charged offense[s] and the intended offense[s] . . . are the
same, i.e., when guilt does not depend on the natural and probable consequences
doctrine, is that the aider and abettor must know and share the murderous
intent of the actual perpetrator.
[¶] Aider and abettor liability is thus vicarious only in the sense
that the aider and abettor is liable for another’s actions as well as that
person’s own actions. When a person
‘chooses to become a part of the criminal activity of another, she says in
essence, “ ‘your acts are my acts . . . .’ [Citation.]†(Footnote omitted.)
Here,
the court gave the jury the standard instructions on aiding and abetting,
CALJIC Nos. 3.00 and 3.01, and on the types and degrees of murder and implied
malice. It specifically instructed the
jury on the mental state required for a conviction of second degree murder
based on an implied malice theory pursuant to CALJIC No. 3.31: “In the crime of second degree murder based
on a theory of implied malice, a necessary element is the existence in the mind
of the defendant of a mental state of malice aforethought. [¶] In a crime based on a theory of liability
as an aider and abettor, a necessary element is the existence in the mind of
the defendant of both knowledge of the unlawful purpose of the perpetrator and an
intent to assist that purpose . . . .†This instruction was preceded by several
instructions defining the types and degrees of murder, felony murder,
manslaughter, and malice (CALJIC Nos.
8.00, 8.10, 8.11, 8.20, 8.21, 8.25, 8.30, 8.31, 8.37, 8.50, and 8.51 among
others).
It
is well settled that in assessing whether the instructions given to the jury
were objectionable, we must consider whether it is reasonably likely that the
jury could have understood them in the manner defendant asserts. In making that determination, we must
consider the entire record of the trial including the other instructions
provided to the jury and the arguments of counsel. (People
v. Cain (1995) 10 Cal.4th 1, 36; People
v. Kelly (1992) 1 Cal.4th 495,
526.)
Defendant
asserts that the court’s instructions improperly permitted the jury to find
that defendant aided and abetted an implied-malice murder without finding that
he had intended someone to be killed. We
disagree. The court instructed the jury
on implied malice several times and reiterated that in order to support a
second degree murder conviction, the jury must find that defendant, either as a
perpetrator or an aider and abettor, harbored malice, whether express or
implied.
The
jury was instructed on specific intent and the implied malice theory for murder. The parties’ closing arguments brought home
the theory that implied malice was required to convict defendant of second
degree murder. Defense counsel argued,
“[s]econd degree murder. There’s two
ways to get to second degree murder. One
is through a theory of intent to kill that’s not mitigated in some fashion, an
actual express — express malice is the legal term and intent to kill
somebody. The other is what they call an
implied malice argument. Didn’t intend
to kill somebody, engaged in dangerous conduct with knowledge and conscious
disregard of the consequences.†Defense
counsel further reiterated the necessity to prove the existence of implied
malice on an aiding and abetting theory for a conviction of second degree
murder: “In the crime of second degree
murder based on the theory of implied malice, a necessary element is the
existence in the mind of the defendant of a mental state of malice
aforethought. [¶] In a crime based on a theory of liability as an aider
and abettor, a necessary element is the existence in the mind of the defendant
of both the knowledge and of the unlawful purpose of the perpetrator and an
intent to assist that purpose.†The
prosecutor, in turn, urged the jury to find defendant guilty of first degree
murder based only on felony robbery or murder by lying in wait, on which the
jury did not convict. Finally, after the
case was submitted to the jury, the court reiterated its instruction pursuant
to CALJIC No. 3.31 on the mental state required for second degree murder.
instructions given to the jury, the arguments of counsel, and the entire record
of the trial, it is not reasonably likely that the jury misapplied the court’s
instructions. Had defendant believed
that the jury required clarification of aiding and abetting principles with
respect to implied malice murder, he could have requested clarification or
modification of the instructions at trial.
“ ‘If defendant believed that the instruction was incomplete or needed
elaboration, it was his responsibility to request an additional or clarifying
instruction.’ †(People v. Carpenter (1997) 15 Cal.4th 312, 391–392.)
Defendant
raises a further iteration of his instructional error argument by contending
that a defendant cannot be convicted of aiding and abetting second degree
implied-malice murder because the crime requires intent to kill. He argues that there can be no crime of
aiding and abetting second degree implied-malice murder for the same reason
there can be no crime of attempted implied-malice murder, relying on language
in People v. Santascoy (1984) 153
Cal.App.3d 909, 918 [“[n]othing less than a specific intent to kill must be
found before a defendant can be convicted of attempt to commit murder
. . . .â€].) Defendant,
however, cites no pertinent authority for this proposition, and we conclude it
is not persuasive.
Implied-malice
second degree murder is not a specific intent crime. Therefore, the requirement that the aider and
abettor “share the specific intent of the perpetrator†does not apply. (People
v. Beeman, supra, 35 Cal.3d at
p. 560.) Rather, the question is
whether the aider and abettor intends “not only the act of encouraging and
facilitating but also the additional
criminal act the perpetrator commits . . . .†(People
v. Mendoza (1998) 18 Cal.4th 1114, 1129.)
Thus, the sole question, here, is whether defendant, if convicted as an
aider and abettor, had “knowledge of the [perpetrator’s] unlawful purpose†and
acted “[w]ith the intent or purpose of committing or encouraging or
facilitating the commission of the crime . . . .†(CALJIC No. 3.01.)
Second
degree implied malice requires proof that the perpetrator committed an
intentional act, “[t]he natural consequences of [which] are dangerous to human
life, and [that] the act [] was deliberately performed with knowledge of the
danger to, and with conscious disregard for, human life.†(CALJIC No. 8.31.) Additionally, “it is not necessary to prove
that the defendant intended that the act result in the death of a human
being.†(CALJIC No. 8.31.) Accordingly, a defendant may be convicted of
aiding and abetting an implied-malice second degree murder if the defendant
intended to, encouraged or facilitated the perpetrator’s actions
act†committed by the perpetrator. (See
No proof of specific intent to kill is required.
Thus,
reading the record as a whole, we are convinced that the jurors would have
understood they could convict defendant of second degree murder on an implied
malice theory only if they found he was the perpetrator or the aider and
abettor and that he acted with implied malice.
We must presume that the jury understood and correlated all of the
instructions given to it. (
1107, 1111.) The court’s instructions
were a correct statement of the law on second degree murder. (See People
v. McCoy, supra, 25 Cal.4th at
pp. 1117–1118.) No additional
instructions were warranted.
Even
if the court erred in its instructions, defendant was not prejudiced. The evidence that defendant was guilty of
second degree murder was overwhelming.
Whether he was the perpetrator or an aider and abettor, the evidence
showed that he hit and stabbed Vigil several times in the head with a chisel,
yelling “Die, motherfucker, die,†and that he admitted his participation in the
killing both to friends and the police.
On this record, any instructional error was harmless.
Defendant
also contends that the court erroneously instructed the jury on second degree
felony murder based on the theory that he killed in the commission of felony
battery, violating the merger doctrine of People
v. Ireland (1969) 70 Cal.2d 522. The
merger doctrine prohibits an assaultive crime from serving as the predicate
felony in second degree felony-murder prosecutions; the assault merges into the
homicide. (People v. Chun (2009) 45 Cal.4th 1172, 1178.)
Here,
the court initially instructed the jury on two theories of second degree felony
murder and immediately retracted the instructions. The court admonished the jury to disregard
CALJIC No. 8.32 concerning second degree felony-murder as well CALJIC No. 8.34
on aiding and abetting second degree felony murder. We must presume that the jury adhered to the
court’s admonition. The court did not
further instruct on second degree felony murder. And it instructed the jury twice on the
merger doctrine with respect to felony-assault.
The
correctness of jury instructions is to be determined from the entire charge of
the court, not from a consideration of parts of an instruction, or from a
particular instruction. (
1216, 1248.) Here, the court instructed
the jury on the relevant theories of the case, and immediately admonished it to
disregard the instructions on second degree felony murder that it erroneously
gave. We must presume that the jury
understood and correlated the court’s instructions. (People
v. Martin, supra, 78 Cal.App.4th at p. 1111.) On this record, it is not reasonably likely
that the jury misapplied the law.
Defendant
argues that the court erred in giving the jury the first sentence of CALJIC No.
8.51 on felony murder — “If a person causes another’s death, while committing a
felony inherently dangerous to human life, the crime is murder.â€
of other instructions on first degree felony murder.
We
agree with the Attorney General that it is not reasonably likely that the jury
applied the instruction to convict defendant on a theory of second degree
felony murder, particularly here, where the jury was expressly instructed to
disregard the instructions that it erroneously gave on second degree felony
murder. Although defendant seeks to
point out ways in which a jury might have interpreted the instructions, we
cannot conclude that it did so.
“ ‘Jurors do not sit in solitary isolation booths parsing
instructions for subtle shades of meaning in the same way that lawyers
might. Differences among them in
interpretation of instructions may be thrashed out in the deliberative process,
with commonsense understanding of the instructions in the light of all that has
taken place at the trial likely to prevail over technical hairsplitting.’ †(People
v. Williams (1995) 40 Cal.App.4th 446, 457, quoting Boyde v. California (1990) 494 U.S. 370, 380–381.) While the jury was presented with numerous
theories on which to convict, it was adequately instructed. No error appears.
B. Pittman’s Testimony
Defendant
also contends that the court erred in declining to strike Pittman’s testimony
and to admonish the jury to disregard Pittman’s refusals to testify.
After
Pittman’s testimony, defendant moved for a mistrial on the ground that the
questions to Pittman regarding his parole hearings and his attitude toward the
Vigil family,
title="">[5]
highlighted the nature of Pittman’s incarceration, and prejudiced the
jury. The court denied the motion. Although the court ruled that it would strike
the testimony of the questions and responses about the parole hearing and the
presence of Vigil’s parents at the parole hearing and that it would admonish
the jury, it failed to do so following briefing by the parties on the
issue. The court, without any objection
from defendant, ultimately instructed the jury that “You may consider the
willful disobedience of a court order to testify in assessing the credibility
of a person who provides an out-of-court statement.â€
Defendant
argues that he was prejudiced because the trial court’s failure to strike
Pittman’s testimony allowed the prosecutor to argue that Pittman “has plenty to
say,†but “chose not to share it with us.â€
Yet defendant failed to ask the court to admonish the jury to disregard
questions about Pittman’s incarceration and parole hearings despite the court’s
earlier indication that it would do so.
An admonition would have cured any error from the court’s failure to
strike the testimony.
In
any event, the record fails to support defendant’s argument that the jury was
allowed to infer that whatever Pittman had to say would have been bad for him
given Pittman’s immunity agreement.
Pittman’s brief testimony merely allowed the jury to see the other man
implicated in the crime. His
identification of himself, his tattoos, and his incarceration added little to
the case. In closing argument, the
prosecutor was reduced to arguing that Pittman likely had no evidence to share
that would have been useful to the prosecution, and that anything he might have
said would have been of no assistance to the case as both Pittman and defendant
“shared similar motivations when they were speaking to Detective Sergeant
Ward.â€
The
prosecutor’s argument was not erroneous.
It constituted a fair comment on the state of the evidence.
v. Cook (2006) 39 Cal.4th 566, 608.)
The
judgment is affirmed.
_________________________
RIVERA,
J.
We concur:
_________________________
RUVOLO, P.J.
_________________________
BASKIN, J.*
* Judge of the Contra Costa County Superior
Court assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
name="_ftn1" title="">[1]
The parties stipulated that defendant was 17, Myers was 16, and Pittman was 21
at the time of the murder.
name="_ftn2" title="">[2]
The parties stipulated that after the police concluded their interview of
defendant, he directed the police to a point near the bay where he stood when
he threw the chisels into the bay. The
sheriff’s dive team was unable to locate the spikes.
