P. v. Kelly
Filed 9/4/12 P. v. Kelly CA1/2
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opinion has not been certified for publication or ordered published for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
TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
JAMAL
KELLY,
Defendant and Appellant.
A129688
(Solano
County
Super. Ct.
No. FCR261329)
Defendant
Jamal Kelly, 17 years old at the time of the events, was convicted by jury
verdict of first degree felony murder (Pen. Code, §§ 187, 189),
for which he was sentenced to 25 years to life in prison. On appeal he raises several instructional
issues and a challenge to the sentence as cruel
and/or unusual punishment; he also claims the restitution order must be
modified to make it joint and several.
We affirm.
On
November 2, 2008, Deshawn Malone of Fairfield made a phone call to find some
Ecstasy pills for himself and defendant.
Seventeen-year-old Kendrick Lewis of Vallejo received a call from
someone seeking to buy $200 worth of Ecstasy,
and along with three friends drove to Fairfield to deliver the
drug. Lewis’s girlfriend, Karlee
Swafford, was in the front passenger seat,
Trung Nguyen was in the rear seat behind the driver, and Willie “Tony” Muir
was in the rear passenger seat. Lewis
was driving.
As
they approached Mockingbird Lane, where Lewis and Malone had agreed to meet,
Lewis pulled over to the curb but left the engine running. Defendant and Malone approached the car,
defendant near the driver’s door and Malone near the rear driver’s side
door. Malone had a gun and defendant
knew that. He also knew that Malone
intended to rob the occupants of the car.
Defendant
put his hands on the lower edge of Lewis’s rolled-down window, leaning into the
car. Lewis’s attention was focused on
defendant.
As
Lewis and defendant discussed the drug transaction, Malone became involved in
an interchange with the back seat passengers.
Nguyen had partially rolled down the rear driver’s side window to get a
better look at Malone, who he thought was behaving suspiciously. According to Nguyen, Malone was offended by
this and asked Lewis, “Why is your friend looking at me all funny, bro”
According
to defendant’s testimony, though, Muir was wearing a Halloween mask referred to
as a “Jason mask,”
title="">[2]
and Malone did not like it. Malone told
Muir to remove the mask but he refused.
Other witnesses testified that no one in the car was wearing the Jason
mask, although such a mask was in the car.
Lewis
offered to sell defendant some blue Ecstasy pills, but defendant told him he
wanted some green pills, which are stronger.
Lewis allowed defendant to touch the bag of pills but would not allow
him to grasp onto it because defendant had shown him no money. Someone handed Lewis some green pills from
the back seat. Lewis also became aware
that Malone was involved in some sort of confrontation with his rear seat
passengers. He told Malone not to worry
about them.
When
Lewis placed the green pills in his lap, defendant stepped back from the car,
turned to Malone and said, “Do you want these”
Malone then pulled a gun and stuck it into the rear driver’s side
window, waved it around inside the car, and said, “I want those and those,”
referring to the two quantities of Ecstasy pills.
everything. Give us everything you all got.”
He also ordered the occupants of the car, “Don’t move, don’t go off,
don’t drive off, or I’ll shoot you.”
Lewis
began to pull the car forward and Malone shot him once in the back. Lewis remarked that he could not feel his
feet, then lost control of the car. The
car swerved and crashed into a light pole across the street. Officers responded quickly to a 911 call from
Lewis’s friends, but Lewis already showed no sign of life and bled to death
despite efforts to save him.
A
single shell casing was found in the rear passenger compartment of Lewis’s
car. Some blue pills resembling Ecstasy
were found in the car on the driver’s seat and floorboard, and a baggie with
similar pills was found in the grassy area outside the car. A Jason mask was recovered from the scene
near the car.
Malone
and defendant ran off after the shooting.
According to a bystander they were laughing. Defendant was arrested about a month
later. Identity was not an issue at
trial.
Testifying
in his own defense, defendant claimed he intended only to buy drugs with Malone
and had no intention of robbing anyone.
He and Malone had decided to buy some Ecstasy, and as they were walking
to get it, Malone pulled up his shirt and showed defendant a gun tucked into
his waistband. Malone said he was going
to “pull a lick,” meaning commit a robbery.
Defendant went along with Malone only because he did not want to look
like a “bitch” and lose respect in his neighborhood and because he was afraid
of Malone. He did not intend to help
Malone in the robbery or to share in its proceeds. He admitted, however, that Malone did not
threaten or coerce him into going along.
When asked by a detective what his “mindset” was at the time of the
offense, defendant said he was there to “try to rob the dude of everything” but
the “[d]ude wasn’t giving it up.” He
testified at trial that he had money to purchase the drugs, but he told police
during their investigation that he had no money with him.
Defendant
testified he never intended for Lewis to be killed. He said he backed away from the car when
Malone produced the gun and began to run away when he saw the shot fired. He read about the shooting in the newspaper
but did not know Lewis had been killed until the police told him during their
investigation. Defendant denied laughing
as he ran off. He did not report Malone
to the police because he did not want to be a “snitch.”
to instruct on logical nexus between homicidal act and underlying felony
Defendant argues
first that the felony murder instruction given by the court was faulty because
it omitted a part of the instruction relating to the requirement of a causal
nexus between the felony and the death.
The court must instruct on the “general principles of law governing the
case,” which are “those principles of law commonly or closely and openly
connected with the facts of the case before the court.” (People
v. Michaels (2002) 28 Cal.4th 486, 529-530, italics omitted.) The court is not required, however, to
instruct on specific points developed at trial or issues not fairly raised by
the evidence. (Ibid.)
Defendant
relies largely on People v. Cavitt
(2004) 33 Cal.4th 187 (Cavitt) in
advancing this claim. In
of the felony murder of the stepmother of one defendant’s girlfriend. (Id.
at p. 193.) The girlfriend plotted
with defendants to burglarize the stepmother’s house. The evidence amply supported the theory that
the defendants were the direct perpetrators of the homicide as they had tied up
the stepmother during the burglary with a sheet wrapped around her head, and
she died of asphyxiation. Defendants
argued the evidence supported the theory that the girlfriend suffocated the
stepmother due to a preexisting animus toward her, independent of the burglary,
after both defendants left the scene. It
was possible under the evidence either that the victim suffocated from the
binding technique or that the girlfriend independently suffocated her after the
two boys left the house. (Ibid.)
Because
there was substantial evidence that the girlfriend was the killer, the Supreme
Court granted review to clarify a nonkiller’s liability for a killing
“ ‘committed in the perpetration’ ” of an inherently dangerous felony
under section 189’s felony‑murder rule.
(Cavitt, supra, 33 Cal.4th at p. 193.)
The court concluded that “in such circumstances, the felony-murder rule
requires both a causal relationship
and a temporal relationship between
the underlying felony and the act resulting in death. The causal relationship
is established by proof of a logical nexus, beyond mere coincidence of time and
place, between the homicidal act and the underlying felony the nonkiller
committed or attempted to commit. The
temporal relationship is established by proof the felony and the homicidal act
were part of one continuous transaction.”
(Ibid.)
In
addressing the liability issue, the court rejected the defendant’s argument
that the killing must “advance or facilitate” the underlying felony for a
nonkiller to be guilty of murder. (
that no causal nexus was necessary. It
formulated its conclusion as follows: “the felony-murder rule does not apply to
nonkillers where the act resulting in death is completely unrelated to the
underlying felony other than occurring at the same time and place. Under California law, there must be a logical
nexus—i.e., more than mere coincidence of time and place—between the felony and
the act resulting in death before the felony-murder rule may be applied to a
nonkiller. Evidence that the killing
facilitated or aided the underlying felony is relevant but is not
essential.” (Id. at p. 196.) It further
held “the requisite temporal relationship between the felony and the homicidal
act exists even if the nonkiller is not physically present at the time of the
homicide, as long as the felony that the nonkiller committed or attempted to
commit and the homicidal act are part of one continuous transaction.” (Ibid.)
In
assessing the adequacy of the jury instructions, Cavitt analyzed the version of CALJIC No. 8.27 given at trial,
concluding, “The instructions adequately apprised the jury of the need for a
logical nexus between the felonies and the homicide in this case. To convict,
the jury necessarily found that “ ‘the killing occurred
commission of robbery or burglary’ by ‘one of several persons
crimes. The first of these described a
temporal connection between the crimes; the second described the logical
nexus.” (Ibid.)
The
court in the case before us instructed the jury as follows, using
CALCRIM No. 540B: “The defendant is
charged in Count 1 with murder, under a theory of felony murder.
“The
defendant may be guilty of murder, under a theory of felony murder, even if
another person did the act that resulted in the death. I will call the other
person the perpetrator.
“To
prove that the defendant is guilty of first degree murder under this theory,
the People must prove that:
“1. The defendant
attempted to commit or aided and abetted a robbery;
“2. The defendant intended to commit or intended
to aid and abet the perpetrator in committing robbery;
“3. If the defendant did not personally commit or
attempt to commit robbery, then a perpetrator, whom the defendant was aiding
and abetting, personally committed or attempted to commit robbery;
“AND
“4.
While committing or attempting to commit robbery, the perpetrator caused
the death of another person.
“A person
may be guilty of felony murder even if the killing was unintentional,
accidental, or negligent.
“To decide
whether the defendant and the perpetrator committed or attempted to commit
robbery, please refer to the separate instructions that I will give you on that
crime. To decide whether the defendant aided and abetted a crime, please refer
to the separate instructions that I will give you on aiding and abetting. You
must apply those instructions when you decide whether the People have proved
first degree murder under a theory of felony murder.”
In addition
to the four elements specified above, CALCRIM No. 540B includes a fifth
paragraph which may or may not be given depending on the circumstances: “5. There was a logical connection
between the cause of death and the robbery or attempted robbery. The connection between the cause of death and
the robbery or attempted robbery must involve more than just their occurrence
at the same time and place.” The CALCRIM
instructions tell the court to include this element if it “concludes it must
instruct on causal relationship between felony and death.”
The CALRCIM Bench Notes give the
following advice as to when the fifth paragraph should be included: “Bracketed
element 5 is based on People v. Cavitt
[, supra,] 33 Cal.4th 187,
193. In Cavitt, the Supreme Court clarified the liability of a nonkiller
under the felony-murder rule when a cofelon commits a killing. The court held that ‘the felony-murder rule
requires both a causal relationship
and a temporal relationship between
the underlying felony and the act causing the death. The causal relationship is established by
proof of a logical nexus, beyond mere coincidence of time and place, between
the homicidal act and the underlying felony the nonkiller committed or
attempted to commit. The temporal
relationship is established by proof the felony and the homicidal act were part
of one continuous transaction.’ (
The majority concluded that the court has no sua sponte duty to instruct
on the necessary causal connection. (
joined by Justice Kennard, and Justice Chin expressed the view that the jury
should be instructed on the necessary causal relationship. (Id.
at pp. 212-213.) Give bracketed element
5 if the evidence raises an issue over the causal connection between the felony
and the killing. In addition, the court
may give this bracketed element at its discretion in any case in which this
instruction is given. If the prosecution
alleges that the defendant did not commit the felony but aided and abetted or
conspired to commit the felony, the committee recommends giving bracketed
element 5.”
Here the
attempted robbery and shooting occurred within a very brief time span, unlike
the killing in Cavitt. Indeed, defendant does not challenge the
temporal relationship of the robbery and the killing but challenges the causal
nexus, claiming the evidence is susceptible of the interpretation that Malone
shot Lewis because of his argument with Nguyen and Muir over the Jason mask,
and not as part of the robbery.
The
Attorney General correctly argues the issue has been forfeited because defense
counsel neither objected to the instruction as given nor requested the fifth
bracketed clarifying instruction. As the Bench Notes indicate, the majority
in Cavitt, supra, 33 Cal.App.4th at pp. 203-204 concluded there was no sua
sponte duty to give the fifth paragraph of the instruction. “[I]f the requisite nexus between the felony
and the homicidal act is not at issue and the trial court has otherwise
adequately explained the general principles of law requiring a determination
whether the killing was committed in the perpetration of the felony, ‘it is the
defendant’s obligation to request any clarifying or amplifying instructions on
the subject.’ [Citation.]” (
for this reason alone.
The
argument is without merit also because:
In the
present case the jury was instructed both that the defendant must have
intentionally aided and abetted the robbery and that the perpetrator must have
“caused the death” “while” committing the robbery. This satisfied both the causal and temporal
aspects of the felony-murder rule in the circumstances of this case.
Although
there was some testimony about Malone’s having quarreled with Nguyen and Muir
about the Jason mask or Nguyen’s suspicious attitude shortly before the
shooting, this did not constitute substantial evidence that the shooting was
“completely unrelated” to the robbery attempt, as discussed in
Nor did it reasonably create a defense theory that Malone’s shooting was
the result of an independent animus he harbored toward Nguyen or Muir. Such a theory was not argued at trial, except
for a brief reference to some “bickering” involving Malone.
Significantly, Malone
shouted into the car, at the same time he demanded the drugs and “everything
you all got” and not to “drive off” or he would shoot. When Lewis began to pull forward in the car,
Malone did just that. He did not shoot
at Nguyen or Muir in the back seat, with whom he had the confrontation. Rather
he shot Lewis, who disobeyed his order not to drive away. Because Malone aimed at Lewis rather than
Nguyen or Muir, the shooting appears to have been a reaction to Lewis’s
disobedience or an attempt to keep the robbery victims in place, not the
product of his verbal jousting with the back seat passengers. Moreover, the felonious demand for
“everything you all got” intervened between the argument and the shooting,
suggesting the shooting was an immediate reaction to the failing robbery
attempt, not to an antecedent quarrel.
We
see no reasonable construction of the evidence that would have disconnected the
shooting from the attempted robbery so as to require the jury to consider
whether Malone harbored a separate motive for the shooting. Defendant attempts to stretch the evidence
far beyond a reasonable interpretation and to make compulsory an instruction
that the Supreme Court has left in the hands of
Indeed,
even in Cavitt, supra, 33 Cal.4th at p. 204, the court concluded that “one could
not say that the homicide was completely unrelated, other than the mere
coincidence of time and place, to the burglary-robbery.” It noted that cases requiring a clarification
of the logical nexus requirement would be “ ‘few indeed,’ ” and
affirmed the defendants’ convictions, cautioning that the girlfriend’s personal
animus toward her stepmother did not “absolve the other participants of their
responsibility for the victim’s death.” (Id.
at pp. 204-205 & fn. 5.) Indeed, the Supreme Court found it “difficult
to imagine how such an issue could ever arise when the target of the felony was
intentionally murdered by one of the perpetrators of the felony.” (Id.
at p. 204, fn. 5.) The present case
is not the rare exception the Supreme Court had difficulty imagining.
Finally,
although defendant argues the purported instructional error was prejudicial
under Chapman v. California (1967)
386 U.S. 18 (Chapman), we conclude the
correct standard of prejudice is that set forth in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). Defendant does not
raise an issue of an omitted element of an offense. “The existence of a logical nexus between the
felony and the murder in the felony-murder context . . . is not a
separate element of the charged crime but, rather, a clarification of the scope
of an element.” (Cavitt, supra, 33 Cal.4th
at p. 203; compare People v. Breverman
(1998) 19 Cal.4th 142, 178 (Breverman)
[failure to instruct on lesser included offense] with People v. Flood (1998) 18 Cal.4th 470, 502-503 [instructional error
omitting element of charged offense reviewed under Chapman standard].)
Under
the test enunciated in Watson,
error was harmless. There was only
passing evidence that Malone had a brief confrontation with Nguyen and Muir,
and no evidence or argument that Malone shot Lewis because of that
confrontation. In light of the strong evidence of guilt of
felony murder, any error in omitting the bracketed clarifying instruction was
harmless.
II. Failure to instruct on
second degree implied malice murder
First
degree felony murder is defined by statute as a homicide “committed in the
perpetration of, or attempt to perpetrate” certain enumerated felonies,
including robbery. (§ 189.) Defendant contends that because the
enumerated felonies are inherently dangerous to life or pose a significant prospect
of violence, a defendant necessarily engages in a deliberate act, the natural
consequences of which are dangerous to life, with knowledge of that risk and a
conscious disregard for life, which is one description of second degree
murder. (See CALJIC No. 8.31.) He therefore claims the court erred in
failing to instruct sua sponte on second degree implied malice murder.
Even
absent a request, and over any party’s objection, a trial court must instruct
sua sponte on necessarily included lesser offenses that find substantial
support in the evidence. (
Such instructions are required when there is evidence that would
“ ‘absolve the defendant of guilt of the greater offense but not of the
lesser.’ ” (People v. Burney (2009) 47 Cal.4th 203, 250; People v. Barton (1995) 12 Cal.4th 186, 194-195 [court must
instruct sua sponte on lesser included offenses “ ‘when the evidence
raises a question as to whether all of the elements of the charged offense were
present [citation], but not when there is no evidence that the offense was less
than that charged’ ”]) We review
the correctness of the instructions independently. (People v. Cole (2004) 33 Cal.4th 1158, 1218; People v. Waidla (2000) 22 Cal.4th 690, 733.)
A
particular offense is considered a necessarily included lesser offense, and
therefore subject to the duty to instruct, if it satisfies one of two
tests. The “elements” test is satisfied
if the statutory elements of the greater offense include all the elements of
the lesser, so that the greater cannot be committed without committing the
lesser; the “accusatory pleading” test is satisfied if the facts actually
alleged in the accusatory pleading include all the elements of the lesser
offense, such that the greater offense charged cannot be committed without
committing the lesser offense. (
Cal.App.4th 430, 442-443.)
The
evidence to support a lesser included offense instruction must be “substantial”
before the duty of sua sponte instruction arises; that is, evidence
“ ‘from which a jury composed of reasonable persons could conclude that
the facts underlying the particular instruction exist.’ ” (People
v. Burney, supra, 47 Cal.4th at
p. 250; People v. Barton,
& 201, fn. 8 [evidence “substantial enough to merit consideration by the
jury,” that is, evidence that a “reasonable jury could find persuasive”];
While
second degree murder is a lesser included offense of first degree murder with
malice aforethought (People v. Taylor
(2010) 48 Cal.4th 574, 623), the same rule historically has not been applied in
cases tried solely on a felony-murder theory, where malice aforethought plays
no role. In such a case, the jury need
not consider whether the defendant killed with malice, but only whether the killing
occurred in the commission of the predicate felony. (See, e.g., People v. Valdez (2004) 32 Cal.4th 73, 116, fn. 19.) “Where the evidence points indisputably to a
killing committed in the perpetration of one of the felonies section 189 lists,
the only guilty verdict a jury may
return is first degree murder. [Citations.]”
(People v. Mendoza (2000) 23
Cal.4th 896, 908.) The trial court is
justified in withdrawing the question of degree from the jury and need not
instruct on second degree murder. (Id.
at pp. 908-909; see also, e.g., People v.
Turner (1984) 37 Cal.3d 302, 327, overruled on other grounds in
1104, 1115; People v. Mabry (1969) 71
Cal.2d 430, 437-438; People v. Rupp
(1953) 41 Cal.2d 371, 382.) Anderson, supra, 141 Cal.App.4th 430, upon which defendant chiefly relies,
does not hold otherwise but rather cites this rule with approval. In such cases “ ‘the court is justified
in advising the jury that the defendant is either innocent or guilty of first
degree murder.’ [Citations.]” (
Defendant
points out the Supreme Court has more recently expressly left open the question
“whether second degree murder is a lesser included offense of first degree
murder where, as here, the prosecution proceeds only on a theory of first degree
felony murderӉۥand consequently whether a sua sponte second degree
implied malice murder instruction is
necessary. (People v. Taylor, supra,
48 Cal.4th at p. 623; People v. Romero
(2008) 44 Cal.4th 386, 402; People v.
Wilson (2008) 43 Cal.4th 1, 16, fn. 5.)
While that is true, defendant’s
reasoning would suggest that every felony murder trial would require
instruction on second degree implied malice murder. No case has so held. And most recently the Supreme Court has cast
doubt on such a theory, pointing out that malice is an element of second degree
murder but is not an element of first degree felony murder. (People
v. Castaneda (2011) 51 Cal.4th 1292, 1328‑1329.)
Still,
defendant argues he was entitled to such an instruction because he was charged
under section 187 with murder with malice aforethought.
would be tried, however, “exclusively” on a theory of first degree felony
murder under section 189. This was clear from the beginning, and
the defense so understood.
relies, does not entitle him to a second degree murder instruction, much less
does it so entitle every accused tried on a felony-murder theory. In Anderson,
the female defendant was present in a motel room when a fight broke out between
her friend Gonzales and the occupant of the room. The fight was initiated by the victim, who
accused Gonzales of selling him poor quality or fake crack. There was only weak evidence to suggest
Gonzales had a preexisting intent to rob the victim. (Id.
at pp. 436-438.) During the fight
defendant assisted Gonzales by attempting to take from the victim a broken
crack pipe which he had used to cut Gonzales’s face. (Id. at
p. 437.) As Gonzales got the better of
the victim, defendant, at Gonzales’s instruction, removed some cash from the
victim’s pants pocket. (
The victim was pinned to the ground and had stopped struggling before
defendant took the cash. (
The
case was charged under section 187 as a murder with malice aforethought, but a
felony-murder theory emerged at trial. (
And a felony-murder allegation was “added” after the close of
evidence. (Id. at p. 445.) In these
circumstances, Division One of this court judged the necessity of lesser
included offense instructions solely on the basis of the charged offense,
concluding that a second degree murder instruction should have been given. (Id.
at p. 445.)
In
Anderson, supra, 141 Cal.App.4th 430, there was substantial evidence the
female defendant, a nonkiller participant, may have formed the larcenous intent
only after the act causing death had occurred.
(Id. at pp. 446-447.) She told police the victim was still alive
when she took the cash and left the room.
(Id. at pp. 437, 446.) But the prosecution’s pathologist testified
the victim died from asphyxiation due to a collapsed larynx, which would have
allowed him to continue living for approximately four to twenty minutes after
the death-causing act. (
wounded at the time defendant removed the cash from his pocket. That testimony opened up the possibility that
defendant did not decide to steal the money until after the death-causing
strangulation had occurred, in which case she would not have been guilty of
felony murder. (Id. at p. 447.) No similar
question of after-formed intent is involved in this case.
that the evidence did not “indisputably” indicate a felony murder, “since
substantial evidence supported a finding that defendant formed an intent to
take the victim’s money only after Gonzales had fatally crushed [the victim’s]
larynx.” (Anderson, supra,
141 Cal.App.4th at p. 448.) In
addition, because the defendant assisted Gonzales by attempting to disarm and
restrain the victim during the affray, there was evidence from which the jury
could have concluded that she aided and abetted the killing.
at pp. 447, 450.) In light of this
alternative theory of liability―also encompassed by the
information―second degree murder was a lesser included offense.
We
read Anderson, supra, 141 Cal.App.4th
430 as being limited to those cases in which the prosecution proceeds on both a
felony-murder theory and a theory of malice aforethought. When only a felony-murder theory is pursued,
the rule is different. In fact,
assumption that second degree murder is not
a lesser included offense of felony murder.
(Anderson,
Moreover,
Anderson, supra, 141 Cal.App.4th 430, was specifically concerned with the
question of notice, since the case was charged as a killing with malice
aforethought and the felony-murder theory apparently did not surface until
trial. (Id. at pp. 445-446.) Here,
on the other hand, defendant was not surprised by the felony-murder theory, as
the prosecutor had made that theory of the case clear from the beginning.
Considering
the charge to the jury as a whole, there was not substantial evidence of second
degree murder. Even viewing the evidence
most favorably to defendant, his self-serving testimony—at odds with his prior
statement to police and with the other evidence at trial—need not be accepted
as substantial evidence warranting a lesser included offense instruction. (See People
v. Cole, supra, 33 Cal.4th at pp.
1176, 1218‑1219.) Defendant’s
testimony amounted to a denial of intent to rob, which would have relieved him
of liability altogether under the felony-murder rule and the instructions given
the jury. The jury was instructed, for
instance, that neither mere presence at the scene nor knowledge of Malone’s
felonious purpose and failure to prevent it would subject defendant to aider
and abettor liability. (Cf.
222 Cal.App.3d 541, 557, fn. 14.)
The defense theory of the case was fairly presented by the instructions.
But
even assuming the court erred in failing to instruct on second degree murder,
the state law Watson test of
prejudice applies. (Breverman, supra, 19
Cal.4th at p. 165; Watson,
focus “not on what a reasonable jury could
do, but what such a jury is likely to
have done in the absence of the error under consideration. In making that evaluation, an appellate court
may consider, among other things, whether the evidence supporting the existing
judgment is so relatively strong, and
the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the
error of which the defendant complains affected the result.” (Breverman,
supra, 19 Cal.4th at p. 177.)
We
cannot find the hypothesized error prejudicial on this record. Defendant seems to argue he was simply in the
wrong place at the wrong time with the wrong person. Yet he never attempted to remove himself from
the scene, to persuade Malone not to commit the robbery, to alert the victims of
the impending danger, or even to part company with Malone after the
shooting. And though defendant testified
he had no intent to aid the robbery, his actions say otherwise.
Swafford
and Nguyen both testified at trial in a fairly consistent manner about the
events of the evening Lewis was killed.
By defendant’s own testimony he accompanied Malone to Lewis’s car,
knowing he was armed and intended to use the weapon to rob the drug
seller(s). He in fact assisted Malone by
engaging Lewis in drug negotiations, which allowed Malone to time the robbery
attempt so as to get the weapon out of his waistband and into the car before
anyone in the car could react.
Defendant’s negotiations also induced Lewis to bring out both types of
Ecstasy pills and lay them in his lap, theoretically at least making their
seizure easier. Indeed, his very
presence would have made Malone’s threats more intimidating to the car’s
occupants.
Defendant
then arguably gave Malone a cue for the robbery by stepping back from the car
and asking, “Do you want these” to which Malone responded, “I want those and
those.” Defendant’s move was inferably
to give Malone access to the car’s occupants, as well as to protect
himself. Even if defendant stepped back
from the car after the gun was
produced (see fn. 3, ante), he
continued to stand nearby until after the fatal shot was fired, as he admitted
seeing the gun go off.
It
is inherently implausible for defendant to say he went to the car to get drugs
and yet to say he had no intent to share in the proceeds of the robbery. Drugs were the one sure thing Malone planned
to get from the robbery. It is contrary
to human experience to think defendant would not have shared in the drugs if
the robbery had been successful. And
though defendant claims he wanted to buy drugs, he told the police he had no
money with him, and he never produced any money during the drug transaction.
In
addition, later on the evening of the killing Malone helped defendant move his
belongings from his mother’s house to a friend’s house, as his mother had
kicked him out of the house that day. Defendant’s acceptance of this help shows
he still allied himself with Malone even after the killing. And, of course, he did not report the crime
to the police, not wanting to be a “snitch.”
Most
significantly, defendant himself contradicted his self-serving version of the
crime in his own prior statement that he was there to “rob the dude of
everything.” He was also asked by police
whether he was just “going to rob him” and did not “want [Lewis] to die,” and
he responded affirmatively. Defendant
did tell police “in a way” he did not want to rob the victims but he realized
that “at the end of the day, that’s what it’s going to sound like.” He uses this to argue that he denied intent
to rob during his police interview. But
the detective who interviewed him testified defendant explicitly admitted he
was involved in the robbery during the interview. Finally, the most neutral percipient witness
heard defendant and Malone laughing as they ran from the scene. Defendant’s denial did little to blunt the
impact of that testimony. This apparent
lie further called into question his credibility.
Defendant
also acknowledged to police that he knew about the incident from news reports, yet continued even at trial to
say he did not know Lewis had been killed.
That is inherently improbable since Lewis died almost immediately. This was not a case in which the victim clung
to life after the shooting. The news
accounts undoubtedly included the fact of his death.
In
short, defendant’s credibility was suspect at best. It was hurt further by the fact that he
initially told police he had nothing to do with the crime and, even after he
began to come clean, minimized his role by saying he stayed in the alley while
Malone approached the car and attempted the robbery. The evidence considered in totality
powerfully suggests defendant was voluntarily involved in―and intended to
assist―the robbery. Defendant’s
after-the-fact testimony about his state of mind, which was incompatible with
the other evidence, would not reasonably have led to a second degree murder
conviction.
III. Failure to instruct on involuntary
manslaughter
Defendant
next argues an involuntary manslaughter instruction was required sua sponte
because, according to his own testimony, the killing occurred while he was
engaged in attempting to purchase an illicit drug, knowing that his accomplice
was armed with a firearm and intended to rob the sellers.
Section
192, subdivision (b) defines involuntary manslaughter as “the unlawful killing
of a human being without malice . . . . in the commission of an
unlawful act, not amounting to felony; or in the commission of a lawful act
which might produce death, in an unlawful manner, or without due caution and
circumspection.”
Although
the statute speaks in terms of a killing during an unlawful act “not amounting
to felony,” a “killing in the commission of a felony that is not inherently
dangerous to human life . . . has been recognized as involuntary
manslaughter, notwithstanding the limited statutory definition of the offense,
‘if that felony is committed without due caution and circumspection.’
[Citations.] ”
title="">[8] (People
v. Garcia (2008) 162 Cal.App.4th 18, 29; see also, People v. Butler (2010) 187 Cal.App.4th 998, 1007;
824, 835, disapproved on another ground in People
v. Blakeley (2000) 23 Cal.4th 82, 89.)
Involuntary
manslaughter is ordinarily a lesser included offense of murder. (People
v. Prettyman (1996) 14 Cal.4th 248, 274.) However, the Supreme Court
has expressed doubt whether the same is true for felony murder where the
claimed misdemeanor or nondangerous felony underlying the involuntary
manslaughter theory is not a lesser included offense of the felony claimed to
support the felony-murder theory. “Under
such circumstances, it might be argued, a sua sponte instruction on involuntary
manslaughter would violate the defendant’s due process right to notice of the
charges against him. [Citation.]” (People
v. Edwards (1985) 39 Cal.3d 107, 116, fn. 10.)
In the present
case, the crime underlying the involuntary manslaughter theory on which
defendant claims he was entitled to instruction―attempted possession of
Ecstasy―was not a lesser included offense of the robbery underlying the
charged homicide. No drug charge was
included in the information. Based on
the Supreme Court’s analysis in Edwards,
supra, 39 Cal.3d at p. 116, fn. 10,
we conclude that involuntary manslaughter was not a lesser included offense of
felony murder in this case. The noninherently dangerous felony here was a
legally unrelated drug offense. A lesser
offense of drug-purchase manslaughter was not necessarily included in the
robbery‑murder that the prosecution undertook to prove; a homicide based
on this theory would be a lesser related offense upon which instruction would
only be required with the parties’ mutual assent. (People
v. Taylor, supra, 48 Cal.4th at
p. 622; People v. Birks (1998)
19 Cal.4th 108, 136.)
Defendant
relies largely on People v. Lee
(1999) 20 Cal.4th 47, 60-61, in which a husband shot his wife during a quarrel,
after he had consumed a large quantity of alcohol. It was not a felony murder case. The defendant was charged with murder and
convicted of voluntary manslaughter. (
instruction on voluntary manslaughter was arguably error, as the marital
quarrel did not amount to adequate provocation for that offense. (Id.
at pp. 59-60.) The question was
whether defendant was entitled to a misdemeanor manslaughter instruction, where
the parties agreed the evidence was sufficient to support a second degree
murder conviction, and instructions had been given on criminally negligent
involuntary manslaughter and voluntary intoxication, but a misdemeanor
manslaughter instruction had been omitted.
(Id. at pp. 52,
60-61.) The court held defendant was
entitled to an instruction on misdemeanor manslaughter because his brandishing
of a weapon was a misdemeanor. (
instructional error, the voluntary manslaughter verdict by the jury was
favorable to the defendant, and therefore reversal was not warranted. (Id.
at pp. 64-65.) The case is
significantly distinguishable from the one before us, which was tried strictly
on a felony-murder theory.
There was likewise
no substantial evidence supporting an involuntary manslaughter instruction
based on lawful conduct in a criminally negligent manner. (Cf. People
v. Penny (1955) 44 Cal.2d 861, 879.)
Defendant’s conduct was by any interpretation unlawful.
reasonable jury would have convicted defendant solely of involuntary
manslaughter on a criminal negligence
theory. And, for the reasons stated
previously, even if there was error it was not prejudicial. (Watson,
supra, 46 Cal.2d at p. 836.)
IV. Cumulative prejudice
Defendant
argues that even if the alleged defects put forth in his first three arguments
were deemed harmless individually, considered cumulatively they deprived him of
a fair trial. Having found no instructional
error, of course, we also find no prejudice, cumulative or otherwise.
Defendant
relies in part on the fact the jury deliberated approximately five and a half
hours before reaching a verdict.
name="_ftnref9" title="">[9] (See, e.g., People v. Cardenas (1982) 31 Cal.3d 897, 907.) Although the length of deliberations may
suggest it was not an open-and-shut case (People
v. Woodard (1979) 23 Cal.3d 329, 341), that factor may also suggest initial
sympathy for the young defendant. Or it
may show equally that the jury simply appreciated the gravity of its decision
and struggled conscientiously with the evidence and the instructions. (Cf. People
v. Taylor (1990) 52 Cal.3d 719, 732 [ten-hour deliberation not “unduly
significant” in death penalty case]; People
v. Houston (2005) 130 Cal.App.4th 279, 300-301 [deliberations spread over
four days not indicative of close case in complicated trial];
432, 439 [6.5 hour deliberation after 2.5 hour trial may have reflected jury’s
“conscientious performance of its civic duty, rather than its difficulty in
reaching a decision”].) Part of the
jury’s time was spent listening to a readback of defendant’s testimony, and
that time may fairly be omitted from consideration in the length of its
deliberation. (People v. Houston, supra,
130 Cal.App.4th at p. 301;
As
we view the record, the evidence against defendant was strong and his defense
turned entirely upon his own credibility.
Since there were multiple reasons to question his credibility, we cannot
find the assumed errors prejudicial either singly or cumulatively.
Defendant
received a fair trial. As described
above, the evidence, in light of the whole record, fully supported the jury’s
verdict. We see no reasonable
probability or possibility defendant would have been convicted of a lesser
offense or acquitted if the proposed instructions had been given. (Chapman,
supra, 386 U.S. 18;
and/or unusual punishment
Defendant
next claims the sentence in this case violated the cruel and/or unusual
punishment prohibition of the federal and state constitutions. (U.S. Const., 8th Amend.; Cal. Const., art.
I, § 17.) He acknowledges the claim was
forfeited by trial counsel’s failure to object.
He urges us to reach the merits nonetheless “ ‘to prevent the
inevitable ineffectiveness-of-counsel claim.’ ” (See People
v. Russell (2010) 187 Cal.App.4th 981, 993; People v. Norman (2003) 109 Cal.App.4th 221, 229-230.) Even on its merits, however, the claim must
be rejected.
The
Eighth Amendment to the United States Constitution prohibits excessive
sanctions, including extreme sentences that are “grossly disproportionate” to
the crime. (Ewing v. California
(2003) 538 U.S. 11, 20 (lead opn. of O’Connor, J.).) In applying this proportionality analysis,
courts look to three objective criteria: (1) the gravity of the offense and the
harshness of the penalty; (2) the sentences imposed on other criminals in the
same jurisdiction; and (3) the sentences imposed for commission of the same
crime in other jurisdictions. (
latter two factors, at least where consideration of the first factor fails to
yield an inference of gross disproportionality.
(Harmelin v. Michigan (1991)
501 U.S. 957, 1005 (conc. opn. of Kennedy, J.).)
Under
the California constitution
name="_ftnref10" title="">[10]
a sentence will not be allowed to stand if “ ‘it is so disproportionate to the
crime for which it is inflicted that it shocks the conscience and offends
fundamental notions of human dignity.’ ” (People
v. Dillon (1983) 34 Cal.3d 441, 478 (Dillon).) “[T]he state must exercise its power to
prescribe penalties within the limits of civilized standards and must treat its
members with respect for their intrinsic worth as human beings[.]” (Ibid.) “ ‘Punishment which is so excessive as to
transgress those limits and deny that worth cannot be tolerated.’ ” (Ibid..)
As
under federal law, three techniques may be used to focus the proportionality
inquiry: (1) examination of the nature of the offense and offender, with
particular regard to the degree of danger both present to society; (2)
comparison of the challenged penalty with those imposed in the same
jurisdiction for more serious crimes; and (3) comparison of the challenged
penalty with those imposed for the same offense in different
jurisdictions. (In re Lynch (1972) 8 Cal.3d 410, 425-429 (Lynch).) The latter two
techniques, however, are not required under the state or federal constitutions. (People
v. Howard (2010) 51 Cal.4th 15, 39-40; People
v. Weddle, supra, 1 Cal.App.4th
particular punishment is cruel and/or unusual.
(People v. Mendez (2010) 188
Cal.App.4th 47, 64‑65 (Mendez).) Defendant bears the burden of establishing
the punishment is unconstitutional. (
567, 572.) Because defendant has
provided no basis for intra- or inter-jurisdictional comparison, we limit our
analysis to the first Lynch factor.
A
number of considerations come into play in assessing the offender’s
culpability, including the facts of the current crime, the seriousness of the
offense, whether it involved violence or aggravating circumstances, whether the
defendant injured another, whether there are rational gradations of culpability
that can be made on the basis of the injury to the victim or to society in
general, and whether the sentence constitutes “excessive punishment for [an] ‘ordinary
offense[].’ ” (Lynch,
The
punishment imposed here was not grossly disproportionate to the crime. A young man lost his life due to the actions
of defendant and Malone. The gravity of
the offense was therefore great. A
sentence of 25 years to life for felony murder is not on its face
excessive. And though crimes such as
this have become far too “ordinary” in our society, the senseless taking of a
life is not an “ordinary” crime in terms of moral disapprobation and
outrage. Malone was an adult and clearly
the more culpable party, but he also received a more severe sentence: 50 years to life.
Also
relevant to the inquiry are the penological purposes of the prescribed
punishment. (In re Foss (1974) 10 Cal.3d 910, 919-920.) The penological purpose of the sentence was
in part to punish defendant and to isolate him from society for an extended
period so as to protect the public. But
it also was intended to serve as a deterrent to others who might engage in such
dangerous behaviors. “The purpose of the
felony‑murder rule is to deter those who commit the enumerated felonies
from killing by holding them strictly responsible for any killing committed by
a cofelon, whether intentional, negligent, or accidental, during the
perpetration or attempted perpetration of the felony. [Citation.] ‘The Legislature has said in effect that this
deterrent purpose outweighs the normal legislative policy of examining the
individual state of mind of each person causing an unlawful killing to
determine whether the killing was with or without malice, deliberate or
accidental, and calibrating our treatment of the person accordingly. Once a
person perpetrates or attempts to perpetrate one of the enumerated felonies,
then in the judgment of the Legislature, he is no longer entitled to such fine
judicial calibration, but will be deemed guilty of first degree murder for any
homicide committed in the course thereof.’ [Citation.]” (Cavitt,
supra, 33 Cal.4th at p. 197; cf.
1172, 1198 [deterrent purposes of second degree felony-murder rule].)
True,
defendant is a young man. That and his
less culpable role in Lewis’s death are the primary factors that might be
considered mitigating in determining whether the sentence was grossly
disproportionate. But he is wrong to
attempt to liken his case to Dillon,
the time of the offense. (
at the level of a “ ‘much younger child.’ ” (Id.
at p. 483.) No such evidence was
introduced with respect to defendant.
Dillon
and several friends intended to steal marijuana plants from a grower; they took
along some shotguns and a rifle, as well as other weapons and supplies they
thought would be of use during the raid.
(Dillon, supra, 34 Cal.3d at pp. 451-452.)
When Dillon became separated from some of his friends, one of the boys
in the separate group accidentally fired his shotgun twice. (Id.
at p. 452.) Hearing at least two shotgun
blasts, Dillon believed his friends had been “blown away” by a guard at the
marijuana plantation, whom he had seen carrying a shotgun. (Id.
at p. 482.) He then heard footsteps
behind him and saw a man approaching with a shotgun that appeared to be aimed
at him. (Id. at pp. 482-483.) He
panicked and fired several shots in the man’s direction, killing him. (Id.
at p. 483.)
Defendant’s
crime here was much more serious in that he, by his own admission, embarked
upon a drug transaction knowing his companion was armed and intended to use the
gun for a robbery. The jury found
defendant shared that intent. The crime
intended by defendant and Malone was far more violent than the original crime
contemplated by Dillon and his companions in that it involved confronting four
people with a handgun. Malone’s shot was
by all indications intentional and at close range with no provocation and no
possible claim of self-defense or imperfect self-defense. There was no element of accident, fear or
panic. Defendant’s crime was vastly
different from Dillon’s.
Defendant
also presents a much greater danger to society than did Dillon, who had no
prior criminal record. (Dillon,
a prior record as a juvenile that included robbery, battery, theft and illegal
gaming. At age 17 he was already an
experienced criminal. We fail to see
this as a case comparable to Dillon.
Defendant
also cites Mendez, supra, 188
Cal.App.4th at pp. 62-68 and Graham v.
Florida (2010) 560 U.S. ___, 130 S.Ct. 2011 (Graham). Those cases held
unconstitutional extreme punishments inflicted on defendants who were juveniles
when they committed their offenses where such sentences condemned the
individual to life in prison with no possibility of redemption for good
conduct. Graham held unconstitutional a sentence of life without possibility
of parole for armed burglary with assault and attempted robbery by a 16 year
old. The state “must” give a juvenile
“some meaningful opportunity to obtain release based on demonstrated maturity
and rehabilitation” in cases that did not involve a homicide. (Graham,
supra, 560 U.S. at p. __, 130
S.Ct. at p. 2030.)
a sentence of 84 years to life for carjacking, assault with a firearm, and
robbery. It nevertheless found
the sentence was a de facto sentence of life without parole for a defendant who
was 16 at the time of the offense. (
not be eligible for parole until he was 88 years old, whereas his life
expectancy was only 76 years. (
cruel and unusual. (Id. at p. 68.) Notably,
however, Mendez did not find cruel or
unusual a sentence of 48 years for a 15-year-old codefendant. (Id.
at pp. 50, 68.)
Most
recently, in People v. Caballero (Aug.
16, 2012, S190647) __ Cal.4th __ [2012 Cal.LEXIS 7664], the California Supreme
Court struck down a sentence of 110 years to life in a juvenile case
involving three gang-related attempted murders.
The
sentence imposed here was substantially less severe than the sentences in
that the minimum term was 25 years, not a sentence that would inevitably keep
defendant in prison until he dies or nears the end of his life. Defendant was older than those defendants
when he committed his crime, and yet he will be eligible for parole at a much
younger age. The sentence imposed here
continues to give defendant something to strive for and a substantial life
expectancy after completing his prison term.
It was not tantamount to a sentence of life in prison without
possibility of parole and was not grossly disproportionate to the offense.
Finally,
and significantly, in Graham,
the juvenile neither killed nor intended to kill during his offense. (Graham,
supra, 130 S.Ct. at p. 2027.) Here
there was a loss of life. And though he
did not pull the trigger, California law holds defendant accountable. Thus, the claim of a grossly disproportionate
sentence is far weaker in defendant’s case.
True,
S.Ct. 2455], applied Graham’s
reasoning to homicide cases.
mandatory life without parole sentence on a juvenile even in a homicide
case. In so doing, however, it
emphasized Graham’s “categorical bar”
to life without parole sentences applied “only to nonhomicide offenses.” (Id.
at p. __ [132 S.Ct. at p. 2465].) Defendant’s
punishment was not unconstitutionally cruel or unusual.
VI. Joint and several
restitution order
Section
1202.4, subdivision (f), states in relevant part, “in every case in which a
victim has suffered economic loss as a result of the defendant’s conduct, the
court shall require that the defendant make restitution to the victim or
victims in an amount established by court order.” Defendant claims the order for restitution in
his case should have been made joint and several with the order in Malone’s
case to avoid overcompensation to Lewis’s family and the city (for the light
pole). Defendant claims the trial court
should have made its discretionary sentencing choice in a manner that avoids
multiple reimbursement for a single expense.
Such a claim was
forfeited by failure to object in the trial court. (People
v. O’Neal (2004) 122 Cal.App.4th 817, 820; see People v. Gibson (1994) 27 Cal.App.4th 1466, 1468.)
‘claims involving the trial court’s failure to properly make or articulate its
discretionary sentencing choices’ raised for the first time on appeal are not
subject to review. [Citations.]” (People
v. Smith (2001) 24 Cal.4th 849, 852.)
Defendant claims there could be no
waiver because the sentence was unauthorized, citing People v. Blackburn (1999) 72 Cal.App.4th 1520, 1535 (
decided the restitution issue, it did not discuss forfeiture by failure to
object and cannot stand for a proposition not discussed. (People
v. Taylor, supra, 48 Cal.4th at
p. 626.) Moreover, the unauthorized
sentence exception is very narrow, applying to sentences which could not
lawfully be imposed in any circumstance, where factual findings of the trial
court need not be reviewed, and where a remand is not necessary. (People
v. Smith, supra, 24 Cal.4th
at p. 852; People v. Brach (2002) 95
Cal.App.4th 571, 578.) It is not applicable here.
In
any event the claim is unmeritorious.
The court in Blackburn,
trial court has “the authority to order direct victim restitution paid by both
defendants jointly and severally.” (Id.
at p. 1535.) Blackburn interpreted the trial court’s order as implicitly
preventing excess recovery, noting “[o]f course, each defendant is entitled to
a credit for any actual payments by the other.”
Blackburn, without discussing
forfeiture, did modify the judgment to provide for joint and several liability
“out of an excess of caution.” (
Neither Blackburn nor the
other cases cited by defendant state that the court must order joint and several liability. (People
v. Madrana (1997) 55 Cal.App.4th
1044, 1049-1052; People v. Arnold (1994) 27 Cal.App.4th 1096, 1098-1100 (
Section
1202.4, subdivision (j) provides that restitution paid “shall be credited to
any other judgments for the same losses against the defendant arising out of
the crime for which defendant was convicted.” “The court in
| Description | Defendant Jamal Kelly, 17 years old at the time of the events, was convicted by jury verdict of first degree felony murder (Pen. Code, §§ 187, 189),[1] for which he was sentenced to 25 years to life in prison. On appeal he raises several instructional issues and a challenge to the sentence as cruel and/or unusual punishment; he also claims the restitution order must be modified to make it joint and several. We affirm. |
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