P. v. Richard
Filed 1/7/13 P.
v. Richard CA2/7
OFFICIAL REPORTS
California Rules of Court, rule
8.1115(a), prohibits courts and parties from citing or relying on opinions not
certified for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE,
Plaintiff and Respondent,
v.
DANNELL LEE
RICHARD et al.,
Defendants and Appellants.
B230579
(Los Angeles County
Super. Ct. No.
KA089939)
APPEALS
from judgments of the Superior Court of
County, Bruce F. Marrs, Judge. Affirmed, as modified.
Allison
H. Ting, under appointment by the Court of Appeal, for Appellant Dannell Lee
Richard.
Juliana
Drous, under appointment by the Court of Appeal, for Appellant Jovan Ricky
Guillory.
Robert
L.S. Angres, under appointment by the Court of Appeal, for Appellant Aisha
Najean Douglas.
Alan
Siraco, under appointment by the Court of Appeal, for Appellant Ashlee O.
Reed.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle and
Stacy S. Schwartz, Deputy Attorneys General, for Plaintiff and Respondent.
Dannell Lee Richard, Jovan
Ricky Guillory, Ashlee Olivia Reed and Aisha Najean Douglas appeal from the
judgments entered following their convictions on charges arising from the home
invasion robbery of a drug dealer and his girlfriend. With the exception of some corrections to
Richard’s sentence, we affirm.
factual and procedural background
1.
The Robbery and Arrest of the
Defendants
On the morning of March 10, 2010 Misty Salinas was getting ready for work while her four-year-old
daughter sat on the couch watching cartoons.
Someone knocked on the door.
Looking through the peephole, Salinas saw a young
woman she did not know. She woke her
boyfriend Graylynn Reed, who was asleep in the bedroom, to see if he wanted to
answer the door. Graylynn,
neighbor, told Salinas to open the door. As she
opened the door, Richard pushed into the apartment and struck Salinas on her
face, neck and chest. Salinas fell over
the couch, grabbed her daughter and lay on the floor. Ashlee Reed, the woman who had knocked at the
door, also came into the apartment, followed by Guillory.
Hearing a commotion, Graylynn
came out of the bedroom and saw someone pointing a gun at Salinas. He ran toward a closet to retrieve his own
gun, but, after realizing he would not make it, tried to lock himself in the
bathroom. Richard pointed a gun at
Graylynn, struck him in the head with the gun and pulled him out to the
hallway. Richard and Guillory bound
Graylynn and Salinas with duct tape and demanded to know where Graylynn kept his
“stuff.†Graylynn directed them to the
closet, where they retrieved Graylynn’s gun, a large quantity of marijuana and
cash. After threatening Graylynn,
hitting him again with the pistol and slashing at him with a knife, Richard
apparently concluded nothing else of value remained in the apartment. The three assailants left the apartment,
taking the couple’s cell phones, keys, a video game console and two purses
belonging to Salinas, in addition to the gun, marijuana and cash.
Graylynn and Salinas were able
to free themselves and went to the manager’s office to report the robbery. When an officer from the West Covina Police
Department arrived, Graylynn initially claimed the apartment had been
burglarized when the couple had been away.
Graylynn reported the missing items but omitted mention of the
marijuana. While the officer was at the
apartment, he received a call from another officer who had detained a car with
four occupants nearby. A search of the
car revealed two guns, several cell phones, a large quantity of marijuana, a
video game console, cash and two purses.
Graylynn and Salinas accompanied the officer investigating the burglary to the detained
car. Along the way they decided to admit
they had been in the apartment at the time of the crime and the suspects had
stolen Graylynn’s marijuana. When they
arrived at the location, both Graylynn and Salinas identified
Richard, Guillory and Reed as the persons who had robbed them. Graylynn also identified Douglas, who had
been driving the car, as someone he had known for several years.
2.
Pretrial and Trial Proceedings
Richard,
Guillory, Reed and Douglas were charged by information with three counts
(Graylynn, Salinas and Salinas’s four-year-old daughter) of first degree in-concert home invasion
robbery (Pen. Code, §§ 211, 212.5, subd. (a), 213, subd. (a)(1)(A))
Richard, Guillory and Reed had personally used a firearm (§ 12022.53, subds.
(b), (e)(1)) and the crime had been committed for the benefit of a criminal
street gang (§ 186.22, subd. (b)(1)(C) & (b)(4)). Richard and Douglas were also charged with
one count each of possession of a firearm by a felon (§ 12021,
subd. (a)(1)), and Guillory was charged with one count of unlawful firearm
activity (§ 12021, subd. (d)(1)).
Richard was alleged to have suffered two prior serious or violent felony
convictions within the meaning of section 667, subdivision (a)(1), and the “
(§§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d)).
The charges were tried before
two separate juries: one for Richard,
and the second for Guillory, Reed and Douglas.
At trial Graylynn admitted he had sold marijuana he had purchased with a
medical marijuana license, sometimes in quantities of a pound or more.
her with marijuana and they had frequently engaged in sex during the previous
four years. Graylynn had observed what
he believed to be gang-related tattoos on Douglas’s body, and she had admitted on one occasion she was a member of
the East Coast Crips (ECC). He also knew
her husband was incarcerated.
Erik Shear, a detective with
the Los Angeles Police Department, testified as an expert on criminal street
gangs. Shear had been assigned to
investigate the ECC gang for the past six years. The Q102 clique of that gang engages in
various gang-related crimes but has been particularly known for its “dope
rip-offs,†that is, robberies of drug dealers.
Shear identified four crimes committed by ECC members, including two
robberies of drug dealers. Richard and
Guillory had admitted to being members of the ECC gang and bore gang-related
tattoos, including tattoos linking them to the Q102 clique. Reed bore a “5150†tattoo, indicating someone
who is not afraid, or half crazy, but her tattoos were not specific to
ECC. Based on an extensive hypothetical
question echoing the details of the robbery of Graylynn and Salinas, Shear
opined the crime had been committed for the benefit of the ECC gang.
Douglas was the only defendant who testified. Douglas denied ever having sex with Graylynn but admitted she had bought
marijuana from him on more than 200 occasions.
She also denied any gang affiliation and claimed her tattoos were not
gang-related. Although Richard, who is
her brother, had once been a member of the ECC gang, he was no longer
associated with them. Guillory was the
son of a friend, and she had never known him to be involved with a gang and had
never noticed his tattoos. She also did
not believe Reed, who was Richard’s girlfriend, was involved with a gang.
According to Douglas, she had purchased
marijuana from Graylynn the evening before the robbery, and he had shorted her
on the quantity. Richard, Guillory and
Reed were at Douglas’s house in Baldwin
Park that evening. Later that evening, she became even angrier
when she learned Graylynn had sold marijuana to her pregnant, teenage daughter
and had also recruited her daughter to sell drugs at her high school. Still angry the next morning, Douglas called Graylynn and
confronted him for shortchanging her.
After he refused to rectify the problem, Richard, Guillory and Reed got
into Douglas’s car and headed to Graylynn’s apartment. Douglas denied anyone had planned to rob Graylynn; she believed they were
only going to get the additional marijuana she was owed. Moreover, Douglas believed he lived alone and
did not know Salinas or her child would be there.
When they arrived at Graylynn’s
West Covina apartment, Douglas decided to stay in the car because she felt ill
(she had ingested Ecstasy provided by Graylynn twice over the previous 12
hours) and directed Richard, Guillory and Reed to the apartment. Richard, Guillory and Reed returned to the
car several minutes later with a bag.
Douglas smelled marijuana and assumed they had obtained the additional
marijuana Graylynn owed her. She drove
away from the apartment but was stopped a short time later by West Covina
police.
3.
Verdicts and Sentencing
Douglas, Reed and Guillory were
each convicted of two counts of robbery
(Graylynn and Salinas) perpetrated in an inhabited dwelling by the defendants
acting in concert. Their jury found true
the related firearm enhancement allegations but found the gang allegations not
true. Douglas admitted she had
previously suffered a prior felony conviction and was additionally convicted of
possession of a firearm by a felon. The
jury also convicted Guillory of unlawful firearm activity after he admitted he
had been on probation at the time of the offense and had been ordered not to
possess any firearm as a condition of probation. Guillory was sentenced to an aggregate state
prison term of 21 years four months; Douglas was sentenced to an aggregate
was sentenced to a state prison term of six years on each count, to run
concurrently.
Richard was convicted by the
second jury of three counts of home invasion robbery (including Salinas’s
child) and one count of possession of a firearm by a felon. The jury found true all firearm and gang
enhancement allegations. In a bifurcated
proceeding, the court found true the allegation Richard had suffered two prior
strike convictions. Richard was sentenced
to an aggregate state prison term of 207 years to life: On the first home invasion robbery count, 15
years to life, tripled to 45 years to life under the Three Strikes law, plus 10
years for the firearm enhancement under section 12022.53, subdivision (b), plus
another 10 years under section 12022.53, subdivisions (b) and (e)(1), plus 10
years pursuant to section 667, subdivision (a)(1), plus two years pursuant to
section 667.5, subdivision (a)(1); on the second home invasion robbery count,
15 years to life, tripled to 45 years to life under the Three Strikes law, plus
10 years for the firearm enhancement under section 12022.53, subdivision (b),
plus another 10 years under section 12022.53, subdivisions (b) and (e)(1), to
run consecutively to the first count; and on the third home invasion robbery
count, 15 years to life, tripled to 45 years to life under the Three Strikes
law, plus 10 years for the firearm enhancement under section 12022.53,
subdivision (b), plus another 10 years under section 12022.53, subdivisions (b)
and (e)(1), to run consecutively to the first two counts. A concurrent sentence of two years was
imposed on the unlawful firearm possession
count.
contentions
Richard challenges the expert
testimony presented on the criminal
street gang allegation as improper and contends the jury’s true finding on
this enhancement was not supported by substantial evidence. He also challenges portions of his
sentence. Guillory, who was 16 years old
at the time of the crime, challenges his sentence as unconstitutionally
excessive in light of his age. Reed
contends the jury was improperly instructed on the elements of robbery in
concert and claims the evidence is insufficient to support her conviction. Douglas contends there is
conviction as an aider and abettor to the robbery of Salinas because she did
not know Salinas would be in the apartment or to support the finding she acted
in concert with the other defendants.
discussion
1.
The Gang Enhancement Was
Properly Imposed on Richard
To
obtain a true finding on a gang enhancement allegation, the prosecution must
prove the underlying offense was “committed for the benefit of, at the
direction of, or in association with any criminal street gang, with the
specific intent to promote, further, or assist in any criminal conduct by gang
members . . . .†(§ 186.22,
subd. (b)(1).) To establish this
element of the enhancement allegation, two prongs must be met: First, there must be evidence the underlying
felony was “committed for the benefit of, at the direction of, or in
association with any criminal street gang.â€
Second, there must be evidence the defendant had “the specific intent to
promote, further, or assist in any
criminal conduct by gang members.†(See People v. Albillar (2010) 51
Cal.4th 47, 51 (Albillar);
605, 615-616; People v. Anguiano (2012)
210 Cal.App.4th 323, 331.)
Richard challenges the jury’s
true finding on the gang enhancement on two grounds: First, he contends the jury’s finding is not
supported by substantial evidence because the evidence overwhelmingly
demonstrated the robbery was committed to avenge wrongs done to his sister and
niece, not for a gang purpose. Second,
he contends Detective Shear’s opinion was based on a hypothetical that tracked
the evidence in this case so closely it amounted to an improper opinion as to
Richard’s own intent rather than that of a typical gang member in similar
circumstances.
title="">[4]
Richard’s second argument was expressly
rejected by the Supreme Court in People
v. Vang (2011) 52 Cal.4th 1038 (Vang),
which was decided after his opening brief was filed.
rule that an expert may testify a crime was committed for the benefit of a
criminal street gang, provided the opinion testimony is “on the basis of facts
given ‘in a hypothetical question that asks the expert to assume their
truth.’†(People v. Gardeley, supra, 14 Cal.4th at p.
618.) To be sure, this does not mean an
expert may express any opinion he or she may have. (See People v. Killebrew (2002) 103
Cal.App.4th 644, 651 (Killebrew), disapproved on other grounds in
rejected a gang expert’s opinion that “when one gang member in a car possesses
a gun, every other gang member in the car knows of the gun and will
constructively possess the gun.†(
opinion may address the ultimate issue in the case, but it is improper for an
expert to opine that a “specific individual had specific knowledge or possessed
a specific intent.†(Id. at p.
658.) Because the expert’s testimony
provided the only evidence to establish the elements of the crime, it “did
nothing more than inform the jury how [the expert] believed the case should be
decided.†(Id. at p. 658; accord,
In re Frank S. (2006) 141 Cal.App.4th 1192, 1197-1198 [“Similar to Killebrew,
the expert in this case testified to ‘subjective knowledge and intent’ of the minor. [Citation.]
‘Such testimony is much different from the expectations of gang
members in general when confronted with a specific action.’â€].)
In Vang,
supra, 52 Cal.4th 1038, however, the Supreme Court affirmed imposition of a
gang enhancement based on hypothetical questions
that “tracked the evidence
in a manner
at p. 1041.) As the Court explained, the
expert witness “could not testify directly whether [the defendants] committed
the assault for gang purposes†because the witness lacked personal knowledge as
to whether they had committed the charged assault, “and if so, how or why; he
was not at the scene.†(Id. at p.
1048.) The expert witness, however,
“properly could, and did, express an opinion, based on hypothetical questions
that tracked the evidence, whether the assault, if the jury found it in fact
occurred, would have been for a gang purpose.â€
(Ibid.)
Vang emphasized the “critical difference between an expert’s expressing
an opinion in response to a hypothetical question and the expert’s expressing
an opinion about the defendants themselves†(Vang,
supra, 52 Cal.4th at p. 1049),
name="_ftnref6" title="">[6] a difference Richard
claims was vitiated by the exceedingly specific nature of the hypothetical
question posed here. As inartful as the
question posed here may have been, and as predictable as the answer given by
Detective Shear was, Vang leaves no
room for doubt that an expert on criminal street gangs is permitted to opine on
the issue of gang benefit, based on a hypothetical question that mirrors the
evidence presented in a particular case.
The testimony offered by Shear was entirely proper under
Richard’s argument there was
insufficient evidence to support the jury’s true finding on the gang
enhancement allegation similarly fails.
gang member is a gang-related crime for purposes of section 186.22, subdivision
(b)(1). (See, e.g., Albillar, supra, 51 Cal.4th
at p. 60.) Here, he contends, no one
called out a gang name, displayed a gang sign or indicated in any way a gang
motive. According to Richard, “something
more than an expert witness’s unsubstantiated opinion that a crime
was committed for the benefit of, at the direction of, or
in association with any criminal street gang is required
to justify a true finding on a gang enhancement.†(People v. Ochoa (2009) 179
Cal.App.4th 650, 660.)
Richard is correct that
“something more†is required than an unsupported expert opinion, but Detective
Shear’s testimony was sufficient to permit the jury to find the robberies were
committed to benefit the ECC gang and Richard had the requisite specific
intent. “Expert opinion that particular
criminal conduct benefited a gang by enhancing its reputation for viciousness
can be sufficient to raise the inference that the conduct was ‘committed for
the benefit of . . . a[] criminal street gang’ within the meaning of section
186.22(b)(1).†(Albillar,
supra, 52 Cal.4th at p. 1048.)
Shear testified extensively about predicate crimes committed by members
of the ECC gang, including the gang’s signature crime of “dope rip-offs,â€
exactly the crime committed here. In
addition, the gun stolen from Graylynn could be used for the commission of
future crimes, and the stolen marijuana could be resold for profit. In turn, these resources could be used to
enhance the reputation of the gang and further recruitment of new gang members.
Similarly, there was sufficient
evidence from which it was reasonable to infer Richard committed the underlying
offenses with the specific intent to promote, further or assist criminal
conduct by gang members. (See Albillar, supra, 51 Cal.4th at
p. 55 [“[t]he plain language of the statute . . . targets felonious
criminal conduct, not felonious gang-related conductâ€].) “[T]he scienter requirement in
section 186.22(b)(1)—i.e., ‘the specific intent to promote, further, or assist
in any criminal conduct by gang members’—is unambiguous and applies to any
criminal conduct, without a further requirement that the conduct be ‘apart
from’ the criminal conduct underlying the offense of conviction sought to be
enhanced.†(Albillar, at p. 66.) “There
is no further requirement that the defendant act with the specific intent to
promote, further, or assist a gang;
the statute requires only
promote, further, or assist criminal conduct by gang members.†(Id.
at p. 67.) From evidence the
defendant “intended to and did commit the charged felony with known members of
a gang, the jury may fairly infer that the defendant had the specific intent to
promote, further, or assist criminal conduct by those gang members.†(Id. at p. 68.)
There was ample evidence here
that all four defendants were members or associates of the ECC gang. Richard and Guillory admitted their gang
membership, and Detective Shear described the ways in which all defendants’
tattoos linked them to the ECC gang in particular or gang culture in
general. As Shear explained, it is not
uncommon for gang members to be related to each other or to commit crimes
together. The failure of
the second jury to impose a gang enhancement on Richard’s confederates
demonstrates nothing more than the evidence was susceptible to two different
conclusions, neither of which we are empowered to overturn.
2.
Guillory’s Sentence Is Not Unconstitutional
Guillory, who was 16 at the
time of the robbery, contends his sentence of 21 years four months in
state prison was unconstitutionally excessive in light of his age. Because he failed to raise this issue in the
trial court, Guillory has forfeited this claim.
(See, e.g., People v. Williams (1997) 16 Cal.4th 153, 250
[constitutional objections not properly raised are forfeited]; see also People
v. Ross (1994) 28 Cal.App.4th 1151, 1157, fn. 8 [forfeiture of claim
of cruel and unusual punishment].) Nonetheless, we address his contention on the
merits because he alternately argues his counsel provided ineffective
assistance by failing to object to the sentence on this ground. (See People
v. Norman (2003) 109 Cal.App.4th 221, 229-230.)
The Eighth
Amendment’s ban on cruel and unusual punishment prohibits
imposition of a sentence that is grossly disproportionate to the severity of
the crime. (Ewing v. California
(2003) 538 U.S. 11, 20-21 [123 S.Ct. 1179, 155 L.Ed.2d 108].) In Graham v. Florida (2010) 560 U.S.
--- [130 S.Ct. 2011, 176 L.Ed.2d 825]) the United States Supreme Court held
that sentencing a juvenile to life without the possibility of parole for a nonhomicide offense violates the
Eighth Amendment’s prohibition of cruel and unusual punishment. (Graham,
at p. 2034.) Central to this result was
the Court’s appreciation for the “fundamental differences between juvenile and
adult minds†and its recognition that juveniles are “more capable of change
than are adults.†(Id. at p.
2026.) The Court recently extended the
reasoning of Graham to hold
imposition of a mandatory sentence of life-without-parole on a juvenile
convicted of murder also violates the Eighth Amendment. (Miller
v. Alabama (2012) 567 U.S. --- [132 S.Ct. 2455, 2467-2468, 183 L.Ed.2d
407].) As the Court explained, such
penalties “preclude[] consideration of [an offender’s] chronological age and
its hallmark features—among them, immaturity, impetuosity, and failure to
appreciate risks and consequences.†(Id. at p. 2468.) The Court concluded Graham’s directive
to consider the unique characteristics and vulnerabilities of juveniles is not
“crime-specific†and its “reasoning implicates any life-without-parole sentence
for a juvenile.†(Id. at p. 2458.)
Article I, section 17 of the California Constitution contains
a similar prohibition of punishment “not only if it is inflicted by a cruel and
unusual method, but also if it is grossly disproportionate to the offense for
which it is imposed.†(
441, 478.) To
prevail on a claim a sentence constitutes cruel or unusual punishment in
violation of the California Constitution, a defendant must overcome a “considerable
burden†(People v. Wingo (1975) 14 Cal.3d 169, 174) by demonstrating the
punishment is so disproportionate to the crime for which it was imposed it
“shocks the conscience and offends fundamental
notions of human dignity.†(In re
Lynch (1972) 8 Cal.3d 410, 424 (Lynch);
478.)
Recently, in
Cal.4th 262, 268, the California Supreme Court held a 110-year-to-life sentence
imposed on a juvenile convicted of nonhomicide offenses (three gang-related
attempted murders) was the functional equivalent of a life sentence without the
possibility of parole and was invalid in light of the decisions in Graham
and Miller. (Caballero,
sentence for distinct crimes does not present an Eighth Amendment issue and
found, when a juvenile is sentenced to minimum terms that exceed his or her
life expectancy, the punishment is excessive under Graham and Miller. (Caballero, at pp. 268-269.) As the Court noted, “the
state may not
deprive [juveniles]
a meaningful opportunity
to demonstrate their
rehabilitation and fitness
to reenter society
in the future.â€
(Id. at p.
268.) A sentencing court must consider mitigating
circumstances before determining at which point juveniles can seek parole,
including their age, whether they were a direct perpetrator or an aider and
abettor, and their physical and mental development. (Ibid.)
The sentencing inquiry mandated
by these decisions does not make Guillory’s 21 year four month sentence
unconstitutionally excessive. Guillory
was a direct perpetrator of the robbery—not merely an aider or abettor—and
personally used a firearm during the crime.
He had been a member of the ECC gang since he was 12 years old and had
suffered a juvenile adjudication for assault with a deadly weapon (§ 245, subd.
(a)), for which he was confined for six months, and was on probation at the
time of the instant robbery. The
unfortunate influence of his adult co-defendants is certainly a factor to be
considered, but Guillory’s embrace of the gang lifestyle suggests their
influence was by no means isolated or dispositive. While we acknowledge the regrettable
impulsivity of teenaged offenders, the harshness of the sentence results
directly from the repugnance with which the Legislature viewed the crimes for
which he was convicted—home invasion robbery.
Although the sentence is severe, Guillory will be eligible for parole in
his mid-thirties, hopefully far from the end of his life and, accordingly, not
within the ambit of Graham, Miller and
Caballero.
In sum, Guillory has not
demonstrated his case is that “exquisite rarity†where the sentence is so harsh
as to shock the conscience or offend fundamental notions of human dignity. (See People v. Weddle (1991) 1 Cal.App.4th 1190, 1196.) Accordingly, there is no basis to find his
sentence unconstitutional under either the United States or California
Constitutions.
3.
Douglas’s and Reed’s
Convictions for Aiding and Abetting an In-concert Home Invasion Robbery Did Not
Result from Instructional Error and Were Supported by Substantial Evidence
An aider and abettor must “act
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.
[Citations.] [¶] When the definition of the offense includes
the intent to do some act or achieve some consequence beyond the actus reus
of the crime [citation], the aider and abettor must share the specific intent
of the perpetrator. . . . [A]n aider and
abettor will ‘share’ the perpetrator’s specific intent when he or she 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.
[Citations.] The liability of an
aider and abettor extends also to the natural and reasonable consequences of
the acts he knowingly and intentionally aids and encourages.†(People v. Beeman (1984) 35 Cal.3d 547,
560.)
Reed and Douglas, who were
convicted on a theory of aiding and abetting the in-concert, home invasion
robberies of Graylynn and Salinas, challenge their convictions on the grounds
of instructional error and a lack of evidentiary support for what they claim is
a required finding under section 213, subdivision (a)(1)(A), that they
Guillory. None of their contentions is
meritorious.
a. CALJIC No. 9.42.1 properly stated the findings necessary for a
conviction for in-concert, home invasion robbery
Section 213, subdivision
(a)(1)(A), creates an alternate punishment for first degree robbery within an
inhabited dwelling committed in concert with two or more other persons.
jury on the necessary findings under section 213, subdivision (a)(1)(A), as
given here, provides: “Every person who
voluntarily acting in concert with two or more other persons, commits robbery
within an inhabited dwelling house or the inhabited portion of any other
building, is guilty of violating Penal Code section 213, subdivision (a)(1)(A),
a crime. [¶] The term ‘acting in concert’ means two or
more persons acting together in a group crime and includes not only those who
personally engage in the act or acts constituting the crime but also those who
aid and abet a person in accomplishing it.
However, when the crime charged is robbery in concert, there must be at
least three persons, including any defendant, acting in concert. To establish that a defendant voluntarily
acted in concert with other persons, it is not necessary to prove there was any
prearrangement, planning or scheme.
[¶] In order to prove this crime,
each of the following elements must be proved:
[¶] 1. A robbery was
committed; [¶] 2. The robbery was committed within an inhabited
dwelling house or the inhabited portion of any other building; and [¶] 3. The defendant voluntarily acted
in concert with two or more other persons in committing the robbery.â€
Reed contends her conviction
for aiding and abetting an in-concert, home-invasion robbery must be reversed
because this instruction failed to inform the jurors that to find the robbery
was committed “in concert†required them to conclude Reed and at least two
other defendants jointly robbed the couple while all were present inside the
apartment.
title="">[10] She argues that the language of section 213,
subdivision (a)(1)(A), as well as its legislative history, demonstrate the gravamen
of the offense requires multiple intruders to act together inside the dwelling
to endanger the occupants and does not contemplate liability for alleged aiders
and abettors who either are not inside the apartment or who take no action to
rob the occupants.
This argument is simply
wrong. The syntax, grammar and
punctuation of section 213, subdivision (a)(1)(A), are susceptible of only one
reasonable interpretation—that is, the statute authorizes increased penalties
for first degree robbery committed by multiple defendants working
together. The use of the singular for
the words “defendant†and the corresponding verb “commits†reveals that the
statute deals with the punishment of a single defendant. If that single defendant commits first degree
robbery within an inhabited dwelling house while voluntarily acting in concert
with two or more other persons, that defendant is punishable by imprisonment in
the state prison for three, six, or nine years.
Nothing in the statutory language of section 213, subdivision (a)(1)(A),
suggests that the other two or more persons who acted in concert with the
defendant must have entered the inhabited dwelling or that a defendant cannot
be convicted of aiding and abetting an in-concert, home invasion robbery.
In fact, both CALJIC No. 9.42.1
and its corollary CALCRIM No. 1601,
construing section 264.1’s in-concert requirement for gang-type sexual assaults
and rejecting the same argument Reed advances here. (See Comments to CALJIC No. 9.42.1 &
CALCRIM No. 1601, citing People v. Lopez (1981)
116 Cal.App.3d 882, 888 [acting in concert does not require participation or
personal presence at the crime; aiding and abetting is sufficient] and
947, 951-952.) As the
of a factual
situation in which
mere aiding and
abetting would not
constitute acting
at p. 887.) Although the court
declined to equate “in concert†with “aiding and abetting†for all purposes (
any decisions—and Reed has cited none—that would lead us to a different
conclusion in this case.
b.
The court’s failure to
instruct on the doctrine of natural and probable consequences does not require
reversal of Douglas’s conviction for aiding and abetting the robbery of Salinas
Douglas contends the court
erred by not instructing the jury under the natural and probable consequences
doctrine because she did not know Salinas would be inside the apartment.
jury did not have sufficient evidence to establish Douglas shared Richard’s and
Guillory’s intent to rob Salinas and necessarily relied on a theory of the case
not advanced by the prosecution. (See
561 [“an aider and abettor will ‘share’ the perpetrator’s specific intent when
he or she 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 crimeâ€].)
Under the natural and probable
consequences doctrine “an aider and abettor ‘is guilty not only of the offense
he intended to facilitate or encourage, but also of any reasonably foreseeable
offense committed by the person he aids and abets.’†(People v. Coffman and Marlow (2004)
34 Cal.4th 1, 106-107.) As the Supreme
Court explained in People v. Prettyman (1996)
14 Cal.4th 248, “a defendant whose liability is predicated on his status as an
aider and abettor need not have intended to encourage or facilitate the
particular offense ultimately committed by the perpetrator. His knowledge that an act which is criminal
was intended, and his action taken with the intent that the act be encouraged
or facilitated, are sufficient to impose liability on him for any reasonably
foreseeable offense committed as a consequence by the perpetrator. It is the intent to encourage and bring about
conduct that is criminal, not the specific intent that is an element of the
target offense, which . . . must be found by the jury.’ [Citation.]
Thus, . . . a defendant may be held criminally responsible as
an accomplice not only for the crime he or she intended to aid and abet (the
target crime), but also for any other crime that is the ‘natural and probable
consequence’ of the target crime.†(Id.
at p. 261.) A trial court has a sua sponte duty to
instruct the jury on the natural and probable consequences doctrine “whenever
the prosecution’s theory of criminal liability and substantial evidence
supports the theory.†(
Cal.4th at pp. 266-267, italics added.)
Douglas has thus misconceived
the applicability of the natural and probable consequences instruction to this
case. Robbery was the target offense
charged, and the People did not contend any defendant was guilty of that crime
by virtue of the natural and probable consequences doctrine. Instead, the prosecutor argued to the jury
that it should find Douglas guilty of all the charges against her as an aider
and abettor of the offenses charged,
that is, the robberies of Graylynn, Salinas and Salinas’s daughter. There was no need to instruct the jury that
it could rely on the intent to commit an uncharged
crime to find the requisite intent to commit the charged crime.
Accordingly,
in finding Douglas guilty on an aiding and abetting theory, the jury
necessarily found she possessed the same culpable intent as Richard and
Guillory to commit the crime of robbery.
(See People v. Prettyman,
supra, 14 Cal.4th at p. 261.)
No further instruction was required.
c. There was substantial evidence to support the jury’s findings Reed
and Douglas aided and abetted an in-concert robbery
Ample
evidence supports the jury’s finding Reed and Douglas had knowledge of
Richard’s and Guillory’s criminal purpose and an intent to commit or facilitate
commission of the robbery sufficient to impose criminal liability for aiding
and abetting the robbery. (People v.
Bloom (1989) 48 Cal.3d 1194, 1208 [“[e]vidence of a defendant’s state of
mind is almost inevitably circumstantial, [and] circumstantial evidence is as
sufficient as direct evidence to support a convictionâ€].) The jury was free to weigh the evidence and
reject Douglas’s account of her intentions both before and during the
incident. (People v. Watts (1999)
76 Cal.App.4th 1250, 1258-1259 [“‘[i]t is blackletter law that any conflict or
contradiction in the evidence, or any inconsistency in the testimony of
witnesses must be resolved by the trier of fact who is the sole judge of the
credibility of the witnesses’â€]; see also People v. Lewis (2001) 26
Cal.4th 334, 361 [“‘“[c]onflicts and even testimony which is subject to
justifiable suspicion do not justify the reversal of a judgment, for it is the
exclusive province of the trial judge or jury to determine the credibility of a
witness and the truth or falsity of the facts upon which a determination
dependsâ€â€™â€].)
Likewise, Reed cannot prevail
on her insufficient evidence claim simply by referring to the evidence she
believes supports her version of events and ignoring all the evidence to the
contrary. Graylynn testified he saw Reed
with a gun and she searched the apartment with Guillory for items to take. Salinas also saw her hold a gun and take
property, including Salinas’s phone and purse.
The testimony also supported the conclusion she acted as a lookout and
spoke with Douglas by telephone to verify no one was outside the apartment.
4.
Richard’s Sentence Must Be
Corrected
The People concede the trial court
made two separate errors in sentencing Richard.
First, in keeping with the jury’s true findings on the alleged firearm
enhancements under section 12022.53, subdivision (b), on the three robbery
counts and a second enhancement under section 12022.53, subdivisions (b) and
(e), on those counts, the court imposed two 10-year sentences on each
count. This was error: Section 12022.53, subdivision (f), expressly
provides, “Only one additional term of imprisonment under this section shall be
imposed per person for each crime.†(See
People v. Gonzalez (2008) 43 Cal.4th
1118, 1130 [“after a trial court imposes punishment for the section 12022.53
firearm enhancement with the longest term of imprisonment, the remaining
section 12022.53 firearm enhancements and any section 12022.5 firearm
enhancements that were found true for the same crime must be imposed and then
stayedâ€].)
Second, the People concede the
trial court improperly enhanced Richard’s sentence using the same two prior
offenses pursuant to both section 667, subdivision (a), and section 667.5,
subdivision (b). (See
1153 [trial court erred in imposing separate enhancements pursuant to §§ 667,
subd. (a), and 667.5, subd. (b), based on same conviction; only greatest
enhancement applies].) The two
additional one-year enhancements, therefore, must be stayed.
Finally, Richard contends his
concurrent sentence on count 4 (former § 12021, subd. (a) [felon in
possession of firearm], recodified as § 29800, subd. (a)(1)) should have
been stayed pursuant to section 654, which prohibits separate punishment for
multiple offenses arising from the same act or from a series of acts
constituting an indivisible course of criminal
conduct. (See People v. Rodriguez
(2009) 47 Cal.4th 501, 507; People v. Latimer (1993) 5 Cal.4th 1203,
1206.)
was not “distinctly antecedent and separate†from the conduct that formed the
basis for his convictions.
In cases involving a conviction
under former section 12021, subdivision (a), multiple punishment is
improper where the evidence “demonstrates at most that fortuitous circumstances
put the firearm in the defendant’s hand only at the instant of committing
another offense . . . .†(People v.
Ratcliff (1990) 223 Cal.App.3d 1401, 1412; accord, People v. Jones (2002) 103 Cal.App.4th 1139, 1143.) It is not improper, however, when the
evidence shows the defendant possessed the firearm before the crime. (Jones,
at p. 1144.) Here, the evidence
established Richard entered the apartment with a gun, which provided the
predicate for the sentence on count 4.
The trial court did not abuse its discretion in failing to stay the
sentence on count 4 under section 654. (See
People v. Osband (1996)
13 Cal.4th 622, 730-731; People v.
Blake (1998) 68 Cal.App.4th 509, 512.)
disposition
The judgments as to Guillory, Reed and
Douglas are affirmed. With respect to
Richard, the judgment is modified to stay the firearm enhancements imposed
under section 12022.53, subdivisions (b) and (e), and the two one-year prior
prison term enhancements imposed under section 667.5, subdivision (b). As modified, the judgment is affirmed. The superior court is directed to prepare a
corrected abstract of judgment and to forward it to the
PERLUSS,
P. J.
We concur:
WOODS,
J.
ZELON,
J.
name="_ftn1" title="">[1] Because Graylynn Reed and Ashlee Reed,
although not related, bear the same last name, we refer to Graylynn Reed by his
first name for convenience and clarity. (See Alshafie v. Lallande (2009) 171
Cal.App.4th 421, 424, fn. 1.)
name="_ftn2" title="">[2] Statutory references are to the Penal
Code.
