P. v. Smith

Filed 3/27/07 P. v. Smith CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEALS from judgments of the Superior Court of Los Angeles County. Norman P. Tarle and Michael E. Pastor, Judges. Affirmed in part; reversed in part and remanded.

Mark Alan Hart, under appointment by the Court of Appeal, for Defendant and Appellant Karl Earl Smith.

Peter Gold, under appointment by the Court of Appeal, for Defendant and Appellant William Anthony Cooper.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson, Roy C. Preminger, and A. Scott Hayward, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________________

INTRODUCTION

Appellants Karl Earl Smith and William Anthony Cooper challenge their convictions on numerous grounds. We conclude that insufficient evidence supported the felony-murder special-circumstance findings against each appellant and the trial court erred by permitting a midtrial amendment of the information with respect to Smith. We reject, however, appellants instructional error and sentencing claims.

BACKGROUND AND PROCEDURAL HISTORY

Appellants were members of a group of about seven people who agreed to participate in Arnold Lynchs plan to rob J.K. Jeweler (JK) at the Avalon Discount Mart. In accordance with the plan, Shareka Smith and Arnetta Lynch staged a fight with one another to act as a diversion and draw the discount mart security guards away from the JK location. Appellants then smashed the glass cases at JK and grabbed jewelry from the cases. Marcus Parks, who accompanied appellants before and after they entered JK, fired a single, fatal shot at Jin Kim, the owner of JK.

Appellants were charged with murder, second degree robbery, and conspiracy to commit robbery.^[1] A robbery-murder special circumstance was also alleged against them. Near the end of the prosecutions case-in-chief, the trial court permitted the prosecutor to file an amended information alleging second degree burglary and a burglary-murder special circumstance.

A jury convicted appellants of conspiracy to rob, second degree robbery, and second degree burglary. The jury, however, deadlocked on the murder charge against each appellant and found allegations that a principal was armed with a weapon not true. The trial court declared a mistrial with respect to the murder charges.

At appellants retrial on the murder charges, the jury convicted each of them of felony murder and found the robbery and burglary-murder special-circumstance allegations true. The trial court sentenced appellants to life in prison without possibility of parole. The court also imposed and stayed upper term sentences on each of the remaining counts.

DISCUSSION

1. The felony-murder special-circumstance instruction was proper.

Appellants contend the jury was improperly instructed on the felony-murder special circumstances because the trial court omitted paragraph two of CALJIC No. 8.81.17. They argue, therefore, the jury was not instructed on the distinction between finding a felony-murder special circumstance as true and convicting appellants of first degree murder on a felony-murder theory.

At the second trial, the jury was instructed, with respect to the robbery and burglary special circumstance, as follows: To find that the special circumstances referred to in these instructions as murder in the commission of a robbery and/or burglary are true, it must be proved: [] The murder was committed while the defendant was engaged in or was an accomplice in the commission of a robbery and/or a burglary; or [] The murder was committed during the immediate flight after the commission of a robbery and/or a burglary by the defendant. Paragraph two of CALJIC No. 8.81.17, to which appellants refer, states the following additional requirement: The murder was committed in order to carry out or advance the commission of the crime of ___ or to facilitate the escape therefrom or to avoid detection. In other words, the special circumstance referred to in these instructions is not established if the [attempted] ___ was merely incidental to the commission of the murder. The optional paragraph does not state a separate element of the special circumstance. (People v. Valdez (2004) 32 Cal.4th 73, 113.) It is only appropriately included in CALJIC No. 8.81.17 where substantial evidence indicates that the defendant intended to murder the victim without having an independent intent to commit the felony upon which the felony-murder theory and special circumstances are based. (People v. Navarette (2003) 30 Cal.4th 458, 505.)

No evidence supported the inclusion of paragraph two here. All of the evidence showed that appellants and their accomplices intended to rob Kim. Accordingly, the trial court did not err by excluding the optional paragraph from CALJIC No. 8.81.17.

Moreover, appellants underlying theory that the felony-murder special circumstance must be distinguishable from felony murder as a basis for a first degree murder conviction is incorrect. First degree murder liability and special circumstance findings may be based upon common elements without offending the Eighth Amendment of the United States Constitution. (People v. Catlin (2001) 26 Cal.4th 81, 158.) The California Supreme Court has repeatedly rejected the claim that the statutory special circumstances, including the felony-murder special circumstance, fail to adequately perform the constitutionally required eligibility narrowing. (See, e.g., People v. Pollock (2004) 32 Cal.4th 1153, 1195, and cases cited therein.) Furthermore, appellants were not sentenced to death. The Eighth Amendment requires that states employ clear and objective standards to distinguish meaningfully between the few cases in which death is imposed and the many cases in which it is not. This requirement has never been extended to apply to defendants not sentenced to death. (Harmelin v. Michigan (1991) 501 U.S. 957, 995-996.)

In any event, CALJIC No. 8.80.1 properly instructed the jury that in order to find the robbery or burglary special circumstance true against the appellants, it must find, beyond a reasonable doubt, that appellants with the intent to kill aided, abetted, or assisted any actor in the commission of the murder in the first degree, or with reckless indifference to human life and as a major participant, aided, abetted, or assisted in the commission of the crime of robbery and/or the crime of burglary . . . . Given the evidence that neither appellant was the actual killer, this instruction served to inform jurors that they should not automatically find the special circumstance allegations true if they convicted appellants of murder on a felony-murder theory.

2. Insufficient evidence supports the jurys special circumstance findings.

Appellants further contend that insufficient evidence supported the jurys special circumstance findings. Specifically, they argue there was insufficient evidence they acted with reckless indifference to human life.

To resolve this issue, we review the whole record in the light most favorable to the judgment to decide whether the evidence was sufficient to persuade a reasonable jury of the truth of the special circumstances allegations beyond a reasonable doubt. (Peoplev.Ceja (1993) 4 Cal.4th 1134, 1138.)

A felony-murder special circumstance is applicable to a defendant who is not the actual killer if the defendant, either with the intent to kill (Pen. Code, 190.2, subd. (c)), or with reckless indifference to human life and as a major participant, aids, abets, counsels, commands, induces, solicits, requests, or assists in the commission of a felony enumerated in paragraph (17) of subdivision (a) which results in the death of some person or persons. (Pen. Code, 190.2, subd. (d).) Reckless indifference to human life, as used in this context means subjective awareness of the grave risk to human life created by his or her participation in the underlying felony. (Peoplev.Estrada (1995) 11 Cal.4th 568, 578.)

Viewed in the light most favorable to the judgment, the record at appellants retrial established the following matters. Early on the morning of September 12, 2002, Arnold Lynch told Shareka Smith he wanted her to stage a fight with another young woman at the discount mart while other participants stole jewelry in what he called a snatch and run. Cooper was present during this conversation, but Arnold^[2]did most of the talking. Other meetings discussing the planned crime followed, as Arnold tried to recruit additional participants. Smith, Marcus Parks, Nathaniel White and others were present for the later meetings. Cooper, Smith, Parks and Shareka agreed to participate. Roles were assigned to most of the participants. Shareka and Arnetta, whom Arnold later recruited, were to stage a fight in a womens clothing store at the back of the discount mart to distract the security guards. Appellants were assigned and accepted the role of breaking the glass display cases in the jewelry store and stealing the jewelry. Arnold was to act as the getaway driver. White insisted in both his testimony and his statement to police that he did not have a role. Shareka testified that White agreed to drive, as Arnold wanted to use two cars. Parks wanted to participate, but he was not assigned a role and did not acknowledge that he had a role. White testified that Parks participated on his own because all the other roles were already taken. However, no one objected to his participation. No one discussed the use of a gun. Neither Shareka nor White saw anyone with a gun that day.

Appellants went to the discount mart with Arnold in Coopers car. Parks was not in that car. White testified he drove to the discount mart alone to shop and to see if his friends would go through with the plan. Shareka testified she rode with White to the discount mart. Parks did not ride in either car. White testified that he walked around the discount mart looking at merchandise. He saw appellants and Parks walking around and standing together. Shareka and Arnetta staged a fight in the clothing store as planned. White saw appellants and Parks standing inside JK. He saw appellants break the glass display cases. Smith used a crowbar, but White could not see the implement Cooper used. White also could not see what Parks was doing at the time. No witness at trial saw the shooting. White heard the shot and saw that Smith was not the shooter. White ducked and ran to an exit. He saw appellants and Parks run out of the building. He did not see anything in Parkss hands. Appellants hands were stuffed inside their shirts. All of the participants got away from the discount mart without detection by the police.

Police found a tire iron inside one of the shattered display cases at JK. When they subsequently searched Coopers car, it contained no tire iron. A wooden mallet Kim used to repair jewelry was found on the floor near the display cases. Blood collected on top and in front of one of the display cases contained DNA matching Smith. Other blood at the scene matched Kim. A latent fingerprint atop one of the cases also matched Smith.

Later on the day of the crimes, each of the appellants had a bandaged hand. They told White they cut their hands on the display cases. Appellants had lots of jewelry and were laughing. Several days after the crimes, Parks told White that he shot Kim when he swung or came at him. Parks said he became paranoid and fired on impulse. He also said appellants were present at the time. A week later, White was with Parks and Smith when they argued about the gun. Parks urged Smith to dispose of the gun. Smith said the gun was his and he was not going to get rid of it. After Smith left, White advised Parks to find a way to get rid of the gun.

When detectives interviewed Smith, he admitted his involvement.^[3] He said Kim was not supposed to get shot. Smith admitted breaking the glass with a crowbar and cutting his hand while reaching inside the case for jewelry. Kim swung something like a wooden hammer and also broke the glass. Smith said he was already outside when he heard the shot. He obtained possession of the gun after the shooting and sold it.

Cooper told detectives he knew that a snatch and run at the discount mart was planned, but denied that he was part of the plan.^[4] He admitted he went over to the discount mart that day to shop and see if the plan was feasible. However, he insisted, he had already decided not to participate, and was leaving the discount mart when he heard the glass display case shatter. He did not hear a gunshot.

The police monitored a conversation between Smith and Parks in a courthouse lockup.^[5] Smith said the detectives knew everything and knew that he was the last one with the theater, which is slang for a gun.

The police recovered a ring from Cooper that was identical to a ring stocked by JK. Kims widow thought a ring of that type was missing after the commission of the charged crimes.

The jury could infer from Whites testimony regarding the post-crimes conversation or argument between Parks and Smith that the gun used to shoot Kim belonged to Smith. The jury could further infer that Smith lent the gun to Parks. However, no evidence was offered regarding the timing of such a loan. If Smith lent the gun to Parks just before they all left for the discount mart, the evidence supporting the special circumstance would have been stronger with respect to Smith. However, any conclusion regarding the timing of the loan is necessarily based upon speculation, as nothing in the record reflects upon the timing of this inferred event. White and Shareka testified there was no discussion of the use of a gun or any other weapon during the planning of the robbery, and neither saw a gun. Similarly, nothing in the record shows that Smith or Cooper knew Parks brought the gun with him to participate in the robbery and burglary or that the gun was loaded. In this regard, the only evidence about Parkss planned role in the crimes was that he had none. He was obviously permitted to accompany Smith and Cooper into the store, but all of the evidence regarding the planning of the crimes indicated that Parks was not given any role to play. White testified that Parks wanted to be part of the robbery, but during its planning he was not given any role to perform. Shareka told the police that Parks was not even supposed to go with the others to the discount mart.

Although, in some circumstances, leaving the crime scene without rendering aid to the victim is a factor tending to show that the defendant acted with reckless indifference to human life (see, e.g., Tison v. Arizona (1987) 481 U.S. 137 (Tison)), the conduct alone does not necessarily establish the requisite mental state. Departure from the scene without assisting the victim may instead reflect shock, fear or a belief that the victim is already dead or will die within seconds and therefore cannot be helped. Here, the coroner testified that the single bullet Parks fired at Kim caused severe damage to his heart and two major arteries, resulting in profuse bleeding. He opined that Kim survived only a matter of seconds after being shot. Appellants conduct in leaving the scene under these circumstances therefore does not necessarily reflect an attitude of reckless indifference. In the absence of any other factors supporting an inference of reckless indifference to life, such as evidence they armed Parks or knew he was armed, this factor alone is insufficient to support the special circumstance findings.

Respondent argues that evidence that appellants grabbed jewelry from the cases supports the special circumstance findings. Some courts have cited, inter alia, a defendants act in taking a fatally wounded or deceased victims property as a factor tending to show reckless indifference to life. While there was evidence that appellants took jewelry from the broken display cases, nothing indicated that this occurred after Parks shot Kim. Smith told the police that he was already running from the store with the jewelry he had grabbed when he heard the gunshot, which he thought was a security guard shooting at them. White testified about 10 seconds elapsed between the time he saw appellants break the glass and the time he heard a gunshot. Indira Barrera, a salesperson from another store, testified that a couple of seconds elapsed between the time she heard glass breaking and the time she heard a gunshot. Juan Barragan, another salesperson, testified the interval between the glass breaking and the gunshot was 10 to 15 seconds. It therefore appears appellants had ample time to grab the jewelry that was stolen from JK before Parks shot Kim. White also testified that Parks told him appellants were still in the store when he shot Kim, and then they all ran out. Thus, while the evidence supports an inference that appellants completed the asportation of the jewelry after Parks shot Kim, it does not support an inference that they took initial possession of any of JKs or Kims property after the shooting. While both types of conduct are blameworthy, the latter clearly evinces a reckless indifference to life, while the former does not.

Accordingly, the only arguable support for the special circumstance findings is that appellants fled the scene with the jewelry they had already grabbed from the display case after Parks shot Kim. The totality of appellants conduct is distinguishable from the cases cited by respondent and the leading case, Tison, supra, 481 U.S. 137.

In Tison, the defendants brought a large ice chest filled with guns into a prison, and armed their father, who was serving a life sentence for killing a prison guard during a prior escape, and another convicted murderer. After the entire group left the prison grounds, their car developed a flat tire. One of the defendants stood by the road, while the remainder of the group hid. A family that pulled over to assist was taken captive and driven away from the highway into the desert. After some group discussion about the fate of their captives, the prison escapees shot and killed the entire family of four and drove away in their car. (Tison, supra, 481 U.S. at pp. 139-141.) The Supreme Court characterized the conduct of one of the defendants as follows: Raymond Tison brought an arsenal of lethal weapons into the Arizona State Prison which he then handed over to two convicted murderers, one of whom he knew had killed a prison guard in the course of a previous escape attempt. By his own admission he was prepared to kill in furtherance of the prison break. He performed the crucial role of flagging down a passing car occupied by an innocent family whose fate was then entrusted to the known killers he had previously armed. He robbed these people at their direction and then guarded the victims at gunpoint while they considered what next to do. He stood by and watched the killing, making no effort to assist the victims before, during, or after the shooting. Instead, he chose to assist the killers in their continuing criminal endeavors, ending in a gun battle with the police in the final showdown. (Id. at p. 151.)

In People v. Bustos (1994) 23 Cal.App.4th 1747, cited by respondent, the appellate court found the following evidence sufficient to show that Loretto, a defendant who was not the actual killer, acted with reckless indifference: Loretto and his two companions planned to rob a woman of her money and car so that they could return home to New Mexico; Loretto knew one of his two companions had a six-inch knife; Loretto followed the victim into a beach restroom to rob her, knowing that his friend Bustos was outside, getting ready to run in; Loretto admitted hitting the victim, who fell to the floor, and admitted it was a couple of minutes before Bustos ran in with the knife and stabbed the victim twice; the evidence supported an inference that before Bustos came in, Loretto was engaged in a struggle with a resisting victim; Loretto did not claim he was surprised that Bustos had the knife or that he stabbed the victim; Loretto did not claim that he attempted to prevent Bustos from stabbing the victim; after stabbing the victim, Loretto and his companions took her purse and drove away in her car, leaving her to die. (Id. at p. 1754.)

In People v. Mora (1995) 39 Cal.App.4th 607, the defendant planned to rob a drug dealer at the dealers home. He knew his accomplice was armed with a rifle that fired three-inch bullets, and he gained entry for his armed accomplice by means of a ruse. When the victim resisted, the accomplice shot him. Appellant and his accomplice then forced the victims roommate to open a locked bedroom door, and the defendant took money and drugs from the room. They threatened the roommate and left without knowing whether the deceased victim was dead or alive. The appellate court found the evidence sufficient to support the felony-murder special circumstances. (Id. at p. 617.)

In People v. Proby (1998) 60 Cal.App.4th 922, the court found a felony-murder special circumstance supported by evidence that Proby, who was not the actual killer, participated in a prior robbery in which his codefendant Vines, locked the employees of a fast-food restaurant in the walk-in freezer with the expectation they would be trapped in the freezer for at least five hours; Proby provided Vines with a gun and was himself armed with a gun; Proby saw the wounded victim but did not attempt to assist him or determine whether he was still alive; after the shooting, Proby and Vines went to the safe and took money from it; and Proby knew that Vines had worked at the second restaurant they robbed, which increased the likelihood that Vines would be recognized and resort to violence to avoid capture. (Id. at p. 929.)

Unlike the cited cases, no evidence was introduced at appellants retrial to show that either appellant knew Parks was armed, had a history of violence or violent propensities, or presented any risk he would shoot or behave violently towards Kim. No evidence showed that inflicting any form of harm upon Kim was part of the plan to rob him or that Parks was expected or instructed to overcome any resistance by Kim. Nothing suggested that appellants or Parks were familiar to Kim or anyone else who worked in his store, so that they might be required to kill to escape recognition. No evidence supported an inference that appellants gathered any jewelry from the cases after Parks shot Kim. Nor does any evidence indicate appellants did anything to assist Parks after he shot Kim. The evidence was therefore insufficient to support the finding of reckless indifference to life required to find the robbery and burglary special-circumstance allegations true. Accordingly, the findings on those allegations must be reversed.

This result moots appellants contention that their terms of life without possibility of parole constitute cruel and unusual punishment.

3. The trial court improperly permitted the prosecutor to add a burglary charge and special circumstance during trial.

Among other evidence introduced at the preliminary hearing, Detective Richard Tomlin testified that White told him about the plan to enter the discount mart and rob JK Jewelers. White also told Tomlin that he saw appellants standing at the counters in JK. Cooper smashed the display cases and grabbed jewelry. He then heard a shot and saw appellants run outside. Tomlin also testified that Cooper told him about the plan to go into the discount mart, draw the guards away from the jeweler, smash the display cases, grab the jewelry, and run. Detective Paul Fournier testified that Smith admitted walking up to the counter of JK Jeweler, smashing the glass in the display case, and removing jewelry. He also told Fournier that Arnold planned the crime in advance. Appellants were held to answer on charges of murder with a robbery-murder special-circumstance allegation, second degree robbery, and conspiracy to commit robbery. The information charged appellants with these offenses.

In his opening statement, Smith told the jury that what occurred and what was planned was not a robbery, but grand theft, and that therefore he could not be convicted of murder because theft would not trigger application of the felony-murder rule. Coopers opening statement informed the jury that he knew of the plan and went to the discount mart out of curiosity, but did not participate in the crimes.

Six days later, after all but one of her witnesses had testified, the prosecutor informed the court that she wanted to amend the information by adding a charge of second degree burglary and a burglary-murder special-circumstance allegation. She attributed the need or desire for the amendment to Smiths opening statement and both appellants cross-examination, though she admitted that the issue came up after the -- during the course and scope of the preliminary hearing I think at some point. Coopers attorney told the court there had been discussion about an attempt to amend the information the previous day. The court expressed concern about the effect of the proposed amendment upon the tactical decision on how to approach this case made by the defense, and manifested through opening statements and the focus of their cross-examination. The court noted that appellants basically admitted a burglary, i.e., an entry to commit grand theft, because they were not subject to a burglary charge. The court further observed that burglary seems so obvious a charge given the circumstances, even at the prelim, that the question becomes then why didnt the people amend the information prior to trial. Because it is glaring, it is there. It has been there. [] I dont know that the defense had any other direction to go on this.

The prosecutor disagreed with the court, stating that she did not like pleading in the alternative and disagreed with decisions establishing that a second degree burglary was a lesser included offense of robbery. She then explained her strategy: . . . In my view of the evidence, the offenses that we are talking about are robbery. You charge commercial burglary. You give the defense a clear, clear defense. [] Obviously the People -- and I had [sic] this argument lodged against me a lot of the time, that I dont like to charge it this way. They really believe this was in fact a robbery, why did they charge burglary? There is no force or fear here. [] And you are caught in that Catch-22 because, quite frankly, it doesnt add any additional time. It is all part and parcel of one course of conduct. So the defendants arent going to be subject to any additional time at all. [] But you are caught in that quandary. It is not really robbery. It is really commercial burglary. Or it is not even that. It is probably a petty theft. [] I dont necessarily agree with charging it in the information. My tactical decision is I want to wait and see how the evidence goes.

At the start of the next day of trial, during the presentation of the defense, the prosecutor requested that the court permit her to file an amended information. Over the objections of defense counsel and its own concerns of fairness, the trial court granted leave to amend. The court remarked, It is not a surprise in terms of the evidence or preparation. . . . [T]hat possibility was always there. Each side has to live with the facts the way they are.

Appellants contend the midtrial amendment violated due process because the defense had relied upon the absence of a burglary charge in presenting its defense.

The trial court may, in its discretion, permit amendment of the information at any stage of the proceedings, provided the amendment does not change the offense charged by the original information to one not shown by the evidence taken at the preliminary examination. (Pen. Code, 1009; People v. Witt (1975) 53 Cal.App.3d 154, 164; People v. Garringer (1975) 48 Cal.App.3d 827, 833.) If the amended charge is supported by evidence produced at the preliminary hearing, the defendants due process right to notice of the charges is satisfied. (People v. Garringer, supra, 48 Cal.App.3d at p. 833.) The court must, however, deny leave to amend if the amendment would prejudice the defendants substantial rights. (People v. Birks (1998) 19 Cal.4th 108, 129.) An amendment to conform to proof after all the evidence has been produced at trial is permissible, unless the defendant was prejudicially misled in conducting a defense. (People v. Witt, supra, 53 Cal.App.3d at pp. 165-166.)

Coopers defense at the first trial was that he knew about the planned crime and went to the discount mart to see what happened, but he neither participated nor agreed to participate. His statement to the police to this effect was admitted, and he testified consistently at the first trial. Thus, the late amendment had no potential to prejudice him, as his defense in no way relied upon the absence of a burglary charge. Nonparticipation in a theft, robbery or burglary is nonetheless nonparticipation. There is no reason to believe that the presence or absence of a burglary charge would have altered Coopers defense.

Smith, however, relied heavily on the prosecutions failure to charge burglary by pursuing a theory that the evidence showed only grand theft, not robbery. The advantage of this theory to Smith was, if the jury found it persuasive, there would be no basis for convicting Smith of felony murder or finding the robbery-murder special circumstance true. Had the prosecutor timely amended the information to allege a burglary charge, it is highly unlikely Smith would have pursued this theory, as it would have been of no benefit to him. Entry into JK Jewelers with intent to commit grand theft would have made Smith liable for a burglary, which would serve equally well as the basis for a felony-murder conviction. The same analysis applies to the burglary-murder special circumstance. Thus, Smith was prejudiced by the prosecutors dilatory conduct in waiting until trial to amend the information. The nature of the prejudice could not have been cured through a continuance.

The prosecutors delay was more egregious because the commission of a burglary was always an inherent and obvious aspect of the prosecutions theory of the case. It did not stem from evidence first adduced at trial, but was clearly shown by the testimony of the prosecutions witnesses at the preliminary hearing. In addition, the defense theory that the facts did not establish a robbery, but merely a theft, was not a surprise to the prosecutor, as it was argued at the preliminary hearing. Moreover, the prosecutor admitted to the court that she refrained from amending the information before trial as a matter of strategy, to attempt to deprive appellants of a clear, clear defense. Achieving a tactical advantage over the defense, whether by depriving it of a defense or, as in the case, inducing it to rely upon the absence of a charge in developing and presenting a defense, is not a proper basis for the courts exercise of discretion to permit a midtrial amendment. (In re Johnny R. (1995) 33 Cal.App.4th 1579, 1585 [prosecutors inattentive failure to charge obvious offense based upon known evidence was an unsound basis for exercise of the trial courts discretion].) Indeed, such gamesmanship by the prosecutor constituted misconduct.

Accordingly, we reverse Smiths burglary conviction. Although he sought reversal of the burglary-murder special-circumstance finding, the theory of surprise and reliance is applicable only to the first trial. By the time of appellants retrial, at which the burglary-murder special circumstance allegation was found true, appellants clearly knew they would have to defend against the burglary special circumstance added to the information during the first trial.

4. The trial court did not err by refusing to include an optional paragraph in CALJIC No. 8.27.

At their retrial, appellants requested that the trial court include the following optional paragraph in CALJIC No. 8.27: In order to be guilty of murder, as an aider and abettor to a felony murder, the accused and the killer must have been jointly engaged in the commission of the (felony) at the time the fatal [blow was struck] [wound was inflicted].] Defense counsel argued that evidence supported a theory that Parks was not jointly engaged in the robbery because he was not assigned a role and was not even supposed to accompany the others. Defense counsel cited People v. Cavitt (2004) 33 Cal.4th 187, as support for their position. The court noted that the use note for CALJIC No. 8.27 cited People v. Pulido (1997) 15 Cal.4th 713, and indicated the optional paragraph requested by appellants should only be given if a defendant contends he or she did not aid and abet until after the fatal blow was stricken. The court declined to include the optional paragraph in CALJIC No. 8.27 because it addressed a different situation, while other instructions the court intended to give addressed appellants theory that Parks was not a coconspirator, principal, or aider and abettor.

Appellants contend the trial court erred by refusing to give the optional paragraph of CALJIC No. 8.27, and this error violated due process and their right to present a defense.

A person aids and abets the commission of a crime when he or she, with knowledge of the unlawful purpose of the perpetrator, and with the intent or purpose of committing, facilitating or encouraging commission of the crime, by act or advice, aids, promotes, encourages or instigates the commission of the crime. (Peoplev.Prettyman (1996) 14 Cal.4th 248, 259; Peoplev.Beeman (1984) 35 Cal.3d 547, 561.)

All persons who aid and abet a robbery are guilty of first degree murder when one of them kills while acting in furtherance of the common design. (Peoplev.Washington (1965) 62 Cal.2d 777, 781-782.) However, felony murder liability does not extend to one who does not aid and abet in a robbery until after the commission of the act causing the victims death. (People v. Pulido, supra, 15 Cal.4th at pp. 716, 722.) The optional third paragraph of CALJIC 8.27 states this principle. It does not address the situation presented by appellants, which, for purposes of this issue, is that Parks was not participating in the robbery, but was simply pursuing his own objectives. That theory is covered by the version of CALJIC No. 8.27 given by the court: If a human being is killed by any one of several persons engaged in the commission of the crime of robbery and/or the crime of burglary, all persons, who either directly or actively commit the act constituting that crime, or who with knowledge of the unlawful purpose of the perpetrator of the crime and with the intent or purpose of committing, encouraging, or facilitating the commission of the offense, aid, promote, encourage, or instigate by act or advice its commission, are guilty of murder of the first degree, whether the killing is intentional, unintentional, or accidental. This instruction informed the jury that appellants were guilty of murder only if Parks was engaged in the commission of the crime of robbery and/or the crime of burglary.

People v. Cavitt, supra, 33 Cal.4th 187, does not support appellants contention. The version of CALJIC No. 8.27 given to the jury in Cavitt was identical to that given in this case, without the optional paragraph in issue here. (Id. at p. 203.) Yet, the Supreme Court found the jury was adequately instructed on the required temporal and causal relationships between the underlying felony and the act causing death. (Id. at pp. 203, 207-208.) The optional paragraph was not in issue in Cavitt. Here, as in Cavitt, CALJIC No. 8.27 adequately informed the jury of the causal relationship required, i.e., that there must be a logical nexus, beyond mere coincidence of time and place, between the homicidal act and the underlying felony the nonkiller committed. (Id. at p. 193.) The combined effect of CALJIC Nos. 8.21.1, 8.21.2, and 8.27 adequately instructed the jury regarding the required temporal relationship.

Appellants argue that, in the absence of the requested paragraph of CALJIC No. 8.27, the jury could have construed CALJIC Nos. 8.10 and 8.21 to permit their conviction without a finding that Parks was jointly engaged with them in the robbery. Appellants interpretation ignores both the full text of the cited instructions and the effect of other instructions. The correctness of jury instructions is determined from the entire set of instructions, not from just an isolated instruction or part thereof. (Peoplev. Frye (1998) 18 Cal.4th 894, 957.) The jury was instructed in accordance with this principle by means of CALJIC No. 1.01.

CALJIC No. 8.10, as given at appellants retrial, provided, in pertinent part, Every person who unlawfully kills a human being during the commission of the crime of robbery and/or the crime of burglary is guilty of the crime of murder in the first degree. . . . It then set forth the elements, as follows: In order to prove this crime, each of the following elements must be proved: [] 1. A human being was killed; [] 2. The killing was unlawful; and [] 3. The killing occurred during the commission of the crime of robbery and/or the crime of burglary. Given the instruction to read all instructions in light of all other instructions and to avoid singling out a particular portion of an instruction, it is not reasonably probable that jurors would ignore either the portion of CALJIC No. 8.10 that states every person who unlawfully kills . . . is guilty of the crime of murder or instructions such as CALJIC Nos. 3.01, 6.10.5, 6.11, 6.19, 8.26, and 8.27 that explained the facts that must be found to extend felony-murder liability to nonkillers, such as appellants, under either a conspiracy or aiding and abetting theory.

Similarly, CALJIC No. 8.21, as given at appellants retrial, stated a general principle regarding the requisite specific intent: The unlawful killing of a human being, whether intentional, unintentional or accidental, which occurs during the commission of the crime of robbery and/or the crime of burglary is murder of the first degree when the perpetrator had the specific intent to commit the particular crime of robbery and/or burglary. [] The specific intent to commit robbery and/or burglary and the commission of that specified crime must be proved beyond a reasonable doubt. It is not reasonably probable that jurors ignored the remaining instructions and misconstrued or misapplied CALJIC No. 8.21 by convicting appellants without finding that Parks was acting as an aider and abettor or a conspirator at the time he shot Kim.

Alternatively, assuming the court erred by refusing the requested portion of CALJIC No. 8.27, the error was harmless because the remainder of the instruction, together with CALJIC Nos. 3.00, 3.01, 6.10.5, 6.11, 6.13, 6.16., 6.17, 6.18, 6.19, 6.20, 8.26, and 8.27 fully instructed the jury on the legal principles relevant to appellants defense. It was not appellants theory that Parks was an aider and abettor or a conspirator, but only at some time other than when he shot Kim. Their theory was instead that he was never an aider and abettor or a conspirator. The instructions provided the jury with all of the legal principles necessary to determine whether Parks was an aider and abettor or a conspirator.

5. The trial court must resentence Cooper on counts 2 through 4.

Citing Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), Cooper contends the imposition of the upper terms for all of the counts other than murder violated due process, in that the trial court based these terms upon its own factual findings, not those of a jury.

Apprendi essentially requires any fact, other than a prior conviction, that increases the penalty for a crime beyond the prescribed statutory maximum to be charged, submitted to a jury, and proved beyond a reasonable doubt. (Apprendi, supra, 530 U.S. at p. 490.) Blakely clarified that the relevant  statutory maximum for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. (Blakely, supra, 542 U.S. at p. 303, original italics.) The key inquiry is whether the court had the authority to impose the particular sentence in question without finding any additional facts or only upon making some additional factual finding. (Id. at p. 305.) If any additional finding of fact is required, Apprendi applies. (Ibid.)

Under Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham), the trial courts selection of an upper term based on facts other than recidivism found by the court rather than by a jury violates Apprendi.

As a preliminary matter, we reject respondents argument that appellant waived this issue by failing to raise it in the trial court. Unlike the defendant in People v. Hill (2005) 131 Cal.App.4th 1089, 1103, who waived an Apprendi/Blakely challenge by failing to raise it at his sentencing hearing, appellant was sentenced after the California Supreme Court decided People v. Black (2005) 35 Cal.4th 1238, which held that Apprendi and Blakely did not apply to imposition of an upper term. Any objection would have been futile, as the trial court would have been required to follow Black. Appellant therefore did not waive the issue. (People v. Chavez (1980) 26 Cal.3d 334, 350, fn. 5.)

The trial court explained that its choice of upper terms for Cooper was based upon the jurys finding that his conduct demonstrated reckless indifference to life, which was equivalent to the aggravating factor of great violence or great danger to human life. The court stated that the jurys determination on that factor alone supported an upper term. In addition, the court noted, Cooper was a major direct participant; the conduct demonstrated clear planning, professionalism, and sophistication; the nature of the offense was egregious; and his prior convictions, both in terms of number and character, were of increasing seriousness. The court found no mitigating factors existed.

Several of the factors cited by the court were improper under Apprendi and its progeny: that Cooper was a major direct participant, the planning, sophistication, and professionalism, and the egregious nature of the offense. The finding of reckless indifference upon which the court primarily relied constituted a dual use of facts and cannot support the upper terms in light of our conclusion that the evidence was insufficient to support a finding of reckless indifference.

The courts reliance upon recidivism-type factors was permissible, however. In Apprendi, the court explained that recidivism was distinguishable from other matters used to increase a sentence because (1) recidivism traditionally has been used by sentencing courts to increase the length of a sentence, (2) recidivism does not relate to the commission of the charged offense, and (3) prior convictions result from proceedings that include substantial procedural protections. (Apprendi, supra, 530 U.S. at p. 488.) The recidivism exception to Apprendi has been deemed by many courts to extend beyond the mere fact of a prior conviction to include closely related matters, such as the nature of the prior conviction. (People v. Thomas (2001) 91 Cal.App.4th 212, 222-223; People v. McGee (2006) 38 Cal.4th 682, 702-706.)

In light of the necessity of remand for resentencing on the murder count, we need not ponder whether the court would have imposed upper terms based upon the recidivism factors alone, without the additional support of the remaining four factors it cited. The trial court can resentence Cooper on counts 2 through 4 in light of Cunningham upon remand.

Although Smith joins in all of Coopers contentions on appeal, he is not entitled to resentencing under the Apprendi line of cases, as the court did not impose upper terms on counts 2 through 4. It simply stayed the sentences under Penal Code section 654.

DISPOSITION

Smiths conviction of burglary is reversed. The robbery and burglary special circumstances against appellants are reversed, the sentences are vacated, and the matter is remanded for resentencing. Cooper must be resentenced on all counts. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BOLAND, J.

We concur:

RUBIN, Acting P. J.

FLIER, J.

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^[1] Codefendants Nathaniel White, Shareka Smith and Arnetta Lynch pled guilty to voluntary manslaughter. Arnold Lynch and Parks were tried together in a separate trial.

^[2] To distinguish Shareka Smith from Karl Smith, we refer to her as Shareka. To distinguish Arnetta Lynch from appellant Lynch, we refer to her as Arnetta.

^[3] Selected portions of a CD of Smiths interrogation was played at both trials.

^[4] Selected portions of a CD of Coopers interrogation was played at both trials.

^[5] A CD recording of this conversation was played at both trials.