P. v. Tucker
Filed 7/26/13 P. v. Tucker CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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publication or ordered published for purposes of rule 8.1115
IN THE COURT
OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH
APPELLATE DISTRICT
DIVISION TWO
THE
PEOPLE,
Plaintiff and Respondent,
v.
RICCO
TUCKER et al.,
Defendants and Appellants.
E054399
(Super.Ct.No.
FVA1001189)
O P I N I O
N
APPEAL
from the Superior Court of
Bernardino County.
Ingrid Adamson Uhler, Judge.
Affirmed.
Susan
K. Shaler, under appointment by the Court of Appeal, for Defendant and
Appellant Ricco Tucker.
Steven
A. Torres, under appointment by the Court of Appeal; Law Office of Philip Deitch
and Philip Deitch, for Defendant and Appellant Brandon Keith Baskett.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, and Melissa Mandel and
Warren Williams, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendants
Brandon Keith Baskett and Ricco Tucker were tried before separate juries and
found guilty of the first degree murder
of Lamont Trible. (Pen. Code,
§ 187, subd. (a).)
name="_ftnref1" title="">[1] Defendants claim their murder convictions
must be reversed because the court gave an erroneously modified version of
CALCRIM No. 376 (Possession of Recently Stolen Property as Evidence of a
Crime), telling the juries they could find defendants guilty of murder—a
nontheft-related crime—based in part on evidence defendants knowingly possessed
recently stolen property. The People
concede the instructional error but argue it was harmless under
836.) We agree the error was harmless
under Watson. Defendants also claim that insufficient
evidence supports the sentencing orders requiring them to pay $4,500 in victim
restitution. (§ 1202.4, subd. (f).) We conclude
restitution order. We therefore affirm
the judgments in their entirety.
II. FACTUAL AND PROCEDURAL BACKGROUND
A.
Trible was known as
the “gold man†because he paid cash for gold.
On July 27, 2010, defendants lured Trible into a garage in Rialto and
demanded his cash at gunpoint. Trible
ran out of the garage, and either Baskett or Tucker fatally shot him. Defendants were charged with the first degree
murder of Trible along with codefendants Aamon Smith and Ronnie Bluitt. Smith and Bluitt pled guilty to second degree
murder and robbery and agreed to testify against defendants.
1. The
Robbery/Murder
On the evening of
July 26, 2010, defendants met with Smith, Bluitt, and someone named “Little
Trouble†or “Lil D.†Smith and Bluitt
had previously dealt with Trible; they knew he bought gold and carried a lot of
cash. The five men “set up a plan to
rob†Trible. The plan was to meet the
next morning, lure Trible to Rialto under the pretense of selling him gold, and
rob him.
On the morning of
July 27, defendants and Little Trouble picked up Smith and Bluitt in a blue
Dodge Avenger. Then, around 10:00 a.m.,
Smith called Trible, told him he had a lot of gold to sell, and asked him to
meet him at a garage in front of an apartment on Jackson Street in Rialto. The plan was for Smith and Bluitt to meet
Trible while defendants waited in the Dodge, hidden from view. When Smith or Bluitt walked out of the garage
to “get more gold,†that would signal defendants to come into the garage and
rob Trible.
Later that day, Smith
and Bluitt met Trible in front of the appointed garage. Trible’s friend Guadalupe Garza was with
Trible, and Trible had $8,000 to $10,000 with him. Smith and Bluitt led Trible and Garza into
the garage, and Smith handed Trible a Rolex chain. Smith told Bluitt to get more gold and Bluitt
left.
Moments later,
defendants walked into the garage with guns drawn. According to Smith, Baskett put a silver and
black .40-caliber gun to the back of Garza’s head and told Garza and Trible to
get down. Tucker then pointed a black
and brown nine-millimeter gun at Garza, while Baskett turned his gun away from
Garza and pointed it at Trible’s head.
Baskett’s gun. Tucker then pointed his
gun at Trible and said, “This is for real.â€
Trible picked up his bag and ran out of the garage. Next, Smith ran out of the garage. Smith heard two shots, turned, and saw Trible
lying on the ground. Smith ran back
toward the Dodge Avenger and saw defendants in the car, speeding away. Smith and Bluitt walked to Bluitt’s
house. Later that day, Smith spoke with
Baskett by phone and asked him whether he would give some of the robbery
proceeds to Smith and Bluitt. Baskett
said, “Yeah, later on.â€
Garza came out of the
garage after hearing shots and “all the footsteps running.†Trible was lying on the ground and had two
gunshot wounds. Garza called for an
ambulance and the police.
2. The Investigation
The police arrived at
the scene of the shooting at 1:27 p.m. on July 27, 2010. Three .40-caliber shell casings were found on
the garage floor. Trible suffered two
gunshot wounds, and one was fatal.
A day or two after
the shooting, officers stopped Baskett driving the blue Dodge Avenger and
discovered that Cindy Carter had rented the car on July 23, 2010, four days
before the shooting. Tucker was
apprehended in Carter’s home. In the
trunk of Carter’s Chevrolet Suburban, officers found a receipt from Shiekh Shoe
Store in Victorville dated July 27, 2010, at 2:17 p.m. Surveillance videotapes showed Baskett and
Tucker in the store, displaying large amounts of cash around the time the
receipt was issued.
On July 28, the day
after the shooting, a witness saw Baskett and Tucker wearing new clothing, in
contrast to the “raggedy†clothing they had been wearing. Baskett was also carrying a black handgun in
his waistband and flashing “a large amount of hundred dollar bills.â€
During a police
interview, Tucker admitted his role in the robbery and that he and Baskett
bought shoes in Victorville after the robbery, but Tucker denied shooting
Trible. Baskett gave Tucker $600 of the
robbery proceeds.
B.
The
defense called Detective Robert Williams, who interviewed Smith and Bluitt
individually and separately. The
detective conceded that when he interviewed Smith individually, Smith mentioned
Tucker but did not mention Baskett. This
contradicted Detective Williams’s testimony for the prosecution that Smith
mentioned both Tucker and Baskett in his individual interview.
C.
Findings, and Sentences
The
juries found defendants guilty of the first degree murder of Trible. Instructions were given solely on first degree felony murder with second degree robbery as
the underlying felony. No instructions
were given on any other theory of murder.
Second degree robbery charges were dismissed before trial at the request
of the prosecution.
The juries also found that defendants personally
used firearms in the commission of the murder.
(§ 12022.53, subd. (b).) Tucker was additionally convicted of assaulting Garza with a
firearm, and both defendants were convicted of possessing firearms as felons. Baskett admitted one prison prior. (§ 667.5, subd. (b).)
During jury deliberations and at the request of the
prosecution, the court dismissed a
section 12022.53, subdivision (d) allegation against Baskett (for personally
discharging a firearm causing great bodily injury or death in the commission of
the murder), after the jurors indicated they were unable to agree whether
Baskett was the shooter and direct perpetrator of the felony murder, or aided
and abetted Tucker in the commission of the murder.
Baskett was sentenced
to 11 years, plus 25 years to life; Tucker was sentenced to 10 years, plus 25
years to life; and each defendant was ordered to pay Garza $4,500 in victim
restitution, among other fines.
III.
DISCUSSION
A.
Defendants claim their
first degree murder convictions must be reversed because the court gave an
erroneously modified version of CALCRIM No. 376 (Possession of Recently Stolen
Property as Evidence of a Crime),
applying the instruction to the crime of “murder†when by law it is limited to
theft or theft-related crimes.
the error but argue it was harmless. We
agree with the People.
1. CALCRIM No. 376 Should Not be Given on
Nontheft-related Offenses
As the parties agree,
CALCRIM No. 376 should be given only for theft and theft-related crimes, and
not murder. (Bench Notes to CALCRIM No.
376 (2012), p. 161 [“Use of this instruction should be limited to theft and
theft-related crimes,†citing People v.
Barker (2001) 91 Cal.App.4th 1166, 1176 (Barker) (disapproving use of former CALJIC No. 2.15, the
predecessor to CALCRIM No. 376, to infer guilt of murder)];
248-249 [finding Barker “persuasiveâ€
and holding the application of former CALJIC No. 2.15 “to nontheft offenses
like rape or murder was erroneousâ€].)
The instruction “is based upon a long-standing rule of law which allows
a jury to infer guilt of a theft-related crime from the fact a defendant is in
possession of recently stolen property when coupled with slight corroboration
by other inculpatory circumstances which tend to show guilt [of the
theft-related crime]. [Citations.]†(Barker,
supra, at p. 1173; People v. Harden
(2003) 110 Cal.App.4th 848, 856-857 [approving use of former CALJIC No. 2.15
for special circumstance allegation that murder was committed during a robbery
or burglary].)
The instruction has
been used in theft-related cases because “there is a substantial connection
between the established fact of conscious possession of recently stolen property
and the inferred fact, i.e., knowledge that the property in the defendant’s
possession was stolen [citation]. With
the inference from the knowledge and conscious possession of stolen property,
and slight additional evidence as corroboration, the intent to steal, identity,
and the determination a defendant committed the acts necessary to constitute
robbery and burglary have been found to naturally and logically flow
. . . .†(
1176, fn. 6; People v. Prieto, supra,
30 Cal.4th at p. 249 [noting the same inferences do not “logically flow†for
nontheft-related offenses like rape or murder].) But when applied to murder, as it was here,
the instruction “could cause some juror confusion because of the multiple
deductions needed to rationally make the permissive inference [that the
defendant was guilty of murder based on his possession of recently stolen
property and slight corroborating evidence.]â€
(Barker, supra, at p.
1177.) Still, the instruction neither
lowers nor alters the prosecution’s burden of proving every element of the
charged crimes beyond a reasonable doubt.
(People v. Gamache (2010) 48
Cal.4th 347, 376; People v. Prieto,
supra, at p. 248.)
2. Harmless Error
It is “well
established†that the Watson standard
of harmless error analysis applies when CALCRIM No. 376 is erroneously given on
a nontheft-related charge. (
p. 376.) The question is whether there
is a reasonable likelihood the defendant would have realized a more favorable
result had the instruction not been given.
(Ibid.; People v. Parson (2008) 44 Cal.4th 332, 357; People v. Coffman and Marlow (2004) 34 Cal.4th 1, 101;
p. 249.) Here, there is no reasonable
likelihood either defendant would have realized a more favorable result had
CALCRIM No. 376 not been given.
First, and as
indicated, CALCRIM No. 376 did not lessen the prosecution’s burden of proving
each element of the murder charges beyond a reasonable doubt. (People
v. Gamache, supra, 48 Cal.4th at p. 376.)
To the contrary, in its last sentence, the instruction reminded the
juries they could not convict defendants “of any crime†unless they were
“convinced that each fact essential to the conclusion that the defendant is
guilty of that crime has been proved beyond a reasonable doubt.†This important admonition necessarily focused
the juries on the elements of the first degree felony murder charge, and the
juries’ duty to determine whether the prosecution proved each element of the
charge beyond a reasonable doubt.
As also noted, each
jury was instructed solely on first degree felony murder based on second degree
robbery and not on any other murder theory, including first degree express
malice murder or second degree murder.
Aiding and abetting instructions were given in connection with the
robbery instructions, though defendants were not charged with robbery as a
substantive crime. The juries were also
instructed to consider the instructions together. (CALCRIM No. 200.) Thus, in order to find defendants guilty of
“murder,†as the term was used in CALCRIM No. 376,
find defendants either directly perpetrated the murder by shooting Trible in
the course of the robbery, or aided and abetted the other defendant in robbing
Trible and Trible was murdered during the course of the robbery. And ample evidence showed that defendants
murdered Trible during the course of robbing him—apart from and in addition to
the evidence defendants knowingly possessed recently stolen property shortly
after the robbery, namely, the large amounts of cash they were displaying in
the Victorville shoe store. That
evidence consisted of the following:
Smith and Bluitt,
defendants’ accomplices, testified that they and defendants planned the robbery
the night before the robbery and shooting.
The plan was for Smith and Bluitt to lure Trible to the garage under the
pretense of selling him gold for cash and rob him after one of them walked out
of the garage, signaling defendants to walk into the garage and carry out the
robbery. After Bluitt left the garage
and defendants walked in with guns drawn—Baskett with a .40-caliber handgun and
Tucker with a nine-millimeter handgun—defendants pointed their guns at Trible
and Trible’s friend Garza, and ordered them to get down. Trible tried to grab Baskett’s gun, then
grabbed his bag, ran out of the garage, and was shot.
Smith’s and Bluitt’s
accomplice testimony identifying defendants as the robbers, and at least one of
them as the shooter, was amply supported by corroborating evidence. (§ 1111.) Garza testified the robbery occurred just as
Smith and Bluitt described: Garza was
approached from behind, a gun was pointed at his head, and he was ordered to
get down. Another gun was pointed at
Trible, Trible “tried to wrestle with†that gun, then ran out of the garage and
was shot.
In addition, the day
after the shooting another witness saw defendants wearing new clothing, in
contrast to the “raggedy†clothing they had been wearing, and saw Baskett
carrying a .40-caliber handgun in his waistband. Smith and Bluitt also testified that Baskett
was carrying a .40-caliber handgun at the time of the robbery, and three
.40-caliber shell casings were recovered from the scene.
Thus, even if the
prosecution had not presented the evidence that defendants were displaying
large amounts of cash in the Victorville shoe store shortly after the robbery
and shooting, and even if CALCRIM No. 376 had not been given, it is not
reasonably likely the juries would not have found defendants guilty of first
degree felony murder based on robbery as the underlying felony.
Defendants argue the
inclusion of the crime of “murder†in CALCRIM No. 376 without at least one
additional theft-related offense made
the instructional error here more egregious or confusing than the error in
given on murder and robbery (
1172) and more confusing than the error in Harden,
where a similar instruction was given on murder, robbery and burglary (
at p. 855). Not so. The instructional errors here were no more
confusing than in Barker and
As discussed, the
juries were instructed solely on first degree felony murder
and not on any other theory of murder, including first degree express malice
murder or second degree murder. Thus the
juries could only have understood the term “murder,†as used in CALCRIM No.
376, as consisting of first degree felony murder based on robbery. And to
find defendants guilty of first degree murder based on robbery, the juries had
to find defendants robbed Trible and that Trible was murdered during the course
of the robbery. Given this
circumstance—that the instructions on murder were limited to first degree
felony murder based on a theft-related crime—the failure to include a
theft-related offense in CALCRIM No. 376 was no more confusing than the
instructions in Barker and
to consider the evidence that the defendants possessed recently stolen property
on their guilt of one or more theft-related offenses, in addition to murder
Lastly, defendants
argue their first degree felony murder convictions must be reversed because the
juries could have based their guilty verdicts on a legally inadequate theory, namely, that defendants were guilty of
murder if they knowingly possessed recently stolen property. (People
v. Green (1980) 27 Cal.3d 1, 69 [when verdict may rest on two or more
alternate legal theories, some legally valid and the others legally invalid,
reversal is required unless court can determine from the record that the
verdict necessarily rests on a legally valid ground]; People v. Guiton (1993) 4 Cal.4th 1116, 1127-1128 [distinguishing
legally incorrect theories from factually unsupported ones].) This argument misreads CALCRIM No. 376. Again, the instruction did not tell the
juries they could find defendants guilty of murder if they found defendants
knowingly possessed recently stolen property.
Instead, the instruction reminded the juries they could only convict
defendants of murder if they found all the elements of that crime true beyond a
reasonable doubt.
B. Substantial
Evidence Supports the $4,500 Victim Restitution Fine for Garza
Defendants
claim the orders requiring them to pay $4,500 in victim restitution for Garza
(§ 1202.4, subd. (f)) are unsupported by substantial evidence and must be
stricken. We disagree.
1.
Relevant Background
At the
that $1,600 of the $8,000 to $10,000 sum that Trible had on his person at the
time of the robbery and shooting belonged to Garza. At trial, Garza increased this estimate to
$1,600 to $2,000. Prior to sentencing,
Garza submitted an unsworn victim impact statement, claiming he lost $4,500.
Baskett was sentenced before
Tucker and was ordered to pay $4,500 in victim restitution for Garza. At Tucker’s sentencing hearing, Tucker’s
counsel pointed out to the court the discrepancies in Garza’s estimated
losses. The court acknowledged the
discrepancies but ordered Tucker to pay a $4,500 restitution fine subject to
modification, noting it had already ordered Baskett to pay the same fine;
Garza’s victim impact statement substantiated the $4,500 loss; and the court
had “nothing to contradict†Garza’s $4,500 claim of loss.
2. Analysis
Section 1202.4, subdivision (f),
provides: “[I]n 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 . . . based on the amount of loss claimed by the victim or
victims or any other showing to the court.â€
Restitution under the statute “shall be of a dollar amount that is
sufficient to fully reimburse the victim or victims for every determined
economic loss incurred as the result of the defendant’s criminal conduct
. . . .†(§ 1202.4,
subd. (f)(3).)
“‘The standard of review of a restitution
order is abuse of discretion. . . . “‘When there is a factual
and rational basis for the amount of restitution ordered by the trial court, no
abuse of discretion will be found by the reviewing court.’†[Citations.]’
[Citation.] . . . ‘In
reviewing the sufficiency of the evidence [to support a factual finding], the
“‘power of the appellate court begins and ends with a determination as to
whether there is any substantial evidence, contradicted or uncontradicted,’ to
support the trial court’s findings.â€
[Citations.] . . .’†(
7, 26.)
“At a victim restitution hearing, a prima
facie case for restitution is made by the People based in part on a victim’s
testimony on, or other claim or statement of, the amount of his or her economic
loss. [Citations.] ‘Once the victim has [i.e., the People have]
made a prima facie showing of his or her loss, the burden shifts to the
defendant to demonstrate that the amount of the loss is other than that claimed
by the victim. [Citations.]’ [Citation.]â€
(People v. Millard, supra, 175
Cal.App.4th at p. 26.)
Defendants concede that a
victim’s unsworn statement can constitute prima facie evidence of the victim’s
economic loss (People v. Gemelli
(2008) 161 Cal.App.4th 1539, 1542-1543 [Fourth Dist., Div. Two]), but they
argue Garza’s unsworn statement does not constitute prima facie evidence that
he lost $4,500 in the robbery given his prior sworn testimony that only $1,600
to $2,000 of the money Trible was carrying belonged to him. Defendants also point out that in his unsworn
statement Garza “does not expressly state the [$4,500] loss was from the
robbery.†They also argue that, “read in
context, a reasonable inference from the statement is that, at or around the
time of the offenses, Garza suffered total losses of $4,500, including losses
unrelated to [defendants’] offenses.â€
We disagree with defendants’
self-serving interpretation of Garza’s victim impact statement. Garza discussed the emotional toll the crimes
took on him and his family and states:
“My Family lost a significant amount of our savings, $4,500
. . . .†This constitutes
a prima facie showing that Garza lost a total of $4,500 as a result of the
offenses defendants committed in the present case, including, but not limited
to, the $1,600 to $2,000 portion of the $8,000 to $10,000 in cash taken from
Trible that Garza previously testified belonged to him. Neither defendant made any showing that Garza
lost less than $4,500. The restitution
orders must therefore be upheld.
IV.
DISPOSITION
The
judgments are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL
REPORTS
KING
J.
We concur:
McKINSTER
Acting
P. J.
RICHLI
J.
name="_ftn1" title=""> [1] All further statutory references are to the
Penal Code unless otherwise indicated.
name="_ftn2" title=""> [2] Smith’s and Bluitt’s plea agreements provided
that if they testified truthfully, then their second degree murder convictions
would be reduced to voluntary manslaughter and their 15-year-to-life sentences
would be reduced to 12-year sentences.
