P. v.
Filed 12/17/12 P. v. York CA1/5
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
FIVE
and Respondent,
and Appellant.
A128201
(
Super. Ct. No. 50904193)
Kenneth
Paul York was convicted of first degree
murder (Pen. Code, § 187),
name="_ftnref1" title="">[1]
attempted residential robbery (§§ 211, 211.5, subd. (a), 664),
residential burglary (§§ 459, 460, subd. (a)), and
circumstances alleged in the information that the murder was committed while York
was engaged in the commission or attempted commission of the crimes of burglary
and robbery. (§ 190.2,
subd. (a)(17)(A), (G).)
York
seeks reversal of his conviction, arguing that the trial court improperly
permitted the jury to hear evidence of prior home invasions York
had allegedly committed and that the prosecutor engaged in
and referring to it in his closing
argument. York
also contends that various jury instructions on conspirator liability were
legally erroneous. We find none of York’s
contentions persuasive. We therefore
affirm the judgment.
Factual and
Procedural Background
On
May 10, 2004, at
approximately 1:10 a.m., officers
from the Pleasant Hill Police Department responded to a report of a shooting at
an apartment on Golf Club Road. When they arrived at the apartment, the
police found Michael Fidler on the ground in the entryway. Fidler was suffering from a gunshot wound and
was either dead or mortally wounded. He
was later pronounced dead at the scene.
The
officers entered a bedroom behind Fidler’s body and found a pistol-grip
shotgun, marijuana scales, bundles of cash, a marijuana cigarette, and baggies
of loose marijuana in plain sight. After
obtaining a warrant, the officers searched the bedroom closet and found between
six and seven pounds of marijuana and over $8,000 in cash.
James
Connelly was Fidler’s roommate. He
testified Fidler sold large quantities of marijuana out of the apartment and
kept thousands of dollars in cash in his home.
To protect himself, Fidler bought weapons, including a pistol-grip pump
shotgun he kept under his bed. Fidler
also studied martial arts.
On
the night of May 9, 2004,
Connelly was in bed with his girlfriend in the apartment he shared with
Fidler. Shortly after Connelly went to
sleep, someone pushed his bedroom door open. A black man with a bandana mask pointed a gun
at Connelly, ordered him out of bed, and demanded that Connelly “[s]how [him]
the shit.†The man put the gun—a small
chrome revolver—on the back of Connelly’s neck as the latter walked to Fidler’s
room. Connelly entered Fidler’s room
where Fidler was asleep in bed.
The
man pointed the gun at Fidler and again said, “Show me the shit.†Fidler woke up and reached under his
bed. The masked man charged at Fidler,
and Fidler grabbed the intruder’s hand.
The two men grappled with each other in a “big tangle [that] went out of
[Fidler’s] room [and] into the living room.â€
The masked man hit Fidler repeatedly with the gun.
Connelly
went to follow the two men into the living room, at which point he saw a second
intruder. The second man was unmasked,
and Connelly made eye contact with him.
Although he could not be 100 percent sure, Connelly testified that the
second intruder looked like York. The second intruder closed the door to the
bedroom, where Connelly remained, and then Connelly heard “tumbling and
wrestling sounds†coming from the living room.
Not long after, he heard a series of small caliber gunshots.
Connelly
remained in Fidler’s bedroom for a short while, but left the room when he heard
his girlfriend on the phone with the police.
In the living room, Connelly saw Fidler seated on the floor. Fidler had a bullet hole in his stomach. Shortly thereafter, the police arrived.
Bryan
Hart was a friend of York’s, and he
also knew Ricardo “Junior†Perez. York
and Junior used property near Nevada City
for growing marijuana. For two months,
Hart lived on the property and took care of it.
One day York came to the Nevada
City property, and Hart heard him
tell Junior that he (York) had been with a “nig†when something bad had
happened. Hart understood York
to be referring to a black man who had been with him when things had gone
bad. Around this same time period, Hart
saw a “stainless†.38-caliber revolver on the property. On the day York
arrived at the property, Hart saw him burn some clothes, and he witnessed York
leave the property and come back later.
Hart did not see the gun again after York
returned.
Logan
Lackey, who had gone to high school with York and Junior, also lived on the Nevada
City property. One day York
arrived at the property and seemed panicky.
Lackey saw a “[c]hrome or polished†revolver that day. York
said he needed to get rid of the gun, and a number of people discussed the best
way to dispose of it. York
later told Lackey someone had gotten shot with the gun.
Lauren
Lackey Perez is Junior’s wife and Logan’s
sister. She met York, Junior, and Tyson
Morehead in high school. One night in
May 2004, Junior received a call from York,
after which he left and said he was going to York’s
house. He returned 30 minutes later and
went to sleep. Junior went up to the Nevada
City property the next morning, and
when he returned a day or two later, he showed Lauren a newspaper article about
Fidler’s murder and told her York
and Morehead “did it.â€
York
frequently talked about robbing people.
He bragged to those around him about the idea of “jacking†people. Lauren Perez did not take York’s
talk seriously. Nor did Junior’s sister,
Tesse Perez, who was dating York at
the time of the murder. Tesse did not
pay much attention to York’s talk
of robbing dealers because that was “just how he kind of talked. That was his mentality. He was always talking about doing things like
that.†In the months before the murder,
Junior Perez heard York “rant and
rave†several times about robbing a friend’s marijuana supplier in Pleasant
Hill, but Junior was unconcerned because he thought
“that was Kenny being Kenny.â€
Morehead,
a black male with very dark skin, went to high school with York and Junior Perez. York and Morehead went to Junior’s apartment
on Mother’s Day in May 2004, and York
ranted and raved about robbing a Pleasant Hill
drug dealer. Morehead said he was
“hungry,†which meant he needed money.
That afternoon or evening, York
called Junior and said he was staking out the drug dealer’s house. York
then called Junior at 3:00 a.m. and
asked Junior to come to his house.
Junior went to York’s place,
and he saw York and Morehead “standing there in shock[.]†York
asked Junior to take a duffel bag up to the Nevada
City property, and Junior agreed to
do so. York
told Junior, “Shit went bad.â€
Junior
drove up to the Nevada City
property the next morning, and York
arrived either later that day or the next day.
York brought a newspaper
article and a chrome handgun with him.
Junior read the article and York
told him, “Shit went bad and the guy got shot.â€
Junior saw York open the
duffel bag and remove some clothing and Morehead’s wallet. York
burned the items, and then asked if anyone wanted to come with him to hide the
gun he had pulled from his waistband. York
left with the gun and was gone for two or three hours.
York
told Tesse Perez about the incident before the newspaper article was
published. He told her he had gone “to
go jack somebody[,] that things went bad and the gun had gone off.†After she read the article, Tesse realized
someone had been killed. She asked York
why he hadn’t told her about the murder, and he said he did not want her to
look at him differently. He later explained
to her that he and Morehead had staked out the apartment of a marijuana dealer,
whom they intended to rob. York
told Tesse he and Morehead had climbed through a window and gotten into a
scuffle with someone inside the apartment.
York did not say who had
actually fired the shot that killed Fidler.
After
Fidler’s murder, York grew facial
hair and moved to Nevada City. He told Tesse he had grown the facial hair so
he would not resemble the composite sketch published with the newspaper article
about the murder. York
also stopped driving his black Escalade in the area where the murder had
occurred, because he was afraid that if his car were seen again, it would be
recognized from the day of the incident.
On
April 30, 2009, the
Contra Costa County District Attorney filed an information charging York
with first degree murder, attempted residential robbery, residential burglary,
and assault with a firearm. The
information also contained felony murder special circumstance allegations
stating that the murder had been committed while York was engaged in the
commission and attempted commission of the crimes of burglary and robbery,
within the meaning of section 190.2, subdivision (a)(17).
After
a jury trial, York was found guilty
as charged, and the jury found the special circumstance allegations true. The trial court sentenced York
to serve life without possibility of parole plus three years in state
prison. York
then filed a timely appeal.
Discussion
York’s
challenges to his conviction fall into two broad categories. First, he argues the trial court improperly
permitted the jury to hear evidence of prior, uncharged home invasions he had
allegedly committed, and he contends the prosecutor engaged in misconduct by
knowingly eliciting this evidence and referring to it in closing argument. Second, he raises a series of related claims
of instructional error, all of which concern the theory of conspirator
liability. We will address these
arguments in the order in which York presents them.
I.
York
claims a combination of imprecise trial court rulings and prosecutorial
misconduct allowed the jury to hear of other
committed. York contends this violated
Evidence Code section 1101, subdivision (a)
and the due process clause of the Fourteenth
Amendment. The problem, as York sees
it, “does not conveniently sort itself into a single category of error[.]†York’s specific claims are: (1) the trial court failed to ensure the jury
would not hear other bad acts evidence previously ruled inadmissible, and (2)
the prosecutor committed misconduct by eliciting such evidence in his
questioning and by referring to it in his closing argument. Before addressing these claims, we will
explain the factual context in which they arose.
A.
Prior
to trial, York moved to exclude evidence that he had “spoke[n] frequently of
‘jacking’ or ‘robbing’ other people apart from the incident at hand.†He contended this evidence was inadmissible
under Evidence Code sections 352 and 1101, subdivision (a) and that
none of the exceptions to inadmissibility applied. When the trial court considered York’s
request to exclude this evidence, the prosecutor explained that the statements
at issue indicated York’s “ongoing intention†to rob a drug dealer and showed
his “specific state of mind.â€
The
trial court ruled that “generalized statements . . . not related to
some specific other crime not charged in this case . . . where Mr.
York is discussing . . . committing robberies, taking other people’s
dope, by force, is admissible.†The
court ruled inadmissible “specific statements†suggesting that York had committed
other robberies unrelated to the charged offense.
This
issue emerged at trial in the course of testimony by Lauren Lackey Perez and
Penny Morales. After Lauren Perez took
the stand and was asked whether she had heard York talk about marijuana, the
trial court excused the jury so it could prescreen her testimony. Perez testified York was “[a]lways [talking]
about robbing people and jacking this person and coming up on this person and
doing this to this person.†She said
that beginning in October 2003, she heard York talking a lot about “jacking
people†but explained she did not take him seriously. Perez thought York was bragging and “was
talking shit basically.â€
After
hearing argument from counsel, the trial court ruled it would allow questions
about York’s statements, because they were relevant both to his mental state or
intent and to the identity of “that second person who closed the door.†When the jury returned, the prosecutor asked
Perez whether she had heard York “talk about . . . jacking people or
robbing people or burglarizing people, ripping people off, anything like
that?†Perez said York had very often
spoken of such matters. She testified
that she did not take him seriously and thought he was “a punk kid trying to
look like Billy bad ass all of the time.â€
The prosecutor then asked, “Did he mention any specific robberies that
he had committed prior to that time?†and Perez responded, “No.â€
Defense
counsel objected, and the trial court instructed the jury to disregard the
answer. The trial court denied a defense
motion for a mistrial, explaining
that the witness’s testimony had made clear she had no knowledge of any
particular robbery that had taken place prior to the charged offense.
Before
Penny Morales testified, the trial court ruled it would allow the prosecutor to
ask Morales whether York had told her “he had ever been involved in a home
invasion robbery, singular.†(Italics added.) The court ruled inadmissible references to multiple
home invasions.
When
Morales took the stand, the prosecutor asked her whether York had told her “he
had done a home invasion[.]†Morales
said no, and the prosecutor then asked, “Is it your testimony that he never
described for you a home invasion that he had done?†Morales responded by saying York “had
described one that he had done in – not in California, but somewhere
else.†The jury was excused, and outside
the presence of the jury, Morales clarified that York had not actually told her
where he had committed the home invasion to which she referred, but she
explained that the conversation in which York talked about the incident had
occurred in Nevada. When asked whether
York had told her about “more than one home invasion,†Morales responded, “He
never told me about home invasions.â€
Morales went on to explain that her understanding of what York had told
her was that someone else had done a home invasion but the person responsible
had been arrested and then pointed the finger at York.
When
the jury returned, Morales testified that York had told her he had done at
least one home invasion, but had not specified where it occurred. The prosecutor then asked Morales whether
York had told her “when in his life†the home invasion had taken place, and
Morales responded, “No. He said to me
that they had done some when they were younger.†After Morales was excused, the trial court
admonished the jury about her testimony, stating, “To the extent that any of
you might have inferred that there was some reference to some other home
invasions or robberies in her testimony, there is not such evidence in this
case. [¶] . . . So I’m specifically advising you, to the
extent that there is any inference that you might draw from her testimony with
respect to some communication of some other acts other than those charged in
this case, you may not consider that in any way, shape, or form, in deciding
whether or not the charges in this case have been proved.â€
Defense
counsel later moved for a mistrial because Morales’s testimony implied there
were other “home invasion type robberies out there.†The trial court denied the motion, and at
defense counsel’s request, it agreed to give the jury a limiting instruction.
In
his closing argument to the jury, the prosecutor told the jury, “[York] did
tell [Morales] that he committed a home invasion earlier when he was
younger[.]†Defense counsel requested a
side-bar conference, and he later moved for a mistrial, arguing that the prosecutor
had implied “that there were other ‘plural’ home invasion robberies.†The trial court denied the mistrial motion,
noting that the prosecutor had referred to only one home invasion, and there
was evidence before the jury “that there had been a statement about a home
invasion in the singular.â€
B. The
Jury Heard No Evidence of Prior Bad Acts, and Assuming it Did, the Trial
Court’s Instructions Cured Any Possible Prejudice.
The
People respond to York’s challenge to the testimony from Lauren Perez and Penny
Morales by contending York’s statements indicated a desire to rob a drug dealer
and were thus “admissible to show his present intention to do an act in the
future.†They also contend the
statements were circumstantial evidence of York’s identity as the second
intruder. Both parties agree the trial
court could properly admit statements that were evidence of York’s specific
state of mind. (See Evid. Code,
§ 1250, subd. (a).) York
argues, however, that the jury did not merely hear testimony about York’s
statements; he claims the trial court allowed the jury to hear evidence that he
committed other uncharged offenses. He
contends this violated Evidence Code section 1101 and the due process
clause of the Fourteenth Amendment to the federal Constitution. We disagree.
Turning
first to Lauren Perez’s testimony, we reject York’s characterization of
it. Perez said only that York often
spoke in general terms about robbing
or “jacking†people. This testimony was
admissible under Evidence Code section 1250, subdivision (a). (See People
v. Karis (1988) 46 Cal.3d 612, 636-637 [defendant’s generic statement that
he would not hesitate to eliminate witnesses if he committed a crime admissible
as evidence of intent].) Perez also said
she did not take York seriously, and when asked whether York had mentioned any
specific robberies, she answered in the negative. Thus, contrary to York’s claims, Perez did
not testify about any specific, prior offense.
To the extent York asserts the jury may have inferred the existence of
prior, uncharged offenses from the prosecutor’s question to Perez, the trial
judge specifically instructed the jurors that they should not “assume that
something is true just because one of the attorneys asked a question that
suggested it was true.†We must presume
the jury followed these instructions. (
1295.)
York
contends Morales’s testimony would lead the jury to conclude there had been
earlier, uncharged robberies. But after
Morales testified that York had described to her a home invasion “he had done
in – not in California,†the prosecutor asked her whether York had told Morales
when in his life the home invasion had occurred. Morales said York had told only her “they had
done some when they were younger.†Even
if we assume that the jury would conclude that “they†referred to York’s
participation in a group that had committed prior, uncharged robberies, the
trial court specifically instructed the jury that there was
robberies in this case. It also told the
jury in no uncertain terms that it could not consider any inferences about
other uncharged acts in deciding whether York was guilty of the crimes
charged. Again, we must presume the jury
followed the trial court’s instruction.
(People v. Avila (2006) 38
Cal.4th 491, 574.) Here, given the
strength of the language with which the trial court admonished the jury, we
find the presumption particularly appropriate.
ambiguous and “fleeting reference†to another home invasion was “ ‘so
outrageous or inherently prejudicial that an admonition could not have cured
it.’ [Citation.]†(See People
v. Valdez (2004) 32 Cal.4th 73, 123 [rejecting claim of prosecutorial
misconduct based on detective’s allusion to defendant’s prior incarceration].)
York’s
claims of prosecutorial misconduct also fail.
To begin with, York’s argument on this issue is long on citation but
short on analysis. He cites numerous
cases containing general propositions of law about what constitutes prosecutorial
misconduct, but he makes scant effort to support his claim by tying these cases
to the factual circumstances in his case.
York’s “briefing on the prosecutorial misconduct issue is difficult to
follow, making it somewhat challenging to identify his exact claims of
misconduct.†(People v. Fuiava (2012) 53 Cal.4th 622, 679 (Fuiava).) As best we can
discern, York believes the prosecutor knew or should have known that witnesses
would testify to York’s admissions of other robberies, although the trial court
had ruled such testimony inadmissible.
He then asserts that the prosecutor “made sure†the jury would learn of
uncharged robberies and that the prosecutor’s questions “left no doubt†that
York had admitted such robberies.
“ ‘Under
California law, a prosecutor commits reversible misconduct if he or she makes
use of “deceptive or reprehensible methods†when attempting to persuade either
the trial court or the jury, and it is reasonably probable that without such
misconduct, an outcome more favorable to the defendant would have
resulted. [Citation.]
. . . ‘Although it is
misconduct for a prosecutor intentionally
to elicit inadmissible testimony [citation], merely eliciting evidence is not
misconduct.’ [Citation.]†(Fuiava,
supra, 53 Cal.4th at p. 679.)
Applying these standards, we conclude no misconduct occurred here.
As
for the contention the prosecutor knew about York’s alleged commission of other
robberies, York points to nothing in the record suggesting that the prosecutor
had such knowledge. In fact, the
prosecutor told the trial court he was not “aware of any other actual prior
crimes committed by the defendant.†York
describes this statement as “disingenuous,†but he does not tell us why. He says only that he “can accept that the
prosecutor did not know of specific
prior crimes, [but] rejects the implication that the prosecutor believed there
had been none.†In the absence of some
evidence in the record suggesting the prosecutor was in fact aware York had
committed other robberies, we are unwilling to assume the prosecutor had such
knowledge.
The
prosecutor also did not elicit inadmissible
evidence. As explained above, the
parties do not dispute that York’s general statements about robbing or
“jacking†people were admissible under Evidence Code section 1250,
subdivision (a). York’s challenges
to Lauren Perez’s testimony are unfounded, because she did not testify about a prior, uncharged offense. Indeed, she said York had never mentioned any
specific robberies to her. To the extent
Morales’s testimony might be construed as alluding to York’s commission of
uncharged offenses, the prosecutor had no reason to anticipate this testimony,
since she had testified outside of the presence of the jury that York had told
her someone else had committed a home
invasion and then blamed him for it.
(See People v. Kennedy (2005)
36 Cal.4th 595, 618-619 [rejecting prosecutorial misconduct claim where
prosecutor had no reason to believe witness would mention defendant’s
imprisonment], disapproved on another point in People v. Williams (2010) 49 Cal.4th 405, 458-459.)
Nor
was the prosecutor’s argument to the jury improper. Defense counsel’s objection to the
prosecutor’s argument was that the prosecutor had implied York had committed a
number of home invasions. As the trial
judge correctly recalled, however, the prosecutor spoke about York telling
Morales “that he committed a home
invasion . . . when he was younger[.]†(Italics added.) The prosecutor’s argument was nothing more
than commentary on the evidence already before the jury. (See People
v. Farnam (2002) 28 Cal.4th 107, 169 [no misconduct where prosecutor
mentioned to jury additional details about defendant’s prior conviction, to
which defendant had stipulated].)
II.
York
next raises a series of claims of instructional error, most of which challenge
the validity of conspiracy as a theory of derivative criminal liability.
section 31 provides no statutory basis for imposing derivative criminal
liability on grounds of conspiracy.
Second, he argues the first-degree felony murder rule should not apply
to a conspirator who does not participate in the offense, regardless of whether
conspiracy is a valid basis on which to impose derivative criminal
liability. Third, he asserts that
first-degree felony murder liability should not devolve upon a conspirator who
does not participate in the offense, unless the jury is also required to find
the homicide was a reasonably foreseeable result of the conspiracy. Finally, York contends that under the plain
language of section 190.2, felony-based special circumstances do not apply
to conspirators, because the statute refers only to perpetrators and aiders and
abettors. We will address these
arguments in turn.
A.
Under Section 31
“Under
California law, a party to a crime is either a principal or an accessory. (§ 30.)â€
(People v. Mohamed (2011) 201
Cal.App.4th 515, 523 (Mohamed).) Section 31 defines “principals†as
“[a]ll persons concerned in the commission of a crime, . . . whether
they directly commit the act constituting the offense, or aid and abet in its
commission, or, not being present, have advised and encouraged its commission
. . . .†York argues the
latter section describes only two groups of principals: (1) the actual perpetrators of a crime and (2)
those who aid and abet the offense in any of a number of ways. In his view, the statute does not state that
it applies to those who conspire to commit an offense. While York acknowledges case law that treats
conspirators as principals in a crime, he believes this case law is in conflict
with the plain language of section 31 and contends it should be
“abrogated.†He therefore reasons that
the trial court committed reversible error when it instructed the jury that he
could be found liable on a conspiracy theory of derivative liability. We are constrained to reject York’s argument.
As
the People correctly point out, for more than a century, the California Supreme
Court has held that defendants may be convicted as principals to crimes in
their role as conspirators. (
334.) Only five years ago, our high court
stated unequivocally, “One who conspires with others to commit a felony is
guilty as a principal.
(§ 31.)†(
see People v. Valdez (2012) 55
Cal.4th 82, 150 [“ ‘conspiracy . . . is itself a
line of California Supreme Court case law, but as a lower court, we are obliged
to follow it. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450,
455.)
Moreover,
in Mohamed, supra, 201 Cal.App.4th
515, the Fourth District recently rejected the very argument York makes
here. (Id. at pp. 523-525.)
After noting that it was bound by controlling California Supreme Court
authority, the court went on to conduct its own independent analysis of the language
of section 31. (
court explained, “The ‘all persons concerned’ language in section 31
indicates the Legislature intended the definition of principal to apply
broadly. [Citation.] A broad application of the language would
necessarily include conspirators. . . . [¶] Moreover, we believe Mohamed
misconstrues the language in section 31 clarifying that all persons
concerned are principals regardless of ‘whether they directly commit the act
constituting the offense, or aid and abet in its commission, or, not being
present, have advised and encouraged its commission
. . . .’ This clarifying
language reflects the elimination of the common law distinctions among principals
in the first degree, principals in the second degree, and accessories before
the fact. . . . [Citations.] Thus, instead of demonstrating a legislative
intent to impose limits on the class of persons who are principals, this clarifying
language demonstrates a legislative intent to remove previously existing
limits. This language, therefore,
provides no support for Mohamed's contention that conspiracy is an invalid
theory of criminal liability under California law.†(Ibid.)
We
need not express any view on Mohamed’s
reasoning, for we are not free to consider York’s argument on the merits.
Court’s longstanding rule that one who conspires to commit a felony may be
found guilty as a principal. (
p. 1025.) Thus, York’s argument necessarily
fails.
B. The
Evidence Satisfied the Requirements for Finding York Guilty of First Degree
Felony Murder.
York
next argues the first-degree felony murder rule should not apply to a
conspirator who neither perpetrates nor aids and abets the underlying
felony. York does not challenge the
first degree felony murder rule, and he does not dispute that a felony murder
occurred here. York’s theory is that a
“pure conspirator†has no control over how the felony is committed, and that
“negligence, carelessness, and accidents are beyond the pure conspirator’s
control.†He therefore argues it does
not serve the purpose of the felony murder rule to apply it to a pure
conspirator. York is incorrect.
York’s
argument appears to be based on the assumption that the jury might have
convicted him of murder solely on the basis of his role as a conspirator in the
underlying felonies, although he did not participate in their commission and
was not even physically present when they occurred. Yet York does not explain how the jury might
have reached such a conclusion based on the evidence at trial. While York objects to application of the
first degree felony murder rule “to a non-participating and absent
coconspirator,†as the People point out, he “has presented no theory, supported
by the evidence in this case, under which he could have been found guilty as a
conspirator, but not as an aider and abettor or direct perpetrator.†York also does not dispute there was abundant
evidence he was a direct participant in the burglary, attempted robbery, and
murder of Fidler. Given this factual
deficiency, we question whether York’s claim of instructional error is properly
before us, since the trial court had no sua sponte obligation to instruct on
issues not fairly raised by the evidence.
(See People v. Cavitt (2004)
33 Cal.4th 187, 203-204 & fn. 5 (Cavitt)
[trial court has no sua sponte duty to clarify requirement of logical nexus
between homicide and burglary-robbery where evidence raised no issue as to
existence of that nexus].)
Even
putting aside York’s failure to articulate a factual scenario under which he
could have been convicted solely as an absent, nonparticipating “pure
conspirator,†we reject his argument.
First, one basis of his argument is that conspiracy is not a valid basis
for criminal liability generally.
Assuming there were doubts about the validity of conspiracy as a theory
of liability, the California Supreme Court’s opinion in People v. Valdez, supra, 55 Cal.4th 82 has now laid them to
rest. The court there agreed with the
People’s argument that “ ‘like aiding and abetting, conspiracy
. . . is itself a theory of
liability. . . .’ †(
Second,
even accepting York’s claim that he was not present for, and did not
participate in, the underlying felonies, he would not escape liability for the
acts of his co-conspirators. As the
California Supreme Court has explained, “ ‘[i]t is not necessary that a
party to a conspiracy shall be present and personally participate with his
co-conspirators in all or in any of the overt acts.’ [Citation.]â€
(People v. Morante (1999) 20
Cal.4th 403, 417; see Cavitt, supra,
33 Cal.4th at p. 196 [requisite temporal relationship between felony and
homicidal act may exist even if nonkiller is not physically present at time of
homicide].) Similarly, even if one
accepts York’s assertion that “negligence, carelessness, and accidents are
beyond the pure conspirator’s control,†he may still be liable for first degree
felony murder. “The issue is not whether
a defendant plans or intends to kill.
The issue is whether a killing occurred in the course of the commission
of a felony and . . . whether that killing aided in the progression
and consummation of the felony. How that
killing occurred and whether it was intentional are irrelevant.†(People
v. Smithson (2000) 79 Cal.App.4th 480, 502.) First degree felony murder therefore includes
“a variety of unintended homicides resulting from reckless behavior, or
ordinary negligence, or pure accident . . . and it condemns alike consequences
that are highly probable, conceivably possible, or wholly unforeseeable.†(People
v. Dillon (1983) 34 Cal.3d 441, 477.)
Finally,
a nonkiller may be liable for a homicide committed in furtherance of an
inherently dangerous felony if there is a causal and a temporal relationship
between the underlying felony and the act resulting in death. (Cavitt,
supra, 33 Cal.4th at p. 193.)
“The causal relationship is established by proof of a logical nexus,
beyond mere coincidence of time and place, between the homicidal act and the
underlying felony the nonkiller committed or attempted to commit. The temporal
relationship is established by proof the felony and the homicidal act were part
of one continuous transaction.†(
Even assuming York was an absent, nonparticipating “pure conspirator,â€
both relationships are present in this case.
Under this hypothetical scenario, Fidler’s murder occurred while one of
York’s coconspirators was engaged in burglary and attempted robbery and there
was a logical nexus between those crimes and the murder. (Id.
at p. 202; see People v. Kelly
(2007) 42 Cal.4th 763, 788 [“Murders are commonly committed to obtain money or
other propertyâ€].) The requisite
temporal relationship would also exist, because the underlying felonies and the
murder were all part of one continuous transaction, with the murder occurring
during the commission of the burglary and attempted robbery. (Cavitt,
supra, 33 Cal.4th at p. 203.)
We
can therefore conclude, beyond a reasonable doubt, that the jury’s verdict was
based on a legally valid theory of criminal liability. (See People
v. Chun (2009) 45 Cal.4th 1172, 1203.)
Accordingly, we reject York’s claim of error.
C.
Result of the Conspiracy.
York
next argues that the first degree felony murder rule should not apply to a
conspirator who neither perpetrates nor aids and abets the underlying felony,
unless the murder was a reasonably foreseeable result of the conspiracy. He asserts that it was error to instruct the
jury that it could apply the first degree felony murder rule without requiring
what he terms “a ‘reasonable foreseeability’ nexus between the conspiracy and
the homicide.†York cites no cases
supporting his position, but his argument is taken from the Related Issues note
to CALCRIM No. 540B, which observes that the California Supreme Court “has
not explicitly addressed whether the natural and probable consequences doctrine
continues to limit liability for felony murder where the defendant’s liability
is based solely on being a member of a conspiracy.†(CALCRIM No. 540B (2012 ed.) Related
Issues, p. 304.) No precedent
supports York’s claim, and he identifies no facts that would have required the
trial court to give the instruction he proposes. Moreover, even if there were a requirement
that the murder be a reasonably foreseeable result of the conspiracy, such a
requirement would have been satisfied here, and thus York suffered no
prejudice.
York’s
argument seeks to distinguish the liability of a conspirator from that of an
aider and abettor, but California precedent has consistently applied the same
felony murder analysis to coconspirator liability as it applies to aider and
abettor liability. “ ‘For purposes
of complicity in a cofelon’s homicidal act, ‘the conspirator and the abettor
stand in the same position.’ †(
p. 150, quoting People v. Pulido
(1997) 15 Cal.4th 713, 724.) In
Court observed that “[i]n stating the rule of felony-murder complicity we have
not distinguished accomplices whose responsibility for the underlying felony
was pursuant to prior agreement (conspirators) from those who intentionally
assisted without such agreement (aiders and abettors). [Citations.]â€
(People v. Pulido, supra, 15
Cal.4th at pp. 724-725.) The
Supreme Court has also referred to the liability of “cofelons†or “accomplicesâ€
without regard to whether liability is based on actual commission of the
offense, aiding and abetting, or conspiring to commit the offense. (Cavitt,
supra, 33 Cal.4th at
pp. 197-205; People v. Billa
(2003) 31 Cal.4th 1064, 1072.)
At
trial, York did not request the instruction he now claims should have been
given, and on appeal he fails to refer us to facts in the record that would
have supported it. If, as he claims, the
“requisite nexus†between the conspiracy and the homicide necessitated a
showing of reasonable foreseeability, then it was York’s obligation to request
that the jury be instructed on that point.
(Cavitt, supra, 33 Cal.4th at
p. 204.) But in the absence of any
showing that this was an issue raised by the evidence and connected with the
facts of the case, the trial court was not required to instruct on any
reasonable foreseeability nexus “without regard to whether the evidence
supports such an instruction.†(
In
any event, even if we were to accept York’s novel argument that California law
requires that there be a reasonable foreseeability nexus between the conspiracy
and the homicide, the evidence in this case shows the murder of Fidler was a
reasonably foreseeable consequence of the intended offenses of robbery and
burglary. And even under York’s view of
the case, these were offenses he conspired to commit. Thus, any alleged instructional error could
not have prejudiced York. A trial court
is obligated to instruct the jury on general principles of law relevant to the
issues raised by the evidence, but has no duty to instruct on a defense where
there is no evidence which a reasonable jury could find persuasive. (See People
v. Bohana (2000) 84 Cal.App.4th 360, 370-371.) “[W]hen one kills another and takes
substantial property from the victim, it is ordinarily reasonable to presume
the killing was for purposes of robbery.â€
(People v. Turner (1990) 50
Cal.3d 668, 688.) The evidence in this
case justified the conclusion that the murder was committed to facilitate
burglary and attempted robbery. The
evidence showed that Fidler, the murder victim, was the intended target of the
burglary and attempted robbery and that the use of violence to commit those
offenses was highly probable. One of the
perpetrators used a gun to assist him in robbing Fidler, and use of the gun was
a highly foreseeable method of convincing a drug dealer to hand over drugs and
money. Indeed, York points to no
evidence that Fidler was murdered for any reason other than to facilitate the attempted robbery and burglary. Consequently, even if we were to apply York’s
proposed reasonable foreseeability requirement to the facts of this case, the
evidence would have satisfied that requirement.
D.
Satisfied.
York’s
final argument is that the trial court erred in instructing the jury that
conspiracy was a third and alternative theory of special circumstance
liability. The trial court instructed
the jury that it could find the special circumstance true if the People proved
six things, and the instruction included language stating the prosecution could
prove certain elements of special circumstance liability based on York’s
membership in a conspiracy to commit both the underlying felonies and the act
resulting in Fidler’s death. (See
CALCRIM No. 730.) York reasons that
subdivisions (c) and (d) of section 190.2 say nothing about conspiracy
or conspirators, and thus there is nothing in that section to bring a member of
a conspiracy within the statute’s coverage.
criminal liability is based solely upon statute, York argues the plain language
of section 190.2 may not be interpreted to apply to conspirators. As York puts it, “If section 190.2 does
not apply to conspirators, neither the CALCRIM authors nor this court can
declare it to apply to conspirators.â€
The
fundamental flaw in York’s argument is that he focuses on what
section 190.2 does not say, rather than on what it does. The statute provides that under certain
circumstances, a “major participant†in the commission of an enumerated felony will
receive the same punishment as the actual killer. (§ 190.2, subd. (d).) Special circumstance liability attaches under
this section if: (1) “with reckless
indifference to human life,†the major participant “aids, abets, counsels,
commands, induces, solicits, requests, or assists any actor in the commissionâ€
of that felony, and (2) the felony “results in the death of some person or
persons[.]†(§ 190.2,
subd. (d).)
As
the People point out, the evidence at trial satisfied the requirements of the
statute. York and Tyson Morehead, a
black male, had discussed robbing a drug dealer in Pleasant Hill the day before
the murder was committed. Connelly saw
two intruders in Fidler’s apartment on the night of the murder, one of whom was
a black male carrying a small chrome revolver.
Connelly testified York looked like the second intruder. York later went to the Nevada City property
and talked about hiding or getting rid of a chrome handgun he had with him.
While
at the Nevada City property, Bryan Hart heard York say he had been with a “nigâ€
(a black man) when things went bad.
After Fidler’s murder, York told Tesse Perez that “he went to go jack
somebody that things went bad and the gun had gone off.†York explained to her that he and Morehead
had “scoped out†an apartment because York “was going there to jack somebody
for marijuana.†York and Morehead
entered the apartment through a window and got into a scuffle with someone
inside. A shot was fired, although York
did not tell Tesse Perez who had fired it.
From
this evidence, the jury could reasonably have concluded York was a “major
participant†in the attempted robbery and burglary. (See People
v. Hodgson (2003) 111 Cal.App.4th 566, 579-580 [appellant was major
participant where he was one of only two people involved in commission of
robbery and murder].) The use of a gun
during the crime justified a finding that York acted with reckless disregard
for human life. (See
1106, 1116-1117 [defendant acted with reckless disregard for human life where
she knew codefendant had a gun, lured victim into alley, and failed to assist
victim after hearing gunshot].) There
also can be no dispute that the attempted robbery and burglary resulted in
Fidler’s death. On these facts, the jury
could certainly return a true finding on the special circumstance.
Faced
with this evidence, York presents us with no factual theory under which he
might have been found guilty only as a conspirator but not as a direct
participant or an aider and abettor.
Thus, York’s hypothetical claim that section 190.2 should not apply
to persons York calls “pure conspirators†is one we need not address. As we are not faced with an evidentiary
record from which a reasonable juror might find York guilty solely on the basis
of his role as an absent, nonparticipating conspirator in the felony murder,
York’s challenge to the special circumstance instructions must fail. (See Cavitt,
supra, 33 Cal.4th at p. 204 [trial court has no sua sponte duty to
clarify felony murder instructions “without regard to whether the evidence
supports such an instructionâ€].)
Disposition
The
judgment is affirmed.
_________________________
Jones,
P.J.
We concur:
_________________________
Simons, J.
_________________________
Needham, J.
name="_ftn1" title="">[1]
All further undesignated statutory references are to the Penal Code.
name="_ftn2" title="">[2]
Evidence Code section 1101, subdivision (a) provides in relevant
part: “Except as provided in this
section and in Sections 1102, 1103, 1108, and 1109, evidence of a person’s
character or a trait of his or her character (. . . in the form of
. . . evidence of specific instances of his or her conduct) is
inadmissible when offered to prove his or her conduct on a specified occasion.â€
