P. v. Horne

Filed 4/4/08 P. v. Horne 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Christian F. Thierbach, Judge. Affirmed as modified.

Mark L. Christiansen, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, and Christine Levingston Bergman, Deputy Attorney General, for Plaintiff and Respondent.

In 1983, Larry Crafts was shot and killed just after locking up the Burger King where he was assistant manager. Although the police suspected that the shooting had occurred in the course of an attempted robbery, it did not appear that any property had been taken. The crime remained unsolved until 2005, when defendant Kenneth Duran Horne walked into a police station in Chattanooga, Tennessee, and, to ease his conscience, confessed.

Presumably in consideration of defendants confession, the prosecution elected not to seek the death penalty. However, a jury found defendant guilty of first degree murder (Pen. Code,  187, subd. (a), 189), with a robbery-murder special circumstance (Pen. Code,  190.2, subd. (17)(A)) and a personal firearm use enhancement (Pen. Code,  12022.5, subd. (a)). In a bifurcated proceeding, defendant admitted two 5-year prior serious felony enhancements. (Pen. Code,  667, subd. (a).) As a result, defendant was sentenced to a determinate term of 12 years and an indeterminate term life without the possibility of parole.

In this appeal, defendant contends:

1. Under the corpus delicti rule, there was insufficient evidence of an attempted robbery, aside from defendants own statements, to support the robbery-murder special circumstance.

2. The trial court erred by admitting evidence that defendant had committed a prior robbery.

3. The trial court erroneously instructed that the robbery-murder special circumstance did not require the intent to kill.

4. The trial court erred by giving a flight instruction.

5. The trial court failed to advise defendant of his right against self-incrimination before he admitted the prior serious felony enhancements.

We will assume, without deciding, that under the law that applied in 1983, the robbery-murder special circumstance did require the intent to kill. On this assumption, the trial court erred by instructing that the intent to kill was not required. We will conclude, however, that the error was harmless because the evidence of intent to kill was overwhelming.

Similarly, we will assume, without deciding, that the trial court did not adequately advise defendant of the privilege against self-incrimination. We will conclude that, even if so, the error was harmless because the record affirmatively demonstrates that defendant knew that he had a right not to admit the prior conviction and thus not to incriminate himself.

Defendant also raises three minor sentencing issues, all of which the People concede. We will modify the sentence accordingly.

We find no other error. Hence, we will affirm the judgment as modified.

I

FACTUAL BACKGROUND

A. 1983: The Crime Scene.

On December 14, 1983, around 12:40 a.m., the dead body of Larry Crafts was found outside a Burger King on Van Buren Boulevard in Riverside. Crafts was the night manager. He had been the last to leave, sometime after 11:30 p.m.

The body was lying just outside the locked front door, in a particularly dark and isolated area of the parking lot. All the other businesses nearby were closed.

Crafts was very tall; he had a mustache. He was wearing a black jacket. Two hamburgers one still in a Burger King bag were next to his body. Also next to his body were his keys, including the keys to the store as well as the keys to his car. There was no indication that any of his property had been taken; his wallet was in his pocket, and his car was in the parking lot.

The cause of death was a single blast from a shotgun, which struck Crafts in the left back. It had been fired from close range. If the shotgun was a sawed-off, it had been fired from only three to six feet away. Craftss left lung was pulverized. He would have lost consciousness immediately, fallen where he stood, and died within one to three minutes. There were no signs that he had been in a fight.

Witness Kimberly Muno happened to be at a Christmas tree lot across the street. Sometime before midnight, she heard a real loud noise[,] [] . . . [] . . . like an explosion, coming from the direction of the Burger King. Shortly after that, she saw a car pull out of the Burger King parking lot, then turn right on Van Buren. Its headlights were off. When it got to the next stoplight (a distance Muno referred to as both half a block and a quarter of a mile), the headlights went on. The car was tan, yellow, or tannish yellow and probably a Volvo.

The police felt th[e] whole thing had robbery written all over it. Nevertheless, they looked into the possibility that the crime was an execution, carried out by a disgruntled customer or a neighbor; however, they found no evidence of this. The case remained open, but they had no leads to follow.

B. 2005: Defendants Confession.

On July 5, 2005, defendant walked into a police station in Chattanooga, Tennessee, and told an officer that he needed to speak to someone about a murder. He then told the officer that, more than 20 years earlier, around 9:00 or 10:00 at night, he had gone to either a Burger King or a Wendys on Van Buren in Riverside, California, and shot a white male with a 12-gauge shotgun.

Other Chattanooga officers then conducted a videotaped interview with defendant. Defendant explained that he had been born in Chattanooga, but his family had moved to Southern California when he was nine. Defendant had also lived in Minnesota for a while. In 1994, he had moved back to Chattanooga.

Defendant then said,  . . . Ive been wanting to talk about this for 20 years now, but (unintelligible) Ive been afraid. He had picked that day to come in because, he said, my head hurt today.

He thought the shooting had occurred sometime between 1984 and 1986. At the time, he was living in what is now Moreno Valley. On the night of the shooting, he was 25 or 26, young and dumb . . . . He was also high on PCP. He decided to rob somebody.

He was driving his mustard-color Volvo down Van Buren when he saw a Burger King. There were a few stores, but the Burger King was sitting over by itself and in the back . . . . It was about 10:00 or 10:30 p.m. He said: Well, theyre gonna close so I came to wait to lock the door with the money bag.

As defendant parked in the parking lot, the manager came out of the front door and locked it. He was carrying a bag from the restaurant. He was tall and had a mustache; he was wearing a black shirt. Defendant got out of his car and walked toward the victim, taking with him a sawed-off 12-gauge shotgun. The victim yelled, I dont have anything, I dont have anything. He told defendant he could have a hamburger and even showed him one. Then, defendant said:  . . . I got upset. I went back to the car, and . . . I just turned around, and shoot [sic] him.

According to defendant, they were about 12 feet apart. The victim was turned sideways. Defendant was holding the shotgun [t]o the side, . . . on [his] hip. He fired only one shot. He claimed he did not know what part of the victims body the shot hit. When asked, Do you remember him falling?, he answered, I really didnt turn around. I just jumped in the car and left. He turned right on Van Buren. He did not get any money. He never committed another robbery.

The next day, defendant said, I read in the paper, the guys dead. He didnt feel good about it. He said, That[s] what made me confess today.

III

DISCUSSION

A. The Sufficiency of the Evidence of the Corpus Delicti
of the Robbery-Murder Special Circumstance.

Defendant contends that, under the corpus delicti rule, there was insufficient evidence of an attempted robbery, aside from his own statements, to support the robbery-murder special circumstance.

The corpus delicti rule requires some evidence that a crime occurred, independent of the defendants own statements. [Citation.] (People v. Ledesma (2006) 39 Cal.4th 641, 721.) [T]he quantum of evidence required is not great, and need only be a slight or prima facie showing permitting an inference of injury, loss, or harm from a criminal agency, after which the defendants statements may be considered to strengthen the case on all issues. [Citation.] The inference [that a crime has been committed] need not be the only, or even the most compelling, one . . . [but need only be] a reasonable one. [Citation.] (Id. at p. 722, quoting People v. Alvarez (2002) 27 Cal.4th 1161, 1181, and quoting People v. Jones (1998) 17 Cal.4th 279, 301-302, quoting People v. Jennings (1991) 53 Cal.3d 334, 367.)

In People v. Mattson (1984) 37 Cal.3d 85, the Supreme Court held that the corpus delicti rule applied to felony-murder special circumstances, including robbery murder. (Id. at p. 94.) In 1990, Proposition 115 enacted Penal Code section 190.41, which abrogated Mattson. However, it has been held that it would be unconstitutional to apply Penal Code section 190.41 to crimes committed before it became effective. (Tapia v. Superior Court (1991) 53 Cal.3d 282, 298-299.) Thus, the People concede that the Mattson holding applies here.

We note that this case is arguably distinguishable, because the crimes here were committed before Mattson itself was decided. (See People v. Poggi (1988) 45 Cal.3d 306, 327.) Indeed, at the time of the crimes, it at least appeared to be the law that the corpus delicti rule did not apply to felony-murder special circumstances. (See People v. Sanders (1983) 145 Cal.App.3d 218, 222-223, disapproved in People v. Mattson, supra, 37 Cal.3d at p. 94, fn. 4; see also People v. Cantrell (1973) 8 Cal.3d 672, 680-681, disapproved on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 684-685, fn. 12.) Nevertheless, given the Peoples concession, we will assume, without deciding, that Mattson is controlling here.

Even if so, there was sufficient evidence to satisfy the corpus delicti rule. The shooting took place outside a fast-food restaurant, just after it had closed for the night. The victim was the manager, as well as the last employee to leave. He was carrying a bag. Defendant could easily have concluded that he was in possession of the restaurants cash receipts. The area was dark and secluded. The parking lot was empty, and other nearby businesses were also closed, further minimizing the risk of detection.

Defendant argues that a restaurant would not be likely to have a manager take its cash receipts home overnight. Crafts, however, would not have had to take them home; many banks have night deposit boxes for precisely this purpose. Defendant also argues that Craftss wallet, car, and other property were not taken. If his goal was to take the restaurants cash, however, he could well have spurned these other items because they could be traced back to Crafts.

At the same time, there was no evidence of any other possible motive. Defendant did not know Crafts, so he could not have had any personal motivation. Defendant suggests that before this factor could be considered there had to be evidence, aside from his own statements, that he was, in fact, the perpetrator. However, it is a long‑established principle that the corpus delicti rule does not require independent proof that the defendant is the perpetrator of the crime. [Citation.] (People v. Ledesma, supra, 39 Cal.4th at p. 721.) In any event, there was evidence that the police investigated the possibility that someone had a personal motive for the shooting but ultimately found no evidence to support this.

Defendant relies on People v. Morris (1988) 46 Cal.3d 1, disapproved on other grounds in In re Sassounian (1995) 9 Cal.4th 535, 543-544, footnote 5. There, the victims body was found, totally nude, in the restroom of a gay bathhouse. He had been shot twice, from close range. (Morris, at pp. 10, 19-20.) The defendant had subsequently told a friend that he had been having dates with homosexuals and that he had to kill one. (Id. at pp. 11, 20.) The Supreme Court held that this was insufficient evidence to support a robbery-murder special circumstance. (Id. at pp. 21-22.) In Morris, however, unlike here, there was evidence of a motive for the murder other than robbery i.e., the defendants feelings about having sex for money with homosexuals, to say nothing of the potential for a personal dispute arising during gay sex at a bathhouse. Moreover, here, unlike in Morris, the setting was one that a robber would seek out a secluded location where there was likely to be significant loot.

The People, on the other hand, cite People v. Ray (1996) 13 Cal.4th 313, which we find to be more closely analogous. There, the Supreme Court held that the following was sufficient evidence to support a robbery-murder special circumstance, even aside from the defendants statements, under the corpus delicti rule: The surviving victim, Doss, testified that two armed men wearing fatigues approached the victims as they emerged from a busy place of entertainment late one night. Because Doss identified the men as strangers and because the police uncovered no information linking them to Hyde [the dead victim], a strong inference was raised that the victims were selected at random. According to Doss, the gunmen behaved in a purposeful fashion and immediately ordered the victims to retreat to a more obscure area of the parking lot. Doss was shot when he resisted, and Hyde was gunned down as she attempted to escape. (Id. at p. 342.) Here, similarly, defendant selected an obscure area, and he shot a person who was a stranger to him. Moreover, as we have discussed, defendant reasonably would have thought, or at least hoped, that Crafts was likely to be in possession of a large amount of money; thus, there was even more evidence of an attempted robbery here than there was in Ray.

We therefore conclude that there was sufficient evidence of an attempted robbery, even aside from defendants own statements, to satisfy the corpus delicti rule.

B. Evidence of Defendants Prior Robbery.

Defendant contends that the trial court erred by admitting evidence that he had committed a prior robbery.

1. Additional factual and procedural background.

In its trial brief, the prosecution argued that it should be allowed to introduce defendants admission of the factual basis for a prior guilty plea to robbery as evidence of his intent to rob in this case.

In his own trial brief, defendant objected to any evidence of the prior robbery, citing Evidence Code sections 1101 and 352. He also argued that, if the prior robbery was admissible at all, it had to be proved through live witness[es], not documentary evidence.

After hearing argument, the trial court ruled that the evidence was admissible under Evidence Code section 1101, subdivision (b) and not unduly prejudicial under Evidence Code section 352. It further ruled that the prior robbery could be proved by the certified record of the . . . conviction.

The prosecutor and defense counsel then entered into the following stipulation, which was read to the jury: [O]n April 23rd, 1979, Mr. Horne was convicted for a violation of . . . [s]ection 211 of the Penal code, a robbery. And he offered the following factual basis for that plea. And that is, On or about February 19, 1979, in Orange County, I did rob Wilma Rectur of money. During the commission of the robbery, I personally used a rifle. Defense counsel made it clear that, by entering into the stipulation, she was bowing to the trial courts earlier ruling but not waiving defendants objections to it.

Immediately after this stipulation was read to the jury, the trial court instructed: [T]his stipulation is to be considered by you only for a very limited purpose. And that limited purpose, in a nutshell, is, insofar as it relates to the intent, or lack thereof, of the defendant, with respect to the charged crime.

You are not to consider the evidence presented by that stipulation as evidence that the defendant is a bad person, that hes more likely than not to commit crimes; only as it relates to his intent with respect to the charged crime here.

In addition, the trial court later instructed the jury:

Evidence has been introduced for the purpose of showing that the defendant committed a crime other than that for which he is on trial.

This evidence, if believed, may not be considered by you to prove that defendant is a person of bad character or that he has a disposition to commit crimes. It may be considered by you only for the limited purpose of determining if it tends to show:

A characteristic method, plan, or scheme in the commission of criminal acts similar to the method, plan, or scheme used in the commission of the offense in this case which would further tend to show either the existence of the intent, which is a necessary element of the crime charged; or the identity of the person who committed the crime of which the defendant is accused; or a motive for the commission of the crime charged.

And here all of those things may be considered for that limited purpose only.

For the limited purpose for which you may consider such evidence, you must weigh it in the same manner as you do all other evidence in the case. You are not permitted to consider such evidence for any other purpose. (CALJIC No. 2.50.)

2. Admissibility of Defendants Factual Basis Statement.

Defendant contends that his factual basis statement was inadmissible to prove the conduct underlying the prior conviction.

Defendant points out that a prior conviction, when used to prove the conduct underlying that conviction, is hearsay. (People v. Wheeler (1992) 4 Cal.4th 284, 297-300.) He concedes that, to the extent that he signed the written factual basis statement, the statement comes within the hearsay exception for the admission of a party. (Evid. Code,  1220.) He argues, however, that all he admitted was that the statement was the factual basis for the plea, not that it was true.

Preliminarily, defendant waived this particular objection by failing to raise it below. The only relevant argument that he raised below was that the prior conviction had to be proved through oral testimony and could not be proved through documentary evidence. That is a completely different objection.

Even if not waived, the contention lacks merit. The stipulated wording of the factual basis statement itself is to the contrary. Defendant did not merely admit that there was a sufficient factual basis for the plea; rather, he expressly admitted that he did, in fact commit a robbery.

In any event, admitting that certain facts form the factual basis of ones plea is tantamount to admitting that those facts are true. Pursuant to [Penal Code] section 1192.5, the trial court is obligated to determine whether there is a factual basis for a plea of guilty or no contest when that plea arises from a negotiated resolution of the charges. [Citation.] Although not constitutionally required [citation], such an inquiry furthers constitutional considerations attending a guilty plea [citation], protects against the entry of a guilty plea by an innocent defendant, and makes a record in the event of appellate or collateral attacks on that plea. [Citation.] (People v. Marlin (2004) 124 Cal.App.4th 559, 571.) If a defendants factual basis statement is, in fact, false, it fails to serve these purposes; there would be no point in making it.

Defendant points out that, as long as there is a strong factual basis for a plea, it is not unconstitutional for a court to accept a guilty plea even from a defendant who claims to be innocent. (North Carolina v. Alford (1970) 400 U.S. 25, 38 [91 S.Ct. 160, 27 L.Ed.2d 162].) Or, to put it another way, at least some defendants who plead guilty are actually innocent. Nevertheless, by pleading guilty, a defendant is admitting the commission of the charged crime. (In re Chavez (2003) 30 Cal.4th 643, 649 [[a] guilty plea admits every element of the charged offense].) If the same defendant has also made a conflicting claim of innocence, a jury can properly be tasked with deciding, in light of all the evidence, which statement is true and which is false, but the defendants admission of guilt is nevertheless relevant and admissible. We also note that, here, defendant never claimed that he was innocent of the prior robbery. His admission of guilt was uncontradicted.

In his reply brief, defendant additionally argues that a factual basis statement is not part of the record of conviction and therefore not admissible under Evidence Code section 452.5. Defendants trial counsel waived this objection. The trial court merely ruled that the record of the prior robbery conviction was admissible. Defense counsel then proceeded to stipulate that defendants factual basis statement could come before the jury. We recognize that, to the extent that she was merely acquiescing in the trial courts ruling, she did not waive any objections to it that she had previously raised. However, if and to the extent that she went beyond the trial courts ruling, she waived any additional objections.

In any event, Evidence Code section 452.5, subdivision (b) merely creates a hearsay exception for a certified record of conviction when used to prove the conduct underlying the conviction. (People v. Duran (2002) 97 Cal.App.4th 1448, 1459-1461.) As noted earlier, the signed factual basis statement was already within the hearsay exception for a party admission. There was no need to resort to Evidence Code section 452.5.

We therefore conclude that defendants factual basis statement was not inadmissible per se to prove the conduct underlying the prior robbery.

3. Admissibility under Evidence Code sections 1101 and 352.

Defendant also contends that the prior robbery was inadmissible under Evidence Code sections 1101 and/or 352.

Under Evidence Code section 1101, [e]vidence of the defendants commission of a crime other than one for which the defendant is then being tried is not admissible to show bad character or predisposition to criminality but it may be admitted to prove some material fact at issue, such as motive or identity. [Citation.] Because evidence of other crimes may be highly inflammatory, its admissibility should be scrutinized with great care. [Citation.] [Citation.] In cases in which [a party] seeks to prove the defendants identity as the perpetrator of the charged offense by evidence he had committed uncharged offenses, admissibility depends upon proof that the charged and uncharged offenses share distinctive common marks sufficient to raise an inference of identity. [Citation.] A somewhat lesser degree of similarity is required to show a common plan or scheme and still less similarity is required to show intent. [Citation.] On appeal, we review a trial courts ruling under Evidence Code section 1101 for abuse of discretion. [Citation.] (People v. Abilez (2007) 41 Cal.4th 472, 500, quoting People v. Gray (2005) 37 Cal.4th 168, 202.)

In order to be relevant to prove intent, the other crime must be sufficiently similar to support the inference that the defendant probably harbor[ed] the same intent in each instance. [Citations.] [Citation.] [Citation.] (People v. Ramirez (2006) 39 Cal.4th 398, 463, quoting People v. Ewoldt (1994) 7 Cal.4th 380, 402, quoting People v. Robbins (1988) 45 Cal.3d 867, 879, quoting People v. Thompson (1980) 27 Cal.3d 303, 319.) Although the jury was not given much detail concerning the prior robbery, it was at least told that defendant used a firearm and took cash. Concerning the current crime, it knew, even aside from the corpus delicti rule,^[1]that defendant pulled a firearm on the victim at a time when he might reasonably have been expecting, or at least hoping, that the victim was in possession of a substantial sum of cash. Given these similarities, the prior robbery had some tendency in reason (Evid. Code,  210) to show that defendant harbored the same intent to rob when he committed the current offense. (See Ramirez, at pp. 463-464 [evidence that defendant committed other burglaries, in which he entered other peoples residences and took property, was relevant to show that defendant entered two victims residences with the intent to commit larceny, even though he did not take their property].)

Defendant also argues that the evidence was inadmissible under Evidence Code section 352. The gist of this argument, however, is that because the evidence was not relevant to show intent, it lacked probative value and was merely likely to confuse and mislead the jury. Having just held that the evidence was relevant to show intent, we must disagree. Indeed, given the prosecutions need to prove the corpus delicti of robbery independent of defendants extrajudicial statement, it had significant probative value. At the same time, the evidence was not unduly prejudicial. The jury heard only the bare minimum facts of the prior robbery; there was nothing particularly unusual or inflammatory about it. Because the evidence came in by way of a stipulation, it consumed negligible court time. And, as defendant himself argues, there was no evidence that he had committed any other robbery between 1983 and 2005; this minimized the risk that the jury would conclude that he had a propensity to rob.

Besides arguing that the evidence was inadmissible to show intent, defendant also argues that it was inadmissible to show motive, common plan or scheme, or identity. Because we have held that it was admissible to show intent, we need not consider these contentions. With one exception, which we will discuss below, defendant does not argue that the trial court erred by instructing the jury that it could consider whether the evidence tended to show identity, motive, or common plan or scheme; he has waived any such objection. In any event, if, as defendant contends, the evidence had no tendency in reason to prove motive, common plan or scheme, or identity, then presumably the jury did not use it for any of these purposes. (People v. Terry (1974) 38 Cal.App.3d 432, 447.) Moreover, once the jury found sufficient evidence of the corpus delicti of robbery  and, for this purpose, it could use the prior robbery as evidence of intent it could also consider defendants confession, which afforded extremely strong evidence of both identity and motive. Thus, defendant cannot show that the instruction was prejudicial.

Defendant does argue that the second limiting instruction, when read literally, did not allow the jury to consider the prior robbery as evidence of intent unless it first found that it was evidence of [a] characteristic method, plan, or scheme in the commission of criminal acts similar to the method, plan, or scheme used in the commission of the offense in this case . . . . Once again, however, if the evidence fell short of showing a common plan or scheme, then presumably the jury did not consider it as showing either a common plan or scheme or intent. Thus, this error could only favor defendant.

We therefore conclude that the evidence of the prior robbery was admissible under both Evidence Code section 1101 and Evidence Code section 352, and that any error in instructing the jury on the use of such evidence was harmless.

C. Instruction That the Robbery-Murder Special Circumstance Did Not Require the Intent to Kill.

Defendant contends that the trial court erroneously instructed that the robbery-murder special circumstance did not require the intent to kill.

1. Legal background.

On December 12, 1983, the California Supreme Court decided Carlos v. Superior Court (1983) 35 Cal.3d 131, in which it held that a felony-murder special circumstance required the intent to kill. (Id. at pp. 135, 153-154.)

In this case, defendant killed the victim on the night of December 13-14, 1983.

Four years later, in People v. Anderson (1987) 43 Cal.3d 1104, the Supreme Court overruled Carlos; it held that a felony-murder special circumstance requires the intent to kill only if the defendant is an aider and abettor rather than the actual killer; that is, it requires either intent to kill or that the defendant be the actual killer. (Anderson, at pp. 1115, 1147.)

[T]rials for crimes committed in the window period between Carlos and Anderson are controlled by Carlos. [Citations.] As to offenses committed after Carlos but before Anderson . . . due process and ex post facto principles demand that the intent-to-kill requirement apply to any felony-murder special circumstance charged in connection with such offenses. [Citations.] Retroactive application of Anderson in these circumstances would deprive defendant of a defense against imposition of the death penalty which the law at the time of the crime plainly permitted. [Citation.] (People v. Huggins (2006) 38 Cal.4th 175, 209, quoting People v. Johnson (1993) 6 Cal.4th 1, 44 and People v. Fierro (1991) 1 Cal.4th 173, 227.)

2. Additional factual and procedural background.

Both the prosecution and the defense requested CALJIC No. 8.80. In addition, the prosecution requested CALJIC No. 8.81.17. The trial court agreed to give both instructions, which stated, as relevant here:

To find that the special circumstance referred to in these instructions as murder in the attempted commission or commission of robbery is true, it must be proved:

1. That the murder was committed while the defendant was engaged in the commission or attempted commission of a robbery; and

2. The murder was committed in order to carry out or advance the commission of the crime of robbery or attempted robbery, or to facilitate the escape therefrom or avoid detection. (CALJIC No. 8.81.17.)

If you find beyond a reasonable doubt that defendant was the actual killer, you need not find that the defendant intended to kill a human being in order to find the special circumstance to be true. (CALJIC No. 8.80.)

Defendant filed a motion for new trial, in which he argued that these instructions erroneously failed to require the intent to kill. The trial court denied the motion. It agreed that it had erred by failing to instruct in accordance with Carlos, but it ruled that the error was harmless, because theres overwhelming evidence of the intent that was involved here.

3. Analysis.

Preliminarily, this case presents a lurking question as to when the window period actually began. On December 12, 1983, when the opinion in Carlos was filed? Or 30 days later, when it became final (former Cal. Rules of Court, rule 24(b)(1); see now rule 8.532(b)(1))? After all, until the opinion became final, the Supreme Court could have modified it or granted a rehearing. Arguably, in the interim, the law remained ambiguous, and therefore defendant did not have an interest in Carlos sufficient to be protected by due process. (See People v. Poggi, supra, 45 Cal.3d at p. 327 [Anderson can constitutionally be applied to crimes committed before Carlos, because, before Carlos, the law was ambiguous].)

The People, however, have not argued that Carlos does not apply. Moreover, the issue appears to be one of first impression. For these reasons, rather than grapple with it, we will assume, without deciding, that defendant was entitled to the benefit of Carlos.

The People do argue that defense counsel waived or forfeited the error by requesting CALJIC No. 8.80 and by failing to object to the instructions as given.

We find no such forfeiture. By statute, a defendant may challenge on appeal an instruction that affects his or her substantial rights even when no objection has been made in the trial court. [Citations.] (In re Sheena K. (2007) 40 Cal.4th 875, 881, fn. 2; see also Pen. Code,  1176, 1259, 1469.) And we can hardly say that the instructions did not violate defendants substantial rights unless and until we reach the merits of his contention. (People v. Andersen (1994) 26 Cal.App.4th 1241, 1249.) The People rely on People v. Daya (1994) 29 Cal.App.4th 697. There, however, the court held that certain instructions either were not required or were not required sua sponte. In that context, it stated, defendant is not entitled to remain mute at trial and scream foul on appeal for the courts failure to expand, modify, and refine standardized jury instructions. (Id. at p. 714.) Here, the trial court had a duty to instruct sua sponte on the elements of the special circumstance. (See People v. Garcia (1984) 36 Cal.3d 539, 544-445.) Hence, Daya does not apply.

We further find no invited error. The doctrine of invited error bars a defendant from challenging an instruction given by the trial court when the defendant has made a conscious and deliberate tactical choice to request the instruction. [Citations.] [Citation.] (People v. Thornton (2007) 41 Cal.4th 391, 436, quoting People v. Weaver (2001) 26 Cal.4th 876, 970, quoting People v. Lucero (2000) 23 Cal.4th 692, 723.) [T]he record must show only that counsel made a conscious, deliberate tactical choice between having the instruction and not having it. If counsel was ignorant of the choice, or mistakenly believed the court was not giving it to counsel, invited error will not be found. (People v. Cooper (1991) 53 Cal.3d 771, 831.) Here, defense counsel did not consciously decide to request an erroneous instruction; that could not have served any tactical purpose. Rather it appears that she was understandably unaware that CALJIC No. 8.80 did not correctly state the law applicable to a crime committed over 20 years earlier. Thus, the doctrine of invited error likewise does not apply.

It follows that the instructions given were erroneous. We turn, then, to whether the error requires reversal. The determination of whether Carlos error is harmless depends on application of the harmless-beyond-a-reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 87 S.Ct. 824]. [Citation.] In other words, error in failing to instruct that a special circumstance contains a requirement of the intent to kill is harmless when the evidence of defendants intent to kill . . . was overwhelming, and the jury could have had no reasonable doubt on that matter. [Citation.] (People v. Haley (2004) 34 Cal.4th 283, 310, quoting People v. Osband (1996) 13 Cal.4th 622, 681.)

In People v. Johnson, supra, 6 Cal.4th 1, the Supreme Court held that a Carlos error was harmless because the defendant beat the victim to death by kicking her 10 to 12 times in her face and head, and because there was no substantial evidence that the victim had provoked the assault. (Johnson, at p. 47; see also People v. Bolden (2002) 29 Cal.4th 515, 560-561 [Carlos error harmless where the victim had been killed while on a couch by a single stab wound to the back, five or six inches deep, that penetrated his lungs and spleen, and there were no signs of a struggle].)

Here, similarly, the nature of the victims wounds forcefully bespoke intent to kill. Defendant shot the victim in the back with a 12-gauge sawed-off shotgun. While defendant claimed (over 20 years later) that he was 12 feet away, uncontradicted expert testimony based on the physical evidence showed that he was three to six feet away. As a result, the victims left lung was pulverized. Defendant admitted being upset and shooting the victim intentionally. Moreover, nowhere in his statement did he deny the intent to kill. Although he said that he did not see the victim fall, he did not claim that he thought the victim might still be alive; indeed, it seems likely that he was so sure that he had killed the victim that he saw no need to look back. Moreover, while he said he read in the paper the next day that the victim had died, he did not claim that this was when he first realized this.^[2]

We therefore conclude that any Carlos error was harmless.

D. Flight Instruction.

Defendant contends that the trial court erred by giving a flight instruction.

At the prosecutions request, the trial court gave CALJIC No. 2.52, as follows: The flight of a person immediately after the commission of a crime is not sufficient in itself to establish his guilt but is a fact which, if proved, may be considered by you in the light of all the other proved facts in deciding whether the defendant is guilty or not guilty. The weight to which this circumstance is entitled is a matter for you to decide.

In general, a flight instruction is proper where the evidence shows that the defendant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt. [Citations.] Evidence that a defendant left the scene is not alone sufficient; instead, the circumstances of departure must suggest a purpose to avoid being observed or arrested. [Citations.] (People v. Bonilla (2007) 41 Cal.4th 313, 328, quoting People v. Bradford (1997) 14 Cal.4th 1005, 1055 and People v. Crandell (1988) 46 Cal.3d 833, 869.)

Here, a witness testified that she heard the shot, then saw a car leave the Burger King parking lot and turn right onto Van Buren. Its headlights were off; the driver did not turn the headlights on until it reached the next stop light. This evidence sufficiently showed a purpose to avoid being observed so as to support giving a flight instruction.

Defendant argues that the instruction was unnecessary because he had already admitted being the shooter, having the intent to rob, and intentionally pulling the trigger. He further argues that the instruction erroneously allowed the jurors to infer guilt, not merely of homicide, but of first degree murder with a robbery-murder special circumstance. The Supreme Court, however, has repeatedly rejected the argument that . . . instructions regarding the defendants flight following the crime[] permit the jury to draw impermissible inferences about the defendants mental state, or are otherwise inappropriate where mental state, not identity, is the principal disputed issue. [Citations.] As we have said, even where the defendant concedes some aspect of a criminal charge, the prosecution is entitled to bolster its case, which requires proof of the defendants guilt beyond a reasonable doubt, by presenting evidence of the defendants consciousness of guilt. [Citations.] (People v. Zambrano (2007) 41 Cal.4th 1082, 1160.)

Separately and alternatively, even assuming there was insufficient evidence to support giving the instruction, the error was harmless. The applicable standard is whether it is reasonably probable that a result more favorable to defendant would have been reached in the absence of the error. (People v. Silva (1988) 45 Cal.3d 604, 628.) The instruction did not assume that flight was established, but instead permitted the jury to make that factual determination and to decide what weight to accord it. [Citation.] (People v. Carter (2005) 36 Cal.4th 1114, 1182-1183, fn. omitted.) Accordingly, if indeed there was insufficient evidence of flight, we may safely assume that the jury made no use of the instruction. (See ibid.)

E. Yurko Error.

Defendant contends that the trial court failed to advise him of his right against self-incrimination before he admitted the prior serious felony enhancement.

1. Additional factual and procedural background.

After the jury had returned its verdict, defense counsel advised the trial court that defendant wanted to admit the two prior serious felony enhancement allegations. This discussion followed:

THE COURT: . . . [] . . . [] Now, you have a right to have a jury trial on each of those priors. At that jury trial, youd have the right to see, hear and question any witnesses who would testify against you.

Youd also have the right to call witnesses on your own behalf, and you would be able to employ the subpoena power of the Court to compel them to be here to testify.

Youd also have the right to testify on your own behalf, but nobody could force you to do that. And, of course, throughout that trial youd have the right to be represented by counsel[,] which, of course, [defense counsel] is prepared to do. She has indicated it is your desire to waive your right to a jury trial, or even a bench trial, to have me decide the issue[,] so you can admit each of those prior convictions.

Is that your desire?

THE DEFENDANT: Yes.

THE COURT: Do you waive your right to either a jury trial or a bench trial on each of those priors?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Do you admit you were convicted of first degree burglary and robbery?

THE DEFENDANT: Yes.

THE COURT: Do you further admit that both of those are serious felonies? Is that yes?

THE DEFENDANT: Yes. (Italics added.)

2. Analysis.

Under In re Yurko (1974) 10 Cal.3d 857, before a court accepts an accuseds admission that he has suffered prior felony convictions, it must give him express and specific admonitions as to the constitutional rights waived by an admission. (Id. at p. 863.) These rights are threefold:  . . . First, is the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment . . . . Second, is the right to trial by jury. . . . Third, is the right to confront ones accusers. . . . [Citation.] (Id. at p. 863, fn. 5, quoting Boykin v. Alabama (1969) 395 U.S. 238, 243-244 [23 L.Ed.2d 274, 89 S.Ct. 1709].) Under People v. Howard (1992) 1 Cal.4th 1132, the failure to give any or all of these admonitions is harmless error if the record affirmatively shows that [the admission] is voluntary and intelligent under the totality of the circumstances. [Citations.] (Id. at p. 1175; accord, People v. Mosby (2004) 33 Cal.4th 353, 360-361.)

In Howard itself, the trial court failed to advise the defendant of the privilege against self-incrimination. (People v. Howard, supra, 1 Cal.4th at pp. 1174, 1179-1180.) The Supreme Court held that the error was harmless, explaining: The record in this case affirmatively demonstrates that defendant knew he had a right not to admit the prior conviction and, thus, not to incriminate himself. The court specifically informed defendant that he had a right to force the district attorney to prove the prior conviction in a trial and that, in such a trial, he would have the rights to a jury and to confront adverse witnesses. The admonitions were not empty words because defendant was actively represented by counsel and preparing for trial on charges to which he had pled not guilty. Moreover, there was a strong factual basis for the plea. (Id. at p. 1180, fn. omitted.)

Here, the trial court did not wholly fail to advise defendant of the privilege against self-incrimination; it did tell him that, at a jury trial, nobody could force him to testify on his own behalf. Howard, however, suggests that the key point to be conveyed is that the defendant cannot be forced to admit the prior conviction. Here, the trial court did not specifically advise defendant of this. Accordingly, we will assume, without deciding, that the advisal was inadequate.

However, essentially all of the factors that indicated that the error in Howard was harmless are also present here. As in Howard, the trial court did advise defendant that he had the right to a jury trial and that, in such a trial, he would have the right to confront adverse witnesses. Defendant points out that, unlike in Howard, he was not specifically advised that the People would have the burden of proof. Such an advisal, however, is not required. We cannot see how the lack of such an advisal here reflects on whether the plea was voluntary and intelligent. Moreover, unlike the defendant in Howard, who was merely facing trial, here defendant had just been through a jury trial. From this, we are entitled to conclude that he understood that the right to a jury trial encompassed the right to remain silent (a right he had only just exercised), as well as the right to require the prosecution to prove its case beyond a reasonable doubt. (People v. Mosby, supra, 33 Cal.4th at pp. 364-365.) Finally, from the colloquy as a whole including but not limited to the trial courts inquiry as to whether it was defendants desire to admit the priors defendant necessarily would have understood that he did not have to admit them.

Defendant argues that here, unlike in Howard, the record does not show a strong factual basis for the plea. Indeed, he suggests that his prior burglary conviction may not qualify as a serious felony at all.^[3] While Howard mentioned a strong factual basis as a factor, we do not believe that its absence is controlling. On this record, it does not appear that defendant knew that the prior was not a serious felony but admitted it anyway because he somehow thought he had to. Rather, the only reasonable inference is that he had been advised, correctly or incorrectly, that it was a serious felony. If, in fact, it was not, his remedy is by way of habeas corpus.

In sum, we conclude that, to the extent that the trial court erred by failing to advise defendant of his right against self-incrimination, the error was harmless.

F. Sentencing Issues.

1. Presentencing conduct credits.

Defendant contends that the trial court erred by failing to award him presentencing conduct credits to which he was entitled under 1983 law. The People concede the error.

Since defendant has been sentenced to life without parole, we question whether this error is prejudicial. The People, however, do not argue that the error is harmless and thus have arguably waived the issue. We also note that the Legislature has seen fit to require that defendant, despite already being sentenced to life without parole for murder, must be sentenced to an additional 12-year term based on the enhancements; simple tit for tat fairness would suggest that he should therefore be entitled to any applicable credits against that term.

Under Penal Code section 2933.2, which became effective on June 3, 1998 (see People v. Ly (2001) 89 Cal.App.4th 44, 47), a person convicted of murder is not entitled to any presentencing conduct credits. (Pen. Code,  2933.2, subds. (a) & (c).) However, Penal Code section 2933.2 does not apply to crimes committed before it went into effect. (Pen. Code,  2933.2, subd. (d); People v. Cooper (2002) 27 Cal.4th 38, 40-41, fn. 2; Ly, at p. 47.)

Similarly, Penal Code section 2933.1, which limits a convicted murderers conduct credits to 15 percent (Pen. Code,  2933.1, subds. (a) & (c)), went into effect on September 21, 1994. (People v. Camba (1996) 50 Cal.App.4th 857, 867.) It, too, does not apply to crimes committed before it went into effect. (Pen. Code,  2933.1, subd. (d).)

Under the law that was in effect in 1983, defendant was entitled to presentencing conduct credits equal to half of his actual custody time. (Former Pen. Code,  2900.5, Stats. 1980, ch. 297,  1, pp. 625-626; former Pen. Code,  2933, Stats. 1982, ch. 1234,  4, p. 4551; Pen. Code,  4019, Stats. 1982, ch. 1234,  7, p. 4553; People v. Smith (1989) 211 Cal.App.3d 523, 527.) Defendants actual custody time was 509 days. We will modify the judgment so as to award him an additional 254 days of presentencing conduct credit.

2. Restitution.

The trial court ordered defendant to pay a restitution fine of $10,000, pursuant to Penal Code section 1202.4, subdivision (b). It also ordered him to pay direct restitution of $2,000, pursuant to Penal Code section 1202.4, subdivision (a). Defendant contends that this was error, because Penal Code section 1202.4 did not become operative until January 1, 1984. The People concede the error. We agree.^[4] (People v. Palomar (1985) 171 Cal.App.3d 131, 133-136.) Accordingly, we will strike both restitution orders.

3. Errors in the abstract of judgment.

Defendant contends that the abstract of judgment is erroneous in two respects. First, it indicates that the crime was committed in 2005, rather than 1983. Second, it indicates that a two-year enhancement was imposed under Penal Code section 1192.7, subdivision (c). This is not an enhancement statute. Actually, the enhancement was imposed under Penal Code section 12022.5, subdivision (a), as it stood in 1983 (Stats. 1982, ch. 1404,  2.1, p. 5358).

Once again, the People concede both errors. Because we are modifying the judgment, the trial court will have to prepare a new abstract of judgment. However, we will direct it to correct these errors when it does.

IV

DISPOSITION

The judgment is modified by awarding defendant an additional 254 days of presentence credit, for a total of 763 days, and by striking the restitution fine and the direct restitution order. The judgment as modified is affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting the modification and correcting the errors noted in part III.F.3, ante, and to send certified copies of the amended abstract to the Department of Corrections and Rehabilitation. (Pen. Code,  1213, 1216.)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

Acting P.J.

I concur:

MILLER

J.

KING, J., Concurring and dissenting.

I concur with the majority save and except as to its discussion and conclusion on the robbery-murder special circumstance. In that regard, I dissent.

The majority concludes that the trial courts misinstruction on the intent to kill is harmless. I disagree, and would reverse the judgment entered theron.

At the time of the commission of the present crime, an intent to kill was an element of the robbery-murder special circumstance. (People v. Huggins (2006) 38 Cal.4th 175, 209; Carlos v. Superior Court (1983) 35 Cal.3d 131, 135, 153-154.) Failure to instruct on the element of a crime relieves the prosecution of its burden to prove its case beyond a reasonable doubt and deprives the defendant of a jury trial. The errors contravene the United States and California Constitutions. (See United States v. Gaudin (1995) 515 U.S. 506, 509-510 [115 S.Ct. 2310, 132 L.Ed.2d 444]; People v. Flood (1998) 18 Cal.4th 470, 479-480 (Flood).) Under Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705], the beneficiary of a constitutional error must prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. Harmless-error review looks . . . to the basis on which the jury actually rested its verdict. [Citation.] The inquiry, in other words, is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error. That must be so, because to hypothesize a guilty verdict that was never in fact renderedno matter how inescapable the findings to support that verdict might bewould violate the jury-trial guarantee. [Citations.] (People v. Lewis (2006) 139 Cal.App.4th 874, 886-887.) As explained by Justice Scalia in his dissent in Neder v. United States (1999) 527 U.S. 1, 35 [119 S.Ct. 1827, 144 L.Ed.2d 35] (Neder), [t]the failure of the court to instruct the jury properlywhether by omitting an element of the offense or by so misdescribing it that it is effectively removed from the jurys considerationcan be harmless, if the elements of guilt that the jury did find necessarily embraced the one omitted or misdescribed. And, in Justice Stevens concurrence, there is a distinction of true importance between a harmless-error test that focuses on what the jury did decide, rather than on what appellate judges think the jury would have decided if given an opportunity to pass on an issue. (Id. at p. 27.) Harmless error analysis, he explained, may enable a court to remove a taint from proceedings in order to preserve a jurys findings, but it cannot constitutionally supplement those findings. [Citation.] (Ibid.)

Here, the jury was misinstructed relative to the robbery-murder special circumstance. It was not told that it must find that at the time of the killing defendant needed to have the intent to kill. Indeed, it was told, [I]f you find beyond a reasonable doubt that the defendant was the actual killer, you need not find that the defendant intended to kill a human being in order to find the special circumstance to be true. (Italics added.) Thus, the finding rendered by this jury was not surely unattributable to the error. And, there is nothing in the verdicts or findings that the jury necessarily found that defendant had the intent to kill. In other words, the intent to kill was not necessarily embraced in other findings or verdicts rendered by this jury. While the jury did find defendant guilty of first degree murder, from the instructions given, the verdict could have been based on either the jurys conclusion that defendant did in fact have the intent to kill and that the killing was premeditated and deliberate, or the jurys conclusionthat the murder occurred in the attempted commission of a robbery. Thus, a finding of intent to kill was not necessarily embraced in the jurys guilty verdict on count 1.