P. v. Johnson

Filed 7/30/08 P. v. Johnson 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 San Bernardino County. Raymond L. Haight III, Judge. Affirmed.

Janet J. Gray, 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, Peter Quon, Jr., Supervising Deputy Attorney General, and Karl T. Terp, Deputy Attorney General, for Plaintiff and Respondent.

A jury convicted defendant of first degree murder under a felony-murder theory pursuant to which she aided and abetted a robbery in which one of her coparticipants killed one of the victims (count 2Pen. Code,  187, subd. (a), 189). On appeal, defendant contends the People failed to adduce sufficient evidence to support the requisite conclusions inherent in the verdict that her coparticipants primary intent was to rob, rather than merely execute, the victim and that defendant aided and abetted that robbery. Defendant further maintains the court erred in failing to give a sua sponte pinpoint instruction requiring that the jury find the perpetrators primary purpose was to rob, rather than execute, the victim before it could find defendant guilty of felony murder. We find the verdict supported by substantial evidence and, therefore, affirm the judgment below. Defendants execution theory of the murder was not raised below and is completely unsupported by any of the evidence; hence, the court did not err in failing to give, sua sponte, the specific pinpoint instruction requested by defendant for the first time on appeal.

I. FACTS AND PROCEDURAL HISTORY

Several days after the murder of Mark Rodriguez, Rialto Police Detective Hector Santana read defendant her Miranda^[1]rights, which she indicated she understood. Defendant, nonetheless, agreed to speak to Detective Santana regarding events occurring on February 11, 2005, the night Rodriquez was killed. Defendant informed Detective Santana that she was asleep at her home when her friend Alicia Fowlkes arrived with the latters boyfriend, Julian Jones, and Keian Williams. Alicia woke defendant up and told her to get ready as they were going out. Defendant suggested they go to the club Scores. However, Jones insisted that they were not going to go to Scores, rather they were going to go jack or rob someone. Jones spoke with Williams about going out to jack somebody. The four then went to a gas station near Scores, defendant and Fowlkes in the latters car and Jones and Williams in a Jaguar.

Once there, Jones told Alicia that she knew she was supposed to find somebody and lure them in and act like they wanted to talk to them, and then Jones and Williams would come over and do what we gotta do. Defendant said she did not want any part of the plan. Jones elaborated by telling defendant that she and Fowlkes were to act like they want to date them or whatever. Some guys saw the two women standing by the gas station and pulled their car alongside in order to converse with them. Alicia walked over to the car to speak with the men; defendant remained where she was. However, defendant later walked up to the car to ask the men how they were doing. According to defendant, the men did not appear very interested in her, so she went back to her prior position. Defendant later walked back to the mens vehicle to speak with them again when Jones and Williams parked their vehicle, got out, came up alongside the mens car, pulled out a gun, and fired a shot. Defendant and Alicia ran off. Alicia picked defendant up in her car and took her home. Detective Santana suggested that her failure to call the police when she knew Jones and Williams were going to commit a robbery indicated that she was involved in the scheme. Defendant replied that she did not kill anyone. Detective Santana responded, [y]ou may not have been the one that pulled the trigger, but you knew . . . you were there with [Alicia] to lure somebody in[,] you told me that. You told me that[,] right? Defendant agreed that she had, indeed, told Detective Santana that. Defendant stated that she didnt really think it was goin to go down like that.

The People charged defendant by information with one count of first degree murder and a corresponding enhancement, alleging defendant knew a coparticipant was armed during the robbery. (Pen. Code,  187, subd. (a), 12022, subd. (a)(1).) At trial, the People played an audio recording of Detective Santanas interview with defendant. The audio recording and a transcript of the interview were admitted into evidence respectively as exhibits 26 and 26A.

Jason Sugimura, a security guard at Scores, testified at trial that on the night of the murder he began work at 9:00 p.m. One of his duties is to monitor the parking lot to ensure there is no loitering. Immediately after coming on duty, Sugimura noticed a silver Jaguar and a burgundy Monte Carlo in the parking lot. There were two Black males in the Jaguar and two Black females in the Monte Carlo. At 9:20 p.m., the vehicles were still in the same place, so Sugimura approached the Jaguar to ask the men to either enter the club or leave. He never approached the Monte Carlo. A couple of minutes after speaking with the men in the Jaguar, they left. The Monte Carlo left a couple of minutes thereafter.

Sugimura continued to see the two vehicles every 10 to 30 minutes as they circled the club four to five times. Due to the suspicious nature of the circumstances, Sugimura attempted to take down the vehicles license plate numbers; however, neither car had license plates. The Jaguar had no license plate and the Monte Carlo had only dealer paper plates. At some point, Sugimura heard a bang coming from the gas station nearby. Between a half-hour and 45 minutes passed between the time he contacted the Jaguars occupants and the last time he saw them circle the lot and heard the loud noise. Sugimura identified the women in the Monte Carlo as Fowlkes and defendant and the men in the Jaguar as Jones and Williams. Neither Fowlkes nor defendant ever attempted to enter the club.

Maria Barreto, an employee of the gas station where the shooting occurred, testified that she was working on the night of the shooting. She first observed the Monte Carlo circling the gas station between 8:00 and 8:30 p.m. One of her duties is to ensure that no one parks in certain areas of the gas station. She saw the Monte Carlo park at the station in an impermissible area, so she called a tow company. Due to the suspicious nature of the circumstances, Barreto looked for a license plate number on the Monte Carlo; however, it had only dealer paper plates. It seemed to Barreto that between two and three hours passed between the time she initially saw the Monte Carlo circling and when it parked, though she could not remember precisely. Two Black women exited the Monte Carlo and walked towards Scores. The victims car stopped at the gas station and the two women walked over to speak with them. She saw the victims talking to both females. A Jaguar then pulled up. Two men got out of the Jaguar and approached the victims vehicle. The two women walked back to their car as the men approached. Barreto then heard one gunshot. The Jaguar left towards Fontana; the Monte Carlo left in the same direction. She called 911 immediately after hearing the gunshot.

Barreto testified that the gas station had surveillance cameras installed around the premises. Exhibits 4, 5, 6, and 6A, video recordings of the robbery from various angles, were played to the jury and admitted into evidence. Exhibit 6A clearly shows both women approach the window of the victims car. Although one woman (Fowlkes) approaches the victims window and stays until the approach of Jones and Williams, the other woman (defendant) appears to approach the vehicle sometime after the victims car first appears. She then leaves, comes back, and goes away again prior to the robbery.

Dwight Fleming, one of the robbery victims, testified that on February 11, 2005, he and his best friend, Rodriguez, decided to go to the club Scores in Rialto. He drove while Rodriguez was seated in the passenger seat of the vehicle. He drove into the parking lot of the gas station near Scores in order to speak with some women he saw there. Once there, he made contact with and talked with two females, one of whom was defendant. Defendants companion (Fowlkes) contacted them first. She had flagged them down. Fowlkes told him exactly where to park, so he pulled forward underneath the gas station awning. Defendant walked over towards them once they parked. Fowlkes did most of the talking; however, defendant told he and Rodriguez that they were cute. Defendant spoke to them briefly, but spent most of her time talking on the phone and walking back and forth. Defendant approached his vehicle twice. They talked with the women about getting a hotel room, some weed, and liquor.

Fleming testified that he found the scenario suspicious. He spoke with the women for three to five minutes before the Jaguar pulled into the driveway of the gas station. Two Black males were inside the Jaguar. They got out of the Jaguar and each approached separate sides of Flemings vehicle. Fleming was distracted from being more aware of his surroundings by the conversation with the women. The man on Flemings side held a gun to his temple. Fowlkes let out what Fleming characterized as a fake scream and the two women walked off. The man told Fleming to give up everything. Fleming was pistol-whipped four or five times when he resisted. Eventually, the man made off with Flemings bank and identification cards.

The man on the other side of the car grabbed Rodriguez and told him to lay face down in the backseat. Fleming heard a gunshot. The two men left immediately thereafter. Fleming got out of the car to check on Rodriguez in the backseat, where he found him nonresponsive. Fleming drove Rodriguez to the hospital where personnel informed him Rodriguez was dead. Fleming believed the women had set them up. The surveillance videos are consistent with Flemings account of the robbery, other than the fact that the videos have no sound.

Frank Sheridan, a forensic pathologist, testified that the cause of Rodriguezs death was a gunshot wound to the head. He testified that soot located within the gunshot wound on the back of Rodriguezs head indicates that the muzzle of the gun was right up against his head when it was discharged.

Santana testified that the 911 call was made at eight minutes after midnight. He testified regarding the above discussed contents of his interview with defendant. He noted that defendant never denied being part of the robbery.

II. DISCUSSION

A. Substantial Evidence Supports Defendants Conviction

Defendant contends that insufficient evidence supports her conviction for murder under a felony-murder theory. First, she maintains that the evidence fails to support the requisite finding that defendants coparticipants primary purpose was robbery, rather than the nonenumerated statutory felony of execution. Second, she avers that insufficient evidence supports a finding that she intended to aid and abet the robbery. We find defendants arguments unconvincing.

In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] Reversal on this ground is unwarranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]. [Citations.] (People v. Bolin (1998) 18 Cal.4th 297, 331; see also People v. Hill (1998) 17 Cal.4th 800, 848-849.) In applying this standard to a conviction based primarily on circumstantial evidence, we uphold the jurys verdict if reasonably justified by the circumstances, even if a contrary finding might also reasonably be reconciled with the circumstances. (People v. Ceja (1993) 4 Cal.4th 1134, 1138; People v. Bean (1988) 46 Cal.3d 919, 932.)

1. Substantial Evidence Supports the Jurys Implied Finding That Defendants Coparticipants Primary Purpose was Robbery

Murder committed in the perpetration of certain felonies, including [robbery], constitutes murder in the first degree. ([Pen. Code,]  189.) We have required as part of the felony-murder doctrine that the jury find the perpetrator had the specific intent to commit one of the enumerated felonies [in [Penal Code] section 189] . . . . [Citations.] [Citation.] It also is established that the killing need not occur in the midst of the commission of the felony, so long as that felony is not merely incidental to, or an afterthought to, the killing. [Citation.] In addition, a homicide occurs in the perpetration of an enumerated felony for the purpose of the felony-murder rule if both offenses were parts of one continuous transaction. [Citation.] There is no requirement of a strict causal [citation] or temporal [citation] relationship between the felony and the murder. [Citation.] In addition, [c]ircumstantial evidence may provide sufficient support for a felony-murder conviction. [Citations.] (People v. Prince (2007) 40 Cal.4th 1179, 1259.)

Defendant essentially contends that her coparticipants primary intention was the execution of Rodriguez and that the robbery was an incidental act, a mere deed undertaken upon afterthought. Substantial evidence supports the jurys implied finding that robbery was defendants coparticipants primary purpose. Here, prior to even leaving defendants home, Jones announced his intention to go out and jack or rob someone. Jones spoke with Williams about going out to jack someone. Once they arrived at the gas station, Jones told Fowlkes and defendant that he expected them to lure apparently unsuspecting and unknown individuals so that they could do what we gotta do. Fleming testified that Jones told him to give up everything. Thus, all the evidence supported a determination that robbery was not only the primary object of defendants coparticipants, but the only purpose of their scheme.

The characterization of Joness and Williamss intent as the execution of Rodriguez is simply unsupported by the evidence below. Sheridan testified that the gunshot wound was inflicted with the muzzle resting directly against the back of Rodriquezs head. Likewise, Fleming testified that Williams forced Rodriguez to lay on the backseat of the car face down. Thus, since Rodriquezs shooting could be characterized as execution style, defendant apparently contends this leads to the inexorable conclusion that execution was defendants coparticipants primary purpose. However, no evidence indicated that Jones or Williams knew either Fleming or Rodriguez. Indeed, had Fleming actually known either offender, there would be little reason for him not to testify as such, particularly as it would have helped identify the perpetrators. There was no testimony here regarding Joness and Williamss participation in gang activity which could have possibly supported a contention that random executions would benefit the reputation of their gang. Moreover, the execution theory was never posited below. Furthermore, as discussed above, there was ample evidence that defendants coparticipants intended to commit a robbery, not an execution. Defendants syllogism that when one kills another and takes substantial property from the victim, it is ordinarily reasonable to presume the killing was for purposes of robbery; therefore, where little or nothing of value is taken from the victim of a homicide, the converse must be true, i.e., that robbery was not the primary motive for the assault, is blatantly fallacious. A robber often takes his victims as he finds them. Thus, here, the minimal value of the items taken from the victims appears to be a reflection of bad luck or poor planning. The killing could have occurred for any number of reasons directly related to the robbery, including making it easier to get away, in retaliation for Rodriguezs possible resistance, or simply that Williams got caught up in the combative moment. Thus, only speculation supports defendants execution theory. The conviction was well supported by substantial evidence that the homicide was committed in one continuous transaction with a planned robbery.

2. Substantial Evidence Supports the Jurys Finding That Defendant Aided and Abetted the Robbery

[A]ll persons, who either directly and actively commit the act constituting [the statutory felony], or who with knowledge of the unlawful purpose of the perpetrator of the crime and with the intent or purpose of committing, encouraging, or facilitating the commission of the offense, aid, promote, encourage, or instigate by act or advice its commission, are guilty of [felony] murder of the first degree, whether the killing is intentional, unintentional, or accidental. [Citation.] (People v. Dominguez (2006) 39 Cal.4th 1141, 1159.)

Here, the People adduced ample evidence at trial that defendant knew that her coparticipants intended to commit a robbery and that she actively facilitated the commission of that robbery. Defendant was told before they even left her house that they were going to go jack someone and that they were not going to go to the club. The men and women left in separate vehicles, consistent with Joness conveyed intent that the women act as lures, a scheme which may have proven unavailing had the men rode in the same car. Once at the gas station, Jones told defendant the plan; she was to act as bait for the potential victims. Defendant arrived in the vicinity of the club sometime between 8:00 and 8:30 p.m. Barreto made the 911 call immediately after the shooting at 12:08 a.m. Sugimura testified that neither defendant nor Fowlkes ever attempted to enter the club. Thus, defendant had been circling the club and its environs for three to four hours. The rational inference of this fact, in context with Joness conveyed intention, is that they were searching for a victim to rob. This conclusion is further supported by the facts that defendant was riding in a vehicle with no license plate while following another vehicle with no license plate. The lack of vehicle license plates rationally suggests a consciousness that they were about to engage in illegal conduct and wished to avoid capture.

Defendants contention that she merely wished to go to the club is belied by these facts. If she wanted to go to the club, she would not rationally have gotten into the car in the first place because Jones said they were not going to go to the club, but were going to go rob someone. Once there, she would not have remained in the car circling the club for over three hours if all she wanted to do was go to the club. Moreover, she never attempted to enter the club. As the People aptly argued in their closing, defendant was an adult who could have left at any time. Her continued association with individuals who conveyed their intent to rob and acted to further that intent amounts to substantial evidence to support the jurys implied determination that defendant knew the unlawful purpose of her coparticipants.

Furthermore, defendant actively participated in the commission of the robbery. Defendant contends that she remained aloof while Fowlkes conducted the planned luring; however, the evidence belies this contention. While Fowlkes flagged down the victims and initiated the conversation with them, defendant, by her own admission, twice approached the car and spoke with the victims. Defendants admission was consistent with the testimonies of both Fleming and Barreto, who indicated that both women spoke with the victims. Defendant told the victims that they were cute. The video surveillance tape clearly shows defendant approach the victims vehicle twice, appearing to speak with them. Defendant was consistently characterized by Fleming as the skinny one while Fowlkes was the chubby one. This characterization is supported by the photographs admitted into evidence. Jones had stated that both women were to act like they were going to date the victims. Thus, the rational inference of these facts is that defendant was the attractive one, the one meant to provide the most enticement to any potential victims. It also dispels defendants self-serving statement that she thought the victims were not interested in her. It is particularly suspicious that defendant and Fowlkes would be at all concerned with attracting men when they had arrived with two men already.

Moreover, Fleming indicated that defendant spent most of the time on the phone while Fowlkes spoke with the victims. The jury could have rationally inferred that defendant called Jones and Williams to inform them that a suitable target for their criminal enterprise had arrived. While defendant denied this in her interview with Detective Santana, the jury would have been well within its rights to disregard her denial as an attempt at minimizing her involvement in the crime, a tactic which Detective Santana testified defendant utilized. Once the crime was completed, defendant got into the vehicle with Fowlkes, in which they fled in the same direction as the men. This reflects both that defendant was part of a common plan or scheme involving Fowlkes and consciousness of guilt. Defendant never called the police.

Ultimately, defendant admitted her involvement in the robbery. When Detective Santana suggested that defendant was part of the scheme, she replied, I didnt kill nobody. Thus, suggesting she was involved in the robbery, but not the murder. When Detective Santana asked if she had stated that her purpose there was to lure somebody, she replied that it was. Defendant stated that she didnt really think it was goin to go down like that[,] implying that while she expected the robbery, she did not anticipate the murder. Substantial evidence therefore supported the jurys verdict.

B. The Trial Court Did Not Err in Failing to Give Defendants Pinpoint Instruction Proffered for the First Time on Appeal

Defendant contends the trial court erred in not giving the following instruction which she proffers for the first time on appeal: To prove the felony murder theory of first degree murder, the prosecution must prove beyond a reasonable doubt that the robbery was done for the independent purpose of committing that felony rather than for the purpose of committing the homicide. If the perpetrators primary purpose was to kill or if he committed the robbery to facilitate or conceal the homicide, then there was no independent felonious purpose. If from all the evidence you have a reasonable doubt that the perpetrator committed the robbery for such independent felonious purpose, you must find the defendant not guilty on the felony murder theory. The suggested instruction flows from defendants above described theory, never raised below, that the primary purpose of defendants consorts was the killing of Rodriguez, rather than robbery.

While trial courts are required to instruct the jury sua sponte on general principles of law relevant to the issues raised at trial, those principles must be closely and clearly connected with the evidence, i.e., supported by substantial evidence. (People v. Sedeno (1974) 10 Cal.3d 703, 715-716.) As discussed above, the execution theory of Rodriguezs murder is not supported by substantial evidence. Defendants theory below was that she was not an aider and abettor in the robbery of the victims; thus, presupposing a plan by Jones, Williams, and Fowlkes to commit a robbery. Here, the jury was properly instructed under Judicial Council of California Criminal Jury Instructions (2006-2007), CALCRIM No. 540B in its unmodified form. Finally, even if one could possibly construe the evidence as supporting a joint intent, to both rob and kill, defendants proposed instruction would nonetheless not be called for. (See People v. Clark (1990) 50 Cal.3d 583, 607-609.)

III. DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ King

J.

We concur:

/s/ Ramirez

P.J.

/s/ Miller

J.

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Property line Lawyers.

San Diego Case Information provided by www.fearnotlaw.com

^[1]Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694].