P. v.
Filed 10/19/10 P. v. Harvey CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.
COURT OF APPEAL,
FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff
and Respondent,
v.
JENNARO EUGENE HARVEY,
Defendant
and Appellant.
D055136
(Super. Ct. No.
SCE276365)
APPEAL
from a judgment of the Superior Court
of San Diego County,
Lantz Lewis, Judge. Affirmed.
INTRODUCTION
A
jury convicted Jennaro Eugene Harvey of first
degree murder (Pen. Code,[1]
§ 187, subd. (a)) and attempted
kidnapping (§§ 664, 207, subd. (a).)
In addition, the jury also found true allegations Harvey
personally used a handgun in the commission of these offenses. (§§ 12022.5, subd. (a), 12022.53, subd.
(b).) Harvey
also admitted the truth of a prior prison conviction allegation. (§§ 667.5, subd. (b), 668.) The trial court sentenced Harvey
to a total term of 35 years to life in prison.[2]
Harvey
appeals, contending there is insufficient evidence to support his attempted
kidnapping conviction. He further
contends the trial court violated his constitutional right to adequate notice
of the charges against him by granting the prosecution's belated request to
include attempted robbery as a target crime for the prosecution's felony-murder
theory of culpability. We conclude there
is no merit to these contentions and affirm the judgment.
BACKGROUND
Harvey
and Devester Harris were members of the same gang and once shared a prison
cell. After Harvey's
release from prison, he met and started dating Harris's wife. They dated for several years and had a son
together.
Harvey
returned to prison for committing domestic
violence against Harris's wife.
Meanwhile, Harris was released from prison and reunited with his
wife. Harvey
rarely saw his son and his son started referring to Harris as his father, which
upset Harvey.
Near
the end of his incarceration for the domestic violence conviction, Harvey
phoned Harris through a third party and asked to speak with Harris's wife. Harris refused to let Harvey
speak with her, which prompted a heated argument between the two men. After the argument, Harvey
repeatedly stated to the third party who had facilitated the phone call,
"I'm going to f--- that n----- up."
The same day, Harvey told
Shadamu Foley, a fellow inmate who had overheard Harvey's
end of the argument, that he was going to rob and kill Harris. Initially, Foley planned to help Harvey,
but then decided against it.
Three
days later, during a telephone conversation with his younger sister, Harvey
again said, referring to Harris, "I'm gonna f--- blood up." Harvey
also twice said he was going to "tear [Harris's] little pockets
off." To "tear someone's
pockets off" is street lingo for robbing someone.
Around
9:40 p.m., approximately two months
after his release from prison for the domestic violence conviction and three
months after his telephone argument with Harris, Harvey
and another man went to the apartment complex where Harris and his wife
lived. They drove a van, which they
backed into a parking space and left running.
They
went upstairs to Harris's apartment and started pulling him out of it. Harris held onto the edge of the door, but he
let loose of it after the two men hit, kicked, and punched him. Then, with one of them above and one below
Harris, the two men started pulling Harris downstairs. Harris yelled for help and grabbed the
stairway railing. The man below Harris
pulled Harris's legs. The man above
Harris hit, punched, and kicked Harris's arms to get Harris to release the
railing. The two men wrestled Harris to
the last step and started pulling him toward the side of the stairs by the
parking lot.
Harris
let go of the railing, fell, got up, and tried to run. The two men pulled out
guns and at least one of them fired several shots at Harris. Harris fell to the ground. The two men ran to the van and quickly fled
the scene. Harris died a short time
later from a gunshot wound to his torso.
Harvey subsequently sent a
text message to Foley. The message read,
"It's done, blood. I did it."
DISCUSSION
I
Harvey
contends there is insufficient evidence to support his conviction for attempted
kidnapping. More particularly, he
contends there is insufficient evidence he attempted to move Harris a
substantial distance.
"Our
task in deciding a challenge to the sufficiency of the evidence is a
well-established one. '[W]e review the
whole record in the light most favorable to the judgment below to determine
whether it discloses substantial evidence -- that is, evidence that is
reasonable, credible, and of solid value -- from which a reasonable trier of
fact could find the defendant guilty beyond a reasonable doubt. [Citations.]
In cases in which the People rely primarily on circumstantial evidence,
the standard of review is the same.
[Citations.]' [Citation.] ' "An appellate court must accept
logical inferences that the jury might have drawn from the evidence even if the
court would have concluded otherwise.
[Citations.]" ' "
(People v. Solomon (2010) 49
Cal.4th 792, 811.)
"An
attempt to commit a crime is comprised of 'two elements: a specific intent to
commit the crime, and a direct but ineffectual act done toward its
commission.' [Citations.] Other than forming the requisite criminal intent, a defendant need not
commit an element of the underlying offense." (People
v. Medina
(2007) 41 Cal.4th 685, 694.) Thus, while
the crime of kidnapping requires proof the defendant moved the victim a
substantial distance, the crime of attempted kidnapping does not. (People
v. Cole (1985) 165 Cal.App.3d 41, 50.)
"[A]sportation is simply not an element of the offense." (Ibid.) As long as there is sufficient evidence
showing the defendant specifically intended to move the victim a substantial
distance, a defendant may be found guilty of attempted kidnapping without ever
having moved the victim at all. (
Here,
the evidence shows Harvey and an
accomplice drove a van to Harris's apartment complex, backed it into a parking
space, and left it running. The two men
then went upstairs to Harris's apartment, grabbed Harris, and forced him
outside and downstairs while he actively resisted. When the two men got Harris to the bottom of
the stairs, they started pulling him toward the side of the stairs by the
parking lot. A jury could reasonably
infer from this evidence that the two men were trying to get Harris over to and
into the van. Accordingly, we conclude
there is substantial evidence from which a jury could reasonably find the two
men specifically intended to move Harris a substantial distance. In view of our conclusion, we need not
address Harvey's secondary argument
that the insufficiency of evidence to support his attempted kidnapping
conviction also necessitates reversal of his first degree murder conviction.
II
A
The
afternoon of the day before the parties gave their closing arguments, the trial
court held a conference to discuss jury instructions. During the conference, the trial court
suggested the standard felony-murder jury instruction be modified to specify
the sole target offense of attempted
kidnapping. The prosecution
requested the instruction also specify attempted robbery as a target
offense. Defense counsel objected to the
prosecution's request, arguing there was insufficient evidence to support
it.
The
trial court indicated it was uncomfortable with the request because the case
"just hasn't been set up that way."
The prosecution acknowledged attempted kidnapping was a more obvious
target offense. However, the prosecution
argued Harvey's statements to his
younger sister and to Foley indicated Harris might have been attempting to rob
Harris as well as kidnap him. Defense
counsel reiterated his argument that there was insufficient evidence to support
this theory. Defense counsel also
objected to inclusion of attempted robbery as a target offense on Fifth and
Fourteenth Amendment grounds.
The
trial court stated it would review the matter further and give the parties its
decision the next morning before closing arguments. Defense counsel indicated he would be
"prepared either way." The
trial court ultimately determined it had a sua sponte duty to include attempted
robbery as a target offense because there was substantial evidence to support
it.
Harvey
contends the trial court's decision to include attempted robbery as a target
offense deprived him of his Sixth and Fourteenth Amendment rights to due
process and the effective assistance of counsel because he lacked sufficient
notice of the target offense to prepare a defense to it. We conclude there is no merit to this
contention.
B
Preliminarily,
the People argue Harvey forfeited
this contention by failing to raise it below.
Harvey counters defense
counsel's objections below encompassed this contention. We agree.
Among
the bases for defense counsel's objection to the inclusion of attempted robbery
as a target offense were that its inclusion violated Harvey's
Fifth and Fourteenth Amendment rights.
Although defense counsel did not elaborate on these bases, it is clear
from the context of the jury instruction discussions that defense counsel was
asserting the timing of the prosecution's request violated Harvey's
due process rights. This is essentially
his contention on appeal. Accordingly,
we conclude this contention has been adequately preserved for appeal.
C
In
considering the merits of this contention, we note that "[a] pleading
charging murder adequately notifies a defendant of the possibility of
conviction of first degree murder on a felony-murder theory." (People
v. Gallego (1990) 52 Cal.3d 115, 188.)
Nonetheless, a defendant may lack adequate notice and an effective
opportunity to prepare a defense to a felony-murder theory if the prosecution
affirmatively misleads the defendant into believing the prosecution is not
going to pursue the theory, such as by failing to directly or indirectly
indicate it intends to pursue the theory until immediately before closing
arguments the day after the jury instruction conference. (Sheppard
v. Rees (1990) 909 F.2d 1234, 1235-1238.)
A defendant does not lack adequate notice, however, as long as the trial
evidence supports the prosecution's felony-murder theory, the prosecution
submits felony-murder instructions at the initial instructions conference, and
defense counsel has a sufficient opportunity to prepare for closing
arguments. (People v. Gallego, supra,
52 Cal.3d at p. 189; People v. Lucas (1997)
55 Cal.App.4th 721, 738; Murtishaw v.
Woodford (9th Cir. 2001) 255 F.3d 926, 953-954; Stephens v. Borg (9th Cir. 1995) 59 F.3d 932, 935-936;
F.2d 425, 428-429.) Each of these
requirements is met in this case.
The
trial evidence supported identifying attempted robbery as a target offense for
felony murder because it included tapes of telephone conversations in which Harvey
indicated he wanted to rob Harris. The
prosecution informed defense counsel before trial it intended to introduce the
tapes and provided defense counsel with transcripts of them. The trial evidence also included Foley's
testimony recounting Harvey's
statement of intent to rob and kill Harris as well as Foley's admission he
initially planned to assist Harvey. Nothing in the record indicates defense
counsel was surprised by the prosecution's decision to call Foley as a witness
or by Foley's testimony. Moreover,
defense counsel had the opportunity to and specifically cross-examined Foley
about whether the conversation actually occurred.
Based
on the outcome of trial evidence, the prosecution requested inclusion of
attempted robbery as a target offense at the initial jury instruction
conference, which occurred the afternoon before closing arguments. Although the trial court delayed ruling on
the request, defense counsel indicated he would be prepared to argue regardless
of the ruling. When the trial court
finally ruled on the request, defense counsel did not request an opportunity to
reopen evidence to counter the attempted robbery target offense. He also did not request a continuance to
further prepare closing arguments. Under
these circumstances, we cannot conclude the trial court's inclusion of
attempted robbery as a target offense deprived Harvey
of constitutionally adequate notice to prepare an effective defense.
DISPOSITION
The
judgment is affirmed.
McCONNELL,
P. J.
WE
CONCUR:
BENKE,
J.
AARON,
J.
Publication courtesy of San
Diego pro bono legal advice.
Analysis and review provided by Poway Property line attorney.
San Diego Case Information provided by
www.fearnotlaw.com
[1] Further statutory references are to the
Penal Code unless otherwise stated.
[2] The trial court's sentence did not
address the prior prison conviction finding.
The trial court's failure to address the finding is not an issue in this
appeal.
