Opinion
G043507
10-31-2011
THE PEOPLE, Plaintiff and Respondent, v. DAVID LEE GOFFNEY, Defendant and Appellant.
Gregory L. Cannon, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., and Angela M. Borzachillo, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. FVA023273)
OPINION
Appeal from a judgment of the Superior Court of San Bernardino County, Stephan G. Saleson, Judge. Affirmed as modified.
Gregory L. Cannon, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., and Angela M. Borzachillo, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted David Lee Goffney of first degree felony murder (Pen. Code, §§ 187, subd. (a), 189; all statutory references are to the Penal Code unless otherwise noted). Goffney contends the trial court erred when it (1) instructed the jury on first degree felony murder using robbery as the underlying felony; (2) denied his challenge that the prosecutor improperly used peremptory strikes to remove proposed jurors based on race; and (3) refused to give the pinpoint jury instruction Goffney requested regarding grand theft. As explained below, we find no merit to these challenges. We must modify the judgment, however, because a fine the trial court imposed exceeded the statutory amount. Further, we remand the matter so the trial court may correct the abstract of judgment to accurately reflect the sentence and fines the trial court imposed.
I
FACTUAL AND PROCEDURAL BACKGROUND
On November 24, 2004, 13-year-old T.L. left his apartment to walk to a nearby Albertson's grocery store. On his way, T.L. encountered 16-year-old Goffney and 18-year-old Walter Charles Comminey. Goffney and Comminey joined T.L. when he told them he was going to the store.
Along the way, T.L. overheard Goffney and Comminey say "they was [sic] going to do a purse snatch" at the Albertson's store. T.L. stopped at a wall near the Albertson's parking lot because he did not want to get involved. Goffney and Comminey also stopped at the same wall. As they surveyed the parking lot, Goffney commented, "There's [sic] too many security," and Comminey responded, "Should have went [sic] to Stater Bros."
The group observed the parking lot for approximately five minutes and then T.L. began walking back towards his apartment. Goffney and Comminey stayed a minute longer, but then turned and caught up with T.L. Walking away from the Albertson's parking lot the trio spotted Antonio Salcedo and Luis Soria walking toward the store. Comminey told Goffney and T.L., "We're going to get them."
Comminey, Goffney, and T.L. continued walking away from the Albertson's parking lot and passed Salcedo and Soria. Comminey, however, turned around and began walking back toward the two men. Goffney turned to follow Comminey and then T.L. did the same. Salcedo testified Comminey held a gun in his hand as Comminey, Goffney, and T.L. approached, but T.L. testified he did not see a gun at this point and did not know Comminey had one.
Comminey walked up to Soria with the gun at his hip, pointed at Soria. Comminey stopped about 12 to 18 inches away from Soria and Goffney stopped about one foot to Soria's side facing both Soria and Comminey. In a loud and aggressive voice, Comminey demanded Soria, "Give me the money," and Soria responded, "I don't have any money." Comminey demanded Soria's money two more times. Each time Soria responded, "No money," and told Comminey he did not speak English.
After Soria refused the third demand, Comminey hit him in the head with the gun causing Soria to fall to his knees. Comminey again ordered Soria to "give me the money." When Soria failed to comply, Comminey hit him in the head a second time, knocking Soria down to his hands and knees. As Soria attempted to pull himself up using Comminey's leg, Comminey placed the gun to the back of Soria's neck and shot him. Throughout the entire encounter Goffney stood by Comminey's side without saying or doing anything. Comminey, Goffney, and T.L. immediately fled on foot after the shooting.
An autopsy revealed gunpowder soot surrounding the bullet entry hole at the base of Soria's neck, indicating the fatal shot was fired within two inches. The bullet immediately struck the cervical spine, shattering the bone and destroying the spinal cord, resulting in immediate paralysis. The bullet fragmented into several pieces, perforating the heart and causing Soria to die within minutes. The autopsy also revealed a bruise to Soria's scalp above the left ear, consistent with being struck by a hard object like a gun. Police investigation at the scene of the crime revealed Soria had cash, but no weapon.
The prosecutor charged Comminey and Goffney with first degree murder, while T.L. pleaded guilty to voluntary manslaughter in juvenile court. A jury convicted Comminey of first degree murder, but failed to reach a verdict on the murder charge against Goffney. On retrial, the jury convicted Goffney on a first degree felony-murder theory with robbery as the underlying felony. The trial court sentenced Goffney to 25 years to life and Goffney now appeals.
The prosecutor actually tried Goffney three times for Soria's killing with the first two juries failing to reach a verdict before the third jury convicted Goffney.
II
DISCUSSION
A. The Trial Court Properly Applied the First Degree Felony-Murder Rule
Goffney contends the trial court erroneously instructed the jury on first degree felony murder based on robbery as the underlying felony. Specifically, in reliance on the Supreme Court's recent decision in People v. Chun (2009) 45 Cal.4th 1172 (Chun), Goffney contends robbery is an "'assaultive' felony" that merges with a killing committed during the robbery and therefore cannot serve as the basis for a first degree felony-murder conviction. (Id. at p. 1200.) To consider Goffney's challenge we must first examine the felony-murder rule and the limits the merger doctrine imposes on it. Ultimately, we reject Goffney's efforts to extend Chun's assaultive felony test for second degree felony murder to the first degree felony-murder rule.
1. The Felony-Murder Rule and the Merger Doctrine
Murder is the unlawful killing of a human being with either express or implied malice aforethought. (§§ 187, 188.) The felony-murder rule makes a killing that occurs during the commission of certain felonies murder "without the necessity of further examining the defendant's mental state." (Chun, supra, 45 Cal.4th at p. 1182.) "First degree felony murder is a killing during the course of a felony specified in section 189, such as rape, burglary, or robbery. Second degree felony murder is 'an unlawful killing in the course of the commission of a felony that is inherently dangerous to human life but is not included among the felonies enumerated in section 189 . . . .' [Citation.]" (Chun, at p. 1182.)
"'"The purpose of the felony-murder rule is to deter felons from killing negligently or accidentally by holding them strictly responsible for killings they commit." [Citation.] The Legislature has said in effect that this deterrent purpose outweighs the normal legislative policy of examining the individual state of mind of each person causing an unlawful killing to determine whether the killing was with or without malice, deliberate or accidental, and calibrating our treatment of the person accordingly. . . .' [Citation.]" (People v. Farley (2009) 46 Cal.4th 1053, 1121 (Farley).)
The merger doctrine developed as a limit on the second degree felony-murder rule to "ameliorate [the rule's] perceived harshness." (Chun, supra, 45 Cal.4th at pp. 1188-1189.) Under the merger doctrine, "the underlying felony must be an independent crime and not merely the killing itself. Thus, certain underlying felonies 'merge' with the homicide and cannot be used for purposes of felony murder." (Id. at p. 1189.)
The Supreme Court first adopted the merger doctrine in People v. Ireland (1969) 70 Cal.2d 522, which involved a defendant convicted of second degree murder for shooting and killing his wife. (Id. at p. 525.) The trial court instructed the jury on second degree felony murder relying on assault with a deadly weapon as the underlying felony. (Id. at p. 538.) The Supreme Court reversed, explaining: "[T]he utilization of the felony-murder rule in circumstances such as those before us extends the operation of that rule 'beyond any rational function that it is designed to serve.' [Citation.] To allow such use of the felony-murder rule would effectively preclude the jury from considering the issue of malice aforethought in all cases wherein homicide has been committed as a result of a felonious assault — a category which includes the great majority of all homicides. This kind of bootstrapping finds support neither in logic nor in law. We therefore hold that a second degree felony-murder instruction may not properly be given when it is based upon a felony which is an integral part of the homicide and which the evidence produced by the prosecution shows to be an offense included in fact within the offense charged." (Id. at pp. 539-540, original italics.)
The Supreme Court extended the merger doctrine to first degree felony murder in People v. Wilson (1969) 1 Cal.3d 431 (Wilson), overruled in Farley, supra, 46 Cal.4th at p. 1117. There, the jury convicted the defendant of first degree murder for killing his estranged wife after he broke into her apartment. (Wilson, at pp. 433, 438.) The trial court's instructions authorized the jury to convict the defendant of first degree murder if "he entered [his wife's] bathroom with an intent to commit an assault with a deadly weapon and thereby committed a burglary, in the course of which he killed his wife." (Id. at p. 439.)
In reversing the conviction, the Wilson court held "an instruction on first degree felony murder is improper when the underlying felony is burglary based upon an intention to assault the victim of the homicide with a deadly weapon." (Wilson, supra, 1 Cal.3d at p. 442.) The Wilson court explained "the prosecution sought to apply the felony-murder rule on the theory that the homicide occurred in the course of a burglary, but the only basis for finding a felonious entry is the intent to commit an assault with a deadly weapon. When, as here, the entry would be nonfelonious but for the intent to commit the assault, and the assault is an integral part of the homicide and is included in fact in the offense charged, utilization of the felony-murder rule extends that doctrine 'beyond any rational function that it is designed to serve.' . . . [Citation.]" (Id. at p. 440.)
The Supreme Court's jurisprudence regarding the merger doctrine as it applies to the second degree felony-murder rule became "muddled" and "problematic" as the court struggled to define which felonies merged with the killing — and thereby precluded application of the second degree felony-murder rule. (Chun, supra, 45 Cal.4th at pp. 1189, 1197.) In Chun, the Supreme Court reconsidered prior merger cases in an attempt to develop a uniform and consistent test for determining which felonies merge with the killing. The Chun court disapproved several earlier cases and announced the following standard: "When the underlying felony is assaultive in nature . . . we now conclude that the felony merges with the homicide and cannot be the basis of a felony-murder instruction. An 'assaultive' felony is one that involves a threat of immediate violent injury. [Citation.] In determining whether a crime merges, the court looks to its elements and not the facts of the case. Accordingly, if the elements of the crime have an assaultive aspect, the crime merges with the underlying homicide even if the elements also include conduct that is not assaultive." (Id. at p. 1200.) The Chun court, however, limited its decision to the second degree felony-murder rule only: "Because first degree felony murder is specifically proscribed by statute (§ 189), what we say about the second degree felony-murder rule does not necessarily apply to the first degree felony-murder rule." (Id. at p. 1189, fn. 6.)
Three months after its decision in Chun, the Supreme Court revisited the merger doctrine and its application to the first degree felony-murder rule. The Farley court explained the first degree felony-murder rule is a creation of statute because section 189 defines first degree murder to include a killing during the course of certain enumerated felonies, including robbery, burglary, and rape. (Farley, supra, 46 Cal.4th at p. 1117; see also Chun, supra, 45 Cal.4th at p. 1182.) The second degree felony-murder rule, on the other hand, is derived from common law because it "reflects a judicial interpretation of section 188's definition of implied malice." (Farley, at p. 1117; see also Chun, at p. 1183.) Specifically, it relies on case law to define a killing during the course of certain inherently dangerous felonies not identified in section 189 as second degree murder. (Farley, at p. 1117; see also Chun, at p. 1182.) Because the merger doctrine developed in the context of second degree felony murder, Farley concluded the merger doctrine also reflects a judicial interpretation of section 188's definition of implied malice. (Farley, at p. 1117.)
In pertinent part, section 189 provides as follows: "All murder . . . which is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under Section 206, 286, 288, 288a, or 289 is murder of the first degree."
Farley next considered "whether Wilson's application of the merger doctrine in the context of first degree felony murder is an appropriate 'interpretation' of section 189's definition of first degree murder." (Farley, supra, 46 Cal.4th at p. 1117.) Farley concluded it was not because "there is no need for interpretation of the Legislature's clear language" defining first degree murder to include a killing during the course of the enumerated felonies. (Id. at p. 1119.) As Farley explained, "courts may not expand the Legislature's definition of a crime [citation], nor may they narrow a clear and specific definition. . . . [¶] Because the power to define crimes lies exclusively with the Legislature, our decision in Wilson, supra, 1 Cal.3d 431, erred in narrowing the Legislature's clear and specific definition of first degree murder." (Farley, at p. 1119.)
Finally, the Farley court held its decision to overrule Wilson applied prospectively because ex post facto concerns prevent applying retroactively an unforeseeable judicial enlargement of a criminal statute. (Farley, supra, 46 Cal.4th at pp. 1121-1122.) In Wilson, the Supreme Court narrowed the first degree felony-murder rule by holding burglary based on an intent to assault with a deadly weapon could not support first degree felony murder. By overruling Wilson 40 years after it was decided, the Farley court unforeseeably enlarged section 189's definition of first degree murder by allowing burglary based on an intent to assault with a deadly weapon to support first degree felony murder.
Here, Comminey killed Soria before the Supreme Court issued its decision in Farley and therefore Goffney may rely on Wilson and its extension of the merger doctrine to first degree felony murder.
2. The Merger Doctrine Did Not Prevent Goffney's First Degree Felony-Murder Conviction
Goffney contends the merger doctrine prevented the trial court from instructing the jury on first degree felony murder with robbery as the underlying felony. Goffney does not cite any case holding robbery merges with a killing that occurs during the robbery. Rather, Goffney relies on the assaultive felony test Chun announced for determining which felonies merge and therefore cannot be used to apply the second degree felony-murder rule. In Goffney's view, "[i]t should be beyond dispute" that robbery is an assaultive felony because it is the taking of property from another through the use of force or fear; therefore, the merger doctrine requires us to overturn his first degree felony-murder conviction based on robbery.
We reject Goffney's request to extend Chun's assaultive felony test for the merger doctrine to first degree felony murder. As explained above, the merger doctrine reflects a judicial interpretation of section 188's definition of implied malice. It is a judicial effort to define which inherently dangerous felonies merge with the crime of murder when the killing occurs during the felony and therefore cannot be used to establish second degree felony murder. The merger doctrine is necessary in the context of the second degree felony-murder rule because no statute specifies or defines which felonies support second degree felony murder. In Chun, the Supreme Court announced the assaultive felony test to establish a uniform standard for determining which felonies merge to bar application of the second degree felony-murder rule. Chun expressly stated its discussion regarding the second degree felony-murder rule did not necessarily apply to the first degree felony-murder rule because "first degree felony murder is specifically proscribed by statute." (Chun, supra, 45 Cal.4th at p. 1189, fn. 6.) Goffney provides no reasoned explanation why we should extend Chun's assaultive felony test beyond its stated purpose in defining the limits of the second degree felony-murder rule.
Section 189 expressly defines first degree felony murder to include a killing occurring during the course of a robbery. To accept Goffney's argument — and hold that robbery is an assaultive felony that merges with a killing that occurs during the robbery — would require us to ignore section 189's plain language and read the word robbery entirely out of the statute. The separation of powers doctrine, however, prevents us from doing so because the power to define crimes lies exclusively with the Legislature and we cannot narrow a clear and specific definition of a crime. (Farley, supra, 46 Cal.4th at p. 1119.)
In refusing to apply the merger doctrine to robbery, we recognize Farley's disapproval of Wilson applied prospectively only. Our holding does not violate Farley's holding. Rather, we simply apply section 189's clear mandate that a killing occurring during a robbery is first degree murder. Farley held that its decision to overrule Wilson applied prospectively only because retroactively overruling Wilson would result in an unforeseeable judicial enlargement of a criminal statute. (Farley, supra, 46 Cal.4th at pp. 1121-1122.) Applying Farley's rationale to this case does not raise those same concerns because no statute or case law holds that the merger doctrine applies to robbery. Accordingly, our refusal to apply the merger doctrine to robbery, even to the extent it is based on some of the reasoning Farley employed, does not result in an unforeseeable judicial enlargement of a criminal statute.
Moreover, Wilson did not address whether the merger doctrine applies to robbery; it did not even address whether the merger doctrine applies to all burglaries. Instead, Wilson narrowly held that "an instruction on first degree felony murder is improper when the underlying felony is burglary based upon an intention to assault the victim of the homicide with a deadly weapon." (Wilson, supra, 1 Cal.3d at p. 442.) Wilson applied the merger doctrine to this subcategory of burglaries because the defendant lacked an independent felonious intent separate from the intent to commit assault with a deadly weapon and therefore, Wilson concluded, the burglary merged with the killing. (Id. at p. 440.)
In People v. Burton (1971) 6 Cal.3d 375 (Burton), overruled on other grounds in People v. Lessie (2010) 47 Cal.4th 1152, 1156, the Supreme Court distinguished Wilson and refused to further extend the merger doctrine to first degree felony murder based on robbery. Burton explained that a defendant who commits robbery has an independent felonious intent — that is, to acquire money or property belonging to another — and therefore robbery does not merge with a killing occurring during the robbery. (Burton, at pp. 387-388.)
Although Chun did not expressly overrule Burton, Goffney argues Burton is no longer good law based on Chun's analysis. Specifically, Goffney contends Chun's assaultive felony test necessarily supplants the independent felonious intent analysis Burton employed to hold the merger doctrine does not apply to robbery. If Goffney is correct, then Wilson — and its extension of the merger doctrine to the first degree felony-murder rule — also would no longer be good law regardless of Farley's decision to overrule Wilson. As explained above, Wilson extended the merger doctrine to first degree felony murder because the defendant in Wilson lacked an independent felonious intent separate from the intent to commit an assault with a deadly weapon. If the existence (or lack) of an independent felonious intent may no longer be considered after Chun, then the rationale Wilson employed to extend the merger doctrine to first degree felony murder no longer applies.
In short, Goffney provides no basis why we should extend the merger doctrine to exclude robbery from the first degree felony-murder rule. Section 189 clearly defines first degree murder to include a killing occurring during the commission of a robbery. Accordingly, we conclude the trial court properly instructed the jury on first degree felony murder with robbery as the underlying felony.
B. The Prosecutor Did Not Use Peremptory Strikes in a Discriminatory Manner
Goffney, who is African-American, asserts the prosecutor tainted jury selection and his trial in a manner repugnant to the state and federal Constitutions by using peremptory strikes to discriminate against African-American jurors. "'Exercising peremptory challenges because of group bias rather than for reasons specific to the challenged prospective juror violates both the California Constitution and the United States Constitution.'" (People v. Cleveland (2004) 32 Cal.4th 704, 732; see generally Batson v. Kentucky (1986) 476 U.S. 79, 88 (Batson); People v. Wheeler (1978) 22 Cal.3d 258, 278-282 (Wheeler).) Subject to rebuttal, the prosecutor is presumed to have acted properly, and the burden rests on the challenger to demonstrate discrimination infected the trial. (People v. Bonilla (2007) 41 Cal.4th 313, 341 (Bonilla).) To do so, a defendant must first "make out a prima facie case 'by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.' [Citation.] Second, once the defendant has made out a prima facie case, the 'burden shifts to the State to explain adequately the racial exclusion' by offering permissible race-neutral justifications for the strikes. [Citations.] Third, '[i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful . . . discrimination.' [Citation.]" (Johnson v. California (2005) 545 U.S. 162, 168, fn. omitted.)
When a trial court denies a Batson/Wheeler motion based on the challenger's failure to make a prima facie case of discrimination, we review the record to determine if substantial evidence supports the trial court's ruling. (People v. Yeoman (2003) 31 Cal.4th 93, 116.) If the record suggests reasonable grounds for the prosecutor's decision to strike the prospective jurors, we must affirm. (Ibid.)
Goffney concedes the jury sworn to hear his case included an African-American juror, but he argues the prosecutor's use of peremptory strikes against four other prospective jurors established the requisite prima facie case. We disagree. In asserting a prima facie case, the defendant must "make as complete a record as feasible" (People v. Boyette (2002) 29 Cal.4th 381, 422 (Boyette)), but Goffney provides no information about the size or composition of the prospective jury pool. Similarly, while he attacks the prosecutor's use of four of his first 11 peremptories against African-Americans, Goffney never identifies the total number of strikes the prosecutor used. It is the challenger's burden to establish a complete record showing bias. (Ibid.) We discern from the juror identification numbers (e.g., Juror No. 96) referenced by the parties that the jury pool approached or may have exceeded one hundred people, in which case the significance of any four particular strikes diminishes. Additionally, if the venire included numerous potential jurors of African-American descent, then the prosecutor's use of a peremptory strike would merely provide another opportunity for a person of the same background to serve, diminishing the likelihood a prohibited reason motivated the prosecutor's strikes. For example, the African-American who served as a juror may have entered the jury box to take the place of a prospective juror the prosecutor excused by exercising one of his peremptory strikes. In any event, the prosecutor did not excuse this juror with his remaining strikes, undermining an inference of bias against African-Americans.
Goffney focuses his argument on the four dismissed African-American prospective jurors and asserts the prosecutor acted with bias based on his view that "[e]ach of those jurors had qualities that would have made them good prosecution jurors." In other words, because each may have been "a perfect prosecution juror," only racism explains striking them. We are not persuaded. It is unremarkable that defense counsel and the prosecutor may have a different view of each juror's desirability as a panel member.
In any event, Goffney's claim of bias rests on the assumption the excluded jurors had nothing in common except race. (See Wheeler, supra, 22 Cal.3d at pp. 280-281 [use of peremptories against prospective jurors similar only in their race or group membership is among factors for court to evaluate].) The trial court, however, found it clear each of the four challenged jurors "had expressed repeatedly some difficulty and hesitation with the concept of the felony-murder rule at the very least." The trial court saw no hint of any discriminatory intent and, as the court phrased it, Goffney failed to establish a prima facie case "even at all." The court observed a consistent rationale and pattern in the prosecutor's strikes, not just those against the four contested jurors. Specifically, the prosecutor dismissed jurors regardless of their race because of difficulty "appreciating and understanding" various legal principles, including the felony-murder rule and, for example, that a defendant may face trial and harsh punishment though a coconspirator has received a plea bargain.
After the trial court ruled that Goffney failed to establish a prima facie case of Batson/Wheeler error, the court provided the prosecutor the option to state any reasons for exercising his peremptory strikes. The prosecutor confirmed his concern that each of the four contested jurors expressed reservations about the felony-murder rule. Given his case against Goffney rested on the felony-murder rule, the prosecutor explained he did not want to empanel jurors inclined against the law, which he recognized was "a hard concept for a lot of people to accept at all." The prosecutor addressed only two of the four contested jurors specifically, observing he spent a lot of time discussing the felony-murder rule with S.H. before S.H. voiced agreement with the law, which the prosecutor questioned. The prosecutor also noted palpable "hostility" from an excused female juror, S.R., in addition to some reservation on her part about the felony-murder rule. The prosecutor found through a law enforcement database that S.R. had not disclosed her involvement in a domestic violence proceeding, which, although she was the victim, may have been a source of hard feelings about the legal system. In any event, the trial court independently had made a note of this juror's hostile demeanor.
The record amply supports the trial court's Batson/Wheeler ruling. Each of the four excused jurors expressed significant reservations about the felony-murder rule. S.R. stated she would follow the law, but emphasized she did not feel it should apply to a youth involved in a violent offense on a playground if, for example, he or she did not know the perpetrator had a weapon. This scenario strongly resembled Goffney's expected defense, and therefore the prosecutor's decision to excuse her furnished no grounds for a prima facie case establishing bias. Similarly, another excused African-American juror, W.W., stated he would follow the law, but specified that if he were "king of California," he would not enforce the felony-murder rule; in particular, he believed it resulted in a "presumption of guilt." Such a view posed the potential for inner conflict or conflict with the other jurors in applying the presumption of innocence, and the prosecutor simply could choose to avoid this risk without creating any basis for a prima facie case of bias.
The prosecutor also dismissed two other African-American prospective jurors, C.K. and S.H., and each expressed even greater reservations about the felony-murder rule than S.R. and W.W. Indeed, in light of Goffney's concession the trial court "was accurate in noting [C.K.] had a problem with the concept of felony murder," we need not discuss this juror further. It suffices to note C.K. admitted he was "stuck on" a defendant not knowing his codefendant had a gun, and therefore would have a "hard time" with the felony-murder rule. The trial court found C.K. to be "extremely equivocal" about the felony-murder concept, putting up "a very significant show of resistance" to the rule. Notably, defense counsel did not raise any Batson/Wheeler concerns when the prosecutor exercised peremptory strikes against C.K., W.W., or S.R.
Counsel objected when the prosecutor excused S.H., but the record shows, as the trial court noted, that S.H. maintained a "very substantial reluctance" concerning the felony-murder rule during extensive voir dire. S.H.'s core difficulty with the felony-murder rule became apparent in his repeated invocation of "circumstances," which, of course, matter little under the rule in assessing a codefendant's personal intent and responsibility for murder in the course of committing a felony. S.H. continually insisted application of the rule "depends on what the circumstances are in my mind," noting he "would have to weigh out all the circumstances surrounding the actual facts" and observing he would "have to cross that bridge and see," according to the circumstances. S.H. could not bring himself to agree the rule would apply in the prosecutor's concrete hypotheticals demonstrating felony murder, explaining "we really don't know enough to create any sort of judgment at this point I don't think."
Pinpointing two or three other jurors who expressed some initial hesitancy about the felony-murder rule, Goffney claims the prosecutor's proffered explanation was pretextual. Goffney insists the jurors who remained on the panel were no different from C.K. and S.R. in eventually agreeing to follow the law. But the degree of difficulty in reaching that point distinguishes the four dismissed jurors, reasonably leaving the prosecutor with lingering concerns. Moreover, the purported comparison fails as a factual matter because each of the four excused jurors exhibited more than an initial hesitation, instead highlighting concrete objections to the rule that could become the basis for disagreement during deliberations. S.R. did not think the rule should apply in a scenario resembling the facts of the case, where a youth allegedly does not know his accomplice possesses a gun; C.K. similarly had a "hard time" with applying the rule to an accomplice in a getaway car; W.W. felt the rule created a "presumption of guilt"; and S.H. could not agree to clear examples of the rule's application, instead insisting on further development of the "circumstances."
Additionally, the excused jurors whom Goffney identifies as no different than sworn jurors presented grounds for strikes beyond the felony-murder rule, including S.R.'s open hostility in the courtroom and C.K.'s difficulty with circumstantial evidence. On the record presented, we cannot say the trial court erred in rejecting Goffney's Batson/Wheeler motion. "„We give great deference to the trial court in distinguishing bona fide reasons from sham excuses'" (Boyette, supra, 29 Cal.4th at p. 422), and nothing in the record suggests the trial court erred.
Finally, contrary to Goffney's approach, the fact the prosecutor explained his strikes "did not moot the question of whether defendant had established a prima facie showing." (Boyette, supra, 29 Cal.4th at p. 422.) Put another way, because Goffney failed to advance beyond the first step of the Batson/Wheeler inquiry, we need not evaluate the prosecutor's stated rationales for pretext or otherwise engage in a detailed comparative analysis of the jurors the prosecutor did not strike. (Bonilla, supra, 41 Cal.4th at p. 350; see People v. Taylor (2010) 48 Cal.4th 574, 616 ["invitation" for prosecutor to provide reasons does not "convert" a first-stage prima facie inquiry to a third-stage pretext analysis]; People v. Lenix (2008) 44 Cal.4th 602, 624 [comparative juror evidence should be raised in trial court so prosecutor can respond and trial court can evaluate similarities "based on what it has seen and heard"].) Consequently, Goffney's Batson/Wheeler challenge has no legal or factual support, and therefore fails.
C. The Trial Court Did Not Err In Refusing Goffney's Pinpoint Instruction on Grand Theft
Goffney contends the trial court erred by refusing to give the pinpoint jury instruction he requested regarding grand theft. Specifically, Goffney requested the trial court give the following instruction: "Grand Theft from a Person (Penal Code § 487(c)) is not considered an 'inherently dangerous felony' for purposes of the felony-murder rule. (Penal Code § 189; People v. Phillips (1966) 64 Cal.2d 574). [¶] A 'purse snatch' accomplished without means of force or fear is not a robbery. In order to qualify a 'purse snatch' as a robbery, you must determine that some measure of force or fear was used to accomplish the theft. 'However, it is established that something more is required than just that quantum of force which is necessary to accomplish the mere seizing of the property.' (People v. Morales (1975) 49 Cal.App.3d 134, 139)."
A pinpoint jury instruction is one that "relate[s] particular facts to a legal issue in the case or 'pinpoint[s]' the crux of a defendant's case . . . ." (People v. Saille (1991) 54 Cal.3d 1103, 1119.) "'[I]n appropriate circumstances' a trial court may be required to give a requested jury instruction that pinpoints a defense theory of the case . . . . [Citation.]" (People v. Bolden (2002) 29 Cal.4th 515, 558.) A trial court, however, "may properly refuse an instruction offered by the defendant if it incorrectly states the law, is argumentative, duplicative, or potentially confusing [citation], or if it is not supported by substantial evidence [citation]." (People v. Moon (2005) 37 Cal.4th 1, 30.)
Goffney argues he requested the foregoing instruction to explain the intent necessary for the jury to find him guilty of robbery and therefore first degree felony murder based on robbery. He contends the evidence supported the instruction because he and Comminey only discussed committing a purse snatch, not a robbery, and the felony-murder rule would not apply if he contemplated only a purse snatch without use of force or fear.
Goffney also contends that the trial court's refusal to give the requested instruction reduced the prosecutor's burden of proof, but he provides no explanation or authority to support that argument. Accordingly, we do not consider it. (See People v. Crittenden (1994) 9 Cal.4th 83, 153 ["Generally, we do not consider contentions unsupported by argument or authority"].)
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The trial court, however, properly refused to give this instruction because it failed to discuss Goffney's intent and the other instructions the trial court gave adequately instructed the jury regarding all elements necessary to convict Goffney of first degree felony murder based on robbery, which was the only underlying felony alleged. Moreover, the requested instruction included irrelevant statements of law, had the potential to confuse the jury, and lacked evidentiary support.
The instructions the trial court gave informed the jury that to find Goffney guilty of felony murder it must find he intended to commit a robbery or attempted robbery, or that he intended to aid and abet Comminey in committing a robbery or attempted robbery. (CALCRIM No. 540B.) The instructions further informed the jury regarding all elements the prosecution must establish to find Goffney or Comminey committed robbery or attempted robbery, or that Goffney aided and abetted Comminey in committing robbery or attempted robbery. (CALCRIM Nos. 460, 1600.) For example, the instructions clearly stated either Goffney or Comminey had to use force or fear in their attempt to take Soria's property. Goffney fails to explain why the instructions the trial court gave did not adequately explain the intent element Goffney sought to highlight through the requested instruction.
The requested instruction also would have confused the jury and introduced irrelevant legal principles. The instruction states grand theft is not an inherently dangerous felony under the felony-murder rule. Goffney, however, was not charged with grand theft and this instruction makes no attempt to define grand theft or explain its relevance to the case. Moreover, whether a felony is inherently dangerous is irrelevant to a first degree felony-murder charge because, as explained above, section 189 identifies which felonies can support first degree felony murder and therefore no inquiry regarding the charged felony's inherent dangerousness is necessary.
Finally, the evidence supported only an instruction on robbery. The undisputed evidence showed Comminey approached Soria with a gun, repeatedly demanded money, twice struck Soria with the gun when he failed to give Comminey the money, and then executed him. Goffney does not dispute this constituted a robbery or attempted robbery. Instructing the jury on other uncharged crimes not supported by the evidence posed the unnecessary risk of confusing the jury. The fact Goffney and Comminey only discussed committing a purse snatch, rather than a robbery, did not require the trial court to give the requested instruction. The trial court's refusal to give the requested instruction did not prevent Goffney from arguing his primary defense theory — that is, Comminey acted on his own and Goffney lacked the necessary intent to commit a robbery or to aid and abet Comminey in committing a robbery because Goffney only agreed and intended to commit a purse snatch. Indeed, Goffney's counsel argued to the jury that Goffney lacked the necessary intent to commit a robbery or to aid and abet in committing a robbery because he had no intent to use force or fear in taking the victim's property. We therefore conclude the trial court properly refused Goffney's pinpoint instruction. D. The Trial Court's Judgment and Abstract of Judgment Must be Modified to Accurately Reflect the Proper Fines and Sentence
Goffney argues the trial court's judgment and abstract of judgment must be corrected to accurately reflect the proper fines and sentence imposed by the trial court. The Attorney General concedes the errors described below and we accept those concessions.
First, the fines the trial court imposed against Goffney included a $60 "security fee" on each count. At the time the jury convicted Goffney, however, section 1465.8, subdivision (a)(1), limited this security fee to $20 per count. Accordingly, we modify the judgment to reflect the proper fine. (§ 1260.)
Second, the trial court imposed an indeterminate sentence against Goffney of 25 years to life with the possibility of parole and a parole revocation restitution fine the court stayed pending successful completion of parole. The abstract of judgment, however, erroneously states the trial court sentenced Goffney to life without the possibility of parole and fails to state the trial court stayed the parole revocation restitution fine. Accordingly, we direct the trial court to modify the abstract of judgment to reflect the proper sentence and the stay of the parole revocation restitution fine.
III
DISPOSITION
The judgment is modified to reduce the security fee imposed by the trial court to $20 per count (§ 1465.8, subd. (a)(1)). The trial court is directed to prepare a corrected abstract of judgment that accurately reflects (1) the amount of the security fee; (2) Goffney's sentence of 25 years to life is with the possibility of parole; and (3) the parole revocation restitution fine is stayed pending successful completion of parole. The trial court is further directed to forward a certified copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
ARONSON, J. WE CONCUR: MOORE, ACTING P. J. FYBEL, J.