Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. TA087610, William R. Chidsey, Judge. Affirmed in part; modified in part.
Matthew Alger, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
ARMSTRONG, Acting P. J.
Appellant Adam Loza was convicted, following a jury trial, of two counts of murder in violation of Penal Code section 187 and two counts of attempted murder in violation of sections 664 and 211. The jury found true the special circumstances allegations that the murders were committed while appellant was engaged in the attempted commission of a robbery or burglary within the meaning of section 109.2, subdivision (a)(17) and that appellant committed multiple murders within the meaning of section 190.2, subdivision (a)(3). The jury found true the allegations that a principal was armed in the commission of the offenses within the meaning of section 12022, subdivision (a)(1). The trial court sentenced appellant to consecutive terms of life in prison without the possibility of parole, plus a determinate term of 13 years and 4 months.
All further statutory references are to the Penal Code unless otherwise indicated.
Appellant appeals from the judgment of conviction, contending that the trial court erred in permitting the jury to convict him of felony-murder based on a burglary and that the evidence is insufficient to support the robbery/burglary special circumstance finding. Appellant also contends that his sentence of life without the possibility of parole constitutes cruel and unusual punishment. Appellant further contends, and respondent agrees, that the multiple murder special circumstance finding must be stricken and the sentences and enhancements for the attempted robbery convictions must be corrected. We correct the sentences for his attempted robbery convictions and strike the multiple murder special circumstance findings, as set forth in the disposition. We affirm the judgment of conviction in all other respects.
Facts
During the early morning hours of November 4, 2006, appellant was riding around in a red Ford Explorer driven by co-defendant Julio Perez. Co-defendant Eric Sanford, Gilbert Rivera, Christopher Perez ("Christopher") and Sara Graeff were passengers. Christopher is Julio Perez's brother. He was dating Graeff at the time. They had been drinking beer.
Perez was charged with appellant and Sanford, but successfully moved to sever his trial from theirs.
At some point, Perez saw co-defendant Sanford and stopped the car. Sanford came up to the Explorer and said, "I just shot someone in the head. Let me in the car. Let me in the car." The occupants of the Explorer thought Perez was kidding. Sanford got into the Explorer. At some point, he put the gun in the back of the Explorer.
Appellant and Sanford were tried together with separate juries. Sanford's jury could not reach a verdict. He was later retried with Perez.
There was a discussion about stealing some beer. Sanford stated: "Let's go get some beer, I'm down, I'm down." Appellant stated that he would hold the door for Sanford.
About 4:00 a.m., Perez drove to a Mobil service station located at 22240 Avalon Boulevard in Carson (hereafter "Mobil"). The Mobil was open 24 hours a day and consisted of a gas station, automotive repair garage, and a Mobil mini convenience store. The Mobil sold beer, but the beer coolers were locked from 2:00 a.m. to 6:00 a.m. At 4:05 a.m., appellant Perez purchased five dollars worth of gasoline. At 4:07 a.m., appellant Perez pumped the gasoline. He then drove the Explorer to the side of the Mobil.
Appellant, Perez and Sanford got out of the Explorer. Perez gave a sweater to appellant, who put it around his head. Graeff told police that appellant gave the gun to Sanford. Appellant and Sanford walked towards the Mobil. Perez stayed behind inside the Explorer. About three minutes later, Sanford and Loza ran back and got inside the Explorer. Perez drove away. Appellant was hysterical and yelling, "You just shot them. You just shot them. You just shot them. I can't believe you just shot them." Someone said to Sanford: "You shot them? Did you really shoot them?" Sanford stated, "I counted down, and I told them to give me their money, and they didn't – they didn't give it to me fast enough, so I shot them."
At 5:00 a.m., Ronald Hasty, the owner of the Mobil, went to the Mobil. There, he found the front door unlocked. Hasty looked for his two employees, Eduardo Roco and Ester Ortiega, who had been working the overnight shift. Roco had been working at the Mobil for a "few years, " and primarily worked the overnight shift. Ortiega had been working at the Mobil for a couple of weeks and was being trained by Roco.
Hasty did not see Roco and Ortiega. The window of the bullet proof glass booth was open about 24 to 30 inches. The cash register was inside this booth. Hasty walked to the clear bullet proof glass door of the booth and saw Roco and Ortiega lying dead on the floor. Hasty called 911.
Los Angeles County Deputy Sherriff Tanya Brown responded to the call. Deputy Brown observed that the Mobil's cash register was enclosed in a bullet proof glass booth, but the window to the booth was open. Behind the cash register, Roco and Ortiega were lying, dead. On the counter, there were three "Slim Jims" and a pack of "Apple Sour Candies."
Roco had suffered a rapidly fatal gunshot wound to the chest with an exit wound in his back. Ortiega had suffered a rapidly fatal gunshot wound to her upper left back with the bullet in the right side of her chest.
Fingerprints were taken from the Slim Jims and Sour Apple gummy candies. Five latent prints were found on the Slim Jims. Sanford's left middle fingerprint matched a print found on one of the Slim Jims.
On November 11, 2006, appellant was interviewed by Los Angeles County Sheriff's Detective Dan McElderry and Sergeant Ken Perry. Appellant stated that when Sanford first got into the Explorer, he showed them a revolver. Perez told Sanford to put the gun in the back of the Explorer and he complied. At the Mobil station, after Perez purchased gas, appellant suggested that they do a beer run. Sanford stated: "You gonna buy a beer, man you might as well just go in and rob them." Appellant agreed to hold the door open for Sanford.
Appellant said that he "always comes over here to this gas station" and that the clerk knew him and his family. Perez told appellant to take his shirt. Appellant used this shirt to cover his head. Sanford said to appellant: "I'm going in there, you just hold the door." Appellant waited outside the Mobil for about one minute, then went inside. He saw Sanford walk up to the register and say: "Give me the money." The male clerk said: "[T]here's no money. There's a drop safe." Sanford said: "Man, you got five seconds." The male clerk said: "Shoot me." Appellant heard "two soft little pops." Sanford said: "Let's get out of here. Let's get out of here." They ran back to the Explorer and got inside. The Explorer drove off.
Sanford testified in his own defense at trial. He went into the Mobil to buy something to eat. He did not have a gun. As he was walking toward the Mobil, he asked the occupants of the Explorer whether they wanted anything. He saw Perez hand appellant a shirt. While Sanford was in the Mobil buying food, appellant came in the store and ordered the clerks to give him money out of the cash register. When the clerk stated that the money was in the drop safe, appellant shot both clerks.
Appellant testified on his own behalf at trial. He stated that Sanford had a gun when he got into the car. Appellant did not want to do a beer run, but agreed to hold the door for Sanford. He put his shirt over his head because he knew the male clerk. He did not see anyone with a gun. He did not know that Sanford was armed. He believed that Sanford was going to do a beer run, but Sanford instead brought candy to the counter. Sanford leaned on the counter and said: "Give me the money." The male clerk replied: "There's no money." Sanford said: "I ain't playing. You got five seconds." Appellant ran back toward the Explorer. As he was running, he heard two "pops."
Discussion
1. Felony murder
Appellant contends the trial court erred in instructing the jury that under the felony-murder rule, he could be guilty of first degree murder based upon his participation in a burglary where someone was killed. He contends that the "beer run" planned in this case is not an inherently dangerous felony and the Legislature could not have intended that such an inherently non-dangerous felony be the basis for a murder conviction. He further contends that this instruction violated his federal constitutional right to due process. We see no error.
The felony-murder rule is set forth in section 189 and provides in pertinent part that all murder "committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, " and other specified crimes is first degree murder.
As the California Supreme Court has explained: "We find no ambiguity in the language of section 189. It provides that a killing committed in the perpetration of or attempt to perpetrate the enumerated felonies, including burglary, is first degree murder. Burglary has been a delineated felony supporting first degree felony murder since section 189 was enacted in 1872, and indeed since the crime of murder was divided into first and second degree in 1856. (Stats. 1856, ch. 139, § 21, p. 219; see Chun [(2009)] 45 Cal.4th [1172] at p. 1185, 91 Cal.Rptr.3d 106, 203 P.3d 425.) In enacting section 189, the Legislature did not limit the definition of burglary, or exclude burglaries based upon [the underlying intended felony]. Rather, section 189 applies the felony-murder rule to all burglaries." (People v. Farley (2009) 46 Cal.4th 1053, 1118-1119, fn. omitted.)
The Court emphasized that although it is the duty of the Court to ascertain legislative intent, "[i]n the context of first degree felony murder, however, there is no need for interpretation of the Legislature's clear language.... [T]here is no room for interpretation when the Legislature has defined first degree felony murder to include any killing 'committed in the perpetration of, or attempt to perpetrate, ... burglary.' (§ 189.)" (People v. Farley, supra, 46 Cal.4th at p. 1119.)
The "beer run" planned in this case involved grabbing beer and running out of the store without paying for it. There is no question that it would be a burglary. Both the language of section 189 and of the Supreme Court in Farley make it clear that section 189 applies the felony-murder rule to all burglaries. The trial court correctly instructed the jury on this issue.
Appellant also contends that this erroneous instruction violated his federal constitutional right to due process by relieving the prosecution of the burden of proving each element of the charged offense beyond a reasonable doubt. Since the instruction was correct, there was no violation of appellant's right to due process.
Further, even if the trial court had erred, any error would be harmless. The jury found that appellant's acts in the store amounted to attempted robbery. Thus, their first degree murder verdict was based on that felony.
2. Sufficiency of the evidence – robbery/burglary special circumstance
Appellant contends that there is insufficient evidence that he acted with either an intent to kill or reckless indifference to human life, and therefore insufficient evidence to support the jury's finding the murders were committed while he was engaged in the commission of attempted robbery or burglary within the meaning of section 190.2 subdivision (a)(17). He contends that the true finding violates his right to due process.
The prosecution's theory was that appellant was an aider and abettor, not the actual killer. In order for appellant to be guilty of the robbery/burglary special circumstance as an aider and abettor, he must have acted with the intent to kill or with reckless indifference to human life while acting as a major participant in the underlying attempted robbery/burglary. (§ 190.2, subds. (c)-(d).) A reckless indifference to human life is "a subjective appreciation or knowledge by the defendant of a grave risk of death...." (People v. Estrada (1995) 11 Cal.4th 568, 578.)
In reviewing the sufficiency of the evidence, "courts apply the substantial evidence test. Under this standard, the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence - that is, evidence which is reasonable, credible, and of solid value - such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Cuevas (1995) 12 Cal.4th 252, 260-261, internal quotation marks and citations omitted.)
The standard of review is the same when the prosecution relies on circumstantial evidence to prove guilt. (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) "If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment." (People v. Thomas (1992) 2 Cal.4th 489, 514, internal quotations omitted, citing People v. Bean (1988) 46 Cal.3d 919, 932-933.)
The testimony of a single witness is sufficient to sustain a conviction unless the testimony is physically impossible or inherently improbable. (People v. Scott (1978) 21 Cal.3d 284, 296.) "Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]" (People v. Maury (2003) 30 Cal.4th 342, 403.)
Here, appellant contends that if he aided and abetted the robbery attempt at all, he did so in "a nonviolent, almost passive way." Appellant contends that evidence at most shows that he knew that Sanford possessed a gun when he entered the minimart and had expressed a desire to rob the clerks. He contends that the evidence showed that his only participation in the robbery was to hold the door open for Sanford when he realized that Sanford had pulled out the gun and demanded money from the clerks. He concludes that this is insufficient evidence to show an intent to kill or reckless indifference to human life.
There was evidence that when Sanford first got into the Explorer, he said that he had just shot someone in the head. He was carrying a gun. The gun was placed in a compartment in the Explorer while the group was driving around. Graeff told police that appellant gave Sanford the gun before the two men went into the minimart. Appellant told police that he proposed a beer run to the group, but that Sanford replied that if they were going to do a beer run, they "might as well just go in and rob them." After Sanford made that remark, appellant agreed to hold the door open.
Graeff testified that she believed that Sanford was kidding and that everyone else did too. The jury was not required to accept Graeff's statement about not believing Sanford.
Thus, viewing the evidence in the light most favorable to the judgment, appellant agreed to assist a robbery by an armed man who had recently claimed to have shot someone in the head. This is more than sufficient evidence to support an inference that appellant had a subjective appreciation of the grave risk of death in the robbery.
Since we have determined that "a rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt, the due process clause of the United States Constitution is satisfied [citation], as is the due process clause of article I, section 15, of the California Constitution." (People v. Osband (1996) 13 Cal.4th 622, 690.)
3. Multiple murder special circumstance
Appellant contends, and respondent agrees, that the trial court's instructions to the jury on the multiple murder special circumstance allegation was erroneous, and that this error requires reversal. We agree as well.
A defendant's conviction in the same proceeding of more than one murder is a special circumstance that makes the punishment for first degree murder either death or life without the possibility of parole. (§ 190.2, subd. (a)(3).) When the defendant is an aider and abettor, the multiple murder special circumstance is applicable only if the defendant had the intent to kill. (§ 190.2, subd. (c); People v. Jones (2003) 30 Cal.4th 1084, 1117; People v. Anderson (1987) 43 Cal.3d 1104, 1149-1150.) The aider and abettor must "intentionally aid in a killing[, ]" not merely aid and abet some other crime in which a killing occurs. (People v. Anderson, supra, 43 Cal.3d 1104, 1145.)
Here the trial court instructed the jury: "If you decide that the defendant is guilty of first degree murder but was not the actual killer then, when you consider the special circumstances of multiple murders or murder during the commission of a robbery or burglary you must also decide whether defendant acted either with intent to kill or with reckless indifference to human life." This was incorrect, and allowed the jury to find the multiple murder special circumstance allegations true without finding that appellant intended to kill the victim. (See People v. Jones, supra, 30 Cal.4th at p. 1117; People v. Anderson, supra, 43 Cal.3d at pp. 1149-1150.)
A failure to instruct on the intent element for an aider and abettor is reviewed to determine whether beyond a reasonable doubt the error did not contribute to the verdict. (People v. Jones, supra, 30 Cal.4th at p. 1119.)
The error does not appear to be harmless. The prosecution's theory of the case was that appellant was an aider and abettor to the robbery and that Sanford was the shooter. All of the evidence except Sanford's own testimony supported the prosecution's theory. The jury was not instructed on premeditated murder and there is nothing in the verdicts or findings to indicate that the jury found that Loza had an intent to kill. A murder conviction under the felony-murder doctrine or as an aider and abettor under the natural and probable consequences doctrine does not require an intent to kill. It is not clear beyond a reasonable doubt that Loza had an intent to kill, and the evidence is not particularly strong on that point. Accordingly, the error does not appear harmless. (See People v. Williams (1997) 16 Cal.4th 635, 689-691 [error in failing to instruct jury on intent to kill with regard to the special circumstances allegation was prejudicial when the manner of the killing did not reveal an intent to kill and the jury was instructed on the theory the defendant was guilty as an aider and abettor under the natural and probable consequences doctrine].) The special circumstance findings are ordered stricken.
4. Double findings
Appellant points out that the jury erroneously made two multiple-murder special circumstance findings. Respondent agrees. We agree as well. (See People v. Anderson, supra, 43 Cal.3d at p. 1150 [no matter how many murder charges are tried together, they only constitute one multiple murder special circumstance].) For this reason and the reason set forth in section 3, supra, both multiple-murder special circumstance findings are stricken.
5. Counts 3 and 4 sentences for attempted robbery
Appellant contends that the four-year enhancement pursuant to section 12022, subdivision (a)(1) is not authorized and that the count 4 determinate term is a subordinate term and must be reduced to reflect that fact. Respondent agrees. We agree as well.
Section 12022, subdivision (a)(1) provides only for a one-year term. Thus, the trial court's four-year term was not authorized. It must be corrected.
The trial court imposed the middle term of two years for both of the counts. Only one of those counts could be the base determinate term and subject to a full two year term. The remaining count is the subordinate term. (Pen. Code, § 1170.1; People v. Neely (2009) 176 Cal.App.4th 787, 797-798; see People v. Garza (2003) 107 Cal.App.4th 1081, 1094 [when defendant is sentenced to both a determinate term and an indeterminate term, the terms are to be considered and calculated independently of each other].) The trial court did not select a count for the base term. Since the terms for both counts are equal, we will designate count 3 as the base term. Count 4 is thus the subordinate term and must be corrected to a sentence of eight months, which is one-third the mid-term for that count. Similarly, the correct subordinate term for the section 12022, subdivision (a)(1) enhancement is four months, which is one-third the term for that section.
6. Section 654
Appellant contends that his sentence for the two attempted robberies should have been stayed pursuant to section 654. Respondent agrees. We agree as well.
Section 654 bars separate punishment for multiple statutory violations arising out of a single indivisible course of action. Thus, when a defendant is convicted of both robbery and felony murder, and the felony underlying the murder is robbery, he can be sentenced only for one offense. Since murder carries the longest term, the defendant should be sentenced for that crime. (See People v. Meredith (1981) 29 Cal.3d 682, 695-696; People v. Bracamonte (2003) 106 Cal.App.4th 704, 708-709, disapproved on other grounds by People v. Gonzalez (2008) 43 Cal.4th 1118.) Section 654 requires that the sentences on the attempted robbery convictions be stayed. (People v. Boyd (1990) 222 Cal.App.3d 541, 576; People v. Magee (1963) 217 Cal.App.2d 443, 471; see also People v. Wader (1993) 5 Cal.4th 610, 670.)
7. Cruel and unusual punishment
Appellant contends that his sentence of life in prison without the possibility of parole constitutes cruel and unusual punishment under the California and federal constitutions because he was not the shooter and the originally planned crime was only a "beer run." We do not agree.
A sentence violates the California constitution's ban on cruel and unusual punishment if "it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity." (People v. Dillon (1983) 34 Cal.3d 441, 478.) Dillon is based on In re Lynch (1972) 8 Cal.3d 410. The Lynch Court established three techniques to administer this rule. First, courts should examine the nature of the offense and/or the offender. (Id. at p. 425.) Second, courts should compare the punishment with the penalty for more serious crimes in the same jurisdiction. (Id. at p. 426.) Third, courts should compare the punishment to the penalty for the same offense in different jurisdictions. (Id. at p. 427.)
Considering the last two factors of Lynch first, there is nothing disproportionate about appellant's sentence of life in prison without the possibility of parole for two counts of felony-murder. A sentence of death for participation in felony-murder has been found not to violate the Eighth Amendment. (Tison v. Arizona (1987) 481 U.S. 137, 158 [107 S.Ct. 1676, 95 L.Ed.2d 127] [the Eighth Amendment does not prohibit the death penalty as disproportionate in the case of a defendant whose participation in a felony that resulted in murder is major and whose mental state is one of reckless indifference to human life]; People v. Pollock (2004) 32 Cal.4th 1153, 1195 ["This court has consistently rejected the claim that the statutory special circumstances, including the felony-murder special circumstance, do not adequately narrow the class of persons subject to the death penalty"].)
The Court in Dillon relied heavily on the first factor in Lynch, the nature of the offender and the offense. The facts of Dillon do not assist appellant. Dillon was an unusually immature 17-year-old with no prior criminal background. Dillon and some friends decided to steal some marijuana from a nearby farm. They were hiding when approached by an armed guard. Dillon fired his shotgun nine times and killed the guard. Dillon was convicted of first degree felony-murder and eventually sentenced to life in prison with the possibility of parole. None of his friends were convicted of any degree of homicide. (People v. Dillon, supra, 34 Cal.3d at pp. 451-452, 488.) The majority of the Court held Dillon's sentence of life in prison for first degree murder violated the California Constitution, and reduced the conviction to second degree murder. (Id. at p. 489.)
Appellant was not an unusually immature youth at the time of the crime, but was a 23-year-old man. He had a criminal history both as an adult and as a juvenile. He appears to have committed fairly minor crimes, such as vandalism and driving without a license, but to have persisted in his life of petty crime. Appellant's two co-participants in this crime were convicted of homicide and given sentences comparable to appellant's sentence. Perez and Sanford were sentenced to 50 years to life in state prison. Thus, we cannot conclude that appellant's sentence constitutes cruel and unusual punishment.
Disposition
The true findings on the multiple murder special circumstance allegations are ordered stricken. Appellant's sentence for the count 4 attempted robbery conviction is corrected to eight months for the conviction and four months for the section 12022, subdivision (a)(1) enhancement. Sentence on the counts 3 and 4 convictions is ordered stayed pursuant to section 654. The clerk of the superior court is instructed to prepare an amended abstract of judgment reflecting these changes and to deliver a copy to the Department of Corrections and Rehabilitation. The judgment of conviction is affirmed in all other respects.
We concur: MOSK, J., KRIEGLER, J.