Opinion
B162890.
11-12-2003
THE PEOPLE, Plaintiff and Respondent, v. SEAN MOTEN, Defendant and Appellant.
Susan Cardine, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, and Kenneth C. Byrne and Xiomara Costello, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION A jury convicted appellant Sean Moten of second degree robbery. Appellant raises two separate contentions on appeal. First, he contends the evidence is insufficient to support a finding of intent to commit robbery. Second, he asserts the trial court committed prejudicial error by failing to instruct the jury on assault as a lesser-related offense of robbery after the prosecution refused to agree to this instruction. We reject both of appellants contentions and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. Prosecutions Case-in-Chief
Terrance Braggs and his companions, Cheka Washington, Jahmal Washington, and "Eric" arrived at Bills Taco Stand at approximately 4:30 p.m. on November 16, 2001. Appellant and Tramell OBrien were standing in front of the restaurant. As Braggs, Cheka, and Jahmal entered the restaurant, Braggs heard loud talking and gang references coming from outside. Braggs looked outside to determine the source of the noise and saw appellant, Damien W., and OBrien walking. They were talking loudly. Damien W. entered the restaurant and quickly exited. He then said something to appellant and OBrien and motioned for them to go inside with him. The three entered the restaurant and immediately approached Braggs and his friends. Appellant asked them what "hood" they were from and whether they knew where they were. The restaurant is located within the Rolling 60s gang territory. Appellant made it known that he was affiliated with the Rolling 60s, a faction of the "Crips" gang, and said "fuck slobs." He questioned Jahmal about his hat and his choice of colors, apparently regarding his attire. Braggs smelled alcohol on appellants breath. As appellant focused his verbal tirade on Braggs and Jahmal, Damien W. walked around the group to Cheka, who was standing behind Braggs and Jahmal, and took Chekas wallet from him. Immediately after Damien W. took the wallet he looked at appellant. Appellant observed Damien W. with the wallet. Damien W. opened the wallet and took the money from it. Damien W. started walking toward the door. As Damien W. was walking away, appellant continued verbally harassing Braggs and the others, and motioned for Damien W. not to leave. According to Braggs, Damien W. "never completely left the store." Cheka walked outside. Damien W. bluntly refused Jahmals request to give back Chekas wallet. Before leaving, appellant confronted Braggs and Jahmal asking "Where are you from? Whats up with that red hat? As a matter of fact, take that shit off." He then grabbed the hat off of Jahmals head and threw it on the ground. Appellant, Damien W., and OBrien then engaged in a fight with Jahmal. Afterwards, appellant, Damien W., and OBrien left the scene together.
"Slob" is a negative term for a member of the "Blood" gang.
B. Defense Case
Appellant did not testify at trial. Damien W. testified that he was a member of the Rolling 60s gang along with appellant. Damien W. saw an enemy from the Black Pea Stones, a faction of the rival "Blood" gang. According to Damien W., he and his enemy yelled their "hood[s]" at each other, "got into it," and he took Chekas wallet. He denied taking any money from the wallet. While he and appellant spent the hour before the robbery together, Damien W. decided not to steal the wallet until the verbal altercation began while they were both inside the restaurant. Damien W. denied telling appellant that he was going to take the wallet.
C. The Charges and the Trial
Appellant was charged with second degree robbery. (Pen. Code, § 211.) He was also charged with committing the robbery for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further, and assist in criminal conduct by gang members. (§ 186.22, subd. (b)(1).) The amended information further alleged that appellant had a prior robbery conviction for the purposes of the two strikes provision of the "Three Strikes" law. (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i).) Finally it was alleged that appellant served a prior prison term (§ 667.5, subd. (b)), and had a prior serious felony conviction (§ 667, subd. (a)(1)). Appellant was not charged with assault.
Appellant pleaded not guilty. He was tried by a jury for second degree robbery on an aiding and abetting theory. The jury convicted him of second degree robbery, but found the gang association allegation was untrue. The court sentenced defendant to a total of eleven years in prison, including six years for the robbery conviction (the midterm of three years doubled by the strike) and five years for the prior serious felony. It struck the prior prison term enhancement.
D. The Jury Instructions
Appellant asked for a simple assault instruction. The trial court ruled as follows:
"Under cases such as People versus Wright, W-R-I-G-H-T, 52 Cal.App.4th 203, assault is not a necessarily-included offense to the charge of robbery. Because of the elements and allegations, a robbery could be accomplished without an assault. [¶] So I conclude its a lesser-related offense. And the People have stated their objection to a charge on that crime. [¶] I have made it clear to defense counsel that theyre free to argue that the only thing involved here was an assault and to point out that assault is not charged. But I dont feel any obligation to include that as a defense in this case, over the peoples objection."
Thus, while the court instructed on second degree robbery, and grand theft, it did not give an instruction on assault.
CALJIC No. 9.40 ("Robbery").
CALJIC No. 14.02 ("Theft by Larceny-Defined").
Appellant appeals the conviction. He contends that there was insufficient evidence that he had the requisite specific intent for robbery. He also asserts the trial court erroneously failed to instruct the jury on simple assault.
DISCUSSION
I.
Sufficiency of Evidence to Establish Aiding and Abetting
Appellant contends the evidence was insufficient to demonstrate he knew of Damien W.s purpose and shared his intent to rob Cheka. We disagree.
The issue of whether a person aided and abetted is ordinarily a question of fact. (In re Lynette G. (1976) 54 Cal.App.3d 1087, 1094.) "Consequently, `"all intendments are in favor of the judgment and a verdict will not be set aside unless the record clearly shows that upon no hypothesis whatsoever is there sufficient substantial evidence to support it." [Citation.]" (Ibid.)
The prosecution theorized defendant aided and abetted Damien W. with the commission of the robbery. Robbery is defined as the "felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (& sect; 211.) A person aids and abets in the commission of a crime when he "`aids, promotes, encourages or instigates by act or advice the commission of [the] crime" with knowledge of the unlawful purpose of the perpetrator and with the intent or purpose of committing or encouraging or facilitating the commission of the crime. (People v. Beeman (1984) 35 Cal.3d 547, 560-561.)
Direct evidence of the accuseds mental state "is rarely available except through his or her testimony." (Id. at p. 558.) "The trier of fact is and must be free to disbelieve the testimony and to infer that the truth is otherwise when such an inference is supported by circumstantial evidence regarding the actions of the accused." (Id. at pp. 558-559.) Although presence at the crime scene is insufficient by itself to establish aiding and abetting, it is one factor which may be considered along with "`companionship[] and conduct before and after the offense." (People v. Campbell (1994) 25 Cal.App.4th 402, 409, quoting In re Lynette G., supra, 54 Cal.App.3d at p. 1094.)
"It is legally and logically impossible to both form the requisite intent and in fact aid, promote, encourage, or facilitate commission of a crime after the commission of that crime has ended." (People v. Cooper (1991) 53 Cal.3d 1158, 1164, citing People v. Beeman, supra, 35 Cal.3d at p. 558.) Accordingly, if a person actually aides, promotes, encourages or instigates the commission of a crime, he must form the requisite intent to give such aid before or during the commission of the crime. (People v. Cooper, supra, 53 Cal.3d at p. 1164.) For the "purposes of determining aider and abettor liability," the commission of a robbery continues until the loot has been carried away to a place of temporary safety. (Id. at pp. 1161, 1164-1165, 1169-1170.) The crime scene is not a temporary place of safety if the victim is still at the scene. (People v. Flynn (2000) 77 Cal.App.4th 766, 772.) Thus, in order to be held liable as an aider and abettor the requisite intent must be formed before or while the loot is carried away from the crime scene.
There is substantial evidence to support the jurys verdict, including its finding of the requisite intent. Regardless of whether appellant was aware of Damien W.s intent to rob Cheka before Damien W. took the wallet, based upon appellants and Damien W.s actions during the robbery, appellant certainly formed the requisite intent to provide assistance before the robbery was over, or before the wallet was carried away to a place of temporary safety. Robbery is accomplished by means of force or fear. (§ 211.) The requisite fear includes not only threat of unlawful injury to the victim, but to anyone accompanying the victim during the robbery. (& sect; 212.) Thus, while appellant focused on verbally berating Chekas comrades, Jahmal and Braggs, appellants actions made it much easier for Damien W. to rob Cheka. Appellant saw Damien W. with Chekas wallet. Appellant continued with the verbal tirade against Jahmal and Braggs, allowing Damien W. to move toward the exit with Chekas wallet. At the same time, he intimidated the victims by grabbing Jahmals hat and throwing it on the ground. Appellant participated in a fight with Jahmal and Braggs after Damien W. refused to give back Chekas wallet. Each of appellants actions facilitated and encouraged the commission of the robbery. Appellant clearly had formed the requisite intent of aiding and abetting the robbery while it was still in progress. As such, there is sufficient evidence to support the judgment.
II.
The Courts Refusal to Instruct on Simple Assault
Appellant contends reversal is compelled based on the trial courts refusal to instruct on the defense theory that he was guilty, at most, of assault. According to appellant, an assault instruction is warranted because the robbery was over once Damien W. took Chekas wallet and turned his back to the crowd as he walked toward the door. Anything occurring afterwards was an assault, which he concedes is a lesser-related offense to robbery. We find no error in the courts refusal to instruct on assault.
The law does not require jury instructions on lesser-related offenses. In Hopkins v. Reeves (1998) 524 U.S. 88, 96-98, the United States Supreme Court held that a state trial court in a capital case is not constitutionally required to instruct a jury on offenses that are not lesser-included offenses of the charged crime. The California Supreme Court addressed this issue in People v. Birks (1998) 19 Cal.4th 108. The Birks court found that, where the prosecution objects, no requirement to instruct on lesser-related offenses arises under the California Constitution. (Id. at pp. 135-137.)
Appellant contends the jury should have been instructed on the lesser-related offense of assault so that it would know that if he only committed assault, he should be acquitted of robbery. Either the prosecution did or did not meet its burden of proving appellant was guilty of robbery. If it failed to do so, regardless of whether appellant committed assault or any other lesser-related offense, appellant should be acquitted. The jury was fully and fairly instructed on all of the elements of robbery. An instruction on assault would be confusing, particularly since assault was not the prosecutions theory. In People v. Bolden (2002) 29 Cal.4th 515, 559, the Supreme Court acknowledged that "the jury received accurate and complete instructions on the prosecutions burden of proof and on the elements of robbery." The Bolden court also concluded that "the point of the requested instruction was readily apparent from the instructions given, and nothing in the particular circumstances of this case suggested a need for additional clarification." (Ibid.) Similarly, here, there is no need for additional clarification. We find that the trial courts refusal to instruct the jury on assault was correct.
In any event, during closing argument appellants attorney was permitted to argue that appellant was guilty of only assault and not robbery. Accordingly, appellants right to present a defense was not violated here.
Appellants reliance on Delaney v. Superior Court (1990) 50 Cal.3d 785, 809, is misplaced. The Delaney court merely found that instructions on lesser-included and lesser-related offenses may pertain to a defendants right to a fair trial. Appellant also cites People v. Lyon (1996) 49 Cal.App.4th 1521, 1526. Lyon is irrelevant. At issue in that case was whether shifting a victims cost of opposing a discovery motion to the defendant may result in an undue burden on counsels efforts and obligation to provide effective assistance.
DISPOSITION
The judgment is affirmed.
We concur: HASTINGS, J. CURRY, J.