Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. MA026468, Thomas I. McKnew, Jr., Judge.
Marilyn G. Burkhardt, 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, Assistant Attorney General, Michael R. Johnsen and Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.
SUZUKAWA, J.
The jury convicted defendant Richard Alan Stephens of first degree murder. (Pen. Code, § 187, subd. (a).) It also found that the murder was committed during the course of a robbery or attempted robbery, and that defendant personally had discharged a firearm, resulting in great bodily injury and death. (§§ 190.2, subd. (a)(17), 12022.53, subds. (b)-(d).) On appeal, defendant contends that the evidence failed to establish that he had formed the intent to commit robbery either before or during the killing, and that the trial court erroneously responded to a jury question regarding the robbery element of felony murder. We reject the contentions. Although not raised by the parties, the court erred when it imposed sentence. We will direct the trial court to correct the abstract of judgment. As modified, we affirm the judgment.
All further undesignated statutory references are to the Penal Code.
BACKGROUND
The victim, James Anderson, was shot and killed in his garage in Quartz Hill either late Saturday night or early Sunday morning on the weekend of February 22 and 23, 2003. Michael MacFarlane, an acquaintance of both defendant and Anderson, testified as the prosecution’s eyewitness to the shooting. Defendant, who testified in his own defense, claimed that he was asleep at a friend’s house during the shooting.
I. The Prosecution’s Evidence
During the weekend of February 22 and 23, defendant, his girlfriend Alicia, and their daughter were houseguests at the Quartz Hill home of Violet Cheatham. On the evening of February 22, defendant, MacFarlane, Anderson, and several others had gathered at Cheatham’s home and were smoking marijuana and crystal methamphetamine. Defendant had previously worked for Anderson, a contractor, and had sold Anderson a pair of Marantz speakers for $100. That evening, defendant was trying to renegotiate the price, claiming that the speakers were worth more than $100, but Anderson was unwilling to pay more because the speakers were damaged when he bought them. Their discussion was not violent, but became sufficiently loud and angry that one of the persons present, William Batson, told defendant to calm down. Batson also changed the subject by asking Anderson if he had any marijuana to sell. Anderson replied that he had some to sell at home, and invited defendant to go home with him to continue their discussion. Batson gave defendant $50 to buy some marijuana and asked him to bring it back to Cheatham’s house. Defendant agreed and drove with MacFarlane to Anderson’s house. After making the purchase, defendant and MacFarlane returned to Cheatham’s house and gave Batson the marijuana. Batson complained that it was only half the amount ordered, but defendant told him that that was all there was. Batson then noticed that defendant was carrying a black .22 caliber pistol. After examining the gun, Batson asked if defendant would sell it to him. Defendant refused, stating that the gun had belonged to his grandfather. When asked what he was going to do with the gun, defendant said something like, “Read about it in the paper.” Becoming alarmed, Batson wiped off his fingerprints and returned the gun to defendant.
Defendant and MacFarlane’s mother were close friends. MacFarlane testified that about a week before the killing, he was present when defendant had shown the same black gun to MacFarlane’s mother and told her that his grandfather had given it to him.
Defendant and MacFarlane then returned to Anderson’s house and were invited into Anderson’s office in the garage. For several hours, defendant, MacFarlane, and Anderson talked, listened to music, and smoked methamphetamine, marijuana, and cigarettes. At some point, defendant and Anderson resumed their discussion about the price for the speakers. Anderson showed defendant the repairs he had made to the speakers, which were in Anderson’s office. Eventually, Anderson and defendant became angry at each other and raised their voices. After defendant began yelling, Anderson told MacFarlane to take defendant home.
MacFarlane got up to leave, but defendant grabbed his shoulder and told him to wait. As Anderson turned and walked away, defendant pulled out a metal flashlight and used it to strike Anderson on the back of the head, causing the flashlight to fly across the room. Anderson fell to the floor and landed in a sitting position against one of the speakers. Anderson looked up and said, “What’s that for?” Defendant pulled out a black gun and told Anderson, “This is the real deal . . . motherf-----,” and shot Anderson in the head. MacFarlane recognized the gun as the one that defendant had shown to MacFarlane’s mother a week earlier. MacFarlane also noticed for the first time that defendant was wearing gloves.
Defendant laughed and walked up to Anderson, who remained on the floor. As Anderson put up his arm, defendant said “he’d finished him off” and shot him a second time in the head. Either just before or after the second shot, defendant again laughed and said, “Now, I’m robbing you, motherf-----.” MacFarlane saw defendant search Anderson’s pockets but did not see him take anything. After looking for shell casings and finding none, defendant used the key from Anderson’s desk to lock the garage door when he and MacFarlane left the premises. MacFarlane knew that Anderson had always kept his fanny pack in the second desk drawer with his keys, cigarettes, drugs, and money.
Defendant and MacFarlane drove to a friend’s gas station and talked for a while. Upon leaving the gas station, defendant stated that they were going back to Anderson’s garage to look for shell casings. They returned to the garage and defendant used Anderson’s key to open the door. They looked around but did not find any shell casings. Defendant was still holding the gun and was “freaking out” about the shell casings. Defendant used a rag to wipe all the surfaces that he had touched in the office. Defendant told MacFarlane, “I just committed first degree murder. You can’t tell anybody.” MacFarlane agreed because he was afraid of being shot.
Defendant and MacFarlane left the garage at daylight, and defendant again locked the door with Anderson’s key. As they were leaving, they encountered Irineo Hernandez, one of Anderson’s construction workers who was staying with Anderson. Defendant told Hernandez that Anderson was out getting breakfast and would return shortly.
Defendant told MacFarlane that they were going to get rid of the evidence at the aqueduct, which was about a half hour away. Defendant said that he was putting the gun and Anderson’s wallet into a paper bag, and was going to throw the bag into the aqueduct. MacFarlane saw the bag but not its contents. At the aqueduct, MacFarlane waited in the truck as defendant took the bag and walked out of sight under a bridge. Defendant then returned to the truck without the bag.
As they drove back to Cheatham’s house, defendant told MacFarlane that he had taken $120 and drugs from Anderson’s fanny pack. Defendant gave MacFarlane $50, and told him to give the money to MacFarlane’s mother so that she would allow MacFarlane, who was homeless, to stay in her home. Defendant later took back the $50 and personally gave it to MacFarlane’s mother, who then allowed MacFarlane to stay with her temporarily.
Los Angeles County Sheriff’s deputies discovered Anderson’s body in the garage on the night of February 23 after receiving a call from a concerned neighbor. Upon learning of the killing and seeing a reward poster that contained a sketch that he thought resembled MacFarlane, Batson contacted the Sheriff’s office and mentioned defendant’s gun. Deputies interviewed MacFarlane several times before MacFarlane told them that defendant had shot and killed Anderson.
According to expert testimony, the abrasion on the back of Anderson’s head, the trajectories of the two bullets found in Anderson’s head, the position of Anderson’s head and body, and the blood splatter evidence were all consistent with MacFarlane’s description of the incident. A shell casing found at the scene was consistent with the two .22 caliber bullets recovered from Anderson’s head. Defendant’s and MacFarlane’s DNA were found on cigarette butts collected at the crime scene.
As for motive, in addition to the dispute over the speakers, Batson testified that about a week before the murder, defendant had mentioned needing money to return to Colorado. Similarly, MacFarlane testified that on the day defendant had shown the gun to MacFarlane’s mother, defendant had also talked about needing money. MacFarlane recalled that at some unspecified time before the murder, defendant had asked him to help rob a liquor store where MacFarlane previously worked, but that he had refused.
II. The Defense Case
Defendant testified that after purchasing the marijuana from Anderson on the night of February 22, he had returned to Cheatham’s house and gone to sleep with his girlfriend after giving the marijuana to Batson. Defendant denied MacFarlane’s and Batson’s accusations. Among other things, defendant denied showing a gun to Batson, denied taking a gun or a flashlight to Anderson’s house, denied harming Anderson, denied meeting Irineo Hernandez, denied going to the aqueduct, and denied being upset about the speakers.
Defendant also sought to explain the prosecution’s evidence that upon his arrest, he had denied knowing a James Anderson or a Jim Anderson. Defendant testified that at the time of his arrest, he was unaware of Anderson’s death, was scared, and was unable to connect the names James Anderson or Jim Anderson with the person known to him simply as “James.” Defendant denied having a motive for the killing or the robbery. He was glad to sell the speakers because he was moving to Colorado. Although he was unemployed for about six weeks before the killing, he was receiving money from family and friends, his friends in Colorado would help him find him work, and he did not have any “money troubles.”
III. The Jury Question and Verdict
The prosecution argued two alternative theories to justify a first degree murder verdict: (1) the killing was the result of a willful, deliberate, and premeditated act done with malice aforethought; or (2) the killing was committed during the commission of a robbery, an inherently dangerous felony. With regard to the felony murder theory, the prosecution specifically addressed the uncertainty in MacFarlane’s testimony as to whether defendant had announced his intention to commit robbery before or after the second shot was fired. The prosecutor explained that regardless of whether the robbery was committed before or after the second shot, the robbery remained in process until defendant reached a place of temporary safety. The prosecutor stated in relevant part: “So whether he shot him the second time before he went through his pockets and robbed him as he was sitting there bleeding to death, Mr. Anderson, or between shots, doesn’t matter. He still shot him while he was robbing him. He’s still guilty of first degree murder. As Felony Murder or even as premeditated and deliberate, but might be[] easier to agree on Felony Murder.”
During deliberations, the jury asked the trial court to “explain the element of robbery pertaining to first degree felony murder.” The trial court disclosed the request to counsel and informed counsel of its intention to tell the jury to read CALJIC No. 8.21.1, which was included in the original instructions. Defense counsel then asked what specific language would be used in the court’s response. The trial court replied that it would tell the jury, “The explanation you seek is found in CALJIC instruction 8.21.1, which you have in your instruction packet.” Defense counsel responded, “That sounds just fine, Your Honor. Thank you.” Thereafter, the trial court informed the jury: “The explanation is found in instructions which have been provided to you. See page 38.”
Page 38 of the original instructions contained CALJIC No. 8.21.1, which stated: “For the purposes of determining whether an unlawful killing has occurred during the commission or attempted commission of a robbery, the commission of the crime of robbery is not confined to a fixed place or a limited period of time. [¶] A robbery is still in progress after the original taking of physical possession of the stolen property while the perpetrator is in possession of the stolen property and fleeing in an attempt to escape. Likewise it is still in progress so long as immediate pursuers are attempting to capture the perpetrator or to regain the stolen property. [¶] A robbery is complete when the perpetrator has eluded any pursuers, has reached a place of temporary safety, and is in unchallenged possession of the stolen property after having effected an escape with the property.”
In total, the jury deliberated for about a day and a half before returning a first degree murder verdict. The jury also found that the killing was committed during the course of a robbery or attempted robbery, and that defendant personally had discharged a firearm, resulting in great bodily injury and death. After denying defendant’s new trial motion, the trial court sentenced defendant to a term of 50 years to life without the possibility of parole.
DISCUSSION
I. Sufficiency of the Evidence
Defendant seeks reversal of both the first degree murder conviction and the finding that the murder was committed during the commission or attempted commission of a robbery, claiming the evidence is insufficient. Defendant argues that because there is “no substantial evidence that [he] robbed or attempted to rob Anderson before or during the killing and no substantial evidence that he intended to do so, the evidence is legally insufficient to support the felony murder theory of first degree murder and the robbery-murder special circumstance finding.” He further argues that because the jury necessarily relied upon the invalid felony-murder theory to convict him of first degree murder, the murder conviction cannot stand. We disagree and conclude that the evidence is sufficient to support the felony-murder conviction and the robbery-murder special circumstance finding.
“Robbery is 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.” (§ 211.) “Robbery requires the ‘intent to steal . . . either before or during the commission of the act of force’ (People v. Marshall[ (1997)] 15 Cal.4th [1,] 34), because ‘[i]f [the] intent to steal arose after the victim was assaulted, the robbery element of stealing by force or fear is absent’ (People v. Webster (1991) 54 Cal.3d 411, 443).” (People v. Huggins (2006) 38 Cal.4th 175, 214.) “The only intent required to find the felony-murder-robbery special circumstance allegation true is the intent to commit the robbery before or during the killing. (People v. Koontz (2002) 27 Cal.4th 1041, 1079-1080; People v. Musselwhite (1998) 17 Cal.4th 1216, 1263.)” (People v. Huggins, supra, at p. 215.)
On appeal, the evidence is sufficient to support a robbery conviction “if, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of robbery beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 319.) The same standard applies to review of the claim that there was insufficient evidence to find true the related felony-murder special circumstance. (People v. Osband[ (1996)] 13 Cal.4th 622, 690.)” (People v. Huggins, supra, 38 Cal.4th at p. 214.)
The issue before us, accordingly, is whether any rational jury, viewing the evidence in the light most favorable to the prosecution, could have found that defendant intended to commit the robbery before or during the killing. We conclude that the evidence, viewed in the light most favorable to the prosecution, was sufficient to support that finding. During the shooting, either just before or after the second shot was fired, defendant clearly announced his intention to rob Anderson. He then searched Anderson’s pockets immediately after firing the second shot, and took Anderson’s wallet, keys, money, and drugs from the fanny pack in the desk drawer. Even if the last act of violence was committed before defendant announced the robbery and stole the money and drugs, the jury reasonably could have inferred that defendant had formed the intent to rob either before or during the shooting. (See People v. Koontz, supra, 27 Cal.4th at pp. 1079-1080 [evidence was sufficient to support a felony robbery-murder finding even though the shooting occurred before the defendant found and stole the victim’s car keys].)There was ample evidence that defendant wanted or needed more money and felt that Anderson, in particular, owed him additional money for the speakers. Defendant had told several people shortly before the killing that he needed money in order to return to Colorado. Although he had a girlfriend and infant child to support, he was unemployed and reliant on family and friends for support. His growing desperation reasonably may be inferred from the fact that he had even proposed robbing a liquor store at some point before the shooting.
All of these factors reasonably support an inference that defendant wanted to renegotiate the sale of the speakers not for the sake of fairness, as he claimed, but because he seriously wanted or needed more money, which he intended to take by force if necessary. Although there was evidence that the shooting grew out of a dispute over the speakers and that any robbery was incidental to the shooting, the jury was not required to accept defendant’s testimony.
The Supreme Court reached a similar conclusion in People v. Koontz, stating: “Defendant asserts the shooting grew out of a dispute between the two men concerning the heat in their apartment and that any theft was incidental to the shooting, but the jury was not required to credit defendant’s version of the event. From the evidence presented, the jury reasonably could have inferred that the dispute between defendant and Martinez concerned defendant’s insistence that Martinez surrender his car, and that defendant shot Martinez in order to compel him to accede to his demands. In other words, the evidence supports an inference that defendant entertained the intent to steal before he committed an act of force. That defendant did not actually succeed in finding the keys until after the shooting does not dictate a contrary result. The jury’s verdicts on the robbery and murder charges and its true finding on the robbery-murder special-circumstance allegation find ample support in the evidence.” (People v. Koontz, supra, 27 Cal.4th at p. 1080.)
II. The Jury Question
Defendant contends that the trial court erred in responding to the jury’s question about the robbery element of felony murder. As we previously indicated, however, defense counsel did not object to the trial court’s proposed response and, in fact, agreed that the response was “just fine.” As the Attorney General correctly points out, the issue was forfeited.
Section 1138 provides: “After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called.”
According to People v. Roldan (2005) 35 Cal.4th 646, 729, “When a trial court decides to respond to a jury’s note, counsel’s silence waives any objection under section 1138. (People v. Kageler (1973) 32 Cal.App.3d 738, 746.) ‘The failure of defendant’s counsel to object or move for a mistrial upon the court frankly informing him of the court’s action might also be construed to be a tacit approval. Approval of the court’s action, even though it might have been a technical violation of section 1138 of the Penal Code, cures any possible error.’ (People v. House (1970) 12 Cal.App.3d 756, 765-766, disapproved on other grounds in People v. Beagle (1972) 6 Cal.3d 441, 451-452.)”
Even if, for the sake of argument, we were free to overlook the lack of objection and the approval of the trial court’s action, the contention lacks merit. The trial court referred the jury to CALJIC No. 8.21.1, which was a proper instruction. As the prosecution argued below, the instruction was relevant to the jury’s determination that, regardless of whether the robbery was committed before or after the second shot was fired, the robbery remained in progress until defendant reached a place of temporary safety. Although defendant argues on appeal that the “only significant issue raised by the evidence on the felony-murder theory was when the robbery began, not when the robbery ended,” the issue of when the robbery began was not argued to the jury below and, in any event, was not the only significant issue raised by the evidence.
Defendant’s assertion that the jury was diverted or confused by the trial court’s response is not persuasive. There is nothing to indicate that CALJIC No. 8.21.1 was likely to have confused or misled the jury in this case. Although CALJIC No. 8.21.1 did not highlight the issue of when the robbery began, the jury’s question did not identify that issue as the subject of its inquiry. Moreover, the jury proved that it knew it could seek clarification on an issue, if necessary. The fact that it asked no further questions belies defendant’s claim of juror confusion.
Under section 1138, the trial court’s primary duty is “to help the jury understand the legal principles it is asked to apply. (People v. Thompkins (1987) 195 Cal.App.3d 244, 250-251.) This does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury’s request for information. (People v. Gonzalez (1990) 51 Cal.3d 1179, 1213.) Indeed, comments diverging from the standard are often risky. (E.g., People v. Lee (1979) 92 Cal.App.3d 707, 716.)” (People v. Beardslee (1991) 53 Cal.3d 68, 97.)
In this case, defendant does not contend that the original jury instructions were deficient in any way. Given that the jury was properly instructed, we are compelled to conclude that defendant has failed to establish that the trial court abused its discretion in responding to the jury’s inquiry. In light of our determination that the trial court did not err in its response, defendant could not have suffered any prejudice from his counsel’s failure to object below. We therefore do not reach defendant’s alternative contention of ineffective assistance of counsel.
III. The Sentence
As noted, the court sentenced defendant to a term of 50 years to life without the possibility of parole. We have reviewed the transcript of the sentencing hearing. It appears the court mistakenly believed that it had to sentence defendant to a 25-year-to-life term for the first degree murder conviction, an identical term for the use of the firearm, and to a term of life without the possibility of parole for the special circumstance finding. The sentence for first degree murder is either death, life in prison without the possibility of parole, or 25 years to life. (§ 190, subd. (a).) As defendant was found guilty of first degree murder and a special circumstance was found to be true, the appropriate sentence for the murder is life without the possibility of parole. The additional 25-year-to-life term for the firearm enhancement is to run consecutive to the sentence for the murder.
DISPOSITION
The superior court is directed to correct the abstract of judgment to reflect that the sentence for the murder is life without the possibility of parole. The trial court is to deliver a corrected abstract to the Department of Corrections. As modified, the judgment is affirmed.
We concur: WILLHITE, Acting P. J., MANELLA, J.