Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
City & County of San Francisco Super. Ct. No. 197443
Pollak, J.
Defendants Michael Howard Wilson and Emmitt T. Lewis were tried jointly and both convicted of, among other things, first degree felony murder. Defendants contend the trial court erred in failing to instruct the jury on second degree murder. In addition, Lewis argues that his attorney provided ineffective assistance by revealing his prior felony conviction to the jury during voir dire and that the court erred in failing to sever the defendants’ trials. We affirm.
Factual and Procedural Background
Defendants were charged by information with murder (Pen. Code, § 187), robbery (§ 212.5), receiving stolen property (§ 496, subd. (a)), and theft of an automobile (Veh. Code, § 10851, subd. (a)). It was further alleged that Lewis had suffered a prior strike conviction (§§ 667, subds. (d), (e), 1170.12, subds. (b), (c)).
All statutory references are to the Penal Code unless otherwise noted.
The following evidence was presented at trial:
Early in the morning on July 7, 2003, a woman called the police to report suspicious behavior of two African-American men in a burgundy truck near the Safeway on Mission Street near Geneva Street in San Francisco. Moments later at approximately 5:20 a.m., while waiting for the bus on Geneva Street, Esperanza Martinez saw a red truck with two African-American occupants drive slowly past. The truck turned around, drove past her again, and then stopped just past the bus stop. Martinez testified that a man got out of the passenger side of the truck, grabbed her bag from her arms, and returned to the truck. As the truck drove away, she saw a police car approaching on Geneva Street. She thought the officers must have seen the robbery because the police car immediately began following the truck. She did not notify the police of the robbery until she arrived at her workplace.
Police Officers Michael Brown and Joe Mendiola were responding to a call reporting suspicious behavior at the Safeway when they saw the burgundy truck pull quickly away from the curb and begin driving away from them. The officers followed the truck, activating their flashing overhead lights as they passed through intersections. The officers lost sight of the truck as they descended a hill, then came upon the burgundy truck crashed into an embankment. Wilson was found hanging out of the driver’s side window of the wrecked truck. Lewis was found hiding in a planter box a few steps away. The dismembered body of Scot Adsit was found on the ground near the accident scene.
Martinez testified that the truck in the accident was the same truck that had been involved in her robbery. She identified Wilson in a line-up as the man who took her bag.
Romeo Domagas witnessed the robbery at the bus stop on Geneva. He testified that he did not see anyone come out of the truck. In a prior written statement, however, Domagas described having seen the driver exit the vehicle, approach the victim and take her bag.
An investigation of the truck after the accident revealed that Lewis’s DNA matched blood found on the headliner on the passenger side of the car and on the glove compartment. Based in part on this evidence, Lewis’s expert opined that Wilson was the driver and Lewis the passenger. The prosecutor presented expert testimony tending to prove that Lewis was the driver. The police officer who investigated the accident testified that the passenger-side door could not have been opened after the collision. He also explained that because the collision occurred on the front passenger side of the truck, if the driver was not wearing a seatbelt he would have moved first in the direction of the force, in this case to the front right side of the truck, then rebounded back into the driver’s seat. Another witness testified that based on the position of the truck after the collision, with the passenger side suspended at a 45 degree angle in the air, the easiest way to have gotten out of the truck was through the driver-side window. Based on this evidence and the victim’s testimony that Wilson got out of the passenger side of the truck to rob her, the prosecutor argued that Lewis was the driver. The prosecutor argued that Lewis could not have gotten out of the passenger side door and that in exiting through the driver-side window it was highly unlikely that he climbed over Wilson, who is 6 feet 2 inches tall and weighs 225 pounds. It was far more likely that Lewis, as the driver, was able to get out through the window on his side of the car and that Wilson was attempting to follow him out the window when the officers arrived. Neither defendant testified, but in their arguments to the jury both claimed that the evidence showed the other to have been the driver of the truck.
The jury convicted defendants of first degree murder and second degree robbery, but found them not guilty of the theft charge. Defendants were sentenced to 25 years to life in prison. Defendants filed timely notices of appeal.
The receiving stolen property charge and Lewis’s strike allegation were dismissed by the prosecution during trial.
Discussion
1. Failure to Instruct on Second Degree Murder
The information in this case alleges that the defendants violated section 187 in that they “did wilfully, unlawfully and with malice aforethought murder Scott Adsit, a human being.” Although the information refers only to murder that is malice-based, this standard form of allegation is sufficient to charge murder that is first degree because occurring in the perpetration of one of the felonies enumerated in section 189, which includes robbery. (People v. Scott (1991) 229 Cal.App.3d 707, 714.) Although there may have been some uncertainty during the course of the trial whether the prosecution intended to request that the jury be instructed on malice-based murder, from the outset there was no question but that the prosecution did intend to seek felony murder instructions.
Following the close of evidence, the parties and the judge conferred regarding jury instructions. The prosecutor requested a murder instruction based only on the theory of felony murder and initially took the position that the court was not required to instruct on second degree malice-based murder because it would not instruct on first degree malice-based murder. Subsequently, however, the prosecutor agreed with defendants and the trial court that an instruction on second degree murder was required as a lesser included offense of murder as alleged in the information, if supported by the evidence. The parties also agreed that if the court were required to give an instruction on second degree murder, it would also be required to give instructions on the lesser included offenses of manslaughter.
Lewis’s attorney argued that the evidence was insufficient to support second degree murder so that the second degree murder instruction should not be given. Wilson’s attorney disagreed. He argued, “I think the case was expressly tried on both felony murder and malice murder. And it’s my position that I want . . . murder instructions, and that I would be severely prejudiced if you didn’t g[ive] malice murder instructions. And I have tried the case on the assumption, frankly, that we would.” The trial court and the prosecutor both agreed with Lewis. Subsequently, Wilson’s attorney moved for a mistrial. He argued, “What we have here is a case that was tried, essentially, on one set of theories and is now being instructed on another set of theories. It’s my position that that’s prejudicial to the defendant. [¶] It’s nobody’s fault, but the fact is that the jury instructions are going to bear very little resemblance to the issues that were actually litigated in the trial.” The court denied the motion. The judge explained that while “the prosecution initially intended to proceed on the implied malice theory . . . [a]fter all the evidence was presented, I think the prosecution recognized that there wasn’t enough evidence there to warrant such a theory.”
Defendants contend the trial court erred in refusing to instruct the jury on second degree murder. California law has long provided that a trial court has a duty to instruct a jury on any lesser offense “necessarily included” in the charged offense if there is substantial evidence that only the lesser offense was committed. (People v. Birks (1998) 19 Cal.4th 108, 112.) An offense is a lesser included offense “ ‘if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser.’ ” (People v. Breverman (1998) 19 Cal.4th 142, 154, fn. 5.) This rule “ensures that the jury will be exposed to the full range of verdict options which, by operation of law and with full notice to both parties, are presented in the accusatory pleading itself and are thus closely and openly connected to the case.” (People v. Birks, supra, at p. 119.) Although a trial court has a duty to instruct on lesser included offenses, the duty arises only “if the evidence raises a question as to whether the elements of the charged offense are present.” (People v. Wilson (2008) 43 Cal.4th 1, 16.) The duty does not arise if there is no substantial evidence that the offense committed “was less than charged.” (Ibid.) Absent substantial evidence, a trial court does not err in refusing to instruct a jury on a lesser included offense of murder. (People v. Cunningham (2001) 25 Cal.4th 926, 1008-1009.)
Lewis did not independently brief this issue, but joins in Wilson’s argument. Lewis acknowledges that his attorney may have invited this error by expressly asking that the court not give the second degree murder instruction, but he argues that he was denied effective assistance of counsel based on his attorney’s request that the second degree murder instruction not be given. In light of this contention, we shall consider the merits of Lewis’s argument that the instruction should have been given.
Second degree murder is a lesser included offense of first degree malice-based murder. (People v. Blair (2005) 36 Cal.4th 686, 745.) The California Supreme Court has expressly declined to decide “whether second degree murder is a lesser included offense when, as here, the prosecution proceeds solely on the theory that the killing is first degree murder under the felony-murder rule and does not argue that the killing is first degree murder because it is willful, deliberate, and premeditated.” (People v. Romero (2008) 44 Cal.4th 386, 402; People v. Valdez (2004) 32 Cal.4th 73, 114-115, fn. 17.) Nonetheless, its decisions defining the elements of felony murder indicate that second degree murder is not a lesser included offense of felony murder because malice is not an element of felony murder. (People v. Cavitt (2004) 33 Cal.4th 187, 197; People v. Balderas (1985) 41 Cal.3d 144, 197; see People v. Anderson (2006) 141 Cal.App.4th 430, 444 (Anderson).) As noted above, at the close of evidence, the prosecutor indicated that he did not want to proceed on a malice-based theory. Lewis’s attorney and the trial court agreed that the evidence was insufficient to support a guilty verdict on second degree murder and the case was submitted to the jury solely on the charge of felony murder.
Defendants now contend this was error. They rely on Anderson, supra, 141 Cal.App.4th at page 444, in which the court held that an amendment to the information adding to a broad murder charge a more specific felony murder charge did not relieve the court of its duty to instruct on second degree murder. In that case, the information charged malice-based murder but after the close of the evidence the information was orally amended to allege felony murder. The prosecution indicated that it would proceed solely on the felony murder theory and the jury was instructed only on that theory. The court concluded the second degree murder instruction should have been given. It explained, “While we realize that, technically, the prosecution amended the information after the close of evidence to include a charge of felony murder, we conclude that this amendment should not be permitted to alter the expectations created by the original information. It is not clear from the transcript that the felony-murder charge supplanted the murder charge contained in the information, since the trial court referred to felony murder as an ‘added’ charge. If the original charge of murder remained, the sua sponte duty to instruct as to lesser offenses did as well. Even if felony murder had been intended to replace the existing charge, an amendment made at the close of evidence does not satisfy the notice function that underpins the duty of sua sponte instruction. [Citation.] Having established the expectation that instruction on lesser included offenses of murder would be given, if supported by the evidence, the prosecution could not defeat that expectation by amendment after the close of evidence.” (Id. at pp. 445-446.) The court deemed the error prejudicial because there was substantial evidence on which the jury could have concluded that defendant was guilty of second degree murder but not felony murder.
In the present case it was clear prior to the commencement of trial that the prosecution would rely on the theory of felony murder, whether or not it also requested an instruction on malice-based murder. Whatever their expectations, defendants have made no showing that the prosecutor’s decision at the close of trial not to request instructions on malice-based murder was in any way prejudicial to the defense, nor could they. The omission of murder instructions requiring the element of malice—whether first degree, based on premeditation, or second degree without premeditation—could not possibly have prejudiced the defense because the omission simply removed certain elements from consideration. The omission did not require the defendants to defend against any elements that were not included in the case from the outset.
Contrary to defendants’ suggestion, there is nothing inherently unfair or prejudicial in failing to provide the jury with the ability to convict of a lesser offense if the evidence establishes that a killing occurred in the course of an enumerated felony. As the court explained in People v. Mendoza (2000) 23 Cal.4th 896, 908-909, “Where the evidence points indisputably to a killing committed in the perpetration of one of the felonies section 189 lists, the only guilty verdict a jury may return is first degree murder. [Citations.] . . . The trial court . . . need not instruct the jury on offenses other than first degree felony murder or on the differences between the degrees of murder. [Citation.] . . . Because the evidence establishes as a matter of law that the murder is of the first degree, these procedures violate neither the right under section 1126 to have a jury determine questions of fact [citation] nor the constitutional right to have a jury determine every material issue the evidence presents.” “ ‘Once a person has embarked upon a course of conduct for one of the enumerated felonious purposes, he comes directly within a clear legislative warning—if a death results from his commission of that felony it will be first degree murder, regardless of the circumstances.’ [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. Once a person perpetrates or attempts to perpetrate one of the enumerated felonies, then in the judgment of the Legislature, he is no longer entitled to such fine judicial calibration, but will be deemed guilty of first degree murder for any homicide committed in the course thereof.’ ” (People v. Cavitt, supra, 33 Cal.4th at p. 197.)
Requiring the jury to make such all-or-nothing decisions is permissible if the crimes are lesser related, rather than lesser included. For example, the prosecution can put a similar all-or-nothing decision to the jury in cases where the facts might support either second degree murder or vehicular manslaughter. Because vehicular manslaughter is a lesser related rather than lesser included offense of murder, a defendant does not have the right to insist that the jury be given the opportunity to convict on the lesser charge. (People v. Sanchez (2001) 24 Cal.4th, 983, 992, disapproved on other grounds by People v. Reed (2006) 38 Cal.4th 1224, 1228; People v. Birks, supra, 19 Cal.4th at p. 136.)
Moreover, even if a second degree murder instruction were required, the failure to give it here was harmless. (People v. Breverman, supra, 19 Cal.4th at p. 165 [“the failure to instruct sua sponte on a lesser included offense in a noncapital case . . . is not subject to reversal unless an examination of the entire record establishes a reasonable probability that the error affected the outcome”].) Wilson’s defense was that the robbery and the victim’s death were unrelated. He argued that Lewis was the driver of the truck that caused the fatal accident but that Lewis was not involved in the robbery: “there is no evidence whatsoever that [Lewis] was aiding and abetting in anything Mr. Wilson might have been up to.” Lewis’s defense was that Wilson was driving and committed the robbery; Lewis argued that he was just innocently along for the ride. Neither defendant argued that they were not guilty of the felony murder because the accident did not occur in the course of the robbery. The jury—having been properly instructed on the elements of robbery and of aiding and abetting—found that both defendants were guilty of the robbery and the sufficiency of the supporting evidence is not disputed. Since both defendants were guilty of the robbery, both necessarily were guilty of the felony murder that occurred when the fleeing vehicle struck a bystander. (People v. Young (1992) 11 Cal.App.4th 1299, 1305-1306 [“When homicide occurs during a robber’s immediate flight from the robbery, the killing is in perpetration of robbery because the robbery is not legally complete until the robber has won the way to a place of temporary safety. [Citations.] Even if the killing was accidental or unintentional it constitutes first degree murder under the felony-murder rule”]; People v. Washington (1965) 62 Cal.2d 777, 782 [“All persons aiding and abetting the commission of a robbery are guilty of first degree murder when one of them kills while acting in furtherance of the common design”]; People v. Smithson (2000) 79 Cal.App.4th 480, 499-502.) Thus, the jury’s finding that both defendants committed the robbery necessarily eliminated the possibility that they were guilty of less than first degree murder, and the omission of a second degree murder instruction was harmless. (Cf. People v. Horning (2004) 34 Cal.4th 871, 906 [“ ‘Error in failing to instruct the jury on a lesser included offense is harmless when the jury necessarily decides the factual questions posed by the omitted instructions adversely to defendant under other properly given instructions’ ”]; People v. Lancaster (2007) 41 Cal.4th 50, 85 [failure to instruct on second degree murder harmless because “the jury returned a true finding on the kidnapping-murder special circumstance [citation], and therefore necessarily rejected the factual theory on which defendant’s argument for a second degree murder instruction rests”].)
Having concluded that any instructional error was harmless, we likewise conclude that Lewis was not prejudiced by any potential deficiency in his representation in this regard. (People v. Sanchez (1995) 12 Cal.4th 1, 41 [“If defendant fails to show that he was prejudiced by counsel’s performance, we may reject his ineffective assistance claim without determining whether counsel’s performance was inadequate”].)
2. Ineffective Assistance of Counsel
Lewis also contends that he was denied effective assistance of counsel based on his attorney’s decision to voir dire the prospective jurors to ascertain their ability to be fair in light of his prior felony conviction. In order to establish ineffective assistance of counsel, Lewis has the burden of establishing that counsel’s representation fell below an objective standard of reasonableness, and that there is a reasonable probability that a result more favorable to the defendant would have resulted in the absence of the claimed deficiency. (People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) Moreover, “ ‘[r]eviewing courts will reverse convictions on the ground of inadequate counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission.’ ” (People v. Zapien (1993) 4 Cal.4th 929, 980.)
At the prosecution’s urging, Lewis’s attorney offered the following explanation for his decision: “As the case goes along, we make a decision whether the defendant testifies. [¶] I always bring up defendant’s prior to a jury in voir dire, with the understanding that if I ever put my client on the stand I want them to know prior to that. And that’s my right and that’s his right to have them know that in voir dire.” Lewis acknowledges that his attorney was making a tactical decision, but argues nonetheless that “[t]here is no common sense logic in trial counsel’s explanation.” In general, we will not second-guess counsel’s tactical decisions on appeal. (People v. Milner (1988) 45 Cal.3d 227, 238; People v. Weaver (2001) 26 Cal.4th 876, 928 [“ ‘even “debatable trial tactics” do not “constitute a deprivation of the effective assistance of counsel” ’ ”].)
Even assuming that trial counsel’s performance was deficient in this regard, there was no resulting prejudice. (People v. Williams (1988) 44 Cal.3d 883, 937.) Because Lewis did not testify, no evidence about his prior drug offense was presented. The jury was instructed that statements or questions of attorneys are not evidence (CALCRIM No. 104), that it must decide the case based on the evidence (ibid.), and that it was not to be influenced by prejudice or bias (CALCRIM No. 101). It is presumed that the jury understood and followed the instructions. (People v. Holt (1997) 15 Cal.4th 619, 662.)
3. Severance
Prior to trial, Lewis filed a motion to sever his trial from Wilson’s trial on the ground that he and Wilson would be presenting conflicting defenses as to which of them committed the robbery. The motion was denied. After the guilty verdicts were returned but before sentencing, Lewis filed a motion for a new trial on the ground that trial should have been severed because of the “antagonistic defenses” as to which defendant was driving the fatal vehicle. That motion was also denied. Lewis contends that the failure to sever denied him his Sixth Amendment right to a fair trial and Fourteenth Amendment right to due process.
“Section 1098 expresses a legislative preference for joint trials. The statute provides in pertinent part: ‘When two or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they must be tried jointly, unless the court order[s] separate trials.’ [Citations.] Joint trials are favored because they ‘promote economy and efficiency’ and ‘ “serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts.” ’ [Citation.] When defendants are charged with having committed ‘common crimes involving common events and victims,’ as here, the court is presented with a ‘classic case’ for a joint trial. [Citation.] [¶] . . . [¶] A court’s denial of a motion for severance is reviewed for abuse of discretion, judged on the facts as they appeared at the time of the ruling. [Citation.] Even if a trial court abuses its discretion in failing to grant severance, reversal is required only upon a showing that, to a reasonable probability, the defendant would have received a more favorable result in a separate trial.” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 40-41.)
“The court’s discretion in ruling on a severance motion is guided by the nonexclusive factors enumerated in People v. Massie (1967) 66 Cal.2d 899, 917 . . ., such that severance may be appropriate ‘in the face of an incriminating confession, prejudicial association with codefendants, likely confusion resulting from evidence on multiple counts, conflicting defenses, or the possibility that at a separate trial a codefendant would give exonerating testimony.’ ” (People v. Coffman and Marlow, supra, 34 Cal.4th at p. 40.) In Coffman, the court explained that “ ‘ “[a]ntagonistic defenses do not per se require severance, even if the defendants are hostile or attempt to cast the blame on each other.” [Citation.] “Rather, to obtain severance on the ground of conflicting defenses, it must be demonstrated that the conflict is so prejudicial that [the] defenses are irreconcilable, and the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty.” ’ [Citation.] When, however, there exists sufficient independent evidence against the moving defendant, it is not the conflict alone that demonstrates his or her guilt, and antagonistic defenses do not compel severance.” (Id. at p. 41, italics omitted.)
Here, substantial independent evidence was offered to prove that Lewis was driving and that in so doing he aided and abetted in the robbery. As discussed above, so long as Lewis was guilty of the robbery, as the jury found, he was also guilty of the felony murder. Although both defendants argued that the evidence showed the other to have been the driver of the fleeing truck, this conflict alone did not lead to an unjustifiable conclusion that both defendants were guilty of the robbery. To the contrary, Wilson’s robbery conviction is supported by the victim’s identification of him as the perpetrator and Lewis’s conviction is amply supported by the prosecution’s evidence that he was the driver of the truck. Accordingly, severance was not required.
Disposition
The judgment is affirmed.
We concur: McGuiness, P. J., Jenkins, J.