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People v. Adams

Court of Appeal of California
Sep 29, 2008
2d Crim. No. B202423 (Cal. Ct. App. Sep. 29, 2008)

Opinion

2d Crim. No. B202423

9-29-2008

THE PEOPLE, Plaintiff and Respondent, v. ALBERT ADAMS, Defendant and Appellant.

Mark D. Lenenberg, 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, Victoria B. Wilson, Steven D. Matthews, Supervising Deputy Attorneys General, for Plaintiff and Respondent.

Not to be Published


Albert Adams appeals the judgment following his conviction for first degree murder (Pen. Code, §§ 187/189), robbery (§ 211), and burglary (§ 459). The jury found true allegations of felony-murder special circumstances. (§ 190.2, subd. (a)(17).) Adams contends the trial court erred in admitting evidence of out-of-court statements by a coconspirator, in failing to instruct the jury regarding statements by coconspirators, and in failing to instruct the jury on voluntary manslaughter. He also claims prosecutorial misconduct, and the improper imposition of certain enhancements. We affirm.

All statutory references are to the Penal Code unless otherwise stated.

FACTS AND PROCEDURAL HISTORY

Albert Adams was a friend of Rebecca Tilley who lived with Vincent Solomon and Christopher Garner. On the morning of the murder, Adams was at Tilleys apartment and left with Garner and Solomon in Solomons SUV.

Adams was also a friend of Mariano Cabaong and an acquaintance of Rafael Lopez. Cabaong and Lopez were friends. At approximately 1:00 p.m. on the day of the murder, Lopez went to Cabaongs apartment to visit. At approximately 2:30 p.m., Adams telephoned Cabaong to make arrangements to meet at the apartment of Blake Crawford in order to rob Crawford. Lopez drove Cabaong to Crawfords apartment.

Cabaong and Lopez arrived at Crawfords apartment at approximately 3:00 p.m. Cabaong told Lopez to park his car facing a street and "be ready to drive." Lopez did so and left the engine running. Adams, Solomon, and Garner had arrived separately and were standing next to Solomons SUV. Adams called Crawford on the security phone for the apartment complex and was admitted along with Cabaong. Lopez, Solomon, and Garner waited in their vehicles.

Crawford was inside his apartment with his roommate and a friend named Ralph Jackson. Crawford, a drug dealer, kept marijuana in a Tupperware container in his apartment. When a buyer came to the apartment, Crawford would remove marijuana from the container, weigh it, place it in a baggie, and sell it.

Adams entered the apartment posing as a buyer. Crawford asked Adams, "how much?" and Crawford took an amount of marijuana out of his Tupperware container. Jackson, who had momentarily left the room, heard a gunshot. He returned to the room and saw Adams leaving the apartment with the Tupperware container and a revolver in his hand. Crawford was lying on the floor mortally wounded.

Adams and Cabaong ran out of the apartment complex. Adams handed Lopez the Tupperware container containing marijuana, and drove off with Solomon and Garner. Cabaong got into Lopezs car and told Lopez to "go, go, go. Drive, drive." Lopez drove off. Cabaong told Lopez that "everything went wrong." Lopez dropped Cabaong off at a restaurant. Cabaong took the marijuana but left the Tupperware container with Lopez.

Solomon and Garner returned to their apartment at approximately 3:30 p.m. Adams came over to the apartment at 7:00 p.m., and told Tilley that "he had done wrong." Adams stated that Crawford was dead, but that "they will never get the casing" or "the pistol."

At 9:00 p.m., Lopez went to Cabaongs apartment. Adams, Solomon, and Garner were there, dividing the marijuana. Adams kept saying it was an accident. Lopez did not know anyone had been killed until a week later.

Adams was convicted of murder, robbery and burglary, and the jury found true allegations that the murder was committed while Adams was engaged in the robbery and burglary. (§ 190.2, subd. (a)(17).) The jury also found true allegations that Adams personally used a firearm (§ 12022.53, subd. (b)), personally discharged a firearm (§ 12022.53, subd. (c)), and personally discharged a firearm causing great bodily injury or death (§ 12022.53, subd. (d)) in the murder and robbery, and that he personally inflicted great personal injury in the robbery (§ 12022.7, subd. (a)), and that a principal was armed with a firearm in the commission of all offenses (§ 12022, subd. (a)(1)). The jury found Adams acted in concert in committing the robbery of an inhabited dwelling (§ 213, subd. (a)(1)(A)), and had served two prior prison terms (§ 667.5, subd. (b)).

For the murder, Adams was sentenced to life without possibility of parole, plus a consecutive 25 years to life term for personally discharging a firearm causing death. (§ 12022.53, subd. (d).) The 10 and 20 year enhancements under section 12022.53, subdivisions (b) and (c) and a one year section 12022, subdivision (a)(1) enhancement were imposed and stayed. For the robbery, Adams was sentenced to nine years, plus the three section 12022.53 enhancements and a section 12022, subdivision (a)(1) enhancement and, for the burglary, he was sentenced to six years, plus a three year section 12022.7, subdivision (a) enhancement and a section 12022, subdivision (a)(1) enhancement. The robbery and burglary sentences were stayed in their entirety.

DISCUSSION

No Error in Admission of Statements by Coconspirator

Adams contends that the trial court erroneously admitted hearsay testimony regarding statements by Cabaong regarding their plan to steal drugs from Crawford. Cabaong received a telephone call shortly before the murder. Lopez did not hear what was said, but testified that Cabaong told him Adams was the caller and they were going to rob a drug dealer. Cabaong told Lopez that Adams and Cabaong would pose as drug buyers to gain entry to the dealers apartment and then steal the dealers drugs. Lopez agreed to drive Cabaong to the dealers apartment.

Adams argues that Lopezs testimony was inadmissible hearsay. We disagree, and conclude that the evidence was admissible under the coconspirator exception to the hearsay rule. (Evid. Code, § 1223.)

Evidence Code section 1223 provides: "Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if: [¶] (a) The statement was made by the declarant while participating in a conspiracy to commit a crime or civil wrong and in furtherance of the objective of that conspiracy; [¶] (b) The statement was made prior to or during the time that the party was participating in that conspiracy; and [¶] (c) The evidence is offered either after admission of evidence sufficient to sustain a finding of the facts specified in subdivisions (a) and (b) or, in the courts discretion as to the order of proof, subject to the admission of such evidence."

A conspiracy is an agreement between individuals to commit a crime, accompanied by an overt act in furtherance of the conspiracy. (People v. Herrera (2000) 83 Cal.App.4th 46, 64.) An out-of-court statement by a coconspirator is admissible if made prior to or while the declarant was participating in the conspiracy and was made to further the objective of the conspiracy. (Evid. Code, § 1223.) There must be evidence independent of the coconspirators statements sufficient to support an inference that a conspiracy existed. (Herrera, at pp. 64-65; People v. Rodrigues (1994) 8 Cal.4th 1060, 1134-1135.) The conduct, relationship, interests, and activities of the alleged conspirators may be considered in making that inference. (Rodrigues, at p. 1135.)

Contrary to Adams argument, the record contains substantial evidence independent of Cabaongs statements to show that a conspiracy to rob Crawford existed among Adams, Cabaong, and Lopez. Evidence shows that, after the statements were made, the plan described by Cabaong was carried out. Lopez drove Cabaong to Crawfords apartment, left the motor in his car running, and parked so as to permit a quick getaway. When Adams and Cabaong came running back from Crawfords apartment, Lopez took the Tupperware container containing marijuana from Adams and made has getaway. In addition, Lopez went to Cabaongs apartment the night of the robbery to divide up the stolen marijuana, and discuss the crime.

Adams also contends that the determination of the sufficiency of the evidence of a conspiracy is a jury question, and the trial court erred by failing to instruct the jury sua sponte that the jury had to find a conspiracy existed before it could consider Cabaongs statements. (See CALCRIM Nos. 416, 418.) The California Supreme Court has never decided whether, or to what extent, a trial court has a sua sponte duty to instruct the jury with conspiracy instructions before admitting evidence of hearsay statements by a coconspirator. (See People v. Prieto (2003) 30 Cal.4th 226, 251; People v. Sully (1991) 53 Cal.3d 1195, 1231.) No published Court of Appeal opinion has directly decided the issue either, and it is not necessary for this court to do so.

Even if there was a sua sponte duty to instruct with CALCRIM Nos. 416 and 418, the trial court error was harmless. The evidence that Lopez played a key role in assisting and facilitating the commission of the robbery and burglary was strong, and it is not reasonably probable the jury would have reached a different result if the instructions had been given by the court, or even if evidence of Cabaongs out-of-court statements had been excluded. (See People v. Prieto, supra, 30 Cal.4th at p. 251; People v. Sully, supra, 53 Cal.3d at p. 1231.)

Voluntary Manslaughter Instructions Not Required

Adams contends that the trial court erred by declining to give voluntary manslaughter instructions as a lesser included offense of murder. We disagree.

A trial court has a duty to instruct the jury on lesser included offenses when there is substantial evidence that the offense committed may have been less than the offense charged. (People v. Breverman (1998) 19 Cal.4th 142, 154.) The determination of whether an offense is a lesser included offense for purposes of jury instructions is determined by the accusatory pleading. (People v. Birks (1998) 19 Cal.4th 108, 119.) Reliance on the accusatory pleading ensures that the defendant has adequate notice of the crimes he or she must defend against. (Id., at p. 118; see also People v. Lohbauer (1981) 29 Cal.3d 364, 368-369.) An offense charged in an accusatory pleading encompasses lesser included offenses which must be proven in order to prove the charged offense. (Birks, at p. 118.)

Voluntary manslaughter, an unlawful killing without malice, is a lesser included offense of murder, but it is not a lesser included offense of felony murder. (See People v. Cavitt (2004) 33 Cal.4th 187, 197; People v. Anderson (2006) 141 Cal.App.4th 430, 444.) When a defendant kills while committing a felony listed in section 189, malice is irrelevant and the killing is deemed first degree murder as a matter of law. (People v. Mendoza (2000) 23 Cal.4th 896, 908.) The only guilty verdict a jury may return is first degree murder, and a trial court need not instruct the jury on offenses other than first degree felony murder. (Id., at pp. 908-909; Anderson, at p. 444.)

Adams does not dispute that the prosecution tried the case solely on the theory of felony murder, but argues that the accusatory pleading alleges murder with malice, not felony murder, and, accordingly, that the trial court was required to instruct on the lesser included offenses of murder with malice. As Adams asserts, the information charges the "crime of murder, in violation of Penal Code Section 187 . . . with malice aforethought." The information, however, also alleges that the killing was committed while Adams was "engaged in the commission of the crime of robbery and burglary, within the meaning of Penal Code Section 190.2(a)(17)." This latter allegation clearly constitutes a charge of felony murder.

Although not a model of clarity, we conclude that the accusatory pleading adequately notified Adams that he was required to defend against felony murder and no other form of murder or manslaughter. By alleging a killing during the commission of robbery and burglary, the information charged Adams with a crime that was felony murder as a matter of law. Moreover, the record shows that, from the filing of the information, the prosecutions sole theory was felony murder and that the prosecution never sought to prove the elements of any other form of murder and, thereby, never sought to prove the elements of any lesser included offense of any other form of murder. Also, the jury was never instructed that malice was an element of the charged offense.

Adams relies on People v. Anderson, supra, 141 Cal.App.4th 430, 444-445 where the court held that, although the prosecution relied on a felony murder theory at trial, the charge was murder with malice and, therefore, the jury had to be instructed on the lesser included offenses of murder without malice. The Anderson court, however, based its conclusion on the complete absence of any allegation in the accusatory pleading of a predicate felony that would support a felony murder conviction. (Id., at p. 445.)

In any event, a trial court is required to instruct on lesser included offenses of murder only where there is substantial evidence to support a verdict other than felony murder. (See People v. Benavides (2005) 35 Cal.4th 69, 102.) Substantial evidence is ""evidence from which a jury composed of reasonable [persons] could . . . conclude[]" that the lesser offense, but not the greater, was committed." (People v. Breverman, supra, 19 Cal.4th at p. 162.) When the evidence indisputably establishes felony murder, the trial court need instruct the jury only on first degree felony murder. (People v. Mendoza, supra, 23 Cal.4th at pp. 908-909.)

Adams claims there is substantial evidence that he committed only voluntary manslaughter because he killed Crawford in unreasonable self-defense. (People v. Rios (2000) 23 Cal.4th 450, 460.) Adams testified that he sold drugs for a living and had arranged to sell marijuana and cocaine to Crawford. He testified that Garner and Solomon drove him to Crawfords apartment, and Lopez drove Cabaong who had the marijuana Adams intended to sell. Adams testified that, when he got into Crawfords apartment, Crawfords friend Jackson aimed a shotgun at him. Adams took out his revolver, and was grabbed by Crawfords roommate. In the ensuing struggle, Adams fired his gun without aiming.

We need not decide whether this evidence constitutes substantial evidence that would support jury instructions on second degree murder or voluntary manslaughter. The jurys conviction of Adams for robbery and burglary and its true finding that Adams killed Crawford during the commission of those offenses necessarily determined that the killing was felony murder and not a lesser form of homicide. Thus, to the extent the failure to give a voluntary manslaughter instruction was error, it was harmless. (People v. Earp (1999) 20 Cal.4th 826, 886; People v. Barnett (1998) 17 Cal.4th 1044, 1155-1156.) "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. [Citation.]" (People v. Chatman (2006) 38 Cal.4th 344, 392.)

No Prosecutorial Misconduct

Adams contends that the prosecutor committed misconduct during argument by expressing her personal belief in Adams guilt and vouching for witnesses.

Adams waived this claim by failing to object in the trial court. (People v. Brown (2004) 33 Cal.4th 382, 398-399.) We consider the claim because Adams argues that his lawyers failure to object constituted ineffective assistance of counsel. (People v. Mayfield (1993) 5 Cal.4th 142, 178.)

Misconduct occurs when a prosecutor uses deceptive or reprehensible methods to persuade the jury, and warrants reversal of a conviction if the defendant shows that the misconduct resulted in the denial of a fair trial. (People v. Benavides, supra, 35 Cal.4th at p. 108.) When the claim concerns statements made during argument, ". . . the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. [Citations.]" (People v. Cole (2004) 33 Cal.4th 1158, 1202-1203.)

Adams argues that, through repeated use of the term "we know," the prosecutor expressed her personal belief in Adams guilt. We disagree.

A prosecutor may state his or her opinion based on inferences from the evidence, but may not express a personal opinion as to guilt if there is a danger jurors will interpret the opinion based on information not in evidence. (People v. Heishman (1988) 45 Cal.3d 147, 195.) Here, the record shows that the prosecutor used the phrase "we know" to describe and discuss the evidence at trial. For example, she said: "We know" that Adams spent the day with Garner and Solomon; "we know" that Crawford died; "we know" Adams called Cabaong; and "we know" there were two vehicles at the crime scene.

There is no reasonable likelihood that the jury construed or applied the phrase "we know" as implying the People had some independent knowledge apart from the evidence or in any other improper fashion. (People v. Cole, supra, 33 Cal.4th at pp. 1202-1203.) Because no prosecutorial misconduct has been shown, counsel was not ineffective for failing to object to the argument challenged in this appeal. (See People v. Padilla (1995) 11 Cal.4th 891, 944, overruled on another ground in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.)

Adams also challenges a statement by the prosecutor regarding an interview she had with Rafael Lopez prior to trial. As was revealed at trial, Lopez struck a plea bargain in return for his testimony. The prosecutor stated that her interview with Lopez involved no promises but was intended solely to obtain the facts as Lopez knew them. She stated that "he told me what he knew." Adams argues that the statement that "he told me what he knew" constituted vouching for the veracity of Lopez as a truthful witness at trial.

A prosecutor is prohibited from vouching for the credibility of witnesses or bolstering the veracity of their testimony by referring to evidence outside the record or giving the impression that the district attorneys office has taken steps to assure truthfulness at trial. (People v. Frye (1998) 18 Cal.4th 894, 971; People v. Williams (1997) 16 Cal.4th 153, 257.) The prosecutors comment may have implied that Lopez was telling the truth during the pretrial interview and also that he may have said some things that were not included in his testimony at trial. But, the jury was otherwise aware that Lopez received a plea bargain in return for his testimony and the prosecutors comment was in the context of explaining the plea agreement. There is no reasonable likelihood that the jury applied the words in an improper fashion, or that the comment had any effect on the verdict.

No Sentencing Error

As set forth above, the jury found true allegations of several firearm enhancements. The trial court imposed an additional 25 years to life term of imprisonment to Adams murder sentence pursuant to section 12022.53, subdivision (d) but stayed all other firearm enhancements. Adams contends that the trial court was required to strike, not stay, the other enhancements. We disagree.

After the briefing of the instant case was completed, our Supreme Court decided People v. Gonzalez (2008) 43 Cal.4th 1118, 1123, 1130, which held that, when a trial court imposes punishment for one section 12022.53 firearm enhancement, the remaining section 12022.53 enhancements and any section 12022.5 enhancement for the same crime must be imposed and then stayed. The court construed section 12022.53 as requiring that, if more than one enhancement is found true under section 12022.53 and 12022.5, the court shall impose and execute the enhancement with the longest term of imprisonment, and impose and stay all of the other enhancements. (Gonzalez, at p. 1127.)

Gonzalez does not expressly cover the enhancement under section 12022, subdivision (a) which was imposed and stayed in the instant case, but we conclude that the trial court properly imposed but stayed that enhancement. Adams offers no argument challenging the imposition and stay other than the statutory interpretation of section 12022.53 expressly rejected in Gonzalez.

The judgment is affirmed.

We concur:

YEGAN, Acting P.J.

COFFEE, J.


Summaries of

People v. Adams

Court of Appeal of California
Sep 29, 2008
2d Crim. No. B202423 (Cal. Ct. App. Sep. 29, 2008)
Case details for

People v. Adams

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ALBERT ADAMS, Defendant and…

Court:Court of Appeal of California

Date published: Sep 29, 2008

Citations

2d Crim. No. B202423 (Cal. Ct. App. Sep. 29, 2008)