Opinion
A120995.
6-25-2009
THE PEOPLE, Plaintiff and Respondent, v. RONALD BUTLER, Defendant and Appellant.
Not to be published in Official Reports
Defendant was convicted following a jury trial of first degree murder (Pen. Code, § 187), with personal use of a deadly weapon (Pen. Code, § 12022, subd. (b)(1)), and given an aggregate state prison sentence of 26 years to life. In this appeal defendant complains of the admission of the prior statement and testimony of a witness, an incomplete instruction on attempted robbery, and challenges the evidence in support of the conviction. We conclude that the evidence was not erroneously admitted, and the partial failure of the court to define attempt was harmless error. We also find substantial evidence to support the murder conviction on a theory of a murder committed during the course of an attempted robbery. We therefore affirm the judgment.
STATEMENT OF FACTS
The homicide victim, Tammy Anderson, was a "homeless" person who lived in tents, abandoned vehicles, and under houses in the "fifties" neighborhood of Oakland. Anderson was acquainted with defendant and the two primary witnesses in the case, Deanna Gaines and Kassandra Cleveland.
Deanna Gaines testified that on the night of January 10, 2007, she was "getting high" and "prostituting." She robbed one of her "dates" and ran to International Boulevard to get away from him and the police. Gaines came upon Anderson, defendant and Kassandra Cleveland, who were standing by a small Toyota truck at the Rainbow Recreation Center. She asked for a ride away from the area in exchange for "some money and some dope." All four of them entered the truck, with Anderson in the drivers seat. Defendant, known to Gaines as "Moe," and Anderson were engaged in a loud, intense argument. As the quarrel intensified, Anderson left the truck, followed by the others.
The argument between defendant and Anderson continued on the sidewalk as Gaines and Cleveland stood by the truck. Anderson became "louder" and more irate; defendant "kept telling her to shut up," but "[s]he wouldnt." Defendant "went to the back of the truck," where he got a silver "metal pole." He returned to Anderson and repeated his warning to her to "shut up." Anderson "kept getting louder" and threatened to "call the police," whereupon defendant "hit her with the pole" in the forehead. Gaines heard a "little crunch" and saw Anderson buckle to a knee on the ground. Anderson was moaning and holding her head when defendant struck her with the pole again. Gaines gave Cleveland some money for a "little piece of dope," and ran to the railroad tracks.
Gaines was interviewed by Sergeant James Morris of the Oakland Police Department on April 26, 2007. She stated that "Moe" was the man who hit Anderson, and subsequently selected defendant from a photo lineup as the person she was "talking about." Gaines also identified Kassandra Cleveland as another witness to the murder.
A portion of her interview was played for the jury.
Cleveland was interviewed by Sergeant Morris on May 25, 2007. She was "composed but emotional." In the interview Cleveland stated that on the day of the murder "people in the neighborhood" learned that Anderson "hit a lick" — that is "robbed" someone — and "had some extra money." Everyone on the streets, including Cleveland, was "lookin for her." Cleveland was driving an old brown truck when she encountered Anderson on East 14th Street. They decided to purchase "some crack."
A tape recording of the interview was played for the jury.
During their search for drugs Cleveland and Anderson picked up defendant and he rode in the truck with them. Gaines also subsequently entered the truck. Defendant told Anderson, "I been lookin for yo little ass," apparently referring to the rumor that she had some money. Defendant continued to demand money from Anderson and frighten her, while Anderson repeatedly denied that she had any money. Cleveland stopped the truck by the park; she stayed in the drivers seat as defendant and Anderson got out. As the dispute between defendant and Anderson escalated, defendant rummaged through Clevelands belongings in the truck and extracted a metal pipe. Suddenly, he walked up to Anderson and hit her in the head with the pipe. After defendant struck Anderson again with the pipe, she did not move. Cleveland was "stunned," and yelled at defendant. He picked up Anderson from the ground and placed her in the truck. Cleveland then drove the truck to 57th Street, where she "helped" defendant remove Anderson from the truck before he carried her away. Cleveland also used the name "Moe" or "Mo" to refer to the man who hit Anderson, and identified defendants photograph, number 2, from a lineup displayed to her that day as the man who struck Anderson with a pipe.
Some confusion existed over Clevelands reference to "another Moe" or "two Moes" during the interview and at the preliminary hearing, but ultimately she identified defendant.
Cleveland offered a rambling, confusing account of the murder at the preliminary hearing that differed considerably from her prior statements. She testified that she lived in San Leandro but often visited the "fifties" neighborhood, and had many acquaintances there, including Anderson, Gaines and defendant. She was just recently "out of jail" and "really high" on crack the evening of January 10, 2007. She was not driving a truck, but rather was on foot. She contacted her friend Anderson on the street on that night. Anderson was "moving fast" and seemed nervous. Cleveland asked Anderson "if shes all right," and told her not "to be nervous." She also offered Anderson drugs. Cleveland heard from others around the neighborhood that Anderson "hit a lick," meaning she "stole some money." Cleveland "kept seeing" Anderson purchase drugs that evening. She also observed Anderson arguing with "one guy" who was "on a heroin tweak" and "pretty upset."
At trial, Clevelands testimony from the preliminary hearing was read to the jury. She did not testify at trial.
Later, Cleveland observed Anderson standing near a truck at the Rainbow Center on the corner of 56th and East 14th with a man whom she called "Moe" and identified as defendant. Anderson was "yelling and screaming, saying, `No, stop hitting me. I gave you everything I have. " Cleveland heard defendant ask Anderson, "Bitch, where the money at?" Cleveland testified that defendant was "tripping" and repeatedly calling Anderson a "bitch." Cleveland decided to leave. As she reached the corner she "turned back" and realized that defendant "was hitting" Anderson. She did not see defendant in possession of an object, but she "could see hands going up and hands coming down." According to Clevelands testimony, she told an investigating officer that after defendant struck Anderson a second time the victim fell to the ground, and "it was a wrap." Anderson did not scream or move thereafter, and Cleveland assumed she was dead. Cleveland "ran away," and thought to herself, "I hope he didnt kill that girl."
During her preliminary hearing testimony Cleveland acknowledged that specified statements she made during the prior interview with the police were untrue: that she had been in a truck with defendant and Anderson; and that she observed defendant pick up Andersons body and place it in the truck, then saw him later throw the body into a creek. Those statements were lies that Cleveland told the police officers because they were "really scaring" her and she "told them whatever they needed to hear to get up out of there." Cleveland also testified that she told the officer in her pretrial statement that she heard defendant say to Anderson, "I been looking for your little ass," but she did not disclaim that statement in her testimony.
Andersons body was found the next morning in a drainage canal behind the Rainbow Recreation Center. Her silver scooter was discovered on the bank of the creek. Cleveland arrived not long after the body was found. She observed Anderson "laying down in the water dead." Defendant then appeared at the scene and asked Cleveland why people were "standing around." When Cleveland told him that Anderson had been killed, defendant did not exhibit any remorse or emotion. He "was like, oh, well."
An autopsy revealed multiple lacerations and soft tissue contusions of the victims scalp, face and both sides of the brain. She suffered a skull fracture of the left temporal-parietal area and bleeding beneath the dural and arachnoid membranes. Exertion of a "significant amount of force" was necessary to cause the injuries. The injuries were consistent with blows from a metal object. Cause of death was "[b]lunt injuries to the head."
DISCUSSION
I. The Admission of Kassandra Clevelands Preliminary Hearing Testimony.
We first confront defendants contention that the trial court erred by admitting Clevelands "preliminary hearing testimony and, to impeach it, her out-of-court statements to the police." His argument has two facets. First, he complains that the court failed to undertake the requisite "particularized inquiry" into Clevelands assertion of her Fifth Amendment privilege against self-incrimination before determining that she was unavailable and admitting her prior testimony. Defendant also submits that the court did not consider whether Cleveland "could legitimately refuse" to answer any questions about the murder, particularly given her prior incriminating statements and preliminary hearing testimony. Defendant therefore argues that his "rights under the state and federal Constitutions to confront and cross-examine the main witness against him" were violated by the trial court. He adds that "his attorneys failure to object to the admission of the preliminary examination testimony and the out-of-court statements on those grounds violated his Sixth and Fourteenth Amendment rights to the effective assistance of counsel."
Cleveland was found to be an unavailable witness prior to trial. She had already given a statement to the police in which she admitted transporting the victims body in the truck and helping defendant "pull her" up to "a position where he could go on and just carry her" away. She had also given preliminary hearing testimony in which she claimed that she began to leave the scene before the victim was killed, and denied even having a truck. Cleveland was subpoenaed to testify at trial, but failed to appear. She was then arrested on a warrant and placed in custody, although she was neither charged nor given immunity for any acts related to Andersons murder. The prosecution moved in limine for the court to appoint counsel for Cleveland and declare her an unavailable witness.
Cleveland appeared in court with appointed counsel and stated in response to a query by the prosecutor that she would assert her privilege against self-incrimination related to "any questions about what [I] may know about Miss Andersons murder." The prosecutor also asked if Cleveland was present when Anderson was hit and if she helped put her body in a truck. To both questions Cleveland answered, "I plead the Fifth." When asked by the court, defense counsel stated that he had "no questions" if Cleveland was "taking the Fifth." The court then inquired if Cleveland was "going to take the Fifth on every question that you will be asked in this matter?" After Cleveland responded that she would, the court excused her and found, "Shes unavailable, and her former testimony may in fact be used."
Prior to conferring with counsel Cleveland blurted out the reply, "No, sir," to the question, "Were you present when the victim was hit?"
A. Defendants Failure to Object
Before examining the propriety of the trial courts inquiry and the finding of Clevelands unavailability as a witness, we confront the Attorney Generals contention that defendant "forfeited his claim" of violation of his right to confrontation by failing to object or ask additional questions of the witness when granted the opportunity to do so by the court. The Attorney General is correct that defense counsel not only expressly declined to ask additional questions of the witness related to her invocation of the privilege against self-incrimination, but also declared, "Ill submit the matter," when the court inquired if the defense wanted to be heard further on the matter.
A fundamental rule of appellate review is that a "right may be lost not only by waiver but also by forfeiture, that is, the failure to assert the right in timely fashion." (People v. Barnum (2003) 29 Cal.4th 1210, 1224.) "A `reviewing court ordinarily will not consider a challenge to a ruling if an objection could have been but was not made in the trial court. [Citation.] The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected. . . . [Citation.]" (In re X.V. (2005) 132 Cal.App.4th 794, 804.) "The critical point for preservation of claims on appeal is that the asserted error must have been brought to the attention of the trial court." (Boyle v. CertainTeed Corp. (2006) 137 Cal.App.4th 645, 649; see also In re S.B. (2004) 32 Cal.4th 1287, 1293.) " `It is unfair to the trial judge and to the adverse party to take advantage of an alleged error on appeal where it could easily have been corrected at trial. [Citations.] [Citation.]" (Cabrini Villas Homeowners Assn. v. Haghverdian (2003) 111 Cal.App.4th 683, 693.) " `The parties must call the courts attention to issues they deem relevant. " `In the hurry of the trial many things may be, and are, overlooked which could readily have been rectified had attention been called to them. The law casts upon the party the duty of looking after his legal rights and of calling the judges attention to any infringement of them. " [Citation.] . . . [Citation.]" (Saville v. Sierra College (2005) 133 Cal.App.4th 857, 872.)
"Thus, as a general rule, `the failure to object to errors committed at trial relieves the reviewing court of the obligation to consider those errors on appeal. [Citations.]" (In re Seaton (2004) 34 Cal.4th 193, 198.) "`"This applies to claims based on statutory violations, as well as claims based on violations of fundamental constitutional rights. [Citations.]" [Citation.] The reason for this rule is to allow errors to be corrected by the trial court and to prevent gamesmanship by the defense." (People v. Romero (2008) 44 Cal.4th 386, 411.)
Defendant did not forfeit his objection to the trial courts ultimate finding that Cleveland properly asserted her privilege against self-incrimination and was thus unavailable as a witness at trial. The issue of Clevelands right to assert the privilege was litigated and resolved in the context of the Peoples in limine motion, which was opposed by the defense. Nothing precludes defendant from claiming that the court erred by finding that Cleveland was unavailable as a witness at trial.
The second facet of defendants argument is that the court failed to conduct an adequate inquiry before making the finding of unavailability. By proclaiming, "I have no questions," declining to conduct a further examination of the witness, and affirmatively submitting the determination of her unavailability on the questions and arguments already presented, the defense deprived the court and the prosecution of the opportunity to cure any defect in the witness examination process. (See People v. Williams (2008) 43 Cal.4th 584, 619-620.) Nevertheless, despite the lack of an objection by defendant, we exercise our discretion to review the merits of the issue to resolve the associated claim of inadequate assistance of counsel. (People v. Smith (2003) 31 Cal.4th 1207, 1215; People v. Marshall (1996) 13 Cal.4th 799, 831-832; People v. Yarbrough (2008) 169 Cal.App.4th 303, 310; People v. Ibarra (2007) 156 Cal.App.4th 1174, 1179; People v. Urbano (2005) 128 Cal.App.4th 396, 404.)
B. The Examination of the Witness and the Finding of Unavailability
We proceed with our review of the examination of the witness and the trial courts finding that she was entitled to assert the privilege against self-incrimination. "It is a bedrock principle of American (and California) law, embedded in various state and federal constitutional and statutory provisions, that witnesses may not be compelled to incriminate themselves." (People v. Seijas (2005) 36 Cal.4th 291, 304.) "Although defendants have the general right to confront the witnesses against them, this right is not absolute and properly gives way when a witness is entitled to the protection of the Fifth Amendment privilege against self-incrimination and the defendant had an appropriate prior opportunity to cross-examine the witness." (People v. Williams, supra, 43 Cal.4th 584, 618.) Further, "If a witness is unavailable at trial and has testified at a previous judicial proceeding against the same defendant and was subject to cross-examination by that defendant, the previous testimony may be admitted at trial." (People v. Smith (2003) 30 Cal.4th 581, 609.) "A witness who successfully asserts the privilege against self-incrimination is unavailable to testify for these purposes." (People v. Seijas, supra, at p. 303.) "However, `[t]o be found unavailable on this ground, a witness must not only intend to assert the privilege, but also be entitled to assert it. [Citation.]" (Ibid.)
To determine whether a witness may "invoke the privilege against self-incrimination, we need not decide whether his testimony actually would have incriminated him, but rather whether it would have given him `reasonable cause to apprehend danger from the testimony. [Citation.]" (People v. Smith (2007) 40 Cal.4th 483, 520, italics omitted.) The privilege "`must be accorded liberal construction in favor of the right it was intended to secure. [Citation.]" (Ibid.) " `To invoke the privilege, a witness need not be guilty of any offense; rather, the privilege is properly invoked whenever the witnesss answers "would furnish a link in the chain of evidence needed to prosecute" the witness for a criminal offense. [Citations.] [¶] `A witness may assert the privilege who has "reasonable cause to apprehend danger from a direct answer." [Citation.] Moreover, ` "[t]o sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result." [Citation.] To deny an assertion of the privilege, "the judge must be ` "perfectly clear, from a careful consideration of all the circumstances in the case, that the witness is mistaken, and that the answer[s] cannot possibly have such tendency" to incriminate. " [Citations.] Given the broad protective scope of the privilege, waiver of a nonparty witnesss privilege `is not to be lightly inferred. [Citations.]" (People v. Williams, supra, 43 Cal.4th 584, 613-614.) Where a witness asserts the " `privilege against self-incrimination, a trial court may compel the witness to answer only if it "clearly appears to the court" that the proposed testimony "cannot possibly have a tendency to incriminate the person claiming the privilege." [Citation.] [Citation.]" (People v. Lucas (1995) 12 Cal.4th 415, 454.) " `To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result. " (Blackburn v. Superior Court (1993) 21 Cal.App.4th 414, 427, quoting from Hoffman v. United States (1951) 341 U.S. 479, 486-487.)
"However, a party is not entitled to decide for himself or herself whether the privilege against self-incrimination may be invoked. ` "Rather, this question is for the court to decide after conducting `a particularized inquiry, deciding, in connection with each specific area that the questioning party seeks to explore, whether or not the privilege is well founded. [Citation.]" [Citations.] [Citations.]" (Fuller v. Superior Court (2001) 87 Cal.App.4th 299, 305, italics omitted; see also Blackburn v. Superior Court, supra, 21 Cal.App.4th 414, 428.)
Here, the trial court and counsel were distinctly aware from the context of the case, and without any further questioning, of the incriminating nature of testimony Cleveland may have offered at trial. The witnesss prior statements to the police not only placed her at the scene of the murder, but revealed that she may have aided defendant with the transportation and disposal of the victims body following the murder. She also admitted that she was in possession of a truck the parties stipulated was stolen. The potential of Clevelands testimony to incriminate her as an accessory after the fact to the murder, vehicle theft, or possession of stolen property was quite obvious. Through questioning by the prosecutor and the court, the intent of the witness to invoke the privilege was also established. Cleveland repeatedly declared that she would decline to reply to any inquiries about the murder. When specifically queried, she invoked the privilege to refuse to discuss her presence at the scene or any of the acts she undertook to assist defendant after the murder.
We find that no further inquiry of the witness was necessary. "Witnesses may refuse to answer questions calling for a potential link in a chain of evidence of guilt, as well as questions calling for clear admissions against penal interest. [Citations.] Although the court should make a particularized inquiry as to whether or not a claim of privilege is well founded [citation], in order to approve invocation of the privilege ` "it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result." [Citations.]" (People v. Lucas, supra, 12 Cal.4th 415, 454.) The inquiry by the court and prosecutor, although brief, uncovered both the basis for invoking the privilege and a positive invocation by the witness of her Fifth Amendment rights. This is not a complex case in which the incriminating character of the witnesss testimony required intense scrutiny or detailed examination. The inquiry conducted by the court and prosecutor sufficed to demonstrate the witnesss invocation of the privilege and to explore whether it was well founded. The trial court had no obligation to undertake the further " `meaningless ritual "of asking a litany of specific questions of a witness who made it clear she would not answer and would invoke the privilege as to any relevant inquiry in the case. (People v. Hill (1992) 3 Cal.4th 959, 991, citation omitted; People v. Cornejo (1979) 92 Cal.App.3d 637, 658-659.)
We further conclude that the trial court did not err by acknowledging the witnesss right to decline to testify. Any testimony by Cleveland at trial may possibly have tended to incriminate her. If the content of her testimony at trial had reverted to her pretrial statements to the police, incrimination was assured. If she repeated her preliminary hearing testimony, probing by the prosecution on direct or by defense counsel on cross-examination would nevertheless have at least posed a danger of self-incrimination to an extent greater than had already occurred. It appears to us that all of the parties — even defendants counsel — believed the witnesss testimony carried the potential for self-incrimination. (People v. Smith, supra, 40 Cal.4th 483, 520-521; People v. v. Seijas, supra, 36 Cal.4th 291, 306.)
Defendant insists that the trial court improperly accepted a "blanket invocation" of the privilege against self-incrimination by Cleveland. He claims that the privilege may only be asserted to a " `specific question " that may " `tend to incriminate the witness. [Citation.]" (People v. Ford (1988) 45 Cal.3d 431, 441.) We agree with defendant that a witness "may not invoke a blanket privilege against self-incrimination," and the trial court must determine whether the particular testimony sought to be elicited would " `support a conviction " or " `furnish a link in the chain of evidence needed to prosecute the witness [citation] . . . ." (Fuller v. Superior Court, supra, 87 Cal.App.4th 299, 308.) But in the present case, the trial court was not required to do any more than was done, given the obvious intent of the witness expressed during questioning to invoke the privilege to all questions about the murder. Equally obvious was the circumstance that at least a link in the chain of evidence of guilt would have been furnished if Cleveland offered any testimony and thereby waived her privilege with respect to all matters to which she testified expressly or impliedly on direct examination or were relevant to impeach her credibility as a witness. (See Harrison v. United States (1968) 392 U.S. 219, 222; People v. Malone (2003) 112 Cal.App.4th 1241, 1245; People v. Humiston (1993) 20 Cal.App.4th 460, 474; People v. Harris (1992) 8 Cal.App.4th 104, 109.) Any testimony given by Cleveland that recounted her observations and actions at the murder scene could have provided a link in the chain of evidence tending to incriminate her as an accessory to the murder or crimes related to the stolen truck. (People v. Lucas, supra, 12 Cal.4th 415, 455.) "`Where, as here, it is apparent that the witness would have offered no testimony in response to questions posed, it is not improper for the trial court to determine that fact in advance and excuse the witness. [Citation.]" (People v. Fonseca (1995) 36 Cal.App.4th 631, 638.)
Defendant also claims that given Clevelands prior admissions to the police that she assisted with disposal of the body, the trial court should have determined whether the prosecution "had any intention of prosecuting her for that crime and if it was willing to grant her use immunity, as it had Deanna Gaines, in order to obtain her testimony." Defendant points out that the witness "had already incriminated herself in a number of ways and faced no danger of prosecution." Essentially, defendant is suggesting that before a witness is granted the right to assert the privilege against self-incrimination the court must determine the prosecutions actual intent to prosecute the witness. Invocation of the privilege is not dependent upon an existing threat or proclamation of intent to prosecute the witness for offenses revealed by incriminating testimony. Nor is the prosecution required to declare an intent to prosecute the witness before the content of testimony may even be known. It is the " `tendency to incriminate the person claiming the privilege " that triggers the privilege, not whether a decision to prosecute the witness has been expressed. (People v. Williams, supra, 43 Cal.4th 584, 614, quoting Evid. Code, § 404.) Even if prosecution of the witness appears "unlikely, the privilege against self-incrimination does not require, or even permit, the court to assess the likelihood of an actual prosecution in deciding whether to permit the privilege. The court may not force a witness to make incriminating statements simply because it believes an actual prosecution is unlikely. The test is whether the statement might tend to incriminate, not whether it might tend to lead to an actual prosecution or, stated slightly differently, whether the statement could, not would, be used against the witness. (See Evid. Code, § 404.) Forcing a witness to make incriminating statements whenever the court feels that actual prosecution is unlikely would impermissibly weaken the privilege against self-incrimination. Use of incriminating statements must be forbidden, as by a grant of immunity, and not merely unlikely, before the court may force a witness to make them." (People v. Seijas, supra, 36 Cal.4th 291, 305.)
Finally, contrary to defendants contention, we find that the witness did not waive her privilege against self-incrimination by giving prior statements to the police or testifying at the preliminary hearing. Defendant maintains that Clevelands prior disclosure of facts waived the privilege "as to details." Defendant is correct that, "A nonparty witness may elect to waive his or her privilege against self-incrimination. In addition, in some instances a waiver may be implied when a witness has made a partial disclosure of incriminating facts. `It is well established that a witness, in a single proceeding, may not testify voluntarily about a subject and then invoke the privilege against self-incrimination when questioned about the details. [Citation.] The privilege is waived for the matters to which the witness testifies, and the scope of the "waiver is determined by the scope of relevant cross-examination." [Citation.] [Citations.]" (People v. Williams, supra, 43 Cal.4th 584, 615.)
However, the fact that Cleveland failed to assert the privilege against self-incrimination during her police interviews or at the preliminary hearing did not prevent her from asserting the privilege at trial, even if the prior waivers were voluntary. (People v. Seijas, supra, 36 Cal.4th 291, 303.) A witness who chooses to make a statement or testify waives the privilege against compulsory self-incrimination only " `with respect to the testimony he gives . . . . [Citation.]" (People v. Malone, supra, 112 Cal.App.4th 1241, 1245.) "[A] witnesss failure to invoke the privilege against self-incrimination during one hearing within a proceeding does not necessarily constitute a waiver for the purpose of subsequent hearings. Thus the failure of a witness to claim the privilege at a preliminary hearing does not prevent the witness from refusing to testify regarding the same incriminating material at the trial." (People v. Williams, supra, 43 Cal.4th 584, 615.) Cleveland did not waive her Fifth Amendment privilege not to testify at trial.
We find that the trial court did not err by acknowledging Clevelands right to assert her privilege against compulsory self-incrimination and declaring her to be an unavailable witness. (People v. Smith, supra, 40 Cal.4th 483, 520-521; People v. Seijas, supra, 36 Cal.4th 291, 303-305.) As a result, defendants right to confront the witness was not abridged. (People v. Smith, supra, at p. 521.) " `"If a witness is unavailable at trial and has testified at a previous judicial proceeding against the same defendant and was subject to cross-examination by that defendant, the previous testimony may be admitted at trial." [Citations.] The defendant "must not only have had the opportunity to cross-examine the witness at the previous hearing, he must also have had `an interest and motive similar to that which he has at the [subsequent] hearing. " [Citation.] Under these rules, "we have routinely allowed admission of the preliminary hearing testimony of an unavailable witness." [Citation.] The recent decision of Crawford . . ., although changing the law of confrontation in some respects, left these principles intact. (People v. Seijas (2005) 36 Cal.4th 291, 303 [30 Cal.Rptr.3d 493, 114 P.3d 742]; see also People v. Carter (2005) 36 Cal.4th 1114, 1173-1174 [32 Cal.Rptr.3d 759, 117 P.3d 476] [` "[A]s long as a defendant was provided the opportunity for cross-examination, the admission of preliminary hearing testimony . . . does not offend the confrontation clause of the federal Constitution simply because the defendant did not conduct a particular form of cross-examination that in hindsight might have been more effective." ].)" (People v. Byron (2009) 170 Cal.App.4th 657, 674; see also People v. Williams, supra, 43 Cal.4th 584, 618-619.)
Crawford v. Washington (2004) 541 U.S. 36.
When Cleveland testified at the preliminary hearing, defense counsel cross-examined her under circumstances where defendants interests were closely similar, if not identical, to what his motive would have been at trial. (People v. Malone (1988) 47 Cal.3d 1, 23; People v. Byron, supra, at p. 674.) The cross-examination conducted by defense counsel at the preliminary hearing effectively highlighted the discrepancies between Clevelands statements and her testimony, particularly her reference to the "two Moes" present on the night of Andersons murder. Therefore, Clevelands preliminary hearing testimony was properly admitted at trial. (People v. Seijas, supra, at p. 306; People v. Byron, supra, at p. 674.) As a result, defense counsel did not provide inadequate representation by failing to object to the admission of the testimony. (People v. Turner (2004) 34 Cal.4th 406, 431.)
Defendant does not make a separate claim on appeal that Clevelands statement to the police was improperly admitted at trial as a prior inconsistent statement.
II. The Felony-murder Instruction.
Defendant also argues that the trial court erred by failing to provide the jury with complete felony-murder instructions. The prosecution proceeded on two theories of first degree murder: premeditated murder and felony murder. The felony-murder theory was based on a murder committed during the course of a robbery or attempted robbery of the victim. The trial court gave instructions on felony murder and robbery, but did not instruct the jury separately on all of the elements of an attempt.
Defendant argues that the "crime of `attempt has a specific legal meaning," and thus must be defined in the terms of "CALCRIM No. 460 and its predecessor, CALJIC No. 6.00," to "give critical guidance to juries both on the elements of attempt and on what evidence would be required to establish it." He claims that by failing to instruct separately on the elements of attempt the court committed "federal constitutional error," which requires reversal of the murder conviction.
The Attorney General concedes that the "trial court erred," and we agree. In criminal law, "An attempt to commit a crime consists of two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission." (Pen. Code, § 21a; see also People v. Herman (2002) 97 Cal.App.4th 1369, 1385; People v. Reed (1996) 53 Cal.App.4th 389, 398.) Under section 21a, a defendant may be found guilty of attempting to commit a crime when the defendant acting with the specific intent to commit the crime "performs an act that goes beyond mere preparation and indicates that he or she is putting a plan into action." (People v. Toledo (2001) 26 Cal.4th 221, 230; see also People v. Post (2001) 94 Cal.App.4th 467, 480-481.) "When a defendant is charged with an attempted crime, the court normally instructs the jury with CALJIC No. 6.00 (setting forth the requirements for an attempt to commit a crime) and also with an instruction setting forth the elements of the crime alleged to have been attempted. CALJIC No. 6.00 provides, in relevant part: `An attempt to commit a crime consists of two elements, namely, a specific intent to commit the crime, and a direct but ineffectual act done toward its commission. " (People v. Beck (2005) 126 Cal.App.4th 518, 521.) The courts "failure to instruct the jury on the elements of an attempt was error." (People v. Cain (1995) 10 Cal.4th 1, 44.)"
` " `[A] defendant has a constitutional right to have the jury determine every material issue presented by the evidence [and] . . . an erroneous failure to instruct on a lesser included offense constitutes a denial of that right . . . . [Citation.]" [Citation.]" (People v. Prince (2007) 40 Cal.4th 1179, 1264.) "A jury instruction that omits an element of an offense requires reversal unless the error was harmless beyond a reasonable doubt. [Citation.] However, if no rational jury could have found the missing element unproven, the error is harmless beyond a reasonable doubt." (People v. Nicholson (2004) 123 Cal.App.4th 823, 833.) "Pursuant to that standard of review `we must ultimately look to the evidence considered by defendants jury under the instructions given in assessing the prejudicial impact or harmless nature of the error. [Citation.] `[W]e must inquire whether it can be determined, beyond a reasonable doubt, that the jury actually rested its verdict on evidence establishing the requisite [elements of the crime] independently of the force of the . . . misinstruction. [Citation.]" (People v. Beck, supra, 126 Cal.App.4th 518, 524.)
Looking at the evidence and instructions as a whole, we conclude that the error was not prejudicial to defendant. The trial court gave the standard CALJIC felony-murder instructions (CALJIC Nos. 8.10, 8.21) to the jury. These instructions informed them that a killing was murder of the first degree if it occurred during the commission or attempted commission of the crime of robbery. (See People v. Silva (2001) 25 Cal.4th 345, 371-372.) The courts felony-murder and robbery instructions (CALJIC Nos. 8.21, 9.40) properly advised the jury of the requisite element of a specific intent to deprive the victim of property by means of force or fear. Thus, the first element of the attempt instruction was explicitly covered by the murder and robbery instructions. In the context of the evidence presented at trial, the second element of the attempt instruction would have added nothing consequential to the definition of an attempt. Our high court has declared that, "insofar as relevant here this instruction merely restates the common meaning of `attempt. To attempt an act is to `try or `endeavor to do or perform the act. (Websters New Internat. Dict. (2d ed. 1958) p. 177.)" (People v. Cain, supra, 10 Cal.4th 1, 44.) In finding that defendant committed murder — under either of the two theories offered — the jury necessarily considered and found the elements articulated in the attempt instruction: that is, that defendant used force upon the victim to attempt to obtain money he believed was in her possession. No reasonable reading of the trial evidence could have led to the conclusion that defendants acts amounted to "mere preparation" and not "actual commencement of the doing of the [robbery]." (CALJIC No. 6.00; see also People v. Toledo, supra, 26 Cal.4th 221, 230, and fn. 6.) Thus, in light of the instructions actually given by the trial court, the failure additionally to advise the jury that an attempt required a direct but ineffectual act done toward commission of the robbery did not contribute to the verdict obtained. (People v. Cain, supra, at p. 44.) "For the same reason, defendants related claim of ineffective assistance of counsel in failing to request a definitional instruction is also unavailing." (Ibid.)
As given to the jury, CALJIC No. 8.21 read: "The unlawful killing of a human being, whether intentional, unintentional or accidental, which occurs during the commission or attempted commission of the crime of robbery is murder of the first degree when the perpetrator had the specific intent to commit that crime. [¶] The specific intent to commit robbery and the commission or attempted commission of that crime must be proved beyond a reasonable doubt. [¶] [In law, a killing occurs during the commission or attempted commission of a felony, so long as the fatal blow is struck during its course, even if death does not then result.]"
The jury was given CALJIC No. 9.40 which read: "Every person who takes personal property in the possession of another, against the will and from the person or immediate presence of that person, accomplished by means of force or fear and with the specific intent permanently to deprive that person of the property, is guilty of the crime of robbery in violation of Penal Code section 211. [¶] The words `takes or `taking require proof of (1) taking possession of the personal property, and (2) carrying it away for some distance, slight or otherwise. [¶] [`Immediate presence means an area within the alleged victims reach, observation or control, so that he or she could, if not overcome by violence or prevented by fear, retain possession of the subject property.] [¶] `Against the will means without consent. [¶] In order to prove this crime, each of the following elements must be proved: [¶] 1. A person had possession of property of some value however slight; [¶] 2. The property was taken from that person or from [her] immediate presence; [¶] 3. The property was taken against the will of that person; [¶] 4. The taking was accomplished either by force or fear; and [¶] 5. The property was taken with the specific intent permanently to deprive that person of the property."
III. The Evidence in Support of the Murder Conviction.
We turn to defendants contention that the evidence does not support the murder conviction on any theory. He maintains that the prosecution failed to prove either the requisite deliberation or premeditation associated with the killing of Anderson, or a killing committed during the course of a robbery or attempted robbery. We find that substantial evidence supports the first degree murder verdict on a theory of felony murder.
Our role as "an appellate court in reviewing the sufficiency of the evidence is limited." (People v. Ceja (1993) 4 Cal.4th 1134, 1138; see also People v. Lewis (2001) 25 Cal.4th 610, 643; In re Carl R. (2005) 128 Cal.App.4th 1051, 1061.) "[W]e ask not whether there is evidence from which the trier of fact could have reached some other conclusion, but whether, viewing the evidence in the light most favorable to respondent, and presuming in support of the judgment the existence of every fact the trier reasonably could deduce from the evidence, there is substantial evidence of appellants guilt, i.e., evidence that is credible and of solid value, from which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. Thus, our sole function as a reviewing court in determining the sufficiency of the evidence is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (In re Michael M. (2001) 86 Cal.App.4th 718, 726, fn. omitted; see also In re Babak S. (1993) 18 Cal.App.4th 1077, 1088-1089.)
As a reviewing court we do not resolve creditability issues or evidentiary conflicts. Those determinations are made by the trier of fact. (People v. Young (2005) 34 Cal.4th 1149, 1181.) "We may not reverse a conviction for insufficiency of the evidence unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction." (People v. Tripp (2007) 151 Cal.App.4th 951, 955; see also People v. Wader (1993) 5 Cal.4th 610, 640.)
"However, `[e]vidence which merely raises a strong suspicion of the defendants guilt is not sufficient to support a conviction. . . . [Citation.]" (People v. Tripp, supra, 151 Cal.App.4th 951, 955-956; see also People v. Wader, supra, 5 Cal.4th 610, 640.) " `Substantial evidence must be more than evidence which merely raises a strong suspicion of guilt as mere suspicion will not support an inference of fact. [Citation.]" (People v. Thongvilay (1998) 62 Cal.App.4th 71, 79.) To withstand an insufficiency of the evidence challenge, the trial court must find and the record must contain evidence substantial enough to support the finding of each essential element of the crime. (United States v. Gaudin (1995) 515 U.S. 506, 522-523; People v. Johnson (1992) 5 Cal.App.4th 552, 558.) That means not only every element of the offense, but also all of the "facts necessary to establish each of those elements." (Sullivan v. Louisiana (1993) 508 U.S. 275, 277-278; see also People v. Crawford (1997) 58 Cal.App.4th 815, 821.)
"To have convicted defendant of first degree murder under a felony-murder theory here, the jury had to have found beyond a reasonable doubt that defendant had killed [Anderson] in an attempt to perpetrate a robbery." (People v. Elliot (2005) 37 Cal.4th 453, 475.) " `All murder . . . which is committed in the perpetration of, or attempt to perpetrate [certain enumerated felonies including robbery and burglary] . . . is murder of the first degree. [Citation.] The mental state required is simply the specific intent to commit the underlying felony [citation], since only those felonies that are inherently dangerous to life or pose a significant prospect of violence are enumerated in the statute. [Citations.] `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.]" (People v. Cavitt (2004) 33 Cal.4th 187, 197.)
Defendants intent to rob Anderson is convincingly established by the evidence. " `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." ([Pen. Code, ]§ 211.) . . . [Citation.]" (People v. Torres (1996) 43 Cal.App.4th 1073, 1079; see also People v. Bekele (1995) 33 Cal.App.4th 1457, 1461; People v. Pham (1993) 15 Cal.App.4th 61, 65.) The essential elements of robbery are: a taking of personal property; in the possession of another; from the person or immediate presence; against the victims will; accomplished by means of force or fear; with an intent to permanently deprive the victim of property. (People v. Prieto (1993) 15 Cal.App.4th 210, 213.) Intent may be proved through circumstantial evidence, including the defendants words and actions. (People v. Medina (2007) 41 Cal.4th 685, 699; People v. Lashley (1991) 1 Cal.App.4th 938, 945-946.) Further, "When a defendant acts with the requisite specific intent, that is, with the intent to engage in the conduct and/or bring about the consequences proscribed by the attempted crime [citation], and performs an act that `go[es] beyond mere preparation . . . and . . . show[s] that the perpetrator is putting his or her plan into action [citation], the defendant may be convicted of criminal attempt." (People v. Toledo, supra, 26 Cal.4th 221, 230.) " ` "When it is established that the defendant intended to commit a specific crime and that in carrying out this intention he committed an act that caused harm or sufficient danger of harm, it is immaterial that for some collateral reason he could not complete the intended crime." [Citation.] [Citation.]" (People v. Medina, supra, at p. 694.)
Viewing the facts in the light most favorable to the judgment, as we must (People v. Cochran (2002) 103 Cal.App.4th 8, 13; People v. Bento (1998) 65 Cal.App.4th 179, 193), testimony was presented by Cleveland that people on the streets of the "fifties" neighborhood of Oakland believed Anderson was in possession of money. Cleveland stated specifically that defendant was aware Anderson "hit the lick." Defendant expressed to Cleveland that he knew "the bitch got some money," and wanted to "get some a [sic] that money." In her statement, Cleveland mentioned that she heard defendant tell Anderson he had been looking for her, and that he seemed happy that he "finally like caught her or somethin." Both Gaines and Cleveland testified that defendant and the victim engaged in a heated argument just before the murder. In her testimony Cleveland recounted defendants query to Anderson, "Bitch, where the money at?" Defendant repeatedly demanded money from Anderson despite both her claims that she had no more money and her entreaties to stop hitting her. Cleveland also testified that she heard Anderson plead with defendant, "No, stop hitting me. I gave you everything I have."
Although defendant suggests that Clevelands statement and testimony are both inconsistent and unreliable, we must not only view her accounts of the evidence in the light most favorable to the judgment, but in our restricted role as reviewing court we cannot discount her credibility. (People v. Maury (2003) 30 Cal.4th 342, 403; People v. Lewis (2001) 26 Cal.4th 334, 361; People v. Mejia (2007) 155 Cal.App.4th 86, 93; People v. Franz (2001) 88 Cal.App.4th 1426, 1447.) "[U]nless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction." (People v. Young, supra, 34 Cal.4th 1149, 1181; see also People v. Panah (2005) 35 Cal.4th 395, 489; People v. Jackson (1992) 10 Cal.App.4th 13, 21.) " ` "To be improbable on its face the evidence must assert that something has occurred that it does not seem possible could have occurred under the circumstances disclosed." . . . "`Although an appellate court will not uphold a judgment or verdict based upon evidence inherently improbable, testimony which merely discloses unusual circumstances does not come within that category. . . . To warrant the rejection of the statements given by a witness who has been believed by a trial court, there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions. . . . " " (People v. Franz, supra, at p. 1447, quoting from People v. Mayberry (1975) 15 Cal.3d 143, 150.) Clevelands statement to the police is not so inherently implausible that it must be discounted, despite her apparent efforts to distance herself from the statement in many respects during her preliminary hearing testimony. The jury was entitled to determine that Clevelands statement was a credible account of the murder, and she changed her narrative at the preliminary hearing due to her fear of incriminating herself or defendant. Substantial evidence supports a finding of defendants intent to deprive the victim of her money. (People v. Alvarez (1996) 14 Cal.4th 155, 224.)
The evidence also proves that defendant used force or fear to obtain the victims money, or at least attempted to do so. According to Cleveland, Anderson became extremely frightened of defendant as their confrontation intensified and he used force upon her. Defendants demands for the victims money preceded and accompanied the threats and force he exerted. He then killed Anderson during the continuing course of their ongoing dispute over the money. We disagree with defendants assertion that the killing occurred "after the commission of robbery," not "during the commission of robbery," as the felony-murder doctrine requires. "To be convicted of robbery, the perpetrator must intend to deprive the victim of the property permanently. [Citations.] Robbery requires the `intent to steal . . . either before or during the commission of the act of force [citation], because `[i]f [the] intent to steal arose after the victim was assaulted, the robbery element of stealing by force or fear is absent [citation]." (People v. Huggins (2006) 38 Cal.4th 175, 214.) Also, to support a felony-murder conviction, "the killing `need not occur in the midst of the commission of the felony, so long as that felony is not merely incidental to, or an afterthought to, the killing. [Citation.]" (People v. Elliot, supra, 37 Cal.4th 453, 475.) The only intent required to find felony murder is the "intent to commit the robbery before or during the killing." (People v. Huggins, supra, at p. 215; People v. Koontz (2002) 27 Cal.4th 1041, 1079-1080; People v. Musselwhite (1998) 17 Cal.4th 1216, 1263.) The testimony of both Gaines and Cleveland demonstrates that defendant entertained an intent to rob Anderson of her money before he used force on her. (People v. Huggins, supra, at pp. 214-215.) Defendant may or may not have accomplished his objective of taking money from the victim, but at the very least the evidence persuasively establishes that he attempted to commit a robbery, and during the course of it killed Anderson.
Finally, defendants suggestion of an alternative motive for the killing of Anderson — that defendant was "mad at her" for her "loud talking" or failure to share her money with him — does not negate the substantial evidence presented in support of the judgment. Even we if accept defendants theory of the killing, " ` " ` "If the circumstances reasonably justify the trier of facts 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. [Citation.]" " [Citation.] [Citation.] . . . [S]ufficient evidence supports a conviction for felony murder, and the viability of alternate theories provides no basis for reversing the judgment." (People v. Elliot, supra, 37 Cal.4th 453, 470; People v. Holt (1997) 15 Cal.4th 619, 670.)
Defendant also makes the claim the evidence fails to prove first degree premeditated murder. "We need not consider this claim since reversal is not necessary when the court can determine from the record that the verdict rested on a theory which is supported by sufficient evidence. [Citation.] The court can make that determination here." (People v. Holt, supra, 15 Cal.4th 619, 671.) We therefore need not examine the evidence of premeditation and deliberation.
Accordingly, the judgment is affirmed.
We have denied defendants petition for writ of habeas corpus (A124630) by separate order filed this date.
We concur:
Marchiano, P. J.
Margulies, J.