Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CRF083578
ROBIE, J.
A jury found defendant Carla M. Canales guilty of four counts of second degree robbery and found that, in each count, she aided and abetted a principal who was armed with a firearm. Imposition of sentence was suspended and defendant was placed on probation for five years on conditions including one year in the county jail with credit for 57 days.
On appeal, defendant contends: (1) her robbery convictions are not supported by sufficient evidence that she aided and abetted the robbers; and (2) the trial court erred by instructing the jury with CALCRIM No. 361 on failure to explain or deny matters asserted to be within her knowledge. We shall affirm the judgment.
FACTS
On an evening in December 2008, Ana Gonzalez and four other employees were working at a Yuba City restaurant. Gonzalez was behind the first cooking station, right behind the cash register, when two men entered the building. The men, who were wearing dark-colored hooded sweatshirts, went directly toward the swinging doors that led into the kitchen. Employee Sandra Perez told employee Araceli Ortega, who was in the kitchen area, that the restaurant was being robbed.
Gonzalez noticed that one of the men was holding a gun out to his side. The second man was behind the front counter saying “‘[d]on’t move. Don’t move.’” He randomly waved his gun and asked, “‘[w]here is the cash register?’” After Gonzalez told him where the register was located, he went there and grabbed what he could. The register may have contained $300. Also missing was a blue bag containing dollar bills and change.
After the second man took money from the cash register, he pulled the telephone to the floor as if to tear it off the wall and started to leave the store. The robbers took two purses that belonged to employees Gonzalez and Ortega. On the way out of the store, the second man pointed his gun at the employees and told them not to move. Both men left the store and walked to the left. Gonzalez did not recall seeing any vehicles waiting outside.
The men were in the store for a short time, and Gonzalez did not move until the men were completely gone. She then checked her coworkers to see how they were doing. She was afraid, very uncomfortable, and scared. Ortega was “kind of in shock” during the incident and was worried about her purse. Perez was scared. She cried, screamed, and trembled during the robbery.
Approximately 90 minutes after the robbery, Yolo County Sheriff’s Deputies Nick Morford and David Yenne were in Woodland on a county road that connects to Knights Landing and Yuba City. The deputies observed a car on the roadway with a nonfunctioning license plate light. The driver was not speeding or driving erratically. Morford performed a traffic stop of the car.
Deputy Morford contacted the driver, later identified as defendant. She said that she was coming from Knights Landing. The front passenger seat was empty. Michael Ramos was seated behind the driver’s seat. Joseph Virgil was seated to the right of Ramos. The men told Morford that they were in the rear seats so they could sleep.
Deputy Yenne approached the car, smelled marijuana, and noticed that Virgil kept “fiddling” with his pant leg. Yenne told everyone to step out of the car and asked defendant if anything illegal, such as marijuana, was in the car. Defendant responded, “Not anymore.” Yenne also asked for consent to search the car, “including the purses” that were on the floorboard, and defendant said, “‘Sure.’” She did not make any response such as “what purses” or ask why the request covered “more than one purse.” The purses belonged to defendant and to victims Gonzalez and Ortega.
Deputy Yenne searched the car. The search yielded gloves and “beanie” hats in the backseat, a loaded chrome revolver handgun in the compartment on the back side of the front passenger seat, and a Taser that was partially concealed under the driver’s seat.
Deputy Morford searched Ramos and Virgil. The search of Virgil yielded a black glove in his back pocket, an unknown amount of money in another pocket, a blue bank bag in his pant leg, and marijuana. The bank bag contained a large amount of money. The search of Ramos yielded a large amount of money in his right front pocket. No contraband was found on defendant’s person.
Defendant told Deputy Morford that she had picked up Ramos and Virgil from Ramos’s house in the Pittsburg/Bay Point area and had driven to Knights Landing to visit a friend. They arrived around 9:00 p.m. or 10:00 p.m. Defendant was not able to provide the friend’s name, address, or contact information. She said they were on their way back to Pittsburg.
Ramos and Virgil were later identified from a photographic lineup as the two men who had robbed the Yuba City restaurant.
Defendant testified that in December 2008, she was a student who lived with her family in Pittsburg. On December 7, she was with Virgil and Ramos, her then-boyfriend, at Ramos’s house in Bay Point, near Pittsburg. Ramos asked defendant to give him a ride to get some marijuana. She agreed. Around 7:00 p.m. or 8:00 p.m., they left Ramos’s house in defendant’s father’s car. Defendant was driving. Defendant and Ramos had been dating for “[a] few years off and on.” She had known Virgil for “two years at the most.”
Defendant drove toward Benicia and Virgil gave her directions to Knights Landing. She had never been there before. When they arrived at an area defendant believed to be Knights Landing, Virgil said, “[o]kay, just stop and park your car, ” which she did. Ramos and Virgil got out of the car. When defendant started to follow, Ramos and Virgil said, “‘[j]ust stay. We’ll be right back.’”
About three to five minutes later, Ramos returned to the car and said, “‘[w]e’re going to go get the weed. We’ll be back in a little bit.’” Defendant saw Ramos walk toward a house and then saw a car drive off. Defendant remained in her car and waited for Ramos to return. He and Virgil were gone for 60 to 90 minutes.
When Ramos finally returned, defendant was upset. She got out of the car and cussed at Ramos. He responded, “‘You know what, I don’t even want to hear it. Let’s just go home.’” He reached for the driver’s side door but defendant told him that he could not drive. He replied, “‘I’m not going to drive your car. I’m going in the back seat [¶]... [¶] [b]ecause I’m tired and I just want to go to sleep.’” Virgil was already in the backseat when defendant reentered the car. They drove off and Virgil told defendant how to get back to Pittsburg.
When defendant was stopped by the sheriff’s deputies, she was asked if anything illegal was in the car and she replied, “not anymore, ” she had in mind marijuana that she assumed was in the men’s possession. Because Ramos and Virgil were outside of the car by the time of the question, she answered, “not anymore.” She had never been to the Yuba City restaurant, and no one told her that they were going to commit a robbery.
The prosecutor did not question defendant about the purses, the Taser, the loaded revolver, or the blue money bag that fell out of Virgil’s pant leg.
DISCUSSION
I
Substantial Evidence Of Aiding And Abetting
Defendant contends the prosecution failed to present substantial evidence that she aided and abetted the two robbers, thus violating her due process rights. We are not persuaded.
“On appeal, the test of legal sufficiency is whether there is substantial evidence, i.e., evidence from which a reasonable trier of fact could conclude that the prosecution sustained its burden of proof beyond a reasonable doubt. [Citations.] Evidence meeting this standard satisfies constitutional due process and reliability concerns.... [¶] While the appellate court must determine that the supporting evidence is reasonable, inherently credible, and of solid value, the court must review the evidence in the light most favorable to the prosecution, and must presume every fact the jury could reasonably have deduced from the evidence. [Citations.] Issues of witness credibility are for the jury. [Citations.]” (People v. Boyer (2006) 38 Cal.4th 412, 479-480.)
The prosecutor argued that defendant aided and abetted Ramos and Virgil by being the getaway driver. “[A] person aids and abets the commission of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime.” (People v. Beeman (1984) 35 Cal.3d 547, 561.)
“Direct evidence of the mental state of the [defendant] is rarely available except through his or her testimony.” (People v. Beeman, supra, 35 Cal.3d at p. 558.) “The trier of fact is and must be free to disbelieve the testimony and to infer that the truth is otherwise when such an inference is supported by circumstantial evidence regarding the actions of the [defendant].” (Id. at pp. 558-559.) Although presence at the crime scene is insufficient by itself to establish aiding and abetting, it is one factor that may be considered along with “‘companionship[] and conduct before and after the offense.’ [Citation.]” (People v. Campbell (1994) 25 Cal.App.4th 402, 409.)
“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.) “For purposes of determining aider and abettor liability, the commission of a robbery continues until all acts constituting the offense have ceased. The taking element of robbery itself has two necessary elements, gaining possession of the victim’s property and asporting or carrying away the loot. [Citation.]” (People v. Cooper (1991) 53 Cal.3d 1158, 1164-1165, fn. omitted.)
“Although... the asportation requirement is initially satisfied by evidence of slight movement [citation], asportation is not confined to a fixed point in time. The asportation continues thereafter as long as the loot is being carried away to a place of temporary safety. Therefore, in order to fulfill the requirements of People v. Beeman, supra, 35 Cal.3d 547, for conviction of the more serious offense of aiding and abetting a robbery, a getaway driver must form the intent to facilitate or encourage commission of the robbery prior to or during the carrying away of the loot to a place of temporary safety.” (People v. Cooper, supra, 53 Cal.3d at p. 1165, fns. omitted.) The defendant “has reached a place of temporary safety with the property if he or she has successfully escaped from the scene, is no longer being pursued, and has unchallenged possession of the property.” (CALCRIM No. 1603.) “When the robber is still in flight, he or she has not yet achieved a place of temporary safety. [Citations.]” (People v. Johnson (1992) 5 Cal.App.4th 552, 559.)
In this case, there was substantial evidence to support the jury’s implied finding that defendant assisted Ramos and Virgil before and during the commission of the robbery. The evidence allows an inference that defendant drove the two robbers to the Yuba City restaurant. Around 10:27 p.m., the duo robbed the restaurant. About an hour and 18 minutes later, Deputy Morford stopped defendant approximately 46 miles from the crime scene. Virgil and Ramos were in the backseat where officers found a firearm, Taser, money, and stolen purses. Defendant seemingly lied to Deputy Morford, claiming that they were in the area to visit a friend, although she could not identify or provide any contact information for the friend.
From this evidence, the jury reasonably could deduce that defendant intended to assist Ramos and Virgil by driving them to and from the robbery scene. This is particularly true given that defendant exercised dominion and control over the stolen purses. When Deputy Yenne asked her if he could search the purses, she tersely answered, “‘[s]ure.’” She did not express surprise or otherwise question why her father’s car contained three women’s purses. Jurors reasonably could conclude that defendant knew that the purses were in the car and that two of the three did not belong to her. Jurors could infer, in turn, that defendant knew about the other women’s purses because she had known about the robbery.
The place and time of the traffic stop support an inference that defendant was the getaway driver. She was stopped about 46 miles from the crime scene, roughly an hour and 18 minutes later. This allowed enough time to commit the robbery and start driving back to Pittsburg Bay/Point on state and county roads (not freeways), especially since defendant was not speeding or driving erratically.
In addition, defendant had prior relationships with Ramos and Virgil. Ramos was her then-boyfriend, and they had been dating for a few years. She had known Virgil for about two years.
Finally, defendant demonstrated her consciousness of guilt by claiming to have been in the Knights Landing area to visit a friend.
Defendant provided an innocent explanation for the circumstantial evidence that suggested her participation as an aider and abettor. However, the jury was “free to disbelieve [her] testimony and to infer that the truth [wa]s otherwise.” (People v. Beeman, supra, 35 Cal.3d at pp. 558-559.) Even if the jury believed defendant’s tale that she intended to drive Ramos and Virgil all the way from Pittsburg/Bay Point to Knights Landing for the sole purpose of obtaining some marijuana, the jury could have concluded that she formed the intent to aid and abet the robbery as she was carrying away the loot to a place of temporary safety. (People v. Cooper, supra, 53 Cal.3d at p. 1161.) As noted, defendant’s response to Deputy Yenne’s request for consent to search the purses implied that she knew that they were present in the car even though two of them did not belong to her. As soon as she became aware that Virgil and Ramos had entered the car with the stolen purses, and she agreed to drive them back to Pittsburg/Bay Point with the stolen property, she formed the intent to aid and abet the robbery. Ramos and Virgil were “still in flight” and had “not yet achieved a place of temporary safety.” (People v. Johnson, supra, 5 Cal.App.4th at p. 559.)
Defendant’s reliance on In re David K. (1978) 79 Cal.App.3d 992 is misplaced. In David K., victim Langley was seated in the driver’s seat of his car in a San Francisco neighborhood when he saw three minors. (Id. at p. 997.) Two minors approached on the driver’s side and one on the passenger side. (Ibid.) One of the minors, George, put a knife near Langley’s neck and forced him to surrender his car and money. (Ibid.) George entered the car and drove away. (Ibid.) Langley saw the heads of two other individuals in his car. (Ibid.) He indicated that all three individuals were of Latin descent and between 25 and 26 years old. (Ibid.) In contrast, David K. was a 17-year-old Caucasian. (Id. at p. 998.) Three hours after the robbery, police observed Langley’s car in Yuba City. George and Salvador, who were of Latin descent, were in the front seat and David K. was in the rear seat. (Id. at p. 997.) David K. had no money on his person but Langley’s wallet was between his legs. (Ibid.)
Division Four of the Second District Court of Appeal reversed an adjudication order because the juvenile court’s findings were not supported by sufficient evidence. (In re David K., supra, 79 Cal.App.3d at p. 1001.) The appellate court explained that “[t]he only evidence to connect the minor David with the robbery of Langley is the fact that three hours after the robbery, in a city some distance from the site of the robbery, David was found in the company of the identified robber in the stolen automobile with personal property of the victim being found in open view in the automobile. No cash proceeds of the robbery were found on David’s person and the empty wallet, purse and binoculars belonging to Mrs. Langley were in the back seat where David was seated. There is no evidence, however, that he was exercising any dominion or control over these articles. The situs of the articles as being in the back seat of the automobile where David was seated does not tend to establish that David was exercising any control over these articles. [¶] To draw an inference from these facts that David was one of the three persons at the site of the robbery three hours earlier in another city would amount to pure speculation. It is to be noted that Langley identified only the minor George as the actual perpetrator and gave a description to the police that all three persons involved were of Latin descent and were young adults. By no stretch of the imagination did appellant David, a Caucasian, fit into any of the categories.” (Id. at p. 1000.)
The present case is distinguishable from David K. in several respects. First, defendant admitted driving Ramos and Virgil to and from the general area. She was not merely a backseat passenger. Second, defendant was found much closer in space and time to the robbery. Third, defendant exercised dominion and control over the purses when she gave Deputy Yenne consent to search them. Fourth, because there was no description of a getaway driver, defendant’s appearance was not inconsistent with a witness’s description.
Defendant’s reliance on Juan H. v. Allen (9th Cir. 2005) 408 F.3d 1262, is similarly misplaced. In Juan H., the juvenile court found the minor culpable of first degree murder and attempted murder, both on the theory of aiding and abetting, even though the minor had not said anything, made any gestures, or otherwise encouraged the perpetrator. (Juan H., at pp. 1267, 1269.) The United States Court of Appeals, Ninth Circuit, reversed the federal district court’s denial of a writ of habeas corpus because the evidentiary insufficiency violated the minor’s federal due process rights. (Id. at pp. 1266, 1279.) The present case is distinguishable because the prosecution established much more than defendant’s presence in the getaway car. As we have explained, the prosecution presented evidence raising an inference that defendant, with knowledge that Ramos and Virgil had brought stolen purses into the car, drove the duo away (or further away) from the scene of the robbery. Defendant’s robbery convictions are supported by substantial evidence. (People v. Boyer, supra, 38 Cal.4th at pp. 479-480.)
II
Use Of CALCRIM No. 361
Defendant contends the trial court erred when it instructed the jury in accordance with CALCRIM No. 361 that it could draw adverse inferences from her failure to explain or deny matters asserted to be within her knowledge. Specifically, she urges that there was no basis for the instruction because she explained the evidence against her, except for the presence of multiple purses, which the prosecutor did not question her about. We disagree.
During the conference on jury instructions, the trial court advised the parties that it intended to give CALCRIM No. 361 on failure to explain or deny adverse testimony. Defense counsel responded, “I would ask the Court not give that. I don’t believe the facts justify that instruction.” In response, the court said, “[c]ounsel, the one that comes to mind is as to why I would be giving it would be the purses plural.” The court added, “[t]here may be others but that’s the reason that I’m stating for giving [CALCRIM No.] 361.”
Thereafter, the court instructed the jury: “The next instruction covers failure to explain or deny adverse testimony. If the defendant failed in his or her testimony to explain or deny evidence against him or her, and if he or she could reasonably be expected to have done so based on what he or she knew you may consider his or her failure to explain or deny in evaluating that evidence. [¶] Any such failure is not enough by itself to prove guilt. The People must still prove each element of the crime beyond a reasonable doubt. If the defendant failed to explain or deny it is up to you to decide the meaning and importance of that failure.”
To determine whether CALCRIM No. 361 was properly given, an appellate court must determine whether the defendant failed to explain or deny any fact that was within the scope of relevant cross-examination. (People v. Saddler (1979) 24 Cal.3d 671, 682 [considering CALJIC No. 2.62, the predecessor of CALCRIM No. 361].) If the defendant has not been asked a question calling for an explanation or denial, as a matter of law, the instruction may not be given. (People v. Mask (1986) 188 Cal.App.3d 450, 455.) Moreover, there is no basis for the instruction if the defendant fails to answer a question because of some fact that precludes knowledge of the answer, such as an alibi that removes the defendant from the scene. (Ibid.) Nor is the instruction warranted when a defendant’s testimony merely contradicts the prosecution evidence, “because contradiction is not by itself a failure to explain or deny.” (Ibid.)
If the matter is beyond the scope of relevant cross-examination, the use of CALCRIM No. 361 would amount to an impermissible comment on the defendant’s failure to testify. (People v. Saddler, supra, 24 Cal.3d at pp. 678-679; see generally Griffin v. California (1965) 380 U.S. 609 [14 L.Ed.2d 106].)
In this case, the prosecutor asked defendant, “[w]hen you were stopped by the [deputy] and the [deputy] asked you about the smell of marijuana in the car, whether there was anything illegal in the car, your response was ‘not anymore.’ Is that right? [¶]... [¶] What did you mean ‘not anymore’?” Defendant answered, “Well, I assumed that [Ramos and Virgil] had weed on them. So they were outside of the car already. So I was like ‘not anymore.’”
The deputy’s question about “anything illegal such as marijuana” in the car was not limited to that substance and was broad enough to encompass the stolen money, the victims’ purses, and the weapons. Defendant’s answer, “not anymore, ” was factually incorrect because it overlooked the latter items.
The prosecutor’s cross-examination about the deputy’s question gave defendant an opportunity to justify her factually incorrect answer by pointing out that she had not known of the other contraband. Defendant reasonably could be expected to have denied knowledge of the items, had she truly been unaware of them.
Also, the court instructed the jury, pursuant to CALCRIM No. 200, that not all instructions necessarily applied to the facts of the case and that it should follow the instructions that applied to the facts as they determined them. (Cf. People v. Saddler, supra, 24 Cal.3d at pp. 681-684 [giving CALJIC No. 17.31 mitigates any prejudicial effect related to the improper giving of CALJIC No. 2.62].)
DISPOSITION
The judgment is affirmed.
We concur: NICHOLSON, Acting P. J. HULL, J.