Opinion
B226019
09-08-2011
THE PEOPLE, Plaintiff and Respondent, v. MARVIN CORBIN, Defendant and Appellant.
Brett Harding Duxbury, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., and Robert C. Schneider, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA261767)
APPEAL from a judgment of the Superior Court of Los Angeles County. Kathleen A. Kennedy, Judge. Modified in part; affirmed in part.
Brett Harding Duxbury, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., and Robert C. Schneider, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Marvin Corbin was convicted, following a jury trial, of one count of murder in violation of Penal Code section 187, subdivision (a), and one count of grand theft auto in violation of section 487, subdivision (d)(1). The jury found true the allegation that a principal was armed in the commission of the offenses within the meaning of section 12022, subdivision (a)(1). The jury found not true the allegation that appellant personally used a firearm within the meaning of section 12022.53. The trial court sentenced appellant to 25 years to life for the murder conviction, plus a consecutive 1 year enhancement term for the principal arming allegation. The court also sentenced appellant to the upper term of three years for the grand theft auto conviction.
All further statutory references are to the Penal Code unless otherwise indicated.
Appellant appeals from the judgment of conviction, contending that the trial court erred in failing to give an instruction on "late joining" accomplices and failing to stay sentence on the grand theft auto conviction pursuant to section 654. Appellant also contends that he is entitled to three additional days of presentence custody credit. We order the grand theft auto conviction stayed pursuant to section 654, and order the abstract of judgment corrected to show that appellant is entitled to 2,322 days of presentence custody credit. We affirm the judgment of conviction in all other respects.
Facts
The victim in the case, Ernie Hendricks, was a drug dealer specializing in marijuana and ecstasy. He kept the marijuana in a Camry automobile, which was parked in a carport below his apartment. Hendricks shared the apartment with his girlfriend, Tasha Bell.
About 9:00 p.m. on March 3, 2004, Bell was cooking food. Appellant came to the door. Bell recognized appellant as a customer of Hendricks's who hung out in the neighborhood. Bell told Hendricks that someone was at the door for him.
Hendricks left the apartment with appellant. Bell heard Hendricks refer to appellant as "Marvelous Marv." As she went back to cooking, she heard the chirping sound of Hendricks's car alarm being turned off. Immediately after that, Bell heard about five gunshots.
Bell went onto the stairs outside the apartment, then went back inside to get her phone. She heard Hendricks's car start and saw it pull out of the parking space, hit a wall and drive off. She could not see the occupants of the car.
Bell went back inside briefly, then went downstairs. She found Hendricks lying in the carport, shot. She pulled him into an area of the carport where there was better light. A neighbor came and attempted to perform CPR.
Bell got in her car and drove off to look for the Camry. She found the Camry near 36th and Norton. It was parked next to a green Cavalier belonging to a neighbor. Justin Russell and Jason Smith, who lived in the front house of Bell's apartment building, were in the Cavalier.
Police Officers Brian Thayer and Sean Murray heard a homicide call on their radio. Moments earlier, they had seen a Camry speeding and running stop signs. The officers approached the Camry when it parked and gave the driver a verbal warning. Both officers identified appellant as the driver. There was another man in the car. The officers drove off. Later, when the officers heard the homicide call, they returned to the location where they had last seen the Camry. It was still there, parked, with the door open. No one was in it. Smith and Russell were nearby. The officers found marijuana, a ripped latex glove and two guns unrelated to Hendricks's shooting. About 20 feet from the car, the officers found three baggies of marijuana. In some nearby bushes, they found two latex gloves with Hendricks's blood on them.
According to Bell, there was no bad blood between Hendricks and appellant. There was bad blood between Hendricks and Smith. At one point, Hendricks had stored Smith's guns in the trunk of the Camry.
Hendricks died from his gunshot wounds. He had been shot five times, once in the head at close range.
Appellant told police that he knew Hendricks but had never been in his car. He said that he had gone to his aunt's house earlier on the day of the murder to spend the night. He was unable to give police his aunt's address. Appellant also said that he had heard at his barbershop that Hendricks had died from three gunshots to the head. The barber said that he had never heard appellant's name before and did not know anything about the shooting.
At trial, appellant's aunt, Sandra Hayes, testified that appellant had been at her home a few nights in the months prior to the shooting and it was possible that he was there on the night of the shooting. If appellant had been at her house, he would have arrived before dark, because that was her policy for visitors. Hayes did not know if appellant could drive a car. She had never seen him drive.
Appellant's cousin, Majjilee Osuagwu, testified that she remembered that appellant was at Hayes's home on the night of the shooting. He had arrived before dark. To her knowledge, appellant did not know how to drive a car. She had never seen him drive one.
Discussion
1. "Late Joining" instruction
Appellant was convicted of first degree murder under the felony murder rule. The jury found not true the allegation that appellant personally used a firearm in the commission of the crimes. Thus, appellant may well have been convicted as an aider and abettor. Appellant contends that the trial court erred in failing to instruct the jury sua sponte with either CALJIC No. 8.27 or CALCRIM No. 540B. Both instructions make it clear that for an aider and abettor to be liable for murder under the felony murder rule, the aider and abettor must have joined in the crime of robbery before the perpetrator killed the victim. We see no error.
When there is substantial evidence that would support a finding that a defendant began aiding and abetting a robbery only after the victim was killed, the jury should be instructed on the timing requirements for vicarious liability for felony murder. (People v. Esquivel (1994) 28 Cal.App.4th 1386, 1397-1399.)
We see no evidence that appellant was a late joiner in the robbery. The evidence showed that appellant came to Hendricks's apartment door, the two men went downstairs, Hendricks disarmed the alarm on his Camry, about five gunshots were fired, then the Camry was driven off. These events occurred in close sequence. Soon thereafter, police saw appellant driving the Camry with an unidentified man in the passenger seat. Soon after that, the Camry was found parked and abandoned. All of this suggests prior planning, and that was the prosecution's theory at trial. Specifically, the prosecutor argued that appellant lured Hendricks down to the car in order to rob him.
Appellant did not dispute the prosecutor's version of events. His defense was an alibi, coupled with mistaken identification by Bell. Thus, appellant did not offer any evidence which would support a late joining instruction.
Appellant's theory on appeal appears to be that Hendricks was killed by Jason Smith, a resident of the front house in the apartment complex, because there was bad blood between the two men. Appellant points out that he was a regular customer of Hendricks and argues that he could have been just as surprised as Hendricks to see the killer in the carport. He further argues that once Hendricks was shot by Smith, he could have decided to steal the drugs by taking the car. Appellant points out that Smith and Jason Russell, another resident of the front house, were found in the vicinity of the abandoned stolen Camry.
Appellant's theory depends largely on speculation. There was no evidence at trial linking Smith to the crimes. Although Smith was found in the vicinity of the abandoned Camry, nothing put him inside the Camry. Smith had not fled the scene, as would be the natural reaction of a killer who had just been stopped by police in a car stolen from the murder victim. Thus, the jury had no basis from which to infer the identity of the person waiting in the carport. Absent some knowledge of the killer's identity, it is not reasonable to infer that the killer would not merely refrain from killing appellant, a witness to the murder, but would apparently decide to share Hendricks's drugs with him. It is also not reasonable to infer that someone who is surprised by a killer would immediately take the car keys from his dead companion's body, get in the deceased's car and drive away with the armed killer, rather than fleeing from that killer.
In contrast, the rapidity of events does suggest planning between appellant and the killer. Almost immediately after the shots were fired, appellant got into Hendricks's Camry and drove off with another man, presumably the shooter.
Since there is no evidence to support an inference that appellant was a late joiner, there was no need for a late joining instruction.
2. Section 654
Appellant contends, and respondent agrees, that appellant's sentence for his grand theft auto should have been stayed pursuant to section 654. We agree as well.
Section 654 prohibits punishment for two crimes arising from a single, indivisible course of conduct. (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) If all of the crimes were merely incidental to, or were the means of accomplishing or facilitating one objective, a defendant may be punished only once. (Ibid.)
Here, the taking of the auto was part of the robbery in this case, either as an object stolen for its own sake or as the means of asportation of the stolen drugs. The robbery itself was intertwined with the murder. Thus, the evidence showed that appellant had the single intent to rob Hendricks using lethal force. The sentence for the auto theft conviction must be stayed pursuant to section 654.
3. Presentence conduct credit
The trial court awarded appellant 2,319 days of presentence custody credit. Appellant contends that he served 2,322 days in custody, and should have been awarded that amount. Respondent agrees. We agree as well.
Appellant was arrested on March 8, 2004 and sentenced on July 16, 2010. He was in custody the entire time. Thus, he served 2,322 days in custody.
Disposition
Appellant's sentence for the count 2 conviction for grand theft auto is ordered stayed pursuant to section 654. Appellant's presentence custody credit is ordered corrected to total 2,322 days. The clerk of the superior court is directed to prepare an amended abstract of judgment reflecting these two changes, and to deliver a copy to the Department of Corrections and Rehabilitation. The judgment of conviction is affirmed in all other respects.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ARMSTRONG, Acting P. J. We concur:
MOSK, J.
KRIEGLER, J.