Opinion
A155460
09-25-2019
THE PEOPLE, Plaintiff and Respondent, v. JAQUAN RAKIMJOSEPH CROWELL, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco County Super. Ct. No. SCN228835)
Jaquan Rakimjoseph Crowell appeals from a judgment of conviction and sentence imposed after a jury found him guilty of vehicle burglary (Pen. Code, § 459) and related crimes. He contends the court erred in failing to instruct the jury with CALCRIM No. 1702 because, he argues, there was an issue as to when Crowell formed the intent to aid and abet the direct perpetrator. We will affirm the judgment.
All statutory references are to the Penal Code.
I. FACTS AND PROCEDURAL HISTORY
In March 2018, Crowell and Derrick McWay were charged with vehicle burglary (§ 459), two counts of possession of burglary tools (§ 466), and two counts of receiving stolen property (§ 496, subd. (a)). An on-bail enhancement (§ 12022.1, subd. (b)) as to count one and a prior strike conviction (§§ 667 and 1170.12) as to count five were also alleged against Crowell. The matter proceeded to a jury trial.
A. Prosecution Case
On the night of January 21, 2018, San Francisco Police Officer Matthew Seavey surveilled a Safeway parking lot, where a number of auto burglaries had previously occurred. Seavey observed Crowell drive a silver four-door BMW into the upper lot and park. Crowell, McWay, and Ricky Smith got out of the BMW, while two women remained inside. The men looked in the windows of five or six other cars for a minute or two, in a manner Seavey characterized as "casing"—that is, "searching in through the windows of those vehicles to look for items of value for the purpose of stealing." Seavey took several photographs depicting Crowell in distinct clothing and the men casing the cars; the photographs were admitted into evidence and shown to the jury.
After casing the cars, Crowell and Smith got into the backseat of the BMW and McWay got into the driver's seat. McWay drove the BMW approximately 50 feet farther from the Safeway entrance and parked next to a silver Hyundai. While McWay left the engine running, Smith got out and looked closely through the Hyundai's window. Seavey heard a "popping" sound and saw that the window had shattered. Smith then reached into the Hyundai, grabbed a "Zara" bag from inside, put the bag on the backseat of the BMW, and reentered the BMW.
As McWay began to drive the BMW out of the parking lot, San Francisco Police Officers Barajas, Lee, and Jensen stopped the BMW and arrested the three men. Inside the BMW, officers found two window punches, the Zara bag, and stolen passports secreted in the glove compartment.
Evidence was also presented that Crowell was arrested for acting as a lookout during a car burglary in San Francisco in March 2017.
B. Defense Case
McWay testified that he owned the BMW and a SwissTech window punch that he kept in case of an emergency or accident. He claimed that he met up with Crowell and Smith at a park around 6:00 p.m. on January 21, 2018. Two females later arrived and spoke with Crowell and Smith only. Then McWay, Crowell, Smith, and the females went to the Safeway on Monterey Boulevard because the females wanted to get groceries. When they arrived at the Safeway parking lot, McWay reclined in his seat and closed his eyes for a few minutes. He heard someone open and close his car door, but he paid no attention to who it was. One of the females told McWay to move the car, so he did. McWay again reclined in his seat and closed his eyes for four or five minutes. He heard a "loud popping" but did not bother to see what it was. He heard the doors to his BMW open and shut, and saw that everyone was back inside the car. When he tried to leave the parking lot, he was stopped by police. McWay testified that he did not get out of the car before the police arrived and that Crowell did not drive McWay's car on January 21, 2018.
C. Verdict and Sentence
After the prosecution's case, the court granted defense counsel's motion for acquittal on count five (receiving stolen property). The jury thereafter convicted Crowell of counts one (vehicle burglary), three (possession of burglary tools), and four (receiving stolen property). The jurors were unable to reach a verdict on count two (a second count of possession of burglary tools), and the court declared a mistrial as to that count, which was subsequently dismissed. In a bifurcated proceeding, the court found the prior strike conviction and on-bail enhancement allegations true.
The court imposed and suspended execution of a four-year prison term (comprised of the middle term of two years on count one plus two years for the on-bail enhancement) and placed Crowell on probation for three years. The court sentenced Crowell to time served on the remaining misdemeanor counts.
This appeal followed.
II. DISCUSSION
Crowell contends the court violated his Sixth and Fourteenth Amendment rights when it failed to instruct the jury with CALCRIM No. 1702, which would have told them that aiding and abetting a burglary is not established unless the defendant formed the requisite intent before or during the burglary. He is incorrect.
1. Background
The prosecutor's trial theory was that McWay and Crowell aided and abetted Smith's perpetration of the vehicle burglary. Before trial, the prosecutor proposed jury instructions including CALCRIM Nos. 400 (Aiding and Abetting: General Principles), 401 (Aiding and Abetting: Intended Crimes), and 1700 (Burglary). The court and counsel discussed jury instructions over two days. Defense counsel made a request for instructions as to counts two and three, but not as to the count one burglary charge. The court thereafter instructed the jury with CALCRIM Nos. 400, 401, and 1700. The court did not instruct the jury with CALCRIM No. 1702, and the defense never asked it to.
2. Forfeiture
A party generally loses the right to challenge an instruction that is correct on the law and responsive to the evidence as too general or incomplete, unless the party requested clarifying or amplifying language. (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1163; see People v. Bolin (1998) 18 Cal.4th 297, 326 [failure to object to proposed instructions during discussion with court forfeited claim of error].)
Here, the court's instructions as to the burglary (CALCRIM No. 1700) and aiding and abetting (CALCRIM Nos. 400, 401) were accurate statements of the law and responsive to the evidence. Defense counsel did not object or ask for the CALCRIM No. 1702 instruction or any other clarifying or amplifying instructions as to the count one burglary. Even after the prosecutor made the comments in closing argument that Crowell now claims were improper, the defense did not object or request instruction with CALCRIM No. 1702.
Nonetheless, because Crowell contends that the court had a duty to give the instruction sua sponte, we proceed to the merits.
3. There Was No Instructional Error
To be guilty as an aider and abettor, the defendant must have knowingly aided the perpetrator " 'prior to or during "commission" of that offense.' " (People v. Montoya (1994) 7 Cal.4th 1027, 1039.) For this purpose, "a burglary is considered ongoing during the time the perpetrator remains inside the structure." (Id. at p. 1045.) Accordingly, CALCRIM No. 1702 informs jurors that a defendant must have knowingly aided a burglary "before the perpetrator finally left the structure" to be guilty of the offense. The instruction must be given sua sponte if there is an issue about when the defendant formed the intent to aid and abet. (CALCRIM No. 1702 [Bench Notes]; CALCRIM No. 401 [Bench Notes].)
CALCRIM No. 1702 provides: "To be guilty of burglary as an aider and abettor, the defendant must have known of the perpetrator's unlawful purpose and must have formed the intent to aid, facilitate, promote, instigate, or encourage commission of the burglary before the perpetrator finally left the structure."
In the matter before us, there was no issue as to when Crowell formed the intent to aid and abet Smith's perpetration of the burglary: the evidence pointed exclusively to Crowell intending to aid Smith before Smith left the Hyundai. Crowell, McWay, and Smith planned to go to the Safeway on Monterey Boulevard and went there together. Crowell (or perhaps McWay) drove the BMW to Safeway's upper parking lot, known for auto burglaries, at night, with tools commonly used to perpetrate a vehicle burglary, and never entered the store. Instead, Crowell got out of the BMW and cased a number of the cars. He then returned to the BMW, and McWay drove over to the targeted car and parked. Smith got out, broke the Hyundai's window, took the Zara bag, and returned to his lookout (Crowell) and getaway driver (McWay) in the BMW. The acts by which Crowell aided and abetted the vehicle burglary were casing cars before the burglary and, as the prosecutor put it, serving as a lookout during the burglary; "casing" cars and serving as a "lookout" reflects an intent to facilitate the ensuing vehicle burglary.
Crowell nonetheless contends an issue arose as to when he formed the intent to aid the burglary because the prosecutor also urged the jury to consider that he remained in the BMW with the Zara bag—conduct after Smith had stolen the items from the Hyundai. (See People v. Montoya, supra, 7 Cal.4th at p. 1041 [liability does "not extend to a person who simply aided a burglar in the asportation of the stolen property after its removal from the burgled structure"].) The argument is meritless. The prosecutor never expressed or implied that Crowell's intent was formed after the burglary, and no reasonable juror would think that it was. (See People v. Fiu (2008) 165 Cal.App.4th 360, 370-371.)
Crowell points us to the following portion of the prosecutor's closing argument: "Smith gets out, approaches the Hyundai. Officer Seavey heard the sound of glass breaking. Defendant McWay himself admits that he heard the sound of glass breaking. This is an audible noise. And what's interesting is Smith takes the Zara bag. He goes back to the BMW where he has his getaway driver and his lookout waiting. He doesn't get in and leave. He throws the bag in, and he goes back to the Hyundai, to look again. [¶] So there's that period of time, and we have to look at that period of time and look at what does not happen. Neither of these men throw that bag out of the car. Neither of these men exit the car. Neither of these men try to leave. They wait for Smith. They wait for Smith because they're working together. They wait for him to get in the car, and then they start to back out, quickly." (Italics added.)
Even taking this snippet of the prosecutor's argument in isolation, it is clear that the prosecutor was not suggesting Crowell lacked the intent to facilitate the burglary until he opted to leave in the BMW with the Zara bag, but was simply using the evidence to confirm that what Crowell had done previously—casing cars and acting as a lookout—was, in fact, "working together" with Smith. Put another way, Crowell's post-burglary conduct was merely circumstantial evidence corroborating his intent when he was casing the cars before the burglary and acting as a lookout during the burglary.
The prosecutor also referred to Crowell not leaving the BMW after Smith put the Zara bag inside to show that Crowell did not withdraw from the conspiracy. The prosecutor stated: "And you are going to hear probably from the defense that [Crowell] got back in [the BMW] before everyone else. Well, there's an instruction on withdrawing from a conspiracy, and part of it is that you have to withdraw, tell other people that you're withdrawing and then do something to prevent the crime. So, yes, [appellant] may have gotten into the car before his other two co-conspirators, but he didn't leave. [¶] I'm not saying he had to go call the police, but he didn't walk away. Instead, he waited in the car, went to another spot in the same lot and let [] Smith commit an auto burglary, because he made a choice to continue. [¶] He remained in the car when the Zara bag was placed in there. [Appellant] could have left. He just heard glass breaking. He just saw a bag put in, but he stayed, because he was participating in this crime with them. . . . This isn't somebody who got out the second he realized that a crime happened. He continued participation in the crime[.] [T]hat shows that he intended to do every single thing he did that day." --------
Moreover, reading the prosecutor's closing argument in its entirety confirms that Crowell's argument is untenable. The prosecutor started the relevant portion of her closing by noting that Crowell and McWay went to the Safeway parking lot—known to have a high number of auto burglaries—at night, and never went into the Safeway. Instead, they got out of the BMW with Smith and "cased" different vehicles. The prosecutor explained: "And you've heard from two officers now about what casing means, about getting out and looking into vehicles with the particular intent. This isn't a case of somebody just wandering around or even loitering. They're looking into parked cars with no other possible explanation." (Italics added.)
The prosecutor then turned to the instructions, explaining aiding and abetting: "[CALCRIM] 400, so we talked about roles. And now is finally the time where you get the law on what the roles are on people who commit crimes and when are you responsible [and] when are you not responsible. So the perpetrator is the person who directly commits the crime. That's Ricky Smith, the person who broke the window. You can still be guilty if you aided and abetted the person. So what does it mean to aid and abet? You have to know about the person's unlawful purpose. And you have to intend and actually aid them."
Next, the prosecutor explained why there was sufficient evidence that Crowell knew of the unlawful purpose before the burglary. "So you have to know that Ricky Smith was going to commit an auto burglary. And we know that because all three of them were looking at the different cars together, and they went to a particular Safeway that had a particular incidence of burglaries. It was a hotspot, and they went to the upper lot, not the lower lot. So they knew of the unlawful purpose because they were working together."
Next, the prosecutor addressed the element of intent, emphasizing the formation of intent before the burglary. "The second part, intend to and does in fact aid. So this is a case about intent. Your mental state. What were you thinking? What were you trying to do? This isn't a who did it, right? It's not a murder mystery. It's about what were the defendants thinking at the time that they were in the Safeway parking lot. And the only way we can know what they were thinking is by looking at the surrounding circumstances. [¶] So in this case, they facilitated it, and they aided him. They went and they scouted different vehicles in this parking lot, looking for their mark. And they did that together, according to Officer Seavey, and they also did it separately. And they went back to the same location, the same BMW, and then they drove up next to their victim vehicle. [¶] So they did in fact know what Ricky Smith was about to do. And they aided him in doing it. So in this case, we know Ricky Smith committed an auto burglary. We know based on the fact that he was casing cars that he intended to do that. And they, three and four, go to these two gentlemen. They intended to and they actually did aid. [¶] . . . Did they know Ricky Smith was going to go in, and did they help him? [¶] So, again, you have to have the intent to aid, the fact that they actually did aid, and that's that Smith entered into a locked vehicle and Smith had the intent to steal. So we know that because they went to the upper lot. They exited the car. They looked into parked cars. . . . [¶] They got out of that car, and they looked into other parked cars. And that's how we know that they intended to participate in the crime. They changed locations within the parking lot. That's further evidence that they were operating together." (Italics added.)
Summing up as to Crowell, the prosecutor argued: "So let's look at Mr. Crowell's conduct at Safeway. So for the law, we know you have to have the intent, and you have to have conduct by Mr. Crowell himself. So if he had never gotten out of the car, we would be in a different situation, but he did. He drove into the parking lot. He went to the upper lot. He exited, right. So think about each step here. Each step is a choice. The choice to drive, the choice to pick what parking lot, the choice to get out of the car, the choice to go car by car by car by car, five cars. That's five choices too many. [¶] He didn't stop after one. He kept going, because he was working with Mr. McWay and Mr. Smith to break into a car that day. Each step shows that he knew what he was doing, and not just knew. This isn't somebody who was like, oh, yeah, I know what's going on, but I'm not a part of it. He intended to, and that's why he took some steps. Then he gets back into the BMW."
All of the "choices" to which the prosecutor alluded were made by Crowell before the burglary. In addition, the prosecutor later repeated that Crowell intended to aid Smith when he "look[ed] into the various vehicles to pick their target," and referred to Crowell as the "lookout" during the time Smith perpetrated the burglary.
Crowell emphasizes Officer Seavey's testimony that the officer did not intervene when Crowell was casing the cars because no crime had been committed at that time. But that's the point. Crowell facilitated the vehicle burglary by casing the cars before the burglary had been committed, so a CALCRIM No. 1702 instruction was not required.
Crowell fails to demonstrate error.
III. DISPOSITION
The judgment is affirmed.
/s/_________
NEEDHAM, J. We concur. /s/_________
SIMONS, Acting P. J. /s/_________
BURNS, J.