Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. EE403831
RUSHING, P.J.
Following a home invasion robbery, defendant Samuel Thomas Dulin was convicted by a jury of two counts of first degree robbery (Pen. Code, § 213, subd. (a)(1)(A)), two counts of assault with a deadly weapon or by means likely to produce great bodily injury (§ 245, subd. (a)(1)), first degree burglary (§ 459-460), and three counts of false imprisonment (§ 236). On appeal, he asserts (1) there was insufficient evidence to support a theory that he was as an aider and abetter to the crimes; (2) he was denied his constitution rights because the jury was informed of his custodial status during trial; (3) the court committed instructional errors; and (4) the court committed sentencing errors.
All further statutory references are to the Penal Code.
Statement of the Facts and Case
On August 24, 2004, around 11:00 p.m., Brandon McKinnon was watching television at his apartment with his friends Daniel Barros, Chris Corum, Derrick Burr, and Michael Beasley. There was a knock on the door and Barros answered it. Defendant and three companions were at the door, and asked Barros to sell them marijuana. When Barros refused, defendant’s companions forced their way into the apartment. The prosecution witnesses at trial were inconsistent as to whether defendant actually entered the apartment, or remained at the door during the incident. One of defendant’s companions hit Barros hard enough to knock him down. That person demanded weed and money. When Barros tried to get up, he was hit again. At one point the intruders went into the kitchen and found a few bottles of Hpnotiq, a liquor, and took them.
McKinnon tried to run upstairs, and some of the intruders chased him down and pulled out a gun. The intruders beat McKinnon and then left the apartment. McKinnon ultimately needed 37 stitches for his injuries.
After leaving the apartment, defendant and his companions went to defendant’s ex-girlfriend, Bernadette Anderson’s house. Defendant was upset, and told Anderson he had been involved in a crime. Defendant asked Anderson if she wanted a drink called an “Incredible Hulk, ” which is made with the liquor Hpnotiq. Anderson declined, and defendant and his friends left after he helped his friends clean the blood off their clothes.
Defendant testified in his own defense at trial, saying that he met Barros earlier in the year, and that he and Barros had smoked marijuana together before. Defendant also said he purchased marijuana from Barros before.
On August 24, 2004, defendant was with his friends Leodus, LaTanya, Taj, Cedris, and Felix, and Felix wanted some marijuana. Defendant took the group to McKinnon’s apartment to get some marijuana. Defendant testified that he knew Barros did not live with McKinnon, and did not know that Barros was with McKinnon that night.
When they arrived at the apartment, Taj stayed in the car, while defendant the rest of his friends went to the apartment. Tanya knocked on the apartment door, and Barros answered. Defendant asked Barros to sell him some marijuana, and when Barros refused, Felix became upset and pushed his way into the apartment. Defendant testified that Felix, Leodus and Cedric went into the apartment, and he and Tanya went back to the car to wait. When Felix, Leodus and Cedric came back to the car, they had marijuana, two bottles of Hpnotiq and blood on their clothes. Defendant was upset with Felix. He took them all to Anderson’s house to wash up before they went to the club that night. Felix was bragging that he had hit someone over the head with a bottle. Defendant testified that he had no idea anyone with him had a gun, and he denied entering the apartment.
Defendant was charged by information with a total of six counts, including two counts of first degree robbery (§ 213, subd. (a)(1)(A)), two counts of assault with a deadly weapon or by means likely to produce great bodily injury (§ 245, subd. (a)(1)), first degree burglary (§ 459-460), and three counts of false imprisonment (§ 236). The information also alleged defendant was armed with a firearm during the robberies (§ 12022, subd. (a)) and inflicted great bodily injury on one of the victims (§ 12022.7, subd. (a)). In addition, the information alleged that defendant had one prior conviction that was a strike (§ 1170.12), one prior conviction that was a serious felony (§ 667, subd. (a)), and that defendant had served one prior prison term (§ 667.5, subds. (a)(b)).
Following a jury trial, defendant was found guilty on all counts, and the arming allegations were found true. The jury found the bodily injury enhancements not true. Defendant admitted the prior convictions and prison term.
Defendant was sentenced to 30 years in state prison calculated as follows: six years for one first degree robbery, doubled to 12 due to the prior strike conviction, plus four years for the other first degree robbery, two years for each of the assaults, one year eight months for each of the false imprisonments, one year for one of the arming enhancements, and five years for the prior serious felony conviction.
Discussion
Defendant asserts numerous claims on appeal, including the argument that there was insufficient evidence to support a theory that he was as an aider and abetter to the crimes, he was denied his constitutional rights because the jury was informed of his custodial status during trial, the court committed instructional errors, and sentencing errors. Each of defendant’s claims is discussed separately below.
Evidence to Support Theory that Defendant Aided and Abetted the Crimes
In reviewing a criminal case for sufficiency of the evidence, we determine “whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.” (Jackson v. Virginia (1979) 443 U.S. 307, 318, fn. omitted.) We examine the entire record in the light most favorable to the judgment to determine whether it discloses substantial evidence such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) “ ‘[A]ny conflict or contradiction in the evidence, or any inconsistency in the testimony of witnesses must be resolved by the trier of fact who is the sole judge of the credibility of the witnesses. . . . [O]ne witness, if believed by the [trier of fact], is sufficient to sustain a verdict.’ ” (People v. Watts (1999) 76 Cal.App.4th 1250, 1258-1259; see also People v. Cudjo (1993) 6 Cal.4th 585, 608-609.)
In considering the sufficiency of the evidence to support a conviction based upon aider and abettor liability, we recognize that “[a]ll persons concerned in the commission of a crime, whether it be felony or misdeamenor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, . . . are principals in any crime so committed” (§ 31) and that an aider and abettor “shares the guilt of the actual perpetrator.” (People v. Prettyman (1996) 14 Cal.4th 248, 259 (Prettyman).)
The mental state necessary for conviction as an aider and abettor, however, is different from the mental state necessary for conviction as the actual perpetrator. “The actual perpetrator must have whatever mental state is required for each crime charged . . . . An aider and abettor, on the other hand, must ‘act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.’ [Citation.] The jury must find ‘the intent to encourage and bring about conduct that is criminal, not the specific intent that is an element of the target offense . . . .’ [Citations.] Once the necessary mental state is established, the aider and abettor is guilty not only of the intended, or target, offense, but also of any other crime the direct perpetrator actually commits that is a natural and probable consequence of the target offense. [Citation.]” (People v. Mendoza (1998) 18 Cal.4th 1114, 1123.) A finding of aiding and abetting will not be set aside unless the record clearly demonstrates there is insufficient substantial evidence to support it on any hypothesis. (People v. Moore (1953) 120 Cal.App.2d 303, 306; In re Lynette G. (1976) 54 Cal.App.3d 1087, 1094.) In order to hold defendant liable as an aider and abettor, it must be determined whether he, “in any way, directly or indirectly, aided the perpetrator, with knowledge of the latter’s wrongful purpose.” (In re Lynette G., supra, 54 Cal.App.3d at p. 1094.)
The primary basis for defendant’s argument that he could not properly be convicted of the crimes under an aiding and abetting theory is a statement of a juror offered in trial counsel’s statement in mitigation at sentencing that implies that the juror believed that defendant was guilty of the crime as an aider and abettor, but that the plan to commit robbery was contingent on not being able to purchase marijuana. From this statement, defendant extrapolates that the target crime to which the aiding and abetting was attached, was the solicitation to purchase marijuana, an act that is not illegal in California. Defendant asserts that the jury may have found him guilty as an aider and abettor in the purchase of marijuana, and therefore, found him guilty of the other crimes that occurred as a result. This, defendant asserts, is insufficient to support his conviction as an aider and abettor to the robbery.
As an initial matter, a jury verdict may not be attacked based on the subjective reasoning process of a juror or jurors. (People v. Dewberry (1992) 8 Cal.App.4th 1017, 1021-1022.) Moreover, regardless of the juror’s statement that he considered the robbery a contingent plan, the evidence at trial supports defendant’s conviction as an aider and abettor to the robbery. Initially, there is no question that the direct perpetrators had the sufficient mental states and committed the charged crimes. There was evidence at trial that both Barros and McKinnon were beaten and that the men in the apartment were robbed. There was also evidence that Corum, Beasley and Burr were falsely imprisoned.
With regard to defendant’s mental state, there was evidence that he had known Felix for a long time and knew that Felix had done “bad things” There was also evidence that the group of men that came with defendant to the apartment had stolen marijuana from others in the past. Finally, there was evidence that defendant knew that a drug dealer would be fearful of meeting strangers, yet he brought a group of strangers to the apartment expecting to meet a dealer he did not know. The evidence supports a reasonable inference that defendant brought the men to the apartment knowing that a robbery would occur, and he intended to facilitate the robbery by bringing the men to the apartment for it to occur.
Moreover, there was evidence at trial that defendant not only had the knowledge and intent that the robbery would occur, he actively participated in the crime. After bringing the men to the apartment, defendant either remained at the door where he could easily have warned the direct perpetrators of trouble should it occur, or actually entered the apartment. After the robbery, defendant took the men to his ex-girlfriend’s house so they could clean the blood off their clothes. Defendant’s actions in selecting the location, bringing the men to the apartment, waiting at the door or actually entering the apartment, and assisting the men with clean-up after the crime are sufficient to support defendants’ conviction for the crimes under the theory of aiding and abetting.
Jury’s Knowledge of Defendant’s Custodial Status
Defendant asserts his constitutional right to a fair trial was violated by the trial court when it informed the jury of his custodial status through instructions. Specifically, during voir dire, the court admonished potential jurors to disregard defendant’s custodial status, and at the conclusion of the trial, the court gave a similar admonishment as an instruction “Defendant Physically Restrained—Cautionary Instruction.” Although defendant was not dressed in custodial garments, and was not shackled during the trial, he asserts the court’s instructions gave the jury the incorrect impression that he was shackled, and prejudiced them.
The context of defendant’s argument in this case presents a unique set of circumstances, because he was neither dressed in jail clothing, nor shackled during trial, yet the court admonished the jury not to be prejudiced by defendant’s otherwise unknown custody status. It is established that a court may not require a defendant to attend trial wearing jail clothing, because such a requirement would impair the presumption that a defendant is innocent unless and until proved guilty beyond a reasonable doubt. (People v. Taylor (1982) 31 Cal.3d 488, 494.) “The Supreme Court has observed that the defendant's jail clothing is a constant reminder to the jury that the defendant is in custody, and tends to undercut the presumption of innocence by creating an unacceptable risk that the jury will impermissibly consider this factor. [Citation.]” (Id. at p.494.) It may be inferred that other information, having the same tendency to remind the jury that a defendant is in custody, might have a similar effect.
In People v. Bradford (1997) 15 Cal.4th 1229, 1336 (Bradford), the California Supreme Court considered whether a prosecutor’s single reference to the defendant being in custody during the trial was prosecutorial misconduct. The Bradford court considered the issue, and determined that the prosecutor’s “isolated comment that a defendant is in custody simply does not create the potential for the impairment of the presumption of innocence that might arise were such information repeatedly conveyed to the jury.” (Ibid.) As a result, the court concluded under the circumstances that it was not error to inform the jury that defendant was in custody.
The present case is similar to Bradford, and the same analysis should apply. Here, like Bradford, the jury was informed in a very limited way the defendant was in custody: first through the court’s admonishment during voir dire, and then a second time during jury instructions. Such comments by the court are not akin to a “repeated” conveyance to the jury of defendant’s custodial status such that they would impair the presumption of innocence. We find no error in the court’s admonishments regarding defendant’s custodial status.
Instructional Error
Defendant asserts the trial court erred in instructing the jury on the natural and probable consequences of the crime (CALJIC No. 3.02), and the burden of proof (CALJIC No. 2.01), and specific intent instructions (CALJIC No. 2.02).
CALJIC No. 3.02: The Natural and Probable Consequences Doctrine
With regard to defendant’s claims concerning the natural and probable consequences doctrine, defendant argues the trial court erred in giving CALJIC No. 3.02, because it failed to define the predicate felony of robbery for purposes of the natural and probable consequences doctrine. Furthermore, he asserts that the last paragraph of the instruction was contrary to the holding of Prettyman, supra, 14 Cal.4th 248 because it included an unnecessary portion of the instruction referencing the lack of need for unanimity, permitting the jury to convict on a generalized belief that the defendant intended to assist or encourage unspecified nefarious conduct.
The version of CALJIC No. 3.02 given provided no information about the target crimes. Further, the instruction stated: “You are not required to unanimously agree as to which originally contemplated crime the defendant aided and abetted, so long as you are satisfied beyond a reasonable doubt and unanimously agree that the defendant aided and abetted the commission of an identified and defined target crime and that the resulting crime or crimes was a natural and probable consequence of the commission of that target crime.”
When the theory of the prosecution is aiding and abetting liability under the “ ‘natural and probable consequences’ ” doctrine, the trial court must identify and describe the target crimes that the defendant might have assisted or encouraged. This assists the jury in determining whether the crime charged was a natural and probable consequence of some other criminal act and eliminates the risk that the jury will engage in uninformed speculation with regard to what type of conduct is criminal. (Prettyman, supra, 14 Cal.4th at pp. 254, 267.) However, because a conviction may not be based upon the jury's generalized belief that the defendant intended to assist and/or encourage unspecified “ ‘nefarious’ conduct, ” the target crime must be identified. (Id. at p. 268.) Further, to “trigger application of the ‘natural and probable consequences' doctrine, there must be a close connection between the target crime aided and abetted and the offense actually committed.” (Id. at p. 269.)
In Prettyman, the court found that the failure to adequately instruct on the target crime created an ambiguity, because the jury could engage in unguided speculation, but that such ambiguity was not reversible error unless there was “ ‘ “a reasonable likelihood that the jury had applied the challenged instruction in a way’ that violate[d] the [federal] Constitution.’ ” (Prettyman, supra, 14 Cal.4th at p. 272.) In Prettyman, the prosecution's theory of the case was that the aider and abettor assisted in the underlying crime, rather than the target crime, and no arguments were made to the jury on the “ ‘natural and probable consequences’ ” theory. Thus, it was likely the jury did not rely on the theory but rather convicted the defendant as a simple accomplice to murder, rather than as an accomplice to a lesser criminal act of which the murder was a natural and probable consequence. (Id. at pp. 272-273.) In addition, Prettyman found no state constitutional violation because the error was harmless, as it was not reasonably likely the result would have different in the absence of the trial court’s instructional error. (Id. at p. 274.)
Here, the prosecutor advocated in his opening statement that the assaults and the false imprisonment were the natural and probable consequences of the home invasion robbery. However, in his rebuttal argument, defendant asserts the prosecutor took the argument one step further by implying to the jury that they could find defendant guilty of the charges by his presence at the scene to facilitate the purchase of marijuana, an act that is not illegal in California.
Our evaluation of the record does not support defendant’s assertion. Contrary to defendant’s argument, the prosecutor did not argue in his rebuttal that defendant’s presence to facilitate the purchase of marijuana was sufficient to convict him of the robbery and additional charges under the natural and probably consequences doctrine.
Although the instruction did not specifically identify the target offense as robbery, it is clear from the evidence that robbery was the target offense, not the purchase or marijuana. The prosecutor’s arguments related to the natural and probable consequences of the charged offense of robbery and not on uncharged crimes. Given this analysis, there is no danger defendant was convicted for mere “nefarious” conduct.
CALJIC Nos. 2.01 and 2.02: Circumstantial Evidence and Specific Intent or Mental State
Defendant asserts the court’s instruction with CALJIC No. 2.01, relating to the sufficiency of circumstantial evidence generally, and CALJIC No. 2.02, relating to the sufficiency of circumstantial evidence to prove specific intent or mental state, reduced the prosecution’s burden of proof to less than a reasonable doubt standard.
Specifically, defendant complains that although the instructions are nearly identical, CALJIC No. 2.02 omits the following paragraph that is contained in CALJIC No. 2.01: “Further, each fact which is essential to complete a set of circumstances necessary to establish the defendant’s guilt must be proved beyond a reasonable doubt. In other words, before an inference essential to establish guilt may be found to have been proved beyond a reasonable doubt, each fact or circumstances on which the inference necessarily rests must be proved beyond a reasonable doubt.” CALJIC No. 2.02’s omission of this paragraph, defendant asserts, implies to the jury that they may apply a burden less than reasonable doubt to the elements of specific intent or mental state.
In evaluating defendant’s claim of error, we consider the entire charge of the court, not parts of a particular instruction. (People v. Wilson (1992) 3 Cal.4th 926, 943.) Here, the paragraph that is omitted in CALJIC No. 2.02, dealing specifically with circumstantial evidence to prove mental state was contained in CALJIC No. 2.01, dealing with circumstantial evidence in general. Through these instructions, the jury was clearly told that the reasonable doubt standard applied to circumstantial evidence of mental state. In addition, the jury was instructed with CALJIC No. 2.90, the standard reasonable doubt instruction for all elements of the offenses charged. When the instructions are considered together, it is clear the jury could not have understood that defendant could be convicted with anything less than proof beyond a reasonable doubt of all the elements of the crimes. We find no error in the court’s giving of CALJIC Nos. 2.01 and 2.02.
Increased Penalty Under Section 213, subdivision (a)(1)(A)
Defendant asserts he should not be penalized for an increased term under section 213, subdivision (a)(1)(A) for robberies of inhabited dwelling, because there is insufficient evidence that he entered the apartment. Defendant’s claim is without merit.
As an initial matter, there is nothing in section 213, subdivision (a)(1)(A) that requires a defendant to personally enter a dwelling in order to be subject to the increased penalties associated with robbery of an inhabited dwelling. The section states: “[i]f the defendant, voluntarily acting in concert with two or more other persons, commits the robbery within an inhabited dwelling house . . . . [the defendant shall be subject to] imprisonment in the state prison for three, six, or nine years.” (§ 213, subd. (a)(1)(A).)
Here, the prosecutor relied on a theory of aiding and abetting the robbery to establish defendant’s liability. Moreover, in order to find defendant liable, the jury could decide if he was the direct perpetrator or an aider and abettor. Certainly, there was sufficient evidence to support either conclusion. Indeed, each of the victims testified that defendant entered the apartment, and Hayes testified that defendant told her he entered the apartment. Moreover, even if the jury convicted defendant based on him being an aider and abettor in the robbery, such finding does not reduce defendant’s enhanced sentence under section 213, subdivision (a)(1)(A). Aiders and Abettors are liable to the same extent as the direct perpetrators. (People v. Perez (2005) 35 Cal.4th 1219, 1225). As a result, defendant is subject to the same sentencing scheme as the direct perpetrators of the crime under section 213, subdivision (a)(1)(A).
Sentencing Error Under Section 654
Defendant asserts the trial court should have applied section 654 and stayed defendant’s sentence for assault, because the crime was incidental to the same objective as the robbery.
Section 654, subdivision (a) provides in part, “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term for imprisonment, but in no case shall the act or omission be punished under more than one provision.” Section 654 prohibits multiple punishment for an indivisible course of conduct with a common intent and objective, even though the conduct at issue violates more than one statute. (People v. Latimer (1993) 5 Cal.4th 1203, 1207-1208.)
In issuing the sentence in this case, the court noted: “robberies in a dwelling, an inhabited dwelling, by people acting in concert can be done without viciously beating the victims. . . . [¶] . . . This act of assault on Mr. Barros was not involved—did not have to be involved in a robbery in concert in a dwelling house of all of the individuals and specifically was an additional act above and beyond what was done [to McKinnon]. Therefore, the court, because this was a separate victim and a separate act, imposes the two-year consecutive term . . . .”
Here, the evidence at trial supports the court’s conclusion that the assault on Barros was a separate act of violence from the home invasion robbery. The record reflects that Barros was hit twice during the altercation—once as the group entered the apartment, and then again when Barros tried to get up. The second hit was clearly not in furtherance of the robbery, and was not committed with a common intent and objective. (Latimer, supra, 5 Cal.4th at pp. 1207-1208.) Therefore, the court did not err in issuing a separate sentence for the assault under section 654.
Disposition
The judgment is affirmed.
WE CONCUR: PREMO, J., ELIA, J.