Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F03831
SCOTLAND, P.J.
A jury convicted defendant Gerald Ellis of first degree robbery in concert and first degree murder, and found the murder occurred during the commission of robbery. He was sentenced to state prison for life without the possibility of parole.
On appeal, defendant contends there is insufficient evidence to support the robbery-murder special circumstance, and the abstract of judgment contains an error. We shall affirm the judgment and direct the trial court to correct the error in the abstract.
FACTS
Defendant participated in a home invasion robbery and murder with Carlos Foster, Markus Mayers, and Clark Robinson. They were tried jointly with three juries: one for defendant, another for Mayers, and a third jury for Robinson and Foster. Evidence revealed the following facts:
Adri Ann Jefferies lived with her boyfriend, Donald Willis, in her Sacramento duplex along with her nine-year-old daughter, Dejianna, and Jefferies’ friend, Desiree Love. The duplex had two bedrooms; Jefferies and Willis shared the master bedroom, and Love and Dejianna slept in the other bedroom.
On May 5, 2005, Jefferies went to sleep leaving the bedroom window open. She awoke up when she heard a “[r]eally big” noise, like “windows breaking or something.” Willis was next to her. The lights were off, but the television was on and light was starting to come through the bedroom window as the sun rose.
Jefferies saw a person wearing a ski mask, sitting on the window, and holding a big gun. The intruder climbed through the window and onto the bed, straddling Willis while beating him on the head with the gun. A second intruder came in and walked out the bedroom door. Then a third intruder, a very short man with dreadlocks, came through the bedroom window carrying a revolver.
The first intruder got off of Willis and asked where the money was. The third intruder stood at the foot of the bed as the first intruder was digging through Willis’s pants pockets. They then took Willis to the bathroom and walked him to the bathtub, where the third intruder held Willis at gunpoint.
During the robbery, Jefferies frequently screamed, saying “please get out of here, I have kids.”
The first intruder returned to the bedroom and asked for Willis’s car keys. Jefferies turned over the keys and followed the intruder to the front door. She did not see anyone else as she walked through the house.
The first intruder walked up to the side of Willis’s car. Jefferies followed, and when she screamed for him to leave, the intruder turned to her, saying, “I know, I know, please get back in the house before you die.”
The first intruder then returned to the bedroom and asked Willis where the money was. At Willis’s directions, Jefferies retrieved money from Willis’s underwear drawer.
After the first intruder said something to the third intruder and walked away, the third intruder leaned forward, shot Willis in the head, and walked out of the house.
Jefferies went to the bathroom, where she cradled Willis’s head so the blood would not come out. Willis died from a gunshot wound to the right temple and sustained injuries consistent with being struck by the barrel of a gun.
Randy Skelton was at the house that night, staying in the other bedroom with Love and Jefferies’ daughter. Awakened by Love, Skelton crawled to the bedroom door, cracked it open, and saw someone running towards the window. After he closed the bedroom door, Skelton heard screaming and yelling, including the phrase “give me the keys, show me where the keys [are] at.” He also heard Willis say something like “all right, all right.” Keeping quiet, Skelton heard a gunshot, followed by silence, and then Jefferies’s screaming.
Several of Jefferies’s neighbors testified. One heard a gunshot around 5:30 or 5:40 a.m., went outside and heard a second gunshot sound. He saw a man jump over the northwest corner of Jefferies’s backyard. Another neighbor, who was awakened by loud noises and shouting nearby, heard a shot followed by scrambling, as if someone was running over both of the fences by her duplex. A third neighbor heard a loud bang followed by screaming, peeked outside, and saw “a shadowy figure run up [his] neighbor’s yard kind of behind a hedge row followed by what sounded like a fence, kind of a fence shaking.”
The first officer who responded to the crime arrived around 5:43 a.m. The front door of Jefferies’s duplex was open, and the master bedroom window was wide open with the screen removed and placed outside. In the bedroom was a chest with one drawer pulled out. At the bottom of the drawer were 315 ecstasy pills. There was a hole on the exterior of the duplex from a shotgun blast, going inside the master bedroom. The shotgun was fired within four feet of the wall just below the master bedroom window. The blast was at a downward angle and towards the bed. Pellets were found on the bedroom floor, and there were pellet deflections on the bed frame. A shotgun shell was found on the bathroom floor.
Testimony revealed that defendant, who lived in Sparks, Nevada, had called Larry Chew, who lived in Reno, to ask for a ride to Sacramento to pick up his family. Instead, Chew loaned his car to defendant for $100. Defendant did not return the car at the agreed time. He failed to return several calls, but came to Chew’s house about a week later and said the car had been stolen in Sacramento. The car, a blue green Oldsmobile with Nevada plates, was eventually recovered in Oakland.
Codefendants Foster and Robinson were arrested in Oakland on May 8, 2005. Foster was in the driver’s seat of Chew’s car and had a revolver in his waistband and $587 cash in his pocket. Robinson, who identified himself as Terrell Taylor, was in the passenger seat. Officers found a shotgun between Robinson’s legs and a magazine clip under the right front passenger’s seat.
Oakland officers seized the 12-gauge shotgun, .357 revolver, unfired shotgun shells, live .357 rounds, and a high capacity nine-millimeter magazine with rounds and later turned them over to Sacramento sheriff’s officers. The shotgun ammunition carried the same numbers as the shotgun shell found in Jeffries’s bathroom. Both the shotgun and the revolver were loaded. Nine live rounds were in the magazine clip, which was for a Cobray M-11 type pistol, commonly known as a Mac-11. The shotgun was a pump action and would normally eject the spent shell when the slide was pulled back after firing. The ejector, which causes the ejection, was missing from the shotgun. This required manually removing the shell. There was no evidence as to whether a shell could accidentally fall out of this shotgun.
Renell Thorpe talked to police officers on May 8, 2005, after his arrest for being a convicted felon in possession of a firearm. He told them the following information: Thorpe knew of the murder victim, Willis, as the “pill man,” an ecstasy dealer originally from Oak Park. On May 5, 2005, Thorpe was in Sacramento when some people said they would rob the pill man. Thorpe was asked to participate, but he declined. He identified defendant, Foster, Mayers, and Robinson as the men involved in the robbery. According to Thorpe, defendant drove Thorpe, Mayers, and Mayers’s cousin, G-Step, to Oakland, where they dropped off Thorpe and G-Step and were joined by Robinson and Foster. Defendant then drove away with Mayer, Robinson, and Foster. There were no guns when they left from Sacramento, but in Oakland they got a Mac-11, a shotgun, and a .22 caliber rifle.
When Thorpe appeared at trial in exchange for immunity from prosecution for unrelated offenses, he testified that he had known Robinson, also called Little Clark, for about 10 to 15 years and had known Mayers for three to four years. He remembered being driven to Oakland by defendant along with Mayers and G-Step and that Mayers and defendant left Thorpe and G-Step in Oakland. According to Thorpe, he had lied to officers when he told them he heard some people on the street corner in Oak Park talk about doing a “lick” on the pill man and that Mayers was one of the people. Thorpe testified that he was high on ecstasy when he talked to the officers and he did not really know if Willis was the pill man. He made up what was said to the them in order to get out of jail. He claimed he never saw defendant or Mayers with a gun.
Defendant was interviewed by detectives after his arrest. He told them the following:
Defendant grew up in Oak Park and had heard that Willis sold ecstasy. Defendant first claimed that he had last seen Willis a couple of months before in Reno. He borrowed Chew’s car and drove his cousin and two other men to Sacramento, but the three men stole the car when defendant stopped to get something to drink.
After asking what the penalty is for being an accessory to a crime, defendant said that he wanted to start over. He then said that he drove his wife and children to Sacramento for a barbecue and left them there. Some people wanted to go to Oakland, so defendant drove Thorpe, Mayers, and G-Step there. Thorpe and G-Step left the car when they got to Oakland and Robinson and Foster got in.
They got in the car so they could do a “lick,” i.e., robbery. Defendant drove them to a house in Oakland where they got three guns, a shotgun with a broken piece, a .38 revolver, and a bigger automatic gun that looked like an Uzi. They talked about doing a “lick” and told defendant where to go. He did not know where he was going until he arrived at the destination, and he had to be told where to park. Defendant said he was directed to check the front door and then opened the gate and entered the backyard. He next went through the backyard to the sliding glass door where he and Mayers were let in by one of the other robbers.
Defendant then recanted part of this account, admitting to officers that he went through the bedroom window. Foster entered the window first, then another robber, with defendant entering third. Defendant did not know what happened in the bedroom because he immediately went out the bedroom door and to the sliding glass door, which he opened for Mayers. Defendant, who had the shotgun, and Mayers stayed in the living room and garage. According to defendant, the shotgun accidentally fired before he entered through the bedroom window.
During the robbery, defendant heard someone say, “Get out of bed. Get out of bed. Where’s it at? Get out of bed. Where’s it at?” He also heard Willis saying, “No, man. No. No.”
Defendant claimed the robbery was unplanned and no one had a specific role. He and Mayers were looking “through stuff” in the living room when he heard, “Let’s go. Let’s go.” They ran out of the house, jumped over a fence, and ran to the car. The pair were no more than 10 feet away from the car when defendant heard a gun go off.
Defendant started the car, the other three got in, and he drove away. As defendant was driving, Foster admitted shooting Willis.
DISCUSSION
I
The felony murder special circumstance does not apply to a person who is not the actual killer unless the person acted “with reckless indifference to human life” and was “a major participant” in the underlying felony. (Pen. Code, § 190.2, subd. (d).)
Defendant contends there is insufficient evidence to support either requirement. We disagree.
A
The facts constituting the special circumstance must be found beyond a reasonable doubt by unanimous jury verdict. (People v. Superior Court (Engert) (1982) 31 Cal.3d 797, 803.) “To determine the sufficiency of the evidence to support a special circumstance finding, we apply the same test used to determine the sufficiency of the evidence to support a conviction of a criminal offense. We ‘review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence--that is, evidence which is reasonable, credible, and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citations.]” (People v. Mayfield (1997) 14 Cal.4th 668, 790-791.)
We presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. (People v. Bloyd (1987) 43 Cal.3d 333, 346-347.) The function of the reviewing court is not to reweigh the evidence, but to decide whether the record contains sufficient evidence to warrant the inference of guilt drawn by the trier of fact. (People v. Cochran (2002) 103 Cal.App.4th 8, 12-13.)
B
Defendant argues the evidence was insufficient to establish reckless indifference to human life because he did not kill Willis, was not present during the shooting, and “did not callously carry away loot while the victim lay dying in his presence.” We are not persuaded.
Subdivision (d) of the special circumstances statute mirrors the language of Tison v. Arizona (1987) 481 U.S. 137 [95 L.Ed.2d 127], which held the culpability requirement of the Eighth Amendment is satisfied when a defendant who, without an intent to kill and without being the actual killer, is a major participant in a felony that results in death of a victim and acts with a mental state of reckless indifference to human life. (Id. at pp. 138, 151, 157-158 [95 L.Ed.2d at pp. 132, 140, 144]; see People v. Estrada (1995) 11 Cal.4th 568, 575).)
“[R]eckless disregard for human life [is] implicit in knowingly engaging in criminal activities known to carry a grave risk of death . . . .” (Tison v. Arizona, supra, 481 U.S. at p. 157 [95 L.Ed.2d at p. 144].) Accordingly, “[t]he term ‘reckless indifference to human life’ means ‘subjective awareness of the grave risk to human life created by his or her participation in the underlying felony.’” (People v. Proby (1998) 60 Cal.App.4th 922, 928 (hereafter Proby), quoting People v. Estrada, supra, 11 Cal.4th at p. 578.)
Defendant and three codefendants entered the residence of a known drug dealer in the early morning with the intent to rob him. They were heavily armed, and defendant carried a loaded shotgun. An armed home invasion robbery carries a risk of resistance “and the extreme likelihood death could result.” (People v. Mora (1995)39 Cal.App.4th 607, 617.) While there was no resistance, holding Willis at gunpoint and executing him prevented any resistance or retaliation. Unquestionably, Willis’s murder was a foreseeable consequence of defendant’s participation in the robbery.
Defendant also recklessly discharged the shotgun, blowing a hole in the wall, and causing pellets to hit the bed frame and go into the bedroom. He knew the shotgun had a broken “back piece” and managed to get the spent shell out of the shotgun and onto the bathroom floor in spite of the broken ejector. The evidence shows the shell had to be removed manually because of the broken ejector, which indicates defendant’s intent to remain effectively armed throughout the robbery.
Defendant admitted seeing the sleeping Willis wake up after the shotgun went off. Because the shotgun was fired before the robbers entered, the jury could reasonably find that defendant was able to see Willis being beaten before entering through the window. Having seen Willis being beaten with a gun, the heavily-armed defendant continued to participate in the home invasion robbery, a clear display of reckless indifference to human life.
Defendant also displayed reckless disregard for life by not providing aid to Willis after hearing the shot. He had already heard Willis exclaim, “No, man. No. No.” After hearing the shot, he had reason to believe Willis was the victim, which Foster confirmed after they drove away. In the context of this home invasion robbery, driving away without giving assistance to the victim after hearing the shot supports the special circumstance. (See Proby, supra, 60 Cal.App.4th at p. 929.) Although not as graphically obvious as the risk to the victim in Proby, where the appellant saw the wounded victim with “pus” oozing out of his head (ibid.), defendant’s callous disregard of Willis’s health and safety after hearing the shot is additional evidence supporting a finding of reckless disregard for human life.
C
We also reject defendant’s contention that he was not a major participant in the robbery.
There is no minimum threshold of participation which qualifies a person as a “major participant” in a crime. A major participant is not necessarily the ringleader of the group, but simply is one who is “‘notable or conspicuous in effect or scope’ and ‘one of the larger or more important members . . . of a . . . group.’” (Proby, supra, 60 Cal.App.4th at pp. 933-934.)
Thorpe told police officers that after the robbery was first planned in Sacramento, defendant drove Mayers to Oakland, where they met Foster and Robinson and obtained the weapons.
Once they were armed, defendant drove them to the location of the robbery in Sacramento, where he did not act as a mere lookout or driver. Defendant was an active participant in the robbery, checking the front door to see if anyone was there, entering the house through the bedroom window, and opening the sliding glass door so Mayers could enter the house.
Substantial evidence supports the jury’s determination that defendant was a major participant in the robbery which resulted in Willis’s murder.
II
Defendant correctly points out an error in the abstract of judgment, which shows the trial court stayed a restitution fine pending successful completion of parole (Pen. Code, § 1202.45). Actually, the trial court did not impose such a fine, which is inapplicable to a defendant sentenced to life without possibility of parole. (People v. Jenkins (2006) 140 Cal.App.4th 805, 819.) Thus, the abstract must be corrected. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
DISPOSITION
The judgment is affirmed. The trial court is directed to correct the abstract of judgment by striking the reference to the Penal Code section 1202.45 restitution fine and by reflecting that the crimes were committed in 2005, not 2007. The court is further directed to send a certified copy of the corrected abstract to the Department of Corrections and Rehabilitation.
We concur: BLEASE, J.HULL, J.