Opinion
NOT TO BE PUBLISHED
Los Angeles County, Super. Ct. No. KA086655-01, Thomas Falls, Judge
Daniel G. Koryn, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Theresa A. Patterson, Robert David Breton, Deputy Attorneys General, for Plaintiff and Respondent.
YEGAN, J.
Zachary Emerson Flanders appeals from the judgment entered following his conviction by a jury of the first degree felony murder of Ronson Edgerly (Pen. Code, §§ 187, subd. (a), 189), the attempted murder of Matthew Staley (§§ 664, 187, subd. (a)), and two counts of robbery. (§ 211.) The jury found true the special circumstances allegation that appellant had committed the murder while engaged in the commission of robbery. (§ 190.2, subd. (a)(7).) The jury also found true firearm allegations on all counts. (§ 12022.53, subds. (b), (c), & (d).) For the attempted murder and robberies with the firearm enhancements, the court sentenced appellant to prison for a determinate term of 29 years, 4 months. For the murder, the court sentenced him to prison for an indeterminate term of life without the possibility of parole plus 25 years to life for the firearm enhancement.
All statutory references are to the Penal Code.
Appellant contends that, except for one robbery conviction (the robbery of Aaron Englert), the evidence is insufficient to support the jury verdicts. Appellant further contends that the trial court erroneously admitted a photograph of the murder victim while alive and misinstructed the jury. Finally, appellant contends that (1) the prosecutor committed misconduct, (2) his sentence of life imprisonment without the possibility of parole constitutes cruel and/or unusual punishment, and (3) he was denied his right to presentence custody credits. We modify the judgment to award appellant credit for actual time served in presentence custody. We affirm the judgment as modified.
Facts
Prosecution Evidence
In March 2009 Aaron Englert entered a vehicle for the purpose of selling one-half ounce of marijuana. Englert gave the marijuana to Sean, a passenger in the vehicle, so that he could examine it. Appellant, who was seated in the driver's seat, pulled out a gun, pointed it at Englert's face, and ordered him "to get the fuck out of the car." (1RT 68-69, 69, line 5) Englert got out of the car, and appellant drove away without paying for the marijuana.
In April 2009 appellant telephoned Andrew Yazbek and said that he wanted to purchase marijuana. Yazbek contacted Ronson Edgerly, who agreed to sell a quarter pound of marijuana for $1,200.
Appellant arrived at Edgerly's house. Yazbek escorted him to the backyard, where the marijuana was on a table. Appellant asked Edgerly if he had a scale for weighing the marijuana. While Edgerly was looking for a scale, appellant grabbed the marijuana, pulled out a gun, and pointed it at Yazbek's face. Yazbek ran behind the house.
Appellant started "backing up towards the exit" from the yard. Edgerly walked toward appellant and wrestled with him. During the struggle, appellant dropped the marijuana and fired four shots. Edgerly fell to the ground. Appellant then fired a fifth shot into Edgerly's body.
Matthew Staley, Edgerly's friend, picked up a pair of bolt cutters with the intention of coming to Edgerly's defense. Staley walked toward appellant and raised the bolt cutters in a threatening manner. Appellant pointed his gun at Staley and told him "to get the fuck back." Staley retreated.
Staley yelled, " 'Cops are coming, ' to try and scare [appellant] away." Appellant went toward a fence and was trying to jump it when Staley threw the bolt cutters at him. Appellant pointed his gun at Staley and fired one shot. Staley "felt like a burst of wind going right past [his] head."
Appellant fled. The marijuana remained on the ground where appellant had dropped it. Appellant never paid for the marijuana.
Edgerly sustained two gunshot wounds. One was a nonfatal "graze wound" to the surface of his left arm. The other was a fatal wound to Edgerly's left shoulder. The bullet pierced his left lung, and "he bled to death."
Defense Evidence
Appellant testified as follows: Upon arriving at Edgerly's house, appellant gave $1,200 to Yazbek and asked him, "Where is the weed?" Yazbek replied, "Oh, don't worry. It's in the back."
In the backyard, appellant saw the marijuana on a table. Yazbek picked up the marijuana and handed it to appellant. Appellant said that he wanted to weigh the marijuana. Edgerly "turned around fairly quickly, " and appellant "thought he was going to grab the marijuana from [appellant]."
Appellant stepped backward and pulled out a gun. He pointed it first at Yazbek and then at Edgerly. Appellant then pointed the gun in the air, fired one shot as a warning, and said to Edgerly, "Back up, fucker." Edgerly came toward appellant and grabbed the arm with the gun. A struggle ensued, and appellant fired two more shots. Appellant tried to hit Edgerly with the gun. Edgerly grabbed the gun and "yanked" it toward himself. A fourth, fatal shot was fired into Edgerly's arm. Edgerly yelled, "I'm shot, I'm shot."
Appellant was walking toward the backyard fence when the bolt cutters thrown by Staley struck him in the back. Appellant turned around and fired into the air. He did not point the weapon at Staley and did not intend to kill him. Appellant did not see anyone at this time. After firing the gun, appellant jumped the fence and ran away.
Sufficiency of the Evidence: Edgerly
Appellant contends that the evidence is insufficient to support his conviction of the robbery of Edgerly, his conviction of first degree murder based on a felony-murder theory, and the special circumstances allegation that the murder was committed during the commission of a robbery. Appellant argues, "[T]his was a fatal shooting that occurred during a dope deal, not a robbery." Appellant asserts that his payment to Yazbek of the $1,200 purchase price for the marijuana "was inconsistent with him planning on robbing and killing Ronson Edgerly...." Appellant notes that he "was very specific in his testimony that he did not intend to rob Edgerly."
Appellant is viewing the record in the light most favorable to himself. But on a claim of insufficiency of the evidence, we must view the record " ' "in the light most favorable to the judgment to determine whether it discloses substantial evidence - that is, evidence that is reasonable, credible, and of solid value - from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]" ' [Citation.]" (People v. Wilson (2008) 44 Cal.4th 758, 806.)
Viewing the evidence in the light most favorable to the judgment, substantial evidence supports the jury's finding that the shooting of Edgerly occurred during a robbery. Yazbek testified that appellant did not pay any money for the marijuana. The jury credited Yazbek's testimony and rejected appellant's. Despite appellant's profession of a lack of intent to rob Edgerly, a contrary intent is shown by his taking of the marijuana at gunpoint without paying for it.
We reject appellant's argument that, "[a]t the very least, there was no question Edgerly's property was not taken or asported by appellant as he left the marijuana at the scene." In People v. Hill (1998) 17 Cal.4th 800, 852, our Supreme Court held that substantial evidence supported the taking and asportation requirements of robbery where the assailant grabbed the victim's purse, "looked through it, declined to take anything from inside the purse, and then gave it back" to the victim. The court observed: " '[S]light movement' is enough to satisfy the asportation requirement. [Citation.]... [E]ven where the only movement was the victim placing money into a paper bag, courts have found sufficient asportation to justify a conviction for robbery. [Citation.]" (Id., at pp. 852-853)
Sufficiency of the Evidence: Staley
Appellant argues that the evidence is insufficient to support his conviction of the attempted murder of Staley because "there was no evidence of an intent to kill... Staley." This argument is frivolous. Staley testified that appellant had pointed a gun at him and had fired one shot. Staley "felt like a burst of wind going right past [his] head." Based on Staley's testimony, a reasonable trier of fact could find beyond a reasonable doubt that appellant had the specific intent to kill Staley and that the bullet fired from appellant's gun had narrowly missed Staley's head.
Admission of Photograph
Appellant argues that the trial court erroneously admitted a photograph of Edgerly while alive for the purpose of identifying him as the murder victim. In overruling appellant's objection to the admission of the photograph, the trial court stated: "It's a simple photograph. It appears something was snapped probably at a restaurant. There's nothing special about the picture.... It simply puts a face on the name of the victim who the jury is going to hear about throughout this trial. [¶] I have weighed any prejudicial effect against the probative value, and I think the jury is entitled to see the picture." The court noted that the photograph showed Edgerly "with a blond girl. They're leaning up against each other."
Our Supreme Court has "repeatedly cautioned against the admission of photographs of murder victims while alive unless the prosecution can establish the relevance of such items. [Citations.] Otherwise, there is a risk that the photograph will merely generate sympathy for the victims." (People v. DeSantis (1992) 2 Cal.4th 1198, 1230.) "Nonetheless, we decline to find error. The photograph, which was shown to [one] witness[] [Andrew Yazbek], was relevant to establish the [witness's] ability to identify the victim[] as the [person] about whom [he was] testifying. The possibility that it generated sympathy for the victim[] is not enough, by itself, to compel its exclusion if it was otherwise relevant." (Ibid.; see also People v. Martinez (2003) 31 Cal.4th 673, 692 [photographs of murder victims while alive are admissible for identification purposes].)
"Moreover, even if error occurred, it could not have been prejudicial.... [T]his was not a close case in which sympathy for the victim[] might have led the jury to improperly convict. It would not have been reasonably probable that the outcome would have been more favorable to [appellant] had the photograph been excluded.... (People v. Watson (1956) 46 Cal.2d 818, 836....)" (People v. DeSantis, supra, 2 Cal.4th at p. 1231.)
Instructions on Voluntary and Involuntary Manslaughter
Appellant contends that, as to the murder charge, the trial court erroneously refused to instruct the jury on the lesser included offenses of sudden quarrel/heat of passion voluntary manslaughter and involuntary manslaughter. We need not decide this issue "because any error was necessarily harmless in light of the jury's special circumstance finding that [appellant] killed [Edgerly] in the perpetration of [robbery]. Under this finding, the [Edgerly] killing was necessarily felony murder. [Citation.]" (People v. Price (1991) 1 Cal.4th 324, 464.)
Instruction on Attempted Voluntary Manslaughter
Appellant contends that, as to the attempted murder of Staley, the trial court erroneously failed to instruct sua sponte on the lesser included offense of attempted sudden quarrel/heat of passion voluntary manslaughter. Appellant is precluded from raising this issue because in the trial court defense counsel stipulated that the evidence does not support the giving of this instruction.
" ' "[A] defendant may not invoke a trial court's failure to instruct on a lesser included offense as a basis on which to reverse a conviction when, for tactical reasons, the defendant persuades a trial court not to instruct on a lesser included offense supported by the evidence. [Citations.] In that situation, the doctrine of invited error bars the defendant from challenging on appeal the trial court's failure to give the instruction." ' [Citation.]" (People v. Beames (2007) 40 Cal.4th 907, 927.) It is reasonable to infer that defense counsel did not want the trial court to instruct on the lesser included offense of attempted voluntary manslaughter because this instruction would have been "inconsistent with the defense that the defendant did not commit the crime at all." (Ibid.) Appellant testified that he had fired into the air and had not seen anyone at the time of the firing.
Instructions on Self-Defense
Appellant contends that, as to the shooting of Edgerly, the trial court erroneously refused to instruct the jury on both perfect and imperfect self-defense. "For killing to be in self-defense, the defendant must actually and reasonably believe in the need to defend. [Citation.] If the belief subjectively exists but is objectively unreasonable, there is 'imperfect self-defense, ' i.e., 'the defendant is deemed to have acted without malice and cannot be convicted of murder, ' but can be convicted of manslaughter. [Citation.] To constitute 'perfect self-defense, ' i.e., to exonerate the person completely, the belief must also be objectively reasonable. [Citation.]... Moreover, for either perfect or imperfect self-defense, the fear must be of... 'imminent danger to life or great bodily injury.' [Citation.]" (People v. Humphrey (1996) 13 Cal.4th 1073, 1082, fn. omitted.)
"A trial court is required to give a requested instruction on a defense only if substantial evidence supports the defense. [Citation.]" (People v. Panah (2005) 35 Cal.4th 395, 484.) Substantial evidence does not support the defense of perfect or imperfect self-defense. There is no substantial evidence that appellant was in fear of imminent death or great bodily injury. The only fear to which he testified was a fear that Edgerly "was going to grab the marijuana from [him]."
Moreover, there is no substantial evidence that appellant believed he was acting in self-defense when he fatally shot Edgerly. Appellant characterized the shooting of Edgerly as an accident caused by Edgerly's own actions: "And he [Edgerly] grabs the gun and pulls it towards him, and then another shot shoots him in the arm, I guess."
In addition, the defenses of perfect and imperfect self-defense "cannot be invoked... by a defendant whose own wrongful conduct (for example, a physical assault or commission of a felony) created the circumstances in which the adversary's attack is legally justified. [Citations.]" (People v. Booker (2011) 51 Cal.4th 141, 182, fn. omitted.) Edgerly's attack was legally justified because of appellant's wrongful conduct. Appellant admitted that he had pulled out a gun and had pointed it at Edgerly before Edgerly attacked him.
"Furthermore, under the felony-murder rule, a killing in the commission of certain felonies specified in section 189 is first degree murder, not manslaughter, even if the killer acts in unreasonable self-defense. Here, the jury found true the special circumstance allegation[] that [appellant] killed the victim in the course of... a robbery, [which is a felony] enumerated in section 189. As a result, any conceivable error in refusing to instruct the jury on unreasonable self-defense was harmless. [Citation.]" (People v. Seaton (2001) 26 Cal.4th 598, 665.)
Alleged Prosecutorial Misconduct
The court instructed the jury before closing arguments. Appellant contends that the prosecutor committed misconduct when he told the jury during rebuttal argument that it could not consider the defense of self-defense because it was unsupported by the evidence and the court had not instructed on the defense. Appellant's contention is meritless. As explained above, appellant was not entitled to have the jury consider the defense of self-defense because there was no substantial evidence supporting this defense. The prosecutor's remarks, therefore, constituted fair comment upon the evidence. (See People v. Ledesma (2006) 39 Cal.4th 641, 726 ["A prosecutor is given wide latitude to vigorously argue his or her case and to make fair comment upon the evidence"].)
Cruel and/or Unusual Punishment
Appellant contends that his sentence of life imprisonment without the possibility of parole for the murder of Edgerly constituted cruel and/or unusual punishment under the federal and California constitutions. "We decide whether the penalty given 'is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity, ' thereby violating the prohibition against cruel and unusual punishment of the Eighth Amendment of the federal Constitution or against cruel or unusual punishment of article I, section 17 of the California Constitution. [Citations.]" (People v. Cunningham (2001) 25 Cal.4th 926, 1042.)
Appellant's sentence does not shock the conscience or offend fundamental notions of human dignity. It is reasonable to infer that appellant carefully planned the armed robbery of Edgerly. It is also reasonable to infer that appellant intentionally, not accidentally, shot Edgerly. According to Matthew Staley, appellant fired the final, fatal shot at Edgerly while Edgerly was on the ground and appellant was "kind of kneeling over him." Moreover, appellant came within inches of shooting Staley in the head. In addition, only a few weeks earlier appellant had committed the armed robbery of Aaron Englert. "It was [appellant's] conduct, not his sentence, that was cruel and unusual." (People v. Wallace (1993) 14 Cal.App.4th 651, 666.) Thus, appellant's sentence passes constitutional muster.
We do not consider the People's contention that appellant waived the cruel and/or unusual punishment issue because he failed to raise it in the trial court.
Presentence Custody Credits
Appellant argues that the trial court erroneously refused to award him credit for actual time served in presentence custody. The People concede that the court's refusal was "technically incorrect." Section 2900.5 provides: "In all felony... convictions, either by plea or verdict, when the defendant has been in custody, ... all days of custody of the defendant... shall be credited upon his or her term of imprisonment...." "A sentence that fails to award legally mandated custody credit is unauthorized and may be corrected whenever discovered. [Citation.]" (People v. Taylor (2004) 119 Cal.App.4th 628, 647.)
But despite appellant's statutory entitlement to presentence custody credits, the People maintain that "the custody-credit claim must be rejected." The People argue that, in view of appellant's sentence of life imprisonment without the possibility of parole, the correction of the judgment to show the custody credits would be an idle act and a waste of judicial resources.
We disagree. The correction of the judgment would not necessarily be an idle act because there is a possibility, however remote, that the governor will commute the sentence to life imprisonment with the possibility of parole. (See People v. Verdugo (2010) 50 Cal.4th 263, 304 ["any instruction that a sentence of life imprisonment without the possibility of parole 'guaranteed defendant's incarceration until his death would be inaccurate, considering the Governor's commutation and pardon powers' "].) Accordingly, we modify the judgment to award appellant credit for actual time served in presentence custody.
Appellant maintains that he is entitled to credit for 336 days of actual presentence custody. Appellant's calculation is incorrect. He was arrested on April 21, 2009, and was sentenced on April 1, 2010. (CT 151, 167, 175) He is entitled to credit "for all days in custody up to and including the day of sentencing." (People v. Smith (1989) 211 Cal.App.3d 523, 527.) As the probation report notes, based on the dates of appellant's arrest and sentencing, he is entitled to credit for 346 days of actual presentence custody.
Disposition
The judgment is modified to award appellant credit for actual time served in presentence custody of 346 days. As modified, the judgment is affirmed. The trial court shall prepare a corrected abstract of judgment reflecting this modification and shall send a certified copy to the Department of Corrections and Rehabilitation.
We concure: GILBERT, P. J., PERREN, J.