From Casetext: Smarter Legal Research

People v. Fowler

California Court of Appeals, Second District, Fifth Division
Jul 23, 2008
No. B199619 (Cal. Ct. App. Jul. 23, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County, No. KA077220 George J. Genesta, Judge.

Victoria H. Stafford, under appointment by the Court of Appeal, for Defendant and Appellant Paul Douglas Fowler.

Kelly M. Cronin, under appointment by the Court of Appeal, for Defendant and Appellant Brian Matthew Thomas.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters and J. Michael Lehmann, Deputy Attorneys General, for Plaintiff and Respondent.


TURNER, P. J.

I. INTRODUCTION

Defendants, Paul Douglas Fowler, Jr. and Brian Matthew Thomas, appeal after they were convicted of carjacking (Pen. Code, § 215, subd. (a)) and two counts of assault with a deadly weapon (§ 245, subd. (a)(1)) and the jury found they personally used a deadly weapon in the commission of the carjacking. (§ 12022, subd. (b)(2).) Additionally, Mr. Thomas appeals from his convictions for conspiracy to commit robbery (§ 182, subd. (a)(1)) and unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a)) and the findings he personally inflicted great bodily injury in the commission of both the carjacking and the aggravated assault and used a deadly weapon. (§§ 12022, subd. (b)(1), 12022.7, subd. (a).) Mr. Thomas argues there was insufficient evidence to support his count 2 aggravated assault conviction and he improperly received the upper term. Mr. Fowler argues there was insufficient evidence to support his count 4 aggravated assault conviction and the trial court improperly instructed the jury on aiding and abetting. Both defendants argue the trial court improperly instructed the jury on reasonable doubt and flight. The Attorney General argues the trial court should have imposed a court security fee as to each count. Both defendants argue no additional fines or penalties need be imposed. We affirm with modifications.

All further statutory references are to the Penal Code unless otherwise indicated.

II. FACTUAL BACKGROUND

Jose Martin met Christina Grande at a friend’s home in 2005. Ms. Grande was homeless at the time. Mr. Martin occasionally gave her food and allowed her to “hang out” at his parents’ home where he resided. Thereafter, Ms. Grande moved back to her father’s home. Later, Mr. Martin received a note from Ms. Grande on the “My Space” Web site. Ms. Grande indicated that she wanted to see Mr. Martin and “hang out” with him. Mr. Martin arranged to meet Ms. Grande on November 28, 2006. Ms. Grande called Mr. Martin at approximately 5:30 p.m. to give him directions. Mr. Martin met Ms. Grande at an apartment complex in San Dimas at approximately 7 p.m. Ms. Grande and Mr. Thomas came to where Mr. Martin’s car was parked. Ms. Grande introduced Mr. Thomas as her roommate.

Ms. Grande asked Mr. Martin to drop off Mr. Thomas. Mr. Thomas was to meet his girlfriend. Mr. Martin was driving a Chevrolet Colorado four-door rental truck. Ms. Grande got into the front passenger seat. Mr. Thomas sat directly behind Mr. Martin. Ms. Grande directed Mr. Martin to drive to Bonelli Park. Once inside, he drove toward the parking lot. Another car was parked in the lot. Ms. Grande and Mr. Thomas said, “right there.” When they approached the lone car in the lot, Mr. Martin noticed that there was man inside. The car was backed into a parking space. Mr. Martin began to think the situation was “weird.” Mr. Thomas began to beat the back of Mr. Martin’s head with a mag flashlight. Mr. Martin “blanked out white” three times. Mr. Martin put the truck in park and jumped out. As he did so, Mr. Thomas hit him on the shoulder. As he was being hit in the head, Mr. Martin heard Mr. Thomas say, “You grabbed my girlfriend’s ass.”

Once outside, Mr. Martin walked toward the light colored Acura Integra. As he did so, Mr. Fowler jumped out of the car. Mr. Martin backed up. When Mr. Martin felt his head, he realized the back of his head was bleeding profusely and seemed to have a hole in it. Mr. Fowler stood approximately three feet from Mr. Martin. Mr. Fowler puffed up his chest and looked at Mr. Martin. In the meantime, Mr. Thomas had exited the back seat of Mr. Martin’s truck and got into the driver’s side. Mr. Martin backed up. Mr. Martin attempted to get back into the passenger side of his truck. However, Mr. Thomas had locked the door. Ms. Grande had gotten out of the truck and stood next to Mr. Martin. Mr. Martin asked Ms. Grande, “What’s going on?” Ms. Grande said, “‘I don’t know.’” Mr. Fowler got back inside the Integra automobile and drove out of the parking space, making a U-turn around the truck.

Mr. Martin then heard the car driven by Mr. Fowler. The car was being driven straight at Mr. Martin. Mr. Martin believed he would be pinned against his truck. As the car approached, Mr. Martin jumped up. The car hit Mr. Martin’s knees and “bumped [him] back” a few feet. Mr. Martin hit the hood of the car then landed on his feet and hands. Mr. Fowler then backed the car up and parked in the opposite parking stall. Mr. Fowler got out of the car and threw his hands up and his chest puffed up. Mr. Fowler said something like, “What’s up?” Ms. Grande got into the Integra automobile. The following testimony by Mr. Martin described his reaction: “Q. Did you say anything back to him? [¶] A. I was just telling him, like, I see you guys. [¶] Q. You said, I see you guys? [¶] A. Yeah, you guys are going to get yours. I never met these guys before in my life. I was pretty upset.” Thereafter, Mr. Fowler got back inside the Integra automobile. Mr. Thomas drove away in Mr. Martin’s truck followed by Mr. Fowler and Ms. Grande in the Integra. As the Integra drove away, Mr. Martin noticed that the license plate on the car was covered by a towel.

Mr. Martin had left his cellular telephone inside the truck. Mr. Martin walked to the top of a nearby hill. Mr. Martin knocked on the door of a house. Mr. Martin asked the occupant to call the police. Mr. Martin explained he had been beaten up and his truck was taken. The police, a fire truck, and an ambulance arrived within 10 minutes. Mr. Martin was treated by paramedics and taken to a hospital. While en route to the hospital, the ambulance was stopped near Bonelli Park. Mr. Fowler’s Integra automobile had been stopped by officers. Mr. Fowler and Ms. Grande were removed from the police car. Mr. Martin identified both of them as having been involved in the carjacking. The license plate on the Integra was covered. Thereafter, Mr. Martin was treated at the hospital. Mr. Martin received 16 staples and 9 stitches on the right side of his head. Mr. Martin still had a six-inch scar on the right side of his head at the time of trial. Mr. Martin continued to have headaches and tingling in the area of the injury at the time of trial.

Officer Andy Northrup had been driving in the Bonelli Park area on November 28, 2006, in a marked patrol car. At approximately 6:45 p.m., Officer Northrup was parked at the end of a parking lot doing paper work. Officer Northrup noticed a car leaving. Soon thereafter, Officer Northrup heard the loud sound of the exhaust of the gray Acura Integra, which was traveling eastbound through the main portion of the parking lot toward the exit. Based upon his training, Officer Northrup believed the exhaust on the Integra had been illegally modified. Officer Northrup turned on his overhead lights and conducted a stop. As he did so, Officer Northrup noticed that the rear license plate of the car was covered by a towel. Officer Northrup radioed his location and nature of the stop to a dispatcher. Officer Northrup saw Mr. Fowler and a woman who was the passenger inside the Integra. Later, Officer Northrup saw fresh blood on the front hood and side of the Integra.

Officer Northrup spoke to Mr. Fowler. Mr. Fowler was asked for his license and registration. Mr. Fowler was asked what he was doing in the area and why his license plate was covered. Mr. Fowler did not give an explanation. However, Ms. Grande said they were parked talking and arguing. Both Mr. Fowler and Ms. Grande appeared nervous. Mr. Fowler was repeatedly asked why his license plate was covered. However, Mr. Fowler had no answer. Eventually, Mr. Fowler claimed his radio had been stolen from his car a few days earlier. As Officer Northrup questioned Mr. Fowler, a sheriff’s deputy arrived. The deputy asked, “‘Is this our carjacking suspect?’” Officer Northrup had been unaware of the carjacking.

Mr. Martin was driven by ambulance to the place where Ms. Grande and Mr. Fowler were detained where Officer Northrup conducted a field identification. Mr. Martin identified Mr. Fowler and Ms. Grande as well as the Integra automobile. The Integra was registered to Mr. Fowler. On December 2, 2006, Mr. Martin identified Mr. Thomas from a photographic lineup shown by Detective Don Nelson. During the trial the prosecutor, referring to Mr. Thomas, asked Mr. Martin, “This is the guy that was hitting you with the flashlight and drove off with your rented truck; correct . . . ?” Mr. Martin responded, “Yes.”

At approximately 4 p.m. on December 22, 2006, Glendora Police Officer John Bur drove to a traffic collision. A tan car with exempt license plates was resting against the center median. Mr. Thomas was in the driver’s seat. Mr. Thomas appeared dazed. Thereafter, California Highway Patrol State Traffic Officer Michael Davis took over the accident investigation. Officer Davis had seen the accident occur when he was on the opposite side of the freeway. Officer Davis returned to the accident scene. Officer Davis noted that one of the cars involved was a Mercury with a California exempt license plate. Officer Davis contacted the dispatcher. Officer Davis learned the car was registered to Xochitl Lorono and was reported stolen. The true license plates had been replaced with stolen exempt plates. Thereafter, Mr. Thomas was arrested. A warrant check revealed that Mr. Thomas was wanted for assault with a deadly weapon.

Mr. Thomas was driven to the San Dimas hospital. While being driven in an ambulance, Mr. Thomas admitted he suspected that the car was probably stolen. Mr. Thomas said he bought it a couple of days before the accident for a few hundred dollars. A search of the Mercury automobile revealed a “mag” flashlight. At the hospital, Mr. Thomas was turned over to Detective Nelson. Detective Nelson told Officer Davis that the assault with a deadly weapon involved a flashlight. Mr. Thomas was driven to the San Dimas Sheriff’s station and advised of his constitutional rights. Mr. Thomas waived his rights. Mr. Thomas said his girlfriend, Ms. Grande, and he planned to get rich, get out of the area, and get off drugs. Ms. Grande told Mr. Thomas she knew someone who had money and drugs they could steal. Mr. Thomas and Ms. Grande planned to meet the victim. The plan was to take the victim to a predesignated location at Puddingstone Lake to take the money and drugs. Mr. Thomas and Ms. Grande looked over the area. Ms. Grande then telephoned the victim to ask him to hang out together. Mr. Thomas said that the victim arrived. Mr. Thomas pretended that he needed a ride to meet his girlfriend. Thereafter, Mr. Thomas got into the back seat of the truck. Mr. Thomas brought a black “mag” light as his weapon. Mr. Thomas explained Ms. Grande got into the front passenger seat of Mr. Martin’s truck. Mr. Martin drove to the parking lot at Puddingstone Lake. Mr. Thomas said he became very paranoid as a result of his methamphetamine use. Mr. Thomas recalled hitting the victim’s head with the flashlight. Mr. Thomas did not recall how many times Mr. Martin was struck. After Mr. Martin jumped out of the truck, Mr. Thomas got into the driver’s seat. Ms. Grande got out of the truck. Mr. Thomas drove the truck away and parked it near his parents’ residence. Mr. Thomas explained, “[On] methamphetamine you do crazy shit.” Mr. Thomas realized after the fact that Mr. Martin was not a drug dealer and did not have a lot of money.

Mr. Thomas claimed he bought the Mercury for a hundred dollars. Mr. Thomas knew it was stolen because it had government license plates. Mr. Thomas said the flashlight used to beat Mr. Martin was in the backseat of the Mercury. Detective Nelson later recovered a “mag” flashlight from the back seat of the Mercury. The Mercury had in fact been stolen from the driveway of Ms. Lorono on December 9, 2006. Ms. Lorono did not give anyone permission to drive her car. Ms. Lorono did not know Mr. Thomas.

III. DISCUSSION

A. Sufficiency of the Evidence

1. Count 4, assault with a deadly weapon

Mr. Fowler argues that there was insufficient evidence to support his conviction for aiding and abetting the assault with a deadly weapon committed by Mr. Thomas. In reviewing a challenge of the sufficiency of the evidence, we apply the following standard of review: “[We] consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt.” People v. Mincey (1992) 2 Cal.4th 408, 432, fn. omitted; People v. Carter (2005) 36 Cal.4th 1114, 1156; People v. Hayes (1990) 52 Cal.3d 577, 631; People v. Johnson (1980) 26 Cal.3d 557, 576.) The standard of review is the same in cases where the prosecution relies primarily on circumstantial evidence. (People v. Valdez (2004) 32 Cal.4th 73, 104; People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Stanley (1995) 10 Cal.4th 764, 792; People v. Bloom (1989) 48 Cal.3d 1194, 1208; People v. Bean (1988) 46 Cal.3d 919, 932.) Our sole function is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Marshall (1997) 15 Cal.4th 1, 34; People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) The California Supreme Court has held, “Reversal on this ground is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’” (People v. Bolin, supra, 18 Cal.4th at p. 331, quoting People v. Redmond (1969) 71 Cal.2d 745, 755.)

The jury was instructed on two theories of vicarious liability—aiding and abetting and conspiracy. The California Supreme Court has discussed the mental state necessary for liability as an aider and abettor: “To prove that a defendant is an accomplice . . . the prosecution must show that the defendant acted ‘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.] When the offense charged is a specific intent crime, the accomplice must ‘share the specific intent of the perpetrator’; this occurs when the accomplice ‘knows the full extent of the perpetrator’s criminal purpose and gives aid or encouragement with the intent or purpose of facilitating the perpetrator’s commission of the crime.’ [Citation.] Thus, we held, an aider and abettor is a person who, ‘acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime.’ [Citation.]” (People v. Prettyman (1996) 14 Cal.4th 248, 259, quoting People v. Beeman (1984) 35 Cal.3d 547, 560-561; see also People v. Mendoza (1998) 18 Cal.4th 1114, 1123 [“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.]”]; People v. Leon (2008) 161 Cal.App.4th 149, 157.) Further, the jury was instructed pursuant to CALCRIM No. 417 on the liability of a conspirator for the act of a coconspirator that is a natural and probable consequence of a common plan or design of the conspiracy. A conspirator may be criminally liable for offenses committed by a coconspirator. (People v. Hardy (1992) 2 Cal.4th 86, 188; People v. Flores (2005) 129 Cal.App.4th 174, 182.) Moreover, the jury need not return consistent verdicts on a conspiracy. (People v. Garcia (2002) 28 Cal.4th 1166m 1178; People v. Palmer (2001) 24 Cal.4th 856, 861.) In this case, defendants planned to lure Mr. Martin to a secluded location to rob him of drugs and money. This was demonstrated by the perpetrators’ conduct on the evening of the incident and Mr. Thomas’s confession made to Detective Nelson. The plan evolved into the assaults and carjacking. Mr. Fowler arrived in advance of Mr. Thomas and Ms. Grande. Mr. Fowler backed his car into a parking space for easy exit and covered his license plate to avoid detection. Mr. Thomas’s advice to his coconspirators and conduct as well as his participation in the conspiracy resulted in the aggravated assault and carjacking. There is substantial evidence to support his conviction for assault with a deadly weapon as charged in count 4 on aiding and abetting and conspiracy theories.

The jury was instructed consistent with CALCRIM No. 417 as follows: “A member of a conspiracy is criminally responsible for the crimes that he or she conspires to commit, no matter which member of the conspiracy commits the crime. [¶] A member of a conspiracy is also criminally responsible for any act of any member of the conspiracy if that act is done to further the conspiracy and that act is a natural and probable consequence of the common plan or design of the conspiracy. This rule applies even if the act was not intended as part of the original plan. Under this rule, a defendant who is a member of the conspiracy does not need to be present at the time of the act. [¶] A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence. [¶] A member of a conspiracy is not criminally responsible for the act of another member if that act does not further the common plan or is not a natural and probable consequence of the common plan. [¶] To prove that the defendant is guilty of the crimes charged in Counts 1, 2, and 4, the People must prove that: [¶] 1. The defendant conspired to commit one of the following crimes: robbery; [¶] 2. A member of the conspiracy committed carjacking and assault with a deadly weapon to further the conspiracy; [¶] AND [¶] 3. Carjacking and each separate assault with a deadly weapon were natural and probable consequences of the common plan or design of the crime that the defendant conspired to commit. [¶] A conspiracy member is not responsible for the acts of other conspiracy members that are done after the goal of the conspiracy had been accomplished.”

2. Count 2, assault with a deadly weapon

Mr. Thomas argues that there was insufficient evidence to support his count 2 conviction for the assault with a deadly weapon. The conviction was based on Mr. Fowler’s use of his automobile. Mr. Thomas argues the evidence did not support an aider and abettor theory of liability. Mr. Thomas reasons Mr. Fowler’s assault with the car was not part of any plan or agreement. Further, Mr. Thomas argues he did not assist in the assaultive incident with the car. Mr. Thomas likewise argues the conviction could not be based upon a conspiracy with Mr. Fowler. Mr. Thomas noted in this regard, the jury did not convict Mr. Fowler of conspiracy. We disagree.

As set forth in detail above, all of the conspirators were criminally liable for the foreseeable conduct of the coconspirators. In addition, a jury need not return consistent verdicts on a conspiracy. In this case, Mr. Thomas admittedly went to the park to rob Mr. Martin. The force necessary to commit such a robbery could have taken numerous forms. Mr. Thomas beat Mr. Martin with a flashlight. Once Mr. Martin got out of the truck to escape further injury, Mr. Thomas got into the driver’s seat. Rather than driving immediately away, Mr. Thomas waited until Mr. Fowler, who had been waiting at the site, hit Mr. Martin with the car. Mr. Thomas’s conviction for the assault with a deadly weapon, the automobile, could have been based on either theory of liability. At a minimum, it was clear that he was aiding and abetting the robbery. At a maximum, he was the mastermind of the conspiracy. Substantial evidence supports the count 4 aggravated assault verdict.

B. Instructions

1. Waiver

Mr. Fowler argues that trial court improperly failed to instruct the jurors with CalCrim. Nos. 402 or 403. Mr. Fowler and Mr. Thomas also argue that the trial court improperly instructed the jury on reasonable doubt and flight. Preliminarily, when the trial court discussed jury instructions with counsel, defense counsel for both defendants indicated they did not have any objections as to the form and content and had no special instructions to submit. As a result, defendants have waived the issues on appeal. (People v. Bolin, supra, 18 Cal.4th at p. 326; People v. Jackson (1996) 13 Cal.4th 1164, 1223; People v. Cain (1995) 10 Cal.4th 1, 38, fn. 14, 45.) Notwithstanding these waivers, we will address the merits of defendants’ arguments.

2. Failure to instruct the jury with CALCRIM No. 402 or 403 regarding natural and probable consequences

Mr. Fowler argues the trial court’s failure to instruct on the natural and probable consequences theory of liability as set forth in CALCRIM Nos. 402 or 403 resulted in an unconstitutional reduction of the standard of proof. As noted, the jury was instructed pursuant to CALCRIM No. 417 natural and probable consequences as it relates to a conspiracy. At issue is the failure to instruct on a natural and probable consequences theory as it relates to a target offense. At the outset, we note as argued by the Attorney General, instruction concerning the natural and probable consequences of the commission of a target offense may not be given sua sponte. (People v. Prettyman, supra, 14 Cal.4th at p. 269 & fn. 9; People v. Hoang (2006) 145 Cal.App.4th 264, 273; People v. Gonzalez (2002) 99 Cal.App.4th 475, 485.) Moreover, the instructions as given did not serve to confuse the jurors or contribute to the verdict. We review the instructions as a whole to determine whether it is reasonably likely that the jury misconstrued them. (People v. Roybal (1998) 19 Cal.4th 481, 526-527; People v. Mendoza, supra, 18 Cal.4th at p. 1134; People v. Frye (1998) 18 Cal.4th 894, 957; People v. Musselwhite (1998) 17 Cal.4th 1216, 1248, People v. Castillo (1997) 16 Cal.4th 1009, 1016.)

The fact that the jurors could not reach a verdict on the conspiracy count as it related to Mr. Fowler, is not indicative that they did not understand the instruction concerning a conspirator’s liability for a coconspirator’s conduct which is a natural and probable consequence of the common plan or design of the conspiracy. Our Supreme Court held: “Many reasons may explain apparently inconsistent verdicts: lenience, compromise, differing evidence as to different defendants, or, possibly, that two juries simply viewed similar evidence differently. If substantial evidence supports a jury verdict as to one defendant, that verdict may stand despite an apparently inconsistent verdict as to another defendant.” (People v. Palmer, supra, 24 Cal.4th at p. 858 [trial by two juries against codefendants where the perpetrator was found guilty of conspiracy and the only alleged coconspirator was found not guilty of conspiracy did not constitute inconsistent verdicts]; see also People v. Garcia, supra, 28 Cal.4th at p. 1178; People v. Lewis (2001) 25 Cal.4th 610, 656.) In the case of In re Hardy (2007) 41 Cal.4th 977, 1025-1030, the California Supreme Court found that the jury could reasonably have based the defendant’s conviction for first degree murder on either a conspiracy theory of liability or an aiding and abetting theory. As in the Hardy case, substantial evidence supported Mr. Fowler’s involvement in the robbery and the related assault with a deadly weapon; i.e., the flashlight. As a result, the jury could have reasonably based his conviction on an aiding and abetting or conspiracy theories.

Even if the trial court should have further instructed the jurors on the natural and probable consequences theory as it relates to a target offense, any error in doing so was harmless. Our Supreme Court held: “An instruction that omits a required definition of or misdescribes an element of an offense is harmless only if ‘it appears “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.”’ [Citation.] ‘To say that an error did not contribute to the verdict is . . . to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.’ [Citation.]” (People v. Mayfield (1997) 14 Cal.4th 668, 774, quoting People v. Harris (1994) 9 Cal.4th 407, 424, and Yates v. Evatt (1991) 500 U.S. 391, 403, overruled on another point in Estelle v. McGuire (1991) 502 U.S. 62, 72, fn. 4; see also People v. Jeter (2005) 125 Cal.App.4th 1212, 1217; People v. Maurer (1995) 32 Cal.App.4th 1121, 1128-1129.) In light of the state of the evidence, other instructions given, both defense counsel’s and the prosecutor’s closing arguments, and the jury’s findings, any error in failing to give CALCRIM Nos. 402 or 403 was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Prieto (2003) 30 Cal.4th 226, 257-258 [erroneous special-circumstance instruction harmless beyond a reasonable doubt]; People v. Ervin (2000) 22 Cal.4th 48, 91; People v. Williams (1994) 30 Cal.App.4th 1758, 1763.)

3. Reasonable doubt instruction

Defendants argue that the reasonable doubt instructions as set forth in CALCRIM No. 220 was constitutionally defective because it required the jury to compare the evidence presented at trial. The jury could have only interpreted CALCRIM No. 220 as requiring it to compare the evidence presented by both sides. This contention has no merit. (People v. Garelick (2008) 161 Cal.App.4th 1107, 1117-1118; People v. Flores (2007) 153 Cal.App.4th 1088, 1093; People v. Westbrooks (2007) 151 Cal.App.4th 1500, 1509.)

CALCRIM. No. 220 was given as follows: “The fact that a criminal charge had been filed against the defendants is not evidence that the charge is true. You must not be biased against the defendants just because they have been arrested, charged with a crime or brought to trial. [¶] A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt unless I instruct you otherwise. [¶] Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. [¶] In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendants guilty beyond a reasonable doubt, they are entitled to an acquittal, and you must find them not guilty.”

4. Flight instruction

Defendants argue that the trial court improperly instructed the jury with CALCRIM No. 372 on flight as follows: “If the defendant fled immediately after the crime was committed, that conduct may show that he was aware of his guilt. If you conclude the defendant fled, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled cannot prove guilt by itself.” The California Supreme Court has held, “In general, a flight instruction ‘is proper where the evidence shows that the defendant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt.’” (People v. Bradford (1997) 14 Cal.4th 1005, 1055, quoting People v. Ray (1996) 13 Cal.4th 313, 345; § 1127c; People v. Jones (1991) 53 Cal.3d 1115, 1145; People v. Mason (1991) 52 Cal.3d 909, 943; People v. Turner (1990) 50 Cal.3d 668, 694-695;.) Defendants argue the language of the flight instruction presumes guilt and lowers the prosecutor’s burden of proof. This contention has no merit. (People v. Mendoza (2000) 24 Cal.4th 130, 179; People v. Hernandez Rios (2007) 151 Cal.App.4th 1154, 1157-1159.)

Likewise, defendants’ argument that CALCRIM No. 372 lowers the prosecution’s burden of proof is without merit. (See People v. Navarette (2003) 30 Cal.4th 458, 502; People v. Hernandez Rios, supra, 151 Cal.App.4th at pp. 1158-1159; see also People v. Abilez (2007) 41 Cal.4th 472, 522 [flight instruction “‘merely permitted the jury to consider evidence of flight in deciding defendant’s guilt or innocence; it did not suggest that the jury should consider it as dispositive.’ [Citation.]”].) Furthermore, in light of other evidence of defendants’ guilt and other instructions given, any error in instructing on flight was harmless. It is not reasonably probable a result more favorable to defendants would have been reached absent such an alleged error. (People v. Abilez, supra, 41 Cal.4th at p. 523; People v. Prieto, supra, 30 Cal.4th at pp. 257-258; People v. Ervin, supra, 22 Cal.4th at p. 91; People v. Crandell (1988) 46 Cal.3d 833, 870; People v. Silva (1988) 45 Cal.3d 604, 628; People v. Watson (1956) 46 Cal.2d 818, 836.)

C. Sentencing

1. Upper term

Mr. Thomas argues that the trial court improperly imposed the upper term because it relied upon factors that were not decided by the jury. The trial court ruled: “Court has read and reviewed the probation officer’s report in this matter, and the court notes that the factors in aggravation in this case is, the defendant had been placed on parole and had poor performance on parole and probation, that his crimes have been increasing in seriousness and this is the ultimate serious crime in his entire record. As counsel outlined, his record in regards, other than the 245(a) he had in Pasadena, have been increasing in seriousness and this was much more serious than any crime he has had. [¶] In this crime the defendant was armed with a weapon, and the weapon was an integral part of carrying out the robbery here, which was planned; that the weapon was not for purposes of intimidation or to scare the victim into giving up his property, but what he did is, he surprised the victim from behind and used the weapon, and he used the weapon in a repeated and vicious manner that caused serious injuries to the victim. [¶] The court, based upon the use of a weapon, finds that as an aggravating circumstance for purposes of triad - - the court finds no circumstances in mitigation - - the defendant’s poor performance on parole, poor performance on probation, his repeated incarcerations and state prison commitments, that the court does not consider his drug addiction of a mitigating factor in that this has been long lasting, over ten years, and that he has [had] ample opportunity to avail himself to drug programs either in the community or in prison and that he hasn’t availed himself to those programs. [¶] The court finds no factors in mitigation. If it is in fact a factor in mitigation, the court finds that the factor in aggravation of the use of a weapon outweighs any mitigating factor. Therefore, even within the meaning of Cunningham, the court finds that the aggravating factor justifies the higher term and not the midterm presumed sentence.” The trial court found no factors in mitigation. Moreover, Mr. Thomas admitted that he previously served four prison terms.

In People v. Black (2007) 41 Cal.4th 799, 808-820, our Supreme Court examined the imposition of an upper term under the state determinate sentencing law in light of Cunningham v. California (2007) 549 U.S. 270, __ [126 S.Ct. 856, 863-868]. Our Supreme Court held, “[A]s long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi [v. New Jersey (2000) 530 U.S. 466, 490] and its progeny, any additional factfinding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial.” (People v. Black, supra, 41 Cal.4th at p. 812, original italics; see People v. Garcia (2008) 162 Cal.App.4th 18, 34.) The Black court further held, “It follows that imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (People v. Black, supra, 41 Cal.4th at p. 816; see People v. Medrano (2008) 161 Cal.App.4th 1514, 1519.) Here the trial court expressly cited to Mr. Thomas’s prior record which included service of four prison terms. Thus, no due process violation has occurred. (Almendarez-Torres v. United States (1998) 523 U.S. 224, 226, 228; People v. Thomas (2001) 91 Cal.App.4th 212, 216.)

2. Court security fees

The Attorney General argues that a $20 court security fee pursuant to section 1465.8, subdivision (a)(1) should have been imposed as to each count. We agree. (See People v. Crittle (2007) 154 Cal.App.4th 368, 371; People v. Schoeb (2005) 132 Cal.App.4th 861, 865-866.) Therefore, five section 1465.8, subdivision (a)(1) fees are imposed as to Mr. Thomas and three as to Mr. Fowler. The trial court is to personally insure the abstract of judgment is corrected to fully comport with the modifications we have ordered. (People v. Acosta (2002) 29 Cal.4th 105, 110, fn. 2; People v. Chan (2005) 128 Cal.App.4th 408, 425-426.)

IV. DISPOSITION

The judgment is modified to impose five $20 Penal Code section 1468.5, subdivision (a) court security fees as to Mr. Thomas and three $20 Penal Code section 1468.5, subdivision (a) court security fees as to Mr. Fowler. Upon issuance of the remittitur, the superior court clerk shall forward an amended abstract of judgment to the Department of Corrections and Rehabilitation. The judgment is affirmed in all other respects.

We concur: MOSK, J., KRIEGLER, J.


Summaries of

People v. Fowler

California Court of Appeals, Second District, Fifth Division
Jul 23, 2008
No. B199619 (Cal. Ct. App. Jul. 23, 2008)
Case details for

People v. Fowler

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. PAUL DOUGLAS FOWLER and BRIAN…

Court:California Court of Appeals, Second District, Fifth Division

Date published: Jul 23, 2008

Citations

No. B199619 (Cal. Ct. App. Jul. 23, 2008)