Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Superior Court County Super. Ct. No. PA054310 of Los Angeles, Burt Pines, Judge
Joanna McKim, 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, Victoria B. Wilson, Supervising Deputy Attorney General, Mary Sanchez, Deputy Attorney General, for Plaintiff and Respondent.
PERREN, J.
Christopher Edward Garner appeals the judgment following his convictions for first degree murder (Pen. Code, §§ 187/189), home invasion robbery (§§ 211/212.5, subd. (a)) and first-degree burglary (§§ 459/460). The jury found a true allegation that a principal was armed with a firearm during the offenses. (§ 12022, subd. (a)(1).) Garner contends there was insufficient evidence to convict him as an aider and abettor or member of an uncharged conspiracy, and that the trial court erred in instructing the jury on liability based on a conspiracy theory. He also asks this court for an independent review of the trial court's in camera hearing on his motion for discovery. (Pitchess v. Superior Court (1974) 11 Cal.3d 531.) We affirm.
All statutory references are to the Penal Code unless otherwise stated.
FACTS AND PROCEDURAL HISTORY
Garner lived with Vincent Solomon and was good friends with Albert Adams who spent the night of January 14 in Garner's apartment. On January 15, Garner, Solomon, and Adams left the apartment for a period of time but returned in the early afternoon. Garner was angry because of a problem at work, and the group agreed to steal marijuana from a dealer to make him feel better. Adams, Solomon, and Garner formulated a plan to "rip off" the dealer while they were in Garner's apartment, and embellished their plan as they drove from Garner's apartment to the dealer's residence. The plan was that Garner and Solomon would drive Adams to the dealer where they would meet other men and Adams would go into the dealer's apartment, beat up the dealer, and "do the lick." Adams was carrying a gun. Garner knew Adams had a .38-caliber revolver, but told police he did not see the gun that day.
Victim Blake Crawford sold marijuana from his apartment located several miles from Garner's residence. At 2:25 p.m. on January 15, a telephone call was made from Garner's apartment to Crawford, and four more calls were made from Solomon's cell phone to Crawford between 3:04 and 3:18 p.m. Crawford gave directions to his apartment during these telephone conversations. As agreed, Garner, Adams, and Solomon drove in Solomon's SUV to Crawford's apartment. Solomon was the driver.
Garner, Adams, and Solomon parked in an alley near Crawford's apartment. Adams got out of the car and went into the apartment with Crawford who had been waiting outside. Garner and Solomon remained with the SUV.
Crawford's roommate and a friend were in Crawford's apartment. Crawford's friend saw Crawford take some marijuana out of a container and engage in small talk with Adams. The friend then went to the back of the apartment and heard a gunshot. When he returned to the front room, he saw Crawford lying on the floor, and Adams hurrying out the door carrying a gun and the container of marijuana. Crawford died the next day from a point blank gunshot wound.
Adams ran out of the apartment building, and got into the SUV. Garner, who had taken over the driving from Solomon, drove back to his apartment, dropping Adams off on the way. Later that day, Adams returned to Garner's apartment with the marijuana. The police found the marijuana in Garner's room the next day.
Garner, Adams, and Solomon were charged with robbery, burglary and murder, along with two other men who were involved in the crimes. Garner was tried separately after the trial court granted his severance motion. After his conviction, Garner was sentenced to 26 years to life in state prison.
DISCUSSION
Convictions Supported by Substantial Evidence
The jury was instructed that Garner could be convicted of robbery, burglary and murder as an aider and abettor or as a member of an uncharged conspiracy. Garner contends there was insufficient evidence to support his convictions under either of these theories. We disagree.
When the sufficiency of the evidence is challenged, we consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier of fact could reasonably deduce from the evidence in support of the judgment. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Johnson (1980) 26 Cal.3d 557, 576-578.) On review, we may not substitute our judgment for that of the jury, reweigh the evidence, or reevaluate the credibility of witnesses. (Ochoa, at p. 1206.) Reversal is required only when there is no substantial evidence, direct or circumstantial, to support the conviction beyond a reasonable doubt under any hypothesis whatsoever. (People v. Rodriguez (1999) 20 Cal.4th 1, 11; see also Jackson v. Virginia (1979) 443 U.S. 307, 319.)
A person aids and abets the commission of a crime when the person by act or advice aids, promotes, encourages or instigates the commission of the crime with knowledge of the unlawful purpose of the perpetrator and the intent or purpose of committing, facilitating or encouraging commission of the crime. (People v. Cooper (1991) 53 Cal.3d 1158, 1164; see also People v. Prettyman (1996) 14 Cal.4th 248, 259.)Although mere presence at the scene of a crime is not sufficient, aiding and abetting does not require personal participation, merely assistance, in committing the offense. (People v. Morante (1999) 20 Cal.4th 403, 433.)
A criminal conspiracy exists where two or more persons agree to commit a crime, intend to commit the crime, and one of the persons performs an overt act in furtherance of the agreement. (People v. Liu (1996) 46 Cal.App.4th 1119, 1128.) The existence of an agreement may be proven through circumstantial evidence, and a conspiracy may be formed even if the conspirators do not fully comprehend its scope. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1134; People v. Cooks (1983) 141 Cal.App.3d 224, 312.) Evidence of conspiracy is admissible even when the defendant is not charged with the crime of conspiracy. (People v. Belmontes (1988) 45 Cal.3d 744, 788-790; Rodrigues, at p. 1134.)
Here, there is substantial evidence to support Garner's convictions for robbery and burglary on both aiding and abetting and conspiracy theories. There was evidence that a plan to steal the marijuana was formulated in Garner's apartment before the offenses and on the drive to Crawford's residence, that the plan contemplated the use of force against Crawford, and Adams possessed a gun for that purpose. The jury could reasonably infer from the evidence that Garner knew Adams had a gun when he went into Crawford's apartment to steal marijuana. Although Garner attributed the plan to Adams, the evidence supports the conclusion that Garner participated in its development and, accordingly, had advance knowledge of the unlawful purpose. The evidence also shows that Garner encouraged, facilitated and aided in the commission of the offenses by approving the plan, accompanying Adams to the scene of the offenses, waiting for Adams to complete the plan, and driving away after the offenses to avoid detection or arrest.
The same evidence supports Garner's conviction for murder under both aiding and abetting and conspiracy theories. A murder committed during the course of a robbery or burglary falls under the felony-murder rule. As we will discuss further regarding Garner's claim of instructional error, an aider and abettor or a conspirator in a robbery or burglary is criminally liable for a murder committed by the person being aided and abetted or by a coconspirator where the underlying felony and the killing have a logical connection and are part of one continuous transaction. (People v. Cavitt (2004) 33 Cal.4th 187, 193.)
Garner relies on Juan H. v. Allen (9th Cir. 2005) 408 F.3d 1262, and People v. Rodriguez (1986) 42 Cal.3d 730, in challenging the sufficiency of the aiding and abetting evidence. Those cases are easily distinguished. In Juan H., the court found insufficient evidence to convict a 13 year old for aiding and abetting murder by merely standing next to his brother when his bother shot two people. The court concluded that there was no evidence that he knew his brother's intention or acted to encourage or facilitate the crimes. (Juan H., at pp. 1267, 1277.) Similarly, Rodriguez concerned the mere presence of a person with the perpetrator. (Rodriguez, at pp. 760-761.)
Garner challenges the sufficiency of the uncharged conspiracy evidence by maintaining that there was no agreement between Garner and Adams to commit any crime. A conspiracy may be inferred from the conduct, relationship, interests, and activities of the alleged conspirators before and during the alleged conspiracy. (People v. Rodrigues, supra, 8 Cal.4th at p. 1135.) Here, the evidence is sufficient to support the finding that Garner and Adams positively or tacitly came to a mutual understanding to steal marijuana from Crawford and developed a plan to accomplish that criminal purpose. (Ibid.)
No Instructional Error
Garner contends that the trial court erred in instructing the jury on a conspiracy theory because there was no evidence of a conspiracy. We have already rejected this argument, and the result is the same whether the argument is presented as an instructional challenge or one concerning substantial evidence. Because there was proof of a conspiracy, the People could proceed on that theory and obtain jury instructions on the law of conspiracy. (People v. Belmontes, supra, 45 Cal.3d at pp. 788-789.)
Garner also contends that the trial court erred in instructing the jury with CALCRIM No. 540B regarding liability for felony-murder by an aider and abettor or conspirator. We disagree.
As given by the court, CALCRIM No. 540B provides in relevant part: "The defendant is charged in Count 1 with murder . . . under a theory of felony murder. [¶] The defendant may be guilty of murder, under a theory of felony murder, even if another person did the act that resulted in the death. I will call the other person the perpetrator. [¶] To prove that the defendant is guilty of first degree murder under this theory, the People must prove that: [¶] 1. The defendant aided and abetted, or was a member of a conspiracy to commit, robbery and/or burglary; [¶] 2. The defendant intended to aid and abet the perpetrator in committing or intended that one or more of the members of the conspiracy commit robbery and/or burglary; [¶] 3. If the defendant did not personally commit robbery and/or burglary, then a perpetrator, whom the defendant was aiding and abetting or with whom the defendant conspired, personally committed robbery and/or burglary; [¶] AND [¶] 4. While committing robbery and/or burglary, the perpetrator did an act that caused the death of another person. [¶] A person may be guilty of felony murder even if the killing was unintentional, accidental, or negligent. . . . [¶] The defendant must have intended to commit, or aid and abet, or been a member of a conspiracy to commit the felonies of robbery and/or burglary before or at the time of the act causing the death. [¶] It is not required that the person die immediately, as long as the act causing the death and the felonies are part of one continuous transaction. [¶] It is not required that the defendant be present when the act causing the death occurs."
CALCRIM No. 540B provides generally that a defendant may be guilty of felony murder when he or she conspires with or aids and abets another to commit an offense enumerated in section 189, and a person is killed during the commission of the offense by a coconspirator or the individual being aided and abetted. Garner argues that the trial court erred by failing to add language not in the standard form CALCRIM No. 540B instruction to the effect that, when felony murder is based on an uncharged conspiracy, the murder must be a "natural and probable consequence" of the underlying offense.
As a general rule, a conspirator or aider and abettor is guilty of the intended offense and any other offense committed by another conspirator or the person being aided and abetted, provided a reasonable person would or should have known the other offense was a natural and probable consequence of the intended offense. (People v. Prettyman, supra, 14 Cal.4th at p. 261; People v. Superior Court (Shamis) (1997) 58 Cal.App.4th 833, 842–843; People v. Nguyen (1993) 21 Cal.App.4th 518, 531.) The "natural and probable consequence" rule, however, does not apply to felony murder. When a defendant kills while committing a felony enumerated in section 189, including robbery and burglary, the killing is first degree murder as a matter of law. (People v. Cavitt, supra, 33 Cal.4th at p. 197; People v. Mendoza (2000) 23 Cal.4th 896, 908.) "The purpose of the felony-murder rule is to deter those who commit the enumerated felonies from killing by holding them strictly responsible for any killing committed by a cofelon, whether intentional, negligent, or accidental, during the perpetration or attempted perpetration of the felony." (Cavitt, supra, at p. 197.) It necessarily follows that an aider and abettor may be criminally liable for felony murder even where the killing is not a natural and probable consequence of the intended offense. (Ibid.; People v. Anderson (1991) 233 Cal.App.3d 1646, 1658-1659; see also People v. Dillon (1983) 34 Cal.3d 441, 477.)
Garner concedes that the natural and probable consequence rule does not limit felony murder where a defendant's liability is based on aiding and abetting the actual perpetrator, but argues that the rule should be applied where felony-murder liability is based on the defendant being a member of a conspiracy. No case law supports this position, but Garner correctly notes that our Supreme Court has never expressly ruled on the question. (See Bench Notes to CALCRIM No. 540B (fall ed. 2007).)
Existing precedent, however, is consistent with applying the same felony-murder analysis to coconspirator liability as is applied to aider and abettor liability. "For purposes of complicity in a cofelon's homicidal act, '[t]he conspirator and the abettor stand in the same position.' [Citation.] In stating the rule of felony-murder complicity we have not distinguished accomplices whose responsibility for the underlying felony was pursuant to prior agreement (conspirators) from those who intentionally assisted without such agreement (aiders and abettors). [Citations.]"(People v. Pulido (1997) 15 Cal.4th 713, 724-725.) The Supreme Court has also referred to the liability of "cofelons" or "accomplices" without regard to whether liability is based on actual commission of the offense, aiding and abetting, or conspiring to commit the offense. (People v. Cavitt, supra, 33 Cal.4th at pp. 197–205; People v. Billa (2003) 31 Cal.4th 1064, 1072.)
In any event, the evidence in this case shows indisputably that the murder of Crawford was a natural and probable consequence of the intended offenses of robbery and burglary. A trial court is obligated to instruct the jury on general principles of law relevant to the issues raised by the evidence, but has no duty to instruct on a defense where there is no evidence which a reasonable jury could find persuasive. (People v. Lewis (2001) 25 Cal.4th 610, 645; People v. Bohana (2000) 84 Cal.App.4th 360, 370.)
"[W]hen one kills another and takes substantial property from the victim, it is ordinarily reasonable to presume the killing was for purposes of robbery." (People v. Turner (1990) 50 Cal.3d 668, 688; accord, People v. Hughes (2002) 27 Cal.4th 287, 357; People v. Kelly (2007) 42 Cal.4th 763, 788.) The instant case is not out of the ordinary. The evidence showed that Crawford, the murder victim, was the intended target of the robbery and burglary, and that the use of violence to commit those offenses was inevitable. Adams possessed a gun to assist him in stealing marijuana, and use of the gun was a highly foreseeable method of convincing a drug dealer to hand over drugs without payment. There is no evidence or basis for speculation that Adams killed Crawford for any reason other than to facilitate the robbery and burglary.
Garner also argues that the trial court erred by omitting an optional paragraph from CALCRIM No. 540B. The paragraph provides that if "the court concludes it must instruct on causal relationship between felony and death," it should instruct the jury that the People also must prove that "[t]here was a logical connection between the act causing the death and the" section 189 enumerated felony. "The connection between the fatal act and the [enumerated felony] must involve more than just their occurrence at the same time and place."
This language is based on People v. Cavitt, supra, 33 Cal.4th 187. In Cavitt, the Supreme Court held that a specific causal relationship between the killing and the underlying felony is not required, but culpability for felony murder based on a killing by a co-felon "requires both a causal relationship and a temporal relationship between the underlying felony and the act resulting in death. The causal relationship is established by proof of a logical nexus, beyond mere coincidence of time and place, between the homicidal act and the underlying felony the nonkiller committed or attempted to commit. The temporal relationship is established by proof the felony and the homicidal act were part of one continuous transaction." (Id., at p. 193.)
The court in Cavitt also concluded that the trial court has no sua sponte duty to instruct the jury on this requirement because it is not a separate element of the charged crime but, rather, a clarification of the scope of an element. (People v. Cavitt, supra, 33 Cal.4th at pp. 203-204.) "[I]f the requisite nexus between the felony and the homicidal act is not at issue and the trial court has otherwise adequately explained the general principles of law requiring a determination whether the killing was committed in the perpetration of the felony, 'it is the defendant's obligation to request any clarifying or amplifying instructions on the subject.'" (Id., at p. 204.)
Here, Garner did not request inclusion of the optional paragraph in CALCRIM No. 540B and, based on the evidence, it is indisputable that a logical nexus existed between the robbery and burglary and the killing of Crawford. As we have previously concluded, there is no doubt that the killing was a natural and probable consequence of the underlying felonies and, therefore, that there is a clear and substantial nexus between the killing and the underlying felonies. As Cavitt states, "[i]t is difficult to imagine how such an issue could ever arise when the target of the felony was intentionally murdered by one of the perpetrators of the felony." (People v. Cavitt, supra, 33 Cal.4th at p. 204, fn. 5.)
No Abuse of Discretion Regarding Pitchess Motion
Prior to trial, Garner filed a motion pursuant to Pitchess v. Superior Court, supra, 11 Cal.3d 531, seeking discovery of complaints against police officers John Doerbecker and Terence Keyzer regarding fabrication of evidence, perjury, dishonesty and other misconduct. The trial court held an in camera hearing regarding citizens' complaints and the personnel files of those officers, and concluded that the files contained no discoverable information. Garner requests that we independently examine the sealed reporter's transcript of the in camera hearing, and respondent concedes that this request is appropriate. (People v. Mooc (2001) 26 Cal.4th 1216, 1228-1231.) We have reviewed the sealed transcript of the hearing and conclude that the trial court did not abuse its discretion. (People v. Hughes, supra, 27 Cal.4th at p. 330.)
The judgment is affirmed.
We concur: YEGAN, Acting P.J., COFFEE, J.