Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County, Herbert J. Exarhos, Judge, No. SCE279716
McINTYRE, Acting P. J.
A jury convicted Michael Harvey of willful, deliberate, and premeditated attempted murder, kidnapping for robbery and attempted robbery. He contends the judgment should be reversed because the trial court erred by admitting evidence that he was on parole. He also asserts the trial court gave a defective jury instruction on premeditated attempted murder, and that the evidence does not support his conviction for kidnapping for robbery.
The People concede that the premeditated attempted murder instruction erroneously omitted several words, but claim the error was harmless. We disagree and reverse the judgment on the "willful, deliberate and premeditated" enhancement to the attempted murder charge and remand for possible retrial on the enhancement. We reject Harvey's remaining arguments, and affirm the balance of the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In March 2008, Virginia Rodgers advertised her services as a prostitute on the Craigslist Web site. In the early morning hours of March 11, she received a call on her cell phone from a man who identified himself as "Chris." He wanted to set up a date, and gave Rodgers the address of an apartment complex in El Cajon, California, telling her to go to apartment number 128.
Rodgers's boyfriend, Marcel Crowel, drove her to the apartment complex. Rodgers called "Chris" twice to let him know that she was on the way. Crowel parked his truck in the parking lot of the complex. Rodgers called the man again when she could not locate the apartment, and he agreed to meet her. Rodgers met the man, whom she identified at trial as Harvey, by the pool. As the couple walked toward the apartment, Harvey said, "You thought I was a trick. I'm a pimp and you know what this is," at which point he pulled out a gun, briefly pointed it at her and demanded money. When Rodgers told Harvey that she did not have any money, he said, "Well, it's going to be a long night and we could go for a ride. It'd be a pimp with a dead ho on their hands."
When they got to apartment number 128, Rodgers stopped because she did not want to go inside. She then told Harvey that she had some money in her car and the couple started walking toward the parking lot. When Rodgers got to the sidewalk, she tried to run to Crowel's truck. She then heard a gunshot and felt her face burning. Harvey had shot Rodgers behind her right ear, with the bullet lodging in her cheek. Rodgers ran to Crowel's truck and told him what happened. They drove away. When they could not find a hospital, Rodgers asked Crowel to drop her off at a gas station because Crowel was on parole and she "didn't want him to get in trouble." The gas station attendant called the police.
An information was filed charging Harvey with premeditated attempted murder, kidnapping for robbery and attempted robbery. In connection with these counts, the information alleged personal use of a firearm, intentional and personal discharge of a firearm, and intentional and personal discharge of a firearm causing great bodily injury. It further alleged that Harvey had suffered a prison prior, a serious felony prior, and a strike prior.
A jury found Harvey guilty of all three crimes, and found true all the firearm and bodily injury allegations. In a bifurcated bench trial, the court found true the three prior conviction allegations. The court sentenced Harvey to two terms of life with the possibility of parole, plus 50 years to life, plus five years in state prison. Harvey timely appealed.
DISCUSSION
I. Alleged Evidentiary Error
1. Facts
After his arrest, Harvey told investigators that he knew nothing about the shooting. When investigators confronted Harvey with cell phone records showing that calls had been placed to Rodgers before the crime from his cell phone, he gave a variety of explanations, including that his cell phone had been lost or stolen. Before trial, the prosecutor informed the trial court that he intended to introduce Rodgers's and Harvey's cell phone records to prove that Harvey had spoken to Rodgers before the crime. To undercut Harvey's defense that his cell phone had been lost or stolen, the prosecutor sought to introduce evidence from Harvey's parole agent, Mark Fonte, linking Harvey to the cell phone number used in the crime.
When the prosecutor inquired whether he could disclose to the jury that Harvey was on parole when the shooting occurred, the trial court indicated that the relationship between Fonte and Harvey gave credibility to the exchange, but that it would consider a limiting instruction telling the jury not to speculate why Harvey was on parole. Defense counsel argued that he would not challenge the credibility of Fonte's testimony, and suggested that the jury be told that Fonte was employed by the State of California. Although the trial court found that the word "parole" was inflammatory, it concluded that "sanitiz[ing]" the information removed its credibility. The trial court concluded that the probative value of the information outweighed any prejudice, but agreed to provide the jury with a limiting instruction.
When the prosecution called Fonte as a witness, defense counsel objected on relevance and Evidence Code section 352 grounds. The trial court again concluded that the word "parole" added credibility and was not so inflammatory that it needed to be excluded. Although defense counsel offered to work out a stipulation, and the trial court suggested taking the witness out of order to allow counsel the time to prepare a stipulation, the prosecutor rejected the suggestion because Fonte was ready to testify and had another appointment that day. Defense counsel moved for a mistrial after Fonte testified that he was a parole agent. When the trial court denied the motion, defense counsel did not ask for a limiting instruction and the trial court did not provide one. Fonte testified that one of his duties as a parole agent was to supervise Harvey, and that Harvey had given him a cell phone number sometime within a couple of weeks before the shooting that matched the number used to call Rodgers.
2. Analysis
Harvey contends the trial court erred by admitting evidence of his parole status because the prejudicial effect of this evidence substantially outweighed any probative value. He also contends Fonte's testimony was cumulative because Harvey admitted to police that the cell phone number at issue was his, and phone records showed multiple calls were made from Harvey's cell phone number to Harvey's girlfriend's number in the days before and after the shooting.
A trial court has broad discretion when weighing the probative value and prejudicial effect of relevant evidence. (Evid. Code, § 352; People v. Gurule (2002) 28 Cal.4th 557, 654.) Evidence is prejudicial within the meaning of Evidence Code section 352 if it encourages the jury to prejudge defendant's case based upon extraneous or irrelevant considerations (People v. Rogers (2006) 39 Cal.4th 826, 863), or if it tends to evoke an emotional bias against a party as an individual (People v. Samuels (2005) 36 Cal.4th 96, 124). The trial court's "wide discretion must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice." (People v. Jordon (1986) 42 Cal.3d 308, 316.)
As the trial court noted, Fonte's position as Harvey's parole agent impacted the credibility of Fonte's testimony, and thus increased its probative value as the jury could reasonably infer that Harvey gave Fonte valid contact information. Nonetheless, evidence of a defendant's prior criminality can create "a possible tendency on the part of some jurors to convict a defendant not on proof that he committed the offense but because he has a criminal past." (People v. Stinson (1963) 214 Cal.App.2d 476, 480.) Accordingly, the information regarding Harvey's parole status was prejudicial as it necessarily informed that jury that Harvey had been incarcerated at some point in time for some unknown crime.
While we may have handled the matter differently, such as encouraging the parties to work out a stipulation in the time they had before trial commenced, we cannot conclude that the trial court's ruling amounted to an abuse of discretion. Harvey's status as a parolee, while prejudicial, did not tend to evoke an emotional bias against him as an individual apart from what the facts proved. Although the prejudicial impact of this evidence could have been minimized by a limiting instruction, defense counsel neglected to remind the court to give such an instruction. (Evid. Code, § 355 ["the court upon request shall restrict the evidence to its proper scope and instruct the jury accordingly"].)
Finally, although the general thrust of Fonte's testimony was cumulative of the testimony regarding the cell phone records, it provided additional context to assist the jury in understanding and evaluating the cell phone record testimony. Moreover, Fonte's testimony was brief and did not unduly consume time.
Even assuming the trial court erred by permitting Fonte's testimony regarding Harvey's parole status, we conclude that reversal is not required since it is not reasonably probable that, absent the introduction of the challenged testimony, Harvey would have received a more favorable result. (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Price (1991) 1 Cal.4th 324, 440.) Evidence of Harvey's connection to the incident was overwhelming. Rodgers picked Harvey out of a photographic lineup and later identified him at trial. The cell phone records also corroborated her testimony regarding what transpired. Although Harvey denied knowing Rodgers, he repeatedly called her a "hooker" or "prostitute" when police interviewed him. He admitted to police that he lived in the same apartment complex that Rodgers's caller had directed her to on the morning of the shooting.
Defense counsel tried to take advantage of Rodgers's admission that she initially lied to the police about Crowel's involvement to suggest that Crowel had fired the shot that injured Rodgers from inside his truck. The police, however, interviewed Crowel, impounded the truck he used to drive Rodgers, and presumably ruled him out as a suspect. Rodgers also testified that Crowel did not shoot her. It is not reasonably probable Harvey would have obtained a more favorable result if the court had excluded the evidence regarding his parole status.
II. Sufficiency of the Kidnapping for Robbery Evidence
1. Legal Principles
Each of the following elements must be shown to prove the crime of kidnapping for robbery: (1) the defendant intended to commit robbery; (2) acting with that intent, the defendant detained another person by using force or instilling a reasonable fear; (3) using that force or fear, the defendant made the other person move a substantial distance; (4) the other person was made to move a distance beyond that merely incidental to the commission of the robbery; (5) the defendant intended to commit robbery when the movement began; and (6) the other person did not consent to the movement. (CALCRIM No. 1203.)
"Conviction of kidnapping... generally requires proof that the perpetrator committed the criminal acts against the will of the victim, i.e., without the victim's consent." (People v. Hill (2000) 23 Cal.4th 853, 855.) "If a person's free will was not overborne by the use of force or the threat of force, there was no kidnapping." (People v. Moya (1992) 4 Cal.App.4th 912, 916.) The victim's movement is forced "where it is accomplished through the giving of orders which the victim feels compelled to obey because he or she fears harm or injury from the accused and such apprehension is not unreasonable under the circumstances.' [Citations.]" (People v. Majors (2004) 33 Cal.4th 321, 326-327.) Because consent is a defense to kidnapping (People v. Felix (2001) 92 Cal.App.4th 905, 910-911), optional paragraphs in CALCRIM No. 1203 instruct on consent and the withdrawal of consent.
When a defendant challenges the sufficiency of the evidence to support a conviction, we review the entire record to determine whether it contains substantial evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Snow (2003) 30 Cal.4th 43, 66.) We view 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. (People v. Johnson (1980) 26 Cal.3d 557, 576.) Reversal is not warranted "unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].'" (People v. Bolin (1998) 18 Cal.4th 297, 331.)
2. Analysis
Harvey claims that his conviction of kidnapping for robbery must be reversed because there was insufficient evidence that Rodgers's movement from the pool area to the apartment, or from the apartment to the parking lot, was the product of force or fear. He argues that, based on Rodgers's own testimony, she voluntarily took a few steps to the apartment before he displayed the gun and there is no evidence of lack of consent for this movement. He also claims there is no evidence that he used force or fear to move Rodgers from the apartment to the parking lot because she initiated that movement. Harvey notes that the court did not instruct on withdrawal of consent and argues that the judgment cannot be affirmed on a theory for which the jury received no instructions. We disagree.
As a threshold matter, Harvey challenges only the force or fear element of kidnapping for robbery. Accordingly, we do not discuss the evidence supporting the remaining elements of the crime.
Harvey correctly notes that the prosecutor did not divide the movement into two discrete segments. Rather, the prosecutor argued that the asportation element of kidnapping was the movement from the pool area where Harvey drew his gun to where Rodgers was shot, a distance of over 600 feet. Here, the attempted robbery and the kidnapping began after Harvey displayed his gun, demanded money and stated, "Well, it's going to be a long night and we could go for a ride. It'd be a pimp with a dead ho on their hands." (People v. Camden (1976) 16 Cal.3d 808, 814 [Even if "'the victim has at first willingly accompanied the accused, the latter may nevertheless be guilty of [kidnapping] if he subsequently restrains his victim's liberty by force and compels the victim to accompany him further.'"]; People v. Trawick (1947) 78 Cal.App.2d 604, 606 ["It is not necessary that the original accompaniment of the abductor be involuntary, if subsequently there is an enforced restraint of liberty"].)
Harvey's action and statements were sufficient to put a person in fear for her personal safety. A reasonable jury could infer that any movement Rodgers made after Harvey displayed his gun was based on his implied threat of force. The reasonableness of such an inference is supported by Harvey's use of potentially deadly force as soon as Rodgers attempted to escape.
The trial court properly instructed the jury with CALCRIM No. 1203 addressing the elements of kidnapping for robbery, including that requirement that the victim "did not consent to the movement." Notably, Harvey does not argue on appeal that the trial court refused defense counsel's request for an instruction on the defense of consent or that the trial court had a sua sponte duty to instruct on this defense. (People v. Felix (2001) 92 Cal.App.4th 905, 911 [trial court has a sua sponte duty to instruct on the defense of consent if there is sufficient evidence to support it].) Because the trial court did not instruct on consent, there was no need for the prosecution to ask for an instruction on withdrawal of consent.
When all of the facts and circumstances are viewed together and in the light most favorable to the judgment, there is more than enough evidence from which a jury could find Harvey guilty of kidnapping for purposes of robbery.
III. Alleged Instructional Error
1. Facts
The prosecutor prepared the final written jury instructions, but inadvertently omitted several words from CALCRIM No. 601, pertaining to the premeditation enhancement for attempted murder. We set forth the written instruction below, and have bracketed and bolded the omitted words:
"If you find the defendant guilty of attempted murder under Count One, you must then decide whether the People have proved the additional allegation that the attempted murder was done willfully, and with deliberation and premeditation.
"The defendant acted willfully if he intended to kill when he acted. The defendant [deliberated if he] carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill. The defendant premeditated if he decided to kill before acting.
"The length of time the person spends considering whether to kill does not alone determine whether the attempted killing is deliberate and premeditated. The amount of time required for deliberation and premeditation may vary from person to person and according to the circumstances. A decision to kill made rashly, impulsively, or without careful consideration of the choice and its consequences is not deliberate and premeditated. On the other hand, a cold, calculated decision to kill can be reached quickly. The test is the extent of the reflection, not the length of time.
"The People have the burden of proving this allegation beyond a reasonable doubt. If the People have not met this burden, you must find this allegation has not been proved." (Italics in original.)
The court read the defective instruction to the jury and provided each juror a copy to use during deliberations. The court further instructed the jury that it: (1) could "[o]nly consider the final version of the instructions in your deliberations;" and (2) "must follow the law as I explain it to you, even if you disagree with it. If you believe the attorneys' comments on the law conflict with my instructions, you must follow my instructions."
After the jury rendered its verdict, defense counsel filed a motion for a new trial raising the instructional error. The court conceded the error, but denied the motion because "considering all the instructions together, in light of the evidence, I cannot find that the jury was mislead."
2. Analysis
Harvey asserts that the error amounted to a directed verdict on the issue of deliberation, in violation of his Sixth and Fourteenth Amendment rights to jury trial and due process of law because the court inadvertently instructed the jury that the element of deliberation had already been established.
As a preliminary matter, we reject the People's contention that Harvey forfeited the error by failing to make a contemporaneous objection. If, as Harvey claims, the instruction given by the trial court relieved the prosecution of its burden of proof on an element of the enhancement, his substantial rights may have been affected. Accordingly, we find no forfeiture of the issue, and exercise our discretion to turn to the merits. (Pen. Code, § 1259; People v. Guerra (2006) 37 Cal.4th 1067, 1138.)
The crime of attempted murder requires proof of the specific intent to kill coupled with the commission of a direct but ineffectual act toward accomplishing the intended killing. (People v. Smith (2005) 37 Cal.4th 733, 739.) For purposes of sentence enhancement, the prosecution may seek a jury finding that an attempted murder was willful, deliberate, and premeditated. (Pen. Code, § 664, subd. (a)); People v. Bright (1996) 12 Cal.4th 652, 669, overruled on other grounds in People v. Izaguirre (2007) 42 Cal.4th 126, 132-134 and People v. Seel (2004) 34 Cal.4th 535, 550, fn. 6.) Our Supreme Court has concluded that the "willful, deliberate, and premeditated" allegation is the functional equivalent of an element of a greater offense than the one covered by the jury's guilty verdict for attempted murder. (People v. Izaguirre, supra, at p. 133; People v. Seel, supra, at p. 548.)
A jury instruction relieving the prosecution of the burden of proving, beyond a reasonable doubt, each element of an offense violates the defendant's rights under the federal and California constitutions. (People v. Flood (1998) 18 Cal.4th 470, 479-480.) "Such directions subvert the presumption of innocence accorded to accused persons and also invade the truth-finding task assigned solely to juries in criminal cases." (Carella v. California (1989) 491 U.S. 263, 265.) Accordingly, a trial court may not direct a verdict of guilt no matter how strong the evidence. (People v. Figueroa (1986) 41 Cal.3d 714, 724.) A court directs a verdict when it gives an instruction that effectually eliminates the jury's fact-finding responsibilities. (Ibid.)
In determining the correctness of jury instructions, we consider the instructions as a whole. (People v. Burgener (1986) 41 Cal.3d 505, 538, overruled on another point in People v. Reyes (1998) 19 Cal.4th 743.) "If a jury instruction is ambiguous, we inquire whether there is a reasonable likelihood that the jury misunderstood and misapplied the instruction." (People v. Smithey (1999) 20 Cal.4th 936, 963-964.)
Instructions that omit an element of the offense are reviewed under the harmless error standard announced in Chapman v. California (1967) 386 U.S. 18. (People v. Flood, supra, 18 Cal.4th at pp. 503-507.) Under this standard for prejudice, "where a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error, the erroneous instruction is properly found to be harmless." (Neder v. United States (1999) 527 U.S. 1, 17.)
As applied to attempted murder, "'deliberate' means 'formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action.'" (People v. Mayfield (1997) 14 Cal.4th 668, 767.) Here, the instruction erroneously told the jury that Harvey "carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill." The People argue that the error was harmless because the omission merely created an ambiguity in the instruction, and any confusion was cured by the arguments of counsel. We disagree.
First, we look at the instructions as a whole to determine the impact of the omission. The instruction unambiguously told the jury that Harvey "carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill." The general instruction to the jury regarding the prosecution's burden to prove all allegations true beyond a reasonable doubt did nothing to diminish this direction. (See CALCRIM No. 221.) Similarly, the general instruction telling the jury that it had to decide the facts, and not assume that the court is suggesting anything about the facts by giving a particular instruction, did not correct the defect. (CALCRIM No. 200.) A lay juror could reasonably conclude that the court was instructing them on the law, because another part of this instruction also told the jury that it "must follow the law as I explain it to you, even if you disagree with it." (CALCRIM No. 200, italics added.)
A lawyer looking at the instruction would probably conclude that it is internally inconsistent. It is difficult to say, however, what impact the instruction had on lay jurors. The record contains no inquiries from the jury regarding the instruction or application of the instructions. Lay jurors could reasonably conclude that the trial court was instructing them that under the law, Harvey had "carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill," but they were required to decide whether Harvey's actions were willful and premeditated before making a true finding on the enhancement allegation.
The omission in the instruction also conflated the concepts of willfulness, deliberation and premeditation. In effect, the instruction told the jury that Harvey's action was willful by stating that Harvey "decided to kill" and that his action was deliberate because he decided to kill after "carefully weigh[ing] the considerations for and against his choice." Notably, a latter part of the instruction informed the jury that: "A decision to kill made rashly, impulsively, or without careful consideration of the choice and its consequences is not deliberate and premeditated. (Italics added.) Thus, it is likely that the erroneous direction from the court impacted the jury's decision on whether Harvey premeditated, i.e., that he "decided to kill before acting."
We also must consider the arguments of counsel in assessing the probable impact of the instruction on the jury. (People v. Young (2005) 34 Cal.4th 1149, 1202.) During closing argument, defense counsel and the prosecutor addressed willfulness, deliberation and premeditation in conjunction with the evidence. The prosecutor, however, told the jury that "[t]he defendant deliberated and carefully weighed the consideration for and against his choice, and knowing the consequences decided to kill." This argument emphasized the omission in the instruction and did nothing to cure it. In any event, the jury was required to evaluate the evidence in the context of the instructions given by the court, not the arguments of counsel. (CALCRIM No. 200.)
On this record, we are unable to conclude that the instructional error was harmless beyond a reasonable doubt. Rodgers's testimony regarding the shooting was extremely brief, lacked detail, and did not overwhelming show that Harvey had "carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill." We cannot conclude that absent the error, the jury's verdict on the enhancement would have been the same.
The jury instructions made it clear to the jury that its verdict concerning attempted murder was separate from, and preceded, its findings on the premeditation enhancement. Because the jury necessarily had to conclude that Harvey was guilty of attempted murder before considering the premeditation enhancement, there is no need to set aside the jury's verdict on that count.
The jury's true finding on the enhancement must be reversed. The People will have 60 days from the date of the remittitur in which to file an election to retry Harvey on this enhancement. If the People elect not to retry him, the trial court shall modify the judgment by striking the enhancement, and shall resentence Harvey accordingly.
DISPOSITION
The judgment is reversed and remanded for possible retrial on the premeditation enhancement to count one for attempted murder. The People will have 60 days from the date of the remittitur in which to file an election to retry Harvey on this enhancement. If the People elect not to retry him, the trial court shall modify the judgment by striking the enhancement, and shall resentence Harvey accordingly. After conclusion of the proceedings, the court shall cause the abstract of judgment to be amended in a manner consistent with this disposition and send copies of the amended abstract to the appropriate law enforcement and custodial officials. In all other respects, the judgment is affirmed.
WE CONCUR: O'ROURKE, J., IRION, J.