Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. VCF092425, Darryl B. Ferguson, Judge.
Ann Hopkins, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Leanne Le Mon, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Kane, J.
INTRODUCTION
Defendant Jose DeJesus Hernandez (defendant) committed a series of armed robberies and felonies with his half-brother, Carlos Landois. They committed their final robberies by separately entering adjoining clothing stores in a shopping center, armed with semiautomatic handguns and dressed in women’s clothes and wigs. As they attempted to leave the scene in separate vehicles, Landois fired multiple shots directly at a police officer who was walking through the parking lot and looking for the robbery suspect. Landois missed the officer, but one of Landois’s shots went through the wall of a nearby restaurant and killed a customer who was eating lunch with his family. The officer narrowly avoided being shot by Landois, but the officer fired one shot that instantly killed Landois at the scene. Defendant drove away in his separate vehicle and he was arrested the next day.
Defendant represented himself at trial pursuant to Faretta v. California (1975) 422 U.S. 806 (Faretta), and he was convicted by jury of first degree felony murder of the restaurant patron, with the special circumstance that the murder occurred during the commission of a robbery/burglary; attempted murder of a peace officer, with the special allegation that the officer was engaged in the performance of his duties; conspiracy to commit robbery; and multiple counts of robbery and other felonies based on other offenses. The prosecution sought the death penalty for the first degree felony murder special circumstance, but the jury returned the verdict of life in prison without possibility of parole.
On appeal, defendant contends (1) the court should have granted his pretrial motions to discharge his court-appointed attorney pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden), and the court’s erroneous failure to grant the Marsden motions forced him to assert his Faretta rights and represent himself at trial; (2) the robbery/murder special circumstance for a nonshooting accomplice is not supported by substantial evidence; (3) the court improperly responded to a question from the jury as to whether it mattered as to who fired the fatal shot that killed the restaurant patron; (4) the court failed to instruct the jury on the element of the attempted murder special allegation that defendant had personal knowledge the victim was a law enforcement officer engaged in the performance of his duties; and (5) the jury’s true finding on the attempted murder special allegation is not supported by substantial evidence.
We will strike the attempted murder special allegation based on instructional error and affirm in all other respects.
PROCEDURAL SUMMARY
On August 10, 2007, defendant was charged with count 1, first degree felony murder (Pen. Code, § 187, subd. (a)), with a robbery/burglary special circumstance for which the prosecution sought the death penalty (§ 190.2, subd. (a)(17)); count 2, attempted murder of a peace officer, with the special allegation that the offense occurred while the officer was engaged in the performance of his duties (§§ 187, 664, subd. (e)); counts 3, 4, 5 and 9, second degree robbery (§ 211), with special allegations as to counts 5 and 9 that defendant personally used a firearm (§ 12022.53, subd. (b)); counts 6, 7 and 10, second degree commercial burglary (§ 459); count 8, conspiracy to commit robbery (§ 182, subd. (a)(1)); count 11, unlawfully taking or driving a vehicle (Veh. Code, § 10851, subd. (a)); and count 12, receiving a stolen vehicle (§ 496d, subd. (a)).
All further statutory citations are to the Penal Code unless otherwise indicated.
After jury trials for both the guilt and penalty phases, defendant was found guilty of all counts, the robbery/murder special circumstance and the special allegations were found true, and the jury returned the sentence of life in prison without possibility of parole for count 1, first degree murder. In addition, the court sentenced defendant to life in prison with the possibility of parole for count 2, attempted murder, with an aggregate determinate term of 22 years as follows: count 5, second degree robbery, the upper term of five years, plus 10 years for the personal use enhancement; count 9, second degree robbery, one year, plus three years four months for the personal use enhancement; count 3, second degree robbery, one year; count 4, second degree robbery, one year; and count 6, unlawfully taking or driving a vehicle, eight months; with all terms to run consecutively. The court stayed the terms imposed for the remaining counts.
FACTS
May 14, 2002—Robbery/Burglary of Fashion For All (Counts 9 & 10)
On May 14, 2002, Maria Toscano was working at Fashion For All, a clothing store in Porterville. She was helping Patricia Briseno and her sisters pick out prom dresses. Two men walked into the store and looked at shirts. Briseno thought it was strange to have men in a store that primarily carried party clothes for young women.
The two men walked to the counter and indicated they were going to buy a shirt. Toscano opened the register and one man produced a black semiautomatic handgun and pointed it at her. Toscano was frightened, and she raised her arms and screamed. She told the gunman to take all the money. The other man lifted his shirt and revealed he also had a black semiautomatic handgun. Briseno, who was in the dressing room, heard Toscano scream and walked out of the dressing room. Briseno saw the men pointing guns at Toscano and taking money out of the register. The two men left the store with the money.
Toscano described one gunman as Hispanic, between 20 to 25 years old, with a thin build, wearing a black baseball cap and gray baggy pants. The other gunman was white, in his 20’s, with a medium build and blue eyes, and he was wearing a long-sleeve blue and white plaid shirt, and blue pants with the leg cuffs rolled up.
Toscano and Briseno were separately shown photographic lineups which included pictures of Landois and defendant. Toscano picked out Landois as possibly one of the gunmen, but said he looked thinner in person than in the photograph. Briseno selected Landois as strongly looking like one of the gunmen. Both Toscano and Briseno positively identified defendant as the other gunman, and Briseno described defendant as the gunman with the blue eyes.
Based on this incident, defendant was charged and convicted of count 9, second degree robbery of Toscano and Fashion For All (§ 211), with the special allegation that he personally used a firearm (§ 12022.53, subd. (b)); and count 10, second degree commercial burglary of Fashion For All (§ 459).
May 16, 2002—The Stolen Dodge Van (Counts 11 & 12)
On the morning of May 16, 2002, Aurelio Ramos drove his 1987 gray Dodge van to work and parked at the government plaza in Visalia. When he left for lunch, he discovered his van had been stolen from the parking lot.
Just after 11:00 a.m., Jeff Jones and his wife were pulling into the Bank of Sierra parking lot in Visalia. A gray Dodge van was also in the bank’s parking lot. Jones saw two men in the van; one man was wearing women’s clothing and a blonde wig. The van kept pulling in and out of a parking space, it backed into someone else’s vehicle, and it drove away. Jones followed the van, obtained the license plate number, took a picture of the vehicle with his digital camera, and lost the van in traffic.
Later that day, Ramos reviewed Jones’s photograph and identified the vehicle as his stolen van. As we will discuss post, Landois was seen walking from that van about an hour later, shortly before a robbery, defendant was seen driving that van immediately after a robbery, and defendant was arrested the next day in possession of the van.
Defendant was charged and convicted of count 11, unlawfully taking or driving Ramos’s van (Veh. Code, § 10851, subd. (a)), and count 12, receiving a stolen vehicle, the van (§ 496d, subd. (a)).
May 16, 2002—Robbery/Burglary of Clothestime (Counts 5 & 7)
The primary incident in this case occurred at a shopping center located near Highway 198 in Visalia, shortly after Ramos’s van was stolen, and began with simultaneous robberies committed by defendant and Landois at two adjacent clothing stores: Clothestime and Susie’s Deals (Susie’s).
The shopping center consists of Vons, Longs, several restaurants and other stores. Susie’s and Clothestime are located next to each other, between Vons and Longs, and a sidewalk runs in front of the stores and borders the parking lot. Carl’s Jr. and Arby’s restaurants are located in the front part of the parking lot.
Around noon on May 16, 2002, Wendy Steffan was working at Clothestime and Virginia Welch was looking at clothes. A man, later identified as defendant, entered the store by himself; he was wearing a dress and carrying a purse. Defendant walked through the racks and then approached Steffan at the counter. He pulled a handgun from his purse, ordered Welch to get on the floor, and told Steffan to give him the money or he would blow her away. Welch got on the floor and Steffan gave defendant about $200 from both registers. Defendant ordered Steffan to the floor, told Steffan and Welch he would come back and kill them if they got up, and he left the store.
Immediately after defendant left Clothestime, Steffan locked the door and called 911. Steffen described the gunman as wearing a tan floral print dress, a blonde wig, a straw hat, and he had blue eyes. Welch was so upset by the armed robbery that she fainted and she was later taken by ambulance to the hospital.
At trial, Welch and Steffan identified defendant as the armed robber. Welch particularly remembered his “outstanding” eyes, and Steffan testified she would never forget his eyes.
Based on this incident, defendant was charged and convicted of count 5, second degree robbery of Steffan and Clothestime (§ 211), with the special allegation that he personally used a firearm (§ 12022.53, subd. (b)); and count 7, second degree commercial burglary of Clothestime (§ 459).
May 16, 2002—Robbery/Burglary of Susie’s Deals (Counts 3, 4 & 6)
Also around noon on May 16, 2002, several employees of Susie’s were at the store for a district managers’ meeting. Eva Martinez, one of the employees, looked out of the front window of Susie’s into the shopping center’s parking lot, and saw a man walking towards the store who was dressed as an old lady. The man, later identified as Carlos Landois, was by himself. Martinez thought he was walking from a dark-colored or gray van, which was parked next to other cars in the far portion of the parking lot.
Martinez later identified a photograph of Ramos’s stolen van as looking similar to the vehicle Landois walked from in the parking lot.
Landois entered Susie’s and looked around, and the employees were concerned because he was in a dress and acted suspicious. Landois declined offers of help and walked around the store.
Just a few seconds after Landois entered Susie’s, Lindsay Atkinson, another store employee, looked out the front window and saw a man run past the store, and he was also wearing a dress and a wig. Atkinson subsequently identified this man as defendant. Atkinson watched as defendant ran into the parking lot, went to the back of an older-model van, and changed out of the dress to a T-shirt and boxer shorts. Atkinson saw defendant look directly towards Susie’s and Clothestime. Defendant entered the back of the van and moved into the driver’s seat.
Atkinson later identified a photograph of Ramos’s stolen van as the vehicle that defendant entered in the parking lot.
Atkinson called out to another employee, Bonnie Johnson, and invited her to go outside for a cigarette. Atkinson whispered to Johnson that she just saw a guy in a dress run out of Clothestime and rip off his wig, she thought that man robbed the other store, and she thought Landois was going to rob them.
Just as Atkinson and Johnson headed out of Susie’s, Atkinson saw Landois produce a weapon, but the two women kept walking and went outside. Landois did not stop the women from leaving the store. Instead, he walked to the counter, pulled a gun from his purse, and grabbed the clerk, Casey Gomez. He held the gun to Gomez’s side and told her to give him the money from the register. Gomez was frightened and had trouble opening the register.
Melissa Ivey, another employee, walked out of the store’s restroom, and saw Landois behind the counter but she did not notice the gun. She put her hand on his arm and said that he could not stand there. Landois turned and pointed the gun at Ivey, and he grabbed $50 to $100 out of the register. Landois told Ivey to open the second register. Ivey replied it was empty but Landois insisted. Ivey opened the second register, Landois saw it was empty, and he grabbed Martinez’s purse from under the counter.
Based on this incident, defendant was charged and convicted of count 3, second degree robbery of Gomez and Susie’s (§ 211); count 4, second degree robbery of Ivey and Susie’s (§ 211); count 6, second degree commercial burglary of Susie’s (§ 459); and count 8, conspiracy to commit robbery (§ 182, subd. (a)(1)).
The Van and the Buick in the Parking Lot
While Landois was inside Susie’s, Atkinson and Johnson were standing outside the store watching defendant and the van. The shopping center’s parking lot was very crowded because people were arriving for lunch at the nearby fast food restaurants. Atkinson and Johnson flagged down California Highway Patrol Lieutenant Bruce Williams, who had pulled into the shopping center for lunch. They told Williams that a man dressed as a woman had just run out of Clothestime, a man dressed as a woman was inside Susie’s, and they thought the men were robbing the stores.
Lieutenant Williams told the women he would check it out. He parked his patrol car and walked toward the two stores. Atkinson testified that Williams parked his patrol car directly behind the van she had been watching. Atkinson testified that the van slowly started to move out of the parking space just as Williams parked behind it. Atkinson thought the van traveled north toward Carl’s Jr., which was located in the front of the parking lot. Atkinson believed the van was leaving the parking lot and lost sight of it.
In the meantime, Landois was still inside Susie’s and tried to leave through the rear exit but it was locked, and he headed for the front door. Atkinson and Johnson were still outside and saw Landois run out of Susie’s front door. One of their coworkers shouted that he had robbed them. Atkinson and Johnson saw Landois run next door to Clothestime. The two women went back into Susie’s, locked the doors and lost sight of Landois.
Next door at Clothestime, Wendy Steffan was still on the telephone with the 911 operator when a man in a dress tried to enter the store. Steffan told the 911 operator that a man in a blue dress and a blonde wig just tried to get back into the store, but the doors were locked and he headed toward Susie’s. Steffan thought he was the same guy who robbed her, but she realized he was not wearing a hat.
Stephanie Rego, another employee of Susie’s, testified that as Landois ran out of Susie’s, she saw a Highway Patrol car and an officer in the parking lot. Rego saw Landois run towards Clothestime, but “then he saw the cop. And he ran back left, and tried to get into [Susie’s].” Rego held the doors closed so he could not get in. Landois pointed the gun at her, but Rego still refused to open the doors. Landois ran into the parking lot and Rego lost sight of him. An employee of another store called 911 and reported a man in a blue dress was running through the shopping center with a gun.
Lieutenant Williams was walking toward the stores when he saw a man in a dress run from the stores and head into the parking lot. Williams did not see the man’s face and he disappeared into the crowd of shoppers. Williams testified that one of the female employees said the man was associated with a gray van, and she could see the van driving through the parking lot near Williams’s patrol car. Williams ran to his patrol car and called for help.
Williams testified there were two vans in the parking lot. Both vans were traveling west and then went in different directions. Williams followed one van on a hunch that it was the suspect’s vehicle. That van continued to travel west in the parking lot. Williams pulled up next to that van while it was still in the parking lot, looked inside the vehicle, saw that the driver was an elderly female, and believed he had followed the wrong van. He passed that van, continued westbound into the street, and drove around the streets to look for the other van but he never found it.
Rego testified that within a few minutes after Landois ran away, she saw a van and a car drive by Susie’s in the parking lot driveway directly in front of the stores. Martinez also saw the van and recognized it as the same vehicle that Landois walked away from before he robbed the store. Martinez initially thought the van’s driver was Landois, but she later identified defendant as the van’s driver. Atkinson and Johnson recognized the van as the vehicle that defendant entered after he changed out of the dress. Some of the store employees were able to read the van’s license plate number as it drove past Susie’s and it was later matched to Ramos’s stolen vehicle.
Atkinson, Johnson, Martinez and Rego saw a dark-colored sedan traveling two to three car lengths behind the van. This vehicle was later identified as a blue Buick Regal. Martinez recognized the sedan’s driver as Landois, the man who had just robbed Susie’s.
The Attempted Murder of Officer Byerlee (Count 2)
Also around noon, as the robberies were in progress, Visalia Police Officers Brian Davis, Greg Byerlee and Russell Gauger were having lunch at the Carl’s Jr. restaurant located in the front of the parking lot at the shopping center. They had separately arrived in marked patrol cars. They were eating lunch when they received a dispatch of an armed robbery at Clothestime. The suspect was described as a Hispanic male wearing a blue dress and a blonde wig; they did not receive any information about a van or any other type of vehicle.
The three uniformed officers left Carl’s Jr., spread out through the parking lot, and walked toward Vons and the clothing store to look for the suspect. A Vons employee was outside the grocery store on his lunch break, and saw the police officers walk across the parking lot from Carl’s Jr. toward Vons as if they were “on a mission.”
Officer Byerlee, who served on the police department’s SWAT team and had advanced sniper training, looked under cars for the suspect then walked down the main driveway toward Vons. He saw a car going 25 to 30 miles per hour, which was extremely fast for the parking lot. The car, later identified as the blue Buick Regal, hit a speed bump and Byerlee heard the sound of brakes being applied hard. Byerlee was standing on the opposite side of a crosswalk that led into the front entrance of Vons and he was facing the front of the grocery store. The Buick slowed down in front of the grocery store’s entrance. The driver’s door opened, Landois stepped out of the Buick and he was holding a gun. Landois stood in front of the grocery store and started shooting directly at Byerlee.
Byerlee testified Landois walked toward him and fired multiple gunshots at him. “When I moved, he was tracking on me the entire time. He wasn’t trying to get away.” Byerlee testified he had “no doubt” that Landois was trying to kill him instead of trying to get away. Byerlee testified he was “convinced” that Landois was not going to stop firing until “I was dead or I stopped him. No doubt in my mind.”
Byerlee turned away from the line of fire, went behind a planter and then faced Landois. Byerlee was about 15 feet from Landois, he fired one shot at Landois’s head and Landois fell to the ground.
Officer Gauger was standing on the sidewalk adjacent to Vons when he heard squealing brakes. He turned toward the parking lot and saw Landois open the driver’s door of the Buick and start shooting. Landois placed his gun between the car’s door frame and window, and got out of the Buick while it was still rolling. Gauger was standing in front of Vons and behind Landois, and Landois was shooting into the parking lot toward Byerlee and Arby’s restaurant, which was located in the front of the parking lot. Gauger testified Byerlee was directly in the line of fire. Gauger heard eight shots, then a loud boom and Landois fell down. Gauger drew his weapon, but Landois fell down before he had a clear shot.
Officer Davis was in the parking lot and facing Vons, heard the squealing brakes, and saw Landois get out of the Buick. Landois raised his gun, and Davis heard six or seven pops then a loud boom. Davis was facing Landois and Vons, he drew his own gun, but Landois fell down before Davis could fire.
Eva Martinez and Stephanie Rego were still at Susie’s. They watched the van and the Buick driving together in the parking lot, and saw the Buick stop in front of Vons. They saw Landois get out of the driver’s side and point his gun at an officer. Landois stood in front of Vons and faced the officer, and the officer was in the parking lot and faced the grocery store. No one else was with Landois. Martinez saw Landois fire several shots, then heard a single gunshot and Landois fell down. The store employees described general mayhem in the parking lot as multiple shots were fired.
Other witnesses in the parking lot similarly testified that Landois got out of the Buick while it was still moving, he held a gun and his arm was fully extended, he walked toward Arby’s restaurant and fired multiple shots in that direction, the sound from a larger weapon was heard, and Landois fell to the ground.
Officer Byerlee shot Landois once in the front left temple. Landois, who was 24 years old, died at the scene. Landois was still dressed in women’s clothing and was the only occupant of the Buick. Neither Byerlee nor Davis noticed a van in the parking lot before, during or after the shooting.
Lieutenant Williams testified he did not see or hear the shooting because he was still driving around the surrounding streets in his unsuccessful search for the robbery suspects’ van.
The Murder of Jeffrey Donaldson (Count 1)
While Landois was shooting in the parking lot, there were numerous people inside Arby’s having lunch, including Jeffrey Donaldson, his wife and their two-year-old child. The Donaldsons were sitting in a booth when a bullet pierced the restaurant’s wall, hit Jeffrey Donaldson in the front right temple, passed through his head and brain, and lodged into the window frame behind him. Donaldson collapsed and suffered massive bleeding from his grievous wound. The other patrons heard the sound of a bullet and hit the floor, there was pandemonium in the restaurant, and someone grabbed the Donaldsons’ child so she would not see her father.
Donaldson, who was 33 years old, was rushed to the hospital, but he had suffered extensive brain damage. Later that night, his family decided to disconnect him from life support and he died.
Landois’s Weapon and the Search of the Buick
A Glock nine-millimeter semiautomatic handgun was found next to Landois’s body. There were eight nine-millimeter shell casings around Landois’s body in the parking lot. One was a Winchester casing; the other seven were stamped “S&B.” There was one live “S&B” cartridge in Landois’s gun.
Officer Byerlee testified he only fired the one shot, which killed Landois. Byerlee’s service weapon was a.357 caliber SIG Arms-brand pistol. Only one.357 caliber SIG Arms-brand casing was found in the parking lot.
Landois was driving a blue Buick Regal with Nebraska license plates. A wig and Eva Martinez’s purse were found inside the car. The police also found a white plastic bag containing a pair of gray baggy pants, a brown belt and an “S” belt buckle. A wallet in the gray pants contained identification in defendant’s name. There was another white plastic bag in the car that contained a pair of blue jeans with rolled-up cuffs, a blue and white checkered shirt, a blue belt and an “S” belt buckle. A woman’s brown leather purse was on the front seat and it contained cash and latex gloves.
The mother of defendant and Landois testified she lived in Nebraska, they stayed with her in Nebraska just before Landois was killed, and Landois used the Buick during that time.
As to the May 14, 2002, robbery of Fashion For All, Maria Toscano said one gunman wore gray baggy pants, and the other gunman wore a long-sleeve blue and white plaid shirt and blue pants with rolled-up leg cuffs.
Arrest of Defendant and Recovery of the Van
Shortly after the shooting in the parking lot, Jeff Jones contacted the 911 operator and reported his observations earlier that morning of the two men in the Dodge van in the bank’s parking lot and that one man was wearing a dress. Jones provided the van’s license plate number and transmitted his digital photograph to the police department. However, neither defendant nor the van was found on the day of the shooting.
On the afternoon of May 17, 2002, Officer Ken Colyar of the Utah State Bureau of Investigation was on patrol on Interstate 70 in a sparsely populated area of southern Utah. Colyar stopped at a gas station in the small town of Thompson. Defendant approached him, said his vehicle ran out of gas out on the highway and he asked Colyar for a ride back to it. Colyar agreed and drove defendant about 30 miles away, where a Dodge van was parked on the side of the road. Defendant got out and filled up the van with a gas can.
Colyar noticed that defendant acted fidgety and reluctant to drive away. Defendant entered the van through a side window and Colyar realized he did not have the keys. Colyar checked the license plates and determined the vehicle was stolen and had possibly been used in an armed robbery in California the previous day.
Colyar took defendant into custody and advised him that he was under arrest for possession of a stolen vehicle. Defendant replied that he knew the vehicle was stolen. Defendant said he was on his way to Denver to visit his mother, and added that his brother had been killed by the police. Colyar asked when it happened. Defendant did not answer the question, but said that Colyar would hear stuff about him on the radio and none of it was true.
Search of the Van
Defendant had been driving Ramos’s stolen van. The van’s steering column was smashed and the vehicle had extensive body damage. A Glock nine-millimeter semiautomatic handgun was on the front seat. The magazine was loaded with 10 Winchester cartridges and one bullet was in the chamber. There was a 50-count box of Winchester nine-millimeter cartridges in the van, but there were only 30 cartridges in the box.
One of the nine-millimeter casings found near Landois’s body in the Vons parking lot was a Winchester.
The van also contained numerous articles of women’s clothing, women’s shoes, underwear and a wig. A cash drawer receipt from Clothestime was on the floorboard. A woman’s purse contained two live Winchester nine-millimeter cartridges. A plastic bag contained latex-type gloves similar to those found in the purse in Landois’s Buick.
It was stipulated that both the Glock handgun found next to Landois’s body and the Glock handgun recovered from the van driven by defendant were stolen from True Value Hardware in Bellevue, Nebraska on December 23, 2001.
Again, the mother of defendant and Landois testified they stayed with her in Nebraska just before Landois was killed in the May 2002 robbery.
In addition to the robbery and burglary charges based on the May 16, 2002, incident in the shopping center, defendant was also charged and convicted of count 1, first degree felony murder of Jeffrey Donaldson (§ 187, subd. (a)), with the special circumstance that the murder was committed while defendant aided and abetted, assisted and was engaged in flight after having committed a robbery/burglary (§ 190.2, subds. (a)(17) & (d)); and count 2, attempted murder of a peace officer (Byerlee) with the special allegation that the offense occurred while the officer was engaged in the performance of his duties (§§ 187, 664, subd. (e)).
ISSUES
I. Denial of Marsden Motions
II. Substantial Evidence of Robbery/Murder Special Circumstance
III. The Court’s Response to the Jury’s Question About Felony Murder
IV. The Court’s Instructions for the Attempted Murder Special Allegation
V. Substantial Evidence of Attempted Murder Special Finding
DISCUSSION
I. The Court Properly Denied Defendant’s Multiple Marsden Motions
While defendant was arrested in May 2002, his jury trial was repeatedly continued and finally began in July 2007. Defendant contends the court abused its discretion when it denied his pretrial Marsden motions in February, June and July 2007, to replace appointed counsel, Marcus Olmos. Defendant contends the court failed to conduct an adequate inquiry into his complaints that Olmos was not prepared for trial and that Olmos regularly smelled of alcohol. Defendant further contends the court’s erroneous denial of his Marsden motions forced him to make a Faretta motion on the first day of trial, he represented himself at the guilt and penalty phases, and his Faretta waivers were involuntary because they were the result of the court’s erroneous Marsden rulings.
As we will demonstrate post, defendant’s Marsden arguments are made in a vacuum because he fails to acknowledge the long history of Marsden and Faretta motions he made during the five-year pendency of this case, all of which were based on his recurring complaints that he was not responsible for Landois’s murder of Donaldson and attempted murder of Officer Byerlee, and his court-appointed attorney was incompetent for failing to obtain dismissal of the charges. We must review the lengthy record of Marsden and Faretta motions to refute defendant’s contentions.
A. Defendant’s First Marsden/Faretta Motion
In May 2002, the complaint was filed charging defendant with multiple felonies, including the murder of Donaldson, who was shot by Landois; the murder of Landois, who was shot by Officer Byerlee; and the attempted murder of Officer Byerlee by Landois. Both murder charges carried robbery/murder special circumstances for a nonshooter. (§ 190.2, subds. (a)(17) & (d).) The court appointed deputy public defender Berry Robinson to represent defendant. The preliminary hearing was scheduled for January 27, 2003.
On January 23, 2003, Robinson advised the court that defendant wanted to make either a Marsden motion for another attorney or a Faretta motion to represent himself. Defendant said he wanted to plead guilty to all the charges and he did not need a lawyer. The court explained the charges were serious and it would be better for an attorney to represent him at the preliminary hearing. Defendant withdrew his Faretta request and agreed to keep his attorney at least until the preliminary hearing. The court found no evidence of a conflict and denied the Marsden motion.
B. The Preliminary Hearing
In January 2003, the preliminary hearing was held, Robinson represented defendant, and Robinson filed briefing that defendant could not be held to answer for Landois’s criminal acts and death. On February 20, 2003, the court ruled that defendant could not be held to answer for Landois’s death and dismissed that murder charge from the complaint, but held defendant to answer for the other charges, including the murder of Donaldson and attempted murder of Officer Byerlee.
As we will discuss in issue IV, post, defendant only could have been responsible for Landois’s death under the provocative act theory of murder, instead of the felony-murder rule. The trial court properly found defendant’s commission of the robbery and escape were insufficient to trigger the provocative act theory and he could not be culpable for Byerlee’s shooting of Landois. (See, e.g., People v. Briscoe (2001) 92 Cal.App.4th 568, 582, fn. 6 (Briscoe).)
On March 5, 2003, the information was filed charging defendant with 13 felony counts, including the attempted murder of Officer Byerlee, and the murders of Donaldson and Landois with robbery/murder special circumstances; the district attorney sought the death penalty for the murders. In June 2003, Robinson advised the court that he would file a section 995 motion to dismiss the counts based upon Landois’s criminal acts and death.
C. Defendant’s Second Marsden Motion
On July 28, 2003, defendant filed a Marsden motion and the court conducted a hearing on the matter. Defendant asserted Robinson left him in the dark about his case, refused to turn over the police reports, failed to file a motion to dismiss the charges, and already hired experts for the death penalty issues, which showed Robinson was against him.
Robinson replied that he turned over at least a thousand pages of police reports and discovery to defendant, even though defendant ignored his advice that it was not wise to keep such reports in jail because of jailhouse informants. Defendant also wanted a tape recorder to listen to recorded statements from the witnesses, but the jail prohibited tape recorders unless inmates were representing themselves, and Robinson arranged for defendant to listen to the recordings during their meetings.
As for a motion to dismiss, Robinson said he spent eight to ten hours explaining to defendant the requisite procedural steps to file a motion to dismiss, and he was ready to file the section 995 motion to challenge the attempted murder and murder charges. As for the penalty phase experts, Robinson told defendant that he had to prepare for the penalty phase even though they were still challenging the validity of all the counts because the experts needed time to conduct their investigations into defendant’s background. Robinson said his investigator and death penalty experts regularly met with defendant to discuss the case.
Robinson believed the real problem was that defendant was frustrated about being charged with the criminal offenses committed by Landois, and that he might be culpable for Donaldson’s murder under the felony murder rule.
“I have explained that to him a number of times, and I told him that’s the main issue we are attacking in his case, but he is frustrated with that. [¶] And so no matter where we talk about it or what my goal is when I go to see him, we end up talking about why I am not doing what I should be doing, why the District Attorney is charging him with crimes that his brother has committed and I am not fighting for him.”
The court asked defendant whether Robinson gave him the police reports, and defendant conceded he had the materials. Defendant complained that Robinson would not let him get involved in his defense, he did not trust Robinson, he wanted a court order to obtain more library time, and he wanted a private attorney to represent him at the court’s expense.
The court found there was no conflict of interest, Robinson was doing an extremely competent job, he had a full-time team working on the case, he gave defendant the police reports against his better judgment, defendant failed to show any reason why he could not trust Robinson, and denied the Marsden motion.
On August 11, 2003, Robinson filed a section 995 motion to dismiss the charges. On September 18, 2003, the court granted the motion as to the murder of Landois and dismissed that count from the information, but denied the motion as to the other charges. The trial was set for September 2004.
D. Defendant’s Second Faretta Motion
On March 18, 2004, defendant appeared with Robinson and moved to represent himself pursuant to Faretta. The court asked Robinson whether the Faretta motion was based on any problems between them. Robinson said the Faretta motion had nothing to do with any Marsden issues, but defendant “had been talking about this since I started representing him more than a year ago even before the prelim. Before the prelim he realized there were some legal issues that he wanted me to remain on and that proved to be a wise choice for him but now he decided he wants to be pro per.” The court advised defendant of his constitutional rights, found defendant made knowing and intelligent waivers and was competent to represent himself, granted the Faretta motion and relieved Robinson.
Thereafter, defendant filed numerous motions, including a motion to reconsider the section 995 motion and set aside the counts based upon Landois’s criminal acts, and for appointment of advisory counsel to assist him at trial. The court denied the motion for advisory counsel and denied the motion for reconsideration of his section 995 motion to dismiss. Defendant also filed petitions for writs of mandate with this court, for appointment of advisory counsel and review of the trial court’s denial of his renewed section 995 motion. This court denied the petitions.
The trial was set for January 2006. In November 2005, the court granted defendant’s motion for a continuance to obtain penalty phase experts. The court continued the trial to July 2006.
E. Request for Appointment of Counsel
On March 22, 2006, defendant requested the court appoint counsel to represent him. Defendant complained he was being treated unfairly under the felony-murder rule and being held responsible for Landois’s crimes, and he had every intention of representing himself but realized he was “biting off more than what I can chew.”
On April 10, 2006, the court appointed Marcus Olmos as conflict counsel to represent defendant. The pretrial hearing was set for February 7, 2007, with the trial to begin on March 7, 2007.
F. Defendant’s Third Marsden Motion
On or about February 7, 2007, the day scheduled for the pretrial hearing, defendant filed a Marsden motion to discharge Olmos, and argued Olmos had done nothing to prepare his case and never discussed the nature of the charges or defense theory with him.
On February 9, 2007, the court conducted the Marsden hearing. Defendant complained Olmos violated ethical rules, he failed to prepare a defense, he did not have penalty phase experts ready and he should have filed a continuance motion. Defendant wanted a second attorney appointed to work with Olmos, but Olmos refused to make that motion.
The court explained that two attorneys were not required in a capital case, but asked Olmos to address defendant’s other complaints. Olmos explained the defense theory was based on conflicting evidence as to whether defendant was still at the scene when the shooting occurred in the Vons parking lot, which might negate his culpability under the felony-murder rule. As for the penalty phase, Olmos said defendant’s mother was going to testify about his upbringing, but conceded that a psychologist had not evaluated defendant. The court believed a psychological evaluation should have been one of the first things done in a capital case. Olmos replied the evaluation would occur in one month and asked for a continuance.
Defendant stated Olmos was not qualified to conduct a death penalty case, he failed to respond to his letters or consult with him, he refused to accept his collect telephone calls from jail, and he was not prepared to address the legal issues in the case. The court asked for an example of such legal issues and defendant replied, “there’s [the] legal claim of Bush versus Gore” about discriminatory prosecutions.
Defendant also complained that Olmos failed to prepare a defense. Olmos said he gave defendant legal authorities and explained why a nonshooter was culpable under the felony-murder rule. Defendant complained that Olmos was against him and treated him like he was guilty. The court said Olmos was trying to explain the law to him: “If you don’t like the way it sounds, that doesn’t mean he’s against you,” and “he shouldn’t try to sugar coat things for you. He should tell you the way they are.”
Defendant said there was another issue because Olmos had “a drinking problem. [He’s] only visited me four times.… Every time he come[s] to visit me, I can smell it. He reeks of alcohol. Is that accepted?” The court replied:
“If it impairs his ability to handle your case—but I can tell you that Mr. Olmos has appeared in front of me many times. And I’m being frank with you, Mr. Olmos, I’ve smelled alcohol on you before, too. I’ve also seen the way he handles himself. Even when I smell alcohol on him, it doesn’t appear to [affect] his ability to conduct his case. But if I ever see him come in here where I get the feeling he’s not able to function or conduct his case or conduct himself professionally, I certainly would report him to the bar, but I have never seen that.”
Defendant complained Olmos was not qualified to conduct a capital case. Olmos said he tried one capital case, he was second chair in another case, he had attended death penalty seminars, and he was going to attend another seminar later in the week.
The court denied defendant’s Marsden motion and did not find sufficient cause to remove Olmos, but granted a continuance for Olmos to obtain the psychological evaluation. The court set the pretrial conference for June 22, 2007, with the trial to begin with jury selection on July 31, 2007.
G. Defendant’s Fourth Marsden Motion
On June 20, 2007, defendant filed another Marsden motion and asserted Olmos would not accept his collect telephone calls from jail, failed to visit him, and was prejudiced and biased against him.
On June 27, 2007, the court conducted the Marsden hearing. Defendant stated he lacked confidence in Olmos because he refused to file a section 995 motion to dismiss the charges. Olmos advised the court about the previous denials of the section 995 motion filed by Robinson, the motion to reconsider and petitions for writs of mandate filed by defendant. Olmos explained to defendant that he was only entitled to one section 995 motion.
Defendant complained that when he asked Olmos to file another section 995 motion, Olmos replied that he would ask the district attorney to see if he could file the motion. The court asked Olmos to explain that comment. Olmos stated: “All I said was, look, let me contact the DA, and let me see what his thoughts are about doing another [section] 995. And—but I never did. I never contacted him.” Defendant said such conduct showed Olmos was already biased against him, and Olmos only gave him legal authorities that supported the felony-murder rule and left him in the dark as to his defense.
Olmos said he explained to defendant that a nonshooter was culpable under the felony-murder rule: “I’m not trying to mislead him. I’m just trying to show him what the case law is.…” Olmos denied any communication problems, and said they had a long discussion with his paralegal and investigator. Defendant complained Olmos already decided on the jury instructions without his consent. Olmos explained that he only gave defendant the felony murder instruction so he could understand the prosecution’s theory of the case.
Olmos also explained that he ordered ballistics tests to determine whether Landois’s nine-millimeter Glock semiautomatic handgun was capable of firing a bullet approximately 300 feet across the parking lot, which could penetrate the wall of Arby’s and strike Donaldson inside the restaurant. Olmos had just received the results:
“And we had a couple of investigators set up similar conditions. They did a number of test fires. And I got the results back. And they said yes, a nine millimeter can travel that amount of distance, strike a wall, go through and, unfortunately, strike the customer that got killed. I don’t know what more I can tell you.”
Defendant complained this was the first time he heard about any ballistics tests and it demonstrated Olmos’s lack of communication. Olmos said he just received the test results and did not have time to discuss the results with defendant before the Marsden hearing. Olmos added that a clinical psychologist had interviewed defendant twice and a third interview was scheduled for that day, but cancelled because of the Marsden hearing.
The court advised defendant that Olmos was “doing the research, finding out the facts, and submitting it for analysis. He just got the [ballistics] report. I mean, I don’t know how he can sit down and talk to you until he’s got the report. He has had his investigators out there talking to you. And he is apparently doing investigation.” Defendant again complained that Olmos refused to file another section 995 motion. The court replied that a section 995 motion had already been heard and partially granted, the appellate court denied his writs of mandate, and Olmos was not required to file a frivolous section 995 motion.
The court denied defendant’s Marsden motion:
“Well, Mr. Hernandez, let me make something real clear, you’re not the attorney here. He’s the attorney. If you want to represent yourself, I’ll let you represent yourself, but you’re going to go to trial on the 31st of July. We’re not putting the trial off. I haven’t found anything here that justifies my relieving Mr. Olmos. If you want to represent yourself, you can represent yourself, but you’re going to trial on the 31st of July. I’m not going to continue the trial again. Now, I’m not going to relieve Mr. Olmos unless you decide you want to represent yourself. And, again, if you’re going to represent yourself, you’ve got to be ready to go to trial on the 31st of July.” (Italics added.)
After the court denied defendant’s Marsden motion, Olmos asked defendant if he wanted “to go pro per.” Defendant said no. The trial remained set for July 31, 2007.
H. Defendant’s Third Faretta Motion
On June 27, 2007, the same day the court denied defendant’s fourth Marsden motion, defendant filed a letter with the court and stated that if Olmos failed to raise his desired legal claims, he would be “pushed” to represent himself so he could file another section 995 motion to dismiss.
On July 25, 2007, just six days before the trial was scheduled to begin, defendant filed a motion to represent himself pursuant to Faretta. Defendant argued the court should have granted his Marsden motions to dismiss Olmos because Olmos would not allow him to assist in his own defense, Olmos said he was going to lose the case, and there was no communication between them. Defendant wanted Olmos to file motions for reconsideration of the section 995 motion, a demurrer to the information, discriminatory enforcement of capital punishment, and violation of the equal protection clause and Eighth Amendment, but Olmos refused and said the motions were frivolous. Defendant declared he lacked confidence in Olmos and was being “pushed” to represent himself to pursue his desired legal claims.
I. The Final Marsden/Faretta Hearing
On July 31, 2007, the date scheduled for trial, the court conducted a hearing on defendant’s Faretta motion and also invited defendant to address any Marsden issues raised by the motion. Defendant said he was being “pushed” to represent himself because Olmos failed to use due diligence to prepare for trial and refused to let him participate in his own defense. The court asked for an example of how Olmos failed to prepare. Defendant replied that he repeatedly told Olmos that Landois “committed suicide by police officer” when he opened fire in the parking lot, so that defendant was not responsible for the murder and attempted murder, but Olmos refused to obtain experts on that issue.
Olmos advised the court there were no facts, witnesses or other evidence to support defendant’s claim that Landois made suicidal statements. Olmos again explained his defense theory was that defendant drove out of the parking lot before Landois started shooting and his role in robbery/conspiracy was over before the homicide at Arby’s.
The court asked defendant for the factual basis for a suicide theory. Defendant said he wanted to retain an expert on suicide by police officer because relatives heard Landois say that he was not going to live past the age of 25 years, he did not want to go back to prison, and he was tired of life. The court replied that an expert could not tell what was in Landois’s mind. Defendant asked if he would be barred from using that defense theory. The court said there was no evidence to support it, Olmos was his attorney, and he made the tactical decisions.
The court made an extensive ruling, reviewed the history of defendant’s previous Marsden and Faretta motions, and noted that defendant was repeatedly warned that he would not receive a continuance if he raised an untimely Faretta motion to represent himself. The court again found that defendant’s written motions and hearing statements failed to show an irreconcilable conflict or other grounds for granting a Marsden motion, that his attorney set the strategy and not defendant, his attorney had an obligation not to file frivolous motions, and defendant’s repeated demands to file additional section 995 motions were frivolous.
“You were pro per for over a year in this case. When the case started you went pro per. This Court repeatedly requested that you—and suggested, I even begged you to accept an attorney which you refused to do until just before the start of the last trial [date] and you decided you wanted an attorney. So I appointed an attorney to represent you, and Mr. Olmos was that attorney. And he’s been representing you for over a year. And now it’s just within the last five, six weeks that you’ve decided now you want to get rid of Mr. Olmos and now you want to go pro per again. Even after I gave you that opportunity at the last hearing.
“You failed to set forth any valid concrete example as to why Mr. Olmos should not represent you. Basically you don’t like Mr. Olmos, and you don’t like his style. And you don’t like the comments he’s made to you. You don’t like his strategy, but the fact is, is that when you have an [attorney appointed] for you, you don’t get to pick your attorney. You get the one that’s appointed.
“Mr. Olmos has appeared in front of me many times. And he’s a good trial attorney. And I don’t have any … and so at this point in time, this case has been going on for several years. Any further delays would be unjustified.
“You have the right to represent yourself. I can’t deny you that right. And if you want to go forward with representing yourself, I’m going to allow you to represent yourself, but you’re going to be going to trial today. So I’m not—you’ve known for three weeks that [¶] … [¶] that you were going to do this again. You had three weeks to prepare. I’m not going to grant you any continuance to go pro per. You must be prepared to go to trial today. And so what do you want to do?”
Defendant asked for a continuance to prepare a new defense strategy. The court replied that hundreds of potential jurors were arriving at the court that day to begin jury selection in the capital case, the prosecutor was ready to go, and the court would not grant another continuance, but jury selection would take two weeks and defendant could prepare and subpoena witnesses during that time. “So either you go forward on your own today or you have Mr. Olmos as your attorney and go forward that way and file your appropriate pleadings after the trial or your appropriate appeals after the trial.” The court strongly recommended that defendant not represent himself because he faced the death penalty.
The court again reviewed the history of defendant’s Marsden/Faretta motions, and the numerous continuances which had been granted over five years based upon those motions: “Now here we are a few weeks before trial and you do, you don’t, you do, you don’t want Mr. Olmos to represent you. You do, you don’t, you do, you don’t want to go pro per.” The court found an insufficient basis to grant a Marsden motion or to further continue the matter if defendant represented himself, and begged defendant not to represent himself in a capital case.
“I’m warning you that going pro per—when you go pro per, you’re expected to know the rules of evidence. You’re expected to know the motions that you can make during the trial. You’re expected to know how to question witnesses. You’re expected to know the right questions. The Court is not going to help you. Nobody is going to help you. Nobody is going to correct you other than when they object and those objections are sustained. Then I’m not going to advise you or counsel you how you can rephrase those questions that you might want to get in that an attorney would know how to rephrase those questions.”
Defendant asked for standby counsel. The court replied such a motion was completely discretionary and it would be denied. “If you go pro per, you’re pro per. You’re on your own.” Defendant said he would represent himself under Faretta. The court advised defendant of his constitutional rights, defendant waived his rights, the court found his waivers were knowing, intelligent, and voluntary, and the court relieved Olmos. Defendant’s trial began that day, July 31, 2007, with jury selection. Defendant represented himself at both the guilt and penalty phase and did not request appointment of counsel.
Once a defendant elects self-representation, he does not have the constitutional right to appointment of advisory or standby counsel to assist in his defense, and the trial court has the discretion to grant or deny such a motion. (People v. Sullivan (2007) 151 Cal.App.4th 524, 553-554.)
J. Analysis
Defendant contends the court improperly denied his February, June and July 2007 Marsden motions to discharge Olmos. “Defendants in capital cases often express dissatisfaction with their appointed counsel, affording us ample opportunity to address the contours of the rule set forth in Marsden.… ‘“When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney’s inadequate performance. [Citation.] A defendant is entitled to relief if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.”’ [Citation.] The decision whether to grant a requested substitution is within the discretion of the trial court; appellate courts will not find an abuse of that discretion unless the failure to remove appointed counsel and appoint replacement counsel would ‘substantially impair’ the defendant's right to effective assistance of counsel. [Citation.]” (People v. Roldan (2005) 35 Cal.4th 646, 681; overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; People v. Valdez (2004) 32 Cal.4th 73, 95.)
A defendant may not force the substitution of counsel by his own conduct that manufactures a conflict. (People v. Smith (1993) 6 Cal.4th 684, 697.) “[T]he number of times one sees his attorney, and the way in which one relates with his attorney, does not sufficiently establish incompetence [under Marsden]. Defendant [is] required to show more.” (People v. Silva (1988) 45 Cal.3d 604, 622.) “If a defendant’s claimed lack of trust in, or inability to get along with, an appointed attorney were sufficient to compel appointment of substitute counsel, defendants effectively would have a veto power over any appointment, and by a process of elimination could obtain appointment of their preferred attorneys, which is certainly not the law. [Citations.]” (People v. Jones (2003) 29 Cal.4th 1229, 1246.)
The defendant is not entitled to claim that an irreconcilable conflict has arisen merely because of a disagreement with counsel over reasonable tactical decisions. (People v. Memro (1995) 11 Cal.4th 786, 858.) “A defendant does not have the right to present a defense of his own choosing, but merely the right to an adequate and competent defense. [Citation.] Tactical disagreements between the defendant and his attorney do not by themselves constitute an ‘irreconcilable conflict.’” (People v. Welch (1999) 20 Cal.4th 701, 728-729.) Attorneys are not expected to raise implausible arguments, pursue meritless motions or make futile objections. (People v. Anderson (2001) 25 Cal.4th 543, 587; People v. Prieto (2003) 30 Cal.4th 226, 261.) “There is no constitutional right to an attorney who would conduct the defense of the case in accord with the whims of an indigent defendant. [Citations.]” (People v. Lucky (1988) 45 Cal.3d 259, 281.)
In the instant case, defendant contends the court abused its discretion in denying the February, June and July 2007 Marsden motions because the court failed to make the appropriate inquiries, ask any follow-up questions regarding his complaints against Olmos, and consider whether defendant had legitimate reasons for distrusting Olmos. Defendant complains the court failed to conduct adequate inquiries into his continued complaints about Olmos as in People v. Hill (1983) 148 Cal.App.3d 744 (Hill), where the appellate court reversed for Marsden error because the trial judge failed to question counsel regarding the defendant’s complaints, and instead undertook its own off-the-record investigation. (Id. at pp. 754-755.) Defendant also relies on People v. Cruz (1978) 83 Cal.App.3d 308 (Cruz), where the trial court similarly failed to ask the defense counsel to address the defendant’s complaints. (Id. at p. 317.)
As we have already noted, however, defendant’s Marsden arguments are made in a vacuum and fail to account for the lengthy history of Marsden and Faretta motions he made in the five years between his arrest and the start of trial. In contrast to Hill and Cruz, the entirety of the record reflects that at every hearing, the court allowed defendant to explain the basis for his contentions and relate specific instances of counsel’s alleged inadequacies, directed counsel to respond, and asked counsel about specific issues. Both Robinson and Olmos had adequate explanations for all of defendant’s complaints, and to the extent there was a credibility question between defendant and counsel at the hearing, the court was entitled to accept counsel’s explanation. (People v. Abilez (2007) 41 Cal.4th 472, 488.) Defendant was given “full opportunity to air all of his complaints, and counsel to respond to them.” (People v. Smith (2003) 30 Cal.4th 581, 606.)
In ruling upon a Marsden motion, the court’s inquiry “is forward-looking in the sense that counsel would be substituted in order to provide effective assistance in the future. But the decision must always be based on what has happened in the past.” (People v. Smith (1993) 6 Cal.4th 684, 695.) The majority of defendant’s Marsden complaints against Olmos were merely variations on the same themes he already raised against his first appointed counsel, Robinson, during the earliest stages of this case. As defendant clearly indicated in his motions and statements, his lack of confidence in both Robinson and Olmos was based upon his frustration about being charged with the murder and attempted murder committed by Landois. Both Robinson and Olmos explained the felony-murder rule to defendant, and Olmos provided defendant with legal authorities and jury instructions about a nonshooter’s culpability, but defendant accused both of them of working against him by giving him such information and demanded they keep filing section 995 motions and pretrial motions to dismiss those counts.
As the court and his attorneys repeatedly advised defendant, a section 995 motion cannot be renewed unless there are changed circumstances, such as a substantial change in the facts or law, which have a significant bearing on the question of whether the defendant was committed without probable cause. (People v. Sherwin (2000) 82 Cal.App.4th 1404, 1411.) Robinson vigorously attacked the validity of the murder and attempted murder charges based upon Landois’s acts, and obtained the dismissal of the charge that defendant murdered Landois. Nevertheless, defendant repeatedly claimed he had no confidence in Robinson and later in Olmos because they refused to file additional section 995 motions, a motion for reconsideration, or other pretrial motions to obtain dismissal of the murder and attempted murder charges. Defendant seized upon Olmos’s comment about asking the prosecutor for his thoughts about filing another section 995 motion as an example of Olmos working against him. Olmos explained to the court that he never spoke to the district attorney’s office, and he independently determined there was no basis for another section 995 motion. Defendant’s tactical disputes with Olmos and his insistence that Olmos file frivolous motions for dismissal were insufficient to establish an irreconcilable conflict under Marsden.
Defendant asserts the court did not address his complaints that Olmos failed to have penalty phase experts examine him prior to trial, that Olmos reeked of alcohol during every visit with defendant, and the Marsden motion should have been granted because defendant lost all confidence in Olmos based upon these issues. Again, the record refutes defendant’s contentions on these points. At the February 2007 Marsden hearing, the court addressed defendant’s complaints about the psychological expert, Olmos said the evaluation would occur within the next month, the court chastised Olmos for the delay, but it granted a continuance so the evaluation could occur before the trial started. While Olmos had not obtained an expert evaluation at that point, he otherwise demonstrated his complete familiarity with the case and preparation of the defense theory, and later advised the court that two psychological evaluations had occurred and a third was scheduled for the same day as another Marsden hearing.
We note that in July 2003, defendant brought a Marsden motion against Robinson, his first attorney, partially based upon his complaint that Robinson had already hired penalty phase experts, which defendant interpreted as meaning that Robinson already believed he was guilty.
As for Olmos’s purported alcohol use, the court acknowledged it also smelled alcohol on Olmos’s breath but further noted that it did not observe any impairment of Olmos’s abilities. Nevertheless, the court warned Olmos and advised defendant that it would take the appropriate steps if it believed Olmos’s abilities were impaired. Defendant did not raise this issue again in subsequent Marsden hearings, the court did not make any further comments to Olmos, and the record’s silence necessarily implies that the court did not observe any conduct indicating the possible impairment of Olmos’s abilities or that he continued to have alcohol on his breath. Indeed, at the June 2007 Marsden hearing, Olmos extensively discussed his trial preparation, including the unfavorable results of a ballistics test that proved Landois’s gun could have fired the fatal shot into the restaurant. Again, defendant’s complaints about Olmos were based upon his frustration with not hearing what he wanted to hear from his attorney.
Defendant complains that he was forced to assert his Faretta rights and represent himself at trial because of the court’s erroneous Marsden rulings, such that his Faretta waivers were not knowing, intelligent and voluntary. When confronted with a request for self-representation, the trial court must make the defendant aware of the nature of the charges against him, the possible penalties, and the dangers and disadvantages of self-representation, “‘so that the record will establish that “he knows what he is doing and his choice is made with eyes open.”’ [Citation.]” (People v. Dent (2003) 30 Cal.4th 213, 217-218; United States v. Hernandez (9th Cir. 2000) 203 F.3d 614, 623-624, overruled on other grounds as explained in United States v. Ferguson (9th Cir. 2009) 560 F.3d 1060, 1068, fn. 4.) “If the trial court’s warnings communicate powerfully to the defendant the ‘disadvantages of proceeding pro se,’ that is all ‘Faretta requires.’ [Citation.]” (People v. Sullivan, supra, 151 Cal.App.4th at p. 546.)
As we have demonstrated ante, the court herein complied with Faretta and communicated powerfully to defendant the disadvantages of representing himself in a capital case, explained that standby counsel would not be appointed, and literally begged him not to discharge Olmos. Defendant was clearly aware of the serious situation but insisted on asserting his Faretta rights, and his waivers were knowing, intelligent and voluntary.
Defendant’s Faretta request occurred on the scheduled first day of trial. While a defendant has an absolute right to represent himself, the defendant must assert that right in a timely manner. When a Faretta request is not made in a timely manner prior to trial, self-representation is no longer a matter of right but subject to the court’s discretion. (People v. Bradford (1997) 15 Cal.4th 1229, 1365.) If a trial court grants an untimely Faretta request, “the defendant may not be heard to complain on appeal that his or her motion should not have been granted. [Citations.]” (Id. at p. 1367.) The court herein granted defendant’s demand to represent himself, after extensively warning defendant of the consequences, and defendant cannot now complain that ruling was inappropriate under the circumstances.
We further note that a Faretta request for self-representation does not trigger a duty to conduct a Marsden inquiry or suggest substitution of counsel as an alternative. (People v. Crandall (1988) 46 Cal.3d 833, 854-855, overruled on other grounds in People v. Crayton (2002) 28 Cal.4th 346, 364-365.) Nevertheless, when defendant made his Faretta request on the scheduled first day of trial, the court decided to conduct a Marsden hearing out of an abundance of caution, even though the court was not required to do so. The court again invited defendant to explain the reasons why he was frustrated with Olmos and defendant again repeated the same meritless reasons—that Olmos would not file various motions or pursue unsupported defense theories.
Indeed, the entirety of the record strongly suggests defendant was “playing ‘the Faretta game,’” and able to substantially delay the trial by “juggling his Faretta rights with his right to counsel interspersed with Marsden motions.” (People v. Williams (1990) 220 Cal.App.3d 1165, 1170.) As the court noted at the final Marsden/Faretta hearing, defendant represented himself for nearly two years and the matter was repeatedly continued so he could prepare, he then decided he wanted an attorney at the last moment, the court appointed Olmos and granted additional continuances for over a year, but defendant was still not satisfied. “Now here we are a few weeks before trial and you do, you don’t, you do, you don’t want Mr. Olmos to represent you. You do, you don’t, you do, you don’t want to go pro per.” It seemed that defendant only wanted to represent himself “‘if the court would not give him another attorney.… [I]t was pretty obvious that this defendant was simply playing games with the court.’ [Citation.]” (People v. Williams, supra, at p. 1170; People v. Horton (1995) 11 Cal.4th 1068, 1111.) Nevertheless, defendant’s Faretta rights were knowing and voluntary.
We thus conclude that defendant’s Marsden motions were without merit, the court did not abuse its discretion in denying the motions, defendant was not “forced” to represent himself, and he gave knowing and voluntary waivers of his constitutional rights under Faretta.
II. Substantial Evidence of Robbery/Murder Special Circumstance
Defendant was convicted in count 1 of first degree felony murder of Jeffrey Donaldson, who was killed by one of the shots Landois fired in the parking lot. The jury found true the special circumstance that the murder was committed while defendant aided and abetted the commission of a robbery/burglary.
Defendant does not challenge his conviction for first degree felony murder. Instead, he contends there is insufficient evidence to support the robbery/murder special circumstance under section 190.2, subdivision (d), which requires the jury to find a nonkilling accomplice “acted with ‘reckless indifference to human life and as a major participant’ in the commission of the underlying felony.” (People v. Estrada (1995) 11 Cal.4th 568, 575 (Estrada).) Defendant argues he was not a major participant and did not act with reckless indifference because there was no evidence he knew Landois was going to break off from his escape, get out of the Buick and start shooting in the parking lot.
“In reviewing a challenge to the sufficiency of the evidence, we do not determine the facts ourselves. Rather, we ‘examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citations.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]” (People v. Guerra (2006) 37 Cal.4th 1067, 1129.) “Reversal on this ground is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.)
The same standard of review applies to review of special circumstance findings and where the prosecution relies primarily on circumstantial evidence. (People v. Guerra, supra, 37 Cal.4th at p. 1129.) “Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant’s guilt beyond a reasonable doubt. ‘“If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.”’ [Citations.] ‘Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt.’ [Citation.]” (People v. Bean (1988) 46 Cal.3d 919, 932-933.)
A. First Degree Felony Murder
While defendant has not challenged his conviction for the substantive offense of first degree felony murder, his contentions as to the felony murder special circumstance overlap somewhat with the felony-murder rule, so we will begin with the well-settled principals of that doctrine.
Murder is the unlawful killing of a human being with malice aforethought. (§ 187, subd. (a).) Murder that is committed in the perpetration of robbery (or other statutorily enumerated felonies) is first degree felony murder. (§ 189; People v. Pulido (1997) 15 Cal.4th 713, 716 (Pulido).) “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.” (People v. Cavitt (2004) 33 Cal.4th 187, 197 (Cavitt); People v. Dillon (1983) 34 Cal.3d 441, 477.) The felony-murder rule generally acts as a substitute for the mental state ordinarily required for murder; the only mental state required is the specific intent to commit the inherently dangerous underlying felony. (Cavitt, supra, at pp. 197, 205.) For felony murder in the commission of a robbery, the prosecution must only prove the defendant’s specific intent to steal. (People v. Pollock (2004) 32 Cal.4th 1153, 1175.)
Felony-murder liability may be imposed “on a nonkiller ‘if a human being is killed by any one of several persons jointly engaged at the time of such killing in the perpetration of or an attempt to perpetrate the crime of robbery, whether such killing is intentional, or unintentional, or accidental.’” (Cavitt, supra, 33 Cal.4th at p. 200.) “Our cases establishing the complicity of a nonkiller in a felony murder have … uniformly required, at a minimum, that the accomplice have been, at the time of the killing, a conspirator or aider and abettor in the felony.” (Pulido, supra, 15 Cal.4th at p. 723.)
“[I]t is no defense to felony murder that the nonkiller did not intend to kill, forbade his associates to kill, or was himself unarmed. [Citations.]” (Cavitt, supra, 33 Cal.4th at p. 198, fn. 2.) “[A] nonkiller's liability for felony murder does not depend on the killer's subjective motivation but on the existence of objective facts that connect the act resulting in death to the felony the nonkiller committed or attempted to commit. Otherwise, [the nonkiller’s] responsibility would vary based merely on whether the trier of fact believed that [the killer] killed [the victim] by accident, because of a personal grudge, to eliminate a witness, or simply to find out what killing was like.” (Cavitt, supra, at p. 205.)
“For purposes of aider-abettor liability, the commission of a robbery continues so long as the property taken is being carried away to a place of temporary safety. [Citation.]” (People v. Harris (1994) 9 Cal.4th 407, 421; People v. Young (2005) 34 Cal.4th 1149, 1177.) When the robber is still in flight, he has not yet achieved a place of temporary safety. (People v. Johnson (1992) 5 Cal.App.4th 552, 559.)
“‘Robbery, unlike burglary is not confined to a fixed locus, but is frequently spread over considerable distance and varying periods of time. The escape... with the loot, by means of arms, necessarily is as important to the execution of the plan as gaining possession of the property.…’ [Citations.]” (People v. Kendrick (1961) 56 Cal.2d 71, 90.)
The scene of a robbery is not a place of temporary safety. (People v. Young, supra, at p. 1177; People v. Ramirez (1995) 39 Cal.App.4th 1369, 1375.)
A killing committed by a robber during his flight from the scene of the crime, and before reaching a place of temporary safety, constitutes felony murder. (Pulido, supra, 15 Cal.4th at p. 723, fn. 3.) A robber’s act of getting into a car in the parking lot at a robbery scene is insufficient to constitute his arrival at a place of temporary safety. (See, e.g., People v. Haynes (1998) 61 Cal.App.4th 1282, 1292.) A homicide committed while a defendant “was in hot flight with the stolen property and in the belief that [an] officer was about to arrest him for the robbery, falls well within” the felony-murder rule. (People v. Kendrick, supra, 56 Cal.2d 71, 90.)
While the “‘escape rule’” defines the duration of the underlying felony, the “‘continuous-transaction’” doctrine defines the duration of felony-murder liability, which may extend beyond the termination of the felony itself, provided that the felony and the act resulting in death constitute one continuous transaction. (Cavitt, supra, 33 Cal.4th at p. 208.) “[T]he requisite temporal relationship between the felony and the homicidal act exists even if the nonkiller is not physically present at the time of the homicide, as long as the felony that the nonkiller committed or attempted to commit and the homicidal act are part of one continuous transaction.” (Id. at p. 196, italics added.)
An aider and abettor may withdraw from participation in a crime only by notifying the other principals of his intention to withdraw prior to the commission of the offense, and he must do everything in his power to prevent its commission but he does not have to prevent the crime. (People v. Fiu (2008) 165 Cal.App.4th 360, 382-384; People v. Nguyen (1993) 21 Cal.App.4th 518, 528, fn. 2.) Similarly, once a defendant’s participation in a conspiracy is shown, it is presumed to continue unless he shows that he effectively withdrew from the conspiracy. (People v. Cooks (1983) 141 Cal.App.3d 224, 316.) The defendant’s mere failure to continue previously active participation in a conspiracy is not enough to constitute withdrawal. Instead, an affirmative and bona fide rejection or repudiation of the conspiracy must be communicated to the coconspirators. (Ibid.)
B. Robbery/Murder Special Circumstance
A defendant is subject to the sentence of death or life imprisonment without possibility of parole if the trier of fact finds true the special circumstance that the first degree murder “was committed while the defendant was engaged in, or was an accomplice in, the commission of, attempted commission of, or the immediate flight after committing, or attempting to commit” certain enumerated felonies, including robbery and/or second degree burglary. (§ 190.2, subds. (a)(17)(A) & (a)(17)(G).) A felony-murder special circumstance is applicable to an aider and abettor who is not the actual killer if the prosecution shows the aider and abettor either had the “intent to kill” (§ 190.2, subd. (c)), or acted with reckless indifference to human life and as a major participant in the underlying felony (§ 190.2, subd. (d)).
It is undisputed that defendant was not the actual killer of Donaldson and the robbery/murder special circumstance was not based on proof of his intent to kill. Instead, the special circumstance was based upon the language of section 190.2, subdivision (d):
“[E]very person, not the actual killer, who, with reckless indifference to human life and as a major participant, aids, abets, counsels, commands, induces, solicits, requests, or assists in the commission of a felony enumerated in paragraph (17) of subdivision (a) which results in the death of some person or persons, and who is found guilty of murder in the first degree therefor, shall be punished by death or imprisonment in the state prison for life without the possibility of parole if a special circumstance enumerated in paragraph (17) of subdivision (a) has been found to be true.” (Italics added.)
The italicized language of section 190.2, subdivision (d), is based upon Tison v. Arizona (1987) 481 U.S. 137 (Tison), which held the culpability requirement of the Eighth Amendment is satisfied and the death penalty may be imposed upon a defendant who, without an intent to kill and without being the actual killer, is a major participant in a felony that results in the death of a victim, and acts with a mental state of reckless indifference to human life. (Tison, supra, at pp. 152, 157-158.) Section 190.2, subdivision (d) was drafted to conform to Tison’s Eighth Amendment requirements. (Estrada, supra, 11 Cal.4th at pp. 575-576; People v. Proby (1998) 60 Cal.App.4th 922, 927-928 (Proby).)
Thus, “in the absence of a showing of intent to kill, an accomplice to the underlying felony who is not the actual killer, but is found to have acted with ‘reckless indifference to human life and as a major participant’ in the commission of the underlying felony, will be sentenced to death or life in prison without the possibility of parole. [Citations.]” (Estrada, supra, 11 Cal.4th at p. 575.)
In addressing the meaning of the phrases “major participant” and “reckless indifference,” the United States Supreme Court has acknowledged that “[a]lthough we state these two requirements separately, they often overlap. For example, we do not doubt that there are some felonies as to which one could properly conclude that any major participant necessarily exhibits reckless indifference to the value of human life. Moreover, even in cases where the fact that the defendant was a major participant in a felony did not suffice to establish reckless indifference, that fact would still often provide significant support for such a finding.” (Tison, supra, 481 U.S. at p. 158, fn. 12.)
There is no minimum threshold of participation that qualifies a person as a “major participant” in the underlying felony; the defendant need not necessarily be the ringleader or the triggerman. (Proby, supra, 60 Cal.App.4th at p. 934.) “[T]he phrase ‘major participant’ is commonly understood and is not used in a technical sense peculiar to the law. The common meaning of ‘major’ includes ‘notable or conspicuous in effect or scope’ and ‘one of the larger or more important members or units of a kind or group.’ [Citation.]” (Id. at pp. 933-934.)
“[T]he reckless disregard for human life implicit in knowingly engaging in criminal activities known to carry a grave risk of death represents a highly culpable mental state, a mental state that may be taken into account in making a capital sentencing judgment when that conduct causes its natural, though also not inevitable, lethal result.” (Tison, supra, 481 U.S. at pp. 157-158, italics added.) “[I]n common parlance, the phrase ‘reckless indifference to human life’ conveys the notion of a subjective appreciation or knowledge by the defendant of a grave risk of death” created by the defendant’s participation in the underlying felony. (Estrada, supra, 11 Cal.4th at p. 578.)
“[W]hen considered in its entirety … ‘reckless indifference to human life’ is commonly understood to mean that the defendant was subjectively aware that his or her participation in the felony involved a grave risk of death. The common meaning of the term ‘indifference,’ referring to ‘the state of being indifferent,’ is that which is ‘regarded as being of no significant importance or value.’ [Citation.] To regard something, even to regard it as worthless, is to be aware of it. [Citation.] [¶] Although the term ‘reckless’—standing alone—may arguably be understood in common parlance to mean simply neglectful, heedless, or rash [citation], when the word is placed in context within the statutory phrase ‘indifference to human life,’ what is conveyed to the jury is more than mere negligence.” (Estrada, supra, 11 Cal.4th at p. 577.)
“[S]ome nonintentional murderers may be among the most dangerous and inhumane of all—the person who tortures another not caring whether the victim lives or dies, or the robber who shoots someone in the course of the robbery, utterly indifferent to the fact that the desire to rob may have the unintended consequence of killing the victim as well as taking the victim’s property. This reckless indifference to the value of human life may be every bit as shocking to the moral sense as an ‘intent to kill.’” (Tison, supra, 481 U.S. at p. 157.)
C. Analysis
There is overwhelming evidence to support defendant’s conviction for first degree felony murder and the jury’s true finding on the robbery/murder special circumstance, based upon both the direct evidence and the inferences raised by the circumstantial evidence.
As to first degree felony murder, defendant and Landois were clearly accomplices and shared the same specific intents in the commission of the armed robberies and second degree commercial burglaries at Clothestime and Susie’s—they were seen in the stolen van just an hour before the robberies, they entered the adjoining stores around noon, wore women’s dresses and wigs, carried identical Glock handguns that had been stolen from a hardware store in Nebraska, and used the weapons to threaten the store employees and force them to open the cash registers. Landois was seen walking from the stolen van just before he entered Susie’s. Atkinson and Johnson saw defendant run out of Clothestime to the stolen van while Landois was still inside Susie’s. Defendant looked back toward the stores, raising the inference that he knew Landois was supposed to be inside. When Landois ran out of Susie’s, he went straight to Clothestime instead of the parking lot, raising the inference that Landois knew defendant had entered that store and Landois hoped defendant was still inside.
Defendant was already in the van, CHP Lieutenant Williams inadvertently parked his patrol car next to the van, and Atkinson and Johnson saw the van slowly move away from the parked patrol car, which raises the strong inference that defendant knew at least one officer was in the parking lot and could be looking for them. Stephanie Rego, the employee at Susie’s, believed Landois saw the Highway Patrol officer in the parking lot as he ran out of Susie’s, which raises the inference that Landois ran to Clothestime to warn defendant or get help to effectuate their escape.
Defendant had the opportunity to at least try to withdraw from the conspiracy or escape from the scene, since he reached the van while Landois was still inside Susie’s. Defendant could have left the parking lot without waiting for Landois, since defendant obviously knew how to start the stolen van and Landois must have had the keys to the Buick. Instead, Atkinson and Johnson saw defendant look back toward the two clothing stores as he waited at the van. They saw the van move through the parking lot and lost sight of it, but defendant obviously stayed in the parking lot and waited for Landois to reach the Buick. The two vehicles were later seen driving together in the parking lot, with the van in front of the Buick by no more than two or three car lengths.
At that point, neither defendant nor Landois had reached places of temporary safety and the joint robberies were not complete. Defendant drove the van as the lead vehicle, followed by Landois’s Buick, directly in front of the Vons as Officers Byerlee, Gauger and Davis walked toward the grocery store, which raises the extremely strong inference that defendant and Landois saw the officers just before Landois opened fire.
There is thus overwhelming evidence to support defendant’s conviction for first degree felony murder as a nonshooting accomplice. Defendant clearly waited around the scene to assist Landois’s escape, he did not make any attempts to withdraw as a conspirator or an aider and abettor, and the accomplices were in hot flight from the commission of the robberies when Landois opened fire. Landois fired approximately eight shots into a crowded parking lot, one shot pierced the wall of Arby’s and killed Donaldson, the other shots narrowly missed Officer Byerlee, and Byerlee fired one shot and killed Landois. None of the officers noticed the van in the vicinity, but they did not know anything about the van or its connection to the robberies.
Contrary to defendant’s trial arguments, “it is no defense to felony murder that the nonkiller did not intend to kill, forbade his associates to kill, or was himself unarmed. [Citations.]” (Cavitt, supra, 33 Cal.4th at p. 198, fn. 2.) Even though defendant argued he did not know why Landois opened fire in the parking lot, first degree felony murder “encompasses a far wider range of individual culpability than deliberate and premeditated murder. It includes not only the latter, but also a variety of unintended homicides resulting from reckless behavior, or ordinary negligence, or pure accident; it embraces both calculated conduct and acts committed in panic or rage, or under the dominion of mental illness, drugs, or alcohol; and it condemns alike consequences that are highly probable, conceivably possible, or wholly unforeseeable.” (People v. Dillon, supra, 34 Cal.3d at p. 477.)
There is also overwhelming evidence to support the special circumstance for a nonkilling accomplice in a first degree felony murder. As required by section 190.2, subdivision (a)(17)(A), the first degree murder “was committed while the defendant was engaged in, or was an accomplice in, the commission of, attempted commission of, or the immediate flight after committing, or attempting to commit” a robbery, since the robberies were not over and defendant and Landois had not reached places of temporary safety when Landois opened fire. Moreover, defendant was a nonkilling accomplice who “acted with ‘reckless indifference to human life and as a major participant’ in the commission of the underlying felony.…” (Estrada, supra, 11 Cal.4th at p. 575; § 190.2, subd. (d).)
As required by section 190.2, subdivision (d), defendant was clearly a “major participant” in the underlying felony because he was one of two conspirators who carefully planned and executed nearly simultaneous, distinctive, and identical robberies of adjoining clothing stores. (See, e.g., People v. Hodgson (2003) 111 Cal.App.4th 566, 579-580 (Hodgson) [defendant was “major participant” where robbery involved only two perpetrators].) They were trying to coordinate their escapes as defendant ran out of Clothestime and looked back at the two clothing stores, as if he was waiting for Landois, and Landois ran out of Susie’s, apparently saw one or more officers in the parking lot, ran to Clothestime in the belief that defendant was still in the store, and may have hoped that defendant would help him evade the officer. Since only two individuals were involved, defendant’s role “was more ‘notable and conspicuous’—and also more essential—than if the shooter had been assisted by a coterie of confederates.” (Id. at p. 580.)
There is also substantial evidence that defendant acted with reckless indifference to human life in the execution of the robberies and escape. The two men planned to commit identical armed robberies in adjoining clothing stores, around noontime in a crowded shopping center. Defendant pulled his gun on the Clothestime clerk and ordered her to give him the money or he would blow her away. As he left the store, defendant told the clerk and the customer that he would come back and kill them if they got up. Landois entered Susie’s with a loaded Glock handgun. Defendant was later found in possession of a matching stolen Glock, which was also loaded, and a box of ammunition that was almost half empty.
Defendant ran out of Clothestime and reached the van while Landois was still inside Susie’s. Defendant looked back toward the stores, which might have indicated his concern that Landois was still inside Susie’s, even though defendant was ready to leave. Defendant had the opportunity to escape in the van, but he decided to linger in the parking lot and wait for Landois to emerge from Susie’s, even though a Highway Patrol car parked next to the stolen van. An employee of another store saw Landois running through the parking lot and openly holding his gun.
The deployment of a gun in a criminal endeavor magnifies the risk that someone will be seriously injured or killed. (In re Tameka C. (2000) 22 Cal.4th 190, 196; People v. Bland (1995) 10 Cal.4th 991, 996.) Defendant intentionally delayed his escape until he met the armed and obviously frantic Landois somewhere in the crowded parking lot, as three uniformed police officers walked through the area as if they were “on a mission.” Since deployment of a gun magnifies the risk of death, the jury herein was not required to draw the factually unsupported and inherently improbable conclusion that defendant was unaware of the risks unless he heard and/or witnessed the gunshots fired by Landois. Instead, the jury could reasonably deduce from the evidence that defendant was sufficiently aware of the risks posed by committing armed robberies in a busy shopping center at noontime, and that defendant acted with reckless indifference to human life by waiting for the armed and obviously frantic Landois to leave Susie’s, get into the Buick, and follow defendant’s van as they drove past the three police officers.
Defendant argues that “reckless indifference” can only be shown if the nonkiller is physically present during the murder, and there is insufficient evidence to support the jury’s “reckless indifference” finding in this case because none of the witnesses saw defendant or the van at the precise moment that Landois opened fire in the parking lot.
Defendant’s argument is based upon a series of cases which found substantial evidence to support the “reckless indifference” aspect of the first degree felony-murder special circumstance for a nonkilling accomplice, in situations where the nonkiller was either physically present or could hear the acts which resulted in the murder. For example, in Tison, the defendants were two brothers who orchestrated the prison escape of their father and his cellmate. When the group’s getaway car had a flat tire, one of the defendants flagged down a passing motorist for help and both defendants participated in the kidnapping and robbery of the vehicle’s occupants. The defendants stood by and watched as their father and his cellmate shot and killed the four victims. The defendants did not actually participate and claimed to be surprised by the murders, but they made no attempt to help the victims and drove away in the victims’ car with the others. (Tison, supra, 481 U.S. at pp. 139-141.)
In Proby, the defendant and an accomplice robbed a fast food restaurant, defendant was armed with a semiautomatic handgun, he supplied the murder weapon to the actual killer, his accomplice shot an employee, defendant may not have been present during the shooting but saw “‘pus’” ooze out of the victim’s head and did nothing to assist the victim, and he helped his accomplice remove cash from the restaurant’s safe and escape. (Proby, supra, 60 Cal.App.4th at pp. 925-926, 929-930.)
In Hodgson, the defendant held open the electric gate of an underground parking garage of an apartment complex to facilitate the escape of his fellow gang member, who robbed and shot to death a woman just after she opened the gate with her key card. (Hodgson, supra, 111 Cal.App.4th at p. 568.) The defendant argued his involvement in the underlying robbery was not as extensive as in other section 190.2, subdivision (d) cases because he did not supply the gun, he was not armed, and he did not personally take the robbery proceeds. (Hodgson, supra, at p. 579.) However, Hodgson found the evidence was sufficient for a rational juror to find the defendant was a major participant as one of two participants, and that he acted with reckless indifference because “after the first shot it must have been apparent to [defendant that the victim] had been severely injured and was likely unconscious,” but “instead of coming to the victim’s aid after the first shot, he instead chose to assist” his accomplice to complete the robbery and escape. (Id. at p. 580; see also People v. Mora (1995) 39 Cal.App.4th 607, 617 [defendant and accomplice planned home invasion robbery, defendant present when accomplice shot the victim, defendant failed to assist the victim after the shooting and continued with robbery plan]; People v. Bustos (1994) 23 Cal.App.4th 1747, 1753-1754 [unarmed defendant accosted a woman in a public restroom to rob her, accomplice ran in and stabbed the victim in defendant’s presence, and the perpetrators fled and left the victim to die]; People v. Smith (2005) 135 Cal.App.4th 914, 927-928, overruled on other grounds in People v. Garcia (2008) 168 Cal.App.4th 261, 291 [nonkilling defendant acted as sentry to a room while accomplices brutally beat victim during loud and violent attempted robbery, saw accomplice emerge from room covered with blood, and made no efforts to assist victim].)
Defendant contends that in contrast to Tison and the other cases, he was not physically present when Landois started shooting in the parking lot, none of the officers or witnesses saw the gray van in the vicinity of the gunfight, and his absence negates any inference that he showed reckless indifference to human life since he was trying to escape from the scene and may have even left the parking lot.
However, neither Tison nor section 190.2, subdivision (d) requires the nonkilling accomplice to be physically present or have some sensory or auditory perception that a murder is being committed. As we have already explained, defendant intentionally delayed his departure from the parking lot until the armed Landois reached the Buick. “Participants in violent felonies like armed robberies can frequently ‘anticipat[e] that lethal force … might be used … in accomplishing the underlying felony.’” (Tison, supra, 481 U.S. at pp. 150-151.) “[Defendant] had to be aware [that] use of a gun to effect the robbery presented a grave risk of death.” (Hodgson, supra, 111 Cal.App.4th at p. 580.) Defendant’s van was just in front of the Buick and the jury could have found that he gained a “‘“subjective awareness of a grave risk to human life”’” as shots were fired behind him into a crowded parking lot. (People v. Smith, supra, 135 Cal.App.4th at p. 927.)
We thus conclude the jury’s true finding on the special circumstance for a nonkilling accomplice is supported by substantial evidence that defendant acted with reckless indifference to human life and as a major participant in the commission of the underlying armed robberies.
III. The Court’s Response to the Jury’s Felony-murder Question
During the jury’s deliberations, it sent a note to the court and asked whether it mattered as to who fired the fatal shot that killed Donaldson. Defendant contends the court’s response to the question reduced the prosecution’s burden of proof, amounted to a directed verdict on the felony murder charge and violated his due process rights. Our review of the court’s response, in the context of the parties’ arguments and the court’s attempt to clarify the legal issues, refutes defendant’s contentions.
A. Background
The jury’s question about whether it mattered as to who fired the fatal shot was the result of the trial evidence and the parties’ closing arguments. As explained ante, defendant represented himself at trial. He cross-examined the prosecution witnesses to the robberies at Susie’s and Clothestime, and established that defendant was by himself in Clothestime, Landois was by himself in Susie’s, the witnesses did not see them together in the stores or the parking lot, before or after the shooting, and neither defendant nor Landois fired their weapons while they were inside the respective clothing stores.
Defendant cross-examined Officers Davis and Gauger as to their actions and locations during the shooting, and established that Gauger was standing behind Landois as Landois fired into the parking lot. Davis and Gauger testified they checked their weapons themselves and determined they did not fire any shots, and admitted their guns were not examined by other officers to confirm they did not fire. Defendant cross-examined a criminalist and established the criminalist did not know if there were any ballistics results which matched Landois’s gun to the bullet that killed Donaldson.
In his closing argument, the prosecutor gave an accurate explanation of the felony-murder rule as it applied to Landois’s shooting of Donaldson in the course of the armed robberies committed by defendant and Landois, and explained why defendant, as a nonshooting accomplice, would be guilty of murder. He also added the following remarks:
“You know, it seemed the defense questioning was, well, you know, even though Officer Gauger told us he didn’t shoot anyone, didn’t fire his weapon, even checked afterwards, even though that is a question with no facts behind it, it wouldn’t matter. It would not have matter[ed] if Officer Gauger would have been the one pulling the trigger trying to hit this person shooting at his fellow officer and that bullet would have traveled through the air and killed Mr. Donaldson. The defendant would still be guilty, because the act would not have happened—Mr. Donaldson would not be dead today if the defendant and his brother had not [] chosen to go to Clothestime and Susie’s Deals and robbed them.
“They committed an act which was dangerous to others and willfully did that and they escalated that act, his brother did, by starting to shoot and someone died.
“Now, clearly there’s no evidence that anybody other than Carlos [Landois] killed Mr. Donaldson. But it’s possible that you may hear an argument, well, maybe it was Officer Gauger. The law is clear, it doesn’t matter.…” (Italics added.)
In his closing argument, defendant argued the prosecutor failed to prove Landois killed Donaldson because it was impossible for a bullet from Landois’s gun to go through the wall of Arby’s and hit Donaldson. Defendant noted that no one else checked Officer Gauger’s weapon to confirm he did not fire any shots, there was no ballistics evidence to confirm the fatal shot was fired from Landois’s gun, and one of the officers fired the shot that killed Donaldson. Defendant also argued Landois was about to escape from the parking lot but decided to “end it” for some reason, Landois was not trying to escape when he fired at the officers, and Landois wanted the officers to kill him. Defendant argued the robbery and conspiracy were complete when he drove out of the parking lot in the van, and he was being unfairly judged for Landois’s crimes.
As noted ante, defendant’s attorney, Olmos, revealed during one of the Marsden hearings that a ballistics tests confirmed that a Glock handgun could have fired the fatal shot the appropriate distance, pierced the restaurant’s wall and killed Donaldson. When defendant assumed his Faretta rights and represented himself, the court ordered Olmos to turn over all defense material, presumably including the unfavorable ballistics results.
In rebuttal argument, the prosecutor returned to the issue about whether it mattered who fired the fatal shot:
“The question is would Jeff Donaldson be alive today if the defendant and his brother hadn’t decided to go and rob some women’s clothing stores.…
“If the robbery of those clothing stores cause[d] Jeff Donaldson to die, it doesn’t matter who pulled the trigger. The fact remains the only evidence of who pulled the trigger, the only evidence, is that Carlos Landois pulled the trigger. But it doesn’t matter. Any more than it wouldn’t matter had Officer Gauger pulled the trigger.
“That robbery took place, with firearms, which resulted in a shoot-out, and Mr. Donaldson died as a result of that shoot-out. Had a robbery not taken place, there would not have been a shoot-out. Mr. Donaldson would be alive today. And that’s why he’s guilty.…” (Italics added.)
During deliberations, the jury submitted the following question to the court:
“What is the instruction of the law when it comes to felony murder charge #1 charges. The prosecutor said it does not matter what gun the bullet came from that killed the victim. Is that true??”
The court realized the jury’s question implicated the provocative act theory of murder, which was not applicable to Donaldson’s murder. The court intended to tell the jury that the shooter’s identity mattered, and the jury could not consider the murder charge under the provocative act theory since the jury was not instructed on that theory. The court read its proposed response and asked the parties to think about the issue. The prosecutor suggested revisions, but the court rejected the suggestions. Defendant did not make any comments or suggestions about the court’s proposed response.
The jury returned to the courtroom and the court gave the following response:
“[THE COURT:] [T]he question that you have proposed is: ‘What is the instruction of the law when it comes to felony murder charge.… The prosecutor said it does not matter what gun the bullet came from that killed the victim. Is that true?’
“Well, technically, it is true, that is not true. It does matter what gun the bullet came from that killed the victim.
“Now, there are different kinds of murder. The defendant is charged in this case with felony murder. That’s a murder during the commission of a robbery or a burglary. Now, you have an instruction on that particular type of murder.
“There’s another type of murder called [provocative] act murder. And that is a situation where one of the participants during the robbery starts a gun battle with police, and the police officer in self-defense either kills an innocent bystander or even—even the guy that starts—the other defendant, the other guy that’s starting the gun battle, if either one of those people are killed by the police officer, that’s called [provacative] act murder.
“All the participants in the robbery in a [provocative] act murder, if it is still ongoing as defined in the instruction, would be—would or could be charged with the killing that occurred because the officer was defending himself. And that could be either under [provocative] act murder or felony murder or the Felony Murder Rule.
“In this case, you are not being asked to consider that [provocative] act murder. No instructions were given for that type of a murder because there is no evidence that that type of a murder occurred. Because the defendant said it occurred doesn’t make it so.
“There’s no evidence that anybody else fired their weapon. The only evidence you have is that one person fired their weapon other than the deceased brother of the defendant, and that was Officer Byerlee.
“You may only consider evidence that is evidence. You are not to speculate as to what might have happened. You must decide—make your decision and base your decision only on the evidence that’s been presented.
“If the People haven’t met their burden to prove felony murder beyond a reasonable doubt, you must find the defendant not guilty.
“If you have a reasonable doubt that the felony murder occurred as defined in the instructions, then you must find the defendant not guilty of that offense. That doubt, however, must be based on reason and not speculation.
“What does the evidence tell you? You are not to make a speculation as to what might have happened if there is no evidence to support that belief.
“You are the judges of the facts and must base your decision on the facts as they relate to the charges. And that’s the only way I can explain that, folks.
“A JUROR: I just needed to hear it from you.
“THE COURT: All right. Thank you. You may resume your deliberations.” (Italics added.)
B. Analysis
Defendant contends the court violated section 1138 because the italicized portion of the court’s response, ante, reduced the prosecution’s burden of proof, essentially directed the verdict of murder, and prevented the jury from speculating whether someone else could have fired the fatal shot into the restaurant.
Defendant did not object to the court’s response. While a defendant who represents himself cannot claim ineffective assistance (People v. Blair (2005) 36 Cal.4th 686, 734), objections are not required to preserve either a section 1138 issue (People v. Hill (1992) 3 Cal.App.4th 16, 24, overruled on other grounds by People v. Nesler (1997) 16 Cal.4th 561, 582, fn. 5) or an instructional error which implicates a defendant’s substantial rights. (People v. Johnson (2004) 119 Cal.App.4th 976, 984.)
Section 1138 casts upon the trial court the mandatory duty, on the request of a deliberating jury, to instruct “on any point of law arising in the case” and “‘clear up’ the jury’s understanding. [Citation.]” (People v. Ross (2007) 155 Cal.App.4th 1033, 1047; § 1138.) As noted by the court, the jury’s question potentially implicated the provocative act theory of murder. Under the provocative act murder doctrine, the perpetrator of a crime is held vicariously liable for a killing of an accomplice or innocent bystander that is committed by a third party. (Briscoe, supra, 92 Cal.App.4th at p. 581; People v. Cervantes (2001) 26 Cal.4th 860, 867.) “By law, the felony-murder rule does not apply when an accomplice is killed at the hands of a crime victim rather than by the defendant. As such a killing does not occur in the perpetration of a felony, malice cannot be ascribed to the defendant under the felony-murder rule. [Citations.] However, when the perpetrator of a crime—with a conscious disregard for life—intentionally commits an act that is likely to result in death and the crime victim kills in reasonable response to that act, the perpetrator is guilty of murder.… [Citations.]” (Briscoe, supra, at pp. 581-582.)
To establish liability under the provocative act doctrine, “the defendant must commit an act that provokes a third party to fire a fatal shot [and know] that his or her provocative act has a high probability—not merely a foreseeable possibility—of eliciting a life-threatening response from the person who actually fires the fatal bullet. [Citations.]” (Briscoe, supra, 92 Cal.App.4th at p. 582.)
“The provocative act murder doctrine has traditionally been invoked in cases in which the perpetrator of the underlying crime instigates a gun battle, either by firing first or by otherwise engaging in severe, life-threatening, and usually gun-wielding conduct, and the police, or a victim of the underlying crime, responds with privileged lethal force by shooting back and killing the perpetrator’s accomplice or an innocent bystander. [Citations.]” (People v. Cervantes, supra, 26 Cal.4th at p. 867, italics added, fn. omitted.)
“In cases in which the underlying crime does not involve an intent to kill—offenses such as robbery and burglary … the mere participation in the underlying criminal offense is not sufficient to invoke the doctrine of provocative act murder. The provocative act must be something beyond that necessary to commit the underlying crime. [Citations.]” (Briscoe, supra, 92 Cal.App.4th at pp. 582-583, fn. omitted.) “In robbery cases, courts have consistently required the defendant to commit a provocative act beyond that necessary to commit the robbery in order to be held liable for a killing committed by a third party. [Citations.]” (Id. at p. 582, fn. 6.)
In the earliest stages of this case, the court granted defendant’s section 995 motion and dismissed the charge that defendant murdered Landois, based on Byerlee’s fatal shooting of Landois, because it found defendant could only be guilty of Landois’s death under the provocative act theory, there was no evidence that defendant committed any acts beyond the robbery and escape, and those acts were insufficient to trigger that theory. Defendant could not be guilty of Donaldson’s murder under the provocative act theory for the same reasons—defendant committed the armed robbery and was trying to escape, but such acts were insufficient to trigger the provocative act theory since he did not start the shootout in the parking lot. (See, e.g., In re Aurelio R. (1985) 167 Cal.App.3d 52, 59 [mere act of fleeing from police, without more, does not establish provocative act element of murder].) Instead, the prosecution relied upon the felony-murder rule to hold defendant culpable as a nonshooting accomplice in Donaldson’s murder.
While the prosecutor used his closing argument to extensively and correctly discuss the felony murder rule, he erroneously suggested that defendant could be guilty of first degree murder even if Officer Gauger fired the fatal shot into the restaurant. Defendant, acting as his own attorney, seized upon this issue in his own closing argument and argued that Gauger fired the fatal shot, and failed to realize that he was walking straight into the prosecutor’s trap of the provocative act theory.
The jury’s note expressly stated that the question was triggered by the prosecutor’s insistence that the identity of the gunman who fired the fatal shot did not matter, and that defendant would still be guilty of Donaldson’s murder if Officer Gauger fired the fatal shot. In reviewing the question and composing a response, the court was extremely concerned the jury might convict defendant of murder under the provocative act theory, for which the jury was not instructed, instead of the prosecution’s theory of felony murder. The court properly discharged its duties under section 1138 by distinguishing felony murder from provocative act murder, and ensured the jury would not follow the prosecutor’s erroneous arguments and convict defendant of first degree murder based upon a theory completely unsupported by either facts or law.
Defendant acknowledges that during the instructional phase, the court properly instructed the jury on felony murder, the prosecution’s burden of proof, and the definition of reasonable doubt. However, defendant seizes upon the court’s italicized statements to the jury about the absence of facts or law to support the provocative act theory, as set forth ante, and contends such statements negated the prior instructions, reduced the prosecution’s burden of proving murder beyond a reasonable doubt, directed a verdict of felony murder, and prevented the jury from speculating upon the absence of evidence to find the prosecution failed to meet its burden.
Defendant is correct that “[r]easonable doubt may arise from the lack of evidence at trial as well as from the evidence presented. [Citation.]” (People v. Campos (2007) 156 Cal.App.4th 1228, 1238.) The court’s statements did not reduce the prosecution’s burden or amount to a directed verdict, but correctly advised the jury about “the almost self-evident principle that the determination of defendant’s culpability beyond a reasonable doubt … must be based on a review of the evidence presented.” (People v. Hawkins (1995) 10 Cal.4th 920, 963, italics added, abrogated on other grounds in People v. Lasko (2000) 23 Cal.4th 101, 110.) The court’s response properly advised the jury that the People could not meet the burden of proof “based on evidence other than that offered at trial.” (People v. Westbrooks (2007) 151 Cal.App.4th 1500, 1509.) The court did not tell the jury that it could not consider any perceived lack of evidence in determining whether there was a reasonable doubt as to defendant’s guilt. (Ibid.)
While the jury may rely on inferences to reach its verdict, “those inferences must be reasonable. An inference is not reasonable if it is based only on speculation.” (People v. Holt (1997) 15 Cal.4th 619, 669.) “‘A reasonable inference … “may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. [¶] … A finding of fact must be an inference drawn from evidence rather than... a mere speculation as to probabilities without evidence.”’ [Citation.]” (People v. Raley (1992) 2 Cal.4th 870, 891; see also Victor v. Nebraska (1994) 511 U.S. 1, 21-22 [jurors properly instructed that in determining reasonable doubt, they “‘should be governed solely by the evidence introduced’” before them, and “‘should not indulge in speculation, conjectures, or inferences not supported by the evidence’”].) The court’s statements ensured the jury would not rely on speculation to convict defendant of murder under a theory unsupported by fact or law.
Defendant contends the court’s statements were similar to those found erroneous in People v. McCullough (1979) 100 Cal.App.3d 169 (McCullough). In that case, the jury asked a question about one of the elements of the charged offense. As the court responded to the question and discussed the concept of reasonable doubt, one juror asked, “So then the doubt must arise from evidence?” (Id. at p. 181.) The court replied:
“Well, I would answer that yes, if you are saying—if your question is—what is reasonable doubt—reasonable doubt is that state of the case which, after a comparison and consideration of all of the evidence—that is the evidence introduced in the trial—after a comparison and consideration of all of the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.” (Ibid.)
McCulloch held the court “misled the jury by telling it that the ‘doubt must arise from the evidence’ for the ‘reasonable doubt prescribed by the statute may well grow out of the lack of evidence in the case as well as the evidence adduced.’ [Citations.]” (Id. at p. 182.) However, McCulloch found the error was not prejudicial. (Id. at pp. 183-184.)
In contrast to McCulloch, the court herein did not tell the jury that reasonable doubt could only arise from the evidence presented at trial. When the court’s comments are read in context, it did not reduce the burden of proof or violate defendant’s due process rights, but ensured the jury would not convict defendant of Donaldson’s murder under the factually unsupported and legally invalid provocative act theory. (Cf. People v. Morales (2001) 25 Cal.4th 34, 43 [court commits error if instructions present the case to the jury on factually and legally insufficient theories].) There was no likelihood that the trial court’s statements caused the jury to misunderstand the reasonable doubt standard. (People v. Hawkins, supra, 10 Cal.4th at p. 963.)
IV. Attempted Murder Special Finding
Defendant was convicted in count 2 of attempted murder of a peace officer, based upon Landois’s shooting at Officer Byerlee, under the natural and probable consequences doctrine of being an aider and abettor and/or conspirator to the commission of robbery and/or second degree burglary. Also as to count 2, the jury found true the special allegation that the attempted murder occurred while the officer was engaged in the performance of his duties (§§ 187, 664, subd. (e)), which required the court to impose the term of life in prison with the possibility of parole.
Defendant does not challenge his conviction for the substantive offense of attempted murder of Byerlee. Instead, he contends the special allegation must be reversed because the court failed to instruct on the statutory elements of that allegation. He separately contends the jury’s true finding on the special allegation is not supported by substantial evidence because there is no evidence that defendant knew Byerlee was engaged in the performance of his duties when Landois fired at him.
A. Attempted Murder and the Special Allegation
As with his challenges to the felony-murder special circumstance, defendant’s contentions require a brief review of attempted murder in order to explain the distinctions between the substantive offense and the special allegation. Defendant was convicted of attempted murder as an aider and abettor under the natural and probable consequences doctrine. Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing. (People v. Lee (2003) 31 Cal.4th 613, 623 (Lee).)
“[A] person who aids and abets a confederate in the commission of a criminal act is liable not only for that crime (the target crime), but also for any other offense (nontarget crime) committed by the confederate as a ‘natural and probable consequence’ of the crime originally aided and abetted. To convict a defendant of a nontarget crime as an accomplice under the ‘natural and probable consequences’ doctrine, the jury must find that, with knowledge of the perpetrator’s unlawful purpose, and with the intent of committing, encouraging, or facilitating the commission of the target crime, the defendant aided, promoted, encouraged, or instigated the commission of the target crime. The jury must also find that the defendant’s confederate committed an offense other than the target crime, and that the nontarget offense perpetrated by the confederate was a ‘natural and probable consequence’ of the target crime that the defendant assisted or encouraged.” (People v. Prettyman (1996) 14 Cal.4th 248, 254.)
Whether the charged offense is a natural and probable consequence of the target crime is a factual question for the jury and requires application of an objective rather than subjective test. (People v. Nguyen, supra, 21 Cal.App.4th 518, 531.) “[T]he issue does not turn on the defendant’s subjective state of mind, but depends upon whether, under all of the circumstances presented, a reasonable person in the defendant’s position would have or should have known that the charged offense was a reasonably foreseeable consequence of the act aided and abetted by the defendant. [Citations.]” (Ibid.) It is well established that attempted murder may be a natural and probable consequence of robbery. (People v. Cummins (2005) 127 Cal.App.4th 667, 677.)
While an objective test is used to determine a defendant’s culpability as an aider and abettor for the substantive offense of attempted murder, section 664, subdivision (e), sets forth a special allegation for attempted murder based upon a different statutory requirement:
“[I]f attempted murder is committed upon a peace officer …, and the person who commits the offense knows or reasonably should know that the victim is a peace officer … engaged in the performance of his or her duties, the person guilty of the attempt shall be punished by imprisonment in the state prison for life with the possibility of parole.
“This subdivision shall apply if it is proven that a direct but ineffectual act was committed by one person toward killing another human being and the person committing the act harbored express malice aforethought, namely, a specific intent to unlawfully kill another human being.…” (§ 664, subd. (e), italics added.)
The California Supreme Court has construed section 664, subdivision (e), as requiring the jury to find the defendant had “personal actual or constructive knowledge” that the attempted murder victim was a peace officer engaged in the performance of his or her duties. (Lee, supra, 31 Cal.4th at pp. 622-623, italics added.)
B. Analysis
Defendant contends the court improperly instructed the jury on the elements of the section 664, subdivision (e), special allegation for attempted murder. The court instructed the jury on the definition of aiding and abetting.
“A person may be guilty of a crime in two ways: One, he or she may have directly committed the crime. I will call that person the perpetrator. Two, he or she may have aided and abetted a perpetrator who directly committed the crime.” (Italics added.)
The court incorporated these definitions when it instructed on the elements of the attempted murder special allegation:
“If you find the defendant guilty of attempted murder in Count 2, you must decide whether the People have proved the additional allegation, the attempted murder was directed … at a peace officer performing his duties.
“To prove this allegation, the People must prove that, One, Greg Byerlee was a peace officer [who was] lawfully performing his duties as a peace officer, and; Two, when the perpetrator attempted the murder, the perpetrator knew or reasonably should have known that Greg Byerlee was a peace officer who was performing his duties.” (Italics added.)
Defendant contends, and respondent concedes, the instruction for the attempted murder special allegation was erroneous and incomplete, and the court should have instructed that the special allegation could be found true only if the jury determined the defendant, rather than the perpetrator (Landois), had “personal actual or constructive knowledge” that the attempted murder victim was a peace officer engaged in the performance of his or her duties, as required by section 664, subdivision (e), and Lee.
Respondent asserts the court’s error in defining the elements of the special allegation is necessarily harmless beyond a reasonable doubt because the evidence “clearly established” that defendant knew Byerlee was in the parking lot, Byerlee was the victim of Landois’s act of attempted murder, and defendant had personal knowledge that Byerlee was engaged in the performance of his duties. The court’s failure to properly instruct on an element of a special allegation is reversible error unless it can be shown beyond a reasonable doubt that the error did not contribute to the jury’s verdict. (People v. Sengpadychith (2001) 26 Cal.4th 316, 326; Chapman v. California (1967) 386 U.S. 18, 24.)
There is overwhelming evidence to support defendant’s conviction for the substantive offense of being an aider and abettor to the attempted murder of Officer Byerlee that was actually performed by Landois, since the jury’s determination under the natural and probable consequences doctrine is based upon an objective test. However, the jury is required to find the special allegation true only if it determines that defendant, as an aider and abettor to attempted murder, had “personal actual or constructive knowledge” the specific victim of the attempted murder was a peace officer engaged in the performance of his duties. (Lee, supra, 31 Cal.4th at pp. 622-623.)
As respondent properly concedes, the court’s instructions required the jury to only find that Landois, as the perpetrator, had personal knowledge that the specific victim was a peace officer performing his duties. Such a finding was obvious given Byerlee’s testimony that Landois repeatedly fired the Glock directly at him. However, Landois’s personal knowledge was not required to find the special allegation true as to defendant, and the jury was required to find defendant had such personal knowledge.
If the jury had been properly instructed, we cannot say that the evidence in support of the true finding would have been insufficient as a matter of law. However, the court’s failure to instruct on the crucial subjective element for the special allegation was not harmless beyond a reasonable doubt. As we have discussed in relation to the felony murder, the parking lot was crowded with people who were going to lunch at the various restaurants in the shopping center. There are extremely strong inferences, based upon the undisputed facts, that defendant knew there were one or more law enforcement officers in the parking lot. Lieutenant Williams parked his marked patrol car next to the stolen van while defendant was in the van, and the sequence of events illustrates that defendant lingered in the parking lot and waited for Landois to get into the Buick as Byerlee and his two colleagues walked toward Vons. Section 664, subdivision (e), however, requires defendant to have personal knowledge that Landois was shooting at an officer in the performance of his duties. It is extremely difficult to say that the court’s failure to instruct the jury on the crucial personal knowledge element of the special allegation was harmless beyond a reasonable doubt.
Based on the court’s instructional error, the jury’s true finding on the attempted murder special allegation should be stricken.
DISPOSITION
The jury’s true finding on the attempted murder special allegation is ordered stricken due to instructional error. The trial court’s imposition of the indeterminate term on count 2, attempted murder, life in prison with the possibility of parole, is ordered vacated since it was based on the attempted murder special allegation. If the prosecution elects to retry the special allegation, it must notify the trial court and defense counsel of this election within 60 days after this opinion becomes final. If the prosecution fails to give timely notice or elects not to retry the special allegation, or if retrial results in a finding that the special allegation was not proven, the trial court may impose the appropriate determinate term for attempted murder. The judgment is otherwise affirmed. The trial court shall issue an amended abstract of judgment after the above referenced contingencies have been resolved and forward a copy to the appropriate authorities.
WE CONCUR: Cornell, Acting P.J., Dawson, J.
We also note that at the guilt phase, defendant pursued the theory that Gauger fired the fatal shot even though there was evidence that only one SIG-Arms brand casing, which matched the officers’ service weapons, was found in the parking lot at Byerlee’s location. At the penalty phase, the prosecution introduced evidence that Byerlee, Davis and Gauger used.357 caliber SIG–Arms brand semiautomatic handguns, only one SIG casing was recovered from the parking lot at Byerlee’s location, the bullet that killed Landois was fired from a SIG-brand handgun, and the other bullets and casings retrieved from the scene were not fired from a SIG-brand handgun. When defendant testified at the penalty phase, the prosecutor cross-examined him and obtained the concession that defendant was aware of the prosecution’s ballistics results when he raised the defense theory at the guilt phase.