Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F002C, Ct. No. 05F002B
BLEASE, Acting P. J.
Defendants Steven Allen Jones, Jr. and David Darrao Jones appeal from the judgment of conviction after a jury found them guilty in count one of the first degree murder of John Jarvis (Pen. Code, § 187, subd. (a)), in count two of the attempted murder of Ian Michael Gonzales (664/187, subd. (a)) and in count three of robbery of both men. (§ 211.) The jury found true as to both defendants the special circumstance that the murder was committed in the commission of a robbery (§ 190.2, subd. (a)(17)) and the sentence enhancement that a principal was armed with a firearm. (§ 12022, subd. (a)(1); Counts 1, 2, and 3.) As to Steven, the jury further found the murder and the attempted murder were willful, deliberate and premeditated (§§ 189/664, subd. (a)), that he personally and intentionally discharged a firearm proximately causing great bodily injury or death to Jarvis and Gonzales (§ 12022.53, subd. (d); Counts 1, 2 and 3) and personally inflicted great bodily injury on Jarvis and Gonzales. (§ 12022.7, subd. (a); Counts 2, 3.)
Although defendants have the same family name, they are not related. In the interests of clarity we shall refer to them by their given names. We mean no disrespect.
All further section references are to the Penal Code unless otherwise specified.
Steven was sentenced to prison for life without the possibility of parole, plus 75 years to life. David was sentenced to prison for life without the possibility of parole plus 11 years.
Steven was sentenced to prison for life without the possibility of parole for first degree murder (§§ 187, 190.2, subd. (a)(17)), plus a consecutive life term for the attempted murder (§§ 664/187), and three consecutive terms of 25 years to life, one for the robbery (§ 211), one for the section 12022.53, subdivision (d) enhancement associated with count one and one for the section 12022.53, subdivision (d) enhancement associated with count two. The sentences on the remaining enhancements were stayed.
David was sentenced to prison for life without the possibility of parole for first degree murder (§ 187/190.2, subd. (a)(17)), plus consecutive terms of seven years for attempted murder (§ 187/664, subd. (a)), three years for robbery (§§ 211, subd. (c), 213, subd. (a)(2)), and one year for the arming enhancement on count three. (§ 12022, subd. (a)(1).)
On appeal Steven challenges the sufficiency of the evidence to corroborate the accomplice’s testimony, the admission of expert testimony on DNA database matches, evidence and the instruction on flight, prosecutorial misconduct, incompetence of trial counsel, and imposition of consecutive sentences in violation of Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435].
David challenges the sufficiency of the evidence to support his convictions for felony murder, robbery, attempted murder, and the special circumstance that he was a major participant in the robbery. He also contends the trial court violated section 654 by imposing punishment for robbery and attempted murder.
We find no error with respect to Steven and shall affirm the judgment of conviction in his case.
We agree with David, however, that the trial court erred by sentencing him for both the attempted murder and the robbery. We shall therefore order that the sentences for robbery be stayed. In addition, although not raised by the parties, we shall also stay the attendant armed enhancement and order that the abstract of judgment be modified accordingly. We find no further error and shall affirm the judgment of conviction as modified.
FACTUAL BACKGROUND
In a nutshell, the murder and attempted murder resulted from a drug deal gone bad. The evidence shows that defendant David agreed to buy four pounds of marijuana from John Jarvis and Ian Michael Gonzales for $12,000. Instead, he stole the marijuana from the back of Jarvis’s truck and then jumped into a waiting getaway car occupied by defendant Steven and two other cohorts. Jarvis and Gonzales pursued the getaway car in Jarvis’s truck, repeatedly ramming the car, which eventually spun around and knocked the truck into a ditch. After the truck was immobilized, Steven exited the car and shot the two men, killing Jarvis and wounding Gonzales. As both defendants challenge the sufficiency of the evidence in several respects, we set forth the facts in some detail.
The Prosecution’s Evidence
A. The Trip to Eureka
Leon Flanagan of Richmond met Steven in August or September 2003. Steven was in a rap group and introduced himself to Flanagan as “Steve O.” In late September, the two men spoke about driving to Eureka where a well-known Bay Area rapper was performing and Flanagan was planning to perform at an after-party at Club West. They planned to drive to the concert and Flanagan arranged to use his father’s green Ford Taurus. His friend, James Gordon, agreed to drive because Flanagan did not have a driver’s license.
In the late afternoon on Saturday, November 1, 2003, Flanagan and Gordon drove to Steven’s residence and picked him up along with David, who was also a member of Steven’s rap group. Gordon was driving, Flanagan was sitting in the front passenger seat, and Steven and David were seated in the back seats. By the time they arrived at Club West in Eureka, they were told it was too late to perform, so the foursome stayed awhile and then checked into a motel for the night.
B. The Marijuana Deal
Gonzales lived in Trinity County and grew and sold marijuana. On November 1, he went with some friends to the rap concert in Eureka. The concert ended around midnight and Gonzales and his friends decided to go to the after-party at Club West. While they were standing in line smoking marijuana, they met a group of three or four African-American men from the Bay Area who were interested in buying about five pounds of marijuana for approximately $15,000. One of them was David, to whom Gonzales spoke to for about an hour outside the club. Before leaving, Gonzales told the men to contact him at his home around noon the following day.
The next morning on November 2, 2003, Gonzales had several telephone conversations with Jarvis who needed money and wanted to sell some marijuana. It was agreed that Jarvis would sell David four pounds of marijuana and that he would receive $11,000 and Gonzales would receive $1,000 or $1,200. The Bay Area men telephoned Gonzales around 10:30 or 11:00 a.m. and told him they had the money, so he arranged to meet them at a rest stop on Highway 299 near Salyer.
Jarvis and his girlfriend, Devon Owen, picked Gonzales up in Jarvis’s pick-up truck and headed to the rest area to meet the buyers. The marijuana was in a large garbage bag in the back of Jarvis’s truck. Because Jarvis and Gonzales did not know the buyers, it was decided that Gonzales’s father, William Thurman, would drive separately to the rest area to monitor the sale. Thurman took a .30-30 deer rifle with him and he and Gonzales took radios to communicate. Thurman arrived at the rest stop, parked his Blazer, and busied himself by making minor repairs on the vehicle while he waited for Jarvis and Gonzales to arrive.
Meanwhile, after stopping at a gas station to buy gas, defendants and their two friends decided to take Highway 299 so they could drive Gordon to Vallejo where he lived. They drove for awhile and then stopped at a rest stop in Salyer where they all used the restroom and the telephone. Flanagan wanted to leave but Steven indicated that he was waiting for someone to arrive so he could buy some marijuana. After waiting a few minutes, they started to leave but then saw Gonzales arrive in Jarvis’s truck. The two vehicles pulled into adjacent parking spaces, although Gordon backed the Taurus into the space. Jarvis and Owen walked over to the restrooms while Gonzales spoke with David, showed him the marijuana, and smoked some of it with him. David told Gonzales he wanted to go to another location to conduct the transaction because they had been at the rest area too long and Gonzales suggested a secluded road a short distance away.
Gonzales walked over to Jarvis and Owen to tell them about the plan and while they were talking, Owen saw David get out of the Taurus and hesitate. Then she heard several voices coming from the Taurus yelling “Just do it. Go get it. Just do it. Just do. Get it.” David walked around the back of the car, grabbed the bag of marijuana from the back of Jarvis’s truck, ran back to the Taurus, and entered the passenger side of the car.
Meanwhile, Jarvis and Gonzales ran toward the Taurus, which had began to move. Jarvis grabbed a hold of David’s shirt trying to retrieve the marijuana and grabbed onto the door frame as David jumped into the moving car. Hoping to stop the car, Gonzales stepped in the path of the Taurus but moved aside when it became apparent the car was not going to stop. As the Taurus sped up, Jarvis lost his footing and was dragged 10 to 12 feet until the door closed on his hand and he let go and rolled away. The Taurus left the rest area and Jarvis and Gonzales ran to the pickup truck to pursue them and Thurman followed them.
C. The Vehicle Chase
The Taurus and the pick-up truck drove east on Highway 299 and when Jarvis caught up with the Taurus, he rammed the back of it several times hoping to stop the car and retrieve his marijuana. Gordon continued driving and at Steven’s direction, turned onto Denny Road where Gonzales signaled them to pull over but Gordon proceeded across a bridge as Jarvis continued ramming the back of the car.
The vehicles drove down Denny Road until they came to a hairpin turn. Steven was holding a gun out the window and had been firing it at Jarvis’s truck. The truck rammed the Taurus again, which caused the Taurus to spin around and knock the truck into a ditch. After pulling out of the ditch and hitting the Taurus again, the truck fell back into the ditch and was immobilized. The Taurus stalled and came to a stop about 10 or 12 feet past the truck. While Gordon attempted to restart the car, Steven got out, and retrieved something from the trunk. He then walked towards the disabled truck, where holding a gun double-handed, fired five shots into the truck, paused and fired another series of shots. He walked briskly back to the car and said “Get me out of here. Get me out of here. Please get me out of here” and Gordon drove back towards the bridge.
One eyewitness testified that he saw someone holding a pistol outside the rear driver’s side window of the Taurus as the Taurus and the truck went by. Another eyewitness testified that she saw an African-American man holding a gun as he exited the back seat of the Taurus on the driver’s side.
Gonzales was hit twice in the back but was able to check on Jarvis who was losing consciousness and died within minutes from wounds caused by a single bullet.
Meanwhile, Gonzales radioed his father and told him Jarvis had been killed. He warned Thurman that the Taurus was heading his way. Thurman stopped his Blazer on the other side of the bridge and blocked the road. As the Taurus headed toward him, Steven waived a pistol at Thurman who stood behind the door of his vehicle and fired a bullet through the radiator of the Taurus.
Gordon stopped the car and refused to drive any more, so Steven changed places with him, tossing a revolver into the river before getting into the driver’s seat. Steven then turned the car around and sped back up Denny Road passing Jarvis’s truck and the assembly of people who had gathered to assist Jarvis. About one or two miles up the road, one of the tires blew out and Steven pulled the Taurus into a small turn out on the side of the road.
When Flanagan walked away from the car to make a call from his cell phone, David and Steven pushed the Taurus off a steep embankment and then fled taking the bag of marijuana, which had been in the back seat in their possession. Gordon and Flanagan wandered around the area until 5:40 p.m. when they were picked up and arrested by Trinity County Sheriff’s deputies about one mile from the crime scene.
D. The Investigation
A criminalist processed the Taurus for evidence. He collected clothing, cigarette butts, and a sample of fabric from the back seat closer to the driver’s side where he observed a red stain.
A few days after the crime, the Trinity County Sheriff’s Department recovered the gun that Steven had thrown into the river. It was a .38 caliber Smith and Wesson revolver that held six shells and contained five expended cartridges and one empty cylinder. The ballistic evidence showed the bullet recovered from Jarvis’s body was a .38 caliber bullet consistent with the revolver recovered from the river but results from a comparison of the bullet and the weapon were not conclusive.
During a police interview on November 10, 2003, Gonzales identified Gordon and Flanagan from photographic lineups as two of the men in the Taurus.
By the beginning of December, the Sheriff’s Department had Steven’s and David’s first names but were unable to locate them over the next few months. On January 8, 2004, a Richmond police officer spotted David seated in a vehicle. After detaining and searching him, he found 18 clear plastic baggies of marijuana in David’s possession. The next day, when Detective Nawrock arrived to take David into custody and explained why he was there, David put his head down and cried.
On July 16, 2004, Flanagan spoke with Detective Nawrock and the prosecuting attorney. At that time, Flanagan identified Steven and David from photographic lineups and told them David had taken the marijuana and Steven was the shooter.
In 2004, Gordon was tried separately and convicted, and Flanagan was charged jointly with Steven and David. On May 3, 2005, Flanagan entered a negotiated plea in which he agreed to plead guilty to voluntary manslaughter and possession of a weapon and receive a sentence of 10 years imprisonment in exchange for his truthful testimony at Steven’s and David’s trial.
DNA profiles were developed from the items collected from the Taurus, including the red stain on fabric taken from the back seat, a baseball cap, and a head wrap, and were found to match Steven’s DNA profile.
The DNA profile from the blood stain matched Steven’s DNA profile along 12 loci and the probability that a random unrelated individual would by chance possess this profile at 12 loci was estimated to occur in approximately one in 5.5 quadrillion African-Americans, Steven’s ethnic group. The DNA profile from the cap and head wrap matched Steven’s DNA profile along 8 loci and the random chance of such a match was approximately one in 770 billion African-Americans.
The Trinity County Sheriff’s deputies were unable to locate Steven until May 2004, when Detective Nawrock received information from the police in Auburn, New York that Steven had been in New York using the name Michael Dennis Griffith. Later in the month, Nawrock was advised that Michael Dennis Griffith had had contact with the Nevada Police Department, whereupon Nawrock travelled to Nevada and took Steven into custody.
The Defense
Neither defendant testified but both called witnesses in support of alibi defenses.
Steven’s evidence showed that he signed in for a court-ordered domestic violence and anger management counseling group in El Cerrito at 6:00 p.m. on November 3, 2003, the day after the shooting. He also presented evidence that no live performances had been planned for the Club West after-party.
Steven Raines, who was in jail with Steven and Flanagan in Trinity County, testified that Flanagan had told him Steven was being set up to take the fall for the crimes although he had not been present during the crimes.
David’s evidence showed that on November 2, 2003, he picked up his son from his mother’s home in Fairfield, took him to lunch, and brought him back around 2:00 p.m. Afterwards, he attended a barbeque in Richmond. He also presented the testimony of a forensic psychiatrist regarding factors that can affect memory and eyewitness identification.
DISCUSSION
Steven Jones’s Appeal
I.
There Was Sufficient Evidence To Corroborate the Accomplice’s Testimony
Steven contends the evidence was insufficient to corroborate the testimony of the accomplice Leon Flanagan. He argues the case against him was weak, no other witness identified him as a participant in the crime, and the DNA evidence and the evidence of flight were insufficient corroboration. Respondent argues there was a great deal of evidence that corroborated many aspects of Flanagan’s testimony and from which the jury could find he was truthful. We agree with respondent.
Section 1111 provides that “[a] conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. [¶] An accomplice is hereby defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.”
“To corroborate the testimony of an accomplice, the prosecution must present ‘independent evidence,’ that is, evidence that ‘tends to connect the defendant with the crime charged’ without aid or assistance from the accomplice's testimony. [Citation.] Corroborating evidence is sufficient if it tends to implicate the defendant and thus relates to some act or fact that is an element of the crime. [Citations.] ‘“[T]he corroborative evidence may be slight and entitled to little consideration when standing alone.” [Citation.]’” (People v. Avila (2006) 38 Cal.4th 491, 562-563.) It is enough if the corroborative evidence tends to connect the defendant with the crime in such a way as to reasonably satisfy a jury that the accomplice is telling the truth. (People v. Sanders (1995) 11 Cal.4th 475, 535.)
Evidence found sufficient to corroborate an accomplice’s testimony includes evidence warranting an inference of a consciousness of guilt, including the accused’s attempts to conceal his involvement in the crime (People v. Avila, supra, 38 Cal.4th at p. 563) or his identity or whereabouts (People v. Perry (1972) 7 Cal.3d 756, 772) and evidence of flight (People v. Garrison (1989) 47 Cal.3d 746, 773), testimony that establishes that the defendant had a motive and opportunity to commit the crime and testimony that places him at the scene of the crime and discredits his alibi. (People v. Vu (2006) 143 Cal.App.4th 1009, 1021-1024.)
“The trier of fact's determination on the issue of corroboration is binding on the reviewing court unless the corroborating evidence should not have been admitted or does not reasonably tend to connect the defendant with the commission of the crime.” (People v. McDermott (2002) 28 Cal.4th 946, 986.)
Flanagan testified that he met Steven in August 2003 and that over the course of a month, the two men had numerous telephone conversations in which they planned the trip to Eureka. Flanagan arranged for the use of his father’s green Ford Taurus and on November 1, 2003, he, Gordon, Steven and David drove to Eureka in the Taurus. Gordon drove, Flanagan sat in the front passenger seat where he remained during the whole series of criminal events, and Steven and David sat in the back seat.
Flanagan gave an account of the trip to Eureka, their late arrival at Club West and their stay at a motel for the night. He described the events that occurred the next morning when they left the motel to go home, their stop at a gas station where they purchased a map, the meeting at the rest area, the theft, the chase, the shooting, and the escape. He testified that David took the marijuana from Jarvis’s truck, that he saw Steven exit the Taurus and then he heard five gunshots and saw Steven return to the car, telling them to get him out of there.
Flanagan testified that Steven exited the car and went to the back of the car where the trunk had popped open. Flanagan heard five gunshots and then saw Steven get back into the car. Later, when they were driving towards Thurman’s Blazer, Flanagan saw Steven shoot a gun out the back window on the driver’s side. He had not actually seen the gun before that.
The trial court instructed the jury that Flanagan was an accomplice as a matter of law.
Defendant argues Flanagan’s testimony was not sufficiently corroborated because no independent witness identified him as a participant in the crime. While he is correct that there was no independent eyewitness testimony identifying him as the shooter, he ignores the abundant circumstantial evidence that connected him to the robbery and the murder and established that he was the shooter.
More specifically, Lyntasha Barrett testified that she identified Steven and David from a photographic lineup and told the detective she was “positive” she saw these two men at Club West in Eureka the night of the after-party following the rap concert on November 1, 2003. Flanagan’s cell phone and Steven’s text messenger device, which were found in the abandoned Taurus, revealed that 10 or 11 phone calls or messages had been exchanged between the two men between October 30 and November 1, 2003, as Flanagan testified. Several other items found in the back seat of the Taurus, including a baseball cap, a head wrap, and a blood stain on the seat, bore Steven’s DNA, and expert testimony established that neither Jarvis or any of the other three occupants in the Taurus were the source of the DNA on those items.
Gonzales testified that when the Taurus pulled into the rest stop, there were four men in the vehicle, that David alighted from the back seat on the passenger side to speak with him, and at that time, he (Gonzales) recognized David as the man he had spoken to the night before at Club West. The testimony of Gonzales and Owen further established that after stealing the marijuana, David climbed into the back passenger side of the Taurus, where he struggled with Jarvis who was attempting to recover the marijuana.
Residents who witnessed the end of the chase and the shooting testified that the passenger in the back seat behind the driver was firing at the truck during the chase and that when the Taurus stopped, a young black man got out of the back seat on the driver’s side of the Taurus and fired five gunshots at the truck and then returned to the car. Afterwards, when the Taurus was heading towards Thurman on the bridge, Thurman saw the passenger who was seated behind the driver waving a gun at him.
After the crime, law enforcement officers were unable to find Steven for more than six months despite extensive efforts and at the end of that period, they received information he was in New York and then in Nevada using the name Michael Dennis Griffith.
In sum, there was independent evidence that placed Steven in Eureka the night before the murder and established that during the events leading up to and immediately following the shooting, it was Steven who was sitting in the back seat behind the driver, and therefore it was Steven who was firing the gun during the chase and who shot the two victims. Additionally, evidence indicating that after the crime, Steven fled California using a false name to conceal his whereabouts and his identity and presented a false alibi defense at trial, raised strong inferences of a consciousness of guilt.
Defendant argues however that the DNA evidence was insufficient corroboration. He relies on People v. Robinson (1964) 61 Cal.2d 373, 399, which holds that the presence of the defendant’s fingerprints in the getaway car was insufficient to corroborate the accomplice’s testimony. The court reasoned that the defendant’s fingerprints “merely placed [him] in the car at some time prior to the time the car was discovered.” (Robinson, supra, 61 Cal.2d at p. 400.) However, the defendant and the car’s owner were frequent visitors to the accomplice’s apartment, and it was just as likely he had been in the car on other occasions as it was at the time of the crime. (Id. at p. 398.) Other “fingerprint only” cases cited by defendant were drug cases that required proof the defendant had exhibited dominion and control over a particular item and the court concluded that evidence of the defendant’s fingerprint on a container without more is insufficient to prove the element of constructive possession. (See People v. Jenkins (1979) 91 Cal.App.3d 579, 585; People v. Johnson (1984) 158 Cal.App.3d 850, 855-856; see also Birt v. Superior Court (1973) 34 Cal.App.3d 934, 936.)
By contrast, there was no innocent explanation for the presence of Steven’s DNA in the Taurus. The unrefuted evidence shows the car belonged to Flanagan’s father and there was no evidence Steven knew Flanagan’s father or had any reason to be in the Taurus other than during the trip to Eureka. The evidence placing Steven in Eureka the night before the crimes coupled with the number and type of personal items found in the car belonging to Steven (a hat, a head wrap, and an electronic text message device) raises a strong inference of his very recent presence in the car. This inference is further strengthened by evidence that discredited his alibi defense.
Last, Steven argues that evidence of flight could not be considered corroborating evidence because the only evidence he was one of the men who left the scene immediately after the crime was that provided by Flanagan. He is wrong. As we have outlined above, independent evidence established that there were four men in the Taurus at the time of the shooting, that Steven was one of them, and that after firing the gun at the truck, the shooter returned to the Taurus, which immediately left the scene with all four men inside. Accordingly, we find there is sufficient independent corroborating evidence.
II.
Evidence of Matches in the DNA Data Bank
Steven contends the trial court erred by admitting and failing to weigh the prejudicial effect of evidence that his DNA profile was found in the California and national felony data banks. He argues that this evidence was more prejudicial than probative because it informed the jury he had a prior felony record and was unnecessary to prove the items in the Taurus belonged to him. Respondent counters that the court did not abuse its discretion in admitting the evidence. We agree with respondent.
A. The Evidence
Nicole Inacio, a senior criminalist with the Department of Justice DNA laboratory in Richmond, testified that on March 19, 2004, she received the blood stain from the back seat of the Taurus, a cigarette butt, and blood samples from David, Gordon, Flanagan, and Jarvis. Steven had not yet been found. She created a DNA profile from the blood stain, determined there was a single source for that stain, and excluded the four men for whom she had blood samples, finding none of them was the source of the stain. She testified that in that situation, as is customary, she uploaded the “foreign” profile to the national DNA data base known as the Combined DNA Indexing System (CODIS).
She compared the blood stain profile to DNA profiles in the state and federal systems, which include the profiles of prisoners and “forensic unknowns.” The profile matched a forensic unknown that had been uploaded by Contra Costa County and one by Las Vegas Metropolitan Police Department. Inacio contacted the respective laboratories to find out if a name or other information was associated with the matching unknown profiles and both agencies advised her that Steven was associated with their forensic unknown profiles. To confirm the match, Inacio needed a reference sample or cheek swab from Steven. She obtained a blood sample from Contra Costa County, but by this time, Steven was in custody, and on November 1, 2004, she received a fresh blood sample from him.
Steven’s counsel objected to the admission of the testimony the DNA profile from the blood stain matched the DNA profiles created in Contra Costa County and Las Vegas on the ground it was more prejudicial than probative under Evidence Code section 352. The prosecutor argued the evidence was relevant to show the investigative and forensic process used to locate Steven and to connect him to the crime scene. The court denied the request, finding the evidence also demonstrates the credibility of DNA evidence identifying Steven.
B. Analysis
The trial court has wide discretion to admit or exclude expert testimony and its ruling will not be overturned on appeal in the absence of a clear abuse of that discretion. (People v. Valdez (1997) 58 Cal.App.4th 494, 506.) To be admissible, expert testimony must relate to a subject sufficiently beyond common experience so that the opinion of the expert would assist the trier of fact and must be based on matter that is reasonably relied upon by the expert in forming his or her opinion on the subject to which his or her testimony relates. (Evid. Code, § 801, subd. (a); People v. Torres (1995) 33 Cal.App.4th 37, 45.) The trial court also has discretion to weigh the probative value of inadmissible evidence relied upon by an expert witness against the risk the jury might improperly consider it as independent proof of the facts relied upon by the expert. (People v. Gardeley (1996) 14 Cal.4th 605, 619.)
We first reject defendant’s argument that the trial court failed to weigh the probative value of the evidence against its prejudicial effect. The trial court “‘“need not expressly weigh prejudice against probative value -- or even expressly state that he has done so.”’” (People v. Crittenden (1994) 9 Cal.4th 83, 135.) Here, defense counsel made it clear the basis for his objection by argument and by express citation to Evidence Code section 352, and the prosecutor’s arguments also addressed the factors to be addressed when ruling on an objection made under Evidence Code section 352. The trial court’s response in rejecting the objection also reflects that it understood the ground for the objection but agreed with the prosecutor and offered an additional ground of relevancy. Thus, the record affirmatively demonstrates the trial court conducted an analysis under Evidence Code section 352. (People v. Crittenden, supra, 9 Cal.4th at p. 136.)
We also find there was no abuse of discretion because the probative value of the evidence outweighed its prejudicial effect. Evidence Code section 352 grants the trial court broad discretion to assess whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion, or consumption of time. We will not disturb the exercise of that discretion except on a showing it was exercised in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)
As the prosecutor argued, the evidence was highly probative to prove the investigative and forensic process used to connect Steven to the crime. Nor was it unduly prejudicial. Inacio testified that the state and federal DNA databases she used contained the DNA profiles of prisoners as well as “forensic unknowns.” Thus she did not testify that Steven’s profile was in a database as a result of an arrest or conviction and no specific information or details were elicited. To the extent her testimony had any prejudicial impact, it was minimized by defendant’s own alibi evidence, which showed he was enrolled in a court-ordered domestic violence and anger-management class. (People v. Watson (1956) 46 Cal.2d 818, 835.) Accordingly, we find no prejudicial abuse of discretion.
III.
A Flight Instruction Was Properly Given
Steven contends there was insufficient evidence to support a flight instruction because the evidence did not show he fled immediately following the crime or after having been accused of the crime. Respondent argues that the evidence required giving a flight instruction. Respondent is correct.
Steven’s defense counsel objected to the giving of CALJIC No. 2.52, the standard jury instruction on evidence of flight. He argued that it should not be given because the evidence that Steven had been in New York and Nevada was admitted for a limited non-hearsay purpose and therefore could not be considered evidence of flight. The prosecutor argued the instruction should be given because defendants fled the scene of the crime, dumped the car, and took off. The trial court agreed and ruled that the instruction would be given on the “flight of a person immediately after the commission of a crime” and that it would strike out “attempted escape from custody.”
The trial court instructed the jury in accordance with CALJIC No. 2.52 as follows: “The flight of a person immediately after the commission of a crime, or after he is accused of a crime, is not sufficient by itself to establish his guilt, but is a fact which, if proved, may be considered by you in light of all other proved facts in deciding whether a defendant is guilty or not guilty. The weight to which this circumstance is entitled is a matter for you to decide.”
“Whenever the prosecution relies on evidence of flight as tending to show a defendant's guilt, the trial court must instruct the jury” in the language of section 1127c. (People v. Jurado (2006) 38 Cal.4th 72, 126.) CALJIC No. 2.52 is derived from and tracks the language of section 1127c. (People v. Albilez (2007) 41 Cal.4th 472, 521.) “In this context, flight ‘requires neither the physical act of running nor the reaching of a faraway haven’ but it does require ‘a purpose to avoid being observed or arrested.’ [Citations.]” (People v. Jurado, supra, 38 Cal.4th at p. 126.) Thus, CALJIC No. 2.52 should be given when the evidence shows the accused departed the crime scene under circumstances suggesting his departure was motivated by a consciousness of guilt, such as leaving the crime scene in haste. (People v. Turner (1990) 50 Cal.3d 668, 695; People v. Albilez, supra, 41 Cal.4th at p. 568.)
Section 1127c provides: “In any criminal trial or proceeding where evidence of flight of a defendant is relied upon as tending to show guilt, the court shall instruct the jury substantially as follows:
Here the evidence showed Steven fled the crime scene immediately after shooting Jarvis and Gonzales and did so under circumstances suggesting a consciousness of guilt. After firing five gunshots into Jarvis’s truck, he briskly returned to the Taurus, telling his confederates, “Get me out of here. Get me out of here. Please get me out of here.” Gordon immediately drove away from the scene of the shooting. After Gordon refused to drive any further, Steven took the wheel and sped past the crime scene in the other direction. After one of the tires on the Taurus went flat, he pulled into a small turn-out in the road, where he and David dumped the Taurus over an embankment, and fled with the marijuana. He had left the crime scene as quickly as possible and by his own words evinced an intent to evade law enforcement officials. It was therefore proper for the trial court to give the flight instruction.
IV.
The Prosecution Did Not Present Irreconcilable Factual Theories that Resulted in the Denial of Process
Relying on In re Sakarias (2005) 35 Cal.4th 140, Steven contends he was denied due process when the prosecution relied on factually inconsistent theories to convict him and James Gordon by presenting evidence at Gordon’s trial that Gordon was the shooter while presenting evidence at Steven’s trial that Steven was the shooter.
Respondent argues Sakarias is not dispositive because the prosecution did not manipulate the evidence to obtain a false conviction and, because the jury in Gordon’s case found he was not the shooter, the prosecution did not obtain inconsistent verdicts based upon irreconcilable factual findings. We agree with respondent.
A. Background
On July 16, 2004, Detective Nawrock and the prosecuting attorney met with Flanagan at which time he identified Steven as the shooter.
James Gordon was tried in a separate trial where the prosecution presented evidence that he was the shooter. This evidence was provided by Michael Waxler who testified that while he and Gordon were in jail, Gordon admitted that he “shot the fucker.” In defense, Gordon testified it was Steven who shot Jarvis and Gonzales. Although the prosecutor argued the evidence established Gordon was the shooter, the jury returned a verdict finding he was not the shooter.
On May 4, 2005, after Gordon’s trial, Flanagan signed a negotiated plea agreement in exchange for his testimony at Steven’s and David’s trial.
Steven’s motion to exclude Flanagan’s testimony under In re Sakarias, supra, 35 Cal.4th 140 was denied. The trial judge reasoned that the evidence allowed for the possibility of two guns and Gordon’s jury specifically found untrue the allegation that he was the shooter.
B. Analysis
In Sakarias, supra, 35 Cal.4th 140, the California Supreme Court held that “the People's use of irreconcilable theories of guilt or culpability, unjustified by a good faith justification for the inconsistency, is fundamentally unfair, for it necessarily creates the potential for — and, where prejudicial, actually achieves — a false conviction or increased punishment on a false factual basis for one of the accused. ‘The criminal trial should be viewed not as an adversarial sporting contest, but as a quest for truth.’” (Id. at pp. 159-160.) However, “a significant change in the available evidence might, under some circumstances, warrant the use of an inconsistent prosecutorial theory in a subsequent trial.” (Sakarias, supra, 35 Cal.4th at p. 162, fn. omitted.)
The two petitioners in Sakarias had been convicted in separate trials of first degree murder with special circumstance and sentenced to death. After consolidating their two petitions for writ of habeas corpus, the Supreme Court appointed a referee to hear evidence and make factual findings, and the referee found the prosecutor’s use of divergent factual theories was intentional (35 Cal.4th at p. 151) and that he deliberately manipulated the evidence at the second trial (Sakarias’s trial) to conform with his inconsistent theory. (Id. at pp. 153-154.) The Supreme Court concluded that “where, as here, the available evidence points clearly to the truth of one theory and the falsity of the other, only the defendant against whom the false theory was used can show constitutionally significant prejudice. For that reason, we conclude that Sakarias, but not Waidla, is entitled to relief on his petition.” (Id. at p. 156.)
Sakarias does not compel the same conclusion where as here the prosecutor did not manipulate the evidence to obtain a false verdict based upon a mutually inconsistent theory. Here the prosecutor presented previously unavailable evidence that was consistent with the verdict in Gordon’s case. As the trial court found, and unlike in Sakarias where there was only one weapon that inflicted the fatal wounds, here the evidence supported an inference there were two guns and possibly two shooters. However, even if we assume the prosecution presented factually inconsistent theories at the two trials, since the verdicts in the two cases were not inconsistent because the Gordon jury found he was not the shooter, it cannot be said one verdict is necessarily false. (Sakarias, supra, 35 Cal.4th at pp. 159-160.)
Furthermore, unlike in Sakarias, supra, 35 Cal.4th 140, there are no factual findings nor is there any evidence to support a conclusion that the prosecutor acted in bad faith and without justification for presenting inconsistent evidence. Rather, we find there was “a significant change in the available evidence . . . .” (Id. at p. 162.) Flanagan’s testimony identifying Steven as the shooter was unavailable at Gordon’s trial because it took place prior to the time Flanagan entered his guilty plea. As a result, he could not be called to testify. However, after Gordon was convicted, Flanagan entered his guilty plea and was available to testify. Since his testimony in Steven’s trial was consistent with his original statements to police as well as with the Gordon verdict, it cannot be said the prosecutor acted in bad faith by presenting Flanagan’s testimony. Accordingly, we find no due process violation.
V.
Governmental Intimidation of Defense Witness Steven Raines
Steven contends the government engaged in prejudicial misconduct by intimidating defense witness Steven Raines with threats that if he lied, he would go to prison. Respondent argues this claim does not withstand scrutiny. We agree with respondent.
A. Background
According to Art Wooden, Steven’s defense investigator, during the trial, Steven Raines approached him at the courthouse and explained that he had been incarcerated with Flanagan at the Trinity County Jail for over three months and heard Flanagan say numerous times that Steven was not present during the murder of John Jarvis. Flanagan told Raines he was placing the blame on Steven in order to get a deal.
Shortly afterwards, the defense served Raines with a subpoena and met with him at which time Raines was cooperative and willing to testify on Steven’s behalf. Detectives Nawrock and Langston visited Raines the same day and he told them he did not want to talk to them, he did not want to get involved, and he did not plan to testify.
During presentation of Steven’s defense, defense counsel advised the court that his investigator had just told him that Raines was present but was afraid to testify “after having been visited by two police officers and [the prosecutor] over the weekend, and he may be refusing to testify.” The prosecutor clarified that he had not visited Raines at all.
Raines testified outside the presence of the jury that he did not want to testify because he had “changed [his] opinion.” When defense counsel asked whether the detectives had “in any fashion contribute[d] to your change of heart in regards to testimony?” he replied, “No. It’s just -- I have a two-year-old son that I would rather be around with than be doing all this.” When asked if that was the only reason he was reluctant to testify, he responded, “[y]es. I don’t want to testify.”
On cross-examination, the prosecutor asked Raines, “Did they [the detectives] scare you on Friday?” and Raines said, “Not really. They were nice.” When the prosecutor asked “They didn’t do anything to intimidate you?” Raines said, “No.” The prosecutor also asked Raines whether the detectives discussed the subject of “perjury” with him” to which Raines replied, “Yes, They said, ‘if you falsely testify, then you will go to a facility area, prison.’”
On redirect, Raines clarified that the detectives did not discuss perjury with him until after he had told them he did not want to talk or be involved. He added “I’m pretty sure they were doing their job.” Raines also added that “if you’re asking the question, did they peer pressure me? Did they pinch and poke an pinch and poke at me about it? No, they didn’t.” He explained that he told the detectives that he had nothing to say and they said “so that’s what your statement is?” When defense counsel asked Raines if he lied to him on Friday, Raines stated he did not want to talk to him but did so because the investigator was persistent and Raines just wanted to get him off his back. After being ordered to testify fully, Raines testified consistent with his prior statements to the defense.
When defense counsel called Raines as a defense witness he testified that while he was in the Trinity County Jail, he shared a pod with Flanagan and Flanagan told him three or four times that Steven was not at the scene of the crime and that Steven was the fall guy.
B. Analysis
“A defendant’s constitutional right to compulsory process is violated when the government interferes with the exercise of his right to present witnesses on his own behalf. [Citations.] [¶] Governmental interference violative of a defendant's compulsory-process right includes, of course, the intimidation of defense witnesses by the prosecution. [Citations.] [¶] The forms that such prosecutorial misconduct may take are many and varied. They include, for example, statements to defense witnesses to the effect that they would be prosecuted for any crimes they reveal or commit in the course of their testimony. [Citations.]” (In re Martin (1987) 44 Cal.3d 1, 30-31, fn. omitted.) “Threatening a defense witness with a perjury prosecution also constitutes prosecutorial misconduct that violates a defendant's constitutional rights.” (People v. Hill (1998) 17 Cal.4th 800, 835.)
To establish a violation of the constitutional right to compulsory-process, the defendant must demonstrate misconduct, interference, and materiality. (In re Martin, supra, 44 Cal.3d at pp. 31-32.) The defendant need not show the governmental agent acted in bad faith or with improper motives, only “that the agent engaged in activity that was wholly unnecessary to the proper performance of his duties and of such a character as ‘to transform [a defense witness] from a willing witness to one who would refuse to testify . . . .’” (Ibid., quoting United States v. Smith (D.C. Cir. 1973) 478 F.2d 976, 979.) To establish interference, the defendant must demonstrate a causal link between the misconduct and his inability to present witnesses on his own behalf. (In re Martin, supra, 44 Cal.3d at p. 31.) To establish the element of materiality, the defendant must show a reasonable probability that the witness could have given testimony that would have been material and favorable. (Id. at p. 32.)
If the witness eventually testifies for the defense so that the so-called intimidation failed to dissuade the witness from testifying, the causal link cannot be established. (See People v. Hill, supra, 17 Cal.4th at p. 835 [characterizing the deficiency as a lack of prejudice].)
Moreover, the “circumstance that a witness is reluctant to assist one side or the other of a criminal prosecution, or tells different stories to different investigators, is . . . far from unusual and does not, in itself, support a claim that the prosecution interfered with a defendant's right of compulsory process . . . .” (People v. Coffman (2004) 34 Cal.4th 1, 52.)
We find no prosecutorial misconduct violative of Steven’s right to compulsory process. Raines expressly denied being intimidated or pressured, and testified that he had changed his mind about testifying for the defense before the detectives visited him. If anything, he was annoyed with the defense team, who he testified had “suckered me into it.” Nor can Steven show a causal link or prejudice because Raines testified for the defense consistent with his statements to the defense investigator. The record does not reflect that he was intimidated in any way. Accordingly, we find no misconduct.
The record also shows the detectives did nothing improper. Although they told Raines that if he falsely testified, he would go to prison, law enforcement officers may “advise prospective witnesses of the consequence of perjured testimony, but the admonitions must not be emphasized to the point of threatening or intimidating the witness into a posture of refusing to testify.” (People v. Bryant (1984) 157 Cal.App.3d 582, 592-593.) To show error, the defendant must demonstrate that the admonition was threatening and that the authorities employed coercive language, which indicated their expectation of perjury. (Ibid.) No such language was described here.
VI.
The Prosecutor Did Not Commit Misconduct on Cross-Examination
Steven contends the prosecutor committed misconduct on cross-examination by asking defense witness Tabb, the domestic violence program facilitator, whether he was aware Steven was in custody in Los Angeles on one of the days Steven’s signature appears on a sign-in list for the domestic violence group meeting in Richmond. Counsel objected that there was no evidence Steven had been in custody in Los Angeles on that date. The court allowed the question and after a bench conference, the prosecutor changed his examination to a different topic.
Respondent argues Steven forfeited this claim by failing to raise a timely objection on the specific grounds of misconduct, no misconduct appears on the record, and any error was harmless. We find the claim is forfeited.
To establish prosecutorial misconduct, defendant must first make a timely objection on the grounds of prosecutorial misconduct, setting forth the specific basis for the misconduct. (People v. Bolden (2002) 29 Cal.4th 515, 564.) In particular, defendant must show the defense objected at trial on the ground the prosecutor lacked a good faith belief in the facts underlying the question, and that the prosecutor did not have evidence to prove those facts. (Ibid.) Objecting on the ground the question assumes facts not in evidence instead is insufficient to preserve the claim for appellate review because that objection does not result in an adequate record to resolve the claim of misconduct. (Ibid.)
Steven failed to object on the specific grounds of prosecutorial misconduct, and there is nothing in the record to show the prosecutor was asked whether he had a good faith belief Steven was in custody on October 20, 2003, and whether he had evidence to prove it. Because this claim was not properly raised to perfect the record for appellate review, we find this claim has been forfeited.
VII.
Ineffective Assistance of Counsel
At James Gordon’s separate trial, Michael Waxler testified that Gordon had admitted to him that he shot Jarvis. At Steven’s trial below, Steven’s counsel proposed to call Waxler as a witness, or in the event he was unavailable, he sought to introduce Waxler’s prior testimony. Counsel argued that Gordon’s hearsay statement to Waxler was admissible as a declaration against penal interests, but that any other part of Gordon’s statement to Waxler was inadmissible. The prosecutor argued that if Waxler’s live or prior testimony was admitted, the People should be allowed to impeach his testimony by introducing Gordon’s prior trial testimony identifying Steven as the shooter.
The court found Gordon was unavailable to testify as a witness in this case.
Because Waxler had not appeared as scheduled, there was a great deal of discussion about whether his prior testimony could be introduced. The trial court ruled as follows: “Since this morning I did look at [Evidence Code sections] 356 and 1202 again, my ruling will be that Mr. Waxler testifies. Or if his statement comes in by way of his transcript from the prior hearing, I will allow the People to bring in Mr. Gordon’s testimony and each and every aspect that denies or contradicts what Mr. Waxler stated Mr. Gordon told him. And that will include, for impeachment purposes, the allegation by Mr. Gordon that Steve O. was the shooter, because that is inconsistent with what was stated on previous occasions.” (Italics added.)
Evidence Code section 356 states: “Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party; when a letter is read, the answer may be given; and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence.”
Defense counsel told the court that in light of its ruling he would not call Waxler as a witness. Shortly thereafter, Waxler appeared in court and was immediately released.
On appeal, Steven claims he was denied the effective assistance of counsel because counsel failed to object to the admission of James Gordon’s prior testimony as inadmissible hearsay under Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177] (Crawford) and that this failure resulted in counsel’s decision not to call Waxler as a witness. Respondent argues Steven cannot show deficient performance or prejudice.
Steven’s claim fails for lack of prejudice because the record establishes that counsel’s failure to raise a Crawford objection had no bearing on his decision not to call Waxler as a witness.
To establish a denial of his right to the effective assistance of counsel, defendant must establish that counsel’s performance was deficient and that he was prejudiced thereby. (Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693] (Strickland).) To prove the first prong, Steven must prove counsel’s “representation fell below an objective standard of reasonableness. . . . [¶] . . . under prevailing professional norms.” (Strickland, supra, 466 U.S. at pp. 687-688 [80 L.Ed.2d at pp. 693-694].) To demonstrate the prejudice prong, Steven must show “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Id. at p. 694 [at p. 698].)
In considering this claim, we “need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed.” (Strickland, supra, 466 U.S. at p. 697 [80 L.Ed.2d at p. 699].)
Steven argues that if counsel had objected to the proposed evidence of Gordon’s prior testimony under Crawford, the trial court would have ruled the evidence inadmissible and then counsel could have presented Waxler’s testimony without the risk of impeachment by Gordon’s prior testimony. We disagree.
Although Steven correctly asserts that Gordon’s prior testimony was inadmissible under Crawford and respondent concedes as much, he is incorrect in concluding that counsel’s decision not to call Waxler was a direct result of that failure. The trial court ruled that Gordon’s prior testimony was admissible only “if” Waxler did not appear, in which case “his statement comes in by way of his transcript from the prior hearing . . . .” Prior testimony is admissible only if the declarant is unavailable. (Evid. Code, § 1291, subd. (a).) Since Waxler ultimately appeared in court, he was available, leaving Gordon’s prior testimony inadmissible. Consequently, defense counsel could have called Waxler as a witness without being impeached with Gordon’s prior testimony. Nevertheless, he chose not to call Waxler, presumably concluding that the risk of impeachment by cross-examination was just as great or greater than the risk of impeachment with prior testimony.
Respondent concedes that Gordon’s prior testimony is inadmissible under Crawford. We agree. In Crawford, the United States Supreme Court held that under the confrontation clause, testimonial statements made by a witness who does not appear at trial are not admissible unless the declarant was unavailable at trial and the defendant had a prior opportunity to cross-examine the declarant. (Crawford, supra, 541 U.S. at pp. 53-54 [158 L.Ed.2d at p. 194].) Since Steven did not have a prior opportunity to cross-examine Gordon, he correctly asserts on appeal that Gordon’s prior testimony was inadmissible under the holding in Crawford.
We therefore conclude counsel’s failure to object to the proffered evidence under Crawford had no prejudicial effect and therefore reject Steven’s ineffective assistance claim.
VIII.
Imposition of Consecutive Sentences Complies with Cunningham v. California
Last, Steven contends that under Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856] (Cunningham), imposition of consecutive sentences for the attempted murder and robbery convictions based on facts that were neither found by the jury nor admitted by him violated his Sixth Amendment right to a jury trial. Respondent argues this claim must be rejected under People v. Black (2007) 41 Cal.4th 799 (Black II).
On January 14, 2008, the United States Supreme Court denied the petition for certiorari in Black II, supra, 41 Cal.4th 799.
Respondent is correct. The California Supreme Court in Black II, supra, 41 Cal.4th at pages 831 through 832 recently held that the decision to impose consecutive or concurrent sentences is not implicated by Cunningham. Because Steven raises no issue left unresolved in Black II, we must reject his claim of error. (Auto Equity Sales, Inc. v. Superior Court of Santa Clara County (1962) 57 Cal.2d 450, 455.)
David Jones’ Appeal
I.
Substantial Evidence Supports the Verdicts and Special Circumstance
David challenges the sufficiency of the evidence to support the verdicts for felony murder, robbery, attempted murder, and the felony-murder special circumstance.
When considering a claim that challenges the sufficiency of the evidence, “we must inquire whether a rational trier of fact could find defendant guilty beyond a reasonable doubt.” (People v. Johnson (1993) 6 Cal.4th 1, 38.) In this process, we view the evidence “‘in the light most favorable to the judgment below to determine whether it discloses substantial evidence -- that is, evidence which is reasonable, credible, and of solid value --such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’” (People v. Hawkins (1995) 10 Cal.4th 920, 955, overruled on other grounds in People v. Blakeley (2000) 23 Cal.4th 82, 89.) We will not reverse a conviction for insufficiency of the evidence unless it “clearly appear[s] that upon no hypothesis whatever is there sufficient substantial evidence to support the verdict.” (People v. Redmond (1969) 71 Cal.2d 745, 755.) We consider David’s challenges in light of this standard.
A. Felony murder and Robbery
David contends the evidence is insufficient to support the jury’s verdict for robbery and therefore his convictions for first degree felony murder and robbery must be reversed. Asserting he was “a mere passenger in the fleeing car,” he argues the evidence only establishes he committed a theft of the marijuana and that there is no evidence he had the specific intent to use force or fear to accomplish the crime or that he aided and abetted the subsequent use of force to escape with the loot. We disagree.
“Murder is the unlawful killing of a human being . . . with malice aforethought.” (§ 187, subd. (a).) Murder that is committed in the perpetration of robbery is murder in the first degree. (§ 189.) 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.’” (People v. Cavitt (2004) 33 Cal.4th 187, 200.)
David argues that the evidence fails to show he committed robbery because there is no evidence he aided and abetted his associates’ use of force against the two victims or that he intended or planned for them to use any force. David ignores the substantial evidence in support of the verdict.
“Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” (§ 211.) The intent required to commit robbery is the intent to steal, which includes a specific intent to permanently deprive the victim of the property. (People v. Pollock (2004) 32 Cal.4th 1153, 1175.) The mental state required to prove felony murder is the specific intent to commit the underlying felony. (Ibid.) The prosecution need not prove the defendant had the specific intent to commit each element of the robbery. (Ibid; People v. Haley (2004) 34 Cal.4th 283, 317.)
Here, David properly concedes the evidence establishes that he personally committed the theft. Indeed, it shows he was the individual who arranged the marijuana deal, spoke with Gonzales at the rest area, personally took the bag of marijuana from Jarvis’s truck, and then got into the Taurus with it. He also concedes that Gordon’s act of continuing to drive when Gonzales stood in the car’s path as well as the forcible acts subsequently committed by his associates to escape with the marijuana and avoid apprehension transformed the crime into a robbery. He is correct in this regard also.
A “mere theft becomes robbery if the perpetrator, having gained possession of the property without use of force or fear, resorts to force or fear while carrying away the loot. [Citations.] In order to support a robbery conviction, the taking, either the gaining possession or the carrying away, must be accomplished by force or fear. (See § 211.)” (People v. Cooper (1991) 53 Cal.3d 1158, 1165, fn. 8; People v. Pham (1993) 15 Cal.App.4th 61, 65.)
Here the evidence shows David personally used force to maintain possession of the marijuana. After he jumped into the getaway car, Jarvis grabbed onto David’s shirt and the door frame of the moving car and struggled with David over the bag of marijuana. The struggle continued until Jarvis lost his footing as he was dragged by the car and forced to release his grip on David and the car. The jury could reasonably find from this evidence that David used personal force while also taking advantage of the force of the speeding car to maintain possession of the marijuana. His challenge to the sufficiency of the evidence therefore fails.
B. Attempted Murder
Next David contends the evidence is insufficient to support his conviction for the attempted murder because the evidence fails to show he did anything to assist or encourage the shooter or knew the shooter’s criminal purpose. Respondent argues this claim is without merit because there is substantial evidence that David aided and abetted the robbery and that the attempted murder was the natural and probable consequence of the robbery. We agree with respondent.
The prosecution predicated David’s liability for the attempted murder on the natural and probable consequence doctrine. The jury was therefore instructed on aiding and abetting liability and the natural and probable consequence doctrine.
“A person aids and abets the commission of a crime when he or she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime." (People v. Cooper, supra, 53 Cal.3d at p. 1164; see People v. Beeman (1984) 35 Cal.3d 547, 561.)
The natural and probable cause doctrine holds that “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.) The nontarget offense is a natural and probable consequence of the target offense if it is a reasonably foreseeable consequence of the target offense. (People v. Coffman, supra, 34 Cal.4th at p. 108.)
“‘[A] defendant whose liability is predicated on his status as an aider and abettor need not have intended to encourage or facilitate the particular offense ultimately committed by the perpetrator. His knowledge that an act which is criminal was intended, and his action taken with the intent that the act be encouraged or facilitated, are sufficient to impose liability on him for any reasonably foreseeable offense committed as a consequence by the perpetrator. It is the intent to encourage and bring about conduct that is criminal, not the specific intent that is an element of the target offense, which . . . must be found by the jury.’” (People v. Prettyman, supra, 14 Cal.4th. at p. 261, quoting People v. Croy (1985) 41 Cal.3d 1, 12, fn. 5.)
Whether the crime charged is the natural and probable consequence of the target crime is a factual question for the jury. (People v. Cummins (2005) 127 Cal.App.4th 667, 677.) The test is an objective one, whether under all the circumstances, 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 the defendant aided and abetted. (People v. Nguyen (1993) 21 Cal.App.4th 518, 531.)
Thus, defendant is mistaken when he asserts that the evidence fails to establish he aided and abetted the attempted murder merely because it fails to show he committed any act to assist the shooting, that he knew the shooter’s criminal purpose, or that he encouraged the shooter. As stated, if there is substantial evidence he aided and abetted the robbery and the attempted murder was a reasonably foreseeable consequence of the robbery, the jury’s verdict must be upheld. (People v. Prettyman, supra, 14 Cal.4th at pp. 261-262.)
Factors relevant to the question whether the defendant aided and abetted commission of a robbery include his presence at the crime scene, his companionship with the other accomplices, and his conduct before and after the offense. (In re Juan G. (2003) 112 Cal.App.4th 1, 5.)
Applying these principles, we find the evidence is sufficient to support the jury’s verdict for attempted murder. The evidence shows David was traveling with his three confederates when he arranged the marijuana deal, he personally stole the marijuana after struggling with Jarvis, jumped into the moving getaway car and fled with his cohorts, keeping possession of the marijuana throughout the entire chain of events that followed. Moreover, he was at the scene of the shooting and despite the opportunity to get out of the Taurus, he remained in the car and fled that scene with his confederates, then dumped the Taurus and fled with Steven and the stolen marijuana. These circumstances strongly support a finding that David aided and abetted the robbery.
We further find the attempted murder was a reasonably foreseeable consequence of the robbery. When the perpetrator of a robbery remains in close proximity to the victim, it is reasonable to assume that, unless prevented from doing so, the victim will attempt to reclaim his or her property. (People v. Flynn (2000) 77 Cal.App.4th 766, 772.) Moreover, it is well established that murder or attempted murder is often a reasonably foreseeable result of robbery. (See People v. Prettyman, supra, 14 Cal.4th at pp. 262–263; People v. Nguyen, supra, 21 Cal.App.4th at p. 530; People v. Jones (1989) 207 Cal.App.3d 1090, 1095–1098.)
Here, the evidence establishes that the stolen property was marijuana worth approximately $12,000. Because of the value and contraband nature of the property, the jury could reasonably conclude that the victims would want to reclaim it and would use self help to recover their property rather than rely on police assistance. In fact, they made every effort to do so pursuing the Taurus in a high speed chase, ramming it as they went. It was therefore reasonably foreseeable someone was going to be seriously injured.
The presence of a firearm in the Taurus made the attempted murder all the more foreseeable. Eyewitness testimony established that Steven was holding a pistol outside the rear window of the Taurus, firing it at the truck as it pursued the Taurus. According to another eyewitness, Steven was holding a gun when he exited the Taurus. Other witnesses saw Steven go to the trunk and retrieve something, and at least one witness testified that he heard seven to nine gun shots, although the .38 caliber revolver recovered from the river had only five empty cartridges. Thus, the jury could reasonably find Steven was holding a gun before he exited the Taurus and then went to the trunk where he retrieved either a second gun or ammunition. Either way, the evidence shows he had a gun while he was in the car and was firing it at Jarvis’s truck during the chase. Based upon this evidence, it is reasonably foreseeable someone would be shot and killed before defendants were able to get away with the stolen property.
For these reasons, we conclude there is substantial evidence from which a reasonable trier of fact could find David committed a robbery and that attempted murder was a natural and probable consequence of that offense.
C. Robbery Special Circumstance
David contends the robbery special circumstance verdict is unsupported by substantial evidence that he acted with reckless disregard for human life while acting as a major participant in the underlying felony. We find substantial evidence of both elements.
The felony-murder special circumstance may be proved by evidence a 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 . . . [¶] [r]obbery . . . .” (§ 190.2, subd. (a)(17)(A).) To prove the truth of this special circumstance against one who is not the actual killer, the prosecution must show either the aider and abettor had the intent to kill (§ 190.2, subd. (c)) or acted with reckless indifference to human life while acting as a major participant in the underlying felony. (§ 190.2, subd. (d).)
This special circumstance was added by Proposition 115 to bring the death penalty statute into conformity with Tison v. Arizona (1987) 481 U.S. 137 [95 L.Ed.2d 127] (Tison). (Tapia v. Superior Court (1991) 53 Cal.3d 282, 298, fn. 16.) There the high court held that the death penalty may be imposed on a person who was not the actual killer if that person was a major participant in the underlying felony and acted with reckless indifference to human life. (Tison, supra, 481 U.S. at p. 157 [95 L.Ed.2d at p. 144].) In so holding, the court distinguished the hypothetical case of a defendant who played a “minor” role by “merely sitting in a car away from the actual scene of the murders acting as the getaway driver to a robbery . . . .” (Id. at p. 158 [95 L.Ed.2d at p. 144].)
The term “major participant” has been defined as one whose participation is “‘notable or conspicuous in effect or scope’ and ‘one of the larger or more important members or units of a kind or group.’ (Webster's New Internat. Dict. (3d ed. 1971) p. 1363.)” (People v. Proby (1998) 60 Cal.App.4th 922, 931.) The term “reckless indifference to human life” has been defined to mean the “defendant was subjectively aware that his or her participation in the felony involved a grave risk of death.” (People v. Estrada (1995) 11 Cal.4th 568, 577; People v. Proby, supra, 60 Cal.App.4th at p. 928.)
For example, in People v. Smith (2005) 135 Cal.App.4th 914, the court upheld the robbery special circumstance where the defendant was one of three confederates, and he acted as the sentry standing just outside the motel room where the victim was beaten and stabbed during a lengthy, loud, and violent attempted robbery-turned-murder. When his codefendant emerged from the victim’s room covered with blood, the defendant chose to flee with him rather than go to the victim’s aid or summon help. (Id. at pp. 927-928.)
In People v. Hodgson (2003) 111 Cal.App.4th 566, the defendant was found to be a major participant because he was one of two perpetrators and he assisted his codefendant to escape with the loot. (Id. at p. 579.) He acted with reckless indifference to human life because he knew the victim was severely injured but chose to assist his confederate in his escape rather than go to her aid. (Id. at p. 580.)
Likewise, in People v. Mora (1995) 39 Cal.App.4th 607, the court determined the robbery-murder special circumstance was satisfied where the defendant, who claimed he did not intend for the victim to die, helped plan an armed robbery, was instrumental in arranging for his codefendant to enter the victim’s home with a rifle, carried through with the plan after the victim was shot, and personally carried away the loot, while leaving the victim to die and threatening the remaining victim. (Id. at p. 617.)
As we have detailed in Parts I.A and I.B, the record shows David played a major role in planning and carrying out the initial robbery and fled with the group while maintaining possession of the marijuana throughout the entire chain of events. Unlike the hypothetical defendant in Tison who was far from the scene of the murder and therefore unaware it was being committed (Tison, supra, 481 U.S. at p. 158 [95 L.Ed.2d at p. 144]), David was present at the scene of the shooting and sat idly by as Steven fired more than five gunshots at the victims. He made no effort to assist the victims after the shooting, choosing instead to flee with the marijuana and his confederates. (Id. at p. 152 [at pp. 140-141].)
The jury could also reasonably conclude David acted with reckless indifference to human life. Because the evidence shows that he was sitting in the back seat beside Steven while Steven was waving a gun out the car window and firing it at Jarvis’s truck, a strong inference arises that he was aware Steven was armed and was using a gun. Nor was David a powerless passenger in a getaway car with no ability to extricate himself as he asserts. Since the marijuana was in his possession, he could have thrown it out the window, putting an end to the chase and avoiding the possibility of a deadly shooting; or he could have exited the stalled car and assisted the victims. Instead, he chose to hold onto the marijuana, virtually assuring the violence would continue until someone was seriously injured.
This evidence is therefore sufficient to support the jury’s verdict finding the murder was committed in furtherance of a robbery and that David acted with reckless indifference to human life while acting as a major participant in the robbery.
II.
Consecutive Sentences
David contends the trial court erred by failing to stay his sentence for robbery under section 654 because the robbery was the basis for the first degree felony-murder conviction. Respondent disagrees arguing that there is substantial evidence to support the trial court’s implied finding the attempted murder was committed with an objective beyond mere successful completion of the robbery.
We agree with David because the evidence shows only that he had a single intent to rob the victims and did not independently aid and abet the attempted murder.
Section 654 provides in pertinent part that “[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.”
Confined to its literal meaning, section 654 prohibits multiple punishment for a single criminal act that violates more than one statute. (People v. Beamon (1973) 8 Cal.3d 625, 637.)It has been construed also to prohibit multiple punishment for multiple criminal acts that constitute a single course of criminal conduct. (Ibid.; People v. Saffle (1992) 4 Cal.App.4th 434, 438.) The purpose of this provision is to ensure that a defendant’s punishment will be commensurate with his culpability. (Neal v. State of California (1960) 55 Cal.2d 11, 20; People v. Latimer (1993) 5 Cal.4th 1203, 1211.)
Whether a course of conduct is single or divisible and gives “rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.” (Neal v. State of California, supra, 55 Cal.2d at pp. 19-20.) If “[the defendant] entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.” (People v. Beamon, supra, 8 Cal.3d at p. 639.)
The question whether the criminal acts constitute an indivisible course of conduct turns on the intent and objective of the defendant and is primarily a question of fact to be determined by the trial court. (People v. Saffle, supra, 4 Cal.App.4th at p. 438.) The trial court has broad latitude in determining whether section 654 is factually applicable to a given series of offenses. (People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1408.) When the trial court imposes consecutive sentences, it impliedly finds the defendant’s acts involved more than one objective and this finding must be sustained if supported by substantial evidence. (Ibid; People v. Osband (1996) 13 Cal.4th 622, 730-731.)
In sentencing David, the trial court imposed a prison term of life without the possibility of parole for the first degree murder of Jarvis, plus consecutive terms of seven years for the attempted murder, three years for the robbery, and one year for the armed enhancement (§ 12202, subd. (a)(1)) in connection with the robbery.
Respondent properly concedes that because robbery is a statutory element of felony murder, David may not be punished for both the felony murder and the robbery. (See People v. Meredith (1981) 29 Cal.3d 682, 695-696; People v. Boyd (1990) 222 Cal.App.3d 541, 575-576.) However, citing People v. Nguyen (1988) 204 Cal.App.3d 181, respondent takes the position that section 654 does not prohibit multiple punishment for robbery and attempted murder where as here the attempted murder was a gratuitous act of violence committed after the robbery had been completed. We disagree.
In Nguyen, supra, 204 Cal.App.3d 181, Nguyen and two armed accomplices entered a market. Nguyen remained in the front at the cash register, while one accomplice walked the clerk to a rear bathroom, took his money, and forced him to lie face down on the floor. Nguyen shouted a Vietnamese battle phrase to kill the clerk, whereupon the accomplice shot the clerk in the back. (Id. at p. 185.) The trial court imposed consecutive sentences for the attempted murder and the robbery. Finding this was proper, the appellate court reasoned that “[t]he jury's finding . . . the shooting was a natural and probable consequence of the robbery . . . . It in no manner foreclosed the trial court's conclusion that the act of violence was sufficiently divisible from the robbery to justify multiple punishments. That a shooting may have been foreseeable, or even probable, does not mean it was necessary or useful in effectuating the robbery or that it was committed for that purpose. . . . [¶] Here, substantial evidence supports the [trial] court's implied finding of divisibility.” (Id. at p. 190.) The court noted the act of shooting the clerk while he was lying on the floor was “an example of gratuitous violence against a helpless and unresisting victim which has traditionally been viewed as not ‘incidental’ to robbery for purposes of . . . section 654.” (Ibid.)
By contrast, in People v. Bradley (2003) 111 Cal.App.4th 765 at pages 768-772, the appellate court held that section 654 prohibited multiple punishment for robbery and attempted murder where the defendant’s liability for attempted murder was based solely on the natural and probable consequence doctrine and the evidence showed her sole intent was to aid and abet the target offense of robbery. The court found the defendant played her part in the initial robbery but was “unaware that [the] second crime was occurring until after it was completed and thus didn’t have an opportunity to prevent or even protest its commission. As a result, there simply was no evidence appellant exhibited the more dangerous mental state warranting a consecutive sentence under Penal Code section 654.” (Id. at p. 771.)
The court in Bradley took note of Nguyen but distinguished it on the grounds that Nguyen “actively encouraged the shooter to kill the victim.” (Bradley, supra, 111 Cal.App.4th at p. 771.) The court concluded that even under its own rationale, Nguyen would be subject to consecutive sentences because there was ample evidence he shared his cohort’s independent objective of attacking the victim. (Id. at p. 772.)
Under the felony-murder cases cited above, multiple punishment is prohibited for murder and the underlying felony because the felony is an element of felony murder. (See People v. Meredith, supra, 29 Cal.3d at pp. 695-696 and People v. Boyd, supra, 222 Cal.App.3d at pp. 575-576 and cases cited therein.) Likewise, liability under the natural and probable consequence doctrine requires proof the defendant aided and abetted the target offense, making the target offense an element of proof. (People v. Prettyman, supra, 14 Cal.4th. at pp. 261-262.) Under these circumstances, multiple punishment is prohibited for the two offenses where liability for the attempted murder is predicated solely on the natural and probable cause doctrine.
Moreover, unlike in Nguyen, the evidence does not show that David “entertained multiple criminal objectives which were independent of and not merely incidental to each other . . . .” (People v. Beamon, supra, 8 Cal.3d at p. 639.) To the contrary, it shows only that he had the single intent to aid and abet the initial robbery. There is no evidence he actively encouraged Steven to shoot the helpless victims, personally armed Steven, or took any other action to aid and abet the shooting. We therefore conclude David’s liability for both robbery and attempted murder is based on the single objective and intent to rob Jarvis and Gonzales of marijuana and that he may be punished for only one of those crimes. (§ 654.) Since the punishment for attempted murder is greater than the punishment for robbery, the sentence imposed for robbery must be stayed. (Beamon, supra, 8 Cal.3d at p. 640.)
Although not raised by the parties, the one-year term for the arming allegation (§ 12022, subd. (a)) imposed in connection with the robbery conviction must also be stayed. (People v. Bracamonte (2003) 106 Cal.App.4th 704, 709 [“Where the base term of a sentence is stayed under section 654, the attendant enhancements must also be stayed”].)
DISPOSITION
The judgment of conviction for Steven Jones is affirmed. The judgment of conviction for David Jones is modified by staying, pursuant to section 654, the punishment imposed on count three for robbery (§ 211) and for the attendant armed enhancement (§ 12202, subd. (a)(1)), and is affirmed as modified. The trial court is directed to amend the abstract of judgment for David Jones to reflect this modification, and is further directed to send a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
We concur: BUTZ, J., CANTIL-SAKAUYE, J.
The flight of a person immediately after the commission of a crime, or after he is accused of a crime that has been committed, is not sufficient in itself to establish his guilt, but is a fact which, if proved, the jury may consider in deciding his guilt or innocence. The weight to which such circumstance is entitled is a matter for the jury to determine.
No further instruction on the subject of flight need be given.”