Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County, Super.Ct. No. RIF122984, Carl E. Davis, Judge. (Retired judge of the San Bernardino Super. Ct., assigned by the Chief Justice pursuant to art. VI, § 6, of the Cal. Const.)
Stephen S. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, David Delgado-Rucci and Raymond M. DiGuiseppe, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Ramirez, P.J.
A jury convicted defendant of second degree robbery, during which he used a firearm. (Pen. Code, §§ 211, 12022.53, subd. (b).) He was sentenced to prison for 13 years and appeals, claiming the gun use allegation must be reversed, his Penal Code section 1118.1 motion should have been granted and the trial court abdicated its responsibility to prohibit a witness from testifying. We reject his contentions and affirm.
Facts
On April 12, 2005, defendant and a cohort entered a liquor store, went to the cooler and the cohort grabbed an 18-pack of beer. The two then left the store. The store owner, hereinafter, the victim, saw the two run to a black truck and the one who later got into the passenger seat put the beer in the truck bed. The victim called to them to stop and told them to return the beer. A man the victim identified at trial as the driver, who was defendant’s cohort, pointed a gun at the victim, and then drove off. However, at the in-field show-up which had occurred after the truck had been stopped by the police, the victim had identified defendant as the person who had pointed the gun at him. A short time after the crime, a female who lived near the store saw the truck pass by her house. At trial, she positively identified defendant as the passenger and she testified that he had a gun which he held out the passenger window and pointed up into the air.
As the trial court and the parties recognized, this was a classic “Estes robbery.” (See Miller v. Superior Court (2004) 115 Cal.App.4th 216, 221.)
Issues and Discussion
1. Personal Use Enhancement Finding
In their arguments on this issue, both parties make a number of references to remarks that were made by counsel and the trial court outside the presence of the jury. While this might be helpful in explaining why the attorneys and the trial court did what they did, it is irrelevant to a discussion of this issue. What does matter is what the jurors were told, both by the court and by counsel.
The jury was instructed that defendant was charged with robbery and it was given the standard instruction on that crime. The jury was also instructed, “Before you may decide whether the defendant is guilty of robbery, you must decide whether he is guilty of petty theft. [¶] To prove that the defendant is guilty of robbery, the People must prove: [¶] One, that the defendant is guilty of petty theft;[¶] Two, during the commission of the petty theft, the crime of robbery was committed;[¶] And, three, under the circumstances[,] a reasonable person in the defendant’s position would have known that the commission of the robbery was a natural and probable consequence of the commission of the petty theft. [¶] . . . . [¶] The People are alleging that the defendant originally intended to aid and abet petty theft. [¶] The defendant is guilty of robbery if you decide that the defendant aided and abetted petty theft and that robbery was a natural and probable result of that crime.” [Italics added.]
The jury was instructed that a natural and probable consequence was “one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all the circumstances established by the evidence. If the robbery was committed for a reason independent of the common plan to commit petty theft, then the commission of robbery was not a natural and probable consequence of petty theft.”
The jury was also instructed, “If you find the defendant guilty of the crime charged, robbery, you must then decide whether the People have proved the additional allegation, either that the defendant personally used a firearm during the commission, or that one of the principals was armed with a firearm during the commission . . . of the crime. [¶] . . . [¶] Someone personally uses a firearm if he intentionally does any of the following: [¶] One, displays the firearm in a menacing manner.” [Italics added.]
Defendant asserts that there were no limiting or clarifying instructions that the gun use had to be during the commission of the theft at the store but this instruction makes this requirement clear. The jury was not informed that for purposes of this allegation, the commission of the robbery continued until the robbers reached a place of temporary safety. (However, the jurors were told, “To be guilty of robbery as an aider and abettor, the defendant must have formed the intent to aid and abet the commission of the robbery before or while the perpetrator carried away the property to a place of temporary safety. [¶] A perpetrator has reached a place of temporary safety with the property if he has successfully escaped from the scene, is no longer being pursued, and has unchallenged possession of the property.”) We reject the People’s assertion that the jury could have based the gun use allegation on evidence that defendant had used the gun in the truck after it left the parking lot. This assertion ignores what went on in this trial, including the requirement that defendant aided and abetted a petty theft of which robbery was a natural probable consequence. Moreover, the parties agreed and the evidence established that there was only one use of force during the robbery and it was when the gun was pointed at the victim in the parking lot. In fact, it was the use of the gun in the parking lot that converted the petty theft into a robbery. Additionally, defense counsel told the jury that defendant’s possession of the gun after leaving the parking lot was not sufficient for this enhancement. Therefore, there was no need for further instructions.
After argument, the court further instructed the jury, “[T]he amended Information has two allegations with respect to the firearm. The first is that the defendant personally used a firearm, and the second allegation alleges that he participated as a principal, knowing that another principal in said offense was armed with a firearm. [¶] So as to the allegation relating to the firearm, your finding as to the first allegation that the defendant personally used a firearm, you may find the allegation true or not true. As to the second allegation that the defendant participated as a principal in said offense, knowing that another principal was armed with a firearm, you might find that allegation true or not true.”
The jury made a true finding that defendant “personally used a firearm within the meaning of Penal Code section 12022.53, subdivision (b)” but made no finding as to the allegation that he was a principal and another principal was armed, pursuant to Penal Code section 12022, subdivision (a)(1).
The above-italicized instructions on robbery required more of the People than was necessary and therein lies the seed of the problem defendant addresses here. Defendant could have also been guilty as an aider and abettor to the robbery, or as an actual perpetrator of the robbery. Indeed, the jury was given instructions on aiding and abetting in general, and on the timing of intent for the aider and abettor of a robbery. But it cannot be forgotten that this jury was clearly told that in order to convict defendant of robbery, the People had to prove that defendant was guilty of petty theft, a robbery was committed during the petty theft and the robbery was a natural and probable consequence of the petty theft.
As concerns defendant’s argument here, the problem arose during the prosecutor’s argument to the jury. While beginning it by reiterating the requirement that “in order to find the robbery, you have to find the [petty] theft offense” the prosecutor went on to argue that the crucial determination for the jury was whether defendant was the one that pointed the gun at the victim in the parking lot. If the jury found that he was, the prosecutor said that defendant should be convicted of robbery with the personal gun use allegation. If the jury found that defendant’s cohort pointed the gun at the victim, the prosecutor said, incorrectly so, “then and only then do you go to the aider and abettor issues and decide whether or not the defendant aided and abetted the robbery.” This argument was incorrect, first because aider and abettor issues not only could have been involved in the determination whether defendant was guilty of petty theft, but the jury had been instructed that that was the People’s theory of the case. Second, the jury did not have to determine that defendant aided and abetted the robbery, if they utilized the People’s theory that he aided and abetted a petty theft, the natural and probable consequence of which was the robbery. And, the instructions they were given required them to utilize this theory. The prosecutor made a second misstatement, namely, that it was the People’s theory that defendant was the one who pointed the gun at the victim “and was the actual perpetrator of the robbery.” If by this statement, the prosecutor was inviting the jury to convict defendant as a direct perpetrator of a robbery, without reference to petty theft or the natural and probable consequences theory, this was not the People’s theory, according to the instructions. It was, of course, a legitimate means of arriving at a verdict of guilt for the robbery, and the jury could have relied on it given the evidence in this case, but it was not the People’s theory. If, on the other hand, by this statement, the prosecutor was saying that by pointing the gun at the victim, defendant aided and abetted a petty theft, the natural and probable consequences of which were robbery, then he did correctly state the People’s theory. Unfortunately, these remarks, like others he made during argument, were ambiguous and created confusion. Defendant does not claim that these statements require reversal of the true finding, but he relies on them to argue that the jury’s verdicts must be interpreted in such a way that we must conclude that the gun use allegation is based on a legally incorrect and factually unsupported theory.
The prosecutor went on to argue that defendant aided and abetted, not the robbery, but the petty theft, by putting the beer in the truck bed and the robbery was a natural and probable consequence of this “small crime.”
This is true if the jury determined, as it could have, that defendant was not an actual perpetrator of the taking of the beer, but aided and abetted his cohort taking it.
As unclear as the prosecutor’s argument was, defense counsel’s was even worse. At one point, he seemed to assert that his client was guilty of nothing. At another, he invited the jury to conclude that defendant did not know his cohort had a gun and might pull it, and, therefore, he was only guilty of petty theft. “The only question you have to decide: Is it robbery or is it theft? . . . And in deciding that, what you have to decide is this: Is it reasonable to believe that [defendant] knew the other guy had a gun, that he knew the other guy might pull a gun? That’s it. That’s the simple question.” However, he clearly conceded that his client was liable for the principle armed, but not the gun use, allegation. Neither of these allegations applied to petty theft—both applied only to robbery. Therefore, counsel’s concession that defendant was liable for the principal armed allegation necessarily implied that he was also guilty of robbery. Indeed, outside the presence of the jury, before argument, defense counsel announced to the trial court and the prosecutor that he was going to concede his client’s guilt of “Count 1[,]” which was the charged robbery. Additionally, in his final argument, the prosecutor noted to the jury that defense counsel in his argument had conceded defendant’s guilt of the robbery. Defense counsel did not object to this remark.
Defendant asserts, “To have reached the robbery conviction based on the . . . [natural and probable consequences instruction] . . . given by the court . . . and argued by the People, the jury must have concluded that [defendant] intended to commit petty theft, that during the crime [his cohort] possessed and used a gun, and that his possession and use was a natural and probable consequence of the theft, thereby elevating the crime to robbery. The very nature of [the natural and probable consequences instruction] implies, if not requires, a finding of possession of the gun by someone other than [defendant], because if [defendant] had possessed and pulled the gun, the offense would have been straight robbery, not a petty theft transformed into a robbery.”
We begin with defendant’s last statement, that the very nature of the natural and probable consequences instruction implies, if not requires, a finding of possession of the gun by someone other than defendant, because if defendant had possessed and pulled the gun, the offense would have been straight robbery, not petty theft transformed into a robbery. Nothing required the prosecutor to proceed on the theory that defendant was guilty of robbery without regard to the natural and probable consequences theory. The People’s choice of theories was a matter of trial tactics with which we will not interfere. The use of this theory permitted the jury to convict defendant of robbery if defendant and his cohort went into the liquor store, hoping that they could run out with the beer before anyone had a chance to try to stop them, but the foreseeable consequence that someone actually did occurred and either defendant or his cohort responded by pulling a gun, thereby converting the petty theft into a robbery. Contrary to the first statement in defendant’s assertion, neither the natural and probable consequences instruction nor the argument of the People meant that the jury had to conclude that it was defendant’s cohort, and not defendant, who was armed with the gun in order to convict defendant of robbery. Certainly, the instructions could not be so read. As to the People’s argument, while as already stated it was unnecessarily ambiguous and confusing in some regards, it was crystal clear as to the gun use enhancement, i.e., the prosecutor said that if the jury found defendant was the one who pointed the gun at the victim, the jury was to convict defendant of robbery and find true the personal gun use allegation. The prosecutor then said, “[I]f you don’t find the defendant was the one that pointed the gun at the [victim], . . . then you have to decide if he did commit the robbery as an aider and abettor. Did the other person use a gun? [¶] And then you find the other allegation, not the . . . 12022.53 [personal use]. That’s the allegation if the defendant pointed the gun, or 12022(a)(1) [principal armed], that’s if [defendant’s cohort] pointed the gun at the victim. [Italics added.]
As defendant, himself, points out, this was the prosecutor’s theory, as expressed to the trial court and opposing counsel, although, obviously, not made clear to the jury.
Defendant states, “While it is possible that the jury chose th[e] theory [that defendant was the man with the gun] to support the robbery conviction and gun use finding, it is grossly improbable given the evidence, instructions, and arguments.” We have already addressed the latter two. As to the evidence, defendant points to the victim’s “unequivocal testimony that it was [defendant’s cohort], not [defendant], that had the gun in the store parking lot.” However unequivocal the victim’s testimony, the fact remains that shortly after the crime, he told the police that it was defendant that pointed the gun at him. Moreover, the female witness was positive that it was defendant, who, shortly after the crime, held the gun out the window of the truck as it went down her street.
This last point leads us to the People’s take on [defendant’s] assertion that the jury could have based his liability for the gun use enhancement on his possession of the gun after the truck had left the liquor store parking lot and was seen by the female witness. As we have stated before the jury was never told that the robbery continued until the robbers reached a place of temporary safety other than for purposes of deciding if defendant’s intent as an aider and abettor to robbery was sufficient. Moreover, defense counsel argued, without objection by the prosecutor, that this could not have constituted the requisite use. In his opening argument, the prosecutor addressed only the pointing of the gun in the parking lot. In his closing, he said that defendant’s possession of the gun at the time the female witness saw him was circumstantial evidence that he had possession of it earlier, when he pointed it at the victim. He never argued that this later possession was sufficient to establish the enhancement allegation. Moreover, the People never wavered from their contention that it was the pointing of the gun at the owner that constituted the enhancement. In fact, the prosecutor’s final statement to the jury was, “When all the evidence is examined, I think you will come back with a . . . verdict of guilty [of] robbery in the second degree, and you’ll find that the defendant was the one that possessed the gun and pointed it at the victim in this case.” Given this, there is no chance that the jury ignored the obviously more important pointing of the gun at the owner, and based their personal use finding solely on defendant’s possession of it as the truck passed in front of the female witness’s home later.
See footnote 4, ante.
At oral argument, appellate counsel for defendant expressed concern that we did not state the standard of review for this issue. However, the standard counsel wishes us to employ (see People v. Swain (1996) 12 Cal.4th 593, 607), applies only if we agree with him that the instructions given permitted the jury to rely on improper theory. As we have already concluded, based on the instructions given, the argument of the prosecutor and the evidence presented, the jury did not rely on an improper theory in finding defendant used a gun.
Having found no error in the factual or theoretical support for the gun use enhancement, we necessarily reject defendant’s contention that his trial attorney was somehow incompetent for permitting the finding to be made.
2. Denial of Defendant’s Penal Code section 1118.1 Motion as to the Personal Gun Use
Defendant here contends that the trial court abused its discretion in denying his motion to dismiss the gun use allegation because “[t]he only potentially conflicting evidence [to the victim’s in court identification of defendant’s cohort as the one with the gun] was . . . provided by [the victim] to [a] deputy in a statement obtained through an unknown and unverified interpreter.” We disagree. The deputy testified that when the victim initially flagged him down at the liquor store and told him he had just been robbed, he said, in broken English, without an interpreter, that the person wearing a black shirt took a handgun out of his waistband and pointed it at him. This occurred before the victim’s son was taken with his father to the in-field show-up to help interpret. Even then, the victim himself told the deputy, without the son interpreting, that the truck that had been stopped was the one used by the perpetrators and when asked if defendant and his cohort were “the same people[,]” he said they were before his son translated the question and the father repeated the same answer in Arabic. The deputy testified that when the truck had been stopped, defendant was wearing a black shirt. The deputy also saw defendant wearing a black shirt in the store surveillance video of the taking of the beer. The female witness testified that when the truck had passed in front of her house, the driver was wearing a blue shirt.
3. Admission of Evidence
Defendant contends that due to conflicts in the testimony of the deputy mentioned above, the trial court “abdicated its duty of ensuring only reliable, relevant and non-overly prejudicial testimony was admitted.” The fact that the deputy relied on the victim’s son, who was, admittedly, an untested and probably uncertified translator, was used extensively by the defense to call into question this crucial testimony. We cannot agree with defendant that at any given point, the unreliability of the deputy’s testimony was so apparent that the trial court abdicated its responsibility by not interrupting proceedings to hold an Evidence Code section 402 hearing on its reliability. Although there was some conflict regarding the circumstances surrounding statements the victim made during the in-field show-up, there was no conflict in the deputy’s testimony that before the victim’s son got involved, the victim, himself, told him in broken English that the man in the black shirt was the one who pulled the gun on him. Although the victim’s trial testimony contradicted this, the presence of conflicting testimony in a trial is no reason to impose upon the trial court the sua sponte duty of holding an Evidence Code section 402 hearing or making and sustaining its own Evidence Code section 352 objection.
For this reason, we reject defendant’s fall-back position that his trial attorney was incompetent for failing to object to the deputy’s testimony.
Disposition
The judgment is affirmed.
We concur: KING, J., MILLER, J.
We note that despite defense counsel’s argument that whether defendant knew his cohort had and might pull a gun determined whether a robbery or a petty theft had been committed, it actually only related to the principal armed enhancement allegation. Although the original instructions on this enhancement allegation did not address defendant’s knowledge, in later instructions the trial court said, “[This] alleges that [defendant] participated as a principal, knowing that another principal in said offense was armed with a firearm. [Italics added.] Of course, this is not what defense counsel argued to the jury and, as stated, he clearly conceded his clients liability for the principal armed enhancement. Considering this was such a stunningly simple case on the facts, it is indeed unfortunate that argument by both counsel was so ambiguous and confusing.