Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Bernardino County No. FSB-030541, Douglas A. Fettel, Judge. Affirmed.
O'ROURKE, Acting P. J.
A jury convicted Leobardo Magallanes of four counts of home invasion robbery, one count for each of the four victims who were in the apartment at the time. (Pen. Code, § 211.) As to each count, the jury found true enhancement allegations that Magallanes acted in concert with others and personally used a firearm, and the robberies were serious and violent. (§§ 213, subd. (a)(1)(A); 12022.5, subd. (a)(1); 12022.53, subd. (b).) Magallanes admitted he had suffered a prior serious conviction and a strike prior for robbery. (§§ 211; 667, subd. (a)(1); 667, subds. (b)-(i); 1170.12, subds. (a)-(d).)
All further statutory references are to the Penal Code.
The trial court sentenced Magallanes to 49 years in prison as follows: on count 1 a midterm of 6 years, doubled to 12 years — based on the admission of the strike prior — plus 10 years for the section 12022.53, subd. (b) enhancement; on each of counts 2, 3 and 4, consecutive sentences of one-third the midterm of 6 years, doubled for a total of 12 years; plus, for the section 12022.53, subd. (b) enhancement, one-third the midterm of 3 years and 4 months for each count, doubled for a total of 10 years; plus 5 years for the section 667, subd. (a)(1) enhancement.
Magallanes contends: (1) the trial court erroneously admitted into evidence guns and ammunition, which he did not use during the robberies; (2) the prosecutor committed misconduct during closing argument; (3) the trial court erroneously refused to instruct the jury regarding accessory after the fact culpability; (4) the trial court's instruction regarding aider and abettor culpability did not inform the jury that an aider and abettor can be guilty of a lesser crime than the perpetrator; (5) the personal gun use enhancements in counts one, three and four should be stricken because of insufficient evidence; and (6) he was denied his right to due process and a jury trial because the trial court imposed consecutive sentences on counts two, three and four. We affirm.
FACTUAL BACKGROUND
Jesse Leal testified that on April 30, 2001, at approximately 5:00 p.m. Jason Moody and Edward Rey knocked on his apartment door. Leal's girlfriend, Jennifer Glass, answered the door and started arguing with them. The men told Leal his son was seen picking up Moody's wallet, which contained hundreds of dollars. Leal slammed the door in their faces and they left.
Approximately 30 minutes later, Moody and Rey, wearing bandanas across their faces, returned to Leal's apartment. Moody pointed a shotgun in Leal's face. Rey also carried a gun. Leal struggled with them and found himself outside the apartment with Magallanes, who held a semiautomatic handgun. Magallanes ordered Leal to keep quiet and sit in front of him on the step, which was approximately two feet from the apartment door. Magallanes' side was against the wall of the apartment, and he pointed the gun downwards in front of him. Leal asked Magallanes to let them go, but Magallanes refused, saying they sought the wallet. Leal saw Moody and Rey ransacking the apartment; afterwards, Moody handed the shotgun to Magallanes.
Moody and Rey took from the apartment a bicycle and a suitcase containing, among other items, a compact disc player, compact discs, a cellular phone, videotapes, speakers, and a car jack in a plastic case. Magallanes carried the shotgun at his side. Magallanes, Moody and Rey walked towards a red truck. A few minutes later, Leal noticed the truck was gone. Leal telephoned the police, who arrived in less than five minutes. That evening, Leal made a positive curbside identification of Magallanes as one of the participants in the robbery.
Rey testified that on April 30, 2001, Magallanes drove Moody and Rey in a Ford Explorer to Leal's apartment to buy drugs. The drug seller was not at the apartment; therefore, they left. But they returned to the apartment because Moody had lost his wallet. Magallanes stayed near the vehicle, while Rey and Moody went inside and argued with a woman regarding the lost wallet. Leal was also inside the apartment. A couple of minutes later, Magallanes drove Rey and Moody to the Sunshine Motel, where Rey had rented a room. Magallanes next drove them for their third visit to the apartment. Their plan was to get Moody's wallet, "one way or the other." They each carried a gun to the front door of the apartment; Magallanes had a .32-caliber handgun; Rey had a .22-caliber handgun; and Moody had a shotgun. Moody and Rey went inside; hit Leal with their guns; demanded Moody's wallet; and put into bags items found in the apartment. Leal, another adult victim, and some children were inside the apartment at that time. Magallanes did not go inside the apartment, but was standing near the apartment door and holding the .32-caliber handgun by his side, while Leal sat next to Magallanes. The apartment door was open, and Rey saw Magallanes holding the gun. While the robbery was ongoing, the fourth victim arrived and went inside the apartment. Rey went back and forth to the Ford Explorer taking property from the apartment. Moody used a gun to restrain the four individuals inside the apartment.
Magallanes drove Moody and Rey to the motel, where the three unloaded the stolen property from the vehicle. Magallanes drove Moody and Rey to a friend's apartment. They saw two police cars. Magallanes and Rey got rid of their guns at the apartment. Magallanes drove Moody and Rey in the Ford Explorer. The police put on their siren, but Magallanes kept driving. Magallanes stopped the vehicle and let out Rey and Moody, who ran. Magallanes continued driving and evading the police, who pursued him. The police also chased and apprehended Rey. Moody and Magallanes were caught, and the victims made positive curbside identifications of Magallanes, Moody and Rey.
San Bernardino Police Officer Shauna Bragg testified she arrived at Leal's house shortly after he called the police. Leal identified Magallanes, Moody and Rey. That evening, Bragg went to a motel room; the police found the stolen items, a loaded shotgun and bullets for a .380-caliber handgun there.
Magallanes testified that on April 30, 2001, he, Moody and Rey went to Leal's apartment to buy drugs. Magallanes did not exit the Ford Explorer; Moody and Rey exited, but they returned to the vehicle and Magallanes drove away. Moody said he lost his wallet at the apartment, so Magallanes drove Moody and Rey back to the apartment. Once again, Moody and Rey exited the vehicle, but Magallanes did not. Moody returned to the vehicle, took a shotgun, and went back to the apartment. Then Moody and Rey returned to the vehicle and Magallanes drove them to the motel. After approximately ten minutes, Magallanes once again drove Moody and Rey for their third trip to the apartment. Moody and Rey went inside the apartment. Moody was carrying a gun. Magallanes stayed behind talking on the telephone with his mother. He also spoke to three female acquaintances on the sidewalk outside the apartment. Magallanes did not carry a gun. Magallanes was looking at the apartment while Moody and Rey were inside, but he did not know a robbery was in progress. Magallanes saw Moody and Rey leave the apartment carrying various items to the vehicle. Magallanes had no idea why Moody and Rey took the items from the apartment to the truck. Approximately two minutes later, the three of them left for the motel, where Magallanes saw Moody and Rey unload the items.
DISCUSSION
I.
Relying on People v. Riser (1956) 47 Cal.2d 566 (Riser), Magallanes contends the trial court erred in admitting into evidence the shotgun, a .380-caliber handgun and ammunition recovered from the motel because there was no evidence Magallanes used either gun, and such evidence was overly prejudicial. (Id. at p. 577, overruled on other grounds in People v. Morse (1964) 60 Cal.2d 631, 649.) Riser held it was error to admit evidence of weapons, other than the murder weapon, discovered in the defendant's possession at the time of his arrest, several weeks following his commission of the murder, because, "such evidence tends to show, not that he committed the crime, but only that he is the sort of person who carries deadly weapons." (Riser, supra, at p. 577.)
The People point out Magallanes provides no citation for his contention the jury was shown the .380-caliber handgun.
A trial court has wide discretion in determining the admissibility of evidence, that is, in deciding whether the evidence is relevant and whether Evidence Code section 352 precludes its admission. (People v. Lucas (1995) 12 Cal.4th 415, 449; People v. Carter (2005) 36 Cal.4th 1114, 1166-1167.) The trial court's decision to admit evidence will not be disturbed on appeal absent an abuse of discretion.
Leal testified Moody exchanged guns with Magallanes during the robbery, and Magallanes had the shotgun at one point in time. Magallanes was charged as a principal to robberies in which the guns and the ammunition were used. (§ 31.) Shortly after the robbery, the weapons and ammunition were found in the motel room where Magallanes, Moody and Rey were staying. Accordingly, this evidence was relevant to establish facts material to proof of the charged offenses; and, "admission of the guns and the ammunition was not prohibited by the rule stated in Riser." (People v. Neely (1993) 6 Cal.4th 877, 896.)
Section 31 states, "All persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet its commission, or not being present, have advised and encouraged its commission . . . are principals in any crime so committed."
II.
Magallanes contends the prosecutor committed misconduct during closing argument because, in the following exchange, the prosecutor suggested to the jury that the presumption of innocence did not apply, and shifted the burden of proof to the defendant to prove his innocence:
"[Prosecutor:] Something else that's interesting is the defense talked about these females that were at this bungalow here and how Mr. Magallanes was talking to them, that they're, I guess, friends of his, and he knows their names. They haven't testified in this trial. They haven't come in here to tell you they were talking to Mr. Magallanes. They're his friends. [¶] He also said that he made a cell phone call to his mother.
"[Defense attorney:] Objection, that misstates the evidence.
"[Prosecutor:] I'm sorry. He's right. His mother called him.
"The Court: That's correct.
"[Prosecutor:] He received a cell phone call from his mother right before this home invasion robbery. Have you seen any cell phone records to back up what he's saying? No. That should be pretty easy to get if that happened.
"[Defense attorney:] Objection, improper argument.
"The Court: Overruled."
A prosecutor's intemperate behavior violates the federal constitution when it comprises a pattern of conduct so egregious that it infects the entire trial with such unfairness as to make the conviction a denial of due process. (People v. Samayoa (1997) 15 Cal.4th 795, 841.) "A defendant's conviction will not be reversed for prosecutorial misconduct, however, unless it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct. [Citation.] Also, a claim of prosecutorial misconduct is not preserved for appeal if defendant fails to object and seek an admonition if an objection and jury admonition would have cured the injury." (People v. Crew (2003) 31 Cal.4th 822, 839.) "[W]hen the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion." (People v. Ayala (2000) 23 Cal.4th 225, 284.) " 'Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves " ' "the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury." ' " ' " (People v. Hill (1998) 17 Cal.4th 800, 819.)
Generally, a defendant cannot raise a prosecutorial misconduct claim on appeal unless he or she first makes an assignment of misconduct at trial, stating the grounds, and on that basis, requests the jury be admonished to disregard the impropriety. (People v. Samayoa, supra, 15 Cal.4th 795 at p. 841.) "To determine whether an admonition would have been effective, we consider the statements in context." (People v. Edelbacher (1989) 47 Cal.3d 983, 1030.) Here, the claim is waived because Magallanes did not object to the prosecutor's remarks based on prosecutorial misconduct. He also did not request an admonition.
We conclude the prosecutor's comments did not shift the burden of proof to the defendant. The trial court instructed the jury regarding the presumption of innocence and the prosecution's burden of proof in the language of CALJIC No. 2.90. The prosecutor's comment merely referred to the state of the evidence to attack Magallanes' credibility; it did not amount to misconduct. (People v. Thomas (1992) 2 Cal.4th 489, 529.)
III.
Magallanes contends the trial court violated his federal constitutional due process right to present a defense because it erroneously refused his request to instruct regarding accessory after the fact. (CALJIC No. 6.40.) Accessory after the fact is a lesser related — not a lesser included — offense. (See, e.g., People v. Majors (1998) 18 Cal.4th 385, 408.) Both the United States Supreme Court and the California Supreme Court have held there is no constitutional requirement to instruct on a lesser-related offense. (Hopkins v. Reeves (1998) 524 U.S. 88, 97 (Reeves); Schmuck v. United States (1988) 489 U.S. 705 (Schmuck); People v. Birks (1998) 19 Cal.4th 108 (Birks).) The United States Supreme Court explained that a requirement that "an instruction be given on some other offense — what could be called a 'lesser related offense' — . . . is not only unprecedented, but also unworkable. Under such a scheme, there would be no basis for determining the offenses for which instructions are warranted." (Reeves, supra, at p. 97.)
CALJIC No. 6.40, which is based on section 32's definition of an accessory, states: "Every person who, after a felony has been committed, harbors, conceals or aids a principal in that felony, with the specific intent that the principal may avoid or escape from arrest, trial, conviction or punishment, having knowledge that the principal has committed that felony or has been charged with that felony or convicted thereof, is guilty of the crime of accessory to a felony."
Following Reeves and Schmuck, the California Supreme Court held a criminal defendant does not have "a unilateral entitlement to instructions on lesser offenses which are not necessarily included in the charge." (Birks, supra, at p. 136.) The court further noted that its "decision does not foreclose the parties from agreeing that the defendant may be convicted of a lesser offense not necessarily included in the original charge." (Id. at p. 136, fn. 19.)
Magallanes attempts to distinguish these cases, contending instruction regarding accessory after the fact was integral to his defense at trial. He relies on United States v. Brown (8th Cir. 1994) 33 F.3d 1002 (not followed by United States v. Rivera-Figueroa (1st Cir. 1998) 149 F.3d 1, 6-7), which held a federal trial court erred by failing to give an accessory after the fact instruction that functioned as a defense. However, we are bound to follow the opinion of the California Supreme Court — not the opinion of a federal circuit court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 (Auto Equity).) Labeling the offense of accessory a "defense" does not obviate the problems that arise in allowing a defendant to impose instructions regarding lesser related offenses, which are abundantly catalogued in Birks and Reeves. (Birks, supra, 19 Cal.4th at pp. 113- 114, 130-136; Reeves, supra, 524 U.S. at pp. 97-99.)
In any event, any instructional error was harmless beyond a reasonable doubt because of the overwhelming evidence of Magallanes' guilt. (Chapman v. California (1967) 386 U.S. 18, 23-24.) Rey's testimony established that Magallanes drove the vehicle to Leal's apartment, and Magallenes participated in the robbery as a lookout. Magallanes also helped unpack the stolen items at the motel. Leal testified Magallanes used a gun against him while the robbery was ongoing. Magallanes exhibited consciousness of guilt when he ran from the police.
IV.
We reject Magallanes' contention the court erroneously instructed regarding aider and abettor liability because the court did not instruct that "an aider and abettor could be guilty of a lesser crime than the perpetrator or that each aider and abettor could be guilty of a lesser crime than the others."
The California Supreme Court examined the nature of aiding and abetting liability in People v. McCoy (2001) 25 Cal.4th 1111, and explained that when the charged crime and the intended crime are the same, an aider and abettor must know and share the intent of the direct perpetrator. (Id. at p. 1118.) The court held: "[O]utside of the natural and probable consequences doctrine, an aider and abettor's mental state must be at least that required of the direct perpetrator. 'To prove that a defendant is an accomplice . . . the prosecution must show that the defendant acted "with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense." [Citation.] When the offense charged is a specific intent crime, the accomplice must "share the specific intent of the perpetrator"; this occurs when the accomplice "knows the full extent of the perpetrator's criminal purpose and gives aid or encouragement with the intent or purpose of facilitating the perpetrator's commission of the crime." (Id. at pp. 1117- 1118.)
Here, the trial court instructed in the language of CALJIC No. 3.00 as follows: "Persons who are involved in committing or attempting to commit a crime are referred to as principals in that crime. Each principal, regardless of the extent or the manner of participation, is equally guilty. Principals include: (1) Those who directly and actively commit or attempt to commit the act constituting the crime, or (2) Those who aid and abet the commission or attempted commission of the crime."
The court also instructed in the language of CALJIC No. 3.01 as follows: "A person aids and abets the commission or attempted commission of a crime when he or she: (1) with knowledge of the unlawful purpose of the perpetrator, and (2) with the intent or purpose of committing or encouraging or facilitating the commission of the crime, and (3) by act or advice aids, promotes, encourages or instigates the commission of the crime. A person who aids and abets the commission or attempted commission of a crime need not be present at the scene of the crime. Mere presence at the scene of a crime which does not itself assist the commission of the crime does not amount to aiding and abetting. Mere knowledge that a crime is being committed and the failure to prevent it does not amount to aiding and abetting."
"[A] defendant is not entitled to remain mute at trial and scream foul on appeal for the court's failure to expand, modify, and refine standardized jury instructions." (People v. Daya (1994) 29 Cal.App.4th 697, 714.) Magallanes' contention is waived because he failed to proffer pinpoint instructions at trial. As the People correctly point out, Magallanes fails to identify the lesser crime regarding which the trial court should have instructed the jury. In short, the court correctly instructed on the applicable law. If the jury believed Magallanes was an "unwitting participant" and "merely present" when the robbery occurred, it could not have convicted Magallanes under the instructions given.
V.
Magallanes contends the section 12022.53, subdivision (b) personal gun use enhancements on counts 1, 3, and 4 should be stricken because the victims in those counts — who were inside the apartment during the robbery — did not testify at trial, and there was no evidence he used a gun against them, as he never entered the apartment during the robbery. The People counter that the issue is waived because Magallanes did not object to the enhancements in the trial court. Generally, issues of sufficiency of the evidence, including to support enhancements, are never waived. (People v. Neal (1993) 19 Cal.App.4th 1114, 1122; People v. Rodriguez (2004) 122 Cal.App.4th 121, 129.) We accordingly conclude Magallanes has not waived this contention.
The People do not dispute Magallanes remained outside the apartment during the robberies, but rather contend, "The law makes clear that it is 'immaterial' whether appellant used the firearm 'during the actual taking' or against each victim. As long as appellant used a gun any time during and in furtherance of the robbery, the enhancement applies."
" 'The legislative intent behind section 12022.53 is clear: "The legislature finds and declares that substantially longer prison sentences must be imposed on felons who use firearms in the commission of their crimes, in order to protect our citizens and deter violent crime." ' " (People v. Palacios (2007) 41 Cal.4th 720, 725.) Section 12022.53, subdivision (b) mandates that a defendant, who "in the commission of [the underlying felony enumerated in subdivision (a)] personally used a firearm," shall be subject to an additional and consecutive 10-year term. The jury was instructed with CALJIC No. 17.19, the standard firearm enhancement instruction.
The court instructed in the language of CALJIC No. 17.19 as follows: "It is alleged [in Count[s] 1-4 that the defendant Leobardo Magallanes personally used a firearm during the commission of the crime[s] charged. [¶] If you find the defendant guilty of [one or more of] the crime[s] charged, you must determine whether the defendant personally used a firearm in the commission of that felony. [¶] The word 'firearm' includes a handgun. The 'firearm' need not be operable. [¶] The term 'personally used a firearm,' as used in this instruction, means that the defendant must have intentionally displayed a firearm in a menacing manner, intentionally fired it, or intentionally struck or hit a human being with it. [¶] The People have the burden of proving the truth of this allegation. If you have a reasonable doubt that it is true, you must find it to be not true. [¶] Include a special finding on that question in your verdict, using a form that will be supplied for that purpose."
Whether a defendant used a firearm in the commission of an enumerated offense is for the trier of fact to decide. (People v. Masbruch (1996) 13 Cal.4th 1001, 1007 (Masbruch.) We review the sufficiency of the evidence to support an enhancement using the same standard we apply to a conviction. (People v. Olguin (1994) 31 Cal.App.4th 1355, 1382.) Thus, we presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. (People v. Rayford (1994) 9 Cal.4th 1, 23.)
" '[[R]obbery] . . . is not confined to a fixed locus, but is frequently spread over a considerable distance and varying periods of time.' " (People v. Laursen (1972) 8 Cal.3d 192, 199; see People v. McGrath (1976) 62 Cal.App.3d 82, 87.) "The crime is not divisible into a series of separate acts. Defendant's guilt is not to be weighed at each step of the robbery as it unfolds. The events constituting the crime of robbery, although they may . . . take some time to complete, are linked by a single-mindedness of purpose." (People v. Estes (1983) 147 Cal.App.3d 23, 28.) In other words, the crime of robbery begins with the commission of any of the defined elements and is completed when all of the remaining elements have been committed. It is a continuing offense that concludes not just when all the elements have been satisfied but when the robber reaches a place of relative safety. (Ibid.)
"A firearm use enhancement attaches to an offense, regardless of its nature, if the firearm use aids the defendant in completing one of its essential elements." (Masbruch, supra, 13 Cal.4th at p. 1012.) The enhancement is not limited "to situations where the gun is pointed at the victim. . . ." (People v. Granado (1996) 49 Cal.App.4th 317, 322 (Granado).) Personal use of a firearm may be found where the defendant intentionally displayed a firearm in a menacing manner in order to facilitate the commission of an underlying crime. (See People v. Lucas (1997) 55 Cal.App.4th 721, 745; Masbruch, supra, at pp. 1006-1007.)
"Thus when a defendant deliberately shows a gun, or otherwise makes its presence known, and there is no evidence to suggest any purpose other than intimidating the victim (or others) so as to successfully complete the underlying offense, the jury is entitled to find a facilitative use rather than an incidental or inadvertent exposure." (Granado, supra, 49 Cal.App.4th at p. 325.)
The evidence showed that Magallanes displayed a gun in a menacing manner to Leal for the sole purpose of coercing him to stay outside during the ongoing robberies of Leal (the victim in count two) and of the victims who were inside the apartment. We conclude the jury reasonably could have found that Magallanes utilized his display of the gun " 'at least as an aid in completing an essential element of' " the subsequent crimes of robbery. (See Masbruch, supra, 13 Cal.4th at p. 1014.) "In light of the legislative purpose to discourage the use of firearms, it would appear to be immaterial whether the gun use occurred during the actual taking or against the actual victim, so long as it occurred 'in the commission' of the robbery." (People v. Fierro (1991) 1 Cal.4th 173, 226, italics added.)
Magallanes relies on People v. Jackson (1996) 13 Cal.4th 1164, 1221 (Jackson), in which the defendant challenged CALJIC No. 17.19 as being "not sufficient to inform the jury that it could not make a personal use finding based on an aider and abettor's vicarious liability for the principal's use of the firearm." The Jackson court stated, "to construe the instruction to include vicarious liability for firearm use would render the instruction meaningless, something we must presume a reasonable juror would not do." (Jackson, supra, at p. 1221-1222, fn. 11.) The reliance on Jackson is unavailing because the personal use enhancements in counts 1, 3 and 4 do not impute to Magallanes any vicarious liability; rather, the enhancements were found true because Magallanes personally displayed the gun in a menacing manner to Leal during the commission of the four robberies. On these facts, that Magallanes did not also point the gun at the other victims is immaterial, and did not bar a true finding Magallanes personally used a gun during the four robberies.
VI.
Magallanes contends he was denied the right to a jury trial and due process because the trial court imposed consecutive sentences on counts 2, 3 and 4 based on aggravating factors not found true by a jury. Nevertheless, Magallanes properly concedes the California Supreme Court has held there is no constitutional right to a jury trial on factfindings relating to aggravating factors or the judicial factfinding that occurs when a judge exercises discretion to impose consecutive terms under California law, and that this court is bound by that holding. (People v. Black (2007) 41 Cal.4th 799, 823; Auto Equity, supra, at p. 455.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: AARON, J., IRION, J.