Opinion
E041967
9-5-2008
THE PEOPLE, Plaintiff and Respondent, v. BRETT ALAN MAY et al., Defendants and Appellants.
David Joseph Macher, under appointment by the Court of Appeal, for Defendant and Appellant Brett Alan May. Arthur B. Martin, under appointment by the Court of Appeal, for Defendant and Appellant Terrell Law. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Pamela Ratner Sobeck, Supervising Deputy Attorney General, and Christopher P. Beesley, Deputy Attorney General, for Plaintiff and Respondent.
Not to be Published
Defendants Brett Alan May (Defendant May) and Terrell Law (Defendant Law) were jointly tried before two separately empanelled juries. Defendants were charged with robbery, assault and murder. On August 3, 2006, Defendant Laws jury convicted him of one count of first degree murder (Pen. Code § 187, subd. (a)), one count of first degree robbery (§ 211), one count of attempted first degree robbery (§§ 211, 664), and two counts of assault with a firearm (§ 245, subd. (a)(2)). As to the murder, the jury further found a robbery-felony-murder special-circumstance allegation (§ 190.2, subd. (a)(17)(A)) to be true. As to the robbery and attempted robbery, the jury also found that a principal was armed with a handgun (§ 12022, subd. (a)(1)). Defendant Law was sentenced to a determinate term of six years in state prison followed by an indeterminate sentence of life without the possibility of parole.
All further statutory references are to the Penal Code unless otherwise indicated.
On August 4, 2006, Defendant Mays jury convicted him of one count of first degree murder (§ 187, subd. (a)), one count of attempted first degree robbery (§§ 211, 664), and two counts of assault with a firearm (§ 245, subd. (a)(2)). As to the murder, the jury further found a robbery-felony-murder special-circumstance allegation (§ 190.2, subd. (a)(17)(A)) to be true. As to the murder and attempted robbery, the jury found that Defendant May personally and intentionally used a firearm (§§ 12022.53, subd. (b), 1192.7, subd. (c)(8)). The jury also found that a principal was armed during the attempted robbery (§ 12022, subd. (a)(1)). As to the two assault counts, the jury found that Defendant May personally used a handgun (§§ 12022.5, subd. (a)(1), 1192.7, subd. (c)(8)). The trial court sentenced him to a determinate term of 19 years 4 months, followed by an indeterminate term of life without the possibility of parole.
Both defendants appeal.
I. PROCEDURAL BACKGROUND AND FACTS
Nathan Deutsch (Victim) lived in a house with Randy Craig (Craig), Johnny Anderson (Anderson), and Jose Ramirez (Ramirez). Victim sold marijuana and kept it and large sums of cash in a safe in his bedroom. Nathan Powers (Powers) was a regular customer of Victim. Powers introduced Defendant May to Victim and took Defendant May to Victims house a few times to buy marijuana.
Defendant May decided to rob Victim. Powers became aware of the plan and advised Defendant May not to do it. Powers was Victims only Black customer and knew that if Defendant May, who was also Black, robbed Victim, then it would "come back" to Powers and be "bad business." Thus, Powers did not want Defendant May doing anything that could potentially come back to him (Powers) and make him look bad. Although Defendant May told Powers that he would not rob Victim, a robbery was attempted that resulted in Victims death.
In the early morning hours of May 1, 2001, Defendants May and Law went to Victims house, which was located at the end of a cul-de-sac. As Victims roommate, Craig, was leaving the house to go to work, he noticed a car driving down the street. Shortly thereafter, both defendants entered the house. They were wearing ski masks and were armed with guns. They woke Ramirez, who was sleeping on the couch in the living room, and ordered him to the floor. While the first defendant guarded Ramirez, the second defendant sought out Victim the who was asleep in his own bedroom. Although Victim owned a gun, the second defendant was able to seize it before Victim could get it, commenting to Victim, "`What are you doing with this gun? Who are you trying—`you going to shoot somebody. . . ." Meanwhile, the first defendant ordered Ramirez to hand over his jewelry.
When the second defendant returned with Victim into the living room, he (the second defendant) was holding two handguns. He ordered Victim to the floor. As the first defendant guarded both Ramirez and Victim in the living room, the second defendant searched through the house for Victims stash of marijuana and cash. When he (the second defendant) found the safe in Victims bedroom closet, he retrieved Victim from the living room and ordered him to open the safe. Victim refused. The first defendant then brought Ramirez into the bedroom and told him to open the safe. When Ramirez couldnt open it, he was ordered back to the floor in the hallway.
Frustrated with Victims resistance, the second defendant hit and pistol whipped Victim. Victim burst into Andersons bedroom, turned on the lights, and exclaimed, "`Johnny, these motherfuckers are tripping, dude." Anderson woke up and saw Victim was scared and panicking. Anderson then saw defendants come into the bedroom with their guns. The second defendant tried to hit Victim. Victim blocked the blow with his arm, causing the second defendant to drop one of his guns. The second defendant picked up the gun, cursed at Victim, then shot him, killing him instantly. After the gunshot, defendants fled. Anderson ran to a neighbors home to call 911.
II. DENIAL OF MOTION FOR MISTRIAL
Both defendants contend the trial court erred in denying mistrial based upon a witness mentioning polygraph tests on two separate occasions.
A. Trial Court Proceedings
Anthony Washington (Washington) was friends with both Powers and Defendant May. Washington knew that Powers told Defendant May not to rob Victim. Washington also knew that Defendant May disregarded Powerss wishes and decided to commit the robbery anyway. Police interviewed Washington about the murder. Although Washington had cooperated with police during the interview, he was most reluctant to testify at trial. Despite his earlier statements to the police about the planned robbery and subsequent murder, he claimed ignorance about most of what happened. He was also evasive in his answers.
Washington refused to comply with a subpoena to testify and had to be arrested and brought to court.
During questioning, Washington was asked if Powers had asked him (Washington) to tell detectives a story to exonerate Powers and incriminate Defendant May. Washington responded, "No, I dont believe so. Because he had a full alibi, and he passed a lie detector test to clear his name." When counsel objected, the court sustained the objection and admonished the jury to disregard the statement. Later, when asked whether he had anything to do with the murder, Washington answered, "No, sir. Ill take a lie detector test about it too."
During the recess after Washingtons testimony, both defendants moved for mistrial based on Washingtons statements that he would be willing to take a lie detector test and his reference to Powers having taken and passed a polygraph. The court denied the motion and stated: "Well, as to the witness saying—its just emphasizing, no, I had nothing to do with it. Like `Hell, no. He didnt say `Hell, no, but Im just saying— [¶] In referencing the part about Mr. Powers having taken one, thats a different story. But you rightly objected. You rightly asked it be stricken, and rightly so. And Ive done everything on that. Does it rise to that level? No, it does not rise to a level that these two men cannot get a fair trail. This mans a liar. This man is absolutely, unequivocally a liar. [¶] Now, when he starts telling the truth and what the truth is, something he said earlier or today, I dont know. But theres no question that all these people, 30 people here selected by both of you, know that this mans a liar. . . ."
B. Standard of Review
A trial courts ruling denying a motion for mistrial is viewed under the deferential abuse-of-discretion standard. (People v. McLain (1988) 46 Cal.3d 97, 113; People v. Ayala (2000) 23 Cal.4th 225, 282 (Ayala).) "[A] motion for mistrial should be granted only when `"a partys chances of receiving a fair trial have been irreparably damaged."" (Ayala, supra, at p. 282.) Reversal is warranted when it is reasonably probable that a result more favorable to the defendant would have been reached absent the incident. (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)
C. Analysis
Evidence Code section 351.1 prohibits the admission of "any reference" to "the results of a polygraph examination, the opinion of a polygraph examiner," or "an offer to take, failure to take, or taking of a polygraph examination" in a criminal proceeding. (Evid. Code, § 351.1.) The admission of evidence of polygraph examinations is barred because of concerns that the jury will assign too much credence to the results of those examinations. (People v. Kegler (1987) 197 Cal.App.3d 72, 89; People v. Basuta (2001) 94 Cal.App.4th 370, 390.) Defendants contend that Washington violated three of the prohibitions contained in Evidence Code section 351.1 when Washington testified that (1) Powers took a polygraph test, (2) Powers passed the test, and (3) he (Washington) was willing to take a polygraph test. Thus, defendants claim this inappropriate testimony strengthened the credibility of Powers and constituted an attempt to improve Washingtons own standing with the jury. As such, they argue that the trial court abused its discretion in denying their motion for mistrial. We disagree.
Evidence Code section 351.1, subdivision (a) provides: "Notwithstanding any other provision of law, the results of a polygraph examination, the opinion of a polygraph examiner, or any reference to an offer to take, failure to take, or taking of a polygraph examination, shall not be admitted into evidence in any criminal proceeding, including pretrial and post conviction motions and hearings, or in any trial or hearing of a juvenile for a criminal offense, whether heard in juvenile or adult court, unless all parties stipulate to the admission of such results."
Here, it is undisputed that Washingtons testimony about the polygraph tests was improper. We must thus determine whether the error was prejudicial. An error in admission of evidence is prejudicial only if it is reasonably probable the defendant would have obtained a more favorable outcome had it not occurred. (Watson, supra, 46 Cal.2d at p. 836; People v. Schiers (1971) 19 Cal.App.3d 102, 109.) Here, we cannot find prejudice. First, we note that the trial court struck the testimony regarding Powerss polygraph test and admonished the jury to disregard it. Such action cured Washingtons errant statement. (See People v. Young (2005) 34 Cal.4th 1149, 1214 [the jury is presumed to have followed the courts instructions and admonitions].) Second, regarding Washingtons willingness to take a polygraph test, the trial court aptly noted that his demeanor and evasiveness during questioning showed him to be a liar. The fact that he offered to take a polygraph test could not change the picture he had already painted of himself. Third, Powers was also called to testify. Thus, the jury was provided with an opportunity to observe Powers and decide his veracity. Having reviewed the record, we conclude there is no reasonable likelihood that the jury construed the polygraph evidence in an improper manner. (Watson, supra, at p. 836.)
Having failed to find any prejudicial error, we likewise do not find any abuse of discretion in denying the motion for mistrial.
III. LIMITING THE CROSS-EXAMINATION OF POWERS
Defendants theory of the case was that Powers was one of the perpetrators. They claimed that Powers wanted to get his hands on the supply of Chronic (a superior grade of marijuana) which Victim had just received. Defendants further claimed that because Powers was recognized during the crime, he, Morris and Washington attempted to frame Defendants for a crime they did not commit. According to Defendants, it was vital to their defense to be able to completely and thoroughly cross-examine these three witnesses.
A. Trial Court Proceedings
On direct examination, Powers admitted that he purchased significant quantities of marijuana from Victim twice each month. He further stated that his last purchase from Victim occurred about a month or two before Victims murder. On cross-examination, Powers acknowledged that he bought marijuana from Victim for purposes of resale. Defendant Mays counsel established that Victim was Powerss only supplier. On further cross-examination, defense counsel asked whether there were different grades of quality and potency for marijuana. After Powers responded affirmatively, counsel asked whether Victim sold the higher quality marijuana to him (Powers). The prosecutor objected and the trial court sustained the objection. Defendant Mays counsel then asked whether Victim and Powers had discussed Victim having obtained a supply of very high quality marijuana. Powers stated they had not and that there were no arrangements for him to pick up such a supply from Victim.
During the next recess, Defendant Mays counsel explained the reasoning behind her line of questioning. Specifically, she proffered that just before his death, Victim had received a shipment of Chronic. She asserted Powers knew about this shipment and had a motive for robbing Victim. Consequently, defense counsel wanted to ask Powers more questions about the quality of marijuana that Victim sold. The trial court was not persuaded and reaffirmed the ruling excluding "[those] questions of Mr. Powers." Later on, Defendants established that Powerss friend, Washington, knew that Victim had obtained a shipment of Chronic.
Another witness, Ramirez, could not recall whether or not he had told detectives that Victim had just received a shipment of Chronic just before he was murdered.
B. Standard of Review
"The Sixth Amendment provides that `[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him. This federal constitutional right to confront adverse witnesses in a criminal prosecution applies to the states [citation] and is also guaranteed independently by the California Constitution (Cal. Const., art. I, § 15) . . . ." (People v. Brown (2003) 31 Cal.4th 518, 537-538.) "The primary reason an accused is entitled to confront adverse witnesses is to permit cross-examination. [Citations.]" (Id. at p. 538.) One of the purposes of cross-examination is to reveal bias or motive. (People v. Kons (2003) 108 Cal.App.4th 514, 524.)
"Nevertheless, a trial court retains broad discretion over the conduct of trial. In the context of its duty to supervise the questioning of trial witnesses, it has wide discretion to limit questions that are marginally relevant and cumulative." (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1385.) A trial courts imposition of restrictions on cross-examination is reviewed for abuse of discretion. (People v. Farnam (2002) 28 Cal.4th 107, 187; see also United States v. Perkins (9th Cir. 1991) 937 F.2d 1397, 1405.)
C. Analysis
Here, Defendants contend that the purpose of cross-examining Powers was "to expose a motive for the witness to commit a robbery of his drug supplier at the time of the crimes. If [Victim] had on[]hand a significant cache of Chronic marijuana, theft of the contraband would yield a much higher return for Powers on resale than common, run-of-the-mill marijuana." Defendants fault the trial court for prohibiting defense counsel from "developing a line of questioning essential to the defense theory of the case." However, evidence must be relevant if it is to be admissible. (Evid. Code, § 350.) As the People aptly point out and the trial court found, the evidence of the grade of marijuana that Victim sold to Powers was irrelevant. The relevant question was Powerss knowledge of whether or not Victim had obtained a shipment of Chronic just before his death. That question was asked and answered. Accordingly, we find no abuse of discretion in the trial courts ruling.
IV. ADMISSION OF DEFENDANT MAYS HEARSAY STATEMENTS IMPLICATING DEFENDANT LAW
Defendant Law contends the trial court erred in permitting Defendant Mays girlfriend to testify that Defendant May told her that he and Defendant Law committed the robbery and that Defendant Law accidentally shot Victim. Specifically, Defendant Law argues that the admission of this testimony amounted to an "abuse of discretion under Evidence Code section 1230."
A. Trial Court Proceedings
Andretta Jackson (Jackson) was Defendant Mays girlfriend. She gave a statement to the police. Based on that statement, it was anticipated before trial that she would testify that Defendant May told her Defendant Law was involved and was the one who shot Victim. Accordingly, Defendant Laws counsel objected to the admission of Defendant Mays statement to Jackson on the grounds of "hearsay, confrontation, [Sixth] Amendment . . . Aranda-Bruton. " Initially, the trial court indicated its belief that a confrontation issue may preclude the prosecution from using the statement against Defendant Law. In response, the prosecution cited to the case of People v. Samuels (2005) 36 Cal.4th 96 (Samuels).
People v. Aranda (1965) 63 Cal.2d 518 (Aranda); Bruton v. United States (1968) 391 U.S. 123 (Bruton).
In Samuels, the defendant was convicted of the first degree murders of her husband, Robert Samuels, and James Bernstein, the man she had hired to kill him. (Samuels, supra, 36 Cal.4th at pp. 101-107.) During defendants trial, a witness, David Navarro, was allowed to testify that "in discussing Robert Samuelss death, Bernstein said, `He had done it and Mike [Silva] had helped him. And that [defendant] had paid him. Navarro further testified that Bernstein said defendant had paid him, and that Bernstein had skimmed money off the top for himself and then paid the balance to Mike Silva. Bernstein also told Navarro that he paid Silva in cocaine `in lieu of the money." (Id. at p. 120.) On appeal, the defendant challenged the trial courts admission of this hearsay, claiming error under the Sixth, Eighth, and Fourteenth Amendments of the United States Constitution. (Samuels, supra, at p. 120.) Rejecting defendants challenge, our states highest court stated: "Bernsteins statement to Navarro was properly admitted as a statement against penal interest. Under that exception, an otherwise inadmissible hearsay statement may come into evidence if the statement, when made, subjected the declarant to serious risk of civil or criminal liability or to various other serious risks. [Citation.]" (Ibid.)
After considering Samuels, the trial court found the case to be applicable and found the admission of Defendant Mays statements to Jackson to be admissible. The court said: "The theory is, its of such a damning nature that it must be trustworthy as to all parties. And it wasnt given as part of future testimony that was going to be used as an interview with a police officer or things of that nature— [¶] . . . [¶] . . . where the person whos speaking knows that he is trying to push off—like Aranda-Bruton information off on to that other individual." Thus, the trial court concluded that the totality of the circumstances underlying Defendant Mays statements to Jackson rendered the statements to be trustworthy and reliable because Defendant May did not seek to exculpate himself by shifting blame for the crimes to Defendant Law. Rather, Defendant May implicated himself equally with Defendant Law in the crimes. Accordingly, Defendant Mays statements to Jackson qualified as declarations against penal interest, which were admissible against both defendants.
Later on, Jackson testified that Defendant May is the father of her son. In May 2001, Defendant Mays father contacted her and said that he wanted her to leave her apartment. She went to stay with Defendant Mays mother and grandmother. Defendant May showed up with a bump on his head. He told Jackson he had been beaten up because his attackers thought that he was involved in a murder. When Jackson asked, "`What murder?" Defendant May said that he and Defendant Law "went in to rob the guy. [¶] . . . [¶] . . . and that [Defendant Law] got nervous, and he accidentally pulled the trigger." Defendant May told Jackson that Defendant Law shot the person and that was the murder Defendant May was talking about. Defendant May told Jackson that he and Defendant Law had ski masks and were going to rob the victim of marijuana. Defendant May also said that when they got inside the house, there were roommates inside who woke up during the robbery.
After Jacksons testimony, the trial court admitted, over Defendant Laws objection, the testimony of an investigating officer regarding Jacksons statement that both defendants "were the ones that went in and were . . . trying to rob [Victim]. [¶] . . . [¶] . . . [and Defendant] Law had accidentally shot the [Victim]."
B. Standard of Review
The People correctly note that Defendant Laws challenge to the admission of Jacksons testimony is limited to his claim that the trial court abused its discretion under Evidence Code section 1230.
Hearsay, or an out-of-court statement "offered to prove the truth of the matter stated," is generally inadmissible. (Evid. Code, § 1200.) However, Evidence Code section 1230 provides: "Evidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, was so far contrary to the declarants pecuniary or proprietary interest, or so far subjected him to the risk of civil or criminal liability, or so far tended to render invalid a claim by him against another, or created such a risk of making him an object of hatred, ridicule, or social disgrace in the community, that a reasonable man in his position would not have made the statement unless he believed it to be true."
In order to qualify a declaration against penal interest for admission, "[t]he proponent of such evidence must show that the declarant is unavailable, that the declaration was against the declarants penal interest when made and that the declaration was sufficiently reliable to warrant admission despite its hearsay character. [Citation.]" (People v. Duarte (2000) 24 Cal.4th 603, 610-611.) Whether a statement is a declaration against penal interest must be viewed within the context in which it was made. (People v. Greenberger (1997) 58 Cal.App.4th 298, 334-335.) We review a trial courts determination under Evidence Code section 1230 for an abuse of discretion. (People v. Lawley (2002) 27 Cal.4th 102, 153-154.)
C. Analysis
Here, Defendant Law contends that Defendant Mays statements to Jackson did not qualify as a declaration against Defendant Mays penal interest because they placed the blame for the murder on Defendant Law. In response, the People claim that Defendant Law "fails to fully appreciate the extent of how self-inculpatory [Defendant] Mays statements actually were." Specifically, the People point out that Defendant May admitted he and Defendant Law went to Victims home to commit a home invasion robbery; he admitted they wore ski masks and carried guns; and although he asserted that Defendant Law shot Victim, such assertion makes him liable for the felony murder that occurred during the first degree robbery. Given that these admissions are contrary to Defendant Mays interests, the People argue that no reasonable person would have made them had he or she not believed them to be true. (People v. Brown, supra, 31 Cal.4th at p. 536 [admission of accomplices statement of his complicity in a robbery murder].) We agree. In addition to the Peoples observations, we note Defendant May and Jackson had a relationship and a child together. Defendant May clearly trusted Jackson but wanted her to know why she and the child would be staying at his parents home. Thus, we do not find that Defendant Mays statements were made under suspect circumstances.
Moreover, as the People point out, even if the trial court erred in admitting the statements, the error was harmless. Defendant Laws jury concluded that Defendant Law was not the shooter, specifically rejecting the notion that he personally used and discharged a firearm during the robbery by finding the gun use enhancement under section 12022.53, subdivision (d), to be not true. In his reply brief, Defendant Law contends that because the evidence indicated this was an accidental shooting, "the jurys finding the gun use enhancement not true does not show they did not believe [Defendant] Mays hearsay statement shifting blame to [Defendant] Law. The verdicts and findings do not show who the jury believed held the gun that killed [Victim], or even whether they agreed who it was." Contrary to Defendant Laws statement that "all the evidence indicated that whoever held the gun did not mean to fire it," we, like the jury, disagree. This was not "an accidental killing" case. Defendants went to Victims home armed and intent on robbing Victim. Although the jury found that Defendant Law did not personally and intentionally discharge a firearm and proximately cause the death of Victim, such finding cannot be looked at in a vacuum. The jury also found that Defendant Law harbored the intent to kill in order to commit the robbery, facilitate an escape, or avoid detection. Thus, the jury rejected Defendant Mays statements to Jackson that it was Defendant Law who shot Victim.
V. FELONY MURDER SPECIAL CIRCUMSTANCE
Defendant Law points out that the punishments for robbery-felony-murder special circumstance versus first degree murder based on a robbery-felony-murder theory are quite different. While the special-circumstance allegation subjects a defendant to death or life without the possibility of parole, first degree murder based on a robbery-felony-murder theory only subjects a defendant to life with the possibility of parole. Given this difference, Defendant Law contends the statutory scheme constructed through sections 187, 189, and 190.2, subdivisions (a)(17) and (b) (i.e., the robbery-felony-murder special circumstance), is unconstitutionally "vague because it makes no meaningful distinction between first-degree felony murder based on robbery and the robbery-murder special circumstance in this case, section 190.2, subdivisions (a)(17)(A) and (b)." He argues that he "had no way of anticipating whether he would be subjected to the possibility of death or life without possibility of parole, rather than life with the possibility of parole for the first[]degree felony[]murder." We disagree.
Contrary to Defendant Laws claim, we find there is a distinction between a robbery-felony-murder special circumstance and the crime of first degree murder based on a robbery-felony-murder theory. As the People point out, the jury was instructed with CALJIC No. 8.81.17 (Special Circumstances—Murder in the Commission of Robbery). That instruction provides that proof of the special circumstance requires a showing that "[t]he murder was committed in order to carry out or advance the commission of the crime of robbery or to facilitate the escape therefrom or to avoid detection. In other words, the special circumstance referred to in these instructions is not established if the robbery or attempted robbery was merely incidental to the commission of the murder." In contrast, first degree felony murder based on robbery requires only that the killing occur during the commission of the underlying felony. (People v. Williams (1994) 30 Cal.App.4th 1758, 1762.) As such, the jury was instructed with CALJIC No. 8.21 (First Degree Felony Murder), which provides, "The unlawful killing of a human being, whether intentional, unintentional or accidental which occurs during the commission or attempted commission of the crime of robbery is murder of the first degree when the perpetrat[or] had the specific intent to commit that crime."
"The felony-murder rule does not make the basic felony the source of a presumption (assumption, deduction or inference) of premeditation or malice. Rather, it dispenses with premeditation and malice as elements of first degree murder. It is . . . a special expression of state policy designed as a deterrent to the use of deadly force in the course of the enumerated felonies, embracing accidental or negligent as well as deliberate killings. [Citations.]" (People v. Johnson (1974) 38 Cal.App.3d 1, 8.) Unlike the special circumstance, the felony-murder rule applies even to an accidental killing committed during the perpetration or attempted perpetration of the underlying felony. (People v. Cavitt (2004) 33 Cal.4th 187, 197; People v. Navarette (2003) 30 Cal.4th 458, 505 ["if the felony is merely incidental to achieving the murder—the murder being the defendants primary purpose—then the special circumstance is not present, but if the defendant has an `independent felonious purpose (such as burglary or robbery) and commits the murder to advance that independent purpose, the special circumstance is present"].)
Based on the above, we find that the conduct which warrants a special-circumstance allegation, and thus subjects a defendant to death or life without the possibility of parole, is "sufficiently distinct from conduct subjecting a defendant to life with the possibility of parole for first-degree murder . . . ." Nonetheless, Defendant Law claims the only difference between the two is that "the special circumstance only applies to a non-killer involved in the robbery if he or she intended to kill or acted `with reckless indifference to human life [citation], while first-degree felony-murder based on robbery applies to all defendants involved in the robbery, even a non-killer who did not intend to kill. [Citations.] As to an actual killer in the course of a robbery, even if the killing is accidental, the two provisions are identical." Thus, Defendant Law argues he "had no way of anticipating whether he would be subjected to the possibility of death or life without possibility of parole, rather than life with the possibility of parole for first-degree felony-murder."
Although Defendant Law correctly points out that he could be guilty of murder, under a felony-murder theory, even if he did not have the intent to kill; it is also true that if he did have the intent to kill, the jury could find the robbery-murder special circumstance true. (Pen. Code, § 190.2, subd. (c); People v. Anderson (1987) 43 Cal.3d 1104, 1149-1150.) Given the facts in this case, we reject Defendant Laws suggestion that when an accidental killing is involved, the two provisions are identical. As we have previously noted, this was not "an accidental killing" case. Defendants went to Victims home armed and intent on robbing Victim. While the jury found that Defendant Law did not personally and intentionally discharge a firearm and proximately cause the death of Victim, it did find that Defendant Law harbored the intent to kill "in order to carry out or advance the commission of the crime of robbery or to facilitate the escape therefrom or to avoid detection." The jurys finding undermines Defendant Laws claim that this was a mere accidental killing.
VI. CUMULATIVE ERROR DOCTRINE
Defendants contend that errors in this case, taken together, are prejudicial and require reversal of their convictions. Since we find that no individual prejudicial error occurred, we also conclude that there is no cumulative prejudice. (People v. Cook (2006) 39 Cal.4th 566, 608.)
VII. DISPOSITION
The judgment is affirmed.
We concur:
McKINSTER, J.
GAUT, J.