Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. TA087610, Eleanor J. Hunter, Judge. Affirmed in part; modified in part.
Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant Julio Perez.
Emry J. Allen, under appointment by the Court of Appeal, for Defendant and Appellant Eric Sanford.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
ARMSTRONG, Acting P. J.
Appellant Julio Perez was convicted, following a jury trial, of two counts of first degree murder in violation of Penal Code section 187, and three counts of attempted robbery in violation of sections 664 and 211. The jury found true the allegation that a principal was armed with a firearm in the commission of the offenses. The jury found the multiple-murder special circumstance allegation not true and did not reach a decision on the robbery special circumstance allegation.
All further statutory references are to the Penal Code unless otherwise indicated.
Appellant Eric Sanford was convicted, following a jury trial, of two counts of first degree murder in violation of section 187 and two counts of attempted robbery in violation of sections 664 and 211. The jury found true the allegation that a principal was armed with a firearm in the commission of the offenses, but found not true the allegation that appellant Sanford was personally armed and discharged a firearm. The jury found the multiple-murder special circumstance allegation not true and did not reach a decision on the robbery special circumstance allegation.
The trial court sentenced appellant Perez to a total of 52 years to life in state prison and appellant Sanford to 50 years to life in state prison.
Appellants appeal from the judgment of conviction. Appellant Sanford contends that the trial court erred in denying his motion for acquittal pursuant to section 11181.1, the evidence is insufficient to support the verdict on all counts, the trial court erred in admitting evidence of an uncharged offense and in instructing the jury about that offense and abused its discretion in refusing to reduce his conviction and sentence. Appellant Perez contends that his conviction for felony murder is not supported by a qualifying felony, the trial court erred in failing to properly instruct the jury on the natural and probable consequences doctrine and the abstract of judgment does not accurately reflect the court's sentence. We agree that the abstract of judgment must be corrected, as set forth in the disposition. We affirm the judgment of conviction in all other respects.
Facts
During the early morning hours of November 4, 2006, appellant Perez was driving around in a red Ford Explorer. Adam Loza, Gilbert Rivera, Christopher Perez ("Christopher") and Sara Graeff were passengers. Christopher is appellant Perez's brother. He was dating Graeff at the time. They had been drinking beer. According to Graeff, appellant Perez saw appellant Sanford and stopped the car. Appellant Sanford came up to the Explorer and said, "Let me in the car, let me in the car." He had a gun in his hand. After he got into the front seat, he stated, "I just shot someone in the head. The cops are going to be here any second. Let's get out. Let's get out." Appellant Perez did not take the comment seriously and "laughed it off." Appellant Sanford put the gun in a compartment in the back of the Explorer.
Sanford was 15 years old at the time.
Christopher stated that appellants talked about getting some "crack" and "dope." They drove around for about two hours looking to buy the drugs, but were unsuccessful. They ran out of beer. Appellants and Loza discussed doing a "beer run." Christopher defined a beer run as occurring "when someone goes into a liquor store, grabs an 18 pack of beer, and just runs out." Rivera stated that it was appellant Sanford who wanted to do the beer run and Loza agreed to go with him. Christopher stated that appellant Sanford told Loza, "Hold the door for me, I don't want to get locked in there."
About 4:00 a.m., appellant Perez drove to a Mobil service station located at 22240 Avalon Boulevard in Carson (hereafter "Mobil"). The Mobil was open 24 hours a day and consisted of a gas station, automotive repair garage, and a Mobil mini convenience store. The Mobil sold beer, but the beer coolers were locked from 2:00 a.m. to 6:00 a.m. At 4:05 a.m., appellant Perez purchased five dollars worth of gasoline. At 4:07 a.m., appellant Perez pumped the gasoline. A surveillance video showed that at 4:09 a.m., he drove to the back side of the Mobil.
The surveillance video showed that at 4:10 a.m., appellants and Loza got out of the Explorer. Appellant Perez opened up the back of the Explorer. Appellants and Loza congregated at the back of the Explorer and talked. Rivera stated that appellant Perez opened up the back of the Explorer and handed a gun to appellant Sanford. This was not visible on the video. Appellant Perez put a sweater or sweatshirt around Loza's face. The video shows that appellant Sanford had begun to walk away at this time, but turned around after the garment was around Loza's face. Appellant Sanford and Loza walked towards the Mobil. Appellant Perez stayed behind inside the Explorer, with the engine running. About three minutes later, appellant Sanford and Loza ran back and got inside the Explorer. Appellant Perez drove away.
According to Graeff, Loza was crying and stated, "He just shot him, he just shot him." Appellant Perez looked at appellant Sanford and stated, "You killed him?" Appellant Sanford stated, "I counted down from three, and I told that bitch to give me the money, and when she didn't, I shot that bitch and I shot that old fool too." According to Christopher, appellant Sanford explained that he killed the two clerks because they refused to give him the money and to prevent them from being witnesses, stating, "I don't want to go to jail for robbery, so I killed them." Rivera also stated that appellant Sanford acknowledged killing the two clerks because they would not give him the money. Afterwards, Loza was pale and crying. Appellant Sanford "just had a blank stare."
Appellant Perez drove away and told appellant Sanford to stash the gun in the back compartment of the Explorer. Appellant Perez dropped off appellant Sanford, Rivera, Graeff, and Christopher at their homes.
At 5:00 a.m. Ronald Hasty, the owner of the Mobil, went to the Mobil to do "bookwork." There, he found the front door unlocked. Hasty looked for his two employees, Eduardo Roco and Ester Ortiega, who had been working the overnight shift. Roco had been working at the Mobil for a "few years, " and primarily worked the overnight shift. Ortiega had been working at the Mobil for a couple of weeks and was being trained by Roco.
Hasty could not find Roco and Ortiega. Hasty looked around and saw "Slim Jim" beef jerky sticks and "Sour Apple" gummy candies on the counter like "somebody was buying it." The window of the bullet proof glass booth was open about 18 inches. The cash register was inside this booth. The booth's window was similar to a "bank teller window, " with a "slider" under the window where transactions could be conducted. At night the window was usually closed and locked with a deadbolt. A person from the outside should not have been able to open it. Hasty walked to the clear bullet proof glass door of the booth and saw Roco and Ortiega lying dead on the floor. Hasty called 911.
Los Angeles County Deputy Sherriff Tanya Brown responded to the call. Deputy Brown observed that the Mobil's cash register was enclosed in a bullet proof glass booth, but the window to the booth was open. Behind the cash register, Roco and Ortiega were lying, dead.
Roco had suffered a "rapidly fatal gunshot wound" to the chest with an exit wound in his back. The wound was consistent with someone pointing a gun at Roco with the barrel facing straight or slightly downward. Roco did not appear to have any other injuries. Ortiega had suffered a gunshot wound to her upper left back with the bullet in the right side of her chest. The wound was consistent with someone shooting her at a downward angle. Ortiega had bruising and contusions on the left side of her face, around the eye. These injuries were consistent with being struck in the face near the time of her death or falling down after being shot.
Sherriff's deputies found an expended bullet on the ground between Roco and Ortiega. A little green sign on a cigarette case rack had been damaged by a bullet strike. There was no money missing from the cash register.
Fingerprints were taken from the Slim Jims and Sour Apple gummy candies. Five latent prints were found on the Slim Jims. Appellant Sanford's left middle fingerprint matched a print found on one of the Slim Jims.
A Ford Explorer was recovered in front of appellant Perez's home, which was approximately eight to nine miles away from the Mobil. In the back of the Ford Explorer, there is a compartment that can be accessed by removing a panel.
Appellant Perez alone was charged with an additional count of attempted robbery, involving an attempt to rob an AM/PM Mini Market (hereafter "AM/PM"), located at 3479 Motor Avenue in Los Angeles, the previous July. (Count 5.)
At the time of the July 2006 attempted robbery, Dennis Williams was working as the manager of the AM/PM. Williams was in the back of the store when he saw a black Suburban driven by appellant Perez pull up to the front of the AM/PM. There were four men, two women and two babies in the Suburban. Loza's younger brother and appellant Perez's younger brother Javier got out of the Suburban, entered the AM/PM, looked at the beer section, and left. They got back into the Suburban, which drove off.
A short while later, the Suburban returned. Appellant Perez and his two younger brothers, Loza and his younger brother, and Sara Graeff were inside the Suburban. Appellant Perez went inside the AM/PM, paid for some gas, and then pumped the gas. Appellant Perez then drove past the front of the AM/PM and parked in the alleyway. At that point, there was a discussion in the car about doing a "beer run."
Loza's younger brother entered the AM/PM. Javier stayed by the door. Loza's younger brother picked up two 12-packs of Corona beer and approached the counter to purchase the beer. Williams asked for identification. When Loza's younger brother ignored Williams, Williams took the beer from him and put it on the counter by the cash register.
Loza's younger brother went outside and told Javier that the Black guy in the store had taken the beer. Javier went inside and asked Williams why he took the beer. Williams explained that Loza's younger brother did not pay for the beer and did not look old enough to buy beer. (Loza's younger brother was 16 or 17 years old at the time.)
Javier hit Williams in the face, which broke his glasses and cut his nose. A fight ensued. Williams lost his balance and held on to Javier. Loza's younger brother joined the fight. Eventually, Williams was able to get on top of Javier and hold him down. Other AM/PM employees were able to force Loza's younger brother outside the AM/PM, lock the door, and barricade it with a broom. The employees called the police. Loza's younger brother ran into the alley towards the Suburban.
Appellant's brother Christopher, Loza, and Loza's younger brother went to the back of the AM/PM and tried to open the door to free Javier. They could not get the door open, and began throwing beer bottles at the glass. After hearing sirens, the three men fled the scene.
City of Los Angeles Police Officer Walter Leiva arrived at the scene. Police arrested Javier. Officer Leiva interviewed Williams and Nicole Brignac, who was an employee at the AM/PM. During the interview, Williams and Brignac noticed that appellant Perez was at a bus stop on the corner of Motor and Palm, holding a baby.
Officer Leiva approached appellant Perez. Appellant Perez stated that he had an individual go into the AM/PM to do a "beer run." Appellant Perez had the keys to the Suburban.
City of Los Angeles Police Officer Tae Kim was handed the keys to the Suburban. He located the Suburban near a park. Inside the Suburban, there was a man, a woman, and a case of Corona beer, which had four bottles missing. Later, the police took Williams to the Suburban, which was parked "three or four minutes away by the park."
The prosecution also introduced evidence of an uncharged robbery attempt by appellant Sanford the previous October. On October 24, 2006, about 5:20 p.m., appellant Sanford went inside a CVS pharmacy on 650 East El Segundo, put two bottles of gin inside his pants and started to leave the store without paying. He was detained by two security guards. After the guards removed the bottles from appellant's clothing, they attempted to arrest him. Appellant Sanford struggled with the security guards and pulled out a pocket knife. The security guard then took out his baton and appellant Sanford fled. He was later captured by the police.
In his defense, appellant Sanford presented evidence that Officer McElderry believed that Gilbert Rivera was evasive during an interview. Officer McElderry stated that Rivera was evasive about whether appellant Perez had participated in the conversation about the beer run, opened the back of the Explorer, or given something to appellant Sanford and Loza before they went into the Mobil.
Appellant Sanford also testified in his own behalf. After appellant Perez picked him up, appellant Perez took appellant Sanford to appellant Perez's cousin's house. However, appellant Sanford wanted to go home and sleep. Appellant Perez's cousin was not at the house, and appellant Perez said that he would take appellant Sanford home. However, appellant Perez took appellant Sanford to the Mobil. At some point, Loza talked about "jump[ing] out on someone, " or robbing them. Appellant Sanford thought Loza was joking.
Appellant Sanford did not have a conversation about doing a beer run. Appellant Sanford does not drink beer. After he pulled to the back of the Mobil, appellant Perez was on the telephone with his cousin. Appellant Sanford was "drifting off." Appellant Sanford then decided to go inside the Mobil to buy something to eat. He asked the other passengers whether they wanted to go inside, including Loza. No one wanted to go inside the Mobil. Appellant Sanford walked inside the Mobil. Afterwards, Loza walked in with a sweater over his face. Loza pointed the gun at Ortiega and stated, "Give me the money out of the register." Then Roco stated, "Oh, we don't have any money in the register." Loza replied, "Well, give me the money in the drop safe." Roco stated, "We can't get inside the drop safe." Loza stated, "Stop playing games with me. Give me the money out of the safe." At this time, appellant Sanford was standing in the back of the store.
Roco stated, "You might as well shoot me because I can't access the thing." Then, Loza shot Roco and Ortiega. Appellant Sanford did not expect Loza to rob or shoot the clerks. Appellant Sanford did not leave during the robbery because he was in shock. Appellant Sanford did not encourage Loza to shoot Roco or Ortiega. Appellant Sanford did not shoot Roco and Ortiega and did not help Loza in the Mobil.
Loza ran out of the Mobil and told appellant Sanford to follow. Appellant Sanford did not want to follow Loza, but was afraid because Loza had just shot two people. When they got back to the Explorer, Loza stated that he shot the clerks. Appellant Perez responded, "What? You did what? You did what? What?" Appellant Sanford just sat there with a blank stare.
Appellant Sanford admitted that he lied to police when they interviewed him after the murders. During the interview, appellant Sanford referred to appellant Perez as "Diego" and Loza as "Bird."
Appellant Perez also testified in his own behalf. He has never been known as "Diego." Loza has never been known as "Bird." After he went to pump gas at the Mobil, appellant Sanford and Loza wanted to go inside to get beer and candy. Appellant Perez assumed that appellant Sanford and Loza were going to do a beer run. Appellant Perez lifted the hatch of the Explorer to get a "beanie" for Loza, could not find a beanie, and instead gave Loza a shirt to cover his face.
Loza and appellant Sanford went inside the Mobil and came running back. Loza told appellant Perez, "Go. Go, drive." Appellant Sanford brought the gun inside the Explorer. Appellant Perez had never used a gun or seen a gun used during a beer run. Appellant Perez first became aware that two individuals had been shot inside the Mobil when he saw a news story on television.
In rebuttal the People offered the testimony of Officer McElderry that he had interviewed appellant Sanford on November 10, 2006. A recording of the interview was played for the jury. During the interview, appellant Sanford stated that he, appellant Perez, and Loza discussed committing a robbery. Appellant Perez got a gun from a compartment in the back of the Explorer and gave it to Loza. Appellant Sanford was standing next to Loza when appellant Perez gave Loza a shirt to cover his face. Appellant Sanford knew that Loza was going to attempt to rob the Mobil. Appellant Sanford "basically" participated in the robbery by going in and "pretending" to be a customer. Loza then tried to rob the Mobil and killed the clerks. Appellant Sanford did not know that Loza was going to kill the clerks. Appellant Sanford did not have a gun.
Officer McElderry also testified that he interviewed appellant Perez on November 11, 2006. A recording of the interview was played for the jury. Appellant Perez stated that Loza wanted to do a beer run. There was a discussion about getting some beer. After pumping the gas, appellant Sanford and Loza told appellant Perez to drive to the back of the Mobil. Appellant Perez drove to the back of the Mobil. Appellant Perez took his shirt off and gave Loza the shirt to put over his face. Perez knew that they had a gun. Loza told appellant Perez that appellant Sanford had shot the clerks.
Discussion
1. Motion for acquittal
Appellant Sanford contends that the trial court erred in denying his motion for acquittal made pursuant to section 1118.1. He contends that the testimony of Sara Graeff, Christopher Perez and Gilbert Rivera was so inherently unreliable that it could not support his convictions and that there was no evidence that he aided and abetted Loza in robbery attempts. He further contends that the resulting verdicts violate his constitutional rights to due process and a jury trial. We see no error and no violation of appellant's constitutional rights.
Section 11181.1 provides in pertinent part: "In a case tried before a jury, the court on motion of the defendant or on its own motion, at the close of the evidence on either side and before the case is submitted to the jury for decision, shall order the entry of a judgment of acquittal of one or more of the offenses charged in the accusatory pleading if the evidence then before the court is insufficient to sustain a conviction of such offense or offenses on appeal."
In ruling on a motion for acquittal under section 1118.1, a trial court applies the same standard of review as an appellate court reviewing the sufficiency of the evidence. (People v. Harris (2008) 43 Cal.4th 1269, 1286.) The court must consider whether there is any substantial evidence of the existence of each element of the offense charged, sufficient for a reasonable trier of fact to find the defendant guilty beyond a reasonable doubt. (Ibid.) Under the substantial evidence standard, a court reviews "the whole record in the light most favorable to the [prosecution] 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. Cuevas (1995) 12 Cal.4th 252, 260-261, internal quotation marks and citations omitted.)
The standard of review is the same when the prosecution relies on circumstantial evidence to prove guilt. (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) "If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment." (People v. Thomas (1992) 2 Cal.4th 489, 514, internal quotations omitted, citing People v. Bean (1988) 46 Cal.3d 919, 932-933.)
This Court independently reviews the trial court's ruling. (People v. Harris, supra, 43 Cal.4th at p. 1286.) We examine the record as it existed when the defendant made the motion, usually at the end of the People's case in chief. (People v. Ringo (2005) 134 Cal.App.4th 870, 880; People v. Smith (1998) 64 Cal.App.4th 1458, 1464.) Here, the motion was made after appellant Sanford had called his first witness, Officer McElderry, who testified about portions of his interviews with Graeff, Christopher and Rivera.
At the time of appellant Sanford's motion, there was ample evidence that appellant Sanford admitted committing the robbery and killings. Christopher testified that Sanford had a gun with him when he got into the Explorer, and that after the robbery, Sanford stated that he had shot the two employees of the minimart when they did not give him the money he demanded. According to Christopher, Sanford stated that he had shot the man in the chest and the woman in the shoulder. This was corroborated by the physical evidence of the location of the victim's wounds. Graeff also testified that Sanford brought a gun with him into the car. She too testified that Sanford admitted shooting the two employees after they failed to give him the money he demanded. Rivera also testified that Sanford admitted shooting the two clerks after they failed to give him the money. There can be no doubt that this evidence is sufficient to support the trial court's denial of the motion for acquittal.
Sanford contends that the three witnesses were friends and relatives of Loza and so were motivated to testify in a manner favorable to Loza and unfavorable to Sanford. He also contends that Graeff's testimony was influenced by threats from Loza's brother. Sanford also points out that the testimony of each witness was inconsistent with the testimony of the other two witnesses and also internally inconsistent. He points out that the prosecutor described them as liars in his closing argument. Appellant Sanford concludes that the testimony of these witnesses could not support the trial court's denial of his motion for acquittal.
It is not uncommon for a witness to have a reason to testify falsely. That does not disqualify the witness from testifying, or render their testimony insufficient to support a verdict.
Inconsistencies in testimony do not automatically render the testimony unreliable or unbelievable and thus insufficient to support a verdict. (See People v. Wright (1963) 216 Cal.App.2d 866, 870; see also People v. Freeman (1971) 20 Cal.App.3d 488, 495, fn. 1.) "'The testimony of a single witness is sufficient to uphold a judgment even if it is contradicted by other evidence, inconsistent or false as to other portions.'" (In re Robert V. (1982) 132 Cal.App.3d 815, 821, citations omitted; People v. Leigh (1985) 168 Cal.App.3d 217, 221.)
Appellant relies on People v. Medina (1974) 41 Cal.App.3d 438, People v. Green (1951) 102 Cal.App.2d 831 and People v. Hudson (1934) 137 Cal.App. 729 to show unreliability in this case. That reliance is misplaced. In Medina and Green, the witnesses had received a promise of immunity if they testified in a particular manner. That was certainly not the case here. In Hudson, the witnesses were minors who had been coached or tampered with while excluded from the courtroom and instructed not to discuss the case; parts of their testimony was "extremely improbable." Here, there is nothing to suggest that the witnesses were coached by the prosecution. In fact, the prosecutor viewed them as hostile witnesses. Further, none of their testimony about the details of the robbery was extremely improbable.
Unless the testimony is physically impossible or inherently improbable, it is sufficient to support a verdict (People v. Scott (1978) 21 Cal.3d 284, 296). The testimony described by Sanford is not physically impossible or inherently improbable. Thus, it is sufficient to support the denial of the motion to acquit.
Appellant Sanford also argued that the jury's verdicts and findings show that the jury did not believe the above three witnesses' testimony that appellant Sanford was the actual shooter and robber. The jury did ultimately find not true the allegation that appellant personally used a firearm in the commission of the offenses. The trial court's review of the testimony was more limited than the jury's. The court was required to view the evidence in the light most favorable to the prosecution's case. The jury was not. Further the jury's verdict sheds no light on the state of the evidence at the time of appellant's motion for acquittal. It is not possible to know what evidence convinced the jury to decide that appellant Sanford did not personally use a firearm. It could have been Sanford's own testimony or the tape of his interview with police, both of which occurred after the motion for acquittal.
Even assuming for the sake of argument that the testimony of Graeff, Christopher and Rivera could not be considered in evaluating the trial court's denial of Sanford's motion, there was sufficient evidence to support that denial.
Video shows that after purchasing gas, appellant Perez drove his vehicle to the back of the Mobil. Appellant Perez, appellant Sanford and Loza got out of the car. A discussion ensued among appellant Perez, appellant Sanford and Loza. All three men appeared to get, or try to get, something out of the back of the Explorer. Perez gave Loza a sweater, which Loza used to cover his face. Although Sanford had begun to walk away by that time, the video shows him turning around at the time when the sweater was covering Loza's face. There is no dispute that appellant Sanford and Loza then went into the minimart. Appellant Perez turned the vehicle around so that it was facing out, and remained in the vehicle with the engine running and the passenger door open.
This is sufficient evidence to support an inference that the three men were planning some kind of illegal conduct inside the minimart. There was no other reason for Loza to cover his face.
Food items were found on the counter inside the minimart with appellant Sanford's fingerprints on them. This is sufficient evidence to support an inference that, at a minimum, appellant Sanford aided and abetted the robbery by distracting the employees or inducing them to open the security window or preventing them from closing the security window.
Appellant Sanford appears to argue that even if the evidence suggests that Loza and Perez planned a robbery (or burglary) and he was aware of it before entering the minimart, there was no basis to find that he had any purpose other than purchasing food while he was in the minimart. It would be reasonable to infer that a person who is aware that friends are planning to commit a crime in a store and accompanies those friends into the store intends to assist the friends in the commission of the crime. It would be much less reasonable to infer, as appellant suggests, that a person who intended only to make a legal purchase would attempt to do so at a time he knew a robbery would occur.
Since we have determined "that a rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt, the due process clause of the United States Constitution is satisfied [citation], as is the due process clause of article I, section 15, of the California Constitution [citation]." (People v. Osband (1996) 13 Cal.4th 622, 690.) There was no denial of appellant's right to a determination of guilt by a jury based on proof beyond a reasonable doubt.
2. Sufficiency of the evidence
Appellant Sanford contends that the lack of evidence asserted in section 1, supra, was not cured by any evidence presented in the defense case or the prosecution's rebuttal case. He concludes that there was therefore insufficient evidence to support the verdicts on all counts and that his conviction thus violates his constitutional rights to due process and a jury trial.
As we discuss in section 1, supra, there was sufficient circumstantial evidence to support appellant Sanford's conviction under an aiding and abetting theory and there was therefore no violation of his constitutional rights.
The evidence was stronger by the end of trial. During the prosecution's rebuttal case, a recording of appellant Sanford's pretrial statements to police was played for the jury. In that interview, appellant Sanford stated that he knew that Loza was planning a robbery and that Loza had a gun. Sanford went in "pretending like [he] was just a customer." He "basically" participated in the robbery but was not "trying to enforce, like give me that money."
This is more than sufficient evidence to support appellant Sanford's convictions for attempted robbery and murder. As we discuss in section 1, supra, there was no denial of appellant's constitutional rights.
3. Appellant Sanford's prior uncharged bad act
Appellant contends that the only relevance of his uncharged attempted robbery of a CVS store was to show that he had a criminal disposition and that the trial court therefore erred in admitting this evidence. He further contends that this error deprived him of his state and federal constitutional rights to due process. We see no violation of appellant's constitutional rights.
Evidence of a defendant's prior bad acts is inadmissible when it is offered to show that a defendant had the criminal propensity to commit the charged crime. (Evid. Code, § 1101, subd. (a).) Such evidence is admissible if "relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident...) other than [the defendant's] disposition to commit such an act." (Evid. Code, § 1101, subd. (b); People v. Ewoldt (1994) 7 Cal.4th 380, 393-394 [evidence of uncharged similar misconduct, which shows a common design or plan with the charged crime, is admissible under Evidence Code section 1101, subdivision (b)].)
"'The admissibility of other crimes evidence depends on (1) the materiality of the facts sought to be proved, (2) the tendency of the uncharged crimes to prove those facts, and (3) the existence of any rule or policy requiring exclusion of the evidence.' [Citation.]" (People v. Steele (2002) 27 Cal.4th 1230, 1243.)
A trial court's discretion in admitting or excluding evidence will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Rodriguez, supra, 20 Cal.4th at pp. 9-10.)
Here, the trial court found: "It seems like intent is an issue in this case, especially in light of the opening statement that [appellant Sanford's defense counsel gave]. So intent is certainly an issue so it is material."
Appellant Sanford's counsel argued that Sanford did not intend to rob the minimarket, but simply to purchase food. Counsel also contended that Loza acted alone in committing the robbery, Sanford had no knowledge of Loza's plan until the robbery began and did not assist Loza once he realized a robbery was underway.
Appellant Sanford's defense counsel argued that appellant Sanford had "no idea that Adam Loza was going to bring a gun into the minimart. He had no idea that Adam Loza was going to try to rob the clerks, and he had absolutely no idea that Adam Loza was going to pull the trigger and kill those clerks." She explained that appellant Sanford was "under the influence, " had asked to be taken home, and was "drifting in and out." When appellant Perez stopped at a minimarket, appellant Sanford decided to go into the market to buy a snack. "This whole time he had been in the car, drifting in and out, he did not realize that Adam Loza was planning on doing a beer run. He had no idea Adam Loza had a gun."
The prior uncharged offense by Sanford involved a solo attempt to conceal and shoplift two bottles of gin from a drugstore and the brandishing of a knife to resist the security guards' attempts to physically restrain and arrest him when he tried to leave. The fact that a person once attempted to shoplift gin from a drugstore by concealing it in his clothing does not show that he intended to grab beer with a companion and run out of a minimarket. It also does not show that the person had knowledge that a companion would attempt a beer run.
Assuming that other evidence showed that Sanford did intend to participate in a beer run, the CVS incident would have some tendency to show that Sanford intended to use force to resist any attempt to stop his theft of the beer or his escape, an act which would turn theft into robbery. As it turned out, Sanford and Loza were unable to take any beer because the beer was locked up. Nonetheless, Sanford's intent when he entered the minimarket was relevant to the People's alternate theory that the killings were committed in the course of a burglary, since the People argued that the intended felony underlying the burglary was robbery.
Assuming for the sake of argument that the CVS incident should not have been admitted, we see no reasonable possibility or probability that appellant Sanford would have received a more favorable outcome in the absence of the evidence. The evidence against Sanford was very strong. Surveillance video and appellant Sanford's fingerprints show that he was inside the minimarket at the same time as Loza. Sanford's own testimony and statements to police show that he was present when the employees were shot. By all accounts, Loza had planned a beer run at the minimarket. Further, the surveillance video shows that before Sanford entered the store, he looked at Loza at a time when Loza had a garment concealing his face. Sanford's claim that he intended to enter the store and buy a snack at the same time that Loza planned to commit a crime in the store is patently absurd. Further, the CVS incident might ultimately have been favorable to appellant Sanford. Although thwarted in his attempt to shoplift liquor from that store, he did not then try to obtain money or other merchandise by the use of force. He did display a knife, but used it to aid his escape. He did not stab the guards and fled when he had the chance. Thus, the CVS incident shows appellant as someone reluctant to use force.
4. Instruction on the uncharged act
Appellant contends that the trial court's instruction on the use of the uncharged CVS robbery attempt was incomplete because it did not tell the jury that the evidence of the prior robbery attempt was insufficient to find appellant guilty of burglary. He further contends that this error deprived him of his state and federal constitutional rights to due process and to be found guilty beyond a reasonable doubt. We find any error harmless. We see no violation of appellant's constitutional rights.
Respondent contends that appellant has forfeited this claim by failing to object in the trial court. We review the instruction pursuant to Penal Code section 1259.
An erroneous instruction requires reversal only when it appears, after reviewing the instructions as a whole, the error was likely to have misled the jury. (Cal. Const., art. VI, § 13; People v. Owens (1994) 27 Cal.App.4th 1155, 1159.)
"The meaning of instructions is no longer determined under a strict test of whether a 'reasonable juror' could have understood the charge as the defendant asserts, but rather under the more tolerant test of whether there is a 'reasonable likelihood' that the jury misconstrued or misapplied the law in light of the instructions given, the entire record of trial, and the arguments of counsel." (People v. Dieguez (2001) 89 Cal.App.4th 266, 276.)
Here, we see no reasonable likelihood that the jury would have understood the trial court's instruction on the uncharged offense as permitting them to find appellant guilty of burglary on the basis of that uncharged offense alone.
The jury was instructed that, if the prosecution proved that appellant Sanford had committed the prior attempted robbery, they could "consider that evidence for the limited purpose of deciding whether or not: [¶] The defendant acted with the intent to commit robbery as alleged in this case; [¶] The defendant had a motive to commit the offenses alleged in this case; [¶] The defendant had a plan or scheme to commit the offenses alleged in this case." The jury was also instructed that the uncharged offense was "not sufficient by itself to prove that the defendant is guilty of attempted robbery." The jury was instructed to "not consider this evidence for any other purpose except for the limited purpose of determining the defendant's credibility." The jury was expressly admonished, "Do not conclude from this evidence that the defendant has a bad character or is disposed to commit crime."
The instruction clearly conveyed that the uncharged offense was admitted for a limited purpose and set forth what that purpose was. The jury would have had to disregard that limiting language, other instructions stating that the prosecution was required to prove every element of each offense and their own common sense in order to believe that they could convict Sanford of burglary (but not robbery) based solely on a prior uncharged robbery. The jury would have had to have done so without any suggestion from the prosecution that they could do so, since the prosecution did not argue that the jury could find that appellant Sanford committed the crimes in this case because he had committed a prior attempted robbery. The jury would also have had to ignore appellant Sanford's counsel's reminder in closing argument that the evidence had been admitted for a limited purpose. We see no reasonable likelihood that the jury would so misconstrue the law. Thus, even if the instruction was "incomplete" there was no prejudice to appellant Sanford.
5. Dillon motion
Appellant Sanford contends that the trial court abused its discretion in denying his motion to have his first degree murder conviction reduced to voluntary manslaughter pursuant to People v. Dillon (1983) 34 Cal.3d 441. Appellant Sanford argues that his sentence should have been reduced because he was only 15 years old at the time of the offenses, he was only an aider and abettor to the attempted robbery, and he had rehabilitated himself. We see no abuse of discretion.
The trial court denied appellant Sanford's motion because even at 15 years old appellant Sanford was "no stranger to the justice system, " and was "one of the most dangerous people [the trial court] had come across in a long time" because he was "incredibly manipulative." The court also based its denial on appellant Sanford's "involvement in the case."
Dillon is based on In re Lynch (1972) 8 Cal.3d 410. In Lynch, our Supreme Court held that the punishment imposed on a defendant violates the California Constitution if "it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity." (Id. at p. 424, fn. omitted.) The Lynch Court established three techniques to administer this rule. First, courts should examine the nature of the offense and/or the offender. (Id. at p. 425.) Second, courts should compare the punishment with the penalty for more serious crimes in the same jurisdiction. (Id. at p. 426.) Third, courts should compare the punishment to the penalty for the same offense in different jurisdictions. (Id. at p. 427.)
Considering the last two factors of Lynch first, there is nothing disproportionate about appellant Sanford's sentence of 50 years to life in prison for two counts of felony-murder. A sentence of death for participation in felony-murder has been found not to violate the Eighth Amendment. (Tison v. Arizona (1987) 481 U.S. 137, 158 [107 S.Ct. 1676, 95 L.Ed.2d 127] [the Eighth Amendment does not prohibit the death penalty as disproportionate in the case of a defendant whose participation in a felony that resulted in murder is major and whose mental state is one of reckless indifference to human life]; People v. Pollock (2004) 32 Cal.4th 1153, 1195 ["This court has consistently rejected the claim that the statutory special circumstances, including the felony-murder special circumstance, do not adequately narrow the class of persons subject to the death penalty"].) Thus, appellant Sanford's sentence of 50 years to life in prison, a lesser sentence to death or life in prison without parole, for his role in two felony murders does not constitute cruel and/or unusual punishment.
The Court in Dillon relied heavily on the first factor in Lynch, the nature of the offender and the offense. The facts of Dillon do not assist appellant Sanford. Dillon was an unusually immature 17-year-old with no prior criminal background. Dillon and some friends decided to steal some marijuana from a nearby farm. They were hiding when approached by an armed guard. Dillon fired his shotgun nine times and killed the guard. Dillon was convicted of first degree felony-murder and eventually sentenced to life in prison with the possibility of parole. None of his friends were convicted of any degree of homicide. (People v. Dillon, supra, 34 Cal.3d at pp. 451-452, 488.) The majority of the Court held Dillon's sentence of life in prison for first degree murder violated the California Constitution, and reduced the conviction to second degree murder. (Id. at p. 489.)
Appellant Sanford was not unusually immature at the time of the crime, but was an "incredibly bright person, " "articulate, " and "incredibly manipulative." He had an extensive criminal history as detailed in the probation report. The two co-participants were convicted of homicide and given sentences comparable to appellant Sanford's sentence. Appellant Perez was sentenced to 50 years to life in state prison and Loza was sentenced to life in prison without the possibility of parole.
We do not agree with appellant Sanford that the trial court based its decision on "untrue facts." At the hearing, appellant Sanford's defense counsel argued that the jury found that appellant was not the shooter because the personal arming and use enhancements were found untrue. Thus, she "deduc[ed] that the jury found that Mr. Loza" was the shooter. The prosecutor responded, "that doesn't mean or doesn't say to me that they found that he was not the shooter, just that there was insufficient evidence that was presented to prove whether he did the shooting or not." Defense counsel argued that the jury found that appellant Sanford did not have an intent to kill the clerks and told the trial court that the jury was "hung" on the special allegation that appellant Sanford was a major participant who acted with reckless indifference to human life. The trial court denied appellant Sanford's Dillon motion without reference to whether appellant Sanford was armed with, or used, a firearm.
Appellant Sanford has failed to affirmatively show that the trial court based its decision on "untrue facts, " but merely speculates that the trial court erred. Therefore, appellant Sanford's sentence was not cruel and/or unusual or disproportionate and the trial court did not err when it denied appellant Sanford's Dillon motion.
6. Burglary
Appellant Perez contends the trial court erred in instructing the jury that under the felony-murder rule, appellant could be guilty of first degree murder based upon his participation in a burglary where someone was killed. He contends that the "beer run" planned in this case is not an inherently dangerous felony and the Legislature could not have intended that such an inherently non-dangerous felony be the basis for a murder conviction. We see no error.
Respondent contends that appellant has forfeited his claim by failing to object in the trial court. We review the claim of error pursuant to section 1259.
The felony-murder rule is set forth in section 189 and provides in pertinent part that all murder "committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, " and other specified crimes is first degree murder.
As the California Supreme Court has explained: "We find no ambiguity in the language of section 189. It provides that a killing committed in the perpetration of or attempt to perpetrate the enumerated felonies, including burglary, is first degree murder. Burglary has been a delineated felony supporting first degree felony murder since section 189 was enacted in 1872, and indeed since the crime of murder was divided into first and second degree in 1856. (Stats. 1856, ch. 139, § 21, p. 219; see Chun [(2009)] 45 Cal.4th [1172] at p. 1185, 91 Cal.Rptr.3d 106, 203 P.3d 425.) In enacting section 189, the Legislature did not limit the definition of burglary, or exclude burglaries based upon [the underlying intended felony]. Rather, section 189 applies the felony-murder rule to all burglaries." (People v. Farley (2009) 46 Cal.4th 1053, 1118-1119, fn. omitted.)
The Court emphasized that although it is the duty of the Court to ascertain legislative intent, "[i]n the context of first degree felony murder, however, there is no need for interpretation of the Legislature's clear language... [T]here is no room for interpretation when the Legislature has defined first degree felony murder to include any killing 'committed in the perpetration of, or attempt to perpetrate, ... burglary.' (§ 189.)" (People v. Farley, supra, 46 Cal.4th at p. 1119.)
There is no question that the "beer run" referred to in this case would be a burglary. Both the language of section 189 and of the Supreme Court in Farley make it clear that section 189 applies the felony-murder rule to all burglaries. The trial court correctly instructed the jury on this issue.
7. Natural and probable consequences doctrine
Appellant Perez contends that because the trial court instructed the jury on part of the natural and probable consequences doctrine, the court was required to give complete instructions on the doctrine sua sponte for the attempted robbery charges. He further contends that the failure to do so requires reversal of the attempted robbery convictions.
He also contends that it requires reversal of the murder convictions based on his claim that "beer run" burglary cannot support first degree felony murder. As we discuss, supra, appellant is incorrect.
In context, the court told the jury: "A person may be guilty of a crime in two ways. One, he may have directly committed the crime. I will call that person the perpetrator. Two, he may have aided and abetted a perpetrator, who directly committed the crime. A person is equally guilty of the crime whether he committed it personally or aided and abetted the perpetrator who committed it. [¶] Under some specific circumstances, if the evidence establishes aiding and abetting of one crime, a person may also be found guilty of other crimes that occurred during the commission of the first crime." (Italics added.) The trial court then instructed the jury on the general rules of aiding and abetting.
The italicized portion of the instruction above is taken from CALCRIM No. 400 explaining the natural and probable consequences doctrine. It appears that the trial court inadvertently included this paragraph.
The trial court's duty to instruct on the natural and probable consequences doctrine is "quite limited... [and] arises only when the prosecution has elected to rely on [that] theory of accomplice liability, " and then, only when substantial evidence supports the theory. (People v. Prettyman (1996) 14 Cal.4th 248, 268-269.)
Here, the prosecutor did not rely on the natural and probable consequences doctrine and did not request that the jury be instructed on the doctrine for the attempted robbery charges. The prosecutor's theory was that Perez planned a robbery from the beginning. The prosecutor argued that if the jury believed that appellants only intended to do a beer run, it would be burglary, not attempted robbery. Thus, the trial court did not have a sua sponte duty to instruct on the natural and probable consequences doctrine.
We see no prejudice to appellant from the partial instruction given by the trial court. That instruction stated that it applied only "under some specified circumstances." No such circumstances were ever specified. Appellant may be correct that a jury would wonder what those circumstances might be, but there is no reason to believe that a jury would have decided that the burglary/robbery situation was such a circumstance. The jury was clearly instructed: "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 a perpetrator carried away the property to a place of temporary safety." Thus, the jury was told that a defendant had to intend to aid and abet the crime of robbery to be found guilty of robbery. There was nothing to suggest that a defendant who intended to aid and abet a burglary could be found guilty of robbery.
8. Perez's abstract of judgment
Appellant Perez contends and respondent agrees that the abstract of judgment must be corrected to reflect the trial court's oral pronouncement of judgment. We agree as well.
At the sentencing hearing, the trial court ordered appellant Perez's two-year sentence for the count 5 attempted robbery to run concurrently with his 50-year-to-life sentence for the murder convictions. The minute order and the abstract of judgment show the count 5 two-year sentence running consecutively to the 50-year-to-life sentence for murder.
The rendition of judgment is the oral pronouncement of sentence. (People v. Mesa (1975) 14 Cal.3d 466, 471.) The recording of the judgment and sentence in the minutes or in the abstract of judgment is a purely ministerial act done by the court clerk. If there is any discrepancy between the judgment as pronounced and the judgment as entered in the minutes, the judgment as pronounced governs. (Id. at pp. 471-472.) An appellate court has the inherent power to correct any clerical errors in the abstract of judgment to reflect the true nature of the judgment or proceedings. (People v. Mitchell (2001) 26 Cal.4th 181, 184-185.) Accordingly, we order the abstract corrected to show the two-year term running concurrently to the 50-year-to-life term.
Disposition
The abstract of judgment is ordered corrected to show that appellant Perez's two year sentence for the count 5 attempted robbery is imposed concurrently to the 50-year-to life sentence for murder and that his total term is 50 years to life. The clerk of the superior court is directed to prepare an amended abstract of judgment reflecting this correction and to deliver a copy to the Department of Corrections and Rehabilitation. The judgment is affirmed in all other respects.
We concur: MOSK, J., KRIEGLER, J.