Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County Super. Ct. No. SCS185210, Esteban Hernandez, Judge.
AARON, J.
I.
INTRODUCTION
A jury found Andre Jamal Robinson guilty of first degree murder (Pen. Code, § 187, subd. (a)) and found that Robinson personally used a firearm during the commission of the offense (§ 12022.5, subd. (a).) In addition, the jury found true a special circumstance within the meaning of section 190.2, subdivision (a)(17), namely, that Robinson committed the murder while he was engaged in the commission of a rape (§ 261). The trial court sentenced Robinson to life without the possibility of parole.
Unless otherwise specified, all subsequent statutory references are to the Penal Code.
On appeal, Robinson claims that the trial court erred in failing to instruct the jury sua sponte on the offense of being an accessory after the fact. Robinson also claims that he received ineffective assistance of counsel because his trial counsel failed to request a jury instruction on the offense of accessory after the fact. We conclude that Robinson was not entitled to have the jury instructed on an offense that is neither a lesser included offense nor a defense to the charged offense. In addition, Robinson claims that the trial court erred in instructing the jury pursuant to CALCRIM No. 224, regarding the manner in which the jury was to consider circumstantial evidence. We reject this claim as well and affirm the judgment.
II.
FACTUAL BACKGROUND
A. The People's case
On March 22, 1995, at approximately 2:00 a.m., the victim, Pamela Shelley, went to work as a prostitute in the area of 32nd Street and Ocean View in San Diego. At some time before 4:00 a.m., Robinson and Adrian Southerland propositioned Shelley for sex. Shelley agreed to have sex with the two men. Southerland drove Robinson and Shelley to Lauderbach Park in Chula Vista.
The People charged Southerland as a codefendant. However, prior to trial, the trial court severed the cases against Robinson and Southerland. Southerland is not a party to this appeal.
After the group got out of the car, Robinson began to hit Shelley and told her to remove her clothes. Holding a gun in his hand, Robinson told Shelley to perform oral sex on him. Southerland had oral and vaginal sex with Shelley. Southerland then held Shelley's feet back while Robinson had vaginal sex with her. At some point during the sex acts, Robinson held a gun to Shelley's head. When Robinson finished, Shelley started to get up off the ground. As she did so, Robinson shot her several times in the torso with a gun. Shelley died from the gunshots.
DNA evidence taken from Shelley's mouth and vagina matched Robinson's DNA. In addition, Robinson's fingerprint was on a beer bottle that police found at the scene. The People played an audiotaped confession for the jury in which Robinson admitted to raping and shooting Shelley.
B. The defense
Robinson testified at his trial. Robinson stated that on the night in question, he had consensual sex with Shelley in the park. After he and Shelley finished having sex, Southerland began to have sex with Shelley. Robinson walked a short distance away. After approximately five minutes, Robinson heard two or three gunshots. Robinson turned and saw Shelley on the ground and Southerland running toward him. Robinson ran to the car, and Southerland got in the car. After reaching the car, Robinson asked Southerland something to the effect of, "Why did you shoot her?" Southerland did not answer. Robinson and Southerland drove to Robinson's apartment complex, and Robinson went into his apartment. Robinson believed that after Southerland dropped off Robinson, Southerland went to a nearby apartment to pick up his children.
Robinson testified that his confession to the police was false. He maintained that he had just "[given] in and told them what I thought they wanted to hear."
III.
DISCUSSION
A. Robinson was not entitled to have the jury instructed regarding the offense of accessory after the fact
Robinson claims that the trial court erred in failing to instruct the jury sua sponte regarding the offense of being an accessory after the fact. Robinson argues that he was entitled to this instruction pursuant to his "federal constitutional right to have the jury instructed on the defense theory of the case." Robinson maintains that the trial court's failure to give this instruction deprived him of the right to a jury trial and his right to due process. We apply the de novo standard of review to Robinson's claim. (See People v. Posey (2004) 32 Cal.4th 193, 218 [stating that whether jury instructions correctly state the law is reviewed de novo].)
Robinson also claims that his counsel was ineffective for failing to request an accessory after the fact instruction. "A claim of ineffective assistance of counsel presents a mixed question of fact and law, which is generally subject to de novo review, especially where constitutional rights are implicated. [Citation.]" (In re Alcox (2006) 137 Cal.App.4th 657, 664-665.)
1. Factual and procedural background
Robinson testified regarding his version of the incident in question, as described in part II.A.2., ante.
Robinson's counsel did not request a jury instruction regarding the offense of being an accessory after the fact, and the trial court did not instruct regarding that offense.
2. Governing law
a. The trial court's duties with respect to jury instructions in a criminal case
"California decisions have held for decades that even absent a request, and even over the parties' objections, the trial court must instruct on a lesser offense necessarily included in the charged offense if there is substantial evidence the defendant is guilty only of the lesser." (People v. Birks (1998) 19 Cal.4th 108, 118 (Birks).) However, a defendant has no right, under either the federal or state Constitution, to an instruction on a lesser related offense. (Hopkins v. Reeves (1998) 524 U.S. 88, 97 (Hopkins); Birks, supra, 19 Cal.4th at. p. 124.) "The trial court is charged with instructing upon every theory of the case supported by substantial evidence, including defenses that are not inconsistent with the defendant's theory of the case." (People v. Montoya (1994) 7 Cal.4th 1027, 1047.)
In People v. Valentine (2006) 143 Cal.App.4th 1383, 1385 (Valentine), the court considered whether a defendant who had been charged with robbery was entitled to a requested instruction on the uncharged offense of receiving stolen property. The defendant acknowledged that receiving stolen property is not a lesser included offense of robbery. (Id. at p. 1387.) Citing Birks, the Valentine court noted that the defendant was not entitled to the instruction on receiving stolen property as a lesser related offense to robbery in light of the prosecution's objection to the instruction. (Valentine, supra, 143 Cal.App.4th at p. 1387.)
The Valentine court went on to consider whether the defendant "was entitled to the requested instruction because the omission amounted to a failure to instruct on a defense theory ─ that he received property he knew to be stolen but that he did not steal it." (Valentine, supra, 143 Cal.App.4th at p. 1387.) "In essence, the defendant contends that he has a right to have the jury instructed on the elements of a crime not charged in order to urge the jury that he is not guilty of the charged offense but that he is guilty of something else." (Ibid.) The Valentine court emphatically rejected this claim, noting that it "would turn Birks on its head." (Ibid.; see also id. at p. 1388 ["To paraphrase Winston Churchill, this is the sort of thing up with which we will not put"].) The Valentine court reasoned in part:
"[T]he offense of receiving stolen property is not a defense to robbery; rather, it is a theory of criminal liability based on a different offense. Thus, the failure to give the instruction did not impinge on Valentine's right to present a defense to robbery. It simply reflected the fact that the prosecutor chose not to file on the other charge. We do not suggest, however, that Valentine could not argue to the jury that his culpability was as one who was in possession of stolen property but not one who committed a robbery." (Ibid.)
In Hopkins, the United States Supreme Court held that the federal Constitution does not require state trial courts to provide jury instructions "on offenses that are not lesser included offenses of the charged crime under state law." (Hopkins, supra, 524 U.S. at p. 90.) The Hopkins court reasoned in part:
"Almost all States . . . provide instructions only on those offenses that have been deemed to constitute lesser included offenses of the charged crime. [Fn. omitted.] We have never suggested that the Constitution requires anything more. The Court of Appeals in this case, however, required in effect that States create lesser included offenses to all capital crimes, by requiring that an instruction be given on some other offense ─ what could be called a 'lesser related offense' ─ when no lesser included offense exists. Such a requirement is not only unprecedented, but also unworkable." (Id. at pp. 96-97.)
b. The offense of being an accessory after the fact
Section 32 provides, "Every person who, after a felony has been committed, harbors, conceals or aids a principal in such felony, with the intent that said principal may avoid or escape from arrest, trial, conviction or punishment, having knowledge that said principal has committed such felony or has been charged with such felony or convicted thereof, is an accessory to such felony."
c. Defense counsel has no obligation to make a futile request for a jury instruction
In People v. Slaughter (2002) 27 Cal.4th 1187, 1222, the California Supreme Court rejected a defendant's claim that he had received ineffective assistance of counsel where his counsel could reasonably have concluded that the defendant's request for certain jury instructions would have been properly denied:
"Defendant asserts that trial counsel was ineffective in failing to request that the second penalty phase jury be instructed on lingering doubt. As we have observed, [citation], defendant has no state or federal constitutional right to such an instruction, and trial counsel reasonably may have concluded that such a request would be futile. [Citation.]"
3. Application
We assume, without deciding, that Robinson's testimony constituted sufficient evidence for the jury to have found him guilty of the offense of being an accessory after the fact. (See People v. Abilez (2007) 41 Cal.4th 472, 520 [concluding evidence was sufficient to warrant accessory instruction as to codefendant where codefendant was at scene of murder, had knowledge of facts that gave rise to the inference that defendant was harming victim, and left the scene with defendant].) However, for the reasons discussed below, even assuming that there was sufficient evidence to find Robinson guilty of the offense of being an accessory after the fact, Robinson was not entitled to a jury instruction on this uncharged offense.
It is clear that Robinson was not entitled to an accessory instruction as a lesser included offense, because being an accessory after the fact is not a lesser included offense to murder. (People v. Majors (1998) 18 Cal.4th 385, 408.) It is also clear that neither the state nor the federal Constitution requires that a trial court instruct on uncharged lesser related offenses, even upon request. (Hopkins, supra, 524 U.S. at p. 97; Birks, supra, 19 Cal.4th at p. 124.) Robinson does not argue that he was entitled to an accessory instruction as a lesser related offense instruction.
Beyond an isolated reference in his opening brief to his "accessory after the fact defense," Robinson also does not suggest that being an accessory after the fact is a defense to murder. We are aware of no authority that would support such a proposition, and Robinson cites none. In his reply brief, Robinson acknowledges that "accessory after the fact is not an affirmative defense to murder." Rather, Robinson argues that he had a federal constitutional right to have the jury instructed on the offense of accessory after the fact, pursuant to his "federal constitutional right to the have jury instructed on the defense theory of the case." The Valentine court rejected a claim that was nearly identical to Robinson's, noting that the defendant was not entitled to such an instruction even upon request. (Valentine, supra, 143 Cal.App.4th at p. 1387; accord Hopkins, supra, 524 U.S. at p. 91 [broadly stating that instruction on lesser related offense is not "constitutionally required"].) We agree with the Valentine court.
Robinson does not argue that the prosecutor would have agreed to an instruction regarding accessory after the fact if defense counsel had requested one.
Robinson does not cite any case in which a court has held that a defendant's right to have the jury instructed on the defense theory of the case entitles the defendant to a jury instruction on an offense that is not a lesser included offense to the charged offense. None of the federal cases Robinson cites in his brief so hold. Rather, these cases all involve either instructions pertaining to a defense to the charged offense (Mathews v. U.S. (1988) 485 U.S. 58, 59; Bradley v. Duncan (9th Cir. 2002) 315 F.3d 1091, 1098; Taylor v. Withrow (6th Cir. 2002) 288 F.3d 846, 851; Tyson v. Trigg (7th Cir. 1995) 50 F.3d 436, 447; U.S. v. Escobar de Bright (9th Cir. 1984) 742 F.2d 1196, 1198), or instructions on lesser included offenses (Conde v. Henry (9th Cir. 1999) 198 F.3d 734, 739-740; Bashor v. Risley (9th Cir. 1984) 730 F.2d 1228, 1240). As noted above, Robinson does not argue that being an accessory after the fact is either a defense to murder, or that it is a lesser included offense of murder.
People v. Schmeck (2005) 37 Cal.4th 240 (Schmeck), which Robinson cites, does not in any way suggest that Robinson was entitled to a jury instruction on accessory after the fact. In Schmeck, a defendant who was charged with robbery and murder claimed that the trial court erred in failing to instruct the jury on being an accessory after the fact. (Id. at p. 291.) Citing Birks, supra, 19 Cal.4th at. p. 136, the Schmeck court stated that the defendant was not entitled to such an instruction as a lesser related offense instruction. (Schmeck, supra, 37 Cal.4that pp. 291-292.) The court went on to consider the defendant's claim that the failure to provide the instruction violated his right to present a defense. The Schmeck court rejected that claim, reasoning, "Nor, contrary to his assertion, was defendant deprived of an adequate opportunity to present his defense. The jury fully was apprised of the theory of the defense through defendant's statement to the police, the defense's impeachment of prosecution witnesses, and defense counsel's closing argument." (Id. at p. 292.) Thus, far from supporting Robinson's argument, the Schmeck court held that a defendant's right to present a defense was not violated by the trial court's failure to instruct the jury on the offense of accessory after the fact.
Robinson does not argue that the trial court improperly restricted his ability to offer testimony or argument regarding his theory of the case.
Accordingly, we conclude that the trial court was not required to instruct the jury sua sponte on the offense of being an accessory after the fact. We further conclude that Robinson's counsel was not ineffective for failing to request such an instruction, because any such request would have been futile.
In light of our conclusion, we need not consider the People's argument that Robinson forfeited this claim by failing to request an accessory after the fact instruction in the trial court.
B. The trial court did not err in instructing the jury pursuant to CALCRIM No. 224 regarding the jury's consideration of circumstantial evidence
Robinson claims that the trial court violated his constitutional rights to due process and to a jury trial in instructing the jury pursuant to CALCRIM No. 224 regarding the manner in which the jury was to consider circumstantial evidence. Robinson argues that under the circumstances of this case, it was error for the court to instruct the jury pursuant to CALCRIM No. 224 because doing so implied to the jury that the cautionary principles enumerated in that instruction did not apply to the jury's consideration of the direct evidence presented in the case. Robinson claims that there is a reasonable likelihood that the jury applied CALCRIM No. 224 in such a fashion so as to reduce the People's burden of proving him guilty beyond a reasonable doubt.
We apply the de novo standard of review to Robinson's claim. (See People v. Posey, supra, 32 Cal.4th at p. 218.)
1. Factual and procedural background
The People presented direct evidence of Robinson's guilt, including his confession to Shelley's murder. The People also presented circumstantial evidence of Robinson's guilt, including DNA and fingerprint evidence. Robinson testified that his confession was false, and that although he was present at the murder scene and had consensual sex with the victim, he neither raped nor killed her.
The trial court instructed the jury regarding the presumption of innocence and the prosecution's burden of proof pursuant to a modified version CALCRIM No. 220, as follows:
"The fact that a criminal charge has been filed against the defendant is not evidence that the charge is true. You must not be biased against the defendant just because he has been arrested, charged with a crime, or brought to trial.
"A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove each element of a crime and special allegation[s] beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt.
"Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt.
"In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he's entitled to an acquittal and you must find him not guilty."
In addition, the court instructed the jury pursuant to CALCRIM No. 223 in relevant part as follows:
"Both direct and circumstantial evidence are acceptable types of evidence to prove or disprove the elements of a charge, including intent and mental state and acts necessary to a conviction and neither is necessarily more reliable than the other. Neither is entitled to any greater weight than the other. You must decide whether a fact in issue has been proved based on all the evidence."
The trial court also instructed the jury pursuant to CALCRIM No. 224 as follows:
"Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt.
"Also, before you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable."
2. The trial court did not err in instructing the jury pursuant to CALCRIM No. 224
Robinson states in his brief that the "direct evidence, if believed, was highly incriminating." He then discusses his confession as well as the DNA and fingerprint evidence as examples of direct evidence. We reject Robinson's characterization of the evidence in this case.
"Circumstantial evidence is that which is applied to the principal fact, indirectly, or through the medium of other facts, from which the principal fact is inferred." (People v. Rivera (2003) 109 Cal.App.4th 1241, 1244.) Thus, the DNA and fingerprint evidence constituted circumstantial evidence of Robinson's guilt. (See People v. Prince (2007) 40 Cal.4th 1179, 1190 [listing DNA as part of the circumstantial evidence in the case]; People v. Snow (2003) 30 Cal.4th 43, 68 [listing a fingerprint as part of the circumstantial evidence in the case].) While Robinson argues that the People placed "great reliance on direct evidence" in proving their case, much of the evidence to which he is referring is not direct evidence.
Even assuming for the sake of argument that the DNA and fingerprint evidence constituted direct evidence of Robinson's guilt, his argument is without merit. In determining whether the trial court violated Robinson's constitutional rights by instructing the jury pursuant to CALCRIM No. 224, we must determine whether there is a reasonable likelihood that the jury understood the instructions to allow conviction based on proof less than beyond a reasonable doubt. (Victor v. Nebraska (1994) 511 U.S. 1, 22.) There was no such likelihood in this case.
The trial court instructed the jury that it was to consider whether the People had proved their case beyond a reasonable doubt, after considering "all the evidence" in the case. The fact that the court provided the jury with additional cautionary instructions regarding its consideration of circumstantial evidence did not suggest to the jury that it could convict Robinson on less than proof beyond a reasonable doubt if it were to rely on the direct evidence in the case.
The courts in People v. Anderson (2007) 152 Cal.App.4th 919, 931-932 (Anderson) and People v. Ibarra (2007) 156 Cal.App.4th 1174, 1187 (Ibarra) rejected arguments similar to those Robinson raises. Robinson first argues that CALCRIM No. 224 suggests to the jury that proof beyond a reasonable doubt is not required where the People rely on direct evidence. "The role of CALCRIM No. 224 . . . is not to define reasonable doubt. That is the role of CALCRIM No. 220. The role of CALCRIM No. 224 is to caution the jury before relying on circumstantial evidence to find the defendant guilty beyond a reasonable doubt." (Ibarra, supra, 156 Cal.App.4th at p. 1187 [concluding CALCRIM No. 224 does not "undermine" proof beyond a reasonable definition in CALCRIM No. 220].)
In Anderson, the court explained that the rationale for CALCRIM No. 224 stems from the differences between circumstantial and direct evidence:
"[CALCRIM No. 224] cautions the jury not to rely on circumstantial evidence to find the defendant guilty unless the only reasonable conclusion to be drawn from it points to the defendant's guilt. In other words, in determining whether a fact necessary for conviction has been proved beyond a reasonable doubt, circumstantial evidence may be relied on only if the only reasonable inference that may be drawn from it points to the defendant's guilt.
"The same limitation does not apply to direct evidence. Circumstantial evidence involves a two-step process: presentation of the evidence followed by a determination of what reasonable inference or inferences may be drawn from it. By contrast, direct evidence stands on its own. It is evidence that does not require an inference. Thus, as to direct evidence, there is no need to decide whether there is an opposing inference that suggests innocence." (Anderson, supra, 152 Cal.App.4th at p. 931.)
Robinson also argues that CALCRIM 224 is misleading because it improperly suggests to the jury that the principle that the jury must acquit if there is a reasonable interpretation of the evidence that points to innocence applies to only circumstantial evidence. The Anderson court rejected this argument as well:
"[T]he question addressed by CALCRIM No. 224 is not how to consider the evidence as a whole but how to consider specific circumstantial evidence. The instruction concerns whether a necessary fact may reasonably be inferred from circumstantial evidence when that evidence can be construed in a way that points to the defendant's innocence, not whether the evidence as a whole may reasonably be construed to point to the defendant's innocence." (Anderson, supra, 152 Cal.App.4th at p. 932.)
We agree with Anderson and Ibarra. Robinson cites no authority for the proposition that the court should not have given CALCRIM No. 224 under the circumstances of this case.
We conclude the that trial court did not err in instructing the jury pursuant to CALCRIM No. 224.
IV.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McDONALD, Acting P. J., McINTYRE, J.