Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FVI023867. Eric M. Nakata, Judge.
J. Courtney Shevelson, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Pamela Ratner Sobeck and Jennifer A. Jadovitz, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
King J.
I. INTRODUCTION
Defendant, Jerome Cornell Session, and a codefendant, Shamar Lavette Thornton, were charged in the same information but tried separately for the murder of a store clerk, Edward Gould, during a March 2006 robbery of a 7-Eleven store. This appeal concerns Session’s trial and judgment of conviction. The evidence presented at Session’s trial showed that Thornton shot and killed Gould during the robbery. Session was apparently unarmed.
In a nonpublished opinion, People v. Thornton, filed on October 18, 2010, in case No. E048343, this court affirmed a judgment of conviction against Thornton. Following his separate trial, Thornton was found guilty as charged of the first degree murder of Gould (Pen. Code, §§ 187, subd. (a), 189) and second degree robbery (Pen. Code, § 211). Thornton’s jury found true a special circumstance allegation that the murder was committed during a robbery (Pen. Code, § 190.2, subd. (a)(17)), and found that Thornton personally discharged a firearm during the robbery and the murder, causing great bodily injury or death (Pen. Code, § 12022.53, subd. (d)). Thornton was sentenced to life without the possibility of parole for the murder plus 25 years to life for the personal discharge enhancement.
The jury found Session guilty as charged of the first degree murder of Gould (Pen. Code, §§ 187, subd. (a), 189; count 1) and second degree robbery (§ 211; count 2). The jury also found true a special circumstance allegation that the murder was committed during a robbery. (§ 190.2, subd. (a)(17)(A).) Session admitted having one prior strike conviction. (§ 667, subds. (b)-(i).) Given the special circumstance finding, Session was sentenced to life in prison without the possibility of parole for the murder. (§ 190.2, subd. (a).) A determinate term of five years, doubled to 10 years for the prior strike conviction, was imposed but stayed on the robbery conviction. (§ 654.) No firearm enhancement allegations were submitted to Session’s jury.
All further statutory references are to the Penal Code unless otherwise indicated. The jury was instructed it could find Session guilty of first degree murder based on the alternative theories of (1) express malice murder, or willful, deliberate and premeditated murder, and (2) felony murder, or murder during the commission of a robbery. (§ 189.)
Session claims the trial court prejudicially erred in failing to instruct the jury sua sponte that, in order to find the robbery special circumstance allegation true, it had to find he acted with either intent to kill or reckless indifference to human life. (§ 190.2, subds. (c), (d); Judicial Council of Cal. Crim. Jury Instns., CALCRIM No. 703.) The People concede the instructional error but argue it was harmless beyond a reasonable doubt.
On this record, we cannot conclude that failure to give CALCRIM No. 703 or a similar instruction on the mental state or intent element of the robbery-murder special-circumstance allegation was harmless beyond a reasonable doubt. For the reasons we explain, the jury reasonably could have found the special circumstance allegation true without concluding that Session acted with intent to kill or with conscious disregard for life when he participated in the robbery. (§ 190.2, subd. (d).) For this reason, the robbery-murder special-circumstance finding must be stricken.
Session further claims that a $10,000 parole revocation fine (§ 1202.45) was erroneously imposed and must be stricken given his sentence of life without the possibility of parole. The People agree the fine must be stricken. Given our conclusion that the special circumstance finding must be stricken, we decline to strike the parole revocation fine. Instead, we remand the matter to the trial court for further proceedings consistent with this opinion, including resentencing.
II. THE EVIDENCE PRESENTED AT SESSION’S TRIAL
Shortly before 1:00 a.m. on March 21, 2006, two Black males, later identified as Thornton and Session, walked into the 7-Eleven store on the corner of Highway 18 and Apple Valley Road near Apple Valley. Thornton and Session forced Gould, the store clerk, to give them all the money that was in the store’s two cash registers, a total of $62. They then forced Gould into a back storage room, where Thornton shot and killed him.
The robbery was captured on store surveillance cameras, but the murder of Gould in the back storage room was not. The surveillance videos, which were played for the jury, showed Thornton and Session forcing Gould to open the store’s two cash registers, with Thornton pointing a gun at Gould. The videos also showed the two men forcing Gould toward the back of the store, out of the range of the surveillance cameras. Gould was found dead in the back storage room. He had been shot 9 to 10 times with a nine-millimeter semiautomatic handgun, and died at the scene.
On March 25, two days after surveillance videos and still photographs of the suspects were released to the media, Thornton was taken into custody and Session turned himself in. That same day, Session waived his Miranda rights and spoke to detectives, both individually and in a joint interview with Thornton. Session’s individual interview and joint interview with Thornton were recorded on DVD and admitted into evidence at Session’s trial.
Miranda v. Arizona (1966) 384 U.S. 436.
During the interviews, Session told detectives that he and Thornton were driving around in Session’s car shortly before the robbery, and were talking about the fact they needed money. Thornton needed money to help his girlfriend move, and Session had lost his job and owed money on his car. Around 40 minutes before the robbery, they stopped at another store and Thornton purchased gloves for the two of them. They later drove by the 7-Eleven store and decided to rob it when they saw that no one was in the store.
Session parked his car behind the 7-Eleven store. When Session and Thornton entered the store, the clerk was in the first aisle, sweeping with a broom. Thornton walked up to the clerk while Session was in another aisle, and Session overheard the clerk say something like, “okay, okay, I’m gonna go get it....” At that point, Session looked down the first aisle and saw that Thornton had a gun and was pointing it at the clerk.
Session claimed he did not know Thornton had a gun until he saw him pointing it at the clerk. He thought they were going to commit a robbery using their “hands.” Session admitted, however, that he had previously heard of Thornton having guns. He also said he could have left the store when he saw Thornton pointing a gun at the clerk, but he decided to continue with the robbery.
Session admitted he then grabbed the clerk by the back of his shirt and took him to the store’s two cash registers. There, the clerk took the cash out as directed, and Session put the cash in his pocket. Thornton then began asking the clerk where the surveillance tape was. The clerk said he did not have access to the tape. The owner of the store testified that the computer on which the surveillance videos were recorded was in a locked office in the store which the store clerks could not access.
Session forced the clerk to the back storage room, and Thornton followed. Session claimed he intended “to just take [Gould] to the back, probably just sock on him a couple times, just so [he and Thornton could] get enough time to get away or somethin’ like that.” In the storage room, Session pushed Gould against a wall and heard a gunshot as he raised his hand to hit Gould. He claimed the first shot grazed his arm. He walked out of the room after he heard the first shot, then he heard “[a]t least” seven more shots. He and Thornton then ran out of the store. Inside Session’s car, Session and Thornton split the money they had stolen, and Session complained he had been hit with a bullet. Thornton told Session he was sorry Session had been hit and, if they got caught, he (Thornton) would take the “rap” for what had happened.
Session admitted Gould was “very cooperative” and, on the way to the storage room, was pleading with Session and Thornton not to hurt him. After they left the store, Session dropped Thornton off in “the flats, ” then went to a friend’s house. Video surveillance tapes from another 7-Eleven store on Bear Valley Road showed Session in that store shortly after 2:00 a.m., purchasing a 40-ounce beer and cigars. Session admitted he was at the other 7-Eleven store shortly after the robbery.
Immediately after their joint interview, Session and Thornton spoke with each other. They were friendly toward each other, and Session showed no signs of animosity toward Thornton for his having shot and killed Gould. They talked about where the police had been looking for them and who had given information to the police concerning their whereabouts. Session also indicated he had turned himself in because others had been “runnin’ their mouth[s].”
III. DISCUSSION
A. The Trial Court Prejudicially Erred in Failing to Give CALCRIM No. 703 on the Mental State Element of the Robbery-Murder Special-Circumstance Allegation; the Error Was Not Harmless Beyond a Reasonable Doubt
Session claims the trial court prejudicially erred in failing to give CALCRIM No. 703 (Special Circumstances: Intent Requirement for Accomplice After June 5, 1990-Felony Murder) on the robbery-murder special-circumstance allegation. The instruction is based on subdivision (d) of section 190.2, and is required to be given by the trial court sua sponte when the defendant is guilty of first degree murder and substantial evidence shows the defendant was not the actual killer but was an accomplice to the underlying felony which resulted in the murder. (Bench Notes to CALCRIM No. 703, p. 469, citing People v. Jones (2003) 30 Cal.4th 1084, 1117.)
A felony-murder special-circumstance finding requires the defendant be sentenced to death or life without the possibility of parole. (People v. Estrada (1995) 11 Cal.4th 568, 571-572; § 190.2, subd. (a).)
CALCRIM No. 703 instructs the jury that, in order to find a felony-murder special circumstance true against a defendant who is guilty of first degree murder but is not the actual killer, it must find that the defendant acted with either intent to kill or with reckless indifference to human life when he or she participated in the underlying felony. (CALCRIM No. 703.) If the jury finds the defendant acted with reckless indifference to human life but not with intent to kill, it also must find that the defendant’s participation in the underlying felony began before or during the killing and the defendant was a major participant in the underlying felony. (Ibid.) A person acts with reckless indifference to human life when he or she knowingly engages in criminal activity that he or she knows involves a grave risk of death. (Ibid.)
CALCRIM No. 703 states: “If you decide that (the/a) defendant is guilty of first degree murder but was not the actual killer, then, when you consider the special circumstance[s] of ________ <insert felony murder special circumstance[s]>, you must also decide whether the defendant acted either with intent to kill or with reckless indifference to human life. [¶] In order to prove (this/these) special circumstance[s] for a defendant who is not the actual killer but who is guilty of first degree murder as (an aider and abettor/ [or] a member of a conspiracy), the People must prove either that the defendant intended to kill, or the People must prove all of the following: [¶] 1. The defendant’s participation in the crime began before or during the killing; [¶] 2. The defendant was a major participant in the crime; AND [¶] 3. When the defendant participated in the crime, (he/she) acted with reckless indifference to human life. [¶] [A person acts with reckless indifference to human life when he or she knowingly engages in criminal activity that he or she knows involves a grave risk of death.] [¶]... [¶] If the defendant was not the actual killer, then the People have the burden of proving beyond a reasonable doubt that (he/she) acted with either the intent to kill or with reckless indifference to human life and was a major participant in the crime for the special circumstance[s] of ________ <insert felony murder special circumstance[s]> to be true. If the People have not met this burden, you must find (this/these) special circumstance[s] (has/have) not been proved true [for that defendant].”
Session’s claim is directed to the failure to instruct on the mental state element of the robbery-murder special-circumstance allegation. Session does not dispute that he was a major participant in the robbery or that his participation in the robbery began before Gould was killed. (§ 190.2, subd. (d).) To be sure, uncontroverted evidence, including the surveillance videos of the robbery and Session’s own statements to detectives, showed that both Session and Thornton forced Gould to the cash registers while Thornton was pointing a gun at Gould. Thus, the evidence indisputably showed Session was a major participant in the robbery and his participation began before Gould was killed.
Session argues that the failure to instruct the jury that it had to find he participated in the robbery with either intent to kill or with reckless indifference to human life was prejudicial because, based on the entire record, including the evidence and the given instructions, the jury reasonably could have found the allegation true without concluding beyond a reasonable doubt that he participated in the robbery with either intent to kill or reckless indifference to human life. We agree.
The prejudicial effect of the failure to instruct on the mental state element of a special circumstance allegation is measured under the test set forth in Chapman v. California (1967) 386 U.S. 18, 24. (People v. Williams (1997) 16 Cal.4th 635, 689; see also People v. Jones, supra, 30 Cal.4th at p. 1119.) Under this test, an error is harmless “only when, beyond a reasonable doubt, it did not contribute to the verdict.” (People v. Williams, supra, at p. 689.) More specifically, the error is harmless when “overwhelming” evidence shows that the defendant possessed the required mental state and the jury “could have had no reasonable doubt” whether the mental state element of the special circumstance allegation was true. (Id. at pp. 689-691, citing People v. Johnson (1993) 6 Cal.4th 1, 45 [applying same harmless error analysis to multiple-murder special circumstance].)
Other California Supreme Court cases applying the same harmless error analysis to special circumstance allegations include People v. Cudjo (1993) 6 Cal.4th 585, 629-630, People v. Osband (1996) 13 Cal.4th 622, 681, People v. Marshall (1997) 15 Cal.4th 1, 43, People v. Bolden (2002) 29 Cal.4th 515, 559-561, People v. Haley (2004) 34 Cal.4th 283, 309-312, and People v. Davis (2005) 36 Cal.4th 510, 567-568.
The People concede that CALCRIM No. 703 was required to be given, but argue its omission was harmless beyond a reasonable doubt in view of the other instructions, including those on reasonable doubt, aiding and abetting, first degree felony murder, and CALCRIM No. 730 (Special Circumstances: Murder in Commission of Felony). In other words, the People claim the jury necessarily found the mental state element true under the other instructions. (People v. Jennings (1991) 53 Cal.3d 334, 387.)
The record does not indicate why CALCRIM No. 703 was not given. The trial court and counsel’s discussion concerning what jury instructions would be given was held off the record, and following that discussion the prosecutor and defense counsel both acknowledged on the record that (1) there were no instructions the court was not giving that they were requesting, and (2) they were not objecting to any of the instructions the court was giving.
We disagree that the jury necessarily found the mental state element true under any of the given instructions, or that the instructions as a whole cured the error. Further, the evidence that Session participated in the robbery with either intent to kill or reckless indifference to life, though substantial, was not overwhelming. And based on the entire record, including the evidence, the instructions, and the arguments to the jury, the jury reasonably could have found the allegation true without finding beyond a reasonable doubt that Session participated in the robbery with either intent to kill or reckless indifference to human life.
First, substantial evidence showed that Session participated in the robbery without intent to kill or with reckless disregard for human life. Session told detectives he did not intend for Gould to be killed at any time during the robbery. He claimed that when he and Thornton took Gould to the back storage room, he only intended to strike Gould a couple of times in order to gain enough time to escape from the store. He did not know Thornton would shoot and kill Gould until Thornton did so, and his arm was grazed by a bullet after Thornton began firing. He also claimed he did not know Thornton was armed when he and Thornton entered the store. Instead, he believed he and Thornton would commit the robbery with their hands, though he admitted he made a conscious decision to continue participating in the robbery after he looked down the first aisle and saw that Thornton was pointing a gun at Gould.
Second, none of the given instructions told the jury that in order to find the special circumstance allegation true it had to find beyond a reasonable doubt that Session acted with intent to kill or conscious disregard for human life when he participated in the robbery. (CALCRIM No. 703; § 190.2, subd. (d).) For example, the instructions on reasonable doubt, namely, CALCRIM Nos. 103 and 220, which the People partly rely on, merely told the jury that the People had the burden of proving its case and defendant’s guilt beyond a reasonable doubt. They did not tell the jury it had to find beyond a reasonable doubt that Session acted with any particular mental state before it could find the special circumstance allegation true.
Similarly, the instructions on aiding and abetting and felony murder, including CALCRIM Nos. 400, 540B, and 549, did not concern the mental state element of the robbery special circumstance allegation. Nor did any of these instructions require a finding of intent to kill or reckless indifference to life for purposes of supporting a guilty verdict on the underlying robbery or the felony-murder theory of the first degree murder charge.
The jury was given CALCRIM Nos. 700, 704, 705, 706, and 730 concerning the special circumstance allegation specifically. Of these instructions, only CALCRIM No. 705 even mentioned the mental state requirement. It told the jury the People must prove not only that Session “did the act[s] charged, but also that he acted with a particular intent or mental state.” It further stated that “[t]he instruction for the special circumstance explains the intent or mental state required, ” but no other instruction, including CALCRIM No. 730, explained the intent or mental state required.
CALCRIM No. 730 is required to be given when a felony-murder special circumstance is alleged and substantial evidence shows the defendant aided and abetted the underlying felony. (See Bench Notes to CALCRIM No. 730, p. 517, citing People v. Williams, supra, 16 Cal.4th at p. 689 [trial court has duty to instruct sua sponte on elements of special circumstance allegation].) CALCRIM No. 730 describes the facts and circumstances which must be proved in order to find a felony-murder special-circumstance allegation true, but it does not describe the intent or mental state that a nonkiller participant in the underlying felony is required to possess. This is the purpose of CALCRIM No. 703. To be sure, the Bench Notes to CALCRIM No. 730 indicate the court has a duty to give CALCRIM No. 703 sua sponte when “the evidence raises the potential for accomplice liability”-that is, when the defendant against whom the felony-murder special circumstance is alleged is not the actual killer but substantial evidence shows he or she was an accomplice to the underlying felony which resulted in the murder.
CALCRIM No. 730 told the jury: “The defendant is charged with the special circumstance of murder committed while engaged in the commission of robbery. [¶] To prove this special circumstance is true, the People must prove that: [¶] 1. The defendant committed or aided and abetted robbery; [¶] 2. The defendant intended to commit or intended to aid and abet the perpetrator in committing robbery; [¶] 3. Shamar Thornton did an act that caused the death of another person; and [¶] 4. The act causing death and the robbery were part of one continuous transaction; and [¶] 5. There was a logical connection between the act causing the death and robbery. The connection between the fatal act and robbery must involve more than just their occurrence at the same time and place. [¶] To decide whether the defendant and the perpetrator committed robbery, please refer to the separate instructions that I have given you on those crimes. To decide whether the defendant aided and abetted a crime, please refer to a separate instruction that I have given you on aiding and abetting. You must apply those instructions when you decide whether the People have proved this special circumstance. [¶] The defendant must have intended to commit or aided and abetted the felony of robbery before or at the time of the act causing the death. [¶] In addition, in order for the special circumstance to be true, the People must prove that the defendant intended to commit robbery independent of the killing. If you find the defendant only intended to commit murder and the commission of the robbery was merely part of or incidental to the commission of that murder, then the special circumstance has not been proved.”
Lastly, in arguing the case to the jury, the prosecutor never mentioned that, in order to find the special circumstance allegation true, the jury had to find that Session participated in the robbery with intent to kill or with reckless indifference to human life. Instead, the prosecutor argued that the facts and circumstances described in CALCRIM No. 730 had been proved, and the special circumstance allegation was true essentially because Session aided and abetted the robbery, and the robbery and the act causing Gould’s death were part of one continuous transaction. The prosecutor generally equated Session’s intent with Thornton’s intent, and argued that both men intended to kill Gould, and acted with express malice, when they committed the robbery.
In any event, the record demonstrates that the jury did not necessarily conclude that Session participated in the robbery with intent to kill or with conscious disregard for life. It’s verdict finding Session guilty of first degree murder does not resolve the issue, because the jury was instructed it could find Session guilty of first degree murder based on the alternative theories of express malice (intent to kill) and felony murder, if the jurors unanimously agreed that at least one of these two theories had been proved. Thus, in finding Session guilty of first degree murder, at least some of the jurors could have concluded that Session was guilty of felony murder, but not express malice murder, and in order to find Session guilty of felony murder, the jury only had to find he intentionally perpetrated or aided and abetted the robbery, and the murder of Gould was a natural and probable consequence of the robbery. (CALCRIM No. 540B (Felony Murder: First Degree-Coparticipant Allegedly Committed Fatal Act).) The jury was also instructed that it could find Session guilty of first degree felony murder even if the killing was unintentional, accidental, or negligent.
Thus, on this record, we cannot say that the jury “could have had no reasonable doubt” that Session participated in the robbery with either intent to kill or with reckless disregard for human life (People v. Williams, supra, 16 Cal.4th at pp. 689-691), or that the evidence he possessed the requisite mental state was “overwhelming” (People v. Haley, supra, 34 Cal.4th at p. 310 [felony-murder special-circumstance finding set aside because evidence defendant intended to kill was not overwhelming, and jury might have believed defendant’s claim he did not intend to kill]). Instead, based on the evidence, the instructions, and the prosecutor’s argument, the jury could have reasonably found the special circumstance allegation true even though it also could have reasonably concluded that Session did not intend for Gould to be killed and did not act with reckless indifference to human life when he participated in the robbery.
B. The Parole Revocation Fine
Session claims a $10,000 parole revocation fine (§ 1202.45) was erroneously imposed and must be stricken given his sentence of life in prison without the possibility of parole. (People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1183-1186 [parole revocation fine does not apply to a defendant sentenced to life without the possibility of parole, even though the defendant was sentenced to additional term that included possibility of parole].) The People agree that the fine must be stricken, given Session’s sentence of life without the possibility of parole.
Given our conclusion that the robbery-murder special-circumstance finding must be stricken and given that the special circumstance finding was the sole basis of Session’s sentence of life without the possibility of parole, we decline to strike the parole revocation fine. Instead, we set aside the robbery-murder special-circumstance finding and remand the matter to the trial court for further proceedings consistent with this opinion, including resentencing.
IV. DISPOSITION
Defendant’s convictions for first degree murder and second degree robbery are affirmed. The robbery-murder special-circumstance finding is set aside, and the matter is remanded to the trial court for further proceedings consistent with this opinion, including resentencing. In all other respects, the judgment is affirmed.
We concur: Ramirez P.J., McKinster J.