Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 04F8744
BLEASE, Acting P.J., SIMS, J., ROBIE, J.
ORDER MODIFYING OPINION AND DENYING REHEARING PETITION OF ROBERT STAYER
Defendant Timothy Stayer has joined in Robert’s Petition for Rehearing.
THE COURT:
The opinion filed June 13, 2008, in the above cause, is hereby modified in the following respects:
1. At page 5, in the last paragraph of footnote 5, delete the last two sentences and replace with the following:
These new arguments, however, do not really join in Timothy’s arguments, because they apply only to Robert as an alleged direct perpetrator (rather than to both defendants as alleged conspirators or aiders and abettors) and to evidence that pertains to Robert alone. Because these arguments could and should have been made in Robert’s opening brief, we decline to consider them. (Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8.)
2. On page 45, add the following sentence to the last full paragraph:
We conclude that any error was harmless beyond a reasonable doubt.
3. Immediately thereafter, delete part II A. “Instruction on Murder-by-Torture” beginning on page 45 and continuing on page 46, and replace with the following:
A. “Instruction on Murder-by-Torture”
As noted above, the trial court instructed the jury on two different theories of first degree murder: malice aforethought and felony murder. The instructions on felony murder included CALCRIM No. 540A (Felony Murder: First Degree - Defendant Allegedly Committed Fatal Act), given as follows (italics added):
“The defendants are charged in Count 1 with murder, under a theory of felony murder.
“To prove that a defendant is guilty of first degree murder under this theory, the People must prove that:
“1. The defendant committed torture or kidnapping;
“2. The defendant intended to commit torture or kidnapping;
“AND
“3. While committing torture or kidnapping, the defendant did an act that caused the death of another person.
“A person may be guilty of felony murder even if the killing was unintentional, accidental, or negligent.
“To decide whether the defendant committed torture or kidnapping, please refer to the separate instructions that I will give you on those crimes. You must apply those instructions when you decide whether the People have proved first degree murder under a theory of felony murder.
“The defendant must have intended to commit the felonies of torture or kidnapping before or at the time of the accident causing death.
“It is not required that the person die immediately, as long as the act causing the death and the felonies are part of one continuous transaction.”
The trial court instructed on torture with CALCRIM No. 810 (Torture), given as follows:
“The defendants are charged in Count 3 with torture.
“To prove that a defendant is guilty of this crime, the People must prove that:
“1. The defendant inflicted great bodily injury on someone else;
“AND
“2. When inflicting the injury, the defendant intended to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose.
“Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.
“It is not required that a victim actually suffer pain.
“Someone acts with a sadistic purpose if he or she intends to inflict pain on someone else in order to experience pleasure himself or herself.”
As Robert points out, this definition of torture (§ 206) does not fully set out the required mental state for first degree murder by torture (§ 189) -- the intent to inflict “extreme and prolonged pain.” (People v. Steger (1976) 16 Cal.3d 539, 546, italics added; accord, People v. Elliot (2005) 37 Cal.4th 453, 466.) As Robert further points out, that element of first degree murder by torture was not explained elsewhere in the instructions. Therefore, according to Robert, the jury could have convicted him of first degree murder on this theory without making the required finding that he intended to inflict prolonged pain on the victim, in violation of his constitutional right to have every element of an offense proven to the jury beyond a reasonable doubt.
Assuming that the trial court should have instructed on this aspect of the required intent for first degree murder by torture and that its failure to do so withdrew an element of a crime from the jury’s consideration, the error was harmless beyond a reasonable doubt because there is “no reasonable probability that the outcome of the defendant’s trial would have been different had the trial court properly instructed the jury.” (People v. Flood (1998) 18 Cal.4th 470, 490.) On the facts of this case, which included evidence that Robert brutally beat the victim until stopped, poured insecticide into his eyes, then brutally beat him again, and finally abandoned him in his desperate condition in a spot where he was likely to go on suffering for a substantial time, it is inconceivable that a properly instructed jury would not have found that Robert had the intent to inflict “prolonged” pain.
4. At page 46, delete footnote 38 and replace it with the following:
In his opening brief, Robert also discusses second degree murder in the abstract and provides an argument subheading which states: “The evidence in this case proved second degree murder or voluntary manslaughter.” However, under that subheading Robert argues only for voluntary manslaughter (concluding with the assertion “[t]he facts of this case are thus consistent with voluntary manslaughter”). His first actual argument for second degree murder appears in his reply brief. Because that argument should have been raised and developed in his opening brief, we decline to consider it. (Neighbours v. Buzz Oates Enterprises, supra, 217 Cal.App.3d at p. 335, fn. 8.)
5. On page 49, in the second sentence of the first full paragraph following “C. Insufficient Evidence of Kidnapping,” delete the word “frivolous” and substitute: “not well taken.”
These modifications do not affect the judgment.
The petition for rehearing of defendant Robert Stayer is denied.