Opinion
D059000 Super. Ct. No. FVI800042 D059032 Super. Ct. No. FSB048987
09-16-2011
THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER TURELLE WHITE et al., Defendants and Appellants. THE PEOPLE, Plaintiff and Respondent, v. TRISTAN DARNELL ALLAN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
CONSOLIDATED APPEALS from judgments of the Superior Court of San Bernardino County, Brian S. McCarville, Judge. Affirmed in part as modified; reversed in part.
This case arises from the shooting deaths of two persons during a liquor store hold up. Separate juries convicted Christopher Turelle White, Darwin Richardson and Tristan Darnell Allan of two counts of first degree murder (Pen. Code, § 187, subd. (a)), and two counts of second degree robbery (§ 211.). White's jury also found he personally and intentionally discharged a firearm, causing death (§ 12022.53, subd. (d)), and the special circumstances that he was engaged in a robbery when he committed the murders (§ 190.2, subd. (a)(17)(A)), and he committed more than one murder (§ 190.2, subd. (a)(3).). Richardson's and Allan's juries found that a principal was armed with a handgun during the commission of the crimes (§ 12022, subd. (a)(1)), and the special circumstances of felony murder (§ 190.2, subd. (a)(17)(A), and multiple murder (§ 190.2, subd. (a)(3).)
Future undesignated statutory references are also to the Penal Code.
White and Richardson were tried together before two juries. Allan was later tried separately.
The court sentenced White to a determinate sentence of four years in prison on the robbery counts, to be followed by two consecutive life terms without the possibility of parole on the murder counts, and two consecutive terms of 25 years to life for firearm enhancements on the murder counts. The court stayed two terms of 25 years to life for firearm enhancements on the robbery counts. The court sentenced Richardson to two consecutive life terms without the possibility of parole on the felony murder counts, and one year for a firearm enhancement on a murder count. The court added a four-year determinate sentence on the robbery counts, to be served consecutively to the murder terms. The court stayed sentences for firearm enhancements on the robbery counts, and a sentence on a second firearm enhancement on the murder count. The court imposed a determinate sentence of five years four months on Allan, consisting of four years on the robbery counts, and one year four months on firearm enhancements on the robbery counts, to be followed by two consecutive sentences of life without the possibility of parole on the felony murder counts. The court stayed terms on firearm enhancements on the murder counts.
All defendants appeal. White contends the court erred by granting the People's motion to admit his confession to the police, not instructing the jury sua sponte on the defense of duress, not staying the punishments on the robbery counts since robbery is the basis for the felony murder special circumstance, imposing an excessive court security fee, not crediting him with his full days of actual custody, and not specifying he was ordered to pay direct restitution rather than a restitution fine.
The appeal of Allen was consolidated with the appeals of White and Richardson.
Richardson contends the court erred by not instructing the jury he could not be guilty of felony murder if it found he aided and abetted robbery after the murders took place, not instructing the jury on the law of accessory after the fact, not instructing the jury on the mental state elements of the felony murder and multiple murder special circumstance allegations, restraining him in leg shackles and waist chains without a showing of necessity or consideration of less restrictive alternatives, and not staying the terms on the robbery counts since robbery is the basis for the felony murder special circumstance.
Allan contends the court erred by not conducting an adequate inquiry into his post-conviction complaints about his appointed attorney, not staying the terms on the robbery counts since robbery is the basis for the special circumstance of felony murder, and imposing a parole revocation fine since his sentence does not include any period of parole.
The People concede, and we agree, that the court prejudicially erred by not instructing the jury on the culpable mental state for a true finding on the multiple murder special circumstance allegation against Richardson as an aider and abettor, and thus reversal on the finding is required. Further, it is undisputed that the court erred by not staying defendants' punishment on the robbery counts, and the abstracts of judgment also require amendment to reduce the amount of White's court security fee, reflect the correct amount of custody credits for White, specify that White's restitution is direct restitution rather than a fine, and strike a parole eligibility fine for Allan. In all other respects, we affirm the judgments.
FACTUAL BACKGROUND
At about 9:00 p.m. on March 16, 2005, two Black males, later identified as White and his brother Allan, entered a liquor store in Highland to rob its occupants. Bandanas covered their noses and mouths, and White was wearing the hood of a dark colored sweatshirt over his head. White was armed with a gun, and he held the store owner, Steve Hall, and a clerk, Brian Gregorio, at gunpoint. Allan stole cash and lottery tickets and fled the store. Fifty seconds later, White emerged from the store after shooting Hall and Gregorio and mortally wounding them. Hall and Gregorio had offered no resistance; they held their hands in the air. The store's video surveillance system captured the events, with the exception of Hall's murder.
Further, the surveillance system showed that Allan and Richardson, who is also Black, the brother of Allan's girlfriend, were both in the liquor store shortly before the crimes commenced. Allan was in the store between 8:37 and 8:40 p.m., and Richardson entered the store at 8:50 p.m. Richardson was wearing a red shirt with a "Phat Farm" logo and dark pants with white stripes down the legs. He purchased something and left.
During the crimes, Richardson waited for White and Allan in the parking lot in a white, four-door car that White's sister had rented. A customer sitting in his truck in front of the liquor store heard two "pops" and saw a Black man leave the store with a gun held in the air. He got into the car, which sped off.
The evening of the crimes, Frank Campos, who frequented the liquor store, noticed a white, four-door car park in the parking lot. A Black man exited the car, went into the store, bought a cigar and came back out. The man offered Campos some spare change, which he accepted. The man got into the car, which began circling the store and pulling in and out of the driveway. A witness who lived near the store, Steve Nimmo, also saw a white, four-door car driving back and forth in front of the liquor store for approximately 10-15 minutes at the relevant time.
Campos saw the white car park again in the liquor store lot. A Black man stood outside the car donning a black hooded shirt, and two other Black men were inside the car. Campos tried to sell a phone card to the same man who earlier gave him the change, but the man said, "No, man, I don't want it right now. You better leave because the cops are going to come right now and I don't want you to get in trouble." Campos left the area, and a few minutes later he heard police sirens.
Vanessa Portillo was on shift at the liquor store shortly after 9:00 p.m. on March 16. White also held her at gunpoint, and she saw him shoot Hall in the face after he denied there was a safe in the store. On White's way out of the store, he shot Gregorio in the back of the head. Portillo identified White from his eyes, of which she had taken special notice.
A customer who entered the store during the robbery also identified White as the gunman and Allan as the other participant. Further, two law enforcement officers, one of whom previously had several contacts with Allan, identified him from surveillance photos taken the evening of the murders.
About two hours after the crimes, a security camera at a convenience store caught Allan cashing in $13 worth of the stolen lottery tickets. Richardson was at his side. The state lottery notified the San Bernardino County Sheriff's Department, and investigators recognized Allan and Richardson from surveillance photos.
Deputies went to an apartment where Richardson had been seen. A woman answered the door, and Richardson tried to flee through the back door where deputies arrested him. At the apartment, deputies found the distinctive clothing he wore when he was at the liquor store 10 minutes before the crimes began.
After Richardson's arrest, a conversation he had with his sister, Latrice Richardson (Latrice), was recorded. Latrice indicated the police had photos of him at the liquor store. Richardson asked what time the crimes occurred, and Latrice said about 9:00 p.m. Richardson admitted he was in the liquor store, but he said Allan had dropped him off at home by 8:00 p.m. and he was uninvolved.
A postarrest conversation Richardson had with his uncle, Randy Tucker, was also recorded. Tucker told Richardson, "They got you on picture 10 minutes before the store got robbed." Richardson responded, "That wasn't 10 minutes." He said he went into the liquor store during "daytime." Tucker stated, "Yeah, that's exactly, that's what we gonna say." Tucker then reminded Richardson, "they got you in there 10 minutes after [Allan], man." Tucker added: "But they can't never say you robbed 'em or killed anybody. Only thing they can say is you was in the car. But after you can [sic]out of the store and got the blunts they told you that we gonna rob the store and you told 'em then that f--k that, take me home. And you just say they went back and robbed the store while you was in the car, you know what I'm saying. Then they say they got witnesses that saying that they seen [Allan] and 'em putting their masks on at the car. So they trying to say you know but when it come down to it, you knew but you weren't going in there." Tucker stated that Richardson's "only defense" was that he knew White and Allan planned to rob the store, but he refused to participate and waited in the car because it was too far to walk home. Richardson did not profess his innocence or reject Tucker's contrived defense plan.
White was arrested after he turned himself into the sheriff's department at his uncle's urging. The uncle confronted White with photos that appeared in the newspaper of him and Allan, and told White, "they got your name." White denied he was involved in the crimes. After his arrest, however, he failed a voluntary polygraph examination and then gave a confession to a detective.
White told the following story. The evening of March 16, Richardson and Allan picked up White in the white car. Richardson and Allan had come from the liquor store and Richardson said it was "a cool lick," meaning easy to rob. The defendants agreed to rob the store's occupants, but when they got to the store they circled around the parking lot for awhile because they had second thoughts. The car parked and Richardson went into the store. He returned to the car and they drove around some more. The car reparked and defendants decided to proceed after Richardson complained, "Man, I got this gun for nothin."
Richardson gave White a gun and a bandana for his face, and he directed White to enter the store, tell workers to put their hands up, demand cash and lottery tickets, and shoot anyone who got in his way in the heart or head. Richardson said the gun would not kill anyone because it "was so weak," but he also told White that "no matter what happens you gonna get away, you can kill everybody in the store and you will still get away clean ain[']t nothin' gonna ever happen."
Richardson waited in the car while White and Allan went into the store and robbed Hall and Gregorio at gunpoint. Remembering Richardson's instructions, White shot Hall and Gregorio because he felt they may have been in his way. The defendants left in the car and went to the home of Allan's girlfriend. Richardson gave Allan "a little bit of money," and he gave White about $8 worth of lottery tickets.
White identified himself, holding a gun, and Allan and Richardson in surveillance photos. White also identified the white car, and stated that on March 16 there was a CD by the rapper "Game" jammed in the CD player. Other evidence showed that when the car was found at a rental agency, a "Game" CD was in the CD player.
Allan fled to Arizona where he was captured and extradited to California. Allan admitted to a detective that he entered the liquor store with White, and he stole cash and lottery tickets and ran out. Richardson, who had the idea for robbery, waited in the car "[b]ecause he was gonna drive to get away." Allan denied knowing there was any shooting. He claimed he believed White had "a little fake gun."
At their trial, White and Richardson offered no affirmative evidence. White conceded his confession was true, but he argued it showed he lacked premeditation or malice. He sought a conviction for voluntary or involuntary manslaughter. As to the robberies, he argued there was insufficient evidence he intended to permanently deprive Hall and Gregorio of the cash and lottery tickets. Richardson conceded he was in the liquor store 10 minutes before the crimes, but he argued that was not evidence of aiding and abetting the robberies. He argued he was merely "in the wrong place and at the wrong time." Allan testified on his own behalf. He admitted he was guilty of two counts of robbery, but he argued the felony murder rule was inapplicable because his involvement in the robberies was completed before the murders took place.
DISCUSSION
I
Miranda Warning
White contends the Miranda warning he was given before his confession was insufficient, and the court violated his constitutional rights by granting the People's motion for its admission into evidence. We find the contention lacks merit.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
At the time of the crimes, White was 17 years of age. His interrogator, Detective Florence, gave him a Miranda warning by advising him he had the right to remain silent, anything he said could be used against him in court, he had the right to an attorney, and if he could not afford an attorney one would be appointed for him free of charge. White waived his rights and gave a statement. White denied any involvement in the crimes, or that he appeared in surveillance photos. This portion of the interview lasted Aproximately an hour and 30 minutes.
Allan and Richardson were 19 years of age.
Detective Florence then offered White the opportunity to voluntarily take a polygraph examination. White stated, "Is there any way you can like ask my mom about that? I mean I don't have a problem with it, but I'm not sure what it is. I have never heard of it." The detective responded, "We're asking you. You're the one that's under arrest." The detective explained that a professional examiner would speak to White "and determine if he was being truthful or not." White agreed to the examination, and two minutes later Detective Florence delivered him to the polygraph examiner, Gamboa, in a room that was about 100 yards away in the same building.
Gamboa explained the polygraph examination process to White in detail, and that it was voluntary. After the examination, Gamboa told White he failed it. She questioned him and he implicated himself. The total time of Gamboa's examination was two and a half hours.
Immediately thereafter, Detective Florence reinterrogated White for one hour and 19 minutes. White confessed he was involved in the crimes along with Allan and Richardson, as outlined in this opinion's factual background. At the end of the interview, White acknowledged he had been treated fairly. White appeared to understand what was going on and he was able to communicate clearly.
White does not contest the validity of the Miranda warning Detective Florence gave him at the initial interrogation. He asserts suppression is required, however, because he was not readvised of his rights before the polygraph examination. As the facts are undisputed, we independently determine whether his confession was legally obtained. (People v. Smith (2007) 40 Cal.4th 483, 502 (Smith))
"The federal and state Constitutions both bar the use of involuntary confessions against a criminal defendant. [Citations.] A confession is involuntary if it is 'not " 'the product of a rational intellect and a free will' " ' [citation], such that the defendant's 'will was overborne at the time he confessed.' " (Smith, supra, 40 Cal.4th at p. 501.) "InMiranda . . ., the high court held that police must advise a criminal suspect who is in custody of specified Fifth Amendment rights prior to questioning. [Citation.] . . . 'Under the familiar requirements of Miranda, . . . a suspect may not be subjected to custodial interrogation unless he or she knowingly and intelligently has waived the right to remain silent, to the presence of an attorney, and to appointed counsel in the event the suspect is indigent.' " (Smith, at p. 501.)
"[A] Miranda readvisement is not necessary before a custodial interrogation is resumed, so long as a proper warning has been given, and 'the subsequent interrogation is "reasonably contemporaneous" with the prior knowing and intelligent waiver.' " (Smith, supra, 40 Cal.4th at p. 504.) White cites People v. Mickle (1991) 54 Cal.3d 140, 170 (Mickle), which explains that in determining whether a readvisement was necessary, "courts examine the totality of the circumstances, including the amount of time that has passed since the waiver, any change in the identity of the interrogator or the location of the interview, any official reminder of the prior advisement, the suspect's sophistication or past experience with law enforcement, and any indicia that he subjectively understands and waives his rights."
White points out that there was a change in interrogators, from Detective Florence to Gamboa. He cites People v. Quirk (1982) 129 Cal.App.3d 618, 630 (Quirk), for the proposition that "[i]f the person conducting the interview is not so readily identifiable as an agent of the prosecution or the police, who originally gave the Miranda warnings, it could be more incumbent upon the interviewer to readvise a defendant of his Miranda rights." Quirk, however, is unhelpful, as there a psychiatrist interviewed the defendant several days after he had been given a Miranda warning, and thus the court found the interview was not "reasonably contemporaneous" with the prior Miranda advisement." (Quirk, at p. 632.)
We disagree with White's claim he had no reason to know Gamboa was seeking incriminating evidence. The polygraph examination was held at the sheriff's department, not far from where Detective Florence interrogated White, and immediately after the interrogation. Further, the detective told White just before delivering him to Gamboa that the examination was a tool to "determine if he was being truthful or not."
Although most of the Mickle factors favor White, we find no error. The Miranda warning, issued approximately 90 minutes before the polygraph examination began, would have been fresh on White's mind. As the court reasonably found, "this is one contemporaneous interview," and "[t]his is one interrogation by one agency." The court also found "nothing that would suggest that the officers took unfair advantage of the defendant or that he is in any way unsophisticated. [¶] The transcript that was provided to the Court demonstrate[s] to me by clear and convincing evidence that . . . White understood what was going on with respect to the questions that were posed to him." We agree that the polygraph examination was reasonably contemporaneous with the prior knowing and intelligent waiver, and thus no readvisement was necessary. (Smith, supra, 40 Cal.4th at p. 504.)
White's reliance on State of Iowa v. Cullison (Iowa 1974) 215 N.W.2d 309 (Cullison), is misplaced. In Cullison, the court held that a Miranda warning given by officers en route in an automobile with a suspect from Council Bluffs, Iowa to Omaha, Nebraska for a polygraph examination was insufficient. (Cullison, at p. 316.)
Because readvisement of Miranda rights was not required before the polygraph examination, we are not required to address White's assertion that the lack of readvisement also taints his subsequent confession to Detective Florence. We are also not required to address the People's assertion that any Miranda error was nonprejudicial.
II
Duress Defense
White also contends the court erred by not instructing the jury sua sponte on the defense of duress. "In contrast to lesser included offenses, a trial court's duty to instruct, sua sponte, or on its own initiative, on particular defenses is more limited, arising 'only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case.' " (People v. Barton (1995) 12 Cal.4th 186, 195.)
"Duress is available as a defense to defendants who commit a crime 'under threats or menaces sufficient to show that they had reasonable cause to and did believe their lives would be endangered if they refused.' [Citations.] An essential component of this defense is that the defendant be faced with a direct or implied demand that he or she commit the charged crime. 'The defense of duress, unlike the necessity of justification, requires that the threat or menace be accompanied by a direct or implied demand that the defendant commit the criminal act charged.' " (People v. Saavedra (2007) 156 Cal.App.4th 561, 567.)
" '[D]uress is not a defense to any murder' [citation] and, in particular, does not negate malice. [Citation.] Duress likewise does not categorically negate premeditation and deliberation, although '[i]f a person obeys an order to kill without reflection, the jury might find no premeditation and thus convict of second degree murder.' [Citation.] . . . '[D]uress can, in effect, provide a defense to murder on a felony-murder theory by negating the underlying felony.' " (People v. Hinton (2006) 37 Cal.4th 839, 882-883.)
"The defendant must show that the act was done under such threats or menaces that he had (1) an actual belief his life was threatened and (2) reasonable cause for such belief." (People v. Heath (1989) 207 Cal.App.3d 892, 900 (Heath))"Duress is an effective defense only when the actor responds to an immediate and imminent danger. '[A] fear of future harm to one's life does not relieve one of the responsibility for the crimes he commits.' " (Ibid.) " 'Because of the immediacy requirement, a person committing a crime under duress has only the choice of imminent death or executing the requested crime. The person being threatened has no time to formulate what is a reasonable and viable course of conduct nor to formulate criminal intent. . . . Decisions upholding the duress defense have uniformly involved' "a present and active aggressor threatening immediate danger." (People v. Petznick (2003) 114 Cal.App.4th 663, 676.)
White cites the following statement he made during his confession: "[A]nd when we got there [to the liquor store] we was sittin' in front of I was like man I was like I ain't feelin' this and my brother's like I ain't either and then Booby [Richardson]—Booby pulled out the gun, he was he didn't like threaten us to do it but goin' though my head like cause my brother got out of jail he was like I'm goin' straight, my brother had . . . jobs he done had cars that was fresh off the lot. So I figure if he doin' this right now he just told me he was goin' straight and he want me to look up to him then I guess Booby was threatening him but he didn't tell me that or nothin that was what was going through my mind so I seen the gun, my brother wouldn't take the gun he was like I ain't going there and then Booby was like you take it and I looked at him and looked at the gun and he had it like pointed my way and he was like he like it[']s like in his hand like he was about to shoot it and I just I just like reach my hand. . . ." (Italics added.)
The record does not suggest White relied on a defense of duress. Rather, his stated defense was that he had no intent to kill anyone. He sought a conviction on the lesser included offense of involuntary or voluntary manslaughter, and the court instructed the jury on those theories.
Further, there is not substantial evidence to support a duress defense. In his statement to Detective Florence, White admitted Richardson did not directly threaten him. In closing, White's attorney admitted he was "not forced physically to go into that store to take money or lottery tickets." The attorney argued White was "coerced by older people—one of them his brother, in fact to go along with it." White's attorney also argued, "What he did say is he had the fear that if he didn't take the gun, he could be shot. Remind you again, he had the opportunity to say 'he threatened me.' 'He was going to kill me if I didn't go through [with] that,' but he didn't do that because it wasn't true. But he was indirectly threatened or felt threatened." (Italics added.)
Even if Richardson arguably posed a threat to White when Richardson was in control of the gun, the threat vanished when White took the gun from him and left the car. At that point, White had time to reflect. He could have averted harm by opting not to proceed, but instead he chose to enter the liquor store and rob Hall and Gregorio and shoot them to death. Under the circumstances, the court had no sua sponte duty to instruct the jury on the defense of duress.
White's reliance on Heath, supra, 207 Cal.App.3d 892, is unavailing. In Heath, the defendant claimed he committed a burglary under duress, as his drug dealer pointed a loaded gun at him and threatened to kill him and throw his body in a ditch if he refused to burglarize a residence to pay his drug debt. While the defendant committed burglary, the armed drug dealer was outside watching him. The trial court did give a standard duress instruction, but the defendant challenged the giving of a special instruction the prosecution requested. (Id. at pp. 896-897.) The appellate court held the special instruction was faulty because its "interchangeable use of the terms duress and necessity was clearly incorrect." (Id. at p. 901.) The court, however, found the error nonprejudicial as the necessity defense was also germane, and in light of the overwhelming evidence against the defendant. (Id. at p. 902.)
White relies on the portion of Heath that notes the defendant was inside the residence he burglarized between 10 and 15 minutes. (Heath, supra, 207 Cal.App.3d at p. 896.) The opinion states that once the defendant "was outside the immediate presence of Sodersten, the threat became one in the immediate future allowing appellant an opportunity, albeit brief, to balance his options, which is the very essence of the necessity defense." (Ibid.) White argues that since he was in the liquor store only a few minutes, there was "inexorable immediacy, leaving no time for reflection." In contrast to Heath, however, Richardson was not waiting outside the liquor store with a gun. Once White took the gun from Richardson and left the car, he posed no shooting threat to White. White could have quickly opted out of the plan.
III
Jury Instructions
A
Richardson challenges the jury instructions in several aspects. He contends the court erred by not instructing the jury that to find him guilty as an aider and abettor to felony murder, it must first find he joined the robbery before White shot Hall and Gregorio. Richardson argues the evidence only supports a theory he joined the robbery after it occurred by appearing with Allan to cash in some of the stolen lottery tickets.
Richardson's jury did not hear White's or Allan's confession, which implicated Richardson as instigating the robberies.
"[S]ection 189 provides that any killing committed in the perpetration of specified felonies, including robbery, is first degree murder. Under long-established rules of criminal complicity, liability for such a murder extends to all persons 'jointly engaged at the time of such killing in the perpetration of or an attempt to perpetrate the crime of robbery' [citation] 'when one of them kills while acting in furtherance of the common design.' " (People v. Pulido (1997) 15 Cal.4th 713, 716, fn. omitted (Pulido).)A defendant is subject to death or life in prison without the possibility of parole if he has been convicted of first degree murder and the jury also finds true an allegation the "murder was committed while the defendant was engaged in, or was an accomplice in, the commission of " certain felonies, including robbery. (§ 190.2, subd. (a)(17)(A).)
In Pulido, the court addressed the following issue: "If one person, acting alone, kills in the perpetration of a robbery, and another person thereafter aids and abets the robber in the asportation and securing of the property taken, is the second person guilty of first degree murder under section 189?" (Pulido, supra, 15 Cal.4th at p. 716.) The court answered the question in the negative, explaining: "Although the second person is an accomplice to robbery [citation], such participation in robbery does not subject the accomplice to murder liability under section 189, because the killer and accomplice were not 'jointly engaged at the time of such killing' in a robbery [citation]; the killer, in other words, was not acting, at the time of the killing, in furtherance or a 'common' design to rob [citation]." (Ibid.)
In Pulido, the trial court did not instruct the jury on this point. The Supreme Court, however, held the error was harmless because the " 'factual question posed by the omitted instruction was necessarily resolved adversely to defendant under other, properly given instructions.' " (Pulido, supra, 15 Cal.4th at p. 726.) The jury was instructed "that the robbery-murder special-circumstance allegation could not be found true unless defendant was engaged in the robbery at the time of the killing." (Ibid.)The court noted that in a modified version of an instruction "drawn directly from the statutory language defining the special circumstance (§ 190.2, subd. (a)(17)), the jury was directed to determine whether or not 'the murder was committed while the defendant was engaged or was an accomplice in' robbery, attempted robbery or the immediate flight from a robbery." (Pulido, at p. 727.) Further, the jury returned a special circumstance verdict consistent with the instruction. The court held that "[b]y its special circumstance verdict the jury thus found—explicitly, unanimously and necessarily—that defendant's involvement in the robbery, whether as direct perpetrator or as aider and abettor, commenced before or during the killing." (Ibid.)
The situation is substantively the same here. While the court did not give a specific instruction on the holding of Pulido, it did instruct the jury under CALCRIM No. 730 that to find true the felony murder special circumstance under section 930.2, subdivision (a)(17), it must find Richardson "aided and abetted the robbery before or at the time of the act causing the death." (Italics added.) Further, the jury returned special circumstance verdicts finding the murders of Hall and Gregorio were committed while Richardson "was engaged in the commission of the crime of Robbery in violation of Penal Code [section] 211 within [the] meaning of [section] 190.2(a)(17)." The verdicts conclusively establish that any instructional error was harmless.
White asserts that considered as a whole, the jury instructions were confusing. He cites the following instruction, a modification of CALCRIM No. 1603: "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. [¶] A perpetrator has reached a place of temporary safety with the property if he has successfully escaped from the scene, is no longer being pursued, and has unchallenged possession of the property." White submits that this instruction allowed the jury to find felony murder based on his aiding and abetting of the robberies after White shot Hall and Gregorio.
Again, however, the court specifically instructed the jury under CALCRIM No. 730 that for purposes of felony murder, it had to find he joined in the robbery before or during the murders. "[W]e must assume jurors are able to correlate, follow, and understand the court's instructions." (Bay Guardian Co. v. New Times Media LLC (2010) 187 Cal.App.4th 438, 467.) Further, during deliberations the jury asked the court, "may we find the defendant guilty on Counts 3 and 4 [robbery counts] and NOT GUILTY on Counts 1 and 2 [felony murder counts]?" and the court responded, "YES." When the jury had another question about the special circumstance allegations of counts 1 and 2, the court referred it to the instruction on CALCRIM No. 730.
Moreover, contrary to Richardson's position, the evidence amply supports a finding he joined the robbery from the beginning. He admits the evidence proves he was waiting in the getaway car while White and Allan committed the crimes. Two witnesses, Campos and Nimmo, saw the car casing the liquor store shortly before the crimes. A security camera showed Allan entering the store about 20 minutes before the crimes commenced, and Richardson entering the store about 10 minutes before they commenced. About five minutes before the crimes, Campos saw the white car in the liquor store parking lot. One Black male was standing by the car putting on a black hooded shirt. Two other Black men were inside the car, and one of them, which must have been Richardson, warned Campos to leave because the police would soon be coming. Thus, Richardson knew of the robbery plan. Further, Richardson showed a consciousness of guilt when he told Latrice he was at home by 8:00 p.m. on March 16, when he was actually in the store at 8:50 p.m.
B
Additionally, Richardson contends the court violated his constitutional rights by refusing to instruct the jury on the crime of being an accessory after the fact to a felony. (§ 32.) He asserts the jury could find he learned of the robberies only after White and Allan left the liquor store.
"The crime of being an accessory after the fact has the following essential elements: (1) someone other than the person charged as an accessory . . . must have committed a specific completed felony; (2) the accused must have harbored, concealed or aided the principal; (3) with knowledge that the principal committed a felony; and (4) further, the hiding, concealing or harboring must be with the specific intent that the principal may escape from arrest and trial [citations]." (People v. Prado (1977) 67 Cal.App.3d 267, 271.)
The jury, however, found Richardson joined the robberies before the murders occurred, which necessarily means it found he was in on the robbery plot from the beginning. Accordingly, there is no possible prejudice. In any event, accessory after the fact is a lesser related offense to the charged offenses, and a "defendant has no right to instructions on lesser related offenses, even if he or she requests the instruction and it would have been supported by substantial evidence, because California law does not permit a court to instruct concerning an uncharged lesser related crime unless agreed to by both parties." (People v. Jennings (2010) 50 Cal.4th 616, 668; People v. Birks (1998) 19 Cal.4th 108, 116-117 (Birks).)"A lesser related offense is one 'closely related to that charged and [for which] the evidence provides a basis for finding the defendant guilty of [while finding him] innocent of the charged offense.' " (People v. Babaali (2009) 171 Cal.App.4th 982, 1000.) " '[F]or a lesser uncharged offense to be closely related to a greater charged offense, evidence of the lesser offense must be relevant to the issue of whether the defendant is guilty of the greater one.' " (People v. Whitfield (1993) 19 Cal.App.4th 1652, 1658.)
Richardson argues that even if under state law he is not entitled to an accessory instruction, he is entitled to the instruction under federal constitutional law. In Birks, however, the court held there is no federal constitutional right of a defendant to compel the giving of lesser related offense instructions. (Birks, supra, 19 Cal.4th at p. 123, citing Hopkins v. Reeves (1998) 524 U.S. 88.)
C
Additionally, Richardson contends the court erred by not instructing the jury on the culpable mental state for the special circumstance of felony murder. This special circumstance applies to an aider and abettor only if the defendant had the intent to kill (§ 190.2, subd. (c)), or "acted with 'reckless indifference to human life and as a major participant' in the commission of the underlying felony." (People v. Estrada (1995) 11 Cal.4th 568, 575 (Estrada); § 190.2, subd. (d).) "The court has a sua sponte duty to instruct the jury on the mental state required for accomplice liability when a special circumstance is charged and there is sufficient evidence to support the finding that the defendant was not the actual killer." (CALCRIM No. 703 (2011 ed.) p. 469.)
The People concede the court erred by not instructing the jury that Richardson must have been a major participant and must have acted with intent or reckless indifference to human life. The People assert, however, that reversal is not required because of a lack of prejudice. Our review of an instruction that omits an element of a special circumstance is subject to a harmless beyond a reasonable doubt standard. (People v. Prieto (2003) 30 Cal.4th 226, 256-257, citing Chapman v. California (1967) 386 U.S. 18 (Chapman).)An instructional error on a special circumstance allegation is harmless beyond a reasonable doubt when the evidence of the requisite mental state " ' " 'was overwhelming, and the jury could have had no reasonable doubt on that matter.' " ' " (People v. Carter (2005) 36 Cal.4th 1114, 1187.) We agree the error was harmless beyond a reasonable doubt. Even with the instruction, the result would not have been more favorable to Richardson.
"In this context, a 'major participant' in the underlying crime includes persons ' "notable or conspicuous in effect or scope" and "one of the larger or more important members or units of a kind or group." ' " (People v. Hodgson (2003) 111 Cal.App.4th 566, 574 (Hodgson); People v. Proby (1998) 60 Cal.App.4th 922, 933-934.) Hodgson explains that when the number of participants in a crime is small, their roles are more notable, conspicuous and essential "than if the shooter had been assisted by a coterie of confederates." (Hodgson, at p. 580.)
Richardson had only two other accomplices. Before the crimes, he performed reconnaissance of the liquor store, and got witness Campos to leave the area by warning him the police would soon be coming. Richardson waited in the getaway car during the crimes, stuck around even after shots were fired and White exited the liquor store brandishing a gun, sped off with his accomplices, and later cashed in stolen lottery tickets. Moreover, the jury found him guilty of joining in the robberies before the murders took place. Thus, they necessarily found he was involved from the beginning of the robbery plan. We have no doubt the jury would have found he was a major participant in the robberies.
The term "reckless indifference to human life" means "that the defendant was subjectively aware that his or her participation in the felony involved a grave risk of death." (Estrada, supra, 11 Cal.4th at p. 577; People v. Lancaster (2007) 41 Cal.4th 50, 89.) Robbery is inherently dangerous to human life. (People v. Friend (2009) 47 Cal.4th 1, 76; People v. Terrill (1979) 98 Cal.App.3d 291, 305; People v. Monjaras (2008) 164 Cal.App.4th 1532, 1437 (Monjaras).)"Common sense and common experience illustrate" that robbers ordinarily arm themselves " 'when they go out to commit robberies.' " (Monjaras, at p. 1437.) "[W]ith the proliferation of handguns in America . . . , robbery has become a more dangerous crime today because of the greater likelihood that victims will protect themselves by using deadly force against the robber." (Ibid.)
Richardson knew White and Allan were entering the liquor store during business hours to rob its staff. Richardson had been in the store 10 minutes before the robberies and would have observed the staff. He was aware that the situation was perilous, as he warned Campos the police would soon be arriving. When Richardson's uncle told him the store's surveillance system captured White with a gun, he expressed no surprise or objection. The failure to respond to a statement that would normally call for a response if it were untrue may be considered a tacit admission. (People v. Riel (2000) 22 Cal.4th 1153, 1189.) We are convinced the jury would have also found against Richardson on the reckless indifference to human life element.
We are unpersuaded by Richardson's argument that a finding of reckless indifference to human life may only be found when the "aiding and abetting defendant either (1) planned to kill, (2) was personally armed with and used a weapon, (3) actively participated in a violent felony such as rape, or (4) participated in prior felonies with the codefendant where the codefendant killed." While some opinions may have found felony murder applicable in such circumstances, Richardson cites no authority defining the term "reckless indifference to human life" (§ 190.2, subd. (d)) as being limited to such circumstances.
D
Richardson also asserts the court erred by not instructing the jury on the culpable mental state for the special circumstance of multiple murder. A defendant is subject to death or life in prison without the possibility of parole if he has been convicted of first degree murder and the jury also finds true an allegation he "has been convicted of more than one offense of murder in the first or second degree." (§ 190.2, subd. (a)(3).) If the defendant's culpability is based on aiding and abetting, as here, this special circumstance applies only if the defendant had the intent to kill. (Id. at subd. (c); People v. Jones (2003) 30 Cal.4th 1084, 1117; People v. Williams (1997) 16 Cal.4th 635, 688-689.)
The People concede the court omitted from the instructions the requirement of a finding that Richardson had the intent to kill. The People also concede the omission was prejudicial because "the evidence on this point was not so overwhelming as to render the error harmless beyond a reasonable doubt." The People note that at sentencing the court stated it had "no doubt . . . that [Richardson] maybe didn't intend to kill anybody," and the prosecutor acknowledged he "probably didn't know that . . . White was going to start shooting."
We agree with the People's assessment and reverse the true finding on the multiple murder special circumstance allegation. We do not reverse his two sentences of life in prison without the possibility of parole, however, because they are based on the true findings on the special circumstance of felony murder.
IV
Restraints
Richardson complains that during trial he was restrained with leg irons and waist chains without any showing of necessity or consideration of less restrictive alternatives. "[A] defendant cannot be subjected to physical restraints of any kind in the courtroom while in the jury's presence, unless there is a showing of a manifest need for such restraints." (People v. Duran (1976) 16 Cal.3d 282, 290-291.) The Duran rule " 'seeks to avoid the pernicious effect of the "possible prejudice in the minds of the jurors, the affront to human dignity, the disrespect for the entire judicial system . . ., as well as the effect such restraints have upon a defendant's decision to take the stand. . . .(People v. Anderson (2001) 25 Cal.4th 543, 596.)
Richardson cites only one record reference, a pretrial meeting before trial began the following day. The court stated to Richardson and White: "Both defendants, you always need to remain seated because I suspect the attorneys—it's probably going to come out that you are in custody. It's the nature of the charge. But we don't want you to move in any way with leg irons or waist chains with the jury. So stay down." Richardson points to nothing that shows he was actually restrained during trial, the jury ever saw any restraints, or restraints deprived him of a fair trial. Accordingly, he has not shown the requisite prejudice. (People v. Anderson, supra, 25 Cal.4th at p. 596; People v. Tuilaepa (1992) 4 Cal.4th 569, 583-584.) Further, Richardson does not cite the record to show he objected. "It is settled that the use of physical restraints in the trial court cannot be challenged for the first time on appeal. Defendant's failure to object and make a record below waives the claim here." (People v. Tuilaepa, supra, 4 Cal.4th at p. 583.)
V
Appointed Counsel
Allan contends the court erred by not conducting a Marsden hearing when Allan and his appointed counsel, Dale Atherton, disagreed on the viability of moving for a new trial. "When a defendant moves for substitution of appointed counsel, the court must consider any specific examples of counsel's inadequate representation that the defendant wishes to enumerate. Thereafter, substitution is a matter of judicial discretion. Denial of the motion is not an abuse of discretion unless the defendant has shown that a failure to replace the appointed attorney would 'substantially impair' the defendant's right to assistance of counsel." (People v Webster (1991) 54 Cal.3d 411, 435.)
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
The People mistakenly assert Atherton was retained counsel.
Atherton began representing Allan in April 2005. In August 2006 Allan advised the court he wanted to represent himself. The court provided him with a copy of a Faretta waiver form for his review before the next hearing. A month later, Allan withdrew his request.
Faretta v. California (1975) 422 U.S. 806 (Faretta).
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At a hearing in January 2008 Allan again requested self-representation. After inquiry, the court granted him pro per status on the basis he knowingly and intelligently waived his right to counsel. The court advised Allan to read over the Faretta waiver form carefully and of the pitfalls of self-representation. The court notified Allan he needed to make up his mind "[b]ecause I'm not going to keep going back and forth."
In May 2008 Allan requested the appointment of advisory counsel. Two weeks later, he withdrew the request.
Trial for all three defendants was scheduled to begin October 27, 2008. On October 24, the court continued the trial date to October 31 because Allan requested time to move for a continuance. On October 31, Allan filed his motion. The court severed Allan's case for trial.
In December 2008 White and Richardson were tried and found guilty. In March 2009, White was sentenced, and on May 20, 2009, Richardson was sentenced. On May 8, around a month before Allan's trial was to commence, he requested the reappointment of Atherton as his counsel. The court granted the request and continued the trial.
Allan was tried and convicted in July 2009. At the sentencing hearing in September 2009 Atherton asked to put a matter on the record. Atherton explained that Allan had asked him to file a motion for new trial, but he found no legitimate ground for doing so. Allan claimed a juror was sleeping, but neither Atherton nor the court observed that. Allan also claimed "the judge vouched for the prosecution," and the court responded, "It didn't happen." Allan requested a Marsden hearing, to represent himself, and a continuance to allow him time to file a new trial motion. The court denied all requests, explaining:
"I have had this case for years. Mr. Allan went pro per years ago, and the case was delayed, delayed, delayed, in fact, delayed to the extent that Mr. Allan had to be severed out of the co-defendants' case.
"As it came close to trial, Mr. Allan decided he needed his attorney back again and he wanted Mr. Atherton, and Mr. Atherton graciously came back on the case and prepared what the Court would find to be a yeoman's defense.
"Mr. Allan, it's Mr. Atherton's legal duty as an attorney . . . to look at the record and make a determination as to whether . . . there's a valid basis for a motion for new trial. He did that, and there's no basis in his opinion.
"In addition, he listened to and recounted on the record your . . . claims for motion for new trial. And after looking at that, he still finds no basis for a motion.
"In my review of what happened, your own testimony convicted you. You admitted that you went in to commit the robbery. You were trying to I guess gain some degree of sympathy because it was your brother who was the shooter."
The court did consider Allan's single ground of dissatisfaction with Atherton, that he saw no viable ground for a new trial motion. Even if the court arguably should have held a formal Marsden hearing, however, any error was harmless beyond a reasonable doubt. "Marsden does not establish a rule of per se reversible error." (People v. Washington (1994) 27 Cal.App.4th 940, 944.) "[A] trial court's failure to conduct a postconviction Marsden hearing is harmless where the defendant 'has made no showing . . . either that his Marsden motion would have been granted had it been heard, or that a more favorable result would have been achieved had the motion been granted.' " (People v. Reed (2010) 183 Cal.App.4th 1137, 1148; People v. Washington, supra, at p. 944.) On the record before us, we are satisfied that the court would have denied a Marsden motion, and there was no arguable ground for a new trial motion. The evidence against Allan was overwhelming.
VI
Sentencing/Abstracts of Judgment
All defendants submit that the court erred by not staying the punishments on the robbery counts, since robbery was the basis for the special circumstance of felony murder. The People agree, and so do we, that these sentences should be stayed under section 654, which forbids double punishment for the same act. (People v. Boyd (1990) 222 Cal.App.3d 541, 575.) "It is well settled . . . the court acts in 'excess of its jurisdiction' and imposes an 'unauthorized' sentence when it erroneously stays or fails to stay execution of a sentence under section 654." (People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17.)
White also asserts the abstract of judgment should be amended to reduce his court security fee from $200 to $80. At the relevant time, a $20 court security fee was mandated for each of his four convictions. (See Historical and Statutory Notes, 51A West's Ann. Pen. Code (2011 Supp.) foll. § 1465.8, subd. (a)(1), p. 187.) The People agree the fee should be reduced to $80. The People also agree with White's argument the abstract of judgment should be amended to reflect the oral pronouncement of 1456 days of custody credit rather than the stated 1453 days, and that restitution of $10,270 is direct restitution and not a restitution fine.
Allan asserts the parole revocation fine of $1,000 under section 1202.45 must be stricken because the statute is inapplicable when the defendant's sentence does not allow for the possibility of parole. The People concede the point. " 'When there is no parole eligibility, the [parole eligibility] fine is clearly not applicable.' " (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1184.)
DISPOSITION
We reverse the true finding on Richardson's special circumstance of multiple murder. We modify the judgments to stay the execution of the sentences on counts 3 and 4 (robbery) for all defendants pending the finality of the judgments and their service of the remainder of the sentences; reduce White's court security fee to $80; reflect 1456 days of custody credits for White; specify that White's $10,270 in restitution is direct restitution; and strike Allan's parole revocation fine. In all other respects, the judgments are affirmed. The court is directed to prepare amended abstracts of judgment in accordance with this opinion, and to forward copies of them to the California Department of Corrections and Rehabilitations.
McCONNELL, P. J. WE CONCUR:
HUFFMAN, J.
McDONALD, J.