Opinion
NOT TO BE PUBLISHED
APPEALS from judgments of the Superior Court of Los Angeles County No. SA066614, James R. Dabney and Katherine Mader, Judges.
Linda Acaldo, under appointment by the Court of Appeal, for Defendant and Appellant Dominic Dohnte Brown.
Marilyn Drath, under appointment by the Court of Appeal, for Defendant and Appellant Lamar Brooks.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steve E. Mercer and Marc A. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
BOREN, P.J.
Dominic Dohnte Brown, also known as Terrence Dohnte Brazil, and LaMar Brooks appeal from the judgments entered upon their convictions of conspiracy to commit robbery (Pen. Code, § 182, subd. (a)(1), count 1), two counts of attempted second degree robbery (§§ 664, 211, counts 2 & 6), attempted premeditated murder (§§ 664, 187, subd. (a), count 3), and shooting at an occupied motor vehicle (§ 246, count 4). Brown also appeals from his conviction of being a felon in possession of a firearm (§ 12021, subd. (a)(1), count 5). The jury found to be true as to both appellants, as to counts 2, 3, 4 and 6, the allegation that a principal was armed with a firearm within the meaning of section 12022, subdivision (a)(1) and, as to Brown alone, as to count 2, the personal use of a firearm allegation within the meaning of section 12022.53, subdivision (b) and as to counts 3, 4 and 6, the personal use of a firearm allegations within the meaning of section 12022.53, subdivisions (b), (c) and (d). The trial court sentenced Brown and Brooks to aggregate state prison terms of 60 and 62 years to life, respectively.
All further statutory references are to the Penal Code unless otherwise indicated.
Appellants contend that the trial court committed reversible error (1) in excluding them from proceedings that were critical to the outcome of the case, and (2) in denying their discovery of a codefendant’s sealed statement. Brooks contends that the trial court committed reversible error (3) by failing to instruct the jury that to find him guilty of willful, deliberate and premeditated attempted murder on an aiding and abetting or conspiracy theory, it had to find that willful, deliberate and premeditated attempted murder was a natural and probable consequence of attempted robbery or of conspiracy to commit robbery, (4) in instructing the jurors that to find Brooks guilty of attempted murder and shooting at an occupied motor vehicle on an aiding and abetting theory, the prosecution was required to prove only that either one of those offenses was a natural and probable consequence of the attempted robbery, and (5) in admitting evidence of a prior robbery on the issue of intent. Brown contends that (6) the trial court erred in imposing a five-year consecutive sentence on the section 667, subdivision (a) serious felony allegation.
Brown joins in all of Brooks’s contentions to the extent applicable to Brown, and Brooks joins in the arguments raised by Brown in numbers (1) and (2), above. (Cal. Rules of Court, rule 8.200(a)(5);see People v. Stone (1981) 117 Cal.App.3d 15, 19, fn. 5.)
We affirm.
FACTUAL BACKGROUND
The prosecution’s evidence
The charged offense
On January 17, 2008, at 4:15 p.m., Glen Bordenave (Glen) and his wife Dora Bordenave (Dora) drove home from the bank. Glen stopped his 1970 El Camino in front of their garage and let Dora out of the car before pulling in. A white Ford Expedition SUV driven by Ralph Milligan stopped by the curb. Appellants exited the vehicle and rapidly approached the Bordenaves. Brooks, the first person out of the SUV, was wearing a blue and white hoodie and holding a black BB gun that looked like a real gun. Brown was wearing a dark brown hoodie and holding a silver handgun.
Brooks yelled for Dora to get into the garage and pushed her down when she did not immediately comply. Glen quickly placed his car in reverse and backed out of the garage, trying to hit appellants or get them away from his wife, but pulled back towards the garage when he missed them. Brown ran to the back of Glen’s car, while Brooks was at the front. Appellants pointed their weapons and simultaneously fired at Glen, who heard five to six shots but could not tell which shooter hit him. He suffered several bullet wounds and was left paralyzed. Appellants ran off, and the white SUV left the area.
California Highway Patrol Officer Ken Greene heard gunshots, went to the Bordenaves’ residence and spoke with Glen. Glen gave him a description of appellants’ vehicle, which the officer broadcast.
Appellants’ arrests
California Highway Patrol Officer James Sapikowski and his partner, Officer Vanderneulen, heard the broadcast, describing a white Ford Expedition. They then spotted appellants’ SUV driving at a high rate of speed. They pursued the SUV, caught it, and directed Milligan, who was driving, to pull over. Appellants were in the backseat. All three men were ordered out of the vehicle and initially placed in separate patrol cars. Then, appellants were placed together in a patrol car which had a recording device.
Inside the police car, appellants made the following recorded comments, among others; “Probably gonna take us back to the scene”; “Did you have your black hoodie on? You didn’t have nothing on... You didn’t have your black hoodie on?”; “I told you to keep your hoodie on!”; “You didn’t let them see your face did you?”; and “Did you let them see your face or your whole head?”
The investigation
Detective Fredrick Doke responded to the Bordenaves’ residence. He saw their black El Camino, which had crashed into the corner of the garage, with several bullet holes. There were six expended shell casings on the ground, which appeared to be nine-millimeter and to have entered the SUV on the driver’s side and traveled from the back of the El Camino towards the cab. Officers also retrieved a nine-millimeter bullet, removed from Glen’s body during surgery. No BB’s were found.
A citizen reported to police seeing a firearm on a driveway near where the officers first saw appellants fleeing in the SUV. The gun, a Sig-Sauer, nine-millimeter, semiautomatic handgun, loaded with four live rounds, was recovered. Forensic analysis determined that it fired the expended casings found at the scene and bullet removed from Glen. Officers also found a black Crossman BB gun 50 to 75 yards away. In the SUV, they recovered a shopping bag with packaging for the discarded BB gun inside. A small amount of gunshot residue was found on appellants’ hands.
At a field showup 45 minutes after the shooting, Dora identified Brooks, whom she was certain was the person who pushed her, and tentatively identified Brown. At the preliminary hearing, she and Glen identified appellants as the perpetrators. Dora was then certain Brown was the other attacker, as she had a better look at him than at the showup. Dora testified that Brown was the person with the silver gun, wearing dark brown clothing, and Brooks was the person wearing the Blue and white “hoodie.” At trial, Dora and Glen again identified appellants.
Prior Offenses
On June 26, 2007, at approximately 10:30 a.m., in the City of Palmdale, Leo Dufour went to a bank, visited a grocery store and then got into his car. As he sat in his car, Brooks approached him, asked directions to the court and handed Dufour what appeared to be a parking ticket. Brooks pressed something against Dufour’s neck and said it was a gun and “Give me the fuckin’ money.” He then reached into the car, grabbed a bag containing the cash Dufour had withdrawn from the bank, and fled. Brooks stipulated that he had a prior felony conviction in 2007, apparently related to the Dufour incident.
On November 25, 2005, near 2:00 p.m., off-duty policeman Daniel Slater and a female friend were standing by Slater’s truck in a Palmdale-area parking lot when they saw a car enter the lot. Brown exited the car, entered a store, immediately exited without making a purchase, and got back into his car. He drove past Slater, made a U-turn, came back and stopped next to him. There were three Black males in the car. One of them in the front seat pointed a small caliber handgun at Slater and said, “Give me your shit, mother fucker.” Slater and his friend retreated behind Slater’s truck, and Slater drew his gun. The man in the car fired five to seven shots at Slater and then drove off. Brown was convicted of attempted robbery and sentenced to two years in prison.
The defense’s evidence
Only Brooks presented defense evidence. Pursuant to stipulation of the parties, he read from the preliminary hearing testimony of Dufour. In that testimony regarding Brooks robbing him, Dufour did not mention that Brooks said, “Give me all your fucking money” or that Brooks had a gun. He also denied that he told police these things. At the same hearing, a police officer testified that Dufour told him that Brooks had a weapon and demanded money.
DISCUSSION
I. Exclusion of appellants from critical hearing
A. Background
In a pretrial proceeding before Judge Katherine Mader, codefendant Milligan pled guilty and agreed to the accuracy of a factual basis for his plea (factual basis) read into the record from a written statement prepared by the prosecutor. Appellants and their counsel were not present at this hearing. In fear of being seen as a “snitch,” Milligan entered the plea only after Judge Mader agreed that the factual basis would be sealed
Just before trial began in front of Judge James Dabney, Milligan’s counsel, Kevin Greber, stated his concern that appellants’ counsel “believe that they’re entitled to that sealed portion of the factual basis of the plea.” Greber requested that appellants be excluded from the courtroom during this hearing for Milligan’s protection. Over objections by appellants’ counsels, Judge Dabney excluded appellants because security issues were being discussed, and stated: “I believe this particular issue, by its very nature, is one that I do not believe that the defendants have to be present to hear argument on, otherwise, it would sort of obviate the entire point of having this discussion.”
Greber went on to explain that Judge Mader’s intention in issuing the sealing order was to preclude revelation of, not only the transcript of the factual basis which was sealed, but also the written statement in the prosecution’s possession which was read into the record verbatim and formed the factual basis. The factual basis was solely inculpatory and not exculpatory in any way. Greber described its contents, stating that, “there are no undisclosed factual aspects that would be a surprise to anyone....” The factual basis was derived from the police reports and preliminary hearing transcript, which appellants had been provided. Appellants would therefore not be prejudiced by withholding the statement. Greber added that the prosecutor had made clear he did not intend to call Milligan, but if Milligan was called, he would assert his Fifth Amendment privilege not to testify.
After reviewing the factual basis, Judge Dabney concluded that he had no basis for ordering the prosecutor to turn over its written version because “it’s not a statement of a witness; it’s not a statement of a defendant who is on trial; it’s not exculpatory; it’s not real evidence; it’s not a report. It doesn’t fall under 1054.” Judge Dabney added that he had no authority to overrule Judge Mader’s order and invited appellants to take up the matter with her.
Defense counsel therefore went before Judge Mader for a clarification of her sealing order. She immediately inquired, “Aren’t you bringing out the defendants?” Defense counsel indicated that they wanted their clients brought into court, but Greber objected that if they were in the courtroom, “[T]he whole reason that it was sealed in the first place is obviated.” Judge Mader allowed appellants back into the courtroom before explaining her ruling. She then stated that she found nothing exculpatory in the factual statement, and the prosecutor did not intend to call Milligan to testify. The written statement in the prosecutor’s possession, which was the basis of the factual plea, was a part of the factual basis and therefore not discoverable under her order. She ordered the prosecutor “not to release that yellow piece of paper, and so if you violated that by releasing it, it would be a violation of a court order.” Judge Mader also ruled that the prosecution was precluded from using Milligan’s plea during the case-in-chief or in rebuttal.
At the conclusion of the prosecution’s case at trial, appellants again claimed that sealing the plea violated their federal constitutional rights. Judge Dabney rejected the claim because Milligan would not be a witness, and appellants knew the content of the plea because it was derived from the police reports.
B. Contention
Appellants contend that the trial court erred in excluding them from the hearing, thereby violating their due process rights under the Fourteenth Amendment. They argue that their presence was critical to the argument before the trial court, which was based on facts about which they were more familiar than were their counsel. This contention is without merit.
C. Appellants’ right to be present
A criminal defendant has both a constitutional and statutory right to be present at trial and at certain pretrial proceedings pertaining to the defendant’s case. The constitutional basis of this right is derived from the Sixth Amendment confrontation clause and Fourteenth Amendment due process clause of the United States Constitution and section 15 of article I of the California Constitution. (People v. Concepcion (2008)45 Cal.4th 77, 81 (Concepcion); People v. Kelly (2007) 42 Cal.4th 763, 781 (Kelly).) In People v. Bradford (1997) 15 Cal.4th 1229 (Bradford), our Supreme Court stated: “[A] defendant has a federal constitutional right, emanating from the confrontation clause of the Sixth Amendment and the due process clause of the Fourteenth Amendment, to be present at any stage of the criminal proceedings ‘that is critical to its outcome if his presence would contribute to the fairness of the procedure.’ [Citations.]” (Id. at pp. 1356-1357.) The confrontation clause requires the defendant’s presence when his absence would interfere with his opportunity to cross-examine at trial. (Kentucky v. Stincer (1987) 482 U.S. 730, 740.) A defendant has a due process right to be present when the defendant’s presence is reasonably related to the fullness of his opportunity to defend against the charge. (Id. at p. 745.)
A criminal defendant also has a statutory right to be present. Section 977, subdivision (b)(1) states: “In all cases in which a felony is charged, the accused shall be present at the arraignment, at the time of plea, during the preliminary hearing, during those portions of the trial when evidence is taken before the trier of fact, and at the time of the imposition of sentence. The accused shall be personally present at all other proceedings unless he or she shall, with leave of court, execute in open court, a written waiver of his or her right to be personally present, as provided by paragraph (2).” Section 1043, subdivision (a) provides that, “Except as otherwise provided in this section, the defendant in a felony case shall be personally present at the trial.” For purposes of this section 1043, a jury trial begins with jury selection. (Concepcion, supra, 45 Cal.4th at p. 80, fn. 4.)
But a defendant does not have the right to be present at every hearing held in the course of a trial. (Concepcion, supra, 45 Cal.4th at p. 81.) A defendant’s statutory and constitutional rights to be present at a hearing during trial depends on two conditions: (1) the proceeding is critical to the outcome of the case, and (2) the defendant’s presence would contribute to the fairness of the proceeding. (Concepcion, supra, at p. 82; Kelly, supra,42 Cal.4th at pp. 781-782.) The accused is not entitled to be personally present during proceedings which bear no reasonable and substantial relation to his or her opportunity to defend against the charges. (People v. Rogers (2006) 39 Cal.4th 826, 855.) For example, defendants may be excluded from conferences on questions of law, even if critical to the outcome of the case, because the defendant’s presence would not contribute to the fairness of the proceeding. (Concepcion, supra, at p. 82, fn. 6.) A trial court has discretion to decide whether to conduct part of a defendant’s trial in defendant’s absence. (People v. Huggins (2006) 38 Cal.4th 175, 202 [controlling a disruptive defendant by removal].) The defendant has the burden of establishing that his absence prejudiced his case or denied him a fair trial. (Bradford, supra, 15 Cal.4th at p. 1357.) “An appellate court applies the independent or de novo standard of review to a trial court’s exclusion of a criminal defendant from trial, either in whole or in part, insofar as the trial court’s decision entails a measurement of the facts against the law.” People v. Waidla (2000) 22 Cal.4th 690, 741.)
Despite Brown’s efforts to convince us otherwise, we see nothing in the record to suggest that this hearing was critical to the outcome of the case or that appellants’ presence would have contributed to the fairness of the proceedings. (Concepcion, supra, 45 Cal.4th at p. 82; Kelly, supra, 42 Cal.4th at pp. 781-782.) The hearing was simply a pretrial motion to discuss the propriety of Judge Mader’s order sealing Milligan’s factual basis and extending that order to include, not only the reporter’s transcript of the factual basis, but the prosecutor’s written statement of that factual basis that was read into the record. These were legal issues on which appellants could provide little assistance and did not require delving into the substance of the sealed material, other than to indicate that its contents were derived from the preliminary hearing transcript and police reports, already in the possession of the defense. It is unclear how appellants could provide any meaningful assistance at the hearing.
D. Harmless error
Even if it was error to exclude appellants from the hearing, we conclude that their absence was utterly harmless by even the most stringent beyond a reasonable doubt standard. (People v. Davis (2009) 36 Cal.4th 510, 532-533 [error under the state statutory right to presence is evaluated under the People v. Watson (1956) 46 Cal.2d 818, 836 (Watson) standard, and federal constitutional error regarding the right to be present is evaluated under Chapman v. California (1967) 386 U.S. 18, 20-21].)
First, our review of the transcript of the sealed factual basis has revealed nothing exculpatory of appellants and nothing that is not contained in the police reports and preliminary hearing testimony, already in appellants’ possession. Thus, even had appellants been present at the hearing and by their presence managed to have had the factual basis unsealed, it would have provided no additional assistance in their defense.
Second, appellants were represented by counsel at that hearing and most of the discussion related to the legality of turning over the statement. We fail to see how anything appellants could have told their attorneys during the hearing would have assisted in obtaining the sealed statement. Brown concedes that the motion did not involve “the actual substance of the factual basis.”
Third, the prosecutor indicated that the only circumstance on which the factual basis would be used was if Milligan decided to voluntarily testify and help his associates by recanting what he had admitted in the factual basis. Under those circumstances, the factual basis would be used to impeach him. However, it is unlikely that Milligan would recant the factual basis, as it would undo his plea which was dependent upon his giving honest testimony and for which he was not to be sentenced until after appellants’ trial.
Finally, the evidence against appellants was overwhelming. Dora identified them as the perpetrators at a field showup, and both she and Glen positively identified them at the preliminary hearing and at trial. They identified the guns possessed by appellants, which matched the description of the guns found not far from where the police began pursuing them. Forensics established that the silver gun found was the weapon out of which the bullet taken from Glen during surgery and the six shell casings found at the scene were fired. Inspection of appellants’ SUV yielded wrapping for the same type of BB gun found near the silver gun. A recording of statements made between appellants in the police car are inferentially inculpating.
II. Denial of discovery of sealed statement
A. Background
The trial court denied appellants’ discovery motion seeking to obtain the factual basis of Milligan’s plea, in part, because it found the statement to be inculpatory and not exculpatory and because Milligan was no longer a defendant and on trial with appellants.
B. Contention
Appellants contend that the trial court erred as a matter of state statutory law and federal constitutional law in denying their discovery motion to obtain a copy of the sealed statement. They argue that under the discovery statute section 1054.1, all statements of all defendants must be produced, not only statements that are exculpatory. Under the federal Constitution, fundamental fairness requires reciprocity of discovery. This contention is without merit.
C. Standard of Review
We generally review discovery rulings for abuse of discretion. (People v. Ayala (2000) 23 Cal.4th 225, 299; Hill v. Superior Court (1974) 10 Cal.3d 812, 816.)
D. Discovery of factual basis
The only constitutional discovery requirement is that stated in Brady v. Maryland (1963) 373 U.S. 83, where the United States Supreme Court concluded that due process requires disclosure of evidence that is favorable to the defendant and material on the issues of guilt or punishment. (See People v. Gutierrez (2003) 112 Cal.App.4th 1463, 1471.) Brady exculpatory evidence is the only substantive discovery mandated by the federal Constitution; a criminal defendant does not have a general constitutional right to discovery. (People v. Superior Court (Barrett) (2000) 80 Cal.App.4th 1305, 1314.) We have carefully reviewed the transcript of the factual basis of Milligan’s plea and concur with the trial court and prosecutor that nothing in it was exculpatory of appellants. Consequently, the failure to produce it did not violate due process.
Similarly we find no statutory violation. The statutory rights to discovery by the defendant are embodied in section 1054.1, which provides in part: “The prosecuting attorney shall disclose to the defendant or his or her attorney all of the following materials and information, if it is in the possession of the prosecuting attorney or if the prosecuting attorney knows it to be in the possession of the investigating agencies: [¶]... [¶] (b) Statements of all defendants.... [¶]... [¶] (e) Any exculpatory evidence. [¶] (f) Relevant written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecutor intends to call at the trial,...” The discovery statutes have multiple purposes, including promoting ascertainment of the truth by timely pretrial discovery, protecting victims and witnesses from danger, harassment and undue delay, and saving court time in trial. (§ 1054.)
Discovery was not required under subdivisions (e) and (f) of section 1054.1 because nothing in the factual basis was exculpatory of appellants, and Milligan was not a witness that the prosecutor intended to call. Whether discovery was required under subdivision (b),”Statements of all defendants,” requires further analysis.
While the trial court facilely concluded that because Milligan entered a plea, he was no longer a defendant for purposes of the discovery statute, we conclude otherwise. “The party prosecuted in a criminal action is designated in this Code as the defendant.” (§ 685.) Webster’s Third New International Dictionary, page 591, describes a defendant as “a person required to make answer in an action or suit... in a criminal action.” Milligan entered a plea but was not to be sentenced until after appellants’ trial. Thus, he remained a defendant, at least until a final judgment was entered against him. Entering a plea did not change Milligan’s defendant status for discovery purposes. He was still a participant in the charged offenses and a potential witness.
Consequently, as a “[s]tatement[] of a[] defendant[]” under section 1054.1, subdivision (b), Milligan’s factual basis statement was eligible for discovery. But even if discovery is required under section 1054.1, section 1054.7 provides that it may not be compelled if “good cause is shown why a disclosure should be denied, restricted, or deferred.” “‘Good cause’ is limited to threats or possible danger to the safety of a victim or witness, possible loss or destruction of evidence, or possible compromise of other investigations by law enforcement.” (§ 1054.7.)
The trial court did not abuse its discretion in finding good cause to prohibit disclosure of the factual basis. It was not unreasonable to conclude that if appellants were aware that Milligan, still a possible witness, had “snitched,” his life in prison would be in extreme danger. Inmates are particularly vulnerable to threats, coercion or violent acts of other inmates. (Alvarado v. Superior Court (2000) 23 Cal.4th 1121, 1136.) Moreover, as a potential adverse witness to appellants, Milligan could have been subjected to coercion to recant his statement and testify differently. One of the primary purposes of the discovery statutes is to protect witnesses and victims from danger and harassment. (§ 1054.)
Buttressing this justification for withholding discovery of the factual basis is that Milligan’s plea was induced, at least in part, by Judge Mader’s agreement to seal the factual basis. She found that unsealing it would require allowing Milligan to withdraw his plea. If he did so, he would have gone to trial with appellants or been separately tried, dramatically increasing the consumption of court time involved in this case. Another purpose of the discovery statutes is to save court time in trial. (§ 1054.)
Finally, having reviewed the factual basis, the trial court properly concluded that it contained nothing that would be of benefit to appellants and nothing of which appellants were not already aware from the police reports and preliminary hearing transcripts. Any minimal benefit that might have accrued to appellants from receipt of the sealed statement was substantially outweighed by the potentially negative consequences of doing so.
D. Harmless error
Even if the trial court erred in failing to require production to appellants of Milligan’s factual basis statement, that error was harmless, as discussed in part ID, ante, in that it is not reasonably likely that had it been produced a result more favorable to appellants would have been achieved. (People v. Zambrano (2007) 41 Cal.4th 1082, 1135, fn. 13, [any violation of the California reciprocal discovery statute is subject on appeal to the harmless error standard of review where it is reasonably probable by state-law standards that the omission affected the trial result under Watson], disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
III. Instructional errors
A. Failure to instruct on premeditated attempted murder as a natural and probable consequence
1. Background
The trial court instructed the jury in accordance with CALCRIM No. 600 that to prove attempted murder, the prosecution must prove that the defendant (1) took a direct but ineffective step towards killing someone, and (2) intended to kill the person, and, in accordance with CALCRIM No. 601, that if appellants were guilty of attempted murder, the jury was required to determine if that offense was committed with deliberation and premeditation. The trial court also instructed in accordance with CALCRIM Nos. 403 and 417 that Brooks could be guilty of attempted murder and shooting at an occupied motor vehicle as an aider and abettor of the attempted robbery, if a “reasonable person in defendant Brook’s position would have known that the commission of the attempted murder or shooting at an occupied vehicle was a natural and probable consequence of the commission of the attempted robbery,” or as a coconspirator if “attempted murder or shooting at an occupied vehicle were natural and probable consequences of the common plan or design of the crime that the defendant conspired to commit.”
CALCRIM No 403, as given, provides in its entirety: “To prove that defendant Brooks is guilty of the crime charged in Counts 3 and 4 as an aider and abettor, the People must prove that: [¶] 1. Defendant Brooks is guilty of attempted robbery; [¶] 2. During the commission of attempted robbery a coparticipant in that attempted robbery committed the crime of attempted murder or shooting at an occupied vehicle; AND [¶] 3. Under all of the circumstances, a reasonable person in defendant Brook’s position would have known that the commission of the attempted murder or shooting at an occupied vehicle was a natural and probable consequence of the commission of the attempted robbery. [¶] A coparticipant in a crime is the perpetrator or anyone who aided and abetted the perpetrator. It does not include a victim or innocent bystander. [¶] A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence. If the attempted murder or the shooting at an occupied vehicle was committed for a reason independent of the common plan to commit the attempted robbery, then the commission of attempted murder or shooting at an occupied vehicle was not a natural and probable consequence of attempted robbery. [¶] To decide whether crime of attempted murder or shooting at an occupied vehicle was committed, please refer to the separate instructions that I will give you on that crime.”
CALCRIM No. 417, as given, provides in its entirety: “A member of a conspiracy is criminally responsible for the crimes that he or she conspires to commit, no matter which member of the conspiracy commits the crime. [¶] A member of a conspiracy is also criminally responsible for any act of any member of the conspiracy if that act is done to further the conspiracy and that act is a natural and probable consequence of the common plan or design of the conspiracy. This rule applies even if the act was not intended as part of the original plan. [¶] A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence. [¶] A member of a conspiracy is not criminally responsible for the act of another member if that act does not further the common plan or is not a natural and probable consequence of the common plan. [¶] To prove that defendant Brooks is guilty of the crime charged in Counts 3 and 4 as a coconspirator, the People must prove that: [¶] 1. The defendant conspired to commit one of the following crimes: robbery; [¶] 2. A member of the conspiracy committed Attempted Murder or Shooting at an Occupied Vehicle to further the conspiracy; AND [¶] 3. Attempted murder or shooting at an occupied vehicle were [sic] natural and probable consequences of the common plan or design of the crime that the defendant conspired to commit.”
2. Contention
Relying on People v. Hart (2009) 176 Cal.App.4th 662 (Hart), Brooks contends that the trial court erred by failing to instruct the jury sua sponte that in order to find him guilty of willful, deliberate and premeditated attempted murder as an aider and abettor or as a coconspirator, it was required to find that, not only was the attempted murder a natural and probable consequence of the attempted robbery, but premeditated and deliberate attempted murder was a natural and probable consequence. He argues that an attempted murder without deliberation and premeditation is a lesser included offense of attempted murder with deliberation and premeditation. Thus, even though the perpetrator was found guilty of premeditated murder, Brooks, as an aider and abettor, could still be found guilty of the lesser offense. He need not be guilty of the same degree of culpability as the direct perpetrator. We disagree with Brooks, and also find that the failure to instruct as he contends was harmless.
3. Duty to instruct on premeditated attempted murder as natural and probable consequence
In criminal cases “‘[a] trial court has a duty to instruct the jury “sua sponte on general principles which are closely and openly connected with the facts before the court.”’” (People v. Gutierrez (2009) 45 Cal.4th 789, 824; see People v. Breverman (1998) 19 Cal.4th 142, 154 (Breverman).) We review de novo a claim that the trial court failed to properly instruct the jury on the applicable principles of law. (People v. Martin (2000) 78 Cal.App.4th 1107, 1111.)
The issue is whether the trial court was required to instruct the jury sua sponte that in order to find Brooks guilty of premeditated and deliberate attempted murder as an aider and abettor or coconspirator under the natural and probable consequences doctrine, the jury had to find that, not just attempted murder, but willful, deliberate and premeditated attempted murder was a natural and probable consequence of the target offense.
In People v. Cummins (2005) 127 Cal.App.4th 667 (Cummins), Division One of this District expressed a conclusion contrary to that of Hart. In Cummins, the defendant argued on appeal that the trial court “failed to inform the jury it had to find that a premeditated attempted murder had to be a natural and probable consequence of [the target offenses].” (Cummins, supra,at p. 680.) But, the Court of Appeal, relying upon our Supreme Court’s decision in People v. Lee (2003) 31 Cal.4th 613 (Lee), concluded that the jury did not have to find that premeditated attempted murder was a natural and probable consequence of the target offense. (Cummins, supra,at p. 680.)
Relying on Cummins, Division Four of this District also came to the same conclusion, rejecting Hart and stating: “But as the Supreme Court observed in Lee, the Legislature declined to make a distinction in the findings necessary for perpetrators or for aiders and abettors in Penal Code section 664, subdivision (a).” (People v. Favor (2010) 190 Cal.App.4th 770, 776.)
We agree with the Courts in Cummins and Favor and reject the reasoning in Hart cited by Brooks.
4. Harmless error
Even if the instruction given was erroneous, it was harmless. It is not reasonably likely that had the instruction been given a more favorable result for Brooks would have ensued. (People v. Prince (2007) 40 Cal.4th 1179, 1267; Breverman, supra,19 Cal.4th at p. 165 [failure to instruct on lesser included offense in a noncapital case is subject to the Watson standard of harmless error].) While the prosecution’s theory of this case was that Brooks was culpable as an aider and abettor, he was intimately involved in the shooting of Glen. He got out of the car with Brown, both armed, Brooks with a BB gun and Brown with a loaded handgun. They intended to rob the Bordenaves, and Brooks inferentially knew that Brown had a firearm. Brooks knocked Dora down, and went to the front of the El Camino and aimed his gun at Glen, as Brown moved to the rear of the car and did the same. Both fired at Glen simultaneously. Brooks provided more than aid to Brown; he was a full and active participant in all the steps that led to the attempt on Glen’s life. Under these circumstances, the evidence supports a finding that a reasonable person in Brooks’s position would have known that a premeditated murder was likely to occur.
Furthermore, the jury was given the option of finding Brooks guilty of attempted murder or willful, deliberate and premeditated attempted murder. CALCRIM No. 601 informed the jury that it had to determine whether Brooks acted deliberately and with premeditation. The verdict form provided that the jury had to separately determine whether the willful, deliberate and premeditated allegation was true. During rebuttal, the prosecutor, in arguing that Brooks was culpable for attempted premeditated murder under the natural and probable consequences doctrine, stated that he had to prove that a reasonable person in Brooks’s position would have known that the commission of the attempted premeditated murder or shooting at an occupied motor vehicle was a natural and probable consequence of the commission of the attempted robbery.
B. Error in CALCRIM Nos. 403 and 417, as given
1. Background
The trial court instructed the jury in accordance with CALCRIM Nos. 403 and 417 that to prove Brooks guilty of attempted premeditated murder and shooting at an occupied vehicle on an aiding and abetting or conspiracy theory, the prosecutor had to show that “commission of the attempted murder or shooting at an occupied vehicle was a natural and probable consequence of the commission of the attempted robbery.” (Italics added.)
See footnotes 2 and 3, ante.
2. Contentions
Brooks contends that the trial court gave erroneous versions of CALCRIM Nos. 403 and 417. The improper instructions stated that to prove him guilty of attempted murder and shooting at an occupied vehicle, the People were required to prove either that attempted murder or shooting at an occupied vehicle was a natural and probable consequence of the attempted robbery. He argues that “the law actually is that appellant Brooks could be found guilty of attempted murder only if attempted murder was a natural and probable consequence of the attempted robbery/conspiracy to commit robbery and he could be found guilty of shooting at an occupied motor vehicle only if shooting at an occupied motor vehicle was found to be a natural and probable consequence of the attempted robbery/conspiracy to commit robbery.”
Respondent contends that this claim has been forfeited by failure to raise it in the trial court. We disagree.
1. Forfeiture
Generally, ‘“[a] party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.”’ (People v. Hart (1999) 20 Cal.4th 546, 622; People v. Guerra (2006) 37 Cal.4th 1067, 1134; People v. Gonzalez (2002) 99 Cal.App.4th 475, 483.) As discussed below, CALCRIM Nos. 403 and 417 were not correct in law and hence were not forfeited by the failure to object to them in the trial court.
4. CALCRIM Nos. 403 and 417 as given were incorrect
“All persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission... are principals in any crime so committed.” (§ 31.) A person is liable for aiding and abetting when, (1) with knowledge of the unlawful purpose of the perpetrator and (2) with the intent or purpose of committing, or encouraging, or facilitating the commission of the crime, that person (3) by act or advice aids, promotes, encourages, or instigates the commission of the crime. (People v. Gibson (2001) 90 Cal.App.4th 371, 386.) An aider and abettor is guilty not only of an offense he intended to facilitate or encourage, but also of any reasonably foreseeable offense committed by the person he aids and abets. (People v. Hickles (1997) 56 Cal.App.4th 1183, 1193.) Thus, an aider and abettor is guilty of any offense that is the natural and probable consequence of the target offense. But guilt of one such foreseeable offense does not render the aider and abettor responsible for an offense not reasonably foreseeable. Each offense must be the natural and probable consequence of the target offense.
CALCRIM Nos. 403 and 417, as given to the jury here, informed the jury that Brooks could be found guilty of both premeditated attempted murder and shooting at an occupied motor vehicle as an aider and abettor or coconspirator if either one of those offenses was a natural and probable consequence of the attempted robbery. If either was a natural and probable consequence, Brooks was guilty of both. But the law requires that to be guilty of both, both must be natural and probable consequences of the target offense. The challenged instructions are therefore not correct in law.
5. Harmless error
Any “misdirection of the jury” (Cal. Const., art. VI, § 13), that is instructional error (Breverman, supra, 19 Cal.4th at p. 173), cannot be the basis of reversing a conviction unless “‘an examination of the entire cause, including the evidence,’” indicates that the error resulted in a “‘miscarriage of justice.’” (Ibid.) “Under such circumstances, ‘[t]he prejudicial effect of such error is to be determined, for purposes of California law, under the generally applicable reasonable-probability test” in Watson. (Breverman, supra,at p. 174.) Applying that test here, we find the instructional error to be harmless.
During deliberations, the jury asked the trial court whether counts 3 and 4, the attempted murder and shooting at an occupied vehicle, “can be independent or have different verdicts for each. Meaning: If-do both counts have to be the same.” The trial court responded, “No. They are independent.” This clarification corrected the error in the instructions. For if the jury understood CALCRIM Nos. 403 and 417 to mean that Brooks was guilty of both attempted murder and shooting at an occupied vehicle if either of those offenses was a natural and probable consequence of attempted robbery, it would have had to have found Brooks guilty of both offenses or neither, but not guilty of only one. The trial court dispelled this erroneous possibility by instructing that each offense was to be determined independently, that is, the jury did not have to find Brooks guilty of both or neither.
Further, during closing argument, the prosecutor clarified for the jury that it had to evaluate the attempted murder charge and shooting at an occupied vehicle charge separately, arguing that the attempted murder charge was the stronger charge.
Finally, the reasons set forth in part ID, ante, further justify our conclusion that Brooks suffered no prejudice by this instructional error.
IV. Erroneous admission of prior misconduct evidence
A. Background
On March 6, 2009, the prosecutor filed a motion, seeking to introduce other crimes evidence related to Brooks’s 2007 robbery of Dufour. At the beginning of trial, Brooks’s counsel objected to this evidence, arguing that he did not receive timely discovery of the material and that the prior offense was not sufficiently similar to the charged crime. Defense counsel further argued that Dufour’s testimony was more prejudicial than probative in light of the dissimilarity of the crimes, and it should be excluded under Evidence Code section 352. The trial court allowed the evidence because it was the only way to prove what appellants were doing in the current case. It allowed the prosecutor to argue this evidence in his opening statement, over defense counsel’s objection.
During opening statement, the prosecutor immediately stated that, “These two defendants are ex-felons,” and began talking about the Dufour incident. Defendant interposed an objection.
The trial court instructed the jury pursuant to CALCRIM No. 375 that the evidence of prior robberies could only be considered if the People proved by a preponderance of the evidence that the appellant in fact committed the offense and then it was only admissible in determining whether the defendant acted with the intent to commit robbery in this case. It could not be considered on whether appellant had a bad character or disposition to commit crime.
CALCRIM No. 375 states in is entirety: “The People presented evidence that the defendants committed the offense of Robbery that was not charged in this case. [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the offense. Proof by a preponderance of the evidence is a different burden of proof than proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. [¶] If the People have not met this burden, you must disregard this evidence entirely. [¶] If you decide that a defendant committed the offense, you may, but are not required to, consider that evidence for the limited purpose of deciding whether or not: [¶] The defendant acted with the intent to commit robbery in this case. [¶] In evaluating this evidence, consider the similarity or lack of similarity between the uncharged offense and the charged offenses. [¶] Do not consider this evidence for any other purpose. [¶] Do not conclude from this evidence that the defendant has a bad character or is disposed to commit crime. [¶] If you conclude that the defendant committed the uncharged offense, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of counts 2 and 6. The People must still prove every charge beyond a reasonable doubt.”
At trial, evidence of Brooks’s prior robbery was admitted to show his intent. Dufour testified that on June 26, 2007, near 10:30 a.m., he went to the bank and made a deposit. On his way back from the bank he stopped at a store. As he was getting into his car in the parking lot, appellant approached him and showed him a parking ticket. The change that Dufour had obtained in the bank was in a bank money bag on the floor in the driver’s area. Appellant was asking him for directions to the court when appellant put something on Dufour’s neck and demanded his money. Appellant told him to give him the money because he had a gun. Appellant then grabbed the money in the money bag and began running. Dufour did not see any weapon during the incident.
B. Contention
Appellant contends that the trial court committed reversible error by allowing admission of evidence of the Dufour incident on the issue of intent. He argues that the prior robbery did not reflect a characteristic method or plan and the case had almost no similarity to the charged offense, stating, “[I]t seems clear that there was no close connection between the Dufour incident and the present case such that one could infer that if appellant was involved in the Dufour incident he must have intended to commit a robbery during the present incident.” This contention lacks merit.
C. Admissibility of prior offenses
“Except as otherwise provided by statute, all relevant evidence is admissible.” (Evid. Code, § 351.) “‘Relevant evidence’ means evidence... having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.)
But admission of evidence of misconduct other than that charged produces an “overstrong tendency to believe the accused guilty of the charge merely because he is a likely person to do such acts.” (1A Wigmore, Evidence (Tillers rev. ed. 1983) § 58.2, p. 1215.) Such evidence “will have an inevitable tendency to suggest that the defendant has a general criminal propensity or disposition, and thus an inevitable tendency to persuade a trier that the defendant is somewhat more likely to have committed the crime currently charged....” (People v. Scott (1980) 113 Cal.App.3d 190, 198.) Consequently, other crimes evidence, as a general proposition, is inadmissible to prove a defendant’s conduct on a specified occasion. (Evid. Code, § 1101, subd. (a).)
Subdivision (a) of Evidence Code section 1101 provides: “(a) Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.”
Evidence Code section 1101, subdivision (b) expressly carves out an exception to this rule. It provides that such evidence is admissible if it is relevant to an issue other than disposition to commit the act, such as intent, identity or plan. Admissibility of other crimes evidence depends upon (1) the materiality of the facts sought to be proved, (2) the tendency of the uncharged crime to prove those facts (relevance), and (3) any policy requiring exclusion, such as Evidence Code section 352. (People v. Carpenter (1997) 15 Cal.4th 312, 378-379; see also People v. Ewoldt (1994) 7 Cal.4th 380, 404 [“[T]o be admissible such evidence [of other misconduct] ‘must not contravene other policies limiting admission, such as those contained in Evidence Code section 352. [Citations.]’”].)
Subdivision (b) of Evidence Code section 1101, provides: “(b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act.”
We review the trial court’s Evidence Code sections 352 and 1101, subdivision (b) rulings under the abuse of discretion standard. (People v. Kwolek (1995) 40 Cal.App.4th 1521, 1532 [review of Evid. Code, § 352 ruling]; see also People v. Lewis (2001) 25 Cal.4th 610, 637 [review of Evid. Code, § 1101 ruling].) “‘The weighing process under section 352 depends upon the trial court’s consideration of the unique facts and issues of each case, rather than upon mechanically automatic rules.... [Citation.]’” (People v. Greenberger (1997) 58 Cal.App.4th 298, 352.) Abuse occurs when the trial court “exceeds the bounds of reason, all of the circumstances being considered.” (People v. Giminez (1975) 14 Cal.3d 68, 72.)
1. Materiality
A “plea of not guilty puts in issue every material allegation of the accusatory pleading, except those allegations regarding previous convictions of the defendant to which an answer is required by Section 1025.” (§ 1019; see People v. Steele (2002) 27 Cal.4th 1230, 1243 [guilty plea to charged murder “put in issue all of the elements of the offenses”].)
In order to prove attempted robbery, the prosecution must prove a direct but ineffectual step toward a felonious taking of personal property from the possession or immediate presence of another and against his will, by means of force or fear. (§ 211; People v. Vizcarra (1980) 110 Cal.App.3d 858, 861.) Here, the prosecutor had to prove that the reason appellants got out of their car and approached the Bordenaves with weapons was to rob them. Thus, Brooks’s intent was material.
2. Probative value
“In ascertaining whether evidence of other crimes has a tendency to prove the material fact, the court must first determine whether or not the uncharged offense serves “‘logically, naturally, and by reasonable inference’” to establish that fact. [Citations.] The court ‘must look behind the label describing the kind of similarity or relation between the [uncharged] offense and the charged offense....’” (People v. Thompson (1980)27 Cal.3d 303, 316.) “The least degree of similarity between the crimes is needed to prove intent [citation]” (People v. Steele, supra, 27 Cal.4th at p. 1244), but “the uncharged misconduct must be sufficiently similar to support the inference that the defendant ‘“probably harbor[ed] the same intent in each instance.”’” (People v. Ewoldt, supra, 7 Cal.4th at p. 402.)
We find that the trial court did not abuse its discretion in concluding that there was sufficient similarity between Brooks’s 2007 offense and the current offense to allow the prior offense to be admitted to show that he approached the Bordenaves with the intent to rob them. Both incidents occurred in public, in broad daylight, and by isolating the victims in or near their cars, Dufour in his car and the Bordenaves in their driveway near their garage. In each case, a firearm was used in an effort to coerce compliance with Brooks’s demands. While the similarities are not overwhelming, “[t]he least degree of similarity between the crimes is needed to prove intent. [Citation.]” (People v. Steele, supra, 27 Cal.4th at p. 1244.)
Evidence Code section 352 provides: “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
We cannot say that the trial court abused its discretion here. Brooks prior offense was extremely probative on the critical issue of his intention when he approached the Bordenaves, as he did not yell that he wanted their money or their car or say anything else to suggest that he was going to rob them. While there was some prejudice, as there always is, in introducing evidence of prior offenses, that prejudice was mitigated by the limiting instruction. Additionally, the prior offense was less heinous or inflammatory than the charged offenses, making it unlikely to have inflamed the jury. Because Brooks had been convicted for the Dufour incident, there would have been no incentive for the jury to find him guilty of the charged offenses because he had not been punished for his past misconduct.
4. Harmless error
Even if the evidence of Brooks’s prior drug offenses was improperly admitted, we would nonetheless find the error to have been harmless in that a result more favorable to Brooks would not have been reasonably probable if such evidence were excluded. (People v. Scheer (1998) 68 Cal.App.4th 1009, 1018-1019; Watson, supra, 46 Cal.2d at p. 836.) The prior offense was only admitted for the limited purposes of assisting the jury in deciding if Brooks acted with the intent to rob the Bordenaves. The jury was so instructed and we presume it followed those instructions. (People v. Waidla, supra,22 Cal.4th at p. 725 [“the presumption is that limiting instructions are followed by the jury”].) Further, the evidence against Brooks was overwhelming, as set forth in part ID, ante.
See footnotes 2 and 3, ante.
V. Improper consecutive sentence on section 667, subdivision (a) enhancement
A. Background
The information alleged that Brown was convicted of attempted robbery in 2006, in case No. MA033830, in support of the felon in possession of a firearm charge, the prior prison term allegation, the prior serious felony allegation and the three strikes allegation. Trial on the felony strike and prior prison term allegations was bifurcated. Brown waived his right to a jury trial on the prior conviction allegations. During trial on the underlying charges, the prosecution introduced evidence regarding this conviction, including a 969b packet and Brown’s two-year prison sentence for it.
After the jury’s verdicts, it does not appear that the trial court stated that it found the allegations to be true.
The trial court sentenced Brown as follows: on base count 3, to the high term of seven years doubled to 14 years plus 25 years to life for the firearm enhancement, on count 2, to the high term of three years doubled to six years plus 10 years for the firearm allegation, on count 6, the high term of three years doubled to six years, plus 25 years to life for the firearm enhancement to be served concurrently. Sentences on counts 1, 4 and 5 were imposed and stayed. The trial court also imposed a consecutive five-year term for the prior serious felony enhancement under section 667, subdivision (a).
B. Contention
Brown contends that the five-year, prior serious felony enhancement could not properly be imposed because the trial court failed to hold a court trial on the prior conviction. He further contends that he cannot be sentenced as a second striker for the same reasons. He argues that the state did not adequately prove his prior conviction. We disagree.
C. Implied section 667, subdivision (a)
Section 1025 provides that the question of whether a defendant has suffered a prior conviction is to be tried by a jury or by a court if a jury is waived. (§ 1025, subd. (b).) The question of whether the defendant is the person who suffered the prior conviction shall be tried by the court without a jury. (§ 1025, subd. (c).) Section 1158 similarly requires the jury, or judge if jury is waived, to find whether the defendant suffered such a prior conviction.
Here, Brown waived jury trial on his prior conviction allegations, leaving that issue for the trial court. The trial court imposed the section 667, subdivision (a), prior serious felony enhancement, implicitly reflecting a finding that the prior conviction was true. (See People v. Williams (2002) 99 Cal.App.4th 696, 701.) It nonetheless failed to make the express finding that the “‘charge of the previous conviction [is] true,’” required by section 1158.
We conclude that it would serve no purpose to remand this matter for retrial of the prior serious felony enhancement. (People v. Ulloa (2009) 175 Cal.App.4th 405, 413-414 [“‘Neither double jeopardy nor due process bars a retrial on the prior conviction allegation’”].) The same prior conviction was the basis of the felon in possession of a firearm charge, the three strikes allegation, the prior prison term allegation and the prior serious felony allegation. During trial, the prosecutor introduced a section 969b packet to establish Brown’s 2006 conviction of attempted robbery, in case No. MA033830, for purposes of proving the felon in possession charge. The jury found Brown guilty of being a felon in possession, thereby implicitly finding that he had suffered the prior attempted robbery conviction. By imposing the prior serious felony enhancement, the trial court implicitly found the prior robbery conviction to be a serious felony, a legal determination that can be subject to no dispute. (See § 1192.7, subd. (c)(19) & (39).) Moreover, the section 969b packet included a picture of Brown that could be compared with his appearance at trial to establish that he was the person who suffered the prior conviction.
DISPOSITION
The judgments are affirmed.
We concur: ASHMANN-GERST, J., CHAVEZ, J.