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In Cummins, supra, 127 Cal.App.4th 667, 25 Cal.Rptr.3d 860, the Court of Appeal extended Lee 's analysis to the natural and probable consequences doctrine.
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No. B169295
March 16, 2005 CERTIFIED FOR PARTIAL PUBLICATION
Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of parts I, III, IV-D, E, F and G.
Appeal from the Superior Court of Los Angeles County, No. NA 050786, Richard R. Romero, Judge.
Maxine Weksler, under appointment by the Court of Appeal, for Defendant and Appellant Donald Cummins.
Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant Joseph Armond Kelly.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Michael W. Whitaker, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
INTRODUCTION
After a jury trial, Donald Cummins was convicted of kidnapping during the commission of a carjacking (count 2) (Pen. Code, § 209.5, subd. (a)), carjacking of a motor vehicle (count 3) (§ 215, subd. (a)), second degree robbery (count 4) (§§ 211, 212.5), five counts of burglary (counts 5-9) (§ 459), and unlawful driving or taking of a vehicle (count 10) (Veh. Code, § 10851, subd. (a)).
Unless stated otherwise, all further statutory references are to the Penal Code.
Cummins was sentenced to a determinate term as follows. The court imposed the upper term of five years for the robbery in count 4 and a consecutive term of eight months for each of the burglary charges in counts 5 through 9. Cummins received a consecutive indeterminate term of life with the possibility of parole for the kidnapping charge in count 2. The sentences on counts 3 and 10 were stayed pursuant to section 654. This resulted in an aggregate term of life plus eight years and four months in state prison.
In a separate trial, Joseph Kelly was convicted of attempted premeditated murder (count 1) (§§ 664, 187, subd. (a)), kidnapping during the commission of a carjacking (count 2) (§ 209.5, subd. (a)), carjacking of a motor vehicle (count 3) (§ 215, subd. (a)), second degree robbery (count 4) (§§ 211, 212.5), five counts of burglary (counts 5-9) (§ 459), and unlawful driving or taking of a vehicle (count 10) (Veh. Code, § 10851, subd. (a)). The jury also found in the commission of the attempted murder, Kelly personally inflicted great bodily injury upon the victim (§ 12022.7, subd. (a)).
Kelly was sentenced to a determinate term consisting of the upper term of five years on the robbery in count 4 and a consecutive term of eight months for each of the burglary charges in counts 5 through 9, and a three-year term for the section 12022.7 allegation in count 1. He received two consecutive indeterminate sentences of life with the possibility of parole on counts 1 and 2. The sentences on counts 3 and 10 were stayed pursuant to section 654. Kelly received an aggregate term of two life terms and 11 years and 4 months in the state prison.
In the published portion of the opinion, we reject Kelly's contentions that the evidence is insufficient to support his attempted murder conviction; the court erroneously instructed the jury regarding whether the target crimes of robbery and carjacking were complete when the attempted murder occurred, and whether an attempted premeditated murder was a natural and probable consequence of the target crimes; and the court erred in imposing consecutive sentences in violation of section 654.
In the unpublished portion of the opinion, we reject defendants' remaining contentions except the following: we reverse defendants' burglary convictions because the prosecution's theory of burglary is not recognized by California law; we reverse defendants' carjacking convictions because they are lesser included crimes to kidnapping while committing a carjacking; and, as conceded by the Attorney General, we strike Kelly's section 12022.7 great bodily injury enhancement.
In all other respects, we affirm the judgments. Although none of Cummins's issues warrant publication, to avoid repetition, we include the facts from his trial in the published portion of the case, because, other than as noted, the evidence from the two trials was similar.
I CONTENTIONS ON APPEAL
See footnote, ante, page 667.
Cummins argues his convictions should be reversed for the following reasons: (1) the Phoenix police illegally stopped the vehicle he was in; (2) the court improperly allowed Crystyl Cala's prior statement to the police to be placed into evidence; (3) Joseph Park's examination was unduly restricted; (4) a juror was improperly dismissed; (5) the People were allowed to use photographs they had failed to give to the defense in discovery; (6) the court imposed an illegal sentence by sentencing him to consecutive terms for the kidnapping during the commission of a carjacking and robbery counts; (7) the court improperly imposed three separate terms for the burglary of the same automated teller machine (ATM); and (8) his sentence violated the guidelines set forth in Blakely v. Washington (2004) 542 U.S. ___ [ 159 L.Ed.2d 403] ( Blakely).
Kelly assigns the following as error: (1) there was no substantial evidence to support the attempted murder conviction; (2) the doctrine of "natural and probable consequences" violates due process; (3) the same doctrine effectively asks the jury to presume malice, thus denying him the right to have the jury make all the required factual findings; (4) the jury was improperly instructed on the doctrine pursuant to CALJIC No. 3.02 (Jan. 2005 ed.); (5) the jury was improperly instructed on malice; (6) there was insufficient evidence to convict him of burglary of an ATM; (7) his counsel was ineffective; (8) The carjacking conviction must be reversed as it is a lesser charge to kidnapping during the commission of a carjacking; (9) there was insufficient evidence to support the section 12022.7 allegation finding; (10) CALJIC No. 3.20 (informant testimony) should not have been given; (11) witness Brian Martin should not have been handcuffed during his testimony; (12) CALJIC No. 2.52 (flight) should not have been given; (13) section 654 barred consecutive sentences on the kidnapping during the commission of a carjacking and the robbery; and (14) his sentence violated the sentencing rule in Blakely.
Although both trials occurred in 2003, the jury received CALJIC instructions substantially the same as the January 2005 versions. Unless otherwise noted, all further CALJIC references are to the January 2005 edition.
II FACTS
A. CUMMINS TRIAL The Prosecution CaseOn January 6, 2002, at about 10:00 p.m., Joseph Taglieri was stopped at a red light in Hollywood while driving his teal Honda Civic. He was approached on the driver's side by two men, later identified as Donald Cummins and Joseph Kelly (defendants). Defendants were able to force their way into the car and Taglieri was pushed into the back seat. Kelly got into the driver's seat and Cummins, armed with a revolver, got into the back seat with the victim. Cummins pointed the gun at Taglieri while Kelly drove from the location. The car was stopped on a side street, Kelly bound Taglieri's hands behind his back, and Taglieri was placed in the trunk. Before being put into the trunk, Taglieri was ordered to give defendants his wallet, which contained cash, two credit cards, and an ATM card. When asked, he gave one of the defendants the correct personal identification number (PIN) for the ATM card. Taglieri also had a tote bag, camera, cell phone, calculator, organizer, a Lo-jack identification card, registration for the vehicle, and proof of insurance in the car. At some point, one of the defendants applied a taser gun to Taglieri's person. He believed Kelly did this, but was not certain.
The car was driven around, by Taglieri's estimate, for what seemed like a couple of hours and made several stops. Taglieri was able to hear a third male voice inside the car. The car was stopped again and Taglieri was let out of the trunk near a cliff. He noticed there was another male with defendants. The men removed the tape from Taglieri's hands and ordered him to climb under a fence. He was ordered to walk and told if he turned around he would be shot. Although he could hear voices behind him, he could not tell who was speaking to him. Taglieri's next memory was speaking to detectives in the hospital.
On January 7, about 7:00 a.m., Kenneth Atkins, a lifeguard, found Taglieri at the bottom of the cliff. Taglieri could not tell Atkins his name, date of birth, or where he was. He was marginally coherent. In response to questions, Taglieri was able to give some information in bits and pieces. He said he had been walking on the cliff at around 2:00 a.m., when someone approached, took his wallet, and pushed him off the cliff. Taglieri had numerous cuts on his face and abrasions on his elbows and hands. He had blood caked all over his face. Taglieri was transported by helicopter to the hospital.
On January 8, 2002, Detective Michael Margolis took a statement from Taglieri at the hospital. Taglieri told him he was at the cliff stargazing when a man came up behind him and pushed him off the cliff. He could not give a physical description of his assailant. The detective was only able to get a few sentences out of Taglieri, who also said his memory was cloudy and he might remember more later. The detective noted Taglieri was "pretty banged up."
On January 9, 2002, at about 10:00 a.m., Phoenix (Arizona) Police Officers Cory Figueroa and Andrew Woyna conducted a traffic stop on a Honda Civic, which was determined to be Taglieri's. This led to the arrest of the four occupants, defendants, Crystle Cala, and Joshua Parks. A search of the vehicle uncovered, among other things, the property Taglieri had in the vehicle at the time it was taken. (At trial, Taglieri identified the items as his.) In addition, officers found various credit card and ATM receipts.
Officer Jonathon Leatherman transported Cummins and Parks to the station. After the two men were removed from the vehicle, the officer conducted a routine search of the backseat. He found a room key for the Sahara Hotel in Las Vegas and three debit or credit cards in the name of Joseph Taglieri underneath the seat where Cummins had been sitting. He gave the cards to Officer Woyna. When Officer Woyna showed the cards to Cummins, he pointed to a Washington Mutual debit card and said, "'That's the one we were all using."
Crystle Cala testified Cummins was a friend and Kelly was her boyfriend. Cummins and Kelly were also friends. At the time of their arrest, Cala was pregnant with Kelly's baby. In January, she was staying in an abandoned building with, among others, defendants and Joshua Parks.
On January 7, at about 2:10 a.m., defendants and Parks came to the building and told Cala to get her things because they were leaving. Prior to their arrival, Cala had smoked some marijuana. The four individuals left the building and got into a Honda Civic. She knew the vehicle did not belong to anyone in the group and Cummins told her they were going on a joyride. The car left, with Kelly in the driver's seat, Cummins in the front passenger seat, and Parks and Cala in the back. They were on their way to Florida to visit Kelly's brother.
The group stopped at a truck stop in Ontario and made some purchases. Cummins and Parks went to an ATM machine and returned with approximately $400.00. Kelly told her they had obtained the PIN from the victim. They stopped for the night at the Bun Boy Motel in Baker.
Cummins spoke about the events surrounding the acquisition of the Honda several times. The first time was at the motel in Baker. Cala heard Cummins say he and Kelly "picked up a guy and they hog-tied him, they tased him, and threw him in the trunk of his own car, and they drove to San Pedro." Cummins went on to say they got the person out of the trunk and untied his hands. He, Cummins, then pushed the person off the cliff. The person fell, hit his head on a storm drain and caught himself on a rock or the drain. Cummins threatened to shoot the person if he did not let go. The person complied and fell down further. She heard Cummins say he had used a ".22" during the robbery, but she did not see a gun during the trip.
They stayed in Baker for about four hours and left for Las Vegas. On the way, they stopped and made some purchases. Once in Las Vegas, the group checked in at the Sahara Hotel. The next day, they started for Arizona. En route, Kelly used the ATM card to purchase gas and Cummins and Parks used the card to get $100.00 from an ATM. On approximately three occasions, she saw Cummins attempt and fail to get cash from a machine. She recalled hearing defendants talking about how the card was not working as much as they had hoped and how they hoped the victim was dead. The four were stopped by the police in Arizona.
A few days before the trip began on January 7, she heard Cummins discussing with Kelly the possibility of doing a "lick," street vernacular for a robbery or theft. Cummins told him he knew someone from whom he could get money and a car and needed help. Kelly agreed to assist him.
Cala told her version of the events to the officers who stopped her, a detective in Arizona, and Detective Margolis, one of the investigating officers in the case. She said her story remained consistent throughout. No one promised her anything in exchange for her truthful testimony. She was prosecuted for her participation, pled guilty, and was placed on probation after serving eight months in custody.
Marisol Amenero, a representative of Washington Mutual, testified several transactions involving Taglieri's ATM card were made on January 6 and 7. On the 6th, two cash withdrawals, each in the amount of $201.50, were made. On January 7, there were three withdrawals from Travel Center of America in Ontario, one in the amount of $202.50 and two in the amount of $102.50. The card was also used three times in Las Vegas. There were two cash withdrawals, one of $101.50 and another of $103.45, and a purchase for $58.98. Taglieri testified he did not authorize the use of his card for the aforementioned transactions.
On January 14, 2002, Detective Margolis took another statement from Taglieri. This statement was taken after Taglieri had spoken with Phoenix police. At trial, Taglieri identified Cummins as one of the perpetrators of the crimes. After the defense rested at trial, Detective Patricia Guerra developed some film from a disposable camera which had been recovered in Phoenix.
The Defense Case
Joshua Parks testified he was living in an abandoned hamburger stand with defendants, Cala, and Parks' girlfriend, Crystal Dotson. On January 6, at about 8:00 p.m., he was near the Metro Link station with Cala. Approximately two hours later, defendants pulled up in a Honda Civic. He got into the car and the three men traveled to San Pedro. At a stop along the way, Cummins opened the back seat and Parks saw a man tied up in the trunk. At some point, he heard Kelly ask the man for his PIN. Twice, Kelly drove up to an ATM, conducted a transaction, and received cash. The first time, Kelly put the money in his pocket. The second time, Kelly gave the money to Cummins. With Kelly driving, the trio drove around the San Pedro area for about an hour before stopping at a cliff area. Kelly exited the car carrying a taser gun and Cummins came out with a handgun. Kelly opened up the trunk and pulled the victim out. Kelly and Cummins removed some of the restraints from the victim. Kelly pushed the victim under a fence and told Cummins and Parks to follow. They complied. Kelly untied the victim's hands and pushed him off the cliff. The victim managed to hang onto a pipe. Cummins got down with the gun and told him to let go or he would shoot. The victim let go of the pipe. The three men got back into the car and left.
Defendants and Parks eventually picked up Cala, drove to Baker, and then to Las Vegas. During the trip, Kelly had the taser gun and Cummins had the handgun. Somewhere near the California and Nevada border, Kelly threw both out of the car. The group spent a night in Las Vegas and drove to Phoenix. The next morning, they were stopped by the police.
Parks denied being offered anything in exchange for his testimony. He admitted having repeatedly lied to the police, both in Phoenix and Los Angeles. After Los Angeles detectives confronted him with the information they had, his story changed. He also said defendants had threatened him and he was afraid to testify.
Parks pled no contest to several counts of burglary and one count of taking a motor vehicle without the owner's consent, for which he received a two-year prison sentence.
Los Angeles Police Officer Christopher Andrade testified he interviewed Taglieri at the hospital on January 7. Taglieri told him he had been walking on the cliffs when he was accosted by a man with a knife. The man demanded money, Taglieri gave him approximately $30, and the man pushed Taglieri off the cliff. At the time of the interview, Taglieri was hypothermic, disoriented, and unable to talk in complete sentences. It was difficult to get a clear statement.
B. KELLY TRIAL The Prosecution Case
The prosecution relied on essentially the same evidence presented in the Cummins trial, although Cala did not testify about any statements Cummins made during the trip to Arizona. Specific facts relevant to Kelly's appeal will be set forth in detail below.
The Defense
Brian Martin, an inmate in the Arizona State Penitentiary, testified he had shared a cell with Cummins for two weeks. Cummins said he and Kelly had met Taglieri and he, Cummins, decided to rob Taglieri. Cummins made Taglieri get into the trunk, tasered him, and obtained his PIN to a bank account. When they got to the cliffs, defendants took Taglieri out of the trunk. Cummins said he was originally going to let Taglieri go, but he got an urge and pushed him off the cliff. Cummins also told Martin he was going to take Joe Kelly and his girlfriend down. This disturbed Martin because from what Cummins "told [Martin] they didn't have any knowledge. One wasn't even there. The female wasn't even there, and . . . Joe Kelly had no knowledge of what he [Cummins] was about to do." Martin denied receiving any benefit for his testimony.
Martin had been convicted of 11 felonies, all related to forgery, theft, and burglary.
Kelly testified he had known Cummins for about two years, but denied being close friends. On January 4, 2002, he saw Cummins speaking to Taglieri. On January 6, defendants went to purchase marijuana from Taglieri. Cummins did not say he had a gun and Kelly did not see one at that time. At approximately 10:00 p.m., Taglieri met defendants and the three men got into Taglieri's car and drove to a driveway across from a motel. Kelly got out of the car to relieve himself. When he returned, Cummins and Taglieri were talking about the marijuana sale. At that point, Cummins produced a .22-caliber revolver and a taser gun and ordered Taglieri out of the vehicle. Kelly stood there in shock. Taglieri asked Cummins if he was joking, and Cummins used the taser gun on him. Taglieri told Cummins where the marijuana was located. Cummins proceeded to tie Taglieri's hands behind his back and ordered him into the trunk of the car. Cummins gave Kelly the keys and said, "Let's go." Kelly felt he could not challenge Cummins because he was armed, so he got behind the wheel and drove.
Kelly drove for some time, not really knowing where to go. Cummins called Parks and they picked him up. Eventually, the men went to San Pedro. Taglieri was let out of the trunk, his bindings were cut and he was ordered to climb a fence and walk to the edge of the cliff. Cummins pushed Taglieri off the cliff. Kelly had no idea Cummins was going to do that. Taglieri held onto a drain pipe, but let go when Cummins threatened to shoot him. Cummins told Kelly, "'Nobody talks.'" Kelly feared he might be shot and complied when Cummins gave him the keys and told him to return to Hollywood.
They picked up Cala, stopped in a motel in Baker, and stayed in a hotel in Las Vegas. He denied using the ATM card, but acknowledged Cummins gave him money for food. The group eventually arrived in Phoenix and were stopped by the police the following morning.
Kelly denied telling Cala he had planned a robbery or had planned to go to Florida to visit his brother, in that he had no such sibling. In fact, it was Cummins who had wanted to go to Florida. He denied asking Taglieri for his PIN, claiming it was Cummins who obtained that information.
On cross-examination, Kelly admitted he told detectives Cummins had never done him wrong. He admitted the group stopped at his mother's house on the way back to Hollywood, where he spoke to his sister. He was too afraid to call the police, although he acknowledged Cummins was outside the house while he spoke to his sister inside. He voluntarily returned to the car, stopped to pick up his girlfriend, and proceeded to drive out of the area with Cummins. By way of explanation, he noted a few months prior, Cummins got upset with him, pulled a knife and told him, if he "ever pissed [Cummins] off again [Cummins] would slit [Kelly's] throat." Kelly was also impeached with statements he made to the police. He said in the interview, Cummins was his best friend and he had known Cummins for about three or four years.
III CUMMINS APPEAL
See footnote, ante, page 667.
Cummins contends the Phoenix police did not have cause to stop the vehicle in which he was a passenger. Officer Figueroa testified he stopped the vehicle because it displayed a rear license plate with a torn and illegible year tag. He was unable to determine if the registration was current by looking at the tags. He knew Arizona law required current and legible registration tags and believed California imposed a similar obligation.
Taglieri brought the license plate in question to the suppression hearing and the court noted the last digit was not intact. The parties below spent a great deal of time arguing how much of the tag was torn. Suffice it to say, upon looking at the license plate, the court determined one could see parts of two separate year tags.
The court concluded the requirement in Vehicle Code section 5201 that plates at all times "shall be maintained in a condition so as to be clearly legible," had to be read in conjunction with the provision of Vehicle Code section 5204 that "when so attached, the license plate with the tabs shall, for the purposes of this code, be deemed to be the license plate[.]" The court found because the tag exposed two possible years, it was not clearly legible, and the officers had probable cause to stop the vehicle. We agree.
We are guided by the well-established principle that in reviewing a trial court's ruling on a motion to suppress evidence, the reviewing court is "bound by the trial court's factual findings, whether express or implied, if they are supported by substantial evidence. However . . . questions of law [are reviewed] independently to determine whether the challenged seizure meets constitutional standards of reasonableness. [Citations.]" ( People v. Boissard (1992) 5 Cal.App.4th 972, 977.)
Here, the trial court expressly concluded the registration tags on the vehicle were not completely legible. The Attorney General (respondent) argues the case of People v. White (2001) 93 Cal.App.4th 1022, 1025-1026, supports the conclusion the violation justified the stop. In White, a sheriff's deputy stopped a pickup truck after noticing the trailer hitch on the rear bumper blocked the deputy's view of the plate. The court concluded the statute in question meant just what it said. A plate was not clearly visible if it was not free from obscurity. The same principle applies here. The license plate in question violated the Vehicle Code by exhibiting two conflicting year tabs, and thereby gave the officer reasonable cause to detain and investigate.
B. Cala's Prior Statement
Next, Cummins argues the trial court violated his right to confrontation by admitting into evidence a statement Crystle Cala had given to police prior to the trial. In addition, he urges the manner in which the statement was admitted gave it undue weight and denied him a fair trial.
Crystle Cala testified at length at trial. During cross-examination, Cummin's counsel questioned her about a six-page, signed, and dated statement she gave to police shortly after her arrest. In the statement, Cala told officers about conversations she had overheard between defendants prior to the carjacking incident. Counsel elicited testimony about the circumstances surrounding the making of the statement and asked whether Cala had seen it. Counsel also impeached Cala with portions of the statement, implying her testimony at trial was attempting to place all of the blame on Cummins, while protecting her boyfriend, Kelly.
On recross-examination, counsel asked Cala whether she knew the status of Kelly's case. She responded she knew his trial was pending and she would be asked to testify at it. She was specifically asked, "And you wouldn't want to minimize his involvement, to benefit him at all; is that right?" Cala responded, "That's correct." After her testimony, Cala was excused, subject to recall.
During the testimony of Detective Guerra, the prosecutor had Cala's statement marked as People's exhibit 33. At the close of the prosecution's case in chief, the prosecutor sought to admit the statement, arguing it was a prior consistent statement under Evidence Code section 1236. Defense counsel argued the statement was inadmissible in that neither component of Evidence Code section 791 had been complied with, in particular the prior statement was not made, "before the bias, motive for fabrication, or other improper motive is alleged to have arisen." (Evid. Code, § 791, subd. (b).) Counsel argued Cala's bias in favor of Kelly was present before her interview with the police. The trial court admitted the statement, ruling counsel's tactic of questioning Cala about Kelly's upcoming trial created a different motive for fabrication, i.e., knowledge she would have to testify at Kelly's trial and would need to give consistent testimony favoring Kelly at Cummin's trial.
Cummins argues he was denied the opportunity to cross-examine Cala about the statement. Not so. His counsel questioned her about it and even impeached her testimony with portions from it. However, he claims she was not on the stand at the time the statement was admitted. Cummins points to no authority holding the Confrontation Clause requires concurrent cross-examination when a hearsay document is admitted. The Sixth Amendment requires the opportunity to fully cross-examine with regard to the prior statement. ( People v. Hayes (1990) 52 Cal.3d 577, 610.) Cummins had that opportunity. In addition, if he believed further examination was necessary, Cala was subject to recall. The fact he chose not to seek to recall her after the statement was marked speaks volumes. He had nothing else to present.
He urges even if he had the opportunity to cross-examine, the statement was inadmissible hearsay. His claim Cala already possessed a bias and motive to fabricate at the time she gave her statement to the police, while true, is unavailing. By highlighting the fact Kelly's trial was still pending and making it clear to the jury Cala was to give testimony there, counsel implied she was "stuck" with giving a version of events favorable to Kelly at both trials. Thus, Cummins' cross-examination suggested Cala had a new motive to give certain testimony, one she could not have understood two days after her arrest, when she gave her statement. Our Supreme Court has held, "a prior consistent statement is admissible if it was made before the existence of any one or more of the biases or motives that, according to the opposing party's express or implied charge, may have influenced the witness's testimony. [Citations.]" ( People v. Hayes, supra, 52 Cal.3d at p. 609, italics added [explaining the holding in People v. Andrews (1989) 49 Cal.3d 200, 210-211].) The accusation Cala was fabricating her trial testimony in anticipation of Kelly's trial was properly countered with the prior statement.
Even assuming the statement should have been excluded, its admission was harmless. The evidence against Cummins was strong. He was found in the stolen car and implicated by three witnesses, Taglieri, Cala, and Parks. Of significance, Parks, Cummins' own witness, testified Cummins threatened to shoot Taglieri if he did not let go of the drain pipe after he was pushed off the cliff. Finally, the victim's credit cards were found underneath the seat where Cummins was located in the patrol car which transported him, and when shown the ATM card in question, he admitted it was the one they used. It is not reasonably probable a result more favorable to defendant would have been reached in absence of the alleged error, thus reversal is not warranted. ( People v. Watson (1956) 46 Cal.2d 818, 836.)
C. Excluded Testimony
Cummins alleges the court erroneously excluded several of Joseph Parks' statements to police which prevented him from fully presenting a defense and violated his right to a fair trial. While Parks was on the stand, counsel proposed to play a tape of a statement Parks had given to officers after his arrest. The prosecutor objected to certain portions. Cummins complains critical evidence was kept from the jury because the court excluded the following Parks statements: 1) Cummins did not know the victim was in the trunk; 2) Kelly coerced Cummins into participating; and 3) Cummins was shocked by Kelly's actions. The court excluded the aforementioned evidence on the grounds Parks was relating what Cummins had told him (hearsay) and what Cummins was thinking at the time of the incident (improper opinion based on lack of personal knowledge). The court did allow Cummins to present Parks' version of what Kelly was saying during the crime and descriptions of the participants' demeanor to support the defense of duress.
Cummins appears to concede the evidentiary rulings were proper in that Parks' opinions were speculative, but contends the court, "fail[ed] to give more weight to [Cummins'] right to present a defense than to the reliability of Parks' statements, [and thus] committed constitutional error." This, he argues, denied him a fair trial and a right to present a defense, citing the principles set forth in Chambers v. Mississippi (1973) 410 U.S. 284, 294-303. To support his claim the court should have allowed the evidence, he cites a Ninth Circuit case ( Chia v. Cambra (9th Cir. 2004) 360 F.3d 997, 1003-1008), which applied a balancing test on habeas review of a state conviction to determine whether exclusion of evidence at trial violates a defendant's right to due process. Over a spirited dissent, the majority held that, on its facts, reversal was required.
Notwithstanding defendant's right to present a defense, he is not allowed to ignore the established rules of evidence in presenting his case. "'As a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused's [constitutional] right to present a defense. Courts retain . . . a traditional and intrinsic power to exercise discretion to control the admission of evidence in the interests of orderly procedure and the avoidance of prejudice. [Citations.] . . .'" ( People v. Cudjo (1993) 6 Cal.4th 585, 611, citing People v. Hall (1986) 41 Cal.3d 826, 834-835.) The United States Supreme Court has also acknowledged the States have the authority to "exclude evidence through the application of fairness and reliability — even if the defendant would prefer to see that evidence admitted." ( Crane v. Kentucky (1986) 476 U.S. 683, 690.)
The trial court properly exercised its discretion to exclude Parks' opinions. It is clear from the context of Parks' statement, Cummins wanted to elicit Parks' belief as to what Cummins was thinking at the time of the crime. Unless the opinion is based on Cummins' statements, which was not the case here, it is the product of pure speculation. No witness may offer testimony regarding a particular matter unless he or she has personal knowledge. (Evid. Code, § 702.)
It is also important to note what Cummins was able to present through Parks' statement. The jury heard Parks say Cummins was the last person to get into Taglieri's vehicle and the victim was already in the trunk, thus impeaching Taglieri's testimony that Cummins was present during the carjacking. The court allowed Cummins to present Kelly's statements during the incident to support his claim of duress. These included: Kelly telling Cummins he would kill him if he did not help Kelly get the victim out of the trunk (Kelly had a taser gun in his hand at the time); Kelly saying to Parks, in Cummins' presence, if he said one word to anybody Kelly would kill him; and Kelly telling Parks and Cummins if anything about the incident left the car, Kelly would kill them both.
The properly admitted evidence set forth the essence of Cummins' defense that Kelly had coerced him into participating, without relying on speculative testimony. There was no violation of Cummins' right to present evidence to the jury.
D. The Dismissed Juror
Cummins contends the court improperly dismissed a juror during the taking of evidence. During a recess, the victim, Taglieri, saw Juror no. 3 and asked her, "'Do you think my performance is award-winning?'" The juror notified the judge, who held a hearing on the matter. During the inquiry, the juror indicated on three occasions she was not sure she could be objective in weighing Taglieri's testimony. She thought his comment was inappropriate, and noted "[i]t makes me wonder whether now how much I can believe what he's saying is the truth or is he giving a performance. [¶] He just — I don't knowledge (sic) whether I can objectively listen to what he's saying anymore and not think he's giving a performance." After hearing argument from counsel, the court excused the juror, finding "it's clear that by her demeanor and her voice and what she said that she cannot put aside extraneous material not presented in the court on the issue of the credibility of the material witness in the case, that when she listens to his testimony she cannot but wonder whether it is a, quote, performance, an act, a falsehood that he is presenting to the jury. . . ." Cummins' counsel then asked the juror to be ordered back as a potential witness for the defense.
The trial court's ruling is reviewed for an abuse of discretion. The ruling will be upheld if there is any substantial evidence supporting it. However, a juror's inability to perform "must appear in the record as a demonstrable reality." ( People v. Cleveland (2001) 25 Cal.4th 466, 474, internal quotations and citations omitted.) An examination of the record in the instant case provides ample support for the trial court's action. The juror said several times, she could not objectively weigh Taglieri's testimony because she would be wondering whether or not he was performing or testifying.
Cummins complains the court acted prematurely in excusing the juror because she was not called to testify and the other jurors eventually heard about Taglieri's comment during his cross-examination. The problem with this argument is two-fold. First, the court did not excuse juror number three because she was a potential witness. The court's decision to excuse her was based on her inability to be impartial. Second, although other juror's heard about Taglieri's statement, no one expressed, affirmatively on the record, an inability to be fair to both sides.
E. The Alleged Discovery Violation
Cummins urges the trial court committed error by failing to exclude evidence which was produced in violation of discovery rules. In addition, Cummins argues the prosecution's failure to turn over the evidence prior to trial was a violation of Brady v. Maryland (1963) 373 U.S. 83. Neither argument has merit.
After the defense rested, the prosecution produced photographs showing defendants, Parks, and Cala together during portions of their trek from Hollywood to Arizona. The pictures depicted four smiling individuals appearing to enjoy the trip. Defense counsel objected, claiming he had asked for the photographs well before trial and had not received them. The prosecutor acknowledged she had told opposing counsel about the camera and he had requested photographs; however, the film had not been developed by the police lab. When she heard Parks' testimony that Cummins had been coerced into participating in the crimes, she asked one of the investigating officers to take the film to a local drug store to be developed. The task was completed the day the prosecution sought to use them as evidence.
The court accepted the prosecutor's argument that the significance of the film did not become clear until Parks' testimony about the camera and the pictures taken during the trip. Thus, the prosecutor had properly disclosed the existence of rebuttal evidence as soon as she had it in her possession. Although the court thought the timing of the disclosure was unfortunate, it allowed the photographs to be used. It also denied Cummins' motion for a mistrial.
In essence, Cummins argues the prosecution had a duty to develop the film sooner. While law enforcement has a duty to preserve material evidence which the police has obtained ( California v. Trombetta (1984) 467 U.S. 479, 485-490), the police are under no obligation to conduct certain tests on any particular item. ( People v. Hogan (1982) 31 Cal.3d 815, 851, disapproved on other grounds in People v. Cooper (1991) 53 Cal.3d 771, 836; see also People v. Cooper (1979) 95 Cal.App.3d 844, 850.) Cummins cannot direct us to any appellate authority which placed an affirmative duty on the prosecution to develop the film in question. Nor can he establish any reason why he was precluded from taking possession of the camera and performing whatever examination or test he deemed significant.
The prosecutor's decision to obtain photographs did not violate Cummins' right to reciprocal discovery. As noted above, the film was not developed until after Parks had testified to Cummins' coerced participation and the taking of pictures on the trip. Section 1054.7 provides if evidence which "becomes known to, or comes into the possession of, a party within 30 days of trial, disclosure shall be made immediately, unless good cause is shown why a disclosure should be denied, restricted, or deferred." The defense was told the camera existed. The photographs were not in the possession of the prosecution until the day it offered them into evidence and the defense was immediately notified. Given the timing of the discovery of the true evidence (the developed film as opposed to the camera), the procedure followed here did not violate Cummins' rights under section 1054.7. ( People v. Hammond (1994) 22 Cal.App.4th 1611, 1622 [prosecution's use of an undisclosed witness following the defense case upheld].)
As to whether the prosecutor violated her duty to disclose exculpatory evidence to the defense, Cummins acknowledges the evidence must be both favorable to him and material on the issues of guilt or punishment. He claims the pictures provided a vehicle to impeach Crystle Cala. Even if we were to conclude the photographs could have been used in that fashion, Cummins cannot establish materiality. Evidence is "material" if there is a reasonable probability that, had it been disclosed, the result would have been different. (See United States v. Bagley (1985) 473 U.S. 667, 682.) The photographs, he argues, shows Cala was an accomplice and one purports to show her asleep in a motel room. She testified she had never slept in that particular room. Cala testified she was a willing accomplice in the crimes which followed the carjacking, and in light of the fact Cummins admitted his participation in certain crimes, the one area of inconsistency as to whether she slept in a particular motel room could not possibly have altered the outcome of the trial.
F. Alleged Sentencing Error
Cummins was convicted of robbery and kidnapping during the commission of a carjacking. The court sentenced him to a life term for the kidnapping and a separate five-year term for the robbery. He claims he could neither be convicted of both crimes nor sentenced consecutively, in that the crimes arose out of the same indivisible course of conduct.
As to the issue of dual conviction, our Supreme Court decided in People v. Ortega (1998) 19 Cal.4th 686, 700, an individual may be convicted of both robbery and carjacking, even if the crimes were committed during the same course of conduct. Cummins offers no persuasive argument as to why the court's holding does not apply here. His claim that the charges, as alleged in the information, made the robbery charge a lesser-included crime to the kidnapping, and thus foreclosed the possibility of double conviction, is unsupported by law. That standard of defining included offenses "does not apply to considerations of whether multiple convictions are proper." ( People v. Miranda (1994) 21 Cal.App.4th 1464, 1467.) He asks this court, in the alternative, to stay his conviction in order to avoid any ramifications should he face prosecution for charges in the future. We will decline to do so.
The next question is whether he was properly sentenced to consecutive sentences. Section 654 prevents multiple punishment for a single act, even though that act violates more than one statute and constitutes more than one crime. Cummins argues: "Although the distinct crimes may be charged in separate counts and may result in multiple verdicts of guilt, the trial court may impose sentence for only one offense[.]" ( People v. Liu (1996) 46 Cal.App.4th 1119, 1135.)
However, section 654 does not apply when the evidence discloses a defendant entertained multiple criminal objectives independent of each other. In that case, "the trial court may impose punishment for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. [Citations] The principal inquiry in each case is whether the defendant's criminal intent and objective were single or multiple." ( People v. Liu, supra, 46 Cal.App.4th at p. 1135.) "A defendant's criminal objective is 'determined from all the circumstances and is primarily a question of fact for the trial court, whose finding will be upheld on appeal if there is any substantial evidence to support it.'" ( People v. Porter (1987) 194 Cal.App.3d 34, 38. . . .)" ( People v. Braz (1997) 57 Cal.App.4th 1, 10.)
The court imposed consecutive sentences concluding the evidence supported the fact Cummins had separate intents, one to commit a robbery of Taglieri's personal effects and another to transport Taglieri from the scene. Substantial evidence supports the court's findings. Defendants took Taglieri's car at gunpoint in Hollywood. They drove to a separate location where they took his wallet and credit cards. At that point, they had his property and could have left the scene. Nonetheless, defendants chose to put the bound victim into the trunk, where he remained while defendants drove for a period of time. The victim was assaulted with the taser gun and driven to the cliffs, whereupon he was ordered to walk to the edge. At that point, he was pushed off the cliffs and told by Cummins, at gunpoint, to let go of the pipe which kept Taglieri from falling further. This supported the court's conclusion that the taking of the victim's personal property and the kidnapping were separate due to the passage of time between the acts, the time to reflect before taking steps in furtherance of the crimes, and the different objectives of the two criminal transactions. (See People v. Watts (1999) 76 Cal.App.4th 1250, 1264-1265; People v. Green (1996) 50 Cal.App.4th 1076, 1084-1085.)
Cummins contends Blakely requires the jury to make the factual findings relied upon by the trial court to impose a consecutive sentence. Our appellate courts have disagreed with this analysis. (See, e.g., People v. Palacios (2005) 126 Cal.App.4th 428, 458.) We conclude Blakely does not create a separate jury trial right on the issue of whether to impose consecutive sentences.
G. The Burglary Charges
The trial court imposed three separate prison terms, one for each time defendants inserted Taglieri's ATM card into the machine at the Ontario travel center. Kelly contends in his brief that all of the burglary convictions must be reversed, relying on People v. Davis (1998) 18 Cal.4th 712, and Cummins joins in the argument. In Davis, our Supreme Court held the placement of a forged deposit slip into a chute of a check cashing facility or the insertion of a card into an ATM did not constitute an entry for the purposes of the burglary statute. ( Id. at pp. 714, 717-724.)
Respondent concedes all of the convictions cannot stand, but argues the evidence supports two convictions. He argues two of the incidents involved an entry into a building which housed the ATMs. Be that as it may, the information charged defendants with violating section 459 by entering an automated teller machine, and no attempt was made to amend the document or have it conform to proof. In this case, even if such a motion had been made, the allegation of an entry into a building could not have been presented to the jury. A review of the preliminary hearing transcript shows the prosecution simply elicited evidence the ATM card was used to extract money from a machine. No evidence revealed whether the ATMs were freestanding, attached to a building, or inside a building. Although the prosecution may amend an information to charge any offense shown by evidence presented at the preliminary hearing ( People v. Manning (1982) 133 Cal.App.3d 159, 165), it cannot present a theory not proven at the preliminary hearing. "It is true that an information need not notify a defendant of all the particulars of the crime charged. That role is left to the preliminary hearing transcript. Where, as here, the particulars are not shown by the preliminary hearing transcript, the defendant is not on notice in such a way that he has the opportunity to prepare a meaningful defense." ( People v. Pitts (1990) 223 Cal.App.3d 606, 905.) Nonetheless, respondent argues there was not a material variance between the pleading and the evidence presented to the jury. Therefore, defendants were not prejudiced as they were not misled for the purpose of presenting a defense. However, section 1009 provides in pertinent part: "An indictment or accusation cannot be amended so as to change the offense charged, nor an information so as to charge an offense not shown by the evidence taken at the preliminary examination." As noted, the evidence at the preliminary hearing only established a purported burglary of an ATM, an offense no longer recognized by our courts. The burglary convictions must be reversed.
H. Alleged Blakely Error
The trial court sentenced Cummins to the high term of five years on the robbery charge. Cummins argues Blakely precludes the sentencing judge from relying on an aggravating factor to enhance a sentence which was not found true by the jury. This very issue is before our Supreme Court in People v. Towne, review granted July 14, 2004, S125677 and People v. Black, review granted July 28, 2004, S126128. We are aware the intermediate appellate courts are split on the issue as to whether Blakely applies to our sentencing scheme.
Blakely did not outlaw the existence of any sentencing range. The United States Supreme Court acknowledged and did not find any constitutional infirmity with the permissible sentence for the kidnapping statute at issue in Washington, which carried a range of 49 to 53 months. The Blakely court took issue with a separate statute which allowed the trial court to rely on factors the jury had not considered to increase a defendant's sentence beyond the 53 month maximum established for the substantive crime. As the sentence in this case was within the permissible sentencing range for the crime of second degree robbery set forth in section 213, we conclude the principles of Blakely were not violated.
IV KELLY APPEAL
A. Sufficiency of the Evidence
Kelly was convicted of the attempted murder of Taglieri under the established doctrine of "natural and probable consequences." ( People v. Prettyman (1996) 14 Cal.4th 248, 260-263 [ 58 Cal.Rptr.2d 827, 926 P.2d 1013].) He argues the evidence was insufficient to establish the attempted murder was a natural and probable consequence of the planned carjacking and robbery. Although he spends a considerable amount of time in his brief setting forth case law on the issue, he concedes there are a number of California cases which hold murder or attempted murder can be a natural and probable consequence of robbery. ( Id. at pp. 262-263; People v. Jones (1989) 207 Cal.App.3d 1090, 1095-1098 [ 255 Cal.Rptr. 464]; People v. Nguyen (1988) 204 Cal.App.3d 181, 188-189 [ 251 Cal.Rptr. 40].)
In reviewing a case for sufficiency of the evidence, we "consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment." ( People v. Mincey (2002) 2 Cal.4th 408, 432 [ 6 Cal.Rptr.2d 822, 827 P.2d 388].) In order to find a defendant liable under the "natural and probable consequences" doctrine, "the trier of fact must find that the defendant, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of a predicate or target offense; (3) by act or advice aided, promoted, encouraged or instigated the commission of the target crime. But the trier of fact must also find that (4) the defendant's confederate committed an offense other than the target crime; and (5) the offense committed by the confederate was a natural and probable consequence of the target crime that the defendant aided and abetted." ( People v. Prettyman, supra, 14 Cal.4th at p. 262, fn. omitted.) We are also guided by the principle "that whether the crime charged is the natural and probable consequence of the planned offense is a factual question for the jury to decide. [Citations.]" ( People v. Jones, supra, 207 Cal.App.3d at p. 1095.)
Kelly insists the jury could not have applied the doctrine to the attempted murder charge because he could not have foreseen Cummins's act of pushing Taglieri off the cliff. He points to Martin's and his testimony wherein Cummins said he just got an urge to push the victim. Thus, it could not be reasonably anticipated that Cummins would, on his own, attempt to kill the victim after the target crimes had been completed. Clearly the jury rejected this evidence.
The testimony established the following. Kelly and his confederate, Cummins, who was armed with a handgun, forced their way into Taglieri's vehicle. Kelly entered on the driver's side after ordering the victim into the back. Kelly drove the vehicle to a side street, where he ordered Taglieri to hand over his wallet. Kelly bound the victim's hands and he was placed into the trunk. Kelly drove the car around for a couple of hours. During that time, he ordered the victim to give him the PIN to his ATM card and stopped at a shopping center in order to withdraw money from the victim's account. Later, Kelly produced a taser gun. The device was used on the victim, placed on his upper back and lower neck area. The victim was brought to a cliff area, where his binds were burned off. He was told to crawl under a fence. He remembers Kelly was doing most of the talking. He heard a voice "that sounded like [Kelly's] from behind [him] to keep walking, don't stop walking. . . . [¶] The last words I remember hearing were, 'Do not turn around. Turn around and you will be shot.'" When asked if he recognized the voice of the person who uttered the warning, the victim replied, "It sounded like it was the defendant's voice, Mr. Kelly." After the victim was pushed, Kelly picked up his girlfriend, Crystal Cala, and joined Cummins and Parks on a trip, which led them to Arizona. Along the way, they spent money stolen from Taglieri's account and behaved like a group on vacation until stopped by the Arizona police.
The above supports the finding Kelly was a full and willing accomplice in the robbery and carjacking of Taglieri. He participated, knowing Cummins was armed with a firearm. He produced a taser gun, which was used to inflict further injury to the victim. He drove the victim to the area where he was pushed off the cliff. He knowingly participated in the march to the edge of the cliff, where he directed the victim not to turn around at the risk of being shot. Notwithstanding which defendant actually pushed Taglieri, the event was not an unanticipated surprise ending to the carjacking that started in Hollywood. The jury could reasonably find Kelly helped lead the victim to a dangerous area with the knowledge and intent that harm would come to him.
B. Alleged Instructional Error
The court instructed the jury with a modified version of CALJIC No. 3.02 (2000 re-rev.). The instruction informed the jury the target crimes were robbery and/or carjacking, and the attempted murder had to be a natural and probable consequence of either of the target crimes. Kelly argues the jury was not told it could convict him of attempted murder only if the crime was committed during or in furtherance of the commission of the target offenses. He concludes the evidence was undisputed the robbery and carjacking were complete at the time of the attempted murder, and the failure to properly instruct the jury warrants a reversal.
The January 2005 version is substantially the same.
Respondent counters the jury was correctly instructed as to the duration of a robbery, and the evidence showed the robbery and carjacking were still in progress at the time Taglieri was pushed off the cliff, by virtue of the fact defendants kept their victim captive. The People cite language from People v. Carter (1993) 19 Cal.App.4th 1236 [ 23 Cal.Rptr.2d 888], which states, "In cases involving a kidnapping and robbery, courts have held almost without exception that the evidence supported the conclusion the robber had not reached a place of temporary safety so long as the victim remained under the robber's control." ( Id. at p. 1251; see also People v. Fields (1983) 35 Cal.3d 329, 365-368 [ 197 Cal.Rptr. 803, 673 P.2d 680], wherein the court provides an analysis of cases.)
Kelly points to the one case that is the exception, People v. Ford (1966) 65 Cal.2d 41 [ 52 Cal.Rptr. 228, 416 P.2d 132]. In Ford, defendant robbed an individual and continued to drive with him aimlessly for approximately four hours. Eventually, Ford was stopped by a deputy sheriff, whom Ford shot and killed. The court found the robbery had been completed for purposes of the felony-murder rule, noting the lapse of time between the robbery and the killing and the strong evidence Ford was not attempting to escape the robbery at the time of the killing. It concluded Ford had reached several places of temporary safety along the way, and concluded the killing was not perpetrated during the course of the robbery.
This case can be distinguished on several grounds. First, the murder victim in Ford, the deputy sheriff, was not the robbery victim, making it easier to conclude the killing was unconnected to the robbery. Second, during the trip with the victim, defendants continued to take property from his ATM. Third, defendants were in the process of doing harm directly to the robbery victim when the attempt was made on his life.
"Whether in a given case the robber has reached a place of safety is ordinarily a question of fact; a jury's implied finding on the issue will be upheld so long as supported by substantial evidence. [Citations.]" ( People v. Carter, supra, 19 Cal.App.4th at p. 1251.) Here, the jury could reasonably conclude the robbery was not complete and defendants' attempt to kill Taglieri was a means of eluding police detection or eliminating a witness. ( People v. Fields, supra, 35 Cal.3d at p. 368.) There was no instructional error.
In another attack on the instructions, Kelly argues 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 robbery or carjacking. Citing Blakely v. Washington (2004) 542 U.S. 296 [ 159 L. Ed.2d 403, 124 S.Ct. 2531], and Apprendi v. New Jersey (2000) 530 U.S. 466 [ 147 L.Ed.2d 435, 120 S.Ct. 2348], Kelly claims the failure to instruct denied him his constitutional right to have the jury determine any fact used to enhance his sentence.
The question of whether a jury must find a premeditated attempted murder to be a natural and probable consequence of a target crime appears to be one of first impression. In People v. Lee (2003) 31 Cal.4th 613 [ 3 Cal.Rptr.3d 402, 74 P.3d 176], our Supreme Court determined that an individual could be convicted of premeditated attempted murder, even if he did not personally act with deliberation and premeditation. The law only required that the attempted murder had to be committed by one of the perpetrators with the requisite state of mind. Because the facts of that case did not involve the doctrine of natural and probable consequences, the court left that question open.
However, Lee did note, "we conclude that the Legislature reasonably could have determined that an attempted murderer who is guilty as an aider and abettor, but who did not personally act with willfulness, deliberation, and premeditation, is sufficiently blameworthy to be punished with life imprisonment. . . . Punishing such an attempted murderer with life imprisonment would not run counter to section 664(a)'s purpose of making the punishment proportionate to the crime. Of course, where the natural-and-probable-consequences doctrine does apply, an attempted murderer who is guilty as an aider and abettor may be less blameworthy. In light of such a possibility, it would not have been irrational for the Legislature to limit section 664(a) only to those attempted murderers who personally acted willfully and with deliberation and premeditation. But the Legislature has declined to do so." ( People v. Lee, supra, 31 Cal.4th at pp. 624-625.)
We see no reason, under the facts of this case, to depart from the reasoning of the Lee court in a situation that applies the natural and probable consequences doctrine. As noted above, Kelly was a willing and active participant in all the steps that led to the attempt on Taglieri's life. Although the evidence did not conclusively determine which defendant had physical contact with the victim when he was pushed, certainly Kelly's conduct makes him no less blameworthy than Cummins. The jury here was properly instructed on the elements of attempted premeditated murder and, based on the evidence, found the attempt on Taglieri's life was willful, deliberate, and premeditated. Nothing more was required.
C. Consecutive Sentences
Kelly was sentenced to two consecutive life terms, one for the attempted murder conviction and one for the kidnapping for the purpose of carjacking conviction. He was also given a separate consecutive term for the robbery. He argues the court should have stayed one of the life sentences and the robbery term because he was found guilty of attempted murder under the "natural and probable consequences" doctrine. Thus, he had only the single intent to facilitate the robbery and the carjacking. Section 654 would bar his punishment for all three acts which were engaged in an indivisible course of conduct involving a single objective. He cites People v. Bradley (2003) 111 Cal.App.4th 765 [ 4 Cal.Rptr.3d 166] to support his position.
In Bradley, appellant was a young woman who agreed to lure a prosperous-looking customer into leaving a casino so her two male accomplices could rob him. She was to get the customer to drive her in his car and then entice him to stop somewhere along the way. Her accomplices would come upon the scene, rob the victim, and put him into the trunk of the car.
The plan worked to the point where appellant's accomplices stormed the vehicle where she had parked it. The accomplices took control of the car and drove away, with appellant following in another vehicle being driven by another friend. All was going well until the accomplices attempted to put the victim into the trunk of the car. When they were unsuccessful in accomplishing this act, one of the men shot the victim eight times.
Appellant was convicted of attempted murder and robbery and the trial court sentenced her to consecutive terms. She appealed claiming the sentence was barred by section 654. She raised the identical argument presented by Kelly in his appeal.
The Bradley court held the trial court could not impose consecutive sentences since the facts of the case clearly showed "[a]ppellant had only one objective and one intent — to aid and abet a robbery of the victim[.]" ( People v. Bradley, supra, 111 Cal.App.4th at p. 768.) Bradley went on to note appellant "was unaware that [the attempted murder] was occurring until after it was completed and thus didn't have an opportunity to prevent or even protest its commission. As a result, there simply was no evidence appellant exhibited the more dangerous mental state warranting a consecutive sentence under . . . section 654." ( Id. at p. 771.)
The Bradley court did acknowledge another appellate court affirmed consecutive sentences in a factually similar situation. In People v. Nguyen, supra, 204 Cal.App.3d 181, Nguyen agreed to commit a robbery. While he was attempting to take money out of the cash register, his confederate took the victim into a back room, robbed him of his money, and shot him. The jury convicted Nguyen of attempted murder under the "natural and probable consequences" doctrine. The trial court imposed consecutive sentences for the attempted murder and the robbery. The sentence was affirmed.
The Bradley court distinguished its case by noting that Nguyen played a much larger role in the shooting which took place during his robbery than Bradley did in hers. Nguyen entered the market with the clear intent to commit a robbery with an accomplice who was carrying a loaded gun and later encouraged him to shoot the victim by shouting a word, which apparently was a Vietnamese battle cry used in conjunction with a shooting or killing.
"As a result, applying the rationale of our opinion to Nguyen, he would still be subject to consecutive sentencing. Ample evidence in the record of that case would support a finding Nguyen shared his cohort's independent objective of attacking the victim. Indeed he evidently was the instigator of that attack. This contrasts sharply with appellant's role — or actually non-role — in her cohort's shooting of the victim here. Not only did she not encourage the attack, she was oblivious this deviation from the original plan was taking place until the shots rang out and the attempted murder was completed." ( People v. Bradley, supra, 111 Cal.App.4th at p. 772.)
Kelly's participation in the attempted murder in our case mirrors Nguyen's very closely. He drove the vehicle to the site of the attempt. He helped lead the victim to the precise location where the attempt was made. He ordered the victim to keep walking and told him he would be shot if he turned around. He was present when the victim was pushed off the cliff. It is clear Kelly shared the objectives of Cummins, that is to rob the victim and to keep him from pointing out his attackers. As noted in dealing with Cummins's similar sentencing issue, the trial court's determination the crimes in question had separate objectives was supported by the evidence. Consecutive sentences were properly imposed.
Kelly's constitutional claim that double jeopardy bars consecutive sentencing in this instance is unsupported by any legal authority. Kelly cites case law which notes a defendant may not be subjected to multiple punishments for committing the same offense. This is inapplicable to our situation where he was convicted of multiple crimes with different statutory elements. ( People v. Herbert (1936) 6 Cal.2d 541, 544-548 [ 58 P.2d 909].)
See footnote, ante, page 667.
D. The "Natural and Probable Consequences" Doctrine Does Not Violate Due Process
Kelly argues the doctrine of "natural and probable consequences" violates his right to due process by improperly allowing the jury to convict based on a finding of simple negligence. Our Supreme Court dismissed the same argument in People v. Coffman and Marlow (2004) 34 Cal.4th 1, 108. The court stated, "[W]e reject the premise of Coffman's argument that the application of the natural and probable consequences doctrine in capital cases unconstitutionally predicates murder liability on mere negligence. Liability as an aider and abettor requires knowledge that the perpetrator intends to commit a criminal act together with the intent to encourage or facilitate such act; in a case in which an offense the perpetrator actually commits is different from the originally intended crime, the natural and probable consequences doctrine limits liability to those offenses that are reasonably foreseeable consequences of the act originally aided and abetted." ( Ibid.)
Kelly attempts to distinguish his case by arguing the court in Coffman and Marlow noted the jury in that case necessarily found Coffman possessed the intent to kill by finding the special circumstance allegation was true. That is a distinction without meaning. The court clearly held the application of the doctrine itself did not violate a defendant's constitutional right.
Next, Kelly claims the natural and probable consequences doctrine acts as an unconstitutional presumption of malice and violates his constitutional right to have the state prove every factual and legal element of the offense. ( In re Winship (1970) 397 U.S. 358.) However, the prosecution had no obligation to prove Kelly, as an aider and abettor, acted with malice. (See People v. Mendoza (1998) 18 Cal.4th 1114, 1123 [to find perpetrator guilty of murder, jury must find he acted with malice; to find an aider and abettor guilty, the jury must find he knowingly and intentionally aided and abetted the target offense, and then determine the murder was a natural and probable consequence].) As set forth above, the jury properly convicted Kelly as an aider and abettor.
E. Other Contentions Regarding Instructions
The court gave a modified version of CALJIC No. 3.20 in relation to the testimony of Bryan Martin. As Martin did not testify to statements made to him by Kelly, he was not an in-custody informant, as that term is defined by section 1127a. Kelly argues Martin was an essential witness for the presentation of his duress defense and the instruction served to destroy Martin's credibility. Kelly particularly complains the jury was told to view Martin's testimony with caution and close scrutiny. We suggest any reasonable jury would have properly done so, given Martin's 11 felony convictions. Kelly's duress defense was countered with overwhelming evidence of his voluntary participation, including testimony from his girlfriend, Crystal Cala. There was no other evidence to support Kelly's defense, other than his own testimony, which the jury obviously rejected. Error, if any, was harmless by any standard.
During Martin's testimony, he was handcuffed and had a waist chain. This, Kelly urges, was reversible error. Respondent concedes error, but argues any error was harmless. We agree, for all the reasons already set forth. In addition, the jury was informed, through the testimony, that Martin was in custody. It was not reasonably probable that a different result would have been reached in the absence of the error. ( People v. Watson, supra, 46 Cal.2d at p. 836; People v. Ceniceros (1994) 26 Cal.App.4th 266, 275-282.)
The trial court gave the jury, without objection, the standard flight instruction, CALJIC No. 2.52. Kelly claims this was error, and if not, the court had a sua sponte duty to modify the instruction to outline other reasons why Kelly might have fled the scene. Defendant "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 amplifying, clarifying, or limiting language. [Citations.]" ( People v. Farley (1996) 45 Cal.App.4th 1697, 1711; see also People v. Gutierrez (1993) 14 Cal.App.4th 1425, 1439 [no sua sponte duty to modify flight instruction].) Having made no such request, Kelly has waived any error.
F. Incompetence of Counsel
As noted above, Cummins challenged the initial stop of their vehicle in Arizona. Kelly now claims his counsel was ineffective for not raising the same challenge. As we found the stop valid, any perceived error was harmless.
G. Other Contentions
Kelly joins in Cummins' argument there was insufficient evidence to support the burglary convictions. As with Cummins, the burglary convictions must be reversed. We agree with respondent that Kelly's carjacking conviction in count three must be reversed as it is a necessarily included offense of kidnapping during the commission of a carjacking, count two. ( People v. Contreras (1997) 55 Cal.App.4th 760, 763-765.) As Cummins asked to join in Kelly's argument to the extent their issues were similar, we are obliged to reverse Cummins' carjacking conviction for the same reason. We also concur with respondent's concession the section 12022.7 enhancement for the personal infliction of great bodily injury alleged as to Kelly in count one must be stricken. An aider and abettor cannot be held liable for that particular enhancement. ( People v. Cole (1982) 31 Cal.3d 568, 578-579.)
Kelly repeats Cummins' argument that his sentence violates the rule set forth in Blakely. We reject his arguments for the same reasons set forth above.
V DISPOSITION
Defendants' convictions for carjacking and burglary are reversed. Kelly's enhancement pursuant to section 12022.7 is stricken. The matter is remanded for the trial court to correct the abstracts of judgment accordingly and forward the new abstracts to the Department of Corrections. In all other respects, the judgments are affirmed.
Spencer, P.J., and Mallano, J., concurred.
Appellants' petitions for review by the Supreme Court were denied June 29, 2005. Brown, J., did not participate therein.