Opinion
E053756
07-25-2012
THE PEOPLE, Plaintiff and Respondent, v. PHILLIP RYAN FRANKE, Defendant and Appellant.
Michael B. McPartland, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, and Garrett Beaumont and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. FVI1002158)
OPINION
APPEAL from the Superior Court of San Bernardino County. Eric M. Nakata, Judge. Affirmed with directions.
Michael B. McPartland, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, and Garrett Beaumont and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Phillip Ryan Franke confessed to being present when a woman was strangled and shot in the desert. Tire tracks matching his car had been found by the body, and her purse had been found in his car. He claimed, however, that he did not kill her, and he had not known that she was going to be killed; at most, he was an accessory after the fact, in that he drove the real killers away from the scene and accepted about $40 of the loot for gas.
A jury nevertheless found defendant guilty of first degree murder (Pen. Code, §§ 187, subd. (a), 189) and second degree robbery (Pen. Code, §§ 211, 212, subd. (c)). In connection with the murder count, an armed principal enhancement (Pen. Code, § 12022, subd. (a)(1)) was found true. Defendant was sentenced to 26 years to life in prison, plus the usual fines and fees.
Defendant now contends:
1. The trial court erred by giving CALCRIM No. 1603 (Robbery: Intent of Aider and Abettor) because this instruction encouraged the jury to find defendant guilty of murder on a felony-murder theory even if he did not form the intent to aid and abet the robbery until after the murder was complete.
2. CALCRIM No. 1603 erroneously defined "place of temporary safety."
3. The trial court erred by refusing defendant's request for a jury instruction defining an accessory after the fact.
4. The abstract of judgment is erroneous.
We agree that the abstract of judgment should be corrected. Otherwise, we find no error. Hence, we will affirm.
I
FACTUAL BACKGROUND
Victim Sandi Duncan (nicknamed "Sweet P") was a student at Barstow Community College. On September 20, 2009, around 10:30 a.m., she cashed a financial aid check for $458.37. She went home, showered, changed, then went out again. When she did not come home that night, one of her roommates was worried; he phoned her and texted her, but she did not respond.
The next day, September 21, 2009, between 5:30 and 6:00 p.m., a man looking for firewood found Duncan's body. It was out in the desert, in a dry creek bed about 100 yards from his house in Apple Valley.
The body was lying face up. There were two ligature marks on Duncan's neck, mostly on the left and front. In addition, Duncan had been shot once in the chest and once in the abdomen. Both bullets had exited through her back. The bullets were found under her body, indicating that she had been shot where she lay.
Two empty bullet casings were found within two feet of the body. A third, unfired bullet was also found. All three casings were marked ".380 auto."
In the opinion of an expert forensic pathologist, the strangulation occurred first, followed by the shooting. Duncan was still alive when she was shot; the gunshot wounds were the cause of death. The two gunshot wounds were inflicted one right after the other — "bang, bang." The time of death was at least 8 hours and perhaps as much as 24 hours before body was found.
There was a fresh set of tire tracks in the area. These indicated that a vehicle had made a three-point U-turn. There were also six shoe prints. One shoe print was right next to the body; five were farther away, next to some tire tracks. The shoe prints displayed two distinct sole patterns.
There were no drag marks. Moreover, none of the shoe prints matched Duncan's shoes. Investigators concluded that Duncan had been "picked up and placed" where she was found.
About a week later, on September 28, 2009, a police officer assigned to observe one Melvin Satcher spotted Satcher riding as passenger in a car that defendant was driving. The car had a cracked taillight. The officer performed a traffic stop.
The original information charged Satcher jointly with defendant. However, Satcher's case was severed before trial. After being separately tried and convicted, Satcher has filed a separate appeal. (Case No. E052777.)
The officer had been instructed to stop and identify any person seen with Satcher. Subjectively, he performed the traffic stop because the car was missing a front license plate, not because of the cracked taillight; he did not even mention the cracked taillight in his report. Later, he learned that, because the car had a rear license plate from Arizona, and because Arizona does not require front license plates, this would not be a valid basis for a traffic stop. (See People v. White (2003) 107 Cal.App.4th 636, 643-644.)
The trial court denied defendant's motion to suppress the fruits of the traffic stop. Defendant does not challenge this ruling on appeal.
Defendant consented to a search of the car. Under the front passenger seat, the officer found a distinctive beaded purse later identified as Duncan's. It was turned inside out. Defendant said it belonged to his mother.
In the trunk, the officer found fireworks that appeared to have been altered. He arrested defendant for possession of illegal fireworks.
Defendant's tires matched tire tracks found at the scene. For example, one of his tires was the same size and the same width and had the same tread design as one of the tracks. However, the tracks did not have enough detail to support a determination that they had been made by defendant's tires (rather than by tires of the same make and model).
Shoes that Satcher was wearing matched the shoe print found near Duncan's body. The shoes that defendant was wearing, however, did not match any of the shoe prints found at the scene; neither did a second pair in defendant's car. The police searched defendant's home but did not find any additional shoes.
The police interviewed defendant on the day of his arrest and again the next day. The interviews were audiotaped, and the tapes were played for the jury.
Defendant said he lived in Las Vegas. He also said he and Satcher were friends. They had met while incarcerated together in the military.
At first, defendant denied even being in California on the date of the shooting. When the police told him they could prove that he was in Barstow, however, he changed his story; he admitted being in Barstow but claimed he left town in the morning. He specifically said he did not lend his car to anybody. He then changed his story again; he claimed a friend of Satcher paid him $100 to borrow his car.
Defendant then changed his story again. He said that, at Satcher's request, he agreed to drive four people to Los Angeles: Satcher, the victim, and two men he did not know. The victim said she wanted to go to Los Angeles to go shopping.
It was afternoon. One of the other two men said he needed to use the bathroom, so defendant got off the freeway. The man told him to pull into a "little cut." Defendant pulled in, made a three-point turn, and stopped. The other four got out, but only three got back in. They told him, "[D]on't worry about it, just go," so he did.
The police told defendant they knew he was lying, because the victim had not left any footprints. Defendant then changed his story yet again. He said that the victim was sitting in the front passenger seat; Satcher and the other two men were sitting in the rear. After they pulled off and stopped, one of the other two men started to strangle the victim, using a white cloth. The victim "tried to fight." Defendant got out of the car and walked around it.
After a while, all three other men got out. Satcher just "st[ood] around looking" while one of the other two men opened the front passenger door and pulled the victim out. Simultaneously, defendant got back in the car. He moved the car forward, about to leave, but he decided he "wasn't gonna leave [Satcher] . . . ." He then heard two shots. The other three men got back in the car, and defendant drove away.
When the interview resumed the next day, at first, defendant stuck to this story. However, he did say it was Satcher who told him where to drive and where to stop. The police repeatedly said they knew he was lying because there were only two sets of shoe prints. Defendant then changed his story one final time. He said the other two men never got out of the car. Each of the two strangled the victim; whenever one of them got tired, they "switched off." Satcher warned them not to let go. It was Satcher who opened the car door and pulled the victim out.
Defendant admitted seeing Satcher shoot the victim. Satcher stood over her and fired two shots downward — "like pow, pow." A third round jammed, so Satcher removed the magazine, took out the bullet, wiped it, and put it back in the chamber. Satcher later told defendant that he shot the victim in the chest and in the stomach.
When asked why they did it, defendant said, "[S]he was supposed to have some check . . . that she cashed and . . . they were trying to get her money . . . ." Sometime before the shooting, Satcher had told defendant that "she gets checks every other week." However, the victim had less money than they expected — only about $200. They gave defendant $40 for gas, then split the rest between them.
When asked if his DNA would be on the murder weapon, defendant said it might be, because a few days earlier, Satcher had been looking at a .38-caliber semiautomatic, and defendant had touched it.
Although defendant's and Satcher's homes were searched, the murder weapon was never found.
Defendant's statement included many details that the police had not told him and had not made public, including the fact that the victim had been strangled and shot twice, in the chest and abdomen; the fact that the bullets were .38-caliber; and the fact that the vehicle had made a three-point turn. According to the pathologist, the fact that there were two separate ligature marks was consistent "with someone struggling and the ligature slipping[.]" The fact that there was no mark on the back of Duncan's neck was consistent with her being in the front seat of a car and being strangled by someone in the back seat.
II
ISSUES REGARDING CALCRIM NO. 1603
(ROBBERY: INTENT OF AIDER AND ABETTOR)
A. Additional Factual and Procedural Background.
The People asked the jury to find defendant guilty of first degree murder on a premeditation and deliberation theory or, alternatively, on a felony-murder theory.
With respect to felony murder, the trial court gave CALCRIM No. 540B (Felony Murder: First Degree — Coparticipant Allegedly Committed Fatal Act), which stated, as relevant here:
"The defendant may also be guilty of murder under the theory of felony murder even if another person did the act that resulted in death. I will call that other person the perpetrator.
"To prove that the defendant is guilty of first degree murder under this theory, the People must prove that:
"1. The defendant committed or aided and abetted robbery;
"2. The defendant intended to commit or intended to aid and abet the perpetrator in committing robbery;
"3. If the defendant did not personally commit robbery, then a perpetrator, whom the defendant was aiding and abetting, personally committed robbery; and
"4. While committing robbery, the perpetrator caused the death of another person; and
"5. There was a logical connection between the cause of death and robbery or attempted robbery.
"The connection between the cause of death and the robbery must involve more than just their occurrence at the same time and place. [¶] . . . [¶]
"The defendant must have intended to commit and/or aid and abet the felony of robbery at or before the time that he caused death." (Italics added.)
With respect to robbery, the trial court gave CALCRIM No. 1603 (Robbery: Intent of Aider and Abettor), as follows:
"To be guilty of robbery as an aider and abettor, the defendant must have formed the intent to aid and abet the commission of the robbery before or while the perpetrator carried away the property [to a place of temporary safety].
The bracketed words were included in the written instruction, but not in the oral instruction. However, "[t]he risk of a discrepancy between the orally delivered and the written instructions exists in every trial, and verdicts are not undermined by the mere fact the trial court misspoke. ' . . . To the extent a discrepancy exists between the written and oral versions of jury instructions, the written instructions provided to the jury will control.' [Citation.]" (People v. Mills (2010) 48 Cal.4th 158, 200-201.)
"A perpetrator has reached a place of temporary safety with the property if he has successfully escaped from the scene, is no longer being pursued, and has unchallenged possession of the property."
The Bench Notes to CALCRIM No. 1603 state: "The court has a sua sponte duty to give this instruction when the defendant is charged with aiding and abetting a robbery and an issue exists about when the defendant allegedly formed the intent to aid and abet. [Citation.]" (Bench Notes to CALCRIM No. 1603 (2012), p. 1220, boldface omitted.) However, they also state: "Do not give this instruction if the defendant is charged with felony murder." (Ibid., boldface omitted.)
B. Analysis.
Defendant contends that CALCRIM No. 1603 is erroneous when given in a felony murder case.
To be guilty of felony murder, a person who is not the actual killer must form the intent to aid and abet the underlying felony before the killing occurs. (People v. Pulido (1997) 15 Cal.4th 713, 716, 719-726.) "[C]omplicity in a felony murder [does not] extend to one who joins the felonious enterprise after the killing has been completed." (Id. at p. 722.)
Defendant argues that CALCRIM No. 1603 contradicted this principle. Not so. CALCRIM No. 1603 merely stated that, "[t]o be guilty of robbery as an aider and abettor, the defendant must have formed the intent to aid and abet the commission of the robbery before or while a perpetrator carried away the property to a place of temporary safety." (Italics added.) This is a correct statement of the law with respect to robbery. (People v. Cooper (1991) 53 Cal.3d 1158, 1161, 1165.) CALCRIM No. 1603 did not purport to address whether or under what circumstances defendant could be guilty of felony murder.
Defendant relies on the Bench Note to CALCRIM No. 1603 that states that the instruction should not be given if the defendant is charged with felony murder. Such use notes, however, do not have "the force of law." (People v. Alvarez (1996) 14 Cal.4th 155, 223, fn. 28.) It would be more accurate to say that the instruction should not be given if the defendant is charged only with felony murder and not charged with robbery. If, on the other hand, the defendant is charged with both felony murder and robbery, the trial court must instruct on all of the elements of robbery. These include, in an appropriate case, when the intent to aid and abet the robbery must be formed.
Specifically with respect to felony murder, the trial court instructed that "[t]he defendant must have intended to commit and/or aid and abet the felony of robbery at or before the time that he caused death." (CALCRIM No. 540B.) Thus, the jury would have understood that it could find defendant guilty of aiding and abetting robbery, yet not guilty of felony murder.
In his reply brief, defendant argues that the quoted sentence of CALCRIM No. 540B did not cure the supposed error, for two reasons. First, he argues that "[t]hat sentence was likely not even read by the jurors because it was at the end of that instruction and not one of the numbered elements of felony murder." The trial court, however, read the entire instruction out loud. In any event, we see no reason to assume that jurors disregard either the ends of instructions or unnumbered portions of instructions. To the contrary, "[w]e 'credit jurors with intelligence and common sense' [citation] and presume they generally understand and follow instructions [citation]." (People v. McKinnon (2011) 52 Cal.4th 610, 670.)
Second, the quoted sentence states that the "defendant" must form the intent to commit (or to aid and abet) robbery before "he" — rather than the "perpetrator" — caused the death. Defendant therefore argues that "the jurors would not have interpreted this sentence as even applying to appellant." Earlier, however, the same instruction stated that the prosecution must prove that "the perpetrator caused the death of another person . . . ." (Italics added.) When the instruction as a whole is given a reasonable and common-sense interpretation, it clearly required that the defendant formed the intent to commit robbery before the perpetrator caused the death. Moreover, even if the jury could have misunderstood "he" as referring to the defendant, that would mean that, if the defendant did not cause the death, he would not be guilty at all. Thus, the supposed error could only benefit defendant.
We therefore conclude that the trial court did not err by giving CALCRIM No. 1603.
C. Definition of "Place of Temporary Safety."
Defendant contends that CALCRIM No. 1603 erroneously defined "place of temporary safety."
"For purposes of aider-abettor liability, the commission of a robbery continues so long as the property taken is being carried away to a place of temporary safety. [Citation.]" (People v. Harris (1994) 9 Cal.4th 407, 421.) "A person therefore commits robbery as an aider and abettor if, all other elements being also satisfied, the person 'form[s] the intent to facilitate or encourage commission of the robbery prior to or during the carrying away of the loot to a place of temporary safety.' [Citation.]" (People v. Pulido, supra, 15 Cal.4th at p. 723, italics omitted.)
In People v. Cooper, supra, 53 Cal.3d 1158, the California Supreme Court held that a robbery continues during a robber's escape from the scene if, and only if, the robber is still in possession of the loot. (Id. at pp. 1167-1171.) For example, it does not continue during the robber's escape if the loot has been "abandoned in haste prior to the escape" or "carried away by a second getaway car." (Id. at p. 1166, fn. 10.)
The People concede that CALCRIM No. 1603 is erroneous under Cooper. We are not convinced that this concession is warranted. CALCRIM No. 1603 states, "A perpetrator has reached a place of temporary safety with the property if he has successfully escaped from the scene, is no longer being pursued, and has unchallenged possession of the property." (Italics added.) This is legally correct. The only arguable problem is that the instruction simply does not address how to tell when (or whether) a robber has reached a place of temporary safety if he or she escapes without the property.
Under the circumstances of this case, however, an instruction on this narrow point was not warranted. Uncontradicted evidence established that both defendant and Satcher escaped from the scene with the loot. Defendant admitted receiving $40 of the loot as they drove away. The victim's purse was still in defendant's car a week later. In sum, the rule that a robbery has ended, at least with respect to a particular robber, if that robber is escaping without the loot was not "closely and openly connected to the facts" of this case; therefore, the trial court was not required to instruct on it. (See People v. Blacksher (2011) 52 Cal.4th 769, 845-846.)
For the same reason, even assuming the instruction was erroneous, the error was harmless beyond a reasonable doubt. "On these facts, if the jury found that defendant formed the intent to facilitate or encourage commission of the robbery prior to or during the escape to a place of temporary safety, then such intent was also necessarily formed prior to or during the act of carrying away the loot to a place of temporary safety. Thus, the references to the escape could not have misled the jury with respect to the duration of this particular robbery." (People v. Cooper, supra, 53 Cal.3d at p. 1171.)
Defendant argues that " . . . Satcher could have been found to have reached a place of temporary safety when he got into appellant's car . . . ." Not so. "'[T]he scene of a robbery is not a place of temporary safety . . . [citation] . . . ." (People v. Young (2005) 34 Cal.4th 1149, 1177.) It would be absurd to suppose that defendant and Satcher, sitting in defendant's car, out in the desert, with the victim's purse, the murder weapon still smoking next to them, and the victim's body still bleeding outside, were in a place of temporary safety.
We therefore conclude that the instruction was not erroneous; but even if it was, the asserted error was harmless.
III
REFUSAL TO DEFINE AN ACCESSORY
Defendant contends that the trial court erred by refusing his request for a jury instruction defining an accessory after the fact.
A. Additional Factual and Procedural Background.
Defendant requested the following special instruction:
"A person is an accessory to a felony if the evidence shows:
"1. Another person, whom I will call the perpetrator, committed a felony;
"2. The defendant knew that the perpetrator had committed a felony;
"3. After the felony had been committed, the defendant either harbored, concealed, or aided the perpetrator;
"and
"4. When the defendant acted, he intended that the perpetrator avoid escape arrest, trial, conviction, or punishment.
"To decide whether the perpetrator committed the felonies of either robbery or murder, please refer to the separate instructions that I have given you on those crimes."(Capitalization omitted.)
The instruction was based on CALCRIM No, 440, modified so as to omit the words, "The defendant is charged . . . with being an accessory to a felony . . . ."
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Defense counsel argued that the trial court should give the instruction to assist the jurors in deciding whether defendant was an aider and abettor or merely an accessory.
The prosecutor objected, "[A]ccessory is not charged here so I think it's inappropriate to give the instruction. Additionally, I think it would only serve to confuse the issues in this case."
The trial court refused to give the instruction. It explained: " . . . I think that [defense counsel] can argue . . . how the aider and abett[or] theory fails without the accessory to a felony. I think that it's difficult for the attorneys to understand the distinction[,] let alone lay people. I think that [d]efendant's [s]pecial [i]nstruction . . . simply invites the jury to be confused."
B. Analysis.
Defendant was not charged with the crime of acting as an accessory after the fact. (Pen. Code, § 32.) Nor was this a lesser included offense; it was merely a lesser related offense. Accordingly, defendant had no right to an instruction on it. (People v. Birks (1998) 19 Cal.4th 108, 136.)
Defendant argues that this instruction was a necessary foundation of his defense that he was only an accessory. In People v. Jennings (2010) 50 Cal.4th 616, the Supreme Court rejected a similar contention. It acknowledged that "'the trial court normally must, even in the absence of a request, instruct on general principles of law that are closely and openly connected to the facts and that are necessary for the jury's understanding of the case.' [Citation.]" (Id. at p. 667.) It explained, however, that "[b]eing an accessory to murder is not a defense to aiding and abetting the commission of murder — it is a separate criminal offense. [Citations.]" (Id. at p. 668.) It added that the crimes are not even mutually exclusive: "A defendant can be convicted of both murder and being an accessory to murder if the defendant aids the principal both before and during, as well as after, the murder is committed. [Citations.]" (Id. at pp. 668-669; see also People v. Taylor (2010) 48 Cal.4th 574, 621-622 [trial court properly refused instruction on trespass, which the defendant had requested so he could argue that his entry into home was not burglary].)
We recognize that "'[a] criminal defendant has the right to instructions that pinpoint the theory of the defense case.' [Citation.] The court properly may refuse a proposed instruction, however, when the point is covered in another instruction. [Citation.]" (People v. Clark (2011) 52 Cal.4th 856, 975.) Here, the jury was fully instructed on aiding and abetting. In particular, it was instructed that, to be guilty on an aiding and abetting theory: (1) defendant had to know that the perpetrator intended to commit the crime; (2) defendant had to form the intent to aid and abet "[b]efore or during the commission of the crime"; and (3) defendant had to actually aid the commission of the crime, by "words or conduct . . . ." (CALCRIM No. 401.) Thus, defense counsel was free to argue that defendant was not guilty as an aider and abettor, because either he did not form the intent to aid and abet or he did not actually do anything to aid and abet, until the robbery and murder were already over. Defendant was not prevented from presenting a complete defense.
IV
ABSTRACT OF JUDGMENT
Defendant contends that the abstract of judgment erroneously reflects the sentence for murder. He notes that the indeterminate abstract of judgment correctly lists an indeterminate term of 25 years to life; in addition, however, the determinate abstract of judgment incorrectly lists a determinate term of 25 years.
The People respond that, when the two abstracts are read together and in their entirety, they correctly reflect defendant's sentence. We disagree. The recital that defendant was sentenced to a determinate term of 25 years is simply false. As a result of this error, the abstracts, though ambiguous, could be understood to mean that defendant was sentenced to 25 years to life plus an additional 25 years.
The People urge us not to remand the matter to the trial court. However, no remand is necessary. We can simply direct the clerk of the superior court to correct the error. Thus, we place no particular burden on the trial court.
V
DISPOSITION
The judgment is affirmed. The clerk of the superior court is directed to amend the abstract of judgment so as to correctly reflect that the sentence for murder (count 1) was an indeterminate term of 25 years to life. The clerk is further directed to forward a copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
J.
We concur:
RAMIREZ
P. J.
CODRINGTON
J.