Opinion
C077813
08-01-2018
THE PEOPLE, Plaintiff and Respondent, v. KEVIN HENRY, JR., et al., Defendants and Appellants.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 13F04938)
A jury found defendants Kevin Henry, Jr., and Anthony Devon Roberson-Anderson guilty of the first degree murder of Colen Lugo (Pen. Code, § 187, subd. (a); count one), robbery of Lugo (§ 211; count two), and robbery of Gregory K. (id.; count three). The jury also found Henry guilty of being a felon in possession of a firearm (§ 29800, subd. (a)(1)) and found true allegations that the murder was committed while defendants were engaged in the commission of a robbery (§ 190.2, subd. (a)(17)) and that defendants personally used a firearm in the commission of counts one through three (§ 12022.53, subd. (b)). In a bifurcated proceeding, the trial court found true allegations that Henry had two prior convictions and Roberson had one prior conviction within the meaning of sections 667, subdivisions (b)-(i) and 1170.12.
We shall refer to Roberson-Anderson as "Roberson" as is his preference.
Further undesignated statutory references are to the Penal Code.
The trial court sentenced Henry to life without the possibility of parole, plus an additional 70 years to life in state prison. The trial court sentenced Roberson to life without the possibility of parole, plus an additional 30 years in state prison.
Henry's sentence consists of life without the possibility of parole for the murder, plus an additional 10 years for the firearm enhancement, 25 years to life for the robbery of King, plus an additional 10 years for the firearm enhancement, and 25 years to life for being a felon in possession of a firearm. Henry's sentence for the robbery of Lugo was stayed pursuant to section 654.
Roberson's sentence consists of life without the possibility of parole for the murder, plus an additional 10 years for the firearm enhancement, and a consecutive 10 years for the robbery of King, plus an additional 10 years for the firearm enhancement. Roberson's sentence for the robbery of Lugo was stayed pursuant to section 654.
Defendants appeal, contending the trial court committed various evidentiary and instructional errors. Defendants also argue that this case must be remanded to the trial court so the trial court can exercise its discretion as to whether to strike the firearm enhancement based on a recent change to section 12022.53 that took effect on January 1, 2018. We shall remand the matter to the trial court for resentencing to allow it to exercise its discretion to strike defendants' firearm enhancements should it wish to do so and otherwise affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
On or about August 12, 2013, Roberson, who lived in Bakersfield, contacted Gregory K., who lived in Sacramento, about purchasing a pound of marijuana. According to Gregory K., who testified after being given immunity, Roberson said that he and his friend were coming to Sacramento, and his friend wanted to purchase some marijuana. Gregory K. had sold smaller quantities of marijuana to Roberson in the past. With previous transactions, Gregory K. would obtain the marijuana in advance from his supplier, Colen Lugo, and then collect the money once he gave the marijuana to Roberson. This time, however, the plan was for Gregory K. to take Roberson to meet with Lugo personally.
At all relevant times herein, Gregory K. knew Roberson as "Little Tae" and Henry as Little Tae's friend.
At all relevant times herein, Gregory K. knew Lugo as "D" or "Diamond."
Gregory K. arranged to have Roberson and Henry pick him up on the morning of August 14, 2013. The trio first drove to Gregory K.'s storage facility where Gregory K. picked up some of his belongings and some cocaine he claimed he intended to sell to Roberson and/or Henry. Thereafter, the men drove to a park, the intended meeting location. Roberson parked his silver Volvo in front of Lugo's van.
Gregory K. testified that he got out of the car first, walked over to Lugo's van, and spoke to Lugo through the open passenger door. Gregory K. told Lugo that "one of the guys" wanted to look at the marijuana before they bought it because they had been ripped off in the past. Lugo agreed, and Roberson walked over to Lugo's van to check out the marijuana. Lugo and Roberson spoke, and it sounded like they knew some of the same people. Gregory K. also saw Roberson show Lugo some money. According to Gregory K., Roberson told Lugo that his friend also wanted to see the marijuana because it was being purchased with some of his money. At that point, Roberson walked back to his car. While Roberson was away, Gregory K. advised Lugo that he had already told Roberson and Henry that one person could see the marijuana and "that was supposed to be the deal." Lugo said it was fine, but it made Gregory K. nervous.
Roberson and Henry walked up to the passenger side of Lugo's van, and Gregory K. moved out of the way so Roberson and Henry could see the marijuana. Lugo remained seated in the driver's seat. Before Gregory K. knew it, he saw Henry "grabbing for the bag, and [Henry] and [Lugo] were like tugging back and forth for it." He then saw "both [Henry and Roberson] reach for their waist," and observed one of the men, he was not exactly sure which one, with what appeared to be a gun. Gregory K. jumped to the ground and covered his head because he did not want to get shot. He then heard a gunshot. At trial, Gregory K. testified that he remembered "seeing one gun for sure," but "the other dude reached for his waistband, too, at the same time, so I assumed they both had a gun."
While Gregory K. was still on the ground, Henry turned him over, pointed a gun at him, and took his identification and "other stuff" from his pocket before running to Roberson's car. After Roberson and Henry drove off, Gregory K. checked on Lugo to see if he was still breathing, called 911, and waited for an ambulance to arrive. Lugo died at the scene due to blood loss from the gunshot wound.
Gregory K. had two phones that day; he left one in Roberson's car.
Gregory K. acknowledged that he initially lied to police about why he was at the park but eventually admitted setting up the drug purchase. He planned to make between $100 to $200 from the transaction. He did not recall telling police that he saw both men trying to pull the bag away from Lugo; rather, he testified that he just saw Henry tug on the bag. At trial, Gregory K. claimed that Roberson just stood to the side during the tug-of-war.
Several people in the area heard the gunshot and later testified about their observations. Joshua E. was driving through an intersection by the park and saw Lugo's van. He heard a "pop" or gunshot, then looked over to see one young man laying on the grass next to the van and two other men running from the van. He did not see what, if anything, the two men were holding as they ran off.
Jeffrey M. and Tyler D. were prepping a nearby house for exterior painting and noticed the silver Volvo parked next to the park and the moving van parked behind it. Jeffrey M. heard a gunshot and turned to see two men running toward the Volvo. The taller of the two men (Roberson) was carrying a white grocery bag. At trial, Jeffrey M. initially testified he did not see any guns at the scene. Upon reflection, he recalled telling a deputy that he saw "the second gentleman with a chrome firearm," and later testified that he recalled seeing both men with automatic firearms. He could not identify either suspect. He saw a portion of the shorter man's (Henry) face and thought he looked scared.
Both Roberson and Henry testified that Roberson was the taller of the two men.
Being knowledgeable about guns, Jeffrey M. testified he believed the gun held by the shorter stockier male (Henry) was a Colt 1911 and the one held by the tall more muscular male (Roberson) was a Beretta, Glock, or Springfield Armory.
Tyler D. had seen the silver car and then the van by the park. A few seconds before hearing the gunshot, Tyler D. heard someone yell "Hey" and some other stuff. He saw two men backing away from the van, one was taller with darker skin (Roberson); both men ran to the silver car. He told police that the taller man (Roberson) got into the driver's side of the car. Both men were holding guns, and the taller one (Roberson) was holding a white plastic bag.
Two teenage boys hanging out at the park also heard the gunshot and then spoke to police. Adam H. saw two African American males speed walking to a silver car, and another male urged Adam to call the police. According to Adam, the shorter of the two men (Henry) had what appeared to be a brown bag. Adam called 911.
Chris G. saw the silver car pull up and a man get out holding what appeared to be something wrapped in Saran wrap and bring it to the van. He then heard a gunshot and saw the man run with "the Saran wrap" back to the car and the car drive off. He did not recall telling police he saw two men run to the car.
Davante W. heard the gunshot and saw two men running to a car, but he did not see any guns or packages in their hands.
Numerous law enforcement personnel responded to the scene of the shooting. Deputy Christian Weightman found a .40-caliber shell casing on the ground. Bits and pieces of marijuana were scattered in the street and gutter leaving a debris trail from the van to where the car had been parked.
Deputy Steve Lickiss and Detective Robert Tracy both interviewed Gregory K. and eventually learned that Gregory K. had arranged for Roberson and his friend to purchase marijuana from Lugo at the park. Gregory K. never told police that he saw which person fired the shot, but he said that he thought both men pulled out guns after Henry grabbed the bag of marijuana. Detective Tracy testified, however, that Gregory K. said he saw Roberson pull out a gun from his waistband but did not see Henry pull out a gun prior to Lugo being shot. He only saw Henry with a gun when Henry was standing over him after the gunshot. Gregory K. never mentioned the cocaine either. Gregory K. did tell police he left a cell phone in Roberson's car.
Henry was arrested in Bakersfield on August 16, 2013. Police found Gregory K.'s phone and a large baggie of marijuana in Henry's possession. The parties stipulated that Henry had previously been convicted of a felony.
Henry's private investigator, Lori Brown, interviewed Gregory K. in April 2014. Gregory K. told Brown that he was going to be paid $100 for acting as a go-between for the drug sale. Gregory K. also said that all three men, Henry, Roberson, and Lugo, had been tugging on the bag, and that he saw Roberson grab a gun and Henry reach for his waistband before the shot was fired. Gregory K. told Brown that he did not know who took his money and phone because he fell to the ground and never opened his eyes.
In 2014, Roberson shared a jail cell with Brian C. On August 26, 2014, Brian C. received a verbal reprimand for including third party mail in his outgoing mail. Brian C. testified that he did not know who had written the letter, but that Roberson indicated that he should just go along with things, so Brian C. acted as if he had written it. The outgoing letter was addressed to Tiara K., and Brian C. did not know who she was. In the letter, the author told Tiara K. to send a message to Gregory K. online by using a false profile, telling him not to testify.
Earlier that year, in February 2014, jail officials confiscated a letter from Roberson to Tiara K. asking her to look up people on Facebook and find "the dude" by making a fake page.
Roberson testified in his own defense at trial. Roberson ran into Henry while getting gas to drive to Sacramento, and Henry asked if he could go with him to Sacramento. After they arrived in Sacramento, Roberson called Gregory K. looking to purchase some marijuana. Roberson had between $700 and $900 that he was willing to spend if he could get it at a good price.
The next morning, Roberson and Henry picked up Gregory K. and took him to his storage facility. They later drove to the park and waited for Gregory K.'s friend to arrive. When Lugo arrived, Gregory K. met with him first, then called Roberson and Henry over to the van. Roberson sat down in the passenger seat of the van and handed Lugo $900. Lugo counted the money, put it in is fanny pack, and handed Roberson a bag of marijuana. Roberson took a scale out of a pouch he was carrying and weighed the marijuana. He expected to get 18 to 20 ounces of marijuana for $900, but the marijuana only weighed 16 ounces. When he mentioned the discrepancy to Lugo, Lugo said something about the "grade" of the marijuana that did not make sense to Roberson. At that point, Roberson walked away from the van to call his brother to ask him if he thought Roberson was getting a good deal. As he walked back towards his car, he could hear Henry and Lugo arguing. Henry felt that Lugo was trying to put one over on them, and Lugo responded that he did not need to put one over on them because he did not need their money. Roberson went back to the van, got in the passenger seat, told Lugo he did not want the marijuana, and Lugo handed him back his money. As Roberson was getting out of the van, Lugo told Gregory K. not to call him next time with no "brokeass out-of-towners." Lugo then looked at Henry and said, "[Y]ou can go back to Bakersfield to smoke that shit." Henry responded, ". . . I'll just take this shit," and attempted to grab the bag of marijuana from Lugo. Lugo and Henry engaged in a tug-of-war over the bag, and the bag ripped causing Henry to stumble backwards. Roberson testified that Henry had a frightened look on his face as he pulled out a gun. At the same time, Roberson saw Lugo "fumbling around on the left side of his door." Roberson initially thought Lugo was reaching for a gun, but he never saw Lugo with a gun. He later acknowledged that Lugo could have been attempting to open the door to avoid being shot. Henry then shot Lugo.
Roberson picked up his scale and bag and ran to the car, telling Gregory K., "[C]ome on, come on." Gregory K. said, "[N]o, he shot him. I got to stay and call the police." Henry jumped in the car and they drove off. According to Roberson, Henry just sat there with "a gun in his hand, the weed in his hand and, like, with this far-away look." Roberson denied having a gun with him that day and said he did not know if Henry was armed prior to the shooting. According to Roberson, there had been no discussion about "robbery or stealing anything from anybody."
Roberson acknowledged asking police for a deal before telling them what he knew, but he claimed he did so only because he wanted to keep his family safe. Roberson claimed that he planned to buy the marijuana and resell it in Las Vegas. He testified that the marijuana that was found in his car when he was arrested on the night of August 15, 2013, was purchased from a dispensary.
Roberson initially told police he was not in Sacramento on August 14, 2013. He admitted he was there after he was told that a GPS tracker on his car showed that the car had gone to Sacramento. Roberson said he wrote the letters from jail because he did not want Gregory K. to lie on the stand.
Detective Tracy testified that Roberson said he wanted a deal or leniency in exchange for any information he supplied. Roberson never told police that Henry looked scared and stumbled and shot Lugo with his eyes closed. Roberson denied killing anyone or planning to rob anyone. He described Henry as having a black gun and denied personally using a gun himself.
Henry also testified at trial. Henry ran into Roberson at Walmart, and Roberson invited him to go to Sacramento. Roberson offered to pay for Henry's expenses, and, later that day, Henry agreed to go with him. Roberson initially told Henry that he was going to Sacramento to visit his mother and his son. Roberson later told Henry about his plan to buy marijuana. Henry denied knowing how much marijuana Roberson planned to buy. At the park, Henry initially stayed in the car, but got out when Roberson asked him to come check out the marijuana.
Roberson and Henry both walked up to the passenger side of the van, and Roberson got into the passenger seat. Roberson then took a "nugget" of marijuana out of a bag and handed it to Henry. After examining the marijuana, Henry said it looked good to him and then started walking back towards the car. After he had taken about five steps, he heard someone yell, "Aayy," and as he turned to look, he heard a loud pop, which he assumed was a gunshot. He saw Gregory K. on the ground and initially thought that Gregory K. had been shot. When he saw Roberson running towards him with a white plastic bag, he took off running for the car. Henry did not see Roberson with a gun and denied having a weapon himself.
Once they were in the car, Henry asked Roberson, "[W]hat the hell was that? What was that all about?" Roberson responded, "[B]rother, I don't know." When Henry persisted, Roberson said he did not want to talk about it and turned up the radio. Henry looked back and could see Gregory K. standing up on the passenger side of the van and Lugo sitting in the van. Roberson got on the freeway, and they drove back to Bakersfield, stopping only for gas.
Henry did not know anyone had been hurt. He testified that he only learned that someone had been shot after he was arrested and was told it was a murder investigation. He denied tugging on the bag of marijuana, shooting Lugo, or pointing a gun at Gregory K. He denied talking with Roberson about the marijuana on the ride home. He said that he discovered he was sitting on a cell phone in the car on the way home and put it in his pocket thinking it was his.
Detective Tracy testified that Henry was told he had been arrested on a warrant and they mentioned a shooting, but not a murder. --------
Henry was arrested at 2:00 a.m. on August 16, 2013. He had a bag of marijuana on his person when he was arrested. He testified that he purchased the marijuana from a friend in Bakersfield. Henry admitted having two prior felony convictions, including one for burglary. He admitted he initially lied to police when he denied being in Sacramento, knowing Roberson, or meeting Gregory K.
DISCUSSION
I
The Trial Court Properly Overruled Roberson's Motion to Strike Gregory K.'s Testimony
That He Was " 'Pretty Sure' " That Henry and Roberson Were in on It Together
Roberson contends that "[t]he trial court committed reversible error when it permitted Gregory K[.] to testify to his lay opinion that he felt 'pretty sure' that [Roberson] and his codefendant were 'both in on it.' " There was no error. As we shall explain, the testimony was offered to explain why Gregory K. looked at Roberson when Henry and Lugo were engaged in a tug-of-war over the bag of marijuana, not as evidence that Henry and Roberson were in fact working together.
The following exchange took place during Henry's cross-examination of Gregory K.:
"Q: What caused you to look at the guys or the guys' waistband, or anything, if they're tugging back and forth? Why did you look at them?
"A: Because whenever a person reaches for a waistband, that's usually where his gun is, and that's what I kind of figured. And then once I seen a piece of a gun being pulled out, I knew that's what it was. [¶] . . . [¶]
"Q: Take it one step at a time real slow.
"You see people tugging back and forth. That's . . . Henry and it's . . . Lugo, who you know as D, right?
"A: Yes.
"Q: All right. [Roberson] has nothing to do with that, right?
"A: No. He's standing like next to the car door, but you can't - from where Lugo is sitting, you can't really see him because he's on like - he's like on the side of the truck basically.
"Q: We're not talking about what Mr. Lugo can see. I'm asking you what you can see.
"A: I know. I'm telling you that you say where was he. He was not involved in the tug-of-war. He was standing on the side of the truck.
"Q: Okay. And what causes you to look at him?
"A: Because I was wondering what is he going to do. I mean, if they came together, I'm pretty sure they were both in on it.
"MR. WARDEN [(Roberson's trial counsel)]: Objection, Your Honor. Move to strike. Speculation.
"THE COURT: Overruled. It's responsive to the question."
Gregory K.'s testimony does not constitute lay opinion or speculation. Gregory K. was asked why he looked at Roberson while Henry and Lugo were engaged in a tug-of-war over the bag of marijuana and responded that he wondered what Roberson was going to do because he was "pretty sure they were both in on it." If Roberson was afraid the jury would consider the statement as evidence that Roberson and Henry were in fact in on it together, he could have requested a limiting instruction to that effect. (Evid. Code, § 355 ["When evidence is admissible . . . for one purpose and is inadmissible . . . for another purpose, the court upon request shall restrict the evidence to its proper scope and instruct the jury accordingly."].) He failed to do so.
The trial court did not err in overruling Roberson's objection and in allowing the statement to stand.
II
The Trial Court Properly Admitted the Letter Intercepted at the Jail in August 2014
Roberson next contends that "[t]he trial court committed reversible error when it allowed the prosecutor to read to the jury a letter intercepted in jail because the letter was irrelevant to prove [his] intent to dissuade a witness from testifying in the absence of evidence that [he] wrote the letter." As we shall explain, there was ample evidence Roberson wrote the letter.
The letter in question was intercepted on August 26, 2014. Before we discuss the contents of that letter and whether there was sufficient evidence Roberson authored it, we pause to set forth the contents of another letter that was intercepted six months earlier, in February 2014, that Roberson acknowledges writing. The intended recipient of the February 2014 letter was Tiara K., Roberson's girlfriend, in Bakersfield, California. There were two "attachments" to that letter. One was a "a notation to look some names up and try to find somebody and pass a message on to him." The other was a photograph with the name "Gregory K[.]" The contents of the letter were read to the jury by the prosecutor in pertinent part as follows: "What's up girl? Man, me miserable as shit. I swear I've been having some of the worse dreams ever. Can't sleep for nothing, but I've been trying to maintain. And I don't know what I'm going to do. I got some stuff that I wanted to ask you, but I don't want to start nothing with you because you be trippin', and you ain't went crazy on me in, like, weeks, so I almost feel like we on good terms, so I ain't going to start nothing . . . . [¶] . . . But, T, check it out. I really need you to do something for me, and it's real important, so you really got to do it and stay on it. But I need you to look some people up on FB and see if you can find them. I really just need you to find the dude more than anything. And you got to make a fake page, because if you find him it can't say anything about Bakersfield, because he gunna know. But I put a small picture of him in here, and everything, and all the other stuff that you would need. [¶] Please, love, this is, like, so important, so stay on it, day and night. But I explained everything to do with the paper. I put all the people name on -- names on and who they is and how to go about it. Please understand this. Very serious, T, so handle that for me. [¶] . . . [¶] PS. Please do that for me, Tiara. I need this done, so you got to be on it, and let me know ASAP."
With the contents of the February 2014 letter in mind, we turn to the letter at issue on appeal. On August 26, 2014, an envelope containing two written pages was intercepted at the jail. The envelope bore the name of Roberson's cell mate, Brian C. When a deputy contacted Brian C. about "the letter" in Roberson's presence, Brian C. acknowledge that it was his letter because Roberson was making surreptitious gestures to him. At trial, however, Brian C. testified that he did not actually write the letter. When Brian C. asked Roberson about the letter, Roberson said that he was trying to find out what people in his case were saying about him. The first page was signed with Brian C.'s name and addressed to Tiara K. Roberson objected to the letter's admission at trial, arguing, "[I]t's not relevant if he hasn't -- he denies writing this. Doesn't recognize it." The trial court overruled the objection, and the prosecutor read both pages to the jury.
The first page states in pertinent part: "What's up T? [¶] . . . [¶] . . . Me nothin' I guess. This letter is going to be very short because my boy supposed to be lettin' me get a phone call . . . . [¶] . . . [¶] . . . But I started trial already. I go to court every day, not that it matter to you, but we barely about to start jury selection. But you remember that last letter that I sent to you with that message in it that I wanted you to send to ol' girl? Did you ever send it? Because that was really important. So I hope and pray that you did. It was in the very last letter that you got from me, I believe. But please tell me you did it because if that wasn't done, that might have sunk the ship. But look, I put another message in here, right? Tiara, please, and I put the emphasis on please, send this to ol' girl the day you get this letter and send it exactly how I wrote it. Remember the Lilly Ramirez profile that I had you make? Unless you ain't make it because that was with the last letter also. But send this message under that one, Lilly name. But send it the day you get this. But I wrote everything on the other page. But, yeah, this stuff is so scary. Man, I was sittin' in court looking at the Judge, and I was like, damn, I'm really fighting for my life."
The prosecutor also read the second page to the jury. It states: "What's up? Lizk said that they gone be trying to bring you to court within the next two weeks. He said so make sure you refuse to go. And if they say that you got to go, make sure you refuse to take the stand. He said don't think that you can get on the stand and try that I don't remember stuff. He said because the boy lawyer said that ain't gonna work. He said by doing that, you would actually be helping the DA. So flat out refuse to take the stand. You in jail, so they can't do nothin' to you at all. But he just wanted me to let you know that they will be trying to bring you soon. So be ready. He said because people -- people life's are at stake. So you know how the game go. But he said on some real nigga shit, like you and him talked about, don't be no coward for these white folks and get up there. And he said even though he don't see it happening, if they physically force you on the stand, just sit there and remain silent, no matter what they say or ask you. Don't say a single word except: I'm not testifying."
Roberson concedes that the August 2014 letter would have been relevant to show his intent to dissuade Gregory K. from testifying had the prosecutor "established[ed] a foundation that it was actually [Roberson] who wrote the letter." The prosecutor did so here.
"Authentication of a writing is required before it may be received in evidence." (Evid. Code, § 1401, subd. (a).) "Circumstantial evidence, content and location are all valid means of authentication." (People v. Gibson (2001) 90 Cal.App.4th 371, 383; see also Evid. Code, §§ 1410, 1421.)
The August 2014 letter was addressed to Roberson's girlfriend, Tiara K. The letter, which was intercepted on August 26, 2014, states, "I started trial already," and "we barely about to start jury selection." Roberson's trial began in August 2014, and jury voir dire began on August 26, 2014. The letter refers back to the February 2014 letter, which Roberson acknowledges he wrote. Only Roberson and the jail staff who read the February 2014 letter would know about that letter. Both the February 2014 and August 2014 letters refer to Tiara as "T." There is abundant evidence that Roberson wrote the August 2014 letter. Accordingly, his claim that the trial court erred in admitting its contents fails.
III
The Trial Court Properly Declined to Instruct the Jury on the Principles of Accomplice
Liability with Respect to Gregory K.
Roberson next contends that the trial court's refusal to instruct the jury on the principles of accomplice liability with respect to the prosecution's chief witness Gregory K. violated his rights to due process under the Fifth and Fourteenth Amendments to the United States Constitution. Henry joins in this argument. As we shall explain, the record is devoid of any evidence that would support a finding that Gregory K. was an accomplice to robbery or murder.
"Section 1111 provides that '[a] conviction can not be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.' The statute defines an accomplice as 'one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.' (§ 1111.) ' "To be so chargeable, the witness must be a principal under section 31. That section defines principals as '[a]ll persons concerned in the commission of a crime, whether . . . they directly commit the act constituting the offense, or aid and abet in its commission . . . .' (§ 31.) An aider and abettor is one who acts with both knowledge of the perpetrator's criminal purpose and the intent of encouraging or facilitating commission of the offense. Like a conspirator, an aider and abettor is guilty not only of the offense he intended to encourage or facilitate, but also of any reasonably foreseeable offense committed by the perpetrator he aids and abets." [Citation.] "Unless there can be no dispute concerning the evidence or the inferences to be drawn from the evidence, whether a witness is an accomplice is a question for the jury." ' " (People v. Sattiewhite (2014) 59 Cal. 4th 446, 472.)
We review the trial court's refusal to instruct the jury on the principles of accomplice liability with respect to Gregory K. de novo. (See People v. Waidla (2000) 22 Cal.4th 690, 733.)
Roberson asserts that the trial court had a duty to instruct the jury on accomplice liability with respect to Gregory K. because "a reasonable juror could conclude that [Gregory K.] connived with [Roberson] and Henry (or with Henry only) to facilitate an armed robbery of Lugo . . . ." We disagree.
Both Henry and Roberson testified at trial. Both denied being armed or taking anything from Lugo. Rather, Henry testified that he heard a shot, turned, and saw Roberson running to the car with the bag of marijuana. Roberson testified that Henry took the bag of marijuana following a dispute with Lugo and shot Lugo in the process. Neither Henry nor Roberson provided any testimony that suggested that Gregory K. was involved in either the robbery or the murder.
Roberson points to the following as evidence Gregory K. connived with Roberson and/or Henry to facilitate the robbery of Lugo: (1) Gregory K. arranged the "marijuana sale transaction" and did so because he expected to earn $100 to $200; (2) Gregory K. drove with Henry and Roberson to Gregory K.'s storage facility and to the park and therefore must have known that Henry or Roberson was armed; (3) Gregory K. "effectively act[ed] as an agent for [Roberson] and Henry" when he went to the van and spoke to Lugo and then relayed Lugo's "expectations for the marijuana sale transaction" to Roberson and Henry; and (4) Gregory K. evidenced a consciousness of guilt by initially "maintaining that he played no role in arranging the marijuana transaction." None of these facts, individually or collectively, would support a finding that Gregory K. committed or aided and abetted in the robbery or murder of Lugo. The evidence shows only that Gregory K. arranged a drug deal and hoped to make $100 to $200 in the process. Accordingly, the trial court properly refused to include Gregory K. in its accomplice instructions.
IV
The Trial Court Properly Instructed the Jury on Robbery and Felony Murder
Henry contends that the trial court prejudicially erred in instructing the jury in the language of CALCRIM No. 1603 because it allowed the jury to find that he was guilty of felony murder even if he did not aid and abet in the robbery until after Lugo was shot. Henry is mistaken.
In order to be guilty of felony murder, an accomplice must assist or encourage the commission of the underlying felony before the principal kills the victim. (People v. Pulido (1997) 15 Cal.4th 713, 726.) Thus, to be guilty of felony murder, Henry must have intended to commit, or aid and abet the felony robbery of Lugo before or at the time Lugo was shot. (People v. McDonald (2015) 238 Cal.App.4th 16, 22-23, 25-26 (McDonald).) As we shall explain, the jury was so instructed.
The jury was instructed on felony murder, actual killer, in the language of CALCRIM No. 540A in pertinent part as follows: "[T]he defendants are charged in Count One with murder under a theory of felony murder. [¶] To prove that a defendant is guilty of first degree murder under this theory, the People must prove that, one, the defendant committed a robbery of Colen Lugo; two, the defendant intended to commit a robbery of Colen Lugo; and, three, while committing the robbery a defendant caused the death of another person, namely, Colen Lugo. [¶] A person may be guilty of felony murder even if the killing was unintentional, accidental or negligent. [¶] To decide whether the defendant committed robbery, please refer to the separate instructions that I will give you on that crime. You must apply those instructions when you decide whether the people have proved first degree murder under a theory of felony murder. The defendant must have intended to commit the felony crime of robbery of Colen Lugo before or at the time that he caused the death." (Italics added.)
The jury also was instructed on felony murder, another person causes death, in the language of CALCRIM No. 540B as follows: "The defendant may also be guilty of murder under a theory of felony murder even if another person did the act that resulted in the death. I will call the other person the perpetrator. [¶] To prove that the defendant is guilty of first degree murder under this theory, the People must prove that, one, the defendant committed or aided and abetted the robbery of Colen Lugo; two, the defendant intended to commit or intended to aid and abet the perpetrator in committing the robbery of Colen Lugo; three, if the defendant did not personally commit a robbery, then a perpetrator whom the defendant was aiding and abetting personally committed the robbery of Colen Lugo; and, four, while committing the robbery, the perpetrator caused the death of another person, namely, Colen Lugo. [¶] A person may be guilty of felony murder even if the killing was unintentional, accidental, or negligent. [¶] To decide whether the defendant and the perpetrator committed robbery, please refer to the separate instructions that I will give you on that crime. To decide whether the defendant aided and abetted a crime, please refer to the separate instructions that I will give you on aiding and abetting. You must apply those instructions when you decide whether the People have proved first degree murder under a theory of felony murder. [¶] The defendant must have intended to commit or aid and abet the felony robbery of Colen Lugo before or at the time that he caused the death." (Italics added.)
The jury was also instructed on special circumstance murder committed during a robbery in the language of CALCRIM No. 703 in pertinent part as follows: "In order to prove this special circumstance for a defendant who is not the actual killer, but who is guilty of first degree murder as an aider and abettor, the People must prove either that the defendant intended to kill or the People must prove[] all of the following: One, the defendant's participation in the crime began before or during the killing; two, the defendant was a major participant in the crime; and three, when the defendant participated in the crime he acted with reckless indifference to human life." (Italics added.)
Notwithstanding the above instructions, Henry contends that CALCRIM No. 1603 allowed the jury to find him guilty of felony murder even if he did not aid and abet in the robbery until after Lugo was shot. The jury was instructed in the language of CALCRIM No. 1603 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 a perpetrator carried away the property to a place of temporary safety." (Italics added.)
Defendants were charged with aiding and abetting the robberies of Lugo and Gregory K. In People v. Cooper (1991) 53 Cal.3d 1158, 1170, our Supreme Court held that when a defendant is charged with aiding and abetting a robbery, the court has a sua sponte duty to instruct the jury that "the commission of the crime of robbery is not confined to a fixed place or a limited period of time and continues so long as the stolen property is being carried away to a place of temporary safety." Thus, the trial court was required to instruct the jury in the language of CALCRIM No. 1603. As Henry points out, the bench notes to CALCIM No. 1603 caution, "Do not give this instruction if the defendant is charged with felony murder." (Bench Notes to CALCRIM No. 1603 (2014) p. 1095.) Bench notes, however, do not have the force of law (McDonald, supra, 238 Cal.App.4th at p. 26), and no authority is cited in support of the note. In any event, we reject Henry's assertion that CALCRIM No. 1603 conflicts with the CALCRIM Nos. 540A and 540B as given in this case. CALCRIM Nos. 540A and 540B specifically pertain to felony murder and the jury was instructed consistent with those instructions that to be guilty of felony murder, "[t]he defendant must have intended to commit, or aid and abet the felony robbery of Colen Lugo before or at the time that he caused the death." (Italics added.) On the other hand, CALCRIM No. 1603 provides 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." CALCRIM No. 1603 does not address whether or under what circumstances a defendant could be guilty of felony murder.
In McDonald, the court held that the trial court erred in instructing the jury with CALCRIM No. 1603 and a truncated version of CALCRIM No. 540B because "[t]aken together, [those instructions] permitted defendant to be found guilty of felony murder even if he did not aid and abet the robbery until after commission of the act that caused [the victim's] death." (McDonald, supra, 238 Cal.App.4th at p. 27.) There, as in the present case, the trial court gave CALCRIM No. 1603 in conjunction with the instructions on robbery, and CALCRIM No. 540B in conjunction with the instructions on felony murder. (McDonald, at pp. 21-22.) Unlike the present case, however, the trial court omitted the paragraph that would have told jurors "[t]he defendant must have (intended to commit[,]/ [or] aid and abet[,]/ [or] been a member of a conspiracy to commit) the (felony/felonies) of __________ <insert felony or felonies from Pen . Code, § 189> before or at the time that (he/she) caused the death.]" (Id. at pp. 22-23.) In concluding that the trial court erred in instructing the jury, the court found that "the omitted paragraph of CALCRIM No. 540B . . . was a correct statement of the law and was factually applicable to the present case. Although the record does not show defendant objected to its omission, we believe the trial court should have included it on its own motion, with a slight modification so that the final clause referred to the time the perpetrator (rather than the defendant) caused death." (Id. at p. 25.)
Here, unlike McDonald, the jury was instructed on the timing of an aider and abettor's formation of intent vis-à-vis felony murder. While the trial court did not modify the instruction to refer to the time the perpetrator (rather than the defendant) caused death, the meaning of the instruction was clear -- to be guilty of felony murder, the defendant must have intended to commit or aid and abet in the felony robbery of Lugo before or at the time Lugo was shot. Accordingly, Henry's claim that the trial court erred in instructing the jury on the crime of felony murder fails.
V
This Case Must Be Remanded to Allow the Trial Court to Exercise Its Newly Granted
Discretion to Strike the Firearm Enhancements
Finally, defendants contend that under a recent change to section 12022.53, this case must be remanded so that the trial court can exercise its newly granted discretion to decide whether to strike the firearm enhancements imposed here. The People concede that such a remand is required, and we agree.
Defendants' sentences on counts one and three include sentence enhancements of 10 years under 12022.53, subdivision (b) for personally using a firearm in the commission of those counts. At the time of defendants' sentencing, the trial court had no power to strike the firearm enhancements. (Former § 12022.53, subd. (h) ["Notwithstanding Section 1385 or any other provision of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section."].) Under a recent amendment to section 12022.53, subdivision (h), however, which became effective January 1, 2018, trial courts have the power "in the interest of justice pursuant to Section 1385 and at the time of sentencing, [to] strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law."
Defendants contend this amendment applies to this case because the Legislature expressly provided for the retroactive application of the amendment by specifying the new rule " 'applies to "any resentencing that may occur . . . ." ' " They further contend, based on the rule in In re Estrada (1965) 63 Cal.2d 740, that the amendment applies to them because regardless of statutory intent, settled case law affords defendants in non-final cases the retroactive benefit of subsequent legislative ameliorations in punishment. Under Estrada, courts presume that absent evidence to the contrary, the Legislature intends an amendment reducing punishment under a criminal statute to apply retroactively to cases not yet final on appeal. (Id. at pp. 747-748; People v. Brown (2012) 54 Cal.4th 314, 324.) The Estrada rule has been applied not only to amendments reducing the penalty for a particular offense, but also to amendments giving the court the discretion to impose a lesser penalty. (People v. Francis (1969) 71 Cal.2d 70, 75.)
The People agree that because the amendment provides discretion to impose a lesser sentence, and because there is nothing in the amendment to suggest the Legislature intended it to apply prospectively only, the presumption that the amendment applies retroactively prevails. The People do not argue that remand in this instance would be futile (see People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896), but instead agree that here the case must be remanded to allow the trial court to exercise its newly granted discretion to decide whether to strike the firearm enhancements.
We agree with defendants and the People that remand is appropriate here.
DISPOSITION
The matter is remanded to allow the trial court to exercise its discretion to strike the firearm enhancements under section 12022.53, subdivision (h), and, if appropriate following the exercise of that discretion, to resentence defendants accordingly. The judgment is otherwise affirmed.
/s/_________
Blease, Acting P. J. We concur: /s/_________
Hull, J. /s/_________
Murray, J.