Opinion
A155771
04-08-2020
THE PEOPLE, Plaintiff and Respondent, v. DANNY SAKEEM HOGG, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. 16CR002432)
Danny Sakeem Hogg appeals from a conviction of first degree murder. He contends the trial court's failure to give a requested instruction on circumstantial evidence requires reversal of the conviction. We affirm.
BACKGROUND
Appellant shot and killed Hector Barrera Rodríguez on June 9, 2016. He was charged with murder (Pen. Code, § 187, subd. (a)), with allegations that he personally and intentionally discharged a firearm, causing great bodily injury and death (§§ 12022.7, subd. (a), 12022.53, subd. (d)), personally inflicted great bodily injury (§ 12022), personally and intentionally discharged a firearm (§ 12022.53, subd. (c)), and personally used a firearm (§§ 12022.5, subd. (a), 12022.53, subd. (b), 12022.53, subd. (g).) At trial, the prosecutor specified that he was relying upon two theories of murder: first degree robbery murder and second degree murder with malice aforethought.
Further statutory references will be to the Penal Code unless otherwise specified.
Feliciano Ramirez testified that on the evening of June 9, 2016, he was sitting in his car with Rodriguez and Julio Carrillo, parked near a street corner in Oakland, eating food from Taco Bell, and drinking beer. Ramirez was in the driver's seat. Rodriquez was in the front passenger seat, with the window rolled down and his right elbow slightly outside, holding a beer in his left hand. He was wearing a gold chain necklace with a medallion that he wore every day. Carrillo was in the backseat, behind Rodriguez. When they parked, about 9:00 or 9:30 p.m., there were no people in the area.
Ramirez noticed two men walk by on the sidewalk to the right of the car, go into the liquor store at the corner, then walk back past the car again. No one in the car said anything to the men as they passed. Five to eight seconds later, Ramirez sensed Rodriguez move and at the same moment heard a gunshot, looked toward Rodriguez, and saw a flash. Rodriguez's head was "downwards" and he was bleeding; Ramirez touched his chest and said his name, but Rodriguez did not reply. Thinking the people who shot him would come back, Ramirez turned on the car and drove to Rodriguez's house, which was nearby. The police were called, arrived in about five minutes, and tried to assist Rodriguez. Ramirez testified that he did not hear any verbal interaction between Rodriguez and the person at the car window, and did not see liquid thrown at the man outside. Asked whether he told a police officer on the night of the shooting that he noticed Rodriguez move his hands "like he was trying to defend himself from something right before the shot," Ramirez said "I may have said that, but I was in shock that night."
Carrillo also noticed two men walk past the car from rear to front and a minute later from front to rear. No one in the car said anything to them. Moments after they passed the car, one of the men came back and pointed a gun at Rodriguez, holding it with both hands inside the car and saying, "hey." Rodriguez "put his hands up," "trying to fight, like, to take away the gun." Carrillo did not remember whether Rodriguez grabbed either the gun or the man's arms. He did not see the man take either hand off the gun to reach for anything. Carrillo heard a gunshot and saw "a glimpse of fire," then saw the person run behind the car. Ramirez drove the car away, then stopped and Carrillo "went to move" Rodriguez, touching his upper shoulder, but Rodriguez did not respond; they got back in the car and drove to Rodriguez's home, where the police arrived and took Rodriguez out of the car.
Ramirez, Carrillo, and Rodriguez had parked near the apartment on Short Street where appellant was living with his girlfriend, Deja Stokes, their newborn baby, Deja's father and 18-year-old sister Coleman, and 16-year-old Benson, who had been "adopted" into the family. Benson was not close with appellant; they had a "hi-and-bye" relationship. Benson testified that around 10:00 p.m. on June 9, he and appellant left the apartment and walked to the Four Star Market & Liquor to buy "Swishers" to "roll weed." Appellant was wearing a "breathing mask" that covered his nose and mouth, and blue latex gloves he used when handling his newborn baby. Benson noticed the parked car they walked by, but they had no interaction with the men sitting in it. Inside the store, appellant got the Swishers and Benson joked briefly with the clerk, who said "something about [appellant's] mask. It looked like he about to rob us or something like that." They walked back the way they had come, passing the parked car again. Again, they had no interaction with the occupants of the car; no one made any threats or displayed any weapons. After they passed the car, appellant turned around and walked back, going "right up" to the front passenger side window. The person in the front passenger seat threw some alcohol at appellant. Appellant pulled a gun from his shorts, pointed it inside the passenger side at the passenger, and Benson heard a gunshot and saw a flash.
Benson had no idea why appellant shot the person and had not known appellant had a gun with him. Benson ran home with appellant behind him; as they were running, appellant said "he felt like he messed up" and "[h]e was just trying to get money for his daughter." It took about two minutes to run to the house, and Benson was not out of breath or sweaty when he got there. He and appellant both went inside, and Benson went to Coleman's room. In shock and scared, he told her what had happened, and did not have any further interaction with appellant. That night or the next, he and Coleman left and went to stay with Coleman's "other sister" in West Oakland because Benson was nervous and did not want to be around appellant.
Benson had testified at the preliminary hearing that he did not hear appellant say anything while they were running, but after being shown a transcript of his police interview remembered that appellant said he was "trying to get some money."
Coleman testified that Benson was "panicked," "out of breath," "tired," and "scared" when he came into her room: "His eyes were real wide, like he had seen a ghost, maybe." He told her appellant "just shot him" and, when she tried to get more of the story, said that as he and appellant were walking together, appellant turned back and approached a car, there was "a struggle," "[s]omething was tossed on [appellant], and as a result, [appellant] shot into the car." Asked if Benson told her why appellant shot the person, Coleman said he told her "it was 'a quick way to get some money.' " Benson told her that he knew appellant was going to commit a robbery when appellant turned around, although appellant did not say so. Coleman testified she did not leave the house that night and did not remember whether she left the next night.
Responding police officers moved Rodriguez out of the car and attempted to provide medical assistance until the paramedics arrived. One of the officers, canvassing the area for possible witnesses or evidence, found a pair of blue latex gloves on the sidewalk on Short Street. Rodriguez died at the scene.
Surveillance video showed appellant and Benson walking past Ramirez's car from the rear, then passing the car again from the front; appellant walking back to the car; appellant and Benson running away; and the car driving away. The video did not show the shooting because the car was obstructed by tree foliage.
Photographs taken by a technician in the Coroner's Division of the Alameda County Sheriff's Office took photographs about 1:40 a.m. on June 10 that included several showing a bloody red pocket knife and blood on the right front passenger seat of Ramirez's car. Ramirez identified the knife as a folding pocket knife Rodriguez regularly carried in his pocket and used for sharpening pencils at work. Ramirez did not see him take the knife out during the time they were in the car that night, and Carrillo did not see any weapons in the car.
Another technician x-rayed Rodriguez's body on the morning of June 10. On the x-rays, she noticed a necklace that she had not been able to see on the "outside" of his body. As she removed his clothing in preparation for autopsy, the broken chain necklace fell out from between the two shirts Rodriguez was wearing. She later found the medallion on the table when she moved the body. The forensic pathologist who conducted the autopsy concluded the cause of death was a gunshot to the face; "stippling" or powder burns on the face indicated the gun had been fired from a distance of three to five inches. The entry wound was on Rodriguez's right upper lip and the bullet's trajectory was from right to left and downward. There were no other injuries, and no stippling, to any other part of Rodriguez's body.
On June 14, an Oakland Police Department evidence technician processed Ramirez's car and found a link from a gold chain on the front passenger seat, in the crease where the back of the seat meets the seat bottom. She did not find any guns, knives, or other weapons in the car.
Benson was arrested about three weeks after the incident. Initially, he was not truthful with the police: He said he had just met the shooter at the store. Benson explained that he lied because he was afraid of the consequences of being a "snitch"—"people don't really associate with you, and you can get hurt"—and he did not want to implicate appellant. The police officer yelled at him and threw his statement against the wall, telling him she had already talked with someone else and at some point saying this was Coleman. Benson admitted having lied and told the police he had seen appellant shoot Rodriguez. Benson testified that at the time of this interview, he was not afraid of going to jail; he acknowledged having said at the preliminary hearing that he was afraid of going to jail when he spoke with the police. Both Benson and the police officer testified that Benson was not threatened or promised anything to get him to say he saw appellant do anything. Benson was released after the interview because the Alameda County District Attorney's Office determined there was not enough to hold him for the charges on the arrest warrant.
Appellant was arrested on August 3, 2016. On August 7 and August 8, 2016, appellant made phone calls from the Santa Rita Jail to his girlfriend using different inmates' personal identification numbers. In these calls, appellant told Stokes to try to get his "discovery package" for him to "see if somebody is . . . informing on me"; asked, " 'Do you think B is going to stand on me'"; and asked her "to just tell anybody and everybody to come to court" because "it'll make it harder on niggas." In the 20 calls from appellant to Stokes listened to by the investigating detective, appellant never said he shot Rodriguez in self-defense or by accident.
A sheriff's technician explained that each inmate is assigned a personal identification number (PIN) to use for phone calls once the inmate is in the housing unit. Each inmate also has a personal file number (PFN), used by the jail for identification.
Benson testified that prior to the preliminary hearing, a girl he did not know brought him some letters in appellant's handwriting telling him "not to be a snitch," then took the letters back. Benson did not tell the district attorney's office about the letters until the week of trial, about a year after the preliminary hearing. He testified that he became afraid during his preliminary hearing testimony because he was "kind of alone here" and appellant was "mouthing" to him, "[a] couple of bitches."
Defense
Appellant was the only witness for the defense. He graduated from high school in March 2016, and his daughter was born on June 7, 2016; June 9 was their first day home from the hospital. Shortly before 10:00 p.m., he rolled a "blunt," then left the house with Benson to get Swishers. He was wearing shorts, a sweatshirt, a beanie, a scarf, and blue latex gloves. He testified that he was wearing the scarf because it was cold that night, and the gloves because he had just changed the baby. The nurse at the hospital had given him a box of gloves and told him to use them if he was not able to wash his hands. Appellant did not know why he did not take the gloves off before leaving the house—"I just didn't think about it to take them off." Appellant was carrying a gun he had bought on the street about five days before, because "[i]t is dangerous. I am from Oakland."
Appellant did not notice the parked car with people in it on the way to the store but on the way back he did, and he approached to ask for a lighter to smoke the blunt he had rolled earlier. He had not asked for matches at the store because he thought Benson had a lighter, and he had asked Benson for the lighter right before he approached the car. They were only five minutes from home, but "the plan" was to start smoking the blunt he had brought on the way.
As he bent down to get "eye level with the car," before he could say anything, appellant "got splashed" with beer in his face, mouth, nose, and eyes. He shook his head to clear his eyes and saw the passenger "digging" on his left side, then saw something silver in his hand that he thought was a gun. Scared and in shock at the sudden and unexpected attack, appellant took his gun out of his right shirt pocket "to let him know I had gun, to let him know to stop." The man grabbed appellant's gun with both hands, one on top of appellant's hand and the other on top of the gun. The man "pulled" the gun and appellant "pulled it back"; appellant's finger was on the trigger, and the gun went off. Appellant ran because he was scared. Benson was already running; appellant was behind him and did not say anything out loud while he ran. Appellant stopped at the top of Short Street, unable to run farther, crouched down and "gather[ed]" himself, took off his gloves and put them on the sidewalk, then walked home. He denied taking the gloves off to get rid of evidence.
On cross-examination, appellant said the gun was in his right shorts pocket.
Appellant acknowledged that he carried the gun for protection and would not "mess around with people I didn't know," anyone might have a gun, the people in the car were strangers and he could not see into the car. Asked why he got so close to the car instead of asking for a light from a distance, appellant said, "I guess I just made a mistake."
Appellant found out when he was arrested that the man in the car was killed. He testified that he "felt bad, but at the same time, I knew that—I knew that I was protecting myself." When he left the house that night, he did not intend to rob or hurt anyone, and he did not shoot the man on purpose. He thought the man had a firearm and "felt like I was saving myself."
Appellant acknowledged that he did not have a job at the time of the shooting. He testified, however, that his girlfriend had received close to $30,000 for a Nike commercial and they had a lot of that saved, as well as savings from the baby shower and his graduation.
Questioned about his calls from jail to his girlfriend, appellant said he always used other inmates' PINs because he forgot his own. When he asked his girlfriend if she thought "B is going to stand on me," he meant did she think Benson was going to "get on the stand on me." He wanted her to bring everybody to court "for support." Asked if he was "trying to make [Benson] not testify," he said, "No. It wasn't that. I mean, I didn't want him to testify, but it is not like I was trying to not make him testify. It is just, I didn't want him to get up here and lie on me." Appellant testified, "I wanted him, if he was going to testify, to testify to the truth of what he knew." He asked about his discovery in the second phone call because other inmates had told him, " 'Get your discovery from your lawyer to find out who informed.' I was trying to get discovery so I could see who was informing on me and other stuff."
Appellant testified, "[w]hen you first come, they don't give you a number." "They make it for you depending on what your PFN number is" and his PFN was made for him but when they told him to make a new four last numbers for the PIN he "put in anything" and forgot the numbers.
Appellant was questioned about a letter, dated January 20, 2018, in which he wrote, " 'Shit, imagine if he was in my shoes. Under maximum security, yellow for a punk ass body." Appellant acknowledged "punk ass" was a reference to Rodriguez but said he "wasn't calling him a punk ass body. I wasn't saying he was a punk ass. I mean, the body is him, but the punk, it is really just lingo." Appellant said the prosecutor was trying to make it sound like he was trying to rob someone but "that's not what happened."
The jury found appellant guilty of first degree robbery murder and found true the allegations that he personally used a firearm, but found not true the allegations that appellant personally and intentionally discharged a firearm. Appellant was sentenced to a prison term of 35 years to life: 25 years to life for the murder, plus a consecutive 10 years for the section 12022.53, subdivision (b), enhancement, with a 10-year term for the section 12022.53, subdivision (a), enhancement stayed.
DISCUSSION
Defense counsel at trial requested two jury instructions on circumstantial evidence, CALCRIM No. 224, pertaining to circumstantial evidence used to prove guilt, and CALCRIM No. 225, concerning circumstantial evidence used to prove intent or mental state. The prosecutor's requested instructions included CALCRIM No. 225 but not CALCRIM No. 224. The court, viewing the two instructions as mutually exclusive, suggested that because appellant admitted shooting Rodriguez, the primary issue for which circumstantial evidence was being used was intent, making CALCRIM No. 225 the more appropriate instruction. Defense counsel responded, "That makes sense to me. I'm fine with 225 in lieu of 224."
Both instructions inform the jury in identical language: "Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt."
CALCRIM No. 224 then continues: "Also, before you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable."
CALCRIM No. 225 informs the jury that the People are required to prove the defendant acted with a particular intent or mental state and that the intent or mental state may be proved by circumstantial evidence, and then uses language identical to CALCRIM No. 224 except that it refers to "intent or mental state" instead of "guilt":
"Also, before you may rely on circumstantial evidence to conclude that the defendant had the required intent or mental state, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant had the required intent or mental state. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions supports a finding that the defendant did have the required intent or mental state and another reasonable conclusion supports a finding that the defendant did not, you must conclude that the required intent or mental state was not proved by the circumstantial evidence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable." (CALCRIM No. 225.)
Thus, both instructions inform the jury that before relying on circumstantial evidence to prove an issue (guilt in CALCRIM No. 224, intent/mental state in CALCRIM No. 225) it must "be convinced that the only reasonable conclusion supported by the circumstantial evidence" establishes the issue, and if two or more reasonable conclusions from the circumstantial evidence can be drawn, it must accept the one that favors the defendant ("points to innocence" in CALCRIM No. 224, "required intent or mental state was not proved") in CALCRIM No. 225.
"The trial court is required to give [CALCRIM No. 224] on its own motion when the prosecution relies substantially on circumstantial evidence to prove guilt." (People v. McKinnon (2011) 52 Cal.4th 610, 676 [discussing corresponding instruction CALJIC No. 2.01].) "CALCRIM No. 225 is to be used in place of CALCRIM No. 224 'when the defendant's specific intent or mental state is the only element of the offense that rests substantially or entirely on circumstantial evidence.' (People v. Honig (1996) 48 Cal.App.4th 289, 341,[discussing CALJIC No. 2.02]; see Bench Notes to CALCRIM Nos. 224 & 225.) CALCRIM Nos. 224 and 225 provide essentially the same information on how the jury should consider circumstantial evidence, but CALCRIM No. 224 is more inclusive. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1142.)" (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1171-1172.) "The only difference between the two instructions is that [CALCRIM No. 225] focuses the jury's attention on the sufficiency of the circumstantial evidence to prove specific intent or a mental state, while [CALCRIM No. 224] broadly covers all circumstantial evidence." (People v. Burch (2007) 148 Cal.App.4th 862, 872 [discussing CALJIC Nos. 2.02 and 2.01].)
Acknowledging this sua sponte duty to give the appropriate instruction on circumstantial evidence, respondent correctly notes that appellant's alternative ineffective assistance of counsel argument is moot.
Appellant maintains the trial court erred in giving only CALCRIM No. 225 because circumstantial evidence was used to prove issues other than intent or mental state—specifically, that appellant killed Rodriguez during a " 'botched chain-snatching.' " Appellant points out there was no direct evidence he grabbed or tried to take Rodriguez's necklace, but the prosecutor urged the jury to view the broken necklace found on Rodriguez's body and chain links found in the car as circumstantial evidence that appellant tried to pull off the necklace. This, appellant maintains, was evidence of his conduct, not his intent, requiring instruction with the more inclusive CALCRIM No. 224. Appellant further points to the prosecutor's argument that "the absence of stippling on the decedent's hands and the shot trajectory did not match someone trying to defend themselves from a gun pointed at them, pointing it downwards towards their face." Again, appellant argues that this circumstantial evidence went to disputed conduct rather than his intent.
The prosecutor argued that the trajectory of the bullet was consistent with appellant standing at the car door, shooting downward at a seated person, and that it would make no sense for a person trying to defend himself from a gun pointed at him to pull the gun toward his face, as appellant maintained, rather than trying to push it away.
According to appellant, CALCRIM No. 225 would have been the appropriate instruction if the parties had agreed appellant tried to grab the necklace but disagreed about his intent in doing so. He cites People v. Malbrough (1961) 55 Cal.2d 249, which held an instruction on circumstantial evidence was not necessary because the defendant's guilt of grand theft was primarily established by eyewitness's descriptions of him restraining the victim while a codefendant reached into the victim's pocket and then his own, in which a wad of bills was later found. (People v. Wiley (1976) 18 Cal.3d 162, 175 [describing Malbrough].) Here, appellant argues, the parties disagreed about appellant's conduct— "whether he had grabbed at the necklace and whether he had shot directly into the decedent's face."
CALCRIM No. 225 is appropriate where circumstantial evidence is used to prove intent but the defendant's conduct is proved by direct evidence. (People v. Turner (1990) 50 Cal.3d 668, 682, 693 [no error in instructing on circumstantial evidence used to prove intent rather than more general circumstantial evidence instruction where defendant convicted of murder and robbery admitted killing victim and taking some of his property but claimed he formed intent to rob only after killing provoked by victim's "sudden, violent sexual advances"]; People v. Burch, supra, 148 Cal.App.4th at p. 872 [instruction on circumstantial evidence used to prove intent should have been given where direct evidence proved defendant convicted of forgery was in possession of bills purporting to be real and circumstantial evidence used only to prove intent to defraud]; People v. Phea (2018) 29 Cal.App. 5th 583, 609, fn. 20 [commenting on issue not raised by defendant convicted of multiple sex offenses, court questioned why jury was instructed with CALCRIM No. 224 where conduct was proven by direct evidence and circumstantial evidence of propensity was corroborative, but noted CALCRIM No. 225 would have been appropriate as propensity evidence "had some bearing on the requisite intent and/or mental state"].)
Respondent argues that is the case here. Citing People v. Bonner (2000) 80 Cal.App.4th 759, 765 (Bonner), respondent maintains that the actus reus—the "act requirement" (People v. Corpening (2016) 2 Cal.5th 307, 312)—for attempted robbery was proven by direct evidence that appellant pointed a gun at Rodriguez, with circumstantial evidence used only to prove appellant did so with the intent to commit robbery rather than to defend himself from a perceived attack. Bonner held that the defendant was guilty of attempted robbery as soon as he "performed acts placing his plan in operation"—there, arming himself and hiding in a garage where he expected his intended victims to appear. (Bonner, at p. 765.)
Respondent cites Bonner, supra, 80 Cal.App.4th 759 as an example of the actus reus for attempted robbery being established by the defendant "entering [a] garage armed with a gun." The issue in that case was whether the defendant could be convicted of two counts of attempted robbery or only one. Having told his brother he intended to rob the manager and assistant manager of a hotel he had worked at when they made the weekly bank deposits, the armed defendant was found by someone else while waiting in the hotel garage. The defendant argued he could not be convicted of more than one count of attempted robbery because, since he was interrupted, it was impossible to know how many people he would have robbed. The court disagreed: "Appellant was guilty of attempted robbery at the moment his acts in the furtherance of his intent went beyond mere preparation, i.e., when appellant performed acts placing his plan in operation. [¶] It is clear at the moment appellant entered the garage, he intended to rob both the manager and assistant manager. Any later event that interrupted those crimes was irrelevant to appellant's liability for two counts of attempted robbery. . . . [¶] . . . . Appellant did not merely prepare to rob the two, he engaged in acts that would ordinarily result in the commission of the crime but for an interruption." (Id. at p. 765.)
Appellant challenges respondent's characterization of the issue, arguing that the concept of actus reus has nothing to do with the trial court's duty to instruct with CALCRIM No. 224. Instead, appellant focusses on the elements of the offense, arguing that a court may substitute CALCRIM No. 225 only "when the defendant's specific intent or mental state is the only element of the offense that rests substantially or entirely on circumstantial evidence." (People v. Honig, supra, 48 Cal.App.4th at p. 341.)
Here, the distinction does not yield a different result. The jury was instructed that in order to find appellant guilty of first degree felony murder, it had to find that appellant "committed or attempted to commit robbery," "intended to commit robbery," and "while committing or attempting to commit robbery, . . . caused the death of another person." "Attempted robbery requires the 'specific intent to commit robbery and . . . a direct but ineffectual act toward the commission of the crime.' (People v. Lindberg (2008) 45 Cal.4th 1, 27.)" (People v. Sánchez (2016) 63 Cal.4th 411, 470.) Direct evidence— eyewitness testimony and appellant's admission—proved the last of the elements of felony murder, that appellant shot and killed Rodriguez. Direct evidence also established the direct act required for proof of attempted robbery: Witnesses saw appellant, who was wearing gloves and a mask or scarf that partially covered his face, point the gun at Rodriguez, and Benson testified that appellant said afterward he was just trying to get money. (Bonner, supra, 80 Cal.App.4th at p. 763, fn. 3 [sufficient evidence of attempted robbery where defendant made detailed preparations, went to scene armed, put on a face mask, waited in hiding for victims, and left when discovered]; People v. Vizcarra (1980) 110 Cal.App.3d 858, 861-863 [sufficient evidence of attempted robbery where defendant was near entrance to liquor store with rifle under poncho and left when approached].) " 'The crime of attempted robbery requires neither the commission of an element of robbery nor the completion of a theft or assault.' ([Lindberg,] at p. 28.) 'The act required must be more than mere preparation, it must show that the perpetrator is putting his or her plan into action. That act need not, however, be the last proximate or ultimate step toward commission of the crime.' ([Bonner, at p.] 764.)" (Sánchez, at p. 470.)
What remained to be established was appellant's intent in pointing the gun at Rodriguez. The prosecution used circumstantial evidence to prove appellant intended to commit robbery and to disprove appellant's claim that he acted in self-defense. In addition to the gloves and mask appellant was wearing, and evidence of attempts to dissuade Benson from testifying that the prosecutor argued showed consciousness of guilt, the circumstantial evidence included the broken necklace found on Rodriguez's body, the chain link found in the car, the lack of stippling on the victim's hands, and the trajectory of the bullet. Appellant characterizes these items as evidence of his actions, used to prove he took "actions that constituted robbery." But, as just explained, the prosecution did not have to prove appellant committed robbery, only that he attempted to do so. The evidence appellant views as showing his conduct was used by the prosecution to show that appellant intended to commit robbery when he pointed his gun at Rodriguez.
We find no error in the court's decision to instruct the jury pursuant to CALCRIM No. 225.
DISPOSITION
The judgment is affirmed.
/s/_________
Kline, P.J. We concur: /s/_________
Richman, J. /s/_________
Miller, J.