Opinion
F070008
08-30-2017
THE PEOPLE, Plaintiff and Respondent, v. CALVIN DEPRESE PACKARD et al., Defendants and Appellants.
Diane Nichols, under appointment by the Court of Appeal, for Defendant and Appellant Calvin Deprese Packard. Han N. Tran, under appointment by the Court of Appeal, for Defendant and Appellant Corderick Dewayne Gage. Laura P. Gordon, under appointment by the Court of Appeal, for Defendant and Appellant Clifton DeWayne Thomas, Jr.. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BF142035A-C)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Brian M. McNamara, Judge. Diane Nichols, under appointment by the Court of Appeal, for Defendant and Appellant Calvin Deprese Packard. Han N. Tran, under appointment by the Court of Appeal, for Defendant and Appellant Corderick Dewayne Gage. Laura P. Gordon, under appointment by the Court of Appeal, for Defendant and Appellant Clifton DeWayne Thomas, Jr.. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Defendants Calvin Deprese Packard, Corderick Dewayne Gage, and Clifton DeWayne Thomas, Jr., were convicted, inter alia, of three counts of robbery of people inside the American Green Farmers marijuana dispensary and two counts of assault with a firearm. Packard, who was the getaway driver, contends the trial court erred in failing sua sponte to instruct the jury to appraise a codefendant's alibi defense with caution. Packard argues there was insufficient evidence he delayed an officer prior to his arrest. Gage contends the judge demonstrated bias against his counsel during voir dire, and his trial counsel was ineffective for failing to obtain admissible phone records used as part of his alibi defense. Defendants argue there was not substantial evidence Shanta Jones was robbed because she was not near the stolen property and had no control over it. Packard and Thomas contend, and the People concede, the arming enhancements (Pen. Code, § 12022, subd. (a)(1)) found true on counts 5 and 6 (alleging assault with a firearm) must be stricken because being armed with a firearm is an element of section 245, subdivision (a)(2). With the exception of the last issue, we find no error and affirm the judgments.
Unless otherwise designated, all statutory references are to the Penal Code.
CONVICTIONS AND SENTENCES
All three defendants were convicted of three counts of robbery (§ 212.5, subd. (c); counts 1, 2, & 3) and assault with a firearm (§ 245, subd. (a)(2); counts 5 & 6). At the close of the People's case, the trial court granted Gage's motion to dismiss the allegation Gage attempted to murder Darin Phillips, pursuant to section 1118.1 (§§ 664, 187, subd. (a); count 4). Gage and Thomas were acquitted of the substantive offense of participation in a criminal street gang (§ 186.22, subd. (a); count 7) and enhancements alleged in counts 1 through 6 that they committed those offenses for the benefit of a criminal street gang (§ 186.22, subd. (b)). Packard was found guilty of possession of a firearm by a felon (§ 29800, subd. (a)(1); count 8) and misdemeanor delay of a peace officer (§ 148, subd. (a)(1); count 9).
Prior to jury deliberations, Packard stipulated he had a prior felony conviction for purposes of section 29800, subdivision (a).
The jury found true allegations Packard and Thomas committed counts 1 through 6 while being armed with a firearm (§ 12022, subd. (a)(1)) and Gage committed counts 5 and 6 while personally using a firearm (§ 12022.5, subd. (a)). At the close of the People's case, the trial court dismissed firearm enhancement allegations (§ 12022.53, subd. (c)) alleged against Thomas. The jury found not true allegations Gage personally discharged a firearm (§ 12022.53, subd. (c)) during the commission of each robbery. In a bifurcated proceeding, the trial court found true an allegation Gage had a prior serious felony conviction within the meaning of the prior serious felony conviction enhancement (§ 667, subd. (a)) and the three strikes law (§ 667, subd. (e)). The court found true a prior prison term enhancement alleged against Packard.
Packard was sentenced to a prison term of three years on count 1 and to consecutive terms of one year on counts 2 and 3. Packard was sentenced to consecutive terms for being armed with a firearm for each robbery conviction: one year for count 1 and four months each for counts 2 and 3. The court imposed a consecutive term of one year for Packard's prior prison term enhancement. The two assault with a firearm convictions (counts 5 & 6) and the felon in possession of a firearm conviction (count 8) were stayed pursuant to section 654. The court also stayed the firearm enhancements (§ 12022, subd. (a)(1)) alleged as to counts 5 and 6 pursuant to section 654. Packard's total sentence is seven years eight months.
The trial court denied Gage's request to strike his prior serious felony conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, as well as his request to strike the gun use enhancements (§ 12022.5, subd. (a)). The court sentenced Gage to the upper term for assault with a firearm on count 5, four years, doubled pursuant to the three strikes law. The court imposed consecutive terms for the enhancement of 10 years on count 5 for the firearm enhancement (§ 12022.5, subd. (a)) and five years for the prior serious felony conviction enhancement. The court imposed a consecutive term of two years for robbery on count 3. Gage was sentenced to a concurrent term of two years for assault with a firearm alleged in count 6, and the gun use enhancement of three years four months on that count was also ordered to be served concurrently. The robbery convictions in counts 1 and 2 were stayed pursuant to section 654. Gage's total prison term is 25 years.
The court sentenced Thomas in an unrelated robbery action to six years, based on four robbery convictions plus a consecutive term of four years for a gun use enhancement. In the instant action, the court sentenced Thomas to consecutive terms to this other sentence of one year on each robbery count plus consecutive terms of four months on each robbery count for the gun use enhancements. The court stayed Thomas's sentences on each assault with a firearm count (counts 5 & 6) and the gun use enhancements alleged as to those counts pursuant to section 654. Thomas's total prison term for both cases is 14 years.
FACTS
Robbery of Dispensary
Darin Phillips was working at American Green Farmers, a medical marijuana dispensary in Bakersfield, about 3:00 p.m. on May 11, 2012. Owner Kevin Moats and receptionist Shanta Jones were working at the dispensary with Phillips. From a front door, patients entered a reception room with a check-in counter that Jones sat behind. Jones greeted patients, verified their paperwork and checked them in, and enrolled new patients. To the left of the reception room was the dispensary, also known as the bud room, with a door to the street that was always locked.
Jones heard a knock at the door, and when she opened it she saw two African-American men who appeared to be in their 20's. One of the men had a darker complexion and a tattoo on his neck. When Jones asked if they were new patients, the man with the darker complexion did not respond but ran into Jones and knocked her backward onto the floor. Jones felt blurry or dazed when she hit the ground and started screaming.
Phillips heard Jones scream and sounds of commotion from the room adjacent to the bud room. When he entered the bud room, Phillips saw one of the two men hitting Moats over the head. Moats was on his knees with his hands balled into fists. Phillips punched Moat's assailant on the left side of the man's face. The man spun around and placed a silver handgun to Phillip's head. As Phillips grabbed the man's right arm and pushed the gun to the side, the gun fired a round next to Phillips's head.
Jones heard two or three gunshots from where she was lying on the ground. When Jones noticed no one was around her, she ran out the door and down the street where she borrowed the cell phone of a passerby to call 911.
Phillips and the armed assailant fell to the ground. The assailant had his knee on Phillips's chest. Phillips locked his arms so the assailant could not put the gun back in his face. Moats came to Phillips's assistance, and both struggled to get the gun away from the assailant. The assailant yelled, "'I got two people in here.'" A second assailant, who was a little bigger than the first, came into the room carrying a larger handgun and pointed it at the heads of Moats and Phillips. The two assailants kicked and stomped Moats and Phillips until they told the assailants to take what they wanted. The second assailant covered his face with his T-shirt and told Phillips not to look at him.
The assailants asked where the marijuana was. Phillips pointed to where it was in the room. The assailants took a large travel duffle bag from the store that already contained Ziploc bags of marijuana for restocking. Phillips could hear the second assailant with the larger gun taking glass jars of marijuana from the bud room. The first assailant demanded to know the location of the money. He was directed to a shelf with Tupperware containers of cash; the assailants took the containers, which had between $500 and $700. The first assailant seemed excited and said, "'I can't believe you made me shoot my gun.'" Both assailants were wearing blue surgical-type gloves.
The assailants asked Phillips and Moats about the safe. Phillips told them it was down the hall in the kitchen area and offered to open it for the assailants, but they would not let Phillips and Moats get up. Phillips gave them the code to open the safe, which worked on a digital keypad, but he did not tell them they had to push "Start" on the keypad before entering the numeric code. Phillips said it seemed there were multiple unsuccessful attempts to open the safe.
The assailants returned to the victims, demanding the video recording tapes from the camera surveillance system. Phillips told them there were no tapes because the system was digital, so one of the assailants slammed the system on the ground four or five inches from Phillips's face. After the assailants fled through different exits, Phillips found a patient on the floor of the reception area who had been duct-taped and hog-tied with electrical cord. There were bullet holes in the wall and in the ceiling of the room where Phillips and the assailant struggled over the gun.
Patient Derrick Hudson was about to enter the dispensary when he saw a young African-American man with a dark complexion running out the front door. The young man had a blue or black scarf or do-rag on his head. Hudson saw the man for three to four seconds but was not wearing his glasses at that time, though he was wearing them during his testimony.
Immediate Post-robbery Investigation
Detectives William Hughes and Dennis Murphy responded in an unmarked gold Ford Crown Victoria. Enroute, the communications center broadcast information describing two Black robbery suspects. Hughes took Chester Avenue and turned onto 5th Street with emergency lights activated. He noticed three Black males inside a late model, four-door black Toyota Camry waiting behind two vehicles at a stop sign.
As Hughes passed the Camry, the driver looked at Hughes and slid back behind the car's B pillar. The passengers also slumped away from view. Hughes made a U-turn and followed several cars behind the Camry. It soon made a sweeping right-hand turn onto 8th Street, failing to stop for the red light. The Camry rapidly accelerated eastbound until it made a turn onto L Street, stopping in the front yard of a residence on the 700 block of L Street. Three Black males exited the car, leaving the doors open.
As Hughes got out of his car, he looked directly at the driver of the Camry, whom he identified as Packard. The detective could smell a strong odor of fresh marijuana emanating from the car. Bakersfield police officer Jeff Martin and his canine partner Titan arrived at the scene. Titan and Martin came to a carport where a gray SUV was parked.
Packard was hiding underneath the SUV. Martin instructed him twice to come out with his hands up or he would send his dog in. Another officer also gave the same two commands for Packard to come out. After Packard ignored Officer Martin's commands for him to crawl out, the officer gave Titan a command to engage. Titan went under the SUV and bit Packard on his right biceps. Titan pulled Packard out as Packard tried to pull himself back under the SUV. Titan followed Martin's command to release Packard, who was then handcuffed and arrested.
Detective Nathan Anderberg found a pair of clean white cotton gloves behind a piece of siding on the south side of the residence, about 50 feet away from where Packard was detained. Officer Isaac Aleman discovered a black Samsung cell phone near where Packard was detained. The call log on the phone had been deleted. Detective Brent Stratton obtained the number for the Samsung phone from the service carrier, MetroPCS, and Packard confirmed it was his cell phone number.
Aleman assisted with serving a search warrant at Packard's residence on West Drive. He found items of mail addressed to Packard, a black leather holster for a firearm, and men's and women's clothing and shoes.
Crime scene technician Jeffery Cecil found a .25-caliber casing in the back employee room of the dispensary. There was duct tape on the floor of the back hallway of the business.
Searching the car, Cecil located an Interarms nine-millimeter semiautomatic firearm loaded with seven .380-caliber bullets on the front passenger floorboard of the Camry. There was a gray and red Chicago Bulls hat on the front passenger seat. Cecil determined the marijuana in the various jars totaled 316 grams.
A duffel bag found in the rear passenger's side of the Camry contained multiple jars of different brands of marijuana with a total of 1,030 grams of marijuana. Cecil found a red ball cap with an "A" and a halo symbol on the rear seat. Inside a Spiderman backpack on the rear driver's side floorboard was a white cotton glove, a package for gloves, and a wrapper for duct tape. Cecil located a second glove package wrapper in the car. There was a MetroPCS cell phone in the rear passenger's side door panel.
The cell phone rang several times during the search, and Stratton answered it when it rang. During one call someone asked for "Nunu." During a previous traffic stop, Thomas told Bakersfield police officer Jared Ashby he went by the name Nunu. The e-mail address associated with the cell phone included Thomas's name. The phone contained several "selfies" of Thomas. One text message that came in was "Nunu?" The detective determined the cell number for the phone was associated with Thomas.
There was a photograph on the phone of the semiautomatic nine-millimeter firearm found in the Camry with a text message reading, "I got a thang 4 sale." The reply text message asked, "what kind." The response stated, "9 MM that also shoots .380's." Stratton explained .380-caliber bullets could fit into the chamber of a nine-millimeter gun because they were both the same diameter, though the .380-caliber bullet is shorter in length.
Identification Evidence
Phillips identified Thomas in court as the first assailant who held the gun to his head during their struggle. Phillips identified Thomas from a photographic lineup sometime after the robbery. Phillips identified Gage in a separate photographic lineup. Jones separately identified Thomas from a photographic lineup. She told Stratton she was 60 percent certain of her identification. Jones explained the man's eyes and facial structure were similar to the suspect's.
Hudson identified Thomas from a six-pack photographic lineup shown to him by the detective. Hudson described Thomas as the man who had run past him. He was only 10 percent sure of his identification. The man in the lineup was a dark person, but Hudson believed the man he had seen was younger than the individual in the photographic lineup.
Jones also identified Gage from a photographic lineup. Jones said she was 75 percent certain of her identification of Gage. Jones told officers she chose the subject because he had the same eyes as the robber. She was unable to see the silver-dollar-sized tattoo on the left side of the suspect's neck because the photograph was a headshot. Jones believed the man may have had more tattoos in addition to the one she described.
In her report to police, Jones described one of the perpetrators as a Black male adult, 19 to 21 years old, dark complexion, wearing either a royal or navy blue shirt and shorts, with a silver-dollar-sized tattoo on the left side of his neck, approximately six feet tall, with a thin build. Jones specified this suspect was the one who had knocked her to the ground. She described the second perpetrator as a Black male adult with a dark complexion, 19 to 21 years old, wearing a black T-shirt and dark jeans. Jones believed the second perpetrator may also have had tattoos.
DNA Evidence
Jerry Garza, a DNA expert, extracted DNA from the swabbed sample taken from the red Angels hat. Garza could not exclude Packard as a major contributor. Using random match probability, the probability of selecting an unknown, unrelated person from the Caucasian population with the same DNA major profile as Packard was one in 260 trillion, one in 14 trillion for the African-American population, and one in 8.2 quadrillion for the Hispanic population.
Garza obtained a mixture of DNA from the red and gray Chicago Bulls hat.
Defenses
Gage presented an alibi defense based on his testimony as well as the corroborating testimony of a friend from childhood and the mother of his child. Gage also had an innocent explanation for telephone calls or text messages he made to his codefendants before and during the time of the robbery. This evidence will be presented in greater detail below.
Thomas's mother confirmed her son went by the nickname Nunu, which she gave him when he was young. Thomas was also involved with his mother's nonprofit ministry in her church, which works to prevent gang violence in their neighborhood. Thomas had tattoos of the names of a friend and his uncle, as well as tattoos of a checkered race flag and lips under his left ear.
Packard's counsel called Dr. Scott Fraser as an eyewitness identification expert. Dr. Fraser identified the factors known scientifically to influence eyewitness memory, accurate recall, and subsequent identification. The accuracy of identification is reduced by situations with fear and high stress. The physiological response to stress affects memory and the subsequent ability to recognize people. So does the presence of a gun. People are less accurate in identifying members of a different race than members of their own race. The more often a person is shown an individual in a live or photographic lineup, or at a court hearing, the person becomes progressively more certain of an identification.
Dr. Fraser explained there were several ways a lineup could be suggestive. The Department of Justice protocol favors sequential or one-by-one lineups rather than simultaneous ones and also double blind presenters so the person administering the lineup is unaware of the suspect's identity. Some jurisdictions require all lineups be recorded by audio or by audio and video to verify the reliability of the procedure. These procedures were not followed here but would have made the witness identifications more reliable. Dr. Fraser described the six-pack photographic identification procedure used by investigators in this case as "a roll of the die."
DISCUSSION
I. Instruction on Accomplice Testimony
Packard, joined by Thomas, contends the trial court erred in failing to instruct the jury on principles governing the law of accomplices, including the need for corroboration and the requirement to view codefendant Gage's statements with caution because his testimony tended to incriminate the other defendants. Packard argues the trial court had a sua sponte duty to give CALCRIM No. 334. We disagree and find no error.
After defining an accomplice, CALCRIM No. 334 instructs the jury, inter alia, to convict the defendant based on the accomplice's testimony only if the accomplice's testimony is supported by other evidence believed to be true, the supporting evidence is independent of the accomplice's testimony, and the supporting evidence tends to connect the defendant to the commission of the crimes. The supporting evidence may be slight, must tend to connect the defendant to the commission of the crime, cannot be provided by another accomplice, and the statement by the accomplice tending to incriminate the defendant should be viewed with caution.
Facts and Proceedings
Gage tendered an alibi defense. Gage testified that on May 11 at 3:00 p.m. he was not with Packard or Thomas. Gage said he went to see his aunt on East Ninth Street then went to California Park where he saw Gabrielle Earnest, his childhood friend. Earnest corroborated Gage's testimony, remembering she saw Gage at the park about 3:00 p.m. Dorothy Weston, the mother of Gage's son, testified she was ill on May 11 and Gage brought their son home from school just after school ended at 2:50 p.m.
After leaving the park and picking up his child from school, Gage went to Weston's home, arriving about 3:00 p.m. Gage made the son a snack and helped him with his homework for about an hour. Gage walked to a friend's house where his mother picked him up and he stayed with her until the next day.
Gage admitted he was texting with Packard because he had some of Packard's keys he needed to return. The keys were apparently to a Mustang Packard was trying to sell. Gage also called Thomas that day. Gage had cell phone contact with Packard by call or text in the morning and several times between 2:17 p.m. and 3:16 p.m. Gage had contact with Thomas's phone several times between 2:03 p.m. and 3:02 p.m. Gage said Thomas's phone was not answered and he did not speak with Thomas. Gage stated he was innocent of the charges against him.
Thomas's counsel requested CALCRIM Nos. 334 and 335. When the instructions were finalized, CALCRIM Nos. 334 and 335 were not included. The parties stipulated to the instructions as finalized by the court.
Analysis
The California Supreme Court has generally held that instructions on accomplice testimony must be given on the court's own motion only when the accomplice witness is called by the prosecution or when a testifying defendant implicates a codefendant while confessing his or her own guilt. Where a defendant testifies on his or her own behalf and denies guilt while incriminating a codefendant, it is within the trial court's discretion whether to give accomplice instructions sua sponte. (People v. Avila (2006) 38 Cal.4th 491, 561-562, citing People v. Terry (1970) 2 Cal.3d 362, 399, overruled on another ground in People v. Carpenter (1997) 15 Cal.4th 312, 381-382.)
In cases in which the codefendant denies culpability and in doing so implicates another defendant, there is no persuasive reason not to require the accomplice instruction when requested by a defendant in a case where a codefendant testifies. (See People v. Box (2000) 23 Cal.4th 1153, 1209, disapproved on another ground in People v. Martinez (2010) 47 Cal.4th 911, 948, fn. 10; People v. Alvarez (1996) 14 Cal.4th 155, 217-219.) When a codefendant testifies he or she was not involved in the crime, however, and thus is not an accomplice, the trial court may properly conclude the giving of accomplice instructions could improperly prejudice the codefendant's case. (People v. Ramos (1982) 30 Cal.3d 553, 582, revd. on other grounds sub nom. California v. Ramos (1983) 463 U.S. 992, 1014; see People v. Carrera (1989) 49 Cal.3d 291, 311.)
Thomas's counsel requested CALCRIM Nos. 334 and 335 prior to trial. When Gage testified, however, he denied involvement in the robbery, advancing an alibi defense. Gage's childhood friend and the mother of his child corroborated the alibi, but did not implicate Packard or Thomas. In denying any culpability in the crime, Gage was asserting he was not an accomplice. More importantly, Gage's alibi defense did not directly or indirectly implicate Packard or Thomas.
Packard argues unpersuasively that he and Thomas were incriminated by Gage's testimony concerning the phone calls because it established a connection between Gage and the codefendants. The reasons for corroboration of accomplice testimony do not apply to cell phone records because they are business records created independently of the accomplice and are unaffected by the accomplice's credibility. (People v. Vu (2006) 143 Cal.App.4th 1009, 1023.) Gage's testimony set forth an innocent explanation for the phone calls that was potentially exculpatory for all three defendants, not just Gage.
Given Gage's alibi defense did not implicate his codefendants and constituted a denial he was an accomplice, the trial court could properly conclude accomplice instructions had the potential to prejudice the two codefendants. The fact Gage's testimony did not implicate the two codefendants could also explain why Thomas's counsel did not follow through with his pretrial request for CALCRIM Nos. 334 and 335. Neither codefendant pursued accomplice instructions, had no reason to do so given the nature of Gage's testimony, and the trial court had no sua sponte duty to give accomplice instructions.
Even in cases where the full complement of accomplice instructions were erroneously omitted, sufficient corroborating evidence of the accomplice testimony rendered the omission harmless. Evidence of corroboration is sufficient if it tends to connect the defendant with the crime in such a way as to satisfy the jury the accomplice is telling the truth. In cases lacking sufficient corroboration, reversal is not required unless it is reasonably probable a result more favorable to the defendant would have been reached pursuant to the harmless error analysis under state law set forth in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 303-304.)
Assuming arguendo that Gage's testimony concerning the cell phone records implicated Packard and Thomas because it showed communication between all three defendants, the cell phone records themselves corroborated Gage's testimony. Furthermore, Packard's and Thomas's convictions rested on evidence independent of Gage's testimony. This included Detective Hughes's identification of Packard as the driver of the getaway car. It also included the identification of Thomas as one of the robbers by eyewitnesses. Even if it was error for the trial court not to instruct the jury with CALCRIM No. 334, Packard and Thomas have not demonstrated a reasonable probability they would have obtained a more favorable result had the alleged error not occurred under Watson.
Phillips, Jones, and Hudson all identified Thomas in pretrial photographic lineups. Only Phillips positively identified Thomas at trial. Jones and Hudson would not identify Thomas at trial.
II. Aiding and Abetting Assault with a Firearm
Packard contends there was not substantial evidence to support his conviction for assault with a firearm alleged in counts 5 and 6 because he was only indirectly involved with the robbery as the getaway driver. Packard concedes there was substantial evidence to establish he aided and abetted the robberies, but not that he committed assaults with a firearm. Packard argues the assaults with firearms were unplanned offenses and the natural probable consequence of the target offense of robbery. Packard maintains to be held vicariously liable for assault with a firearm, the People needed to pursue the natural and probable consequences theory of liability and should have requested jury instructions on that theory.
We disagree with these assertions. The People did not pursue a theory of liability against Packard based on foreseeable natural and probable consequences but argued Packard's liability was for directly aiding and abetting the codefendants for robbery and two counts of assault with a firearm. We find there was substantial evidence to support Packard's vicarious liability as a direct aider and abettor and further conclude any instructional error was harmless.
In light of our analysis, we do not consider the People's alternative argument that there was also substantial evidence to support a natural and probable consequences theory of aider and abettor liability.
Aiding and Abetting Instructions
The jury was instructed with CALCRIM No. 400 that as to the allegations Packard committed counts 1, 2, 3, 5, and 6, he could be guilty of the crime in two ways: "One, he or she may have directly committed the crime. I will call that person the perpetrator. Two, he or she may have aided and abetted a perpetrator, who directly committed the crime. [¶] A person is guilty of a crime whether he or she committed it personally or aided and abetted the perpetrator."
The jury was instructed on evaluating whether Packard was an aider and abettor with CALCRIM No. 401 as follows:
"To prove that the defendant is guilty of a crime based on aiding and abetting that crime, the People must prove that:
"1. The perpetrator committed the crime;
"2. The defendant knew that the perpetrator intended to commit the crime;
"3. Before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime;
"AND
"4. The defendant's words or conduct did in fact aid and abet the perpetrator's commission of the crime.
"Someone aids and abets a crime if he or she knows of the perpetrator's unlawful purpose and he or she specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator's commission of that crime.
"If all of these requirements are proved, the defendant does not need to actually have been present when the crime was committed to be guilty as an aider and abettor.
"If you conclude that defendant was present at the scene of the crime, or failed to prevent the crime, you may consider that fact in determining whether the defendant was an aider and abettor. However, the fact that a person is present at the scene of the crime or fails to prevent the crime does not, by itself, make him or her [an] aider and abettor."
The court instructed the jury as to Packard with CALCRIM No. 1603 that for it to find him guilty as an aider and abettor to robbery, Packard "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." The court instructed the jury with CALCRIM No. 875 on the elements of assault with a firearm. It further instructed the jury with special instruction No. 2, "If the underlying offense has not been committed beyond a reasonable doubt, you cannot find a defendant guilty of the underlying offense under an aiding and abetting theory."
Aiding and Abetting a Crime
In closing statements to the jury, the prosecutor argued Packard was directly aiding and abetting the crimes, including robbery and assaults with firearms, because Packard knew Gage or Thomas intended to commit "either the assault with a firearm or the robbery." The prosecutor described Packard's conduct as aiding and abetting the two codefendants because he acted with them during or after the crimes by driving them to a place of safety and by exchanging calls with them as the crimes unfolded. The prosecutor argued Packard did not need to actually be present in the store when the crimes occurred, describing Packard as an aider and abettor and the codefendants as perpetrators.
Packard contends the Supreme Court in People v. Beeman (1984) 35 Cal.3d 547 disapproved aiding and abetting liability where the criminal intent of an aider and abettor would be presumed from his or her actions with knowledge of the actor's wrongful purpose but without any separate intent to assist in the commission of the crime. According to Packard, the prosecutor took this disapproved theory a step further by inferring Packard's intent to aid and abet one crime, assault, from knowing of the intent by the aider and abettor to assist in the other crime, robbery.
A person who knowingly aids and abets criminal conduct is guilty not only of the intended crime—the target offense—but also of any other crime the perpetrator commits—the nontarget offense. For example, if a person aids and abets only an intended assault but a murder occurs, that person may be guilty of murder, even if unintended, if is a natural and probable consequence of the intended assault. A nontarget offense is a natural and probable consequence of the target offense if, judged objectively, the additional offense was reasonably foreseeable. The inquiry does not depend on whether the aider and abettor actually foresaw the nontarget offense. Liability is measured by whether a reasonable person in the defendant's position would have or should have known the charged offense was a reasonably foreseeable consequence of the act aided and abetted. (People v. Chiu (2014) 59 Cal.4th 155, 161-162.)
By its very nature, aider and abettor culpability under the natural and probable consequences doctrine is not premised upon the intention of the aider and abettor to commit the nontarget offense because the nontarget offense was not intended at all. It imposes liability for any offense committed by the direct perpetrator that is the natural and probable consequence of the target offense. Because the nontarget offense is unintended, the mens rea of the aider and abettor with respect to that offense is irrelevant, and culpability is imposed simply because a reasonable person could have foreseen the commission of the nontarget crime. (People v. Chiu, supra, 59 Cal.4th at p. 164, citing People v. Canizalez (2011) 197 Cal.App.4th 832, 852.)
The prosecutor here did not tender the theory the assault with a firearm was a foreseeable natural and probable consequence of the robbery. Nor, read in context, did the prosecutor casually lump robbery with the assault with firearms allegations as argued by Packard. Rather, the prosecutor argued all three defendants planned an armed robbery using firearms, and Packard knew Gage or Thomas would commit either assault with a firearm or robbery. This was a theory of direct aiding and abetting liability of both target offenses.
The target offense in this case was robbery and the nontarget offense, according to Packard, was commission of two counts of assault with a firearm. Given the nature of the crimes committed, however, if Packard was aiding and abetting the commission of armed robbery, an assertion Packard does not challenge, then he was also aiding and abetting the commission of assault with a firearm. Both offenses were committed by the same criminal acts. Armed robbery and assault of robbery victims with firearms go hand-in-hand. When, as here, the facts support planning for two crimes that could clearly occur simultaneously, Packard is liable under direct aiding and abetting principles and there was no error in failing to instruct the jury on the natural and probable consequences theory of aiding and abetting as long as the court instructed the jury on the legal principles of direct aiding and abetting the crime.
Packard drove Gage and Thomas in the getaway car after the robbery. Detective Hughes identified Packard as the getaway driver of a car containing large amounts of marijuana and a loaded nine-millimeter semiautomatic firearm on the front passenger floorboard. Further, Packard avoided Hughes's line of sight in traffic by sliding behind the B pillar, the middle support of the roof of the car. Packard violated traffic laws in an effort to evade law enforcement, and then fled from the car to escape. The presence of guns, the companionship of the three defendants in the getaway car as well as at the scene of the crime, the presence of a nine-millimeter semiautomatic gun on the front passenger floorboard, Packard's evasion of law enforcement during his flight from the scene of the crime as the driver of the getaway car, and Packard's escape from the getaway car to avoid capture are all indicative of his intent to aid and abet robbery and both counts of assault with a firearm.
Substantial Evidence of Aiding and Abetting
When a defendant challenges the sufficiency of the evidence, appellate courts must review the entire record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. This standard of appellate review is the same in cases in which the People primarily rely on circumstantial evidence. Although a jury must acquit if it finds the evidence susceptible of a reasonable interpretation favoring innocence, it is the jury, not the reviewing court, that weighs the evidence, resolves conflicting inferences, and determines whether the People have met the burden of establishing guilt beyond a reasonable doubt. If the trier of fact's findings are reasonably justified under the circumstances, the opinion of the reviewing court that the circumstances may also be reconciled with a contrary finding does not warrant reversal of the judgment. (People v. Casares (2016) 62 Cal.4th 808, 823-824.)
After reviewing the evidence in the light most favorable to the prosecution, we determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Rangel (2016) 62 Cal.4th 1192, 1212-1213.) Unless the testimony of a single witness is physically impossible or inherently improbable, it is sufficient for a conviction. (Evid. Code, § 411; People v. Young (2005) 34 Cal.4th 1149, 1181.) An appellate court must accept logical inferences the jury might have drawn from circumstantial evidence. (People v. Maury (2003) 30 Cal.4th 342, 396.) Before setting aside the judgment of the trial court for insufficiency of the evidence, it must clearly appear there was no hypothesis whatever upon which there was substantial evidence to support the verdict. (People v. Conners (2008) 168 Cal.App.4th 443, 453; People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.)
A person aids and abets the commission of a crime when he or she acts, advises, aids, promotes, encourages or instigates the commission of a crime with knowledge of the unlawful purpose of the perpetrator and with the intent or purpose of committing, facilitating, or encouraging commission of the crime. Whether a defendant aided and abetted a crime is a question of fact, and on appeal all conflicts in the evidence and reasonable inferences must be resolved in favor of the judgment. Neither presence at the scene of the crime nor knowledge of, but failure to prevent it, is sufficient to establish the aiding and abetting of the crime. Presence at the scene of the crime, companionship, and conduct before and after the offense are factors that may be considered in making the determination of whether a defendant aided and abetted in commission of the offense. (People v. Campbell (1994) 25 Cal.App.4th 402, 409; People v. Medina (1998) 46 Cal.4th 913, 924 [flight a factor suggesting aiding and abetting].) Circumstantial evidence is sufficient to establish liability as an aider and abettor. (People v. Santana (2000) 80 Cal.App.4th 1194, 1200.)
Packard's intent to aid and abet robbery and assault with a firearm is necessarily shown by circumstantial evidence. Evidence of Packard's intent to aid and abet robberies and assault with a firearm includes circumstantial evidence and direct evidence: cell phone records indicating the three defendants were contacting each other before and after the robbery and assaults, the presence of guns, the companionship of the three defendants in the getaway car as well as at the scene of the crime, the reasonable inference that as the getaway driver Packard drove his codefendants to the scene of the crimes, the presence of a nine-millimeter semiautomatic gun on the front passenger floorboard, Packard's evasion of law enforcement during his flight from the scene of the crime as the driver of the getaway car, and Packard's escape from the getaway car to avoid capture are all indicative of his intent to aid and abet robbery and both counts of assault with a firearm.
Packard drove Gage and Thomas in the getaway car after the robbery. It can be inferred he also drove Gage and Thomas to the scene of the robbery and assault with a deadly weapon. Detective Hughes identified Packard as the getaway driver of a car containing large amounts of marijuana and a loaded nine-millimeter semiautomatic firearm on the front passenger floorboard. Packard avoided Hughes's line of sight in traffic by sliding back behind the B pillar of his car. Packard violated traffic laws in an effort to evade law enforcement, and then fled from the car to escape.
Harmless Error
Even if we were to find the trial court erred in failing to instruct the jury on CALCRIM No. 403 on the natural and probable consequences theory of vicarious liability, we find any error harmless.
The Watson standard of review is appropriate to evaluate the instructional error at issue here. Any instructional error misdirecting the jury is not the basis of reversing a conviction unless examination of the entire cause, including the evidence, indicates the error resulted in a miscarriage of justice. (People v. Larsen (2012) 205 Cal.App.4th 810, 829, citing People v. Canizalez, supra, 197 Cal.App.4th at p. 858.) We distinguish between instructional error entirely precluding jury consideration of an element of an offense from such error affecting only an aspect of an element. (People v. Larsen, supra, at pp. 829-830, citing People v. Cummings (1993) 4 Cal.4th 1233, 1315, continuing validity questioned by People v. Merritt (2017) 2 Cal.5th 819, 831, in light of Neder v. United States (1999) 527 U.S. 1.)
An instructional error relieving the prosecution of the burden of proving beyond a reasonable doubt each essential element of the charged offense, or improperly describing or omitting an element of an offense, violates the defendant's rights under both the United States and California Constitutions and is subject to review pursuant to Chapman v. California (1967) 386 U.S. 18. (People v. Larsen, supra, 205 Cal.App.4th at p. 829, citing, inter alia, Neder v. United States, supra, 527 U.S. at p. 4, and People v. Mil (2012) 53 Cal.4th 400, 409.) In contrast, "'misdirection of the jury, including incorrect, ambiguous, conflicting, or wrongly omitted instructions that do not amount to federal constitutional error are reviewed under the harmless error standard articulated' in Watson." (Larsen, supra, at p. 830, quoting People v. Campos (2007) 156 Cal.App.4th 1228, 1244, and People v. Palmer (2005) 133 Cal.App.4th 1141, 1157.)
The jury was properly instructed on vicarious liability for direct aiding and abetting of the robbery and two counts of assault with a firearm. The prosecutor's theory of vicarious liability for Packard was predicated on direct aiding and abetting principles, not the natural and probable consequences theory. These instructions did not reduce the prosecution's burden of proof. Even if Packard was entitled to further aiding and abetting instructions based on the theory of natural and probable consequences, Packard has not demonstrated a reasonable probability he would have obtained a more favorable result had the error not occurred under the Watson standard of review. Furthermore, even under the Chapman standard of review, any error on the failure to give this instruction was harmless beyond a reasonable doubt.
III. Substantial Evidence of Willfully Delaying a Peace Officer
Packard contends there was insufficient evidence he delayed any peace officer because any delay in his arrest was too short to satisfy the elements of section 148, subdivision (a). We disagree.
Facts
After Packard and his codefendants escaped from the scene of the robbery in the getaway car, a pursuing officer saw them stop and flee from that car. Officer Jeff Martin and his dog Titan, a Belgian Malinois, arrived at the scene and saw Packard on his stomach under an SUV in a carport. Titan was barking at Packard. Several other officers were standing near Martin. They were not surrounding the SUV. Martin yelled commands to Packard to "[s]how me your hands, do it now. Come out ... from under the vehicle with your hands up or I'll send my dog; he will bite you." Martin again commanded Packard to "crawl out from underneath the vehicle and show me your hands."
Packard initially did nothing and did not display his hands, nor did he crawl out from beneath the SUV. After Packard ignored Martin's second command to crawl out from under the SUV, Packard remained just lying there. Packard also ignored two commands from a second officer to come out. Martin ordered Titan to engage. Martin dropped the lead releasing Titan, who went under the SUV, bit Packard on the biceps, and began to pull him out from under the SUV. As Titan was pulling Packard out, Packard was trying to pull himself back underneath the SUV. Another officer struck Packard four times with a baton and Packard was also tased before he could be arrested. Packard was handcuffed as he was still lying down. Martin watched Packard for about a minute and a half before he was arrested.
Analysis
Section 148, subdivision (a)(1) provides in relevant part, "Every person who willfully resists, delays, or obstructs any ... peace officer ... in the discharge or attempt to discharge any duty of his or her office or employment, when no other punishment is prescribed" is guilty of a misdemeanor. A violation of section 148, subdivision (a) has the following elements: (1) the defendant willfully resisted, delayed, or obstructed a peace officer, (2) this occurred while the officer was engaged in the performance of his or her duties, and (3) the defendant knew or reasonably should have known the other person was a peace officer engaged in the performance of his or her duties. (In re Muhammed C. (2002) 95 Cal.App.4th 1325, 1329.) Flight from an officer attempting to effect a lawful detention can constitute delay of a peace officer, provided the person fleeing knows the officer wishes to detain him. (In re Gregory S. (1980) 112 Cal.App.3d 764, 777-778; People v. Allen (1980) 109 Cal.App.3d 981, 985-987.)
In Allen, two police officers in a marked patrol car saw Allen in a group of people standing near the open trunk of a parked car, which appeared to contain a pile of jackets. One of the subjects was holding what appeared to be a new jacket extended on his arm but placed it in the trunk when he saw the patrol car. The officer was stopping his patrol car when Allen, after seeing the police car, slammed the trunk lid closed and began walking away in a hurry, continuously looking over his shoulder at the officers. (People v. Allen, supra, 109 Cal.App.3d at pp. 983-984.) The officers began to go after Allen in their police car. (Id. at p. 984.)
As the officers closed in, Allen broke into a run and eventually attempted to hide from the officers, who apprehended him and arrested him for violating section 148. (People v. Allen, supra, 109 Cal.App.3d at p. 987.) On appeal Allen argued his arrest for violation of section 148 was unauthorized and the subsequent events produced poisoned fruit of an illegal arrest. (Allen, at p. 985.)
In rejecting this argument, this court stated, "[A]ppellant apparently contends that the officer must advise the individual that he is under arrest or that the officer wants to detain him. However, there is no reason to believe that appellant would have heeded a verbal warning with any more alacrity than he heeded the clear knowledge that the officer wanted to detain and talk with him." (People v. Allen, supra, 109 Cal.App. 3d at p. 987.) We concluded, "Since appellant knew he was going to be detained, and since the detention would clearly have been lawful, it was the officers' duty to cause the detention to be made. The actions of appellant (running and hiding) caused a delay in the performance of [the officer's] duty. As [the officer] personally perceived these events, he had probable cause to arrest for violation of ... section 148, a misdemeanor." (Ibid.) In Allen, we also concluded, "Since the officer had the legal right, indeed duty, [citation], to detain appellant, appellant, if he was aware of the officer's desire, had the concomitant duty to permit himself to be detained." (Id. at p. 985.)
Relying on People v. Quiroga (1993) 16 Cal.App.4th 961, 966 (Quiroga), Packard argues section 148 does not criminalize a suspect's "failure to respond with alacrity to police orders." In Quiroga, police responded to a noisy party, smelled marijuana, and saw a woman with a marijuana cigarette. As police were investigating, Quiroga stood up from a couch but was very uncooperative when ordered to sit back down. Quiroga argued with the officers but eventually sat down. When Quiroga appeared to be hiding something in the couch cushions, he was ordered to place his hands in his lap. Though slow in complying with this command, Quiroga finally followed it. Later, Quiroga was ordered to stand up, refused several times to do so, and was eventually pulled up by the arm by an officer. (Id. at p. 964.) The court in Quiroga held the defendant's slow compliance with police orders inside the party was not a violation of section 148, but his later refusal to give his true identity during booking delayed the process by 30 minutes and constituted the violation of section 148. (People v. Quiroga, supra, at pp. 966, 972.)
Here, unlike Quiroga, Packard did not merely act slowly or without alacrity in following Martin's commands. Packard failed to comply with either Martin's command to show his hand, Martin's two commands to come out, and a second officer's two commands to come out from under the SUV. Packard was forced out of his position by Titan the K-9, and he still tried to pull himself back under the SUV. Packard was only arrested after another officer used his baton and a Taser to get Packard to comply with Martin's prior orders. While Packard was under the SUV, the officers could not discern whether he was concealing a loaded firearm. Packard's actions delayed the officers until they could secure and arrest him. As in this court's Allen case, Packard was delaying the officers in an attempt to evade them. Packard hid under the SUV, ignoring the lawful orders of Martin to show his hands and crawl out from under the vehicle. There was substantial evidence supporting Packard's conviction for violating section 148.
IV. Alleged Judicial Bias
Gage contends the trial court exhibited bias against him and his trial counsel during voir dire of potential jurors. The People respond Gage failed to raise this issue at trial, forfeiting the claim for appellate review, and the trial court acted well within its discretion during voir dire in limiting the scope of some questions by counsel and sustaining the prosecutor's objections to other questions. We find no error.
Voir Dire Proceedings
First Prospective Juror
Gage's trial counsel, Benjamin Nkwonta, asked an early prospective juror (first prospective juror) whether it would influence how he viewed the case if he knew Gage and Thomas were gang members. The first prospective juror replied he did not think so. Nkwonta asked the first prospective juror if he understood it is not a crime for a person to be a gang member. The trial court cautioned Nkwonta not to go "there directly to this gentleman." Nkwonta replied he was "trying to elicit a question as to whether [the first prospective juror] will abide by the law." Nkwonta asked how it would impact the first prospective juror if he were to hear evidence Gage was a gang member with gang tattoos. The first prospective juror replied he did not know and would have to hear everything before making a decision. Nkwonta asked if the first prospective juror was saying the mere fact Gage was a gang member would "not influence you in any way?" The court cautioned Nkwonta that was not what the first prospective juror said. The court told Nkwonta to focus on what he said and cautioned counsel, "You're turning words." The first prospective juror responded that gang membership alone would not influence him.
Nkwonta followed up, asking the court why it interposed an objection when the prospective juror was asked whether he thought it was not a crime for a person to be gang member. Nkwonta asked if he had misstated the law. The court clarified, noting the way Nkwonta turned that question around was treating the first prospective juror disrespectfully because counsel was putting words in his mouth and educating the juror about the case. The court noted this was not allowed.
Outside the jury's presence, Nkwonta referred to the first prospective juror he had questioned and told the court it had challenged his credibility before that juror. Counsel denied turning the first prospective juror's words against him and took issue with the court's challenge. Nkwonta reiterated for the record he did not believe he had done anything wrong.
Second Prospective Juror
Nkwonta questioned another prospective juror (second prospective juror) about a relative who was apparently a gang member. The second prospective juror explained she had contact with him but not on a daily basis. When asked if she had very positive or negative feelings toward gangs, the second prospective juror replied she did not have association with them per se. Nkwonta asked the second prospective juror if she thought "it should be a crime for a person to be a gang member?" The trial court interposed its own objection, telling counsel the question was not fair and to please move on. Responding to the next question, the second prospective juror said she would not prejudge someone who had a gang tattoo or automatically conclude the person was guilty of something.
Third Prospective Juror
Nkwonta later encountered a prospective male juror (third prospective juror) and asked him if being a member of a gang should be a crime. The third prospective juror explained it would depend on whether the group were committing crimes and violations of the Penal Code. In argumentative fashion, Nkwonta told the third prospective juror that mere membership in a gang was not a crime. Nkwonta then began a hypothetical scenario involving a police officer taking the stand and talking about his personal contacts with "A" and "A" admitting several times to the officer he is a gang member. The court interposed an objection and told Nkwonta to move on to another thought.
Nkwonta again became confrontational with the third prospective juror and asked if he thought being a gang member should be a crime. The third prospective juror kept stating it would depend on the totality of the circumstances. Nkwonta went back to his scenario about police testimony concerning prior gang contacts. The court told Nkwonta he was asking the same question the court had told him not to ask. The court permitted Nkwonta to proceed with the question anyway and the third prospective juror said he would tend to think someone who admitted prior gang membership in the past would cause him to believe that person was guilty of the crimes he or she was currently charged with.
The third prospective juror then said he would follow the trial court's instructions that being a gang member alone is not a crime. Continuing his argumentative questioning, Nkwonta asked the third prospective juror that if he heard Gage was a documented gang member, would this fact alone lead him to conclude he was guilty of the charged offenses. The court interjected the question was unfair because it did not give a full picture of the third prospective juror's answers. In response to the court's question, the third prospective juror said he could follow the court's instructions.
The prosecutor asked the third prospective juror whether he would follow the law and use his common sense during deliberation. The third prospective juror said he could do that. The third prospective juror then left the courtroom while the parties discussed an apparent challenge to him for cause. The court told Nkwonta it was unfair to him and they had to come up with a different system for motions to challenge jurors for cause. Nkwonta, the prosecutor, and counsel for Thomas agreed the attorneys would raise their hands if they were going to challenge a juror for cause.
Nkwonta explained to the court that the essence of voir dire is to determine if a juror might have a hardship and has preconceived or prejudged opinions. Nkwonta viewed the third prospective juror as being "all over the map." Nkwonta said he felt shot down by the court. Nkwonta wanted to do his job, which included challenges for cause, the essence of the process. Nkwonta did not think the third prospective juror was answering his questions. Nkwonta pointed out the court's question about whether the prospective juror would follow the court's instructions would result in a yes to the question 100 percent of the time and there would be "no point in us having this exercise."
Nkwonta challenged the third prospective juror for cause. In denying Nkwonta's challenge for cause, the court ruled: "[Y]ou're isolating specifics, as to specifics in a question within a context but no context to it. So—please. So within the context, the person is channeled with no background to make an answer to your question. And then you're providing information which is coming into the trial and getting his opinion on specific parts of it. That's not what we're doing."
Fourth Prospective Juror
Nkwonta questioned a fourth prospective juror who had prior experience teaching juvenile delinquents. Nkwonta told this juror the prosecutor had to prove his case "beyond all reasonable doubt." The court interposed that this statement by counsel misstated the law. Nkwonta argumentatively replied, "Well, I don't think I did, Judge." The court asked Nkwonta to move on.
Fifth Prospective Juror
Nkwonta asked a fifth prospective juror about the fact that only his client was charged with attempted murder. Nkwonta asked the prospective juror what went through his mind when the charge was first read to the venire. The fifth prospective juror said he wanted to look into it more because he wanted to know what happened. Nkwonta asked, "[Y]ou didn't think, I think he did it, something like that?" The fifth prospective juror replied, "No."
Nkwonta asked whether the prospective juror had ever mistaken someone he knew or a friend for someone else. The prospective juror replied affirmatively. Nkwonta asked, "This is a friend you have known for probably years and years." The prosecutor lodged an objection that the question was improper. The court found the question "on the line." Nkwonta repeated the question in similar form. The court told Nkwonta to move on. The trial court denied Nkwonta's motion for a sidebar discussion. The court further denied Nkwonta's request for clarification and told him to move on.
Nkwonta asked the prospective juror a third time about mistakenly identifying a stranger for a friend. The court sustained the prosecutor's objection and told Nkwonta to move on to another area of questioning. Nkwonta asked the prospective juror if an eyewitness pointed to Gage and said he did it, would this end the case for the prospective juror. The prospective juror said it would not because it was only one witness. Nkwonta asked about two witnesses, stating it does not "matter how many say that's the guy, I saw him, I am saying if, is the case over?" The prospective juror again replied, "No." Nkwonta asked why, and the prospective juror said, "Because we need more evidence."
Nkwonta asked if the prospective juror thought it was possible for a person to be mistakenly identified as the person who committed an offense when they were innocent. The prosecutor objected to the question as improper. The court told Nkwonta he had already asked this question and would ask him to sit down if he did not move on.
Sixth Prospective Juror
Nkwonta asked a sixth prospective juror whether "it's possible for an eyewitness to a crime or some incident to mistakenly identify an innocent person as the person that committed that crime and say I am sure that is the person?" The court sustained the prosecutor's objection and told Nkwonta, "You've been warned."
After excusing the jury, Nkwonta asked the court to make a record. Nkwonta stated he believed the court was improperly limiting his voir dire. Nkwonta stated he had not asked a single question that was improper. Nkwonta argued he had only asked questions of seven jurors and only questioned them for about 15 minutes. Nkwonta explained his questions were designed to make sure the jurors were not prejudging the case. Nkwonta took issue with the prosecutor's objections to his questions and the court sustaining those objections.
The court thanked Nkwonta and noted that when the prosecutor objects, it is not a speaking objection and the court is very aware what counsel is doing. The court noted: "It's obvious to everyone you're preconditioning this jury. You were ordered yesterday to stop. You did. You were ordered three times today to stop. If you do it again in your voir dire, it will be a direct violation of a Court order. I'll take appropriate action at that time." The court asked Nkwonta if he understood. The court reminded Nkwonta the voir dire was for challenging jurors for cause, not preconditioning the jury or setting up counsel's argument. The court noted: "You've been ordered to stop. You're very aware of what's going on. You changed the wording. It's then appropriate for the Court."
Nkwonta proceeded later with his request to make a record. Nkwonta asked the court for further clarification concerning why the court would routinely deny his requests for sidebar discussions. The court said this would be done. The court noted it was cocounsel's turn for voir dire. The court observed it had asked Nkwonta to sit down three times the day before because he would not follow the court's instructions.
Later in that session, Nkwonta launched into a long objection, reiterating his discontent over the court not permitting sidebar discussions and seeking clarification concerning the basis for the court sustaining the prosecutor's objections to Nkwonta's questions.
Nkwonta made a motion to reopen voir dire on the basis his client had been limited to 10 minutes of questioning for a venire of 24 potential jurors. The court noted Nkwonta was an experienced attorney having conducted some 100 trials. The court denied the motion, finding Nkwonta's behavior the day before amounted to preconditioning of the potential jury. The court further noted it did not limit Nkwonta's questioning until he resumed his preconditioning conduct. The court denied Nkwonta's request for a sidebar on the last day of voir dire. Court's Interactions with Mr. Nkwonta During Trial
After the trial began, Nkwonta reiterated his objections to the voir dire proceedings. The gist of the argument was the court had ridiculed him in front of the jury, limited his ability to question witnesses, and limited counsel's zealous advocacy. Nkwonta argued the proceedings were fundamentally unfair, and he sought a mistrial. The prosecutor noted there were multiple venire panels of 24 potential jurors each, and counsel were each afforded 30 to 35 minutes of questioning per panel. The prosecutor noted his objections were because Nkwonta's questions were improperly indoctrinating the jury.
Nkwonta argued the prosecutor would object and the court would sustain the objection without the prosecutor stating his basis for the motion; then the court would not permit Nkwonta the opportunity to have a sidebar discussion. The court stated it had never had a problem with Mr. Nkwonta's zealous advocacy, including the way he operates and conducts himself. The court further noted it did not want to cause a chilling effect on Nkwonta's advocacy. The court denied the motion for mistrial.
The court learned a juror was having difficulty understanding Mr. Nkwonta. The court advised the jury:
"Again, basically on behalf of everyone in this courtroom, I appreciate your comment. It did get brought to me, with no disrespect, obviously, to Mr. N'Kwonta. Some of you are having trouble understanding him at times. Okay? And that's appreciated because Mr. N'Kwonta would ask for nothing less. If there's anything you don't understand, just put up your hand. I'll keep an eye on it, and we'll work with it.
"He has certainly a strong accent. I was very pleased when he came here because I suddenly became better in everyone's eyes, so I appreciate all this to him. Bottom line is if you do have trouble, we'll clarify it. It's not a problem to Mr. N'Kwonta either. Again, thank you for doing that. That's a fantastic example of you doing your job, so much appreciated on behalf of everyone."
During Nkwonta's questioning of a witness at trial, he asked for a moment before proceeding. The court replied, "Absolutely. Your case. Don't worry about it." A similar exchange between the court and Nkwonta occurred later. On one occasion later in the trial, the court initially denied Nkwonta's request for a sidebar discussion but conducted it soon afterward off the record. Outside the jury's presence, the trial court noted the sidebar discussion took place. The court noted it understood Mr. Nkwonta's position and formulated a solution to it should the situation arise again. The court noted it was in no way trying to hamper counsel's ability to represent his client.
Forfeiture
A party seeking disqualification of a judge must do so at the earliest practicable opportunity after discovery of the facts constituting the grounds for disqualification. (People v. Scott (1997) 15 Cal.4th 1188, 1205-1207.) It is too late to raise the issue for the first time on appeal and such a claim is forfeited. (People v. Guerra (2006) 37 Cal.4th 1067, 1110-1111, disapproved on other grounds in People v. Rundle (2008) 43 Cal.4th 76, 151.) Gage failed to seek disqualification of the trial judge. This issue has been forfeited for appellate review. It also fails on the merits.
Right to Impartial Judge
Defendants have a due process right to an impartial judge under the state and federal Constitutions. (Arizona v. Fulminante (1991) 499 U.S. 279, 309; People v. Guerra, supra, 37 Cal.4th at p. 1111.) The due process clause requires a fair trial in a fair tribunal before a judge with no actual bias against the defendant or interest in the outcome of the defendant's particular case. (Bracy v. Gramley (1997) 520 U.S. 899, 904-905.)
Section 1044 states a trial court has the duty to control the trial proceedings. When an attorney engages in improper behavior, such as ignoring the court's instructions or asking inappropriate questions, the trial court is within its discretion to reprimand counsel as the circumstances require. (People v. Guerra, supra, 37 Cal.4th at p. 1111, citing People v. Snow (2003) 30 Cal.4th 43, 78.) A trial court's numerous rulings against a party—even when legally erroneous—do not establish a charge of judicial bias, especially when they are subject to review. (People v. Guerra, supra, at p. 1112.) The role of the reviewing court is not to determine whether the trial judge's conduct left something to be desired or whether some comments would have been better left unstated. We determine whether the judge's behavior was so prejudicial it denied the defendant a fair trial as opposed to a perfect trial. (People v. Snow, supra, at p. 78.)
A trial court has considerable discretion to place reasonable limits on voir dire, including the number and nature of voir dire questions. (People v. Carasi (2008) 44 Cal.4th 1263, 1286; People v. Zambrano (2007) 41 Cal.4th 1082, 1120, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Limitations on voir dire are subject to review for abuse of discretion. (People v. Zambrano, supra, at p. 1120.)
It is well settled that examination of prospective jurors should not be used to educate the jury panel to particular facts of the case, to compel a potential juror to commit himself or herself to vote a particular way, to prejudice the jury for or against a party in the case, to argue the case, to indoctrinate the jury, or to instruct the jury in matters of law. (People v. Abilez (2007) 41 Cal.4th 472, 492-493; People v. Fierro (1991) 1 Cal.4th 173, 209, questioned on other grounds in People v. Letner and Tobin (2010) 50 Cal.4th 99, 205-207; People v. Williams (1981) 29 Cal.3d 392, 408.) A capital defendant does not have the right to ask specific questions on voir dire that educate the jury on the facts of the case or to instruct the jury in matters of law. (People v. Tate (2010) 49 Cal.4th 636, 657.)
We have found no examples of judicial bias in the record of the voir dire and evidentiary proceedings. The trial court limited Mr. Nkwonta's questioning of the jury only to the extent counsel was trying to indoctrinate the jury with his client's view of the case. Nkwonta inappropriately began to reference specific facts of the case to potential jurors and did so on several occasions during voir dire, ignoring the trial court's admonitions to avoid indoctrination. The trial court was acting well within its mandated duty to control the proceedings and to ensure a fair voir dire process for all of the parties. Furthermore, the court did not need the prosecutor to state the basis for his objections to Nkwonta's voir dire questions, as Gage argues on appeal, because it was very clear from the nature of Nkwonta's questions that he was inappropriately trying to educate and precondition the jury with the facts of the case and the law.
The trial court did not disparage Nkwonta's speech during trial as Gage argues on appeal. Mr. Nkwonta apparently spoke with a noticeable accent and the trial court asked jurors to indicate when they had any difficulty understanding him. The court did not mock Nkwonta but praised his skill as an advocate to the jury. In sum, we find no merit to Gage's contention that the trial court was biased against him or his trial attorney.
V. Alleged Ineffective Assistance of Counsel
Gage contends his trial counsel was ineffective because he failed to subpoena and introduce Gage's phone records. Gage argues the phone records were exculpatory because they supported his misidentification defense by corroborating his testimony that he called the codefendants at the time the robbery occurred. According to Gage, his counsel failed to obtain admissible records from the phone company but relied on procedurally defective records subpoenaed from law enforcement prior to trial but could not be authenticated.
Facts and Proceedings
Detective Stratton obtained and executed a search warrant of MetroPCS phone records of Gage's phone calls at the time of the robbery. The records were made available to defense counsel prior to trial. During in limine motions, the prosecutor informed the court the phone records were in the custody of the Bakersfield Police Department and he planned to have a custodian of records from MetroPCS verify the records and lay a foundation for text messages sent and calls made. Counsel for Gage's codefendants indicated there could be hearsay challenges to the admissibility of phone call evidence because subscriber information from the phone company may have no correlation to who used the phone to make a call.
On behalf of Gage, Nkwonta sought to introduce phone records of all three defendants, including their text messages for the time period two hours before and two hours after the robbery. Nkwonta planned to use the exhibits to cross-examine Detective Stratton and to show Gage was not with Packard or Thomas during the robbery.
Packard's counsel objected to the introduction of the entirety of the evidence because it was "a huge amount of stuff that nobody here is going to be able to go through in the time that we're going to have to argue it." Packard's counsel further pointed out defense counsel had negotiated before trial began concerning which phone records and text messages would come into evidence, and this was the first time Mr. Nkwonta sought to have it introduced. Packard's counsel further argued he would move for a mistrial pursuant to Aranda/Bruton if the phone records were admitted into evidence. The court tentatively denied Gage's motion to introduce all of the phone records but asked Nkwonta to prepare a condensed version of the records he wanted to present, and to present it to all counsel.
People v. Aranda (1965) 63 Cal.2d 518; Bruton v. United States (1968) 391 U.S. 123. --------
The court revised the admissibility of the phone records. Packard's counsel objected to their admission on foundation, authentication, hearsay, and Aranda/Bruton grounds. Thomas's counsel and the prosecutor joined in these objections.
The court ruled that subject to his ability to lay a proper foundation, Nkwonta could introduce documents of phone records as long as the content was not used. Which party called whom, for instance, would not be admitted. The court ruled the fact, however, that Gage was on the phone was and is itself relevant to Gage's defense and was admissible.
The court clarified its ruling to Mr. Nkwonta, noting:
"When you've got the codefendant situation, that Aranda-Bruton doesn't always work for everybody. ... You've got the issue of ID here. In other words, who were they actually on the phone. The phone number itself doesn't mean they were on the phone. They can't cross-examine that.... [¶] So to protect you and give you your defense, which you're entitled to and the Court is not stopping that.
"So I'm being very clear, now I want everyone to be clear, that the examination of this witness if, one, you can get the foundation in, if you can get beyond that, you can certainly look at it and refer to it, but I'm gonna instruct that the only issue is was he on the phone at that time?"
Nkwonta questioned Detective Stratton on cross-examination about the phone records obtained from MetroPCS after executing a search warrant, including information about Gage's phone that was a target number of the warrant. Over the course of Nkwonta's questioning of Stratton, counsel for codefendants had their objections sustained by the court based on lack of foundation, speculation, hearsay, and narrative grounds. Nkwonta subpoenaed phone records from MetroPCS and presented them to the court after the People had rested their case. The court found the phone records inadmissible as the affidavit executed by the custodian of records failed to comply with Evidence Code section 1561.
Gage testified on his own behalf, explaining he called Packard on his way to the park and also sent text messages to Packard. Gage testified he had contact with Packard on the day of the robbery about nine times between 11:25 a.m. until 3:16 p.m. Toward the end of a call to Packard at 3:04 p.m., Gage testified he heard sirens in the background. Gage also contacted or tried to contact Thomas several times between 2:03 p.m. and 3:02 p.m. the day of the robbery.
During deliberations, the jury sent a note to the court asking if the phone records were available. The court told the jury the records were not available. The jury further informed the court it had reached verdicts on the other two defendants but not Gage. The jury wanted to know how much longer it needed to deliberate if one person would not change. The court informed the jury its deliberations were solely its domain. The court read the jury CALCRIM No. 3551, a standard instruction informing the jurors not to hesitate to reexamine their own views and to not change a position just because it differs from that of other jurors in order to reach a verdict. Before reaching verdicts on the allegations against Gage, the jury sought a rereading of Gage's testimony concerning the calls he made and received the day of the robbery.
Analysis
Defendant has the burden of proving ineffective assistance of trial counsel. To prevail on a claim of ineffective assistance of trial counsel, the defendant must establish not only deficient performance, which is performance below an objective standard of reasonableness, but also prejudice. Prejudice is shown when there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. (Williams v. Taylor (2000) 529 U.S. 362, 391, 394; In re Hardy (2007) 41 Cal.4th 977, 1018.) A reasonable probability is one sufficient to undermine confidence in the outcome. The second question is not one of outcome determination but whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair. (In re Hardy, supra, at p. 1018.)
A court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Tactical errors are generally not deemed reversible. We evaluate counsel's decisionmaking in the context of the available facts. To the extent the record fails to disclose why counsel acted or failed to act in the manner challenged, appellate courts will affirm the judgment unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation. Prejudice must be affirmatively proved. The record must affirmatively demonstrate a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. (People v. Maury (2003) 30 Cal.4th 342, 389.) Attorneys are not expected to engage in tactics or to file motions that are futile. (Id. at p. 390; see People v. Mendoza (2000) 24 Cal.4th 130, 166.)
On direct appeal, reversal of a conviction for ineffective assistance of counsel will only occur if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there could be no satisfactory explanation for counsel's choices. All other claims of ineffective assistance of counsel are more appropriately resolved in a habeas corpus proceeding. (People v. Mai (2013) 57 Cal.4th 986, 1009.)
Gage argues authenticated cell phone records would have corroborated his own testimony that he was talking to the codefendants at the time of the robbery. Because the jury requested the records during deliberation, Gage could have also corroborated his testimony that he heard sirens toward the end of his last call to Packard, which would show he was not in the getaway car and not with the codefendants during the robbery.
The problem with Gage's assertion of ineffective assistance of trial counsel is that even if Gage can show Mr. Nkwonta's representation fell below professional standards because he did not obtain authenticated phone records from MetroPCS, there is no demonstration authenticated records would have acted as strong corroboration of Gage's testimony. Even with authenticated records there would still be foundation problems. Showing that Gage was calling numbers registered to Packard and Thomas would not prove he was talking to either one of them. It appears neither Packard nor Thomas would have testified to corroborate they had talked to Gage. Authenticated phone records would be circumstantial and indirect corroboration of Gage's testimony concerning the phone calls.
Gage testified at length during trial that he called Packard and Thomas just before and during the robbery. The jury heard a readback of this testimony during its deliberations. Gage's testimony provided an innocent explanation for phone calls with his codefendants. It is speculative, at best, to assume circumstantial and indirect corroboration of Gage's testimony with authenticated phone records would have caused the jury to reach a different verdict on the allegations against Gage. We do not agree there was a reasonable probability the jury would have remained deadlocked or reached a different verdict had Mr. Nkwonta successfully obtained authenticated phone records.
VI. Substantial Evidence of Robbery of Shanta Jones
All three defendants contend there was not substantial evidence they took or asported marijuana and cash from the American Green Farmers marijuana dispensary in the immediate presence of Shanta Jones, count 3 of the amended information. Gage and Thomas argue Jones was unaware a robbery was taking place and was not handling or in physical control of the property stolen. We find no error.
Under California law, an employee may be the victim of robbery even though he or she is not in charge or in immediate control of the items stolen at the moment of the taking. (People v. Scott (2009) 45 Cal.4th 743, 753.) Scott held employees have constructive possession of their employer's property when they are present during a robbery. Constructive possession requires only that there be some type of special relationship with the owner of the property sufficient to demonstrate the victim had authority or responsibility to protect the stolen property on behalf of the owner. (Ibid.) The victim need not have general authority to control the owner's property in other circumstances. (Id. at p. 754.)
In analyzing constructive possession authorities, the court in Scott relied on People v. Gordon (1982) 136 Cal.App.3d 519, which held the defendant committed robbery when he pointed a gun at the parents of the adult son who lived in the parents' residence and then proceeded to the son's bedroom to steal property. (Id. at pp. 523-524; People v. Scott, supra, 45 Cal.4th at pp. 753-754.) Gordon affirmed robbery convictions as against both parents, noting the victims were responsible for preserving the property taken. The Gordon court found constructive possession by the parents of their adult son's personal items. (Gordon, supra, at p. 529; Scott, supra, at pp. 753-754.)
The court in Scott further relied on People v. Gilbeaux (2003) 111 Cal.App.4th 515, 523, which applied the constructive possession rule to two independent contractor janitors who were present at the robbery of a grocery store even though they had no responsibility for handling cash. The janitors were found to be in a special relationship with the grocery store and had sufficient representative capacity to the store to be in constructive possession of the stolen property. (People v. Scott, supra, 45 Cal.4th at p. 754.)
Scott reasoned that "[a]lthough not every employee has the authority to exercise control over the employer's funds or other property during everyday operations of the business, any employee has, by virtue of his or her employment relationship with the employer, some implied authority, when on duty, to act on the employer's behalf to protect the employer's property when it is threatened by a robbery." (People v. Scott, supra, 45 Cal.4th at p. 754.) The employees are in possession of the property as against anyone who attempts to steal it, and they have authority to protect the employer's property under Civil Code section 50 to use necessary force to protect the property, themselves, family members of the employer, other relatives, wards, servants, the employer, or guests. (Scott, at p. 754.)
Gage and Thomas argue Jones was knocked down near the front door reception area of the dispensary where she worked. After hearing gunshots, Jones got up and ran out the front door. She kept running down the street until she found someone with a cell phone and called 911. Jones conceded she did not initially see either defendant holding a gun. By the time the robbery was completed, Jones was gone from the dispensary and out of the zone of immediate presence of the owner's property. Because the security room and bud room of the dispensary were normally locked, and because Jones only opened the door for a patient after confirming her verification of the patient, defendants argue she did not have physical control over the locked rooms or of the property inside those rooms. They further argue there was insufficient evidence the removal of property occurred in Jones's immediate presence.
We find these arguments unpersuasive. Defendants concede Jones had control over who went past the locked door after verifying a patient was a legitimate customer of the dispensary. Jones did not stay in the dispensary once she was aware there was a robbery in progress. It is immaterial whether she saw either defendant holding a gun. Any reasonable person would be prudent to assume the thieves entering the dispensary were armed. Generally, the accepted definition of immediate presence is that the object of the robbery is in the immediate presence of a person with respect to the robbery, which is so within the victim's reach, inspection, observation or control, that he or she could, if not overcome by violence or prevented by fear, retain possession of it. (People v. Abilez, supra, 41 Cal.4th at p. 507 [deceased victim need not be aware of force used to take property and is still within the immediate presence of the property stolen].)
Defendants used force against Jones, knocking her to the ground, to acquire entry into the rooms in the dispensary with the property they sought to steal. Once on the ground, Jones could no longer reach, observe, or control the door into the back of the dispensary. As noted in People v. Scott, Jones stood in a special relationship with her employer whether or not her regular duties included control over cash or the product for sale. She was wise not to remain on the premises after hearing gunfire during the course of the robbery. Jones continued, however, to fulfill her responsibilities as a dutiful employee and sought a passerby to call 911 in order to protect not only her employer's property, but those persons remaining in the dispensary after she left. We find substantial evidence Jones stood in a special relationship with her employer and was also the victim of defendants' robbery.
VII. Striking Arming Enhancements
The trial court imposed and stayed one-year arming enhancements (§ 12022, subd. (a)) on Packard's and Thomas's convictions for assault with a firearm in counts 5 and 6. Packard, Thomas, and the People agree that because section 12022, subdivision (a) expressly does not apply when arming is an element of the offense, the arming enhancements cannot merely be stayed but must be stricken.
In relevant part, section 12022, subdivision (a) provides "a person who is armed with a firearm in the commission of a felony ... shall be punished by an additional and consecutive term of imprisonment ... for one year, unless the arming is an element of that offense." The assault with a firearm charge (§ 245, subd. (a)(2)) alleged in counts 5 and 6 required the People to prove the assaults on the victims were committed with a firearm. Because arming with a firearm was an element of the substantive offense, imposition of the one-year enhancement, even though it was stayed, was error. The trial court should have stricken the arming enhancements on counts 5 and 6 as to defendants Packard and Thomas. (People v. Sinclair (2008) 166 Cal.App.4th 848, 855-857.)
DISPOSITION
The section 12022, subdivision (a)(1) arming enhancements imposed on defendants Packard and Thomas on counts 5 and 6 are ordered stricken. The case is remanded for the trial court to prepare an amended abstract of judgment as to both defendants reflecting this change and to forward certified copies to the appropriate authorities. Packard's and Thomas's judgments are otherwise affirmed. Gage's judgment is affirmed.
/s/_________
PEÑA, J. WE CONCUR: /s/_________
LEVY, Acting P.J. /s/_________
SMITH, J.