Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. Los Angeles County Super. Ct. No. KA073754, Philip S. Gutierrez and Charles Horan, Judges.
Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.
CHAVEZ, J.
Robert Rodriguez (defendant) appeals from the judgment entered following two jury trials in which he was convicted of first-degree felony murder with the special circumstance of having committed murder during carjacking or during the immediate flight following the commission of the carjacking (Pen Code, §§ 187, subd. (a), 190.2, subd. (a)(17)(L); count 1); carjacking (§ 215, subd. (a); count 2); and causing death while evading an officer (Veh. Code, § 2800.3; count 3). The trial court imposed an aggregate term in state prison of 25 years to life.
All further statutory references are to the Penal Code unless otherwise indicated.
During an initial trial, defendant was convicted of carjacking and the felony evading offense. The jury did not reach a verdict on the charge in count 1 of felony murder. The prosecution retried defendant on that count, and the second jury convicted defendant of first degree felony murder with the carjacking special circumstance.
Defendant contends that: (1) the terms “immediate pursuers” and “any pursuers” in CALJIC No. 8.21.1 were conflicting and the use of that instruction removed an element of the offense from the jury’s consideration; (2) the evidence is insufficient to support his conviction of first degree felony murder; (3) the trial court’s response to a jury inquiry as to the meaning of the term “pursuit” in CALJIC No. 8.21.1 was inadequate; (4) the prosecutor committed prejudicial misconduct; and (5) imposing a concurrent term of punishment for the count 3 felony evading offense violates the ban on multiple punishment.
We affirm the judgment.
FACTS
Between 9:00 and 9:30 p.m., on January 13, 2006, defendant and his friend “Spook” approached Valentina Romo, who had just backed her white 2004 Toyota Camry out of the driveway of her West Covina residence. At gunpoint, defendant took the Camry from Romo, and Spook attempted to take her purse, but she refused to hand it over and ran. As defendant drove off in Romo’s Camry, Romo ran to her front porch and called 911. Within five to seven minutes police officers arrived at her residence and took a report. After the officers inquired about LoJack, Romo recalled that the Camry had the device. The officers immediately called to have it activated.
By 9:30 p.m., Irwindale Police Officer David Fraijo, who was an observer in a police helicopter flying over the 60 and 605 freeways, detected the Camry’s LoJack signal. Sergeant Mario Camacho, an Irwindale police officer on the ground, and a Baldwin Park police officer also detected the signal. Sergeant Camacho estimated that he received the signal initially at 9:30 p.m. In the sergeant’s report, he put the exact time he had received the signal as 9:36 p.m.; however, at trial, he testified that he had determined that time after the incident by consulting his dispatcher.
Officer Fraijo located the Camry northbound on the 605 Freeway, traveling with the flow of traffic, just north of Arrow Highway. The helicopter followed the Camry north and westbound onto the 210 Freeway to Baldwin Avenue. There, another helicopter with an observer, West Covina Police Officer Kevin Kilcoyne, took over the pursuit.
Officer Kilcoyne testified that the equipment on his helicopter picked up the LoJack signal at 9:15 to 9:20 p.m. He then observed the Camry westbound on the 210 freeway traveling with the flow of traffic between the offramps at Buena Vista Street and Mountain Avenue.
Sergeant Camacho was pursuing the Camry in a marked police car. Two other marked patrol cars joined Sergeant Camacho and the other pursuing police unit. The officers on the ground activated the rotating lights on the marked police cars, and the helicopter illuminated up the Camry with its spotlight. Defendant increased his speed to 70 to 80 miles per hour and failed to yield. Defendant passed one offramp and exited on the next one, at North Santa Anita Avenue. At the bottom of the offramp, defendant drove through a tri-color signal, and Sergeant Camacho activated his siren. Defendant accelerated up the onramp and reentered the 210 freeway at 60 to 70 miles per hour. Defendant took the next offramp at Baldwin Avenue. That offramp had a “J” shape. Defendant was traveling too fast to make the turn and lost control of the Camry. The Camry struck a compact car on the opposing onramp, killing its 32-year-old driver, Michael Lam, and injuring its female passenger, Diana Perez.
Officer Kilcoyne saw defendant and Spook get out of the Camry and run into the bushes. Spook was never apprehended. Approximately an hour later, defendant was found approaching a pay telephone near the scene, and was arrested.
The scene of the collision was 13 miles from the carjacking scene. Officer Kilcoyne estimated that less than eight minutes had elapsed between his initial observation of the Camry and the collision.
Romo testified that approximately 45 minutes to an hour after the officers left her residence, she was driven to the collision scene to make an identification. She was returned home. Ten minutes later, the officers telephoned her again to ask her to attend another field identification procedure. She was unable to make an identification. Following the return of her Camry, Romo found defendant’s name written on a piece of paper in the pocket of a blue jacket left in her car.
At the collision scene, Arcadia paramedic Todd Morehead assessed defendant for injuries. Defendant complained that his lungs hurt and that he was having difficulty breathing. He also admitted that he had driven the Camry into the other car.
After being taken to the hospital, defendant was interviewed by Los Angeles County Sheriff detectives. At trial, the prosecutor played the audio recording of the interview. Defendant waived his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436) and admitted that he drove the Camry from the carjacking scene and in the collision. He denied that he had personally used a firearm during the carjacking and claimed ignorance about whether Spook had used a firearm. Defendant said that he and Spook drove onto the freeway after the carjacking, and he drove fast. He asserted that at Spook’s direction, they were driving to Pasadena. He explained that Spook had personal items at a friend’s house that Spook wanted to collect. Defendant would not disclose Spook’s identity. He claimed that it was Spook who had opened Romo’s car door and ordered her out of the Camry.
Defendant declined to testify and presented no evidence in defense.
DISCUSSION
I. Jury Instructions
A. Introduction
“Under the felony-murder rule, ‘the evidence must establish that the defendant harbored the felonious intent either prior to or during the commission of the acts which resulted in the victim’s death . . . .’ [Citation.] First degree felony murder [§ 189] does not require proof of a strict causal relation between the felony and the homicide, and the homicide is committed in the perpetration of the felony if the killing and the felony are parts of one continuous transaction. (People v. Whitehorn (1963) 60 Cal.2d 256, 264; People v. Mason (1960) 54 Cal.2d 164, 168-169.)” (People v. Ainsworth (1988) 45 Cal.3d 984, 1016.)
Defendant was tried in February 2007. Defendant acknowledges that prior to his trial, the California Supreme Court in People v. Cavitt (2004) 33 Cal.4th 187, 207 (Cavitt), reiterated that although the prior authorities may have interchangeably used the “escape rule” and the “one continuous-transaction doctrine” to define the duration of a felony for purposes of determining felony-murder liability, the proper measure of liability is the continuous transaction doctrine. (See also People v. Young (2005) 34 Cal.4th 1149, 1175; People v. Sakarias (2000) 22 Cal.4th 596, 624.) “The continuous-transaction doctrine . . . defines the duration of felony-murder liability, which may extend beyond the termination of the felony itself, provided that the felony and the act resulting in death constitute one continuous transaction. (Ibid. [‘the duration of felony-murder liability is not determined by considering whether the felony itself has been completed’]; People v. Castro (1994) 27 Cal.App.4th 578, 585 [‘it is settled that a murder is deemed to occur in the commission of rape even after the rape is completed so long as the rape and murder are part of a continuous transaction’]; People v. Taylor (1980) 112 Cal.App.3d 348, 358.)” (Cavitt, supra, 33 Cal.4th at p. 208.)
The Cavitt court further explained that “[o]ur reliance on the continuous-transaction doctrine is consistent with the purpose of the felony-murder statute, which ‘was adopted for the protection of the community and its residents, not for the benefit of the lawbreaker, and this court has viewed it as obviating the necessity for, rather than requiring, any technical inquiry concerning whether there has been a completion, abandonment, or desistence of the [felony] before the homicide was completed.’ (People v. Chavez (1951) 37 Cal.2d 656, 669-670.)” (Cavitt, supra, 33 Cal.4th at p. 207.)
Notwithstanding the decision in Cavitt, it is still permissible for a trial court to instruct the jury on the duration of the felony in terms of whether the defendant is in flight after the felony or has found his way to a place of temporary safety. (People v. Young, supra,34 Cal.4th at p. 1175 [the continuous transaction may include a defendant’s flight after the felony to a place of temporary safety]; Cavitt, supra, 33 Cal.4th at pp. 208-209 [in the particular circumstances, the use of the escape rule to define the duration of the felony did not supply an impermissible route to conviction]; People v. Salas (1972) 7 Cal.3d 812, 822 [a robbery is not complete until the perpetrator reaches a place of temporary safety]; People v. Portillo (2003) 107 Cal.App.4th 834, 843-846 [using the escape rule to define one continuous transaction does not extend liability beyond the one continuous-transaction rule]; People v. Bodely (1995) 32 Cal.App.4th 311, 313-314 [concluding that using the escape rule to define the duration of the felony is “consistent” with the “one continuous transaction” test].)
CALJIC No. 8.21.1 defines the liability for felony murder following a robbery in terms of the escape rule.
Effective January 1, 2006, the Judicial Council adopted the CALCRIM instructions as the state’s official instructions. (People v. Thomas (2007) 150 Cal.App.4th 461, 465-466 (rev. den.).) The newer CALCRIM No. 549 instruction defines liability for felony murder in terms of the one continuous-transaction doctrine. However, “[n]o statute, rule of court, or case mandates the use of CALCRIM instructions to the exclusion of other valid instructions.” (People v. Thomas, at pp. 465-466; see Cal. Rules of Court, rule 2.1050(e).)
CALCRIM No. 549 defines the duration of the underlying felony, as follows:
Even where substantial evidence supports a finding of one continuous transaction, the issue for the jury to decide is whether or not the murder was committed in the perpetration of one of the specified felonies in section 189. (People v. Sakarias, supra, 22 Cal.4th at p. 624.)
B. CALJIC No. 8.21.1
Defendant contends that the trial court’s use of CALJIC No. 8.21.1 removed an issue from jury consideration in violation of due process and the jury trial principles requiring that all elements of the charged offenses to be proven to the jury beyond a reasonable doubt. (See People v. Flood (1998) 18 Cal.4th 470, 479-482.) More specifically, his claim of error is that the pattern CALJIC No. 8.21 jury instruction, which the trial court here used to define the duration of the carjacking, contained conflicting terminology that was reasonably likely to have confused the jury. He argues that that instruction “was internally inconsistent, referring at one point to ‘immediate pursuers’ and at another point to ‘any pursuers.’” He complains that use of such conflicting terminology “implied that a defendant would be liable . . . for a homicide committed after he had reached a place of temporary safety, so long as the homicide took place while the police happened to be pursuing him.” The latter complaint appears to be an assertion that CALJIC No. 8.21.1 permits a conviction for felony murder even where the homicide occurs outside the scope of the escape rule and where the homicide was not part of one continuous transaction with the underlying felony.
The contention lacks merit.
1. Background
The trial court instructed the jury as to reasonable doubt, the elements of carjacking, first degree felony murder, second degree murder on a theory of implied malice, aiding and abetting generally, and aiding and abetting with respect to liability for felony murder. The trial court also charged the jury with CALJIC No. 8.21, which informed the jury that any killing of a human being during the commission of carjacking is murder of the first degree when the perpetrator has the specific intent necessary for the carjacking. As to the duration of the felony, the trial court instructed the jury with CALJIC No. 8.21.1, as follows: “For the purpose of determining whether an unlawful killing has occurred during the commission or attempted commission of carjacking, the commission of the crime of carjacking is not confined to a fixed place or a limited period of time. A carjacking is still in progress after the original taking of physical possession of the stolen property while the perpetrator is in possession of the stolen property and fleeing in an attempt to escape. Likewise, it is still in progress so long as immediate pursuers are attempting to capture the perpetrator or to regain stolen property. A carjacking is complete when the perpetrator has eluded any pursuers, has reached a place of temporary safety, and is in unchallenged possession of the stolen property after having effected an escape with the property.” (Italics added.)
In defining the liability of an aider and abettor to felony murder, the trial court charged the jury, as follows: “Before a nonkiller may be found guilty of murder pursuant to the felony murder rule, there must be a causal and a temporal relationship between the underlying felony and the act resulting in death. The causal relationship requires some logical connection between the killing and the underlying felony beyond mere coincidence of time and place. The temporal relationship requires that the felony and the killing be part of one continuous transaction.”
Initially, without an objection, the trial court informed counsel that it intended to charge the jury with CALJIC No. 8.21.1 as to the duration of the carjacking. Then the recent opinion in Cavitt, supra,33 Cal.4th 187 was located and the trial court observed that CALCRIM No. 549 appeared to set out the one continuous-transaction doctrine referred to by the court in Cavitt. The court inquired whether defendant’s counsel wanted the jury charged with CALCRIM No. 549. Defendant’s counsel never replied. After a discussion with counsel, the trial court declined to use CALCRIM No. 549 and elected to use CALJIC No. 8.21.1, unless the jury later asked the trial court to define a “continuous transaction.” The court noted that it did not want to charge the jury with both CALJIC No. 8.21.1 and CALCRIM No. 549.
2. The Relevant Legal Principles
It is well established that “[e]ven absent a request, the trial court must instruct on the general principles of law applicable to the case. [Citation.] The general principles of law governing a case are those that are commonly connected with the facts adduced at trial and that are necessary for the jury’s understanding of the case. [Citation.] The trial court must give instructions on every theory of the case supported by substantial evidence, including defenses that are not inconsistent with the defendant’s theory of the case. [Citation.] Evidence is ‘substantial’ only if a reasonable jury could find it persuasive. [Citation.]” (People v. Young, supra, 34 Cal.4th at p. 1200.)
“‘If a jury instruction is ambiguous [or conflicting], we inquire whether there is a reasonable likelihood that the jury misunderstood and misapplied the instruction.’ (People v. Smithey (1999) 20 Cal.4th 936, 963; see Estelle v. McGuire (1991) 502 U.S. 62, 72 & fn. 4.) ‘“‘“[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.”’”’ [Citations.] The reviewing court also must consider the arguments of counsel in assessing the probable impact of the instruction on the jury. [Citations.]” (People v. Young, supra, 34 Cal.4th at pp. 1202-1203.)
3. The Analysis
In addressing the contention on the merits, we conclude that there was no reasonable likelihood that the jury would have misunderstood the rule contained in CALJIC No. 8.21.1. The critical concept in CALJIC No. 8.21.1 was whether the accused had reached a place of temporary safety. (People v. Salas, supra, 7 Cal.3d at pp. 823-824.) A reasonable jury would have understood from reading that instruction as a whole that the carjacker was liable for any homicide that occurred during his flight after the carjacking of the Camry until he reached a place of temporary safety. (Ibid. [“[A] fleeing robber’s failure to reach a place of temporary safety is alone sufficient to establish the continuity of the robbery within the felony-murder rule”].)
Whether or not there was an “immediate pursuit” directly from the carjacking scene was not the only factor that determined whether the felony was ongoing. The jury considered evidence of a police pursuit that began within 10 to 15 minutes after the commission of the carjacking while the defendant was arguably in hot flight from the scene of the crime. Any pursuit at this point was an “immediate pursuit” within the meaning of the escape rule and the one continuous-transaction doctrine. (See, e.g., People v. Johnson (1992) 5 Cal.App.4th 552, 562 [homicide occurring 30 minutes after the robbery and more than 22 miles away does not preclude finding that the homicide occurred in the commission of a robbery]; People v. Kendrick (1961) 56 Cal.2d 71, 89-90 [48-minute time lapse]; People v. Thongvilay (1998) 62 Cal.App.4th 71, 80-81 (Thongvilay) [boyfriend of car burglary victim did not pursue defendants immediately from the burglary scene, but proceeded to a nearby location to cut off the defendants as they drove out of the neighborhood].) Regardless, the trial court left the issue of whether there was an immediate pursuit to the jury’s consideration, which benefited defendant. (People v. Salas, supra, 7 Cal.3d at p. 824.)
In considering whether a defendant has reached a place of temporary safety, the jury is permitted to consider whether the defendant believed that he or she had reached a safe location. However, “[t]emporary safety is not tested based on the subjective impressions” of the defendant but on “an objective measure of safety following the initial taking.” (People v. Haynes (1998) 61 Cal.App.4th 1282, 1292.) A defendant’s state of mind is not dispositive of the issue of the duration of the underlying felony. (People v. Johnson, supra,5 Cal.App.4th at p. 560.) Thus, appellant’s personal belief that he had evaded any immediate pursuers and was on his way to a new destination was only one factor a jury properly considers in deciding whether the felony is still in progress. (Ibid.)
Further, the final argument from the prosecutor and defendant’s counsel presented the parties’ factual claims in the proper legal context. During final argument, both counsel urged that the pivotal issue in the case was whether the death occurred during the commission of the carjacking.
The prosecutor argued that the trial court had charged the jury that the carjacking “is still in progress after the original taking . . . of the stolen property while the perpetrator is still in possession of that property and fleeing in an attempt to escape.” She urged that the question in the case was whether the victim was killed as a result of defendant’s escape and whether defendant had reached a place of temporary safety that cut off liability for the homicide. She asserted that whether there was a continuous transaction was an objective determination, not a matter of defendant’s state of mind or whether or not defendant knew the Camry was emitting the LoJack signal. She told the jury that the police had the LoJack device activated within minutes, so there was no “break,” and the killing had occurred during defendant’s escape from the felony scene.
Defendant’s counsel argued to the jury that in order to convict defendant of murder, the jury “must find that it was a continuous transaction[--]there was no break in the transaction.” In commenting upon a theory that defendant was an aider and abettor, counsel argued, “[I]s it one continuous transaction? If it’s not a continuous transaction, then the liability ends and [defendant] would not be responsible for that death.” He asked the jury rhetorically whether defendant had escaped. He explained that what “temporary safety means is [that defendant is] in a position where even though he still has the car, is anybody chasing him at that point?” He asked, “Is [defendant] in a comfortable position where there is no pursuit?” He emphasized that whether there was a continuing transaction was a factual determination the jury had to make.
During deliberations the jury asked as a matter of law when the pursuit had commenced. In response, the trial court had the jury reread the instructions on the point. It also told the jury in effect, that whether the homicide occurred during the commission of the carjacking was a factual issue for it to determine. Thereafter, the jury made no further inquiry, suggesting that it had no further questions about the pertinent law.
We conclude that considering the instruction as a whole, in light of counsels’ final arguments and the trial court’s response to the jury, the terminology in CALJIC No. 8.21.1 did not remove from jury consideration any element of the offense. The jury would have understood that as long as defendant had not reached a place of temporary safety, the carjacking was ongoing. (See People v. Salas, supra, 7 Cal.3d at pp. 823-824.)
II. The Sufficiency of The Evidence
Defendant contends that the trial evidence is insufficient to support his conviction of felony murder because the carjacking and the homicide were not part of one continuous transaction.
The contention lacks merit.
A. The Standard of Review
It is well settled that on appeal, a court reviews “‘the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence--that is, 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.”’ (People v. Hillhouse (2002) 27 Cal.4th 469, 496; see also People v. Berryman (1993) 6 Cal.4th 1048, 1082-1083 [same standard under the state and federal due process clauses].) We presume ‘“in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ [Citation.] This standard applies whether direct or circumstantial evidence is involved.” (People v. Catlin (2001) 26 Cal.4th 81, 139.)
B. The Relevant Legal Principles
“[W]hether a killing occurred during the commission of a felony . . . is not ‘“a matter of semantics or simple chronology.”’ Instead, ‘the focus is on the relationship between the underlying felony and the killing.’” (People v. Jones (2001) 25 Cal.4th 98, 109 (Jones), quoting People v. Hernandez (1988) 47 Cal.3d 315, 348.) “[T]he dispositive question is whether the relationship between the [felony] and the [killing is] sufficiently close to justify an enhanced punishment.” (Jones, supra, at p. 109; see also People v. Portillo, supra, 107 Cal.App.4th at pp. 843-846.) “[A] murder may be determined to have been committed in the perpetration of a felony if it occurred after the felony, e.g., during the attempt to escape or for the purpose of preventing discovery of the previously committed felony.” (Jones, supra, at p.109.)
Whether the killing and the felony are part of one continuous transaction is a factual issue for the jury. (People v. Sakarias, supra, 22 Cal.4th at p. 624; People v. Fuller (1978) 86 Cal.App.3d 618, 623.) The jury’s implied finding on this issue will be upheld where it is supported by substantial evidence. (People v. Johnson, supra, 5 Cal.App.4th at pp. 560-561; People v. Fuller, supra, at p. 623.)
C. The Analysis
Defendant argues that he was not immediately pursued by the police as it was only after the officers located him by use of a LoJack signal, and he had by then reached a place of temporary safety. Therefore, the homicide was not part of the carjacking. Also, when the homicide occurred, defendant contends that he was no longer fleeing from the scene of the carjacking, but was traveling toward his next objective. He urges that he had reached a place of temporary safety when he drove away from the carjacking scene and onto the freeway without any “immediate pursuers.”
On appeal, we determine the sufficiency of the evidence by ascertaining from the record whether there is evidence that supports the jury determination that the carjacking and the homicide were part of one continuous transaction. (See, e.g., People v. Young, supra, 34 Cal.4th at pp. 1175-1176 & fn. 9 [jury instructed with CALJIC No. 8.21.1, and the reviewing court used the continuous-transaction doctrine to determine the sufficiency of the evidence].)
The carjacking occurred between 9:00 and 9:30 p.m. near the Azusa Avenue onramp to the 10 freeway in West Covina. After the carjacking, defendant evidently drove onto the westbound 10 freeway and then northbound on the 605 freeway. Within 10 to 15 minutes of the carjacking, police officers responded to investigate, discovered the Camry had a LoJack tracking device, and had it activated. Police officers then located the Camry within miles of the carjacking scene just north of Arrow Highway on the 605 freeway. While fleeing from the pursuing police officers, defendant hit another car at a high rate of speed, killing the driver and injuring the passenger. Very little time elapsed between defendant’s departure in the Camry from the carjacking scene and his discovery on the 605 freeway. The scene of the fatal collision was only 13 miles from the scene of the carjacking. Defendant’s personal belief that he had escaped detection until the officers activated their overhead lights in pursuit was not determinative of whether the homicide was part of one continuous transaction with the carjacking.
Generally, a felon fleeing from the police within a half hour of committing a felony is liable for felony murder when the pursuit leads to an automobile collision, killing the driver of the other vehicle. (E.g., People v. Johnson, supra, 5 Cal.App.4th at pp. 556-557, 561-562 [homicide occurring 30 minutes after the robbery and more than 22 miles away does not preclude finding that the homicide occurred in the commission of a robbery]; People v. Kendrick, supra, 56 Cal.2d at pp. 89-90 [48-minute time lapse].)
Defendant relies on the decision in People v. Ford (1966) 65 Cal.2d 41, 56 (Ford), for the proposition that this case presents a legal question, and that he had reached a place of temporary safety as a matter of law as he was not pursued onto the freeway. That reliance is misplaced.
Ford was disapproved on other grounds in People v. Satchell (1971) 6 Cal.3d 28, 35-41.
In Ford, the reviewing court held that as a matter of law, the defendant had won his way to places of temporary safety before he committed the homicide. (Ford, supra, 65 Cal.2dat p. 57.) After committing a robbery, the defendant in Ford kidnapped his victim and drove him to another house, where defendant committed yet another crime. Thereafter, the defendant drove aimlessly over a great distance. He spent some of the proceeds of the robbery. He was clearly not attempting to escape the robbery later, when he shot a police officer who was pursuing him for reasons unrelated to the robbery. (Id. at pp. 56-57.)
This case is distinguishable from Ford. Here, a reasonable inference can be drawn that defendant was still in the process of escaping with the Camry within minutes after committing the carjacking while speeding on the freeway. Thus, it was up to the jury to make the factual determination whether the homicide occurred during the commission of the carjacking.
For the same reason, the facts set out in the decision in State v. Pierce (Tenn. 2000) 23 S.W.3d 289 are of no assistance to defendant.
Also, “it is axiomatic that cases are not authority for propositions not considered.” (People v. Alvarez (2002) 27 Cal.4th 1161, 1176.) Defendant’s proposition was not considered in the decision in United States v. Dill (10th Cir. 1982) 693 F.2d 1012, 1013.
Finally, we reject defendant’s position that the dissent in Thongvilay, supra, 62 Cal.App.4th 71, sets forth the correct view. There the defendant made a claim similar to the one raised here. A witness saw defendants burglarize his girlfriend’s car, which was parked in front of her residence. The witness telephoned 911, and the defendants drove off in their car, taking a stereo with them. The witness then got his girlfriend’s car keys and drove the burglarized car to one of two outlets for the neighborhood where he encountered defendants as they were leaving. Defendants saw the witness and ran a red light to avoid him, hitting a third vehicle and killing its driver. The defendants were convicted of felony murder for the death caused by accident with the third vehicle. The majority opinion in Thongvilay rejected the argument that the defendants had reached a place of temporary safety as the defendants were not pursued directly from the scene of the burglary. (Thongvilay, at pp. 79-81.) There was a vigorous dissent to the contrary. (Id. at pp. 90-92 (dis. opn. by McKinster, J.).) We conclude, however, that the majority opinion is better reasoned, and thus decline to accept the minority view that the burglars had reached a place of temporary safety because there was no immediate pursuit. To decide otherwise would be to ignore the more recent decisions in Cavitt, supra, 33 Cal.4th at page 207 and People v. Young, supra, 34 Cal.4th at page 1175.
III. The Response to the Jury Inquiry
Defendant contends that during deliberations, the trial court’s response to the jury’s inquiry was inadequate and had the effect of removing an element of the offense from jury consideration.
We disagree.
A. Background
During jury deliberations, the jury inquired about the meaning of the word, “pursuit.” The trial court questioned the jury foreman about the inquiry. The foreman told the trial court that the jury was asking about CALJIC No. 8.21.1. The trial court observed that the word “pursuit” was not contained in that instruction. The jury foreman explained that the jury wanted to know the meaning of “continuous pursuit.”
At the sidebar, the trial court remarked to counsel that CALJIC No. 8.21.1 twice referred to “immediate pursuers.” The trial court proposed to reply that the word “pursue” means “to follow or chase.” It declined to ask for any further clarification from the foreman as to the inquiry.
Defendant’s counsel proposed that the trial court inform the jury that a pursuit was “when the defendant is made aware that somebody is chasing him,” and “the police have actively committed some act in furtherance of capturing the defendant.” The trial court concluded that such a response was argumentative and declined to so instruct the jury.
Defendant’s counsel objected, as follow: “The problem is, to ask the definition of a simple word using other simple words shows they don’t understand the concept.” The trial court expressly disagreed with counsel’s interpretation of the jury inquiry and overruled the defense objection.
The trial court informed the jury that the words in the jury instructions should be interpreted pursuant to their ordinary English meaning and that “to pursue” means “to follow or to chase.” The jury foreman commented, “We were trying to figure out when the pursuit begins.” The trial court replied that that was why the trial court was utilizing a jury and that the trial court could not give the jury a reply to that question or it would be the 13th juror in the jury room. The jury was told to continue deliberations and to reread the jury instructions. The court was certain that if the jurors did so, they would find the answers they sought.
After the jury retired for further deliberations, the trial court commented that the jury had focused on the issue in the case. It observed that that issue was a factual determination for the jury to resolve, not a legal issue, and the jurors could work their way through it with the existing jury instructions. Defendant’s counsel agreed that the issue was a factual determination for the jury.
B. The Relevant Legal Principles
Section 1138 requires a trial court to provide information requested by a jury concerning any point of law arising in the case. (People v. Beardslee (1991) 53 Cal.3d 68, 97.) However, “where the instructions given are full and complete in themselves, the court has discretion to determine what additional explanations or definitions are needed to satisfy the jury’s request for information. [Citations.]” (People v. McCleod (1997) 55 Cal.App.4th 1205, 1219-1220; accord, People v. Beardslee, at p. 97.) Violation of the statute implicates a defendant’s right to a fair trial conducted substantially in accordance with the law. (People v. Frye (1998) 18 Cal.4th 894, 1007-1008.) “A violation of section 1138 does not warrant reversal unless prejudice is shown.” (People v. Beardslee, supra, at p. 97.)
C. The Analysis
Defendant contends that the trial court’s response defining “pursuit” was an insufficient response to the jury’s inquiry and refusing to give his proposed instruction or to modify his suggested instruction and give it in a modified form to the jury, was error. He faults the trial court for failing to ascertain “whether there was any instruction on a legal principle that could have guided the jury without usurping its role.” He offers by way of example that if the trial court had inquired further, it may have ascertained that the jurors were confused by the conflict in the instruction’s provisions of “immediate pursuers” and “any pursuers.”
We agree with the Attorney General’s response to the contention. There is no requirement that the trial court elaborate on full and complete jury instructions. (See People v. Beardslee, supra, 53 Cal.3d at p. 97.) The trial court responded to the jury’s initial inquiry by defining the word “pursuit.” It also ascertained from the jury foreman that CALJIC No. 8.21.1 was the source of the jury inquiry, and that the jury’s true inquiry was that it wanted the trial court to tell it when the pursuit had commenced. Concerned about invading the province of the jury (see People v. Sakarias, supra, 22 Cal.4th at p. 624), the trial court told the jury in effect that the question asked the trial court to make the very determination that the jury was to make. The trial court properly required the jurors to return to deliberations and to reread the jury instructions for guidance, noting that the issue stated in CALJIC No. 8.21.1 was a factual determination within the province of the jury. (See People v. Davis (1995) 10 Cal.4th 463, 521-522 [where the original instructions are themselves full and complete, the trial court has the discretion to determine what additional explanations are sufficient to satisfy the jury inquiry].) Presumably, the jury complied with the trial court’s instructions as thereafter, it made no further request for a clarification. (People v. Boyette (2002) 29 Cal.4th 381, 436.)
On this record, the trial court properly concluded that defendant’s proposal for answer to the jury question was argumentative (see People v. Mincey (1992) 2 Cal.4th 408, 437 [an argumentative instruction is one that is of such a character as to invite the jury to draw inferences favorable to one of the parties from specified items of evidence]), and the trial court properly exercised its discretion in giving a response. CALJIC No. 8.21.1 was complete and correct as a matter of law. The issue the jury had to tackle was not whether the pursuit was interrupted or commenced minutes after his escape from the carjacking scene, but whether defendant had reached a place of temporary safety prior to the collision. Dignifying defendant’s theory that the initial gap in the commencement of the pursuit alone constituted a defense would have been error. The trial court’s instruction properly refocused the jury’s attention on the gist of the factual inquiry required by CALJIC No. 8.21.1: whether defendant had reached a place of temporary safety prior to the fatal collision. There was no trial court error and no constitutional error.
IV. Prosecutorial Misconduct
Defendant contends that the prosecutor committed misconduct by failing to redact copies of the transcripts given to the jury to aid their understanding of the recording containing defendant’s postarrest statement to the detectives. In the alternative, defendant asserts that permitting the jury to see the unduly prejudicial information contained in the transcripts was trial court error or, defendant’s trial counsel was constitutionally ineffective as he failed to raise any objection to the jury’s use of the unredacted transcripts.
The contention lacks merit.
A. Background
During the initial trial, defendant’s counsel asked for redaction of defendant’s postarrest statement to remove portions that he claimed were unduly prejudicial: (1) defendant’s claims to the detectives that he was a gang member; (2) that defendant had met Spook when he was “smoking dope”; (3) that several hours prior to the carjacking, defendant had “smoked a little bit of marijuana”; and (4) that defendant had been on juvenile probation for five years since age 11 for vandalism. These statements appeared on pages 6, 7, 13, 14 and 15 of exhibit 16A, a transcript of the recording that was admitted into evidence. For the initial trial, the trial court ordered the redactions on pages 13 and 14 so as to delete the references to gang affiliation and to probation.
The prosecutor redacted the recording accordingly.
At the retrial, the trial court commented that the recording and the transcript of the defendant’s statement should again be redacted. It observed that the redaction of the recording might take some time, but that changes in the transcript could be done quickly. The trial court tentatively ordered exclusion of the references to drug use, gang affiliation, and probation. The trial court then recessed for lunch.
Upon resuming the proceedings, the prosecutor asked for a clarification of the trial court’s redaction order. The trial court said that it was ordering additional redactions at page 7, lines 17 and 18, where defendant said, “I smoked dope with [Spook] and that’s how I met him,” as well as page 15, lines 20-23, where defendant said the he had “smoked a little bit of marijuana” earlier that afternoon at 3:00 or 4:00 p.m. Thus the trial court made the order the defense had requested.
During the trial, a detective authenticated the interview on the recording. The recording and the original transcript were marked respectively, as exhibits 16 and 16A. The trial court announced to the jury that it would be playing a recording of the detectives’ post arrest interview with defendant, which had been edited by the trial court and counsel “to remove extraneous matters.” The trial court distributed “transcripts” to the jurors and admonished them: “Ladies and Gentlemen, the transcripts are there to be used as an aid to your hearing of what is on the tape, much as you might use a magnifying glass to help you see what’s on a written page. The transcripts are designed to help you hear what is on the tape, but at this point, however, the tape is the evidence of the conversation. The transcripts are there to help you. So once we’re done with the playing of the tape, we will turn those back in.”
The trial court said, “Let the record reflect that the jurors have [listened to exhibit] 16 while in possession of [exhibit] 16A.”
When the trial court inquired about any objections to the admission of the exhibits, defendant’s counsel replied that he had yet to review the exhibits. Then, at sidebar, defendant’s counsel objected that exhibit 16A was inadmissible as it was merely the opinion of the stenographer who had prepared the transcript of the recording.
The trial court disagreed. It ruled that it had the discretion to admit exhibit 16A into evidence as long as it gave the jury a limiting instruction that the jury was the final arbiter of what was contained on the recording. Defendant’s attorney was given until the following day to find authority that he wished to present to support his objection.
The following morning, the issue was revisited. Defendant’s counsel objected that the transcript was hearsay. Though conceding that the transcript was reasonably accurate, defendant’s counsel said that the jury should consider as evidence what was recorded, not the contents of the transcript.
The trial court ruled that the transcript was “relatively accurate” and observed that there were no “huge” discrepancies. It said that it was resolving the issue by ordering that during deliberations, the jurors could use the copies of the transcript previously handed out during the court proceedings. However, the trial court would admonish the jury on the use of the transcripts. Later, the trial court told the jurors that during deliberations, they would have both the recording and transcripts available in the event they wished to listen again. It admonished the jury: “But your ear is the final guide as to what was said, as to what is on that CD, because your ears, frankly, are probably as good as whoever attempted to [prepare] the transcript. There may be errors in here, but I want you to listen to the tape and make your own determinations.” It advised the jury that “the transcripts are not received as exhibits in the case. They are not evidence of what was on the tape, they are just a tool to hopefully help you hear what is on the tape . . . because sometimes there are mistakes in the transcript despite folk’s best efforts.”
B. The Analysis
The court in People v. Alfaro (2007) 41 Cal.4th 1277, recently reiterated the following well-established legal principles: “A prosecutor who uses deceptive or reprehensible methods to persuade the jury commits misconduct, and such actions require reversal under the federal Constitution when they infect the trial with such ‘“unfairness as to make the resulting conviction a denial of due process.”’ (Darden v. Wainwright (1986) 477 U.S. 168, 181; People v. Cash (2002) 28 Cal.4th 703, 733.) Under state law, a prosecutor who uses such methods commits misconduct even when those actions do not result in a fundamentally unfair trial. (People v. Frye (1998) 18 Cal.4th 894, 969.) In order to preserve a claim of misconduct, a defendant must make a timely objection and request an admonition; only if an admonition would not have cured the harm is the claim of misconduct preserved for review. (People v. Earp (1999) 20 Cal.4th 826, 858.)” (Alfaro, supra, at p. 1328.)
During trial, a prosecutor is under a duty to guard against the use of inadmissible evidence. (See People v. Baker (1956) 147 Cal.App.2d 319, 324-325; cf. People v. Smithey (1999) 20 Cal.4th 936, 960 [it is misconduct for a prosecutor to intentionally elicit inadmissible testimony]; People v. Bell (1989) 49 Cal.3d 502, 532 [the same].) In determining whether there is prosecutorial misconduct, a prosecutor’s bad faith is irrelevant. (People v. Hill (1998) 17 Cal.4th 800, 822-823.)
The recording was redacted, and its use is not in dispute. It is defendant’s claim that the jury used exhibit 16A, which was not redacted, during its deliberations, and thus, the jury may well have been influenced in reaching a verdict by the unduly prejudicial information about defendant contained in the unredacted transcript.
However, as a factual matter, the record fails to support the contention. The factual predicate for the contention is that the jurors read and considered exhibit 16A. Our reading of the record indicates that the original transcript, exhibit 16A, was never provided to the jury during court proceedings or during deliberations. The jurors were given 12 copies of exhibit 16A, which are not part of this record. As our record is incomplete in this respect, and those copies may well have been redacted, we are required to presume that the prosecutor did as she was ordered and redacted the 12 copies supplied to the jurors during the proceedings. Defendant’s counsel’s failure to object that the copies of exhibit 16A were unredacted reinforces our conclusion that the jury never saw the original, unredacted transcript of defendant’s statements to the police.
As this record fails to support the factual predicate to the contention, we find no prosecutorial misconduct, no trial error, and no state or federal constitutional error.
“To establish a violation of the constitutional right to effective assistance of counsel, a defendant must show both that his counsel’s performance was deficient when measured against the standard of a reasonably competent attorney and that this deficient performance caused prejudice in the sense that it ‘so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.’” (People v. Kipp (2001) 26 Cal.4th 1100, 1122-1123, quoting Strickland v. Washington (1984) 466 U.S. 668, 686.) As the record here is incomplete, or there was no reason for trial counsel to object, we affirm the judgment. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
IV. Section 654
Defendant contends that the trial court improperly failed to stay execution of the punishment for the evading police resulting in death offense in count 3.
The contention lacks merit.
A. Background
At sentencing, citing People v. Dillon (1983) 34 Cal.3d at 441, 477-489, defendant’s counsel asked for a reduced term of imprisonment for defendant, to that for second degree murder, i.e., 15 years to life. Counsel urged that such a sentence was appropriate because of defendant’s young age, a lack of intent to kill, and because defendant was apparently borderline retarded. The trial court responded that real issues facing the trial court were (1) whether to strike the special circumstance due to defendant’s age and minimal criminal history, thus reducing the term to be imposed for the murder from life without the possibility of parole (LWOP) to 25 years to life; (2) whether the terms imposed should be imposed consecutively; and (3) whether section 654 applied to the count 3 evading offense.
The trial court denied the request to reduce the murder conviction to second degree murder and exercised its discretion to strike the special circumstance allegation, thereafter imposing a 25-year-to-life term for the count 1 felony murder. The trial court observed that it is “obvious to the court that the carjacking and the flight and the murder are inextricably intertwined. They are part of one criminal transaction, and while it might be that Penal Code section 654 would allow sentences for those other crimes,” the trial court “will do the following.” For the carjacking and evading offenses, the trial court imposed middle terms of respectively, five and four years for counts 2 and 3, and imposed those terms concurrently to the term imposed for felony murder.
Vehicle Code section 2800.1 provides in part that: “(a) Any person who, while operating a motor vehicle and with the intent to evade, willfully flees or otherwise attempts to elude a pursuing peace officer’s motor vehicle, is guilty of a [crime] . . . if all of the following conditions exist: [¶] (1) The peace officer’s motor vehicle is exhibiting at least one lighted red lamp visible from the front and the person either sees or reasonably should have seen the lamp. [¶] (2) The peace officer’s motor vehicle is sounding a siren as may be reasonably necessary. [¶] (3) The peace officer’s motor vehicle is distinctively marked. [¶] (4) The peace officer’s motor vehicle is operated by a peace officer . . . wearing a distinctive uniform.”
B. The Analysis
Defendant asserts that imposing punishment for violation of Vehicle Code section 2800.3, subdivision (b) constituted multiple punishment because there were only two victims involved in this course of criminal conduct, Romo and Lam. He argues that the People failed to plead and prove that Perez suffered serious bodily injury (§ 243, subd. (f)(4)), and thus, the record fails to support a conclusion that there were three crime victims. Also, the trial court charged the jury only as to death, not as to serious bodily injury, so that the jury never made a finding that Perez was a victim of the accident that occurred during the pursuit.
It is settled that “[w]hen a defendant suffers multiple convictions, sentencing for some of which is precluded by operation of section 654, an acceptable procedure is to sentence defendant for each count and stay execution of sentence on certain of the convictions to which section 654 is applicable. Such stay is to be effective pending the successful service of sentence for the more serious conviction, at which time the stay is to become permanent.” (People v. Miller (1977) 18 Cal.3d 873, 886; accord, People v. Deloza (1998) 18 Cal.4th 585, 591-592.) Where section 654 applies, the imposition of concurrent sentences is precluded. (Deloza, at pp. 592-592.)
Even if a defendant entertains but a single principal objective during an indivisible course of conduct, he may nevertheless be punished for multiple convictions if during that course of conduct he committed crimes of violence against different victims. (People v. Deloza, supra, 18 Cal.4th at p. 592.) “The multiple victim exception, simply stated, permits one unstayed sentence per victim of all the violent crimes the defendant commits incidental to a single criminal intent.” (People v. Garcia (1995) 32 Cal.App.4th 1756, 1784.) Each crime must involve at least one different victim. (People v. Miller, supra, 18 Cal.3d at p. 886, fn. 11; People v. Masters (1987) 195 Cal.App.3d 1124, 1130.)
We agree that the multiple victim exception to the one indivisible transaction rule does not apply on this record. The specific allegations in count 3 alleged the death of Lam, but made no allegation with respect to “serious bodily injury” and Perez The trial court confined its jury instructions on the evading charge to requiring a finding of death, and the verdict form supplied to the jury conformed to the allegations in the information. In these circumstances, it appears that the prosecution never contemplated that Perez was a victim in count 3, either through oversight or because the charging deputy believed that Perez’s brief loss of consciousness was not sufficiently serious to qualify as “serious bodily injury.” Also, there is some authority that the evading offense is not a violent felony. (People v. Howard (2005) 34 Cal.4th 1129, 1139 [Vehicle Code section 2800.2 is not an inherently dangerous felony supporting a charge of second degree felony murder].)
Nevertheless, we are persuaded by the opinion in People v. Butler (1986) 184 Cal.App.3d 469, that defendant entertained multiple criminal intents and objectives when he committed the carjacking and murder offenses and led the police on this high speed pursuit. Vehicle Code sections 2800.1 and 2800.3 are statutory offenses punishing flight when a peace officer signals a motorist on a highway to yield. Its legislative purpose is to protect the safety of the public while they are driving on or walking near our highways and to deter dangerous vehicle pursuits initiated by motorists. The legislative policies underlying Vehicle Code sections 2800.1 and 2800.3 are significantly different than those underlying common law crimes committed against the person and to accomplish theft.
We conclude that as a matter of law, because of the differing legislative policies underlying these three offenses that defendant entertained a different criminal intent and objective when he failed to yield and led the officers on a vehicle pursuit. Consequently, we conclude that section 654 provides no bar to the imposition of a concurrent term for the evading offense in count 3. (See People v. Butler, supra, 184 Cal.App.3d at pp. 473-474 [section 654 does not apply to convictions for driving under the influence of alcohol, causing a fatal accident, and then fleeing the scene, violations of Vehicle Code sections 23102 and 20001]; see also In re Hayes (1969) 70 Cal.2d 604, 609-610 [Penal Code section 654 does not apply to violations of Vehicle Code sections 23102 and 14601].)
DISPOSITION
The judgment is affirmed.
We concur: DOI TODD, Acting P. J., ASHMANN-GERST, J.
“In order for the People to prove that the defendant is guilty of murder under a theory of felony murder [and that the special circumstance of murder committed while engaged in the commission of [Insert felony] is true], the People must prove that the [Insert felony] . . . and the act causing the death were part of one continuous transaction. The continuous transaction may occur over a period of time and in more than one location.
“In deciding whether the act causing the death and the felony were part of one continuous transaction, you may consider the following factors:
“1. Whether the felony and the fatal act occurred at the same place;
“2. The time period, if any, between the felony and the fatal act;
“3. Whether the fatal act was committed for the purpose of aiding the commission of the felony or escape after the felony;
“4. Whether the fatal act occurred after the felony but while [one or more of] the perpetrator[s] continued to exercise control over the person who was the target of the felony;
“5. Whether the fatal act occurred while the perpetrator[s] (was/were) fleeing from the scene of the felony or otherwise trying to prevent the discovery or reporting of the crime;
“6. Whether the felony was the direct cause of the death;
“AND
“7. Whether the death was a natural and probable consequence of the felony.
“It is not required that the People prove any one of these factors or any particular combination of these factors. The factors are given to assist you in deciding whether the fatal act and the felony were part of one continuous transaction.”
Vehicle Code section 2800.3 states the following: “(a) Whenever willful flight or attempt to elude a pursuing peace officer in violation of Section 2800.1 proximately causes serious bodily injury to any person, the person driving the pursued vehicle, upon conviction, shall be punished by imprisonment in the state prison for three, five, or seven years . . . . [¶] (b) Whenever willful flight or attempt to elude a pursuing peace officer in violation of Section 2800.1 proximately causes death to a person, the person driving the pursued vehicle, upon conviction, shall be punished by imprisonment in the state prison for a term of 4, 6, or 10 years. [¶] . . . [¶] (d) For the purposes of this section, ‘serious bodily injury’ has the same meaning as defined in paragraph (4) of subdivision (f) of Section 243 of the Penal Code.”
Section 243, subdivision (f)(4), provides, as follows: “(4) ‘Serious bodily injury’ means a serious impairment of physical condition, including, but not limited to, the following: loss of consciousness; concussion; bone fracture; protracted loss or impairment of function of any bodily member or organ; a wound requiring extensive suturing; and serious disfigurement.”