Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Richard F. Toohey, Judge. Super. Ct. No. 06ZF0138
David Y. Stanley, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Bradley A. Weinreb, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Sills, P.J., Aronson, J., and Ikola, J.
Appellant Brandon Michael Turner complains the jury’s true finding of the special circumstance must be reversed because the trial court failed to instruct on an essential element of the special circumstance. We find any error harmless and the judgment is affirmed in its entirety.
FACTS
On the evening of Super Bowl Sunday in 2006, Brandon Michael Turner was at Reuben Avery’s residence in Oceanside with his younger brother and accomplices Stephen Joseph Bennett and Bernard Smith. In an effort to obtain drugs, Bennett called the victim, Brian Gray, to arrange a transaction which involved driving to Irvine with Smith, Turner, and Turner’s younger brother in order to rob Gray. Before they arrived at a prearranged location, Bennett stopped to make sure “everything was straight.” According to Turner, Smith had “the deuce” and he had a.38-caliber firearm which he gave to Smith to “check [ ] out” and then returned to Turner. When they arrived in Irvine at a location near a carwash and high density apartment complex, Smith and Turner got out of the car to look for Gray.
According to four witnesses who were either visiting or lived at the apartment complex where the shooting took place, they heard a number of gunshots and saw two black men chasing another black man as he desperately yelled for help. According to witness Piruza Balyan, she initially saw one man chasing and shooting at another man. According to Baylan, a third man joined the chase yelling and running faster than the other two men. Balyan testified that after the three men were out of sight, she heard additional gunshots.
Witness Jesse Morrow also testified that he heard the gunshots. According to Morrow, when he looked out of his window he saw one man chasing another man before they ran out of his sight. Morrow testified that some time had passed when a third man “ran up and slowed down right in the area, right in my view, and stopped and kind of hitched up his pants” saying “get him. Get him.” Morrow described the third man as being a “more heavyset fellow.” Morrow also described the third person as “bigger,” “slower,” and that “he seemed a bit heavyset.”
Witness Roberto Sanchez testified that when he heard the shots, he looked outside his window and saw one man chasing another. According to Sanchez, he saw the man doing the chasing change the magazine of his gun and then shoot at the first man. Sanchez testified that the man being chased fell and the man doing the chasing continued shooting at him even after he was down on the ground. According to Sanchez, the man doing the chasing that changed his magazine was heavy compared to the thinner man he met up with afterward as they calmly walked back to where they came from.
Witness Amy Anton also testified that after she heard the shots, she looked outside her window and saw a man that she described as a “little husky” shoot a silver gun while chasing another man.
At trial, Turner took the position that descriptions of the heavier man were references to Smith based on the testimony of an Irvine police officer that at the time of the offense in February 2006, Smith was about five feet six inches tall, and weighed approximately 190 pounds and Turner was about six feet one inch tall and approximately 200 pounds.
Avery, who Turner deems is “inherently suspect because of his ex-felon status and admitted drug use,” testified that on the night of the offense Turner described the shooting and explained that when Smith saw Gray at the apartment complex, Smith started shooting at Gray but missed, so Turner chased Gray and shot at him also. Avery testified that Turner said he shot at Gray nine times but did not know if he actually hit Gray. However, when Avery was reminded of a prior interview with a police officer recounting his conversation with Turner, Avery admitted that Turner bragged that when he shot at Gray, he “just emptied on him,” and said, “I stuck about nine in him.” Avery testified that during their conversation, Turner showed him a.22-caliber firearm and a one-fourth ounce of cocaine that he received as a result of his participation in the robbery. Avery also testified that one to two weeks before the offense, Smith had shown him.38-caliber bullets with buckshot.
Just before Turner was arrested, he fled from police and discarded a silver.22-caliber firearm which the police recovered. The police also recovered a magazine with ten.22-caliber bullets located by a citizen. Gray’s autopsy revealed that he had been shot six times. Three of the five wounds from a.22-caliber firearm were lethal. One shot entered the side of Gray’s chest, another shot entered his lower back and pierced his heart and lung, and a third shot entered his lower back and passed through his liver and bowels. The remaining two shots from the.22-caliber firearm passed through the back of his right arm and the back of his left thigh. The only shot attributed to the.38-caliber firearm left multiple pellet holes in Gray’s calf region and was determined by the forensic pathologist that testified to be nonlethal. The People also presented evidence from a forensic scientist who testified that the three bullets recovered from the autopsy and the seven bullet casings collected from the crime scene were fired from the.22-caliber firearm that Turner discarded while being chased by the police.
After Turner was arrested, he agreed to waive his Miranda rights and speak to the police. During questioning Turner admitted shooting the.38-caliber firearm at the victim first, but thought he missed because Gray seemed to be unaffected by the shots and kept running. Turner also admitted that as he chased Gray, he stopped to pick up the drugs that Gray had either thrown on the ground or maybe fell out of his pocket as he was being chased. According to Turner, after he retrieved the drugs he returned to the car. Turner surmised that Smith was unaware that he had picked up the drugs which explained why Smith continued chasing Gray telling him to “give it up” as he shot him.
Turner was charged in count 1 of an amended indictment with first degree murder (Pen. Code, § 187, subd. (a)), second degree robbery in count 2 (§§ 211, 212.5, subd. (c)), and sale or transportation of a controlled substance in count 4 (Health & Saf. Code, § 11352, subd. (a)). The indictment also alleged a special circumstance as to count 1, that Gray was murdered while Turner was engaged in the commission or attempted commission of a robbery (§ 190.2, subd. (a)(17)(A)), and enhancements for personal discharge of a firearm causing death with respect to counts 1 and 2 (§ 12022.53, subd. (d)).
All further references are to the Penal Code unless otherwise indicated.
Turner, Bennett, and Smith were originally charged as a codefendants until the trial court granted the People’s motion to sever Turner’s case from Bennett and Smith. Count 3 of the amended indictment alleged possession of a firearm by a felon only against Bennett and Smith.
At the end of deliberations, the jury found Turner guilty of all counts, the special circumstance, and the enhancements as charged. After his motion for a new trial was denied, Turner was sentenced to life without the possibility of parole for first degree murder and the true finding of the enhancement that Gray was murdered during the commission of a robbery. Turner was also sentenced to a consecutive term of 25 years to life for the true findings of the firearm enhancements, the upper term of five years for second degree robbery, stayed pursuant to section 654, and a concurrent four-year midterm for the controlled substance offense for a total term of life without the possibility of parole, plus a consecutive term of 25 years to life.
DISCUSSION
At issue is the special circumstance that Turner killed the victim during the commission and attempted commission of a robbery, converting his conviction for first degree murder from a life sentence with the possibility of parole, into an actual life sentence without the possibility of parole. Although the special circumstance in this case alleged that Turner murdered the victim while engaged in the commission and attempted commission of a robbery, there were also facts in this case from which the jury could have concluded that Turner was not the actual killer but instead, an accomplice to the robbery at the time the victim was murdered.
The jury was instructed with the elements of the special circumstance in Judicial Council of California Criminal Jury Instructions CALCRIM No. 730 which advised the jury that in order to find the special circumstance true, the People had to prove that “1. The defendant committed or attempted to commit, or aided and abetted a Robbery; [¶] 2. The defendant intended to commit or intended to aid and abet the perpetrator in committing a Robbery; [¶] 3. The defendant or the perpetrator did an act that caused the death of another person; AND [¶] 4. The act causing the death and the Robbery were part of one continuous transaction.”
The trial court also instructed the jury that the People have the burden of proving the special circumstance beyond a reasonable doubt, and if the People have not met this burden, the jury must find the special circumstance has not been proven. The trial court explained, “[i]n order for you to return a finding that a special circumstance is or is not true, all 12 of you must agree.”
If Turner was the actual killer in this case, the truth of the special circumstance is clear. However, because the jury could have concluded that Turner was an accomplice and not the actual killer, the trial court instructed the jury that before it could find the special circumstance true as to an accomplice, it first had to determine whether Turner had the requisite intent of an accomplice. As such, the jury was instructed with CALCRIM No. 703 which states, “[i]f you decide that the defendant is guilty of first degree murder but was not the actual killer, then, when you consider the special circumstance, you must also decide whether the defendant acted either with intent to kill or with reckless indifference to human life. [¶] In order to prove this special circumstance for a defendant who is not the actual killer but who is guilty of first degree murder, the People must prove either that the defendant intended to kill, or the People must prove all of the following: [¶] 1. The defendant was a major participant in the crime; AND [¶] 2. When the defendant participated in the crime, he acted with reckless indifference to human life. [¶] A person acts with reckless indifference to human life when he knowingly engages in criminal activity that he knows involves a grave risk of death. [¶] The People do not have to prove that the actual killer acted with intent to kill or with reckless indifference to human life in order for the special circumstance to be true. [¶] If the defendant was not the actual killer, then the People have the burden of proving beyond a reasonable doubt that he acted with either the intent to kill or with reckless indifference to human life and was a major participant in the crime for the special circumstance to be true. If the People have not met this burden, you must find this special circumstance has not been proved true.”
The jury found the special circumstance to be true, but the verdict form does not designate whether the jury determined Turner was liable as the actual killer or as an accomplice. According to Turner, the jury’s true finding of the firearm enhancement in this case does not represent a consensus on which gun he used and therefore when considering the special circumstance, some jurors could have concluded that Turner shot the victim in the calf with the.38-caliber firearm while other jurors may have determined that he fired the.22-caliber firearm that delivered the fatal bullets that penetrated the victim’s heart, lung, and liver. Turner contends that because the jury may not have been able to agree on whether he was the actual killer, the trial court should have instructed the jury with the bracketed paragraph of CALCRIM No. 703 that explains “[i]f you decide that the defendant is guilty of first degree murder, but you cannot agree whether the defendant was the actual killer, then, in order to find (this/these) special circumstance(s) true, you must find either that the defendant acted with intent to kill or you must find that the defendant acted with reckless indifference to human life and was a major participant in the crime.”
According to Turner, by not instructing the jury with the portion of CALCRIM No. 703 which explains how to reach a true finding if the jury cannot agree on whether Turner is the actual killer, the trial court erred by failing to properly instruct the jury on all essential elements of the special circumstance.
Although we agree that some jurors could have determined that Turner fired the fatal bullets from the.22-caliber firearm and other jurors may have concluded that he shot the victim in the calf with the.38-caliber firearm, which would have made it easier for Smith to catch the victim and fire the fatal bullets, any error based on the trial court’s failure to instruct the jury with the omitted portion of CALCRIM No. 703 was harmless beyond a reasonable doubt (Chapman v. State of California (1967) 386 U.S. 18, 24) because it would not have altered the result of the trial. “‘[W]hen a trial court fails to instruct the jury on an element of a special circumstance allegation, the prejudicial effect of the error must be measured under the test set forth in Chapman v. California (1967) 386 U.S. 18, 24. [Citation.] Under that test, an error is harmless only when, beyond a reasonable doubt, it did not contribute to the verdict.’ [Citation.]” (People v. Jones (2003) 30 Cal.4th 1084, 1119.)
If the jury believed that Smith, the heavier man, fired the fatal bullets and that Turner was not the actual killer, then in order for the jury to find the special circumstance true, the People had to prove, and all 12 jurors had to agree, that Turner had an intent to kill or, as a major participant in the robbery, acted with reckless indifference to human life. If the jury could not agree whether Turner was the actual killer, the People still had to prove, and all 12 jurors still had to agree, that Turner had an intent to kill or, as a major participant in the robbery, acted with reckless indifference to human life. Given the record in this case, and the fact that the jury determined Turner was guilty of first degree murder, robbery, and found true the enhancements that he intentionally and personally discharged a firearm, even if the jury had been instructed with the omitted portion of CALCRIM No. 703, it is unreasonable to conclude that the jury would not have found that Turner acted with reckless indifference to human life as he and Smith chased after the victim while firing their respective guns in order to rob the victim.
Because it is unnecessary for the jury to find the facts on which the truth of a special circumstance is based, (People v. Kaurish (1990) 52 Cal.3d 648, 697) whether Turner used the.38-caliber or the.22-caliber firearm in this case is a distinction without a difference because the use and discharge of either firearm supports a true finding of the special circumstance beyond a reasonable doubt regardless of whether the jury determined that Turner was not the actual killer, or could not agree on whether Turner was the actual killer.
We also find any instructional error harmless in this case because there was no dissension amongst the jury regarding the finding of the special circumstance. The trial court instructed the jury with CALCRIM No. 730 which explained that before the jury could find the special circumstance true, all 12 jurors had to agree that Turner intended to kill the victim, or acted with reckless indifference while a major participant in the robbery. Not giving the additional instruction in this case was more likely to be an advantage because if all 12 members of the jury could not agree whether Turner was the actual killer, it was more likely that a divided jury would have resulted in a hung jury on the special circumstance because they were unaware that they could still find the special circumstance true even if their determination of whether Turner was the actual killer was not unanimous.
Because we find the evidence supporting the special circumstance to be so overwhelming, we conclude that any instructional error was harmless.
DISPOSITION
For the foregoing reasons, the judgment is affirmed.