Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 050176.
Haerle, Acting P.J.
I. INTRODUCTION
Defendant Dominique Wright was convicted of two counts of first degree murder (Pen. Code, § 187), and one count of first degree robbery (§§ 211 and 212.5, subd. (a)). The jury also found true (1) felony murder special circumstance as to the first count of murder (§ 190.2, subd. (a)(17)), (2) a multiple murder special circumstance (§ 190.2, subd. (a)(3)) as to the second count of murder, and (3) firearm enhancement allegations as to both counts (§ 12022.53, subds. (b), (c), and (d)). Wright was sentenced to two consecutive life terms without possibility of parole for the two murders and two consecutive terms of 25 years to life for the gun enhancements. The court stayed sentences on the robbery and firearm enhancements under section 654.
All further statutory references are to the Penal Code, unless otherwise noted.
On appeal, Wright argues that, although he conceded he was guilty of murder, the felony murder conviction was based on a legally insufficient theory and, pursuant to People v. Guiton (1993) 4 Cal.4th 1116 (Guiton), both it and his conviction for premeditated murder must be reversed. In addition, he argues that he was improperly sentenced on the robbery count.
We affirm the judgment, with the exception of the sentence on the robbery count, which the People concede must be reduced.
II. FACTUAL AND PROCEDURAL BACKGROUND
In August 2002, Karen Novak discovered that her husband, Joshua Novak, had lost $40,000 of her money trading stocks on the Internet. In October, Joshua was arrested and sent to jail for an unrelated matter.
Unless otherwise noted, all further dates refer to 2002.
Promising his wife that he would pay her back the money he had lost, Joshua arranged, from his jail cell, to have a check delivered to his wife in the amount of $14,000. Karen was to cash the check, keep $5,000 for herself, and give the remaining money to one of Joshua’s associates. These “associates” were affiliated with a man named either Miguel or Manuel Quiroga. The check arrived and, a few days later, a man and a woman arrived at Karen’s house to collect the remaining money.
Karen took the check to the bank, deposited it and gave the couriers $9,000. The check bounced, leaving Karen owing her bank $9,000. Joshua then had a cashier’s check delivered to Karen in the amount of $17,000. Karen deposited this check, which also bounced.
Joshua promised that he and “Miguel” would compensate her for the amount of money she had lost. Joshua told Karen that he and Miguel would have three pounds of methamphetamine delivered to her, with the understanding that she would sell the drugs for $10,000 a pound, thereby recouping the moneys he had lost.
After initially agreeing to this scheme, Karen changed her mind, and told Joshua that she did not want the drugs in her house. Although Joshua told her he would stop the delivery, several days later, on a Friday evening, the methamphetamine was delivered to Karen’s front door by two men. Karen told the men, through the door, that she did not want the package. The men told her that they were not authorized to take it back and said, “Miguel sends his regards.” The men were dressed in heavy ski coats and baseball hats.
Karen did not pick the package up from the porch. Instead, she called her daughter, and her daughter’s boyfriend, Leron Morris, and asked them to come home. Both Karen’s daughter and Morris lived with Karen. About twenty or thirty minutes later, they arrived. Morris, who already knew about the bounced checks, brought the package into the house. Morris put the package in the dresser in his room.
The drugs were in a “freezer-style ziplock bag.” Karen brought the bag into her bedroom and took a “small bit” of the methamphetamine out of it. She was, at that time, a methamphetamine addict. The drugs that had been delivered were, in Karen’s opinion, bad. Karen was afraid to keep the drugs and had no one to sell them to.
Karen asked Morris to help her get the drugs back to the person who had dropped them off. She testified that she also “wanted him [Morris] to get the point across for these people not to just drop by my house when they wanted to.” She did not tell Morris how to “make that point,” but she “figured he would probably know what to say to them.” Karen wanted Morris, and defendant, who is Morris’s cousin, to scare the people who picked up the drugs “so they would never come to my house again.”
Joshua called the next day and gave Karen a telephone number to call to get someone to pick the drugs up. The person she called was named “JP.” JP arranged to have the drugs picked up on a Monday, three days after they had been delivered. That date was December 16.
On that day, Karen left home at 11:15 a.m. to go to a chiropractor appointment and then on to work. JP had not yet arrived. Morris and defendant were in the garage installing a car stereo. Karen was aware that there was a handgun on top of the china cabinet in the entry way to her house.
“JP” called her on her cell phone while she was at work, and said “his people were there . . . .” Karen called her house immediately afterward, at around 1:00 p.m., but no one answered. Concerned that something bad had happened, she left work and began to drive home. About half an hour later she spoke to Morris, who told her everything was fine and that she should go back to work. Although she was only several houses down from her own, she turned around and went back to work. Before she did so, she noticed an “older maroon car” backed into her driveway.
The police came to her house several days later and told her that “JP” had been killed.
On Friday, December 13, Jared Pulliam, who was known as “JP,” told Nicole Barnes that he was going to Concord to drop off some drugs. He left behind a map showing how to get to a house in Concord. That house turned out to be Karen’s house. Three days later, he told Stephanie Barnes that he was going back out to the house.
The morning of Monday, December 16, Pulliam shared methamphetamine with Cristal Langston, a woman he had just met. He persuaded Langston to go with him to Concord.
On December 16, two bodies, identified as those of Pulliam and Langston, were found in the trunk of a burning car. They were naked, their hands were bound with duct tape, and their heads were covered with pillows. Pulliam had two bullet wounds in his brain and one in his neck. His face was bruised. Langston had been shot in the neck twice and had bled to death.
On Wednesday, December 18, the police arrested Morris for the murders of Pulliam and Langston. Nine months later, the police found defendant hiding in an attic in Vallejo and arrested him. The methamphetamine was never found.
During more than two hours of interviews, defendant eventually admitted that Morris had called him and asked him to be there when someone came to pick up the drugs from Karen’s house. Defendant got a shotgun and a pistol from his father a few days before the incident. Defendant opened the door when Pulliam arrived. Morris showed Pulliam the shotgun and ordered him into a bedroom in the back of the house. After questioning Pulliam about the drugs, Morris ordered Pulliam to take his clothes off. Langston knocked on the door and Morris answered. Morris led her to the back bedroom and told her to disrobe. Defendant duct taped both the victims’ hands in order to scare them.
The victims were taken into the garage, and forced into the trunk of their car. Morris had defendant get a pillow, which Morris placed in the trunk. Morris fired at Pulliam once and then, when he began choking, fired at him again. Langston screamed and Morris shot her. Morris then gave defendant the pistol and told him to shoot the victims. Defendant fired one shot at Langston and another at Pulliam.
Karen’s daughter drove the car to a road where Morris set the car on fire with the victims in the trunk. Defendant said he took some of the methamphetamine but did not know what happened to the rest.
In an interview with an inspector from the Contra Costa District Attorney’s office, defendant said he secured the pistol from his father after Morris told him he planned to rob the people coming for the dope. Their plan was to scare the people and steal the drugs. Defendant took a chunk of the methamphetamine, which he later sold for $400.
Defendant said that, if he did not shoot Pulliam, he was certain Morris would shoot him. He also told the inspector that he had actually shot the victims first and had then given the gun to Morris who shot them also. He also said “It [the murder] wasn’t about no drugs,” but rather was because he was scared for his life.
As noted above, jury found defendant guilty of two counts of first degree murder (§ 187), and one count of first degree robbery (§§ 211 and 212.5, subd. (a)). The jury also found true a felony murder special circumstance as to the first count of first degree murder (§ 190.2, subd. (a)(17)), and a multiple murder special circumstance (§ 190.2, subd. (a)(3)) as to the second count of first degree murder, as well as a firearm enhancement allegations as to each count (§ 12022.53, subds. (b) and (c), and (d).) Defendant was sentenced to two consecutive life terms without possibility of parole for the two murders and two consecutive terms of 25 years to life for the gun enhancements. He was also sentenced to the mid-term, or six years, for the robbery conviction and 25 years to life for the gun enhancement. The court stayed sentences on the robbery and enhancement under section 654.
This timely appeal followed.
III. DISCUSSION
A. Felony Murder Conviction
The trial court instructed the jury on a felony murder/robbery theory, as well as on willful, deliberate, and premeditated murder. Defendant argues that the felony murder conviction was based on a legally insufficient theory and, pursuant to Guiton, supra, 4 Cal.4th 1116, both it and his conviction for premeditated murder must be reversed. We disagree.
Guiton applies to those situations in which a jury is instructed with both valid and invalid theories and returns a general verdict without announcing the theory on which it rested its decision. In such a situation, “[i]f the inadequacy of proof is purely factual, of a kind the jury is fully equipped to detect, reversal is not required whenever a valid ground for the verdict remains, absent an affirmative indication in the record that the verdict actually did rest on the inadequate ground. But if the inadequacy is legal, not merely factual, that is, when the facts do not state a crime under the applicable statute, as in [People v. Green (1980) 27 Cal.3d 1], the Green rule requiring reversal applies, absent a basis in the record to find that the verdict was actually based on a valid ground.” (Guiton, supra, 4 Cal.4th at p. 1129.)
In this case, the court instructed the jury on the elements of robbery as the crime underlying the felony murder charge. The jury was instructed, pursuant to CALJIC No. 9.40, that a robbery consists of the following elements: “(1) A person had possession of property of some value however slight; [¶] (2) The property was taken from that person or from his immediate presence; [¶] (3) The property was taken against the will of that person; [¶] (4) The taking was accomplished either by force or fear; and [¶] (5) The property was taken, with specific intent, permanently to deprive that person of the property.”
Defendant argues that this instruction was legally inadequate because the facts of this case do not constitute a robbery. He makes several arguments in this vein, arguments which we consider separately and all of which we ultimately reject.
1. Possession of the Methamphetamine
Defendant contends that, when Pulliam arrived at Karen Novak’s house on December 16, the drugs were not in Pulliam’s possession, but in Novak’s. Defendant argues, therefore, that no robbery took place because Pulliam did not have possession or control of the drugs.
We disagree. It is well established that one need not own property to “possess it.” As one court puts it “possession” “equates with the word ‘custody’ when considering the crime of robbery.” (People v. Gordon (1982) 136 Cal.App.3d 519, 528.) Therefore, a robbery can occur when property is taken from its “lawful custodian.” (Id. at p. 529.)
Here, the drugs were initially in Novak’s possession. However, when she discovered that they were of poor quality, and determined that she could not sell them, she requested that they be returned to the person who had brought them to her. When Pulliam arrived at her house on December 16, Novak had relinquished possession of the drugs to him. Pulliam, as the assigned courier, became the custodian of this property and, therefore, had constructive possession of it. (People v. Gordon, supra, 136 Cal.Ap.3d at p. 529.)
A case defendant asserts undermines this conclusion, People v. Barnes (1997) 57 Cal.App.4th 552 (Barnes), in fact supports it. In Barnes, a drug buyer discovered that he had been sold cocaine that was, in his opinion, “bunk.” The buyer returned the drugs and demanded that he be given his money or better drugs back. The police arrived and witnessed the dealer throwing a vial of cocaine at the buyer. The vial fell to the ground. The Barnes court held that the buyer did not have constructive possession of the cocaine. Similarly, here, having refused the methamphetamine and requested that it be returned, Novak no longer had possession of it.
2. Taking
Defendant argues that the drugs were not “taken” from Pulliam when he arrived at Novak’s house because they were not under Pulliam’s control, but under the control of Morris and defendant. This is incorrect.
A taking by force or fear occurs when a perpetrator gains possession of property that is not rightfully his, and prevents the recovery of that property through force or fear. (People v. Estes (1983) 147 Cal.App.3d 23 (Estes); People v. Cooper (1991) 53 Cal.3d 1158, 1165, fn. 8 [approving the principles announced in Estes].)
Thus, for example, in Estes, the defendant who had taken items from a Sears store was confronted in the parking lot of a Sears store by a security guard attempting to recover the items. Defendant brandished a knife and threatened to kill the guard. (Estes, supra, 147 Cal.App.3dat p. 26.) Our colleagues in Division Five held that the security guard had constructive possession of the stolen items, and that defendant’s effort to prevent him from regaining control of the stolen items by threatening him with a knife amounted to a taking of property from the security guard’s presence. (Id. at p. 28.)
Here, Pulliam, rather than defendant and Morris, had constructive possession of the drugs. Defendant’s and Morris’s assertion of ownership over the drugs does not alter this fact, just as a thief’s assertion of control over items stolen from a store does not give him “possession” of that property. Defendant prevented Pulliam from retrieving the drugs by killing him. Consistent with Estes and Gunter this amounts to a “taking” by force or fear. (See also People v. Estrada (2006) 141 Cal.App.4th 408, 416.)
At oral argument, defendant’s counsel discussed, for the first time, People v. Gomez (2008) 43 Cal.4th 249. Gomez simply reiterates the general principles regarding robbery articulated in this opinion and does not alter our decision in any way.
3. Immediate Presence
Defendant also suggests that, because the drugs were not in the rooms where Pulliam was present, they could not have been taken from his “person or immediate presence.” (CALJIC No. 9.40) We disagree.
Property that is located in “‘another room of the house or in another building on [the] premises’” is, nevertheless, considered to be in the victim’s immediate presence. (People v. Hayes (1990) 52 Cal.3d 577, 627.) Thus, for example, in People v. Holt (1997) 15 Cal.4th 619, 675, property taken from the victim’s kitchen was considered to be in her immediate presence despite the fact that she was killed in her bedroom.
Further, we disagree with any suggestion that there was insufficient evidence that the drugs were in the house. Defendant admitted that, on December 16, he returned to Karen Novak’s house and took some of the methamphetamine which, he stated, he sold for $400. Although the drugs were never found, there is no evidence that they were not in the house when Pulliam was killed. To the contrary, Karen Novak’s testimony makes it clear the drugs were in the house when she left for work, and defendant’s testimony confirms that the drugs were in the house when he took some of the methamphetamine after the killing.
4. Possession of Illegal Drugs
Defendant also argues that Pulliam could not have had constructive possession of the methamphetamine because the dealer on whose behalf he acted could not be considered the “rightful owner” of property that is contraband. We also reject this argument.
Defendant contends that Pulliam “had no right in law to recover possession from [Novak] or to exercise control over the drugs in any way.” The cases defendant cites in support of this argument, Barnes, supra, 57 Cal.App.4th at p. 557 and People v. Gates (1987) 43 Cal.3d 1168, 1181 (Gates), are inapposite, however, because they concern a legal principle that is not at issue here. Both Barnes and Gates concern a “claim of right” defense asserted by a defendant to a robbery charge. In both cases, the defendant argued that he could not be convicted of “taking” property because he had a good faith belief that he had a right to the property. In rejecting this defense, the Gates court held that “[a]s a matter of law, one cannot have a good faith belief that he has a right to property when that ‘right’ is rooted in a notoriously illegal transaction.” (Gates, supra, 43 Cal.3d at p. 1182.)
The principle articulated in Gates is inapplicable here. A “claim of right” to property is a defense to a robbery charge and certainly is not one which defendant is asserting in this case. Nor is it the case, as defendant argues, that a victim cannot be considered to have possession of property simply because that property is contraband. In both People v. Ballard (1991) 1 Cal.App.4th 752, 754 and People v. Gordon, supra, 136 Cal.App.3d at pp. 524, 529, the property as to which a robbery conviction was based were illegal drugs. In Ballard, for example, a first degree felony murder conviction was based on the robbery of cocaine from the victim. In Gordon, two pounds of marijuana were taken.
It is difficult to see how the law could be otherwise. This case perfectly illustrates the dangers involved in buying and selling illegal drugs. To conclude that illegal drugs such as methamphetamine cannot be the object of a violent crime, would be tantamount to giving immunity to those who use violence while carrying out a drug-related transaction. In sum, defendant’s argument that there can be no constructive possession of illegal drugs is untenable, and we reject it.
We conclude, therefore, that the court did not err in instructing the jury on felony murder based on the robbery of the drugs. We reject, therefore, defendant’s argument that the jury improperly found true a multiple murder special circumstance allegation because its felony murder conviction was invalid.
B. Robbery Sentence
The trial court sentenced defendant to the mid-term of six years under section 213, subdivision (a)(1)(A), which concerns robbery “in concert with two or more other persons . . . .” Defendant points out that the information does not allege that he committed the charged robbery while acting in concert and, therefore, the court did not have a proper basis for sentencing him under this section.
The People concede that the court erred, a concession with which we agree. The court should have sentenced defendant to the mid-term of four years under section 213, subdivision (a)(1)(B), which applies to all cases other than those involving persons acting in concert to commit robbery.
IV. DISPOSITION
The abstract of judgment shall be modified to impose the mid-term of four years for the conviction of robbery. In all other respects, the judgment is affirmed.
We concur: Lambden, J., Richman, J.