P. v. Hartway

 

 

 

 

 

 

 

Filed 9/6/13  P. v. Hartway CA3

 

 

 

 

 

 

NOT TO BE PUBLISHED

 

 

California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b).  This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.

 

 

IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE
DISTRICT

(Sacramento)

----

 

 

 
>

THE PEOPLE,                           Plaintiff and Respondent,               v.   RICKY HARTWAY,                           Defendant and Appellant.

C066249   (Super. Ct. No. 09F06864)

 

 

 

 

            Following a
jury trial, defendant Ricky Hartway was convicted of two counts of href="http://www.mcmillanlaw.com/">robbery and one count of href="http://www.fearnotlaw.com/">attempted robbery.  The jury also found defendant was personally
armed with a firearm during the commission of these crimes.  The court sentenced defendant to an aggregate
term of six years two months in state prison. 
Defendant appeals, claiming instructional
error and ineffective assistance of counsel.

            We affirm.

>FACTUAL AND PROCEDURAL BACKGROUND

>Prosecution’s Case

            Crystal
Moore, assisted by her sister, Ashley, was looking to buy a car.  She found a green Saturn on Craigslist
being sold by a man named “Dwight Thomas.” 
When Crystal called the
telephone number listed, a woman answered; she said the car belonged
to her boyfriend and he would call Crystal
back.  A man, identifying himself
as â€œDwight Thomas” returned Crystal’s
call and said the car was in working condition. 
After several calls back and forth, “Dwight” finally told Crystal
to meet him in Rancho Cordova, off of Kiefer
Boulevard, so that she could look at the car.

            Crystal,
along with Ashley, Ashley’s son, and Crystal’s
friend Kayla, drove Ashley’s car to a gas station near the meeting point and
called “Dwight” again.  After several
calls back and forth, a woman answered “Dwight’s” phone and gave Crystal
further directions for meeting him.  The
women followed the directions and parked Ashley’s car on the corner of Rosewood
and Mojave, where they awaited further directions. 

            Several
minutes later, a green Saturn pulled up across the street, approximately
60 feet away, and parked facing Ashley’s car.  Defendant was alone in the Saturn.  Shortly after defendant parked, Aikon Suttles
walked up to the car.  He and defendant
then started talking.  The two spoke as
if they were friends, and continued talking for three or four minutes.  Ashley assumed they were selling the car
together. 

            Crystal
then received a call from a female who told Crystal
to park behind the Saturn.  Ashley drove
down the street, made a U-turn, and parked behind the Saturn.  By this time, Suttles had walked away
from defendant. 

            The women
then got out of Ashley’s car and started looking at the Saturn.  Defendant told the women the car ran “fine”
but acknowledged that the engine was missing the “serpentine belt.”  Suttles reappeared and was now wearing shorts
instead of the jeans he was wearing earlier. 
Suttles walked up to Crystal
and defendant, pulled out a gun, and pointed it at defendant’s chest.  Defendant did not react to the gun; he did
not jump or take a step backward, or even appear to be scared. 

            Suttles
yelled and cursed at defendant saying, “why are you trying to sell my car?  Give me my keys!”  Defendant replied, “I don’t know what you’re
talking about.”  Defendant walked calmly
away and stood across the street. 
Meanwhile, Suttles pointed the gun at Crystal’s head and demanded she
give him anything she had.  He said, “I
know you have money.”  He took the wallet
from Crystal’s purse and removed all the cash she had with her, approximately
seven hundred dollars in $100 bills and $20 bills.  When Crystal asked for her wallet back, he
threw it back at her.

            Suttles
then pointed the gun at Ashley’s head and told her to give him all her
money.  Ashley, terrified and shaking,
took $10 out of her wallet.  Suttles then
asked Kayla what was in her pocket.  She
said cigarettes and he demanded to see them. 
Kayla handed Suttles the cigarettes; he threw them on the ground and ran
away. 

            Defendant
then came back, knocked on Ashley’s window and asked, “What happened?  Did he get any money?”  Again, defendant did not appear to be scared
or nervous.  Instead, he had a “normal
look on his face” and a casual demeanor. 
Ashley ignored him, and defendant drove away in the Saturn.  Ashley followed defendant and saw the Saturn
break down in the middle of the street. 
Defendant got out and began pushing the Saturn.  A good Samaritan pulled over and helped
defendant push the car out of the street, onto the sidewalk.  Defendant then ran to the front of a house,
where the victims lost sight of him.  A
few minutes later, defendant ran back into the street, a white Pontiac pulled
up quickly, and defendant jumped in. 
There were two African-American women in the Pontiac, later identified
as defendant’s girlfriend, Ameerah, and his cousin, Tiana.  The Pontiac, with defendant inside, sped
away.  The 911 dispatcher, with whom the
victims were speaking, told them not to follow the car, and they complied. 

            A CHP air
operations officer who was monitoring law enforcement communications from a CHP
airplane saw the Pontiac through a high-power zoom camera.  He spotted the Pontiac leaving the area at a
high rate of speed, which he estimated at over 45 miles per hour in a
25-mile-per-hour zone.  He noted that the
car made a rapid right turn without stopping at a stop sign.  The officer testified he could not remember
the street the car was on when he first saw it, but after looking at a map
shown to him by counsel for Suttles, he said he would bet money it was Rosemont
Avenue.  The car did not stop from the
time the officer first saw it until its ultimate stop at Montoya and La Quinta,
although it slowed about halfway to that location, until it looked like a
normal car traveling through a neighborhood. 
When the car stopped, he saw two men get out of the backseat of the car. 

            James
Galovich, a Sacramento County sheriff’s deputy, was dispatched to the area in
which the crime had occurred.  He was
provided a physical description of defendant. 
Officer Galovich reached the area and located the two subjects.  At trial, he identified them as defendant and
Suttles.  Defendant and Suttles were then
taken into custody by sheriff’s deputies. 


            Galovich
found a black backpack on the ground next to the rear passenger tire of the
Pontiac.  He opened the main compartment
of the backpack and found paperwork bearing defendant’s name.  Underneath the paperwork, he found a loaded,
black .380-caliber Lorcin semiautomatic handgun.  The deputy also found a parking ticket, a
class schedule, and other papers bearing defendant’s name in a zippered
compartment.  In a smaller compartment,
which was also zipped up, he found a fee receipt in defendant’s name and $350
in cash.  There were three $100 bills,
two $20 bills and ten $1 bills.  Suttles
had another $185 in his pocket -- one $100 bill, four $20 bills and a $5
bill. 

Defense Case

            Defendant
testified.  He described his relationship
with Suttles as, “[l]ike my little bro.” 
Suttles lived with defendant’s mother. 


            Defendant
testified that his girlfriend, Ameerah, posted the car on Craigslist and set up
appointments with potential buyers to see the car.  He met the victims at Mojave and Imperial, a
location that is about two minutes from his mother’s house.  He sat in the passenger seat of the
car until they arrived.  As they were
looking at the car, Suttles walked up. 
Defendant denied talking to Suttles at all that day up until this
point.  Suttles said to defendant, “What’s up?” and then repeated,
“What’s up,” this time more seriously. 
Suttles pulled a gun and pointed it at defendant.  Suttles then turned the gun on the women
as they started to walk away.  Defendant
ran away, sprinting north on Imperial. 

            Defendant
went back to his car after about five minutes, but he took a different route
back.  He saw the victims in their car
and Suttles was gone.  He walked to the
victims’ car and knocked on their window to ask the women if they were okay,
but they did not want to talk to him.  He
testified that he suspected Suttles had robbed them, but was not sure.  Defendant drove his car away, leaving the
victims because they would not talk to him and because he had “somewhere to
be.”  He testified he was “concerned of
getting to where I got to be, I got stuff to do.”  As he drove away, he noticed the victims were
following him.  

            While
defendant was driving away, the car stopped running.  A man helped him push the Saturn to the
nearby home of his mother’s landlord. 
Nobody answered the door there, so defendant called Ameerah to come pick
him up.  He told Ameerah to pick him up
there, even though his mother’s house was around the corner.  He knew the victims had followed him and were
down the street watching, but he testified he was not worried about them
calling the police.  While he was waiting
for his girlfriend to arrive, he called Suttles to find out where he was. 

            Tiana and
Ameerah picked him up in Ameerah’s mother’s white Pontiac.  They had plans to go to an air show.  As they passed defendant’s mother’s house,
defendant saw Suttles coming out. 
Defendant told Tiana to stop so they could pick up Suttles.  Suttles was not going to the air show with
them.  When asked why he told Tiana to
stop to pick up Suttles, defendant said, “I don’t know cause my little brother
-- my little bro.  I was telling
them to stop.  I would have told them to
stop if I had seen him anywhere regardless. 
I would have stopped for him.” 
Defendant suspected Suttles had robbed the victims, but said nothing
about it.  After Suttles got in the car,
they went to Ameerah’s sister’s house at La Quinta and Montoya. 

            Earlier
that day, defendant had left his backpack on the back right passenger
seat floorboard of the car and it was there when Ameerah and Tiana picked
him up.  Defendant testified that when
they got to Ameerah’s sister’s house, defendant got out of the car, but
returned to retrieve a phone.  When he
returned, Suttles told defendant that he had put a gun in defendant’s
backpack.  Defendant took the backpack
out of the car because he did not want the children to get into it.  He dropped it when he saw the police coming straight
for him.  Defendant was then
arrested.  Defendant testified that
he did not participate in the robbery. 


            On
cross-examination by the prosecutor, defendant denied that anybody walked
up to him after he parked the Saturn and waited for the buyers to
arrive.  On cross-examination by counsel
for Suttles, defendant testified that Suttles did not walk up to him and
they never had a conversation during that time. 
He never told Suttles he was selling the car.  

            On
cross-examination by the prosecutor, defendant said he was surprised to see
Suttles when he showed up.  When Suttles
pointed the gun at him, defendant raised both hands and jumped back, visibly
frightened. 

            On
cross-examination by the prosecutor and counsel for Suttles, defendant
testified that Tiana did not drive up quickly when she and Ameerah picked him
up, and she did not speed away.  He said
the car traveled at a normal rate of speed. 


            On
cross-examination by counsel for Suttles, defendant testified that after Tiana
picked him up at the home of his mother’s landlord on Imperial, she drove up to
Mojave, then turned left onto Rosemont and right onto Autumnwood, where his
mother’s house is located.  There,
they picked up Suttles.  Defendant said
that if the CHP air officer testified the Pontiac drove down Rosemont and did
not stop until it got to Montoya and La Quinta, that testimony would be
wrong.  He also said the car did not run
any stop signs on the way. 

            At trial,
the jury was instructed on the elements of aiding and abetting.href="#_ftn1" name="_ftnref1" title="">[1]  During deliberations, the jury asked the
following question:  “Clarification of
Instruction 401 – the location of ‘and’ in the instruction.  Do all 4 need to apply, or just 3 and 4?  Also, at what point is a crime
‘OVER.’ â€  The trial court
responded:  “Regarding Instruction 401,
the conjunction ‘AND’ applies to all four prongs, i.e., all four must be proven
by the People beyond a reasonable doubt.

            “As to when
a crime is ‘OVER,’ as to robbery, please see Instruction 1603 relating to
reaching a ‘place of temporary safety.’ â€href="#_ftn2" name="_ftnref2" title="">[2] 

            Ultimately,
the jury found defendant guilty on all counts. 
The jury also found true the allegation that defendant was armed with a
firearm during the commission of his crimes. 
The court subsequently sentenced defendant to an aggregate term of six
years two months in state prison. 

>DISCUSSION

            Defendant
contends the trial court erred “by failing to fully instruct the jury
on the point at which a robbery ends for purposes of an aiding and
abetting theory of culpability.” 
Specifically, defendant argues that when the jury asked the court to
explain when the crime had “ended,” the court should have done more than
refer the jury to CALCRIM No. 1603.  


            Defendant
argues that while there was nothing “affirmatively erroneous” about what the court
told the jury, “the court’s instruction was erroneous by omission,” because it
“failed to instruct the jury that ‘a place of temporary safety’ has a
contextual meaning, namely, safety from the victims who may seek to recover
their property.”  He further argues that
“common sense” and the logic of differentiating between aider and abettor
liability and accessory after the fact liability dictates that the place of
temporary safety refers to safety from the owners, not safety from the police
or other third parties.  Defendant
contends that Suttles had already reached a temporary place of safety at
defendant’s mother’s house where they picked up Suttles, and the escape from
pursuing police officers has no bearing on the temporal duration of the
robbery. 

            However,
defendant did not object to the trial court’s response to the jury’s
inquiry.  Thus, defendant is barred from
arguing on appeal that a more elaborate response should have been given.  (People v.
Medina (1990) 51 Cal.3d 870, 902; People v.
Christopher (2006) 137 Cal.App.4th 418, 427.)  If defendant wanted a more detailed response,
he should have proposed one in the trial court. 
(Medina, supra, 51 Cal.3d at p. 902.) 

            Defendant’s
additional contention, that trial counsel was incompetent in not proposing a
more detailed response to the jury’s inquiry, also fails.  To establish ineffective assistance of
counsel, a defendant must show (1) counsel’s performance was below an
objective standard of reasonableness under prevailing professional norms, and
(2) the deficient performance prejudiced defendant.  (Strickland v.
Washington (1984) 466 U.S. 668, 691-692 [80 L.Ed.2d 674] (>Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 216-217 (>Ledesma).)  “ â€˜Surmounting Strickland’s high bar is never an easy task.  [Citation.]’ â€  (Harrington v.
Richter (2011) ___ U.S.___, ___ [178 L.Ed.2d 624, 642 (>Richter), quoting Padilla v. Kentucky (2010) 559 U.S. 356, ___
[176 L.Ed.2d 284, 297].)

            The reason
why Strickland’s bar is high is
because “[a]n ineffective-assistance claim can function as a way to escape
rules of waiver and forfeiture and raise issues not presented at trial, and so
the Strickland standard must be
applied with scrupulous care, lest ‘intrusive post-trial inquiry’ threaten the
integrity of the very adversary process the right to counsel is meant to
serve.  [Citation.]  . . . It is ‘all too tempting’ to
‘second-guess counsel’s assistance after conviction or adverse sentence.’  [Citations.] 
The question is whether an attorney’s representation amounted to incompetence
under ‘prevailing professional norms,’ not whether it deviated from best
practices or most common custom. 
[Citation.]”  (>Richter, supra, ___ U.S. at p. ___ [178 L.Ed.2d at
pp. 642-643].)

            To
establish prejudice, “It is not enough ‘to show that the errors had some
conceivable effect on the outcome of the proceeding.’ â€  (Richter,
supra, ___ U.S. at p. ___
[178 L.Ed.2d at p. 642].)  To
show prejudice, defendant must show a reasonable probability that he would have
received a more favorable result had counsel’s performance not been
deficient.  (Strickland, supra,
466 U.S. at pp. 693-694; Ledesma,
supra, 43 Cal.3d at
pp. 217-218.)  “A reasonable
probability is a probability sufficient to undermine confidence in the
outcome.”  (Strickland, supra, 466 U.S.
at p. 694; accord, Ledesma, >supra, 43 Cal.3d at
p. 218.) 

            Defendant
argues on appeal that the jury’s question indicated the jury was leaning toward
a finding that defendant did nothing more than help Suttles escape; thus making
defendant guilty only of being an accessory after the fact.  We disagree. 
We can read nothing more into the jury’s note than that one or more
jurors had the questions that were posed. 
We reject the contention that we can determine what the entire jury was
thinking based on a jury question.href="#_ftn3"
name="_ftnref3" title="">[3] 

            We observe
that defendant has not suggested language for the instruction he contends
should have been proposed at trial by trial counsel.  The failure to do so is telling on the first
prong of the ineffective assistance of counsel test.  It is defendant’s burden to establish both
prongs of the analysis.  If a
nonargumentative instruction cannot be proposed here, we cannot conclude that
trial counsel was deficient for not having done so.

            Moreover,
the concepts that defendant suggests a clarifying instruction should have
covered are not supported by the authority upon which defendant now
relies.  Indeed, there is no authority
directly supporting what defendant now proposes in concept.  Trial counsel was not incompetent for failing
to divine a new and unique legal theory, not supported by precedent, instead of
allowing the court to tell the jury that the answer to its question could be
found in the standard instruction.  As a
matter of common sense, an attorney is not required to raise a novel argument
or raise objections which could only be sustained by cases yet to be
decided.  (In re Richardson (2011)
196 Cal.App.4th 647, 661; In re Woods (1966) 64 Cal.2d 3,
7-8.) 

            Defendant
relies primarily on People v. Cooper
(1991) 53 Cal.3d 1158 (Cooper).  In Cooper,
the defendant drove the two codefendants to the parking lot of a shopping
center.  After parking the car, the three
alighted and conversed a short while.  At
one point, defendant walked over to a wall, looked over the top and returned to
the car.  Several minutes later, the
codefendants ran across the parking lot, slammed into an elderly man and stole
his wallet.  They then fled back to the
car, jumped in, and defendant hurriedly drove them away.  (Cooper,
supra, 53 Cal.3d at
p. 1161.)  The Supreme Court
concluded that the trial court’s instructions improperly tied the duration of
the robbery to the concept of escape. 
The instructions permitted the jury to conclude that a getaway driver,
who has no knowledge of a robbery until the robbers enter the getaway car, is
liable as an aider and abettor even if the robbers he transports are not
carrying away the loot during the escape. 
(Cooper, supra, 53 Cal.3d at p. 1161.)

            Our high
court held, “The asportation, the final element of the offense of robbery,
continues so long as the stolen property is being carried away to a place of
temporary safety.  Accordingly, in order
to be held liable as an aider and abettor, the requisite intent to aid and
abet must be formed before or during such carrying away of the loot
to a place of temporary safety. 
Therefore, a getaway driver who has no prior knowledge of a robbery, but
who forms the intent to aid in carrying away the loot during such asportation,
may properly be found liable as an aider and abettor of the robbery.”  (Cooper,
supra, 53 Cal.3d at
p. 1161, italics added.)  The court
concluded that the trial court’s erroneous instruction was harmless, because
the carrying away of the stolen property to a place of temporary safety coincided
with the escape in that case.  (>Ibid.) 
The court said nothing that would suggest a “place of temporary safety”
excludes places to which pursuing police might track the perpetrators and is
instead limited to places that are safe from victims who may seek recovery of
the stolen property.  >Cooper does not support defendant’s
novel theory.

            Defendant
also relies on People v. Fields
(1983) 35 Cal.3d 329, in which the jury was instructed with former CALJIC
No. 915, as modified by the court, which read, “ â€˜A robbery is complete
when the perpetrator . . . has reached a place of temporary safety
and is in unchallenged possession of the stolen property after having effected
an escape with such property.’ â€  (Fields, supra, 35 Cal.3d at
p. 364.)  In Fields, the victim was at the defendant’s residence when the
defendant compelled the victim by force to write a check, which was then cashed
by the defendant’s sister and given to the defendant.  Thereafter, defendant and his sister drove
the victim away from the residence and killed her.  The court wrote, “We recognize that when
[defendant’s sister] returned with the proceeds of [the victim’s] check and
gave them to defendant, he had control of the robbery proceeds in his own
residence.  That residence, however, was
not a place of safety so long as [the victim] was held prisoner.  [Citation.] 
In an unguarded moment, she might escape, notify the police, and render the [defendant’s]> residence quite unsafe for defendant.  In order to complete a successful escape with
the robbery proceeds, defendant either had to dispose of her, which he did, >or flee to some other place >which she could not identify for the police.”  (Fields, supra, 35 Cal.3d at pp. 367-368, italics
added.)  Thus, as can be seen by the
italicized language, our high court has not limited a place of temporary safety
to some place that is safe from a victim’s attempt to recover the
property.  Rather, it also contemplates a
place where the loot is taken that has not been identified by the victim to the
police.  Logically then, a location
cannot be a place of temporary safety if identified by pursuing police through
their own efforts.  A place to which a
robber has fled with the proceeds, which is identified by pursuing police, can
hardly be characterized as a place where the robber has temporarily escaped and
has unchallenged possession of the property. 
As there is no persuasive authority supporting the proposition that the
jury should have been instructed as defendant suggests here, counsel was not
incompetent in failing to request such an instruction.

            Furthermore,
even assuming a nonargumentative instruction conveying the concepts defendant
now suggests could be authored, defendant has not shown prejudice, as he has
failed to show a reasonable probability he would have received a more favorable
result had such an instruction been provided to the jury.  The evidence is compelling that defendant
knowingly took part in a ruse designed to rob the unsuspecting victims of money
they brought to purchase the Saturn. 

>DISPOSITION

            The judgment
is affirmed.

 

 

 

 

                                                                                                                 MURRAY                   , J.

 

 

 

We concur:

 

 

 

                      RAYE                          , P. J.

 

 

 

                   DUARTE                       , J.