P. v. Lopez

Filed 10/23/06 P. v. Lopez CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

Appellant was convicted of felony murder. He contends the trial court should have instructed the jury that in order to convict appellant of this crime, it had to find both that the homicide was part of one continuous transaction with the underlying burglary or robbery, and that the underlying crimes were still in progress at the time of the homicide, despite the victim’s intervening sexual assault on appellant. We reject these contentions, and affirm the judgment.

Facts and procedural background

Appellant does not challenge the sufficiency of the evidence to support any of the factual findings implied by the jury’s guilty verdict. The sole issue he raises on appeal is a question of law regarding jury instructions. Accordingly, we will not narrate the facts in more detail than is necessary to put that issue in context.

In June 2002, Miguel Olivera, an acquaintance of appellant’s who sometimes worked as a day laborer, was invited by Gordon Lee Fowler to come to his home and do some work for him. Once they were at the house, Fowler made sexual advances to Olivera. Olivera knocked Fowler down, took his wallet, and left.

In October 2002, Olivera was with appellant when they saw Fowler nearby. Olivera told appellant about the incident during which he had robbed Fowler, and suggested that appellant could also easily steal money from him. Appellant then accepted Fowler’s invitation to come to his home and do some work for him. When they reached the house, Fowler made sexual advances to appellant, who was 15 years old at the time.[1] Appellant picked up a kitchen knife, and when Fowler refused to take him home, he stabbed Fowler numerous times, took his wallet, and drove away in Fowler’s car with Olivera, who had arrived at Fowler’s home by then. Fowler died from the stab wounds that appellant inflicted on him.

In count one of a four-count information, appellant was charged with murder, with the special circumstances that the murder was committed in the course of a robbery and of a burglary. (Pen. Code, §§ 187, 190.2, subd. (a)(17).[2]) He was also charged, in count two, with robbery of Fowler, with an enhancement for inflicting great bodily injury on a victim over the age of 70 (§§ 211, 12022.7, subd. (c)); in count three, with burglary of Fowler’s home (§ 459); and in count four, with the theft of Fowler’s car (Veh. Code, § 10851, subd. (a)), as well as various enhancements not material to the issues on appeal.

Appellant testified at his trial, and admitted that he had stabbed Fowler and taken his property. His defense to the charge of felony murder[3] was that he went to Fowler’s home to work, not to rob him, and that he stabbed Fowler only because he was afraid Fowler was going to rape him. He contended that he only took Fowler’s wallet because he believed Olivera expected him to do so, and would be angry if he did not. On cross-examination, appellant acknowledged that he had thought about robbing Fowler when he first agreed to go to his home, but maintained that he never really planned to do so, and that he had abandoned any such intent by the time they arrived at Fowler’s house.

Appellant’s trial counsel requested two special jury instructions focusing on the felony-murder charge, and specifically on the relationship he asserted the prosecution needed to prove between the homicide and the burglary and robbery. Appellant’s sole contention on appeal is that the trial court erred in refusing these instructions. In order to place this issue in further context, we set forth below the portions of the instructions the trial court did give that directly addressed the charge of felony murder.

“In the crime[] and allegations charged in Count[] I [felony murder], . . . there must exist a union or joint operation of act or conduct and a certain specific intent in the mind of the perpetrator. Unless this specific intent exists, the crime or allegation on [sic] which it relates is not committed, and is not true. The specific intent required is included in the definition[] of the crime[] or allegations set forth elsewhere in these instructions.” (See CALJIC No. 3.31.)

“Every person who unlawfully kills a human being . . . during the commission or attempted commission of robbery or burglary, is guilty of the crime of murder . . . . . . . In order to proof [sic] this crime, each of the following elements must be proved: 1. A human being was killed. 2. The killing was unlawful. 3. The killing . . . occurred during the commission or attempted commission of robbery or burglary.” (See CALJIC No. 8.10.)

“The unlawful killing of a human being, whether intentional or unintentional or accidental, which occurs during the commission or attempted commission of the crime of robbery or burglary is murder of the first degree, when the perpetrator had the specific intent to commit that crime. The specific intent to commit robbery or burglary and the commission or attempted commission of that crime must be proved beyond a reasonable doubt.” (See CALJIC No. 8.21.)

“For the purposes of determining whether an unlawful killing has occurred during the commission or attempted commission of a robbery [or burglary], the commission of the crime of robbery [or burglary] is not confined to a fixed place or limited period of time.” (See CALJIC Nos. 8.21.1, 8.21.2.)[4]

“If you find the defendant . . . guilty of . . . felony murder . . . , you are instructed that neither heat of passion nor provocation can ever reduce a murder properly based on the felony murder rule to voluntary manslaughter. . . . A killing in the commission of a robbery or residential burglary is first degree murder, not manslaughter[,] [e]ven if the killer acts in unreasonable self defense or as a result of sudden provocation or heat of passion. The only mental state required for felony murder is that necessary for the commission of the underlying felony. . . . If you find that the defendant stabbed . . . Fowler with two simultaneous and separate [intents], one to defend himself from imminent danger of the atrocious crime of rape, and the other to commit a theft, the defendant is not entitled to an acquittal on the grounds of either self defense or defense against the atrocious crime of rape. If you find that the defendant stabbed . . . Fowler with the intent to defend himself from imminent rape [and] with the [intent] to [commit] a theft, you may find the defendant guilty of first degree murder under the felony murder rule, if all the elements of either robbery or burglary have been proved.”

“If you find the defendant stabbed . . . Fowler not during the course of a robbery [and] without the intent to commit a theft, and did so only in response to unwanted touching or threat not amounting to imminent danger of rape . . . . . . . the crime of second degree murder is reduced to voluntary manslaughter. . . . If you find the defendant stabbed . . . Fowler without the intent to commit robbery or theft, and that he stabbed only in response to imminent rape, having an actual belief that the rape was imminent, [and] if you find such a belief reasonable under the circumstances, the defendant is entitled to an acquittal on the charge of murder.”

During deliberations, the jury sent a note that the court read into the record as follows: “ ‘The jury needs clarification on quote “intent” close quote defined. And needs clarification on Penal Code section 187 versus 189.’ “ The trial court referred the jury to the instructions previously given regarding the definition of intent and the elements of sections 187 and 189, and then asked what further clarification was needed. The foreperson responded that “What we were trying to find out [was] murder first degree . . . versus the felony first degree murder rule that we’re supposed to be looking at,” and that the jury apparently had a difference of opinion as to “what intent really means, just a thought in your head or is it an actual planned [sic; plan in] place with the intent?” The trial court referred the jurors to the instructions defining murder (CALJIC No. 8.10) and the felony murder rule (CALJIC No. 8.12), and asked whether the jury’s question was in regard to the difference between the two.

The foreperson responded that “I think we’re lost in what the layman’s terms of first degree murder versus felony murder rule are instead of the legal way that it’s written for us,” and that “[w]hat we need to know is if you had a thought in your mind to go and do something and on the way to do that you change your mind, you get to where ever [sic] you’re going and now the way[] the scenario plays out[,] you actually follow through with what your original thought in your mind was, does that still show the intent, or is there a break because of that if the intent no longer stays there.”

The following day, December 17, 2004, after receiving proposals from both counsel as to how to respond, and conducting an extended colloquy with counsel out of the presence of the jury, the trial judge sent the jury a supplemental instruction in response to their question. It referred the jury back to various instructions already given,[5] and then added that “ ‘The specific intent to commit a robbery or theft may be re-acquired or formulated anew after having previously or momentarily abandoned it. Whether or not such an intent was ever re-acquired or formed anew, and if so, when it was formed, or existed in relation to other events, are questions of fact for you to determine.’ ‘The elements of “premeditation” and “deliberation” are defined in instruction 8.20 which you have already been given. They are not synonymous with the element of “specific intent” required to prove robbery, burglary, or theft. “Premeditation” and “deliberation” are not required elements of the felony murder rule, as defined in the instructions 8.21; 8.21.1 and 8.21.2 which you have already been given.’ ‘First degree murder may be independently established either by the felony murder rule or by a finding that the murder was committed willfully and with premeditation and deliberation. Under either theory, each required element must be proved beyond a reasonable doubt.’ “

On December 21, 2004, the jury returned verdicts finding appellant guilty on all the charges, with the exception of two of the enhancements. He was sentenced to 25 years to life in prison for the murder, with his sentence on all the other charges stayed under section 654. This timely appeal followed.

discussion

Appellant requested two special instructions that he now contends should have been given. One of them, which we will refer to as the continuous transaction instruction, would have expressly instructed the jury that in order to convict appellant of felony murder, it had to find that the burglary and the homicide were part of one continuous transaction. The other, which we will refer to as the crimes in progress instruction, would have instructed the jury that it could not convict appellant of felony murder if Fowler’s assault gave rise to a reasonable doubt that the underlying felonies were still in progress at the time of the killing. Appellant’s argument as to both of these instructions rests on the same underlying premise, which is that the felony-murder rule requires that the homicide and the underlying felony be part of one continuous transaction. Relying on this premise, appellant further contends that this requirement was not met in the present case, because Fowler’s sexual assault on appellant broke the transactional connection between the underlying felonies and the homicide.

Settled principles govern our review of this issue. “A criminal defendant is entitled, on request, to an instruction ‘pinpointing’ the theory of his defense. [Citations.]” (People v. Wharton (1991) 53 Cal.3d 522, 570.) On the other hand, the trial court is only required to instruct the jury with legally correct statements of law that are not confusing, duplicative or argumentative. (See People v. Berryman (1993) 6 Cal.4th 1048, 1079, overruled on another ground in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1; People v. Mincey (1992) 2 Cal.4th 408, 437.) Thus, pinpoint instructions are permitted when they describe “ ‘the theory of the defense’ “ but not if they “highlight ‘ “specific evidence as such.” ‘ [Citations.]” (People v. Earp (1999) 20 Cal.4th 826, 886.)

A. Continuous Transaction Instruction

The continuous transaction instruction was appellant’s proposed special instruction number five. This instruction read: “It is for you the jury to determine that if, finding that the defendant entered the premises with the intent to steal, the burglary and the death of Mr. Fowler were as the result of one continuous transaction for purposes of the felony murder rule. If you find that they were not part of one continuous transaction you must find the defendant ‘not guilty’ of ‘felony murder’.” (Original punctuation.) After a lengthy colloquy regarding the prosecution’s proposed instructions on the felony-murder charge, the trial court characterized this instruction as cumulative and declined to give it on that ground.

The authority on which appellant primarily relies in support of his contention that felony murder requires that the underlying felony and the homicide be one continuous transaction is People v. Sakarias (2000) 22 Cal.4th 596. In that case, the defendant and his accomplice entered the home of a woman they knew and strongly disliked. At first, they intended only to steal her property, but after going inside and taking some jewelry, they decided to wait until the woman came home, and then kill her. The trial court instructed the jury that if it found that the defendant had committed burglary by entering the house with the intent to steal, the homicide and the burglary were parts of one continuous transaction. (Id. at p. 623.) The Supreme Court held that this was error, because the question whether the underlying felony and the homicide are part of one continuous transaction, for felony murder purposes, is one for the jury to decide. (Id. at pp. 623-625.)[6]

Appellant also cites other cases upholding felony murder convictions on the basis that the underlying felony and the homicide were part of one continuous transaction. (E.g., People v. Hart (1999) 20 Cal.4th 546, 608-609 [“There is no requirement of a strict ‘causal’ [citation] or ‘temporal’ [citation] relationship between the ‘felony’ and the ‘murder.’ All that is demanded is that the two ‘are parts of one continuous transaction.’ [Citations.]”].) In our view, neither People v. Sakarias, supra, 22 Cal.4th at page 596, nor the other authorities appellant cites, support the fundamental premise of his argument.

The purpose of the felony murder statute is “to protect the community and its residents and not to benefit criminals. [Citation.] Thus, the [California Supreme Court] has repeatedly rejected interpretations that would place technical limits on the scope of the phrase or require a strict causal relationship between the underlying felony and the homicide. Instead, the court has consistently held that a homicide is committed in the perpetration of a felony if the killing and felony are parts of ‘one continuous transaction,’ [which] may include flight after the felony to a place of temporary safety. [Citations.]” (People v. Alvarado (2001) 87 Cal.App.4th 178, 188-189, italics in original.) In other words, the continuous transaction formulation is not intended as a way to limit the scope of the felony-murder rule, but rather as a way of broadening its application to include situations in which the active phase of the underlying felony has ceased by the time the homicide occurs.

In effect, appellant seeks to transmute the continuous transaction doctrine from a convenient formulation of the appellate test for the sufficiency of the evidence of felony murder in arguably borderline situations (see, e.g., People v. Sakarias, supra, 22 Cal.4th at p. 624; People v. Thompson (1990) 50 Cal.3d 134, 171-172) to an element of the crime. This assertion elevates form over substance. The only actual requirement of the statute is that the homicide be committed “in the perpetration of” the underlying felony. (§ 189.) If the underlying felony and the homicide are parts of one continuous transaction, this is a sufficient condition to satisfy the statutory requirement, but that does not mean it is a necessary one.

In this case, the jury was instructed: (1) that in order to find appellant guilty of felony murder, it had to find that the killing “occurred during the commission or attempted commission of robbery or burglary” (italics added); (2) that appellant’s “specific intent to commit robbery or burglary and the commission or attempted commission of that crime must be proved beyond a reasonable doubt; (3) that if appellant killed Fowler “not during the course of a robbery [and] without the intent to commit a theft” (italics added), he could be convicted at most of voluntary manslaughter, and would be entitled to acquittal if he stabbed Fowler because he actually and reasonably believed Fowler was about to rape him; and (4) that, if appellant abandoned his intent to commit robbery or theft, it was up to the jury to decide whether that intent was “ ‘re-acquired or formed anew, and if so, when it was formed, or existed in relation to other events.’ “

Taken as a whole, these instructions clearly and correctly delineate the relationship between the robbery or burglary and the homicide that the jury was required to find in order to convict appellant of felony murder. Under the instructions that were given, the jury could not have found appellant guilty of felony murder unless it found that he entered Fowler’s house with the intent of robbing him (thus committing a burglary), and either retained that intent until he killed Fowler, or regained it by the time he did so. Adding appellant’s proposed continuous transaction instruction would not have changed this result. Appellant’s proposed continuous transaction instruction merely restated the principles already explained in the instructions given, using different but functionally equivalent language. Thus, we concur with trial court’s conclusion that the continuous transaction instruction was cumulative, and find no error in the trial court’s refusal to give it.

We recognize that CALCRIM No. 549 provides, in pertinent part, that “In order for the People to prove that the defendant is guilty of murder under a theory of felony murder . . . , the People must prove that the [underlying felony] and the act causing the death were part of one continuous transaction.”[7] This instruction does provide a clear and convenient way of illustrating to the jury the type of connection it must find between the underlying felony and the homicide. Its adoption does not convince us, however, that using the expression “continuous transaction” is the only way this connection can properly be explained to a jury. In our view, the instructions in the present case adequately informed the jury, although in different terms, that in order to find felony murder, it had to find that appellant’s killing of Fowler occurred in conjunction with the burglary or robbery. Nothing more is required.

B. Crimes in Progress Instruction

The crimes in progress instruction was appellant’s proposed special instruction number two. It read as follows: “If you find that defendant LOPEZ was in the commission or attempted commission of robbery, a violation of California Penal Code Section 211, or First Degree Burglary, a violation of California Penal Code Section 459, but have a reasonable doubt that those crimes were in progress by virtue of the unlawful acts of the decedent, you may not convict defendant of ‘Felony Murder’.” (Original capitalization and punctuation.)

The trial court initially declined to give the crimes in progress instruction on the ground that it was “cumulative or repetitive,” noting that “we already do have other instructions that talk about . . . in progress and . . . robbery is not done until you’ve reached a position of safety and all that sort of thing.” Appellant’s trial counsel then argued that the instruction was necessary to explain that even if appellant entered Fowler’s home with the intent to rob him, the burglary and robbery would cease to be in progress if their commission were interrupted by Fowler’s attacking appellant with the intent to rape him.

The prosecutor responded, in part, by pointing out that once appellant entered Fowler’s home with the intent to commit robbery, the burglary was already completed, and that there was no evidence that Fowler assaulted appellant before they were inside the home. He also argued that, as a matter of law, if the intended victim of an impending robbery commits a sexual assault on the robber, the sexual assault does not vitiate the robbery. Instead, as he put it, “You can have two crimes, one committed by [appellant] and the other committed by Fowler, they’re not mutually exclusive, nor do they cancel each other out.” Appellant’s trial counsel countered by arguing that for the felony murder rule to apply, “the killing can’t be part of a separate or distinct transaction,” and that “the unlawful act must be in progress. And it must be causally related to the death.” At that point, the trial court denied the instruction “on the grounds that I don’t believe it accurately states the law.”

The authority on which appellant relies in support of his argument that the crimes in progress instruction should have been given is a passage from People v. Sakarias, supra. In that case, the Supreme Court hypothesized that “[u]nder some circumstances, perhaps, the burglarious ‘transaction’ that begins with entry into the building might be found to have ended even though the burglar has not left--if, for example, he abandons his original larcenous intent but resolves to stay for a nonfelonious purpose,” (22 Cal.4th at p. 625), and that if so, the original burglary might not be a proper basis to convict the burglar of felony murder if the burglar later kills someone in the building.

The quoted language is unquestionably dictum. The court went on to uphold the felony murder conviction on the basis of evidence that “after entering [the victim’s home] and stealing [her property], [the] defendant and his coperpetrator formed the additional intent to attack the victim, [but] there was no substantial evidence they at any point before the killing discarded or abandoned their intent to steal from her . . . . [n]or was there evidence of any other arguably significant interruption of events between the entry and the homicide.” (People v. Sakarias, supra, 22 Cal.4th at pp. 625-626.)

The instructions given in this case, as quoted ante, sufficiently informed the jury that if appellant did not harbor an intent to commit the underlying felonies at the time he stabbed Fowler, he was not guilty of felony murder. To the extent that appellant’s proposed crimes in progress instruction restated that principle, it was properly refused as cumulative.

It may be that the proposed crimes in progress instruction was also intended to instruct the jury that Fowler’s sexual assault on appellant was sufficient to vitiate appellant’s liability for felony murder even if appellant still intended to steal from Fowler when he stabbed him. If so, it was properly refused as an incorrect statement of the law. We do not read Sakarias as supporting that proposition, and appellant has not cited any persuasive authority convincing us otherwise.

disposition

The judgment is affirmed.

_________________________

Ruvolo, P. J.

We concur:

_________________________

Reardon, J.

_________________________

Sepulveda, J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by El Cajon Property line Lawyers.

[1] Appellant was tried as an adult.

[2] All further references to statutes are to the Penal Code unless otherwise specified.

[3] The jury instructions permitted the jury to find appellant guilty of first degree murder either on the basis of premeditation and deliberation or on the basis of felony murder. In his closing argument, however, the prosecutor focused entirely on felony murder as the basis for appellant’s culpability of first degree murder, and disclaimed any intent to prove first degree murder based on premeditation. Moreover, the jury found as special circumstances that the murder was committed while appellant was engaged in the crimes of robbery and burglary. Thus, while the verdict form did not require the jury to select between the felony-murder and premeditation theories, it is clear that appellant was convicted of felony murder.

[4] The remaining portions of these two instructions (one for robbery, one for burglary) do not explain to the jury how to determine when the crime of robbery or burglary begins. Rather, they explain how long the crime continues after the property is stolen. That question is not germane here, because the prosecution’s theory of the case was that appellant formulated the intent to commit robbery before he entered the victim’s home, and that by the time he actually took the victim’s property, he had already committed the murder.

[5] The instructions referred to were CALJIC Nos. 3.31, 8.20, 8.21, 8.21.1, 8.21.2, and 8.83.1.

[6] The court concluded, however, that the error was harmless. (People v. Sakarias, supra, 22 Cal.4th at pp. 625-626.)

[7] CALCRIM No. 549 goes on to list a number of factors the jury may consider in determining whether there was one continuous transaction. It then states that “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.”