P. v. Pineda

Filed 5/4/06 P. v. Pineda CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SIXTH APPELLATE DISTRICT

On December 18, 2003, the Santa Clara County District Attorney filed an information charging defendants Sergio Pineda (Pineda) and Alex Rosales (Rosales) with murder (Pen. Code, § 187, count one). As to both Pineda and Rosales, the information alleged that the murder was committed while each was engaged in, or was an accomplice in the commission of, the attempted commission of, or the immediate flight after the commission of or attempted commission of a robbery. (Pen. Code, §§ 211, 212.5, 192, subd. (a)(17)(A).) In addition, the information charged both Pineda and Rosales with one count of second degree robbery (Pen. Code, §§ 211-212.5, subd. (c), count two) and one count of carjacking (Pen. Code, § 215, count three).

On January 19, 2005, the presentation of evidence began. The case was submitted to the jury on January 27, 2005. On January 28, 2005, as to both defendants, the jury returned verdicts of guilty as to all counts and found the special circumstance allegations to be true. Furthermore, the jury found that the murder was first degree murder and that the robbery was second degree robbery.

On March 24, 2005, the court sentenced Rosales on count one to serve a prison term of life without the possibility of parole. As to count two, the court sentenced Rosales to the midterm of three years. As to count three, the court sentenced Rosales to the midterm of five years. The court stayed the sentence on counts two and three pursuant to Penal Code section 654.

As to Pineda, the court sentenced him on count one to serve a prison term of life without the possibility of parole. As to count two, the court sentenced him to the upper term of five years. As to count three, the court sentenced Pineda to the upper term of nine years. Again, the court stayed the sentence on counts two and three pursuant to Penal Code section 654.

On March 25, 2005, Pineda filed a notice of appeal. On July 20, 2005, this court granted Rosales relief from default for failure to timely file a notice of appeal. Rosales filed his notice of appeal on July 26, 2005.

Both defendants raise two different but related issues on appeal. Rosales contends that the evidence was insufficient to sustain his convictions for robbery and carjacking. Further, he contends that the evidence did not support either his conviction for first degree murder or the finding that the special circumstance was true because the evidence was insufficient to support a finding that the victim was killed in the commission of a robbery. Pineda contends that his conviction for felony murder must be reversed because the "felony-murder rule does not apply to a perpetrator of the underlying felony who is not the actual killer when the death is accidental or unintentional, since the underlying purpose of the felony-murder rule is not served by making the nonkiller liable for murder in such a case." Further, he contends that the robbery special circumstance must be set aside because the record contains no evidence showing that he "killed [the victim], harbored an intent to kill, or acted with reckless indifference to human life." For the reasons outlined in this opinion, we affirm the judgment.

Facts and Proceedings Below

On July 10, 2003, Rodney Fedele was riding his bicycle on Williams Street in San Jose. He was riding towards Fourth Street. On Fifth Street, Fedele saw what he thought were "cops patting somebody down." He turned around "to check it out." He saw a "guy" beating someone down with a baseball bat and going through his pockets. The man, who looked as if he was being frisked, was leaning up against a car. Fedele described the car as little and gold or silver. There was a man in the driver's seat of the car. He did not get out of the car. Fedele could hear yelling back and forth between the driver of the car and the man with the baseball bat.

Fedele watched as the man with the baseball bat hit the victim at least 10 times all over his body. He watched as the victim fell to the ground, where he was hit "at least once or twice." Once the victim was on the ground, Fedele left and went down Fourth Street. He intended to call for an ambulance using the pay phone at the 7-Eleven, but he met several police officers "taking a break." Fedele told "the one that was leading them" what had happened. While he was on his way to the 7-Eleven, on the street that runs parallel to Williams, as he was coming up on Fifth, he saw the little gold or silver car coming towards him. Fedele saw the car make a U-turn and go back down the street. Fedele only had to go another half a block when he saw a police officer coming out of the 7-Eleven.

After Fedele told the officer what he had seen, he led the officer back towards the scene. That is when he saw the car and a red truck. The police officer started chasing the car and the truck. Fedele noticed that the victim was not in the same place as he was when Fedele left to get help. The victim was "laid out in the middle of the road nowhere near where the beating took place . . . ."

Also on July 10, at about 12:35 a.m., Xioa Hong Huang heard a banging noise from the street outside. Her apartment is on Fifth Street and her window faces the street. Huang looked out her window and saw a man picking up a baseball bat. A man in a silver car drove up and asked him if everything was okay. The man replied that everything was fine. The car drove off. The man with the baseball bat walked into an alleyway. A few seconds later, a truck drove out and followed the first car heading in the direction of Williams. As the cars drove off, Huang thought that she saw both vehicles hit some kind of bump and then depart in the same direction.[1]

At around 1:00 a.m.,[2] Natalye Brannon, who also lived on Fifth Street, heard what she believed to be "an argument" in the street outside her apartment. She heard someone say, "Get away from my car, get away from me." Brannon heard the sounds of a struggle and thought that a carjacking was occurring. She looked outside and saw a car parked a short way down the street with the driver's side door open and the lights on. She thought that the car was a light colored small car, probably a Honda. Brannon went to tell her roommate, then returned to the window. She heard nothing else so she began getting ready for bed.

After Brannon finished brushing her teeth, she got back into bed. Shortly thereafter, she heard loud car noises, which sounded like a car being driven fast in front of her apartment. Although a large tree in front of her building obstructed her view, Brannon did see a car "take off down the street towards San Salvador." She did not think this was the same car she had seen earlier. It was bigger, possibly red in color. Brannon saw a person lying in the middle of the street.

Javier Chavez, who also lived on Fifth Street, did not hear any arguing, but thought he heard noises, like something metallic hitting the ground. Chavez looked out a window of his apartment and saw a body lying in the street. Then, he saw a small car, which he believed to be white drive up and stop about 20 to 25 feet in front of the body. Chavez saw someone carrying a baseball bat get out of the passenger side of the car, approach the body, push the body over with the baseball bat and take something from the body's neck. Further, Chavez saw the man go through the pockets of the pants that were on the body. The driver of the white car did not get out, but the man with the bat walked over to the car. It appeared to Chavez that the two were talking. The man with the bat walked to a truck parked nearby. Chavez watched as the white car ran over the body in the street dragging it five car lengths. He saw the car reverse and run over the body again. The car left with the truck following.

Sergeant Amado Ramirez, a police officer for San Jose State University, was on duty at 1 a.m. on July 10, 2003. He was in the parking lot of the 7-Eleven store at Sixth and San Salvador when Fedele came up to him and told him that someone was being assaulted with a baseball bat just a few blocks away. Sergeant Ramirez called his dispatcher and then followed Fedele to the location of the incident. At about the same time, San Jose State Police Officer Beavers was in the 7-Eleven getting a snack when an unidentified male, not Fedele, opened the door and said that someone was being beaten with a baseball bat. Officer Beavers got into his patrol car and followed Sergeant Ramirez.

When Sergeant Ramirez turned southbound onto Fifth Street, he saw headlights in front of him in his lane, close to the end of the block near Williams Street. The vehicle was driving in reverse. The vehicle made a three point turn and proceeded westbound towards Fourth Street on Williams Street.

At this time, other officers were coming to Sergeant Ramirez's aid. Sergeant Ramirez had his police car spotlight looking from side to side. He noticed a male face down in the street, as did Officer Beavers who was following Sergeant Ramirez. Sergeant Ramirez told Officer Beavers that he had seen what looked like an SUV, or truck with a camper, go westbound on Williams Street. Officer Beavers continued southbound on Fifth Street heading towards Williams Street. As he turned westbound onto Williams Street, he noticed a maroon Tacoma pick-up truck behind a gray Mazda at the stoplight on Williams Street, about a block and a half from the man who was in the street. Officer Beavers attempted to stop the vehicles using his emergency lights, but the vehicles continued westbound to the next intersection where they stopped. As soon as Officer Beavers got out of his patrol car, the truck and the Mazda turned northbound on South Third Street and continued going.

After an extensive car chase, during which the Mazda evaded being stopped, officers pulled over the Tacoma truck. Officers grabbed the driver, forced him to the ground and handcuffed him. He had blood on his shirt, pants, arms, hands and head. He appeared to have been drinking. One of the officers asked the driver if he knew who had been driving the Mazda. The driver replied, "He didn't have anything to do with this. I did what I did for my own reason. I was the only one involved. And I know my rights and that's all I'm going to say to you." Officer Beavers found a bat in the truck. The driver of the truck was identified as Pineda.

After sending Officer Beavers after the red truck, Sergeant Ramirez turned his attention to the victim, who was identified as Jose Luis Ramirez.[3] Ramirez was face down in the street. His back was covered in blood and his shirt was torn off. Blood was seeping from around his head area and Ramirez was breathing with difficulty. Sergeant Ramirez checked Ramirez's pulse and spoke to him but got no response. Sergeant Ramirez summoned an ambulance.

At the time of trial, Dr. Diane Vertes who performed the autopsy on Ramirez was no longer with the medical examiner's office. Forensic pathologist Joseph O'Hara reviewed Dr. Vertes's notes and photographs of the autopsy and agreed with Dr. Vertes's conclusion that Ramirez's death was a result of multiple blunt force crush injuries of the chest. These injuries were consistent with Ramirez being run over by a car. In addition, Ramirez suffered from "road rash" and had confluent abrasions that were consistent with being dragged along the pavement or a road surface. There were burns on Ramirez's body that were consistent with his body being exposed to the hot undercarriage of a car, particularly the exhaust system. Ramirez had abraded lacerations of the head consistent with being hit about 10 times with an elongated object like a baseball bat. These injuries did not result in fractures of the skull or facial bones and were not lethal or potentially lethal.

Dr. O' Hara stated that he was unable to form an opinion regarding whether Ramirez was still alive when his chest was crushed. Generally, Dr. O'Hara opined that Ramirez's injuries were consistent with a hypothetical scenario, in which a person was struck eight to 10 times with a baseball bat, then fell to the ground, was hit by a car, and dragged a distance of about 120 feet, before the car backed over him.

San Jose Police Officer Mark Conrad processed the crime scene. Based on the pattern of the blood and shreds of clothing at the scene Officer Conrad concluded that Ramirez had been assaulted, lost a large amount of blood as a result of the assault, and was then run over by a vehicle and dragged along the asphalt for a distance of 118 feet.

Officer Conrad examined the inside of the Tacoma pick-up, which belonged to Ramirez. Inside the cab, in the passenger side central floorboard console area, Officer Conrad located a baseball bat. In addition to the baseball bat, a hollow galvanized metal pipe was collected from the truck. Nothing of evidentiary value was found on the pipe. Blood was found on the lower half of the bat. At trial, Conrad opined that the blood on the passenger side of the center console could have come from the left knee area of the passenger's clothing transferring or smearing the blood. Alternatively, someone holding a bloody baseball bat, in placing it against the console, could have transferred the blood.

On the front seat of the Mazda, Conrad found a Timex Indiglo wristwatch with a torn wristband and a black plastic holder for a Motorola cell phone. A Nokia cell phone was found in the center console along with a black leather case for a flip phone. The Nokia phone displayed a message containing Rosales's nickname "Happy." Also inside the Mazda was a credit card issued to Jose L. Ramirez.

Lynne Burley, a DNA analyst from the Santa Clara County District Attorney's Office crime laboratory testified as an expert on DNA testing and analysis. She examined the blood found on the bat and determined that it came from Ramirez.

Pineda did not testify in his own defense. However, Rosales did. He explained that he lives in Modesto with his mother. At the beginning of July 2003, he broke his right ankle and cut his left ear. He was prescribed pain medication and needed to use crutches.

On the morning of July 9, 2003, Pineda came to Rosales's home in Modesto and asked Rosales to accompany him back to San Jose. Rosales had known Pineda for six to eight years and considered him almost like a brother. According to Rosales, reluctantly, he agreed to go with Pineda to San Jose. He had his prescription filled and left with Pineda around 2:30 or 3:00 p.m.

When Pineda and Rosales arrived in San Jose, they went to the home of Pineda's father. Pineda and his father drank alcohol while Rosales smoked pot, which he had been doing since early morning. Later that evening Pineda and Rosales went out, visiting several bars. On their way to get some food, they encountered Ramirez. He appeared to be drunk. According to Rosales, Pineda said, "This guy is really drunk, I'm going to rob him." Rosales told Pineda not to do it. According to Rosales, he is the father of three small daughters, and was on probation. Consequently, he did not want to get into any trouble. Pineda said that he was going to tell Ramirez that there was a party. Ramirez was excited. He walked over to his truck and then followed Pineda and Rosales for a few blocks. Rosales testified that he was rolling a joint while Pineda was driving his car. Rosales heard the conversation between Pineda and Ramirez, but he was not paying attention to what was said. According to Rosales, he continued to roll his joint rather than encourage or participate in anything that Pineda did. While they drove, they did not have any conversation at all. It never occurred to him to warn Ramirez.

Pineda directed Ramirez to park his truck in an alley. Pineda parked his Mazda in the lane and got out of his car as Ramirez approached. By this time, Rosales knew that Pineda was going to rob Ramirez, but he thought if he said nothing and did not participate, he would not be involved. The headlights on the Mazda were off, but the engine was still running. Rosales testified that he continued to roll his joint and was not paying any attention to what Pineda was doing. Pineda and Ramirez talked behind the car. Suddenly, the back door opened and Rosales heard a thump. Not knowing what the noise was, Rosales looked back and saw Pineda hitting Ramirez with a baseball bat. Pineda hit Ramirez approximately eight to 10 times in the head and the body.

Rosales testified that he began yelling at Pineda to stop and told him to leave Ramirez alone, but he did not get out of the car to help Ramirez. Rosales prayed. After a few seconds, Rosales looked back again and saw Pineda going through Ramirez's pockets. Pineda got into the driver's seat of the Mazda, put the bat against the console and turned the car around. Rosales was scared and just wanted to get away, so it did not occur to him to help Ramirez.

Pineda pulled into the intersection, turned on the interior light and looked at the items he had taken from Ramirez. Rosales testified that Pineda said, "I didn't get no money. All I got was papers." Rosales said nothing. Pineda made a U-turn and returned to where they had left Ramirez in the street. He parked the Mazda right next to Ramirez's body. Rosales explained that he did not know Pineda was going to take Ramirez's truck. Pineda got out of the car and Rosales immediately jumped into the driver's seat of the Mazda. He put the car in drive and stepped on the gas, hitting Ramirez. Rosales testified that he accidentally drove over Ramirez and dragged him down the street. Then, he reversed the vehicle to get off Ramirez's body.

Rosales testified that he did not know that Ramirez's property was in the car. Furthermore, he did not know that Ramirez was in the street right in front of the car because when Pineda had beaten Ramirez it was at the back of the car. Rosales panicked. He wanted to stop, but he saw police car lights and he left. He did not know where he was or where he was going. Pineda was driving behind him in Ramirez's truck flashing the high beams on the truck. Eventually, Rosales noticed that the police were no longer following him.

Although he was not sure in which order he made phone calls, Rosales called Pineda's father using Ramirez's cell phone. Pineda's father told Rosales to get rid of the car. Rosales drove the Mazda to the Double Tree Hotel parking lot. Rosales called his mother and asked her to come and pick him up. He told his mother that the incident had arisen from a "road rage" confrontation. Rosales testified that after he walked a short distance, he became light headed and sat down. He called his mother again. While he was talking to her, he heard Pineda's cell phone ring. Suddenly, he realized that he had been speaking to his mother on Ramirez's cell phone. Rosales hung up with his mother and answered Pineda's phone. Pineda's father told him that he was going to throw away anything at his house that belonged to Rosales. He told Rosales not to say that he planned to spend the night there.

Rosales crossed the street and threw Ramirez's cell phone and some marijuana in a trashcan. He spoke to his mother and Pineda's father again. Then, he got a ride to a Shell gas station on the Alameda. He told his mother where he was. He waited for an hour or two for her to arrive. Rosales got into his mother's car and cried, but refused to tell her what had happened. Then, he fell asleep in the car on his way back to Modesto.

Rosales was located at about 2 p.m. the next day in Modesto. Initially, Rosales lied to officers about his whereabouts. Eventually, once he was informed that Ramirez had died, Rosales admitted that he was responsible for Ramirez's death, but maintained he played no part in committing the robbery. Rosales agreed to go with officers to show them into which trashcan he had put the phone, and where he had parked the Mazda. Officers searched the trashcan, but discovered that it had been emptied.

Blood found on the fenders, wheel wells, splashguards and various places along the undercarriage of the Mazda was determined to belong to Ramirez, as was blood found on the center console of the Mazda. Ramirez's watch, which police officers found in the Mazda along with Ramirez's credit card, had his blood on it. Furthermore, blood found on Pineda's hands and clothing came from Ramirez, as did the blood found on the street.

Rosales testified that Chavez was mistaken when he said that someone got out of the passenger seat of the Mazda with a baseball bat. Furthermore, Fedele was mistaken when he testified that someone was in the driver's seat of the Mazda at the time Pineda was frisking and beating Ramirez up against the Mazda. Rosales could not explain how Ramirez's watch and cell phone holder ended up on the passenger seat when, according to him, he was sitting in the passenger seat the whole time Pineda was in the car. Rosales acknowledged that Pineda had brought Ramirez's property into the car, but he denied that he knew that the property was in the car when he drove away.

Discussion

Rosales's Issues on Appeal

Rosales contends that the evidence was insufficient to support his convictions for robbery and carjacking. Rosales argues that in order to find him guilty of robbery, it was necessary for the prosecution to prove beyond a reasonable doubt that he engaged in the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear. Since he did not take Ramirez's property, or apply force or cause Ramirez to be fearful,"his culpability was clearly based on an aiding and abetting theory."

Rosales asserts that nothing in the record indicates that he aided, promoted, encouraged or instigated the robbery. In particular, the piece of evidence that supports his argument is the statement made by Pineda when he was arrested to the effect that Rosales did not have anything to do with "this."

In reviewing the sufficiency of the evidence to support a conviction, we determine " 'whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged.' [Citations.]" (People v. Crittenden (1994) 9 Cal.4th 83, 139, fn. 13.) Under such standard, we review the facts adduced at trial in full, and in the light most favorable to the judgment, drawing all inferences in support of the judgment to determine whether there is substantial direct or circumstantial evidence the defendant committed the charged crime. (People v. Hillhouse (2002) 27 Cal.4th 469, 496; People v. Rodriguez (1999) 20 Cal.4th 1, 11.) The test is not whether the evidence proves guilt beyond a reasonable doubt. Rather, the test is whether substantial evidence, of credible and solid value, supports the jury's conclusions. (People v. Arcega (1982) 32 Cal.3d 504, 518; In re Nathaniel C. (1991) 228 Cal.App.3d 990.)

In making the determination of whether there is substantial evidence to support the verdict, we do not reweigh the evidence. The credibility of witnesses and the weight to be accorded to the evidence are matters exclusively within the province of the trier of fact. (Evid. Code, § 312.) Simply put, we consider whether " ' "any rational trier of fact could have found the essential elements of [the charged offenses] beyond a reasonable doubt." ' [Citations.]" (People v. Rich (1988) 45 Cal.3d 1036, 1081.) We will not reverse the conviction unless it is clearly shown that "on no hypothesis whatever is there sufficient substantial evidence to support the verdict." (People v. Hicks (1982) 128 Cal.App.3d 423, 429.)

Robbery is "the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (Pen. Code, § 211.)

To convict a defendant on an aiding and abetting theory, a jury must find the defendant "act[ed] with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense." (People v. Beeman (1984) 35 Cal.3d 547, 560.) "[M]ere presence at the scene of a crime is insufficient to establish aider and abettor liability. [Citation.]" (People v. Salgado (2001) 88 Cal.App.4th 5, 15.) Aiding and abetting requires a person to promote, encourage or instigate the crime with knowledge of its unlawful purpose. (People v. Beeman, supra, 35 Cal.3d at pp. 554-561.)

Rosales argues that there was no evidence to contradict his testimony that he was in the passenger seat as Pineda led Ramirez to the crime scene. Furthermore, he asserts, the prosecutor accepted and even argued that Pineda was the driver at this point.

We agree with Rosales that the prosecutor argued that Pineda was the driver when he and Rosales led Ramirez to the crime scene. However, two eyewitnesses testified that the driver of the Mazda was someone other than the man with the baseball bat, during the time that Ramirez was being beaten and frisked up against the car, and later when Ramirez was on the ground. Fedele testified that he saw someone sitting in the driver's seat of the Mazda the entire time that Pineda was attacking Ramirez. This indicates that even if Pineda drove the Mazda to the location of the attack, Rosales immediately positioned himself as the "getaway" driver. Similarly, Chavez, the resident of an apartment building overlooking the scene of the attack, testified that when the Mazda pulled up and stopped several feet from the body in the road the passenger got out carrying a baseball bat. Since the evidence was overwhelming that Pineda was the attacker, and there is no evidence that anyone else was in the Mazda other than Rosales, Rosales had to have been the driver. This evidence indicates that Rosales was not only the initial getaway driver, but he was the driver who made the U-turn and returned to the scene of the attack so Pineda could steal more items from Ramirez.

In addition to the eyewitness testimony that places Rosales in the driver's seat as the getaway driver, Officer Mark Conrad testified that the bloodstain on the center console in the Mazda could have come from blood smearing off the clothing on the passenger's knee, or from the placing of a bloody baseball bat. Furthermore, there was evidence from Huang that there was a conversation between the man with baseball bat and the man in the car. Similarly, Chavez testified that the man with the baseball bat walked over and talked to the driver of the car after he concluded beating Ramirez.

Here, not only was Fedele's and Chavez's identification of someone other than Pineda as the driver of the Mazda sufficient to establish Rosales's presence as the driver during the robbery, evidence that Pineda and Rosales conversed during the robbery raises an inference that Rosales and Pineda talked about what they should do next.

Although Rosales's presence at the scene of the crime or failure to take action to prevent a crime are not, by themselves, sufficient to prove a defendant was an aider and abettor, nonetheless they are factors that may be considered when assessing Rosales's liability. (In re Lynette G. (1976) 54 Cal.App.3d 1087, 1094-1095, ["[a]mong the factors which may be considered in making the determination of aiding and abetting are: presence at the scene of the crime, companionship, and conduct before and after the offense"].)

Reviewing the evidence in the light most favorable to the judgment, we conclude that there was substantial evidence that Rosales was the getaway driver for the robbery. The evidence shows that Rosales was not only the getaway driver for the first part of the robbery, he drove Pineda back to Ramirez's body so that Pineda could continue to search Ramirez for money.

Furthermore, there was substantial evidence that Rosales asported property taken from Ramirez. Officers found Ramirez's watch and credit card in the Mazda. Further, Rosales admitted that he had Ramirez's cell phone.

Accordingly, based on the evidence and reasonable inferences therefrom, we conclude there was sufficient evidence from which a rational jury could find that Rosales aided and abetted the robbery.

In a second line of attack on the judgment, Rosales contends that the evidence was insufficient to sustain his conviction for carjacking.

" 'Carjacking ' is the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence, or from the person or immediate presence of a passenger of the motor vehicle, against his or her will and with the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession, accomplished by means of force or fear." (Pen. Code, § 215, subd. (a).)

In order to prove the crime of carjacking, each of the following elements must be proved: "1. A person had possession of a motor vehicle; [¶] 2. The motor vehicle was taken from his or her person or immediate presence, or from the person or immediate presence of a passenger of such vehicle; [¶] 3. The motor vehicle was taken against the will of the person in possession; [¶] 4. The taking was accomplished by means of force or fear; and [¶] 5. The person taking the vehicle had the intent to either permanently or temporarily deprive the person in possession of the vehicle of that possession." (CALJIC No. 9.46.)

Rosales contends that the evidence was insufficient to support his conviction for carjacking because there was no evidence that he took Ramirez's truck or knew that Pineda intended to take the truck. More importantly, the prosecution did not establish that the taking of Ramirez's truck by Pineda was accomplished by force or fear. Rosales argues that he and Pineda left the scene in Pineda's car after Pineda beat Ramirez with the bat. Rosales asserts that at this time, there was no intention to take the truck. It was only when Pineda returned to the scene and took more property from Ramirez that Pineda formed the intent to take the truck. At this time, Ramirez was unconscious and unaware that his truck was being taken. Furthermore, no force was applied to Ramirez when Pineda took the keys to the truck. Nor did Pineda attempt to instill fear in Ramirez.

As noted, an element of carjacking is that the vehicle be taken by means of force or fear. (Pen. Code, § 215, subd. (a); People v. Green (1996) 50 Cal.App.4th 1076, 1084; People v. O'Neil (1997) 56 Cal.App.4th 1126, 1131.) Essentially, Rosales argues that evidence of this element was lacking, because Pineda never pushed Ramirez or threatened him, and Ramirez could not express sufficient fear of him because Ramirez was unconscious and unaware that Pineda was taking his truck.

We reiterate that in determining whether the evidence was sufficient to sustain a criminal conviction, we " 'must review the entire record in the light most favorable to the judgment 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.' [Citation.]" (People v. Hillhouse, supra, 27 Cal.4th 469, 496; see People v. Carter (2005) 36 Cal.4th 1215, 1257-1258.) "We draw all reasonable inferences in support of the judgment. [Citation.]" (People v. Wader (1993) 5 Cal.4th 610, 640.) Reversal is not warranted unless it appears " 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' [Citation.]" (People v. Bolin (1998) 18 Cal.4th 297, 331.)

Rosales concedes that People v. Hill (2000) 23 Cal.4th 853 (Hill), is contrary to his position that because Ramirez was unconscious he was unaware that his truck was being taken from him.

In Hill, the victim drove to her home with her seven-month-old daughter. She got out of the car, and reached into the passenger side to take the child from her seat. While she was unbuckling the child, the defendants accosted her. One defendant, Dabney, told the mother to give him money. She said they could have the car but asked them to let her and the baby go. The mother gave Dabney her jewelry. He demanded her keys, grabbed them from her, and tossed them to the other defendant. Dabney and the mother got into the backseat, with the baby still in the front passenger seat, but no longer buckled. The other defendant, Hill, drove the car with all four inside.

When the car stopped, Dabney made sexual overtures to the mother and demanded that she take off her clothes or he would shoot the baby. Believing that defendants would let her go if she complied, the mother partially undressed. Dabney pushed her onto the seat and raped her. During this time, the baby was in the front seat rolling back and forth. Eventually, the mother managed to push Dabney away, grab the baby, open the car door, and flee. (Hill, supra, 23 Cal.4th at pp. 855-856.)

On appeal, Hill argued that he could not be guilty of carjacking someone who was unconscious or otherwise unaware of the taking. (Hill, supra, 23 Cal.4th. at p. 860.) The Supreme Court concluded that unlike robbery, which requires a taking from the person or immediate presence of the possessor, the Legislature expanded the taking element of carjacking to a taking from the person or immediate presence of either the possessor or any passenger. By extending carjacking to include a taking from a passenger, even one without a possessory interest (assuming the other elements of the crime are present), the Legislature has made carjacking more nearly a crime against the person than a crime against property. Moreover, unlike a robbery, "a carjacking subjects an unconscious possessor or occupant of a vehicle to a risk of harm greater than that involved in an ordinary theft from an unconscious individual. Accordingly, if the defendant used force or fear . . . he is guilty of carjacking whether or not the victim was aware of that force or fear." (Id. at pp. 860-861.)

Rosales argues that here, Ramirez, like the baby in Hill, would have been unaware of force or fear being used. However, he argues the similarities end there. In this case, in contrast to Hill, no force or fear was used to achieve the carjacking. Rosales concedes that Pineda used force and fear to achieve the robbery, but by the time he came back and decided to take the truck, no force or fear was necessary, "as Ramirez was already unconscious or at least incapacitated such that he could offer no resistance." Furthermore, Rosales contends that even if we were to assume for the sake of argument he aided and abetted the robbery, Ramirez was not rendered unconscious in order to commit the carjacking.

Rosales argues that People v. Dreas (1984) 153 Cal.App.3d 623 and People v. Frye (1998) 18 Cal.4th 894 are relevant here because they discuss the taking of property from a dead or unconscious victim. He argues that both cases conclude that if the defendant, in order to take the victim's property, caused the death or unconsciousness, there is sufficient evidence of the force and immediate presence elements to support a robbery conviction. By contrast, here, Rosales argues that Ramirez was not rendered unconscious so they could take his truck. In fact, the evidence indicates that the taking of the truck was an afterthought that occurred to him and Pineda after Ramirez was already unconscious from the robbery.[4] Thus, in essence Rosales argues that there was no force or fear used to accomplish the carjacking. We disagree.

The force or fear element is satisfied when there is sufficient force or fear to cause the victim to comply with the unlawful demand for his or her property. (People v. Davison (1995) 32 Cal.App.4th 206, 212; People v. Smith (1995) 33 Cal.App.4th 1586, 1595.)

The definition in the carjacking statute (Pen. Code, § 215, subd. (a)) tracks the language in the robbery statute (Pen. Code, § 211). "Both involve 'the felonious taking' of property that is 'in the possession of another' person. Both require that the taking be from the 'person or immediate presence' of the person. Both are 'accomplished by means of force or fear.' " (In re Travis W. (2003) 107 Cal.App.4th 368, 373.) Accordingly, in examining the force or fear element of carjacking we turn for guidance to cases involving the crime of robbery, as well as those involving carjacking. (People v. O'Neil, supra, 56 Cal.App.4th at p. 1131; cf. People v. Lopez (2003) 31 Cal.4th 1051, 1060-1061.)

The law is settled that the force element of robbery (and by analogy carjacking), has no technical meaning, which must be explained to the jury. (People v. Anderson (1966) 64 Cal.2d 633, 640.)

Accordingly, it is within the purview of the jury, using its own common sense, to determine if Pineda used force to accomplish the carjacking. (See People v. Mungia (1991) 234 Cal.App.3d 1703, 1709.)

With respect to robbery, it is well established that the force required is any amount of force beyond the "quantum of force which is necessary to accomplish the mere seizing of the property." (People v. Morales (1975) 49 Cal.App.3d 134, 139.) Accordingly, we conclude that the jury could reasonably have concluded that Pineda accomplished the carjacking by force.

Chavez testified that when the man with the baseball bat got out of the car, he walked to the body that was in the street and used the bat to push over the body, before he went through the pockets of the pants that were on the body. Pushing Ramirez over with the bat was sufficient to satisfy the element of force for purposes of carjacking. The degree of force that Pineda used is immaterial, it was sufficient that he moved Ramirez's body in order to search his pockets to locate his car keys. (See, People v. Clayton (1928) 89 Cal.App. 405, 411-412.)

Alternatively, Rosales contends that the evidence was insufficient to support his conviction for carjacking because there was no evidence that he aided and abetted the carjacking. He argues that he did nothing more than be present at the scene, and leave immediately when Pineda got out of his own car. Accordingly, he argues, this is insufficient to establish aiding and abetting liability.

"To be guilty of a crime as an aider and abettor, a person must 'aid[ ] the [direct] perpetrator by acts or encourage[ ] him [or her] by words or gestures.' [Citations.]" (People v. Lee (2003) 31 Cal.4th 613, 623.) In addition, "the person must give such aid or encouragement 'with knowledge of the criminal purpose of the [direct] perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of,' the crime in question. [Citations.]" (Id. at p. 624.)

As noted earlier, Fedele testified that Rosales was in the driver's seat during the initial assault on Ramirez. Chavez testified that when he saw the Mazda, the man with the baseball bat got out of the passenger seat. Since there was no evidence that there was anyone other than Rosales in the car, that confirmed that Rosales was the driver. At a minimum, Rosales was driving when he and Pineda returned to the scene.

Various witnesses testified that the driver of the Mazda waited while the man in the truck went through the pockets of the man on the ground and took more property. Specifically, Chavez testified that after Pineda went through Ramirez's pockets, he walked over to the Mazda, bent over and spoke to the driver. Pineda then walked to Ramirez's truck and got in and drove away. From this, a reasonable jury could have concluded that Rosales and Pineda discussed who was going to drive the Mazda and who was going to drive the truck. As the Attorney General argues, surely Pineda would not have stolen the truck without some assurance that Rosales would drive Pineda's car away from the scene. Furthermore, the truck and the Mazda left the scene together, and continued to stay together while the police were pursuing them. Taken together, a reasonable jury could have concluded that the occupant of the car, Rosales, was aiding and abetting the carjacking by driving Pineda back to where they left Ramirez in the street, waiting while Pineda searched for the truck keys, and then driving Pineda's car away from the scene of the crime. This was sufficient for aider and abettor liability. (People v. Haynes (1998) 61 Cal.App.4th 1282, 1294 ["presence at the scene of the crime, companionship, and conduct before and after the crime, including flight" are all relevant factors in determining whether a defendant was an aider and abettor].)

Finally, Rosales contends that the evidence did not support either his conviction for first degree murder or the finding that the special circumstance was true because it was insufficient to support a finding that Ramirez was killed in the commission of a robbery.

"For purposes of aider-abettor liability, the commission of a robbery continues so long as the property taken is being carried away to a place of temporary safety. [Citation.] 'The act of "taking" begins when the separation of the victim from his or her property occurs, and it continues through the forcible consummation.' [Citation.]" (People v. Harris (1994) 9 Cal.4th 407, 421.) Rosales attempts to characterize the facts as showing one robbery followed by a grand theft. Thus, in claiming lack of substantial evidence for first degree felony murder for example, he breaks the evidence down, and tries to create a temporal gap by arguing that he and Pineda had reached a place of temporary safety--ending the "robbery" when they drove from the scene and before they executed the U-turn.

"Whether . . . the robber has reached a place of [temporary] safety is ordinarily a question of fact; a jury's implied finding on the issue will be upheld so long as supported by substantial evidence. [Citations.]" (People v. Carter (1993) 19 Cal.App.4th 1236, 1251.) We review the whole record, in a light most favorable to the judgment, to determine whether it discloses substantial evidence--evidence which is reasonable, credible and of solid value--whether direct or circumstantial, and even if exculpating inferences might seem to us reasonable as well. (People v. Perez (1992) 2 Cal.4th 1117, 1124.)

Therefore, we turn to the question whether substantial evidence supports the jury's finding that Ramirez was murdered "during the commission of the robbery." In People v. Fields (1983) 35 Cal.3d 329, our Supreme Court undertook a review of the many cases that have discussed the duration of the crime of robbery and the relationship of that crime to some other offense that occurs after the exact moment when the property changed hands. (Id. at p. 365.) To aid our analysis in this case, we set forth a portion of that review here.

"In People v. Carroll (1970) 1 Cal.3d 581 . . . , defendant robbed Gulsvig in a restroom, pursued him into a bar and shot him. He was convicted of inflicting great bodily injury on Gulsvig 'in the course of the commission of the robbery.' (Former Pen. Code, § 213.) We said that '[t]he fact that defendant was not engaged in the asportation of any loot at the time he shot Gulsvig is immaterial. He became angry after discovering no money in the wallet and having the rest room door slammed in his face. His purpose in running into the bar appears to have been to exact his revenge from Gulsvig. Under the circumstances, the robbery and shooting of Gulsvig constituted one indivisible transaction . . . .' (Pp. 584-585.) [¶] In People v. Laursen (1972) 8 Cal.3d 192 . . . , fleeing robbers kidnapped a motorist and compelled him to drive them from the scene of the robbery. We held defendant could be found guilty of kidnapping 'to commit robbery' (Pen.Code, § 209); '[t]he assault of the victim, the seizure of his property and the robber's escape to a location of temporary safety are all phases in the commission of the crime of robbery linked not only by a proximity of time and distance, but a single-mindedness of the culprit's purpose as well.' (Pp. 199-200.)" (People v. Fields, supra, 35 Cal.3d 329, 365-366.) Both these cases stress the unity of a robber's purpose and the indivisible or continuous nature of the transaction.

Relying on People v. Ford (1966) 65 Cal.2d 41, 56-57, Rosales argues, without conceding, that if he aided and abetted the robbery, the evidence was insufficient to support a finding that Ramirez was killed in the course of that robbery because he and Pineda had reached a place of temporary safety when they left the scene without being pursued. When they returned to where Ramirez was in the street, Pineda's act of taking Ramirez's watch and other property was not robbery, but was instead grand theft because no force was needed to take the property and Ramirez, being unconscious, was incapable of experiencing fear.

We find Ford distinguishable. As our Supreme Court explained in People v. Fields, supra, 35 Cal.3d at page 367, "[e]xplaining why we could not uphold a conviction of first degree murder under the felony-murder rule, we said that '[i]n the [Ford case] . . . , many hours elapsed between the time of the robbery and the shooting of Officer Stahl. [T]here was . . . no direct evidence that defendant was endeavoring to escape the robbery when he shot the deputy; on the contrary, there is strong evidence that he was not. . . . Additionally, it should be pointed out that defendant had the opportunity to and did spend some of his loot prior to the shooting; that during the period of approximately four hours between the robbery and the killing [the defendant] drove aimlessly over a great distance; and that, with respect at least to the robbery, he had won his way to places of temporary safety before he committed the homicide. Considering the facts as a whole, it must be held that the robbery and escape therefrom did not motivate defendant's subsequent conduct, but were merely incidental to his primary objectives. Thus, it cannot be held that the homicide can be promoted to murder of the first degree on the theory that the homicide was committed in the perpetration of a robbery.' [Citation.]"

In this case, by contrast, Rosales and Pineda drove a very short distance never leaving the block where the crime was committed. Furthermore, by Rosales's own testimony, Pineda decided that they should return to Ramirez because they "didn't get no money. All [Pineda] got was papers." Under these circumstances, there was substantial evidence from which the jury could reasonably conclude that the robbery was still in progress when Rosales and Pineda returned to take more property from Ramirez, and was still in progress when Rosales ran over Ramirez in his effort to escape with the "loot."

Accordingly, we conclude that there is support here for a no-place-of-temporary-safety finding when measured by robber safety, robber's common purpose and motive, or the indivisible or continuous nature of the transaction.

" Our case law has consistently rejected a ' "strict construction of the temporal relationship" between felony and killing as to both first degree murder and [the] felony-murder special circumstance.' [Citation.] Instead, we have said that 'a killing is committed in the perpetration of an enumerated felony if the killing and the felony "are parts of one continuous transaction." ' [Citation.] Indeed, we have invoked the continuous-transaction doctrine not only to aggravate a killer's culpability, but also to make complicit a nonkiller, where the felony and the homicide are parts of one continuous transaction. (E.g., People v. Whitehorn (1963) 60 Cal.2d 256, 260, 264 . . . , [defendant, who had raped the victim, was guilty of felony murder when accomplice strangled the victim after the rape]; see also People v. Ross (1979) 92 Cal.App.3d 391, 402 . . . ; People v. Manson (1976) 61 Cal.App.3d 102, 208-209 . . . ; People v. Medina (1974) 41 Cal.App.3d 438, 452 . . . ; see generally 1 Witkin & Epstein, Cal.Criminal Law (3d ed. 2000) § 139, p. 754.)" (People v. Cavitt (2004) 33 Cal.4th 187, 207.)

Furthermore, "[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 . . . .) In particular, the rule ' "was not intended to relieve the wrongdoer from any probable consequence of his act by placing a limitation upon the res gestae which is unreasonable or unnatural." The homicide is committed in the perpetration of the felony if the killing and felony are parts of one continuous transaction' [citation] with the proviso 'that felony-murder liability attaches only to those engaged in the felonious scheme before or during the killing.' [Citation.]" (People v. Cavitt, supra, 33 Cal.4th at p. 207.)

"It is, of course, the well-settled law in California that if a human being is killed by any one of several persons jointly engaged at the time of such killing in the perpetration of or an attempt to perpetrate the crime of robbery, whether such killing is intentional or unintentional, or accidental, each and all persons so jointly engaged in the perpetration of, or attempt to perpetrate such crime of robbery, are guilty of murder of the first degree." (People v. Martin (1938) 12 Cal.2d 466, 472; accord People v. Pulido (1997) 15 Cal.4th 713, 720-722.)

First degree felony murder encompasses not only deliberate and premeditated murder, "but also a variety of unintended homicides resulting from reckless behavior, or ordinary negligence, or pure accident; it embraces both calculated conduct and acts committed in panic or rage, or under the dominion of mental illness, drugs or alcohol; and it condemns alike consequences that are highly probable, conceivably possible, or wholly unforeseeable." (People v. Dillon (1983) 34 Cal.3d 441, 477.) "The only nexus required is that the felony and the killing be part of a continuous transaction." (People v. Thompson (1990) 50 Cal.3d 134, 171.)

Since we have concluded that there is substantial evidence in the record to support a finding that Rosales aided and abetted the robbery, and there is substantial evidence that the killing of Ramirez occurred in the commission of a robbery, we hold that Rosales's conviction for first degree felony murder should stand.

As to the robbery felony murder special circumstance, it must be proven that "[t]he murder was committed in order to carry out or advance the commission of the crime of robbery or to facilitate the escape therefrom or to avoid detection." (People v. Williams (1994) 30 Cal.App.4th 1758, 1761.) Thus, a felony murder special circumstance can be found true if "[t]he murder was committed while the defendant was engaged in, or was an accomplice in, the commission of, attempted commission of, or the immediate flight after committing or attempting to commit . . .[r]obbery in violation of Section 211 or 212.5." (Pen. Code, § 190.2, subd. (a)(17)(A).)

Since we have concluded that there was substantial evidence to support the jury's finding that Rosales aided and abetted the robbery and because Ramirez was killed while Rosales was fleeing with the spoils of the robbery, we conclude that the felony murder special circumstance finding should stand.

Pineda's Issues on Appeal

Pineda contends that his conviction for first degree felony murder "must be reversed because the felony-murder rule does not apply to a perpetrator of the underlying felony who is not the actual killer when the death is accidental or unintentional, since the underlying purpose of the felony-murder rule is not served by making the nonkiller liable for murder in such a case."

The jury was instructed with CALJIC No. 8.27 that "[i]f a human being is killed by any one of several persons engaged in the commission or attempted commission of the crime of robbery, all persons who either directly or actively commit the act constituting that crime or who, with knowledge of the unlawful purpose of the perpetrator of the crime and with the intent or purpose of committing, encouraging, or facilitating the commission of the offense, aids, promotes, encourages, or instigates by act or advice its commission, are guilty of murder of the first degree, whether the killing is intentional, unintentional or accidental."

Pineda asserts that the evidence adduced at trial shows that Rosales killed Ramirez and that the death was caused accidentally or unintentionally. Even if we were to assume that Pineda is correct, we reject his argument that application of the felony-murder rule to a non-killer in situations involving an accidental or unintentional killing does not serve the purpose of the felony-murder rule.

Penal Code section 189 states: "All murder which is perpetrated by means of a destructive device or explosive, a weapon of mass destruction, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under Section 206, 286, 288, 288a, or 289, or any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree."

In People v. Cavitt, supra, 33 Cal.4th 187 (Cavitt), our Supreme Court clarified a nonkiller's liability for a killing "committed in the perpetration" of an inherently dangerous felony under Penal Code section 189's felony-murder rule. (Id. at p. 193.) Our Supreme Court held that in such circumstances, "the felony-murder rule requires both a causal relationship and a temporal relationship between the underlying felony and the act resulting in death. The causal relationship is established by proof of a logical nexus, beyond mere coincidence of time and place, between the homicidal act and the underlying felony the nonkiller committed or attempted to commit. The temporal relationship is established by proof the felony and the homicidal act were part of one continuous transaction." (Id. at p. 193.)

In Cavitt, defendants James Cavitt and Robert Williams were convicted in separate trials of the felony murder of 58-year-old Betty McKnight, the stepmother of Cavitt's girlfriend, Mianta McKnight. Defendants admitted plotting with Mianta to enter the McKnight home, to catch Betty unawares and tie her up, and to steal Betty's jewelry and other property. On the evening of December 1, 1995, with Mianta's assistance, the plan went forward. Defendants entered the house, threw a sheet over Betty's head, bound this hooded sheet to her wrists and ankles with rope and duct tape, and escaped with guns, jewelry, and other valuables from the bedroom. Betty was beaten and left hog-tied, facedown on the bed. Her breathing was labored. Before leaving, defendants made it appear that Mianta was a victim by pretending to tie her up as well. By the time Mianta untied herself and called her father to report the burglary-robbery, Betty had died from asphyxiation. (Cavitt, supra, 33 Cal.4th at p. 193