PEOPLE v. SAIBU







Filed 1/4/11; part. pub order 1/11/11 (see end of opn.)




COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, Plaintiff and Respondent, v. SADIQ SAIBU et al., Defendants and Appellants.

D054980 (Super. Ct. No. SCD207640)

STORY CONTINUE FROM PART II….


Two days later, Almajid returned to court and resumed his testimony. He testified that he did not remember specific conversations that he had with detectives. Almajid also testified that on the day he spoke with the detectives, the detectives had threatened to charge him with being an accessory after the murder.
After hearing Almajid's testimony, the trial court decided to allow the jury to view the videotape of Almajid's interview, and also to provide the jury with a transcript of the interview. The court instructed the jury that the questions that the detectives posed were not evidence, and that only Almajid's answers were evidence. The court further explained, "You are going to hear examples in this interview where the officers, in interviewing Mr. Almajid, will make assertions of what they believe or they suspect or what they, quote, know is true. Those assertions are not evidence, and you must not consider them. If, for instance, there [was] a place where the officer said, 'We got a bunch of witnesses that say you were there,' you can't consider that as evidence that there were a bunch of witnesses that say he was there."
Saibu contends that the trial court should not have admitted the videotape of Almajid's interview with police because "the only points on which the interview did 'impeach' Almajid were irrelevant, tangential minutiae." Saibu contends that the interview contained numerous "conjectural" statements about Saibu's involvement in the crimes, and that because the statements are conjectural, they were irrelevant.
The trial court admitted the videotape of Almajid's interview with police as evidence of his prior inconsistent statements. (See Evid. Code, § 1235.) During the interview, Almajid told police that he believed Saibu was the person who could be seen on the surveillance video committing the July 12, 2005 attempted robbery of the T&M Liquor store, based on the movement of the person in the video. Almajid also told the detectives that Saibu had said that he had been waiting in a car in the alley on July 13, 2005, when the shooting at the liquor store occurred. However, at trial, Almajid claimed to have no memory of his interview with police. He claimed that at the time he was tired, on drugs, and/or he was coerced by police to make the statements. Under these circumstances, it was reasonable for the trial court to conclude that the jury should be permitted to consider the statements that Almajid made during his interview with police in order to weigh the credibility of Almajid's contradictory testimony at trial. In addition, the videotape provided evidence of Almajid's demeanor during the interview―evidence that contradicted his claims that he was fatigued or under the influence of drugs during the interview and that could thus impeach his credibility.
The trial court did not abuse its discretion in determining that the videotape of Almajid's interview with police was more probative than prejudicial, pursuant to Evidence Code section 352. As the trial court noted, the statements that Almajid made during the interview became highly probative once Almajid took an inconsistent position at trial in terms of implicating Saibu and Valentino in the charged crimes, and once he attempted to disclaim knowledge of his own conduct around the time of the murder and the description of that conduct that he had previously given to detectives. Almajid's statements and demeanor during the interview served to impeach his trial testimony and were highly relevant to his credibility, in general. The trial court did not err in admitting Almajid's videotaped interview with detectives.
D. The trial court erred in failing to properly instruct the jury with respect to
the felony-murder special circumstance allegation

Saibu contends that the trial court committed reversible error in failing to instruct the jury, sua sponte, with CALCRIM No. 703 regarding the elements of special circumstance murder. The People charged Saibu with special circumstance felony-murder pursuant to section 190.2, subdivision (a)(17). That provision imposes a penalty of death or imprisonment for life without the possibility of parole if a jury finds that "[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" any one of a number of enumerated felonies, including robbery. (§ 190.2, subd. (a)(17)(A).) Subdivision (d) of this provision imposes a specific intent element that is not required for felony murder, alone:
"Notwithstanding subdivision (c), every person, not the actual killer, who, with reckless indifference to human life and as a major participant, aids, abets, counsels, commands, induces, solicits, requests, or assists in the commission of a felony enumerated in paragraph (17) of subdivision (a) which results in the death of some person or persons, and who is found guilty of murder in the first degree therefor, shall be punished by death or imprisonment in the state prison for life without the possibility of parole if a special circumstance enumerated in paragraph (17) of subdivision (a) has been found to be true under Section 190.4."

Saibu contends that the trial court should have instructed the jury with CALCRIM No. 703, which sets forth the elements that the prosecution must prove in order for a jury to return a true finding on a special circumstance murder allegation. CALCRIM No. 703 provides in relevant part:
"If you decide that (the/a) defendant is guilty of first degree murder but was not the actual killer, then, when you consider the special circumstance[s] of _________________ <insert felony murder special circumstance[s]> , you must also decide whether the defendant acted either with intent to kill or with reckless indifference to human life.

"In order to prove (this/these) special circumstance[s] for a defendant who is not the actual killer but who is guilty of first degree murder as (an aider and abettor/ [or] a member of a conspiracy), the People must prove either that the defendant intended to kill, or the People must prove all of the following:

'1. The defendant's participation in the crime began before or during the killing;

"2. The defendant was a major participant in the crime;

"AND

"3. When the defendant participated in the crime, (he/she) acted with reckless indifference to human life."

"[¶] . . . [¶]

"If the defendant was not the actual killer, then the People have the burden of proving beyond a reasonable doubt that (he/she) acted with either the intent to kill or with reckless indifference to human life and was a major participant in the crime for the special circumstance[s] of _________________ <insert felony murder special circumstance[s]> to be true. If the People have not met this burden, you must find (this/these) special circumstance[s] (has/have) not been proved true [for that defendant]."

It is undisputed that the trial court did not instruct the jury with CALCRIM No. 703, or otherwise instruct the jury that it had to determine that Saibu acted "with reckless indifference to human life and as a major participant" in the robbery in order to return a true finding on the special circumstance allegation. The People appear to concede, and we agree, that the trial court's failure to instruct the jury with CALCRIM No. 703 was error.
The People argue that the trial court's error in failing to properly instruct the jury with respect to the special circumstance allegation was harmless. " '[W]hen a trial court fails to instruct the jury on an element of a special circumstance allegation, the prejudicial effect of the error must be measured under the test set forth in Chapman v. California (1967) 386 U.S. 18, 24. [Citations.] Under that test, an error is harmless only when, beyond a reasonable doubt, it did not contribute to the verdict.' [Citation.]" (People v. Jones (2003) 30 Cal.4th 1084, 1119.)
We cannot conclude that the failure to give this instruction was harmless beyond a reasonable doubt. The evidence demonstrated that Saibu drove Valentino to the T&M Liquor store on the day of the murder, and also acted as the getaway driver, but that it was Valentino, alone, who entered the store that day. There was also evidence that Saibu knew that Valentino was going to rob the liquor store, and that Saibu was assisting Valentino in this mission. Although a jury may have concluded from these facts that Saibu knew that the armed robbery in which he was participating carried a grave risk of death, it is also possible that a jury would not have reached this conclusion, particularly in light of evidence that these two men had engaged in at least two prior armed robberies together, and that no weapon had been fired during either of those robberies. The jury could have concluded that Saibu did not participate in the July 13 robbery of the T&M Liquor store with the knowledge that the activity carried a grave risk of death, since he had carried out other armed robberies with Valentino during which no shots were fired.
The People contend that "the jury necessarily made the required findings under other properly given instructions." However, as the People's brief describes, the jury was not asked to determine whether Saibu had the requisite intent for a felony-murder special circumstance finding. Rather, the jury was asked to determine whether Saibu intended to commit the robbery. It is clear that the jury was never asked to specifically consider whether Saibu either intended that a murder occur, or acted with sufficient knowledge of the dangerousness of the robbery that he could be considered to have acted with reckless indifference for human life. Because we cannot conclude that the error in failing to instruct the jury with respect to the felony-murder special circumstance allegation did not contribute to the jury's true finding on that allegation, we must reverse the jury's true finding on the felony-murder special circumstance allegation.
E. There is sufficient evidence to support Saibu's attempted murder conviction
as a natural and probable consequence of the robbery

Saibu contends that there is insufficient evidence to support his conviction for attempted murder related to the July 13 shooting incident. According to Saibu, because the prosecution's theory of his guilt as to the attempted murder charge was based on his role as an aider and abettor, the prosecution had to establish either that Saibu, himself, harbored the specific intent necessary for attempted murder, or that attempted murder was a natural and probable consequence of the robbery that he aided and abetted. Saibu contends that that the evidence is insufficient to support a conviction under either of those two theories. We disagree.
In considering a defendant's challenge to the sufficiency of the evidence to support a conviction, we review the record in the light most favorable to the judgment. (People v. Johnson (1980) 26 Cal.3d 557, 576.) If a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt, we must affirm. (Jackson v. Virginia (1979) 443 U.S. 307.)
"A person aids and abets the commission of a crime when he or she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime." (People v. Cooper (1991) 53 Cal.3d 1158, 1164.)
" 'All persons concerned in the commission of a crime, . . . whether they directly commit the act constituting the offense, or aid and abet in its commission, . . . are principals in any crime so committed.' [Citation.] Accordingly, an aider and abettor 'shares the guilt of the actual perpetrator.' [Citation.] The mental state necessary for conviction as an aider and abettor, however, is different from the mental state necessary for conviction as the actual perpetrator. [¶] The actual perpetrator must have whatever mental state is required for each crime charged . . . . An aider and abettor, on the other hand, must 'act 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.' [Citation.] The jury must find 'the intent to encourage and bring about conduct that is criminal, not the specific intent that is an element of the target offense . . . .' [Citations.]" (People v. Mendoza (1998) 18 Cal.4th 1114, 1122–1123 (Mendoza).)

"Once the necessary mental state is established, the aider and abettor is guilty not only of the intended, or target, offense, but also of any other crime the direct perpetrator actually commits that is a natural and probable consequence of the target offense. [Citation.]" (Mendoza, supra, 18 Cal.4th at p. 1123.) "A 'natural' consequence is one which is within the normal range of outcomes that may be reasonably expected to occur if nothing unusual has intervened. 'Probable' means likely to happen." (CALJIC No. 3.02.)
"To trigger application of the 'natural and probable consequences' doctrine, there must be a close connection between the target crime aided and abetted and the offense actually committed." (People v. Prettyman (1996) 14 Cal.4th 248, 269 (Prettyman).) "The elements of aider and abettor liability . . . on the natural and probable consequences theory are the following: 'the trier of fact must find that the defendant, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of a predicate or target offense; (3) by act or advice aided, promoted, encouraged or instigated the commission of the target crime. But the trier of fact must also find that (4) the defendant's confederate committed an offense other than the target crime; [fn. omitted] and (5) the offense committed by the confederate was a natural and probable consequence of the target crime that the defendant aided and abetted.' [Citation.] The issue 'is not whether the aider and abettor actually foresaw the additional crime, but whether, judged objectively, it was reasonably foreseeable.' [Citation.]" (People v. Vasco (2005) 131 Cal.App.4th 137, 161.) Whether the crime charged is the natural and probable consequence of the target crime is a factual question for the jury. (People v. Cummins (2005) 127 Cal.App.4th 667, 677.)
If there is substantial evidence that the defendant aided and abetted the robbery and the attempted murder was a reasonably foreseeable consequence of the robbery, the jury's verdict of guilty on a charge of attempted murder must be upheld. (People v. Prettyman, supra, 14 Cal.4th at pp. 261-262.) Here, the evidence demonstrated that Saibu was Valentino's getaway driver for the attempted armed robbery that Valentino committed at the same liquor store that Saibu had attempted to rob the day before. There was evidence that Saibu not only knew that Valentino entered the liquor store that day in order to rob it, but that Saibu intended for Valentino to rob the liquor store.^[1] There was thus strong evidence that Saibu aided and abetted Valentino's attempted robbery on July 13. Further, the fact that Valentino used a firearm during the commission of the robbery made the attempted murder reasonably foreseeable.
Saibu acknowledges that there are a number of cases in which courts have determined that murder or attempted murder are a natural and probable consequence of armed robbery. Indeed, in Prettyman, the Supreme Court cited multiple cases in which courts have "applied the 'natural and probable consequences' doctrine in situations where a defendant assisted in the commission of an armed robbery, during which a confederate assaulted or tried to kill one of the robbery victims." (Prettyman, supra, 14 Cal.4th at pp. 262-263; see also People v. Cummins (2005) 127 Cal.App.4th 667, 677 [noting there "are a number of California cases which hold murder or attempted murder can be a natural and probable consequence of robbery" and concluding that the charged attempted murder was a natural and probable consequence of a robbery and carjacking where defendant assisted in marching victim to edge of cliff off of which codefendant pushed victim].)
Saibu maintains that this case involves two unique circumstances that distinguish it from the cases cited above. According to Saibu, because he was not inside the T&M Liquor store with Valentino when Valentino fired the shots, and because there was no evidence that during the other robberies that he and Valentino committed together guns were ever fired or anyone was injured, he had no reason to believe that Valentino would fire a gun during the T&M Liquor robbery on July 13, 2005. However, in determining whether there is sufficient evidence to support Saibu's conviction as an aider and abettor of murder under the natural and probable consequences doctrine, the question is not whether Saibu subjectively believed that Valentino would attempt to murder someone during the course of the robbery that Saibu was aiding and abetting, but, rather, whether an attempted murder was a reasonably foreseeable consequence of the robbery. As we have already stated, courts have answered this question in the affirmative. Regardless of whether Saibu was inside or outside the store when the shooting occurred, or whether Saibu and Valentino had previously committed other armed robberies without firing a weapon, it was reasonably foreseeable that Valentino would fire the gun that he took into the store.
F. There is no cumulative error
Defendants claim that to the extent this court concludes that no individual error merits reversal, the cumulative error doctrine requires reversal of the judgment. "Under the 'cumulative error' doctrine, errors that are individually harmless may nevertheless have a cumulative effect that is prejudicial." (In re Avena (1996) 12 Cal.4th 694, 772, fn. 32.) We have concluded that all but one of Saibu's asserted claims of error are without merit; as to that claim of error, we conclude that reversal of the felony-murder special circumstance allegation is warranted. In the absence of any additional errors, we conclude that there is no cumulative error on which to base a reversal of the judgment against either defendant.
G. Valentino's abstract of judgment
Valentino identifies four claimed errors in the abstract of judgment that he maintains require correction. He indicated in his brief on appeal that he was in the process of seeking correction of the abstract of judgment directly from the trial court. In response to Valentino's request for corrections, the trial court issued a revised abstract of judgment on January 4, 2010. In his reply brief, Valentino asserts that although the trial court "resolved some of the errors raised in the opening brief, making those issues moot, the court did not resolve them all."
The remaining errors about which Valentino complains are (1) the failure of the trial court to amend the abstract of judgment in case number SCD193335 to show Valentino's custody credits for the days served in prison and in county jail while he was awaiting resentencing after the judgment had been modified, and (2) the court's failure to change the entries with respect to counts 6 and 7 in case number SCD207640 from the upper term to the middle term.
Valentino contends that the abstract of judgment fails to show the number of actual days that he has served in prison in case number SCD193335 (the original case in which Valentino was sentenced). He contends that, pursuant to People v. Buckhalter (2001) 26 Cal.4th 20 (Buckhalter), the trial court should have recalculated "all actual time the defendant has already served, whether in jail or in prison, and whether before or since he was originally committed and delivered to prison custody." (Id. at p. 29.)
"Defendants sentenced to prison for criminal conduct are entitled to credit against their terms for all actual days of presentence and postsentence custody (Penal Code, §§ 2900, subd. (c), 2900.5, subds. (a), (b)) . . . ." (People v. Cooper (2002) 27 Cal.4th 38, 40, internal footnote omitted.) However, there are "separate and independent credit schemes for presentence and postsentence custody." (Buckhalter, supra, 26 Cal.4th at p. 30.)
For custody "prior to the imposition of sentence," persons detained in a county jail, or other equivalent specified local facility, may be eligible to receive, in addition to actual time credits under section 2900.5, presentence good behavior/worktime credits of up to two days for every four days of actual custody. (§ 4019, subds. (a)(4), (b), (c), (e), (f).) " '[T]he court imposing a sentence' has [the] responsibility to calculate the exact number of days the defendant has been in custody 'prior to sentencing,' add applicable good behavior credits earned pursuant to section 4019, and reflect the total in the abstract of judgment. (§ 2900.5, subd. (d); see also [§ 2900.5] subd. (a).)" (Buckhalter, supra, 26 Cal.4th at p. 30.)
"Once a person begins serving his prison sentence, he is governed by an entirely distinct and exclusive scheme for earning credits to shorten the period of incarceration. Such credits can be earned, if at all, only for time served 'in the custody of the Director' (§ 2933, subd. (a)) and pursuant to article 2.5 of chapter 7 of title 1 of part 3 of the Penal Code (commencing with section 2930) (hereafter article 2.5). Under article 2.5, eligible prisoners may shorten their determinate terms[] . . . by up to six months for every six months actually served by performing, or making themselves available for participation, in work, training or education programs established by the Director. (§ 2933.) Such prison worktime credits, once earned, may be forfeited for prison disciplinary violations and, in some cases, restored after a period of good behavior. (§§ 2932, 2933, subds. (b), (c).) Accrual, forfeiture, and restoration of prison worktime credits are pursuant to procedures established and administered by the Director. (§§ 2932, subd. (c), 2933, subd. (c).)" (Buckhalter, supra, 26 Cal.4th at p. 31.)
"The sentence-credit statutes make only one express reference to a sentence modified while in progress," and that reference is found in section 2900.1. (Buckhalter, supra, 26 Cal.4th at p. 32.) Section 2900.1 provides that "where a defendant has served any portion of his sentence under a commitment based upon a judgment which judgment is subsequently declared invalid or which is modified during the term of imprisonment, such time shall be credited upon any subsequent sentence he may receive upon a new commitment for the same criminal act or acts." The sentencing court must determine such time and reflect it in the abstract of judgment. (§ 2900.5, subds. (a), (d).)
Although Buckhalter is not directly on point because it concerns the modification of a defendant's sentence "as a result of an appellate sentence remand," the same principles would appear to apply when a trial court resentences a defendant pursuant to California Rules of Court, rule 4.452. Certainly, a court can be considered to have modified a defendant's original sentence when the court resentences that defendant to a single aggregate term pursuant to rule 4.452. Therefore, under section 2900.1, which specifies that when a sentence is modified while in progress, the "time" already served "shall be credited upon any subsequent sentence [the defendant] may receive upon a new commitment for the same criminal act or acts," the trial court should, "in its new abstract of judgment , . . . credit him with all actual days he had spent in custody, whether in jail or prison, up to that time" (Buckhalter, supra, 26 Cal.4th at p. 37).
Valentino served a portion of his sentence in case number SCD193335 before the court sentenced him to a single aggregate term in case numbers SCD207604 and SCD193335, and should be credited for all of the time that he has been in custody. (See Buckhalter, supra, 26 Cal.4th at p. 41 ["the trial court, having modified defendant's sentence, should have determined all actual days defendant had spent in custody, whether in jail or prison, and awarded such credits in the new abstract of judgment"].)
We therefore direct the trial court to amend the abstract of judgment to reflect not only the presentence custody credits that Valentino earned in case number SCD193335, but also the number of days that Valentino has served in the custody of the Director of the Department of Corrections and Rehabilitation.^[2]
As to the trial court's failure to change the term entries for counts 6 and 7 in case number SCD207640 in the abstract of judgment, the court correctly identified the sentences imposed on counts 6 and 7 in case number SCD207640 as one year for each count, which is one-third of the middle term for those offenses. This was correct. However, in the column in which the court is to identify which of the three terms it is imposing, i.e., the upper, middle, or lower term, the court indicated with a "U" that it was selecting the upper term for each of those counts. In so doing, the trial court was indicating the sentence that it would have selected if it had the option to select a term other than one-third the middle term on those counts.^[3]
Pursuant to section 1170.1, subdivision (a), once the court identified the principal term, the court was required to impose "one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed." We agree with Valentino that the trial court should have indicated the term that the court actually imposed on Valentino, not the sentence that it would have imposed if it had the option of selecting a term other than the middle term. (See People v. Riolo (1983) 33 Cal.3d 223, 227 [" '[T]erm of imprisonment' must refer to the actual sentence imposed by the court, not to the sentence that might have been imposed by the court under other circumstances."].) We therefore direct that Valentino's abstract of judgment be amended to indicate that the court imposed the middle term with respect to counts 6 and 7 in case number SCD207640.
IV.
DISPOSITION
The jury's true finding on the robbery-murder special circumstance under section 190.2, subdivision (a)(17) as to Saibu is reversed and the case is remanded for further proceedings. If the People do not elect to timely retry Saibu on the robbery-murder special circumstance allegation, the trial court shall modify the sentence imposed on the first degree murder count to 25 years to life.
The trial court shall modify Valentino's abstract of judgment to reflect not only the presentence custody credits that Valentino earned in case number SCD193335, but also the number of days that Valentino has served in the custody of the Director of the Department of Corrections and Rehabilitation. The court shall also modify Valentino's abstract of judgment to show that the terms associated with counts 6 and 7 in case number SCD207640 are middle terms, not upper terms. The trial court shall forward the corrected abstract of judgment to the Department of Corrections and Rehabilitation.
In all other respects, the judgment is affirmed.


AARON, J.

WE CONCUR:



McDONALD, Acting P. J.



O'ROURKE, J.

Filed 1/11/11

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, Plaintiff and Respondent, v. SADIQ SAIBU et al., Defendants and Appellants.

D054980 (Super. Ct. No. SCD207640) ORDER CERTIFYING OPINION FOR PARTIAL PUBLICATION

THE COURT:

The opinion filed on January 4, 2011, is ordered certified for partial publication of parts I; II.B; III.G; and IV only.

The attorneys of record are:

Rebecca P. Jones, under appointment by the Court of Appeal, for Defendant and Appellant Saibu.

Diane Nichols, under appointment by the Court of Appeal, for Defendant and Appellant Valentino.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons and Gil Gonzalez, Assistant Attorneys General, Anthony DaSilva, Deputy Attorney General, for Plaintiff and Respondent.




McDONALD, Acting P. J.



Publication courtesy of San Diego free legal advice.
Analysis and review provided by Santee Property line attorney.
San Diego Case Information provided by www.fearnotlaw.com

---