THE PEOPLE v. CURRY

Filed 12/31/07

CERTIFIED FOR PUBLICATION

COPY

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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Story continued from part I . . . .

Buford contends that any inference that [he] intended to rob [L.R.] of the money at the time of the movement is made unreasonable by [L.R.s] own testimony that it was her intent to lend [Buford] the $700, that she had informed him of that fact and that she had never verbally reneged. She did, in fact, testify on that point at trial. However, we reject Bufords contention. The evidence was that Buford lured L.R. to the park where he set her up so she could be ambushed and brutally assaulted by his friends. And, although L.R. testified that she had previously offered to loan Buford the $700 to repair his car, a jury could reasonably infer that, under the circumstances, L.R. was no longer willing to loan him money.

Buford also maintains that the prosecution failed to establish the asportation element of the crime. He argues that the movement of L.R. from the park to the house was merely incidental to the robbery and did not substantially increase the risk of harm to her. Whether the forced movement of the victim was merely incidental to the target crime, and whether that movement substantially increased the risk of harm to the victim, is difficult to capture in a simple verbal formulation that would apply to all cases. (People v. Dominguez (2006) 39 Cal.4th 1141, 1151.) The Supreme Court suggests that the asportation element requires a multifaceted, qualitative evaluation rather than a simple quantitative assessment. Moreover, whether the victims forced movement was merely incidental to the [target crime] is necessarily connected to whether it substantially increased the risk to the victim. These two aspects are not mutually exclusive, but interrelated. (Rayford, [supra, 9 Cal.4th] at p. 12.) (Id. at p. 1152.)

In support of his argument, Buford contends that the only way for defendants to get the $700 was to return to L.Rs house, thus the movement from the park to the house was merely incidental to the target crime and did not substantially increase the risk of harm to [L.R.]. He suggests that they moved her from a location where the likelihood of detection was near zero, to others, where it was more likely that she be observed and aided. Bufords analysis ignores the evidence and minimizes the interrelationship betweenthe movement and the increased risk in the circumstances of this case. We disagree that the movement of L.R. from the park to the house was incidental to the target crime of robbery. Defendants drove to several locations before they went to L.R.s home. Once inside the Malibu, defendants drove to obtain clean clothing for L.R., bought and smoked marijuana and Curry sped off not once but twice from L.R.s home. And, even if detection was arguably more likely after defendants left the park with L.R., she was clearly not any safer. Defendants had placed L.R. in the backseat of the Malibu between Boone and Russell, with a self proclaimed drunk driver, Curry, at the wheel. The pregnant L.R. was bruised, bleeding and unconscious when defendants placed her in the Malibu. Curry testified that in the car, Russell pointed a gun at L.R. and threatened to shoot her if she did not get the money. Further, the inference could be made that any delay in getting L.R. medical care substantially increased the risk of harm to her and her unborn child. On this record, a jury could reasonably find that the defendants forced movement of L.R. was more than incidental to the robbery and substantially increased her risk of harm.

II.

There Is No Error In The Jury Instruction on Kidnapping for Robbery

Russell contends that Judicial Council of California Criminal Jury Instructions (Jan. 2006), CALCRIM No. 1203 (Kidnap for Robbery) improperly allowed the jury to convict her of aggravated kidnapping without finding that she had the intent to rob L.R. at the time the kidnapping commenced. We conclude that CALCRIM No. 1203 is a correct statement of the law.

The court instructed the jury on the elements of aggravated kidnapping as follows:

[T]he defendants are charged in Count Four with kidnapping for the purpose of robbery. To prove that a defendant is guilty of this crime, the people must prove that, one, the defendant intended to commit robbery; two, acting with that intent, the defendant took, held or detained another person by force or instilling a reasonable fear; and, three, using that force or fear, the defendant moved the other person or made the other person move a substantial distance; and, four, the other person was moved or made to move a distance beyond that merely incidental to the commission of the robbery; and, five, the other person did not consent to the movement; and, six, the defendant did not actually and reasonably believe, that the other person consented to the movement.

In order to consent, a person must act freely and voluntarily and know the nature of the act. As used here, a substantial distance means more than a slight or trivial distance.

The movement must have substantially increased the risk of harm to the person beyond that necessarily present in the robbery. In deciding whether the movement was sufficient, consider all of the circumstances relating to the movement. (Italics added.)

Although CALCRIM No. 1203 does not expressly state that the intent to rob must exist at the time the movement commences, we conclude that the first three points of the instruction, set forth in italics, adequately express that requirement. The instruction describes the sequence of events starting with intent and followed by action first to take, hold or detain the victim by force or fear, and then to move the victim a substantial distance. There was no error.

III.

Failure to Give the Unanimity Instruction was Harmless

Buford argues that the court prejudicially erred in failing to instruct the jury on the requirement of unanimity with regard to the robbery charge in count three.^[1] He notes that there was evidence of three acts of robbery the forcible taking of L.R.s shoes, cell phone and $20 and argues that jurors could have disagreed about which act or acts Buford committed. The Attorney General argues that there was evidence of only two acts of robbery, one act being the taking of L.R.s shoes and cell phone and the other act being the later taking of L.R.s $20 dollars. The Attorney General has the better argument.

The record reflects three items were taken from L.R. The taking of two items, L.R.s shoes and phone occurred almost simultaneously during the first assault at the park and there is no evidence suggesting otherwise. On these facts, the taking of L.R.s shoes and cell phone were so closely connected that they formed a single incident of robbery and no unanimity instruction was required to distinguish between those takings. (People v. Thompson (1995) 36 Cal.App.4th 843, 851 [A unanimity instruction is not required where the offenses are so closely connected to form a single transaction or where the offense itself consists of a continuous course of conduct].)

The third item taken from L.R. was her $20 dollars. Prior to the taking of her $20 dollars, Boone and Russell had ended the first assault and had driven away from the park. L.R. asked Buford to call an ambulance; instead however, Buford called Boone and Russell back to the park to assault L.R. further. While Boone and Russell were driving back to the park, Buford called again to tell them to bring a bat and flashlight from the car. Defendants took the $20 during the second assault, when Boone and Russell returned to the park to finish the job. It appears from the record that the first robbery at the park was separated from the second robbery by a period of time, during which the beating of L.R. had abated and Buford was able to make two phone calls, the first to summon Boone and Russell back to the park to finish the job and the second to ask them to bring a bat and a flashlight. Thus, the record demonstrates that L.R. was robbed at the park two separate times.

[W]hen the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. [Citations.] (People v. Russo (2001) 25 Cal.4th 1124, 1132.) Where no election is made, the court has a duty to instruct sua sponte on the unanimity requirement. (People v. Melhado (1998) 60 Cal.App.4th 1529, 1534.)

The failure to provide a unanimity instruction is subject to the Chapman harmless error analysis on appeal.^[2] (People v. Wolfe (2003) 114 Cal.App.4th 177, 186 (Wolfe), citing People v. Deletto (1983) 147 Cal.App.3d 458, 472.) Under that standard the question is whether it can be determined, beyond a reasonable doubt, that the jury actually rested its verdict on evidence establishing the requisite [elements of the crime] independently of the force of the . . . misinstruction. (Wolfe, supra, 114 Cal.App.4th at p. 188.)

We conclude that the error in failing to instruct the jury on unanimity was harmless beyond a reasonable doubt. Where the record provides no rational basis, by way of argument or evidence, for the jury to distinguish between the various acts, and the jury must have believed beyond a reasonable doubt that defendant committed all acts if he committed any, the failure to give a unanimity instruction is harmless. (People v. Deletto, supra, 147 Cal.App.3d at p. 473.) Where the record indicates the jury resolved the basic credibility dispute against the defendant and therefore would have convicted him of any of the various offenses shown by the evidence, the failure to give the unanimity instruction is harmless. [Citation.] (People v. Thompson (1995) 36 Cal.App.4th 843, 853.)

In this case, the prosecutor argued that Buford was an aider and abettor in the taking of L.R.s shoes, cell phone and money at the park. Buford maintained that there was no evidence that he took anything from L.R. although he was there. He suggested that the only evidence that he aided and abetted the crime came from Curry whose testimony the jury should not believe. Buford also argued that he had no motive to rob L.R. because she had agreed to give him the $700. Defense counsel argued that his client did nothing in regard to the money and suggested that, it was . . . the women in the back seat that were interested in that money and were making the claims and making the requests . . . . The verdicts demonstrate that the jury rejected Bufords defense.

The evidence is overwhelming that Buford masterminded all of the crimes against L.R., including the robberies. It also shows that he was an aider and abettor in all of the crimes including the two separate robberies at the park. Circumstantial evidence suggests that Buford encouraged Curry to take the cell phone during the first assault to prevent L.R. from calling for help. Evidence that the cell phone ended up in the hands of Bufords cousin supports the inference that even if Curry took the cell phone in the first instance, Curry gave the cell phone to Buford. Evidence of Bufords role as an aider and abettor is even stronger as to the $20 taken from L.R. in the second assault, where he repeatedly asked L.R. for the money and told Curry to check [L.R.] for money. Buford, however, did not argue or present any evidence from which the jury could distinguish between the acts of robbery at the park; he offered the same defense to both acts of robbery -- that he took nothing from L.R. and had no motive to do so -- yet the evidence of his involvement in the second act of robbery was conclusive. Given this record, it is reasonable to conclude that the jury believed beyond a reasonable doubt that Buford committed all acts if he committed any. Thus, the failure to give the unanimity instruction was harmless beyond a reasonable doubt. (See Wolfe, supra, 114 Cal.App.4th at p. 188; People v. Gary (1987) 189 Cal.App.3d 1212, 1218-1219.)

IV.

The Jury Instructions on Voluntary Intoxication

As to the attempted murder of L.R.s unborn child, the prosecutor offered three theories of defendants criminal liability: (1) liability as perpetrators; (2) liability as aiders and abettors of attempted murder; and (3) liability as aiders and abettors of felony assault on L.R., the natural and probable consequence of which was attempted murder. The court instructed the jury on these theories pursuant to CALCRIM Nos. 400 (Aiding and Abetting: General Principles), 401 (Aiding and Abetting: Intended Crimes) and 402 (Natural and Probable Consequences Doctrine). Because trial testimony showed that some if not all of the defendants were intoxicated when they assaulted L.R. at the park, the court also read the jury several instructions that addressed voluntary intoxication, including CALCRIM No. 404 (Intoxication), which stated:

If you conclude that a defendant was intoxicated at the time of the alleged crime, you may consider this evidence in deciding whether the defendant, A, knew a perpetrator intended to commit the felony assault, and, B, intended to aid and abet the felony assault.

Someone is intoxicated if he or she used any drug, drink or other substance that caused an intoxicating effect.

Do not consider evidence of intoxication in deciding whether attempted murder is a natural and probable consequence of felony assault.^[3]

All three defendants contend the court erred in instructing the jury on the effect of voluntary intoxication on the charges in this case. Curry and Russell argue that the court erred when it told the jury to disregard their voluntary intoxication when considering their liability for attempted murder as the natural and probable consequence of assault. Russell maintains that the error violated her constitutional rights to due process and equal protection. Taking a different tack, Buford contends the instructions read as a whole failed to advise the jury explicitly on the need to consider voluntary intoxication in assessing his liability as an aider and abettor for the specific intent crimes of attempted murder, robbery, attempted robbery and kidnapping for robbery. We conclude that the instructions on voluntary intoxication were correct statements of the law. And even if the instructions were flawed, the error was harmless in light of the record and verdicts returned by the jury.

A. Claims Raised By Curry and Russell:

Curry and Russell maintain that the last sentence in CALCRIM No. 404 is misleading regarding the effect of intoxication on their understanding of whether attempted murder was a reasonably foreseeable consequence of the groups joint assault on L.R. Specifically, with respect to the equal protection claim, Russell contends that an aider and abettor who is alleged to know the perpetrators intent to kill at the beginning of an offense can use the intoxication defense, but an aider and abettor [like Russell] who does not know that the perpetrator intends to kill cannot use the same [defense]. Russell argued at oral argument that it was unfair that the intoxication defense was unavailable to her, the defendant alleged to be most far removed from the assault in terms of knowledge and participation. Curry and Buford join in Russells equal protection claim.

1. Russells Knowledge of and Participation in the Felony Assault:

Notwithstanding Russells testimony that when Buford called Boone and her in the car did she first realize that Buford wanted to force L.R. to have a miscarriage, Russell attempts to minimize her knowledge of and participation in the assault. Nevertheless, Russells argument that as the defendant alleged to be the most far removed from the assault in terms of knowledge and participation it is unfair that the intoxication defense was unavailable to her is both misplaced and inaccurate. Russell does not cite, and we do not know of, a case that measures the degree of the knowledge and intent of the aider and abettor. It is only necessary that the prosecution prove an aider and abettor had knowledge of her confederates criminal purpose and the intent to encourage or facilitate that purpose. Once the jury makes these findings, it can convict a defendant of the intended crime and any other crime committed that was a natural and probable consequence of the intended crime. (People v. Mendoza (1998) 18 Cal.4th 1114, 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 perpetrator actually commits that is a natural and probable consequence of the target offense. (People v. Prettyman (1996) 14 Cal.4th 248, 260-262 (Prettyman).) It follows then that the jury need not measure the degree of a defendants knowledge or intent.

As to Russells argument that the intoxication defense was unavailable to her, she is only partly accurate. It was unavailable only as to whether attempted murder was a natural and probable consequence of felony assault. Otherwise, the jury received, was instructed on, and rejected the evidence of intoxication on the aider and abettor theory of liability.

2. CALCRIM No. 404 and the Mendoza Case:

As to CALCRIM No. 404, its last sentence, Do not consider evidence of intoxication in deciding whether attempted murder is a natural and probable consequence of felony assault is based on language contained in Mendoza,supra, 18 Cal.4th at page 1133. In that case, the Supreme Court described the mental state required to establish aider and abettor liability and clarified the impact of voluntary intoxication on that determination. The Mendoza case began by explaining: 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. ( 31.) 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.] 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.] (Id. at pp. 1122-1123.)

Story continues as part III . . . .

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^[1]CALCRIM No. 3500 states: The defendant is charged with _________________ [in Count _____ ] [sometime during the period of ____________________ to ____________________ ]. [] The People have presented evidence of more than one act to prove that the defendant committed this offense. You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act (he/she) committed. The court instructed the jury with CALCRIM No. 3500 in connection with the personal weapon use allegation.

^[2]Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705] (Chapman).

^[3]The court gave other instructions on voluntary intoxication. On the special allegation of premeditation and deliberation attached to the attempted murder charge, the court instructed the jury pursuant to CALCRIM No. 625 that it could consider evidence of voluntary intoxication in deciding whether a defendant acted with an intent to kill or the defendant acted with deliberation and premeditation.

It also instructed the jury more generally regarding voluntary intoxication pursuant to CALCRIM No. 3426: You may consider evidence, if any, of the defendants voluntary intoxication only in the limited way specified in the instructions. You may consider that evidence in deciding whether the defendant acted with the specific intent required for the crime.

The people have the burden of proving beyond a reasonable doubt that the defendant acted with the specific intent required for Counts One, Three, Four, Five and Six and the special finding of premeditation and deliberation relating to Count One and termination of the pregnancy in Count Two.

If the people have not met this burden, you must find the defendant not guilty of those crimes and the allegations not true.

You must not consider evidence of voluntary intoxication for any other purpose. Voluntary intoxication is not a defense to Count Two, assault by means of force likely to produce great bodily injury or deadly weapon or the lesser crimes of assault, battery, false imprisonment or kidnapping.

I read to you [that] you may not consider evidence of involuntary [sic] intoxication for any other purpose. Im going to say that you may not consider evidence of voluntary intoxication for any purpose not specifically stated in these instructions.