Filed 3/29/17 P. v. Lovett CA5




NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

EVAN JAMES LOVETT,

Defendant and Appellant.

F071007

(Merced Super. Ct. No. CRM021408)


OPINION

APPEAL from a judgment of the Superior Court of Merced County. Ronald W. Hansen, Judge.
Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and A. Kay Lauterbach, Deputy Attorneys General for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Appellant/defendant Evan James Lovett was charged and convicted of the first degree murder of Benjamin Munsayac, with the special circumstances that the murder was committed during a robbery and a burglary. He was sentenced to life in prison without the possibility of parole.
Defendant had formerly worked at an in-home care facility owned by Munsayac. The prosecution primarily relied on a felony murder theory, based on evidence that about one month after defendant’s employment terminated, defendant confronted Munsayac at the victim’s residence, bludgeoned him with a claw hammer, strangled him, and then drove away in his vehicle. Defendant later told his mother that he went to Munsayac’s house with the intent to steal his car. The defense theory was that defendant was intoxicated and unable to form the requisite intent for first degree murder, an unidentified third person’s DNA was present at the murder scene and that person was the likely murderer, and defendant was either not guilty or only guilty of involuntary manslaughter.
On appeal, defendant argues his trial counsel was prejudicially ineffective for failing to request instructions on theft and after-acquired intent, based on evidence that defendant went to the victim’s house without the intent to steal anything and may have taken the victim’s car after an unidentified person committed the murder; and the absence of these instructions prevented the jury from finding him guilty of only involuntary manslaughter.
We affirm.
FACTS
Benjamin Munsayac (Munsayac) owned and operated an in-home care facility, which provided care to people who needed assistance in their daily living. The facility was located behind his personal residence on East Main Street in Merced.
Munsayac also operated a restaurant with a partner; it was located in another part of Merced.
As we will explain, a series of seemingly unrelated incidents led the police to arrest defendant, discover Munsayac’s body, and conclude that defendant killed Munsayac. The trail was decidedly irregular. We turn to the undisputed timeline of events.
Defendant and the care facility
Defendant and his girlfriend, Ashley Rose (Rose), were originally from Alaska. They moved to Merced because Rose’s grandmother lived there. Rose was pregnant with defendant’s child. Defendant posted a notice on Craig’s List that he was looking for work as a handyman.
In or about December 2011, Munsayac called defendant in response to his post on Craig’s List. Munsayac hired defendant and Rose to work at his in-home care facility. Defendant and Rose started working at the facility, took care of the patients, and lived there.
On approximately January 18, 2012, the working relationship ended between Munsayac, defendant and Rose. Defendant and Rose moved out of the care facility and lived at the Gateway Motel on 16th and V Streets in Merced.
At some point in January 2012, Rose gave birth to their child. Rose’s grandmother apparently obtained custody of the child.
In or about February 2012, Rose was admitted into the hospital in Merced for treatment of an unidentified condition. The hospital was approximately three miles from Munsayac’s residence on Main Street.
Defendant meets the Catrina family
Daryl Catrina (Catrina) and his family lived in a rural area adjacent to Highway 152, about five miles from Highway 59 in Merced County. They became involved in this case sometime between 5:30 p.m. and 6:00 p.m. on February 20, 2012, when Catrina’s daughter told him that she met a man who had been walking in the fields near their house. The man needed help, and she had brought him home. Catrina testified that defendant was the man.
Catrina testified that defendant said he was from Alaska, and he had just arrived from Los Angeles. Defendant was carrying a backpack and said it contained tools. Defendant had been walking in the fields and did not appear to have a vehicle.
Catrina’s wife gave defendant something to eat. Catrina gave him clean clothes: sweatpants, socks, and boots. The boots had belonged to Catrina’s son, whose name was written inside of them.
Defendant arrives at the hospital
At defendant’s request, Catrina drove him to the hospital in Merced and dropped him off between 7:30 p.m. and 8:00 p.m. Defendant’s girlfriend, Rose, was still a patient at the hospital.
The hospital’s surveillance cameras showed that defendant entered the building at 8:11 p.m., and took the elevator to the fifth floor, where Rose’s room was located.
Munsayac leaves the restaurant
In the meantime, Munsayac and his partner were at their restaurant on February 20, 2012. It was the President’s Day holiday and business was slow. The receipts were only $80. Munsayac and his partner split the proceeds.
At 9:00 p.m., Munsayac left the restaurant in his vehicle, and he was never seen alive again.
Defendant leaves the hospital
The hospital surveillance cameras showed that defendant left the hospital at 9:25 p.m. He was wearing camouflage pants and carrying a backpack.
The murder
At some point between 9:00 p.m. and 11:00 p.m. on February 20, 2012, Munsayac was murdered in the bedroom of his residence on East Main Street in Merced. He had been strangled, and also suffered multiple blunt force injuries to his head inflicted by a claw hammer. We will discuss the crime scene evidence below.
Defendant arrives at the Gateway Motel
Sometime after 11:00 p.m., defendant arrived at the Gateway Motel. He knocked on the door of Amelia and Victor Gonzales, who lived across the hall from him. Mrs. Gonzales answered the door, and defendant “barged” past her and started talking to Mr. Gonzales.
Mr. Gonzales testified that defendant said he needed help because he had been in a fight and just killed a man, and someone shot his “wife” in the belly. Mrs. Gonzales testified that defendant took off his shirt, knelt on the floor, and asked Mr. Gonzales for forgiveness. Mr. Gonzales told defendant that only God could give forgiveness. Defendant asked Mr. Gonzales to drive him from Merced to Mexico. Defendant threw some money on the bed and asked Mr. Gonzales to buy drugs for him.
Mrs. Gonzales testified that defendant was wearing camouflage pants and brown boots. There was blood on his pants and boots. Defendant had scratches on his face and blood on his knuckles. Mrs. Gonzales did not notice if there was blood on his shirt because he had already taken it off. She did not smell alcohol on defendant.
Mr. Gonzales told defendant that he needed to get dressed. Defendant took his shirt, told Mr. Gonzales to hurry, and went outside. As soon as defendant left the motel room, Mr. Gonzales told his wife to call 911.
The 911 call
At 11:27 p.m., Mrs. Gonzales called 911 and reported that a young man named “Evan,” who was from Alaska, said he had “murdered a man” who had shot his “wife” in the stomach. She said that Evan had removed his shirt, he was wearing camouflage pants, and his shoes and pants were full of blood.
After Mrs. Gonzales finished the 911 call, Mr. Gonzales went outside to look for defendant but could not find him. Mrs. Gonzales heard a noise from the motel’s parking lot gate, but she did not see anyone drive away. The police officers arrived and looked for defendant, but he was gone.
Defendant and Catherine Ryan
Catherine Ryan lived in the Siesta Motel on 16th Street, located next to the Gateway Motel. Ms. Ryan testified that on the evening of February 20, 2012, she received a telephone call from her granddaughter, who was at the bus terminal and needed a ride.
Ms. Ryan left her motel room around 11:30 p.m. She saw defendant sitting in an older-model bluish-silver van that was parked in the driveway of the Siesta Motel. Ms. Ryan knew defendant because he lived in the adjacent motel. She asked defendant if he could give her a ride to the bus station to pick up her granddaughter. Defendant agreed, and Ms. Ryan got into the van.
Ms. Ryan testified that after they picked up her granddaughter, defendant told them that his “wife” had been “shot in the stomach and that he had lost his baby forever.” Defendant also said he had “just shot and killed a man and I was riding in a stolen vehicle.” Defendant said the van belonged to the man he had killed.
Ms. Ryan testified there was blood on defendant’s shirt, shoes, and hands. There were cuts on his lip and left cheek. Defendant said he needed directions to southbound Highway 99. Defendant said he was going to Los Angeles and then Mexico, and all he needed was four hours to get away. Defendant said he had $1,000 in his pocket, he would give the money to whoever helped him get there, and then he would let that person return home. Defendant also said he had a gun, but Ms. Ryan never saw a weapon.
Ms. Ryan testified that when defendant initially disclosed this information, he was “real calm and cool.” When Ms. Ryan tried to ask a question, however, defendant became furious. Defendant told Ms. Ryan that he did not want to hear what she had to say, and to “just shut the F-up.”
Defendant drove to the parking lot of the “R-Bar,” located near the Siesta Motel. Ms. Ryan was frightened and wanted to leave, but the van’s doors were locked. Defendant kept talking about what he wanted to do and waved his arms around. He inadvertently unlocked the doors. Ms. Ryan and her granddaughter jumped out of the van and ran away. Defendant drove away, in the direction of Highway 99.
Ms. Ryan testified she found a police officer on the next street. She told the officer that “this guy just told me that he had just killed somebody and he’s headed towards the freeway, and I don’t know if it’s true or not ….”
The hit-and-run-report
At approximately 12:02 a.m. on February 21, 2012, several officers responded to a dispatch of a hit-and-run incident on East Childs Avenue. The caller reported the driver of the subject vehicle got out of the car; he was wearing camouflage pants; he was on foot; and he was running towards Highway 99.
Merced Police Officer Frank Bazzar drove to the scene. As he approached the 16th Street onramp to Highway 99, he suddenly saw a shadowy figure run across the road from an adjacent field. Bazzar directed his spotlight toward the figure and saw a man run into the oleander bushes. The man was wearing a dark colored jacket and camouflage pants. Bazzar called for backup officers to establish a perimeter.
The officers ordered the man to step out of the bushes. Defendant emerged from the bushes and he was taken into custody. He was not wearing shoes. Defendant spontaneously said:
“I wasn’t driving. I was walking. The dude came walking up to me asking what happened. There were three people that got out of that vehicle. Can you just stop and let’s do it right here.”
The officers did not respond and placed defendant in handcuffs. Defendant continued:
“Ow can you watch my hands here I have sticks in these okay, that’s all I ask, and this is too tight, can you release it? There’s stickers in here, I have no shoes on. Can you just stop and release these.”
An officer refused to do so and said they were going to the scene of the accident. Defendant said: “I don’t know what you’re talking about…. I just gotta get to the f**king hospital” because “my old ladies [sic] dying!” The officer told defendant to shut up because he was on the radio. Defendant cursed him and said: “My old ladies [sic] dying! … I got hit by a vehicle, three other people just got out.” Defendant said he was trying to help, cursed the officer, and claimed he had been hit by a car. :
The officer replied that defendant was driving. Defendant said he was not driving, he was just walking down the road, and he just left his “old lady.”
An officer found a pair of boots in the bushes near the location where defendant was apprehended.
There was blood on defendant’s camouflage pants and brown belt, and on the boots found in the bushes. Darryl Catrina later identified the bloody boots as the pair that he gave to defendant earlier on February 20, 2012. Catrina recognized the boots because his son’s name was still written inside them. Catrina testified the boots were not covered with blood when he gave them to defendant.
Munsayac’s van
After defendant was taken into custody, the officers found a Chrysler Pacifica van about a quarter-mile away from the location where they apprehended him. The van had been the subject of the original 911 call for the hit-and-run report. The van had apparently veered off Delong Street near East Childs, and the frontend had crashed into an adjacent irrigation ditch. No one was inside the vehicle. There were no alcoholic beverages found in the van.
The van was registered to Benjamin Munsayac.
Arrest of defendant
The officers escorted defendant to the scene where Munsayac’s van was found. There was a witness to the hit-and-run incident. An infield showup was conducted, and the witness identified defendant as the driver of the van that crashed into the ditch.
Officer Bazzar testified defendant’s behavior and speech were consistent with someone who had been driving under the influence. Bazzar conducted breath tests using an EPAS device. Defendant’s blood-alcohol levels were 0.09 percent at 1:07 a.m., and 0.10 percent at 1:11 a.m.
Based on the results of the breath tests, defendant was arrested and booked into the jail for driving under the influence and hit and run driving. His bloody pants and boots were seized at the jail.
Discovery of Munsayac’s body
At 5:30 a.m. on February 21, 2012, Officer Luker arrived at Munsayac’s residence on East Main Street to conduct a welfare check because of the discovery of his van in the irrigation ditch.
Officer Luker spoke to some people in the separate care facility, and was directed to Munsayac’s personal residence in the front. Luker forced open a locked bedroom door and found Munsayac’s body lying on the floor. He had suffered multiple blunt force head injuries and had also been strangled. A blanket was partially covering his upper body.
A claw hammer was on top of the bed. The room was very disheveled, the closet doors were open, and there were large amounts of blood splattered around. A mask and broken Crown Royal liquor bottle were found in the alley.
The pathologist’s testimony
The pathologist testified that it was impossible to determine whether Munsayac died from the blunt force head injuries or strangulation.
Munsayac had numerous lacerations, contusions, scrapes, and bruises on his face and head. There were patterned lacerations on his arms and scalp consistent with a claw end of a hammer. The victim’s skull was fractured in multiple areas: the forehead above his right eye, the mid upper forehead area, the left forehead area, the back of the skull towards the middle, and the left frontal area. There was a “large, basically caved in oval fracture of his temple on the right. In which the bone was not only fractured but the piece of the bone was pushed in and the underlying brain was torn and lacerated.” There was a fracture of the victim’s “lower mid back of his skull … down along the floor of the skull into the hole where the spinal cord goes down. [¶] And then the roof of the bone that covers the eyeballs … they were both fractured … from usually force of some kind.” As a result of these injuries, there were bruises and internal bleeding on the surface of the brain. There were also blunt force injuries, bruises, and abrasions on his chest, arms, hands, and wrist. His right arm was broken.
As to the strangulation, the pathologist testified there were abrasions around the sides of the victim’s neck, bruises on the muscles, two fractures on the larynx, and small hemorrhages in the lips and eyes, consistent with neck compression. In order to inflict such injuries, the assailant had been “grabbing and clutching very hard for a long period of time” around the victim’s neck. The victim would have become unconscious within 30 seconds from the neck compression, but the assailant had to continue to strangle the victim for around five minutes to kill him.
Physical and DNA evidence
There were multiple sets of fingerprints lifted from Munsayac’s bedroom and his van; none of the prints matched defendant or were identified.
The claw hammer found on top of the victim’s bed was covered in human blood. There was blood under the victim’s fingernails. There were large stains of human blood on defendant’s pants and sweatshirt.
The victim’s DNA was found on the swabs taken from the blood on the head and the handle of the claw hammer. There was one additional allele on the hammer’s handle, which indicated the presence of another DNA profile; defendant could not be excluded as the donor of that additional profile.
The victim’s DNA was also found in the blood recovered from the sweatshirt and camoflauge pants that defendant was wearing when he was arrested.
There were three contributors to a swab taken from defendant’s right hand: the victim’s profile could not be excluded as one of the donors.
The fingernail clippings taken from the victim’s hands showed a mixture of DNA profiles from defendant and the victim, consistent with the victim scratching defendant.
One swab from the victim’s fingernail clippings showed a mixture of three contributors: defendant, the victim, and a third contributor, who could not be identified and whose profile was not located with the state’s DNA database.
The mask found at the crime scene showed more than four contributors and could not be analyzed.
DEFENDANT’S POSTARREST INTERVIEW
Around 8:45 a.m., on February 21, 2012, Detectives Russell and Deliman picked up defendant from the country jail, where he had been taken after his arrest for the hit-and-run incident. They drove him to the police department, and Detective Russell conducted a videotaped interview with him. Russell advised defendant of the warnings pursuant to Miranda v. Arizona (1966) 384 U.S. 436 (Miranda), and defendant agreed to answer questions.
Detective Russell did not inform defendant that they had found Munsayac’s body or knew that the van was registered to him. Instead, Russell asked defendant to tell them about his activities the previous day, which ended with his arrest. Defendant launched into a lengthy narrative and gave the following account.
Defendant and Munsayac
Defendant said he was 21 years old, and his girlfriend, Ashley Rose, was 18 years old. Defendant said he was from Alaska, where he was “a very good upstanding citizen.” Later in the interview, however, defendant said he had “a very extensive … driving record up in Alaska,” lost his license when he was 18 years old, and never got it back. Defendant said they left Alaska because it was too cold. They came to Merced because Rose’s grandmother lived there. Defendant and Rose just had a child, who was one month old. Defendant complained that Rose’s grandmother had custody of the child.
Defendant said that when they arrived in Merced, he posted a notice on Craig’s List that he needed work as a handy man. “Benjamin” (Munsayac) responded to the post and offered jobs to defendant and Rose at an in-home “caregiving place” that he operated on Main Street. Defendant said they started working at the caregiving place, and Munsayac “ditched, he was gone.”
“And so we got there and it turned out that he was trying to f**kin kind of take advantage of us, he just needed somebody to take care of these people for him. [¶] And then he jerked us around on the money. I … I told him I was like – look if you don’t give me my money I’m gonna beat you up right now. [¶] And he’s like – no, no, no, here I’ll give you your money if you just get out.” (Italics added.)
Defendant said they quit and left the care facility, and moved into the Gateway Motel. Defendant said that Benjamin “was trying to f**k me on the money I told him I was gonna beat him up and that’s how we ended up at the Gateway Motel.” Defendant said he quit “because he wasn’t given [sic] me my money.” (Italics added.)
Defendant walks from Dos Palos
Defendant said he spent February 19, 2012, at the hospital because Rose was sick. He met a guy named “Mike” who was also there with a relative. Mike said he wanted to leave the hospital, go to a bar, and have some fun, and asked defendant to join him. Defendant agreed because he wanted to get away.
Defendant said he left the hospital with Mike around 3:00 a.m. on February 20, 2012. Mike drove him around and they talked. Around 9:00 a.m., Mike drove to a house in Dos Palos. Mike said he had to get something. He left and never returned.
Defendant said he waited for four hours at this house for Mike. He decided to walk back to the hospital in Merced. Defendant left Mike’s house in Dos Palos and walked through the fields. After three hours, he reached the junction of Highways 152 and 59, and he got stuck in a muddy ravine. His legs sunk into the mud and he lost his shoes. Defendant said this happened around 9:00 p.m., and he claimed his legs were stuck in the mud for two and a half hours.
Defendant meets the Catrina family
Defendant said he got out of the mud, kept walking, and met a girl in the middle of the field. He asked the girl for some money to call a cab, or to drive him back to the hospital.
Defendant said the girl took him to her family, who he described as “some churchy people.” They gave him dinner, helped him clean up, and agreed to drive him back to Merced. They gave him a pair of white sweat pants and “some little slippers.” Defendant said he had a backpack and his cell phone with him. He kept on his original hoodie and jacket. He rolled up his muddy clothes and took them with him.
Defendant returns to the hospital
Defendant said the “churchy people” drove him back to the hospital in Merced, and he got there around 11:00 p.m. Defendant said he went to his girlfriend’s room. He was carrying his original muddy clothes, and he was wearing the clothes that the “church” people gave him. His girlfriend asked where he had been, and defendant explained he was stuck in the mud and some “church ass people” helped him. Defendant and Rose argued.
Defendant said he had previously left a suitcase full of clothes in her hospital room. Defendant changed out of the clothes that had been given to him. He left his muddy clothes in Rose’s hospital room. He put on his own shoes, and he left the hospital because of his argument with Rose.
Defendant decides to walk to Lake Yosemite
Defendant said that around 11:45 p.m., he walked from the hospital to a nearby store, stole a bottle of Crown Royal, and he “pounded it,” drinking the entire bottle.
After he drank the bottle, he kept walking and saw a friend at the gas station. Defendant decided that he wanted to camp at Lake Yosemite to “get my head straight” because of Rose’s illness and their argument. He asked this friend for a ride. The friend drove him to an area where there were several stores, and defendant started walking again. Defendant said he was drunk and crying. Someone in the area told him that he could get to Lake Yosemite if he walked five miles on the highway and turned right.
A gunman purportedly forced defendant to exchange clothes
Defendant said he started to walk to the highway. A car suddenly was “flying through” the field and the street, and it crashed. Defendant said that since the “church person” had helped him that day, he decided to “pass it on” and “something in my heart told me I need to go check on these people” in the car crash.
Defendant said that he walked up to this vehicle, and three people jumped out. Two people ran away, and one person confronted him and put a gun in his face. The gunman hit defendant on the side of his head, knocked him to the ground, and kicked him. The gunman ordered defendant to remove his pants and shoes. The gunman threw “those camo pants and those … bloody-ass shoes at me.” The man was holding a bloody rag, and wiped the rag on defendant to put the blood on him.
Defendant said he followed the gunman’s orders, took off his clean clothes, and put on the gunman’s bloody camoflauge pants and bloody shoes. The gunman put on defendant’s clean pants and “cheap” Walmart shoes, and the gunman ran away. Defendant was also going to run away, but realized he was covered in blood. Defendant decided to take off the bloody shoes. The police arrived as he was kicking off the shoes. Defendant said he crawled out of the bushes and asked the police for help, but they treated him “like I’m the one that just … got out of the vehicle.”
Defendant complained that the police beat him at the scene and insisted that, “I had nothing to do with it,” but didn’t specify what “it” was.
Defendant learns about the witness
After defendant related this story, Detective Russell started asking specific questions based on the investigation. Defendant kept saying that he needed to return to the hospital because “my old lady’s in there dying.” Defendant said he just drank an entire pint of Crown Royal, and “it’s about to hit me.” Defendant complained that he had been treated very badly in Merced, “like I’m the worst piece of shit in the f**kin’ world.”
Detective Russell asked defendant about Victor and Amelia Gonzales. Defendant said he knew them from the motel but he had not been in their room the previous night. Defendant said he called them after his friend dropped him off on the street; he asked them to come to the hospital so he could talk to them because he was very upset and thought about walking into traffic and killing himself.
Detective Russell asked defendant about Catherine Ryan, who lived near his motel. Defendant said he did not know her, and stayed away from others at the motel. “It’s a high traffic area, I kept my head down, I’m a very smart individual.”
Detective Russell asked defendant to explain how he saw the car crash in the ditch, and how the gunman from that car demanded his pants and shoes. After defendant repeated his story, Russell asked if he saw “the guy standing on the canal bank that saw everything?” Russell told defendant that the police had talked to this person, and he saw the whole incident. Defendant said he did not see anyone except the three people who got out of the car after it crashed.
Defendant was asked how he got the scratches and marks on his face. Defendant said the gunman hit and kicked him. He also claimed the police slammed his head into the ground when he was arrested. Detective Russell asked defendant about his clothes. Defendant said his shirt, sweatshirt, and socks belonged to him; the gunman took his pants and boots and wiped blood on him with a rag. Defendant claimed he had time to take his wallet out of his own pants before he surrendered them to the gunman.
Defendant said after he put on the gunman’s bloody clothes, he ran across the street and tried to hide in the bushes because he was afraid the gunman was going to shoot him. Defendant said the gunman’s boots were too small and tight, and “that’s why I took ‘em off.” Defendant also said he took off the boots because he realized they were covered with blood.
Defendant invokes and then waives his rights
As the interview continued, defendant repeatedly asked Detective Russell to take him various places, such as the house in Dos Palos where the family helped him get out of the mud, so he could prove his alibi. Russell asked why he needed an alibi. Defendant said he was being treated as if he was a suspect.
At that point, defendant said he was going to invoke his right to remain silent unless he was allowed to talk to Rose. Detective Russell replied that he would not be allowed to talk to Rose since he was under arrest, and concluded the interview.
Defendant kept asking Detective Russell why he was being arrested, and offered to admit that he stole the bottle of Crown Royal and got drunk. Defendant was advised that he was being arrested for murder. Defendant demanded more information, and the detectives refused to talk with him because he had invoked his rights. Defendant said he would answer more questions if he could talk to Rose. He was again told that would not happen.
Defendant repeatedly said he wanted to answer more questions because he had alibis that would prove he did not kill anyone. Defendant said he did not invoke his rights and wanted to answer more questions. Detective Russell asked defendant whether he understood that he was withdrawing his invocation, and that he wanted to continue to answer questions. Defendant said yes, and the interview resumed.
Resumption of the interview
Detective Russell asked defendant to explain what happened just before he was arrested. Defendant said he stole the bottle of Crown Royal, but claimed he just drank “two little sips” because he hated alcohol. Defendant said he got a ride from his friend, who left him by some stores. Defendant said he was trying to get to the lake so he could just sit there and think.
Detective Russell asked defendant to “think really hard” about whether he left out any details about “any part of your day … or evening.” Defendant said no.
Detective Russell asked defendant about when he worked for “Ben” (Munsayac) at the care facility. Defendant said Munsayac hired him from his post on Craig’s List, defendant and Rose lived in the care facility and worked as caregivers, and they were there for about a month and a half. Munsayac lived in the house in front of the care facility.
Defendant said they left around January 18, 2012, because Munsayac “wasn’t paying me.” Defendant added: “I didn’t leave because we had any kind of problems or anything,” but he left because Rose “couldn’t stand the job anymore.” “We just got the f**k away from there … since we left we haven’t talked to him, we haven’t seen him, we haven’t f**kin nothing.” (Italics added.)
“[Q.] So when you told us earlier that you wanted to kick his ass or told him you were going to kick his ass that was just …
“[A.] I didn’t, I didn’t say that.
“[Q.] You didn’t, what’d you say?
“[A.] I said I want my money please or something could go wrong.
“[Q.] Oh, okay.
“[A.] I was talking, I was thinking about stealing one of his patients because he …[referring to a patient] didn’t want to be there anymore and [that patient] pays a thousand sixty a month to f**kin stay there. I just need a roommate you know what I mean.
“[Q.] So you wanted to find somewhere and have this guy.
“[A.] I just wanted to steal one of his patients.
“[Q.] I got ya.
“[A.] And it would tear his business apart.” (Italics added.)
Defendant verbally attacked Munsayac to Detective Russell, disparaged his character, and made racial and ethnic slurs against him. Defendant said Munsayac drove a little silver vehicle. He said Rose had driven it; he never drove it himself, but he had been a passenger in it, so his hands and fingerprints “have been all over that vehicle.”
Detective Russell asked defendant whether the vehicle that crashed the previous night looked similar to Munsayac’s car. Defendant said it was silver, but he did not really look at it. Defendant added more details about what happened when he saw the car crash, and the gunman forced him to switch pants and shoes:
“Alright I’ll say this, after I put his clothes on I went over there and f**king searched the vehicle to see … if there was anything in there that I could have to help me get to the f**kin thing. Really I went to go try to start the vehicle to get it out of there so I could get to the lake.”
Defendant said the keys were in the ignition but the vehicle would not start.
“Q. Okay so was it his car then?
“A. It, it might have been….” (Italics added.)
Defendant asked Detective Russell whether he was saying that “there was somebody there that watched it all and saw me,” referring to the eyewitness. Russell said yes.
Detective Russell returned to defendant’s relationship with Munsayac.
“Q. Well did he write checks to you … when he paid you?
“A. He wrote one.
“Q. Did he pay in cash.
“A. One f**king check to me, he paid me in cash, that’s what I was mad about … he, on the piece of paper he was supposed to pay me eighteen hundred dollars, he was giving me cash of five hundred dollars, five hundred dollars, and then the last check was, the check that he gave me was for three.
“Q. So you were mad about the fact that he wasn’t giving you.
“A. I wasn’t mad.
“Q. Oh you weren’t.
“A. I just, I just wanted money and get the f**k outta there … my old lady was sitting there yelling at me look, I’m tired of this place, I’m tired of this place, let’s just go, let’s just go. F**king fifteen days later my kid popped out.” (Italics added.)
Defendant said the patients hated the place, they did not like Munsayac, defendant and Rose thought they could provide better care, and “that’s why we were going to steal one of their patients.”
Defendant again invokes his rights
Detective Russell told defendant that Munsayac was dead, he had been murdered the previous night, and a witness saw defendant get out of Munsayac’s vehicle after it crashed. Russell told defendant his story did not “hold water.” Russell advised defendant that they were going to take swabs from him for DNA samples.
Defendant again invoked his right to remain silent and refused to answer any more questions until he had a lawyer. The detectives did not ask any more questions. They took the swab samples and photographs of defendant’s scratches.
As they took the swab samples, defendant spontaneously said: “All I wanted to do was see my old lady and I’d take you to all these places I just told you about where I was at … but no, nobody’s gonna f**king listen to Evan. I’m just a druggy piece of shit loser from Alaska right … that’s how you guys treat me, you treat me like I’m … a dumb young kid that f**kin doesn’t know nothing … you’re something else.” He added, “Can’t believe I’m being charged with murder … you guys all suck.”
After the interview, Detectives Russell and Deliman went to the hospital and contacted Rose in her room. They observed a suitcase with both men’s and women’s clothing in it.
DEFENDANT’S TELEPHONE CALLS
After the interview with the officers, defendant remained in custody and was returned to the jail. During the following hours and days, defendant called his mother, father, sister, and girlfriend from jail. The calls were recorded and introduced at trial. At the beginning of the calls, a recording advised the participants that the calls were subject to being recorded and monitored.
February 21, 2012: call to defendant’s mother
At 9:36 p.m. on February 21, 2012, a few hours after the interview with the detectives, defendant called his mother. She asked defendant what he had done. Defendant said he did not know, and he was scared. His mother told defendant that he took someone’s life. Defendant said he did not do it, and he needed help. He asked her to get the best lawyer because he had alibis for everything. He told his mother the story about watching the car crash, and the gunman forcing him to switch his clothes for the bloody pants and shoes.
“I guess the car and the blood and everything belongs to Benjamin, the guy that … I was working for as an in-home care-giver. I haven’t had any contact with that fool…the entire time I’ve been gone from there. I’ve never even talked to him.”
Defendant’s mother said that he told other people that he had killed someone, everyone at the motel saw him, and he stole the victim’s car. Defendant said he did not know what happened because he drank a bottle of Crown Royal. His mother said he should ask for a public defender, that it could be manslaughter and not murder, and he could go to jail. Defendant said that he would be fine as long as he got less than 10 years, but he would kill himself if he was sentenced for the rest of his life. Defendant blamed his mother for his problems because she called him a druggie and a loser.
February 22, 2012: call to defendant’s mother
At 1:40 p.m. on February 22, 2012, defendant called his mother and asked if she had talked to Rose. His mother said Rose was still in the hospital and completely freaked out about the situation. Defendant asked his mother to arrange a three-way call with Rose.
Defendant’s mother said he was in so much trouble and asked what happened. Defendant said he had been in a “f**ked-up place in my head for the last couple months.” Defendant complained that his mother always thought he just wanted money from her.
“[Defendant’s mother] You cannot blame this on me. I did not kill anybody.
“[Defendant] All right. Well, I did. Apparently. So … I’m tryin’—
“[Defendant’s mother] Evan.
“[Defendant] ...to tell you why and how.
“[Defendant’s mother] Tell me you went there just to talk to him.
“[Defendant] I did go there just to talk to him.
“[Defendant’s mother] You didn’t have any weapons, right?
“[Defendant] I didn’t have any weapons.
“[Defendant’s mother] You swear when you walked through that door you had no weapon.
“[Defendant’s mother] I didn’t have anything. I did not have a f**kin’ thing. There was me and one other dude that walked up there. I – Uh, my intention to go there was to steal his f**kin’ car and get to LA. I felt wronged because he owed me money, I felt. So I was gonna go take his wallet and take his car and go to LA and try to get my head straight. But instead this dude hit him and kept on hitting him, and I took the car and f**kin’ left.
“[Defendant’s mother You didn’t never hit him?
“[Defendant] I never hit him.
“[Defendant’s mother] Did he ever hit, hit you?
“[Defendant] No, he never even touched me.
“[Defendant’s mother] Did the – Did they fight, or did the guy just beat him to death, or what?
“[Defendant] The dude f**kin’ hit him in the head with a hammer and f**kin’, huh, Benjamin grabbed a hold of me and was like ‘Help me, help me,’ and I said ‘F**k you, dude, I’m out,’ and I grabbed hold of the keys that were right next to me and I bounced. I don’t know what happened after that.” (Italics added.)
Defendant said he did not know where the hammer came from, and did not know “the dude.” “All I know is that I was drunk, and I wanted those keys, and f**kin’ … I, I never hit the dude.” (Italics added.)
Defendant’s mother then called the hospital on her cell phone, reached Rose’s room, and put the phones together so defendant could talk to Rose. Defendant told Rose that he loved her, but complained that she should have listened to him that night instead of yelling at him, because he would not have been arrested. Defendant’s mother interrupted and told defendant to stop blaming Rose. Rose interjected, “You hit me in the face.” Defendant replied: “All I wanted was to f**kin’ sit here and have you listen to me. And instead I couldn’t. And so I had to go find somewhere, somewhere, something. And instead I got drunk as f**k and drunk as hell.”
February 24, 2012: call to defendant’s mother
At 12:19 p.m. on February 24, 2012, defendant again called his mother, and complained that she had sent him away to “the worst place in the world,” meaning Merced. His mother replied that defendant always said he wanted to go to California: “I thought you were gonna turn into this surfer boy and working at a burger joint down on the beach. I had no idea.”
Defendant said he had been trying to get to Los Angeles the whole time that he was in Merced, and everything was Rose’s fault. His mother said that was not true, and that it was the drugs, alcohol, and the rage inside of him. Defendant said he did not know who or what to blame, but “I know that it wasn’t me, because I wasn’t like this a year ago.”
Defendant said he was going to spend the rest of his life in jail and never get home.
“[Defendant’s mother] Evan, you’re gonna get out, OK? This wasn’t premeditated. There wasn’t nothing thought through here. It was just a night of rage that this happened over. An hour. An hour of rage. You know?
“[Defendant] Not even. Forty-five minutes.
“[Defendant’s mother] I know. You, you left the hospital, and within an hour’s time you were arrested for DUI. So there was – they cannot say there was anything thought through here. This was not intentional.
“[Defendant] Oh, God. I hope you’re right, Mom.” (Italics added.)
February 24, 2012: call to defendant’s girlfriend
At 2:28 p.m. on February 24, 2012, defendant called Rose and said that he loved her, they should have gone to Los Angeles, and he was sorry.
Rose said she was sorry that she kicked him out of her hospital room. Defendant said it was all his fault. Rose asked defendant where his backpack was. Defendant said he did not know. “Baby… I drank a whole fifth of Crown Royal in thirty seconds. I don’t know where the f**k my head was. Let alone any of my stuff. I’m f**kin’ so lost in all this shit.”
February 24, 2012: call to defendant’s father
At 6:18 p.m. on February 24, 2012, defendant called his father, who said that someone had called his mother and asked questions about a “dude” who was killed with a claw hammer. His father said:
“[Defendant’s father]—… Pretty much what I’m thinkin’ is happenin’ is the dude shorted my son and he probably went over there and knocked him the f**k out and walked away. I’ve seen you do it before. You know. And, uh … there was somebody else involved.
“[Defendant]—Good luck.” (Italics added.)
Defendant’s father said he did not raise defendant to be a murderer. His father believed defendant’s statements to the police would not be admissible because he was questioned without an attorney. Defendant said: “I didn’t say anything about anything. All I told ‘em was where I was for that day,” and “what had happened.” Defendant continued: “[O]nce it started gettin’ to where f**kin’ they told me that I was under … arrest for murder, I said, ‘No, f**k you; I want a lawyer right now.’ And they said, ‘OK, well, I can’t discuss your thing any further; we have a warrant to take your blood ….’ ”
Defendant’s father said he hoped defendant was not involved, and asked if someone else was involved. Defendant said yes. His father asked if it started the way that he thought it did.
“[Defendant’s father] What I was tellin’ you, about the scenario.
“[Defendant] No.
“[Defendant’s father] He didn’t short you money.
“[Defendant] No. My money was paid up.
“[Defendant’s father] Well, you know they’re, they’re talking about extenuating circumstances.
“[Defendant] I know.
“[Defendant’s father] Somethin’ about robbery and f**kin’ car-jackin- and …
“[Defendant] You’re talkin’ about the wrong shit over the phone, Dad.” (Italics added.)
Defendant and his father argued about other matters and the call ended.
February 24, 2012: call to defendant’s sister
At 3:26 p.m. on February 24, 2012, defendant called his sister, who asked if he understood why he was being charged with special circumstances.
Defendant replied, “Cuz [sic] I took the vehicle?” His sister explained: “[I]t’s because they think you pre-meditated taking the vehicle.” She urged him not to talk to anyone except his attorney and added: “I think they need to know that you only went over there to talk to this man and not to take anything to commit any kind of felonies. That will drop it down to a murder-two charge.” Defendant replied: “I think we should try to shoot for involuntary manslaughter.”
Defendant’s sister said that people were making him out to be “some sort of monster.” Defendant replied: “I was the monster everybody was talkin’ about. I was. And I don’t know where it came from or who … who f**kin’ made it happen. But, I’m startin’ to come out of it.”
DEFENSE EVIDENCE
Defendant did not testify. An investigator testified about the route from the R-Bar to where defendant drove Munsayac’s van into the canal. Defendant was just three blocks from the onramp to Highway 99, but turned on a road that ended in the ditch.
THE INSTRUCTIONS
As we will explain below, defendant contends on appeal that his trial counsel was prejudicially ineffective for failing to request instructions on after-formed intent and theft, because such instructions would have allowed the jury to find that he did not intend to steal anything when he entered Munsayac’s house, he did not commit a robbery or a burglary, and he was not guilty of first degree felony murder. Defendant argues that defense counsel’s failure to request pinpoint instructions on these issues prevented the jury from finding him guilty of only involuntary manslaughter, since he only committed a theft if he decided to take the victim’s car after the murder. We are thus compelled to review the charges and instructions that were given in this case.
Defendant was charged with the first degree murder of Munsayac (Pen. Code, § 187, subd. (a)), with the special circumstances that the murder was committed while defendant was engaged in the commission of a robbery (§ 190.2, subd. (a)(17)(A)); and in the commission of a burglary (§ 190.2, subd. (a)(17)(G)).
Defendant was not charged with robbery and/or burglary as separate offenses.
The jury was instructed on the charged offense of first degree murder with the special circumstances; and the lesser offenses of second degree murder and involuntary manslaughter.
As to first degree murder, the jury was instructed on two theories. The first theory was that the murder was premeditated, willful, and deliberate.
Felony murder
The prosecution’s other theory was first degree felony murder – that defendant committed robbery or burglary; defendant intended to commit robbery or burglary; and while committing robbery or burglary, he caused the death of another person.
“A person may be guilty of felony murder even if the killing was unintentional, accidental or negligent.
“To decide whether the defendant committed robbery or burglary, please refer to the separate instructions that I will give you on those crimes. You must apply those instructions when you decide whether the People have proved first-degree murder under a theory of felony murder.
“The defendant must have intended to commit the felonies of robbery or burglary before or at the time that he caused the death. It is not required that the person die immediately as long as the cause of death and the felonies are part of one continuous transaction.” (Italics added.)
The jury was instructed that defendant was guilty of first degree felony murder if the prosecution proved “the burglary or robbery and the act causing the death were part of one continuous transaction.” (Italics added.)
Special circumstances
The jury was instructed on the special circumstances of murder while engaged in the commission of robbery or burglary.
“To decide whether the defendant committed robbery or burglary, please refer to the separate instructions that I will give you on those crimes. You must apply those instructions when you decide whether the People have proved first-degree murder under a theory of felony murder.
“The defendant must have intended to commit the felonies of robbery or burglary before or at the time of the act causing the death.
“In addition, … the People must prove that the defendant intended to commit robbery or burglary independent of the killing. If you find that the defendant only intended to commit murder and the commission of robbery or burglary was merely part of or incidental to the commission of that murder, then the special circumstance has not been proved.” (Italics added.)
Robbery and burglary
While defendant was not separately charged with robbery and/or burglary, the jury was fully instructed on the elements of those offenses as the predicate crimes for felony murder. The instructions on felony murder and the special circumstances specifically referred the jury to these definitions of robbery and burglary.
As to robbery, the jury was instructed on the following elements:
“One, the defendant took property that was not his own; [¶] Two, the property was taken from another person’s possession and immediate presence; [¶] Three, the property was taken against that person’s will; [¶] Four, the defendant used force or fear to take the property or to prevent the person from resisting; and [¶] Five, whe[n] the defendant used force or fear to take the property, he intended to deprive the owner of it permanently.
“The defendant’s intent to take the property must have been formed before or during the time he used force or fear. If the defendant did not form this required intent until after using the force or fear, then he did not commit robbery.” (Italics added.)
The jury was similarly instructed on the elements of burglary:
“One, the defendant entered a building; and two, when he entered the building, he intended to commit theft.
“To decide whether the defendant intended to commit theft, please refer to the separate instruction for robbery.
“A burglary was committed if the defendant entered with the intent to commit theft. The defendant does not need to have actually committed theft as long as he entered with the intent to do so.” (Italics added.)
Aiding and abetting
The jury was also instructed that defendant could be guilty of first degree felony murder as an aider and abettor to the perpetrator of the murder; and that “[t]he defendant, or the perpetrator, must have intended to commit the felonies of robbery or burglary before or at the time that he caused the death.” (Italics added.)
Voluntary intoxication and involuntary manslaughter
The jury was instructed on the impact of voluntary intoxication on murder and involuntary manslaughter – that voluntary intoxication could cause a person to be unconscious of his actions; and the jury could only consider the defendant’s voluntary intoxication to decide whether he acted with an intent to kill, he acted with deliberation and premeditation, or he acted with the intent to inflict torture on the victim.
Also as to voluntary intoxication, the jury could only consider evidence of defendant’s voluntary intoxication in a limited way, to decide whether he acted with “the intent to do the act required” for robbery and/or burglary. As to aiding and abetting, if the jury determined defendant was intoxicated, it could consider that evidence to decide whether defendant knew someone intended to commit robbery or burglary, and he intended to aid and abet that someone to commit robbery or burglary.
Finally, the jury was instructed about voluntary intoxication and the lesser offense of involuntary manslaughter:
“When a person voluntarily causes his intoxication to the point of unconsciousness, that person assumes the risk that while unconscious he will commit acts inherently dangerous to human life. If someone dies as a result of the actions of a person who was unconscious due to voluntary intoxication, then the killing is involuntary manslaughter.
“Involuntary manslaughter has been proven if you find beyond a reasonable doubt that: [¶] One, the defendant killed without legal justification or excuse; [¶] Two, the defendant did not act with the intent to kill; [¶] Three, the defendant did not act with a conscious disregard for human life; and [¶] Four, as a result [of] voluntary intoxication, the defendant was not conscious of his actions or the nature of those actions.”
CLOSING ARGUMENTS
The prosecution
The prosecutor argued defendant went to Munsayac’s house with the intent to steal his property, Munsayac fought back, and defendant killed him. “And this robbery gone wrong turned into a full blown murder.” The prosecutor explained that defendant was guilty of first degree felony murder based on burglary and robbery because he entered the victim’s house with the intent to commit the crimes, and cited defendant’s statements to his family on the tape-recorded telephone calls from jail, when he said he went to Munsayac’s house to steal his wallet and car.
“Defendant’s statement to his mother, the defendant entered the residence, we know that because [the victim’s] blood is all over … the defendant. And when he entered the room he intended to commit a theft therein. He told his mom exactly why he went there. He was going there to commit a robbery. He was going there to commit a theft. He was going there to take [the victim’s] car, take his wallet and get out of town. So I submit to you there are the two elements for burglary. Burglary, which is one of the underlying felonies for felony murder, is true.”
The prosecutor argued defendant was also guilty based on felony murder/robbery because he took the victim’s car keys against the victim’s will, as shown by the evidence of the violent struggle and the victim’s attempt to fight back. The prosecutor again cited defendant’s statements during one of the jail telephone calls, when he said that “I grabbed hold of the keys that were right next to me and I bounced.”
As “an academic exercise,” the prosecutor addressed defendant’s statements to his mother that another man killed the victim, and argued he was still guilty of first degree murder as an aider and abettor, and discussed the elements set forth in the instructions.
Defense counsel
Defendant’s trial defense was based on voluntary intoxication. His attorney acknowledged that Munsayac suffered “an unnecessary awful death,” and defendant was “partially responsible for it.” Counsel argued that his consumption of the bottle of Crown Royal, crashing the car into the ditch, and his failed breath tests showed that he was intoxicated that night. Counsel argued his intoxication led to unconsciousness that prevented him from forming the intent required to commit first degree premeditated murder.
Counsel asserted that the jury could not trust the veracity of defendant’s incriminating statements to his family during the telephone calls from jail.
“For instance, [the prosecutor] put up on the board in order to help prove the burglary statement made by [defendant], I just went over there to get the keys and the car and head to L.A. and let my head clear. [¶] This is not a statement of planning. If you make that statement, if somebody had seen [defendant] at the hospital, if Mr. Catrina had heard [defendant] saying something to that affect, that would be planning in advance of what you do. What you say after the fact is someone trying to, and we would all do this I think, either minimize their own involvement or come up with an explanation. And sometimes when you’re not aware of all the aspects of what you’re saying, of what all the implications of what you’re saying, you may get yourself into a worse situation.
“In other words, it doesn’t have to be true that he went over there to get a car and go to L.A. He wasn’t capable of getting a car across Merced at that point. He couldn’t find the freeway to go to L.A., but it sounds like a better excuse than to come up with something else.”
Defense counsel further argued someone else murdered the victim, based on the DNA analysis that showed an unidentified person’s DNA under the victim’s fingernail, and posited that defendant panicked and ran the car into the ditch.
Counsel concluded defendant was not guilty of first degree murder and the special circumstances were not true because defendant did not enter the victim’s house with the intent to rob him.
“But there is no evidence that he entered with the intent to steal anything except for what statements he made after the fact in trying to minimize his involvement.
“When you look at this you’re going to have to go through and see and listen to those phone conversations, listen to his interview and figure out what his level of intoxication, his voluntary intoxication has on the various elements in this case. When you do I think you’re going to find he did not enter, there is reasonable doubt as to whether or not he entered into this house with intent to commit a theft. There is reasonable doubt as to whether he decided to take the vehicle until after whatever violence had been perpetrated. In which case neither the burglary nor the robbery has been proved.
“And we don’t know his role in the death of [the victim] because we know there was another party present and we don’t know how that worked out, that’s reasonable doubt with regard to [defendant].” (Italics added.)
Rebuttal
In rebuttal, the prosecutor asserted it was “utterly ridiculous” that defendant was purportedly unconscious and only guilty of involuntary manslaughter when he hammered and strangled the victim. The prosecutor explained that the presence of an unknown person’s DNA under the victim’s fingernail did not mean that someone else killed him, but that the victim had contact with someone else that day. But defendant had the victim’s blood on his clothing, and his DNA was under the victim’s fingernail.
As for defendant’s postarrest statements, the prosecutor asserted defendant was “a pretty accomplished liar” during his interview with the detectives. The prosecutor disputed defense counsel’s claim that defendant was making up facts to minimize his role when he talked to his mother from jail, and said he went to the victim’s house to steal his car: “Someone is going to make up a fact that, hey, I went over here and stole his car. How is that going to help anybody? Why would anybody ever do something like that? [¶] He’s telling his mother what he did….”
The prosecutor also disputed defense counsel’s claim that defendant’s voluntary intoxication left him unable to form the requisite intent. Defendant made inconsistent statements about how much he actually drank. In addition, defendant was able to drive back to the motel to find Mr. and Mrs. Gonzales, talk to them, and ask Mr. Gonzales to buy drugs for him. He was sober enough to tell the arresting officers that someone else was driving the car that crashed in the ditch, so he had already though about having to distance himself from driving the victim’s car.
Verdict and sentence
On August 20, 2013, defendant’s jury trial began. On September 5, 2013, the jury began deliberations.
On September 10, 2013, defendant was convicted of first degree murder, with the special circumstances found true that the murder was committed during a robbery and a burglary. The jury found the torture special circumstance was not true.
On October 8, 2013, defendant was sentenced to life in prison without the possibility of parole (LWOP).
ISSUES
On appeal, defendant raises two separate but related claims of ineffective assistance based on counsel’s failure to request certain instructions.
First, defendant contends his trial counsel was prejudicially ineffective for failing to request a pinpoint instruction on “after-formed intent” for robbery and burglary, based on the defense theory that counsel outlined in closing argument – that there was a reasonable doubt whether defendant went to Munsayac’s house with the intent to commit either a robbery or a burglary. Defendant asserts such an instruction would have been supported by evidence that he went to the victim’s house in an inebriated state with no clear idea of what he intended to do, he only decided to take the victim’s vehicle after the homicide, and the theft of the car was an “afterthought” so that he was not guilty of first degree felony murder and the robbery/burglary special circumstances were not true.
As a corollary to defense counsel’s failure to request an “after-formed intent” instruction, defendant argues counsel was also ineffective for failing to request instructions that defined the offense of simple theft as a lesser included offense of robbery – that if the intent to steal arose after the victim was assaulted, the element of force or fear was absent and defendant only committed a theft. Defendant argues that counsel’s failure to ask for a theft instruction was prejudicial because it would have allowed the jury to find he lacked the intent to commit a robbery or burglary when he entered the house, so that he would not have been guilty of first degree felony murder and the special circumstances would not have been found true.
Defendant concludes that defense counsel was prejudicially ineffective for failing to request both the after-formed intent and theft instructions because they were supported by substantial evidence and would have provided “specific legal support for counsel’s argument that [defendant] did not form the intent to steal until after the homicide.” “And the point was a critical one. Both special circumstances hinged on proof that [defendant] went to the victim’s residence for the purpose of stealing from him. If the jury found that [defendant] was motivated by rage or revenge and decided to steal the victim’s vehicle as an afterthought, neither the robbery nor the burglary special circumstance could be found true, since the only theory advanced for the burglary special circumstance was theft-based.”
DISCUSSION
As we will explain, defense counsel was not prejudicially ineffective in failing to request instructions on after-formed intent and theft because the entirety of the record shows the jury was instructed on these theories based on other, properly given instructions that directed the jury to consider these issues, and the jury rejected defense counsel’s claims, and it found that defendant committed both burglary and robbery as the predicate offenses for first degree felony murder.
A. First Degree Felony Murder and Special Circumstances
“Under the felony-murder rule, a murder ‘committed in the perpetration of, or attempt to perpetrate’ one of several enumerated felonies, including robbery … and burglary is first degree murder. [Citation.]” (People v. Wallace (2008) 44 Cal.4th 1032, 1078 (Wallace).)
“The robbery-murder … and burglary-murder special circumstances apply to a murder ‘committed while the defendant was engaged in ... the commission of, [or] attempted commission of’ robbery … and burglary, respectively. [Citation.] ‘[T]o prove a felony-murder special-circumstance allegation, the prosecution must show that the defendant had an independent purpose for the commission of the felony, that is, the commission of the felony was not merely incidental to an intended murder.’ [Citation.]” (Wallace, supra, 44 Cal.4th at p. 1078.)
B. Robbery and Burglary
Defendant was not charged with the separate offenses of robbery and burglary, but they were the predicate offenses for first degree felony murder and the basis for the special circumstances.
“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.’ [Citation.] The intent to steal must be formed either before or during the commission of the act of force. [Citations.] Burglary requires an entry into a specified structure with the intent to commit theft or any felony. [Citations.]” (Wallace, supra, 44 Cal.4th at p. 1077.)
C. After-Formed Intent Instruction
Defendant’s first claim of ineffective assistance is based on counsel’s failure to request an instruction on after-formed intent, similar to one given in People v. Turner (1990) 50 Cal.3d 668, that stated:
“ ‘An act of force accompanied by a theft does not constitute robbery unless the act of force was motivated by an intent to steal. If the intent to steal does not arise until after force has been used against the victim, no robbery has taken place. [¶] If an individual kills for reasons unrelated to theft, for example, because of anger, fear, or revenge, and then decides to take advantage of the situation by stealing some object from the person of the decedent, the taking will constitute at most a theft and not a robbery.’ ” (Id. at p. 691, italics added in original.)
Defendant argues an after-formed intent instruction was crucial to support his defense theory, as set forth in closing argument, that he was angry at the victim because of employment issues, he did not enter the victim’s house with the intent to steal the car, he did not commit either a robbery or a burglary, he stole the victim’s car as an afterthought after the victim was murdered, and he was not guilty of first degree felony murder and the special circumstances were not true.
An instruction on “after-acquired intent … inform[s] the jury that if defendant first formed the intent to steal after killing or applying force against the victim, he could not be found guilty of robbery.” (People v. Valdez (2004) 32 Cal.4th 73, 111.) An instruction on after-formed intent is a pinpoint instruction. (Ibid.; People v. Webster (1991) 54 Cal.3d 411, 443.)
The trial court does not have a sua sponte duty to give a pinpoint instruction. (People v. Webster, supra, 54 Cal.3d at p. 443.) On request, a defendant is entitled to pinpoint instructions that relate “ ‘particular facts to a legal issue in the case or “pinpoint” the crux of a defendant’s case ….’ ” (People v. Rogers (2006) 39 Cal.4th 826, 878; People v. Gutierrez (2002) 28 Cal.4th 1083, 1142.)
However, the court “need not give a pinpoint instruction if it is argumentative [citation], merely duplicates other instructions [citation], or is not supported by substantial evidence [citation].” (People v. Bolden (2002) 29 Cal.4th 515, 558; People v. Coffman and Marlow (2004) 34 Cal.4th 1, 99.) Therefore, even upon request, “where standard instructions fully and adequately advise the jury upon a particular issue, a pinpoint instruction on that point is properly refused. [Citation.]” (People v. Canizalez (2011) 197 Cal.App.4th 832, 857.)
We note that the trial court herein did not have a sua sponte duty to instruct on “after-formed intent” as to the underlying predicate offenses of robbery and burglary for first degree felony murder and the special circumstances. Defendant acknowledges this point, and instead argues that defense counsel was prejudicially ineffective for failing to request the pinpoint instruction, and the court would have been obliged to give it because it was supported by the evidence.
“In order to demonstrate ineffective assistance, a defendant must first show counsel’s performance was deficient because the representation fell below an objective standard of reasonableness under prevailing professional norms. [Citation.] Second, he must show prejudice flowing from counsel’s performance or lack thereof. Prejudice is shown when there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. [Citation.]” (People v. Williams (1997) 16 Cal.4th 153, 214–215.)
Assuming, without deciding, that an after-formed intent instruction would have been supported by the evidence, defense counsel’s failure to request such an instruction is not prejudicial. Defendant asserts that there is “no doubt the trial court would have given the pinpoint instructions had counsel requested them.” To the contrary, the court would have properly refused the instruction, even if legally correct, because it would have been duplicative of the several standard instructions given in this case. (People v. Earp (1999) 20 Cal.4th 826, 901, 902–903.)
The correctness of jury instructions is determined from the entire charge of the court, and not from a consideration of part of an instruction or from a particular instruction. (People v. Wilson (1992) 3 Cal.4th 926, 943.) The jury herein was repeatedly instructed on the concept of after-formed intent. As to felony murder, the jury was instructed that he was guilty if the prosecution proved the burglary or robbery and the act causing the death “were part of one continuous transaction.” CALCRIM No. 540A, which defined felony murder, stated that the defendant “must have intended to commit the felonies of robbery or burglary before or at the time that he caused the death.” (Italics added.)
The instructions on the robbery and burglary special circumstances also stated this requirement: “The defendant must have intended to commit the felonies of robbery or burglary before or at the time of the act causing the death,” and the special circumstances were not true if the jury found the “commission of the robbery or burglary was merely part of or incident to the commission of that murder.”
The felony-murder and special circumstance instructions referred the jury to separate instructions that defined the predicate offenses of robbery and burglary. These instructions stated that as to robbery, the defendant’s intent to take property “must have been formed before or during the time he used force or fear,” and if he did not form “this required intent until after using the force or fear, then he did not commit robbery.” The jury was similarly instructed that defendant only committed a burglary if he entered the building with intent to commit theft.
Finally, even if the jury considered defendant’s claim that he went into the victim’s house with an unknown third person, who was the actual murderer, and he decided to steal the victim’s car after the murder, the jury was still correctly instructed that defendant could be guilty of first degree felony murder as an aider and abettor if the defendant or the perpetrator “intended to commit the felonies of robbery or burglary before or at the time that he caused the death.”
Based on the entirety of the instructions, if defense counsel had requested a pinpoint instruction on after-formed intent for robbery and/or burglary, the court could have properly rejected it as duplicative of the other instructions given in this case. Counsel’s failure to request such an instruction was not prejudicial since the jury was repeatedly instructed on the legal significance of defense counsel’s theory that defendant did not intend to steal anything when he entered the victim’s house.
D. Theft Instructions
In a related argument, defendant asserts counsel was also ineffective for failing to request instructions on theft as a lesser included offense of robbery, to support his defense argument that he was not guilty of first degree felony murder because he did not intend to rob the victim when he entered the house, he did not commit a burglary, and his purported decision to take the victim’s car after the victim was murdered only amounted to a theft.
“The trial court must instruct on general legal principles closely related to the case. This duty extends to necessarily included offenses when the evidence raises a question as to whether all the elements of the charged offense are present. [Citation.] It is settled that the crime of theft, whether divided by degree into grand theft or petty theft, is a lesser included offense of robbery. [Citation.] Robbery includes the added element of force or fear. [Citation.]” (People v. DePriest (2007) 42 Cal.4th 1, 50.) “If intent to steal arose after the victim was assaulted, the robbery element of stealing by force or fear is absent. [Citations.]” (People v. Webster, supra, 54 Cal.3d at p. 443.)
The trial court did not have a sua sponte duty to give theft instructions in this case because defendant was alleged to have committed robbery only as a predicate to first degree felony murder and the special circumstance. He was not charged with robbery as a separate offense. “ ‘Although a trial court on its own initiative must instruct the jury on lesser included offenses of charged offenses, this duty does not extend to uncharged offenses relevant only as predicate offenses under the felony-murder doctrine.’ [Citation.]” (People v. Cash (2002) 28 Cal.4th 703, 736–737, italics in original.) “[W]hen robbery is not a charged offense but merely forms the basis for a felony-murder charge and a special circumstance allegation, a trial court does not have a sua sponte duty to instruct the jury on theft. [Citations.]” (People v. Valdez, supra, 32 Cal.4th at pp. 110–111.)
As with after-formed intent, defendant instead asserts defense counsel was prejudicially ineffective for failing to request a theft instruction, so that the jury would have realized that if he entered the victim’s house without the intent to steal, he only committed a theft if he decided to take the victim’s car after the murder, he did not commit a robbery, and he was not guilty of felony murder.
Under these circumstances, however, a defense request for a theft instruction would have been for a pinpoint instruction. As explained above, the court is not obliged to give a requested pinpoint instruction, even if supported by the evidence, if it is merely duplicative of other instructions. (People v. Bolden, supra, 29 Cal.4th at p. 558; People v. Coffman and Marlow, supra, 34 Cal.4th at p. 99.) The jury herein was repeatedly instructed that in order to be guilty of first degree felony murder, and for the special circumstances to be true, defendant’s intent to take the victim’s property must have been formed before or during the time he used force or fear.
The jury was instructed that a burglary was committed if defendant “entered with the intent to commit theft,” defendant had to intend to commit theft when he entered the building, and that the jury should refer to the separate instruction for robbery “[t]o decide whether the defendant intended to commit theft.”
The robbery instruction expressly defined the elements of the offense:
“One, the defendant took property that was not his own; [¶] Two, the property was taken from another person’s possession and immediate presence; [¶] Three, the property was taken against that person’s will; [¶] Four, the defendant used force or fear to take the property or to prevent the person from resisting; and [¶] Five, whe[n] the defendant used force or fear to take the property, he intended to deprive the owner of it permanently.
“The defendant’s intent to take the property must have been formed before or during the time he used force or fear. If the defendant did not form this required intent until after using the force or fear, then he did not commit robbery.” (Italics added.)
These instructions clearly informed the jury on difference between theft and robbery, and that defendant was not guilty of robbery and burglary, and felony murder based on those offenses, if he did not enter the victim’s house with the intent to commit theft before the murder. If the jury decided that he did not commit a robbery and lacked the requisite intent before he entered the victim’s house, the instructions clearly stated that he could not be guilty of first degree felony murder and the special circumstances were not true.
Thus, defense counsel’s failure to request a theft instruction was not prejudicial because the court would have rejected it as duplicative of the numerous pattern instructions that stated defendant’s theory of the case. Moreover, the jury’s true findings on the robbery and burglary special circumstances, based on the instructions that were given, demonstrate that the jury considered the question of whether defendant entered the victim’s house with the intent to steal before or at the time of the victim’s death.
DISPOSITION
The judgment is affirmed.



POOCHIGIAN, J.
WE CONCUR:


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LEVY, Acting P.J.


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KANE, J.