APPEAL from a judgment of the Superior Court of Los Angeles County,(Los Angeles County Super. Ct. No. BA285265) Michael E. Pastor, Judge. Modified and affirmed.
The opinion of the court was delivered by: Epstein, P. J.
CERTIFIED FOR PARTIAL PUBLICATION*
*Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this opinion is certified for publication with the exception of parts I, II, IV, V, and VI.
Brandon Favor appeals from his conviction on one count of first degree murder, two counts of attempted murder, and two counts of second degree robbery. He claims there was insufficient evidence to support the true finding on the robbery-murder special circumstance or the findings that the attempted murders were willful, deliberate and premeditated. He also claims the court erred by instructing the jury on the natural and probable consequences doctrine as to the nontarget offense of attempted murder, but not as to the nontarget offense of attempted willful, deliberate and premeditated murder. Appellant challenges the California death penalty law, claiming the proliferation of special circumstances has undermined the narrowing function required of California law, and claims his life without parole sentence constitutes cruel and/or unusual punishment. Appellant and respondent ask that an error in the abstract of judgment be corrected, and we so order.
In the published portion of this opinion, we conclude the instructions were sufficient with respect to the natural and probable consequences doctrine as applied to attempted willful, deliberated and premeditated murder. In the nonpublished portion of this opinion, we find no error other than that contained in the abstract of judgment, and we affirm the judgment as modified.
FACTUAL AND PROCEDURAL SUMMARY
Jose Huerta was the manager of A & J Liquor Store on Hill Street in Los Angeles. In addition to selling alcohol and food, the store had a Lotto machine and did a large check cashing business, handling as much as $40,000 a day. On November 8, 2004, Huerta was behind the counter talking with Paul Lee, the store owner, when two or three individuals entered the store and locked the door. Huerta had his back turned when they entered. The first thing he heard was a gunshot being fired near his head, burning the side of his head. He fell to the floor and stayed there. After the shot near his head, he heard a shot that sounded like it came from inside the warehouse at the rear of the store, and two more near him. He also heard one of the cash registers being opened.
One of the intruders said, "Get the telephone, get the cameras, and I'll find you. You already know where." A second person asked, "Where are the cameras?" Huerta lifted his head and answered that the cameras were in back. One of the men demanded his money. Huerta, who had just been paid, removed $525 from his pocket and handed it to the man. Huerta then walked to the office in the back of the store, where the security videos were located. The man followed him, looked around inside the room, then exited the store.
After the intruders left the store, Huerta locked the door. He found store employee Pablo Castaneda on the ground in front of the warehouse. He had been shot once in the head and was dead. Store owner Paul Lee was lying on the ground near the check cashing register. He had been shot twice and suffered grave injury. According to Lee's son, between $50,000 and $70,000 was missing from the check cashing portion of the business, and approximately $1,000 was missing from the grocery portion of the business. A mobile phone and some prepaid phone calling cards also were taken.
A flier offering a $75,000 reward was distributed in connection with the crime. The flier contained still photographs from the store security video. Appellant was depicted as one of the three suspects.
Appellant was arrested in June 2005. After waiving his rights, he was interviewed by Los Angeles Police Department detectives. He was shown a videotape of the robbery, and initially denied any part in the robbery. He later admitted that he went to the liquor store with the two other men in the video.
In his recorded interview, which was played at trial, appellant stated that on the day of the robbery, he went to a county building on Adams and Grand to take care of some paperwork. With him was an ex-gang member known as "Trouble" or "Troub." The two men then walked over to A & J Liquor, went inside, and saw that the store was not very secure. Trouble said he would tell his partners about it. He and appellant got on a bus to Crenshaw and King, where they met up with Trouble's partners. Appellant knew one of the men from the streets. He was pretty sure he had gone to high school with the other man, who was the shooter. He described the shooter as a "shady character" who was not to be trusted.
Trouble told these two men about the liquor store. Appellant and the two men took a bus back to the store, and appellant was told to go in to see how many people were in the store. Appellant went in, saw there was nobody inside, cashed a check, and walked out. The two men then entered the store and closed the door. Appellant heard gunshots, and knocked on the door to find out what happened. The shooter, who still had a gun in his hand, opened the door and told appellant to "get the money." Appellant opened the cash register and "took everything up." He also grabbed a phone and gave it to the shooter. As soon as appellant walked into the store, he saw someone lying on the ground who had just been shot. He also heard another shot fired in the back of the store. The shooter took the video from the rear of the store.
After the robbery, appellant and the two men met up to watch the video. They discarded it because it did not show anything. Appellant said he probably went in and out of the liquor store five times, twice by himself while the others were outside.
Appellant was charged by information with one count of first degree murder, two counts of attempted murder, and two counts of second degree robbery. It was alleged that the murder was committed while appellant was engaged in the commission of a robbery, that the attempted murders were committed willfully, deliberately and with premeditation, and that as to each count, a principal was armed with a firearm. He was ...