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The People v. Robert Anthony Thomas

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE


December 8, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
ROBERT ANTHONY THOMAS, DEFENDANT AND APPELLANT.

The opinion of the court was delivered by: Pollak, Acting P.J.

P. v. Thomas CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Solano County

Defendant Robert Anthony Thomas appeals his conviction for murder, attempted murder, and two counts of robbery stemming from his participation in a scheme to steal marijuana from sellers of the drug who were shot in the course of the transaction.

Daniel Reyes and Tomas Gonzalez agreed to sell defendant and two other men, Richard Miller and Michael Mackey, approximately 12 ounces of marijuana for $3,000. Defendant, who knew Reyes and Gonzalez from previous transactions, arranged this transaction. Defendant did not plan to be present, but knew that Mackey was armed and planned to use the gun to obtain the drug without paying for it. When Miller, Mackey, Reyes, and Gonzalez were in Reyes's car, Mackey pulled out the gun but held it in such a way that Reyes and Gonzalez could not see it. Miller then grabbed the bag containing the marijuana and ran while Mackey shot the other two men, killing Reyes and partially paralyzing Gonzalez. Defendant appeals his jury conviction, challenging many of the trial court's discretionary rulings, certain jury instructions, and the sufficiency of the evidence to support the robbery convictions. We find no error and shall affirm.

BACKGROUND

Gonzalez testified that he knew Reyes and was present when Reyes agreed to sell defendant 12 ounces of marijuana for $3,000. On October 17, 2006, Gonzalez spoke with defendant on the phone and accompanied Reyes to the location in Vallejo specified by defendant where they met defendant and two other people. Detective Matthew Mustard interviewed Gonzalez on October 27 and when Gonzalez was unable to recall matters during his trial testimony, a recording of the interview was played for the jury. Gonzalez told Mustard that he and Reyes picked up defendant, Mackey and Miller for the drug sale. Reyes was driving and Gonzalez sat in the passenger seat with defendant behind Reyes, Miller in the middle, and Mackey behind Gonzalez. They drove to someone's house where defendant got out of the car. When Gonzalez and Reyes asked for the money, Mackey handed Gonzalez $10 in one dollar bills. Gonzalez threw the money back at him and said, "You guys are kidding me." Mackey phoned defendant purportedly to ask for the rest of the money, and then shot Reyes and Gonzalez.

Reyes' girlfriend, Angela Gutierrez, testified that a day or two before the 17th, she heard Reyes discussing the sale of the marijuana with Gonzalez on the phone. She heard them say that they would travel to Vallejo and sell the drugs for approximately $4,000. Reyes told Gonzalez that he would give him a couple hundred dollars to accompany him, and Gonzalez agreed.

Lakeisha Buffin testified that on October 17, she was dating Mackey and that defendant was dating Jessica Clough. Buffin and Mackey were staying at the Vallejo Inn. Defendant and Clough came to the motel and brought Miller with them. Buffin did not hear the others discuss a robbery or obtaining marijuana. At some point the three men left, with defendant driving. When the men later returned, Buffin did not recall if they had marijuana or if any of the men said anything. When asked if she had told the police detective who interviewed her that Miller and Thomas were yelling, "Mike shot them," Buffin testified that she did not remember. A recording of the detective's interview with Buffin was played for the jury and is discussed in greater detail infra.

Clough testified that on October 17, while she and defendant were with Buffin and Mackey at the Vallejo Inn, she heard defendant, Mackey, and Miller discuss committing a robbery. Two days before the 17th, Clough overheard defendant telling someone on the telephone that he planned to commit a robbery. In the motel room on the day of the robbery, defendant told the others that he would drop them off at the Wind Rush apartments. Miller said that he was "going to take a car." Mackey said that he was going to take the marijuana. Clough saw Miller give Mackey a gun. The men left and after approximately two hours returned with the marijuana. Miller said, "Mike shot them." The prosecutor asked Clough if Miller "talk[ed] about who was in the car with the two people they took [the marijuana] from?" She responded, "I don't remember exactly where they were. It was Mike and Richard in the car, and Richard got out of the car, and he grabbed the bag and ran, and Mike was in the car, then he heard gunshots."

Clough testified that after the men returned with the marijuana, she and Buffin went to a smoke shop where Buffin purchased small baggies, then returned to the motel. Miller took the duffel bag containing the marijuana and gun and defendant and Clough drove Miller to Richmond, where Miller took the duffel bag. Defendant sold his share of the marijuana.

Detective Meredith interviewed defendant and a tape of the interview was played for the jury. Defendant told Meredith that he asked to leave the group before the drug deal occurred, "because I'm not tryin' to get caught up with nothin' like that. I'm on parole, so I don't supposed to be around nothin' like that." Defendant told Meredith that he received a call from Gonzalez, who had the marijuana and was looking for a buyer. Defendant contacted Miller and Mackey and told them, " 'Man, my partner comin' out here with 12 ounces . . . If y'all want, y'all . . . can rob 'em, but I'm not gonna be there. . . .' That's the exact words I said. I said, 'I'm not gonna be there if y'all rob 'em,' and I told Mike the same thing, 'If y'all want, y'all can rob 'em, but I'm not gonna be there. I can you know, let y'all meet up or something.' " Defendant continued, "When they came out here, I gave 'em directions to the Wind Rush apartments. When they came to the Wind Rush apartments, they was about to rob 'em right there." The location of the transaction changed because several police cars were near the apartment complex where the men met.

Defendant described sitting in front of the apartment complex with Miller and Mackey and discussing how they planned to rob the victims. Defendant told Meredith, "They was talkin' about like, man, we're gonna . . . all three of us gonna walk up to the car and then once we all walk up to the car, . . . Richard and Mike was gonna get in the back seat while I'm standing on the outside of the car and then . . . Mike said, 'Once I pull out the pistol, you just run.' And . . . once Mike pulled out the pistol and I just run like I didn't . . . know they was gonna get robbed or somethin' . . . ." Defendant added that during this discussion he said, " 'Man, if you do it, if you do it up in here man, when you pull out the pistol, I'm just gonna break. I'm gonna run.' "

Defendant told Meredith that at an earlier time defendant had been sitting with Miller and Mackey when Mackey said, " 'Man, I'm gonna shoot 'em. I'm gonna shoot 'em.' " Defendant said, " 'Man, you don't have to shoot nobody but if you do shoot somebody, then you got to look at it a different way if you do shoot 'em. . . . if you do shoot 'em man, you gonna have to you know what I'm saying, kill 'em or something because if you don't, then it's gonna be over for you.' " Mackey promised that he would not shoot anyone but that " 'we're just gonna rob 'em,' " but also said, " 'No, I'm gonna shoot 'em man, if they try to make a wrong move or somethin' or don't want to give up nothin' I'm just gonna shoot.' "

Defendant told Meredith that after defendant picked them up, both Miller and Mackey narrated the events of the robbery. They told him that when all four men were in the car, Reyes and Gonzalez directed Miller to get the duffel bag with the marijuana from the back of the car, which Miller did. Defendant said that Mackey offered $30 or $35 to Gonzales, which Gonzalez rejected. Mackey was holding the gun so that Miller could see it but the victims could not. Mackey grabbed the rejected money and Miller opened the car door and grabbed the marijuana. Defendant told Meredith that Mackey "tried to shoot my partner, Tomas, without even saying, 'Give me everything' or nothin' like that, he just start to shoot him." Miller told defendant that once Mackey took the safety off the gun, Miller "grabbed the bag and ran, the only thing he heard was like three . . . shots."

After leaving Mackey and Miller, defendant met Clough, then received a call from Miller who told him, " 'I need you to come and pick me and Mike up, man. Man, Mike they shot these dudes. . . . Mike robbed 'em.' " He and Clough met Mackey and Miller at the motel. Mackey and Miller were "breathing all hard, takin' off their shirts and stuff, [and] had a . . . duffel bag . . . and threw it on the bed and . . . [Mackey] took a . . . gun out of a pocket and . . . was wiping it down." Defendant told Meredith that after the robbery he told Mackey, "You didn't' have to shoot 'em at all man." Mackey replied, "Man, I know."

Miller was called to testify but, outside the presence of the jury, invoked his Fifth Amendment right not to do so. At defendant's request, Miller's statement to the police was played to the jury. Miller initially denied having been present when the murder and robbery occurred. He later admitted that he was in the car with Mackey. Miller stated that Mackey "told me to grab the weed in the back seat. I grabbed it, put it on the side of me and [Mackey] and then [Mackey] had the pistol in his hand and . . . he had $30 in his hand. He gave it to 'em and they counted it and then they said, 'That's not all the money,' and he was right there like this tryin' to shoot 'em but the gun is on safety. So when I heard that cock and he took it off safety I'm like, 'All right, now I know what he's tryin' to do,' so I asked dude for a cigarette and he was like, 'All right, here.' He gave me a cigarette, I tried to light it. He said, 'No, don't light it in the car, this is my mom's car, you gotta step outside.' So . . . as soon as I start to step outside, I lit the cigarette and then I mean I just grabbed the bag and ran. . . . and the next thing you know, I hear 'pop, pop, pop.' Then [Mackey] come out and run and . . . we just runnin' through the park and then he tossed the gun . . . ." Miller told Mackey, "that wasn't called for. You did not have to shoot. I hope none of them are dead." Miller told the detective that "the whole plan was that he wasn't--I don't know, he wanted to shoot the dudes. I don't know, they was two white boys. . . . I mean the plan was just for us to get the weed and then run, but then something was up on his head. . . . Something happened on Mike's head. . . . I don't know why he shot, 'cause I wasn't in the car when he shot. I grabbed the weed and ran and . . . then I hear a 'pop, pop, pop, pop,' and I mean then he got out the car and ran." Miller told the detective that defendant had described Reyes and Gonzalez as "suckers," and said that "if we just take the weed and go, they ain't gonna do nothin'." He also told the detective that he and Mackey had the gun because defendant told them they "needed a gun to do it."

Defendant, Mackey, and Miller were jointly charged by information with murder (Pen. Code, § 187(a)*fn1 ), two counts of second degree robbery (§ 211), and one count of attempted murder. Each count alleged enhancements for personal use of a firearm under sections 12022.5, subdivision (a) and 12022.53, subdivisions (b), (c), and (d).

On the murder count, the jury was instructed that defendant was charged "under a theory of felony murder." Defendant's attorney recognized in his closing argument that "there isn't a lot of different facts in controversy, but what it really comes down to is, what was in Michael Mackey's mind when he decided to shoot Daniel Reyes and Tomas Gonzalez? That is the main issue in this case. . . . Did he shoot and kill Mr. Reyes, and did he shoot Mr. Gonzalez, as part of his intent to stop them from reclaiming the marijuana that Richard Miller stole?" He argued that Mackey shot Reyes and Gonzalez for a reason independent of the robbery and that Miller took the marijuana and got out of the car before Mackey shot the victims and therefore that "[t]he property was taken without force." The jury was instructed on robbery and also on the lesser offense of theft by larceny.

The jury found defendant guilty on all four counts.*fn2 The court sentenced him to 25 years to life for the murder plus a consecutive term of nine years for the attempted murder. Imposition of sentence for the robbery counts was stayed pursuant to section 654.

DISCUSSION

1. Joint trial

Defendant filed a motion to sever his trial from the trial of Mackey. The prosecutor opposed this motion and requested a joint trial with separate juries for the three defendants. The court denied the prosecutor's motion and granted defendant's motion to sever his trial from that of Mackey, but reserved ruling on the severance of the trial of defendant and Miller. At a subsequent hearing on the prosecutor's motion to sever the trials of defendant and Miller, defendant argued against severance on the ground of judicial economy and offered to waive his rights under People v. Aranda (1965) 63 Cal.2d 518 and Bruton v. United States (1968) 391 U.S. 123.*fn3 The court severed the trials of defendant and Miller, reasoning that "a joint trial in this matter [is] not only [i]nadvisable, but I think it's fraught with the potential for reversible error. None of us know what is going to happen as the trial goes on, and while we can all sit here today and try to think of all the alternatives or . . . the defendant may be willing to waive or take a certain tactic, I think foreclosing a defendant from taking advantage of all tactics available during a trial is something that no reasonable, experienced defense attorney would want to do . . . . So as we sit here today, it may seem like a good idea to waive whatever Aranda problems you may envision at this point, but I'm unwilling to get in a position where not only is the court bound, but I think you are going to be bound by perhaps things that we don't know what's coming up in the future."

Defendant then moved to compel the prosecutor to grant Miller immunity for his testimony or alternately to admit into evidence Miller's statement to police. The court denied the motion to compel the prosecutor to immunize Miller but his statement to the police was played for the jury. On appeal, defendant argues that Miller's testimony was necessary to bolster his defense that he was guilty only of theft and not of murder because Mackey acted independently and without the knowledge of defendant or Miller. Therefore, he argues, the trial court erred by ordering separate trials because, he posits, Miller would have testified had they been tried jointly.

"The California Penal Code provides for joint trials of defendants jointly charged with criminal offenses. 'When two or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they must be tried jointly, unless the court orders separate trials. . . .' (§ 1098.) The Legislature has in this manner expressed a preference for joint trials. [Citations.] The statute nevertheless permits the trial court to order separate trials, and the decision to do so is one 'largely within the discretion of the trial court.' [Citations.] Whether denial of a motion to sever constitutes an abuse of discretion must be decided on the facts as they appear at the time of the hearing on the motion to sever." (People v. Boyde (1988) 46 Cal.3d 212, 231-232.) Factors that the trial court may consider in deciding whether to order separate trials include: "(1) Where there is an extra-judicial statement made by one defendant which incriminates another defendant and which cannot adequately be edited to excise the portions incriminating the latter; (2) where there may be prejudicial association with co-defendants; (3) where there may be likely confusion from evidence on multiple counts; (4) where there may be conflicting defenses; and (5) where there is a possibility that in a separate trial the co-defendant may give exonerating testimony." (Id. at p. 232.)

Defendant argues that the court abused its discretion in ordering separate trials for Miller and him. He argues that none of the Boyde factors applied at the time of the hearing on the severance motion. Particularly as to the fifth factor, defendant argues that "there was no realistic likelihood that Miller would testify before his own trial and especially not when Miller was not a party with the right to have his own attorney examining him to protect and clarify his testimony and had no beneficial stake in [defendant's] trial." Defendant relies on Boyde, supra, 46 Cal.3d 212, in which the Supreme Court found no abuse of discretion in the denial of a severance motion. The decision does not imply, however, that severance must always be denied. Defendant points to no case, and we are aware of none, in which a criminal defendant was found to have been unfairly prejudiced by a separate trial.

The trial court's concern with the potential for prejudice to defendant or Miller from a joint trial despite counsel's offer to prospectively waive Aranda/Bruton issues, or a later claim of ineffective assistance of counsel, was well grounded. Besides corroborating defendant's assertion that Mackey shot the victims after Miller was out of the car, Miller also told the police that before the drug deal took place he knew Mackey was armed and intended to use the gun. The statement could reasonably be viewed as supporting the prosecutor's theory that Mackey shot the victims to prevent them from regaining the marijuana.*fn4 In any event, defendant has not demonstrated that there was a reasonable probability of a more favorable result if he had been tried jointly with Miller. (People v. Watson (1956) 46 Cal.2d 818, 836.) At defendant's request, Miller's statement to the police was played to the jury in its entirety. Defendant argues that Miller's testimony at trial would have allowed him to clarify certain statements that Miller made, but it is entirely speculative what clarification he would have provided, much less what the significance of the clarification would have been. Moreover, there is no reason to believe that Miller would not have invoked his right against self-incrimination at his own trial as he did when called as a witness at this trial. The trial court did not abuse its discretion in ordering separate trials for defendant and Miller.

2. Hearsay

Defendant argues that the trial court erred in admitting several statements that he contends were hearsay and thereby violated his right to confront witnesses against him. The testimony to which he refers is Clough's statement to police, which included her recollection of what Miller and Mackey said on returning to the motel, including statements purportedly uttered by Mackey during the robbery as related to Clough by Miller; Buffin's statement to police; Gutierrez's testimony that Reyes told Gonzalez he would be paid to accompany Reyes; and Gonzalez's statement to police that Mackey called defendant immediately before the shooting.

" 'Hearsay evidence' is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." (Evid. Code, § 1200, subd. (a).) "A trial court's decision to admit or exclude evidence is a matter committed to its discretion ' "and will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." ' " (People v. Geier (2007) 41 Cal.4th 555, 585.) Moreover, this court must affirm if the trial court's decision was correct, even if its reasons were erroneous. " 'If the decision of the lower court is right, the judgment or order will be affirmed regardless of the correctness of the grounds upon which the court reached its conclusion. Two theories seem to be involved here: First, that the appellate court reviews the action of the lower court and not the reasons for its action; second, that there can be no prejudicial error from erroneous logic or reasoning if the decision itself is correct." (People v. Gibson (1987) 195 Cal.App.3d 841, 853, italics omitted.)

A. Clough's testimony

Clough testified to the events in the motel room immediately following the robbery. She said that Miller had talked about "how they got the marijuana." She said, "It was [Mackey] and [Miller] in the car, and [Miller] got out of the car and he grabbed the bag and ran, and [Mackey] was in the car, then he heard gunshots." The prosecutor asked, "did they also say that [Mackey] had said, 'Give me your weed,' or whatever?" Clough said she did not remember. The prosecutor asked "When they were in there [presumably the motel room] talking, did [Mackey] talk about saying he demanded the weed or whatever, and then [Miller] got out of the car?" Defendant objected and the court overruled the objection. Clough said she did not remember.

The prosecutor then sought to introduce a recording and transcript of Clough's interview with police the morning after the robbery. The prosecutor had Clough review portions of the interview, then asked, "After reading this, you told the police that [Miller] had said that [Mackey] had already pulled the gun on them and said, 'Give me your weed.' That is what you read here, correct?" Clough answered, "Yeah." The trial court prompted the prosecutor to read more of the transcript for clarity. The prosecutor read, "So first, the detective asks you, 'So in this discussion, you hear [Miller] say what?' And he says that they had a truck, right?" Clough answered affirmatively. The prosecutor continued, "And then after that you then say, 'And he said that they were in the truck, and that's when he took the weed, and he opened the door and ran out, but [Mackey] had already pulled the gun on them, and said, 'Give me your weed or whatever.' Is that what you said?" Clough answered "Yes," and defendant objected to the statement "as hearsay and confrontation." The trial court overruled the objection.

Later, the prosecutor sought to play the tape of Clough's interview for the jury. Defendant again objected, this time on the grounds that it would be cumulative and unduly prejudicial. He also argued that the statement regarding Mackey should not have been admitted. The trial court stated, "all of these statements by not only your client, but the other two defendants are clearly, at least as to what was going on in the car and leading up to the shooting itself, are statements by co-conspirators in the commission of an underlying felony robbery, and they are admissible as to each."

Defendant argues that Clough's testimony and statements to the police were hearsay and therefore inadmissible and also that admitting her statements violated his rights under the confrontation clause to cross-examine witnesses against him. Miller's statements in the motel room were hearsay; that is, the prosecutor sought to establish the truth of Miller's description of the operative facts of the crime and was using Miller's out-of-court statement to Clough to do so.*fn5 The trial court admitted Miller's statements as those of a coconspirator. "Hearsay evidence is of course generally inadmissible. [Citation.] Hearsay statements by coconspirators, however, may nevertheless be admitted against a party if, at the threshold, the offering party presents 'independent evidence to establish prima facie the existence of . . . [a] conspiracy.' [Citations.] Once independent proof of a conspiracy has been shown, three preliminary facts must be established: '(1) that the declarant was participating in a conspiracy at the time of the declaration; (2) that the declaration was in furtherance of the objective of that conspiracy; and (3) that at the time of the declaration the party against whom the evidence is offered was participating or would later participate in the conspiracy.' " (People v. Hardy (1992) 2 Cal.4th 86, 139; Evid. Code, § 1223.)

In People v. McFarland (1971) 17 Cal.App.3d 807 (disapproved on other grounds by Donald L. v. Superior Court (1972) 7 Cal.3d 592, 597-598), a witness testified that the defendant and two other men, co-perpetrators of a robbery and shooting, had arrived at her house shortly after the crimes were committed. One of the other men had a gun and said that he wanted to sell it. The defendant challenged the admission of the statement under the coconspirator exception, arguing that the conspiracy had come to an end when the statement was made. The court held that the conspiracy had not come to an end because "the co-perpetrators proceeded within a short time to [the witness's] home to dispose of the murder weapon." (Id. at p. 823; see also People v. Lorraine (1928) 90 Cal.App. 317, 327-328 ["whether or not the subsequent act committed is the ordinary and probable effect of the common design or whether it is 'a fresh and independent product of the mind of one of the conspirators, outside of, or foreign to, the common design, is a question of fact for the jury [citations], and if there be any evidence to support the finding of the jury on this question, its determination is conclusive."].)

Likewise here, Miller, Mackey, and defendant returned to the motel immediately following the robbery and shootings to divide and sell the marijuana. The trial court did not abuse its discretion in finding that the conspiracy was ongoing and admitting Miller's statements on this ground.

Miller's statements in the motel room were conveyed not through Clough's testimony but through her statement to police that was read and played to the jury. The prosecutor introduced the police interview to establish the truth of Miller's underlying statements. At this level the hearsay was admissible under the exception for a past recollection recorded. Evidence Code section 1237, subdivision (a) provides: "Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement would have been admissible if made by him while testifying, the statement concerns a matter as to which the witness has insufficient present recollection to enable him to testify fully and accurately, and the statement is contained in a writing which: [¶] (1) Was made at a time when the fact recorded in the writing actually occurred or was fresh in the witness' memory; [¶] (2) Was made (i) by the witness himself or under his direction or (ii) by some other person for the purpose of recording the witness' statement at the time it was made; [¶] (3) Is offered after the witness testifies that the statement he made was a true statement of such fact; and [¶] (4) Is offered after the writing is authenticated as an accurate record of the statement."

Clough's statement to police was made by her the morning after the crimes. It was offered after she testified that she had told Detective Meredith the truth. There is no dispute that the recording was an accurate record of her statement.*fn6

In all events, the admission of Clough's testimony concerning Miller's statements in the motel room was harmless. Other testimony solidly established that defendant knew Mackey was armed and that he intended to use the gun in the commission of the robbery. Defendant himself told the police that Mackey had told him before the robbery, " 'Once I pull out the pistol, you just run.' " Defendant also told police that during this discussion he said, "Man, if you do it, if you do it up in here man, when you pull out the pistol, I'm just gonna break. I'm gonna run." Defendant also told Meredith that at some point before the drug deal, defendant was sitting with Miller and Mackey and Mackey said, "Man, I'm gonna shoot 'em. I'm gonna shoot 'em." Defendant said, "Man, you don't have to shoot nobody but if you do shoot somebody, then you got to look at it a different way if you do shoot 'em. . . . if you do shoot 'em man, you gonna have to you know what I'm saying, kill 'em or something because if you don't, then it's gonna be over for you." There is no reasonable probability that the jury would have reached a different verdict had Clough's testimony about what Miller said in the motel room been excluded. (People v. Roberto V. (2001)93 Cal.App.4th 1350, 1373 [applying standard under People v. Watson (1956) 46 Cal.2d 818, 836 to improper admission of hearsay.])

B. Buffin's statements

When called to testify, Buffin denied remembering anything that transpired on the day of the robbery. When the detective who interviewed her was called to testify, the recording of her interview was played for the jury. Before the tape was played, defendant objected on the ground that it was cumulative and unduly prejudicial. The Attorney General argues that Buffin's statements were properly admitted as prior inconsistent statements under Evidence Code sections 770 and 1235.

"Normally, the testimony of a witness that he or she does not remember an event is not inconsistent with that witness's prior statement describing the event. [Citation.] However, . . . [w]hen a witness's claim of lack of memory amounts to deliberate evasion, inconsistency is implied. [Citation.] As long as there is a reasonable basis in the record for concluding that the witness's 'I don't remember' statements are evasive and untruthful, admission of his or her prior statements is proper." (People v. Johnson (1992) 3 Cal.4th 1183, 1219.) There is ample evidence that Buffin was being evasive. She answered, "I don't remember" to every substantive question asked of her. At one point, the prosecutor began a question and Buffin interjected, "I don't remember," prompting the prosecutor to ask, "Are you going to listen to my question before you tell me you don't remember?" Defense counsel described Buffin as "probably the single least cooperative witness I have ever seen in court. She rolled her eyes, and when [the prosecutor] asked her questions, she said she didn't recall." Buffin's interview with police was properly admitted as a prior inconsistent statement.

C. Gutierrez's testimony

Defendant argues that the court improperly admitted Gutierrez's testimony that about a week before the drug transaction, she heard Reyes tell Gonzalez that Reyes would pay him to accompany Reyes when he went to sell the marijuana.

This testimony was relevant to the issue of Gonzalez's constructive possession of the marijuana for the purpose of the charge of the robbery of Gonzalez. The trial court admitted the statement on the ground that it was the statement of a coconspirator in a plan to illegally sell the marijuana.

The Attorney General first argues that this testimony was not hearsay because it was not admitted for the truth of the matter "but because it was circumstantial evidence of Reyes' state of mind or desire that Gonzalez accompany him during the drug deal as well as evidence of Gonzalez's understanding of his role in the drug deal." However, the prosecutor relied on this testimony to establish Gonzalez's constructive possession of the marijuana for the purposes of proving the second robbery count.

The Attorney General next argues that Gutierrez's testimony was admissible as a statement of intent or plan under Evidence Code section 1250. That section provides that "evidence of a statement of the declarant's then existing state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) is not made inadmissible by the hearsay rule when: (1) The evidence is offered to prove the declarant's state of mind, emotion, or physical sensation at that time or at any other time when it is itself an issue in the action; or (2) The evidence is offered to prove or explain acts or conduct of the declarant."

In People v. Earnest (1975) 53 Cal.App.3d 734 the court found that statements made by a hired arsonist to a neighbor of the defendant were admissible under this exception. "[T]he statements, being expressions of [the arsonist's] 'intent, plan, motive, (and) design' were 'offered to prove or explain acts or conduct of the declarant' in conformity with that state of mind. The conversations revealed [the arsonist's] intent to burn the Elm Street residence, monetary reward as the motive, and details of the time and manner of the act as per the plan and design. Evidence at trial indicated that [the arsonist] acted in conformity with this state of mind, i.e., the fire was set on a Saturday two weeks later at approximately 9:30 p.m., the occupants were not home at the time, the house appeared as if it had been broken into, the gas was on, and a gasoline can was on the premises." (Id. at pp. 742-743.)

Likewise in this case, Reyes's statements established the fact that Reyes wanted company on the drug deal and that he intended to pay Gonzalez to accompany him. The evidence established that Gonzalez did accompany Reyes in conformity with this plan. Thus Reyes's statements as related by Gutierrez were admissible under this exception to the hearsay rule.

D. Gonzalez's statement to police

Defendant also argues that when Gonzalez's memory failed him on the witness stand, the court erred in admitting the portion of his taped interview in which he told Detective Mustard that "Mackey called [defendant] to bring the rest of the money, to bring 'the two,' which seemed suspicious and this was before the shots."*fn7 Defendant objected but the trial court admitted the statement under Evidence Code section 1237 as past recollection recorded.

Evidence Code section 1237, subdivision (a) provides: "Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement would have been admissible if made by him while testifying, the statement concerns a matter as to which the witness has insufficient present recollection to enable him to testify fully and accurately, and the statement is contained in a writing which: [¶] (1) Was made at a time when the fact recorded in the writing actually occurred or was fresh in the witness' memory; [¶] (2) Was made (i) by the witness himself or under his direction or (ii) by some other person for the purpose of recording the witness' statement at the time it was made; [¶] (3) Is offered after the witness testifies that the statement he made was a true statement of such fact; and [¶] (4) Is offered after the writing is authenticated as an accurate record of the statement."

There is no dispute that Gonzalez had little recollection at the time of trial of the events that transpired immediately before, during and after the shooting. His statement was made to Detective Mustard a short time after the shooting, was made by Gonzalez and recorded by Detective Mustard, and was offered after Gonzalez testified that he spoke with police while hospitalized after the shooting and that he believed what he had said at the time was truthful.*fn8 Defendant does not dispute that the recording was accurate. The trial court did not err in admitting the recording of Gonzalez's statement to Detective Mustard.*fn9

3. Gonzalez's testimony

Gonzalez testified that he did not remember many of the details of the day of the shooting. He was asked on direct examination, "Before [the shooting] happened, was there marijuana in the car?" He answered, "Correct," and the prosecutor asked, "And after you were shot, was the marijuana taken from the car?" He answered, "I believe so." Defense counsel objected "as speculation, if he doesn't remember when it was taken or if it was taken." The court stated, "He's indicated that he believes it was. You can go into it on cross-examination. The answer will stand." On cross-examination Gonzalez testified that, "I don't remember the specifics of that day." When asked if he remembered if defendant was in the car when he was shot, Gonzalez stated, "I don't remember when I got shot, so I don't know whether he was in the car or not." He was asked, "It sounds like you don't remember maybe the five minute period leading up to you being shot; is that right?" and answered, "Correct." He was then asked, "Do you remember one of the guys in the back seat getting out to smoke a cigarette right before you were shot?" Gonzalez answered, "No." He was then asked, "So earlier when [the prosecutor] asked you a question, and you said that you believed the marijuana was taken after you were shot, that was just you completely guessing, is that right?" He answered, "Not complete guessing." Defense counsel asked, "Did you see the marijuana?" and Gonzalez answered, "No." Defense counsel asked, "Okay. And you don't remember what happened right before you were shot, right?" and Gonzalez answered, "No." Defense counsel then asked the court to "strike the answer that was given on direct examination about the timing, as speculation." The court ruled, "No, the responses will remain. The jury has heard it all."

Defendant argues that the trial court erred by refusing to strike the direct examination testimony. "Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. [Citation.] Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion 'must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.' " (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) There was no abuse of discretion here. Defendant was permitted to cross-examine Gonzalez at length, bringing out clearly that he did not recall the events leading up to the shooting.

4. Jury Instructions

Defendant argues that the trial court erred in giving the jury certain instructions and in failing to give others. He challenges three specific instructions regarding felony murder during a robbery. "An appellate court reviews the wording of a jury instruction de novo and assesses whether the instruction accurately states the law. [Citation.] The court reviews instructions in context of the entire charge of jury instructions rather than in artificial isolation." (People v. O'Dell (2007) 153 Cal.App.4th 1569, 1574.)

A. Conspiracy instructions

Defendant argues that he was improperly convicted on a felony-murder theory because the jury was instructed on conspiracy as a basis for his liability for the robberies and by extension for the murder and attempted murder. Defendant argues that since he was not present when the crimes were committed, under the instructions the jury could have found him guilty only as a coconspirator. On this premise, he further argues that the jury therefore could have found him guilty only of conspiracy to commit robbery, but not of robbery, and that therefore his convictions for robbery must be reversed because he was not charged with the substantive crime of conspiracy to commit robbery. His argument continues that conspiracy to commit robbery is not one of the crimes specified in section 189, which identifies the felonies to which the felony-murder rule applies, and therefore that his conviction for murder must be reversed.*fn10 Finally, he argues that the conviction for attempted murder also must be reversed because "substantively, the jurors were never required to find that a completed robbery was a natural and probable consequence of any agreement into which [defendant] entered."

Defendant does not identify the instructions that he believes were in error but cites broadly to the trial court's instructions allowing the jury to find him guilty as a coconspirator and argues that the jury instructions allowed him to be convicted of felony murder for having committed conspiracy to commit robbery, rather than requiring that the jury find he committed robbery. He argues that "on these instructions what the jury finds is not a completed robbery and not an attempted robbery (which did not exist on these facts), but a conspiracy to commit robbery. The jurors are not asked to find anything further."

This argument fails for at least two reasons. First, the jury was properly instructed on the elements of the crime of robbery and found beyond a reasonable doubt that defendant committed robbery. Robbery is one of the crimes specified in section 189 as a predicate for felony murder. Second, conspiracy is not only a substantive crime, but also a valid theory of criminal liability for the commission of other offenses. "The doctrine of conspiracy plays a dual role in our criminal law. First, conspiracy is a substantive offense in itself--'an agreement between two or more persons that they will commit an unlawful object (or achieve a lawful object by unlawful means), and in furtherance of the agreement, have committed one overt act toward the achievement of their objective.' [Citations.] Second, proof of a conspiracy serves to impose criminal liability on all conspirators for crimes committed in furtherance of the conspiracy." (People v. Salcedo (1994) 30 Cal.App.4th 209, 215.)

The jury was properly instructed that it could find defendant guilty as an aider and abettor or as a coconspirator, and was also properly instructed on felony murder.*fn11 If the jury found defendant guilty of the robberies under either of these theories, it could find him guilty of the murder and attempted murders either as crimes that were planned by the three men or as the natural and probable consequence of the robberies.*fn12

B. Felony-murder/robbery instructions

Defendant argues that the trial court erred in instructing the jury with CALCRIM Nos. 549, 1603, and 3261. These instructions pertain to the duration of the crime of robbery. CALCRIM No. 549 instructs that to prove defendant guilty of felony murder, the prosecution must prove that "the robbery and the act causing the death were part of one continuous transaction." It also instructs that in making this determination the jury may consider a number of factors including the physical and temporal proximity of the robbery and the murder, "whether the fatal act was committed for the purpose of aiding the commission of the felony or escape after the felony; [¶] Whether the fatal act occurred after the felony but while one or more of the perpetrators continued to exercise control over the person who was the target of the felony; [¶] . . . [¶] [and] Whether the fatal act occurred while the perpetrators were fleeing from the scene of the felony or otherwise trying to prevent the discovery or reporting of the crime."*fn13 CALCRIM No. 1603 instructs the jury on aider and abettor liability for robbery.*fn14 Finally, CALCRIM No. 3261 defines the duration of the crime of robbery, instructing that a robbery "continues until the perpetrators have actually reached a temporary place of safety."*fn15

At the outset, we note that defendant objected to CALCRIM Nos. 3261 and 549 but did not object to No. 1603. Defendant argues that he was not required to object, citing People v. Satchell (1971) 6 Cal.3d 28, 33, fn. 10 in which the court noted that "The trial court's duty in a criminal case to instruct on the general principles of law relevant to the issues raised by the evidence [citations] includes a correlative duty to refrain from instructing on principles of law which not only are irrelevant to the issues raised by the evidence but also have the effect of confusing the jury or relieving it from making findings on relevant issues." We need not determine whether defendant's objection has been waived by the failure to object since there was no error in the court's instructions.

"It is error to instruct a jury on a theory of guilt without evidentiary support, but the trial court must instruct the jury on every theory that is supported by substantial evidence. [Citations.] Substantial evidence is evidence that would allow a reasonable jury to find the existence of the facts underlying the instruction, and to find the defendant guilty beyond a reasonable doubt based on the theory of guilt set forth in the instruction. [Citations.] In making this determination, we view the evidence most favorably to the judgment presuming the existence of every fact that reasonably may be deduced from the record in support of the judgment. There is no instructional error when the record contains substantial evidence in support of a guilty verdict on the basis of the challenged theory." (People v. Jantz (2006) 137 Cal.App.4th 1283, 1290, italics added.)

The essence of defendant's argument is that the instructions were in error because they did not embrace his theory of the case, which was that Miller took the marijuana without force and left while Mackey shot the victims for reasons unconnected to the theft. He argues at length that there was evidence that the drugs were taken peacefully and without force and that Mackey shot the victims for reasons independent of the theft of the drugs. While that was defendant's theory of the case and the jury could have interpreted the evidence in this fashion, there was substantial evidence to support the prosecutor's theory, which the jury adopted, that Mackey shot the victims because he believed they would try to regain the stolen drugs, and that from the outset the plan had been that Mackey would use the gun to effect the taking of the marijuana. The trial court properly instructed the jury with regard to felony murder and the duration of the robbery. Under the instructions that were given, the jury could not have found defendant guilty of murder had it accepted his version of the facts.

Defendant is correct that the use note for CALCRIM No. 1603 includes the admonition that it not be given in a felony-murder case because it may suggest to the jury that an aider and abettor who joins the felony only after the murder has occurred may be found guilty of felony murder. (See, e.g., People v. Pulido (1997) 15 Cal.4th 713, 728.) However, as in Pulido, "defendant cannot demonstrate prejudice from the asserted instructional error." (Id. at p. 726.) There was overwhelming evidence that defendant arranged for the drug deal to take place, planned the robbery with Miller and Mackey, and that he knew the men were planning to use a gun to effect the taking of the marijuana. There was no evidence whatsoever that he joined the effort only after the shootings occurred.

C. Instruction regarding possession of recently stolen property

Defendant argues that the court erred by instructing the jury with CALCRIM No. 376 as follows: "If you conclude that the defendant knew he possessed property and you conclude that the property had in fact been recently stolen, you may not convict the defendant of robbery based on those facts alone. However, if you also find that supporting evidence tends to prove his guilt, then you may conclude that the evidence is sufficient to prove he committed robbery. [¶] The supporting evidence need only be slight and need not be enough by itself to prove guilt. You may consider how, where, and when the defendant possessed the property, along with any other relevant circumstances tending to prove his guilt of robbery. [¶] Remember that you may not convict the defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt." Defendant argues that this instruction improperly lessens the prosecution's burden of proof and argues that he was guilty only of theft and not of robbery.

This instruction (and its predecessor instruction, CALJIC No. 2.15), is "generally favorable to defendants; its purpose is to emphasize that possession of stolen property, alone, is insufficient to sustain a conviction for a theft-related crime." (People v. Gamache (2010) 48 Cal.4th 347, 375.) "In the presence of at least some corroborating evidence, it permits--but does not require--jurors to infer from possession of stolen property guilt of a related offense such as robbery or burglary. We have held the instruction satisfies the due process requirement for permissive inferences, at least for theft-related offenses: the conclusion it suggests is ' "one that reason and common sense justify in light of the proven facts before the jury." ' " (Ibid.)

Defendant relies on People v. Prieto (2003) 30 Cal.4th 226 to support his argument that the trial court should not have used this instruction. In Prieto, the trial court instructed, " 'If you find that a defendant was in conscious possession of recently stolen property, the fact of such possession is not by itself sufficient to permit an inference that the defendant . . . is guilty of the crimes charged.' " The Supreme Court held that the court erred by not limiting the instruction to the theft offenses with which the defendant was charged, excluding rape and murder counts with which he was also charged. (Id. at pp. 248-249.) The use of CALJIC No. 2.15 with respect to theft offenses is proper because " '[w]ith the inference from the knowledge and conscious possession of [stolen] property, and slight additional evidence as corroboration, the intent to steal, identity, and the determination a defendant committed the acts necessary to constitute robbery and burglary have been found to naturally and logically flow . . . .' [Citation.] The same is not true for nontheft offenses like rape or murder."

In this case, the instruction was properly limited in its application to the robbery charges. There was no error in so instructing the jury.

D. Defendant's requested instructions

Defendant argues that the trial court erred in refusing to give certain instructions that he requested. The instructions he specifies in his brief are the following.*fn16

"If you find a reasonable doubt whether Richard Miller stole the marijuana from the victims without force or fear, you must then decide whether or not that theft was complete prior to Michael Mackey shooting the victims. You must decide the reason Mr. Mackey shot the victims in this case. If you have a reasonable doubt whether Mr. Mackey specifically intended to use force to stop the victims from reclaiming the marijuana, you must find Mr. Thomas not guilty of robbery."

Defendant also requested that the court add to CALCRIM No. 549, discussed ante, the following language: "If you find that Richard Miller committed a theft of marijuana and that Mr. Mackey shot the victims for a reason independent of a specific intent to keep them from reclaiming the stolen marijuana, then there is not a 'continuous transaction' for the purposes of applying the felony-murder rule in this case."

"The court may . . . 'properly refuse an instruction offered by the defendant if it incorrectly states the law, is argumentative, duplicative, or potentially confusing [citation], or if it is not supported by substantial evidence [citation].' " (People v. Burney (2009) 47 Cal.4th 203, 246.) Defendant cites People v. Granados (1957) 49 Cal.2d 490, 496 for the proposition that "a defendant, upon proper request therefor, has a right to an instruction that directs attention to evidence from a consideration of which a reasonable doubt of his guilt could be engendered." In that case, the court held that the trial court properly refused the defendant's requested instruction, stating that, "[s]ince the requested instruction was covered by instructions which were given, defendant is not in a position to complain." (Id. at p. 497.)

The jury was instructed that in order to prove robbery, the people must prove that "The perpetrator(s) used force or fear to take the property or to prevent the person from resisting. [¶] . . . [¶] The perpetrator(s) intent to take the property must have been formed before or during the time he/they used force or fear. If the perpetrator(s) did not form this required intent until after using force or fear, then he/they did not commit robbery." The jury was instructed on the duration of the robbery using CALCRIM No. 3261 and 1603, discussed ante. Finally, the jury was instructed that "For the crime of robbery to be complete, it is not required that the victim know force is being used upon him or her or that property is being taken. However, the force used must be delivered to allow the perpetrator(s) to acquire the property or to carry away the property by preventing the victim from resisting or being able to resist."

As to felony murder, the jury was instructed with CALCRIM No. 540B, which states that in order to establish first degree murder under a felony-murder theory, the prosecution must prove that defendant intentionally aided and abetted or conspired to commit the robbery and that the murder occurred during the robbery and that there was a logical connection between the murder and the robbery. The jury also was instructed with CALCRIM No. 549 that "In order for the people to prove that the defendant is guilty of murder under a theory of felony murder, the people must prove beyond a reasonable doubt that the robbery and the act causing the death were part of one continuous transaction. The continuous transaction may occur over a period of time and in more than one location. [¶] In deciding whether the act causing the death and the felony were part of one continuous transaction, you may consider the following factors: [¶] 1. Whether the felony and the fatal act occurred at the same place; [¶] 2. The time period, if any, between the felony and the fatal act; [¶] 3. Whether the fatal act was committed for the purpose of aiding the commission of the felony or escape after the felony; [¶] 4. Whether the fatal act occurred after the felony but while one or more of the perpetrators continued to exercise control over the person who was the target of the felony; [¶] 5. Whether the fatal act occurred while the perpetrators were fleeing from the scene of the felony or otherwise trying to prevent the discovery or reporting of the crime; [¶] 6. Whether the felony was the direct cause of the death; [¶] and [¶] 7. Whether the death was a natural and probable consequence of the felony. [¶] It is not required that the people prove any one of these factors or any particular combination of these factors. The factors are given to assist you in deciding whether the fatal act and the felony were part of one continuous transaction."

These instructions adequately informed the jury what it must find in order to find defendant guilty of robbery and of felony murder. Defendant's requested instructions were incomplete, confusing, and added nothing to the jury instructions that were given. For example, the requested instructions suggest that defendant would not be guilty of robbery if the jury found that Mackey used the gun to allow Miller to get out of the car with the marijuana, rather than to prevent the victims from regaining the drugs. The trial court did not err in refusing to so instruct the jury.

E. Lesser included offenses

Defendant next argues that the trial court erred by instructing the jury that attempted robbery is a lesser included offense of robbery. He complains that the court instructed the jury on lesser included offenses as follows: "If all of you find that the defendant is not guilty of a greater charged crime, you may find him guilty of a lesser crime if you are convinced beyond a reasonable doubt that the defendant is guilty of that lesser crime. A defendant may not be convicted of both a greater and lesser crime for the same conduct. [¶] Now I will explain to you which crimes are affected by this instruction: [¶] Attempted robbery is a lesser crime of robbery as charged in counts two and four. [¶] Grand theft is a lesser crime of attempted robbery. [¶] Petty theft is a lesser crime of grand theft."

Defendant argues that this instruction was in error because there was no evidence of an attempted robbery and the jury was not also instructed that theft is a lesser included offense of robbery. The latter contention is factually incorrect. The trial court did instruct the jury that "Theft by larceny is a lesser offense of the crime of robbery. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant took possession of property owned by someone else; [¶] 2. The defendant took the property without the owner's consent; [¶] 3. When the defendant took the property he intended to deprive the owner of it permanently; [¶] and [¶] 4. The defendant moved the property, even a small distance, and kept it for any period of time, however brief."

Defendant again recites the evidence supporting his theory of the case, that Mackey shot the victims for reasons independent of the theft of the marijuana, and then argues, "Although there is sufficient evidence . . . to sustain a finding this was a robbery, there was also sufficient evidence to require an instruction on theft as a lesser included offense of robbery." This is precisely the instruction the trial court provided. Defendant also argues that the jury would have been confused because the court instructed the jury that grand theft is a lesser crime of attempted robbery and there was no evidence to support attempted robbery because the marijuana was in fact taken. While the reference to attempted robbery was not justified by the evidence, the jury nonetheless was properly instructed that theft is a lesser included offense of robbery. The jury was not precluded from finding that defendant was guilty of theft rather robbery had it believed his interpretation of the evidence. "It is well established in California that the correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction. [Citations.] '[T]he fact that the necessary elements of a jury charge are to be found in two instructions rather than in one instruction does not, in itself, make the charge prejudicial.' [Citation.] 'The absence of an essential element in one instruction may be supplied by another or cured in light of the instructions as a whole.' " (People v. Burgener (1986) 41 Cal.3d 505, 538-539.) The trial court properly instructed the jury on lesser included offenses.

5. Closing argument

Defendant challenges several statements by the prosecutor in his closing argument. " ' "A prosecutor's . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct 'so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.' " ' [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves ' " 'the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.' " ' [Citation.] As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion -- and on the same ground -- the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.] Additionally, when the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion." (People v. Samayoa (1997) 15 Cal.4th 795, 841.)

A. Natural and probable consequences of robbery

Defendant argues that the prosecutor improperly argued to the jury that the Legislature has conclusively determined that attempted murder is a natural and probable consequence of robbery.Defendant points to two parts of the prosecutor's closing argument. First, he cites the prosecutor's argument, "In this case we are not talking about malice murder or intent to kill type of murder. We are talking about felony murder. And the reason that society, or our culture and [our] legislature developed the theory and the law of felony murder, is because some crimes are so heinous, so dangerous, and so likely to result in somebody getting hurt [objection overruled] that the law has decided that if you commit one of these crimes, or you help somebody commit one of these crimes, and during that crime somebody else is killed, then you are also guilty of murder . . . . If somehow during this crime an accident occurred that was connected logically to the crime, and somebody was killed, you also were guilty. And if you think about that, that makes sense, because some crimes, like the ones we are dealing with here, robbery, arson, burglary, we all know are so dangerous, and are often done with people who do them in groups. They are so fraught with disaster, that the law has made it such that if you commit or help somebody commit one of these crimes, and somebody is killed, like we all expect might happen, you are also guilty for that murder."

Next, defendant cites the prosecutor's closing argument regarding attempted murder: "They talked about shooting the victims. Mr. Mackey told [defendant], 'I might have to shoot him.' What's his response? 'Well, if you shoot him, you better kill him.' Is it a natural and probable consequence, if you're talking about doing a robbery, and during the discussion you're talking about shooting somebody? And during that discussion, you're talking about shooting somebody and you say, 'If you do that, you better kill them?' Absolutely. Anybody who went into a robbery, with a discussion like that, knows that it's likely somebody is going to get shot, somebody is going to try to kill somebody, okay? We know that certain crimes are really dangerous. We know that as a reasonable person, if you go in to commit one of those crimes as a group, that somebody else may try to shoot somebody else. [Objection overruled.] So that's how you get to Count 3 . . . ."

Defendant conflates the two portions of the prosecutor's argument to suggest that the prosecutor implied that the jury could find him guilty of attempted murder on a felony-murder theory. He correctly observes that no such crime exists in California. (See People v. Bland (2002) 28 Cal.4th 313, 327-328.) However, the prosecutor did not tell the jury that it could find defendant guilty of attempted murder based solely on his participation in the robbery scheme. Moreover, the jury was correctly instructed that "To prove the crime of attempted murder, the People must prove that: [¶] 1. A perpetrator took at least one direct but ineffective step toward killing another person; [¶] and [¶] 2. That perpetrator intended to kill that person." The jury found defendant guilty of attempted murder under section 187. His liability for that crime was based on his role as an aider and abettor or as a coconspirator, and not on a felony-murder theory.*fn17 There was no improper argument.

B. Miller's failure to testify

Defendant argues that he made a motion to have Miller invoke the Fifth Amendment in front of the jury, that he then asked that Miller be produced so the jury could see him, and, when those motions were denied,*fn18 that he asked the court to instruct the jury that "Miller was legally unavailable for reasons beyond defense control," and that "the defense has no right to compel immunity and only the prosecution can do so." In support of his argument that Miller should have been required to invoke the Fifth Amendment before the jury, defendant inexplicably cites People v. Frierson (1991) 53 Cal.3d 730, 743, where the court held that "No inference may properly be drawn from the invocation of a privilege. (Evid. Code, § 913, subd. (a).) Allowing a witness to be put on the stand to have the witness exercise the privilege before the jury would only invite the jury to make an improper inference. [Citations.] Therefore, 'it is the better practice for the court to require the exercise of the privilege out of the presence of the jury.' [Citation.] We have 'commend[ed]' the approach 'as a means by which to avoid the potentially prejudicial impact of the witness asserting the privilege before the jury.' " The court followed that procedure in this case, permitting defendant to call Miller to the stand outside the presence of the jury and establishing that Miller intended to invoke the privilege and would not testify concerning the events surrounding the robbery.

Defendant then argues that the prosecutor improperly argued to the jury that Miller did not testify. He points to the portion of the argument in which the prosecutor told the jury, "when you put the pieces of the puzzle together here, how do you evaluate them? There are a lot of instructions about evaluating evidence. First of all, witnesses are people who talk to you from the witness stand . . . [.] You have a lot of statements in this case, like Mr. Miller's, that was a taped statement, but he never took the witness stand." Defense counsel objected, and the court overruled the objection. The prosecutor continued, "Now, look at the witnesses, see how they are, see how they testify, compare them to what they said before. That's part of your instructions as to how to look at a witness. Some of the other statements that you look at in this case, most of the out of court statements that you got on videotapes, like Mr. Miller's or Ms. Clough's were people who were either accessories or coconspirators to this. When you look at their testimony, the law tells you to look at it a little bit harder for the obvious reason; if you are in on it, you probably have some reason to tell it not quite right."

Defendant argues that "The jury did not know the reason Miller 'never took the witness stand' was not the defense purposely presenting evidence in a form that evaded cross-examination or confrontation or demeanor evaluation, but the prosecutor's own decision that he would not grant use immunity." However, the prosecutor did not improperly mislead the jury. His argument permissibly focused the jury on the fact that coconspirator's statements are subject to heightened scrutiny, and the jury was instructed that "Any testimony or statement of an accomplice that tends to incriminate the defendant should be viewed with caution. You may not, however, arbitrarily disregard it. You should give that testimony the weight you think it deserves after examining it with care and caution and in the light of all the other evidence." (See People v. Guiuan (1998) 18 Cal.4th 558, 569 [approving this instruction].) Moreover, Miller's statement provided only scant evidence to support defendant's theory of the case and provided much damning evidence of defendant's involvement in the robbery scheme.

C. Comment regarding protecting the community

In his closing argument, the prosecutor urged the jury, "So I know you people will do the right thing, and I'm going to hold you to your oath. When you go back, please look at the evidence and the law as the court gave it to you, and you have no doubt as to what happened here, and I know you'll do the right thing to protect your community." Defendant objected and the trial court overruled the objection.

Defendant is correct that this argument was improper. He cites to People v. Mendoza (1974) 37 Cal.App.3d 717, 727, where the court held that the prosecutor improperly "asked the jury 'to take Mr. Mendoza off the streets.' California law gives the responsibility for determining punishment in criminal cases to the judge and the Adult Authority. The jury's responsibility is limited to the determination of the defendant's guilt or innocence of the charge against him." In that case the court reversed on the ground that the prosecutor had made multiple improper arguments, commenting on the defendant's failure to testify, argued evidence that was not present in the record, and told the jury that a charge of child molestation " 'requires very little evidence,' " in addition to urging the jury to protect the community. "The prosecutor presented to the jury a strong case, but she needlessly coupled that case with an even stronger appeal to passion and prejudice."

"Prosecutorial misconduct implies the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. [Citation.] The ultimate question to be decided is, had the prosecutor refrained from the misconduct, is it reasonably probable that a result more favorable to the defendant would have occurred." (People v. Strickland (1974) 11 Cal.3d 946, 955.) Here, the improper statement was a minute part of an otherwise proper argument coupled with extremely compelling evidence of defendant's guilt. It is not reasonably probable that the jury would have reached a result more favorable to defendant had the prosecutor not made this comment.

6. Sufficiency of the evidence

Defendant argues that the evidence was insufficient to support his guilt for the robbery and attempted murder of Gonzalez. He argues that because the marijuana did not belong to Gonzalez, defendant could not be guilty of the robbery and if he was not guilty of robbery, then he could not be guilty of the attempted murder as a natural and probable consequence of the robbery. "In reviewing the sufficiency of the evidence, we must determine 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." [Citation.] '[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence--that is, evidence which is reasonable, credible, and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citation.] We ' "presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." ' " (People v. Davis (1995) 10 Cal.4th 463, 509.)

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." (§ 211.) "A person from whose immediate presence property was taken by force or fear is not a robbery victim unless, additionally, he or she was in some sense in possession of the property." (People v. Scott (2009) 45 Cal.4th 743, 749.) "A person who owns property or who exercises direct physical control over it has possession of it, but neither ownership nor physical possession is required to establish the element of possession for the purposes of the robbery statute. [Citations.] '[T]he theory of constructive possession has been used to expand the concept of possession to include employees and others as robbery victims.' [Citation.] Two or more persons may be in joint constructive possession of a single item of personal property, and multiple convictions of robbery are proper if force or fear is applied to multiple victims in joint possession of the property taken." (Id. at pp. 749-750.) Constructive possession may be established by demonstrating "some type of 'special relationship' with the owner of the property sufficient to demonstrate that the victim had authority or responsibility to protect the stolen property on behalf of the owner." (Id. at p. 753.)

"It is not necessary that the victim of the robbery also be the owner of the goods taken. Robbery is an offense against the person who has either actual or constructive possession over the goods. [Citation.] Thus, a store employee may be a victim of robbery even though he does not own the property taken and is not in charge or in immediate control of the property at the time of the crime. [Citations.] Nor is it a defense that the victim was a visitor to a store and was not the true owner of money or property taken. [Citation.] Furthermore, a person may be convicted of robbing a janitor or night watchman by taking the employer's property." (People v. Estes (1983) 147 Cal.App.3d 23, 26-27.)

There was sufficient evidence that Gonzalez had authority or responsibility to protect the marijuana. He was an active participant in the transaction. The purported sale was initially arranged by defendant with Gonzalez. Reyes' girlfriend testified that she heard Reyes ask Gonzalez to accompany him on the drug sale because Reyes did not want to go alone. Gonzalez was paid to participate in the transaction. Gonzalez was the person to whom Mackey handed the dollar bills before the robbery took place. Although the testimony indicates that Reyes was the owner of the marijuana, it also supports a finding that Gonzalez was acting for the benefit of Reyes and was being paid for his participation in the transaction. Therefore, there was sufficient evidence that Gonzalez had constructive possession of the marijuana and was also a victim of a robbery.*fn19

7. Trial court's statement regarding the immediate presence of the victim

When defendant requested that the trial court instruct the jury on grand theft, he requested CALCRIM No. 1801. That instruction states that "Theft of property from the person is grand theft, no matter how much the property is worth. Theft is from the person if the property taken was in the clothing of, on the body of, or in a container held or carried by, that person." In denying defendant's request for that particular instruction, the court stated that, "the instruction specifically indicates that the property was taken from the person of the victim. There's no evidence whatsoever the property was taken from the person of the victim. The property was either taken from the back seat of the car in which the two participants who were at the scene were sitting, or from behind the back seat. There is some evidence of that, as well, but it certainly was not taken from, or in the immediate presence of the victim, so the grand theft person instruction is going to be denied." (Italics added.)

Based on the italicized language, defendant contends that his conviction must be reversed, arguing that the statement amounted to a conclusive finding by the court that the marijuana was not "in the immediate presence of the victim" and therefore that there was no theft. It is clear from the context that the court was addressing only the propriety of an instruction requiring the property taken to have been physically touching the victim. The court was correct that there was no evidence to support such an instruction. The evidence that the drugs were in the possession of the victims for the purposes of robbery or theft, however, was overwhelming. Moreover, the court was not ruling on the sufficiency of the evidence to support either theft or robbery. The court may not have chosen the most precise words in denying defendant's motion, but the court certainly did not make a finding of defendant's innocence.

8. Defendant's closing argument and requested supplemental instruction

In his closing argument, defense counsel stated, "Did [Mackey] shoot and kill Mr. Reyes, and did he shoot Mr. Gonzalez, as part of his intent to stop them from reclaiming the marijuana that Richard Miller stole?" The prosecutor objected and after an unreported sidebar, defense counsel continued, "So the question is this: Did the state . . . prove that Mr. Mackey shot and killed Mr. Reyes and shot Mr. Gonzalez . . . have they proven beyond a reasonable doubt that he did not do it for an independent reason?" Defense counsel also argued to the jury that, given the fact that Miller was out of the car with the drugs when the shooting occurred, "the question is, was there any proof beyond a reasonable doubt that the force was used in the taking of the property? Well, no. The property was taken without force." He also argued that "if there is any doubt that Mr. Miller was outside of the car with the marijuana, and that that taking was done without any force or fear, I think conclusively that is proven."

After closing arguments were completed, defendant again asserted to the trial court that he had been foreclosed from making a permissible argument. He contended that he was prevented from arguing "that there was a grand theft without force, follow[ed] by a shooting, which the force was not directed at stopping the reclaiming, or enhancing, the carrying away of the property." The court replied, "I indicated that you could argue that the force that was used was independent or not connected with the robbery. That's what I indicated you could argue, and that's what you did argue. But you were phrasing it in a different way, counsel, when the objection was made. You were making a specific comment that unless the force was used to prevent the victim from regaining their property, they could not be found guilty of felony murder." Defense counsel interjected, "Then it wouldn't be robbery, because the force would be independent of the taking. That was my theory." The court continued, "But that overlooked the fact that the gun had already been out, and that's what I objected to." Defense counsel argued, "You wouldn't let me argue that they have to prove that was Mackey's specific intent in shooting these people, was the robbery."

During deliberations, the jury asked, "Does [the] victim have to know about the force for it to be considered force, aka gun?" and "Does the victim have to feel fear, for it to be fear in regard to [the element of robbery] which requires that the perpetrators use force or fear to take property or to prevent the person from resisting in the definition of robbery?" The trial court then gave the jury a modified instruction as follows: "Robbery may occur when the property is peacefully acquired, but force or fear is used to prevent the victim from being able to resist while the property is being carried away. . . . For the crime of robbery to be completed, it's not required that the victim know force is being used upon him or her, or that property is being taken. However, the force used must be delivered to allow the perpetrators to acquire the property or carry away the property by preventing the victim from resisting or being able to resist."

This explanation by the court was correct. We fail to see how these instructions prevented the jury from understanding the necessary elements of robbery.

DISPOSITION

The judgment is affirmed.

We concur:

Siggins, J.

Jenkins, J.


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