(Super. Ct. No. 09F05363)
The opinion of the court was delivered by: Raye , P. J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Donald Carter, charged with felony murder and the special circumstances of killing 80-year-old Sophia McAllister while burglarizing, robbing, and raping her, testified that he broke into her house to get the money he desperately needed to buy more rock cocaine. He admitted he intended to commit the three felonies, albeit in his drug induced, crazy state of mind, but he denied intending to kill her. He reverses his defense on appeal, now suggesting that the jury might have found that the three felonies were only incidental to his plan to murder Mrs. McAllister.
The distinction is, in fact, pivotal. Defendant asserts the trial court failed to instruct the jurors sua sponte that the prosecution had to prove that the murder was carried out to advance the commission of the burglary, robbery, and rape or, in other words, that they could not find the special instruction to be true if the commission of the three felonies was merely incidental to the commission of the murder. He offers a clever and legally sound assault on the instruction delivered by the court, an argument the Attorney General does not appear to understand or rebut. It is, however, a Pyrrhic victory; he wins on the law and loses on the facts. Because there is not significant evidence that he intended to murder Mrs. McAllister and the other felonies were merely incidental to his plan to murder, the trial court was not obligated to give the so-called Green instruction sua sponte. (People v. Green (1980) 27 Cal.3d 1, 59-62 (Green), superseded by statute on other grounds as stated in People v. Alcala (1984) 36 Cal.3d 604, 621-622 & fn. 8.) We affirm.
Few facts are necessary to resolution of the narrow instructional issues raised on appeal. The essential facts are undisputed.
In May 1989 defendant was a heavy rock cocaine ("crack") addict, under the influence of "ether base" cocaine, and in need of money to replenish his supply. Mrs. McAllister lived a couple of blocks away, and he had stolen from her before. Knowing she was an easy target, he went to her house to steal, but he testified he did not intend to harm her.
Defendant went into Mrs. McAllister's house through a window and found her in bed. She asked him to please leave. He testified he was like a "crazy man" and out of control, and told her he needed money for drugs. The crack made him crave sex, and he tried to talk her into having sex but she refused. He became angry and raped her. He was afraid she was going to yell or call for the police, so he grabbed what he thought was a shoe, and later learned was a mallet, and struck her. He meant to quiet her, not to kill her. When he was finished raping her, he went through her bedroom drawers, took something from the kitchen, and went back out the window.
Mrs. McAllister was found dead in her house. The case went cold for 20 years. In May 2009 the Sacramento County District Attorney's crime lab received information from the DNA database that it had a hit. Defendant was identified and provided a DNA sample. Defendant ultimately confessed to the burglary, robbery, rape, and murder of Mrs. McAllister. A jury convicted him of first degree murder with the personal use of a deadly weapon and found that all three special circumstances were true.
Defendant's argument goes like this. The trial court instructed the jury on felony murder and special circumstance felony murder using the exact same language. By failing to include the only language that saves its constitutionality and renders the felony-murder special circumstance distinct from garden-variety felony murder, the jury was compelled to find the special circumstance true once it found felony murder. In other words, the truncated instruction constituted a directed verdict on the special circumstance and thereby denied defendant his constitutional right to a jury determination of a fact that would increase his punishment within the meaning of Ring v. Arizona (2002) 536 U.S. 584 [153 L.Ed.2d 556]. He insists he is not challenging the constitutionality of the special circumstance, but the court's failure to give an instruction consistent with the legislation and the cases that upheld it. He relies heavily on Green, supra, 27 Cal.3d 1 and Williams v. Calderon (9th Cir. 1995) 52 F.3d 1465.
Curiously missing from defendant's argument and analysis is any mention of recent California Supreme Court jurisprudence on the topic, the full body of the targeted instruction, or the rich history of the standard instruction. Once the more pertinent law is digested, the argument is not nearly as clever as it first appears.
The Attorney General's reply misses the mark by addressing an argument defendant does not make. As mentioned, he is not launching a constitutional challenge to the legislation. The Attorney General argues repeatedly that the elements of felony murder can overlap with the elements of special circumstance felony murder and that indeed the two share common elements. But as defendant correctly observes, the problem is not that the instructions were similar, but that they were identical. We turn to guidance from our Supreme Court.
In Green, supra, 27 Cal.3d 1, the Supreme Court observed that the purpose of the special circumstance was to single out those "defendants who killed in cold blood in order to advance an independent felonious purpose . . . ." (Id. at p. 61.) "Although the defendant in Green technically committed a robbery, it was clear from the evidence that it was not 'a murder in the commission of a robbery but the exact opposite, a robbery in the commission of a murder.'" (People v. Valdez (2004) 32 Cal.4th 73, 113, ...