Filed Date: 6/12/13
Original Appeal Los Angeles County BA337662/BA348502, Ct.App. 2/1 B220174, Ronald H. Rose, Judge
Robert Derham, under appointment by the Supreme Court, for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka and Lance E. Winters, Assistant Attorneys General, Paul M. Roadarmel, Jr., Lawrence M. Daniels, Steven D. Matthews and David F. Glassman, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion): Robert Derham, David F. Glassman, Deputy Attorney General
ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING
The majority opinion in this matter, filed on April 4, 2013, and appearing at 56 Cal.4th 480, is modified as follows:
On page 486, footnote 2 is modified to read in its entirety:
Conspirators bear a similar derivative liability for the criminal acts of their coconspirators, whether the conspiracy itself is charged or uncharged. (People v. Valdez (2012) 55 Cal.4th 82, 150; People v. Pulido (1997) 15 Cal.4th 713, 724.) Defendant also contends the trial court was obliged to instruct sua sponte on an uncharged conspiracy. Because that claim was not raised in defendant’s petition for review, and is beyond the scope of the issues we directed the parties to brief, we do not address it. (See Cal. Rules of Court, rule 8.516(a)(1), (b); Pearson Dental Supplies, Inc. v. Superior Court (2010) 48 Cal.4th 665, 682, fn. 5.)
This modification does not affect the judgment.
The petition for rehearing is denied.
Defendant Mildred Delgado was convicted of robbery (Pen. Code, § 211) and kidnapping for purposes of robbery (§ 209, subd. (b)(1)), on evidence from which a jury could have determined an accomplice, rather than defendant, personally performed the act of asportation necessary to the offense of kidnapping. He contends the trial court erred in failing to instruct, sua sponte, on the law of accomplice liability. We conclude the court was required to instruct on aiding and abetting liability as a general legal principle raised by the evidence and necessary for the jury’s understanding of the case. (People v. Prettyman (1996) 14 Cal.4th 248, 265.)
We also conclude the error was harmless. The jury was fully instructed on the elements of kidnapping for robbery, including asportation, and found those elements proven beyond a reasonable doubt. Instructions on the liability of an aider and abettor would merely have provided additional theories of defendant’s liability; their absence could not have prejudiced defendant. Moreover, the circumstantial evidence defendant was working with the apparent accomplice to kidnap and rob the victim was strong. No reasonable probability (People v. Watson (1956) 46 Cal.2d 818, 836) exists of a more favorable outcome had accomplice liability instructions been given.
Factual and Procedural Background
Defendant was charged with kidnapping Melvin Perez to commit robbery (§ 209, subd. (b)(1)) and with robbing Perez (§ 211), as well as with the unrelated robbery and assault of a different victim.
Perez testified that on the evening of March 1, 2008, after drinking around six beers at home, he went to El Charo bar in Los Angeles. On the way, he encountered and talked briefly with defendant, who followed him into El Charo, where Perez treated him to a beer and the two drank together. Defendant suggested Perez come with him to a friend’s house to get some money or drugs, but Perez declined. Defendant left; Perez stayed and continued drinking, having a total of eight beers at the bar. At some point, a woman who had seen defendant staring at Perez telephoned Perez’s cousin, who lived with Perez. The cousin came to the bar and offered to drive Perez home. Perez stayed but, at his cousin’s request, gave him the jewelry he was wearing (chains, a bracelet, a ring, and a watch) for safekeeping.
Defendant returned some hours later, as the bar closed and Perez left. Defendant was standing by a car near the entrance; a woman was in the driver’s seat. Defendant asked Perez if he wanted a ride and, when Perez declined, grabbed Perez by the shoulder and ushered him into the backseat, saying, “Come on, let’s go in.” Perez agreed to go because he was drunk. Defendant got into the front passenger seat and the car drove a few blocks, then stopped. Defendant climbed into the backseat with Perez.
Perez asked what was going on, and defendant told him to shut up. Perez tried to get out of the car, but the driver locked the door from the front seat. Defendant started searching Perez’s pockets, asking him about his jewelry. Perez said he did not have it, that someone had already robbed him. Defendant displayed a knife. As the two struggled in the backseat, the car began moving again. Defendant took Perez’s wallet, with $100 or $150 in it, from his pants pocket and stabbed Perez in the ribs and on his forehead. Perez felt himself being pushed and lost consciousness. When he woke up, he was near his apartment building. People on the street saw he was bloody and called for help.
About 10 days later, Perez saw defendant on the street and, after calling the police, asked, “Hey, you’re the guy who robbed me, huh?” Defendant responded, “Yeah, so what.” The police arrived and arrested defendant. Defendant admitted to police he had gotten Perez into the car, which a woman was driving, in order to rob him. He stabbed Perez only after Perez hit him in the face. The detectives later inspected an Isuzu Trooper registered to Myra Gonzalez at a Los Angeles address near the crime scene, which bore bloodstains on a rear ...