California Court of Appeals, Fourth District, Second Division
[CERTIFIED FOR PARTIAL PUBLICATION[*]]
APPEAL from the Superior Court of Riverside County .No. RIF10003985. W. Charles Morgan, Judge.
[Copyrighted Material Omitted]
Steven Schorr, under appointment by the Court of Appeal, for Defendant and Appellant Xavier James Fort.
Laura Schaefer, under appointment by the Court of Appeal, for Defendant and Appellant Aaron Robert Campbell.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Steve Oetting, Arlene A. Sevidal, and Lise S. Jacobson, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Aaron Robert Campbell met Silvester Leyva at a hookah bar where they exchanged telephone numbers and discussed buying and selling marijuana. A few days later, Campbell and defendant and appellant Xavier James Fort, among others, went to Leyva’s house to obtain
marijuana. Leyva and his friend, Samuel De La Torre, met Campbell in Leyva’s front yard. After De La Torre handed marijuana to Campbell, Campbell pulled a gun and began to back away toward two waiting vehicles. Fort, who was standing near the vehicles, fired his gun in the direction of the house. Leyva was killed by one of the bullets.
A jury convicted defendants of first degree murder and found true a robbery special-circumstance allegation. The jury also convicted them of two counts of robbery based upon the taking of the marijuana. In one robbery count, Leyva was the victim; in the other, De La Torre was the victim.
Regarding the murder charge, the jury was instructed on first degree felony murder only, with robbery as the underlying felony. On appeal, Fort argues that, based on the accusatory pleading, the trial court had a sua sponte duty to instruct on lesser included offenses. We agree. Moreover, there was substantial evidence from which a reasonable jury could conclude that a lesser offense, but not the greater, was committed. Therefore, the court erred by failing to instruct the jury as to lesser included offenses. Because the error was not harmless, we reverse Fort’s murder conviction. Because the instructional error may have led the jury to convict Fort of the robbery counts, the conviction on those counts are also reversed.
In the nonpublished portion of our opinion we reject defendants’ argument that the evidence was insufficient to support their convictions of the robbery of Leyva.
A. Prosecution Evidence
1. De La Torre’s Trial Testimony
De La Torre testified to the following. He had known Leyva for about four to six months before the incident. On the evening of the incident, he arrived at Leyva’s house between 10:00 p.m. and 10:30 p.m. There were 10 to 15 people present. The garage door was open and there was no power on in the house.
De La Torre brought marijuana and intended “[j]ust to hang out, smoke.” De La Torre owned and possessed the marijuana. He did not plan to sell the marijuana. When he and Leyva were in the backyard smoking and drinking, someone informed them that some men were out front looking to buy marijuana, and that they had been texting or calling Leyva. After talking with Leyva, De La Torre took the marijuana out front to sell.
When De La Torre got out front, there were three African-American males asking about marijuana. De La Torre had never seen them before. De La Torre took one bud of marijuana out to show them. During this encounter, both he and Leyva were involved in the conversation. De La Torre did the negotiating while Leyva watched. However, De La Torre said he thought that when the prospective buyer asked for the price, Leyva “maybe threw a number out there....”
At some point, Leyva said the price should be around $550 for two ounces, but De La Torre said he wanted to get $600. De La Torre testified that he did not want to sell it for $550 because Leyva “wanted to make some money or something, so I was helping him out.” (The record is not clear as to whether this discussion with Leyva took place before Leyva and De La Torre met the men in the front yard or in the presence of those men.)
The man seeking to buy the marijuana said he did not bring any money and had to go to an ATM. He and the other men left in a red Honda Accord. After they left, the garage door was closed and everyone at Leyva’s house went inside. There were no lights on in the house or on the front porch. In the house, Leyva, De La Torre, and others continued smoking marijuana and consuming alcohol.
After about 20 minutes, the red Honda and a silver Chevrolet Malibu or Impala pulled up in front of the house. Looking through the front window, De La Torre observed four or five people get out of the silver car and three get out of the red car. The individuals spread out about an arm’s length apart at the sidewalk area. A few of them were on the sidewalk and a few in the street. Around this time, Leyva received a telephone call or text message.
After waiting about two minutes, De La Torre walked outside. Leyva and others were behind De La Torre. De La Torre believed the men outside the house intended to take the marijuana against his will. He decided he would give them the marijuana without putting up a fight because he did not want any problems. However, he left the marijuana in an office inside the house.
Leyva asked for the person he had met a few days earlier. An individual with orange hair approached and said he was looking for marijuana and had the money. Leyva was “doing the talking.” The conversation occurred on the walkway between the garage and the front door. As Leyva and the ostensible buyer talked, De La Torre went into the house to get the marijuana. When he came back outside, Leyva was still talking with the individual.
When De La Torre held out the bag of marijuana, the man grabbed it and asked if it was all there. De La Torre said it was. The man then stepped back,
pulled a gun, cocked it, and told everybody to go back into the house. He said something like: “[D]on’t do anything stupid.” De La Torre and his friends put their hands up and walked backwards. As he turned to walk into the house, Leyva crossed his path and yelled something like: “I know you guys’s homie.” He then heard three shots. Leyva was hit. De La Torre did not see anybody firing the shots.
2. Police Interview of Campbell
Leyva’s death was investigated by Gary Bowen, a special investigator with the Riverside County Sheriff’s Department homicide unit. Bowen found four text messages on Leyva’s telephone sent from Campbell’s telephone on the day of the shooting at 11:14 p.m., 11:15 p.m., 11:47 p.m., and 11:48 p.m. Bowen interviewed Campbell the day after the shooting. Campbell had orange-tinted hair.
Campbell told Bowen that he met a Hispanic male at a hookah lounge in the City of Riverside. He got the man’s telephone number for the purpose of conducting marijuana transactions. Thereafter, and on the evening of the incident, Campbell planned to obtain marijuana from the person he met at the hookah bar by “tak[ing] it from him.”
Campbell set up the transaction via text earlier in the evening before the first visit to Leyva’s house. When he later returned to the house, the garage door was closed. He sent a text message to Leyva to get him to come outside. Campbell had a gun with him and said he used the gun. He did not know that anyone else had a gun.
Leyva and De La Torre met Campbell outside Leyva’s house. When De La Torre produced the marijuana, Campbell took the marijuana with his right hand. He pulled out his gun with his left hand and pointed it at De La Torre and Leyva. He said: “[D]on’t do anything stupid.” Campbell then got back into his vehicle before any shots were fired.
3. Terence Harris
Harris was in custody as a result of the incident. He testified that two days before the shooting, he and Campbell were at a hookah bar. Campbell and a Hispanic man talked and exchanged telephone numbers.
On the evening of the shooting, Harris was at “J.B.’s” house, hanging out with people who wanted to smoke marijuana. Campbell, Thurston Stewart, Kelton Pounds, and Christian Baker were there, among others. Fort was not there. Campbell said he knew where they could get some marijuana.
Harris, Campbell, Pounds, and Baker discussed a plan to go to Leyva’s house, “snatch the marijuana and run.” When they arrived at Leyva’s house, the garage door was open. Pounds talked with individuals in the garage for about five minutes while the other three stood at the end of the driveway. Pounds was shown marijuana. They did not take the marijuana at that time because there were too many people present.
When they got back to J.B.’s house, the group discussed a plan to return to Leyva’s house with more people and steal the marijuana, with “some bit of force” if necessary. Harris knew that Baker and Campbell had guns. They discussed getting another gun. Stewart said his “cousin, ” Fort, had a gun.
They went to pick up Fort. Harris knew Fort was coming along “to provide a gun.” After picking up Fort, they went back to Leyva’s house. Harris initially testified that he did not remember if, after Fort got in the car, there was any conversation about what they were going to do at Leyva’s house. He later testified that after Fort got in the car there was a discussion about committing the robbery.
They took two cars to Leyva’s house. When they arrived, six people got out of the cars. Someone shouted to the people in the house to come outside. They waited for five or 10 minutes before some people came outside. Campbell talked to them. An individual handed Campbell a bag and Campbell passed it to Harris. Campbell then pulled out a gun. As Campbell and Harris were running to the cars, Harris heard somebody from ...