Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. BA259886, Kathleen Kennedy-Powell, Judge.
Stephen Temko, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Robert F. Katz, Supervising Deputy Attorney General, and Richard S. Moskowitz, Deputy Attorney General, for Plaintiff and Respondent.
MALLANO, Acting P. J.
Joel Argueta appeals from the judgment entered following a jury trial in which he was convicted of first degree murder, with further findings of the special circumstance that the murder was committed while defendant was engaged in an attempted robbery and that defendant personally and intentionally discharged a handgun, proximately causing death. Defendant contends that because of insufficient corroborating evidence to establish the special circumstance finding, that finding should be reversed with directions to dismiss it, and that his conviction of first degree murder should also be reversed. He further contends that the accomplice instruction given to the jury was prejudicially defective. We find merit in defendant’s first contention and therefore reverse the special circumstance finding, ordering that it be dismissed, and reverse the conviction of first degree murder. Based on this disposition, we do not discuss defendant’s contention of instructional error.
BACKGROUND
On May 14, 2002, a Mother’s Day party was held at a Los Angeles residence located next door to where defendant lived. Attendees included defendant and his friends, Diego Zuniga and David Rodriguez. Others in attendance included Lizbeth Guzman and Maria Deras. A substantial amount of alcohol was consumed at the celebration.
During the course of the festivities, Guzman went out on an errand. Deras, who was intoxicated, arranged to have a taxi cab pick her up. As the taxi arrived for Deras, Guzman, who was just returning from her errand, accidentally backed her van into the taxi, damaging its grill. The cabdriver, Victor Moran, demanded payment for the damage. The two argued about what should be done, including how much should be paid. The argument was heard by defendant, Zuniga, and Rodriguez. Defendant interceded in the heated exchange, during which Moran insulted defendant in Spanish. Defendant told Moran to “take $50 and just get out.” Guzman ultimately gave Moran between $70 and $80. After that, Moran got into the taxi cab and left with Deras.
Zuniga, who had pleaded guilty to lesser charges in exchange for his truthful testimony, testified that as soon as the taxi left, defendant and Rodriguez suggested that, along with Zuniga, they follow the taxi in Zuniga’s car. The three did so, with Zuniga driving, defendant in the front passenger seat, and Rodriguez sitting behind defendant. As they drove behind Moran, defendant told Zuniga, “[W]e’re just going to scare [Moran] and take his money.” Moran drove the taxi onto the 110 Freeway, where Zuniga soon lost sight of it. Zuniga got off the freeway at Exposition Boulevard, and as he proceeded down the off-ramp he saw Moran stopped at a red light. Zuniga drove his car to the left of Moran and stopped. Defendant said something to the effect of, “‘I’m going to pop him. I’m going to jack him.’” Zuniga told defendant not to do so. Nevertheless, defendant opened the door, got out of Zuniga’s car, pulled a gun and fired two rounds at Moran. Defendant then got back into the car and Zuniga drove away. As the three men fled, defendant threw his gun out of the car window. Defendant later told Zuniga, “‘I fucked up.’”
Rodriguez, who also testified under a plea agreement, said that as defendant got into the car he asked, “‘You want to jack [Moran] up?’” Rodriguez explained that this meant, “Like you go to hurt him, and if he got something valuable, just take it.” Rodriguez made “an assumption” that the object of the pursuit was to retrieve the money that Guzman had given to Moran for damage to the taxi cab and keep anything extra for themselves. Rodriguez also saw defendant get out of Zuniga’s car and fire two shots at Moran, shattering the driver’s side window of the taxi cab.
Deras, who was in the taxi cab when the shots were fired, testified that she saw defendant and Rodriguez outside of the car in which they had been riding and heard shots being fired. A friend of Deras’s testified that when Deras returned home after the incident, she said that defendant had killed the taxi driver. (When first giving a statement to the police, Deras said she had seen Rodriguez holding a gun at the time of the shooting.)
Moran died from a single gunshot wound to the chest that perforated his heart. Although defendant’s gun was recovered from where it had been thrown out of Zuniga’s car, a positive match could not be made to the fatal bullet.
Defendant did not present any evidence on his behalf. After both sides rested, he made a motion to dismiss based on inadequate corroboration of accomplice testimony. The motion was denied.
The prosecutor argued the case to the jury on theories that defendant was either the actual killer, or an aider and abettor, in a murder committed with malice; a felony murder based on attempted robbery; or a murder that was the natural and probable consequence of an assault with a deadly weapon on Moran. For purpose of the special circumstance allegation, the prosecutor argued that defendant was either the actual killer or a major participant in a felony murder based on attempted robbery. The jury was instructed on these theories and on the underlying felonies. The jury was further instructed that Zuniga and Rodriguez were accomplices as a matter of law and that the special circumstance could not be found true based on accomplice testimony unless that testimony had been corroborated.
Defendant argued to the jury that Zuniga’s and Rodriguez’s testimony was unreliable and that the prosecution had not shown defendant was the actual killer or had any knowledge that Moran would be shot.
DISCUSSION
“The law requiring corroboration of accomplice testimony is well established. ‘A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. . . .’ [Citation.] ‘“The requisite corroboration may be established entirely by circumstantial evidence. [Citations.] Such evidence ‘may be slight and entitled to little consideration when standing alone. [Citations.]’”’ [Citations.] ‘“Corroborating evidence ‘must tend to implicate the defendant and therefore must relate to some act or fact which is an element of the crime but it is not necessary that the corroborative evidence be sufficient in itself to establish every element of the offense charged.’ [Citation.]”’ [Citations.] In this regard, ‘the prosecution must produce independent evidence which, without aid or assistance from the testimony of the accomplice, tends to connect the defendant with the crime charged. [Citation.]’ [Citation.] ‘“Corroborating evidence is sufficient if it substantiates enough of the accomplice’s testimony to establish his credibility [citation omitted].”’ [Citation.]” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1128.)
1. Special Circumstance Finding
The record is replete with evidence that corroborates Zuniga’s and Rodriguez’s accomplice testimony to the effect that defendant shot Moran. But defendant’s focus is on the lack of evidence to corroborate the special circumstance allegation that the murder was committed as part of an attempted robbery, as required by People v. Hamilton (1989) 48 Cal.3d 1142, 1177, and People v. Davis (2006) 36 Cal.4th 510, 544, footnote 11 [independent corroboration required to prove felony-based special circumstances]. We agree with defendant that there was insufficient corroborating evidence.
Penal Code section 211 defines robbery as “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.” “To secure a robbery conviction, the following elements must be proved: (1) A person had possession of property of some value however slight; (2) the property was taken from that person or from his immediate presence; (3) the property was taken against the will of that person; (4) the taking was accomplished by either force or fear; and (5) the property was taken with specific intent permanently to deprive that person of the property. [Citation.]” (People v. Carrasco (2006) 137 Cal.App.4th 1050, 1057.)
“The crime of attempt occurs when there is a specific intent to commit a crime and a direct but ineffectual act done towards its commission. ([Penal Code] § 21a.) ‘“An attempt connotes the intent to accomplish its object, both in law . . . and in ordinary language.” [Citation.]’ [Citation.] The act required must be more than mere preparation, it must show that the perpetrator is putting his or her plan into action. That act need not, however, be the last proximate or ultimate step toward commission of the crime. [Citation.] Where the intent to commit the crime is clearly shown, an act done toward the commission of the crime may be sufficient for an attempt even though that same act would be insufficient if the intent is not as clearly shown. [Citation.]” (People v. Bonner (2000) 80 Cal.App.4th 759, 764.)
Here, evidence that might conceivably relate to robbery includes defendant’s conduct in intervening in the argument about Guzman’s payment for damage to Moran’s taxi cab, during which Moran insulted defendant in Spanish and defendant told Moran to take $50 and go away. The Attorney General suggests that “[a] reasonable jury certainly could have inferred from all this that [defendant] had a motive to get even with Moran by ‘recovering’ the money [Guzman] paid him when she departed.” In addition, non-accomplice Deras testified that Moran was killed by someone who was standing outside. Again, according to the Attorney General, “[h]ad [defendant] intended only to shoot Moran, and not to rob him at the same time, there would have been no reason for him to get out of the car at all. [Defendant] could have simply stayed in his seat, opened the window, and still had a shot from point-blank range. The fact that [defendant] nevertheless decided to get out of the car before shooting would have plainly supported an inference that his intention was not just to shoot Moran, but to rob him as well.”
We reject the Attorney’s General’s hypotheses because they fail to “‘“do more than raise a conjecture of suspicion of guilt.”’” (People v. Szeto (1981) 29 Cal.3d 20, 27.) Excluding, as we must, the accomplice testimony about a desire to “jack” Moran, the record established that defendant participated in a heated argument over Guzman’s paying Moran for damage Guzman had done to Moran’s taxi cab. When the dispute was settled, Moran drove away with Deras as his passenger. Defendant, Zuniga, and Rodriguez followed Moran and caught up with him. Defendant then got out of Zuniga’s car and fired two shots through Moran’s closed window, one of which inflicted a fatal wound to Moran’s heart. Defendant next got back into Zuniga’s car and fled. No evidence was presented that defendant asked Moran for money or attempted to open the door of the cab or otherwise put himself in a position to take money from Moran. The record is thus devoid of any independent evidence that would tend to establish any connection with robbery.
Given the lack of evidence independent of accomplice testimony to support the crime of attempted robbery, the robbery-based special circumstance must be reversed for insufficient corroborating evidence. (People v. Davis, supra, 36 Cal.4th at p. 544, fn. 11; People v. Hamilton, supra, 48 Cal.3d at p. 1177.) And because any further proceedings on a special circumstance are barred under the principles of double jeopardy when substantial evidence of the special circumstance is lacking, the special circumstance of murder during the commission of an attempted robbery must be dismissed. (Burks v. United States (1978) 437 U.S. 1, 14–15 [98 S.Ct. 2141]; People v. Morris (1988) 46 Cal.3d 1, 22, disapproved on another point in In re Sassounian (1995) 9 Cal.4th 535, 543–544, fn. 5; People v. Green (1980) 27 Cal.3d 1, 62.)
2. Conviction of First Degree Murder
The lack of substantial evidence to support the special circumstance also undermines the verdict of first degree murder to the extent it rests on the theory of felony murder, which also requires independent corroboration of the underlying felony. (See People v. Rodrigues (1994) 8 Cal.4th 1060, 1129–1130.) But as noted above, felony murder was only one of the theories of first degree murder presented to the jury. To determine whether the insufficient theory of murder during the commission of an attempted robbery requires reversal of the first degree murder conviction itself, we turn to People v. Guiton (1993) 4 Cal.4th 1116.
Guiton teaches that, when a factually sufficient ground exists to support the jury’s verdict, we must not assume that the jury relied on the insufficient ground. (People v. Guiton, supra, 4 Cal.4th at p. 1127.) Thus, where, as here, “the inadequacy of proof is purely factual, of a kind the jury is fully equipped to detect, reversal is not required whenever a valid ground for the verdict remains, absent an affirmative indication in the record that the verdict actually did rest on the inadequate ground.” (Id. at p. 1129.)
“The error is therefore one of state law subject to the traditional Watson test (People v. Watson (1956) 46 Cal.2d 818, 836 []) applicable to such error. [Citation.] Under Watson, reversal is required if it is reasonably probable the result would have been more favorable to the defendant had the error not occurred. [Citation.] [¶] In determining whether there was prejudice, the entire record should be examined, including the facts and the instructions, the arguments of counsel, any communications from the jury during deliberations, and the entire verdict. [Citation.] Furthermore, instruction on an unsupported theory is prejudicial only if that theory became the sole basis of the verdict of guilt; if the jury based its verdict on the valid ground, or on both the valid and the invalid ground, there would be no prejudice, for there would be a valid basis for the verdict. [The Supreme Court] thus adopt[ed] the following test. [T]he appellate court should affirm the judgment unless a review of the entire record affirmatively demonstrates a reasonable probability that the jury in fact found the defendant guilty solely on the unsupported theory.” (People v. Guiton, supra, 4 Cal.4th at p. 1130.)
The murder verdict in this case was accompanied by a true finding of special circumstance, which could be reached only if the jury believed defendant had committed an attempted robbery. Indeed, although multiple theories of liability for murder were available, the jury was instructed under CALCRIM No. 403 that “[b]efore you may decide whether the defendant is guilty of murder, you must decide whether he is guilty of attempted robbery or assault with a deadly weapon . . . .” Only after this instruction was given was the jury instructed on the elements of homicide. And once the jury received the necessarily complex set of instructions on the multiple homicide theories, the verdict was reached with remarkable alacrity. Thus, after four days of trial testimony, the jury retired to begin deliberations on the sixth day at 10:40 a.m. and returned with a verdict at 4:40 p.m. the same day, including having taken a 90-minute lunch break.
We conclude that under these circumstances the jury likely considered the felony-based murder and special circumstance theories as a first order of business, determining that defendant was the actual killer or an active participant in the murder. Although the inadequacy of proof of felony murder was a factual matter that the jury was presumed to be “fully equipped to detect” (People v. Guiton, supra, 4 Cal.4th at p. 1129), such detection was rendered extremely difficult here because the inadequacy involved the more subtle question of accomplice corroboration of the uncharged crime of attempted robbery rather than the murder itself. As such, the record affirmatively demonstrates a reasonable probability that the jury found defendant guilty of first degree murder based solely on an insufficient felony-murder theory. The verdict must therefore be reversed.
DISPOSITION
The judgment is reversed. The special circumstance finding that accompanied the judgment is also reversed with directions that it be dismissed.
We concur: ROTHSCHILD, J., JACKSON, J.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.