Opinion
B190129
4-20-2007
THE PEOPLE, Plaintiff and Respondent, v. DERRYL MARCEL MINNER, Defendant and Appellant.
Robert H. Pourvali, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr. and Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
INTRODUCTION
Appellant Derryl Marcel Minner challenges his robbery and assault with a firearm convictions on grounds including the sufficiency of the evidence. We conclude there was insufficient evidence appellant knew of and shared the intent of the robbers or that he engaged in any conduct, or made any statements that aided, promoted, encouraged or instigated the commission of the crimes.
BACKGROUND AND PROCEDURAL HISTORY
Two men robbed a KB Toy store (KB) at The Citadel outlet mall on Christmas Eve, 2004. Antione Pruitt and Johnny Bell were apprehended on foot in the area and charged with committing the crimes at KB. Appellant, who was driving in the area and knew Bell and Pruitt, was charged with the same crimes.
Appellant was tried alone. The record does not indicate the outcome of the charges against Bell and Pruitt.
A jury convicted appellant of second degree robbery and two counts of assault with a firearm. It further found that a principal was armed in the commission of each offense. The court found appellant had suffered a prior serious or violent felony conviction. It sentenced appellant to 16 years in prison.
Before the case was submitted to the jury, a second charge of robbery was dismissed on the Peoples motion.
DISCUSSION
Appellant contends the evidence was insufficient to establish his criminal liability as an aider and abettor, as the evidence did not show that he shared the robbers intent or that he actually aided and abetted the commission of the crimes through his words or conduct.
To resolve this issue, we review the whole record in the light most favorable to the judgment to decide whether substantial evidence supports the conviction, so that a reasonable jury could find guilt beyond a reasonable doubt. (People v. Ceja (1993) 4 Cal.4th 1134, 1138.)
Because there was no evidence appellant was one of direct perpetrators who entered KB, pointed a gun at employees and customers, and stole cash, his guilt depended upon proof that he aided and abetted Bell and Pruitt. A person aids and abets the commission of a crime when he or she, with knowledge of the unlawful purpose of the perpetrator, and with the intent or purpose of committing, facilitating or encouraging commission of the crime, by act or advice, aids, promotes, encourages or instigates the commission of the crime. (People v. Prettyman (1996) 14 Cal.4th 248, 259; People v. Beeman (1984) 35 Cal.3d 547, 561.)
Teresita Munoz was inside KB when a man wearing a ski mask came in and told everyone to get down on the floor. She complied at first, but then ran out the back door, past a fence, and across Hoefner Avenue. She saw a white Malibu driven by appellant coming slowly up Hoefner Avenue from Telegraph Road toward her. The trunk of the Malibu was open all the way. Appellant was looking around, to his left and right, as if he were "in a panic." Appellant made a "quick U-turn" to return to Telegraph Road. Munoz ran toward the Carls Junior restaurant on Telegraph Road. Appellant made a right turn on Telegraph Road and pulled into the Carls Junior parking lot and continued to look around. Munoz left the area, and therefore did not see what appellant did after arriving in the restaurant parking lot.
KB employee Carlos Vargas testified he ran out the back door of the store during the robbery and hid behind a wall. After a period of time, he saw the two robbers run out the back door of KB and ran past him. He followed them at a distance. They ran toward Hoefner Avenue, and then up Hoefner to Flotilla Street, where they turned left and hid behind a wall. The robbers looked around, "jump[ed] around" and one of them spoke on a mobile phone held in front of his face, as if he were using a walkie-talkie. They then ran toward the railroad tracks. Vargas lost sight of them behind a tree and walked back to KB.
Jose Bonilla testified that a little before noon he was driving on Hoefner Avenue toward Flotilla Street. Two Black men ran across Hoefner in front of his car and headed toward Flotilla. The men had bags of merchandise and one of them had a gun. One of the men was wearing a black beanie. People appeared to be running from them. The men were looking around as they ran. Bonilla testified, "Theyre looking out for something or theyre looking out for someone and theyre maybe watching something like police to come out for them or something." Bonilla made a 360 degree turn in his car and followed the men, who were now walking. They walked to the corner of Hoefner and Flotilla, where Bonilla saw them changing from the clothes they were wearing into clothing from the bags they were carrying. They were also looking up and down. Bonilla turned right on Flotilla, made a U-turn, and parked along the street, facing the two men, as he talked on his mobile phone with the sheriffs department. One or both men talked into walkie-talkies or mobile phones. Both of them were "looking for something up and down." They looked around them, left and right, and ducked down when cars came by. A white Malibu came from behind Bonillas car and passed him. The driver was a Black male, about 20, who was dressed exactly like the two men who ran in front of Bonillas car, and held a mobile phone that looked exactly like the one "the other guy had." The driver was speaking on the phone. The two men whom Bonilla had followed "ducked down." The Malibu made a U-turn at the intersection of Hoefner and Flotilla and drove back towards Bonillas position. One of the men Bonilla had followed stood up and looked around. A sheriffs patrol car came up behind them. One of the men ran, and the other stayed where he was. Bonilla later identified the white car.
Surprisingly, defense counsel did not object to this highly speculative testimony.
Deputy Hector Andujo testified that he was sitting in his patrol car on Flotilla Street, just west of Hoefner, when he saw a white Malibu was driving from northbound Camfield Avenue onto eastbound Flotilla Street. Appellant was the driver of the Malibu. Appellant stopped, looked at the deputies, and began to make a U-turn. Because Andujo had heard that a white Malibu might be involved in the crimes, he had another deputy stop the Malibu and detain appellant. At the time appellant approached the intersection, sheriffs deputies had already set up a roadblock at the intersection of Flotilla and Hoefner. Cars approaching the intersection had no choice except making a U-turn. Two mobile phones were recovered from the Malibu. One was found on the front passenger seat. Both were booked into evidence.
Detective Manuel Garza testified he interviewed appellant, who said he was Christmas shopping. He said he planned to go to Shoe City. Appellant described his route of travel for Garza. According to Garza, appellant had already passed Shoe City when his car was stopped by deputies. Appellant denied being near the Carls Junior parking lot and denied knowing Bell and Pruitt.
The parties stipulated at trial that appellant, Bell and Pruitt knew one another. They further stipulated that appellants nickname was D-Rock, Bells was Baby Hit, and Pruitts was Brazy.
Garza further testified that he examined the mobile phones recovered from Bell and from appellants car. Appellant told Garza that one of the phones from the car was his. Appellants "chirp" number for direct connect radio contact in the Nextel system was stored as a contact on Bells phone, under the label "DR." Bells "chirp" number was listed as a contact on appellants phone, under the label "BH." Garza checked the call history on appellants phone, which indicated he called Bells phone at 12:22 p.m. on December 24.
Dennis Wiles, of Sprint-Nextel, testified that his companys call records for appellants phone showed "chirp" calls to Bells phone at 12:20 p.m. and 12:22 p.m. on December 24. The first of these calls lasted 59.2 seconds, and the second lasted 21.4 seconds. There were no other "chirp" calls from appellants phone to Bells on December 24, and no other "chirp" calls between the two phones during the period of December 22 through December 24. When making a "chirp" call, the user may hold the phone to his ear or in front of him.
According to Vargas, the robbery occurred between 11:30 and noon. Sheriffs Department records indicated the original 911 call regarding the robbery at KB was received at 12:16 p.m.
Viewing this evidence in the light most favorable to the judgment, it is clear that appellant was driving around in the vicinity of The Citadel in a suspicious manner. When Munoz first noticed him, he was driving on the same street and in the same direction as the robbers ran and the trunk of his car was open. But instead of following the robbers and picking them up in the car, appellant made a U-turn and headed away from them. When he pulled into the parking lot of Carls Junior, appellant appeared to be looking for someone or something. When Bonilla first saw appellant, he was on a different street on the other side of the shopping center. He was approaching the location of the robbers, and the jury could correlate the Nextel records with observations by Vargas and Bonilla to reasonably infer that appellant had spoken to, or was at that moment speaking to, the robbers by mobile phone. However, as he neared the robbers location, appellant again made a U-turn to travel away from them. When Andujo saw appellant driving, appellant was again heading toward the place where the robbers last had been seen. No inference legitimately may be drawn from his U-turn at that time, as the deputies had the intersection blocked and all cars that did not wish to remain stopped necessarily made U-turns there. Appellants subsequent denial that he knew Pruitt and Bell supports an inference that he knew or suspected Bell and Pruitt had done something illegal, as well as an inference of appellants own consciousness of guilt. Appellants claim to be going to a store he had already passed and his denial that he went into the Carls Junior parking lot similarly indicates a consciousness of guilt. Appellants behavior was undeniably suspicious.
However, evidence that merely raises a strong suspicion of guilt is insufficient to support a conviction. (People v. Thompson (1980) 27 Cal.3d 303, 324.) Suspicion is not evidence; it merely raises a possibility, which is an insufficient basis for a factual inference. (Ibid.) Any inference that appellant drove Bell and Pruitt to The Citadel is necessarily based exclusively upon speculation, which is similarly insufficient. (People v. Marshall (1997) 15 Cal.4th 1, 35.)
Without resorting to speculation, the jury could reasonably have inferred appellant knew Bell and Pruitt were in the same general area, was in communication with them by mobile phone, and was looking for them as he drove around. Even assuming that the jury could infer that appellant intended to give Bell and Pruitt a ride, nothing shows when the supposed agreement was made. Most importantly, nothing supports an inference that appellant knew of or shared the intent of Bell and Pruitt before they committed the crimes. The only communications between appellant and Bell shown by the evidence followed the completion of the crimes, and appellants knowledge that Bell and Pruitt had committed a crime and his consciousness of guilt may have been acquired during those communications. This possibility is supported by appellants conduct in twice approaching the robbers, and then reversing and driving away from them. If he shared their intent regarding the robbery at KB and was in communication with them, as shown by the telephone calls, he should have been able to find them easily, pick them up, and flee the area to enhance everyones chance of safely escaping with the loot. Absent evidence that appellant knew of and shared Bells and Pruitts intent, appellant was guilty, at most, as an accessory.
Moreover, no evidence indicated that appellant engaged in any conduct, or made any statements that aided, promoted, encouraged or instigated the commission of the crime. There was no evidence of the content of any statements made by appellant. There was no evidence he drove Bell and Pruitt to The Citadel, and he clearly did not pick them up, even if he intended to do so. Although respondent argues that appellants role in the operation was to be the getaway driver, the evidence shows only that he was driving. It is undisputed that he did not drive the men away from the scene or even pick them up. There is no evidence of any planning session at which roles might have been assumed or assigned. Respondents argument relies heavily on speculation.
The evidence, therefore, was insufficient to support the jurys implicit finding that appellant aided and abetted Bell and Pruitt in the robbery and aggravated assaults. Appellants convictions on all counts must be reversed.
In light of this disposition, we need not address appellants remaining contentions.
DISPOSITION
The judgment is reversed.
We concur:
RUBIN, Acting P. J.
FLIER, J.