Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. SC082720A. Kenneth C. Twisselman II, Judge.
Jerry D. Whatley, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Robert Gezi, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Kane, J.
Defendant Donnell Lavert Robinson was tried four times for acts committed during a home invasion. The only conviction now remaining is assault with a firearm. On appeal, he contends (1) the trial court erred by denying his motion for a new trial on the ground that the court failed to give a unanimity instruction; (2) the conviction was barred by the merger doctrine; (3) the conviction was barred by collateral estoppel; and (4) the trial court erred at sentencing by failing to determine that defendant had served his entire sentence and releasing him on parole. We affirm.
FACTUAL AND PROCEDURAL SUMMARY
These facts are taken from the 2007 trial.
Clifford Edison, Jr. and his girlfriend, V., lived together. On the afternoon of May 30, 2001, there was a knock on the front door. When Edison went to answer the door, defendant and four other masked and armed men forced their way into the house. Four of the intruders immediately attacked Edison, while defendant took V. aside and held a gun to her head. V. recognized defendant through his mask because he frequented the house. The other four intruders beat Edison until one of them shot him in the head. The intruders left and V. called the police, but Edison died in her arms. V. identified defendant and described some of the other intruders to the police. She said that many people would come to the house to buy marijuana. Defendant’s name was on Edison’s list of people who owed him money for marijuana. Defendant was arrested the next day.
We briefly summarize the more than seven years of proceedings that followed.
First Trial—2001
On August 1, 2001, the Kern County District Attorney charged defendant with the first degree murder of Edison (Pen. Code, § 187; count 1); conspiracy to commit first degree murder (§§ 182, 187; count 2); and assault with a firearm on V. (§ 245, subd. (a)(2); count 3). Specifically, the information alleged in relevant part:
All statutory references are to the Penal Code unless otherwise noted.
“Count: 001, on or about May 30, 2001, [defendant] and [codefendant] did willfully, unlawfully, deliberately, with premeditation and malice aforethought, murder Clifford Edison Jr., a human being, in violation of … section 187(a), a felony.
“It is further alleged that the murder of Clifford Edison Jr., was committed by [defendant], while said person was engaged in the commission or attempted commission of burglary, in violation of … section 460(a), within the meaning of … section 190.2(a)(17)(g).
“It is further alleged that [defendant] did personally use a firearm during the commission of murder, first degree[,] within the meaning of … section 12022.53(b).
“It is further alleged that the murder of Clifford Edison Jr., was committed by [codefendant], while said person was engaged in the commission or attempted commission of burglary, in violation of … section 460(a), within the meaning of … section 190.2(a)(17)(g).
“It is further alleged that [codefendant] did personally use a firearm during the commission of murder, first degree[,] within the meaning of … section 12022.53(b).
“Count: 002, on or about May 30, 2001, [defendant] and [codefendant] did willfully and unlawfully conspire together or with another person or persons … to commit the crime[] of murder[,] first degree ….
“It is further alleged that [defendant] did personally use a firearm during the commission of murder, first degree[,] within the meaning of … section 12022.53(b).
“It is further alleged that [codefendant] did personally use a firearm during the commission of murder, first degree[,] within the meaning of … section 12022.53(b).
“Count: 003, on or about May 30, 2001, [defendant] and [codefendant] did willfully and unlawfully commit an assault on [V.], with a firearm, to wit: handguns, in violation of … section 245(a)(2), a felony….
“It is further alleged as to [defendant] that in the commission or attempted commission of the above offense he[] personally used a firearm, within the meaning of … section 12022.5(a).
“It is further alleged as to [codefendant] that in the commission or attempted commission of the above offense he[] personally used a firearm, within the meaning of … section 12022.5(a).” (Unnecessary capitalization omitted.)
A jury found defendant not guilty of first degree murder but guilty of second degree murder on count 1, and guilty as charged on counts 2 and 3. The jury also found true the firearm enhancement allegations as to all counts. The court sentenced defendant to a total of 25 years to life, plus 10 years.
Defendant appealed. On August 13, 2003, we reversed the conviction on count 2.
Second Trial—2003
Following our reversal on count 2, in a December 2003 court trial, defendant was found not guilty on count 2. On the remaining convictions, defendant was sentenced to 15 years to life, plus 10 years for an enhancement. On January 3, 2007, the superior court decided defendant’s habeas corpus petition based on ineffective assistance of counsel. Because the People failed to file a return, the superior court accepted the petition’s allegations as true, found a prima facie case for relief, and set aside the remaining convictions on counts 1 and 3. Defendant was transferred to the sheriff’s custody.
Third Trial—2007
In September 2007, a jury found defendant guilty of second degree murder on count 1 and guilty of assault with a firearm on count 3. The jury found true the firearm use allegations.
In December 2007, the trial court granted defendant’s motion for a new trial on count 1 after the prosecutor conceded that the felony-murder theory should not have been based on an underlying assaultive felony. The court sentenced defendant to four years for the assault, plus five years for an enhancement (later corrected to four years). The court credited defendant with 2,382 actual days of custody, plus 357 conduct credits, for a total of 2,739 days.
Fourth Trial—2008
In September 2008, a jury found defendant not guilty of second degree murder on count 1. On September 24, 2008, the court sentenced him to four years for the assault, plus four years for an enhancement, and credited him with 2,674 actual days of custody, plus 78 presentence credits, for a total of 2,752 days. The court remanded defendant into the custody of the California Department of Corrections and Rehabilitation (CDRC).
DISCUSSION
I. Unanimity Instruction
Defendant contends there were two acts that could have supported the assault charge—the assault against V. and the assault against Edison—and therefore the trial court at the 2007 trial had a duty to instruct the jurors on unanimity regarding which act constituted the assault. For this reason, he claims the court should have granted his motion for a new trial on count 3. Defendant asserts that although the information stated that the assault in count 3 was based on the assault against V., this was not enough and some jurors might have relied on the assault against Edison. We see no error.
“[T]o find a defendant guilty of a particular crime, the jurors must unanimously agree that the defendant committed the same specific act constituting the crime within the period alleged. [Citation.]” (People v. Crow (1994) 28 Cal.App.4th 440, 445; see also Cal. Const., art. I, § 16; People v. Jones (1990) 51 Cal.3d 294, 321.) “When an accusatory pleading charges the defendant with a single criminal act, and the evidence presented at trial tends to show more than one such unlawful act, either the prosecution must elect the specific act relied upon to prove the charge to the jury, or the court must instruct the jury that it must unanimously agree that the defendant committed the same specific criminal act. [Citation.] The duty to instruct on unanimity when no election has been made rests upon the court sua sponte. [Citation.]” (People v. Melhado (1998) 60 Cal.App.4th 1529, 1534.)
On September 26, 2007, the clerk read the information to the jury panel:
“Count one. On or about May 30th, 2001, [defendant] did willfully and unlawfully, with malice aforethought, murder Clifford Edison, Junior, a human being, in violation of … Section 187(a), a felony, charged as murder in the second degree.
“Count [three]. On or about May 30th, 2001, [defendant] did willfully and unlawfully commit an assault on [V.], with a firearm, to wit: A handgun, in violation of … Section 245(a)(2), a felony.”
The parties agreed with the trial court’s suggestion that they refer to count 3 as count 2, to avoid confusion. We choose to refer to the assault count as count 3 throughout this opinion.
The same day, the prosecutor described the crimes in his opening statement:
“Now, while [the beating of Mr. Edison] was going on, the defendant was not with these other individuals who were beating Mr. Edison with their guns, he was with [V.] and had a gun pointed at her face, telling her not to move.”
On September 28, 2007, after the jury was instructed, the prosecutor argued his theory to the jury:
“Back on May 30th of 2001, as I mentioned at the beginning of this case, the defendant and four other individuals drove to an area on South Chester, to the house of [V.] and Clifford Edison, and before they went in, they put on masks, they pushed through the door, they all had guns.
“The defendant helped detain [V.] while the other four began to beat, hit, kick, and punch Clifford Edison, until they finally ended his life.
“While they were doing this, as [V.] described to you, ladies and gentlemen of the jury, the defendant was there, with the mask that she drew for us, with that gun in his hand.
“And she described for us how he had … that gun pressed up against her forehead.”
During argument, the prosecutor explained his theory that defendant did not shoot Edison, but was an aider and abettor of the murder:
“Obviously we’re not saying that [defendant] was the individual who pulled the trigger on the gun that ended [Edison’s] life. [¶] That’s not what we’re saying. [¶] But it doesn’t have to be. [¶] He was there … and … the way the law reads is, he aided and abetted in the commission of a crime, and when you do that, … you are guilty of murder, as if he was the person who pulled the trigger.”
Although the verdict forms did not refer to the victims of the crimes, they did refer to the crimes as charged in the information. The information, as read to the jurors, referred to the victims. Furthermore, the prosecutor’s statement and argument both established the prosecution theory that defendant assaulted V. while his cohorts beat and shot Edison. Under these circumstances, we agree that the prosecutor “elect[ed] the specific act relied upon to prove” the assault count. (People v. Melhado, supra, 60 Cal.App.4th at p. 1534.) Accordingly, the court had no duty to instruct sua sponte with a unanimity instruction, and the court’s denial of the motion for a new trial on this ground was not an abuse of discretion.
In People v. McNeill (1980) 112 Cal.App.3d 330, cited by defendant, the information’s assault charge alleged several different victims and the jurors were not instructed that they had to agree on a single victim. (Id. at p. 335.) Because the appellate court could not say that the jurors agreed unanimously upon the act constituting the assault, the court was required to reverse the judgment. (Id. at p. 336.) Here, the information, as read to the jurors, listed a single assault victim, V.
II. Merger Doctrine
Defendant invokes two doctrines—the merger doctrine and collateral estoppel—to support his theory that the 2008 murder acquittal barred the 2007 assault conviction. Both fail, as we will explain.
First, defendant asserts that under the merger doctrine of People v. Ireland (1969) 70 Cal.2d 522 (Ireland), the assault merged with the murder.
Second degree murder is an unlawful killing with malice, but without premeditation and deliberation. (People v. Chun (2009) 45 Cal.4th 1172, 1181 (Chun).) Malice can be either express or implied. (Ibid.) Express malice is a manifest deliberate intent to unlawfully take a life. (Ibid.) Implied malice has “‘both a physical and a mental component. The physical component is satisfied by the performance of “an act, the natural consequences of which are dangerous to life.” [Citation.] The mental component is the requirement that the defendant “knows that his conduct endangers the life of another and … acts with a conscious disregard for life.” [Citation.]’ [Citation.]” (Ibid.) The second degree felony-murder rule is a shortcut to murder; it makes a killing that occurs during the commission of certain felonies a murder, without the necessity of proving the mental component of malice. (Id. at p. 1182.)
In Ireland, the Supreme Court established the doctrine of merger, concluding that an underlying felony that is an integral part of a killing merges into the killing. As a result, there is no independent underlying felony upon which to base the felony-murder rule and murder must be proved in the ordinary way—with malice. (Ireland, supra, 70 Cal.2d at p. 539.) In Chun, the Supreme Court recently explained that the underlying felony merges with the killing if the felony is assaultive in nature. (Chun, supra, 45 Cal.4th at p. 1200.) A felony is assaultive if it involves a threat of immediate violent injury, and the assaultive nature of a felony is determined by its elements, not the facts of the case. (Ibid.)
Defendant argues that if the 2007 assault conviction was based on the assault against Edison, then the assault against Edison merged with the murder of Edison, and because defendant was found not guilty of the murder in 2008, the assault conviction was barred. This argument fails because we have already determined that the assault against Edison was not the basis of the assault conviction.
Defendant further asserts, without any discussion, that even if the 2007 assault conviction was based on the assault against V., the assault merged with the murder because the prosecution’s theory was that the assault against V. aided and abetted the murder of Edison. This contention fails because defendant’s assault against V. constituted an independent crime. The assault against V. was connected to the murder only by an aiding and abetting theory; the assault against V. was not the underlying felony supporting the murder under the felony-murder rule.
In sum, the assault against V. did not merge with the murder of Edison.
III. Collateral Estoppel
Second, defendant argues that the principles of collateral estoppel bar the 2007 assault conviction because certain issues were necessarily decided in the 2008 murder acquittal.
As explained in Ashe v. Swenson (1970) 397 U.S. 436, under the principles of collateral estoppel, “‘when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.’ This principle applies not just in civil litigation, but also in criminal law. [Citation.] In criminal cases, the doctrine of collateral estoppel is not to be applied with hypertechnicality, ‘but with realism and rationality. Where a previous judgment of acquittal was based upon a general verdict, as is usually the case, this approach requires a court to “examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.”’ [Citation.]” (People v. Gordon (2009) 177 Cal.App.4th 1550, 1557.)
Defendant concedes that collateral estoppel generally operates prospectively, and he provides no authority for retroactively applying findings made at the 2008 trial to the 2007 trial, and we decline to do so. Nevertheless, we attempt to address his concerns briefly.
To the extent defendant again argues the possibility that he was convicted of assaulting Edison, not V., the argument fails.
Defendant contends that even if he was convicted of assaulting V., the assault conviction must be set aside because it was used under the felony-murder rule to support the conviction of Edison’s murder. This is incorrect. As we have explained, it was the assault against Edison committed by the other intruders, not the assault against V. committed by defendant, that was the basis of the felony-murder theory at the 2007 trial. The assault against V. was a crime independent from the felony-murder theory.
Defendant asks whether the 2008 murder acquittal necessarily included a determination that defendant did not commit the assault against V. The answer is no, it did not. At the 2008 murder trial, the prosecution’s theory was that defendant aided and abetted the second degree malice murder of Edison. Under this theory, the not guilty verdict on the murder count did not establish that the jurors found defendant did not commit the assault against V. There was no connection. Indeed, the not guilty verdict could have been based on a finding that defendant did not aid and abet the murder because he did not have “knowledge of the unlawful purpose of the perpetrator” or did not have “the intent or purpose of committing or encouraging or facilitating the commission of the crime” or did not “[b]y act or advice, aid[], promote[], encourage[] or instigate[] the commission of the crime”—the requirements for aiding and abetting provided to the jurors in CALJIC No. 3.01.
Collateral estoppel does not work in defendant’s favor.
We note that the use of collateral estoppel against a criminal defendant (e.g., to bar him from raising an alibi defense in a later proceeding after the jury necessarily determined in a previous proceeding that he was present at the time of the crime and committed an assault against another victim) is disfavored. (See, e.g., Gutierrez v. Superior Court (1994) 24 Cal.App.4th 153, 157.)
IV. Calculation of Credits and Delivering Defendant to Custody
Defendant argues that at the 2008 sentencing, the trial court should have determined defendant had already served his entire eight-year sentence and released him on parole; instead, the court delivered him to the custody of CDRC. The People counter that it was not clear at that time whether defendant had in fact served all of his sentence and the trial court acted properly. We agree with the People.
By statute, it is the trial court’s responsibility to determine a defendant’s total days of actual custody and his presentence credits. (§§ 2900.5, subd. (d) [court’s duty], 4019 [presentence credits].) The statutory scheme imposes on CDCR the responsibility to calculate and apply custody and conduct credits for the period between the date that the defendant is sentenced and the date that he or she is delivered to CDCR (§ 2900.5, subd. (e)) and for the period during which the defendant is confined in a CDCR facility. (In re Martinez (2003) 30 Cal.4th 29, 32, 37; People v. Buckhalter (2001) 26 Cal.4th 20, 30-31, 40-41.)
In this case, we can divide defendant’s case history into phases, as similar cases have done. Phase I: arrest on May 31, 2001 to first sentencing on November 28, 2001. Phase II: first sentencing on November 28, 2001 to reversal (count 2) on August 13, 2003. Phase III: reversal (count 2) on August 13, 2003 to second sentencing on December 11, 2003. Phase IV: second sentencing on December 11, 2003 to reversal (counts 1 & 3) on January 3, 2007. Phase V: reversal (counts 1 & 3) on January 3, 2007 to third sentencing on December 7, 2007. Phase VI: third sentencing on December 7, 2007 to fourth sentencing on September 28, 2008. As correctly determined below, phases I and V were presentence periods, while the remaining phases were postsentence. (See In re Martinez, supra, 30 Cal.4th at pp. 33-37 [prereversal prison time is postsentence custody].)
At defendant’s sentencing on September 24, 2008, the trial court calculated the total days of actual custody since defendant’s arrest on May 31, 2001, as 2,674 days (including two leap year days). Of those days, the court determined that 521 days were presentence days and, under section 2933.1, defendant was entitled to 15 percent of those days—78 days—as presentence conduct/work credits. In sum, defendant’s total days—the 2,674 actual custody days plus the 78 presentence credits—came to 2,752 days. The trial court properly performed these calculations and left calculation of any postsentence credits to CDCR authorities. Because the 2,752 days did not amount to the full eight-year sentence (2,922 days), the trial court correctly remanded defendant to the custody of CDCR. It was CDCR’s responsibility to calculate any credits defendant was entitled to during phases other than I and V.
Section 2933.1 provides that a person convicted of a violent felony cannot accrue more than 15 percent of credit.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Levy, Acting P.J., Dawson, J.