Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County. No. F07901099, Wayne R. Ellison, Judge.
Sharon Giannetta Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CORNELL, J.
The trial court, sitting without a jury, convicted appellant Timothy James Stanbrough of felony murder in the first degree with the special circumstance of having committed the murder during a burglary. The trial court sentenced him to life in prison without the possibility of parole.
Stanbrough contends the conviction must be reversed because he had consent to enter the house where the crime occurred and to take the items he did. If we conclude he did not have consent, then the assaultive crime he committed merges with the murder and cannot provide a basis for the burglary. In the alternative, he claims the death was not intended and, as an aider and abettor, the crime he participated in was not one that was inherently dangerous to human life. We are not persuaded by his arguments and will affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
In the early morning hours of December 28, 2006, emergency personnel responded to a call at a residence on South Holly Avenue near Jensen Avenue. They found Otis Ezell Jones, Jr., lying face down on the floor with his mouth covered and gagged with duct tape. Jones was dead.
Fresno police officers investigating the inside of the residence found an extension cord tied in noose fashion underneath Jones’s head. His hands were tied, bound, and taped and his legs and buttocks were tied and bound with wires. His head was wrapped in duct tape, his hands were bound with black zip ties, and a telephone cord extended from his hands to his legs in “hogtying” fashion. A white sheet bearing blood stains was located around his ankles. They also found a window covered with curtains held up by duct tape.
Officers found blood evidence at various spots in the living room, including an electrical outlet and surrounding wall. They found some blood stains on a child’s rocking horse and crib/playpen, a nearby laundry basket, a cushion and couch, and also on an old-fashioned doorbell affixed to the interior of the front door.
They also found some dark, bunched-up duct tape, the same type that was used on Jones, by the front door. Another piece was found near a cushion by Jones’s body.
A San Francisco 49ers beanie was located in a laundry basket, and a Dallas Cowboys beanie was located on the floor. In a set of stackable plastic drawers in the master bedroom, officers found an Oakland Raiders beanie bearing blood evidence, a brown leather mask, and a Motorola two-way radio. The officers also found a bat wrapped in black electrical tape inside a closet.
Officers found a black cord plugged into a wall of the kitchen. The cord ran up a wall, looped along the ceiling, and entered the closet in the northwest corner of the residence. The cord was held in place by “eye hooks.” The cord led to a black light or “grow light” fixture in that closet. The closet also contained a red dish or plate to catch excess water from a potted plant and green leafy substances on the carpeted floor. Inside the garage, officers found several marijuana pipes and lighters, some rolling papers, and similar evidence.
Officers investigating the outside of the residence found a black cloth that may have been a “scrunchy” hair device. Officers also found a piece of black duct tape on the elevated cement porch attached to the crime scene residence. The officers found no signs of forced entry into either the residence or the garage. The windows on the back side of the house had no signs of forced entry.
Michael Chambliss, M.D., a forensic pathologist with the Fresno County Coroner’s Office, conducted an autopsy on Jones’s body. Jones was about six feet five inches tall and weighed a little more than 225 pounds. At the time of the autopsy, Jones’s body was hog-tied, with bindings on his wrists and ankles and a connected piece of black duct tape running between the ankles and wrist area. Duct tape entirely encircled Jones’s head. Black tape encircled the lower forehead, eyes, and nose and ran all the way down to the upper lip area. The wrist areas were secured with duct tape and black plastic zip ties. The ties were on the outside of the tape. The ankle areas were secured with black duct tape and a white cord.
Chambliss documented external lacerations to the face and back of Jones’s head near the neck. He detected a laceration on Jones’s left forehead just above the eyebrow, an additional laceration on the upper left forehead, a star-shaped laceration on the left cheek, and an abrasion on the right chin area. Some of these lacerations were at least one-half inch deep and were produced by a blunt object. They were not, however, the direct cause of death. Chambliss also found recognizable bruising of the left side of the lower lip. Some of the lacerations could have been caused by a fist.
There were multiple wrappings of the black duct tape around the head. These tightly wound segments of tape may have resulted in pattern impressions on Jones’s cheek and in the compression of his nose. A white cord tightly secured Jones’s ankles and left patterns where the cord encircled his ankles and lower legs. Chambliss found an abrasion on the outside of the right lower leg just above the ankle. The patterns left on Jones’s skin suggested a significant tighter force in the ankle area. Chambliss found a linear abrasion passing from the top of Jones’s right shoulder down onto the back portion of his right shoulder. Something other than Jones’s movement caused the linear abrasion.
Based on various temperature calculations and a visit to the crime scene, Chambliss concluded that the victim expired sometime between 2:00 a.m. and 4 a.m. on December 28, 2006. In Chambliss’s opinion, Jones’s cause of death was suffocation via binding and partial gagging of the mouth and nose. Although the duct tape did not completely cover Jones’s mouth, Chambliss concluded the tightness of the binding around the nose and upper lip compressed the nose and severely compromised Jones’s ability to move oxygen in and out of his system. The hog-tying of Jones’s body also restricted the normal mechanics of his chest and diaphragm movement. Chambliss also said if someone had held a hand over Jones’s mouth, that would have completed the closure of the upper airway and would have caused Jones to expire sooner. In Chambliss’s opinion, Jones would have died by suffocation whether he had been placed face down, face up, or on his side.
Chambliss also noted blunt head trauma on Jones’s death certificate, but not as a direct cause of death.
Chambliss recovered samples of Jones’s blood, urine, and vitreous during the autopsy. Testing of the urine came back positive for metabolite of marijuana.
Stanbrough and John Daniel Gutierrez were suspects in the crime. On January 2, 2007, officers executed a search warrant at Gutierrez’s Sanger residence. Officers found white electrical cord, which was similar to one used in the crime, behind the passenger seat of Stanbrough’s Ford Ranger pickup truck. They found similar cord in a dresser drawer in Gutierrez’s bedroom.
Officers also recovered Jones’s black Honda. They found a black zip tie on the floorboard near the center console. That zip tie was similar to the zip ties used to bind Jones’s body. Officers also found a black Motorola walkie-talkie in Jones’s vehicle. That electronic device matched a walkie-talkie found in Jones’s residence.
Amanda Coronado, a recovering drug addict and parolee, testified she formerly used crystal methamphetamine, crack cocaine, and the animal tranquilizer “KJ.” She had known Stanbrough for several years because they were neighbors. She also was friends with two young men, a young Asian named Kevin and Gutierrez. On one occasion, Stanbrough, Gutierrez, Coronado, and Coronado’s cousin Shanee spent an evening at Kevin’s home. They talked and smoked crystal methamphetamine together. Coronado mentioned she needed some caulking and windshield wipers for her boss’s truck. Stanbrough said he had some at his mother’s home.
Stanbrough called for a ride and his friend Gabriel arrived in a truck. Coronado, Stanbrough, Shanee, and Gabriel departed in the truck and ultimately went to Stanbrough’s mother’s home. Along the way, Stanbrough asked Coronado and Shanee whether they wanted to “do a jale.” Coronado explained the phrase “do a jale” could refer to one of two things. A “jale” could be a “come up,” i.e., an invitation to commit a crime. She also said the phrase could refer to “dope and crystal meth.”
According to Coronado, Stanbrough always characterized his entry into his sister’s home as a “jale” and not as a robbery or burglary.
They arrived at Stanbrough’s mother’s house in the vicinity of the old Golden State Highway and went to a little shed behind the house. At the shed, Stanbrough said something about wanting to go someplace and take some things. Coronado was under the impression the job was going to take place right away. Stanbrough took a bunch of black plastic zip ties from the shed, along with the caulking and wipers he promised Coronado. The ties were secured into a bunch with a “[z]ip tie holding them together.”
When Stanbrough and Coronado returned to Gabriel’s truck, she discussed the job with Shanee and they decided not to participate because it did not sound right. Coronado told Shanee that Stanbrough wanted to use the zip ties. Gabriel said he was using his father’s truck and did not want to get into trouble. Stanbrough and Gabriel took Coronado and Shanee to the home of Coronado’s mother and then departed.
A day or two later, Stanbrough and Gutierrez visited Coronado in a little brown truck and said they were still going to do the job. Stanbrough asked whether Coronado and Shanee wanted to participate. When Coronado asked some questions, Stanbrough said he was going to go to his sister’s house and rob the occupants to get a stereo. Stanbrough also told Coronado that his sister knew about the possible robbery. He explained that his sister’s husband had been hitting her and his sister wanted to get back at him. According to Stanbrough, his sister did not care whether he took property when he went to her house.
The victim, Jones, was married to Stanbrough’s sister, Amanda Jones.
Stanbrough told Coronado he was going to enter his sister’s house and tie up his sister’s husband. He asked Coronado to loan him the fake gun she had found on the sidewalk, a gun that appeared to be a real weapon. When Coronado asked whether Stanbrough would be recognized inside his sister’s home, Stanbrough said he would wear a blue “paño” (handkerchief) to cover his face. She asked Stanbrough what kinds of things were in the sister’s home and he said, “lots of stuff, just lots of stuff.” He also said his sister was going to pay him for the job and that meant Coronado would get paid if she participated. Stanbrough told Coronado his plan was to tie up the victim and scare him, but not kill him.
After staying briefly with Coronado, Stanbrough departed with Gutierrez. She called Stanbrough several times, using her mother’s cell phone. Stanbrough did not answer the first time. The second time, he answered and she asked whether he was going to come by for some more crystal methamphetamine. Stanbrough told her he was busy doing what he “was going to do,” which Coronado interpreted as the planned robbery. Coronado believed Stanbrough was at his sister’s house when Coronado made these calls. Stanbrough eventually called Coronado back at “tweaker time” (a methamphetamine user’s term for late at night) and said he was going to pick her up.
Stanbrough and Gutierrez showed up in a green vehicle at sunrise. Shanee was with Coronado and the four of them started smoking in the car. Coronado said Stanbrough looked tired and Gutierrez acted “like a little bitch... like something was wrong with him.” The quartet took off to look for a store to buy alcohol. Along the way they dropped off Gutierrez so he could change his clothes. Gutierrez changed at Stanbrough’s request. When they again picked up Gutierrez, he was wearing different clothes and carrying his old clothes. They went to a meat market to buy liquor. Inside the store, Gutierrez appeared shaken and told Coronado, “I’ve got to leave town. I’ve got to leave town.… He’s dead.” They made their purchase, returned to the car, and traveled to Coronado’s mother’s apartment. Stanbrough asked her for a change of clothes and Coronado said she would look inside the apartment. During their travels, Coronado noticed a little bit of blood on Gutierrez’s face and by the ear on Stanbrough’s face.
Coronado had Stanbrough enter the apartment quietly because everybody was still asleep. She gave him a sweat outfit, he changed, and she put his old clothes in a plastic bag. She also put Gutierrez’s old clothes in the bag, wrapped the bag, and threw it in the trash. They reentered the car and she gave Stanbrough a moistened paper towel to clean the blood on his ear. She then threw away that towel separately. Coronado admitted she was shocked when she saw the blood on Gutierrez’s face in the meat store. Stanbrough and Gutierrez stayed a bit longer and then departed.
Amanda Jones was interviewed on the morning of the crime. She identified Stanbrough, her brother, as one of the participants. She also told the officers that a pink cell phone recovered from the bed in the master bedroom of the crime scene house was hers. Police personnel retrieved information from the phone, including stored phone numbers, the number of the device itself, and the calls that recently had been placed from the phone. Amanda Jones said the phone was used during or just prior to the crime and a call made shortly after 3:00 a.m. from the phone was noted. Stanbrough later confirmed the 3:00 a.m. call listed on her phone was to the cell number he was using at the time. Stanbrough also told the officers that his sister had purchased the cell phone for him.
On the afternoon Amanda Jones was interviewed, the officers instructed her to make a controlled call to the number from the 3:00 a.m. call. She initially agreed to make the call but then attempted to negotiate with the officers. Her demeanor was quite calm and she ultimately made the call. As soon as Stanbrough answered the telephone, she became hysterical, incoherent, hard to understand, and was taking exaggerated deep breaths and unable to speak complete words. She eventually accused Stanbrough of doing something to her husband and Stanbrough repeatedly asked his sister what she was talking about.
Cingular cell phone records for Stanbrough’s phone showed a number of calls made and received on December 28, 2006. A 12:45 a.m. call was noted at a tower in Sanger, Stanbrough’s city of origin. Four other calls, extending from 12:54 a.m. to 1:04 a.m., also were noted at that tower and a companion tower. Calls made at 1:23 and 1:25 a.m. were noted at a tower on Fresno Street in the Kearney area of Fresno. At 1:38 a.m. a call was noted at a tower on East California Avenue, a few blocks from Jones’s residence. A series of calls took place between 1:38 a.m. and 4:04 a.m. and were noted at the California Avenue tower. At 4:33 a.m. a call was noted at a South Orange Avenue tower. The latter tower is located east or southeast of the Jones residence on South Holly Avenue. A call made 38 seconds later was noted at a tower on East Jensen Avenue near Fresno Pacific University. At 4:36 a.m. a call was noted at a tower on South Peach Avenue, indicating the phone was continuing in an easterly direction. Between 4:50 a.m. and 5:16 a.m., calls made from the phone were noted at towers in the Sanger area. Stanbrough was arrested in the vicinity of Breckenridge Road and Weed Patch Highway in Bakersfield at 7:00 p.m. on May 4, 2007.
When the officers received word of Stanbrough’s arrest, they drove to Bakersfield, made contact with Stanbrough, and interviewed him after he waived his Miranda rights. Stanbrough was “dejected, depressed, extremely quiet, and solemn” during the interview. He was very disheveled and dirty and dressed in an old jacket and dirty, wrinkly clothes. Throughout the interview, Stanbrough professed that he did not shoot Jones, suggesting a belief that Jones had been shot. He initially denied any involvement in the crime but later gave details of his participation.
Miranda v. Arizona (1966) 384 U.S. 436.)
A newspaper article incorrectly reported that Jones had been shot.
Stanbrough said Amanda Jones wanted the marijuana removed from her home because of the baby. The plants and a growing light were in the closet and she was concerned that someone would smell the plants and her son would be taken away as a result. She was angry about this situation and wanted Stanbrough to remove the plants while Jones was asleep. She also told Stanbrough that Jones was mean to her and possibly beat her. She said Jones was mad at her because she wanted him to get rid of the weed plants. Stanbrough said he did not dislike Jones because he had a good job and took care of his sister.
Amanda Jones had called Stanbrough late at night for about a week and had asked him to remove the contraband. She said she was going to leave the back door open and the car keys inside a weed plant pot. She asked him to just take the weed and get rid of it. He agreed to do so but kept putting off the task. At midnight or 1:00 a.m. on December 28, 2006, she called Stanbrough and told him to come get the weed. She also said Jones was a heavy sleeper. Stanbrough previously had left a mask at the house and asked her if she thought Jones would recognize him. Stanbrough said that if Jones awakened during the removal of the weed, Stanbrough intended to tell him that Amanda Jones wanted the weed gone because of the baby and that he should not jeopardize his job as a security officer.
Stanbrough had someone drop him off at the Jones residence in the middle of the night. When Stanbrough arrived at the house, he said the weed was outside on the porch. Stanbrough had already obtained the keys from his sister and he left in that vehicle. He threw the plants in a canal and left the car at a location specified by his sister. According to Stanbrough, the next thing he knew, someone had been shot, but denied shooting anyone. Amanda Jones called him, crying, and asked what he had done to Jones. Stanbrough learned a parole search had taken place at his mother’s home. He panicked and left town. Stanbrough initially declined to name anyone else involved in the incident.
At that point, the officers told Stanbrough they knew he had been inside the residence. Stanbrough changed his story, said he was with a friend, and explained that Jones awakened while they were there. The duo became scared because Jones was a large man. He charged Stanbrough’s friend and they started fighting. Stanbrough held his leg and the friend took him down. Stanbrough could not say anything because Jones might recognize his voice. The interior of the house was dark and he could not see Stanbrough. The trio fought and all three of them kicked and threw punches. At one point, a curtain fell down and Stanbrough put it back up with duct tape. Jones became tired and Stanbrough and his friend used duct tape all over his body to secure him. Stanbrough claimed he just taped and zip-tied Jones’s feet and legs and then went to see whether his sister was awake. She was asleep in the bedroom. She did not awaken until Stanbrough and his friends obtained the weed plants. The car keys were in the weed pot. Stanbrough tried to get the grow lights because his sister wanted everything removed. Stanbrough said the ties and duct tape came from the Jones house. The ties had been used on computer cords and Stanbrough found the ties and duct tape on a little table by the television.
Stanbrough claimed he got the weed plants, returned inside, and found Jones had been shot and it “was like, dead[,] oh my god.” Stanbrough said he had no gun with him, his companion had no gun, but he speculated Jones, a security officer, may have had a gun. In any event, Stanbrough said he never heard a gunshot.
The officers advised Stanbrough that his sister, Amanda Jones, was found on the front porch with duct tape on her. Stanbrough did not think that he or his companion put the tape on her. The detectives asked whether his sister ever told him that “Otis was kicking her ass.” He denied such a conversation. Stanbrough claimed he told her that Jones was big, had never done anything wrong to her, had cared for her over the years, and that he, Stanbrough, had no beef with him. Stanbrough said his intent in going to the house was to get the weed plants and not to “kick Otis’ ass.”
Stanbrough said he and his companion entered the house through the unlocked garage door. The door had a knob on the outside and there was nothing to hold it closed. Amanda Jones had told Stanbrough she was going to leave the garage door and the interior door open. She told him Jones was a heavy sleeper and that Stanbrough could get the weed out. According to Stanbrough, his companion duct taped Jones and Stanbrough said he wanted to check on the safety of his sister and her baby. Stanbrough grabbed the weed plants and tried to grab all of the lighting devices because it was sometime between 4:00 and 6:00 o’clock in the morning. Stanbrough said he left a beanie, some gloves, a leather jacket, and some walkie-talkies for his sister to hide after the early morning entry.
During the struggle with Jones, Stanbrough said he duct taped Jones’s feet and his companion duct taped Jones’s hands. When he and his companion left, Jones had his feet bound together and Jones was groaning as if he were hurting. Stanbrough said he did not turn on any lights. He went out through the front door, unlocked and warmed up Jones’s car, and went back inside and got the weed plants and box. He placed the box in the car trunk. Stanbrough later said the keys to Jones’s car were inside the weed pot. Stanbrough also explained there were two big pots, but he did not know how many plants were in those pots.
As to the contraband, Stanbrough again said he threw the plants into a canal in Sanger. Stanbrough did not remember throwing the box out or selling or trading property from the box. Stanbrough admitted he was a crystal methamphetamine user but did not sell the plants to make money. Stanbrough claimed he was not using crystal methamphetamine on December 28, 2006, because he did not have any money and had just come from the hospital. He also said he did not drink alcohol. Stanbrough later told officers he could not remember if he put the grow lights in Jones’s car. He did grab a heavy box with cords sticking out and he thought the box might contain a computer.
After leaving the house on South Holly Avenue, Stanbrough took Jones’s black Honda and drove away. He received a call from a girl asking to buy crystal methamphetamine. Stanbrough said he had some in Fresno but he was already in Sanger at the time he received the call. The girl kept calling Stanbrough and they eventually met. When the girl saw Stanbrough, she said he had “blood and shit” on his face.
Stanbrough told the officers his sister had loaned him some money earlier and he told her he would pay her back once he started working. When the officers questioned why he, a parolee, would risk going into the Jones home for no compensation, Stanbrough said, “I would do anything for my sister.” When the officers asked about Jones’s condition upon Stanbrough’s departure, Stanbrough said he touched Jones and could feel breath going in and out. Although his mouth was taped, there was a hole and Stanbrough said he “felt air” and saw his stomach go up and down. Stanbrough further said he did not understand how Jones could get shot because Stanbrough did not shoot him and his sister had said there was no gun in the house. When asked about compensation for his companion, Stanbrough said he gave the man gas for his car and said he would “get him high.”
Stanbrough asked the officers what had happened to his sister. They said she had moved to a new residence, said she felt guilty, and ended up hanging herself. Stanbrough sobbed when he received the news of her passing. The officers later told him the burial was the Thursday prior to his apprehension and some family members were present.
The officers asked Stanbrough whether Jones was supposed to die on December 28. Stanbrough said he was not supposed to die and noted that Jones had cared for his sister over a four- or five-year period. Although Amanda Jones said that Jones hit her and took her phone away, Stanbrough never saw such conduct. When the December 28 encounter became physical, Stanbrough said Jones had to be restrained because “he was big[,] man[,] he’ll fuck us up.” Stanbrough said he was scared because he did not know whether Jones would call the police, beat up his sister, or take away the baby. After Jones was restrained and Stanbrough took the contraband, he told his sister that he loved her. He also told her he left his beanie and mask.
The Fresno County District Attorney charged Stanbrough in a second amended information as follows:
Count 1 -- murder (Pen. Code, § 187, subd. (a)), during the commission of robbery (§ 190.2, subd. (a)(17)(A)) and burglary (§ 190.2, subd. (a)(17)(G));
All further statutory references are to the Penal Code unless otherwise noted.
Count 2 -- home invasion robbery (§ 213, subd. (a)(1)(A));
Count 3 -- first degree residential burglary (§§ 459, 460, subd. (a));
Count 4 -- false imprisonment by violence (§ 236). The district attorney specially alleged Stanbrough had served two prior prison terms (§ 667.5, subd. (b)).
Stanbrough waived his right to a jury trial and asked that his pending murder prosecution be heard as a court trial. On the sixth day of trial, Stanbrough elected not to testify and admitted the truth of the prior prison term allegations.
The trial court, sitting without a jury, found Stanbrough guilty of first degree murder as charged in count 1, guilty of counts 3 and 4, and not guilty of count 2. The trial court made the following findings:
“Then I’m just going to begin, Mr. Stanbrough, with Count One, the charge of murder. And, sir, I find you guilty of the charge of murder. I’m sorry to tell you sir I find you guilty and the murder to be in the first-degree. And I’ll just say that the court finds that the evidence presented in this trial in the court’s view proved beyond a reasonable doubt that you, Mr. Stanbrough, together with John Daniel Gutierrez, entered the home of the victim in this case, committed the crime of burglary in doing so as evidenced by not only your own statements but the testimony of the neighbors of the victim and Amanda Coronado, her testimony being corroborated by your statements, as well as the evidence of the phone calls before and after this burglary.
“And I accept, at least for purposes of this discussion and judgment, that the death of Mr. Jones here was unintentional. However, it seemed to me that the evidence proved beyond a reasonable doubt that you had committed a first-degree burglary in entering the house on South Holly. And that you intended to commit a burglary at the time of that entry. And that during the commission of the burglary you did -- personally did an act which you yourself admitted, which was binding and taping the victim in this case which caused, as one continuous transaction with the burglary, the death of Mr. Jones. So for that reason I find it to be murder and murder in the first-degree, Mr. Stanbrough.
“I also find that the special circumstance that you committed this murder of Mr. Jones while you were engaged in the commission of a burglary to be true. And it’s the court’s view that the evidence has shown beyond a reasonable doubt that that special circumstance allegation and the logical connection between the binding and taping of the victim in the commission of this burglary that all of that was true beyond a reasonable doubt. That you intended to commit the burglary wholly independent of Mr. Jones’ killing in this case.
“I find Count Two, which is the robbery in concert, to be not guilty. That’s based upon the fact that there’s no evidence, as I understand, which is an element of the robbery in concert that the defendant had acted together with two other persons to commit the... crime of robbery in concert....
“I find you, for obvious reasons that I’ve already stated, guilty of Count Three which is the residential burglary and guilty of Count Four which [is] the felony false imprisonment.”
On August 21, 2008, the trial court struck the two prior prison terms in the interests of justice (§ 1385) and sentenced Stanbrough on count 1 to a term of life in prison without the possibility of parole. The trial court imposed and stayed a six-year upper term on count 3 and a three-year upper term on count 4. The trial court awarded 475 days of custody credits and ordered Stanbrough to supply samples of bodily fluids and prints (§ 296).
DISCUSSION
Stanbrough contends his sister consented to his entry into the South Holly Avenue home, thereby obviating a burglary charge. He further argues that to the extent he entered the house to perpetrate assaultive conduct, the merger doctrine precluded application of the felony-murder rule. Therefore, Stanbrough maintains there was insufficient evidence to support the convictions of burglary, felony murder, and the felony-murder special circumstance.
Standard of Review
In reviewing a criminal conviction for the alleged lack of evidentiary support, we must review the whole record in the light most favorable to the judgment. We must determine whether the record discloses substantial evidence, i.e., evidence that is reasonable, credible, and of solid value, such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Hillhouse (2002) 27 Cal.4th 469, 496.) We must view the evidence in a light most favorable to the People and presume in support of the judgment the existence of every fact the trier reasonably could deduce from the evidence. If the circumstances reasonably justify the findings of the trial court, reversal is not warranted simply because the circumstances also might be reconciled with a contrary finding. The test on appeal is whether there was substantial evidence to support the conclusion of the trier of fact and not whether guilt was established beyond a reasonable doubt. (People v. Williams (1971) 5 Cal.3d 211, 214.) Challenges to the evidentiary sufficiency of special circumstance findings are governed by the same test. (People v. Ochoa (1998) 19 Cal.4th 353, 413-414.)
The Burglary
Stanbrough initially contends he had his sister’s consent to enter her house and take property and therefore no burglary was committed.
A burglary charge requires evidence the accused entered the residence with the specific intent to steal, take and carry away the personal property of another of any value and with specific intent to deprive the owner permanently of such property, or to commit another felony. (§ 459.) Lack of consent, by itself, is not an element of the offense. Forcible entry is not required either. (People v. Chambers (1961) 189 Cal.App.2d 780, 785.) There are occasions, however, when consent given by the owner of the property will constitute a defense to a burglary charge. (People v. Felix (1994) 23 Cal.App.4th 1385, 1397.) One such occasion occurs when the owner actively invites an accused to enter, knowing the illegal felonious intention of the invitee. (People v. Superior Court (Granillo)(1988) 205 Cal. App.3d 1478, 1483.)
In People v. Clayton (1998) 65 Cal.App.4th 418 (Clayton), Richard August hired Clayton to murder Richard’s wife, Kathleen. Richard supplied Clayton with a key to gain entry to the house where Richard and Kathleen lived with their children. Clayton entered and attacked Kathleen but she fought back and Clayton fled. He was ultimately convicted of conspiracy to commit murder, attempted murder and burglary, enhanced by a deadly weapon allegation. Clayton appealed, contending his burglary conviction could not stand because he entered the house with Richard’s consent. The appellate court disagreed and affirmed.
The court noted that independent of the consequences of the intended felony, there is a danger of violence when one person in possession of the premises consents to a third person’s entry for the purpose of injuring a person with joint possession of the premises. Section 459 is aimed at the danger caused by the unauthorized entry itself. The burglary laws of California exist to punish the dangers to personal safety, i.e., the danger that an intruder will harm the occupant in attempting to gain entry to commit an intended crime or in attempting to escape, or that the occupant will react in anger or panic and cause more violence. (Clayton, supra, 65 Cal.App.4th at pp. 422-423.)
In Clayton, one of two persons with a joint right to possession of the same premises gave consent to a third person to enter the premises to commit a felony upon the other person with the joint right of possession. That Richard consented to Clayton’s entry and knew about Clayton’s felonious intent did not confer an unconditional possessory right upon Clayton to enter the residence for the purpose of injuring Kathleen, who was unaware of Clayton’s intent and did not endorse it. That the intended felony entailed violence or potential violence did not prevent a conviction of burglary where the other elements of section 459 were proved. (Clayton, supra, 65 Cal. App.4th at pp. 423-424.)
Here, Stanbrough repeatedly insists he did not enter the house to rob Jones personally. Rather, he contends he had the consent of his sister, Amanda Jones, to enter the residence to seize and remove illegal plants and growing apparatus.
Issues of credibility are not reweighed or redetermined on appeal. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) The trial court, as trier of fact, easily could have concluded that Stanbrough’s claims of consent to enter, permission to take property, and lack of intent to injure Jones simply were not credible. This is particularly true given his changing stories, conflicting accounts, and blatant evasions to police officers upon his apprehension in May 2007. As the People point out, nothing in the record suggests that Amanda Jones gave Stanbrough and Gutierrez permission to enter her residence, steal property jointly owned with Jones, and commit a residential robbery in which her husband was beaten, bound, and gagged.
Stanbrough’s claimed defense of consent to the burglary must be rejected.
Felony Murder
Stanbrough further argues a burglary based on entry into a building with the intent to commit assaultive conduct does not invoke the felony-murder rule because the assaultive crime merges with the underlying homicide.
Murder is the unlawful killing of a human being with malice aforethought. (§ 187, subd. (a).) Murder that is committed in the perpetration of robbery, burglary, or other statutorily enumerated felonies is first degree felony murder. (§ 189; People v. Pulido (1997) 15 Cal.4th 713, 716 (Pulido).) The purpose of the felony-murder rule is to deter those who commit the enumerated felonies from killing by holding them strictly responsible for any killing committed by a cofelon, whether that killing is intentional, negligent, or accidental, during the perpetration or attempted perpetration of the felony. (People v. Cavitt (2004) 33 Cal.4th 187, 197 (Cavitt); People v. Dillon (1983) 34 Cal.3d 441, 477.)
The felony-murder rule generally acts as a substitute for the mental state ordinarily required for murder; the only mental state required is the specific intent to commit the inherently dangerous underlying felony. (Cavitt, supra, 33 Cal.4th at pp. 197, 205.) The killing need not occur in the midst of the commission of the felony, so long as that felony is not incidental to or an afterthought to the killing. A homicide occurs in the perpetration of an enumerated felony for purposes of the felony-murder rule if both offenses were part of a continuous transaction. Circumstantial evidence may provide sufficient support for a felony-murder conviction. Nevertheless, the felony-murder rule does not apply to a burglary committed solely to assault or kill a homicide victim. (People v. Prince (2007) 40 Cal.4th 1179, 1259, 1262.)
Felony-murder liability may be imposed on a nonkiller when a human being is killed by one of several persons jointly engaged at the time of such killing in the perpetration of or an attempt to perpetrate an enumerated felony, whether such killing is intentional, unintentional, or accidental. (Cavitt, supra, 33 Cal.4th at p. 200.)
California cases establishing the complicity of a nonkiller in a felony murder have required, at a minimum, that the accomplice have been, at the time of the killing, a conspirator or aider and abettor in the felony. (Pulido, supra, 15 Cal.4th at p. 723.)
Under California law, it is no defense to felony murder that the nonkiller did not intend to kill, forbade his associates to kill, or was himself unarmed. (Cavitt, supra, 33 Cal.4th at p. 198, fn. 2.) “[A] nonkiller’s liability for felony murder does not depend on the killer’s subjective motivation but on the existence of objective facts that connect the act resulting in death to the felony the nonkiller committed or attempted to commit.” (Id. at p. 205.) Otherwise, the nonkiller’s responsibility would vary based merely on whether the trier of fact believed the killer killed the victim by accident, because of a personal grudge, to eliminate a witness, or simply to find out what killing was like. (Ibid.)
Here, the trial court, as trier of fact, reasonably could have concluded that Stanbrough was the actual killer of Jones. As the People point out, “The trial record establishes [Jones] as the major planner and dominant actor in these offenses.” Stanbrough discussed the offenses in advance with Coronado and specifically discussed his intent to tie up and cover up Jones, to wear a blue “paño” or handkerchief as a mask, to psych Jones out with a “cuete” or fake gun he sought to borrow from Coronado, and to take things from the South Holly Avenue house. Before the offense, he secured at least some of the zip ties from a shed at his mother’s home.
On the date of the offenses, Jones awakened and resisted the intruders. A struggle took place and Stanbrough and Gutierrez inflicted a beating to Jones. During that struggle, some curtains came down and Stanbrough directed his companion to use duct tape to put them up. That act suggested the need for concealment of the criminal offenses that took place inside the home. Chambliss, the forensic pathologist who conducted the autopsy of Jones, concluded the cause of death was a combination of duct taping of Jones’s head and hog-tying him. Together, these acts compromised Jones’s respiration. Chambliss also noted that Jones suffered from blunt force head trauma. Although that trauma was not the direct cause of death, Chambliss deemed it highly significant.
From all of the facts and circumstances, particularly Stanbrough’s highly evasive and contradictory interview with Fresno police detectives upon apprehension, the trial court reasonably could conclude that Stanbrough was the active perpetrator of the killing of Jones and that the homicide occurred in the perpetration of an enumerated felony. The trial court also reasonably could conclude that Stanbrough’s intent upon entering the residence was to steal, not to assault Jones, thus precluding any argument of merger.
Special Circumstance
Stanbrough lastly contends he was a nonkiller and did not have the appropriate mental state for the trial court to sustain the special circumstance as to an aider and abettor.
Section 190.2, subdivision (a) states in relevant part:
“The penalty for a defendant who is found guilty of murder in the first degree is death or imprisonment in the state prison for life without the possibility of parole if one or more of the following special circumstances has been found under Section 190.4 to be true: [¶] … [¶]
“(17) The murder was committed while the defendant was engaged in, or was an accomplice in, the commission of, attempted commission of, or the immediate flight after committing, or attempting to commit, the following felonies: [¶] … [¶]
“(G) Burglary in the first or second degree in violation of Section 460.”
To support a finding of special circumstance murder against an aider and abettor based on murder committed in the course of an enumerated felony, the prosecution must show the aider and abettor had intent to kill or acted with reckless indifference to human life while acting as a major participant in the underlying felony. (§ 190.2, subds. (c), (d).) “[R]eckless indifference to human life” means “‘a subjective awareness of the grave risk to human life created by his or her participation in the underlying felony.’ [Citation.]” (People v. Proby (1998) 60 Cal. App.4th 922, 927-928.)
At trial, Chambliss described the horrific death of Jones in graphic detail and we have independently summarized the forensic pathologist’s findings and conclusions at great length above. Stanbrough’s claim that he had no subjective awareness that his participation in the felonies involved a grave risk of death is belied by the record on appeal. The trial court properly found the special circumstance to be true and Stanbrough’s challenge must be rejected.
DISPOSITION
The judgment is affirmed.
WE CONCUR: WISEMAN, Acting P.J., GOMES, J.