Opinion
F039096.
10-14-2003
THE PEOPLE, Plaintiff and Respondent, v. TRAMELL VERNON TAYLOR et al., Defendants and Appellants.
David Y. Stanley, under appointment by the Court of Appeal, for Defendant and Appellant Tramell Vernon Taylor. Charles M. Bonneau, under appointment by the Court of Appeal, for Defendant and Appellant Dewayne McGee Richardson. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Stan Cross and Patrick J. Whalen, Deputy Attorneys General, for Plaintiff and Respondent.
Tramell Vernon Taylor and Dewayne McGee Richardson were convicted of conspiracy to commit robbery. It was found this crime occurred for the benefit of a criminal street gang. They were also convicted of the December 6, 2000, first degree murder of one of their coconspirators, Darryl McCoy. The jury found true the special circumstance that the murder was committed during the commission of a robbery. Taylor and Richardson appeal, raising numerous issues. Except to correct a restitution fine provision, we affirm.
FACTS
Murder victim Darryl McCoy, Jr. (DJ)[] "hung out" with defendant Richardson and knew defendant Taylor. McCoys mother, Shawna Gooden, used crack cocaine. From October to December of 2000 she sometimes purchased her drugs from Kendall McDaniel (Pookie) at the Desert Star Motel. Gooden also had a relationship with Calvin Makes (Aces), a friend of McDaniel.
Places in the record refer to many persons involved in this case by nicknames. We set forth nicknames in parenthesis, but make further references to last names. Where persons have the same last name, first names will be used; in two of those instances nicknames will be used rather than first names (Shavon Smith (V) and Bobby Smith (G Bob)). No disrespect is meant.
On the evening of December 5, 2000, Aaron Gooden (McCoys uncle and Shawnas brother) was staying with Shawna in her home. McCoy, Taylor and Richardson arrived at Shawnas home at approximately 10 or 11 p.m. on the evening of December 5, 2000. On this night, Shawna heard McCoy talk with Richardson about robbing McDaniel in his room at the Desert Star. Richardson suggested that McCoy ask Shawna if McDaniel and his friends had guns and/or money. Shawna told McCoy not to ask her anything.
McCoy, Taylor and Richardson conversed that evening with Aaron. They asked him what was happening on "U Block" (Union Street) and inquired if there was any "money rollin through there." Aaron told the three "nobody got it going on down there." Taylor disagreed with Aarons assessment of the situation and insisted that McDaniel and others had a lot of money. Taylor continued to encourage the group to go to the Desert Star to rob McDaniel and others. Aaron insisted that the occupants of the motel did not have any money. McCoy, Richardson and Taylor agreed to a plan to go to the motel and rob McDaniel and others. Aaron testified that Richardson always carried a gun with him and that Taylor was carrying a small gun with a clip the night of the murder.[]
When initially questioned, Aaron denied knowing anything. At the preliminary hearing he testified that he did not see any weapons. Aaron was in the witness protection program prior to and at the time of trial.
McCoy, Taylor and Richardson left in a dark-colored Ford Blazer. Taylor was driving.
In December of 2000, McDaniel had been living in room 4 of the Desert Star motel for two or three months. His sister Crystal lived in room 3 with their mother, Darlene Lewis. Crystals boyfriend was Brian Calhoun (Rifle). Bobby Smith (G Bob) lived in room 12.
On the evening of December 5, 2000, McDaniel, Tyrone James (Rone), and Shavon Smith (V) were in room 4 drinking, smoking marijuana, and watching television. Calhoun was in and out of room 4 that evening.
G Bob saw McCoy outside of G Bobs room before 1 a.m. on December 6, 2000. He was with two other individuals that G Bob did not know. McCoy was wearing a light-colored sweatshirt. The three individuals came into his room. G Bob asked McCoy if he would sell him some crack cocaine. McCoy said he was not there to sell crack. G Bob asked McCoy if he wanted to pay for a prostitute. McCoy replied no. The group was in his room for three to five minutes and then G Bob asked them to leave. G Bob left also.
G Bob testified that he had seen a gun lying on a table in room 4 on more than one occasion. He was in room 4 hours before the shooting and he saw the gun in the room on a table. At trial, G Bob said he did not see Taylor, Richardson, or McCoy with a gun. When G Bob was interviewed soon after the shooting, he told Detective Adair that one of the three men pulled out a gun as the men walked toward room 4. G Bob identified Richardson as the individual with the gun. At trial, he testified that he never saw anyone pull out a gun.
At the time when McCoy was visiting with G Bob, Calvin Makes (Ace) arrived at the Desert Star Motel to pick up McDaniel. He noticed three or four men wearing dark clothing by room 12. He got "bad vibes" from them and thought they looked like they were getting "geared up" for something. Makes knocked on the door of room 4. McDaniel answered the door, and Makes told him to grab his stuff so they could get out of there because there were men nearby who looked suspicious. Makes headed towards his car to wait for McDaniel. McDaniel shut the door and stayed in the room to gather up some of his things. Someone called the room and told McDaniel that some suspicious men in the parking lot were going to do something.
McDaniel opened the door and saw "the silver guns" and then he saw "gun flashes." McDaniel tried to close the door. He ran to the bathroom. He heard 12 or 13 more shots and then left through the bathroom window. McDaniel told officers that the person who shot him wore a ski mask or a hood.
V testified that 10 minutes after someone came to their door and warned them that there were suspicious people outside, someone came in the room shooting. V was on the bed half asleep when the shooting started; he fell to the side of the bed. One person came into the room shooting and another person started shooting from outside of the room. After a few minutes the shooting stopped and V went out the bathroom window.
When interviewed by Detective Adair, V stated that after they had been warned that something was going to occur he looked out of the room. He saw G Bob and three others approach the room. G Bob continued walking away from the room but the other three stopped. Two of the males were wearing dark clothing and a third was wearing light-colored clothing. He said that one in dark clothing entered the room shooting and another in dark clothing stayed in the area of the open door and was shooting into the room. He did not see the person in the light-colored clothing in the room or shooting.
James testified that he was asleep before the shooting. He dropped to the floor and stayed there until the shooting stopped. He then left out the bathroom window. Because he was on the floor he did not see anything.
McDaniel, V, and James all testified that they did not have a gun in the room and they were not selling drugs from the room. They denied being members of the Country Boy Crips.
Calhoun testified that he was in room 3 with McDaniels sister when he heard gunshots. He did not look out the window and did not see anyone. He got down on the floor beside the bed and eventually jumped out the bathroom window. When interviewed after the shooting, Calhoun said he heard gunfire and looked out the window. He said he saw someone outside his window in room 3 wearing a light-colored sweatshirt, leaning forward and twisting and shooting a handgun into room 4. It looked like this person got shot and fell to the ground.
Warren Murrow was living at the Desert Star motel in room 15. He heard shots in the early morning hours of December 6, 2000. He called 911 but did not look out his window. When he did look out his window, he saw two people picking up a body and putting it into a dark-colored sports utility vehicle.
Police officers arrived at the Desert Star motel. McDaniel had been shot. He was transported to the hospital. McDaniel had a gunshot wound to his upper abdomen. The entry wound was underneath the ribs; the bullet was lodged in the back of his body, just behind his armpit. McDaniel also had a penetrating gunshot wound in his right upper arm and left forearm. Bullets were not recovered from these wounds.
Police officer Bobby Ray Woolard arrived at the Desert Star Motel. He secured room 4 and then waited outside. He heard a noise inside the room. He reentered the room and found V and James had entered the room from the bathroom window. They were placed into handcuffs and seated in patrol cars.
The police radios were on in the car. Information came over the radio indicating that Tramell Taylor may have been involved in the incident. V said, "Tramell definitely shot Pookie." Officer Woolard saw what looked like drugs in front of room 4.
On December 6, 2000, Raynisha Fite, the mother of Taylors child, was at the home of her mother, Latonia Weston. Her sister Kandis Naffs was at the home also. Naffs heard a car coming quickly up the street. She heard the car brake and the car doors open. The front door to the house opened and Taylor ran inside. He said his friend had been shot. Weston called 911. Naffs called an ambulance and went outside, as did Fite and Weston. Taylor and Richardson took McCoy out of the Blazer and put him on the grass. Naffs took McCoys shirt off and tried to stop the bleeding. Taylor was standing over Naffs; shortly thereafter Taylor departed.
Police arrived at Westons home. An officer asked Richardson for his drivers license. He complied. The officer inquired who had been driving the Blazer. Richardson said Tramell. The officer asked Richardson for the room number of where this incident took place. Richardson commented they were just visiting friends. The officer told Richardson he knew this incident happened at the Desert Star and asked him for the number of the room where the incident occurred. Richardson admitted the incident happened near room 4. The officer went inside looking for Taylor but could not find him. When the officer returned outside, Richardson was no longer at the scene.
McCoy was transported to the hospital. He died from a single gunshot wound through his heart. The path of the bullet was sharply downward and front to back. It was the pathologists opinion that McCoy was crouched or in a stooped position when he was shot. McCoy would have been incapacitated in a matter of seconds after being shot. A bullet was retrieved from McCoys body.
Officer Jeff Cecil seized items from the lawn on Fifth Street. Included in the items were a white tee shirt and a gray fitted sweatshirt. These items had blood on them. There were no bullets or guns in the Blazer on Fifth Street.
A bullet was retrieved from McDaniel during surgery. Numerous nine-millimeter Markahov casings were found in room 4. An expert determined that the bullet from McDaniel and the casings found scattered about in room 4 were fired from the same weapon. Two .38-caliber spent bullets were found in room 4. The bullet recovered from the deceased victim, McCoy, was either a .38-caliber or a nine-millimeter. Based on markings on the bullets and casings, the expert determined that the bullet from McCoys body could not have been fired from the same gun that fired the bullet retrieved from McDaniel or the .38-caliber spent bullets found in room 4. At least three guns were fired during the shooting. In addition, two live .45-caliber shells were located in the parking lot, suggesting the presence of a fourth gun. Also, there were numerous holes in the walls and windows of room 4. Because of the location of the holes, the police did not attempt to recover spent bullets from these areas.
Frank Gonzales, a police officer in the gang suppression unit, testified that Calhoun, V, and James were active members in the Country Boy Crips. McDaniel was not a full-fledged Country Boy Crip but was an affiliate. Taylor, Richardson, and McCoy were members of the West Side Crips. The West Side Crips and the Country Boy Crips were deadly rivals. It was his opinion that the crimes that occurred on December 6, 2000, were gang related and performed with the intent of benefiting the gang.
Defense
Witnesses testified regarding the whereabouts of Taylor and Richardson on December 5, 2000.[] Richardson testified on his own behalf. He claimed his group went to the motel because McCoy wanted to visit G Bob. As they were leaving, shots rang out from room 4. Richardson and Taylor picked up McCoy, put him in the Blazer, and drove to Fifth Street. Richardson was so shaken up by the incident that he left after giving the police officer his identification. He claimed that he did not have a gun, nor did Taylor or McCoy. A private investigator testified that it was his opinion that Richardson was not a gang member.
Presumably this testimony was to defeat the allegation that the defendants drove through the parking lot of the Desert Star Motel the afternoon of December 5, 2000. The jury found this overt act to be not true.
DISCUSSION
I. Denial of Batson/Wheeler Motion
During jury voir dire the court asked each prospective juror a series of questions, including the general area of the city where the prospective juror lived. The court also asked the jurors if anyone had been in a situation involving street gangs.
The parties were allowed to ask the prospective jurors some questions. Counsel for defendant Taylor asked a prospective juror if there were any Black jurors in the courtroom. The prospective juror responded that there were none in the courtroom. Counsel asked if that would be a problem in terms of his client receiving a fair trial. The prospective juror said it would not be a problem. The parties asked more questions regarding gangs. Included in the questions was whether prospective jurors had seen gang members in person; if prospective jurors had had contact, specific knowledge, or problems with gangs; and if anyone was fearful in certain areas of the county because of gangs. During the course of these questions, the parties exercised peremptory challenges and prospective jurors were excused, with additional prospective jurors being seated in the jury box.
The fifth group of prospective jurors seated in the jury box for questioning included prospective juror No. 21060852 (hereinafter 52).[] Ms. 52 recited her general background information.[] She stated she was married and had three young children. She worked at a child care center. She lived in South Bakersfield. Her husband worked for a radio station.
The redacted transcripts describe jurors by their eight digit identification numbers; we simplify by using the final two digits.
The court referred to the prospective jurors as Ms. or Mr.; these references allow us to identify the sex of the jurors.
The district attorney questioned Ms. 52 further. She stated that her husband was a barber in addition to working for a radio station. The district attorney asked her if there was anything that had come up so far in questioning that concerned her. She replied, "nothing." Counsel for Taylor asked Ms. 52 where her husbands barbershop was located. She replied, "South Bakersfield." He then asked: "Do any of you know anybody or come in contact with anybody whos in a gang?" There was no response to this question.
Counsel for Richardson then asked if there was anything the prospective jurors wanted to bring to the courts attention that had not been raised. Ms. 52 responded that a previous juror had been asked if there were any Black people in the courtroom, and that she is half Black.
The district attorney exercised a peremptory challenge to prospective juror No. 52. Immediately following the challenge by the People, Richardsons attorney stated he wished to make a motion.
The court heard the motion outside the presence of the prospective jurors. Richardsons counsel stated that Ms. 52 was the only person on the entire panel of 70 who was Black (half Black) and asked the court to inquire whether there was a proper non-race-based basis for the challenge. The court responded that it could not state with certainty if any of the remaining prospective jurors might have some African-American racial background, but Ms. 52 was the only person who had been called to the jury box who is African-American. The court stated that just the fact that the juror was the only African-American was not enough to require the People to respond and asked counsel for Richardson to respond. Counsel for Taylor joined the motion and agreed that it did not appear that any of the panel members were Black. He also stated that he did not see anything in Ms. 52s answers that warranted excusing her. Furthermore, in view of the fact that the defendants were Black, he did not see any justification for the challenge.
The court noted that Ms. 52 was the only person identified as Black. The court found a prima facie case and asked the prosecutor to state his reasons for excusing Ms. 52. The prosecutor began by questioning whether the threshold standard had been met requiring him to justify his challenge to Ms. 52. He then noted that initially he did not even recognize her as being Black.
The prosecutor said he was concerned about Ms. 52s age. The court questioned what specifically concerned him about her age. The prosecutor responded that she appeared to be very young, even though she had three children; he estimated her age to be about 19 or 20 based on her appearance. He stated he was particularly concerned that "she said she was a long time resident of south Bakersfield. Her husbands barbershop was in south Bakersfield. And she, I think, had several opportunities to and declined to say shed ever had any contact with gang members of any sort. And I, frankly, took that as being, based on my understanding of south Bakersfield, either a statement of total naiveté or somewhat deceptive. Thats how I took her answers. She was point blank asked that and that was her answer. And I wasnt compelled to believe her."
The court inquired who had asked a particular question of Ms. 52. The prosecutor responded he did not recall who asked the question. The prosecutor went on to say, "I was concerned about the fact that she was young and the other answers. [¶] Also slightly concerned about the developing female mix on the jury, and I understand thats not in and of itself a valid reason, but I think it is fairly a factor." At the time of the challenge there were five men and seven women in the jury box.
The court asked defendants counsel if they had any comments. Counsel for Taylor pointed out that Ms. 40 described herself as being from South Bakersfield and also indicated that she never had any contact with any gang members. He saw nothing in comparing the two responses that was different and would justify challenging one and not the other.
The court accepted the prosecutors reasons. The court stated:
"THE COURT: The Court has some concern about the exercise of the challenge, but in effect, on the question of whether or not Ms. [52] was fully representing her knowledge or her understanding of anyone who might be a gang member or who she might know as a gang member or know anything about gang conduct, the basis, as I understand it, Mr. Hamilton, you think she is being somewhat na&idie;ve in that regard or less than fully representative — fully telling us what her knowledge is in that regard.
"The only other inference — the only other information that you have not reflected on in your comments that the Court might consider, and I do consider the way she was — chose to handle the question whether she was single or married. When the Court inquired about that, she said she was single, three children. And upon further inquiry she again stated she was single — she was not married, but not single is the way she put it. I dont know if she said it twice. She said it for sure.
"MR. HAMILTON [district attorney]: Actually, Judge, that was a different juror.
"THE COURT: Was it?
"MR. HAMILTON: I dont mean to interrupt you, but it was a different juror, that was Ms. [06].
"THE COURT: Youre correct. Ill not consider that.
"Insofar as the challenge, Mr. Hamilton has given his reasons. Those reasons are reasons that reflect on the decision he made and that is that she was relative youth. He undertook her representations to be less than forthright or na&idie;ve. Naiveté on the part of a juror, of course, would be something that anyone picking a jury would want to know about or would want to understand whether that was the case. Combination of age and naiveté, of course, can, can be something that would be a proper consideration for an attorney in picking a jury.
"If she is, in fact, na&idie;ve, of course, the age might have something to do with it. If, on the other hand, she was not representing fully any association or knowledge she might have of gangs, of course, can be of great concern if, in fact, she has greater knowledge or understanding of that issue.
"I do think the naiveté reason is reason is a legitimate basis for an excuse. And so the Court will deny the Wheeler challenge as to the challenge of Ms. (52)."
"A criminal defendant is guaranteed the right to be tried by a fair and impartial jury drawn from a representative cross-section of the community." (People v. Lewis (2001) 25 Cal.4th 610, 634.) "The exclusion by peremptory challenge of a single juror on the basis of race or ethnicity is an error of constitutional magnitude." (People v. Silva (2001) 25 Cal.4th 345, 386.) "Prospective jurors may not be excluded from jury service based solely on the presumption that they are biased because they are members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds. [Citations.] A defendant bears the burden of establishing a prima facie case of Wheeler [(People v. Wheeler (1978) 22 Cal.3d 258)] error. [Citation.] If the court finds a prima facie case has been shown, the burden shifts to the prosecution to provide race-neutral reasons for the questioned peremptory challenges. [Citation.] The prosecutor need only identify facially valid race-neutral reasons why the prospective jurors were excused. [Citations.] The explanations need not justify a challenge for cause. [Citation.] `Jurors may be excused based on "hunches" and even "arbitrary" exclusion is permissible, so long as the reasons are not based on impermissible group bias. [Citation.] [Citation.]" (People v. Gutierrez (2002) 28 Cal.4th 1083, 1122.) "Once a trial court has made a sincere and reasoned effort to evaluate each of the stated reasons for a challenge to a particular juror, we accord great deference to its conclusion." (Id. at p. 1126.)
Taylor claims the trial court erred in denying his Batson/Wheeler motion and excusing a prospective juror on the basis of race in violation of the state and federal Constitutions.[] He argues that the record did not support the prosecutors reasons. Richardson joins in this argument.[]
See Batson v. Kentucky (1986) 476 U.S. 79; People v. Wheeler (1978) 22 Cal.3d 258, 276-277.
Each defendant joins in the arguments raised by the other defendant.
First, they contend the record does not firmly establish the age of the challenged juror because she was not asked nor did she tell her age. Defendants argue that the prosecutors age analysis is undercut by the fact that the prospective juror had three children who were old enough for her to work outside the home. The prosecutor stated that he thought the prospective juror appeared to be 19 or 20 years old. It is certainly possible for a 20-year-old to have three young children. The trial court and the parties were in the best position to judge the prospective jurors age. Defendants did not dispute the prosecutors age estimate and the trial court, after probing the issue, accepted the prosecutors remark. On this record we must assume the prosecutors age assessment was fairly accurate.
Next, defendants argue that the prosecutor held a cynical belief that anyone who had lived in South Bakersfield would have had contact with a gang member. Again, after the prosecutor made this statement it went unchallenged and appeared to be accepted as true by the court and by the defendants. Defendants were given an opportunity to challenge this assertion but they did not. On this record we must assume the prosecutors unchallenged assertion had some factual basis.
The prosecutor stated to the court that the prospective juror was "point blank" asked about the subject of gangs. When questioned by the court, the prosecutor was unable to recall who asked the question. Defendant argues that the prosecutors assertion is not true. Counsel for Taylor questioned Ms. 52. Immediately after Ms. 52 stated that her husbands barbershop was in South Bakersfield, Taylors counsel asked, "Do any of you know anybody or come in contact with anybody whos in a gang?" There was no response. While Taylors counsel asked a "group" question, it occurred as the first question directly after he individually questioned Ms. 52. It was clearly directed at the six most recent prospective jurors who had been seated in the jury box. She was thus "point blank" asked as part of the group of six about whether they knew anyone or had contact with anyone in a gang. Additionally, we note that during questioning Ms. 52 was asked if there was anything that had come up so far is questioning that concerned her. She replied, "nothing." Clearly questioning about gangs had come up previously and was a subject included in this global questioning of Ms. 52. The prosecutors misrecollection, if any, was thus immaterial because Ms. 52 was clearly questioned about gang members and given the opportunity to state any gang knowledge she had.
The prosecutor commented that Ms. 52 said she was a long-time resident of South Bakersfield. Defendants claim that this was an erroneous statement. Defendants are correct. Ms. 52 stated she was a resident of South Bakersfield. Nothing in the record established the length of this residency. Additionally, defendants argue that the fact that Ms. 52s husband worked in South Bakersfield had no bearing on her knowledge of South Bakersfield because it was not established how long he had worked there or if Ms. 52 had any contact with his shop. While the prosecutors representation regarding Ms. 52s length of residency was erroneous, it was established that Ms. 52 was a resident of South Bakersfield. Also, while it was not directly shown that Ms. 52 had any direct dealings with her husbands shop, his shop established a further familial connection to the area and a reasonable inference is that she had been to the shop, was familiar with the area, or at least discussed things about the shop with her husband. The erroneous assumption by the prosecutor did not substantially detract from his hypothesis that a person who resided and/or spent much time in South Bakersfield would have at least some minimal knowledge about gang members.
"We accord great deference to a trial courts determination of the sufficiency of a prosecutors explanations for exercising peremptory challenges." (People v. Williams (1997) 16 Cal.4th 635, 666.) Although the prosecutors recounting of details was not entirely accurate, the record of voir dire supported the main basis for his challenge. The trial court probed the prosecutors reasoning and found the prosecutors reasons for the challenge to be proper. Substantial evidence supports the trial courts denial of the Wheeler/Batson motion.
Defendants ask this court to engage in a comparative analysis of the answers given by Ms. 52 and other jurors. The California Supreme Court has repeatedly declined to engage in a comparative analysis of various jurors responses to evaluate the good faith of the prosecutors stated reasons for excusing a prospective juror. (People v. Jones (1997) 15 Cal.4th 119, 162.) Under the principles of Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, we are bound by the decisions of the Supreme Court disallowing comparative analysis.[]
In People v. Johnson (2003) 30 Cal.4th 1302, the California Supreme Court held that a comparative analysis may not be made for the first time on appeal. The parties may rely on such an analysis in the trial court in seeking to make a prima facie case. We have accepted the trial courts finding of a prima facie case and therefore do not need to review any comparative analysis utilized below.
II. Propriety of Photographic Identification
Detective Adair questioned G Bob at the police department on December 7, 2000. At the time of the interview, there was no question in the officers mind that Taylor and Richardson had been in G Bobs room at the Desert Star with McCoy prior to the time McCoy was shot. G Bob stated that the officers had not made any promises to him or threatened him and that he would give his statement of his own free will. G Bob told Detective Adair that he knew McCoy and saw him in the parking lot of the motel with two individuals before the shooting. He invited them into his room thinking that they were selling rock cocaine. When he found out they did not have drugs to sell, he left with them, walking towards room 4. He saw one of the individuals, not McCoy, pull out a gun. Shots were fired and G Bob fled. Detective Adair showed G Bob two photographs, one of Richardson and one of Taylor. The photographs had the names of the defendants printed on them. Detective Adair asked G Bob if either person in the photographs looked like the person who pulled out the firearm. G Bob pointed to the photograph of Richardson.
Defendant Taylor filed a pretrial motion in limine to suppress several pretrial identifications including the identification by G Bob of Richardson as the person who pulled out a gun prior to the shooting. Defendant Richardson joined in the motion.
Detective Adair testified at the in limine hearing as set forth above. G Bob then testified that Detective Adair showed him the photographs, but he did not recognize either individual. He knew Taylors and Richardsons names because Detective Adair had said them to him; in addition, the photographs had names under them. He identified Richardson because Detective Adair led him to believe that he could be prosecuted for the crime and he feared being prosecuted for the crime. G Bob testified that Detective Adair pointed to the photograph he wanted G Bob to identify.
The trial court denied the motion, finding that the pretrial photographic identification was not unduly suggestive.
Defendant Richardson claims the photographic identification provided by G Bob was the result of an impermissibly suggestive police procedure. He argues that the identification had a prejudicial effect on the result of the trial.
Traditionally, "[I]n order to determine whether the admission of identification evidence violates a defendants right to due process of law, we consider (1) whether the identification procedure was unduly suggestive and unnecessary, and, if so, (2) whether the identification itself was nevertheless reliable under the totality of the circumstances, taking into account such factors as the opportunity of the witness to view the suspect at the time of the offense, the witnesss degree of attention at the time of the offense, the accuracy of his or her prior description of the suspect, the level of certainty demonstrated at the time of the identification, and the lapse of time between the offense and the identification. [Citations.]
"The defendant bears the burden of demonstrating the existence of an unreliable identification procedure. [Citations.] `The question is whether anything caused defendant to "stand out" from the others in a way that would suggest the witness should select him. [Citation.]" (People v. Cunningham (2001) 25 Cal.4th 926, 989-990.)
The parties admit that the situation here differs in many respects from traditional cases where the issue is whether an impermissibly suggestive identification procedure gives rise to an irreparable misidentification in violation of due process. The presence of Taylor and Richardson in the parking lot of the Desert Star Motel at the time of the shooting was never in doubt. G Bobs statement to Detective Adair was not one of identification of the defendants—it was G Bobs account of what occurred with the defendants who were present at the event in question. Although the parties and the trial court approached the matter in terms of suggestive identification procedures, the matter can be resolved by applying the law relating to the admission of inconsistent statements.
"Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with Section 770." (Evid. Code, § 1235.) Evidence Code section 770 provides:
"Unless the interests of justice otherwise require, extrinsic evidence of a statement made by a witness that is inconsistent with any part of his testimony at the hearing shall be excluded unless:
"(a) The witness was so examined while testifying as to give him an opportunity to explain or to deny the statement; or
"(b) The witness has not been excused from giving further testimony in the action."
G Bob testified at trial that he did not see Taylor, Richardson, or McCoy in possession of any guns or masks prior to the shooting. He did not remember telling Detective Adair anything, but at the time of his interview he was paranoid and scared and would have told Detective Adair anything he wanted to hear. G Bob testified that on the way to the station Detective Adair told him it would be easy to charge him with conspiracy. He was also told that Taylor and Richardson were suspects.
G Bobs statement to Detective Adair that he saw Richardson pull out a gun prior to the shooting was clearly inconsistent with his trial testimony and was admissible as a prior inconsistent statement. Furthermore, we do not see any unfairness offending constitutional standards in the admission of the evidence. The jury was fully aware of G Bobs version of why he told Detective Adair that Richardson had a gun. The jury was also aware of Detective Adairs version. The trier of fact was able to view the demeanor of the witnesses and judge their truthfulness. Detective Adair and G Bob were both subject to cross-examination. Evidence Code section 1235 permits inconsistent statements to be used as substantive evidence and provides "`a party with desirable protection against the "turncoat" witness who changes his story on the stand and deprives the party calling him of evidence essential to his case." (People v. Brown (1995) 35 Cal.App.4th 1585, 1597.) The trial court properly admitted the evidence that G Bob pointed to Richardsons picture as the person whom he saw with a gun.
III. Substantial Evidence to Support Provocative Act Murder
The People presented two theories of liability for the first degree murder conviction. The first was felony murder. Under this theory Richardson and Taylor would be guilty of the first degree murder of their accomplice, McCoy, if one of them shot and killed McCoy during the course of the attempted robbery. The second theory for a first degree murder conviction was the provocative act theory.
Defendant Richardson argues that the murder conviction cannot be sustained because the evidence demonstrates that McCoy was responsible for firing into room 4 and neither Taylor nor Richardson committed an intentional provocative act. Richardson contends that because a deceased felon cannot be held liable for his own murder, McCoys conduct in causing the killing cannot be the basis for the vicarious liability of another person who does not engage in any life-threatening acts other than those implicit in the crime of robbery. Richardson claims that the evidence demonstrates that only one shooter, McCoy, fired into room 4. Defendant Taylor joins in this argument.
"The provocative act murder doctrine has traditionally been invoked in cases in which the perpetrator of the underlying crime instigates a gun battle, either by firing first or by otherwise engaging in severe, life-threatening, and usually gun-wielding conduct, and the police, or a victim of the underlying crime, responds with privileged lethal force by shooting back and killing the perpetrators accomplice or an innocent bystander. [Citations.]" (People v. Cervantes (2001) 26 Cal.4th 860, 867.) "[M]ere participation in an armed robbery is not sufficient to invoke murder liability, direct or vicarious, when the victim resists and kills." (In re Joe R. (1980) 27 Cal.3d 496, 504.)
"[T]o prove the provocative act theory it must be shown that the defendant or a surviving accomplice committed a life-threatening act beyond that necessary to commit the robbery." (People v. Garcia (1999) 69 Cal.App.4th 1324, 1331.) If the deceased accomplice is the sole provocateur, the other accomplices may not be held liable for his murder. This is so because the provocateurs conduct would not have resulted in the unlawful killing of another human being, but resulted in his own killing. Because one cannot be guilty of murder in connection with ones own death, a living accomplice cannot under this situation be liable upon the principle of vicarious responsibility for the death of his deceased accomplice. (Id. at pp. 1330-1331.)
Defendant Richardson filed a motion for new trial claiming there was no evidence that McCoy was accidentally shot by either defendant, so they could not be liable under a theory of felony murder. Richardson also argued that he could not be convicted of first degree murder because there was no evidence he or Taylor committed a life-threatening provocative act beyond that necessary to commit the attempted robbery. He claimed the firearm use enhancement findings showed that neither of the defendants fired the shot that injured McDaniel. Taylor filed a similar motion.
The trial court denied the motion. The court stated it believed the provocative act theory was the only theory supported by the evidence that would sustain the first degree murder conviction. The court found that there was evidence to support the theory that Taylor was the person who was inside the room discharging the nine-millimeter firearm. Thus, the defendants were properly convicted of first degree provocative act murder.
The defendants were charged in count 1, conspiracy, with the use or discharge of a firearm during the commission of certain enumerated felonies pursuant to Penal Code section 12022.53. The jury was instructed on this enhancement as follows:
"If, on the other hand, you find that the crime of conspiracy to commit robbery was committed for the benefit of, at the direction of, or in association with a criminal street gang as [alleged] in Penal Code § 186.22b, and you find that allegation to be true as to a defendant, then you do not have to find that that defendant personally discharged the firearm that proximately caused great bodily injury or death to a person other than an accomplice in the commission of the crime of conspiracy to commit robbery. In order to find this allegation to be true when you find that the crime of conspiracy to commit robbery was committed for the benefit of a criminal street gang, you must find:
"1. The crime of conspiracy to commit robbery was committed for the benefit of, at the direction of, or in association with a criminal street gang;
"2. A principal in the crime of conspiracy to commit robbery intentionally discharged a firearm which proximately caused great bodily injury or death to a person other than an accomplice during the commission of the crime alleged; and
"3. The individual defendant was a principal in the crime of conspiracy to commit robbery."
Although the jurors were instructed that they did not need to find that the defendant personally discharged the firearm, they were given the opportunity to so find in the verdict form. The verdict form for each defendant gave the jury three alternatives as follows:
"FINDING ON PENAL CODE SECTION 12022.53(D)
We, the Jury, empaneled to try the above entitled cause, find it to be true as to [defendant] [that he] did personally and intentionally discharge a firearm which proximately caused great bodily injury or death to another person, not an accomplice, during the commission of the above offense, within the meaning of Penal Code Section 12022.53(d), as alleged in the Information.
"Foreperson
"We, the Jury, empaneled to try the above entitled cause, find it to be true as to [defendant] that he was a principal in a crime in which another principal personally and intentionally discharged a firearm which proximately caused great bodily injury or death to another person, not an accomplice, during the commission of the above offense, within the meaning of Penal Code Section 12022.53(d), as alleged in the Information.
"Foreperson
"We, the Jury, empaneled to try the above entitled cause, find it to be not true as to [defendant] [that he] did personally and intentionally discharge a firearm which proximately caused great bodily injury or death to another person, not an accomplice, during the commission of the above offense, within the meaning of Penal Code Section 12022.53(d), as alleged in the Information.
"Foreperson"
For each defendant the jury chose the second alternative. The second alternative, which the jury chose, states that "another principal personally and intentionally discharged a firearm which proximately caused great bodily injury or death to another person, not an accomplice." Because the same finding was made for Taylor and Richardson that "another principal" fired the weapon that caused the injury to McDaniel, the only other available principal would be McCoy, the deceased. The slug recovered from McDaniel was from the nine-millimeter weapon; these casings were also found inside the room.
The court struck these weapon enhancements because they did not apply to a conspiracy to commit robbery. We need not determine if the weapon enhancements were properly stricken nor do we need to determine if the jury findings are still viable even though the court struck them in order to determine the sufficiency of the evidence question. Additionally we will proceed in analyzing the sufficiency of the evidence question on the assumption, for the sake of argument only, that neither Taylor nor Richardson fired the weapon that caused great bodily injury to McDaniel. Finally, without determining the question, we will proceed on the assumption that the trial court was correct when it found that substantial evidence does not support a first degree murder based on a felony murder theory.
Thus, we will proceed on the assumption that McCoy fired the nine-millimeter weapon that injured McDaniel. If the evidence demonstrates that McCoy was the only individual who shot into room 4, then neither Richardson nor Taylor is guilty of first degree murder because McCoy would be the sole provocateur of his own murder. But, we find that the evidence clearly supports a finding that two people fired weapons into room 4; thus there was more than one provocateur and the defendants were properly convicted of first degree murder.
On appeal "the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which 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. Johnson (1980) 26 Cal.3d 557, 578.) Substantial evidence includes circumstantial evidence and the reasonable inferences flowing therefrom. (In re James D. (1981) 116 Cal.App.3d 810, 813.)
Aaron Gooden testified that Richardson always had a gun and Taylor had a gun the evening of December 5, 2000. G Bob told Detective Adair that Richardson pulled out a gun as he approached room 4. McDaniel testified that he opened the door to room 4 and saw "guns" and "gun flashes." V testified that one of the three men came in the room shooting while another man stayed outside the room shooting into the room. He told Detective Adair that the two individuals with dark clothing were shooting. McCoy was identified as the individual wearing the light clothing. Calhoun told Detective Adair that the person with light-colored clothing stood outside of the room and fired inside. Two spent . 38-caliber bullets were in room 4; they were not fired from the gun that shot McDaniel in the chest nor were they fired from the gun that killed McCoy. There were numerous bullet holes in room 4 where the police could not determine which gun caused the damage. From all of the above evidence, the jury could reasonably have determined that McCoy fired the weapon that injured McDaniel and one or both of the other defendants also fired into room 4. Thus McCoy was not the sole provocateur of his own death and at least one of his accomplices was a surviving provocateur. Substantial evidence supports the first degree murder convictions of both defendants.
IV. Viability of Provocative Act Murder Theory
Taylor acknowledges that the California Supreme Court in Pizano v. Superior Court (1978) 21 Cal.3d 128 endorsed the provocative act murder doctrine to establish a first degree murder, but he argues that in "light of the hydra-headed growth of the doctrine in the intermediate appellate courts in the quarter century since Pizano, the time has come for California courts to re-examine" the doctrine. He claims this court may do so under the judicial prerogative to conform the states common law to contemporary conditions and enlightened notions of justice.
"The California Supreme Court has set forth the provocative act murder doctrine as the law of this state. [Citation.] In 1984, the California Supreme Court was invited to reconsider the provocative act murder doctrine of liability for killings committed by one other than an accomplice on the theory that the clear trend of modern decisions leads away from the proximate cause theory of liability as a basis for felony murder. [Citation.] It declined to overturn this doctrine. [Citation.] As an intermediate appellate court, we have no authority to overrule our states highest court." (People v. Briscoe (2001) 92 Cal.App.4th 568, 595.)
Regardless of whether this court might wish to venture forth and apply enlightened notions of justice to this issue, we are bound by the rulings of the California Supreme Court and must follow their decisions. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.)
V. Applicability of Special Circumstance to Provocative Act Murder
In addition to the first degree murder verdicts, the jury found true the special circumstance that the murder was committed while the defendants were involved in the commission of an attempted robbery. (Pen. Code, § 190.2, subd. (a)(17) (A). Defendant Taylor contends that as a matter of statutory construction and constitutional imperative, the special circumstance provisions of Penal Code section 190.2, subdivision (a) (17) and subdivision (d) cannot be applied to his provocative act murder conviction. Defendant Richardson joins in this argument.
Taylor acknowledges that the position he advocates was rejected in People v. Briscoe, supra, 92 Cal.App.4th at pages 595-599. We have reviewed the Briscoe opinion and find its reasoning to be sound. The special circumstance was properly applied to defendants first degree murder convictions.
VI. Failure to Instruct on Proximate Cause
The jury was instructed pursuant to CALJIC No. 8.12 on the provocative act murder theory as follows:
"A homicide committed during the commission of a crime by a person who is not a perpetrator of such crime, in response to an intentional provocative act by a perpetrator of the crime other than the deceased perpetrator, is considered in law to be an unlawful killing by the surviving perpetrators of the crime.
"An intentional provocative act is defined as follows:
"1. The act was intentional,
"2. The natural consequences of the act were dangerous to human life, and
"3. The act was deliberately performed with knowledge of the danger to, and with conscious disregard for human life.
"In order to prove this crime, each of the following elements must be proved:
"1. The crime of robbery or attempted robbery was committed;
"2. During the commission of the crime, a surviving perpetrator also committed an intentional provocative act;
"3. Another person not a perpetrator of the crime of robbery or attempted robbery in response to the provocative act, killed a perpetrator of the crime;
"4. The surviving perpetrators commission of the intentional provocative act was a cause of the death of D. J. McCoy.
"Murder, which occurs during the commission or attempt to commit the crime of robbery, when there was in the mind of the perpetrators of that crime, the specific intent to commit robbery, is murder of the first degree.
"Murder which is not of the first degree is murder of the second degree."
The use note for this instruction states that the term "cause" must be defined pursuant to CALJIC Nos. 3.40 and 3.41.
Causation instructions were not given for the provocative act murder theory. We shall assume for the sake of argument that this was error. Defendant Richardson claims that the trial court committed reversible error by failing to instruct on proximate cause as an aspect of provocative act murder. He posits several scenarios from which he argues the jury may have found defendants guilty without finding they were the proximate cause of McCoys death. He contends the evidence supported a theory that there was bad blood between the rival gangs and the occupants of room 4 had knowledge that others were "gearing up" outside. From this he asserts the jury may have found that the situation was one of mutual combat as opposed to the ambush scenario portrayed by the prosecution. He also claims that the participation of Richardson and Taylor may have been no more than verbal participation, and from the definition of direct cause this could have been enough to support a provocative act murder conviction. The "thorny question" defendants believe has not been answered is whether the actions of Richardson and/or Taylor were the proximate cause of the return gunfire that caused McCoys death. Taylor joins in this argument.
"No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, ... unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice." (Cal. Const., art. VI, § 13.) The error results in a miscarriage of justice "only if it appears reasonably probable that a result more favorable to the defendant would have been reached absent the error." (People v. Lee (1999) 20 Cal.4th 47, 62.)
We fail to see how under the instructions given the jury could have returned a verdict of guilt for first degree murder utilizing any of the possibilities urged by defendant. First, the instruction as given precluded a finding that this was merely a mutual combat situation. In order to find provocative act murder, the jury had to find that the crime of robbery or attempted robbery was committed and that during the commission of the crime a surviving perpetrator also committed an intentional provocative act. Thus the jury clearly found that the defendants and McCoy encountered the occupants in room 4 as a result of their attempt to rob them, and the scenario was not merely one of rival gangs battling for no particular purpose other than their rivalry. Furthermore, the instruction stated twice that the homicide must be committed "in response" to the provocative act.
Next, the jury could not have found that Richardsons and Taylors participation was merely verbal. The jury was required to find that either Taylor or Richardson or both committed an intentional provocative act. A requirement of an intentional provocative act is that the natural consequences of the act are dangerous to human life. Verbal exchanges do not meet this criterion.
Defendants have not shown that the failure to give instructions on cause was prejudicial to their case.
VII. Conspiracy Instructions
The defendants were charged in count one of conspiracy to commit robbery. The jury was read a series of instructions all related to conspiracy. Included among these instructions was CALJIC No. 6.11 (2000 revision), given to the jury as follows:
"Each member of a criminal conspiracy is liable for each act and bound by each declaration of every other member of the conspiracy if that act or declaration is in furtherance of the object of the conspiracy.
"A member of a conspiracy is not only guilty of the particular crime that to his knowledge his confederates agreed to and did commit, but is also liable for the natural and probable consequences of any crime or act of a co-conspirator to further the object of the conspiracy, even though that crime or act was not intended as a part of the agreed upon objective and even though he was not present at the time of the commission of that crime or act.
"You must determine whether the defendant is guilty as a member of a conspiracy to commit the originally agreed upon crime, and, if so, whether the crime or acts alleged in Count 1 was or were perpetrated by a co-conspirator in furtherance of that conspiracy and was a natural and probable consequence of the agreed upon criminal objective of that conspiracy.
"Whether a consequence is `natural and probable is an objective test based not on what the defendant actually intended but on what a person of reasonable and ordinary prudence would have expected would be likely to occur. The issue is to be decided in light of all of the circumstances surrounding the incident. A `natural consequence is one which is within the normal range of outcomes that may be reasonably expected to occur if nothing unusual has intervened.
"`Probable means likely to happen."
Defendant Richardson contends that this instruction was erroneous insofar as it was used to support liability for murder. Defendant makes a lengthy argument of why conspiracy is not a theory of criminal liability on which the prosecution can alone establish a murder conviction. Defendant acknowledges that the jury was not instructed on first degree felony murder in pursuance of a conspiracy or second degree felony murder of an aider and abettor. Nevertheless, he argues that conspiracy crept its way into these proceedings as an alternative basis for the murder conviction.
The conspiracy instructions were given in one portion of the instructions followed by the murder instructions. The murder instructions provided two theories to support a first degree murder conviction, felony murder and provocative act murder. During arguments to the jury, it was clearly told of only these two methods to reach a murder conviction. The jury was not told that they could convict the defendants of murder based solely on a conspiracy. As previously set forth, "No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, ... unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice." (Cal. Const., art. VI, § 13.) We fail to see how the jury could have misconstrued the instruction and utilized conspiracy as a method to convict the defendants of murder.
VIII Gang Enhancement
The jury found true the enhancement that the defendants committed the conspiracy for the benefit of a criminal street gang pursuant to Penal Code section 186.22, subdivision (b) (1). The trial court imposed a five-year upper term for the conspiracy count and a five-year term for the enhancement for each defendant.[]
Although the jury found the defendants guilty of conspiracy with the intent to commit robbery, it did not specify the degree of robbery. The court therefor utilized the upper term of five years for second degree robbery in fixing the sentence for the conspiracy.
Citing People v. Ortiz (1997) 57 Cal.App.4th 480 defendant, Taylor contends the gang enhancement is not properly imposed in a case where the underlying felony is punishable by imprisonment in the state prison for life. Richardson joins in this argument.
Respondent also cites Ortiz and agrees that the enhancement should not have been imposed.
We decline to accept the respondents concession because we find that it is incorrect.
Penal Code section 186.22, subdivision (b) (1) provides:
"(b)(1) Except as provided in paragraphs (4) and (5), any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished as follows: [¶] ..."
Subdivisions (b)(4), (b)(5) and (c) of Penal Code section 186.22 provide:
"(4) Any person who is convicted of a felony enumerated in this paragraph committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, be sentenced to an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greater of:
"(A) The term determined by the court pursuant to Section 1170 for the underlying conviction, including any enhancement applicable under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2, or any period prescribed by Section 3046, if the felony is any of the offenses enumerated in subparagraphs (B) or (C) of this paragraph.
"(B) Imprisonment in the state prison for 15 years, if the felony is a home invasion robbery, in violation of subparagraph (A) of paragraph (1) of subdivision (a) of Section 213; carjacking, as defined in Section 215; a felony violation of Section 246; or a violation of Section 12022.55.
"(C) Imprisonment in the state prison for seven years, if the felony is extortion, as defined in Section 519; or threats to victims and witnesses, as defined in Section 136.1.
"(5) Except as provided in paragraph (4), any person who violates this subdivision in the commission of a felony punishable by imprisonment in the state prison for life, shall not be paroled until a minimum of 15 calendar years have been served.
"(c) If the court grants probation or suspends the execution of sentence imposed upon the defendant for a violation of subdivision (a), or in cases involving a true finding of the enhancement enumerated in subdivision (b), the court shall require that the defendant serve a minimum of 180 days in a county jail as a condition thereof." (Italics added.)
In People v. Ortiz, supra, 57 Cal.App.4th at pages 485-486, People v. Herrera (1999) 70 Cal.App.4th 1456, 1465, and People v. Herrera (2001) 88 Cal.App.4th 1353, 1365, the courts held that when the defendant was subject to a life term with a parole eligibility of less than 15 years the court could only impose the parole eligibility requirement of Penal Code section 186.22 and could not also impose a determinate term for the gang enhancement.[] In each of the above three cases the underlying crime to which the gang enhancement was attached was subject to a life term.[]
In People v. Herrera, supra, 88 Cal.App.4th at pages 1357-1365 the court addressed the gang enhancement in more than one situation. In addition to the above holding, it also held that a determinate term could be added to a crime when the parole eligibility date exceeded that contained in Penal Code section 186.22 because both additional punishments (the determinate term and parole eligibility limitation) were not applicable.
Each of the convictions in the above three cases occurred before Penal Code section 186.22 was amended effective March 8, 2000. The defendants here are subject to the post March 8, 2000 version. For the purposes of our discussion it is not necessary to distinguish the earlier version with the version in effect at the time of the crimes here.
Although each of the defendants here was sentenced to life in prison without the possibility of parole on the murder convictions, the gang enhancement was alleged in count one, conspiracy to commit robbery. The conspiracy conviction did not subject to the defendants to a life term. (Pen. Code, § 182, 213.) Defendants thus were not found to have violated Penal Code section 186.22 "in the commission of a felony punishable by imprisonment in the state prison for life." (Pen. Code, § 186.22, subd. (b)(5).) The gang enhancement was properly applied to count one, conspiracy to commit robbery.
IX. Applicability of Penal Code Section 654 to Count 1
"`The purpose of section 654 is to prevent multiple punishment for a single act or omission, even though that act or omission violates more than one statute and thus constitutes more than one crime. Although the distinct crimes may be charged in separate counts and may result in multiple verdicts of guilt, the trial court may impose sentence for only one offense .... [Citation.]
"On the other hand, multiple punishment is proper if the evidence discloses a defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other. The California Supreme Court has defined the proper test as follows: `Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one. [Citation.]" (People v. Mendoza (1997) 59 Cal.App.4th 1333, 1345.)
"With respect to conspiracy, the rule was well summarized in People v. Ramirez (1987) 189 Cal.App.3d 603, 615-616 ..., as follows: `Because of the prohibition against multiple punishment in section 654, a defendant may not be sentenced "for conspiracy to commit several crimes and for each of those crimes where the conspiracy had no objective apart from those crimes. If, however, a conspiracy had an objective apart from an offense for which the defendant is punished, he may properly be sentenced for the conspiracy as well as for that offense." [Citations.] Thus, punishment for both conspiracy and the underlying substantive offense has been held impermissible when the conspiracy contemplated only the act performed in the substantive offense [citations], or when the substantive offenses are the means by which the conspiracy is carried out [citation]. Punishment for both conspiracy and substantive offenses has been upheld when the conspiracy has broader or different objectives from the specific substantive offenses. [Citations.]" (People v. Vargas (2001) 91 Cal.App.4th 506, 570-571.)
Defendant Taylor argues that the trial court erred when it did not stay the sentence on the count one conspiracy. He claims the conspiracy to commit robbery led to the attempted robbery, which elevated the provocative act murder to murder in the first degree and which provided the special circumstance that attached to count two to raise the penalty to life without the possibility of parole. Defendant Richardson joins in this argument.
At sentencing, counsel for Taylor argued that the trial court should not impose consecutive sentences on counts one and two because the crimes and their objectives were not independent of each other nor were they committed at different times or separate places. The prosecutor agreed that the more appropriate route on the sentence choice between concurrent and consecutive would be to impose concurrent sentences because the intent was not "so divisible to warrant consecutive sentence."
Respondent asserts that the sentence on count one was properly imposed and there was no violation of Penal Code section 654: "In this case, the conspiracy had as its objective a robbery. However, when one or more of the perpetrators engaged in the provocative act of shooting into room 4, they went beyond the objective of conspiracy and committed murder. Moreover, in light of the fact that one of their own coconspirators was killed, it cannot be said that the murder was an objective of the conspiracy."
Defendant relies on People v. Guzman (1996) 45 Cal.App.4th 1023 to support his position. In Guzman, defense counsel began to argue that Penal Code section 654 applied to the two charges. The court interrupted and told defense counsel it agreed with him. The court imposed concurrent sentences. Defendant appealed the trial courts failure to stay one of the sentences under Penal Code section 654. The appellate court agreed the trial court erred. "The [trial] courts comments indicate the court concluded Penal Code section 654 applied to both the grand theft and the robbery offenses. Hence, this appears to be another case in which a trial court made that common error of imposing concurrent terms, in lieu of staying the terms subject to Penal Code section 654... ." (Guzman, supra, at p. 1028.)
The discussion of separate intents in this case was one involving the decision to impose concurrent or consecutive sentences. Neither the parties nor the court discussed the applicability of Penal Code section 654 and, unlike what occurred in Guzman, there are no comments on the record here to indicate the trial court was inclined to stay the conspiracy count. The object of the conspiracy was robbery, not murder; thus the conspiracy did not contemplate only the act performed in the murder. Also, the murder was not the means by which the conspiracy was carried out. The trial court did not err in imposing concurrent sentences.
X. Restitution Fine
The trial court imposed $200 restitution fines on both defendants pursuant to Penal Code sections 1202.4 and 1202.45. Penal Code section 1202.45 provides: "In every case where a person is convicted of a crime and whose sentence includes a period of parole, the court shall at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4. This additional restitution fine shall be suspended unless the persons parole is revoked."
Defendant Taylor asserts a restitution fine under Penal Code section 1202.45 is applicable only when the defendant is subject to a period of parole: because his sentence does not include a period of parole, the fine under Penal Code section 1202.45 does not apply. Defendant Richardson joins in this argument.
Respondent concedes that the trial court improperly imposed a restitution fine under Penal Code section 1202.45. Respondent is correct. (People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1183.)
XI. Correction of Abstract
The original abstracts of judgment indicated that defendants were convicted of conspiracy to commit murder. Defendant Taylor contends the abstract of judgment should be corrected to reflect that the conspiracy was one to commit robbery, not murder. Defendant Richardson joins in this argument. Respondent agrees.
The abstracts of judgment were corrected in the trial court on July 25, 2002. There is no longer a need for this court to order that the abstracts be corrected in this regard.
DISPOSITION
The abstract of judgment for defendant Taylor and the abstract of judgment for defendant Richardson are ordered corrected to delete the imposition of the $200 restitution fine imposed pursuant to Penal Code section 1202.45. The trial court is further ordered to forward the corrected abstracts to the appropriate authorities. In all other respects the judgment is affirmed.
WE CONCUR: DIBIASO, Acting P. J., GOMES, J.