People v. Miller

28 Cal. App. 4th 522, 33 Cal. Rptr. 2d 663, 94 Daily Journal DAR 13269, 94 Cal. Daily Op. Serv. 7241, 1994 Cal. App. LEXIS 942

Opinions

Opinion

WOODS (Fred), J.

A jury convicted appellant of first degree murder (Pen. Code,¹ § 187) and found true a robbery special circumstance (§ 190.2, subd. (a)(17)) and a firearm allegation. (§ 12022, subd. (a)(1).) Financial gain (§ 190.2, subd. (a)(1)) and lying-in-wait (§ 190.2, subd. (a)(15)) special circumstances were found not true. Appellant was sentenced to state prison for life without the possibility of parole.

Appellant contends the trial court erred in refusing to give a grand theft person instruction and in giving the standard reasonable doubt instruction. (CALJIC No. 2.90.) We find no error and affirm the judgment.

Factual Background

Appellant’s claimed errors (an instruction given and an instruction refused) do not require a minute detailing of the evidence. We summarize the evidence with a perspective favoring the judgment. (People v. Barnes (1986) 42 Cal.3d 284, 303-304 [228 Cal.Rptr. 228, 721 P.2d 110].)

Appellant and David Wayne Smith² (Smith) had worked together in Seattle and were friends. At Smith’s invitation appellant left Seattle in July 1992, came to Southern California, stayed at Smith’s residence, and did work for Smith.

Smith had a business with Stefan Sweetster³ (the victim) called Vision Doors and Windows. Besides doors and windows, the business was also involved in the theft of business machines and computers. On October 16, 1992, the date the victim was murdered, the business had 275 pieces of stolen business equipment worth about $70,000.

On the evening of October 16, 1992, appellant, Smith, and the victim left the victim’s apartment and drove in a white van to a remote area in the Santa Monica mountains. All three got out and a short distance from the van the victim was fatally shot five times in the head, face, and neck with a .38-caliber firearm. Appellant and Smith removed the victim’s wallet and other identification and left in the van. They went to a bar and then to the victim’s apartment where they took some of the victim’s property. They spent the night at Smith’s residence.

Using false names appellant and Smith rented a storage unit in Huntington Beach. They then loaded all the stolen computers and business equipment from the Vision Doors and Windows business into a van, drove to their storage unit, and unloaded the equipment. Appellant cleaned and hid the van.

The victim’s body was promptly discovered by patrol agents who had seen the suspicious white van. Police recovered a pager from the victim but found no identification.

Investigating officers made contact with Smith three days after the murder when Smith, in order to feign ignorance of his partner’s whereabouts, called the victim’s pager. Smith gave several conflicting statements, finally admitting being present at the murder site. He implicated appellant, who he said shot the victim.

Appellant was soon arrested at Smith’s residence attempting to flee. He gave several conflicting statements to the police, first claiming that “Richard" shot the victim, then admitting there was no Richard, and finally saying Smith shot the victim.

Discussion

1. Appellant contends the trial court erred in refusing to give a grand theft person instruction.

Defense counsel requested a grand theft person instruction. (§ 487, former subd. 2: “Grand theft is theft committed ... 2. When the property is taken from the person of another.” The current statute is § 487, subd. (c).) Ultimately, the trial court refused the request.

Appellant contends the refusal was error. His argument is based upon a trial court’s duty to instruct on lesser included offenses. Appellant argues: (1) There was evidence of grand theft person; (2) grand theft person is a lesser included offense of robbery; and (3) robbery was both a special circumstance allegation and a relied-upon felony-murder theory for first degree murder.

As authority for his argument appellant cites People v. Ramkeesoon (1985) 39 Cal.3d 346 [216 Cal.Rptr. 455, 702 P.2d 613], People v. Turner (1990) 50 [268 Cal.Rptr. 706, 789 P.2d 887], People v. Webster (1991) 54 Cal.3d 411 [285 Cal.Rptr. 31, 814 P.2d 1273], and People v. Kelly (1992) 1 Cal.4th 495 [3 Cal.Rptr.2d 677, 822 P.2d 385]. All are inapposite because, unlike the instant case, in each the defendant was charged with robbery.

Appellant was charged only with murder, not robbery. The robbery special-circumstance allegation had no effect on what offenses were included in the murder charge (People v. Wolcott (1983) 34 Cal.3d 92, 101 [192 Cal.Rptr. 748, 665 P.2d 520]) nor did reliance on a felony-murder theory. The included offense doctrine applies only to charged offenses. (§ 1159.) Appellant was not charged with robbery and— notwithstanding the robbery special-circumstance allegation and prosecution reliance upon a robbery-murder theory—could not have been convicted of robbery.⁴ Accordingly, because grand theft person is not a lesser included offense of murder, the trial court had no sua sponte duty to instruct on grand theft person.

This conclusion does not end the matter. Although, as we have noted, appellant’s argument is based only upon the lesser included offense doctrine, respondent appropriately discussed the lesser-related offense doctrine.

We are satisfied the lesser related offense issue is fairly before us, having been raised in the trial court and in respondent’s brief, and we now consider it.

People v. Geiger, supra, 35 Cal.3d 510 held that in appropriate circumstances a defendant is entitled to jury instructions on related but not necessarily included offenses. (Id. at p. 530.) Those circumstances are: “the existence of some basis, other than an unexplainable rejection of prosecution evidence, on which the jury could find the offense to be less than that charged. [SI] Second, the offense must be one closely related to that charged and shown by the evidence . . . . [¶] Finally, the instructions must be justified by the defendant’s reliance on a theory of defense that would be consistent with a conviction for the related offense.” (Id. at p. 531.)

The trial court refused to instruct on grand theft person because that offense was not “closely related” to the charged offense of murder. We conclude the trial court was correct. (See People v. Boyd (1985) 167 Cal.App.3d 36 [212 Cal.Rptr. 873] [robbery charged; defendant requested instructions on attempted possession of cocaine, exhibiting a weapon, and assault with a deadly weapon properly refused]; People v. Sava (1987) 190 Cal.App.3d 935 [235 Cal.Rptr. 694] [misdemeanor drunk driving charged; defendant-requested instructions on speeding and following-too-closely infractions properly refused]; People v. Simpson (1987) 192 Cal.App.3d 1360 [237 Cal.Rptr. 910] [felony assault charged; defendant-requested battery instruction properly refused]; People v. Hill (1992) 6 Cal.App.4th 33 [8 Cal.Rptr.2d 123] [selling an in lieu of controlled substance charged; defendant-requested petty theft by false pretense instruction properly refused]; People v. Araujo (1992) 10 Cal.App.4th 700 [12 Cal.Rptr.2d 662] [burglary charged; misdemeanor joyriding (§ 499b) instruction properly refiised].)

In explaining “closely related” Geiger noted “the right to instructions on related offenses is not without limit . . . [and] exists ... to avoid any incentive to convict the defendant on a greater offense than that which he committed.” (People v. Geiger, supra, 35 Cal.3d at p. 531.)

No such incentive was present here. If the jury believed Smith shot the victim and appellant was unaware he was going to do so, the jury, as instructed, could have convicted appellant of accessory after the fact (§ 32; CALJIC No. 6.40), a lesser related offense. If the jury believed appellant was aware Smith was going to shoot the victim (and aided or abetted him) but the shooting was not during the commission of a robbery the jury, as instructed, could have convicted him of second degree murder.⁵

An additional reason should be noted.

Had the trial court incorrectly instructed on grand theft person, unintended complications could have resulted. We explain.

It was possible, from the evidence, to convict appellant of first degree murder, either as premeditated or as committed during the commission of a robbery. It was also possible to convict appellant of only second degree murder. Had the trial court given the subject instruction it would have been possible to convict appellant not only of first or second degree murder but also of grand theft person.

Had the jury convicted appellant of either first degree or second degree murder and also convicted him of grand theft person we would be confronted by this unintended complication: “The conviction of a related offense constitutes an acquittal of the charged offense.” (People v. Geiger, supra, 35 Cal.3d at p. 528.)

Such a possibility—that conviction of grand theft person might constitute an acquittal of murder—underscores the correctness of the trial court’s determination⁶ that grand theft person was not “closely related" to murder.

2. Appellant contends the trial court erred in giving the standard reasonable doubt instruction (CALJIC No. 2.90).

Victor v. Nebraska (1994) _ U.S. _ [127 L.Ed.2d 583, 114 S.Ct. 1239] found CALJIC No. 2.90 constitutional. Appellant’s contention is without merit.

Disposition

The judgment is affirmed.

Lillie, P. J., concurred.

1 Statutory references, unless otherwise noted, are to the Penal Code.

2 A codefendant not tried with appellant and not a party to this appeal.

3 The information spells the victim’s name this way. Appellant and respondent spell his name Sweetzer.

4 Additionally, because robbery can be committed without committing grand theft person the latter is not an included offense of the former. {People v. Geiger (1984) 35 Cal.3d 510, 517, fn. 4 [199 Cal.Rptr. 45, 674 P.2d 1303, 50 A.L.R.4th 1055]; People v. Rush (1993) 16 Cal.App.4th 20, 27 et seq. [20 Cal.Rptr.2d 15] (dis. opn. of Woods (Fred), J.).)

5 At appellant’s request the trial court instructed the jury: “Taking property by force or fear for the purpose of destroying it to prevent identification of a victim whom a defendant intended to murder would constitute robbery but would not constitute a murder during the commission of a robbery.”

6 And should provide a warning to unwary trial courts.