Opinion
A144991
02-16-2017
THE PEOPLE, Plaintiff and Respondent, v. CHARLES KIMBROUGH, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. 168755B)
Defendant Charles Kimbrough was convicted of first degree felony murder for his role in an attempted robbery of a marijuana seller that resulted in the seller's death. The trial court instructed the jury on first degree felony murder, denying defendant's request that it also instruct on second degree murder, voluntary manslaughter, and involuntary manslaughter as lesser included offenses. Defendant contends this was prejudicial error. We agree, and we reverse.
EVIDENCE AT TRIAL
The Participants and the Victim
Christopher Donaldson was the mastermind behind a string of marijuana robberies around the San Francisco Bay Area. He would set up the robberies under the pretense of intending to purchase a large quantity of marijuana, arranging instead for various acquaintances to show up at the transaction and rob the seller of his marijuana. Donaldson arranged one such robbery for April 20, 2011, soliciting the help of two acquaintances, Richard Ezell and defendant. The robbery went awry, however, resulting in the fatal shooting of the seller, William Adrian Sapp.
The Robbery
Thirty-year-old William Adrian Sapp was an Oakland resident who was in the business of growing and selling marijuana. On April 19, 2011, Donaldson texted Sapp that he was interested in buying some marijuana Sapp had advertised for sale on Craigslist. They exchanged texts, agreeing to meet at a location suggested by Donaldson—the Summer House Apartments in Alameda.
Shortly before 11:52 a.m. on April 20, Lasaunda Tate, a resident of building 535 in the Summer House apartment complex, was in her third floor apartment when she heard a commotion in the hallway. She looked out her door and saw three men engaged in a fight for their lives about 20 feet away. One of the men was bleeding severely from his head. Tate immediately retreated and called 911. While talking to the 911 operator, she heard what sounded like a gunshot.
Police responded within moments to the apartment complex. They found Sapp's body on the landing of a stairwell, some distance from where Tate had initially seen and heard the struggle. His face was bloody, and an autopsy revealed multiple fresh blunt trauma lacerations that appeared to have been made by something harder than a fist. The cause of death was a gunshot that had passed through his forearm and penetrated his chest and lung. Next to his body, there was a duffel bag containing a half-pound of marijuana.
Sapp was wearing an empty holster. In the hallway leading to the landing where Sapp's body was discovered, the police found a black revolver covered with blood. The revolver was only a starter pistol incapable of firing bullets. The next day, the police located a revolver belonging to Sapp in a utility box on the grounds of the Summer House Apartments.
When Tate's 911 call came in, Alameda Police Officer David Pascoe was about a half-minute away from the Summer House Apartments. He quickly arrived at the apartment complex, parked his patrol car by the pedestrian gate between buildings 531 and 535, and watched for anyone who looked like they might have been in a fight. He saw two Black men exit the south stairwell of building 535, one of whom—later identified as defendant—was bleeding profusely from his head. The two men were walking side by side toward building 521. Officer Pascoe ordered them to stop but they kept walking.
Officer Pascoe did not have a key to the gate, so he drove to the driveway where a resident opened the gate for him. In the meantime, Officer Abenoja, who had reached the complex and heard Officer Pascoe's description of the suspects, saw defendant with his bloody head and ordered him to stop. Defendant broke into a run but soon collapsed on the grass, and Officer Abenoja was able to apprehend him.
While defendant was in handcuffs on the grass, his cell phone, which had been recovered by the police, began to ring, identifying the caller as "Chris D." Asked who "Chris D" was, defendant said it was his cousin. "Chris D" was in fact Donaldson. The phone showed the following text exchanges between defendant and Donaldson: At 10:32 a.m. on April 20, Donaldson texted defendant: "U gonna make it by 11?" At 11:49 a.m., Donaldson texted defendant: "Take Rick to islander after." At 11:50 a.m., defendant texted Donaldson: "I'm still waiting in the staircase." There were also a number of phone calls between the two before 11:53 a.m. that day, as well as nine (including six missed calls from Donaldson) after 11:53 a.m. that morning.
Around 3:00 p.m. that afternoon, the police responded to a report of two men at the Islander Motel in Alameda talking about a shooting. The two men—Ezell and Donaldson—were arrested. The police found keys to the pedestrian gates and common areas of the Summer House Apartments on Donaldson. Ezell's cell phone, which was found in the room, showed 20 calls that day between him and Donaldson.
Ezell's Testimony
Ezell entered into a plea agreement pursuant to which he pleaded no contest to second degree murder in exchange for a state prison term of 15 years to life, conditioned on him testifying truthfully at Donaldson's trial. He testified at Donaldson's trial as agreed. He had no agreement to testify at defendant's trial, although he did so, testifying as follows:
Ezell met Donaldson in the summer of 2010. From December 2010 through mid-April 2011, Ezell lived in Michigan and sold marijuana for a living. He exchanged a few e-mails with Donaldson about what he was doing, and on April 13, 2011, he left for California to meet with Donaldson so he could obtain more marijuana to sell in Michigan. There was also talk about "a robbery, like . . . stealing weed."
Two days before the Sapp shooting, Donaldson introduced Ezell to defendant. Defendant had a gun that Ezell believed was real.
Around 10:00 or 11:00 a.m. on the morning of April 20, defendant picked up Ezell and Donaldson in his car. Ezell believed he was getting a ride to Mendocino County, but instead Donaldson said he had a "lick on the line," which Ezell understood meant "stealing or robbing," or that they were "about to take somebody's stuff or come up on some weed or money or something."
They arrived at the Summer House Apartments, and about five minutes later, the gate opened and they drove through. Defendant parked the car, and they sat there for about 10 minutes, during which time Donaldson was talking to someone on the phone, giving him a description of what Ezell was wearing and telling him Ezell's name was Shawn. Once off the phone, Donaldson said that the seller (Sapp) was coming with a pound of marijuana and instructed Ezell and defendant what they were going to do: Ezell was to meet Sapp and take him to an apartment on the third floor where Donaldson's sister lived. He was to leave Sapp there, and defendant would then take the marijuana from him. Donaldson was only responsible for setting up the robbery and was not going to play any part in it.
Ezell protested that he was just trying to get a ride north where his family was, but Donaldson talked him into participating, telling him he was not going to do anything other than walk Sapp upstairs and leave him there. Donaldson was going to split the marijuana among the three of them.
Before Ezell got out of the car, Donaldson gave him $1,500 to $1,800 in "flash money," which Ezell was to show Sapp to demonstrate he was serious about making the purchase. By that time, Ezell was stoned, having smoked "a couple of blunts" with Donaldson when they woke up and then another one with defendant while they were driving to the apartment complex.
Ezell got out of defendant's car and walked to the entrance of the apartment building to meet Sapp. Sapp was sitting in his car, and Ezell would have walked right past him had Sapp not flagged him down. They started talking, and Sapp showed him the marijuana he was carrying in a duffel bag and Ezell showed him the flash money. After Sapp left briefly to move his car, the two walked towards the apartment buildings. Ezell was supposed to take him to building 535 and would have walked right past it had Sapp not pointed it out. They walked up to the third floor, to head to apartment 307, which Ezell believed was Donaldson's sister's apartment. Again, Ezell would have walked past it had Sapp not pointed it out.
Ezell tried to open the door to the apartment, but it was locked, so he told Sapp he left his keys in his car and to wait there for him. Ezell walked down the stairs and exited the building, ending up where he originally met Sapp. At that point, Ezell thought his part in the robbery was done. He then saw defendant, who asked him where Sapp was. Ezell told him he was on the third floor, and defendant went into the building.
Ezell walked backed to defendant's car to find Donaldson. He was not there so Ezell called his phone but got no answer. Unable to reach Donaldson, Ezell returned to building 535 and walked up the stairs to the third floor. As he was walking to where he had left Sapp, he heard a commotion and ran to where the noise was coming from. He saw defendant on the ground with Sapp hunched over him, hitting defendant over the head. Defendant was bleeding heavily. Although Sapp was hitting defendant with a gun, Ezell had not seen the weapon. Ezell tried to separate them, but Sapp pointed a black gun at him so he turned around and ran. The gun looked like the gun defendant had when they met two days earlier.
As Ezell ran off, he passed a silver handgun that was on the ground, so he picked it up and ran around a corner. He was going to leave, but he heard defendant crying out for help, so he ran back around the corner, where he saw defendant still on the ground with Sapp over him. Sapp again pointed the black gun at Ezell. Ezell thought he was going to be shot, so he fired the silver gun at Sapp. He then ran back the way he came in, with Sapp chasing after him. Ezell jumped down three flights of stairs, and he saw defendant at the bottom of a different set of stairs. They both exited the building at the same time and ran, Ezell stashing the silver gun in a utility box along the way.
At some point, defendant collapsed on the grass, and Ezell kept running until he reached defendant's car. The car was empty but unlocked, so he changed his clothes and stayed there for about 10 minutes, trying to contact Donaldson. Ezell finally reached him, and he told Ezell to meet him up the street, so Ezell left the apartment complex and walked to a store, where he bought a drink and a snack. By that point, there were a number of police cars around, so he left the area and was eventually picked up by Donaldson in a car driven by someone Ezell did not know. They drove him to a bus stop in Alameda, and Donaldson told him to take the bus and meet him at the Islander Motel. Ezell did as instructed, eventually making his way to the motel where he reconnected with Donaldson in one of the motel rooms.
While in the room, Ezell started arguing with Donaldson because he was mad that he could have been killed. At some point, there was a noise outside. It was the police, who arrested Ezell and Donaldson. Ezell's cell phone was in the room at the time of his arrest, as were two of Donaldson's phones.
Ezell had not seen defendant with a gun that day, and he later learned from the police that the black gun was a starter pistol that was incapable of firing bullets.
Defendant's Police Interviews
After defendant was arrested at the apartment complex, he was taken to the hospital to receive treatment for his head wounds. He was then interviewed shortly after 1:00 a.m. on April 21 by Alameda Police Detectives Richard Bradley and Mark Reynolds. A video recording of the interview was played for the jury, the substance of which was as follows:
After answering some preliminary questions about his background, defendant told the detectives that he was at the Summer House Apartments because he was waiting for some friends with whom he was going to smoke marijuana. He was walking around the complex "cruising the hallways" when he "walked in on a robbery in progress or something and . . . got hit in the head . . . ran for [his] life." He claimed he tried walking past the robbery but got hit in the back of his head, so he "turned around and started fighting. I hit the guy a couple of times and I heard shots and I'm running . . . ." He was "just trying to get away from the gun" and he had "nothing to hide at all." Defendant did not know until he was being fingerprinted that somebody was dead and he was being charged with murder. He denied having fired the shot.
Detective Bradley told defendant that the best thing for him to do was to be completely honest because "we probably know the chain of events today and we probably know the story." Defendant then changed his story. This time, he claimed he left Hercules around 10:40 a.m. and stopped on High Street in Oakland when he saw his friend, Rick (Ezell). He gave Ezell a ride to Walgreens, and they made plans to meet up again later because defendant was going to take him to the Islander Motel where he was staying. Defendant then drove to the Summer House Apartments, where he waited for his friends, Al and Arthur. When defendant got to the apartment complex, the gate was open so he drove into the parking lot and walked around the complex. As he walked past two men on the third floor of one of the buildings, he got hit in the back of the head so he turned around swinging but was hit again. He was bleeding and fell to the ground and tried to run to the elevator. He did not see a button, so he "wobbled back down the stairs." He sat down and was talking to his girlfriend on the telephone when the police arrived. As soon as he saw the police, he thought, " 'Okay, I'm good.' "
Defendant identified a photograph of Ezell as "Rick." He also identified a photograph of Donaldson as an acquaintance from high school.
Detective Bradley corrected him that the police officer said, " 'Hey come here,' " but defendant had ignored him and kept walking. Defendant then claimed that he was "delirious" and had "blood dripping from [his] face" and was just trying to get away.
Again, Detective Bradley pressed defendant to be more truthful, assuring him that the police knew more about the incident than he was revealing. He told defendant they knew about the Craigslist ad and that he and his companions were there for a "dope lick." When Detective Bradley reminded defendant he was facing a homicide charge, defendant told a third version:
Defendant left Hercules in the morning and drove up High Street in Oakland to pick up Ezell and Donaldson. They drove to the apartment complex, where he dropped both of them off and then parked his car. Ezell was with him for a while, but then he "just left and I got lost. I walked up to the one building. He was no more. I didn't see him. Him and the guy who got killed were—because he was supposed to be the exchange man with the guy. And somehow between them two, I ended up getting hit in the back of the head and fighting. And he shot because I was literally getting my ass beat. Like I—I really walk in on like—like—like I said, I lost him. Like he was lost. I don't know where the fuck he was. And I walked up and that's where they were. And it kind of just jumped off right there and I got my ass beat. I got my ass beat. And I left. I heard the shot. I heard one shot. . . . That's when I was worried about just getting out of there because I was like, 'They really shooting?' And that's when I went to the E.R. and that was it. But around the trigger time that's what I saw. But I'm keeping it 100 percent—that's as real as possible, as real as possible. It was a silver gun, revolver."
Asked why they went to the Summer House Apartments, defendant said Donaldson told them, "We . . . going to get a hit" and, "We might have something on the line." Defendant understood this to mean "there's a possible robbery" or they were going to "jack[] somebody for some weed," which Donaldson had talked about having done before.
According to defendant, when they arrived at the apartment complex, the gate was open. Donaldson got out, telling them to go in and that he would call them when it was done. Defendant drove in, parked the car, and he and Ezell got out. Ezell walked off, and defendant walked around to the front to try to meet Donaldson. Once in the front, he tried to reach Donaldson by phone to find out where he was. Defendant made his way to the third floor because Donaldson had told him that "whatever we do is going to be on the third floor." He did not know the building number, however, so he was "literally just roaming third floors."
Defendant then walked onto the third floor in one of the buildings and came upon Ezell about to rob Sapp. He planned on walking by, but Sapp suddenly got nervous and pulled out a gun and hit defendant in the head. Ezell ran when he saw that Sapp had a gun, but he came back and then defendant heard a shot. Defendant ran off and "wobbled [his] way back down the same way" he came in. He saw Sapp chase after Ezell. Defendant vehemently denied he fired a shot. When asked why he got pistol whipped if he was just an innocent bystander, defendant answered, "Because I didn't look innocent, sir."
After further prodding by the officers to tell the truth, defendant told yet another version of what happened, in the following exchange with Detective Bradley:
"Q: So—and why don't we try it one more time.
"A: Okay.
"Q: Starting with the reason you guys went there because we all know the reason you guys went there.
"A: It was a robbery supposed to happen and that was it.
"Q: Okay.
"A: That was it.
"Q: And whose idea was it? Can you—you're pointing at Chris.
"A: Donaldson. [¶] . . . [¶] Originally we're not coming to smoke but he said, you know, it's a possible lick for a robbery. You know, on line. And if we did it, it would be right here.
"Q: So . . . he had the actual building number in the third floor?
"A: Yeah.
"Q: Okay. And so did he direct the two of you to go up there?
"A: He didn't direct shit. [¶] . . . [¶]
"Q: Did he go up there?
"A: No, he bounced. He bounced.
"Q: Okay.
"A: Like no bullshit. He bounced.
"Q: So he set the thing up . . . .
"A: And—and then just disappeared on us.
"Q: And let you guys take the fall?
"A: Yeah basically. And—and this man was the one who was supposed to be doing the robbing. Like I was basically supposed to, you know, like the overseer type.
"Q: Okay.
"A: And I came up . . .
"Q: And so did the two of you walk into the building together?
"A: No. He walked in with the guy. With the actual guy, he actually walked in with the guy.
"Q: Where did he meet the guy at?
"A: I am not sure. I don't know if he met him on the outside or if he met him on the inside. I—I don't know. But I literally walked up right when I opened the door, they were up there.
"Q: Okay.
"A: They were already up there and—on the third floor. And then what happened—happened.
"Q: Okay. I'm gonna tell you first that I appreciate it that I think you're finally being honest.
"A: No I'm—I'm—I'm—I'm—I'm really trying.
"Q: But—but what I need you to try—when you say 'and then what happened—happened,' I would like you to try to be [¶] . . . [¶] a little more detailed. You understand what I'm saying? [¶] . . . [¶] Give us the rundown because I really think that you were getting your head knocked around by this guy with his pistol because he was probably scared. [¶] . . . [¶] Because what was he going there to do?
"A: To bring some marijuana.
"Q: To—to make—to—to sell some marijuana.
"A: Correct.
"Q: To make some money right?
"A: Yeah. Yeah. [¶] . . . [¶]
"Q: And now all of a sudden he's faced with [¶] . . . [¶] his shit's gonna get taken, and he's gonna get nothing. [¶] . . . [¶] And possibly even hurt. [¶] . . . [¶] So play it out for me. So that—so that's believable because you were there and you saw the whole thing and you know what happened. [¶] . . . [¶] So—so help us out here.
"A: You know, I walked up, Rick gave me a look like basically—he basically ended up giving us away. So I kind of like looked you know, like—like fucking me look.
"Q: Okay.
"A: And that's when like I seen—like I—I could see the guy start to reach for something but it was like too late like he pow.
"Q: Hit you in the head?
"A: Yeah. It—it—as—as soon as he saw that Rick had some kind of connection with me, he instantly just pulled out and just popped me in the back of the head and I turned around to start fighting with him.
"Q: The fight's on?
"A: Yeah. And then . . .
"Q: Did you guys go to the ground?
"A: Yeah—yeah we went to the ground a couple of times. [¶] . . . [¶] And, um, you know, Rick ran off at first and he came back, then he ran off again. That's why—like I'm getting my ass beat, please do something, help me. And next thing you know I hear one shot. But then Rick was still there so I didn't know if the victim had, uh, fired the shot or if, you know, Rick fired a shot because me and the victim we were still actually fighting. And I actually, you know, I—I—I get away from the guy, spaghetti legs, I get to the, uh, like right before I get to the elevator, the guy catches up to me again he hit me again with—with his hand. And then, uh—uh . . .
"Q: Why do you think he didn't just shoot you with that gun?
"A: I mean I was literally holding him off like—like this."
Defendant went on to describe how he then ran outside, laid down in the middle of grassy area, and waited for the police.
Detective Bradley then pressed him for more details about the planning of the crime:
"Q: Tell—tell me about the plan. [¶] . . . [¶] What was discussed? How was it supposed to go down?
"A: The guy's gonna meet on the third floor. There's the stairway right there. You sh—you're supposed to have the drop off. That's all I—I knew. That's really all I knew. That's all Chris told me. He was like I got—I got—I haven't [been] into that complex in . . .
"Q: Okay. But I understand—that you're not real familiar with the complex. [¶] . . . [¶] But—but—but hear me out though. [¶] . . . [¶] I don't go around committing robberies. [¶] . . . [¶] Okay? But I—but I'm thinking if I was, if Mark and I were going to commit a robbery, it was this type of robbery, and we were planning it out and we knew there was gonna be a guy that was planning to meet us there to sell us some dope but we were planning on just taking it from him, we have to kind of at least [have] a loose plan.
"A: I know.
"Q: Not just hey Mark when we get there, we'll have to jump on him. Let's go.
"A: It—it was . . .
"Q: You see what I'm saying?
"A: . . . like—like it was supposed to be planned out but I didn't park my car where, uh, he and I were—where Chris wanted me to park it.
"Q: Okay.
"A: So that kind of threw shit off.
"Q: Right.
"A: And everything just went out of whack. [¶] . . . [¶] [T]hey literally told me it's a staircase right at the top. [¶] . . . [¶] That's—that's all you need to know."
Asked what was supposed to happen if he had parked in the correct place, defendant responded that he and Ezell would have had easier access to the car when they exited the building. The questioning then continued:
"Q: And what was Chris supposed to be doing all this time?
"A: He's. [¶] . . . [¶] He's hiding. Ch-Chris—Chris is—he was the set up man like he was . . .
"Q: 'Cause he's the guy committing these robberies. Yeah it's all over town.
"A: Yeah. He's the one who was actually setting it up. Like he was like I don't wanna get my hands dirty in this. So I'm gonna put everything up. Like who was the one talking to the—to the guy.
"Q: Okay.
"A: Like Chris—Chris is the one doing all that. I haven't—I had no contact with who, uh, was supposed to get but I—I—like I didn't even know the dude's name. [¶] . . . [¶]
"Q: How'd you know he was gonna be the right guy?
"A: 'Cause Rick was up there talking with him. Rick was with him. And that was it. That was it. Like I said, Rick is the one who met—met up with the guy. He brought [him] into the building.
"Q: And so was . . . [¶] . . . [¶] Rick supposed to meet up with the guy and say hey let's go over here to this more secluded area so we can make the exchange?
"A: Yeah.
"Q: And then you were supposed to show up?
"A: No, he was—he was gonna get him up to the top of the staircase.
"Q: Okay. And then what?
"A: And then—and then he had basically I—I would show up—and we would go take it.
"Q: Take it and run?
"A: Or take it and run. And I got beaten and just I . . .
"Q: And so did you know that Rick had this gun?
"A: Yes, uh, we—we all knew he had a gun. We—we knew he had a gun. But he wasn't like advertising that he had it. He—we knew he had a gun though.
"Q: Okay. And was the plan for him to pull the gun out just to show the guy I got a gun, give me your weed?
"A: No—no. The plan was we were just gonna snatch the bag and run. That was the plan but it came out to pow 'cause I was getting my ass beat."
Later that same day (April 21), defendant was interviewed a second time, this time by Berkeley Police Sergeant David Lindenau, who was investigating Donaldson's participation in a February 2011 robbery in Berkeley. A video recording of that interview was also played for the jury, to the following effect:
Sergeant Lindenau found texts exchanged between Donaldson and defendant on defendant's phone. As the sergeant understood them, Donaldson texted defendant regarding a robbery at the Berkeley Marina, and defendant responded he was busy and could not participate. Defendant gave Donaldson the contact information for a mutual acquaintance who had a gun and could participate. Defendant confirmed that Sergeant Lindenau's interpretation of the text messages was correct.
Defendant told Sergeant Lindenau that his usual business with Donaldson was simply to pick up marijuana Donaldson obtained in robberies and either hold it for him or mail it to Donaldson's sister. In return, defendant would be given a "little bit of smoke" for his efforts. According to defendant, Donaldson would generally set up a robbery and then let others commit it, although he did a few of them himself. When asked if defendant had participated in any of the robberies Donaldson set up in Berkeley, defendant answered that the only one he participated in was the one that resulted in Sapp's death.
PROCEDURAL BACKGROUND
On April 30, 2012, the District Attorney of Alameda County filed an information alleging that Ezell, Donaldson, and defendant "did unlawfully, and with malice aforethought, murder" Sapp. (Pen. Code, § 187, subd. (a).) The information also alleged three firearm use enhancements against Ezell, and arming enhancements against defendant and Donaldson.
Donaldson was also charged with the Berkeley robbery that Sergeant Lindenau was investigating, with a corresponding arming enhancement and prior conviction allegation.
Ezell and defendant both entered into plea agreements in which they agreed to plead no contest to second degree murder in exchange for a 15 years to life prison sentence, conditioned on their truthful testimony at Donaldson's trial. At Donaldson's May 2014 trial, Ezell testified as agreed, but defendant refused to testify. Accordingly, his no contest plea was set aside and his original not guilty plea reinstated.
Defendant's jury trial began on August 4, 2014, and on August 27, the jury found him guilty of first degree murder, with a true finding on the arming enhancement.
Defendant was sentenced to 25 years to life in state prison. This timely appeal followed.
DISCUSSION
Defendant was convicted of first degree murder on a felony murder theory. As explained in People v. Chun (2009) 45 Cal.4th 1172, 1182: "The felony-murder rule makes a killing while committing certain felonies murder without the necessity of further examining the defendant's mental state. The rule has two applications: first degree felony murder and second degree felony murder. . . . First degree felony murder is a killing during the course of a felony specified in [Penal Code] section 189, such as rape, burglary, or robbery. Second degree felony murder is 'an unlawful killing in the course of the commission of a felony that is inherently dangerous to human life but is not included among the felonies enumerated in section 189 . . . .' " (See also People v. Brothers (2015) 236 Cal.App.4th 24, 31; Pen. Code, § 189 [identifying felonies subject to first degree felony-murder rule].)
At trial, defendant's theory of the case was that he was not liable for felony murder because he did not intend to commit robbery but, rather, theft from a person. Theft from a person is not a felony listed in Penal Code section 189, and thus not an offense that qualifies for first degree felony murder. Nor is it a felony inherently dangerous to human life, and thus not an offense that qualifies for second degree felony murder. (People v. Morales (1975) 49 Cal.App.3d 134, 143-144.)
Robbery is the "taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (Pen. Code, § 211.) Where the element of force or fear is absent, a taking from a person is theft. (Id., § 487.)
Consistent with this, defense counsel requested that the court instruct the jury on second degree murder, voluntary manslaughter, and involuntary manslaughter as lesser included offenses of first degree murder. The court denied the request, finding that the evidence supported only a first degree felony murder charge. Defendant contends this was error, because the evidence was susceptible to a finding that he intended to commit a snatch-and-run instead of a robbery, warranting instruction on second degree murder and involuntary manslaughter.
While defendant requested a voluntary manslaughter instruction below, he concedes on appeal that voluntary manslaughter based on imperfect self-defense is not a possibility, "since, at best, [defendant] was still attempting to commit felony grand theft, and th[u]s did provoke Sapp's attack." (Citing In re Christian S. (1994) 7 Cal.4th 768, 773, fn. 1.)
We review de novo the trial court's failure to instruct on an assertedly lesser included offense. (People v. Licas (2007) 41 Cal.4th 362, 366.) And we conclude defendant's contention has merit.
In People v. Campbell (2015) 233 Cal.App.4th 148 (Campbell), the court recently summarized the law governing the trial court's sua sponte duty to instruct on lesser included offenses:
" ' "California law has long provided that even absent a request, and over any party's objection, a trial court must instruct a criminal jury on any lesser offense 'necessarily included' in the charged offense, if there is substantial evidence that only the lesser crime was committed. This venerable instructional rule ensures that the jury may consider all supportable crimes necessarily included within the charge itself, thus encouraging the most accurate verdict permitted by the pleadings and the evidence." [Citation.] "[T]he rule prevents either party, whether by design or inadvertence, from forcing an all-or-nothing choice between conviction of the stated offense on the one hand, or complete acquittal on the other. Hence, the rule encourages a verdict, within the charge chosen by the prosecution, that is neither 'harsher [n]or more lenient than the evidence merits.' [Citations.]" [Citation.]' [Citation.]
"Courts 'have applied two tests in determining whether an uncharged offense is necessarily included within a charged offense: the "elements" test and the "accusatory pleading" test. Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former. Under the accusatory pleading test, if the facts actually alleged in the accusatory pleading include all of the elements of the lesser offense, the latter is necessarily included in the former.' [Citation.]" (Campbell, supra, 233 Cal.App.4th at pp. 157-158, italics omitted.)
The California Supreme Court has not settled whether under the elements test first degree felony murder has any lesser included offenses. (See People v. Castaneda (2011) 51 Cal.4th 1292, 1328-1329; People v. Valdez (2004) 32 Cal.4th 73, 114-115, fn. 17.) However, under the accusatory pleading test, courts have held that when the accusatory pleading in a murder case alleges that the killing was done "with malice aforethought," the defendant is entitled to instructions on lesser included offenses, even if the case is presented solely on a theory of first degree felony murder, provided there is substantial evidence that defendant committed only the lesser offense but not first degree felony murder. (People v. Banks (2014) 59 Cal.4th 1113, 1160 (Banks), overruled on another ground in People v. Scott (2015) 61 Cal.4th 363, 391, fn. 3; Campbell, supra, 233 Cal.App.4th at p. 166; People v. Anderson (2006) 141 Cal.App.4th 430, 444-446.)
Defendant's case here was submitted to the jury solely on a theory of first degree felony murder: pursuant to conspiracy to commit robbery, defendant aided and abetted an attempted robbery, in the course of which Sapp was killed. But the information alleged that defendant "did unlawfully, and with malice aforethought, murder WILLIAM ADRIAN SAPP, a human being." Thus, under the accusatory pleading test, the court had a duty to instruct on second degree malice murder and involuntary manslaughter—if there was substantial evidence that defendant was guilty of either of those offenses but not first degree felony murder. Campbell, supra, 233 Cal.App.4th 148, instructs us that the trial court had such a duty here.
In Campbell, defendant was found guilty of first degree felony murder based on having aided and abetted a robbery during which a death occurred. The Court of Appeal reversed the judgment, concluding the trial court had a sua sponte duty to instruct on lesser included offenses because the accusatory pleading alleged malice murder with deliberation and premeditation, which gave rise to the possible lesser included offense of second degree murder and voluntary manslaughter based on imperfect self-defense, and there was substantial evidence supporting those instructions. (Id. at p. 151.)
The facts in Campbell are remarkably similar to those here. Defendant Aaron Campbell met the victim, Silvester Leyva, at a hookah lounge, and the two discussed buying and selling marijuana. A few days later, Campbell and his co-defendant Xavier Fort, among others, went to Leyva's house to obtain marijuana. Leyva and a friend met Campbell in the front yard. After Leyva's friend handed marijuana to Campbell, Campbell pulled a gun and began to back up. Fort fired his gun, killing Leyva. (Campbell, supra, 233 Cal.App.4th at pp. 150-151.)
In a police interview, Campbell said he met a man (Leyva) at a hookah lounge and got his number so they could conduct marijuana transactions. On the evening of the incident, Campbell planned to obtain marijuana from Leyva by " 'tak[ing] it from him.' " He exchanged texts with Leyva to arrange the transaction and then visited Leyva's house before leaving and later returning. When he returned, he texted Leyva to get him to come out of the house. Leyva and a friend came outside, and when the friend took out a package of marijuana, defendant took it, pointed a gun at the two men, and told them not to do anything stupid. He then got back into his car before any shots were fired. Campbell did not know anyone else had a gun. (Campbell, supra, 233 Cal.App.4th at p. 153.)
Fort was also interviewed by the police. According to him, on the evening of the shooting, he got a call from his cousin about hanging out. His cousin indicated there would be " 'loads of grams,' " which Fort understood to mean "there was going to be a 'lick' or a robbery and they were 'going to rip off some weed.' " Fort brought his gun, although no one told him to. After arriving at Leyva's house, Fort initially stood across the street, later moving to the front of the house. Fort then fired his gun two or three times, telling the police he was scared, that " '[e]verything happened so fast,' and he 'had no idea what was going on.' " (Campbell, supra, 233 Cal.App.4th at pp. 154-155.)
At trial, Fort testified that his cousin called and asked about hanging out and said something about " 'loads of grams,' " which meant a lot of weed. Fort thought something did not seem right because his cousin did not usually call him like that. His cousin and others arrived in two cars to pick him up, and Fort thought they were going to a party. On the drive, nobody mentioned anything about marijuana or a lick, and he did not go to Leyva's house to help Campbell commit a robbery. Fort had a loaded gun on him because he always carried a gun for protection. (Campbell, supra, 233 Cal.App.4th at pp. 155-156.)
When they arrived at Leyva's, Fort knew something was wrong because he did not see cars or people and did not hear music playing. He stayed across the street and watched while people came out with marijuana and argued with Campbell, who ended up with the package of marijuana. Fort then moved into the street in front of the house, and he saw Campbell pull out a gun and point it in " 'the dude's face.' " At that point, Fort believed there was a robbery going on, although prior to that, he did not think the group had gone to the house to commit a robbery. (Campbell, supra, 233 Cal.App.4th at p. 156.)
According to Fort, the people in his group started backing up towards the cars. He then heard someone scream, " 'gun, gun,' " and he thought someone from the other group was getting a gun and coming after him. He pulled out his gun and fired it as a " 'reaction,' " thinking they were coming after them with guns. (Campbell, supra, 233 Cal.App.4th at p. 156.)
On cross-examination, Fort admitted that he knew Campbell committed a lot of "licks" and had brought a gun with him. He acknowledged that when he was interviewed by the police, he answered affirmatively when asked about how he knew he was " 'going to do a lick' " and " 'to rip off some weed,' " but he attempted to explain this by claiming he did not understand at that time what the detective was asking. (Campbell, supra, 233 Cal.App.4th at p. 156.)
Fort and Campbell were charged with murdering Leyva "with deliberation, premeditation, and malice aforethought" in violation of Penal Code section 187, subdivision (a). (Campbell, supra, 233 Cal.App.4th at p. 158.) The jury was instructed solely on the theory of first degree felony murder with robbery as the underlying felony, and it found Fort guilty of that offense. (Id. at pp. 151, 157.) On appeal, Fort argued that the jury should have been instructed on second degree murder, voluntary manslaughter based on imperfect self-defense, and involuntary manslaughter, all as lesser included offenses. (Id. at p. 157.) The Court of Appeal agreed as to second degree murder and voluntary manslaughter. (Id. at pp. 159-160.)
First, the court noted that the accusatory pleading alleged malice murder with deliberation and premeditation. Thus, under the accusatory pleading test, "defendants were . . . legally entitled . . . to jury instructions on lesser included offenses of first degree malice murder, provided there is substantial evidence to support the commission of the lesser offenses but not the greater." (Campbell, supra, 233 Cal.App.4th at p. 160.) And, the court concluded, there was substantial evidence showing that Fort committed lesser included offenses, but not first degree felony murder. (Id. at p. 162.)
Specifically, the court explained that "if there is substantial evidence that Fort did not know that Campbell intended to commit a robbery or that Fort did not intend to aid and abet the robbery, then the evidence raises a question as to whether the greater offense (first degree felony murder) was committed." (Campbell, supra, 233 Cal.App.4th at p. 163.) The court noted that the "only evidence that Fort did not know of the impending robbery or did not intend to aid and abet the robbery, came from Fort himself." (Ibid.) As the court described this evidence:
"In his statement to Bowen, Fort indicated that when he received the telephone call from Stewart [Fort's cousin], Stewart did not say anything 'about [a] lick'; he called simply to ask about hanging out. Fort told Bowen that no one told him to bring his gun; it was his decision to do so. Lastly, Fort said that at the time of the robbery, everything happened so fast he did not know what was going on.
"At trial, Fort again stated that Stewart called him for purposes of hanging out. He thought they were going to a party, and he took his fully loaded firearm with him because he always takes it for protection when he leaves the house. On the ride over to Leyva's house, nobody said anything about marijuana or a 'lick.' He testified he did not go to the residence to help commit a robbery. It was not until he saw Campbell pull out his gun that he thought the group was going to commit a robbery." (Campbell, supra, 233 Cal.App.4th at p. 163.)
The court pointed out, however, that Fort's testimony was contradicted or impeached by other evidence, evidence that "strongly suggests that Fort knew Campbell intended to commit a robbery and intended to aid and abet the robbery . . . ." (Campbell, supra, 233 Cal.App.4th at p. 164.) But, it acknowledged that "if Fort's testimony about his knowledge and intent and his corroborating comments to Bowen are believed, a jury could have concluded that Fort did not know that Campbell was going to commit a robbery or that Fort did not intend to aid and abet a robbery and, therefore, that Fort was not guilty of first degree felony murder." (Ibid.)
The court went on to identify the substantial evidence that Fort committed second degree murder and voluntary manslaughter. As to the former, Fort "admitted shooting at people as a 'reaction' to the situation and with 'no idea what was going on.' " And as to the latter, "Fort's testimony that he thought that people from the opposing group of people were 'coming out with guns,' if believed by the jury, would support a conviction of voluntary manslaughter." (Campbell, supra, 233 Cal.App.4th at p. 164; see People v. Blakeley (2000) 23 Cal.4th 82, 87-88 [voluntary manslaughter may be committed when one kills with the honest but unreasonable belief of the need to defend oneself].)
The court rejected Fort's contention that the jury should also have been instructed on involuntary manslaughter, holding there was "no evidence suggesting that he fired the gun negligently." (Campbell, supra, 233 Cal.App.4th at pp. 164-165, fn. 9.)
As instructed by Campbell, we first address whether there was substantial evidence supporting a conclusion that defendant did not commit first degree felony murder. (See Campbell, supra, 233 Cal.App.4th at pp. 162-164.) Defendant was convicted on the basis that he aided and abetted an attempted robbery during which a death occurred. One element of that offense was that "defendant intended to aid and abet the perpetrator in committing robbery or attempted robbery or intended that one or more members of the conspiracy commit robbery or attempted robbery." There was substantial evidence, however, that defendant did not intend to aid and abet Ezell in committing a robbery: defendant's statements to the detectives that the plan was to " 'snatch' " Sapp's marijuana and run and that the gun belonged to Ezell. While certainly there was significant evidence contradicting defendant's statements, "that is not our inquiry." (Campbell, supra, 233 Cal.App.4th at p. 164.) As Campbell recognized, if defendant's testimony about his intent is believed, a jury could have believed that defendant did not intend to rob Sapp and was thus not guilty of first degree felony murder. (Ibid.; see also People v. Ramkeesoon (1985) 39 Cal.3d 346, 351 ["Although the jury was not required to believe defendant's testimony, it was credible enough to have supported a verdict of theft instead of robbery."].)
The People make three essential arguments in support of their position that "the evidence establishes no doubt that [defendant] had attempted to rob Sapp, resulting in felony murder when Sapp died." First, they point to defendant's repeated description of the incident as a "robbery." We do not attach much significance to defendant's terminology, as we do not believe a layperson such as defendant understands the legal significance of, and distinction between, different forms of theft, such as robbery, burglary, and theft of a person.
The People also claim that the evidence showed that defendant brought the starter pistol, "supporting the inference that he intended to take Sapp's marijuana through fear or force." Ezell did testify that the black gun in Sapp's possession looked like the gun defendant had when they met two days earlier. But defendant told Detectives Bradley and Reynolds that Ezell had the gun, a claim that, if believed by the jury, would support his defense that he only intended to commit theft of a person.
The People also dismiss defendant's statement to the detectives that the plan was to "snatch the bag and run" as "isolated and self-serving" and "pure speculation." It is not speculation—it is how defendant described the plan to the detectives. And while it might have been self-serving, that goes to the credibility of defendant's statement, which is for the jury—not us—to evaluate. (People v. Breverman (1998) 19 Cal.4th 142, 162 ["In deciding whether there is substantial evidence of a lesser offense, courts should not evaluate the credibility of witnesses, a task for the jury."].) We thus conclude there was substantial evidence defendant did not commit first degree felony murder, and we turn to the question whether there was substantial evidence that defendant committed the lesser included offense of second degree malice murder or involuntary manslaughter.
" 'Second degree murder is the unlawful killing of a human being with malice, but without the additional elements . . . that would support a conviction of first degree murder. [Citations.]' [Citation.] Malice may be express or implied. [Citation.] Malice will be implied 'when the killing results from an intentional act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life. [Citations.]' [Citations.] " (People v. Taylor (2010) 48 Cal.4th 574, 623-624; see also People v. Memro (1985) 38 Cal.3d 658, 700 [second degree malice murder lies when the defendant engages in an act involving "a high degree of probability that it will result in death."], Memro overruled on another ground in People v. Gaines (2009) 46 Cal.4th 172, 181, fn. 2.) The evidence that defendant and Ezell conspired to, and attempted to, steal a large quantity of marijuana from a dealer and, during the course of the attempted theft, Ezell fired a gun at the seller constituted substantial evidence supporting a second degree malice murder finding. (See Campbell, supra, 233 Cal.App.4th at p. 164 [evidence that "Fort admitted shooting at people as a 'reaction' to the situation and with 'no idea what was going on' " was substantial evidence of second degree murder]; Banks, supra, 59 Cal.4th at p. 1160 ["The evidence of second degree murder . . . though not particularly strong, was sufficient to obligate the trial court to instruct on second degree murder."].) While it was uncontradicted that Ezell fired the fatal shot—and thus committed the act that was "in conscious disregard for human life"—defendant could be liable for the same offense as an aider and abettor. (See People v. Medina (2009) 46 Cal.4th 913, 920 [" 'A person who knowingly aids and abets criminal conduct is guilty of not only the intended crime [target offense] but also of any other crime the perpetrator actually commits [nontarget offense] that is a natural and probable consequence of the intended crime.' "].) The court should thus have instructed on second degree malice murder.
The court should also have instructed on involuntary manslaughter as a lesser included offense. Involuntary manslaughter is the unlawful killing of a human being without malice. Penal Code section 192 defines it as a killing occurring during the commission of "an unlawful act, not amounting to a felony; or in the commission of a lawful act which might produce death, [accomplished] in an unlawful manner, or without due caution and circumspection." (Pen. Code, § 192, subd. (b).) Section 192 has been interpreted to encompass an unintentional killing in the course of a noninherently dangerous felony committed without due caution or circumspection. (People v. Burroughs (1984) 35 Cal.3d 824, 835 ["an unintentional homicide committed in the course of a noninherently dangerous felony may properly support a conviction of involuntary manslaughter, if that felony is committed without due caution and circumspection"], overruled on another ground in People v. Blakeley, supra, 23 Cal.4th at pp. 88-91; People v. Bryant (2013) 56 Cal.4th 959, 970; People v. Brothers 236 Cal.App.4th at pp. 33-35 ["when the evidence presents a material issue as to whether a killing was committed with malice, the court has a sua sponte duty to instruct on involuntary manslaughter as a lesser included offense"].) Here, if the jury credited defendant's statement that he intended only a snatching of the marijuana and was unaware of the danger of Ezell shooting Sapp, it could have found him guilty of involuntary manslaughter.
In sum, the trial court had a duty to instruct on second degree malice murder and involuntary manslaughter as lesser included offenses.
The Error Was Prejudicial
The question, then, becomes whether defendant was prejudiced by the court's instructional error such that reversal is warranted. As the Supreme Court stated in Banks, supra, 59 Cal.4th at p. 1161, "Our precedent holds that an erroneous failure to instruct the jury on a lesser included offense is subject to harmless error analysis under People v. Watson (1956) 46 Cal.2d 818, 837." (See also Campbell, supra, 233 Cal.App.4th at p. 165; People v. Breverman, supra, 19 Cal.4th at p. 165 [" '[T]he failure to instruct sua sponte on a lesser included offense in a noncapital case is, at most, an error of California law alone, and is thus subject only to state standards of reversibility.' "].) Under Watson, instructional error is not subject to reversal unless the entire record demonstrates a reasonable probability that the error affected the outcome. (People v. Watson, supra, 46 Cal.2d at p. 836; People v. Breverman, supra, 19 Cal.4th at p. 165; Campbell, supra, 233 Cal.App.4th at p. 165.)
Again, we take direction from Campbell, where the court held there was such error. Like Fort in Campbell, defendant here told the police that he did not intend to commit a robbery. At the same time, and again as in Campbell, there was ample evidence in the record that defendant did intend to participate in a robbery. But we cannot conclude that the evidence of defendant's intent to participate in a robbery was so overwhelming that there was no reasonable probability of a different outcome if the jury believed defendant's statement to the detectives.
In arguing the error was harmless, the People point out that the jury was aware of the robbery-vs.-theft-from-a-person distinction that defendant makes, since both sides addressed it in closing argument. Despite this, after deliberating for a total of 111 minutes, the jury returned a guilty verdict on the first degree murder charge. "Plainly," the People conclude from this, "the jury did not have any significant concerns about [defendant's] argument that he had intended only a theft." This argument highlights the very reason instructions on lesser included charges are necessary: the requirement " 'prevents either party, whether by design or inadvertence, from forcing an all-or-nothing choice between conviction of the stated offense on the one hand, or complete acquittal on the other. Hence, the rule encourages a verdict, within the charge chosen by the prosecution, that is neither "harsher [n]or more lenient than the evidence merits." ' " (People v. Smith (2013) 57 Cal.4th 232, 239-240; see also Keeble v. United States (1973) 412 U.S. 205, 212 ["Where one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction."].)
DISPOSITION
The judgment of conviction is reversed.
/s/_________
Richman, J.
We concur:
/s/_________
Kline, P.J.
/s/_________
Miller, J.