Opinion
A jury convicted Cristo Lopez and Rebecca Brousseau of first degree murder and attempted robbery, and sustained firearm and robbery-murder allegations as to each. (Pen. Code,
Brousseau contends that (1) no substantial evidence supports the special circumstance finding; (2) the trial court erroneously instructed the jury; (3) alleged adoptive admissions she made in jail were improperly admitted; (4) she was entitled to instruction on included offenses; (5) the trial court used the wrong standard in evaluating her new trial motion; and (6) her sentence is unconstitutional. Brousseau also contends the trial court should have instructed the jury to consider whether Lynch was an accomplice. Lopez joins in this contention, and adds that Brousseau was an accomplice and the jury should have been so instructed. Both defendants also contend the trial court improperly imposed a parole revocation restitution fine, a point conceded by the People.
Wе shall strike the unauthorized fine, order a modification to clarify the abstracts of judgment, and otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Brousseau lured the victim, Khet Saelee, into a secluded alley by promising an act of prostitution, to enable Lopez to rob the victim. Lopez then shot
The alley runs between Roosevelt Avenue and Baker Avenue to the north and south, “dead-ends” to the west, and is accessed from Stockton Boulevard to the east.
On the night of November 22 to 23, 2008, the victim left home to go to a bachelor party with his cousin, who had asked him to bring beer. His cousin called him after midnight and told him to hurry up, but the victim never arrived.
The next morning, a man who lived in a unit at 4929 Baker Avenue, near the end of the alley, found the victim in his car by the end of the alley, and called 911. The victim was in the front seat, which was slightly reclined, and his pants were unbuckled. The keys were in the “on” position and the car was in reverse, and had been backed into a fence, where it ran out of gas. The victim had $5 in his right front pants pocket, $200 in his right rear pants pocket, and his wallet was found in the driver’s door panel. An unrolled condom was on the ground near the car, but it was not tested for DNA.
The victim had been shot through the left arm, and the bullet, consistent with a .38-caliber bullet, had reentered the body and pierced his heart. He could have lived long enough after being shot to start his car, put it in reverse, and try to drive off.
A. Crawford’s Testimony
On April 8, 2009, Amy Lee Crawford was arrested for failing to complete work project duties arising from a felony car theft conviction; when questioned, she gave information about this case. By the time of trial, she was on felony probation arising from an unrelated burglary case.
Crawford testified she lived at 4929 Baker Avenue. She had known Lopez since he was 13, and had met Brousseau in 2008. She had had sex with Lopez in the past, but had never dated him. On the night of the killing, she met defendants on her way to a liquor store. Lopez was intoxicated, “hypie”
According to Crawford, when the trio reached Lynch’s house, Lopez alone went in and then came out. They walked back, and Crawford and Lopez went to Crawford’s yard and smoked cigarettes, while Brousseau went to Stоckton Boulevard. Lopez then stood “in the dark,” waiting. Crawford heard a car drive to the end of the alley, and after about five minutes, Lopez “went into the alley, and I heard arguing, and I heard Ms. Brousseau scream and get out of the car and start running down the alley.” Crawford went to the alley and saw Lopez “arguing with a guy through the window” saying, “Give me your money.” She followed Brousseau “and we got almost to the end of the alley, and we heard a gunshot.” Crawford walked to Roosevelt Avenue, and saw Lopez “running ahead of us.” All three met at Lynch’s house, although Crawford denied the meeting had been planned. Lopez alone went in, and came out after five or 10 minutes.
While they were waiting for Lopez, Crawford asked Brousseau what happened, and she replied, “I freaked out. He knocked on the window with a gun.” Brousseau also said she dropped a condom in the car. When Lopez came out with Lynch, the two men smoked cigarettes, Lynch returned to his house, and the trio went to a back room that had been added on to Lynch’s house, used methamphetamine, then fell asleep. Crawford had sex with Lopez that night. Later, Lopez said he left the gun at Lynch’s house.
B. Lynch’s Testimony
Lynch was arrested on an unrelated matter at his house on April 8, 2009, with Bictoriano. On March 2, 2010, Lynch agreed to testify truthfully for a reduction of a felony accessory to murder charge to a misdemeanor charge of interfering with a peace officer’s investigation, with a time-served sentence.
Lynch testified he had lived at 4900 Roosevelt Avenue, about five or six houses down from where the victim’s car was found. He had known Lopez for 10 to 12 years, and had seen Brousseau about five times. When Lopez
C. Bictoriano’s Testimony
After Bictoriano was arrested and refused to give information, he was charged with accessory to murder. On the day the preliminary hearing had been set, August 20, 2009, Bictoriano gave a statement to law enforcement. He agreed to pleаd guilty and testify truthfully, in exchange for a time-served sentence.
Bictoriano testified his daughter was bom November 22, 2008. A few days later he visited Lynch to share this news.
D. Peralez’s Testimony and Jail Visits
On March 10, 2010, Monica Peralez was arrested while working as a prostitute, in a sting set up by Detective Cvitanov. She was given use
Peralez married Lopez after he had been charged with the instant offenses. She had known Lopez for about eight years. Lopez told her before he was arrested that he shot a man in the arm, in an alley, and also told her he shot the man by accident. She visited Lopez in jail in April 2009, and he told her to visit Brousseau in jail, and tell her he was going to take all the blame and she should not say anything. Peralez had never met Brousseau. Peralez wrote down the message, and held it up to the visiting room window. Lopez had told her to write the message down, to avoid being recorded, and told her what to say. The message said, “Chris says not to worry, just' don’t say nothing, it will all be okay, he’s going to take the blame for it . . . .” It said nothing about a rape. Brousseau looked at the note, then “[s]he was crying. And she said that they had already found DNA on a condom, and that was that.” Brousseau mouthed the words. Brousseau also made a gesture, mimicking a condom. The next time Peralez visited Lopez, she told him what Brousseau said. Brousseau’s counsel asked Peralez if she could read Ups, and she testified she could.
Detective Jason Cvitanov testified Peralez visited with Lopez on April 12, 2009, saw Broussеau on April 14, 2009, and next visited Lopez on April 19, 2009. Nothing could be heard on the recording for the Peralez-Brousseau visit. However, it was common for jail visitors to bypass the recording system by mouthing words or using notes.
E. Brousseau’s Testimony
Brousseau testified on her own behalf. She had been homeless at the time of the murder, but sometimes stayed with Anthony Jimenez during November 2008, on the other side of a duplex from Crawford, who was Jimenez’s sister-in-law. Brousseau used drugs, worked as a prostitute, and had two misdemeanor theft convictions. Late on the night of the shooting, after midnight, Brousseau left Jimenez’s house to buy some cigarettes and turn a trick. On the way to the store she met Crawford and Lopez, whom she knew. They were talking about “coming up on”—or robbing—“a dude on a bike,” but Brousseau never discussed robbing anyone with them, or taking anyone into the alley. Because it was so cold, Brousseau turned around and walked back towards home. When the victim pulled up in his car, she got in and directed him to the alley, where she “usually” took customers; she felt safe there because it was near where she was staying and people in the area knew her. The victim unbuckled his trousers and leaned back as Brousseau searched in her bag for a condom. Then she heard the victim cry out, “Oh, my God, he’s got a gun.” As she fled, she saw Lopez by the driver’s side
Brousseau testified Peralez visited her in jail, but Brousseau did not know who Peralez was, and was confused by her visit. Peralez held up a note that said in part, Brousseau “needed to tell the cops that I was being raped,” and Brousseau began to cry, because she was being further entangled in something she was not part of. Brousseau never mouthed anything to Peralez about a condom or DNA. When asked why she had never told this story before, Brousseau said she was afraid of being a snitch.
R Lopez’s Testimony
Lopez testified on his own behalf. He was 23 and had known Lynch since he was about 10, they had been best friends, and he had known Crawford since he was 13. He met Brousseau early in 2008, “around the neighborhood.” On the night of the shooting, he was intoxicated. He was “[o]n ecstasy, a little bit of meth, and I was drinking.” While wandering around he met Crawford and Brousseau, and the trio “were just kind of chatting, tаlking while we were walking.” They were going to go to Lopez’s mother’s house, but he decided to go to Lynch’s house, to hang out with “the girls” in Lynch’s back room, which Lopez had used before. Lynch allowed them to use the room. They were there for about 15 minutes, with Lopez drinking beer and taking more Ecstasy pills, while his companions used methamphetamine. They decided to go get more beer.
At some point, Lopez got his brother Bictoriano’s gun from Lynch’s house. The trio first went to Crawford’s house, so she could get a jacket, and as Lopez waited by a picnic table, Brousseau left and said she would be back. When Crawford cаme out, she and Lopez talked about what to do “because we didn’t have any money. We were trying to see if we could get some beer.” During trial, Lopez conceded that if Brousseau turned a trick, the trio would have had money for beer, although he maintained that particular topic was not discussed at the time. As Lopez and Crawford talked, a car pulled up into the alley, which was not unusual, as people used the alley for drugs and prostitution. When Lopez saw the car shaking for about three minutes, he approached, and saw Brousseau jump out and run, after she cried out. Lopez claimеd that he had no intent to rob anyone, but was trying to help, or stop the occupants from “causing a mess, causing trouble.” When Lopez asked the driver what he was doing, the driver reached toward his side, and Lopez got scared and shot him.
G. Argument
The People argued Brousseau had to know Lopez was going to commit robbery, and she intended to aid him in that endeavor. Her act of fleeing from the car was part of the robbery plan, to give her the ability to say she did not know of the robbery, if the victim identified her. If she really had been scared, she would have run to Jimenez’s house, which is why she usеd the alley regularly, and she would not have joined Lopez and Crawford at Lynch’s house after the murder. There was no reason for Crawford to lie to the authorities, and her statement put her “in the middle” of the planned robbery. Crawford knew of the planned robbery and did nothing to stop it, and knew that Lopez had a gun.
The People emphasized that, if the jury were to find that Crawford was an accomplice, only slight evidence would be needed to corroborate her story. Bictoriano and Lynch were not accomplices, because they only helped after the crime, and there was no evidenсe they knew about the robbery earlier.
Brousseau’s counsel argued the only evidence supporting an attempted robbery came from Crawford, who lacked credibility. Lopez’s counsel, too, argued the felony murder theory Mnged on Crawford, and suggested the jury - convict Lopez of second degree murder or voluntary manslaughter.
H. Verdicts
The jury convicted defendants of first degree murder and attempted robbery, with a robbery-murder special circumstance. (§§ 187, subd. (a),
DISCUSSION
I
Special Circumstance
Brousseau contends no substantial evidence supports the robbery-murder special circumstance finding, because the evidence does not show she acted with reckless indifference to human life. Although this was not a capital case, the issue she raises arises from capital sentencing rules formulated by the United States Supreme Court, explained as follows:
“[Penal Code section 190.2, subdivision (d)] was added to existing capital sentencing law in 1990 as a result of the passage of the initiative measure Proposition 115, whiсh, in relevant part, eliminated the former, judicially imposed requirement that a jury find intent to kill in order to sustain a felony-murder special-circumstance allegation against a defendant who was not the actual killer. [Citation.] Now, pursuant to section 190.2(d), in the absence of a showing of intent to kill, an accomplice to the underlying felony who is not the actual killer, but is found to have acted with ‘reckless indifference to human life and as a major participant’ in the commission of the underlying felony, will be sentenced to death or life in prison without the possibility of parole. [Citations.]
“The portion of the statutory lаnguage of section 190.2(d) at issue here derives verbatim from the United States Supreme Court’s decision in Tison v. Arizona (1987)
Brousseau contends there was no evidence she intended to kill, and argues that even if the record supports a finding she was aware of Lopez’s purpose
In assessing this claim, we view the evidence and reasonable inferences in the light favorable to the verdict. (People v. Proby (1998)
The jury was instructed that in order to return a true finding on the special circumstance, it had to find Brousseau acted with reckless indifference, and a person so acts “when he or she knowingly engages in criminal activity that he or she knows involves a grave risk of death.”
Although Lopez testified at trial that he did not show Crawford or Brousseau the gun, nor did he mention a robbery to them, he had previously told law enforcement that both women knew he had the gun, and they may have been planning “to jack the guy” behind Lopez’s back. The jury could have believed Lopez’s inconsistent statement that the women knew he had a gun. (See People v. Johnson (1992)
Brousseau dismisses Lopez’s inconsistent statement, arguing, “this was merely part of his initial effort to shift the blame to the women and away from himself. [Citation.] This version was not relied on by the prosecutor in argument, and it was implicitly rejected by the jury’s verdict convicting [Lopez] of the Saelee murder.” We disagree. That this evidence was not mentioned in argument does not mean it was not considered, and the fact the jury did not credit a portion of Lopez’s statement to the authorities does not necessarily mean that it discredited the earlier statement in its entirety. The People invited the jury to infer from other evidence that Brousseau knew Lopez had a gun, and did not disclaim reliance on Lopez’s inconsistent statement about the gun.
Further, Brousseau’s knowledge of the gun before the robbery is not necessary to uphold the jury’s finding of special circumstances.
In People v. Hodgson (2003)
“The present case does not present evidence appellant supplied the gun, or was armed, or personally took the loot, or the like. Nevertheless, his role in the robbery murder satisfies the requirement his assistance be ‘notable or conspicuous in effect or scope.’ [Fn. omitted.]
“To begin with, this is not a crime committed by a large gang or a group of several accomplices. Instead only two individuals were involved. Thus, appellant’s role was more ‘notable and conspicuous’—and also mоre essential—than if the shooter had been assisted by a coterie of confederates. . . . Because appellant was the only person assisting Salazar in the robbery murder his actions were both important as well as conspicuous in scope and effect.
“A rational juror could also have found the evidence established appellant acted with ‘reckless indifference to human life.’ This phrase ‘is commonly understood to mean that the defendant was subjectively aware that his or her participation in the felony involved a grave risk of death.’ [Fn. omitted.] Even after the first shot it must have been apparent to appellant Ms. Nam had been severely injured and was likely unconscious. . . . Appellant had to be aware use of a gun to effect the robbery presented a grave risk of death. However, instead of coming to the victim’s aid after the first shot, he instead chose to assist Salazar in accomplishing the robbery by assuming his position at the garage gate and trying to keep it from closing until Salazar could escape from the garage with the loot.” (Hodgson, supra, 111 Cal.App.4th at pp. 579-580.)
Similarly, in People v. Smith (2005)
Brousseau’s act of luring the victim into the secluded alley was critical to the robbery’s success. After hearing what she knew was a gunshot, she failed to help the victim or call 911. Instead she went to Lynch’s house and stayed with defendant and Crawford for the rest of the night and, on the evidence, engaged in sexual intercourse with Lopez. Her actions reflect utter indifference to the victim’s life.
We conclude substantial evidence supports the robbery-murder special circumstance as to Brousseau.
II
Aiding Instruction
Brousseau contends the trial court erred by instructing the jury that a perpetrator and an aider are “equally guilty” of the crime. Any error was harmless.
The introductory instruction to the series of instructions on aiding, CALCRIM No. 400, as given in this case, provides; “A person may be guilty of a crime in two ways. One, he or she may have directly committed the crime. I will call that person the perpetrator. Two, he or she may have aided and abetted a perpetrator, who directly committed the crime. A person is equally guilty of the crime whether he or she committed it personally or aided and abetted the perpetrator who committed it.”
Generally, a person who is found to have aided another person to commit a crime is “equally guilty” of that crime. (§31; see 1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Introduction to Crimes, § 77, pp. 122-123.)
Howеver, in certain cases, an aider may be found guilty of a greater or lesser crime than the perpetrator. (People v. McCoy (2001)
Because the instruction as given was generally accurate, but potentially incomplete in certain cases, it was incumbent on Brousseau to request a modification if she thought it was misleading on the facts of this case. Her
Further, we see no рrejudice. Brousseau contends the jury may have found she intended to commit a theft from the person of the victim, not a robbery. But the gist of her testimony was that she had no criminal purpose and was surprised by Lopez’s actions. As we explain in the unpublished portion of our opinion, there was no evidence she intended to help Lopez steal from the victim, other than by use of force or fear.
To the extent Brousseau contends the instruction reduced the People’s burden of proof by eliminating the need to prove Brousseau’s intent, we disagree. “Jurors are presumed able to understand and correlate instruсtions and are further presumed to have followed the court’s instructions.” (People v. Sanchez (2001)
CALCRIM No. 401, as given in this case, provided in part:
“To prove that defendant, Rebecca Brousseau is guilty of attempted robbery crime [sz'c] based on aiding and abetting that crime, the People must prove that:
“1. The perpetrator committed the crime;
“2. The defendant knew that the perpetrator intended to commit the crime;
“3. Before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime;
“AND
“4. The defendant’s words or conduct did in fact aid and abet the perpetrator’s commission of the crime.
*1120 “Someone aids and abets a crime if he or she knows of the perpetrator’s unlawful рurpose and he or she specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator’s commission of that crime.”
By specifying attempted robbery, and stating the aider must share the perpetrator’s purpose to commit “that” crime, the instruction told the jury it had to find Brousseau shared Lopez’s purpose to commit a robbery. Further, CALCRIM No. 540B, defining Brousseau’s liability for murder, required the jury to find she “committed or attempted to commit, or aided and abetted a robbery” before finding murder liability. Robbery was defined, and the jury was told, “To be guilty of robbery as an aidеr and abettor, the defendant must have formed the intent to aid and abet the commission of the robbery.”
Thus, even if we were to accept Brousseau’s premise that CALCRIM No. 400 impairs the intent element, the error was harmless because the point was covered elsewhere. (People v. Stewart (1976)
Contrary to Brousseau’s claim in the reply brief, the other instructions given (CALCRIM Nos. 401 & 540B) did not conflict with the “equally guilty” language in CALCRIM No. 400; they defined and detailed the circumstances under which Brousseau could be found liable for the same crimes as Lopez.
In the absence of evidence of Lopez’s intent to commit any crime other ■ than robbery, and considering the detailed instructions requiring the jury to find Brousseau aided a robbery, no rational jury would have misused the “equally guilty” language to convict her of attempted robbery without finding she intended to aid a robbery. Therefore, any error was harmless.
III-IX
The parole revocation restitution fines are stricken. The trial court is directed to prepare and forward to the Department of Corrections and Rehabilitation modified abstracts of judgment consistent with this opinion. In all other respects, the judgments are affirmed.
Raye, P. J., and Nicholson, J., concurred.
A petition for a rehearing was denied September 29, 2011, and the opinion was modified to read as printed above. Appellants’ petitions fоr review by the Supreme Court were denied November 22, 2011, S196883.
Notes
Further statutory references are to the Penal Code unless otherwise specified.
Two former codefendants did not appeal. Andrew Lynch pled guilty to obstructing a peace officer (§ 148, subd. (a)(1)), and Lopez’s brother, Bictoriano Lopez (we shall refer to him as “Bictoriano” within the opinion, as he and defendant share the same last name), pled guilty to being an accessory after the fact (§ 32).
Lynch testified that Bictoriano lied at the preliminary hearing, by saying he had come to Lynch’s house three or four days after the shooting, by testifying the gun was not his, аnd by testifying Lynch showed him where the gun was, in the backyard.
Bictoriano testified his daughter was in intensive care and he stayed at the hospital after her birth; hence, he did not visit Lynch the morning after the killing.
We note that CALCRIM No. 400 has been amended to remove the “equally guilty” language. (Judicial Council of Cal., Crim. Jury Instns. (2011) p. 167.)
In Nero, supra,
See footnote, ante, page 1106.