People v. Campbell

• Decision Date: 27 May 1994
• Docket Number: Nos. H011099,H011244,s. H011099
• Citation: 25 Cal.App.4th 402,30 Cal.Rptr.2d 525
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Carlo Rene CAMPBELL, Defendant and Appellant. The PEOPLE, Plaintiff and Respondent, v. Victor Tyrone SMITH, Defendant and Appellant.

Page 525

30 Cal.Rptr.2d 525

25 Cal.App.4th 402

The PEOPLE, Plaintiff and Respondent, v. Carlo Rene CAMPBELL, Defendant and Appellant.

The PEOPLE, Plaintiff and Respondent, v. Victor Tyrone SMITH, Defendant and Appellant.

Nos. H011099, H011244.

Court of Appeal, Sixth District, California.

May 27, 1994.

Certified for Partial Publication ^*.

Review Denied Aug. 17, 1994.

Steven Schorr, La Jolla by Appointment of the Sixth District Appellate Program, for Carlo Rene Campbell, defendant/appellant.

Paul Couenhoven, Berkeley by Appointment of the Sixth District Appellate Program, for Victor Tyrone Smith, defendant/appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Ronald A. Bass, Sr. Asst. Atty. Gen., Ann K. Jensen, Supervising Deputy Atty. Gen., Christina V. Kuo, Deputy Atty. Gen., for plaintiff/respondent.

WUNDERLICH, Associate Justice.

I Statement of the Case

Defendant Carlo Rene Campbell appeals from a judgment entered after a jury convicted him of attempted robbery and attempted murder and also found that he personally used a firearm to commit these offenses. (Pen.Code, §§ 187, 211, 664, 12022.5, subd. (a).) ¹

Codefendant Victor Tyrone Smith appeals from a judgment entered after the same jury convicted him of attempted robbery and also found that he was armed at the time of the offense. (Pen.Code, §§ 211, 664, 12022, subd. (a)(1).)

On appeal, Campbell contends he was denied effective assistance of counsel in that his attorney failed to raise a meritorious corpus delicti objection to the charge of attempted robbery. He also contends that the court erred in imposing sentences for both the attempted robbery and attempted murder and in ordering him to pay restitution without finding he had an ability to pay.

Smith contends the court erred in instructing the jury on aiding and abetting and claims his conviction for attempted robbery must be reversed because the jury probably relied on the erroneous instructions. He also contends that the court misinstructed the jury on the definition of aiding and abetting.

We strike the order directing Campbell to pay restitution and otherwise affirm the judgments as to both Campbell and Smith.

II Facts

At about 1:00 a.m., on September 26, 1991, Timothy Branch and his girlfriend Deborah Sester sat on a fence in front of an apartment complex on Cadillac Drive in San Jose arguing about whether to buy more crack cocaine. ² While arguing, both noticed two men and a woman walk by. Several minutes later, Sester saw the two men, whom she later identified as Campbell and Smith, returning. As they approached, she grabbed Branch's leg. ³ When Campbell and Smith were in front of them, Branch heard Campbell say something like "this is a robbery, break yourself." Branch understood to mean empty your pockets. Sester heard Campbell say something but not what. She did hear Branch respond, " 'What do you mean? You don't know me and I don't know you and there ain't no future in this meeting.' "

Campbell responded by pointing a handgun an inch from Branch's head. Branch said it looked like a .38 caliber pistol. Acting instinctively, Branch swatted the gun away from his head, hoping to knock it loose. He then ran off, zigzagging down Cadillac Street toward Winchester. Campbell held on to the gun, used a nearby mailbox to steady his arm, aimed at the fleeing Branch, and fired several times. The first shot shattered the rear window of a car. The second hit Branch, who grunted but continued running. A third shot went by his head. Thereafter, Campbell started chasing Branch, firing as he ran.

Branch was able to escape into a restaurant, whose owner called an ambulance. When the police arrived, Branch described his assailant. He also said he could identify him again. He then expressed concern for Sester, and the police went to look for her.

Meanwhile, in response to reports of gunshots in the area, some other police officers arrived and observed that Campbell was the only person around. When one officer honked at him, Campbell pulled up his shirt, reached into his waistband, and sprinted off. Police pursued and apprehended him. They found three spent .38 caliber cartridge shells in his pocket and a fully loaded .38 caliber revolver in bushes nearby. It was later determined that two of the cartridges had been fired by the gun. Markings on the third cartridge were not clear enough to permit identification.

After Campbell had left to chase Branch, Sester attempted to back away from Smith, but Smith grabbed her by the hair, saying, " 'Where the fuck are you going, bitch.' " He then asked what she had. She said she had only the gold earrings she was wearing and "that's all." Smith said she also had "pussy" and he wanted some. He walked her back toward a carport and told her to do what he said or he would "blow [her] fucking head off with his .25." Sester testified Smith raped her twice and forced her to orally copulate him twice. ⁴ Smith then forced Sester to go with him to a 7-11 store. The police officer who had gone to look for her saw the two of them and called out. He noticed Sester mouthing the words "I need help" and spoke to her alone. She said, "get [Smith] away from me, his friend shot my friend and he raped me." Police arrested Smith. Sester said she could identify the shooter, described him, and later identified Campbell. Campbell was also arrested.

III & IV ^**

V

Smith's Appeal

A. The Conviction for Attempted Robbery

Smith contends that his conviction for attempted robbery must be reversed due to a combination of insufficient evidence and instructional error. He notes that the prosecutor argued two different theories of liability: (1) Smith aided and abetted Campbell's attempt to rob Branch and/or (2) Smith personally attempted to rob Sester. Although Smith concedes there is sufficient evidence to support his conviction on the theory that he attempted to rob Sester, he claims there is insufficient evidence to support a conviction based on aiding and abetting Campbell and for this reason the court erred in giving aiding and abetting instructions.

Smith acknowledges that ordinarily, where there is sufficient evidence to support one of the factual theories of guilt asserted by the prosecution, appellate courts will presume the jury adopted that theory and affirm the judgment. (People v. Guiton (1993) 4 Cal.4th 1116, 1127, 17 Cal.Rptr.2d 365,847P.2d45.) He points out, however, that where there is insufficient evidence to support one of the prosecution's theories, it is error for the trial court to instruct on it, and the error requires reversal if it is reasonably probable the jury relied solely on these factually unsupported instructions to convict the defendant. (Id. at p. 1130, 17 Cal.Rptr.2d 365, 847 P.2d 45; see People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.)

Here, Smith argues that because there was insufficient evidence that he aided and abetted Campbell, the court erred in instructing on aiding and abetting, and the error compels reversal because it is reasonably probable the jury relied on the aiding and abetting instructions to convict him of attempted robbery.

We disagree with Smith's initial claim that there is insufficient evidence to find that he aided and abetted Campbell's attempt to rob Branch.

"The test for determining whether instructions on a particular theory of guilt are appropriate is whether there is substantial evidence which would support conviction on that theory. [Citation.] To determine whether there is substantial evidence to support a conviction we must view the record in a light most favorable to conviction, resolving all conflicts in the evidence and drawing all reasonable inferences in support of conviction. We may conclude that there is no substantial evidence in support of conviction only if it can be said that on the evidence presented no reasonable fact finder could find the defendant guilty on the theory presented. [Citation.]" (People v. Nguyen (1993) 21 Cal.App.4th 518, 528-529, 26 Cal.Rptr.2d 323; see People v. Johnson (1980) 26 Cal.3d 557, 576, 162 Cal.Rptr. 431, 606 P.2d 738; Jackson v. Virginia (1979) 443 U.S. 307, 318, 99 S.Ct. 2781, 2788, 61 L.Ed.2d 560.) Substantial evidence is evidence " 'of ponderable legal significance ... reasonable in nature, credible, and of solid value.' [Citations.]" (People v. Johnson, supra, 26 Cal.3d at p. 576, 162 Cal.Rptr. 431, 606 P.2d 738.)

"A person aids and abets the commission of a crime when he or she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime." (People v. Cooper (1991) 53 Cal.3d 1158, 1164, 282 Cal.Rptr. 450, 811 P.2d 742; People v. Beeman (1984) 35 Cal.3d 547, 561, 199 Cal.Rptr. 60, 674 P.2d 1318.)

"Whether defendant aided and abetted the crime is a question of fact, and on appeal all conflicts in the evidence and reasonable inferences must be resolved in favor of the judgment." (People v. Mitchell (1986) 183 Cal.App.3d 325, 329, 228 Cal.Rptr. 286.)

Here, Smith claims the evidence shows only that he was present when Campbell attempted to rob Branch. He argues that it is unreasonable to infer from his presence that he knew of and shared Campbell's criminal intent. We disagree with Smith's view of the evidence.

Smith correctly points out that in general neither presence at the scene of a crime nor knowledge of, but failure to prevent it, is sufficient to establish aiding and abetting its commission. (See People v. Durham (1969) 70 Cal.2d 171, 181, 74 Cal.Rptr. 262, 449 P.2d 198; In re Jose T. (1991) 230 Cal.App.3d 1455, 1460, 282 Cal.Rptr. 75.) However, "[a]mong the factors which may be considered in making the determination of aiding and abetting are: presence at the scene of the crime, companionship, and conduct before and...