People v. Davis

• Decision Date: 16 July 1992
• Citation: 8 Cal.App.4th 28,10 Cal.Rptr.2d 381
• Parties: The PEOPLE, Plaintiff and Respondent, v. Calvin Bernard DAVIS, et al., Defendants and Appellants. D012079.
• Court: California Court of Appeals Court of Appeals

Page 381

10 Cal.Rptr.2d 381

8 Cal.App.4th 28

The PEOPLE, Plaintiff and Respondent, v. Calvin Bernard DAVIS, et al., Defendants and Appellants.

D012079.

Court of Appeal, Fourth District, Division 1, California.

July 16, 1992.

Certified For Partial Publication ¹

Review Denied Oct. 22, 1992.

David L. Kelly, Sacramento and Janice Wellborn, San Francisco, under appointment by the Court of Appeal, for defendants and appellants.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Harley D. Mayfield, Asst. Atty. Gen., Keith I. Motley and Laura Whitcomb Halgren, Deputy Attys. Gen., for plaintiff and respondent.

BENKE, Associate Justice.

Appellants Calvin Bernard Davis and Eddie James Spence, Jr., along with codefendant Louis Mosley were each convicted of one count of robbery. (PEN.CODE, § 211.)² True findings were returned as to Spence, Davis and Mosley on allegations the robbery involved a great taking. (§ 12022.6, subd. (b).) True findings were returned as to Spence and Davis on allegations that during commission of the robbery they were armed with a firearm. (§ 12022, subd. (a).) It was also found true Spence had a prior conviction for a serious felony within the meaning of section 667, subdivision (a). Spence and Davis appeal, arguing instructional error. We affirm.

FACTS

At 7:30 in the evening on September 29, 1989, Barbara Depew was working in the jewelry department of the Best store on El Cajon Boulevard in La Mesa. Depew heard a commotion, looked up and saw two black men who she later identified as Louis Mosley and Eddie Spence. Mosley was holding a sawed-off shotgun. Spence ordered Depew to open the jewelry cases, then used a pillowcase to collect jewelry. The men left with the jewelry which had an estimated value of $300,000.

Several other employees and customers observed the robbery. Mapuana Abel, a customer, heard yelling in the jewelry department and saw a man she later identified as Mosley holding a shotgun. Abel also identified Spence as involved in the crime. Kacee Miller, an employee, heard yelling and screaming in the jewelry department and saw three black men running around. Miller heard one of them say "get down" and saw the employees and customers in the area comply. The three men were scattered about the jewelry department. One of them pointed a shotgun at Miller and told her to get down. One of them was collecting jewelry and putting it in a pillowcase. Donna Lacey was shopping at the Best store at the time of the robbery. She heard someone yell "This is a holdup. Everybody down." She turned and saw a man holding a shotgun. Lacey was unable to identify any of the three men involved in the robbery. James Jarvis, a San Diego police captain, was also in the store at the time of the robbery and it was his "impression" three persons were involved in the crime.

Bryan Whitney, a Best store employee, was talking to a friend in front of the store at approximately 7:30 in the evening. Whitney noticed a white, four-door sedan parked at the curb in front of the store, facing in the wrong direction. Whitney was sitting on the curb and the car's headlights restricted his vision. After about five minutes the car sped away. Whitney first learned a robbery had occurred about two minutes after the car departed when a police officer asked him for a description of the vehicle.

At approximately 7:30 p.m. on September 22, 1989, Officer Juan Medero received a radio report concerning the Best store robbery, including a description of the car possibly involved in the crime. Medero quickly drove to the area of 70th and Alvarado Streets and positioned himself so he could see the traffic coming from the direction of the Best store about a mile away. About a minute and a half after the broadcast, the officer saw a car fitting the description given. It was on Alvarado driving from the direction of the Best store and toward the freeway. The car had no license plates. The officer could see a black male driver, who he later identified as Spence, and noticed another individual ducking down in the back seat.

When the officer pulled in behind the car, it accelerated rapidly, ran a red light and sped westbound on Interstate 8. Medero gave chase. Traveling at speeds as great as 95 miles per hour, the car headed west and then turned north onto Interstate 15. Medero, now joined by other police cars and a sheriff's helicopter, continued in pursuit, at times going 100 miles per hour.

The white sedan left the freeway at the Carmel Mountain off-ramp, started to skid, hit a car stopped at a light and traveled approximately about 200 feet east on Carmel Mountain Road where it stopped. The driver's door opened and Spence quickly got out. Medero got out of his car. Spence turned, looked at the officer and started to raise his hand. Fearing for his safety, the officer fired one shot, missing Spence. Within one or two seconds of Spence opening his door, the two doors on the passenger side of the car opened and two men, later identified as Davis and Mosley, jumped from the car and ran. The other pursuing officers had yet to arrive and Medero stayed in place, watching the directions the three men were running. Medero last saw Davis and Mosley running south toward an area of heavy brush.

As the car came to a stop, it was illuminated by the floodlight on the sheriff's helicopter. The officers in the helicopter saw the doors open and three men run from the car. Using standard procedure the helicopter followed the fleeing driver. The officers followed Spence and apprehended him after he ran across the freeway.

Other officers arrived and a search began for the two suspects still at large. Medero and another officer searched the bushy area where the men had fled but found no one. The helicopter crew then reported a black male running on a nearby residential street. The officers went to the location and saw Mosley running in the beam of the helicopter searchlight. He stopped and was placed under arrest.

After searching in the residential area several hours, the officers gave up the hunt. Officers Adams and Gain were assigned to collect some pieces of jewelry found scattered about a dirt area near the car. They recovered jewelry still bearing Best store tags. As this search was underway, one of the officers heard something in the brush. The officers investigated and found a man, later identified as Davis, under some bushes about 20 feet from where the jewelry was recovered. Davis was placed under arrest.

The officers found two pillowcases in the white sedan, one on the front floorboard and one on the rear floorboard, each containing jewelry taken in the robbery. The officers found a loaded sawed-off shotgun and a license plate on the front seat of the car.

DISCUSSION

A. Davis Appeal

1. Jury Unanimity and Theories of Criminal Participation

Appellant Davis urges the trial court erred in failing sua sponte to instruct in the terms of CALJIC No. 17.01, which states that where the prosecution has introduced evidence tending to prove more than one act upon which a conviction for an offense may be based, the defendant may be found guilty if the proof shows beyond a reasonable doubt that he committed any one or more of such acts. However, the instruction requires that in order to return a verdict of guilty on the charge, all jurors must agree the defendant committed the same act. Davis contends the instruction is necessary because his conviction for the robbery could have been based upon one of two theories of criminal responsibility, each dependent on a different finding of fact.

In support of his argument, Davis observes evidence was presented he entered the store and thus was a perpetrator of the robbery. He notes, however, that evidence was also presented supporting the conclusion he remained in the car during the robbery and was thus an aider and abettor. He urges it is possible the jurors were split on what he did, with some jurors believing he entered the store and directly participated in the crime, while others may have concluded he did not enter the store but remained in the car, as an aider and abettor. Under such a split-jury scenario, some of the jurors who believed he entered the store might have believed the evidence insufficient to prove him an aider and abettor.

Davis argues a verdict which permits such a split view of facts underlying his liability is impermissible. He concludes all jurors must unanimously agree upon the same facts giving rise to criminal liability, and the giving of CALJIC No. 17.01 assures a guilty verdict will be based upon such unanimity. We reject Davis's arguments. In so doing, we part company with People v. Melendez (1990) 224 Cal.App.3d 1420, 274 Cal.Rptr. 599, which requires such factual unanimity.

a. Problem of Unanimous Verdicts

In California, as in most American jurisdictions, criminal verdicts must be unanimous. (People v. Jones (1990) 51 Cal.3d 294, 321, 270 Cal.Rptr. 611, 792 P.2d 643.) However, about what must jurors unanimously agree? In a first degree murder case for example, guilt may be based upon either a theory of premeditation and deliberation or felony murder. Criminal responsibility may be further refined, based on one of at least three additional theories: direct participation, aiding and abetting and co-conspiracy. Each of these theories of, and responsibility for, the crime may in turn be even further refined, based upon different evidence or different interpretations of evidence.

Thus, in a given case the evidence may reasonably lead some jurors to conclude the defendant was guilty of first degree murder based upon a finding of premeditation and deliberation while some reject that theory but find guilt based upon the felony murder rule. Some of those jurors finding premeditation and deliberation may find the defendant criminally responsible based on direct participation while others adamantly reject such a conclusion but firmly believe the...