People v. Melendez

• Decision Date: 02 November 1990
• Docket Number: No. F012161,F012161
• Citation: 224 Cal.App.3d 1420,274 Cal.Rptr. 599
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Mario MELENDEZ, Defendant and Appellant.

Page 599

274 Cal.Rptr. 599

224 Cal.App.3d 1420

The PEOPLE, Plaintiff and Respondent, v. Mario MELENDEZ, Defendant and Appellant.

No. F012161.

Court of Appeal, Fifth District, California.

Nov. 2, 1990.

Certified for Partial Publication ^*

[224 Cal.App.3d 1422] Peter Dodd, under appointment by the Court of Appeal, Richmond, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., J. Robert Jibson and Raymond L. Brosterhous II, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

VARTABEDIAN, Associate Justice.

Mario Melendez (defendant) and Cirilo E. Guzman were tried jointly for the second degree robbery of Michael Shirher (count I, Pen.Code, § 212.5, subd. (b)) and an assault with a deadly weapon upon Steve Herrera (count II, Pen.Code, § 245, subd. (a)(2)). In addition, defendant was charged with an arming allegation (Pen.Code, § 12022, subd. (a)) in count I. Defendant and Guzman were convicted of second degree robbery. The jury was deadlocked on the arming allegation and count II. A mistrial was declared as to these charges. Defendant appeals, claiming three instructional errors and prosecutorial misconduct. We reverse, finding two separate instructional errors, one of which we discuss in the published portion of this opinion.

STATEMENT OF FACTS

On November 30, 1988, Michael Shirher was working as the store manager at a Radio Shack in Bakersfield. A Hispanic man (Provencio) wearing a white sweater was in the store. He left and returned a few minutes later. Defendant entered the store and was being helped by Shirher when Provencio returned. Shirher watched Provencio when he was in the store the second time. He left again and returned a third time five minutes later. In the interim period, defendant made a purchase and left. When Provencio entered the store for the third time, Guzman was in the store. Provencio grabbed a video cassette recorder (VCR) and ran from the store.

Deputy Sheriff Steve Herrera was off duty that day and had gone to Radio Shack to make a purchase. When he arrived, his attention was drawn to a dark compact car. Defendant was in the car; Guzman and Provencio got out of the car and entered Radio Shack. Herrera thought it was unusual that the car was parked some distance from the store when there was parking available closer to the store.

Herrera saw Provencio pick up the VCR and run out of the store. Herrera chased Provencio. Guzman followed. The three of them ran behind the store building. Herrera went to the ground when he heard shots. Guzman told Herrera to stay down. Guzman had fired the shots; of this, Herrera was positive.

The same compact dark car was then observed by Herrera behind the building. He saw defendant standing at the open door of the driver's side of the car and recognized him as the same person he had seen in the car when it was parked at the front of the store. Although Herrera did not see defendant's face either time, he recognized him by other features. Herrera was not "absolutely positive" of his identification of defendant. Herrera returned to Radio Shack.

Police officer Mike Vest was on duty the evening of November 30, 1988. He was driving near the Radio Shack and saw two men in the alley; one was holding an object. He then heard gunshots. The two men jumped the fence into an apartment complex. Vest followed and saw several people standing around. Two members of the group looked like the two Vest had seen in the alley. They fled when they saw him. Vest chased the one wearing a white sweat shirt.

Officer Kevin Legg received a report of two individuals running from Radio Shack. While responding to this call, he received a report of the armed robbery at Radio Shack. Legg went to the apartment complex and saw the "suspect vehicle" drive by. He asked the driver to stop, but the driver drove away rapidly. Legg shined his light into the vehicle. Defendant was driving, and Guzman was the passenger. Legg got the license plate number from the car. After learning that defendant was the registered owner, Legg went to his house and saw the car. When Legg arrived, defendant and Guzman came out of the house. Guzman had changed his clothes.

Shirher and Herrera were taken to three locations and shown a total of five people. Shirher identified defendant and Guzman as being in the store that evening. Herrera identified Guzman as being in the store and shooting at him. He identified defendant as the person who was in the dark compact car in front of the building before the robbery and behind the building after the robbery.

A white sweat shirt was found near the path that Provencio fled. The VCR was found behind Radio Shack in some shrubbery behind a tree. The officers failed to find a gun or expended cartridges.

Defense

James Clifton testified that he was at the apartment complex the evening of November 30, 1988. He saw the officers chase some men through the complex. He saw one of the men jump into a dark car driven by a white man with blond hair and a mustache. On cross-examination Clifton was shown a picture of defendant's car and said the photo looked like the car he saw except it was not the same color. He also testified that he was threatened by a tall white man that he would be beaten if he testified.

DISCUSSION

I. Unanimity Instruction

The jury was instructed that it could find defendant and Guzman guilty as principals under theories of active participation, aiding and abetting, and/or conspiracy. Aiding and abetting and conspiracy were further defined for the jury.

The People argued that defendant was guilty of both counts and the arming allegation as either an aider and abettor or a conspirator. It was not argued that defendant was a direct participant in the robbery. In discussing aiding and abetting and conspiracy, the prosecutor stated, "I think there is a bunch of ways to find both men guilty of the count alleged against them." The prosecutor's comments on conspiracy were as follows:

"Conspiracy is simply an agreement to do something in the future or however far in the future, that is illegal. Specifically agree to do an act that is illegal and all you have to do is have an overt act, that can be anything taken. It doesn't have to be the illegal act itself. If you find taking the VCR, firing the handgun, driving the getaway car, dropping them off outside, so I will talk about several different ways to look at the conspiracy issue. If you get back there and are talking about it and somebody says I don't think there was enough agreement to show beforehand, but I do think he was the person who saw what was happening going on and knew what was going on, he is an aider and abettor. Of course he knew what was going on; drop him off, pick him up later on, left the scene with him. He was a member of the conspiracy. It doesn't matter what theory you believe if you believe the gentlemen are guilty.

"Eight people can say he is an [sic ] a conspirator and four people can say he is an aider/abettor. Here are the elements as the Judge has given you of aiding and abetting.

"Number one, if the unlawful purpose of the perpetrator; taking the VCR, and if it is under a certain amount, it is petty theft. If it is over a certain amount it can be grand theft. That suspect may have gone in there to steal a telephone and decided to steal a VCR. As long as he knew the purpose was to steal something that is sufficient.

"Two, with the intent or purpose of committing, encouraging, or facilitating the commission of the crime a person need not be present at the scene of the crime. Mr. Melendez, being behind the Radio Shack ready to pick him up and he is later got away from the police....

"[Conspiracy] is an agreement between two or more with specific intent to agree to commit a public offense such as a robbery and we need not show that they talked about it, that there was express agreement to it. We can show it circumstantially. I don't have to get in their heads and tell you what they were thinking or talking about with the specific intent to commit such offense. They intended to take the VCR. The fact Mr. Melendez was in the store previously, a third suspect was in there, the fact they pretended they didn't know each other.

"Three, followed by an overt act committed in this state by one or more of the parties for the purpose of attempting--if it is done in furtherance of the conspiracy. Any one of these things can be found to be an overt act."

The prosecutor also argued if the jury believed defendant was there and saw what happened, he was an aider and abettor. If the jury believed there was a plan beforehand, anything in furtherance of that plan made defendant responsible.

The theme of defendant's argument was the People failed to prove his involvement. Defendant argued that Shirher saw nothing that connected him to Provencio, and he was not in the store when the crime was committed. Therefore, conspiracy was not shown. Defendant focused on the uncertainty of Herrera's identification of him. Defendant asserted that Officer Legg's testimony was inconsistent; in contrast, he argued, Clifton's testimony was consistent and more believable. Defendant stated that regardless of which theory the jury used--aiding and abetting or conspiracy--there was not enough evidence to find him guilty. Proof of an agreement, he urged, was totally lacking.

The jury was not given CALJIC No. 17.01, the standard unanimity instruction. It provides:

"The defendant is accused of having committed the crime of __________ [in Count _____]. The prosecution has introduced evidence tending to prove that there is more than one [act] [or] [omission] upon which a conviction [on Count ___] may be based. Defendant may be found guilty if the proof shows beyond a reasonable doubt that [he] [she] committed any one or more of such [acts] [or] [omissions]. However, in order to return a verdict of...