People v. Pulido
| Decision Date | 29 May 1997 |
| Docket Number | No. S053965,S053965 |
| Citation | 15 Cal.4th 713,936 P.2d 1235,63 Cal.Rptr.2d 625 |
| Court | California Supreme Court |
| Parties | , 936 P.2d 1235, 97 Cal. Daily Op. Serv. 4033, 97 Cal. Daily Op. Serv. 4211, 97 Daily Journal D.A.R. 6772 The PEOPLE, Plaintiff and Respondent, v. Michael Robert PULIDO, Defendant and Appellant. |
John T. Philipsborn and Dennis Riordan, San Francisco, as Amici Curiae on behalf of Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Assistant Attorney General, Catherine A. Rivlin, Jeremy Friedlander, George F. Hindall, III and Allan Yannow, Deputy Attorneys General, for Plaintiff and Respondent.
Penal Code section 189 1 provides that any killing committed in the perpetration of specified felonies, including robbery, is first degree murder. Under long-established rules of criminal complicity, liability for such a murder extends to all persons "jointly engaged at the time of such killing in the perpetration of or an attempt to perpetrate the crime of robbery" (People v. Martin (1938) 12 Cal.2d 466, 472, 85 P.2d 880) "when one of them kills while acting in furtherance of the common design." (People v. Washington (1965) 62 Cal.2d 777, 782, 44 Cal.Rptr. 442, 402 P.2d 130.)
In this case, we address a question regarding the scope of complicity in robbery murder. If one person, acting alone, kills in the perpetration of a robbery, and another person thereafter aids and abets the robber in the asportation and securing of the property taken, is the second person guilty of first degree murder under section 189? We conclude the answer is no. Although the second person is an accomplice to robbery (People v. Cooper (1991) 53 Cal.3d 1158, 1165, 282 Cal.Rptr. 450, 811 P.2d 742), such participation in the robbery does not subject the accomplice to murder liability under section 189, because the killer and accomplice were not "jointly engaged at the time of such killing" in a robbery (People v. Martin, supra, 12 Cal.2d at p. 472, 85 P.2d 880); the killer, in other words, was not acting, at the time of the killing, in furtherance of a "common" design to rob (People v. Washington In the present case the jury was not instructed on the above principle. The lack of such instructions does not, however, require reversal; the omitted issue was resolved adversely to defendant under other, properly given instructions. (People v. Sedeno (1974) 10 Cal.3d 703, 721, 112 Cal.Rptr. 1, 518 P.2d 913, overruled on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12, 160 Cal.Rptr. 84, 603 P.2d 1; see alsoPeople v. Guiton (1993) 4 Cal.4th 1116, 1130, 17 Cal.Rptr.2d 365, 847 P.2d 45.) We will therefore affirm the judgment of the Court of Appeal, which affirmed defendant's conviction for first degree murder.
supra, 62 Cal.2d at p. 782, 44 Cal.Rptr. 442, 402 P.2d 130).
Sometime between 1 a.m. and 5:30 a.m. on May 24, 1992, Ramon Flores, the cashier at a Shell gas station in San Mateo, was shot in the head with a single .45-caliber bullet, killing him within seconds. A neighbor heard a loud bang coming from the direction of the gas station around 3:45 a.m., then a voice yelling; he could not distinguish words, but told a police detective it sounded like the person was addressing someone else. A cash register taken from the store was found the next morning in some roadside bushes elsewhere in San Mateo. Defendant's fingerprints were on the cash register, as well as on an unopened can of Coke found on the store counter. No fingerprints of Michael Aragon, who defendant testified committed the killing, were identified on either the can or the register.
Arrested on an unrelated auto theft charge, defendant volunteered that he had information about the Shell station robbery. He led police to a location where they found discarded, unused .45-caliber cartridges, which bore ejection markings resembling those on a cartridge found on the gas station floor. Defendant made a series of inconsistent exculpatory statements to police, blaming the robbery and killing successively on a man named Carlos Vasquez, on a relative of defendant's named Eduardo Alarcon and, finally, on an unidentified Tongan man. In a telephone conversation from jail with his uncle, Michael Aragon, and Aragon's cohabitant, Laura Moore, however, defendant said he was alone during the robbery.
At the time of the killing, defendant was staying with Aragon, Moore and their children in their San Mateo home. While he was staying with them, Aragon, two of the children, and a neighbor saw defendant with a pistol, which the neighbor identified as a .45-caliber Colt. During that time, defendant twice observed that the nearby Shell station would be easy to rob because the attendant was always asleep. Aragon told defendant to get rid of the gun because he, Aragon, was on probation. He had been convicted in 1989 of burglary, possession of cocaine and contributing to the delinquency of a minor.
Aragon and Moore testified that defendant was at home when they went to bed around midnight on May 23, but was gone when they got up at around 3 a.m. to care for their baby. The next morning, Sunday, May 24, they awoke to find defendant asleep in the living room with his clothes and shoes on. He showed Aragon his wallet and said, "Look unc, almost all ones." Later that day, Moore discovered defendant was carrying a handgun and insisted he and Aragon dispose of it. At her direction, defendant took the gun apart; Moore then boiled the pieces in soapy water and put most of them in a bag, which defendant and Aragon threw away near Candlestick Park. Two pieces that Moore had retained to prevent reassembly were later given to police and identified as fitting a .45-caliber Colt.
After seeing a newspaper article about the killing, Aragon asked defendant if he committed it. Defendant denied he had, but a few days later, when Aragon asked again, defendant admitted the crime. He told Aragon he bought a Coke, then shot Flores in the face, took the register and later threw it in some bushes. In a letter from jail, however, defendant wrote to Moore, "If Michael is reading this, tell him I didn't kill that guy, I was just messing with him."
Defendant testified, blaming Aragon for the killing. Aragon, he stated, had seen where defendant kept the pistol. On the night of May 23, defendant and Aragon went As they were driving away from the scene, Aragon told defendant to open the register. When defendant did not comply, Aragon pointed the gun at him and insisted. Defendant got a screwdriver from the back of the car and pried the register open. At Aragon's command defendant gave him the money and dumped the register in some bushes by the side of the road. Defendant denied touching a Coke can in the store that night; he suggested he might have touched the can on some earlier occasion when he bought a drink at the store.
out in Aragon's car; defendant thought the pistol was on the shelf where he usually kept [936 P.2d 1238] it. They went to Hunters Point, where Aragon bought and smoked some cocaine. They left, but returned later for Aragon to buy and smoke more cocaine. Eventually the two arrived at the Shell station in San Mateo. Aragon went inside, defendant thought for matches or cigarettes. Defendant waited outside. He heard a gunshot and ran into the store. Aragon was holding defendant's gun. Flores was lying on the floor, bleeding from a large bullet wound in his face. Defendant yelled at his uncle, ran out of the store and got in the passenger seat of the car. A few seconds later, Aragon came out, holding the cash register in his left hand and the gun in his right hand. He threw the register on defendant's lap and drove away.
The defense also presented evidence casting doubt on Aragon's credibility. While admitting a prior drug possession conviction, Aragon denied he was still using cocaine at the time of the killing. However, Aragon's sister (defendant's aunt) testified he came to her house on Sunday, May 24 or Monday, May 25, at which time he was "on something," but did not smell of alcohol. Her son described Aragon as acting paranoid and smelling of crack cocaine. The sister opined Aragon was a liar and a thief. A police detective testified that, when first interviewed, Aragon said he had gotten up at 12:15 a.m. Sunday to take care of the baby. When Aragon and Moore were later interviewed together at the police station, both said it was around 3 a.m. During a discussion about the time period in which the killing occurred, Aragon said to Moore, "That's when I was with you, remember?"
The jury convicted defendant of robbery and first degree murder, and found true a robbery-murder special-circumstance allegation. (§§ 211, 187, 189, 190.2, subd. (a)(17)(A).) The jury was unable to reach a verdict on allegations of personal gun use and personal infliction of great bodily injury. (§§ 1203.075, 12022.5, subd. (a).) Defendant was sentenced to a life term without the possibility of parole.
The Court of Appeal affirmed the murder conviction and sentence. The court rejected defendant's contention, based on People v. Esquivel (1994) 28 Cal.App.4th 1386, 34 Cal.Rptr.2d 324 (hereafter Esquivel ), that the trial court should, sua sponte, have instructed the jury defendant was not liable for the murder if he formed the intent to aid and abet the robbery only after Flores was killed. The Court of Appeal reasoned that because one who intentionally assists a robber in the asportation of the stolen property is, under People v. Cooper, supra, 53 Cal.3d 1158, 282 Cal.Rptr. 450, 811 P.2d 742, guilty of robbery, and because a killing in the commission of robbery is first degree murder under section 189, "[i]t is unnecessary for the jury to determine...
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