People v. Robertson

• Decision Date: 19 August 2004
• Docket Number: No. S118034.,S118034.
• Citation: 34 Cal.4th 156,17 Cal.Rptr.3d 604,95 P.3d 872
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Quincy ROBERTSON, Defendant and Appellant.

17 Cal.Rptr.3d 604

95 P.3d 872

34 Cal.4th 156

The PEOPLE, Plaintiff and Respondent, v. Quincy ROBERTSON, Defendant and Appellant.

No. S118034.

Supreme Court of California.

August 19, 2004.

Juliana Drous, San Francisco, under appointment by the Supreme Court, for Defendant and Appellant.

Bill Lockyer, Attorney General, Manuel M. Medeiros, State Solicitor General, Robert R. Anderson, Chief Assistant Attorney General, Ronald A. Bass and Gerald A. Engler, Assistant Attorneys General, Laurence K. Sullivan, Acting Assistant Attorney General, Catherine A. Rivlin, Seth K. Schalit and William M. Kuimelis, Deputy Attorneys General, for Plaintiff and Respondent.

GEORGE, C.J.

In this case we must determine whether the trial court properly instructed the jury that defendant could be convicted of second degree felony murder based upon the predicate offense of discharging a firearm in a grossly negligent manner (Pen Code, § 246.3),¹ or whether the second degree felony-murder rule was inapplicable under the so-called merger doctrine referred to in People v. Ireland (1969) 70 Cal.2d 522, 75 Cal.Rptr. 188, 450 P.2d 580 (Ireland) and later cases. For the reasons explained below, we conclude that the merger doctrine did not bar instruction on second degree murder based upon a felony-murder theory. Although the Court of Appeal majority reached a contrary conclusion, it nonetheless affirmed the judgment of conviction, finding harmless any error on the part of the trial court in instructing the jury that it could convict defendant under a second degree felony-murder theory. Because we conclude the trial court did not err in instructing the jury, we affirm the judgment of the Court of Appeal upholding defendant's conviction.

I

Defendant Quincy Robertson was convicted of second degree murder (§ 187) and committing assault with a deadly weapon and by means of force likely to inflict great bodily injury. (§ 245, subd. (a)(1).) The jury found true the following allegations: that defendant personally used a firearm in the commission of these offenses (§§ 1203.06, 12022.5); that, in connection with the murder charge, he intentionally discharged a firearm, proximately causing great bodily injury or death (§ 12022.53, subd. (d)); and that, in connection with the assault charge, he inflicted great bodily injury (§ 12022.7). The court sentenced defendant to a term of 15 years to life in prison for the murder, with an enhancement of 25 years to life pursuant to section 12022.53, subdivision (d). The court also sentenced him to a concurrent term of eight years in prison for the assault offense, enhanced by the firearm-use and great-bodily-injury findings.

During the evening of December 27, 1998, the victims Kehinde Riley and Ricky Harris, joined by Bradley Gentry and Lamont Benton, imbibed alcohol and used marijuana and cocaine while they went for a drive in Benton's automobile. At approximately 10:30 p.m., they stopped in front of defendant's residence on 99th Avenue Court in Oakland. Riley and Harris approached defendant's automobile, a Chevrolet Caprice Classic, which was parked in front of defendant's residence. According to Benton's testimony at trial, while Gentry and Benton looked on, Riley and Harris began removing the vehicle's hubcaps, making loud noises in the process. They had removed the passenger side hubcaps and were turning to the driver side hubcaps when defendant emerged onto the porch of his residence.

According to statements subsequently made by defendant to the police, he had been watching television with his wife and children, heard a loud noise and, retrieving a firearm, went outside to investigate. Defendant denied any involvement in the shooting in his initial statement. After gunshot residue was discovered on his right hand, defendant claimed he had fired a weapon earlier in the day to demonstrate its operation for a prospective buyer. Following further interrogation, defendant explained that upon hearing a sound outside, he looked out and observed three or four men near his automobile, apparently engaged either in dismantling it or stealing it. Defendant recalled that the men looked at him in a threatening manner, and he was uncertain whether they would attempt to enter his residence. In his final statement to the police, defendant claimed that when he emerged from his residence, he held his gun at a 45-degree angle and fired two warning shots. The physical evidence, however, indicated that three shots had been fired. A bullet hole discovered in the windshield of defendant's automobile and two other bullet holes found two feet above ground level in a vehicle that was parked across the street tended to disprove defendant's claim that he had held the gun at a 45-degree angle.

Benton testified at trial that immediately following defendant's discharge of the weapon from the porch, Benton and Gentry drove away, while Riley and Harris attempted to flee on foot. Benton testified he heard from seven to nine additional gunshots as he drove away. Defendant, claiming he had heard a sound that resembled either a car backfire or the discharge of a firearm, admitted in his final statement to the police that he had walked at least as far as the sidewalk and possibly into the street before firing three shots at the fleeing men. He denied intending that the shots hit the men and claimed that he fired upwards into the air, intending, as he said, to "scare people away from my domain." He conceded that firing a weapon in a residential neighborhood was dangerous to human life, but said he had not been thinking clearly.

Riley's body was discovered approximately 50 yards from where gun casings indicated the firearm had been discharged. It appeared the shots had been fired by a person standing in the middle of the street in front of defendant's residence. Riley had been shot in the back of the head. Harris suffered a gunshot wound to the sole of his right foot.

On the night of the incident, one of defendant's neighbors heard shots and witnessed a person standing in a "firing stance" in the street, firing shot after shot straight ahead and on each occasion correcting for the weapon's "kickback." The neighbor witnessed this person "swagger" back to the apartment complex where defendant resided.

One bullet casing was discovered on the porch of defendant's residence, two additional casings at the bottom of the stairs leading to defendant's apartment, and seven casings in the middle of the street in front of defendant's residence. Based upon the location of the bullet casings found in the street, the physical features of the surrounding neighborhood, and the location at which Riley and Harris were discovered after the shooting, the prosecution's ballistics expert testified that if the person who fired the weapon had held it at a 45-degree angle, he or she would not have struck the victims. This witness testified that in his opinion, the shooter must have pointed the weapon at the victims.

Character witnesses who testified in favor of defendant asserted that he was not a violent person, nor was he prone to anger. He enjoyed working on cars and was engaged in restoring his Chevrolet Caprice Classic for resale. Defendant's wife testified that during the time they resided on 99th Avenue Court, at least three of the family's vehicles had been broken into or vandalized.

Defendant's nephew recounted an episode in which defendant had been the victim of a shooting. The episode occurred six months prior to the charged crimes, following an automobile accident involving this nephew and the driver of another vehicle. After an argument erupted between the nephew and the other driver and while defendant was attempting to subdue his nephew, someone from the other vehicle fired on them, seriously injuring defendant's right arm. A clinical psychologist testified in defendant's behalf, expressing the opinion that defendant suffered from posttraumatic stress syndrome as a result of this and other incidents, that this condition caused defendant to be fearful and easily aroused emotionally, and that defendant likely had acted impulsively, without forethought, when he fired on the victims.

A ballistics expert testified on behalf of defendant, stating that persons lacking experience in shooting firearms tend to shoot in a manner that causes them to strike objects below their intended target.

In connection with the homicide charge, the jury was instructed on first degree murder, second degree murder with express malice, second degree murder with implied malice, second degree felony murder based on commission of the crime of discharging a firearm in a grossly negligent manner, and voluntary manslaughter. The defense argued that, at most, defendant might be liable for voluntary manslaughter on the theory that he acted in the heat of passion or from an honest but unreasonable belief in the need to defend himself.

The jury deliberated for three days. At that point, a juror who complained of debilitating stress arising from asserted conflict among the deliberating jurors was excused. The juror was replaced by an alternate, and the jury deliberated for an additional three days prior to rendering its verdict.

Defendant appealed, asserting, among other contentions, that the trial court erred in instructing the jury on second degree felony murder based upon the predicate offense of discharging a firearm in a grossly negligent manner, because, under the teaching of Ireland, supra, 70 Cal.2d 522,75 Cal.Rptr. 188,450 P.2d 580, the latter offense necessarily merged with the homicide. A majority of the Court of Appeal agreed, but determined that the error was harmless because, in view of the particular instructions given in the present case, the verdict finding defendant guilty of the aggravated assault on Harris also demonstrated that the jury necessarily rejected defendant's primary argument that when he shot the victims, he merely intended to frighten them...