People v. Wright, C020395

• Decision Date: 13 December 1996
• Docket Number: No. C020395,C020395
• Citation: 51 Cal.App.4th 818,59 Cal.Rptr.2d 316
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 51 Cal.App.4th 818 51 Cal.App.4th 818, 52 Cal.App.4th 203, 96 Cal. Daily Op. Serv. 9118, 96 Daily Journal D.A.R. 14,981 The PEOPLE, Plaintiff and Respondent, v. Cheval Shannon WRIGHT et al., Defendants and Appellants.

Page 316

59 Cal.Rptr.2d 316

Previously published at 51 Cal.App.4th 818

51 Cal.App.4th 818, 52 Cal.App.4th 203,

96 Cal. Daily Op. Serv. 9118,

96 Daily Journal D.A.R. 14,981

The PEOPLE, Plaintiff and Respondent, v. Cheval Shannon WRIGHT et al., Defendants and Appellants.

No. C020395.

Court of Appeal, Third District, California.

Dec. 13, 1996.

Certified for Partial Publication ¹

As Modified Dec. 16, 1996.

Rehearing Denied Jan. 9, 1997.

Review Denied March 26, 1997.

Cliff Gardner, Gardner & Derham, Los Angeles, for Defendant and Appellant Abernathy.

Jeffrey J. Stuetz, Herndon, for Defendant and Appellant Wright.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Senior Assistant Attorney General, Edmund D. McMurray and Margaret Venturi, Supervising Deputy Attorneys General, for Plaintiff and Respondent.

DAVIS, Associate Justice.

A jury convicted defendants Cheval Shannon Wright and Christian Matthew Abernathy of a number of offenses, the most significant of which was first degree murder committed in the course of a robbery or attempted robbery. It found defendant Wright was a principal armed with a handgun that he personally used. As for defendant Abernathy, it rejected allegations he was a principal armed with a handgun or personally used a firearm in the commission of the crime. (Pen.Code, §§ 187-189; 190.2, subd. (a)(17)(i); 12022, subd. (a); 12022.5, subd. (a) [undesignated section references will be to this code].) Sentenced to state prison for the remainder of their lives (and then some), the defendants appeal.

In connection with the underlying offenses, both defendants contend the trial court should have granted a motion for severance, defendant Wright argues the trial court should have excluded an apology letter he wrote to the victim's family, both defendants fault the trial court for failing to charge the jury properly with instructions on lesser offenses, and defendant Abernathy argues the instructions improperly allowed the jury to find him guilty of murder as a consequence of attempted robbery. With respect to the special-circumstance finding, defendant Abernathy complains the trial court erred by failing to define one element, trial counsel blundered by failing to request instructions relating intoxication to another element, and the evidence is insufficient to sustain the finding. As for sentencing, defendant Wright attacks the constitutionality of his punishment, defendant Abernathy highlights two flaws in the trial court's calculation of his prison term, and both defendants purport to challenge the validity of their restitution fines.

In the published section of the discussion, we reject their argument that they were entitled to instructions on assault as a lesser-included offense of robbery. We find the remainder of their contentions without merit in the unpublished portion. We thus shall affirm.

FACTS

The parties have described in detail the testimony of the various witnesses at the lengthy trial. However, it is sufficient for our purposes to present only a brief summary of the facts to provide context. We will incorporate in the discussion any additional facts pertinent to the defendants' arguments.

Victim Moore was driving his Oldsmobile convertible on the afternoon of April 25, 1993, with three passengers. Victim Brown was in the back. As Moore turned left onto the street where his female passenger lived (in the vicinity of Watt Avenue and A Street), a Hyundai was sitting at the stop sign. Neither he nor his female passenger recognized the car or its occupants. He drove down the street and began making a wide u-turn to park on the other side of the street. He noticed the Hyundai had made a u-turn and was coming toward him. It pulled in front of him before he completed his u-turn, blocking his way.

Defendants Wright and Abernathy (a.k.a. "Joker" and "Snoop") were passengers in the Hyundai. The five occupants of the Hyundai As summarized in defendant Abernathy's brief, "two people got out of the Hyundai and approached the Oldsmobile. After a brief exchange of words [which the Oldsmobile occupants took as a demand for money], one drew a gun and fired, killing [victim Brown] and injuring [victim Moore]. [ p ] The prosecutor called seven eyewitnesses to testify to the events of that afternoon. All basically agreed to the above series of events. Five testified that Wright was the shooter[,] . . . two recall[ing] that Abernathy was standing near Wright and was actually trying to stop Wright from shooting. [The sixth eyewitness] reversed the identities, testifying that Abernathy was the shooter and that Wright did everything in his power to try and stop the shooting. Finally, [the seventh eyewitness] testified that he was not sure who did what to whom."

had been drinking and smoking marijuana throughout the day, and were on a trip to [52 Cal.App.4th 207] buy more alcohol when they crossed paths with the Oldsmobile occupants. Although defendant Wright had brought the car, he made someone else drive on this trip because he was too drunk and high; the other Hyundai occupants testified he appeared intoxicated. Two of the other Hyundai occupants (the third "wasn't paying attention") and another drinking companion also described defendant Abernathy as intoxicated. Both defendants claimed at trial as well that by the time they encountered the Oldsmobile, they felt intoxicated.

As might be expected, each defendant claimed the other was the shooter. Each also claimed the incident was not pursuant to any prearranged plan. Defendant Abernathy admitted he was a gang member who regularly carried a gun. He claimed, however, that he approached the Oldsmobile with his gun at his side without any intention to use it and never pointed it at anybody; an Oldsmobile occupant corroborated his account. Defendant Wright claimed defendant Abernathy got out of the car with a gun; he followed to prevent anything from happening. He had not been aware defendant Abernathy was even carrying a gun. Defendant Wright denied he ever possessed a gun on that afternoon. After defendant Wright was unsuccessful in attempting to disarm defendant Abernathy at the Oldsmobile, defendant Abernathy shot at the victims. By its felony-murder verdicts, the jury apparently believed defendant Wright was the shooter and both defendants intended to participate in a robbery of the occupants of the Oldsmobile.

DISCUSSION

I.-II. ^*

III. Instructions on lesser offenses

In addition to finding the defendants guilty of murder, the jury convicted them both of being armed principals in the attempted robbery of victim Brown while personally using a firearm; convicted defendant Wright of being an armed principal who attempted to murder victim Moore while personally using a firearm; convicted defendant Abernathy of the lesser offense of assault with a deadly weapon of victim Moore; and found both were armed principals in the robbery of victim Moore while personally using guns. Defendant Abernathy, joined by defendant Wright without elaboration, claims the trial court was obligated to instruct the jury on its own motion of the option of convicting them of assault as a lesser-included offense of robbery, and should have more broadly defined the scope of unlawful acts on which the jury could rest a conviction of involuntary manslaughter as a lesser-included offense of murder.

A. Robbery and assault

1. General principles: To determine whether an offense is a lesser-included offense of another for purposes of section 1159, ¹³ the Supreme Court adopted a two- A trial court is obligated to instruct on lesser-included offenses sua sponte if there is substantial evidence all the elements of the charged offense are not present. (People v. Barton (1995) 12 Cal.4th 186, 194-195, 47 Cal.Rptr.2d 569, 906 P.2d 531.) Thus, the trial evidence is relevant in determining whether a duty to instruct sua sponte arises.

                part test at the behest of the People in People v. Marshall (1957) 48 Cal.2d 394, 398, 405, 309 P.2d 456.   In a more recent restatement, "An uncharged crime is included in a greater charged offense if either (a) the greater offense [as defined by statute] cannot be committed without committing the lesser, or (b) the language of the accusatory pleading encompasses all the elements of the lesser offense."  (People v. Wolcott (1983) 34 Cal.3d 92, 98, 192 Cal.Rptr. 748, 665 P.2d 520 [emphasis supplied].)  The first, or "legal elements" test, determines whether as a matter of law the legal definition of the greater offense necessarily includes the lesser.  (People v. Moses (1996) 43 Cal.App.4th 462, 466-467, 50 Cal.Rptr.2d 665.)   Under the second, or "accusatory pleading" test, we review the information to determine whether the accusatory pleading describes the crime in such a way that if committed in the manner described the lesser must necessarily be committed.  (Id. at pp. 469-470, 50 Cal.Rptr.2d 665.)   The evidence actually introduced at trial is irrelevant to the determination of the status of an offense as lesser-included.  (In re Hess (1955) 45 Cal.2d 171, 174-175, 288 P.2d 5.)
                

2. The present case: The defendants assert that under the circumstances of this case, assault is a lesser offense included in robbery. ¹⁴ Because (as the Attorney General concedes) there is substantial evidence of the defendants' intoxication at the time of the charged offenses, this would (if believed) negate the specific intent to steal necessary for robbery (see People v. Visciotti (1992) 2 Cal.4th 1, 67, 5 Cal.Rptr.2d 495, 825 P.2d 388) but not the general intent required for assault (§ 22, subd. (b); People v. Colantuono (1994) 7 Cal.4th 206, 215-216, 26 Cal.Rptr.2d 908, 865 P.2d 704). The defendants thus argue the trial court erred in failing to instruct sua sponte on assault as a lesser-included offense.

"[N]umerous California cases have asserted generally that robbery is a combination of assault...