PEOPLE v. BUTLER

No. E062745.

THE PEOPLE, Plaintiff and Respondent, v. DERRICK JAMES BUTLER, Defendant and Appellant.

Court of Appeals of California, Fourth District, Division Two.


Attorney(s) appearing for the Case

Richard de la Sota , under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris and Xavier Becerra , Attorneys General, Gerald A. Engler , Chief Assistant Attorney General, Julie L. Garland , Assistant Attorney General, Charles C. Ragland , and Kimberley A. Donohue , Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

SLOUGH, J.

Defendant and appellant, Derrick James Butler, appeals a jury verdict finding him guilty of attempted first degree home invasion robbery in concert with two or more other people (Pen. Code, §§ 211, 213, subd. (a)) and the associated sentence.

Butler and two associates lured two victims out of an apartment, accosted them with a gun, and attempted to get them to go back into the apartment while they stole items inside. However, the victims resisted returning to the apartment, and when Butler entered the apartment on his own, they fled and called the police. Butler took items from the apartment, but law enforcement arrested him and his associates shortly afterward.

The trial court instructed the jury on the elements of robbery. However, it ruled the prosecution could not ask the jury to make a special finding the offense was a home invasion robbery in concert because the uncontested evidence showed the confrontation occurred outside the dwelling. Instead, the trial court reduced the charge to allege Butler had attempted to commit a home invasion robbery in concert and instructed the jury to decide whether Butler had attempted to commit the offense. The trial court did not instruct the jury to decide whether Butler committed the robbery in the first degree.

The jury found Butler guilty of completed robbery and attempted home invasion robbery in concert and found the offense was gang-related. (§ 186.22, subd. (b).)1 The trial court concluded the offense was subject to an enhanced term of 15 years to life because of the gang connection. The court then reduced the sentence to a midterm seven years because it was an attempt (§ 664, subd. (a)), doubled it to 14 years for the strike, and added 15 years for other enhancements. The abstract of judgment indicates the jury convicted Butler of first degree robbery in concert and makes no mention the offense was an attempt.

Butler appeals, contending it was error to convict him of first degree robbery and to instruct the jury on home invasion robbery in concert absent a specific jury finding that he committed the robbery in the first degree. Butler also contends it was error to enhance his sentence under section 186.22, subdivision (b)(4) because the offense was not a home invasion robbery. He therefore asks us to reduce his conviction to second degree robbery and remand for resentencing. We agree with his contentions and with his proposed remedy.

I

FACTUAL BACKGROUND

A. Offense Facts

Butler's offense took place around 2 p.m. on July 11, 2013, at and near Jonathan Woodert's third-floor apartment on Memorial Way in Moreno Valley. The victims, Woodert and his friend Terrill Brown, were present at the offense and testified at trial against Butler and his associates. The parties do not dispute the facts and evidence critical to this appeal, which are drawn from the testimony of the victims.

Woodert and Brown worked together as music engineers. Woodert owned a mobile studio, which he kept in his apartment, and he promoted his music business using social media. On July 11, 2013, Woodert had between $3,000 and $10,000 in cash with him at the apartment. Woodert and Brown took video of the cash along with jewelry and, at some point before the offense, posted the video to the social media site Instagram as a means of gaining attention for their music business.2

Their marketing worked too well. A promoter of Woodert's music business who they both knew as Pookie indicated he liked the video on Instagram. Later, Pookie called and asked if Woodert was in the area. Woodert said he was at home. No more than 30 minutes later, someone knocked at the apartment door. Woodert opened the door and found Ayana Dandridge, who asked for Pookie. Both Woodert and Brown recognized Dandridge as someone they had seen with Pookie on prior occasions. Woodert told Dandridge Pookie was not at his apartment. At that point, a man Woodert and Brown later identified as Butler approached the door and asked for Pookie while peering into the apartment. Woodert said Pookie was not there and shut the door.

That did not end the matter. Inside the apartment, Woodert and Brown conferred briefly and decided to go out into the hall to make sure their visitors had left. Anticipating problems, they removed their jewelry and left it in the apartment. About a minute after closing the door, they walked out, first Woodert and then Brown. Almost immediately, Butler and Edmond Conrad accosted them. Dandridge left, either before they emerged or immediately afterward. Butler drew a gun, pointed it at Woodert, and told him to go back into the apartment.

Woodert refused. He said Butler then "tried to pull me in the house, but nothing that forceful where he actually put his strength into it. He just kind of grabbed my shirt." Woodert again refused, explaining he "fe[lt] like, if anything was going to happen, I would rather it happen outside than in the house. At least somebody could see if I were to get shot or something, and call the ambulance." At that point, Butler left Woodert and Brown and walked into the apartment by himself. Butler was the only person Woodert and Brown saw enter the apartment.

When Butler went into the apartment, he left Woodert and Brown with Conrad, who stood blocking the hallway. Brown pushed Conrad and then along with Woodert ran down the stairs and away from the apartment complex. Once they were away from the building, they called 911 to report the crime. Police later found Butler and Conrad in the vicinity, and Woodert and Brown identified them. A month later, Brown identified Dandridge in a photographic lineup. The police recovered items taken from Woodert's apartment.

B. Procedural Facts

The Riverside County District Attorney charged Butler with one count of robbery (Pen. Code, § 211; count 1) and included in that count the special allegation Butler committed the robbery while "voluntarily acting in concert with two [or] more other persons . . . in an inhabited dwelling house." (Pen. Code, § 213, subd. (a)(1)(A).) The district attorney also charged Butler with one count each of first degree residential burglary (Pen. Code, §459; count 2), assault with a firearm (Pen. Code, §245, subd. (a); count 3), possessing a firearm despite having been adjudged a ward of the juvenile court for committing a crime listed in Welfare and Institutions Code section 707, subdivision (b) (Pen. Code, § 29820; count 4), and being an active participant in a criminal street gang (Pen. Code, § 186.22, subd. (a); count 5). They also charged him with personally using a firearm to commit count 1 (Pen. Code, § 12022.53, subd. (b)) and counts 2 and 3 (Pen. Code, § 12022.5), and committing counts 1, 2 and 3 for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)(C)). Finally, they charged Butler with having been convicted of a prior serious felony (§ 667, subd. (a)) and a prior strike offense (Pen. Code, §§ 667, subd. (c), (e)(1); 1170.12, subd. (c)(1)).

After the prosecution rested, the trial court took up Butler's motion to dismiss the robbery count. (§ 1118.1.) Butler raised several issues, including that the uncontested evidence showed the confrontation occurred outside the apartment.

The trial court agreed with Butler's contention. The trial court indicated the evidence did not support instructing the jury on a home invasion robbery charge because there was no evidence the offense "happened within an inhabited dwelling house." The trial court noted "we did hear evidence that the defendant actually attempted to force the complaining witness into the house, and he just refused to go." The trial court concluded "we have specific intent to commit a crime. And a direct but ineffectual act done towards its commission, including actually grabbing the victim and attempting to drag him back into the house." The trial court granted Butler's motion in part, and "reduce[d] the charge to attempt as to Count 1."

After the close of evidence, the trial court instructed the jury. In relation to the robbery count, the trial court gave the jury the standard instruction, allowing them to find Butler guilty of a completed robbery.

Consistent with its conclusion the evidence would not support a jury finding that a home invasion robbery had occurred, the trial court did not instruct the jury to determine whether the offense qualified as robbery in the first degree. (§ 212.5.) If the trial court had given the instruction, it would have told the jury "If you conclude that the defendant committed a robbery, you must then decide the degree. To prove that the defendant is guilty of first degree robbery, the People must prove that: The robbery was committed in an inhabited dwelling. A dwelling is inhabited if someone lives there and either is present or has left but intends to return. All other robberies are of the second degree."3 (See CALCRIM No. 1602.) By contrast, the trial court did instruct the jury to determine whether defendant's burglary offense was in the first or second degree.

In relation to the special allegation, as amended, that defendant attempted to commit a home invasion in concert with two or more other persons, the trial court gave the jury a modified version of the standard instruction for attempt. (CALCRIM No. 460.)

"If you find the defendant guilty of the crime charged in count 1 — robbery, you must then decide whether the people have proved the additional allegation that the defendant voluntarily acting in concert with two or more other persons, attempted to commit the robbery in an inhabited dwelling in violation of Penal Code section 664/213(a)(1)(A).

"To prove that the defendant voluntarily acting in concert with two or more other persons, attempted to commit the robbery within an inhabited dwelling in violation of Penal Code section 664/213(a)(1)(A), the People must prove that:

"1. The defendant took a direct but ineffective step toward committing the robbery in an inhabited dwelling by voluntarily acting in concert with Edmond Conrad and Ayana Dandridge; "AND "2. The defendant intended to commit the robbery in an inhabited dwelling by voluntarily acting in concert with Edmond Conrad and Ayana Dandridge. "A direct step requires more than merely planning or preparing to commit the robbery in an inhabited dwelling by voluntarily acting in concert with Edmond Conrad and Ayana Dandridge or obtaining or arranging for something needed to commit that offense. A direct step is one that goes beyond planning or preparation and shows that a person is putting his or her plan into action. A direct step indicates a definite and unambiguous intent to commit that offense. It is a direct movement towards the commission of this additional allegation after preparations are made. It is an immediate step that puts the plan in motion so that the plan would have been completed if some circumstance outside the plan had not interrupted the attempt. "This allegation is proven if a person attempts to commit the robbery in an inhabited dwelling by voluntarily acting in concert even if, after taking a direct step towards committing the crime, he or she abandoned further efforts to complete the crime or if his or her attempt failed or was interrupted by someone or something beyond his or her control. On the other hand, if a person freely and voluntarily abandons his or her plans before taking a direct step toward committing that crime, then his allegation is not proven as to that person. "To decide whether the defendant intended to commit the robbery in an inhabited dwelling by acting in concert with Edmond Conrad and Ayana Dandridge, please refer to the instructions below that I will give you on that allegation. "The allegation of attempt may be proven even if you conclude that robbery in an inhabited dwelling by acting in concert with Edmund Conrad and Ayana Dandridge was actually completed."

As part of the attempted robbery in concert instruction, the trial court included the standard instruction for that offense. (CALCRIM No. 1601.) "To prove this allegation, the people must prove that: [¶] 1. The defendant personally committed or aided and abetted a robbery; [¶] 2. When he did so, the defendant voluntarily acted with two or more other people who also committed or aided and abetted the commission of the robbery; [¶] AND [¶] 3. The robbery was committed in an inhabited dwelling. [¶] A dwelling is inhabited if someone lives there and either is present or has left but intends to return."

In closing argument, the prosecutor made clear the jury could find Butler guilty of attempted robbery in concert, but not completed robbery in concert, because the robbery did not take place inside Woodert's apartment. The prosecutor explained, "Now, there's an attempt robbery in concert allegation. And the attempt means that there was a direct but ineffective step taken towards committing this robbery in concert in an inhabited dwelling, and that the defendant intended to commit the robbery in concert in the inhabited dwelling. [¶] He tried to complete this robbery with two other people in Jonathan Woodert's apartment, but failed to actually complete it. That means, when he was trying to pull the victim back in, he wanted that taking to occur with them all inside the house at the same time. But because Jonathan Woodert didn't want to go back in and be victim of other crimes that might happen, he ripped away from the defendant and fled. So the defendant tried but did not accomplish this because the victim was smart enough to run."

The jury returned a verdict of guilty as to all counts and allegations, including the robbery count and the allegation that he attempted to commit a home invasion robbery in concert with two or more other persons. The verdict form on the robbery in concert allegation says, "We, the jury in the above-entitled action, find that in the commission of said offense charged under count 1 of the amended information, the defendant, DERRICK JAMES BUTLER, did attempt to voluntarily act in concert with two or more persons in violation of Penal Code section 213, subdivision (a), subsection (1), subparagraph (A)."

The jury also found Butler committed the robbery for the benefit of, at the direction of, or in association with a criminal street gang, with specific intent to promote, advance, or assist in criminal conduct by gang members, within the meaning of section 186.22, subdivision (b). Butler admitted the prior serious felony (§ 667, subd. (a)) and prior strike offense (§ 667, subd. (e)(1)) allegations.

The trial court designated the robbery count as the principle count and sentenced Butler to an aggregate term of 29 years as follows. Section 186.22, subdivision (b)(4) provides an enhanced sentence of 15 years to life for anyone convicted of a home invasion robbery "for the benefit of, at the direction of, or in association with any criminal street gang. (§ 186.22, subd. (b)(4)(B).) Because the offense was an attempt, the court reduced the sentence to the midterm of seven years prescribed for any attempt to commit a crime for which the maximum sentence is life. (§ 664, subd. (a).) The court then doubled the term to 14 years based on his prior strike conviction (§ 667, subd. (e)(1)), and imposed a consecutive 10 year enhancement because he personally used a firearm in committing the offense (§ 12022.53, subd. (b)) and a consecutive five year enhancement for the prison prior (§ 667, subd. (a)).4

Though the jury was not instructed to find the offense was first degree robbery, the abstract of judgment indicates Butler was convicted for first degree "robbery (in concert)." The abstract does not indicate the jury found Butler attempted to commit a home invasion robbery in concert.

II

DISCUSSION

A. First Degree Finding

Butler contends the trial court erred by imposing a first degree robbery conviction absent a specific finding by the jury that Butler committed the offense in the first degree. We agree.

First degree robbery comprises "[e]very robbery of any person who is performing his or her duties as an operator of any bus, taxicab, cable car, streetcar, trackless trolley, or other vehicle, including a vehicle operated on stationary rails or on a track or rail suspended in the air, and used for the transportation of persons for hire, every robbery of any passenger which is perpetrated on any of these vehicles, and every robbery which is perpetrated in an inhabited dwelling house, a vessel, as defined in Section 21 of the Harbors and Navigation Code which is inhabited and designed for habitation . . . a trailer coach as defined in the Vehicle Code, which is inhabited, or the inhabited portion of any other building." (§ 212.5, subd. (a).) Second degree robbery comprises "[a]ll kinds of robbery other than those listed" above. (§ 212.5, subd. (c).)

The Legislature has mandated "[w]henever a defendant is convicted of a crime or attempt to commit a crime which is distinguished into degrees, the jury, or the court if a jury trial is waived, must find the degree of the crime or attempted crime of which he is guilty." (§ 1157.) The Legislature also mandated if the factfinder does not make the required finding, "the degree of the crime or attempted crime of which the defendant is guilty[] shall be deemed to be of the lesser degree." (§ 1157.) Courts have interpreted this provision strictly, holding "the degree must be determined," "there may not be an implied finding of first degree . . . and the failure to specifically find requires the conviction to be of robbery of the second degree." (People v. Thomas (1978) 84 Cal.App.3d 281, 284.)

The only possible way the jury could find Butler committed robbery in the first degree was to find he perpetrated the crime in an inhabited dwelling house. However, the jury plainly made no such finding in this case. Butler filed a section 1118.1 motion for judgment of acquittal on count 1. Among the bases of the motion was his contention the evidence was insufficient to sustain a conviction for home invasion robbery in concert. The trial court agreed, concluding there was no evidence the offense "happened within an inhabited dwelling house," just "evidence that the defendant . . . attempted to force the complaining witness into the house, and he just refused to go." The trial court therefore ordered Butler acquitted of the completed crime of home invasion robbery, and "reduce[d] the charge to attempt as to Count 1."5

Consistent with this ruling, the trial court did not give the jury the standard instruction for deciding whether a defendant committed robbery in the first or second degree. The ruling on the motion for judgment of acquittal effectively decided a jury could not find Butler committed the robbery in Woodert's apartment, which precluded its finding he committed the robbery in the first degree. As a result, as Butler contends, the jury did not make such a finding, which is required by section 1157. We therefore conclude Butler's robbery conviction must be deemed a second degree robbery.

The People contend the jury did make a finding Butler committed first degree robbery when it concluded he committed attempted robbery in concert. We disagree. First, as we have discussed, the trial court specifically took that issue away from the jury by granting in part Butler's motion for judgment of acquittal. Second, even if the trial court's instruction was not effective in withdrawing the issue from the jury, we cannot conclude the jury's finding that he attempted to commit the robbery in the apartment shows it found he did commit the robbery in an inhabited dwelling. At best the finding shows the jury may have concluded the offense occurred in an inhabited dwelling. But it may have concluded the offense did not occur in an inhabited dwelling, despite Butler's efforts. Consequently, we reject the People's contention the jury's guilty verdict on the robbery in concert allegation can serve as a substitute for the jury's failure to make a specific finding that Butler committed the offense in the first degree.

Accordingly, we reverse the conviction for first degree robbery in concert and deem the offense a second degree robbery.

B. Section 213, Subdivision (a)(1) Finding

Butler contends the trial court erred by allowing the jury to find he attempted to commit the robbery in an inhabited dwelling (§ 213, subd. (a)(1)(A)) absent a specific finding that he committed the offense in the first degree. Again, we agree.

Section 211 sets out the elements of the robbery offense. Section 213 sets out the punishments for the offense. For second degree robbery, it directs punishment "by imprisonment in the state prison for two, three, or five years." (§ 213, subd. (a)(2).) For first degree robbery, one of two sentencing triads applies, depending on the circumstances of the offense. (§ 213, subd. (a)(1)(A) & (B).) If a defendant commits first degree robbery under circumstances that include, among others, "voluntarily acting in concert with two or more other persons . . . [to] commit[] the robbery within an inhabited dwelling house," the offense is punished by three, six, or nine years in state prison. (§ 213, subd. (a)(1)(A).) If the offense did not involve one of the specified circumstances, the offense is punished by three, four, or six years. (§ 213, subd. (a)(1)(B).)

It is evident from the face of the statute Butler could not properly be punished under a robbery in concert theory unless the jury found he committed first degree robbery. As we have discussed above, the jury did not, and was not permitted to make such a finding. It follows the punishment provision of section 213, subdivision (a)(1)(A) does not apply, and the trial court erred in instructing the jury it could find Butler guilty of attempted home invasion robbery in concert under the facts of this case and the court's ruling on Butler's 1118.1 motion.

Accordingly, we vacate the jury's finding with regard to the section 213, subdivision (a)(1)(A) allegation.

C. Alternative Sentence Under Section 186.22, Subdivision (b)(4)(B)

The jury also found Butler committed the robbery "for the benefit of, at the direction of, or in association with [a] criminal street gang, with the specific intent to promote, further, or assist in . . . criminal conduct by gang members." (§ 186.22, subd. (b)(1) & (4).) Section 186.22, subdivision (b)(4)(B) requires a sentence of 15 years to life in prison where such a conviction is for a home invasion robbery in violation of section 213, subdivision (a)(1)(A). Based on the jury's findings that Butler attempted to commit a home invasion robbery in concert for the benefit of a criminal street gang, the trial court applied section 186.22, subdivision (b)(4) in calculating Butler's sentence.

This too was error. The jury did not find Butler guilty of first degree robbery and the court therefore could not punish him for attempting to commit a home invasion robbery in concert. It follows the enhancement for gang-related home invasion robbery in concert offenses does not apply.6

Accordingly, we vacate the sentence and remand to the trial court to resentence Butler for second degree robbery committed for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in criminal conduct by gang members. (§§ 213, subd. (a)(2); 186.22, subd. (b)(1)(C).)

III

DISPOSITION

We reverse the judgment of conviction for first degree robbery, deem the conviction robbery in the second degree, vacate the finding Butler attempted to commit the robbery in concert with two or more other people, and vacate the sentence. We affirm the judgment in all other respects and remand for resentencing consistent with the opinion.

RAMIREZ, P. J. and MILLER, J., concurs.

FootNotes


1. Unlabeled statutory citations refer to the Penal Code.
2. Woodert said they had $3,000 and Brown said they had more, maybe as much as $10,000. The amount is immaterial; the cash was not stolen.
3. Other circumstances warrant a finding of first degree robbery, however, none of them is relevant to this appeal. (See CALCRIM No. 1602.)
4. The trial court also sentenced Butler on counts 2 through 5 and related enhancements, but stayed those sentences. (§ 654.) That portion of Butler's sentence is not at issue in this appeal.
5. The People do not cross-appeal the trial court's ruling on Butler's section 1118.1 motion, which they contend is not appealable under section 1118.2. We therefore express no opinion on the correctness of the ruling.
6. Our holding does not imply section 186.22, subdivision (b)(4) would not apply to gang-related attempted home invasion robbery convictions where the uncompleted aspect is the robbery itself (e.g., the police interrupt the offense), rather than the home invasion. (See, e.g., People v. Epperson (2017) 7 Cal.App.5th 385.)

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