NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Defendant Jahmari Selvam Butler was accused of carjacking and leading the police on a high-speed chase when he was seen hours later driving the stolen car. A jury convicted him of carjacking (Pen. Code, § 215, subd. (a)),
Defendant claims evidentiary and instructional errors, insufficiency of the evidence, and sentencing errors. Finding no merit to these claims, we shall affirm the judgment.
Statement of Facts
Around 2:00 a.m. on July 24, 2013, Tae Hae Cho was sitting in his car outside an Oakland apartment building waiting for a friend who resided there. The car, a white Lexus, was double-parked with the hazard lights on, the engine running, and the front windows open.
Cho was "playing" on his cell phone when he heard footsteps on the sidewalk approaching his car. Cho looked in the car's rearview and side mirrors. He saw four African-American males wearing sweatshirts with hoods pulled over their heads. The men walked "very closely together," two by two. Cho watched the men until they passed the car, then returned his attention to his phone. Seconds later, one of the men pointed a gun at Cho through the open car window. Cho asked, "Do you want my wallet?" and said "my cell phone is here and my wallet is in the glove box." The man responded, "Get out of the car." Cho, frightened and fearing for his life, exited the car. As he was exiting, the other three men ran up and entered the car as passengers. The gunman got behind the steering wheel and drove away. In the car were Cho's cell phone and his wallet containing $52 in cash.
About 13 hours later, at 3:08 p.m., a California Highway Patrol officer saw the stolen Lexus. The uniformed officer, in a marked patrol car, radioed for backup and followed the Lexus for several blocks along Oakland streets. The Lexus traveled the streets "normally" when first observed but the driver's motions became "erratic" under police surveillance. The driver crossed a double yellow line and drove for three blocks in the lane designated for the opposite direction of traffic. The officer, believing the Lexus driver was trying to evade him, attempted a traffic stop. The officer activated his patrol car's emergency lights and siren and "went after the vehicle." The Lexus continued forward, then slowed to discharge a young African-American male passenger who stumbled out of the car into a lane of traffic. The Lexus continued onward then stopped. An African-American female passenger holding a small child exited the vehicle.
The Lexus then sped away, travelling approximately 50 miles an hour in a 30 miles per hour zone. The officer followed with sirens sounding as the Lexus sped through red lights at two intersections, traveling in the opposite lane of traffic to go around stopped cars. An oncoming vehicle veered sharply toward the sidewalk to avoid a collision with the Lexus. The Lexus driver turned down a dead-end street. The highway patrol officer, now joined by the Oakland police, tried to prevent the vehicle from leaving the street and block the driver inside the vehicle. An Oakland police patrol car pulled up directly behind the Lexus as it drove toward the end of the street while the highway patrol officer pulled up next to the driver's door. The driver evaded immediate capture by turning into a driveway, exiting the vehicle, and running.
The police officers got a clear view of the fleeing driver, whom they later identified as defendant. The police conducted a perimeter search and apprehended defendant about 10 minutes later after seeing him jump over a fence. The police searched defendant's apartment later that day. On defendant's bedroom dresser were Cho's wallet with bank and store cards that had been inside the glove box of the stolen Lexus. Cho was unable to make a positive identification of defendant, saying only that defendant was "possibly" the gunman who took his car.
Defendant was interrogated by the police following a waiver of rights. Defendant initially denied any knowledge of the carjacking. The police confronted him with the stolen property recovered from his apartment and accused him of being "the main dude of the robbery." The police told defendant "we're trying to figure out what role you had. . . . [Y]ou look like the main dude in this thing. If you had a minimal role, let us know. . . . And tell me who had the major roles. If not, you go down for the major roles." Defendant then admitted his presence at the carjacking which, he claimed, others initiated. Defendant said he had been driving his mother's car with his friends "D Money" and "Tone" when the car broke down and they had to walk. They were walking down the street when they saw a car sitting with its "hazard lights on." Defendant's friends said "we're going to get on this" and "take this right here." The three men turned back toward the car. Defendant told the police: "I ain't never did no shit like that. I ain't never really — Like I always, I've had a few robbery cases and shit like that but I ain't never been pulling no guns on nobody `cause I'm kinda spooked of that shit. But they were like, we going do it, and they went and got on them." Defendant said "D Money was the one who got on [the] dude. Went and put the gun to the dude, the guy in the car." Defendant said "I just hopped in the car." The interrogating officer said "You just knew that after they were going to rob him that you were going to hop in the car" and defendant replied "Yeah." The officer asked defendant if he was "like a lookout" who was "looking around to make sure cops weren't coming." Defendant said "Na" but admitted looking at the apartment building the driver was sitting in front of and "wondering if somebody's going to come out, and call the police, that's what I was tripping on. I wasn't worried about no police coming." Defendant said he did not have a gun; only D Money and Tone had guns. Defendant admitted that, hours after the carjacking, he was driving the stolen car and violated traffic laws trying to elude the police. Defendant said D Money and his relatives were the passengers he dropped off during the police chase.
1. There is substantial evidence defendant aided and abetted the carjacking
The prosecution asserted that defendant was probably the gunman who confronted Cho but acknowledged the "evidence is unclear" as to defendant's role and proceeded to argue that defendant was guilty of carjacking and robbery as an aider and abettor. The prosecutor told the jury "I am relieving you of any obligation of determining" defendant's role, arguing he "is guilty under an aiding and abetting theory." The defense conceded that defendant was present at the carjacking and robbery, as he admitted to the police, but disputed defendant's intent to aid and abet the crimes. On appeal, defendant argues that the evidence of intent is insufficient to support his carjacking conviction.
"`[A]n aider and abettor is a person who, "acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime."'" (People v. Jurado (2006) 38 Cal.4th 72, 136.) The requisite intent to render such aid must be formed prior to or during the commission of the crime. (People v. Cooper (1991) 53 Cal.3d 1158, 1164.) Factors that are probative on the issue of knowledge and intent include "presence at the scene of the crime, companionship and conduct before and after the offense, including flight." (People v. Mitchell (1986) 183 Cal.App.3d 325, 330.)
"Mere presence at the scene of a crime is not sufficient to constitute aiding and abetting, nor is the failure to take action to prevent a crime, although these are factors the jury may consider in assessing a defendant's criminal liability." [Citation.] Likewise, knowledge of another's criminal purpose is not sufficient for aiding and abetting; the defendant must also share that purpose or intend to commit, encourage, or facilitate the commission of the crime. (People v. Nguyen (1993) 21 Cal.App.4th 518, 529-530). "Whether defendant aided and abetted the crime is a question of fact, and on appeal all conflicts in the evidence and reasonable inferences must be resolved in favor of the judgment." (People v. Mitchell, supra, 183 Cal.App.3d at p. 329.)
There is substantial evidence of defendant's intent to aid and abet the carjacking. By his own admission, defendant knew his friends were armed and knew they intended to steal the vehicle. Knowing their intention, defendant reversed his direction of travel and walked with them toward the car, intending to "hop in the car with them." Defendant saw his friend order the driver out at gunpoint as defendant stood near the car, watching the apartment building to see "if somebody's going to come out, and call the police." Defendant then immediately entered the stolen car and left the area. Defendant was driving the car hours later with the gunman as a passenger and assisted his escape. Defendant then led the police on a high-speed chase in an effort to evade capture. A police search of defendant's apartment found the victim's wallet taken from the stolen car.
Defendant admittedly knew "the full extent of the perpetrator's criminal purpose" and there is strong circumstantial evidence, at a minimum, that he gave "aid or encouragement with the intent or purpose of facilitating the perpetrator's commission of the crime." (People v. Beeman (1984) 35 Cal.3d 547, 560.) Defendant claims he intended no aid or encouragement but a rational trier of fact could reach a contrary conclusion given his conduct during and after the carjacking. In his police statement, defendant denied acting as a lookout but admitted watching the apartment building to see "if somebody's going to come out, and call the police." Defendant argues that "the only reasonable interpretation" of his statement is that "he was concerned that his friends' decision to take the car might get him personally into trouble with the police." Even assuming that such an interpretation is plausible, it is hardly the only interpretation that the jury could reasonably have understood his statement to have meant. The jury could reasonably infer that defendant was looking to sound an alert if he saw anyone come from the apartment building. Defendant's complicity in the carjacking is also strongly suggested by his later possession of the car and of personal property taken from the car and by his assisting the gunman's escape when pursued by the police.
2. The trial court did not abuse its discretion in denying defendant's request to redact from the police statement his reference to "robbery cases" and, in any event, the admitted evidence was not prejudicial
Defendant contends the trial court abused its discretion in denying his request to redact from his police statement the following italicized portion, which he claims was more prejudicial than probative: "We're walking up the hill and that's the car right there with its hazard lights on and they're like we're going to get on this we're [gonna] take this right here. So they go do it. I ain't never did no shit like that. I ain't never really — Like I always, I've had a few robbery cases and shit like that but I ain't never been pulling no guns on nobody `cause I'm kinda spooked of that shit. But they were like, we going do it, and they went and got on them." (Italics added.) (Evid. Code, § 352.)
Initially, defendant wanted only the reference to "a few robbery cases and shit like that" redacted. Defense counsel later proposed redacting the entire passage after the court observed that a partial redaction would leave untouched defendant's claim that he "never did no shit like that," which would falsely suggest that defendant had no prior theft convictions. In fact, defendant has prior convictions for auto theft and robbery. The court precluded the prosecution from presenting evidence of these prior convictions but refused defendant's request to excise his police statement reference to "robbery cases."
We find no abuse of discretion in the trial court's balancing of interests here. As discussed earlier, the prosecution's case was founded on an aiding and abetting theory. Defendant's knowledge of his friends' intention to commit a carjacking and his own intent to encourage or facilitate that crime were the central issues of the case. Defendant's admission that "I've had a few robbery cases . . . but I ain't never been pulling no guns on nobody" showed he knew his friends had guns and planned to use them to take the car by force. As the trial court observed, the statement "speaks to his intent" because it "demonstrates his knowledge that he knows what's going on" and "what is going to occur." Evidence that a person previously committed a crime or other bad acts is admissible when relevant to show intent, plan, knowledge or other fact apart from the person's disposition to commit the act. (Evid. Code, § 1101, subd. (b).)
Even if improperly admitted, the evidence was not prejudicial. It is not reasonably probable that defendant would have obtained a more favorable result in its absence. (People v. Watson (1956) 46 Cal.2d 818, 834.) As detailed above, there was strong evidence of defendant's complicity in the carjacking and robbery apart from the challenged statement. Defendant's statement about "robbery cases" was brief, vague and unlikely to have had an adverse impact. There were no details about his prior criminal conduct other than the fact he was not armed. In closing argument, the prosecutor never suggested that defendant's involvement in prior robberies reflected on his character or propensity to steal. The prosecutor properly used the statement as evidence of intent alone. The prosecutor quoted the entire passage containing the reference to "robbery cases" and argued the passage in "very important to show . . . defendant's intent": "did he intend to aid and abet, this right here goes directly to showing he knew what was going on and he was along for the ride, he was there for the team, and he was there to give strength in numbers to his other friends that night." Defense counsel cautioned the jury that defendant's statement could not be used as propensity evidence to convict defendant of carjacking: "In our justice system we don't convict people based on what they have been accused of in the past or what they have done in the past. We rely on evidence and facts presented to us proved beyond a reasonable doubt. [¶] Mr. Butler's statement that he's had a few robbery cases doesn't prove . . . his action on July 24th at 2:00 a.m."
3. The trial court properly refused to instruct the jury with CALCRIM No. 375 on the limited use of uncharged offenses
The trial court refused defense counsel's request to give CALCRIM No. 375, the instruction that limits the jury's use of evidence of uncharged offenses to prove identity, intent or common plan. The instruction has multiple variations but all forms state that the "People presented evidence" defendant committed a specified offense or act and informs jurors they "may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed" the offense or act and then only "for the limited purpose of deciding" intent or other relevant matter. (CALCRIM No. 375.)
The instruction is used when the prosecution presents extrinsic evidence of prior uncharged offenses in the form of arrest records or witness testimony. The only evidence of defendant's prior acts was his own statement vaguely referring to "robbery cases." The trial court rightly found that it would have confused the jurors to instruct them that the "People presented evidence" defendant committed robberies and to disregard the evidence unless "the People have proved by a preponderance of the evidence that the defendant in fact committed" the robberies. (CALCRIM No. 375.) The prosecution was not required to prove defendant committed robberies and, in fact, was precluded from doing so by a successful motion of the defense to exclude evidence of prior crimes.
Defendant argues on appeal that some limiting instruction should have been given, whether CALCRIM No. 375 or another fashioned for the particular facts here. Any failure in this regard rests with defense counsel, who never requested an appropriate instruction. The absence of a limiting instruction was not prejudicial in any event. As discussed above, defendant's statement about robberies was brief, vague and not inflammatory. The prosecution told the jury the statement was relevant only to intent and defense counsel stressed it should not be considered to show propensity to engage in criminal conduct. The evidence of defendant's complicity in the charged offense was strong. In these circumstances, any error in failing to request or give a limiting instruction was harmless.
4. The trial court was not required to give a unanimity instruction on the charge of unlawful taking or driving of a vehicle
Defendant claims the trial court erred in failing to instruct the jurors they must unanimously agree on which incident supports a verdict of unlawful taking or driving of a vehicle—the carjacking or police chase. "`It is fundamental that a criminal conviction requires a unanimous jury verdict. [Citations.]' [Citation.] What is required is that the jurors unanimously agree defendant is criminally responsible for `one discrete criminal event.' [Citation.] `[W]hen the accusatory pleading charges a single criminal act and the evidence shows more than one such unlawful act, either the prosecution must select the specific act relied upon to prove the charge or the jury must be instructed . . . that it must unanimously agree beyond a reasonable doubt that defendant committed the same specific criminal act.'" (People v. Thompson (1995) 36 Cal.App.4th 843, 850.) "`A unanimity instruction is required only if the jurors could . . . disagree which act a defendant committed and yet convict him of the crime charged.'" (People v. Beardslee (1991) 53 Cal.3d 68, 93.)
No unanimity instruction was required here because the evidence showed only one act that could constitute unlawful taking or driving of a vehicle—driving the vehicle hours after the carjacking when defendant attempted to evade the police. The prosecutor's closing argument relied exclusively on the facts surrounding the police chase. The carjacking was never offered as conduct establishing unlawful taking of a vehicle. In fact, the prosecutor conceded the evidence was insufficient to establish that defendant was the gunman who forced the victim out of the car and drove away and never argued that defendant's conduct during the carjacking indicated his guilt for the unlawful driving or taking of the vehicle.
Moreover, any error in failing to instruct on unanimity was harmless beyond a reasonable doubt. (People v. Wolfe (2003) 114 Cal.App.4th 177, 188.) It is plain from the verdict that the jury determined defendant was driving the Lexus during the police chase as it convicted him of various traffic crimes. The jury also determined that defendant knew the Lexus was stolen as it convicted him of carjacking as an aider and abettor. Necessarily, the jury determined that defendant drove "a vehicle not his or her own, without the consent of the owner thereof, and with intent either to permanently or temporarily deprive the owner thereof of his or her title or possession of the vehicle." (Veh. Code, § 10851, subd. (a).)
5. There are no sentencing errors
The trial court sentenced defendant to a cumulative prison term of 27 years, calculated as follows: 18 years for carjacking (the upper 9-year term doubled for a strike conviction) (§ 215, subd. (b), 1170.12, subd. (c)(1)); 2 years for unlawful taking or driving of a vehicle (Veh. Code, § 10851, subd. (a)); 1 year for a principal's use of a firearm during the carjacking (§ 12022, subd. (a)(1)); 5 years for a prior serious felony conviction (§ 667, subd. (a)); and 1 year for a prior prison term (§ 667.5, subd. (b)).
Defendant contends he may not be punished for both carjacking and unlawful taking or driving of a vehicle because the convictions rest on a single act. (§ 654.) Separate punishment for each is proper here. As previously discussed, the convictions arise not from a single act but from the independent acts of aiding and abetting a carjacking and, many hours later, driving the vehicle while trying to elude the police.
We also find no error in the trial court's imposition of the aggravated term for carjacking. The probation officer's report found no factors in mitigation and multiple factors in aggravation. The probation officer noted that the crime involved the threat of great bodily harm, a weapon was used in its commission, the victim was particularly vulnerable, defendant occupied a position of dominance over other participants in the crime as evidenced by his receipt of the car and the victim's personal property, the manner in which the crime was committed indicated planning as shown by coordinated action, and the crime involved a taking of property of great monetary value. (Cal. Rules of Court, rule 4.421(a)(1), (2), (3) (4), (8), (9).) As to defendant, the probation officer reported that defendant has engaged in violent conduct that indicates a serious danger to society, has prior convictions that are numerous or of increasing seriousness, has served a prior prison term, was on probation when the crime was committed, and his prior performance on multiple grants of probation was unsatisfactory. (Cal. Rules of Court, rule 4.421(b).)
In pronouncing sentence, the trial court said it selected the upper term for carjacking "because the victim was particularly vulnerable." Defendant argues the trial court abused its discretion in using this factor to aggravate his sentence. He asserts that Cho was no more vulnerable than any other carjacking victim.
The trial court did not abuse its discretion in finding the victim particularly vulnerable. The victim was alone on dark empty streets when taken by surprise by three or four men and ordered from his car at gunpoint. Moreover, any error in relying on victim vulnerability as an aggravating factor would not entitle defendant to a new sentencing hearing. It is not reasonably probable that a result more favorable to defendant would have been reached in the absence of the asserted error. (People v. Avalos (1984) 37 Cal.3d 216, 233.) "The court is presumed to have considered all relevant factors" (People v. Kelly (1997) 52 Cal.App.4th 568, 582) and many factors justify the aggravated term. Just before imposing the aggravated term, the trial court relied on several of these factors to deny defendant's motion to strike his prior conviction. The trial court found that defendant's prior robbery conviction "involved the same type of conduct that is present in the instant offense" and that "defendant's prior record of criminal conduct indicates a pattern of regular and increasing serious behavior." The court also noted defendant's poor performance on probation. Given these findings, it is not reasonably likely the court would have imposed a more lenient term in the absence of the challenged victim vulnerability factor.
The judgment is affirmed.
McGuiness, P.J. and Siggins, J., concurs.